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The Innocent Owner Defense - Chapter 12 - Asset Forfeiture Law in the United States - Third Edition
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22078
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Originally from Asset Forfeiture Law in the United States, Third Edition
§ 12-1 Overview This chapter discusses the elements of the innocent owner defense. The innocent owner defense has a long history that is described in detail in Chapter 2 and other sources. In summary, because civil forfeiture actions are directed against the property and not against the property owner, the role of the owner in the underlying offense was historically considered to be irrelevant. All that mattered was that the property had been used by someone to commit a criminal offense. Hence, the forfeiture statutes that Congress enacted throughout most of the 20th Century lacked any protection for innocent owners, and the Supreme Court repeatedly rejected the notion that such statutes violated the Due Process Clause of the Constitution. That began to change in the 1970s. First, in 1974, the Supreme Court suggested in Calero-Toledo v. Pearson Yacht Leasing Co. that it might be unconstitutional to forfeit a person’s property if he had taken all reasonable steps to prevent its illegal use by a third party. Then Congress began to enact civil forfeiture statutes allowing claimants to show that the illegal use of their property had occurred without their knowledge or consent. In 1996, the Supreme Court would ultimately hold in Bennis v. Michigan that the Constitution requires no protection for innocent owners and that the suggestions in Calero-Toledo to the contrary were merely dicta. But by that time, the concept of a statutory innocent owner defense had become fairly well-established in federal forfeiture law. Although the idea of protecting innocent owners was accepted as a concept by the 1990s, the statutes themselves were poorly drafted, inconsistent with each other, and filled with ambiguities. Ultimately, in CAFRA, Congress reacted to Bennis and to the omissions and ambiguities in the innocent owner statutes by repealing all of the then-existing provisions and replacing them with a uniform innocent owner provision codified at 18 U.S.C. § 983(d). This chapter discusses the elements of the defense under that statute, the standard for determining a motion for summary judgment on the innocent owner defense, and the options available to the court if only a portion of the property is held by an innocent owner.
Stefan D. Cassella, as a federal prosecutor, was one of the federal government's leading experts on asset forfeiture law for over thirty years, and now serves as an expert witness and consultant to law enforcement agencies and the financial sector as the CEO of AssetForfeitureLaw, LLC.
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