Copyright (c) 1995 Duke Law Journal
Duke Law Journal
NOTE: PROSECUTORS WHO SEIZE TOO MUCH AND THE THEORIES THEY LOVE: MONEY LAUNDERING, FACILITATION, AND FORFEITURE
44 Duke L.J. 744
Jon E. Gordon
Since 1970, federal prosecutors have increasingly relied on civil and criminal forfeiture as tools for law enforcement. 1 Statutes now provide for forfeiture to the government of assets connected to crimes such as money laundering, 2 drug trafficking, 3 racketeering, 4 and mail and wire fraud, 5 among others. The goal of these statutes is to eliminate profit as an incentive for crime. 6
Under 18 U.S.C. section 981, money involved in money laundering is an asset subject to forfeiture. 7 Because money is fungible, prosecutors have special problems when money subject to forfeiture ("dirty" money) is mixed with money not connected to illegal activity ("clean" money). 8 Rather than try to sort the dirty money from the clean, some federal prosecutors have tried to seize and forfeit 9 all of the money, based on a facilitation theory. 10 Under
this theory, the clean money facilitates the laundering of the dirty money by hiding it; in doing so, the clean money becomes involved in money laundering. Thus, the clean money is itself tainted and subject to forfeiture. 11
This Note examines the broad facilitation theory advanced by some federal prosecutors and concludes that the theory gives prosecutors undesirable power to seize property. It argues that a narrower theory, conditioning forfeiture on the intent of the holder of the money, still would accomplish the goals of forfeiture, and that this theory is preferable because it would protect innocent persons from ...
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