Brief Bank

Brief in Support of Default Judgment

This is a brief filed in the Eastern District of Virginia in response to the court’s request for the government’s view on the standard for entering a default judgment based on a complaint for the forfeiture of criminal proceeds pursuant to 18 U.S.C. 981(a)(1)(C).

Constructive Trusts and Competing Claims

In United States v. Cornerstone Equity Fund, Inc., the Ninth Circuit affirmed the award of all of the forfeited funds in a fraud case to one set of victims who could trace their losses based on a constructive trust theory, even though that would mean that a competing set of victims who could not trace would receive nothing.  In this petition for rehearing en banc, the losing claimants argue that to the extent that the Ninth Circuit’s prior opinions in Boylan and Wilson compel that result, they were wrongly decided, and that a constructive trust should not be imposed in favor of one set of claimants in a forfeiture case if doing so would be inequitable to a competing set of similarly-situated victims.  The brief cites the cases from other circuits supporting the claimants’ view.

Forfeiture of Substitute Assets After Honeycutt

This brief, filed in United States v. Purify in the Tenth Circuit, discusses the two-step determination that a court must make in light of Honeycutt to show that a defendant in a multi-defendant case personally obtained a portion of the criminal proceeds, and that he was personally responsible for the unavailability of those proceeds — the showings that must be made to justify the forfeiture of substitute assets under 21 U.S.C. 853(p).

Forfeiture of Gross Proceeds and Facilitating Property Under RICO

This brief, filed in United States v. Hallinan in the Eastern District of Pennsylvania, explains why the forfeiture of proceeds in a RICO case renders the defendant’s “gross receipts” not his “net profits” subject to forfeiture.  It collects the law from all circuits on the gross v. net issue, explaining the legal basis for the majority rule and rejecting the minority view from the Seventh Circuit.  It also refutes the contention that the forfeiture of gross receipts violates the Excessive Fines Clause of the Eighth Amendment.    Finally, the last part of the brief explains why the real property where the defendant conducted his illegal business is forfeitable as “property affording a source of influence” over the RICO enterprise — i.e., why it is facilitating property, and why it satisfies the “substantial connection” test.

Motion to Apply Funds From Inmate Trust Acct

This is motion filed by the government to apply funds in an Inmate Trust Acct to satisfy the inmate’s criminal fine and to reimburse the government for the cost of counsel under the Criminal Justice Act.

Bitcoins and Section 1960

This is the government’s brief in United States v. Petix, arguing that Bitcoins are “funds” within the meaning of 18 U.S.C. Section 1960.  That statute requires that persons engaged in “transferring funds on behalf of the public” be licensed by the state in which they operate, be registered with FinCEN, and refrain from transmitting funds that are illegally derived or are intended to promote or support illegal activity.

Opposition to Motion for Return of Seized Property

This is a brief in arguing that a fugitive defendant, who has not satisfied either prong of the Jones-Farmer rule, is not entitled to contest the probable cause for the pre-trial seizure of her property in a civil forfeiture case.

Joint and Several Liability / Application of Luis v. United States

This is a brief in opposition to a defendant’s motion for the post-conviction release of substitute assets to pay the expenses of his sentencing and appeal.  It discusses two points: whether a defendant is liable to forfeit not only the proceeds received directly by him, but also by the corporation that he used to commit the offense and that he controls; and whether the Supreme Court’s decision in Luis v. United States  requires the post-conviction release of property forfeitable as a substitute asset to fund expenses relating to sentencing and appeal.

Appointment of Counsel: 18 USC 983(b)

This is a brief in opposition to a motion for the appointment of counsel in a civil forfeiture case pursuant to 18 U.S.C. 983(b)(2).  The statute authorizes the appointment of counsel at government expense when the property subject to forfeiture is being used as the primary residence of the claimant.  The brief takes the view that the claimant is not “using” the property as a primary residence while she is a fugitive from justice living overseas and declining to return to the United States.

Fugitive Disentitlement Doctrine

This is a motion to dismiss the civil forfeiture claims and answers filed by a fugitive and the corporation she controls.  The motion is based on 28 U.S.C. 2466, and cites the case law interpreting each of the elements of the statute.  The district court opinion granting the motion is published at United States v. Real Property Known as 7208 East 65th Place, __ F. Supp.3d __, 2016 WL 2609292 (N.D. Okla. May 5, 2016).

Motion for Interlocutory Sale

This is a motion and supporting memorandum for the interlocutory sale of real property pursuant to Supplemental Rule G(7).  The property is subject to and pending civil forfeiture action, the property owner has stopped paying the mortgage and taxes, and the bank has foreclosed.

Opposition to Motion to Release Seized Assets

This is a brief in opposition to a criminal defendant’s motion to release assets seized prior to trial pursuant to 21 U.S.C. 853(f).  It discusses the application of the Jones-Farmer rule, and argues that even if the Jones-Farmer requirements were satisfied, there is probable cause for the seizure both as the proceeds of the offense and as property involved in money laundering.

The brief explains that strict tracing is not required to establish probable cause under a proceeds theory, and that in any event forfeiture under the money laundering theory would include commingled property.

Finally the brief explains why the motion to release seized assets has no application to real property that has not been seized but is subject only to a notice of lis pendens.