§900 Forfeitures, Generally
1st Circuit upholds denial of attorneys’ fees to claimants who presented successful innocent owner defense. (900) In a forfeiture action against property jointly owned by three siblings, the government eventually stipulated that two of the siblings were innocent owners. Nevertheless, the 1st Circuit upheld the denial of attorneys’ fees under the Equal Access to Justice Act (EAJA). The government’s decision to seize the property was warranted because there was probable cause to believe that it was used for illegal activity. Once probable cause is established, it is the claimant’s burden to prove the innocent owner defense. It would be unreasonable to require the government to foresee an owner’s possible affirmative defenses. The government also had substantial justification for the manner in which it seized the property under 21 U.S.C. 881. Even if the statutory procedures were ultimately found to be insufficient, the government was reasonable in using those procedures. Although the 2nd Circuit recently found constitutional problems with section 881, the government was not required to follow the 2nd Circuit. U.S. v. One Parcel of Real Property with Buildings, Appurtenances, and Improvements, Known as Plat 20, 960 F.2d 200 (1st Cir. 1992).
1st Circuit upholds forfeiture of property used to grow marijuana for personal use. (900) Section 881(a)(7) authorizes forfeiture of real property used to commit “a violation of this subchapter punishable by more than one year’s imprisonment.” Section 841(a)(1) of the subchapter makes it unlawful to manufacture a controlled substance. The term manufacture includes production, and the term production includes planting, cultivation, growing or harvesting a controlled substance. Marijuana grown for personal use is within the reach of section 841(a). Violations of section 841(a) are punishable by more than one year in prison. Thus the growing of marijuana, whether or not for personal use, is an activity sufficient to subject the property on which cultivation occurs to civil forfeiture under section 881(a)(7). U.S. v. One Parcel of Real Property with Buildings, Appurtenances, and Improvements, Known as Plat 20, 960 F.2d 200 (1st Cir. 1992).
1st Circuit affirms denial of relief from forfeiture judgment under Rule 60(b). (900) The 1st Circuit rejected claimant’s argument that he was improperly denied post-judgment relief under Fed. R. Civ. P. 60(b)(3) and (6) based upon the government’s “fraud on the court” and its misstatements, and under Rule 60(b)(1) based upon his counsel’s excusable neglect. Claimant did not establish a fraud upon the court. Claimant failed to show that the government’s misstatements or his counsel’s failure to file a verified affidavit in opposition to the government’s motion for summary judgment was material to the government’s demonstration or probable cause or to claimant’s deficient defense of innocent ownership. U.S. v. Parcel of Land and Residence at 18 Oakwood Street, 958 F.2d 1 (1st Cir. 1992).
2nd Circuit refuses to set aside settlement despite change in law and vacated conviction. (900) Claimant pled guilty to selling drug paraphernalia under 21 U.S.C. § 857. The government then began a civil forfeiture action against certain bank accounts on the theory that they were the proceeds from the sale of crack vials. The parties eventually executed a consent decree forfeiting certain of claimant’s property. Later, the 2nd Circuit held that section 857 did not criminalize the sale of crack vials, and his criminal conviction was vacated. But the 2nd Circuit upheld the refusal set aside the settlement agreement under Fed. R. Civ. P. 60(b). The consent decree was to settle the civil forfeiture action, not the criminal case. When a party makes a deliberate, strategic, choice to settle, he cannot be relieved of such a choice merely because his assessment of the consequences was incorrect. Claimant could not in hindsight seek extraordinary relief. U.S. v. Bank of New York, 14 F.3d 756 (2nd Cir. 1994).
2nd Circuit holds that constructive trust theory did not warrant remission under 1963(1)(6)(A). (900) In lieu of a jury trial, defendant entered into a RICO Forfeiture Settlement Agreement pursuant to which he agreed to pay the government $4.5 million. In April, the parties orally agreed that further legal fees would be negotiated and presented to the court for approval. Certain unions petitioned the court to amend the February agreement so that the $4.5 million would be paid to them, not to the government. In July, the judge granted the unions’ petition, finding that defendant held certain commissions as a constructive trust for the unions. Notwithstanding the July order, defendant’s law firm and the government entered into several stipulations permitting the firm to be paid from proceeds from the sale of various assets. A subsequent district judge refused to approve the latest stipulation. The 2nd Circuit held that (a) the July order was not binding upon the law firm because it was not a party to the remission proceedings and it had a protectable interest in the funds, and (b) there was not a sufficient basis in the July order to support a finding that the property ordered forfeited should be remitted to the unions pursuant to section 1963(1)(6)(A). U.S. v. Schwimmer, 968 F.2d 1570 (2nd Cir. 1992).
2nd Circuit finds sufficient nexus between sales of small amounts of cocaine and condominium in which sales took place. (900) Claimant’s condominium was seized after he made two small sales of cocaine to a government informant inside the condominium. No drugs, weapons, large amounts of cash, drug paraphernalia or drug records were discovered in the condominium. The 2nd Circuit affirmed that the drug activity was sufficiently connected with the property to bring the property within the purview of 21 U.S.C. section 881(a)(7). The court rejected defendant’s claim that the statute requires a “substantial connection” between the property and the crime. Instead, the statute only requires a “nexus” between the drug activity and the property. As a site for the sales, the property “facilitated” them by permitting them to be conducted in an atmosphere of relative privacy. Moreover, the statute permits forfeiture to be predicated upon only a small quantity of drugs. U.S. v. Certain Real Property and Premises Known as 38 Whalers Cove Drive, 954 F.2d 29 (2nd Cir. 1992).
2nd Circuit affirms upward departure for failure to perform forfeiture agreement. (900) Defendants entered into an agreement with the government which provided that if they were found guilty of various RICO and fraud charges, they would pay the government $22 million in lieu of forfeiture or fines. Defendants were convicted but failed to make any of the installment payments required by the agreement. The district court departed upward by two levels based on defendants’ default. It specifically found that defendants had committed a fraud on the court because they were aware at the time they executed the agreement that they would be unable make their installment payments within the specified time period. The 2nd Circuit affirmed. There was no evidence that the district court improperly placed on defendants the burden of proving their intent to perform the forfeiture agreement. The fact that the government could enforce the forfeiture agreement by filing confessions of judgment did not make it unfair for the court to consider their fraud as a ground for departure. U.S. v. Paccione, 949 F.2d 1183 (2nd Cir. 1991).
3rd Circuit determines extent of prosecutor’s immunity for actions in civil forfeiture case. (900) Plaintiffs filed a claim against an Assistant U.S. Attorney and several DEA agents claiming that the seizure of plaintiffs’ corporation violated plaintiffs’ constitutional rights. The 3rd Circuit held that the prosecutor was subject to absolute immunity for initiating the complaint, applying for the seizure warrant, and for his actions and statement before the judge in support of the complaint and seizure warrant. However, the prosecutor’s management of and negotiations concerning the return of the seized property, including his demand for a release from personal liability, were not directly related to the judicial process. Here, the prosecutor was acting in an administrative capacity, and thus was only entitled to qualified immunity. With respect to the allegedly false statements the prosecutor made to the press and public, talking to the press is at best an administrative function and therefore the prosecutor was only entitled to qualified immunity. The appellate court found that supplementation of the record was necessary for the district court to resolve the qualified immunity of the prosecutor and the DEA agents. Schrob v. Catterson, 948 F.2d 1402 (3rd Cir. 1991).
3rd Circuit holds property pledged to obtain loan to finance drug transaction was forfeitable, even though funds were never used for that purpose. (900) The 3rd Circuit held that real property pledged to obtain a home equity loan to finance a drug purchase was forfeitable, even though the loan proceeds were not ultimately used to make the drug deal, and were returned to the bank. No distinction is made in the forfeiture statute, 21 U.S.C. section 881(a)(7), between an actual use and an intent to use property to facilitate a drug transaction. Here, claimant admitted that he intended to use the loan proceeds to buy marijuana and that he took all necessary steps with the bank to obtain the loan. The only reason he did not use the funds was because they were not available in time to coincide with his trip to Arizona to buy the marijuana. U.S. v. RD 1, Box 1, Thompsontown, Delaware Township, 952 F.2d 53 (3rd Cir. 1991).
4th Circuit finds no “substantial connection” between drug crime and parcel over which drugs traveled. (900) Defendant offloaded a large quantity of drugs from a boat docked at one parcel of land, then transported the quantity by car across an adjoining tract that provided the sole path to a public highway. The district court concluded that this conduct was insufficient to subject the adjoining tract to forfeiture, and the 4th Circuit agreed, concluding that the adjoining tract lacked the “substantial connection” to the drug crime required for forfeiture. To find a substantial connection, “human agency somehow must bear responsibility” for the property’s facilitation of crime; here, however, it was physically impossible to reach a public street without crossing the land. U.S. v. Two Tracts of Real Property with Buildings, Appurtenances and Improvements Thereto, Located in Carteret County, 998 F.2d 204 (4th Cir. 1993).
4th Circuit refuses to set aside forfeiture after related party’s conviction was vacated. (900) The government filed a RICO forfeiture claim against certain stock, arguing that the claimant held the stock only as nominee for Kovens, a convicted RICO violator. In 1984, the claimant and the government reached a settlement which allocated 60 percent of the disputed stock to the United States and 40 percent to claimant. In 1988, Kovens’ conviction was vacated. The 4th Circuit found no abuse of discretion in denying the claimant’s action to recover the stock based on the vacation of Kovens’ conviction. He was not entitled to relief under Rule 60(b)(4) from a void judgment, nor was he entitled to relief under Rule 60(b) (5) and (6). The forfeiture judgment was not dependent on Kovens’ conviction. Strategic decisions made during the course of litigation provide no basis for relief under Rule 60(b)(6). Schwartz v. U.S., 976 F.2d 213 (4th Cir. 1992).
4th Circuit affirms summary judgment where claimants admitted they were aware of currency reporting requirements. (900) Claimants appealed the district court’s grant of summary judgment for the government in a civil forfeiture action. The district court determined as a matter of law that claimants intentionally structured a series of currency deposits into their bank account for the purpose of evading federal reporting requirements. The 4th Circuit affirmed the summary judgment. Even if claimants were unaware that structuring itself was illegal, the only scienter requirement is that the violating party have knowledge of the reporting requirements and act to avoid them. Here, claimants conceded that a bank teller told them of the reporting requirements. Their belief that the requirements were permissive, rather than mandatory, was belied by the convoluted course of their deposit transactions. It was inconceivable that they believed the requirements were of no more importance than that. U.S. v. Wollman, 945 F.2d 79 (4th Cir. 1991).
5th Circuit rules jury instruction properly used mandatory language. (900) Defendants argued that the jury was improperly instructed that a defendant shall forfeit any interest he acquired in violation of RICO, and that it should have been told that it “may” direct a forfeiture. The 5th Circuit found no error. Forfeiture is not a matter left to the jury’s discretion. The instruction properly followed the statute, which provides that a RICO violator “shall” forfeit any interest he acquires in violation of RICO. U.S. v. Faulkner, 17 F.3d 745 (5th Cir. 1994).
5th Circuit upholds forfeiture of sheep under Lacey Act because Pakistan law prohibited export. (900) The 5th Circuit affirmed summary judgment in favor of the government in a forfeiture action brought against a sheep imported by claimant into the United States from Pakistan. The action was brought under the forfeiture provisions of the Lacey Act. The court held that the forfeiture statute provides for strict liability, and contains no “innocent owner” defense. Once the government establishes probable cause, the burden shifts to the claimant to establish either that a defense to the forfeiture applies or that the property is not subject to forfeiture. Thus, the government needed to establish only that importation of the sheep violated the laws of Pakistan. The Pakistani Imports and Export Act prohibited the sheep’s export out of Pakistan. Although defendant possessed an export permit issued by the province of Baluchistan, this permit was void to the extent it conflicted with the Imports and Export Act. U.S. v. One Afghan Urial Ovis Orientalis Blanfordi Fully Mounted Sheep, 964 F.2d 474 (5th Cir. 1992).
6th Circuit grants specific performance of plea agreement to government. (900) As part of the plea agreement, defendant agreed to the forfeiture of certain property. While the district court expressed some concern about the propriety of the forfeiture, it did not expressly accept or reject the plea agreement, and ultimately accepted defendant’s plea. However, the court refused to order forfeiture of the property. On appeal, the 6th Circuit reversed. Because the agreement included the government’s promise not to bring additional charges against the defendant, Federal Rule of Criminal Procedure 11 required that the court either accept the recommendation or reject it and give the defendant an opportunity to withdraw his plea. Ambiguity in the district court’s conduct will be construed as acceptance of the agreement, even when the failure to follow the agreement benefits the defendant. U.S. v. Skidmore, 998 F.2d 372 (6th Cir. 1993).
7th Circuit says attorney’s negligence in forfeiture case does not entitle claimant to relitigate. (900) Claimants’ property was forfeited after their counsel failed to file a timely claim on their behalf, or appear at the hearing on the government’s default motion. With new counsel, claimants then filed a motion under Fed. R. Civ. P. 60(b) for relief from judgment based on their former lawyer’s gross negligence. The 7th Circuit held that the lawyer’s negligence did not entitle claimants to another opportunity to relitigate the forfeiture matter. It is well-established that an attorney’s errors and misconduct are attributed to the client, even if the errors are negligent or the misconduct willful. The label “gross” does not make a difference to the underlying principle. U.S. v. 7108 West Grand Avenue, 15 F.3d 632 (7th Cir. 1994).
8th Circuit says mere filing of forfeiture complaint did not violate plea agreement. (900) In 1986 defendant pled guilty to drug charges. His plea agreement provided that the government would not forfeit defendant’s residence. In 1991, defendant was arrested on new drug charges. In 1992, the government filed a forfeiture complaint against defendant’s residence, pointing to both the 1986 seizure of cocaine and money from defendant’s home, and the 1991 seizure of drugs and money from his home. Defendant claimed that this breached the plea agreement. The 8th Circuit held that the mere filing of the forfeiture complaint did not violate the plea agreement. The court agreed with defendant that the government could not use his 1986 conduct as a basis for forfeiture of the house. However, at this stage of the forfeiture proceedings, defendant could not show that probable cause depended on the 1986 conduct. The reference in the complaint to the 1986 conduct was merely background information. U.S. v. Deaton, 13 F.3d 270 (8th Cir. 1993).
8th Circuit concludes that plea agreement barring future proceedings against defendants did not bar forfeiture. (900) Defendants’ plea agreement provided that the government would not initiate future proceedings against the defendants for any crimes which were within the scope of the investigation and indictment in their drug case. The 8th Circuit held that a forfeiture proceeding is not a proceeding against a defendant, but against property, and therefore the instant forfeiture proceeding was not barred by the plea agreement. Judge Beam dissented, believing that the government’s actions indicated that it also believed that forfeiture actions were barred by the plea agreement. U.S. v. One Parcel of Real Property, 999 F.2d 1264 (8th Cir. 1993).
8th Circuit affirms conclusion that business facilitated drug crimes. (900) Defendant was convicted of assorted drug crimes, and the jury also concluded that his business was forfeitable. The 8th Circuit found the evidence sufficient to support the jury’s verdict. Marijuana was stored and distributed at the business. One of defendant’s main marijuana distributors was an employee of defendant’s business. The distributor called the business number once to discuss a drug transaction. The business had many legitimate customers, providing a cover for the illegal activity. U.S. v. Wiley, 997 F.2d 378 (8th Cir. 1993), abrogation on other grounds recognized by U.S. v. Bieri, 21 F.3d 819 (8th Cir. 1994).
8th Circuit affirms forfeiture of firearms and ammunition based upon felon’s joint possession of them. (900) The district court ordered the forfeiture of miscellaneous firearms and ammunition based upon their possession by claimant and claimant’s son, a convicted felon. The 8th Circuit affirmed, finding the district court’s conclusion that claimant and her son jointly possessed the firearms and ammunition was not clearly erroneous. Claimant’s contention that two witnesses lied at trial was conclusory and without merit. U.S. v. Miscellaneous Firearms and Ammunition, 945 F.2d 239 (8th Cir. 1991).
9th Circuit says appeal of preliminary injunction was not mooted by conviction. (900) The defendant appealed from a preliminary injunction freezing $745,00 of substitute assets. Before the appeal was decided, a jury found defendant guilty of the underlying conspiracy, bank fraud, wire fraud and money laundering counts. The government argued that the jury verdict rendered the appeal moot because defendant’s assets would be forfeitable at the time of sentencing under 18 U.S.C. §982(a)(1). The 9th Circuit rejected the argument, noting that the judgment of conviction would not be entered until after sentencing and therefore the question of whether 21 U.S.C. §853(e) authorized the government to restrain substitute assets remained “a live controversy.” U.S. v. Ripinsky, 20 F.3d 359 (9th Cir. 1994).
9th Circuit says appeal of preliminary injunction was not mooted by conviction. (900) The defendant appealed from a preliminary injunction freezing $745,00 of substitute assets pending the outcome of a forfeiture proceeding. Before the case was decided by the court of appeals, a jury found defendant guilty of the underlying conspiracy bank fraud, wire fraud and money laundering counts. The government argued that the jury verdict rendered the appeal moot because defendant’s assets would be forfeitable at the time of sentencing under 18 U.S.C. §982(a)(1). The 9th Circuit rejected the argument, noting that the judgment of conviction would not be entered until after sentencing and therefore the question of whether 21 U.S.C. §853(e) authorized the government to restrain substitute assets remained “a live controversy.” U.S. v. Ripinsky, 20 F.3d 359 (9th Cir. 1994).
9th Circuit rejects standing for title holder who presented no evidence of dominion and control. (900) The government filed a complaint for forfeiture in rem of certain vacant land in Palmdale, California. The complaint alleged that the property was used to facilitate marijuana cultivation. The title holder filed a claim and an answer denying knowledge of any criminal use of the property, but the district court struck the claim, finding the title holder lacked standing to challenge the forfeiture. The Ninth Circuit affirmed, noting that possession of mere legal title by one who does not exercise dominion and control over the property is insufficient to establish standing to challenge a forfeiture. The title holder offered no evidence that he made any of the mortgage or tax payments on the land, or had the physical ability to enter it, or exercised any authority as landlord. The evidence was consistent with the title holder being a straw man to conceal the true ownership. U.S. v. Vacant Land, 15 F.3d 128 (9th Cir. 1994).
9th Circuit concludes forfeiture claimant waived statutory right to personal service. (900) After the district court dismissed the title holder’s claim to forfeited property finding lack of standing, the individual alleged to be the “true owner” moved to file a late claim. The district court denied the motion. The Ninth Circuit affirmed, finding that the claimant waived his statutory right to personal service. The claimant appeared in the district court for the purpose of arguing his position that he should be allowed to proceed because the title holder had lost in his attempt to proceed. The failure to personally serve did not violate the constitution. U.S. v. Vacant Land, 15 F.3d 128 (9th Cir. 1994).
9th Circuit says car used to export currency could not be forfeited where charges were dismissed. (900) The claimant failed to report one million dollars in currency in the trunk of his car when he crossed the border into Canada. He was charged with violating the currency reporting statute, 31 U.S.C. § 5312, 5316, but was allowed to plead guilty to a lesser offense. Since the lack of a currency conviction prevented the government from forfeiting the car under § 5317 and 18 U.S.C. § 982, it relied on 22 U.S.C. § 401, which does not require a conviction, and provides for the forfeiture of vehicles used in exporting “any arms or munitions of war or other articles in violation of law.” On appeal, the 9th Circuit reversed, holding that permitting the government to use section 401 would undermine the forfeiture provisions of 31 U.S.C. § 5316 and 18 U.S.C. § 982. Section 982 requires a conviction of violating section 5316 as a prerequisite to the forfeiture of cars used in illegally exporting currency. U.S. v. One 1985 Mercedes-Benz, 300 SD, 14 F.3d 465 (9th Cir. 1994).
9th Circuit says guidelines do not allow for departure for a civil forfeiture. (900) The district court departed downward one level because defendant lost his family home in civil forfeiture proceedings after he was convicted of manufacturing marijuana plants. On appeal, the 9th Circuit agreed with the 3rd Circuit’s opinion in U.S. v. Shirk, 981 F.2d 1382, 1397 (3rd Cir. 1992), vacated on other grounds in light of Ratzlaf v. U.S., 510 U.S. 135, 114 S.Ct. 655 (1994), that a court may not base a downward departure on the fact that defendant has had property taken by civil forfeiture. As noted in Shirk, the guidelines state in section 5E1.4 that “forfeiture is to be imposed . . . as provided by statute.” This means that the Commission viewed monetary forfeiture as entirely distinct from the issue of imprisonment. In a footnote, the court noted that the Supreme Court in Austin v. U.S., 113 S.Ct. 2801 (1993) held that forfeiture is a form of punishment which is subject to the limitations of the Excessive Fines Clause of the 8th Amendment. The fact that a given offense may result in several types of punishment “does not restrict the power of Congress to provide, within Constitutional boundaries, how the various types of punishment are to be imposed.” U.S. v. Crook, 9 F.3d 1422 (9th Cir. 1993).
9th Circuit finds forfeiture verdict could not invalidate conviction. (900) After defendant was convicted of 23 counts of unlawful sale of wildlife (birds) under the Lacey Act, the jury returned a forfeiture verdict of $5,000. Defendant argued that implicit in the forfeiture verdict was a finding that the birds were valued a $217.39 each, an amount less than the $350 market value required for a conviction under 16 U.S.C. §3373(d)(1)(B). However, the Ninth Circuit found no basis for holding that a forfeiture verdict can invalidate a lawfully obtained conviction. The forfeiture phase of the case took place after the jury had returned the guilty verdicts and the jury may well have decided that a large monetary fine was unnecessary. In any event, an inconsistent verdict is not grounds for reversal. U.S. v. Parker, 991 F.2d 1493 (9th Cir. 1993).
9th Circuit says abatement doctrine does not apply to forfeitures under 21 U.S.C. section 881. (900) The government arrested an individual following a drug raid at his residence and seized cash during the raid. The cash was forfeited as drug money, pursuant to 21 U.S.C. section 881(a)(6). The individual was later convicted of narcotics and firearms violations but died pending appeal and the judgment and indictment were abated. The surviving spouse sought the seized money, arguing the forfeiture judgment also abated because of the death. The 9th Circuit rejected the claim, finding that because 21 U.S.C. section 881 is primarily civil in nature, the abatement doctrine does not apply. An action only abates if the underlying statute is penal in nature. The relation back provision in section 881(h) also operated to vest title of the property in the government upon commission of the crime. Consequently, at the time of the death, the individual did not have title to the property and his estate cannot now obtain title through him. U.S. v. $84,740 Currency, 981 F.2d 1110 (9th Cir. 1992).
9th Circuit holds guilty plea did not collaterally estop defendant from contesting forfeiture. (900) The defendant pled guilty to knowing and intentionally manufacturing marijuana in her mobile home. The government sought to forfeit the mobile home and the land which it occupied, under 21 U.S.C. section 881(a)(7). The district court dismissed the defendant’s claim for the land, holding that she was collaterally estopped from challenging the forfeiture because of her guilty plea. On appeal, the 9th Circuit reversed, because the defendant’s claim was based on the argument that the tract of land consisted of two separate lots, rather than one single lot as the government claimed. Since this issue was not resolved in the criminal case, she was not precluded from contesting the forfeiture. U.S. v. Real Property Located at Section 18, 976 F.2d 515 (9th Cir. 1992).
10th Circuit holds that acceptance of forfeiture stipulation did not violate Fed. R. Crim. P. 11. (900) At the district court’s suggestion, defendant agreed to stipulate to forfeiture of certain items if the jury returned guilty verdicts on certain counts. On appeal, defendant argued for the first time that the court violated Fed. R. Crim. P. 11 by failing to address him directly before accepting the stipulation to ensure that he understood the nature of the accusation, that the stipulation was entered into voluntarily, and that there was a factual basis for the forfeiture. The 10th Circuit found no plain error or violation of due process. The stipulation was not a guilty plea. This was a case where both parties gambled on the outcome of the trial and defendant lost. Moreover, the district court took great care to ensure that defendant, through his trial counsel, understood the nature of the stipulation. Defendant was present in court and represented by counsel during all of the discussions surrounding the stipulation. U.S. v. Herndon, 982 F.2d 1411 (10th Cir. 1992).
10th Circuit reverses special assessment imposed on forfeiture counts. (900) Defendant was convicted of several fraud and money laundering counts. In addition, pursuant to 18 U.S.C. section 982, the jury ordered the forfeiture of certain items which defendant had purchased with fraudulently obtained money. The 10th Circuit ruled that the district court erroneously ordered defendant to pay a $50 mandatory special assessment on each of the forfeiture counts. Because he could not have been imprisoned for the forfeiture convictions under section 982, he should not have been ordered to pay the $50 special assessments, which apply only to felonies. U.S. v. Lovett, 964 F.2d 1029 (10th Cir. 1992).
11th Circuit, en banc, holds that preponderance of evidence standard applies to criminal forfeitures. (900) Reversing the panel opinion in U.S. v. Elgersma, 929 F.2d 1538 (11th Cir. 1991) the en banc 11th Circuit held that the preponderance of the evidence standard applies to criminal forfeiture proceedings. The language in section 853(a) indicates congressional intent to characterize criminal forfeiture as part of the sentencing process, rather than part of the substantive offense. Because it is not an element of the crime itself, Congress had the authority to apply a less strenuous standard of proof. Section 853(d) provides that certain property is forfeitable if the government establishes by a preponderance of the evidence that the property was acquired during the period of certain crimes and there was no likely source for such property other than the crime. The defendant may rebut this presumption, but the presumption would have no significance if the government were still required to prove forfeiture beyond a reasonable doubt. Judge Kravitch concurred specially to urge the circuit to require bifurcation of in personam forfeiture proceedings from the guilt phase of a criminal trial. U.S. v. Elgersma, 971 F.2d 690 (11th Cir. 1992) (en banc).
11th Circuit, en banc, outlines procedure for assessing summary judgment motion in forfeiture action. (900) The 11th Circuit, en banc, outlined the procedure a court must follow in evaluating a claimant’s motion for summary judgment. The court must initially determine whether, as a matter of law, the government has shown probable cause. If not, the court should grant summary judgment for the claimant. If the government has established probable cause, the claimant may still be entitled to summary judgment if he shows the absence of a triable issue of fact on the issues on which he has the burden of proof: that is, taking all of the evidence in the light most favorable to the government, no reasonable jury could award the property to the government. If the claimant fails to make such an affirmative showing, the court should deny claimant’s motion. If the claimant does make such a showing, the government, to defeat the motion, must respond with evidence showing that a factual issue exists as to whether the property is forfeitable. The court also discussed the steps to follow in evaluating the government’s motion for summary judgment in a forfeiture action. U.S. v. Four Parcels of Real Property in Greene and Tuscaloosa Counties, 941 F.2d 1428 (11th Cir. 1991) (en banc).
D.C. Circuit finds challenges to forfeiture provisions of child pornography law nonjusticiable. (900) Plaintiffs sought an injunction against the enforcement of the Child Protection and Obscenity Act of 1988, contending that the civil and criminal forfeiture provisions violated the First Amendment. The D.C. Circuit ruled that plaintiffs’ challenges were nonjusticiable. Plaintiffs’ case did not fall within either category in which a pre-enforcement facial challenge may be made: they did not demonstrate that the law could never be applied in a valid manner or that it was so broad as to inhibit constitutionally protected speech. Plaintiffs’ challenge to the provisions authorizing pretrial seizure of allegedly obscene materials was also not justiciable. These sections could pose a threat only if plaintiffs’ speech activities at least arguably violated the child pornography or obscenity statutes, which they denied, and there was some probability that the government would invoke the provisions against them, which the government denied. American Library Association v. Barr, 956 F.2d 1178 (D.C. Cir. 1992).