Recently in Forfeiture Category

In Honeycutt v. United States (16-142), the U.S. Supreme Court unanimously reversed the Court of Appeals for the Sixth Circuit holding that a co-conspirator cannot be ordered to forfeit conspiracy proceeds did not personally obtain under a theory of joint and severable liability.

In this case, the Honeycutt brothers operated a hardware store - Tony owned the store with their father, and Terry was a "salaried employee" who managed sales and inventory.  The brothers were warned by law enforcement that a product they carried called "Polar Pure", a iodine based water purification product, contained an ingredient that could be used to manufacture methamphetamine.  Despite the warning, the brothers continued to sell large quantities of the product, and over a 3-year period the store grossed more than $400,000 from the sale of more than 20,000 bottles of Polar Pure.  The brothers were subsequently indicted for various federal crimes relating to the sale of iodine with the knowledge it would be used to manufacture methamphetamine.

A Warning Shot on Forfeiture

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The State of Texas seized $201,100 that Lisa Leonard said was from the sale of her home and the State said was drug money.  The trial court found the latter by the preponderance of the evidence, and the State kept the money.

Is preponderance good enough?  Forfeiture exists in the twilight zone between civil and criminal law, and an argument can be made that a higher burden is required.  Justice Thomas discusses the question in his statement today in Leonard v. Texas, No. 16-122.  So does Justice Thomas think the Court should take this case up?  No:

Unfortunately, petitioner raises her due process arguments for the first time in this Court.  As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. Whether this Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.
So anyone defending a forfeiture action in a state with a preponderance standard needs to make the due process argument all the way up the ladder.
Lance Rogers of BNA Criminal Law Reporter has this article on the U.S. Supreme Court's March 30 decision in Luis v. United States regarding pretrial freezing of assets of the defendant not directly related to the crime but forfeitable in substitution for tainted but expended assets.  The court held that such assets cannot be frozen when the defendant needs them to pay her lawyer.  See also my previous post.
Today the U.S. Supreme Court decided Luis v. United States, No. 14-419.  Justice Breyer's plurality opinion begins:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property "obtained as a result of " the crime, (2) property "traceable" to the crime, and (3) other "property of equivalent value." §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment "right . . . to have the Assistance of Counsel for [her] defence." We agree.
Justice Thomas concurred in this result, making the decision 5-3.
Jacob Gershman reports in the WSJ:

Efforts to limit seizures of money, homes and other property from people who may never be convicted of a crime are stalling out amid a wave of pressure from prosecutors and police.

Critics have taken aim at the confiscatory powers over concerns that authorities have too much latitude and often too strong a financial incentive when deciding whether to seize property suspected of being tied to criminal activity.

But after New Mexico passed a law this spring hailed by civil-liberties groups as a breakthrough in their effort to rein in states' forfeiture programs, prosecutor and police associations stepped up their own lobbying campaign, warning legislators that passing such laws would deprive them of a potent crime-fighting tool and rip a hole in law-enforcement budgets.

Their effort, at least at the state level, appears to be working. At least a dozen states considered bills restricting or even abolishing forfeiture that isn't accompanied by a conviction or gives law enforcement less control over forfeited proceeds. But most measures failed to pass.

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