Provisions of the USA PATRIOT Act relating to asset forfeiture in transnational cases
| Published date | 01 October 2003 |
| DOI | https://doi.org/10.1108/13590790310808961 |
| Date | 01 October 2003 |
| Pages | 303-307 |
| Author | Stefan D. Cassella |
| Subject Matter | Accounting & finance |
ANALYSIS
Provisions of the USA PATRIOT Act Relating to Asset
Forfeiture in Transnational Cases
Stefan D. Cassella
INTRODUCTION
The USA PATRIOT Act was the ®rst major piece of
legislation enacted in the USA in the wake of the
events of 11th September, 2001. Among other
things, the Act imposed new requirements on
®nancial institutions regarding anti-money launder-
ing enforcement, created new money laundering
oences, and gave the government new powers
concerning the con®scation of assets involved in
terrorism, money laundering, and other transnational
crimes.
In this regard, the PATRIOT Act built upon
another set of provisions dealing with the same
issues that were enacted a year earlier as part of
the Civil Asset Forfeiture Reform Act of 2000
(CAFRA). This discussion highlights the parts of
both the PATRIOT Act and CAFRA that bear
directly on transnational cases and the recovery of
assets from criminals and terrorists. To make sense
of this, however, it is ®rst necessary to a have a
brief understanding of the vocabulary of asset
forfeiture law in the USA.
Asset forfeiture in the USA
Federal law in the USA authorises both civil and
criminal forfeiture of property connected to the com-
mission of a crime. Both methods of forfeiture are
employed to recover property involved in crimes
that cross international borders, and each has its
advantages and disadvantages for law enforcement.
Civil forfeiture is an in rem action that is brought
against the property itself.
1
It does not require a crim-
inal prosecution or even that the defendant be in
custody. All that is required is that the government
prove, by a preponderance of the evidence, that a
crime was committed and that the subject property
was derived from, used to commit, or otherwise
involved in that crime. The focus, in other words,
in on the property, not the oender; but property
owners, other than the wrongdoer himself, have a
right to contest the forfeiture by asserting an innocent
owner defence.
So, if an airplane used in a drug smuggling scheme
is seized, a civil forfeiture action can be brought
against it, even if the drug dealer is a fugitive. If
someone other than the drug dealer has an ownership
interest in the airplane, he can contest the forfeiture as
an innocent owner, but if he was aware of the wrong-
ful use of his property, it can be forfeited even though
he was not involved in the commission of the crime.
Civil forfeiture is a powerful and indispensable tool
of law enforcement. As will be seen, there is often no
other means of recovering property when the crime
occurred in another jurisdiction, or when the defen-
dant cannot be found. But civil forfeiture has a
major limitation: as an in rem action, it is limited to
the property directly involved in the underlying
criminal oence. There is no possibility of obtaining
a value-based money judgment in a civil forfeiture
case, or of substituting assets of equal value for
property that cannot be recovered.
Criminal forfeiture is in personam: it is part of the
sentence imposed on the defendant in the criminal
case. It is more limited than civil forfeiture because
it requires custody of the defendant in order to
obtain a criminal conviction, and only property
that belongs to the defendant can be forfeited.
Third party property Ð even if it was used to
commit the crime Ð cannot be forfeited in a criminal
case. But criminal forfeitures have the advantage of
permitting value-based judgments and the forfeiture
of `substitute assets' if the proceeds or the property
used to commit the oence cannot be found.
So in a criminal case against a drug dealer who used
his own airplane to commit a crime, the airplane
could be forfeited as part of his sentence. If the
airplane is missing, a money judgment could be
found for its value, or something of equal value for-
feited. But if the airplane belonged to someone else,
there is no forfeiture, because only the defendant's
property can be forfeited in a criminal case. To
Page 303
Journal of Financial Crime Ð Vol. 10 No. 4
Journal of Financial Crime
Vol.10,No. 4,2003,pp. 303 ±307
#HenryStewart Publications
ISSN 1359-0790
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