Criminal Forfeiture

Question 1

What is 28 U.S.C. § 2461 (c)

Answer 1

• If a person is charged in a criminal case for which the civil or criminal forfeiture of property is authorized, the Government may include notice of the forfeiture in the indictment or information
• If the defendant is convicted of the offense giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the criminal case

Question 2

28 U.S.C. § 2461 (c) - Steps

Answer 2

1. Forfeiture statute
2. Notice of criminal forfeiture pursuant to statute used in the
   criminal indictment or criminal information
3. Must criminally convict (can’t forfeit unless convicted)
4. After/upon criminal conviction - court orders forfeiture as part of defendants sentence. This is when it becomes GOV property.

Question 3

Connection between property and criminal act

Answer 3

1. Property is the proceeds of a crime (example: money)
2. Property is derived from the proceeds of a crime (example: used drug money to purchase home)
3. Property used to commit a crime (example: stash house)
4. Property intended to be used to commit a crime (example: purchase of packaging materials or car w/hidden compartment)
5. Property used to facilitate the commission of the crime
6. Substitute Assets - unique to crim. forfeiture. The ability to seize clean property. Example: 400k worth of money/assets are missing and can’t see where it went but the money was dirty. They have a lake house worth 300k can be seized under this, even though purchased with clean funds.

Question 4

Pre-indictment Protective Order

Answer 4

Seizure warrant on property that the SA believes is subject to forfeiture prior to the indictment. Purpose is to secure property before they get rid of it.
Application:
- need to prove that there is a substantial probability that GOV will win forfeiture.
- Need to prove the need to preserve the property
- the need out weights the the hardship the seizure will create on the person.

Question 5

You have decided to file the following criminal charges: (1) 21 U.S.C. 841 –
possession of controlled substances with an intent to distribute [this is based on the fact that 400 pounds of marijuana were found in his car]; (2) 18 U.S.C. 922(g)(5) – alien unlawfully in possession of a firearm [this is based on the fact that after finding marijuana in his car, we obtained a warrant for his arrest. Three days later we arrested Frank (an illegal alien) and during that arrest he had a gun in his backpack. The jury in the criminal case decided to convict Frank on the firearms charge but found him not guilty of the drug crime. Can we proceed with the criminal forfeiture count (i.e., forfeit the car) in the criminal case?

a. The government cannot continue its criminal forfeiture action against the car because Frank did not confess that he used the car to transport drugs in the car.
b. The government needed to convict Frank on the drug charge before
proceeding to criminal forfeiture because the drug violation served as the foundation for the forfeiture count.
c. The government must prove criminal forfeiture beyond a reasonable doubt.
d. The government can continue its criminal forfeiture action against the car

Answer 5

b. The government needed to convict Frank on the drug charge before
proceeding to criminal forfeiture because the drug violation served as the foundation for the forfeiture count.