FEAR's Brief Bank II
  Motions, pleadings and briefs


Brief Bank II: indexed by issue

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Substitute assets [ 415 ]

CLAIMANT KERRY SCOTT LANE, M.D.’S POST-TRIAL MEMORANDUM

In civil forfeiture “proceeds” cases “the government is required to trace the seized property directly to the

offense giving rise to the forfeiture.” … “[T]he term ‘traceable to’ means exactly what it says.” ... Where the

tainted drug money becomes commingled in an account or other container with untainted property, “the

government's burden of showing that money in the account or an item purchased with cash withdrawn

therefrom is ‘traceable to’ illegal activity will be difficult, if not impossible, to satisfy.” Id. However, that is the

government’s burden.

... "[T]he presence of one illegal dollar in an account does not taint the rest - as if the dollar obtained from

fraud were like a drop of ink falling into a glass of water." … The government cannot trace proceeds that have

already been forfeited as substitute assets because substitute property “by its very nature is not connected to

the underlying crime.” … Having obtained an order subjecting substitute assets up to an amount covering all of

Milo’s drug proceeds, it certainly follows that the government cannot now claim an alternative theory that some

portion of those same drug proceeds are traceable to defendant property in this in rem proceeding. Collateral

estoppel applies to Judge Gertner’s finding that Milo’s drug proceeds were untraceable. Allowing the

government to pursue this civil forfeiture now under a traceable proceeds theory gives the government a

forbidden second bite of the apple. … Unsecured creditors lack standing to defend or taint property.

by Grantland, Brenda

U.S. v. ONE STAR CLASS SLOOP SAILBOAT NAMED “FLASH II” D.Mass. 05-10192 ( 2007 )

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Monday, October 08, 2007 Page 2 of 8



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