Fill and Sign the Jury Instruction Form 497334326

407 77 Forfeiture 21 USC § 853 In view of your verdict that the Defendant is guilty of the offense charged in Count(s) of the Indictment, you must now decide whether the Defendant should forfeit any interest the Defendant may have in the property described in Count(s) of the Indictment as a penalty for committing that offense. "Forfeiture" means to be divested or deprived of the ownership of something as a penalty for the commission of a crime. In order to be entitled to forfeiture, the Government must prove, by a preponderance of the evidence, that: First: The property to be forfeited constitutes, or was derived from, the proceeds the Defendant obtained, directly or indirectly, as the result of the commission of the offense charged in Count of the Indictment, or Second: The property to be forfeited was used, or was intended to be used, in any manner or part, to commit or to facilitate the commission of, the offense charged in Count of the Indictment. Before you can find that the Defendant must forfeit any property under either of those standards, however, you must unanimously agree upon which of the two standards should be applied in forfeiting a particular asset. A "preponderance of the evidence" simply means an amount of evidence which is enough to persuade you that a claim or contention is more likely true than not true. To "facilitate" the commission of an offense means to aid, promote, advance, or make easier, the commission of the act or acts constituting the offense. Property used to facilitate an offense can be in virtually any form, such as the use of an automobile to facilitate the transportation of illegal drugs. You must determine what property, if any, should be forfeited. While deliberating, you may consider any evidence offered by the parties at any time during the trial. However, you must not reexamine your previous determination regarding the Defendant' s guilt. All of the instruct ions previously given to you concerning your consideration of the evidence, the credibility of the witnesses, your duty to deliberate together, your duty to base your verdict solely on the evidence without prejudice, bias or sympathy, and the necessity of a unanimous verdict, will continue to apply during these deliberations. [Explain Special Verdict Form] You will take the verdict form to the jury room. When you have reached unanimous agreement on the forfeiture verdict, have your foreperson fill in, date and sign the verdict form, then return to the Courtroom. ANNOTATIONS AND COMMENTS 21 USC § 853(a) provides: Any person convicted of a violation of this subchapter of subchapter II of this chapter [21 USC §§ 951 et seq.] punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law - - ( 1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; (2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and (3) in the case of a person convicted of engaging in a continuing criminal enterprise [the defendant forfeits any interest in the enterprise itself] The preponderance of the evidence standard applies. U. S. v. Elgersma, 971 F.2d 69 0, 69 7 (1 1t h Cir. 1 99 2) (en banc). There is a rebutt able presumption that the property of a convicted person is subject to forfeiture. 2 1 USC § 85 3(d). An eighth Amendment (" excessive fines") challenge was rejected in U. S. v. One Parcel Property, 7 4 F.3 d 1165 (11t h Cir. 1996), a civil forfeiture case. The innocent owner defense under the due process and takings clauses was rejected in Bennis v. Michigan, U. S., 116 S.Ct. 994, 132 L.Ed.2d 279, 1996 WL 88269 (Mar. 4, 1996); see also U. S. v . One Parcel (Et c.), 41 F.3d 1448 (11t h Cir. 19 95) (innocent owner defense analyzed and under 2 1 USC § 88 1(a)). For the imputation of an individual's knowledge and actions t o a corporation in forfeiture cases, see U. S. v. Route 2 (Etc.), 6 0 F.3 d 152 3 (1 1t h Cir. 1 99 5).