Criminal Forfeiture Procedure in 2009:An Annual Survey of Developments in the Case Law
Stefan D. Cassella*
A survey of the developments in the case law in the past year relating to the procedure for obtaining a forfeiture judgment as part of the sentence in a federal criminal case.
I. Introduction
This is another in a series of articles on developments in the federal case lawrelating to criminal forfeiture procedure.
1
It covers the cases decided in 2008.Like the earlier articles in this series, this one does not attempt to discuss everytopic related to criminal forfeiture, nor all of the exceptions and nuances that apply to thetopics that are discussed; rather, it covers only those matters on which there was a
*The author is an Assistant U.S. Attorney in the District of Maryland. Previously, he served for many years as the Deputy Chief for Legal Policy of the Asset Forfeiture and Money LaunderingSection of the United States Department of Justice. This article is an edited version of a presentation made by the author at the Asset Forfeiture Chiefs and Experts Conference at theNational Advocacy Center, University of South Carolina, on February 24, 2009. The viewsexpressed in this article are solely those of the author and do not necessarily reflect the viewsor policies of the Department of Justice or any of its agencies.
1
See
Stefan D. Cassella,
Criminal Forfeiture Procedure in 2008: A Survey of Developments in the Case Law
, 44 C
RIM
.
L.
B
ULL
.
3 (2008); Stefan D. Cassella,
Criminal Forfeiture Procedure in 2007: A Survey of Developments in the Case Law
, 43 C
RIM
.
L.
B
ULL
.
461 (2007); Stefan D. Cassella,
Criminal Forfeiture Procedure in 2006: A Survey of Developments in the Case Law
, 42 C
RIM
.
L.
B
ULL
.
515 (2006); Stefan D. Cassella,
Criminal Forfeiture Procedure: An Analysis of Developments in the Law Regarding the Inclusion of a Forfeiture Judgment in the Sentence Imposed in a Criminal Case
, 32
A
M
.
J.
C
RIM
.
L. 55 (2004).
2
significant development in the case law in the past year. Thus a basic familiarity withfederal criminal forfeiture procedure is assumed.
2
The article begins with the law on the scope of criminal forfeiture and when it isavailable as a sanction. It then continues more or less chronologically through the pre-trial, trial, sentencing, ancillary proceeding and post-trial phases of a criminal forfeiturecase. Except in instances where it is necessary to refer to the leading case in a given areafor purposes of comparison or context, the citations are limited to the cases decided in2008.
3
II. The Scope of Criminal Forfeiture
Criminal forfeiture is part of the defendant’s sentence
Forfeiture is imposed as part of the sentencing process in a criminal case; it is not asubstantive element of the offense or offenses with which the defendant has beencharged. There are many consequences of this.
4
Consider, for example, the Government’s ability to make changes to the forfeiturenotice in an indictment after the indictment has been returned by a grand jury. If, after thegrand jury has returned an indictment, the Government wants to charge the defendantwith a different crime, or wants to allege different elements of the crime already charged,
2
For a primer on asset forfeiture, see the U.S. Dep’t of Justice Asset Forfeiture Program website,
available at
http://www.usdoj.gov/jmd/afp/.
3
A complete discussion of each of the issues covered in this article, along with the citations tothe relevant cases, may be found in chapters 15-24 of S
TEFAN
D.
C
ASSELLA
,
A
SSET
F
ORFEITURE
L
AW IN THE
U
NITED
S
TATES
(Juris Publishing 2007) (hereinafter “AFLUS”).
4
See
AFLUS,
supra
note 3, § 15-3.
3
it must return to the grand jury to obtain a superseding indictment. It may not shifttheories in mid-trial or ask the court to instruct the jury in a way that constructivelyamends the charges that the grand jury considered and returned. But this is not the casewith the forfeiture notice.The reference to forfeiture in an indictment is not a criminal charge that thedefendant has a constitutional right to have presented to a grand jury; it is merely a noticeregarding what punishment will be imposed upon conviction – a notice required not bythe Constitution but by Rule 32.2(a) of the Federal Rules of Criminal Procedure.
5
Forthat reason, changes to the forfeiture notice may be made at any time and are not regardedas constructive amendments to the indictment that violate the defendant’s rights under theFifth Amendment.For example, as Seventh Circuit held in
United States v. Silvious,
the Governmentdoes not have to go back to the grand jury, to change the citation in the forfeiture noticeto a different statute.
6
Nor does it need to obtain a superseding indictment to list propertythat was not listed in the indictment the first time around, or to change the specific dollaramount that was set forth in the indictment as the amount of money the Governmentwould be seeking to forfeit as the proceeds of the offense. As the Eleventh Circuit held in
United States v. Rosin,
regardless of the dollar amount alleged in the indictment, the court
5
See
AFLUS,
supra
note 3, § 16-2.
6
United States v. Silvious, 512 F.3d 364, 369-70 (7
th
Cir. 2008) (because forfeiture is part of the sentence and not a substantive charge, a change to the forfeiture notice is not a constructive amendment to the indictment).
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