Thursday, July 30, 2009

Federal Forfeiture- One Strike and You May Be Out

Guest Blogger Todd Foster, Esq. (Cohen, Foster & Romine, P.A.) writes:

I was recently hired to do something different in a federal criminal case, represent a third party claimant in a criminal forfeiture proceeding.  After the defendants pled guilty in a large fraud case, items of their real property were criminally forfeited to the government. As you may know, federal forfeiture statutes attempt to protect innocent lien holders (claimants) in these circumstances, but in doing so, impose strict requirements. A very recent Eleventh Circuit Opinion, U.S. v. Marion, required full compliance with the statute as a condition of a claimant obtaining relief.

In my case, we determined that certain institutional claimants failed to comply with the statute's technical requirements. Rather than wait for the government to seek dismissal of these deficient claims, I filed a third party motion to dismiss those petitions under Marion. My reasoning was that the fewer claimants left standing, the more equity available to satisfy "qualified" claims (including ours). I have put together a brief paper on Marion, soon to be published, which I think you may find helpful. (see here)

Bottom line: Federal statutes setting forth time or technical requirements must be fully reviewed and complied with before any claim thereunder is filed. In 2007, the U.S. Supreme Court in Bowles v. Russell dismissed an appeal in a death case because the petition was three days late. Marion follows that trend. Potential serious consequences loom for those who do not understand and comply with the dictates of these laws.


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