2084
Restraining Orders
|
Under 18 U.S.C. § 1963(d), the government may seek a
restraining
order upon the filing of a RICO indictment, in order to preserve all
forfeitable
assets until the trial is completed and judgment entered. Such orders can
have
a wide-ranging impact on third parties who do business with the defendants,
including clients, vendors, banks, investors, creditors, dependents, and
others.
Some highly publicized cases involving RICO restraining orders have been the
subject of considerable criticism in the press, because of a perception that
pre-trial freezing of assets is tantamount to a seizure of property without
due
process. In order to ensure that the rights of all interested parties are
protected, the Criminal Division has instituted the following requirements
to
control the use of restraining orders in RICO prosecutions. (It should be
noted
that these requirements are in addition to any other existing requirements,
such
as review by the Asset Forfeiture Office.):
- As part of the approval process for RICO prosecutions, the
prosecutor
must submit any proposed forfeiture restraining order for review and
approval by
the Organized Crime and Racketeering Section. The prosecutor must show that
less-intrusive remedies (such as bonds) are not likely to preserve the
assets for
forfeiture in the event of a conviction;
- In seeking approval of a restraining order, the prosecutor must
articulate
any anticipated impact that forfeiture and the restraining order would have
on
innocent third parties, balanced against the government's need to preserve
the
assets;
- In deciding whether forfeiture (and, hence, a restraining order) is
appropriate, the Section will consider the nature and severity of the
offense;
the government's policy is not to seek the fullest forfeiture permissible
under
the law where that forfeiture would be disproportionate to the defendant's
crime;
- When a RICO restraining order is being sought, the prosecutor is
required,
at the earliest appropriate time, to state publicly that the government's
request
for a restraining order, and eventual forfeiture, is made in full
recognition of
the rights of third parties--that is, in requesting the restraining order,
the
government will not seek to disrupt the normal, legitimate business
activities
of the defendant; will not seek through use of the relation-back doctrine
to
take from third parties assets legitimately transferred to them; will not
seek
to vitiate legitimate business transactions occurring between the defendant
and
third parties; and will, in all other respects, assist the court in
ensuring
that the rights of third parties are protected, through proceedings under 18
U.S.C. § 1963(1) and otherwise.
The Division expects that the prosecutor will announce these principles
either at the time the indictment is returned or, at the latest, at the
first
proceeding before the court concerning the restraining order.
| |