Brief Bank

Pre-Trial Restraint of Substitute Assets

This is the government’s brief in United States v. Chamberlain, filed in the Court of Appeals for the Fourth Circuit on September 6, 2016.  It explains why the Supreme Court’s decision in Luis v. United States does not affect, nor require the court to revisit, the Fourth Circuit’s rule that substitute assets are subject to pre-trial restraint pursuant to 21 U.S.C. 853(e).

Substitute Assets: Satisfying Section 853(p)

This Tenth Circuit brief responds to a defendant’s assertion that the government is not entitled to substitute assets unless it shows that the defendant is personally responsible for the unavailability of the directly forfeitable property.  It argues that under the doctrine of joint and several liability, the defendant is liable for the acts or omissions of his co-defendants that caused the directly forfeitable property to be dissipated.

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.