2240

Forfeiture by Settlement and Plea Bargaining in Civil and Criminal Actions

COMMENT: Settlements are contractual agreements to end legal disputes. United States v. ITT Continental Banking Co., 420 U.S. 223, 228 (1975); Village of Kaktovik et al. v. Watt, 689 F.2d 222, 230 (D.C. Cir. 1982). Such agreements cannot dispose of the claims of non-participants. Firefighters v. Cleveland, 478 U.S. 501, 529 (1986). Similarly, plea agreements, which are also contractual in nature, cannot subject property to forfeiture unless permitted by substantive statute. United States v. Reckmeyer, 786 F.2d 1216 (4th Cir.), cert. denied, 479 U.S. 850 (1986); United States v. Roberts, 749 F.2d 404 (7th Cir. 1984), cert. denied, 470 U.S. 1058 (1985). Moreover, a plea agreement may significantly limit existing statutory forfeiture provisions. See United States v. Paccione, 948 F.2d 851 (2d Cir. 1991). It is important to note that while unambiguous, good faith settlements and plea agreements will be read and interpreted according to their terms, any ambiguities or imprecise terms will be construed against the government. See United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986); United States v. Field, 766 F.2d 1161, 1168 (7th Cir. 1985). Because the courts are inclined to read such terms against the government even when defense counsel has contributed to the ambiguity or imprecision of the agreement, Harvey, 791 F.2d at 301, it is essential that federal prosecutors and forfeiture attorneys strive for clarity, precision, and detail in defining the obligations of each party to the agreement. Fields, 766 F.2d at 1168.) [cited in USAM 9-113.100]