The Defendant’s Right to a Jury Determination on Criminal Forfeiture

Author: Melanie Navamanikkam, Associate Member, University of Cincinnati Law Review

In the minds of most, lawyers and lay people alike, the culmination of a criminal trial is when the jury reaches its verdict. What follows a jury’s announcement of ‘guilty’ or ‘not guilty’ is viewed as procedural formalities that merely finalize the verdict. However, in cases where a jury has returned a guilty verdict, there is often one more procedural step that could play a large role in a defendant’s life. In criminal cases that go to trial, the Government may seek to deprive a defendant of the “fruits” of his criminal labor by seeking criminal forfeiture of property created or gained through the criminal activity.[1] If the defendant is found guilty by the jury, and the Government has complied with the relevant statutes and procedures to state its intent to seek criminal forfeiture, there will be a determination on whether the court should order the forfeiture.[2]

Although there is no constitutional right to a jury determination on the issue of forfeitability,[3] the Federal Rules of Criminal Procedure provides parties such a right through Rule 32.2(b)(5)(A), stating that, “the court must determine before the jury begins deliberating whether either party requests that the jury be retained to determine the forfeitability of specific property if it returns a guilty verdict.”[4] Once it has been established that the jury will be retained, the jury will then determine whether the Government has established the required nexus between the offense the defendant committed and the property the Government seeks to seize.[5]

Although the rule places an affirmative duty on courts, most courts hold that the burden rests on the defendant to affirmatively request a jury determination, or waive the right altogether. Some courts have suggested that they find that the rule places an affirmative duty on the court–however, there is unfortunately no precedent that firmly states so. Due to this, the majority of courts wrongfully ignore the duty the rule places on them.

The Purpose of the Rule: Efficiency and Justice

The rule serves a dual purpose of both encouraging efficiency and fairness.[6] First, in a criminal case where a jury was empaneled, the rules seeks to provide the jury with advanced notice on whether it will be retained further to hear additional evidence regarding the forfeitability of the defendant’s property. Doing so allows the jurors and the court to plan ahead, and resolve any discrepancies and issues in advance.[7] The second purpose of the rule is to protect the rights of the defendant.[8] Practically speaking, the Government would not request a jury determination on whether it has established the required nexus between the offense and the property, so it logically follows that the rule exists to protect the interest of the defendant. In the midst of a criminal trial, it is well within the realm of possibility that a defendant’s focus would be on the primary criminal charge, and not the issue of forfeiture. In such instances, where the defendant has not affirmatively requested a jury determination on the issue, the rule avoids inadvertent waiver of the defendant’s right to jury determination,[9] by requiring that the court determine whether the defendant requests that the jury be retained.[10] 

The Ninth Circuit: The Acceptance of Judicial Responsibility

The Ninth Circuit seems to accept the burden of determining whether either party requests a jury determination on criminal forfeitability. In U.S. v. Mancuso, the Ninth Circuit interpreted the 2009 amendment as placing an affirmative duty on the court to determine whether either party requests a jury trial on the forfeitability allegation to avoid inadvertent waivers.[11] Although in Mancuso the facts were such that the court was satisfied that the defense counsel had affirmatively waived the right to a jury determination on the issue of criminal forfeitability,[12] the court still made clear that absent such an affirmative waiver, courts have a duty to determine whether the either party seeks a jury determination.[13] If a defendant remains silent on the matter for example, the court is required to inquire whether he wants the jury to be retained to determine the issue or not.[14]

Similarly, in U.S. v. Phillips, the Ninth Circuit once again stated that a court has an affirmative duty to determine whether either party requests a jury determination on forfeitability.[15] The defendant in Phillips opposed forfeiture by arguing that since no inquiry into whether a jury determination was requested by either party was made prior to jury deliberation, the government could not obtain a forfeiture judgement against him.[16] Although the court held that the property in question was monetary, and therefore could be forfeited without a jury determination,[17] the court suggested that had the forfeiture been specific property, a determination by the court would probably have been required.[18]

Although the Ninth Circuit has never granted a defendant’s opposition to an Order for Forfeiture on the basis that the court did not determine whether he or she wanted to retain the jury, the precedents Mancuso and Phillips suggest that the Ninth Circuit would grant such a motion.

The Fourth and Eighth Circuit: The Defendant’s Burden

In contrast to the Ninth Circuit, the Fourth Circuit holds that the parties involved have the burden to request a jury determination on the issue of criminal forfeitability.[19] In U.S. v. Nichols, the Fourth Circuit held that although a defendant has the right to a jury to decide a forfeiture issue, the defendant must affirmatively assert that right or else the right is waived.[20]

 Similarly, the Eighth Circuit does not interpret the amendment as placing an affirmative duty on the court, and holds that failure to determine whether a part requests jury determination on forfeiture does not deprive the court of its ability to address the forfeiture allegation itself.[21] In U.S. v. Williams, the Eighth Circuit questioned whether the rule is merely a “time-related directive,” and adopted a multi-factor test,[22] developed by the court in U.S. v. Evick, to resolve the question.[23] The factors the court considered include that the “must” language in rule 32.2(b)(5)(A) does not indicate what the consequences a court faces for failing to do so, the purpose of forfeiture, and that a court must always give deference to any statutory provisions where post-conviction forfeiture is mandatory.[24] Inevitably the Eighth Circuit determined in Williams that the rule is simply a time-related directive and not an affirmative duty placed on the court.[25]

Disregarding the Rule: Efficiency over Rights?

The Fourth and Eighth Circuits ignore the interpretive authority of the advisory committee notes and place judicial economy over the rights of the defendant. A court that does not make the determination would seemingly have to empanel a new jury to provide the defendant with his or her right to a jury determination on the issue of forfeitability. Once a jury has delivered the verdict, and is relieved of its duties, the court would have to choose between empaneling a new jury for the issue of forfeitability alone, or waiving the defendant’s rights. Since neither choice is a good option, the Fourth and Eighth Circuits blatantly disregard the rule and shift the burden on defendants by citing to deadlines and public policy reasoning. By doing so, the Fourth and Eighth Circuits avoid both issues of empaneling a new jury and the court’s accountability for the waiver of a defendant’s right to a jury determination. However, such reasoning does not align with the rule drafters’ goal of avoiding inadvertent waivers of the right to a jury determination on forfeitability,[26] and should not be looked to as interpretative authority of the rule.

A Misguided Guide: The Evick Factors

Although touted as a tool to discern whether the rule places an affirmative duty on the courts or not, the Evick test contains little legal analysis. Instead of analyzing the rule, the factors seek to justify the stripping of a defendant’s rights with public policy justifications,[27] such as stating the purpose of criminal forfeiture is to deprive criminals of the fruits of their labor, not to protect them, and that preventing forfeiture would potentially hurt more victims.[28] Such considerations should not be made by the court, as the purpose of the rule is to allow the jury to deliberate on whether it is satisfied that the property in question truly are fruits of the offense committed by the defendant.[29]

The Evick factors presuppose what the test is actually meant to prove and miss the point of the rules altogether. Specifically, the final Evick factor, that the court must give deference to statutory language that requires forfeiture,[30] confuses the role of the jury in a criminal forfeiture determination. A jury is not retained to determine whether the property should be forfeited or not, but to determine whether the Government has established why the property should be forfeited.[31] In a case where a statute requires forfeiture, a defendant’s right to a jury determination on the issue does not displace the statute’s forfeiture requirement, but merely affords the defendant the right to have a jury determine whether his property falls within the scope of property that is required to be forfeited.[32] This nuance of the rule, and what the rule seeks to accomplish, is completely missed by the Evick factors.

Although looking to public policy can be helpful when a statute is unclear, in the case of Fed. R. Crim. P. 32.2(b)(5)(A), where there is clear guidance from the advisory committee, such public policy rationales are misplaced. More importantly, the test seems to disregard the purpose of the rule and therefore should be abandoned.

Conclusion:

The correct standard for jury determinations for criminal forfeitability is that the burden is on the court to determine whether either party requests that the jury be retained. As the advisory committee states, the basis behind the rule is to ensure that a defendant did not inadvertently lose his or her right to a jury determination on the issue of forfeiture.[33] Unfortunately, only the Ninth Circuit seems to follow this line of reasoning. The Fourth and Eighth Circuits’ standard of placing the burden on the defendant is problematic and ignores the advisory committee’s notes on what the intent behind the statute is.

Although the rationale behind the Evick factors seem helpful, the factors do little but convolute the intentions of the rule. Instead of analyzing how to interpret the rule, the Evick factors blankets the intent behind the rule with public policy reasons for why the rule should be interpreted to allow for inadvertent waivers of jury determinations of forfeiture. In the absence of a test that really does analyze whether the rule is a time-related directive or not, courts should rely on the plain text of the rule. In the event that a court does not follow its affirmative duty to determine whether a defendant requests that the jury be retained, the court should empanel a new jury.[34] Such a heavy consequence for failing to determine whether a defendant seeks a jury determination seems appropriate to ensure that court’s will carry out their required duty to avoid having to empanel a new jury.

[1] See Fed. R. Crim. P. 32.2.

[2] See Fed. R. Crim. P. 32.2(b)(1)(B).

[3] See U.S. v. Libretti, 516 U.S. 29, 49 (1995). (“[O]ur analysis of the nature of criminal forfeiture as an aspect of sentencing compels the conclusion that the right to a jury verdict on forfeitability does not fall within the Sixth Amendment’s constitutional protection.”).

[4] USCS Fed. Rules Crim. Pro. R 32.

[5] See Fed. R. Crim. P. 32.2(b)(5)(B).

[6] See Fed. Rules Crim. Pro. R 32.2(b)(5)(A) Committee Notes on Rule (2009).

[7] See Fed. R. Crim. P. 32.2(b)(5)(A) Committee Notes on Rule (2009). (“Jurors who know that they may face an additional task after they return their verdict will be more accepting of the additional responsibility in the forfeiture proceeding, and the court will be better able to plan as well.”).

[8] See Fed. R. Crim. P. 32.2(b)(5)(A) Committee Notes on Rule (2009).

[9] Id.

[10] Id.

[11] U.S. v. Mancuso, 718 F.3d 780, 799 (9th Cir. 2013).

[12] Id. at 799. The defense counsel said that she understood that the court would determine the issue of forfeitability.

[13] Id. at 799.

[14] Id.

[15] U.S. v. Phillips, 704 F.3d 754, 771 (9th Cir. 2012).

[16] Id. at 761.

[17] See U.S. v. Newman, 659 F.3d 1235, 1242 (9th Cir. 2011).

[18] U.S. v. Phillips, 704 F.3d at 771.

[19] U.S. v. Nichols, 429 F. App’x, 355 (4th Cir. 2011).

[20] Id. at 356.

[21] U.S. v. Williams, 720 F.3d 674, 702 (8th Cir. 2013).

[22] U.S. v. Evick, 286 F.R.D. 296, 299 (N.D. W. Va. 2012). (The first Evick factor the court considered is that the “must” language in Rule 32.2 does not indicate what the consequences a court faces for failing to do so.  Secondly, the court looked to the purpose of forfeiture, and stated that it was to deprive criminals of the fruits of their labor, not to protect them. In addition, the third factor looked to the fact that preventing forfeiture would potentially hurt more victims. Fourth, the Court held that the forfeitability of monetary property was not covered by the rule, and finally that the court must always give deference to any statutory provisions where post-conviction forfeiture is mandatory).

[23] U.S. v. Williams, 720 F.3d 674, 702 (8th Cir. 2013).

[24] Id. at 701-702.

[25] Id. at 702.

[26] See Fed. Rules Crim. Pro. R 32.2(b)(5)(A) Committee Notes on Rule (2009).

[27] See U.S. v. Evick, 286 F.R.D. 296, 299 (N.D. W. Va. 2012).

[28] Id.

[29] See Fed. R. Crim. P. 32.2(b)(5)(A), Fed. R Crim. P. 32.2(b)(5)(B).

[30] U.S. v. Evick, 286 F.R.D. 296, 299 (N.D. W. Va. 2012). (“As such, in addition to being specifically authorized to address the forfeitability of specific property, this Court is required to impose statutory forfeiture provisions upon the conviction of a defendant.)

[31] Fed. R. Crim. P. 32.2(b)(5)(A), Fed. R Crim. P. 32.2(b)(5)(B).

[32] Id.

[33] Fed. R. Crim. P. 32.2(b)(5)(A). Committee Notes on Rule (2009).

[34] See Fed. R. Crim. P. 32.2(b)(5)(A), Fed. R Crim. P. 32.2(b)(5)(B). (To decide whether the Government has established the necessary nexus between the property and the defendant’s criminal offense.)

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