4.18.982 Money Laundering—Forfeiture, 18 U.S.C. § 982(a)(1) See Statute

In light of your verdict that [defendant] is guilty of money laundering, you must now also decide whether [he/she] should surrender to the government [his/her] ownership interest in certain property as a penalty for committing that crime. We call this “forfeiture.”

On this charge, federal law provides that the government is entitled to forfeiture, if it proves, by a preponderance of the evidence, that the property in question:

(1) was involved in one or more of the money laundering Counts of which you have convicted [defendant]; OR

(2) was traceable to such property.

Note that this is a different standard of proof than you have used for the money laundering charges. A “preponderance of the evidence” means an amount of evidence that persuades you that something is more likely true than not true. It is not proof beyond a reasonable doubt.

Property “involved in” a money laundering transaction means the money being laundered, any commissions or fees paid to the launderer, and any property used to facilitate the laundering. Mingling tainted funds with legitimate funds exposes the legitimate funds to forfeiture as well, if the mingling was done for the purpose of concealing the nature or source of the tainted funds, in other words, to “facilitate” the money laundering.

While deliberating, you may consider any evidence admitted during the trial. However, you must not reexamine your previous determination regarding [defendant]’s guilt of money laundering. All of my previous instructions concerning consideration of the evidence, the credibility of witnesses, your duty to deliberate together and to base your verdict solely on the evidence without prejudice, bias or sympathy, and the requirement of unanimity apply here as well.

On the verdict form, I have listed the various items that the government claims [defendant] should forfeit. You must indicate which, if any, [defendant] shall forfeit.

Do not concern yourselves with claims that others may have to the property. That is for the judge to determine later.

Comment(s)

(1) This forfeiture instruction can be used if the underlying offense is 21 U.S.C. § 1956(a)(1), (2) or (3) or 21 U.S.C. § 1957. See 18 U.S.C. § 982(a)(1).

(2) The right to a jury trial on a criminal forfeiture count is not constitutional. Libretti v. United States, 516 U.S. 29 (1995). Instead, it is created solely by rule as follows:

Upon a party’s request in a case in which a jury returns a verdict of guilty, the jury must determine whether the government has established the requisite nexus between the property and the offense committed by the defendant.

Fed. R. Crim P. 32.2(b)(4). The language of the Rule seems to contemplate a bifurcated proceeding, see also 2000 Advisory Committee Note. Pre-Libretti First Circuit caselaw left bifurcation to the trial judge’s discretion. See, e.g., United States v. Desmarais, 938 F.2d 347, 349-50 (1st Cir. 1991); United States v. Maling, 737 F. Supp. 684, 705 (D. Mass. 1990), aff’d. sub nom. United States v. Richard, 943 F.2d 115 (1st Cir. 1991); United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995).

Note that some commentators question the vitality of Libretti after Apprendi v. New Jersey, 530 U.S. 466 (2000). See Nancy J. King and Susan R. Klein, Essential Elements, 54 Vand. L. Rev. 1467, 1481 n.51 (2001) (“These factual showings [in forfeiture proceedings] arguably must be treated as elements after Apprendi.”) and David B. Smith, Prosecution and Defense of Forfeiture Cases § 14.03A, at 14-46 (2002) (“The unconstitutionality of Rule 32.2’s scheme is patently obvious from Apprendi.”). The First Circuit has not addressed the issue, but the case law from other circuits holds that Libretti is not disturbed by Apprendi as it applies to forfeiture proceedings. See, e.g., United States v. Cabeza, 258 F.3d 1256, 1257 (11th Cir. 2001) (“Because forfeiture is a punishment and not an element of the offense, it does not fall within the reach of Apprendi.”); United States v. Corrado, 227 F.3d 543, 550 (6th Cir. 2000) (“There is no requirement under Apprendi . . . that the jury pass upon the extent of a forfeiture”); United States v. Powell, 38 Fed. Appx. 140, 141 (4th Cir. 2002) (“Because forfeiture is a punishment rather than an element of the offense, Apprendi is not implicated.”).

(3) Rule 32.2 seems to indicate that the question of a money judgment is for the court only, and never for the jury. The text of 32.2(b)(1) divides its description of the court’s role: “If the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and the offense. If the government seeks a personal money judgment, the court must determine the amount of money that the defendant has to pay.” Fed. R. Crim. P. 32.2(b)(1) (2002) (emphasis added). The jury’s role is limited to the nexus determination for property: “Upon a party’s request in a case in which a jury returns a verdict of guilty, the jury must determine whether the government has established the requisite nexus between the property and the offense committed by the defendant,” Fed. R. Crim. P. 32.2(b)(4). There is no reference to the jury’s role in a money judgment.

The advisory committee notes for the 2000 adoption also support this distinction. After explicitly taking no position on the correctness of allowing money judgments (the First Circuit permits them, see, e.g., United States v. Candelaria-Silva, 166 F.3d 19, 42 (1st Cir. 1999)), the notes go on to prescribe different decisional rules for the different kinds of judgments: when forfeiture of property is asked for, the court determines the nexus; when a personal money judgment is asked for, the court determines the amount. Fed. R. Crim. P. 32.2(b)(1), advisory committee’s note. Then, in discussing subdivision (b)(4), the notes state, “The only issue for the jury in such cases would be whether the government has established the requisite nexus between the property and the offense.” Fed. R. Crim. P. 32.2(b)(4), advisory committee’s note (emphasis added). No mention is made of a role for the jury with respect to personal money judgments.

This distinction has been noted by some commentators, see, e.g., Smith, supra, at 14-48 (“There is no right to a jury trial of the forfeiture issue if . . . the government seeks a personal money judgment instead of an order forfeiting specific assets”) (emphasis supplied), but has not been dealt with by the courts. Although there is room for some uncertainty, this seems to be the best interpretation of the rule.

(4) The standard of proof is preponderance of the evidence. United States v. Saccoccia, 823 F. Supp. 994, 997 (D.R.I. 1993), aff’d. United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995). Note the possible Apprendi issue in the preceding comments.

(5) The definition of “involved in” comes from United States v. McGauley, 279 F.3d 62, 75-76 & n.14 (1st Cir. 2002).

(6) The rights of third parties are determined in an ancillary proceeding before the judge without a jury. 2000 Advisory Committee Note to Rule 32.2(b)(4).