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234

Particular Allegations—Forfeiture

No judgment of forfeiture may be entered in a criminal proceeding unless the indictment or the information shall allege the extent of the interest 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. § 1963(c) (RICO); 21 U.S.C. § 848 (controlled substance); 17 U.S.C. §  605(b) (copyright infringement); the indictment has to include a paragraph listing the property or interest that is subject to forfeiture. Absent such an allegation, there can be no special verdict concerning the property to be forfeited as specified in Fed. R. Crim. P. 31(e).

United States v. Grammatikos, 633 F.2d 1013 (2d Cir. 1980), is instructive as to what constitutes a sufficient forfeiture allegation. In Grammatikos, the Court of Appeals did not require the indictment to identify each of the properties which would be the subject of a special verdict. Rule 7(c)(2) of the Fed. R. Crim. P. only required an allegation of the extent of the interest to be forfeited. The Rule was satisfied in this instance since the indictment advised the defendant that all of his interest in the illicit enterprise was to be forfeited. Each item of property subject to forfeiture did 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 additional penalty 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), refused to 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 property the government sought to have forfeited. Note that the Department of Justice no longer recommends including a forfeiture provision in an indictment even when the government does not intend to pursue the criminal forfeiture. The case which originally prompted this recommendation by the Department, United States v. Hall, 521 F.2d 406 (9th Cir. 1975), should have no further application, since Fed. R. Crim. P. 7(c)(2) has since been amended in specific response to the Hall decision. See Advisory Committee Notes to 1979 amendment. Additionally, subsequent case law has further negated the authority of Hall. See United States v. Seifuddin, 820 F.2d 1074, 1077 (9th Cir. 1987); United States v. Bolar, 569 F.2d 1071 (9th Cir. 1978); United States v. Brigance, 472 F. Supp. 1177 (S.D.Tex. 1979).