NCJ Number
78850
Date Published
1980
Length
62 pages
Annotation
Property tracing and procedure under the criminal forfeiture provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO) are discussed.
Abstract
Section 1963(a) of RICO aims at eradicating the economic base of organized crime by providing for the forfeiture of a violator's property which has been gained through the racketeering activity of which an offender is convicted. A persistent problem at every step of a RICO prosecution is the identification of the property subject to the forfeiture penalty. A nexus between the section 1962 violation and some specific property or other interest of the defendant must be present in the indictment, in any request for a restraining order to freeze the defendant's assets, in the prosecution's proof at trial, and in the special verdict which establishes the extent of the forfeiture. Property identification problems arise where the property subject to forfeiture has changed hands, form, or both. The imposition of a section 1963(a) forfeiture places the Government in a position analogous to that of a claimant attempting to identify property to a constructive trust or an equitable lien. The constructive trust and the equitable lien may be considered types of remedies for the victim of unjust enrichment and as methods of identifying property to the particular remedy. A constructive trust reaches that property in the hands of one person in which another has rights. An equitable lien uses property in the hands of one person as security for the liquidated claim of another. Both remedies will follow property through any number of successive transfers as long as it can be proven that some specific property was the product of each transaction. A total of 74 footnotes are listed; a discussion of the scope of RICO forfeiture in the context of the case United States v. Marubeni America Corporation is appended. (Author summary modified)