FEAR's Brief Bank II
  Motions, pleadings and briefs


FEAR's Brief Bank II: indexed by issue

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Burden of proof [ 38 ]

MOTION FOR RETURN OF SEIZED PROPERTY PURSUANT TO FEDERAL RULES OF

CRIMINAL PROCEDURE, RULE 41e

When the property in question is no longer needed for evidentiary purposes, either because trial is complete or

the defendant has pleaded guilty, the person from whom the property is seized is presumed to have a right to its

return, and the government has the burden of demonstrating that it has a legitimate reason to retain the

by Perez, Shawn

U.S. v. John Doe D.Hawai CR. NO. 02- ( 2003 )

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MEMORANDUM OF DECISION

Order finding that defendant Flash II, seized and sold by the US government is not subject to forfeiture.

Government failed to carry its burden of proof under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).

"Accordingly the sloop was not forfeitable. Because the sloop was not forfeitable, the government had no

interest in the sloop and therefore no right to dispose of the sloop." case "is analogous to cases

concerning withdrawals from bank accounts that commingle drug proceeds

and clean money" as in the Second Circuit case Untied States v. Banco Cafetero Panama; supported by United

States v. Voigt,"4 a case where the government bore the burden of proving by a fair preponderance of the

evidence that jewelry was "traceable to" the proceeds of money laundering activity: "While we can envision a

situation where $500,000 is added to an account containing only $500, such that one might argue that the

probability of seizing "tainted" funds is far greater than the government's preponderance burden (50.1%), such

an approach is ultimately unworkable. … [T]he presence of one illegal dollar in an account does not taint the

rest–as if the dollar obtained from money laundering activity were like a drop of ink falling into a glass of

water."

by

U.S. v. ONE STAR CLASS SLOOP SAILBOAT NAMED "FLASH D.Mass. 05-10192 ( 2001 )

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