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Miscellaneous Issues: Parallel and Successive Civil and Criminal Cases; Interplay of Forfeiture with Bankruptcy and Taxes; Constitutional Challenges - Chapter 14 - Asset Forfeiture Law in the United States - Third Edition
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Originally from Asset Forfeiture Law in the United States, Third Edition
§ 14-1 Overview
Civil and criminal forfeiture are separate remedies: The Government may forfeit property in a civil forfeiture case even if there is no parallel criminal prosecution or conviction, and it may forfeit property in a criminal case as part of the defendant’s sentence without first commencing an administrative or civil forfeiture proceeding. But that does not mean that the Government must choose one vehicle or the other. To the contrary, it is quite common for the Government to employ both civil and criminal forfeiture in the same base by filing parallel or success actions involving the same property and the same underlying facts.
For example, it is quite common for the Government to commence an administrative or civil judicial forfeiture against the property involved in an offense while pursuing a separate criminal investigation and prosecution of the wrongdoer. Sometimes, the civil case will be completed before the prosecution is commenced. Other times, the civil case will be stayed while the criminal case goes forward. In still other cases, the Government may do nothing about the forfeiture until the criminal case is commenced and then include the forfeiture in the criminal case, or it may omit (or abandon) the forfeiture in the criminal case and file a separate civil forfeiture once the criminal case is over.
This chapter discusses some of the issues that arise when the Government chooses to pursue forfeiture in parallel or successive proceedings. It begins by discussing the consequences of commencing a civil forfeiture case while a criminal case is pending, including the potential double jeopardy effect of a civil forfeiture judgment. It then discusses the application of the doctrine of collateral estoppel or issue preclusion when an issue common to civil and criminal forfeiture is litigated first in a civil case or vice versa.
It also discusses the effect a civil forfeiture judgment may or may not have on the sentencing and appeal phases of a criminal case, the use of grand jury information in a related civil case, and the use of civil discovery in a related criminal case.
This chapter then addresses a number of miscellaneous issues that arise in both civil and criminal forfeiture cases, including the interplay of forfeiture and bankruptcy, the effect of a forfeiture judgment on a taxpayer’s tax liability, and the constitutional challenges that have been raised against forfeiture as a law enforcement tool.
Finally, it discusses the cases that address the retroactivity of amendments to the forfeiture statutes, the application of the legislative history of those statutes, and the enforceability of the Government’s internal forfeiture policies.
Stefan D. Cassella, as a federal prosecutor, was one of the federal government's leading experts on asset forfeiture law for over thirty years, and now serves as an expert witness and consultant to law enforcement agencies and the financial sector as the CEO of AssetForfeitureLaw, LLC.
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