Wednesday, August 24, 2005
The 11th Circuit Circuit issued an opinion this week in "a civil action for conversion and civil theft brought by the United States against F. Lee Bailey." Examining a line of forfeiture related cases the court held that, "the relation-back doctrine operates retroactively to vest title in the Government effective as of the time of the act giving rise to the forfeiture." The court shows how the Moffit, Zwerling, & Kemler, P.C. decision of the 4th Circuit does not resolve the issue of this case. The 11th Circuit finds that "the better understanding of the relation-back doctrine is that it does not satisfy the state-law tort requirement that 'the plaintiff. . . establish that he was in possession of the goods, or entitled to possession, at the time of the conversion.'"
This decision does not leave the government without available avenues to avoid defense counsel from dissipating assets they desire to forfeit. The court added a "postscript" as follows:
“we want to dispel any impression that the Government is powerless to prevent a defense attorney or any other third party from dissipating assets that will be subject to forfeiture upon conviction. Under 21 U.S.C. § 853(e)(1), “[u]pon application of the United States, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property” subject to forfeiture under the statute. Here, the Government could have sought such an order when it indicted the McCorkles simply by alleging that the legal trust fund was subject to forfeiture upon conviction."
The opinion can be found here.