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.