Settlement of Forfeiture in Conjunction with Plea Bargaining

The government may conclude a civil forfeiture action in conjunction with the criminal charges against the defendant which provided the cause of action against the property. The government

must not

agree, however, to release property subject to forfeiture (civil or criminal) in order to

coerce

a guilty plea on the substantive charges, nor may the government agree to dismiss criminal charges in order to

coerce

a forfeiture settlement. If a plea agreement is not to conclude the civil forfeiture case, language to that effect should also be stated in the plea agreement. Failure to specify in this manner could be fatal to the concurrent civil forfeiture action. Further specific principles governing "global" settlements are as follows:

In all cases, agreements must be based upon facts which support forfeiture. The Department does not release property which is otherwise subject to forfeiture to encourage guilty pleas; nor does it permit defendants to submit property which is otherwise not subject to forfeiture in order to lighten the potential incarceration component of the punishment.

To the maximum extent possible, the criminal plea and forfeiture should conclude the defendant's business with the government. Delaying forfeiture considerations until after the conclusion of the criminal case unnecessarily extends the government's involvement with the defendant and diminishes its effectiveness.

Where the claimant/defendant has negotiated a plea agreement and concurrently wishes to forfeit the property subject to a civil forfeiture action, the plea agreement should state that the defendant has waived any and all rights--constitutional, statutory, or otherwise. Any civil settlement should be documented independently of the plea agreement and should include the following information:

ness.

Where the claimant/defendant has negotiated a plea agreement and concurrently wishes to forfeit the property subject to a civil forfeiture action, the plea agreement should state that the defendant has waived any and all rights--constitutional, statutory, or otherwise. Any civil settlement should be documented independently of the plea agreement and should include the following information:

the claimant/defendant's interest in the property;

an admission of the facts supporting forfeiture;

the claimant/defendant gives up all rights to the property;

he/she gives up any right to contest the forfeiture; and

settlement should be supported by written agreement.

Furthermore, the defendant, in the plea agreement, must admit to facts sufficient to support the forfeiture. The government, however, should not waive its right to reopen a civil forfeiture action where it is later determined that the settlement was based on false information or where the defendant violates his plea agreement.

[updated May 2010]