What you seize is what you get.
What’s a thousand dollars? Mere chicken feed. A poultry
Forfeiture is really the driving force behind money launder-
ing today. You have to look at it from the crooks’ perspective:
They are hardly inclined to just give away all that money
they worked so hard to steal in the rst place. Their answer
is to devise schemes to protect it from seizure and forfeiture.
Law enforcement, on the other hand, has been getting bet-
ter at nding and seizing, forcing the criminals to become
more sophisticated in response. It is a vicious cycle—one that
probably will not end anytime soon.
One countermove in this chess game was the congressio-
nal approval in 1986 of statutes permitting civil or criminal
forfeiture of assets in money laundering cases. Although the
concept was sound, the original law needed some work, and
it took a couple of years to make changes clarifying exactly
what could be forfeited and how. The law, as amended in
1988, sets out what can be forfeited pursuant to either the
civil forfeiture statute, Title 18 U.S.C. §981, or the criminal
forfeiture statute, Title 18 U.S.C. §982.
Before we get into these two laws, whose text may be
found in Appendix E, we will recap the basic principles
behind forfeiture for those criminal investigators who have
been in suspended animation since 1975, and we will talk
about some of the changes made by the Civil Asset Forfeiture
Reform Act of 2000 (CAFRA).
The principle behind forfeiture is ancient and, despite the
objections of its detractors, pretty logical and fair: The crimi-
nal cannot keep the fruits of his or her crime, nor can the
instruments or tools used to commit the crime be allowed
to stay in criminal hands. Forfeiture is the legal process by
which the government may take those items away.
In the United States, forfeiture often involved the tak-
ing of items used to commit or facilitate the commission of
crimes. The very rst Congress passed measures detailing
how vessels used by smugglers could be taken. Historically,
other items subject to forfeiture have included such things as
trucks driven by bootleggers or airplanes own by drug traf-
ckers. In theory, these seizures deprived the criminals of
the means to commit their crimes and coincidentally made
a prot for the government when the items were sold at auc-
tion. While it certainly inconvenienced the crook, who now
had to go out and buy a new boat or truck in order to stay in
business, the prots from a thriving enterprise often made
this a small problem that was easily overcome with cold
cash—something a successful criminal like pirate Henry
Every had lots of.
All this changed when law enforcement began targeting
the proceeds of major crimes, particularly those derived from
drug trafcking or violations of the Racketeer Inuenced and
Corrupt Organizations (RICO) Act. Here was where the real
money was—thousands, even millions, of dollars in cash, real
property, and other assets that truly were the fruits of crime.
Under American law, forfeitures have traditionally been
civil in nature—in rem actions against the property itself,
rather than against the criminal. This, too, seems logical and
fair: Once the principle that criminals should not be allowed
to keep the fruits of their crimes is established, the only ques-
tion is whether those particular fruits are, in fact, crime pro-
ceeds. If so, it matters not (or didn’t until CAFRA) where they
are or who is holding them: They belong to the government.
In these civil forfeiture proceedings, the government could
seize property based upon probable cause to believe that it
was subject to forfeiture. The property owner or other inter-
ested parties (called “claimants”) could contest the forfeiture
by establishing that the property was not legally forfeitable
or by raising some other defense to forfeiture. In doing so,
the burden was on the claimant to prove his or her case by a
preponderance of admissible evidence. The government, of
course, presents facts of its own to the contrary, and the court
makes a ruling based on the evidence from both sides.
Although the owner of forfeited property might feel
punished, the courts have held that civil forfeiture is not a
“punishment” as dened by the Constitution; the asset, not
the owner, is the subject of the forfeiture action. This elimi-
nates the double jeopardy issue, although the question of
whether a forfeiture can be an excessive ne under the Eighth
Amendment is a little trickier.
A criminal forfeiture is an in personam action against an
individual. In a criminal forfeiture proceeding, the court or
jury is asked to nd not only the guilt of the defendant but
also the “guilt” of his assets. In most cases, the prosecutor
will list the assets that have been used by the defendant to
facilitate the crime or that have been identied as proceeds
and ask that these be forfeited. If the defendant is convicted,
a judgment is entered against the property, but, before that
happens, the burden of proof is on the government to show
beyond a reasonable doubt that the assets should be taken.
A key difference between civil and criminal forfeiture is
the concept of substitute assets. In civil cases, only property
specically linked to a crime can be forfeited. I can seize a
Money Laundering Forfeiture