2311

Knowledge that the Government has Asserted that a Particular Asset is Subject to Forfeiture

Generally an attorney will have actual knowledge that the government has asserted a claim that an asset is subject to forfeiture based upon some proceedings instituted by the government. Normally the government will do this by initiating civil forfeiture proceedings against the asset, or by applying for pre-indictment or pre-conviction restraining orders under a criminal forfeiture statute, or by obtaining an indictment containing a forfeiture count. A civil forfeiture proceeding, if known to an attorney, will establish actual knowledge of the forfeitability of any assets which are the subject of the proceeding since such assets must be specifically identified in the complaint. This is because in a civil forfeiture proceeding the res is the defendant and it must be sufficiently identified to allow seizure. A defendant, in most cases, will not be able to transfer an asset which is the subject of a civil forfeiture action to an attorney because the asset is actually seized as soon as the proceeding is instituted. However, in the rare case where a transfer takes place after the suit is initiated but before the seizure occurs, an attorney who has knowledge of the civil forfeiture action has actual knowledge that the particular asset is subject to forfeiture. For the same reason an attorney has actual knowledge of the forfeitability of any asset which he/she knows is subject to a restraining order based upon a forfeiture allegation in a criminal proceeding. However, when the government asserts a claim only by including a forfeiture count in an indictment and no assets have been restrained, the return of the indictment by itself will not necessarily establish actual knowledge that a particular asset is forfeitable. It will depend upon how specifically the asset is described in the forfeiture allegation. There are essentially three means by which an indictment can describe property that is alleged to be subject to forfeiture. It may specifically describe the property, such as "ten shares of stock in XYZ Corp. certificate nos. 1-10, purchased on January 1, 1985" or "account 12345 at First National Bank, Downtown Branch in the name of the defendant." It can set forth a generic description of certain property by amount and/or type, suc h as "ten shares of stock in XYZ Corp." or simply "$200,000." Finally, it can allege a broad all-inclusive description of property subject to forfeiture by incorporating statutory language, such as "any and all proceeds or profits of the criminal enterprise." If property is specifically described, an attorney undoubtedly has actual knowledge of its forfeitability if he/she is aware of the contents of the indictment. However, if property is included in the forfeiture count only under a generic description or by the inclusion of the all-inclusive statutory language, an attorney does not have actual knowledge based on that fact alone that any particular asset is forfeitable. Instead, reasonable grounds to believe that an attorney has actual knowledge that the asset is subject to forfeiture would have to be based on evidence that the attorney knew the asset in fact was from criminal misconduct. Of course, the fact that an all-inclusive forfeiture allegation or a generic description was included in the indictment would be relevant evidence to establish such knowledge. See this Manual at 2312. [updated August 1999] [cited in Criminal Resource Manual 2310; Criminal Resource Manual 2313; Criminal Resource Manual 2314; USAM 9-119.202]