(c) 2015 Brenda Grantland
reprinted from Truth and Justice Blog, 10/29/2015
As I have stated in previous blogs, third parties in criminal forfeiture cases are often treated worse than civil forfeiture litigants. 1/
In criminal forfeiture cases forfeitability of the property is determined in the criminal trial or guilty plea, and third parties are completely excluded from those processes. 2/ As a result:
- (a) they have no right to intervene in the criminal case to raise a defense that is not being raised by the criminal defendant; 3/
- (b) they have no right to confront and cross-examine prosecution witnesses in the government’s case in chief against their assets;
- (c) they are never allowed discovery about the basis for the government’s forfeiture case;
- (d) third parties are generally not permitted to file suppression motions (a right afforded civil forfeiture litigants); 4/
- (e) they are not allowed to object to the criminal defendant’s plea bargain agreeing to forfeit their property;
- (f) even when they get to their third party hearing process, third parties are not allowed to challenge the factual basis (“nexus”) for the forfeiture at all; and
- (g) even if they win, they may not be entitled to attorney’s fees under CAFRA, though they may be entitled to attorneys fees under the Equal Access to Justice Act.
In short, third parties have their property tied up in court for years while the criminal defendant litigates his/her case. They are forced to wait until after the defendant is convicted, and after their property is forfeited, and after the criminal defendant is sentenced before they have any right to participate in any court proceedings at all.
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