2318

Post-Judgment Discovery Proceedings Under the Criminal Forfeiture Statutes

The criminal forfeiture statutes provide that the court may order that depositions be taken or that records be produced after an order of forfeiture is entered in order to identify and locate property declared forfeited. See 18 U.S.C. § 1467(k); 18 U.S.C. § 1963(k); 18 U.S.C. § 2253(l); 21 U.S.C. § 853(m); and, incorporating 21 U.S.C. § 853(m) by reference, 18 U.S.C. § 982(b)(1); and 18 U.S.C. §§ 793(h)(3) and 794(d)(3). Consequently, if an order of forfeiture is entered covering property which is described generically or by incorporation of the statutory language, the government may make application to the court to obtain records, documents or testimony concerning the identity and location of that property. When an application is made for the deposition of an attorney or the production of records by an attorney concerning the transfer of assets for legal services, the requirement set forth in this Manual at 2316 that there be reasonable grounds to believe that the fee information will be evidence either of the disposition of forfeited assets or lead to the discovery of forfeited assets shall apply. It should be noted that since these statutory proceedings will occur after trial, the likelihood for any adverse impact upon the attorney-client relationship will be diminished substantially. In particular, the potential for disqualification of the attorney from representation of the client because of the need to testify at trial should not arise. Therefore, when fee information is sought solely for purposes of forfeiture and it is feasible, the discovery of such information should be deferred to the post-trial proceedings rather than proceeding by way of grand jury or trial subpoena. [cited in Criminal Resource Manual 2317; USAM 9-119.202]