- As part of the approval process for RICO prosecutions, the prosecutor must submit any proposed forfeiture restraining order for review and approval by the Organized Crime and Racketeering Section. The prosecutor must show that less-intrusive remedies (such as bonds) are not likely to preserve the assets for forfeiture in the event of a conviction;
- In seeking approval of a restraining order, the prosecutor must articulate any anticipated impact that forfeiture and the restraining order would have on innocent third parties, balanced against the government's need to preserve the assets;
- In deciding whether forfeiture (and, hence, a restraining order) is appropriate, the Section will consider the nature and severity of the offense; the government's policy is not to seek the fullest forfeiture permissible under the law where that forfeiture would be disproportionate to the defendant's crime;
- When a RICO restraining order is being sought, the prosecutor is required, at the earliest appropriate time, to state publicly that the government's request for a restraining order, and eventual forfeiture, is made in full recognition of the rights of third parties--that is, in requesting the restraining order, the government will not seek to disrupt the normal, legitimate business activities of the defendant; will not seek through use of the relation-back doctrine to take from third parties assets legitimately transferred to them; will not seek to vitiate legitimate business transactions occurring between the defendant and third parties; and will, in all other respects, assist the court in ensuring that the rights of third parties are protected, through proceedings under 18 U.S.C. § 1963(1) and otherwise.
The Division expects that the prosecutor will announce these principles either at the time the indictment is returned or, at the latest, at the first proceeding before the court concerning the restraining order.
Updated December 18, 2015