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Table of Contents

900 – Forfeitures, Generally

900 – Forfeitures, Generally
  • 905 Jurisdictional Issues
  • 910 Constitutional Issues
  • 920 Procedural Issues, Generally
  • 950 Probable Cause
  • 960 Innocent Owner Defense
  • 970 Property Forfeited

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§970 Property Forfeited

First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Eleventh Circuit

1st Circuit upholds fine designed to fill gap between value of for­feited assets and plea agreement amount. (970) In a plea agreement, defendant agreed to forfeit prop­erty with a total value of $2.8 million.  In a sepa­rate agreement, he listed several assets to for­feit, in­cluding some condominiums owned by a cor­poration in which he had a 50 percent interest.  The district court imposed a $634,000 fine, making it clear that its ob­jective was to fill the gap between the value of the assets forfeited and $2.8 million plea agreement ceiling.  The 1st Circuit affirmed, despite defendant’s dispute as to the valua­tion of certain for­feited assets and the gov­ernment’s refusal to accept the listed con­dominiums for forfeiture.  The court was not legally required to limit its fine to the size of the gap, and thus was not required to mea­sure the gap precisely.  The agreement pro­vided that assets would sat­isfy the forfeiture obli­gation only if the assets were without any encum­brances.  Defendant’s associate had filed a petition objecting to the forfeiture of the condos, claiming a 50 percent interest in them.  The district court could properly con­strue this petition as an encumbrance.  U.S. v. Maling, 988 F.2d 242 (1st Cir. 1993).

 

1st Circuit rejects forfeiture of prop­erty not specif­ically identified in gov­ernment’s complaint. (970) The gov­ernment’s forfei­ture complaint described the defendant prop­erty as 384-390 West Broadway, but made no mention of an abutting parcel, known as 309 Athens St., which claimant purchased from a different seller.  Over a year after a for­feiture order was entered against the Broadway property, the dis­trict court granted the gov­ernment’s motion to ex­pand the forfei­ture or­der to include the Athens prop­erty.  The 1st Circuit re­versed, ruling that the gov­ernment’s com­plaint did not describe the Athens prop­erty with suf­ficient particularity.  The exact­ing particularity standard ap­plicable to forfei­ture actions is not merely a proce­dural tech­nicality, but is a “significant legal rule de­signed to curb excesses of government power.”  Here, the government’s com­plaint sought to forfeit the Broadway property and nothing more.  The claimant was enti­tled to rely on what the complaint indi­cated.  U.S. v. One Parcel of Real Prop­erty with the Build­ing, Appurtenances, and Improvements Known as 384-390 West Broad­way, 964 F.2d 1244 (1st Cir. 1992).

 

1st Circuit rules title dispute did not pro­hibit for­feiture of real property on which marijuana was grown. (970) The district court ordered summary judgment in favor of the government against property on which marijuana was grown.  The 1st Circuit re­jected claimant’s argument that summary judgment was improper because an unrelated party claimed ti­tle to a portion of the prop­erty.  Claimant contended that this claim barred forfeiture since the marijuana crop may have been grown on land belonging to the third party.  The 1st Circuit upheld the summary judgment, because defendant failed to present suffi­cient evidence to negate the property’s connection with the illegal activi­ties.  The government may treat as unitary, for purposes of an ini­tial seizure warrant, any tract over which an owner or group of owners ex­ercises dominion and treats as its own.  De­fendant failed to present sufficient evi­dence to negate the property’s connection with the il­legal activi­ties or to show that he was an in­nocent owner.  U.S. v. One Parcel of Real Property with Buildings, Appurte­nances, and Improvements, Known as Plat 20, 960 F.2d 200 (1st Cir. 1992).

 

2nd Circuit holds that funds being elec­tronically transferred are seizable. (970) The government seized funds being electroni­cally transferred (EFTs) by a Colombian drug cartel from United States banks to Colombian and Panamanian banks.  Claimants argued that EFTs were not seizable properties under the civil forfeiture statute because they were merely electronic communications.  They claimed that an EFT was not a direct transfer of funds, but rather a series of contractual obligations to pay, and that the intermediary banks were merely messengers who never held the funds.  The 2nd Circuit rejected this characterization, and held that an EFT, when it takes the form of a bank credit at an inter­mediary bank, is clearly a seizable res under the forfeiture statutes.  On receipt of EFTs from the originating banks, the intermediary banks possess the funds, in the form of bank credits, for some period of time before trans­ferring them on to the destination banks.  Under Circuit precedent, a bank credit is a seizable res.  U.S. v. Daccarett, 6 F.3d 37 (2nd Cir. 1993).

 

2nd Circuit holds that government waived its right to a substitution of assets by en­tering let­ter agree­ment. (970) In lieu of a formal RICO forfeiture hearing, defen­dants entered into a letter agreement with the gov­ernment in which they agreed to forfeit $22 million in cash in full satis­faction of the for­feiture penalties in 18 U.S.C. sec­tion 1963.  To secure the payments, defen­dant delivered affi­davits con­fessing judgment in the amount of $22 million.  After defen­dant’s default, the government filed the confes­sions of judgment and moved for an Order of Forfeiture for the $22 million.  The district court then granted the gov­ernment’s motion under 18 U.S.C sec­tion 1963(m) for a substitution of assets, and entered a forfeiture order vest­ing in the gov­ernment title to defendant’s interest in vari­ous corpora­tions.  The 2nd Circuit reversed, holding that by enter­ing the letter agreement rather than submitting the for­feiture issue to the jury, the govern­ment waived its rights, in­cluding the right to a substitu­tion of assets un­der section 1963(m).  While the agreement contem­plated the sale of the properties to raise the $22 million in the event of defen­dant’s default, it did not contem­plate the auto­matic vesting of title to the properties in the gov­ernment.  U.S. v. Paccione, 948 F.2d 851 (2nd Cir. 1991).

 

3rd Circuit holds that 8th Amendment re­quires a criminal RICO forfeiture to be proportioned to the charged offense. (970) Based upon defendants’ RICO convictions, the district court ordered a forfei­ture of 100 percent of defendants’ interest in a busi­ness which was primarily legitimate.  The jury had found that one defendant’s interest in the corporation was tainted to the extent of 10 percent while the other defendant’s interest was tainted to the extent of five percent.  The 3rd Circuit held that the 8th Amend­ment re­quires that a criminal RICO forfeiture order be justly proportioned to the charged offense.  Some proportionality analysis is required when the defen­dant makes a prima facie showing that the forfeiture is grossly dispro­portionate, or bears no close relation to the seriousness of the crime.  Here, de­fendants raised a prima facie claim of gross dispro­portionality, and thus the district court should have given the issue careful scrutiny.  U.S. v. Sarbello, 985 F.2d 716 (3rd Cir. 1993).

 

4th Circuit holds that gambling statute authorized forfeiture of real estate. (970) Claimants challenged a forfeiture action against their residence under 18 U.S.C. §§ 981 and 1955(d) in connection with illegal gambling.  The 4th Circuit held that 18 U.S.C. § 1955(d) authorizes the forfeiture of real estate.  It provides for the forfeiture of “any property” used in an illegal gambling business.  Every circuit court that has addressed this issue has concluded that section 1955(d) authorizes the forfeiture of real estate.  U.S. v. Taylor, 13 F.3d 786 (4th Cir. 1994).

 

4th Circuit limits forfeiture based on par­cel’s abil­ity to shield crime on adjoining property from view. (970) The government sought to forfeit a parcel which helped shield from view de­fendant’s offloading of marijuana from a boat docked at an adjoining par­cel.  Only by traveling a dirt path across the target parcel could one drive from a public street to the parcel on which the drug activity took place.  The 4th Circuit concluded that the parcel was not forfeitable.  It distinguished an earlier case in which a dentist’s office was for­feited because the den­tist wrote unlaw­ful pre­scriptions there.  While the dentist’s unlawful activity would be more difficult to detect be­cause of its similarity to the kind of legal ac­tivity one would expect at a dentist’s office, a “natural object’s inher­ent, irrepressible ability to conceal whatever lies be­hind it from the view of persons on the other side” is a differ­ent matter.  The court noted, however, that a different result might be called for if a person with knowledge of the drug activity had pos­sessed a legal interest in the property at the time of the wrongdoing.  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).

 

5th Circuit says funds forfeited need not be traced to specific RICO violation. (970) Defendants were convicted of RICO charges stemming from a scheme to defraud banks through fraudulent real estate loans.  Defendants were assessed $40 million and $38 million forfeiture penalties based on amounts received by them, their companies and family members.  Defendants argued they should not be forced to forfeit amounts that went to their families and companies.  The 5th Circuit affirmed the forfeiture orders, finding sufficient evidence that defendants “acquired or maintained” the amount forfeited.  Contrary to defendants’ suggestion, the amounts subject to forfeiture need not be directly linked or traced to the specific acts proved.  Forfeiture should reflect the scope of the offense.  Here, sufficient evidence was offered as to the profits earned by defendants to support the forfeiture order. U.S. v. Faulkner, 17 F.3d 745 (5th Cir. 1994).

 

5th Circuit says court improperly limited scope of property forfeitable under 18 U.S.C. § 1467. (970) Under 18 U.S.C. § 1467(a)(3), a person convicted of certain offenses involving obscene materials forfeits their interest in any property used or intended to be used to commit or promote the commission of the offense.  The 5th Circuit found that the district court improperly construed section 1467 to authorize for­feiture only of property actually used in the offense.  The court’s discretion is much broader, and includes both property used or intended to be used.  The dis­trict court also improperly narrowed the scope of section 1467(a)(3) to include only property used to produce or transport obscene articles.  This im­proper construction led the court to improperly refuse consideration of certain evidence — FBI sum­maries of 72 unindicted videotapes, and 369 videos in defendants’ inventory which had been found ob­scene in unrelated state prosecutions.  U.S. v. Investment Enterprises, 10 F.3d 263 (5th Cir. 1993).

 

5th Circuit rules §853 does not permit pretrial re­straint of substitute assets. (970) The 5th Circuit held that 21 U.S.C. sec­tion 853(e) does not authorize the pretrial re­straint of substitute assets.  It permits a re­straining order only against property de­scribed in section 853(a), and that section does not include substitute assets.  Section 853(p) allows the forfeiture of substitute property if the property in subsection (a) is unavailable for certain reasons.  U.S. v. Floyd, 992 F.2d 498 (5th Cir. 1993).

 

6th Circuit upholds forfeiture of modified de­scramblers under Electronic Communi­cations Pri­vacy Act. (970) Claimants modi­fied otherwise legal descramblers to enable purchasers to receive pre­mium pay satellite television channels without paying a fee to the programmers.  The 6th Circuit held that the modified descramblers were forfeitable under the Electronic Communications Privacy Act.  The Act prohibits the intentional interception of electronic communications.  The court found that this included the modification of descramblers to allow unautho­rized viewing of scrambled satellite television.  Since claimant was subject to criminal prosecution under the statute, the defendant res was subject to forfeiture under 18 U.S.C. section 2513.  U.S. v. One Macom Video Cipher II, 985 F.2d 258 (6th Cir. 1993).

 

6th Circuit says innocent spouse is enti­tled to entire property held as ten­ant by the entirety and awarded in di­vorce. (970) Claimant, an inno­cent owner, and her hus­band, owned as ten­ants by the entirety a house which was the subject of a forfei­ture action.  In U.S. v. Certain Real Property, 910 F.2d 343 (6th Cir. 1990), the 6th Circuit held that the government was precluded from ob­taining the hus­band’s interest in the property unless claimant pre­deceased her husband or the entireties estate was otherwise terminated by divorce or joint conveyance.  Unbeknownst to the dis­trict or appellate court, claimant and her husband were engaged in divorce pro­ceedings, and prior to the original ap­peal, the di­vorce became final.  The di­vorce court awarded claimant the entire house.  The 6th Circuit affirmed the dis­trict court’s determi­nation that claimant owned the property free and clear of any interest by her ex-husband or the gov­ernment.  The federal for­feiture laws do not operate to destroy the fundamen­tal characteristics given to real property by the states.  The government could not step into the husband’s place as a tenant by the entirety because the unities of time, title and person would be violated.  However, the case was remanded for the district court to de­termine whether the state divorce court had all the facts be­fore it in making its determina­tion.  Judge Krupansky concurred.  U.S. v. Certain Real Property Located at 2525 Leroy Lane, West Bloomfield, Michigan, 972 F.2d 136 (6th Cir. 1992).

 

6th Circuit addresses forfeiture of property that facilitates marijuana growing on adja­cent property. (970) Defendant owned four contiguous tracts of property.  He grew mar­ijuana on one of the tracts.  The 6th Circuit permitted forfeiture of an adjacent tract be­cause the corn field that hid the marijuana ex­tended to the adjacent tract.  However, it rejected the government’s argument that the tract on which a residence was lo­cated should be forfeited because defen­dant “used the residence to guard the marijuana and to con­ceal the entire op­eration by making the farm appear to be a legitimate use of the land.”  The record contained no evidence that defen­dant had ac­tually used the residence to guard the marijuana, and the court found no error in the district court’s con­clusion that the mere presence of a residence did not suffi­ciently “facilitate” the offense to permit forfei­ture.  U.S. v. Smith, 966 F.2d 1045 (6th Cir. 1992).

 

6th Circuit defines forfeitable “property” by refer­ence to recorded instruments, state law. (970) De­fendant used his farm to grow mari­juana.  Though defendant’s interest in the farm was created by four deeds cov­ering four separate tracts, the govern­ment ar­gued that the entire farm should be consid­ered a single piece of “property” subject to criminal forfei­ture under 21 U.S.C. section 853(a)(2) if any part of the farm was used to facilitate drug activity.  Follow­ing 4th Circuit cases on civil forfeiture, the 6th Cir­cuit dis­agreed with the government’s con­tention, looking to the four separate deeds creating defen­dant’s interests to define what consti­tuted a single piece of “property.”  Relying on state law about when an interest is created, the court declared irrelevant that defendant’s ex-wife had conveyed her interest in the four tracts in a single quitclaim deed.  Judge Guy dissented on this issue.  U.S. v. Smith, 966 F.2d 1045 (6th Cir. 1992).

 

7th Circuit finds forfeitable interest in property on date of drug sale despite land contract. (970) In 1982, defendant, as vendor, entered into a contract to sell his property. The final payment was due five years later.  Defendant remained on the property and leased it back from the buyer, and paid all taxes and insurance.  The contract was not recorded.  During 1988, defendant sold cocaine from the property to an undercover agent.  Defendant and the buyer later purported to transfer title to the property back to defendant.  Defendant argued that at the time of the drug sale, he was only a lessee.  The 7th Circuit concluded that under Wisconsin law, defendant held a forfeitable ownership interest in the property under 18 U.S.C. § 853.  The district court properly found that the land contract was not standard, and thus the doctrine of equitable conversion (under which the vendee of property under a land sale contract becomes the equitable owner of the property) did not apply.  In addition, defendant acted as if he retained ownership of the property after entering into the contract, obtaining loans from three different banks using the property as collateral, and representing that he alone owned it.  U.S. v. Ben-Hur, 20 F.3d 313 (7th Cir. 1994).

 

7th Circuit approves forfeiture of vehicle driven to and from meeting with proposed drug courier. (970) Claimant met with an undercover agent to pay him $10,000 to act as a courier and transport heroin from the Philippines to Chicago.  The 7th Circuit re­versed the district court’s determination that the ve­hicle claimant drove to and from the meeting with the “courier” could not be for­feited under 21 U.S.C. § 881(a)(4).  Defen­dant facilitated the attempted transportation, receipt, and possession of illegal drugs, thus bringing the car within the statute’s grasp.  The court rejected the district court’s conclu­sion that the term “facilitate” connotes causa­tion.  This interpretation would render the statute impo­tent, requiring proof of the im­possible–that it was es­sential that the of­fender use his own car rather than a rental car.  Defense counsel conceded that if a sale had taken place at the meeting, the automo­bile would be forfeitable.  A distinction be­tween the meeting at which the plot is hatched and the meeting at which the drug changes hands would be arbitrary.  U.S. v. 1990 Toyota 4Runner, 9 F.3d 651 (7th Cir. 1993).

 

7th Circuit holds that mobile home is for­feitable as either real or personal property. (970) Claimant sold drugs from his mobile home.  The district court concluded that the mobile home was forfeitable under 21 U.S.C. sec­tion 881(a)(7), which covers real property used to facilitate a drug crime.  Claimant ar­gued that the mobile home was not real prop­erty, but rather personal property.  The 7th Circuit found that re­gardless of whether the mobile home was classified as real or per­sonal property, it was forfeitable.  If the mo­bile home was not real property forfeitable under section 881(a)(7), then it was a vehicle, and thus was forfeitable under section 881(a)(4).  U.S. v. One 1989 Stratford Fair­mont, 986 F.2d 177 (7th Cir. 1993).

 

7th Circuit affirms that funds, rather than account in which funds are lo­cated, must be traced to fraudulent activity. (970) De­fendants sold stereo speakers using fraudu­lent sales tech­niques, and put the proceeds from the fraud in several different ac­counts.  The United States brought a forfeiture action under 18 U.S.C. section 981 against the funds in these accounts.  Claimants con­tended that they ended their fraudulent scheme in 1988, and the sums seized from the accounts in September 1989 could not be traced to their fraudulent scheme.  The gov­ernment contended that it did not matter whether the bal­ances in the accounts could be traced to unlawful activity since the ac­counts were “involved in” the fraud during 1988.  The 7th Circuit rejected the ar­gument, holding that such tracing was necessary.  “It makes no sense to confiscate what­ever bal­ance hap­pens to be in a account bearing a particular number, just be­cause proceeds of crime once passed through that account.”  Only property used in or traceable to “specified un­lawful activity” is forfeit.  How­ever, the money seized in this case was for­feitable.  Claimants only admitted phasing out the use of one of their fraudulent sales tech­niques.  Abandon­ing one de­ceitful device among a large repertory does not make the operation lawful.  U.S. v. $448,342.85, 969 F.2d 474 (7th Cir. 1992).

 

7th Circuit rejects statutory and constitu­tional chal­lenges to forfeiture of entire parcel of land. (970) Claimant con­tended that the forfeiture of his entire five-acre parcel was not valid under the civil forfeiture statute be­cause only a portion of the property was “substantially con­nected” to the drug activity.  He also contended that the for­feiture violated the 8th Amend­ment.  The 7th Circuit upheld the forfeiture of the entire five acres.  First, a sub­stantial connection is not re­quired be­tween the property and the related drug of­fense for a civil forfeiture of real es­tate under 21 U.S.C. section 881(a)(7).  The court agreed with other courts that have held that section 881(a)(7) con­templates the forfeiture of an en­tire tract of land based on drug-re­lated activities on a portion of a tract.  Claimant’s 8th Amendment challenge also failed.  The court believed that the 8th Amendment does not apply to civil in rem ac­tions, but ac­knowledged that the opposing view has some support.  However, even if the 8th Amend­ment did apply, claimant failed to show how the forfeiture was dispropor­tional.  He mentioned, but did not dis­cuss, any of the fac­tors which are typically considered in de­termining propor­tionality. U.S. v. Certain Real Property, Commonly Known as 6250 Ledge Road, Egg Harbor, WI, 943 F.2d 721 (7th Cir. 1991).

 

8th Circuit holds defendants waived objection to all-or-nothing forfeiture by failing to object to jury instructions. (970) Defendants were convicted of bank fraud and RICO charges stemming from the collapse of the saving and loan association of which they were officers.  Defendants argued that the district court should not have forfeited 100 percent of the salaries and bonuses that the jury found were proceeds of RICO activity.  They contended on appeal that portions of the salaries and bonuses were earned through legal activity.  The 8th Circuit found that defendants had waived this complaint by failing to object below to the jury instruction and verdict form.  Moreover, the evidence supported complete forfeiture of the salaries and bonuses.  U.S. v. Olson, 22 F.3d 783 (8th Cir. 1994).

 

8th Circuit looks to instrument creating property interest to determine extent of property subject for forfeiture. (970) Defendants owned a farm comprised of four tracts.  The district court ordered the forfeiture of one of the tracts based on defendants’ drug trafficking activities.  The 8th Circuit found this erroneous, holding that all four tracts should have been viewed as a single parcel of land for forfeiture purposes.  The court agreed with the 6th Circuit’s view that the source for defining property subject to forfeiture is the instrument creating a defendant’s interest in the property.  The critical facts here were that defendants acquired all four tracts comprising their farm as a single unit, in a single deed, and the property was contiguous.  These facts indicated the property was a single unit for purposes of § 853(a).  Judge Gibson dissented.  U.S. v. Bieri, 21 F.3d 811 (8th Cir. 1994).

 

8th Circuit holds two tracts were indivisible where defendant reacquired property in a single instrument. (970) Defendant argued that the district court erred in treating his farm as a single indivisible parcel of property for forfeiture purposes, since he had originally acquired the property as two separate farms by two separate instruments.  The 8th Circuit found no error.  Under the test adopted in a companion case, U.S. v. Bieri, 21 F.3d 811 (8th Cir. 1994), tracts of real property subject to forfeiture under § 853 are defined by the instruments and documents that created the defendant’s interest in the property.  Although defendant originally acquired the property in two separate instruments, he legally lost his interest in the farm through foreclosure and obtained a new interest in the property by repurchasing it as a single unit, at a single time, for a single price, and in a single instrument.  Therefore, the farm could be considered a single parcel for forfeiture purposes.  U.S. v. Myers, 21 F.3d 826 (8th Cir. 1994).

 

8th Circuit holds that court can refuse for­feiture under section 1955 if it is dispro­portionate. (970) Under 18 U.S.C. section 1955(d), any property used in an illegal gam­bling operation “may be seized and forfeited.”  The 8th Circuit held that unlike mandatory provisions found in other forfeiture statutes, this language does not require an automatic forfeiture where an illegal gambling operation is shown.  Courts have some discretion, and can refuse a forfeiture if it seems to work a disproportionate penalty in a particular case.  However, this does not grant courts the au­thority to subdivide property in order to cre­ate a proportional forfeiture.  Here, the forfei­ture of the en­tire property was proportional, even though claimants only used the second floor of the building for their gambling opera­tion.  Claimant was part of a national organi­zation which facilitated gambling in its mem­ber chapters.  The na­tional organization re­ceived a percentage of the prof­its realized from the illegal gambling operations of its member chapters.  U.S. v. Premises Known as 318 South Third Street, Minneapolis, Minnesota, 988 F.2d 822 (8th Cir. 1993).

 

8th Circuit reaffirms that real property used in il­legal gambling operations is for­feitable. (970) Following U.S. v. South Half of Lot and Lot 8, Block 14, 910 F.2d 488 (8th Cir. 1990) (en banc), cert. denied, 111 S.Ct. 1389 (1991), the 8th Circuit affirmed that real property used in illegal gambling opera­tions may be seized and forfeited under 18 U.S.C. section 1955.  U.S. v. Premises Known as 318 South Third Street, Min­neapolis, Minnesota, 988 F.2d 822 (8th Cir. 1993).

 

9th Circuit says government may not restrain substitute assets before conviction. (970) It is clear that upon conviction the government may seize substitute assets if the forfeitable assets are unavailable.  But the 9th Circuit held that 18 U.S.C. §982(e) does not authorize the pretrial restraint of substitute assets.  The court thus followed In re Assets of Martin, 1 F.3d 1351 (3rd Cir. 1993) and U.S. v. Floyd, 992 F.2d 498 (5th Cir. 1993), and disagreed with In re Billman, 915 F.2d 916 (4th Cir. 1990), cert. denied, 111 S.Ct. 2258 (1991), and U.S. v. Regan, 858 F.2d 115 (2nd Cir. 1988).  Accordingly, the district court was ordered to vacate its order restraining substitute assets prior to trial.  U.S. v. Ripinsky, 20 F.3d 359 (9th Cir. 1994).

 

9th Circuit says abatement doctrine does not ap­ply to forfeitures under 21 U.S.C. section 881. (970) 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).

 

11th Circuit holds Florida homestead property is not exempt from federal forfeiture. (970) Claimants argued that, as a matter of law, their Florida homestead property was exempt from forfeiture even if the property was used in violation of federal gambling laws.  The 11th Circuit rejected this claim, concluding that the state exemption for forfeiture based on the Florida homestead law is preempted in a forfeiture action brought under 18 U.S.C. § 1955(d).  Although forfeiture of a homestead under a Florida forfeiture statute has been prohibited, Congress did not intend state law to limit the forfeiture provisions of 18 U.S.C. § 1955.  U.S. v. One Single Family Residence Located at 18755 North Bay Road, Miami, 13 F.3d 1493 (11th Cir. 1994).

 

11th Circuit holds that forfeiture provision of gam­bling statute includes real property. (970) Following the 2nd, 7th and 8th Cir­cuits, the 11th Circuit held that 18 U.S.C. section 1955(d), which provides for the forfei­ture of “any property”  used for illegal gam­bling pur­poses, applies to real property.  The plain meaning of the words “any prop­erty” necessarily encompasses real property.  Moreover, at the time of its en­actment, sec­tion 1955 was part of the Orga­nized Crime Con­trol Act of 1970, which also included the RICO and CCE statutes.  The civil forfeiture provisions of RICO and CCE both have been interpreted to include real prop­erty.  Al­though in 1984 the RICO and CCE forfei­ture provisions were amended to expressly in­clude real property while section 1955(d) was not, the court re­fused to find any negative impli­cation from Congress’ failure to act.  U.S. v. Premises Located at Route 13, 946 F.2d 749 (11th Cir. 1991).

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

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