Motion to Vacate Sentence Alleges Fraud by Federal Law Enforcement Seeking to Seize Assets through Forfeiture

Asset forfeiture, by which the government seizes and takes title to property allegedly involved in criminal activity, has become a major revenue-generating activity for law enforcement agencies around the country. This has led to widespread criticism of the practice, since critics say that it often fails to protect property owners’ rights. A woman who was convicted of conspiracy to commit fraud and money laundering filed a lawsuit against the federal government in late 2015, claiming that law enforcement fraudulently enhanced the allegations against her in order to make a case for asset forfeiture. Scott v. United States, No. 1:15-cv-00173, pet. to vacate judgment (D. Wyo., Oct. 5, 2015). The court dismissed the suit on procedural grounds, finding it to be an improper collateral attack on the sentence. The case offers an interesting view of how people perceive the practice of asset forfeiture, and of the complexity of post-conviction motions in federal criminal cases.

Federal and state criminal statutes authorize forfeiture in criminal cases or in separate civil actions. See, e.g. 18 U.S.C. § 981 et seq., Tex. Code Crim. P. Art. 59.01 et seq. In many, possibly most, jurisdictions around the country, a court can grant prosecutors’ forfeiture claims even if no defendant is convicted of an actual crime. Property owners are not even entitled to notice of a forfeiture action in many cases, and forfeiture cases are often styled as the government “versus” a description of the asset.

The other notable aspect of the Scott case involves post-conviction challenges to a verdict or sentence. The law surrounding habeas corpus petitions is quite vast and complicated, but the current case specifically involves petitions filed within one year of the conviction, alleging that the sentence is unconstitutional or unlawful, that the sentencing court lacked jurisdiction to impose the sentence, that the sentence exceeds the legal maximum sentence, or that the sentence “is otherwise subject to collateral attack.” 18 U.S.C. § 2255. Before filing a “second or successive” petition under § 2255, a petitioner must request certification from an appellate court that the petition involves new evidence or a new constitutional rule made retroactive by the U.S. Supreme Court. 28 U.S.C. §§ 2255(h), 2244(b)(3).

The petitioner in Scott was convicted of conspiracy to commit wire fraud and money laundering. 18 U.S.C. §§ 1349, 1956(h). She filed an appeal but voluntarily dismissed it in late 2013. She filed a § 2255 petition in May 2014, challenging her sentence, which the district court denied just under a year later. The Tenth Circuit denied her request for a certificate of appeal, which is required by 28 U.S.C. § 2253(c)(1)(B), in October 2015.

About two weeks before the Tenth Circuit issued its ruling, the petitioner filed a new case in district court. She stated in her petition that it was an “independent action” alleging “systematic fraud on the Court” by federal prosecutors, rather than a new § 2255 motion. Scott, pet. at 1. The petition alleged multiple acts of fraud by prosecutors, intended “to ensure a conviction…for the sole purpose of forfeiture of substantial assets.” Id. The district court dismissed the suit one day after the Tenth Circuit’s ruling, finding that it was not an “independent action” but rather a new § 2255 case filed without a certification from the appellate court.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Federal crimes attorney Michael J. Brown has defended people in west Texas against criminal charges since 1992. To schedule a confidential consultation with an experienced and skilled advocate for justice in the criminal court system, contact us today online or at (432) 687-5157.

More Blog Posts:

State Laws, Federal Policy Changes Offer Some Good News on Asset Forfeiture, Texas Criminal Lawyer Blog, May 23, 2015

Federal Judge Grants Default Judgment in Forfeiture Action for Money that Allegedly Smelled Like Marijuana, Texas Criminal Lawyer Blog, September 23, 2014

New State (Not Texas) Requires a Criminal Conviction in Civil Forfeiture Cases, Texas Criminal Lawyer Blog, August 8, 2014


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