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WASHINGTON-A Department of Justice proposal to keep a dead criminal defendant’s conviction alive for purposes of asset forfeiture raises constitutional and practical problems that neither Congress nor the courts may want to face, according to forfeiture and criminal law experts. The department on Sept. 6 asked a federal judge in Houston to delay action on a motion by the estate of former Enron Chief Executive Kenneth L. Lay to dismiss his indictment and to vacate his conviction for his role in one of the largest corporate frauds in American history. The Enron Task Force sought the delay, it said, in order to give Congress time to consider the department’s proposal to limit the so-called abatement doctrine and to create a special new retroactive civil forfeiture proceeding. Such a proceeding ultimately would allow the government to go after more than $40 million in assets that it contends Lay pocketed as a result of his fraud. Under the abatement doctrine, the death of a convicted defendant while his direct appeal is pending erases his entire criminal proceeding, whether he was convicted by a jury or convicted following a guilty plea. Since restitution and criminal forfeiture are part of sentencing, they are “abated” as well. Although sympathetic to the government’s claim that its proposal would protect the rights of crime victims, a number of legal experts contend the proposal raises problems with the Constitution’s ex post facto clause, which prohibits making past acts illegal, and with its prohibition of bills of attainder, or the passing of laws that target a single individual. Experts also say it is unlikely to provide a more efficient path to the recovery of ill-gotten gains. And they contest the government’s claim that courts have been moving more recently away from applying the abatement doctrine. “From the government’s perspective, the [Lay] estate is getting a huge windfall by the unfortunate event of Lay dying,” said former federal prosecutor Laurie Levenson of Loyola Law School, Los Angeles. “The big losers will be the victims who must go through the cost, effort and inefficiency of having to do separate proceedings to recover what they lost. “On the other hand, what the government is really doing is a magic trick-taking criminal forfeiture and magically making it civil forfeiture and doing away with the abatement doctrine in that context,” she added. The department has formally submitted its legislative proposal to the House and Senate, but no member of Congress has yet to be the chief sponsor, said a department spokesperson, adding that the department is “consulting with the committees of jurisdiction [House and Senate judiciary] on the possibility for congressional action prior to Congress’ adjournment.” Murky doctrine The abatement doctrine is itself “pretty murky,” according to white-collar crime scholar Peter J. Henning of Wayne State University Law School. “It’s generally viewed as a common law doctrine,” he said. “I view it more as an equitable doctrine-it is the use of a court’s power to ensure justice is meted out equitably.” In a 2003 opinion raising the abatement issue, the U.S. Court of Appeals for the Armed Forces noted that two reasons generally support application of the abatement doctrine. U.S. v. Rorie, 58 M.J. 399 (C.A.A.F. 2003). First, “Death arguably disrupts appellate adjudication and may leave an unreviewed conviction that is unsound, unlawful, or unjust,” said the court. An unreviewed conviction, the court said, should not serve as the basis for finality. And second, “Charges, trial, conviction, and sentences are directed at and punish the individual. Those purposes can not be served after the defendant has passed away.” Despite those reasons, the armed forces court rejected the abatement doctrine after noting that the other federal courts of appeals unanimously apply the policy. Most state courts have adopted some form of abatement, but in the last 10 years, some have moved away from the doctrine. The doctrine was reaffirmed in 2004 in the 5th Circuit, where Lay was convicted. In U.S. v. Estate of Parsons, the court explained that “The appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted.” The government argues that the abatement doctrine has strayed far from its original purpose-to prevent the collection of fines after a convicted defendant’s death-and has evolved into “radical relief.” As the government explains in a letter to House and Senate leaders, the only avenue left to the government to secure assets for crime victims following the death of a convicted defendant and abatement is civil forfeiture. “Unfortunately, this avenue is constrained under current law as civil forfeiture is substantially more limited in scope and effect than the criminal forfeiture that could have been conducted if the defendant had lived.” And most importantly, the government cannot rely on the fact of the criminal conviction to support its civil forfeiture demand. The government proposes essentially a two-part solution to its problem. The proposed bill would add a new section to the criminal code that limits abatement to cases in which a defendant dies before conviction. When a convicted defendant dies after being sentenced but before a direct appeal is concluded, any restitution order will survive and the defendant’s right of appeal will pass to his personal representative. In addition, the government may move to reinstate a conviction if it will have a material effect in civil litigation. The defendant’s personal representative would be allowed to challenge that motion. The proposed bill also would add a new subsection to the criminal forfeiture statute. When a convicted defendant dies before his or her direct appeal is concluded, any pending criminal forfeiture would be converted to a special civil forfeiture proceeding, essentially identical to the criminal forfeiture proceeding that would have occurred. That special proceeding would be subject to challenge and direct appeal by the government or the personal representative. The government argues that the proposed changes are remedial and procedural, which avoid ex post facto clause problems and support making the legislation retroactive to just before the death of Kenneth Lay. Red herring? Forfeiture expert Steven L. Kessler of the Law Offices of Steven L. Kessler in New York calls the government’s criticism of the abatement doctrine “a red herring.” The doctrine, he said, has not strayed from its original purpose and only comes up “in a handful” of cases each year. “Defendants don’t kill themselves so they don’t have to forfeit their assets after sentencing,” he said. “It doesn’t surprise me that the government is going after the doctrine here because of the high visibility and publicity in the Lay case.” But the government’s legislative proposal does present an unconstitutional retroactivity problem, said Kessler. “Civil forfeiture is civil only in procedure,” he explained. There is a whole body of U.S. Supreme Court decisions, written by Chief Justice William H. Rehnquist, who was not a liberal, noted Kessler, that has found that civil forfeiture is punitive in nature. If civil forfeiture is punitive, then there is a retroactivity problem with the bill. But even without a conviction to rely upon in the Lay case, attorneys pursuing civil forfeiture and other civil claims against the estate, “practically speaking, should be salivating with all of the evidence that is now public record,” said Kessler. David B. Smith of English & Smith in Alexandria, Va., an expert and author of a treatise on forfeiture, also sees an ex post facto problem as well as an unconstitutional bill of attainder problem with the department’s proposed bill. “This bill is squarely aimed at taking away Mrs. Lay’s property,” he said. “The whole thing is tailored to that one case. If it isn’t a bill of attainder, it sure looks like one, acts like one and smells like one, and Congress shouldn’t come near it.” Smith insisted there is no rational reason why criminal forfeiture should not abate after a convicted defendant’s death and before his direct appeal is concluded. “You can make a case for abolishing the abatement doctrine altogether and if you wanted to be consistent, you should say that and always substitute the personal representative for the decedent,” said Smith. “But their attempt to create this cockamamie special civil forfeiture proceeding doesn’t make sense.” Loyola’s Levenson also questions whether, as the government’s proposal assumes, an estate’s representative can pursue an appeal as effectively as the convicted defendant under both sections of its legislation. “There are these intangible elements,” she said. “The defendant sat through the trial, was behind the scene and able to evaluate witness testimony and the events at trial. It’s harder for a third party to come in and make those assessments-not impossible, but harder. I’m not sure you get the same level of due process by having this substitute appeal.” Full circle Despite possible constitutional problems, the government has a “good case,” said criminal law scholar Daniel Richman of Fordham University School of Law. “I think there is an important government interest in seeing that the many small people who were hurt by the fraud in this case have some reasonable and efficacious avenue for obtaining relief,” said Richman. “The question is not whether civil forfeiture is legally possible here but with what efficacy and speed the government can obtain a judgment.” Because the government and civil plaintiffs cannot make use of the conviction if the abatement doctrine is applied, he said, “This is one those situations where somebody’s ox will be gored. As a result of this sad death, there is a change in the landscape that we need to accommodate doctrinally.” Levenson suggested that the government’s move in the Lay case may be designed strategically to encourage settlement. The Lay case is the “perfect case” for settlement, said Smith. “It seems to me that’s another reason Congress shouldn’t touch this bill with a 10-foot pole,” said Smith. “Nobody has accused Mrs. Lay of anything. It’s not as if the government is going to lose the case. They are going to have to relitigate it [in a civil forfeiture proceeding] at great expense, but that’s not a reason for this legislation.” In fact, if the legislation is enacted, there will be litigation over it as well, added Levenson. “We’re into a new era of forfeiture law in general and a new era of huge financial cases as well,” she noted, adding the abatement doctrine came at a time when legal proceedings were quite different. “In much, much earlier times, when a person was convicted of a felony, he lost everything in his estate,” she said. “We made an intentional move away from that and now, with the government’s proposal, we’re coming full circle.”

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