Brief Bank

Double Jeopardy: Government’s Opposition to Motion Claiming that Successive Money Laundering Prosecutions Constitute Double Jeopardy

The defendant filed a motion to dismiss a money laundering indictment alleging that it violated the Double Jeopardy Clause because it alleged a second money laundering prosecution based on the conduct that gave rise to his guilty plea to money laundering in an earlier case.  The government’s brief sets forth the double jeopardy analysis, explaining why two money laundering prosecutions can involve laundering different sets of proceeds from the same underlying crime.  The court ruled in the government’s favor on this issue in United States v. Patel, 2024 WL 1856409 (D.D.C. Apr. 24, 2024).

Government’s Opp to Double Jeopardy Mtn

Competing Claims: Government’s Opposition to Claimant’s Right to Challenge Another Claimant’s Standing

In this brief filed in a case in which there were competing claims to the same property, the government opposes the attempt by one claimant to move to dismiss the claim of a competing claimant on the ground that the competing claimaint lacks standing.  It argues that Supp. Rule G(8)(c) gives only the government the right to move to dismiss a claim for lack of standing.  In contrast, it notes the Rule G(8)(b) gives the claimant the right to move to strike the government’s complaint, but says nothing about its right to challenge the standing of a competing claimant. 

Government’s Opposition to Claimant’s Motion to Strike Competing Claimant’s Claim

Government’s Opposition to Motion to Transfer Money Laundering Charges to a Different Venue

In this brief, the government sets forth the reasons why a defendant charged with both a specified unlawful activity and laundering the proceeds of that offense should be tried in the same district on both charges, and why the defendant’s motion for a change of venue on the money laundering charges alone should be denied.

Government Opposition to Change of Venue

Government’s Motion to Amend a Forfeiture Order to Include a Money Judgment and Specific Assets

In this brief, the Government explains how a criminal forfeiture order issued in general terms may be amended pursuant to Rule 32.2(e) to include a judgment for a specific amount of money and a list of specific assets forfeitable as proceeds and/or as facilitating property.  It includes a discussion of making money judgments concurrent when based on different theories, of giving the defendant credit against the money judgment for the value realized from the sale of specific assets that have been forfeited, the rule requiring the forfeiture of gross proceeds without any deduction for the defendant’s costs, and the case law defining what property is forfeitable as facilitating property.

Motion to Amend Preliminary Order of Forfeiture

Government’s Motion to Dismiss Third-Party Claim for Failure to Comply with the Pleading Requirements in Section 853(n)(3).

In this brief, the Government explains why a third-party’s claim making only a bald assertion that it is the owner of the forfeited property, and that it acquired its ownership interest in a particular month and year, does not satisfy the pleading requires in 21 U.S.C. 853(n)(3) — i.e., because it does no satisfy the minimal pleading requirements in Iqbal and Twombly; because it does not state the nature and extent of the third party’s interest (in that it does not say if the claim is made pursuant to Section 853(n)(6)(A) or (B); and because it does not set forth the “time and circumstances” in which the interest was acquired.  Moreover, it argues that granting leave to amend the claim would be futile because the claimant is the alter ego of the defendant, and thus lacks standing to file a third-party claim under Section 853(n)(2).

US Reply to PSC Response to Motion to DIsmiss 07-28-23

Pre-Trial Restraining Order and Opposition to Third Party’s Objection

This is an example of a pre-trial restraining order issued by the court to preserve the assets of the defendant for forfeiture as the proceeds of a health care fraud offense, and of the Government’s opposition to a third party’s objection to the restraining order.  In its opposition, the Government explains why third parties are barred by 28 U.S.C. 853(k) from intervening in criminal forfeiture matters pre-trial, and why the third party’s claim to be a bona fide purchaser for value must be heard in the post-trial ancillary proceeding.

Post Indictment Restraining Order

Opposition to Motion to Modify

 

Motion to Dismiss Third-Party Claim in Criminal Forfeiture Case

This is an example of a motion and reply brief filed by the Government in the ancillary proceeding in a criminal forfeiture case, to dismiss the claim filed by a third party to a forfeited vehicle.  The third party admitted that he had received title to the vehicle as a gift, but nevertheless claimed an interest as a bona fide purchaser for value because he had paid for improvements to the vehicle.  The district court granted the Government’s motion in United States v. Berg, 2023 WL 121235 (D. Utah Jan. 6, 2023).

Motion to Dismiss 3P Interest in Property Petition (US v. Berg)

Reply to Response to MTD 3P Interest in Property final Motion to Dismiss 3P Interest in Property Petition (US v. Berg)

 

Damming Warrant

This is an example of a warrant used to block funds being deposited into a bank account and not allowing them to be withdrawn for a period of time, to allow the government to obtain a seizure warrant for those funds.

Damming warrant 

Complaint for Forfeiture – IEEPA / Export Administrative Regs – Exports to Russia

This is a civil forfeiture complaint setting out a theory based on international money laundering and violations of IEEPA and the Export Administrative Regulations (EAR) to forfeit money sent into the U.S. from Russia to purchase electronic parts ostensibly for a civilian purpose, but in fact for the use of the Russian military.

Complaint for Forfeiture of $299,218.48

Opposition to Motion for Pre-Trial Probable Cause Hearing

In this brief, the Government explains why a criminal defendant is not entitled to a pre-trial probable cause hearing regarding the propriety of the seizure of his assets for forfeiture unless he shows that he lacks other funds with which to preserve his Sixth Amendment right to counsel, and what he has to do to make that showing.  On the merits, the Government explains why the money that a defendant charged with participating in the January 6 insurrection at the US Capitol made from selling videos of the event is subject to forfeiture as the proceeds of that offense under the “but for” test.  The district court’s ruling in the Government’s favor on this motion is reported at United States v. Sullivan, 2021 WL 5769452 (D.D.C. Dec. 6, 2021).

Govt Opp to Funds Motion (Sullivan)

Motion to Set Aside Foreclosure Sale

This is a brief filed by the government to set aside a mortgagee’s attempt to foreclose on real property subject to criminal forfeiture instead of filing a claim in the ancillary proceeding pursuant to 21 U.S.C. 853(n), and explaining why the sale was barred by Section 853(k).

Motion and Supporting Memorandum of US to Set Aside Foreclosure

Post-Conviction Discovery — Motion and Order

To conduct post-conviction discovery to locate assets subject to forfeiture, the government usually needs the permission of the court pursuant to Rule 32.2(b)(3) and/or 21 U.S.C. 853(m).  These documents include a sample motion and order for that purpose.

Motion for Post-Conviction Discovery

Order Authorizing Post-Conviction Discovery

Motion to Stay Discovery Pending Resolution of Standing

This motion (and the related reply brief) argue that because standing is a threshold issue in civil forfeiture cases, general discovery may be stayed, and the government may be excused from responding to the claimant’s discovery requests, until the claimant responds to the government’s Rule G(6) special interrogatories and has established standing to contest the forfeiture.

Motion to Compel Response to Special Interrogatories

This motion (and the related reply brief) argue that a claimant is not excused from responding to special interrogatories just because he has satisfied the standing requirements at the pleading stage by asserting ownership of seized property in his verified claim.

Complaint for Forfeiture of Cryptocurrency Accounts

This complaint details how federal agents were able to identify the location of a child pornography website, and using account information seized from a search of that location, used the blockchain to trace Bitcoin payments back to Bitcoin accounts at Bitcoin exchanges so that a civil forfeiture could be filed against them under 18 U.S.C. 2254.

Request for Restraining Order re Cryptocurrency

This is a request for a pre-trial restraining order under 21 U.S.C. 853(e)(1)(A) explaining the process for restraining cryptocurrency by having the defend provide the government with the “seed recovery keys” and access to hidden wallets needed to transfer the cryptocurrency to the US Marshals Service.

Motion for Summary Judgment for Civil Forfeiture of Firearms

This is a motion for summary judgment filed by the government in a civil forfeiture case under 18 U.S.C. 924(d), in which the government was seeking forfeiture of firearms possessed by a person who has been involuntarily committed to a mental institution.  Possession of firearms by such persons is barred by Section 922(g)(4).  The motion discusses what is meant by “involuntary commitment,” and whether the government is able to establish a “knowing” violation of Section 922(g)(4) in such cases in light of the Supreme Court’s decision in Rehaif v. United States.

Motion to Stay Ancillary Proceeding

This is a joint motion filed by the government and third-party claimants, asking that the ancillary proceeding in a criminal case be stayed pending the trial of remaining co-defendants, who include the third-party claimants.

Opposition to Motion to Dismiss Forfeiture Allegation

In a fraud case, the defendant moved to dismiss the forfeiture allegation from the indictment on statute of limitations grounds and because the forfeiture would constitute joint and several liability.  This Opposition explains that because forfeiture is part of the defendant’s sentence, there is no separate statute of limitations for forfeiture; that forfeiture in a fraud case extends to the proceeds of the entire scheme, including proceeds derived from conduct occurring outside of the statute of limitations; that the Supreme Court’s decision in Honeycutt does not apply to forfeitures in health care fraud cases; and that holding an individual defendant liable for proceeds paid to a corporation that he controls does not constitute joint and several liability.

Amicus Brief on Forfeiture and the First Amendment

This brief responds to a court’s invitation to amici to address the forfeitability of expressive material — in this case, the trademarks of an outlaw motorcycle gang — that is forfeitable under the RICO statute but that is otherwise protected by the First Amendment.

Brief in Support of Entry of Preliminary Order of Forfeiture in a RICO Case

In United States v. Mongol Nation, the jury found the outlaw motorcycle club guilty of  RICO conspiracy, and returned a special verdict finding the club’s trademark insignia subject to forfeiture.  This brief, in support of the government’s motion for the entry of a preliminary order of forfeiture, not only explains the scope of forfeiture in RICO cases, but also does a good job of laying out the procedure under Rule 32.2 for entering a forfeiture order and resolving third-party claims.

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.