Jury Instructions in Asset Forfeiture Cases

One of the best ways to understand asset forfeiture is to read the standard jury instructions. Any trial attorney will tell you the jury instructions are the most important part of the case. That trial attorney might also tell you that preserving objections to the jury instructions is the best way to get the case reversed on appeal if things do not go your way at trial.

For whatever reason, the federal courts do not publish standard jury instructions. The jury instructions in asset forfeiture cases depend on:

• whether the case involves civil asset forfeiture or criminal asset forfeiture;
• whether the case is being tried in state or federal court.

This article first discusses jury instruction in a civil asset forfeiture case in federal court.

Jury Instructions for Federal Civil Asset Forfeiture

In a civil asset forfeiture case, the jury instructions might provide:

Description of the civil asset forfeiture case:

The case you are about to hear is a civil asset forfeiture case. A civil forfeiture case is probably unlike any lawsuit with which you are familiar. A civil forfeiture action is unusual because the defendant is not a person. The defendant is an item of property ‑‑ in this case, [insert a description of the seized property].

The United States government is the plaintiff, and it has brought this action to have the property forfeited. Forfeiture cases are based upon the concept that if the property is involved in a violation of the law, constitutes proceeds of a crime, or facilitates the commission of a crime, the property must be forfeited to the government.

Federal statutes provide for the forfeiture of property involved in certain crimes. For instance, property involved in illegal controlled substance offenses is subject to forfeiture. Forfeiture terminates one or more persons’ interests in property and transfers that interest to the government. It is not necessary that the government convict anyone of a crime in connection with the forfeiture in order to obtain a forfeiture verdict in a civil forfeiture case.

Title 21 of the United States Code, Section 881(a)(6) makes the following property subject to forfeiture to the United States:

1. moneys furnished or intended to be furnished by any person in exchange for a controlled substance;
2. proceeds traceable to such an exchange; and
3. moneys used or intended to be used to facilitate any violation of the Controlled Substances Act.

To help you follow the evidence, I’ll summarize the parties’ positions. The United States claims that the [insert a description of the property] should be forfeited because they constitute:

1. moneys furnished or intended to be furnished by any person in exchange for a controlled substance;
2. proceeds traceable to such an exchange; or
3. moneys used or intended to be used to facilitate a controlled substances offense in violation of Title 21, United States Code.

Of course, the property cannot speak for itself.

The other parties in the case are the claimants, ___________. They deny the claims made by the United States and contend that the [insert a description of the property] should not be forfeited because they do not constitute:

1. moneys furnished or intended to be furnished by any person in exchange for a controlled substance;
2. proceeds traceable to such an exchange; or
3. moneys used or intended to be used to facilitate a controlled substances offense in violation of Title 21, United States Code.

Burden of proof of the civil asset forfeiture case:

The United States has the burden of proving its case by what the law calls a “preponderance of the evidence.” That means the United States must prove that, in light of all the evidence, what it claims is more likely true than not.

So, if you could put the evidence favoring the United States and the evidence favoring the Claimants on opposite sides of balancing scales, the United States needs to make the scales tip to its side. If the United States fails to meet this burden, you must find in favor of the Claimants.

To decide whether any fact has been proved by a preponderance of the evidence, you may – unless I instruct you otherwise – consider the testimony of all witnesses, regardless of who called them, and all exhibits that the court allowed, regardless of who produced them. After considering all the evidence, if you decide a claim or fact is more likely true than not, then the claim or fact has been proved by a preponderance of the evidence.

Elements that Must Be Proven By the Government

To prove that the Defendant Assets are subject to forfeiture, the government must prove one of the following by a preponderance of the evidence:

Money Furnished or Intended to be Furnished:

1. The Defendant Assets are money;
2. The money was furnished or intended to be furnished by any person;
3. The money was furnished or intended to be furnished in exchange for a controlled substance;
4. The exchange of the controlled substance was in violation of the Controlled Substances Act;
5. There is a substantial connection between the property and the underlying offense.

Proceeds Traceable to Such an Exchange:

1. The Defendant Assets are proceeds;
2. The proceeds are traceable to an exchange of a controlled substance;
3. The exchange of the controlled substance was in violation of the Controlled Substances Act; and
4. There is a substantial connection between the property and the underlying offense.

Money Used or Intended to be Used to Facilitate:

1. The Defendant Assets are money;
2. The money was used or intended to be used to facilitate a violation of the Controlled Substances Act; and
3. There is a substantial connection between the property and the offense for you to find that the property facilitated, or was intended to facilitate, committing the offense.

The Fourth Circuit has emphasized that the government must demonstrate a substantial connection between the criminal activity and the assets to avoid the risk of all assets belonging to a individual being subject to forfeiture regardless of their origin. U.S. v. $121,100.00 in U.S. Currency, 999 F.2d 1503 (1993))

Definitions in Civil Asset Forfeiture Cases

The following definitions apply:

• “Controlled substance” means “any substance regulated under the Controlled Substances Act, including but not limited to drugs such as marijuana, cocaine, heroin, and methamphetamine. The government must prove that
• “Furnished” means that the money was actually given in exchange for a controlled substance.
• “Intended to be furnished” means that the money was meant to be given in exchange for a controlled substance, even if the exchange did not actually occur.
• “Proceeds” refers to any money or property obtained as a result of the exchange of a controlled substance.
• “Traceable” means the government must establish an ascertainable course or trail in successive stages of development or progress from the original source.
• “Facilitate” means to assist in the commission of a violation of the Controlled Substances Act. This could include, but is not limited to, providing money for the purchase of controlled substances, transportation, or other services related to drug trafficking.
• To “facilitate” the commission of an offense means to aid, promote, advance, or make easier, the commission of the act or acts constituting the offense.

Jury Instructions on Affirmative Defenses for Innocent Owners

The defense can request an instruction on the innocent owner defense that provides:

In a case in which the government alleges the seized property was related to drug dealing, the Claimant might request the following instructions:

The property shall not be forfeited if the Claimant qualifies as an “innocent owner.” To qualify as an innocent owner, the Claimant must establish by a preponderance of the evidence, the following elements:

1. The Claimant did not have actual knowledge of the [violation that triggered the forfeiture]; or
2. The Claimant did not consent to the illegal activity [that triggered the forfeiture].

See 21 U.S.C. § 881(a)(7); see also Lalit K. Loomba, Note, The Innocent Owner Defense to Real Property Forfeiture under the Comprehensive Crime Control Act of 1984, 58 Fordham L. Rev. 471, 478-86 (1989) (urging disjunctive construction of 21 U.S.C. § 881(a)(7)).

Jury Instructions for Federal Criminal Asset Forfeiture

According to 6.18.1963 in the section on RICO – Criminal Forfeiture of Property (18 U.S.C.§ 1963), if the indictment contains a notice that the government will seek forfeiture of property as part of sentencing in accordance with 18 U.S.C. § 1963, the trial court should give Instruction 6.18.1963 (RICO – Criminal Forfeiture of Property (18 U.S.C.§ 1963).

The jury instruction is given if a party requests a jury determination that the property is subject to forfeiture under Fed. R. Crim. P. 32.2(b)(4).

One of the best ways to understand criminal forfeiture proceedings in a RICO case is to read the standard jury instructions.

The jury instructions for criminal forfeiture of property (6.18.1963 RICO) provide:

[If the indictment contains notice that the government will seek forfeiture of property as part of sentencing in accordance with 18 U.S.C. § 1963 and, if a party requests a jury determination under Fed. R. Crim . P. 32.2(b)(4) that the property is subject to forfeiture, the trial court should instruct the jury regarding this matter at three points during the trial proceedings.

First, when the court instructs the jury at the end of the trial with respect to its deliberations and the trial verdict, the court should alert the jury that:

Depending on the verdict you reach, there may be a brief additional proceeding after you have returned your verdict.

Second, if the jury has returned a guilty verdict, at the outset of the forfeiture proceeding before the jury, the trial court should explain preliminarily the nature and purpose of the forfeiture proceeding that is about to take place, as follows:

You have found (name) guilty of (state the offense(s)), as charged in Count(s)(No.) of the indictment.You will now need to consider a further question regarding property that the indictment alleges is subject to forfeiture by (name) to the government.

Forfeiture means that (name) would lose any ownership or interest (he) (she) has or claims to have in the specified property, as a part of the penalty for engaging in criminal activity.

After the parties have presented any additional evidence on this subject, I will instruct you further on the law with respect to forfeiture.

In considering whether the property is subject to forfeiture, you should consider the evidence you have already heard and any additional evidence presented by the parties.

You should evaluate that evidence and its credibility as I explained to you earlier in my instructions.

Third, at the end of the forfeiture proceeding, the trial court should give the instruction below.]

You have found (name) guilty of (state the offense(s)), as charged in Count(s) (No.) of the indictment.You now need to consider a special verdict concerning property that the indictment alleges is subject to forfeiture by (name) to the government.

Forfeiture means that (name) would lose any ownership or interest (he) (she) has or claims to have in the specified property (any interest in any enterprise) (any security of any enterprise) (any claim against any enterprise) (any property or contractual right of any kind affording a source of influence over any enterprise), as a part of the penalty for engaging in criminal activity.

I instruct you that you are bound by your previous finding that (name) is guilty of (state the offense(s)).

Under federal law, any person convicted of (state the offense(s)) shall forfeit to the government any property that is, or was derived from, any proceeds which the person obtained, directly or indirectly, from the offense (any interest the person has acquired or maintained as a result of the offense) ((any interest in any enterprise) (any security of any enterprise) (any claim against any enterprise) (any property or contractual right of any kind affording a source of influence over any enterprise) that the person established, operated, controlled, conducted, or participated in the conduct of as part of the offense).

In deciding whether property is subject to forfeiture, you should not concern yourself with or consider whether any other person may own or have an interest in the property.

I will resolve any such claims.Similarly, you are not to consider whether the property is presently available.Your only concern is whether the government has proven the required connection between the property and the offense(s) for which you have found (name) guilty.

Count (no.) allege(s) that (describe the particular property alleged to be subject to forfeiture) (describe the interest (name) acquired or maintained that is alleged to be subject to forfeiture) (describe (name’s) interest in, security of, claim against, property or contractual right affording a source of influence over an enterprise that is alleged to be subject to forfeiture) should be forfeited because of the connection between this property (interest) (security) (claim) (contractual right) and (name’s) commission of  (state offense(s) asserted as the basis for forfeiture).

[Describe as to each count for which there has been a conviction, the specific property (interest) (security) (claim) (contractual right) alleged to be subject to forfeiture].

This property is subject to forfeiture if you find that the government has proved beyond a reasonable doubt that the property is, or was derived from, any proceeds (name) obtained, directly or indirectly, as a result of the offense(s) for which you have found (him) (her) guilty.

(This interest is subject to forfeiture if you find that the government has proved beyond a reasonable doubt that (name) acquired or maintained the interest as a result of the offense(s) for which you have found (him) (her) guilty.)

(This (interest in) (security of) (claim against) (property or contractual right affording a source of influence over) an enterprise is subject to forfeiture if you find that the government has proved beyond a reasonable doubt that name (established) (operated) (controlled) (conducted) (participated in the conduct of) the enterprise as part of the offense for which you have found (him) (her) guilty.)

Property is “proceeds” of an offense if the property was obtained directly or indirectly, as a result of the offense.Property “was derived” from the proceeds of an offense if the property was obtained, directly or indirectly, using money or any other source of wealth gained as a result of the commission of the offense.

In making this determination, you should consider all of the evidence presented on the subject during this proceeding and during the trial, regardless of who offered it.All of my previous instructions continue to apply, and you should evaluate the evidence and its credibility according to the instructions I gave you earlier.

A Special Verdict Form has been prepared for your use.  With respect to each item of property (interest) (security) (claim) (contractual right), you are asked to decide whether it is subject to forfeiture to the government, based on the reasons I have explained to you.  Your decision must be unanimous.  Indicate on the verdict form whether you find that the property listed is subject to forfeiture, and then the foreperson should sign and date the form.

SPECIAL VERDICT FORM

We, the Jury, return the following Special Verdict as to the defendant (name’s) interest in each item of property alleged in Count(s) (insert count number(s)) to be subject to forfeiture by (name) to the United States:

(Insert dollar amount in United States currency and description of real property or other tangible or intangible personal property (interest) (security) (claim) (contractual right) as alleged in the indictment.)

Do you unanimously find by a preponderance of the evidence that this property (interest) (security) (claim) (contractual right) is subject to forfeiture?

YES ____________

NO ____________

This ____________ day of ____________, 20_______.

_____________________________________________

Foreperson

11th Circuit Instructions for Criminal Asset Forfeiture

In the 11th Circuit, the pattern jury instructions for criminal asset forfeiture provide:

Forfeiture Proceedings

(To be given before supplemental evidentiary proceedings or supplemental arguments of counsel)

Members Of The Jury: Your verdict in this case doesn’t complete your jury service as it would in most cases because there is another matter you must now consider.

You must decide whether the Defendant[s], _______________, should forfeit certain [money or] property to the United States as a part of the penalty for the crime charged in Count _____ of the indictment.

In a portion of the indictment not previously discussed or disclosed to you, it is alleged that the Defendant[s] got certain [money or] property from committing the offense charged in Count _____. In view of your verdict finding the Defendant[s] guilty of that offense, you must also decide whether the [money or] property should be forfeited to the United States.

To “forfeit” a thing is to be divested or deprived of the ownership of it as a part of the punishment allowed by the law for certain criminal offenses.

To decide whether [money or] property should be forfeited, you should consider all the evidence you have already heard plus any additional evidence that will be presented to you after these instructions.

A copy of the forfeiture allegations of the indictment will be given to you to consider during your supplemental deliberations. It describes in particular the [money or] property allegedly subject to forfeiture to the United States.

[List or summarize the items subject to forfeiture]

To be entitled to the forfeiture of any of those items, the Government must have proved [beyond a reasonable doubt] [by a preponderance of the evidence]:

Option No. 1

(Forfeitures under 18 USC § 982)

First: That the [money or] property to be forfeited constitutes the proceeds the Defendant obtained directly or indirectly as the result of the crime charged in Count _____ of the indictment;

OR

Second: That the [money or] property to be forfeited [was derived from] [traceable to] the proceeds the Defendant obtained directly or indirectly as the result of the crime charged in Count _____ of the indictment.

Option No. 2

(RICO – 18 USC § 1963(a))

First: That the [sum of money or proceeds] [property] sought to be forfeited constituted an interest acquired by the Defendant, as charged;

Second: That the interest [was acquired by the Defendant as a result of the conduct of the enterprise’s affairs through the pattern of racketeering activity] [constituted or was derived from proceeds that the Defendant obtained, directly or indirectly, from racketeering activity] committed by the Defendants as charged in Count _____ in violation of Title 18, United States Code, § 1962(c).

Option No. 3

(Child Pornography – 18 USC § 2253)

First: That the property to be forfeited is a visual depiction, or other matter containing a visual depiction, that was [produced] [transported] [received] in violation of [cite statutory offense of conviction].

OR

Second: That the property to be forfeited constituted, or is traceable to, gross profits or other proceeds obtained from the offense Defendant was convicted of.

OR

Third: That the property to be forfeited was used or intended to be used to commit or to promote committing the offense Defendant was convicted of.

Option No. 4

(Drug Offenses – 21 USC § 853)

First: That the property to be forfeited constitutes, or was derived from, the proceeds the Defendant obtained, directly or indirectly, as the result of committing the offense charged in Count _____ of the indictment,

OR

Second: That the property to be forfeited was used, or was intended to be used, in any manner or part, to commit or to help commit, the offense charged in Count _____ of the indictment.

[Before you can find that the Defendant must forfeit any property under either of those standards, you must unanimously agree upon which of the two standards should be applied in forfeiting a particular asset.]

[Proof “beyond a reasonable doubt” has the same meaning that I explained to you in my instructions at the end of the trial.]

OR

[A “preponderance of the evidence” simply means an amount of evidence that is enough to persuade you that a claim or contention is more likely true than not true.]

[To be “derived” from something means that the [money or] property under consideration must have been formed or developed out of the original source so as to be directly descended from that source.]

[To be “traceable” to something means that the [money or] property under consideration must have followed an ascertainable course or trail in successive stages of development or progress from the original source.]

[To “facilitate” the commission of an offense means to aid, promote, advance, or make easier, the commission of the act or acts constituting the offense. There must be more than an incidental connection between the property and the offense for you to find that the property facilitated, or was intended to facilitate, committing the offense. But the property doesn’t have to be essential to committing the offense, nor does the property have to have been used exclusively to commit the offense or as the exclusive means of committing the offense. Property used to facilitate an offense can be in virtually any form.]

While deliberating concerning the issue of forfeiture you must not reexamine your previous determination regarding the Defendant’s guilt. But all the instructions previously given to you concerning your consideration of the evidence, the credibility of the witnesses, your duty to deliberate together, your duty to base your verdict solely on the evidence without prejudice, bias, or sympathy, and the necessity of a unanimous verdict, will continue to apply during these supplemental deliberations. [The specific instructions I gave you earlier concerning Count _____ and the definitions of the terms “enterprise” and “pattern of racketeering activity” also continue to apply.]

ANNOTATIONS AND COMMENTS

Federal Rule of Criminal Procedure 32.2 provides

(a) Notice To The Defendant. A court shall not enter a judgment of forfeiture in a criminal proceeding unless the indictment or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute.

*  *  *  *  *  *

(b)(4) Upon a party’s request in a case in which a jury returns a verdict of guilty, the jury shall determine whether the government has established the requisite nexus between the property and the offense committed by the defendant.

18 U.S.C. § 982, entitled “Criminal Forfeiture,” is a general statute that provides for the forfeiture of property interests as a part of the sentence for a variety of offenses enumerated in the several subsections of the statute. The definition of the nexus that must be shown to exist between the offense and the property as a prerequisite to forfeiture differs slightly from one subsection to the next:

• 982(a)(1) “involved in such offense” or “traceable to such property”
• 982(a)(2) “constituting or derived from proceeds… obtained directly or indirectly as the result”
• 982(a)(3) “which represents or is traceable to the gross receipts obtained directly or indirectly as a result”
• 982(a)(4) “obtained directly or indirectly, as a result”
• 982(a)(5) “which represents or is traceable to the gross receipts obtained directly or indirectly as a result”
• 982(a)(6) “any conveyance… vessel, vehicle or aircraft used” or “constitutes or is derived from or is traceable to proceeds obtained directly or indirectly from” or “is used to facilitate”
• 982(a)(7) “constitutes or is derived directly or indirectly from gross proceeds traceable to”
• 982(a)(8) “used to facilitate” or “constituting, derived from or traceable to”

Extreme care must be taken, therefore, in adapting and tailoring elements of proof as stated in this instruction to the standards stated in the specific subsection of § 982 applicable to the case.

18 U.S.C. § 1963(a) (RICO) provides:

Whoever violates any provision of section 1962 of this chapter… shall forfeit to the United States (1) any interest the person has acquired or maintained in violation of section 1962; (2) any interest in; security of; claim against; or property or contractual right of any kind affording a source of influence over any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of, in violation of section 1962; and (3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity… in violation of section 1962.

18 U.S.C. § 2253 (Child Pornography) provides:

(a) Property subject to criminal forfeiture. – – A person who is convicted of an offense under this chapter [18 U.S.C.A. § 2251 et seq.] involving a visual depiction described in section 2251, 2251A, 2252, 2252A, or 2260 of this chapter, or who is convicted of an offense under section 2421, 2422, or 2423 of chapter 117 [18 U.S.C.A. § 2421 et seq.], shall forfeit to the United States such person’s interest in – –

(1) any visual depiction described in section 2251, 2251A, or 2252 of this chapter, or any book, magazine, periodical, film, videotape, or other matter which contains any such visual depiction, which was produced, transported, mailed, shipped or received in violation of this chapter;

(2) any property, real or personal, constituting or traceable to gross profits or other proceeds obtained from such offense; and

(3) any property, real or personal, used or intended to be used to commit or to promote the commission of such offense.

21 U.S.C. § 853(a) (Drug Offenses) provides:

Any person convicted of a violation of this subchapter of subchapter II of this chapter [21 U.S.C. §§ 951 et seq.] punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law – –

(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;

(2) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and

(3) in the case of a person convicted of engaging in a continuing criminal enterprise [the defendant forfeits any interest in the enterprise itself]

With respect to the forfeitures under 18 U.S.C. § 982, the preponderance of the evidence standard applies. United States v. Cabeza, 258 F.3d 1256 (11^th Cir. 2001) (holding also that the principle of Apprendi does not apply to forfeiture proceedings.)

With respect to the Government’s burden of proof under 18 U.S.C. § 1963 (RICO), the Eleventh Circuit has not squarely decided the issue. See United States v. Goldin Industries, Inc., 219 F.3d 1271, 1278 at note 10 (11^th Cir. 2000) (“The government contends for the first time on appeal that the correct burden of proof is preponderance of the evidence rather than beyond a reasonable doubt. We have never decided this issue with respect to RICO’s forfeiture provision. We need not decide the issue here…”)

Other Circuits, however, have held that the beyond a reasonable doubt standard applies. See United States v. Pelullo, 14 F.3d 881, 906 (3d Cir. 1994) (holding that government, in a criminal forfeiture proceeding under 18 U.S.C. § 1963(a), must prove beyond a reasonable doubt that the targeted property was derived from the defendant’s racketeering activity); United States v. Horak, 833 F.2d 1235, 1243 (7^th Cir. 1987). See also United States v. Houlihan, 92 F.3d 1271, 1299 at note 33 (1^st Cir. 1996) (affirming district court’s instruction that the government had the burden of proving entitlement to forfeiture pursuant to 18 U.S.C. § 1963(a) beyond a reasonable doubt, but noting that “the government may have conceded too much,” and that the question was open).

In United States v. Anderson, 782 F.2d 908, 918 (11^th Cir. 1986), the Eleventh Circuit held that “[a] defendant’s conviction under the RICO statute subjects all of his interest in the enterprise to forfeiture ‘regardless of whether those assets were themselves “tainted” by use in connection with the racketeering activity.’”

With respect to forfeitures sought under 21 U.S.C. § 853, the Eleventh Circuit has held that the preponderance of the evidence standard applies. United States v. Elgersma, 971 F.2d 690, 697 (11^th Cir. 1992) (en banc) (holding that the preponderance standard applies in § 853(a)(1) forfeitures); United States v. Dicter, 198 F.3d 1284, 1289 (11^th Cir. 1999) (the preponderance of the evidence standard governs forfeitures under § 853(a)(2)).

21 U.S.C. § 853(d) creates a rebuttable presumption that property is subject to forfeiture if the Government proves by a preponderance of the evidence that the drug offender (1) acquired the property during the period of time the offense of conviction was committed, or within a reasonable time thereafter, and (2) there was no likely source for such property other than the offense.

With respect to forfeiture proceedings under 18 U.S.C. § 2253, the statute (subsection (e)) requires proof beyond a reasonable doubt.

Jury Instructions for Civil Asset Forfeiture in Florida State Court

This article was last updated on Thursday, January 9, 2025.