|
|
|
|
The Forfeiture Trial: Establishing Forfeitability - Chapter 11 - Asset Forfeiture Law in the United States - Third Edition
Pages:
ISBN:
Published On:
Updated On:
22077
DwnLdItem
PDF Chapter
Do Not Offer
Have a question? Email us about this product!
Available Format
|
Additional Information |
Originally from Asset Forfeiture Law in the United States, Third Edition
§ 11-1 Overview
There are two phases to a civil forfeiture trial. In the first phase, the Government must establish the forfeitability of the property by a preponderance of the evidence. If the Government meets this burden, the trial moves to the second phase in which the claimant ‒ if he wishes to do so ‒ has the burden of establishing an affirmative innocent owner defense.
This chapter deals with the first, or forfeitability, phase of the trial. It begins by discussing trial procedure: the right to a trial by jury, the Government’s burden of proof, the admissibility of evidence, and the consequences that flow from the claimant’s assertion of his Fifth Amendment right against self-incrimination. It then discusses what the Government is required to prove to establish the forfeitability of the property.
To establish the forfeitability of the property, the Government must prove that there was some connection, or nexus, between the property and a criminal offense. What that connection must be differs from offense to offense. What the Government must prove when forfeiting “proceeds” in a drug case is different from what it must prove when it is forfeiting “property involved” in a money laundering case, and so forth. Therefore, most of the discussion regarding what the Government must prove to establish the forfeitability of the property is reserved to Chapters 25 through 27, which discuss the requirements of the respective forfeiture statutes.
One issue that cuts across most types of civil forfeiture, however, is the burden on the Government to trace the property to the underlying offense. Most civil forfeiture statutes require tracing, and the tracing issues are much the same regardless of the theory of forfeiture. Thus, tracing issues are discussed here.
The chapter concludes with a discussion of the grounds on which the court can enter summary judgment on the forfeitability issue for the Government and for the claimant. The second, or innocent owner phase of the trial is discussed in Chapter 12.
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.
|
|
|
|
|
|
