The Pros And Cons Of Civil Forfeiture

Thursday, November 25, 2021 1:56:11 PM

The Pros And Cons Of Civil Forfeiture



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Joey Bunch talks the pros and cons of civil asset forfeiture bill...

In Arizona v. The Court ruled that retrial was not barred by double jeopardy. The cases are in doctrinal disarray. Thus, in Gori v. This approach perhaps rehabilitates the result if not the reasoning in Gori and maintains the result and much of the reasoning of Jorn. Holding that the defendant could be retried after he chose a mistrial, the Court reasoned that, although the exclusion might have been in error, it was not done in bad faith to goad the defendant into requesting a mistrial or to prejudice his prospects for acquittal. It was unclear what prosecutorial or judicial misconduct would constitute such overreaching, 92 but, in Oregon v.

The acquittal being final, there is no governmental appeal constitutionally possible from such a judgment. This was firmly established in Kepner v. Until , however, the law providing for federal appeals was extremely difficult to apply and insulated from review many purportedly erroneous legal rulings, but in that year Congress enacted a new statute permitting appeals in all criminal cases in which indictments are dismissed, except in those cases in which the Double Jeopardy Clause prohibits further prosecution. Little or no controversy accompanies the rule that once a jury has acquitted a defendant, government may not, through appeal of the verdict or institution of a new prosecution, place the defendant on trial again. When a trial judge acquits a defendant, that action concludes the matter to the same extent that acquittal by jury verdict does.

United States , the trial judge erroneously excludes evidence and then acquits on the basis that the remaining evidence is insufficient to convict, the judgment of acquittal produced thereby is final and unreviewable. Some limited exceptions exist with respect to the finality of trial judge acquittal. If, after jeopardy attaches, a trial judge grants a motion for mistrial, ordinarily the defendant is subject to retrial; if, after jeopardy attaches, but before a jury conviction occurs, the trial judge acquits, perhaps on the basis that the prosecution has presented insufficient evidence or that the defendant has proved a requisite defense such as insanity or entrapment, the defendant is not subject to retrial.

Thus, the Court first fixed the line between permissible and impermissible appeals at the point at which further proceedings would have had to take place in the trial court if the dismissal were reversed. If the only thing that had to be done was to enter a judgment on a guilty verdict after reversal, appeal was constitutional and permitted under the statute; if further proceedings, such as continuation of the trial or some further factfinding, was necessary, appeal was not permitted. An exception to full application of the retrial rule exists, however, when defendant on trial for an offense is convicted of a lesser offense and succeeds in having that conviction set aside. Thus, in Green v. United States , the defendant had been placed on trial for first degree murder but convicted of second degree murder; the Court held that, following reversal of that conviction, he could not be tried again for first degree murder, although he certainly could be for second degree murder, on the theory that the first verdict was an implicit acquittal of the first degree murder charge.

Still another exception arises out of appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. The Double Jeopardy Clause protects against imposition of multiple punishment for the same offense. In a simple case, it was held that where a court inadvertently imposed both a fine and imprisonment for a crime for which the law authorized one or the other but not both, it could not, after the fine had been paid and the defendant had entered his short term of confinement, recall the defendant and change its judgment by sentencing him to imprisonment only. Thus, it has long been recognized that in the same term of court and before the defendant has begun serving the sentence the court may recall him and increase his sentence.

Appeal resulted in no further trial or other proceedings to which a defendant might be subjected, only the imposition of a new sentence. An increase in a sentence would not constitute multiple punishment, the Court continued, inasmuch as it would be within the allowable sentence and the defendant could have no legitimate expectation of finality in the sentence as first given because the statutory scheme alerted him to the possibility of increase. Similarly upheld as within the allowable range of punishment contemplated by the legislature was a remedy for invalid multiple punishments under consecutive sentences: a shorter felony conviction was vacated, and time served was credited to the life sentence imposed for felony-murder.

Ordinarily, therefore, sentence enhancements cannot be construed as additional punishment for the previous offense, and the Double Jeopardy Clause is not implicated. Sometimes as difficult as determining when a defendant has been placed in jeopardy is determining whether he was placed in jeopardy for the same offense. As noted previously, the same conduct may violate the laws of two different sovereigns, and a defendant may be proceeded against by both because each may have different interests to serve. It fre-quently happens that one activity of a criminal nature will violate one or more laws or that one or more violations may be charged.

The rule, announced in Blockburger v. HILL No. Supreme Court of Florida. Hill bought a new home. The problem being that several years before, Havoco of America had brought a suit against him. Hill attempted to declare his house a homestead, but even ten years later when the suit was settled, the court reasoned that Mr. Hill was attempting to avoid paying his debts. The court ruled that Mr. Not only can transfers be found to be fraudulent, sometimes homesteads can be confiscated. In the case of Butterworth v. Caggiano, So. The state sought civil forfeiture of his home.

The court found for the state stating that Caggiano racketeered in the house and that the homestead law did not apply to criminal acts committed using the property. Bankruptcy laws are not going to be of any help when you knowingly intentionally try to become insolvent to hinder a creditor. Homestead also can only protect one property at a time. If you have more than one property you cannot protect all of them. In the England v. Federal Deposit Insurance Corporation, No. Court of Appeals, 5th Cir. England attempted to be creative and claim the money from the sale of the first home as a homestead exemption linked to the first home and then claim the second home as a homestead.

The court found that this would be two homesteads which is prohibited by the Texas state laws. Because of this, the court ruled that the proceeds from the first residence were not protected by homestead exemption, but the second home was. A third party owner is anyone not related to you by blood or marriage. What is a fiduciary relationship? The word fiduciary comes from the Latin word fiduciarius, fides faith , in fiducia in trust , meaning holding in good faith and trust.

A fiduciary duty imposed on your Independent Trustee is the highest standard of care within the law. A fiduciary is legally expected to give extreme loyalty to the person to whom he pledged his loyalty to the point of defending, even with his own funds if necessary. The fiduciary is contractually obliged to defend your assets to the farthest extent of the law. If they fail to do so, they may be responsible for any assets lost. When you follow our instructions in a timely manner, your estate plan will virtually eliminate your risks and problems.

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