December 05, 2019 Articles

From Indictment to Forfeiture: What’s Yours Is (Now) Mine

A primer on criminal forfeiture and some of the traps along the way.

By Jin-Ho King

At the heart of every criminal matter sits a struggle to determine a defendant’s guilt or innocence. Attorneys—both prosecutors and defense attorneys—rightfully devote their focus to this struggle. But sometimes, the ancillary issue of criminal forfeiture weighs as heavily on the litigation and a defendant’s future as the primary issue of culpability.

Criminal Forfeiture: The Basics

Under federal law, criminal forfeiture is a component of sentencing whereby a court orders that a defendant “forfeit to the United States” property that has some specified nexus to the offense. See, e.g., 18 U.S.C. § 982 (2012). The nexus necessary to cause forfeiture of property differs depending on the offense: in some cases, it is property involved in an offense; in other cases, it is property constituting the proceeds obtained directly or indirectly from the offense. See 18 U.S.C. § 982(a)(1)–(2). Myriad offenses can trigger criminal forfeiture, ranging from drug offenses, see, e.g., 21 U.S.C. § 853, to fraud offenses, see, e.g., 18 U.S.C. § 982(a)(3), and many others. The kind of property subject to forfeiture can also vary, from drugs to guns to cars to cash to houses. See, e.g., United States v. Wild, 47 F.3d 669, 672 (4th Cir. 1995).

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