The government’s latest forfeiture abuse: criminal forfeiture of property not owned by a criminal defendant

(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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Criminal forfeiture laws need to be reformed too

(c) 2014 Brenda Grantland
Truth and Justice Blog, 11/4/2014

In recent months the mainstream news media has rediscovered the abuses of civil asset forfeiture as an issue of concern.  On October 11, the Washington Post published an excellent series of articles on forfeiture abuse “Asset seizures fuel police spending.”  Other print media have begun jumping on the bandwagon, publishing their own original stories.  See the Forfeiture Endangers American Rights Foundation’s website’s What’s New page for summaries of recent forfeiture articles.

Television has rediscovered the forfeiture issue too, with the most hilarious skewering of civil asset forfeiture ever, by John Oliver on Last Week Tonight, on October 5, 2014.  Already, as of today, 3,709,577 people have watched the YouTube video of the episode.

We are grateful for all of the bad publicity civil forfeiture is getting and that people are beginning to clamor for reform, but reforming civil forfeiture (again!) will only cure half the problem.

Criminal forfeiture has become even more abusive than civil forfeiture.


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Are bogus “fraud” and SUA civil forfeiture cases the latest federal forfeiture racket?

(c) 2014 Brenda Grantland
Truth and Justice Blog, 5/5/2014

In the past few years I’ve seen a lot of bank account seizures based on the allegations that the money was “traceable proceeds” of fraud – or proceeds of Specified Unlawful Activity (“SUA”) 1/– without any criminal charges  being filed against the property owner.

In many such cases we have successfully resolved the forfeiture case – and my clients have gotten back most if not all of the money – without any criminal charges ever being filed. How did we do it? It required diligent investigation, aggressive pursuit of discovery, research, and a great deal of effort, but often in the end I found the government just didn’t have a case.

With fraud and white collar crime being such a big problem in the U.S. today, why would the government seize a bank account for forfeiture based on a fraud or SUA proceeds theory and not prosecute the property owner with the underlying crime?