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2080

RICO Prosecution Memorandum—Forfeiture

The purpose of this section is to set forth the proof by defendant when the indictment charges that interests of that defendant are subject to forfeiture pursuant to 18 U.S.C. § 1963. This section must deal with the following issues:

  1. The identity of the interest(s) sought;

  2. The proof that those interests are exclusively owned by the defendant;

  3. The theory upon which forfeiture is predicated (i.e., interest acquired/maintained, interest affording a source of influence over the enterprise, or proceeds);

  4. The identity of third parties who have a claim to the property sought to be forfeited (e.g., victims of extortion, lien holders, bona fide purchasers for value) or third parties whose property rights will be substantially affected by a forfeiture of the defendant's interest (e.g., minority stockholders in a closely held corporation, partners, individuals with an undivided interest in the property);

  5. How the submitting attorney plans to preserve the interests of the United States and innocent third parties in the property during the interval between the entry of the judgment of forfeiture and the time when the government may seize and dispose of the property;

  6. What the ultimate disposition of the property should be (e.g., is it commercially feasible to sell it, should it be returned to third parties, should it be destroyed, etc.);

  7. Is the forfeiture sought disproportionate to the criminal conduct charged?

As the foregoing questions illustrate, there are many troublesome issues surrounding RICO forfeitures which will surface after the property has been forfeited. It is the submitting attorney's responsibility to anticipate these problems and develop a forfeiture plan before the indictment is returned.