Federal Criminal Asset Forfeiture
Criminal forfeiture is governed by Federal Rule of Criminal Procedure 32.2. After a guilty verdict, “the court must determine what property is subject to forfeiture under the applicable [forfeiture] statute.” Fed. R. Crim. P. 32.2(b)(1)(A).
Rule 32.2 further provides that “[t]he court’s determination may be based on evidence already in the record” and “any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable.” Fed. R. Crim. P. 32.2(b)(1)(B).
Because criminal forfeiture is an aspect of sentencing, rather than a substantive offense, the government need only “prove its forfeiture allegations by a preponderance of the evidence.” United States v. DeFries, 129 F.3d 1293, 1312, 327 U.S. App. D.C. 181 (D.C. Cir. 1997).
Criminal forfeiture is “an aspect of punishment imposed following conviction of a substantive criminal offense.” Libretti v. United States, 516 U.S. 29, 39, 116 S. Ct. 356, 133 L. Ed. 2d 271 (1995). In contrast to restitution, which focuses on making the victim whole, forfeiture focuses on punishing the defendant. “Forfeitures help to ensure that crime does not pay: They at once punish wrongdoing, deter future illegality, and ‘lessen the economic power’ of criminal enterprises.” Kaley v. United States, 571 U.S. 320, 323, 134 S. Ct. 1090, 188 L. Ed. 2d 46 (2014) (citation omitted).
Attorney for Criminal Asset Forfeiture in Federal Court
If your criminal case involves an attempt to forfeit property, contact an experienced attorney at Sammis Law Firm. We can help you fight criminal charges while protecting your property from criminal asset forfeiture proceedings.
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Authority to Seek Pretrial Criminal Forfeiture in Federal Court
The government might exercise its authority to seek pretrial criminal forfeiture. For example, 18 U.S.C. § 982 permits a court to order that a person “convicted of an offense in violation of [18 U.S.C. §§ ] 1956, 1957 . . . forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property.”
Courts are further empowered “[u]pon application of the United States” to “enter a restraining order” before trial “to preserve the availability of property” that is “constituting, or derived from, any proceeds . . . obtained, directly or indirectly, as the result” of a criminal offense or “used, or intended to be used, in any manner or part, to commit, or to facilitate the commission, of such” a criminal offense. 21 U.S.C. § 853(a)(1)-(2), (e).
Additionally, the government may “request the issuance of a warrant authorizing the seizure of property subject to forfeiture” if “an order . . . may not be sufficient to assure the availability of the property for forfeiture.” 21 U.S.C. § 853(f).
These pretrial asset restraints are constitutionally permissible when there is “probable cause to think (1) that the defendant has committed an offense permitting forfeiture, and (2) that the property at issue has the requisite connection to that crime.” Kaley v. United States, 571 U.S. 320, 323-24, 134 S. Ct. 1090, 188 L. Ed. 2d 46 (2014).
Substitute Property Provisions of 21 U.S.C. § 853(p)
Section 982(b) also incorporates the substitute property provisions of 21 U.S.C. § 853(p). Under those provisions, the government may seek forfeiture of substitute property where, “as a result of any act or omission of the defendant,” it cannot obtain the actual property involved in the offense. 21 U.S.C. § 853(p)(1)-(2).
As exception to this rule is found in Section 982(b)(2). Under that exception, the substitute property provision “shall not be used” where a defendant convicted of money laundering “acted merely as an intermediary who handled but did not retain the property in the course of the money laundering offense.” 18 U.S.C. § 982(b)(2).
An exception to this exception exists because even where the defendant acted as a mere “intermediary,” a court must nonetheless order forfeiture if the defendant conducted “three or more separate transactions involving a total of $100,000 or more in any twelve month period.” Id.
Forfeiture is mandatory if the statutory criteria are satisfied. See United States v. Monsanto, 491 U.S. 600, 607, 109 S. Ct. 2657, 105 L. Ed. 2d 512 (1989). “If the court finds that property is subject to forfeiture, it must promptly enter a preliminary order of forfeiture setting forth the amount of any money judgment, directing the forfeiture of specific property, and directing the forfeiture of any substitute property” when applicable. Fed. R. Crim. P. 32.2(b)(2)(A).
When Forfeiture Violates the Eighth Amendment’s Excessive Fines Clause
Even when forfeiture is statutorily mandated, the Court’s authority to order forfeiture is limited by the Eighth Amendment’s Excessive Fines Clause. “The Excessive Fines Clause [] ‘limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense.'” United States v. Bikundi, 926 F.3d 761, 795, 441 U.S. App. D.C. 293 (D.C. Cir. 2019) (citations omitted).
The Excessive Fines Clause applies to “punitive” forfeitures, such as in personam forfeiture orders pursuant to § 982(a)(1). United States v. Bajakajian, 524 U.S. 321, 332, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998).
The “test for [constitutional] excessiveness” rests on “the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” Id. at 332-34.
A punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense. United States v. Bajakajian, 524 U.S. 321, 334 (1998(. In Bajakajian, “the Supreme Court discussed four factors” to consider in assessing proportionality:
- the essence of the crime;
- whether the defendant fit into the class of persons for whom the statute was principally designed;
- the maximum sentence and fine that could have been imposed; and
- the nature of the harm caused by the defendant’s conduct.
Id. at 795.
This article was last updated on Friday, December 13, 2024.