Plea Bargaining 5th Edition PDFBook

§ 9:01 Overview of Criminal and Civil Forfeiture

  • Definition of Forfeiture:

    • Criminal forfeiture: an in personam action against a defendant, where the indictment includes property the government seeks to forfeit.

    • Civil forfeiture: an in rem civil suit against property itself associated with criminal activity.

  • **Types of Forfeiture Statutes: **

    • Commonly used statutes include:

      • 21 U.S.C. § 853: Drug crimes

      • 18 U.S.C. § 1963: RICO offenses

      • 18 U.S.C. § 982: General criminal forfeiture

  • Requirements for Criminal Forfeiture:

    • Only available upon conviction (trial or plea).

    • Bifurcated proceedings if the trial occurs: first establish guilt, then address forfeiture.

    • Jury decides on forfeiture upon conviction if requested by the defendant.

  • Burden & Standard of Proof:

    • Government must prove property subject to forfeiture by preponderance of the evidence.

  • Limitation on Forfeiture Amounts:

    • If property is missing/diminished in value, substitute property may be taken for forfeiture up to the owed amount.

§ 9:02 Plea Policies of the Department of Justice in Forfeiture Cases

  • Global Resolution Encouraged:

    • DOJ encourages settlements to address both civil and criminal forfeiture simultaneously but prohibits coercing defendants.

    • Settlements should not result in dismissing criminal charges for agreeing to civil forfeitures.

  • Forfeiture Agreement Conditions in Plea:

    • Requires admission of facts to support forfeiture.

    • Government can reopen civil forfeiture if false information was used in settlement.

    • Waivers of rights concerning forfeiture must be included (e.g., no further claims).

  • Documentation of Settlement:

    • Must include various admissions, waivers, and stipulations regarding ownership and obligations to the government.

§ 9:03 Plea Policies in Tax Cases

  • Settlement Authority:

    • Rarely exercised; primarily utilized to avoid preferential treatment claims.

  • Expected Components of Tax Pleas:

    1. Admission of unreported income or improper deductions.

    2. Acknowledgment of tax penalties.

    3. Agreement to amend tax returns and pay owed amounts prior to sentencing.

    4. Waiver of tax refund claims relating to filed returns.

§ 9:04 Plea Policies for International Prisoner Transfers

  • Treaty-Based Transfers:

    • Governed by 18 U.S.C. § 4100; facilitates transfer of convicted defendants to home countries.

§ 9:05 Plea Policies for Deportation of Defendant Aliens

  • Deportation Pursuit:

    • Prosecutors should recommend deportation for defendants eligible for it, barring extraordinary circumstances.

  • Conditions for Plea Bargaining:

    • Aliens may be offered slight downward sentencing adjustments for acknowledging deportability.

§ 9:06 Plea Policies for Public Officials

  • Special Provisions for Public Officials:

    • Conditions of resignation or withdrawal from office may be required for state officials.

    • Federal officials may discuss voluntary resignation but cannot be forced to resign due to separation of powers concerns.

  • Public Integrity Section Approval:

    • All proposed plea agreements involving Congress members or federal officials require DOJ approval.