Nexus Rethought: Toward a Rational Factual Standard for Federal Criminal Forfeitures

• Author: Benjamin Gillig
• Position: J.D. Candidate, The University of Iowa College of Law, 2017; Ph.D., The University of Iowa, 2016; B.A., UC Irvine, 2009
• Pages: 289-316

289

Nexus Rethought: Toward a Rational

Factual Standard for Federal Criminal

Forfeitures

Benjamin Gillig*

ABSTRACT: Numerous federal statutes authorize the government to seek

forfeiture of a criminal defendant’s property after conviction. Under each of

those statutes, the government must establish, by a preponderance of the

evidence, that there is a factual nexus between the defendant’s criminal

conduct and the property to be forfeited. Courts have struggled to articulate a

standard for judging whether the government has established a factual nexus

sufficient to warrant forfeiture. As a result, the existing criminal forfeiture

jurisprudence is idiosyncratic and chaotic, and invites suspicion that the

forfeiture statutes may be unconstitutionally vague. This Note traces the

development of asset forfeiture law in the United States and outlines the

current, inconsistent application of the forfeiture statutes. It then argues that

courts should: (1) read the statutory language authorizing forfeiture to

determine the types of property that may be forfeited; and (2) grant forfeiture

if the government establishes that the contact between the property at issue and

the criminal conduct is more than merely incidental or fortuitous. Such a

standard will comport with the purpose of the forfeiture statutes and allow

courts to meaningfully distinguish between property that is sufficiently

connected with crime to permit forfeiture and property that is not.

I. INTRODUCTION ............................................................................. 290

II. THE DEVELOPMENT OF ASSET FORFEITURE LAW IN THE UNITED

STATES .......................................................................................... 292

A. HISTORICAL DEVELOPMENT OF ASSET FORFEITURE LAW ............ 292

B. THE EXCESSIVE FINES CASES .................................................... 296

C. FRAMEWORK FOR CONTEMPORARY CRIMINAL FORFEITURES ....... 298

*

J.D. Candidate, The University of Iowa College of Law, 2017; Ph.D., The University of

Iowa, 2016; B.A., UC Irvine, 2009. I would like to thank Matthew Bergs and Peter Chalik for their

invaluable comments on earlier drafts of this Note. I would also like to thank Tessa Register and

the rest of the members of the Iowa Law Review Volume 102 Editorial Board for assistance

preparing this Note for publication.

290 IOWA LAW REVIEW [Vol. 102:289

III. THE VARIOUS APPROACHES TO THE FACTUAL NEXUS ELEMENT .. 300

A. THE “REASONABLE UNDER THE CIRCUMSTANCES” APPROACH ... 302

B. THE “RECEIVED BENEFIT” APPROACH....................................... 303

C. THE “COMMINGLING” APPROACH ............................................ 305

IV. TOWARD A RATIONAL STANDARD FOR THE FACTUAL NEXUS ........ 307

A. THE “MORE THAN INCIDENTAL OR FORTUITOUS CONTACT”

STANDARD IS CONSISTENT WITH THE PURPOSE OF CRIMINAL

FORFEITURE. ........................................................................... 309

B. THE “MORE THAN INCIDENTAL OR FORTUITOUS CONTACT”

STANDARD ALLOWS COURTS TO MEANINGFULLY DISTINGUISH

BETWEEN FORFEITABLE PROPERTY AND PROPERTY NOT SUBJECT

TO FORFEITURE. ...................................................................... 311

C. SOME COURTS ALREADY APPLY THE “MORE THAN INCIDENTAL

OR FORTUITOUS CONTACT” STANDARD .................................... 314

V. CONCLUSION ................................................................................ 315

I. INTRODUCTION

Crime should not pay. This basic idea reflects both the moral intuition

and the legislative purpose of numerous federal statutes that authorize the

federal government to take away property involved in crime.1 Since the

Founding, property involved in illegal conduct has been subject to forfeiture

to the government.2 Early in American history, property forfeitures were

restricted to just a few specific types of crime, and were accomplished through

a civil in rem proceeding against the “guilty property.”3 The subsequent 200

years witnessed repeated expansions of the forfeiture power, culminating in

1970 when Congress created a new type of forfeiture: criminal forfeiture,

which is part of sentencing following criminal conviction.4 Now, instead of a

civil proceeding against a particular piece of property, the government can

forfeit property following a defendant’s conviction without instituting a

separate action.5 As a result of the government’s enhanced forfeiture powers

1. See DEE R. EDGEWORTH, ASSET FORFEITURE: PRACTICE AND PROCEDURE IN STATE AND

FEDERAL COURTS 25–26 (2014) (listing the various federal statutes that authorize criminal

forfeiture). For a description of asset forfeiture law in the United States, see infra Part III.

2. C.J. Hendry Co. v. Moore, 318 U.S. 133, 139 (1943) (“Long before the adoption of the

Constitution the common law courts in the Colonies—and later in the states during the period

of Confederation—were exercising jurisdiction in rem in the enforcement of forfeiture statutes.”).

3. United States v. Bajakajian, 524 U.S. 321, 325–26 (1998) (recounting the history of

asset forfeiture in the United States).

4. Id.

5. Id. at 332 n.7.