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Legal Commentary

: New York Federal Criminal Practice

Second Circuit Upholds Forfeiture Money Judgments

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Just after this blog highlighted Judge Gleeson's thoughtful decision in Surgent holding that personal money judgments are not authorized in forfeiture proceedings, see here, the Second Circuit rules otherwise in United States v. Awad, 07-4483-cr (2d Cir. March 11, 2010). Forfeiture money judgments may be imposed as part of a defendant's sentence under 21 U.S.C. § 853(a), and such judgment "does not depend on a defendant's assets at the time of sentencing." The Court specifically notes Judge Gleeson's decision in Surgent and finds its reasoning "unpersuasive."

As the [Awad] district court reasoned, when "a defendant lacks the assets to satisfy the forfeiture order at the time of sentencing, the money judgment . . . is effectively an in personam judgment in the amount of the forfeiture order." . . . This is so because "[m]andatory forfeiture is concerned not with how much an individual has but with how much he received in connection with the commission of the crime." . . . A contrary interpretation could have the undesirable effect of creating an incentive for an individual involved in a criminal enterprise to "rid[] himself of his ill-gotten gains to avoid the forfeiture sanction."

Full post as published by New York Federal Criminal Practice on March 11, 2010 (boomark / email).