1. RESTITUTION AND FORFEITURE
2018 Heart of America Sentencing Guidelines Conference
Annette Gurney

2. What Is Asset Forfeiture?
The taking of property
By the government
Without compensation
Because it was used in a manner contrary to the law

3. Three Types of Forfeiture
Administrative Forfeiture
Civil Judicial Forfeiture
Criminal Judicial Forfeiture

4. Criminal Forfeiture In Personam action against the person/defendant
Forfeiture allegation in indictment
Bifurcated proceeding
Preponderance of the evidence

5. Criminal Forfeiture
Can forfeit proceeds, facilitating property, property involved in the offense depending on statutory authorization
Court can impose a forfeiture money judgment
Substitute assets
Federal Rule of Criminal Procedure 32.2

6. Restitution vs. Forfeiture
Two separate and distinct penalties
Amounts may differ depending on facts
One is not an automatic credit against the other
Cannot offset restitution by the value of the forfeited property

7. Can victims receive forfeited funds?
Remission process
Restoration process
Third alternative process

8. Remission Process Acts as a pardon for the property
US can return property to innocent owners, lienholders, and victims
Occurs after a completed forfeiture
There must be net proceeds from the forfeited property
Victim’s losses must be compensable under 28 CFR 9
Petitioner must be a victim of the crime underlying the forfeiture
Can only cover out of pocket pecuniary losses

9. Restoration Process
It is a shortcut to the petition for remission process
Initiated at the request of the US Attorney’s Office
Can be a single distribution of criminally, civilly, or administratively forfeited assets.
Must have restitution order

10. Third Alternative
Occurs before the final order of forfeiture is entered
Must have a restitution order
Extinguish the ownership interests of all interested persons, except victim(s)
US Attorney’s Office seeks an order to pay over the seized funds to the clerk of the court for restitution
Only applies to liquidated assets
Can be utilized in a civil or criminal forfeiture case

11. Questions?
Annette Gurney
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