No judgment of forfeiture may be entered in a criminal
unless the indictment or the information shall allege the extent of
or property subject to forfeiture.
To accomplish the criminal forfeiture of property pursuant to
one of the
statutes providing for such forfeiture, among which are 18 U.S.C.
(RICO); 21 U.S.C. § 848 (controlled substance); 17 U.S.C. §
(copyright infringement); the indictment has to include a paragraph
property or interest that is subject to forfeiture. Absent such an
there can be no special verdict concerning the property to be
specified in Fed. R. Crim. P. 31(e).
United States v. Grammatikos, 633 F.2d 1013 (2d Cir.
instructive as to what constitutes a sufficient forfeiture
Grammatikos, the Court of Appeals did not require the
identify each of the properties which would be the subject of a
Rule 7(c)(2) of the Fed. R. Crim. P. only required an allegation of
of the interest to be forfeited. The Rule was satisfied in this
the indictment advised the defendant that all of his interest in
enterprise was to be forfeited. Each item of property subject to
not have to be considered by the grand jury since forfeiture was
not an essential
element of the offense, but was merely intended to serve an
for its violation. See also United States v. Puma,
937 F.2d 151,
156 (5th Cir. 1991), cert. denied, 502 U.S. 1092 (1992).
Furthermore, the Fifth Circuit in United States v.
Peacock, 654 F.2d
339, 351 (5th Cir. 1981), cert. denied, 464 U.S. 965 (1983),
limit its determination of compliance with Fed. R. Crim. P. 7(c)(2)
to just the
paragraph reciting the property subject to forfeiture, but
considered all the
listed acts constituting the pattern of racketeering activity to
see if the
defendants were given adequate notice, as it so found, of the
government sought to have forfeited. Note that the Department of
longer recommends including a forfeiture provision in an indictment
even when the
government does not intend to pursue the criminal forfeiture. The
originally prompted this recommendation by the Department,
United States v.
Hall, 521 F.2d 406 (9th Cir. 1975), should have no further
Fed. R. Crim. P. 7(c)(2) has since been amended in specific
response to the
Hall decision. See Advisory Committee Notes to 1979
Additionally, subsequent case law has further negated the authority
Hall. See United States v. Seifuddin, 820
F.2d 1074, 1077
(9th Cir. 1987); United States v. Bolar, 569 F.2d 1071 (9th
United States v. Brigance, 472 F. Supp. 1177 (S.D.Tex.