Asset Forfeiture - Columbia Law School

Sharon Cohen Levin

Chief, Money Laundering and Asset Forfeiture Unit

United States Attorney’s Office

Southern District of New York

Asset Forfeiture

Asset Forfeiture

• Takes the Profit

Out of Crime

Forfeitable Property

Two categories of property subject to forfeiture

1. Proceeds of a crime

2. Property that facilitates a crime

Proceeds

• Statutory definition — very broad

• 18 U.S.C. § 981 (a)(2)(A)

“ property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to the forfeiture, and any property traceable thereto, and is not limited to the net gain or profit realized from the offense.”

Facilitating Property

The car the defendant drove to the drug deal

The house where he stored the drugs

The plane he used in transporting the drugs

The apartment where cash earned from drug

trafficking was stored

Victim Restitution

• No mechanism to seize or freeze property

obtained through fraud so that it is available

for victim restitution

---------------------BUT----------------------

• Can use Asset Forfeiture procedures to

seize or freeze fraud proceeds so that

they are available for restitution

Equitable Sharing • State and Local law enforcement agencies working

together with federal agencies on an Asset Forfeiture

case share in the money forfeited

• Forfeited money is transferred directly to the state or

local agency

The Castle at Tarrytown * Forfeit luxury hotel purchased and maintained with

fraud proceeds

Two Types of Forfeiture

1. Criminal Forfeiture

2. Civil Forfeiture

U.S. v. Bennett

U.S. v. Bennett

U.S. v. Bennett

Forfeiture included his art

collection featuring works by

Mark Rothko

Overview of Criminal Forfeiture

• Part of a Criminal Case

• Part of the sentence

• Requires a conviction on a criminal

count

• In personam – Only the defendant’s

property can be forfeited

U.S. v. Dreier

U.S. v. Dreier

•$ 10 Million Co-Op

Lady Seascape

U.S. v. Dreier

U.S. v. Dreier

U.S. v. Dreier

Post-Trial Issues

Preliminary Order of Forfeiture

– Sets forth the amount of the money

judgment or directs the forfeiture of

specific property

– Provides the notice to Third parties

Ancillary Proceeding

• Third party has the burden of

establishing that he:

– Has a superior right, title or interest,

or

– Is a bona fide purchaser for value

• Hearing before Trial judge

Relation Back Doctrine

21 U.S.C. § 853(c) – Third Party Transfers

“All right, title, and interest in property…vests in the United States upon the commission of the act giving rise to forfeiture….”

- Any property this is subsequently transferred shall be ordered forfeited unless the transferee establishes he is a BFP for value at the time of the purchase without cause to know property subject to forfeiture

Civil Forfeiture United States v. Portrait of Wally

Overview of Civil Forfeiture

• In rem – Brought directly against property because:

- proceeds of crime, or

- property that facilitates a crime

• Criminal conviction unnecessary

• No substitute assets- property must be linked to criminal

activity

• Except for RICO – civil forfeiture is available in same

cases as criminal forfeiture

• Standard of Proof- preponderance of evidence

Civil Seizure

1. File a Civil complaint and obtain a Warrant of Arrest in Rem (Issued by the Clerk of the Court)

2. Seizure Warrant – obtained pursuant to Rule 41 (Probable Cause)

3. Without a warrant if incident to arrest or search

4. Without a warrant if an exception to the 4th Amendment

United States v. Contents of Fleming

Isle of Man, LTD. Acct. •Not limited to Forfeiting Property in the U.S.

Sharon Cohen Levin

Chief, Money Laundering and Asset Forfeiture Unit

United States Attorney’s Office

Southern District of New York

Asset Forfeiture