If “orange is the new black,” then it looks like civil forfeiture is becoming the new method of forcing a defendant to make restitution in a federal criminal case. Lately, the United States Attorney’s Office for the District of New Jersey has been incorporating a civil forfeiture component into plea agreements, particularly when government funds are the subject of an accused’s alleged criminal conduct.
Individuals facing federal criminal prosecution in New Jersey should know that making restitution is a mandatory component of every plea agreement in any criminal case where it is alleged that money was stolen or misappropriated. The ultimate question of whether restitution will ever actually be paid depends on the defendant’s ability to repay the money. Often, even if there is the ability to pay on the part of the defendant, the amount of restitution usually represents a large percentage of the defendant’s income. Given the fact that the overwhelming majority of defendants do not have the same earning capacity after they have been convicted of a felony, the income from which the restitution is derived is minimal. Hence, the percentage of the defendant’s income that goes toward restitution is even smaller.
The Government has approached this problem from another angle lately – civil forfeiture. When the Government believes that the defendant spent the money on assets of retained value, such as homes, cars, or securities, an agreement to forfeit the assets that are the product of ill-gotten gains is frequently the subject of a civil forfeiture component in a plea agreement. The negotiation of the forfeiture component is a challenge, and is best fought if the defendant can show that there are no, or very little of the stolen monies wrapped up in the asset. In other words, be prepared to prove how you paid for the addition on the house or the condo in Florida.
If you are under federal criminal investigation and are considering a negotiated resolution of the possible charges against you, contact Schwartz & Posnock at one of our offices in Monmouth (Eatontown), Essex (Livingston) , Union (Linden), or Middlesex (East Brunswick) Counties for a consultation.