Rich Meehan: Madoff Family Forfeiture Of All Assets Likely

The burden would rest on the Madoffs to prove that the wife is an innocent third party ...


By RICHARD MEEHAN

The Cool Justice Report
www.cooljustice.blogspot.com
March 18, 2009

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com

Mega-scammer Bernie Madoff pleaded guilty plea last week to all the federal charges pending against him -- without the benefit of a traditional plea agreement.

Generally, when an attorney recognizes the client's exposure, efforts are made to negotiate a resolution with the government. The system favors plea resolutions over trials. Trials are expensive and require an extensive dedication of personnel and resources that could be better used conducting other investigations.

Without this agreement, the door is wide open for government action against all Madoff-related assets.

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Although federal speedy trial rules appear to mandate that indictments come to trial within months of the entry of a not guilty plea, the reality in complex cases is that pre-trial preparation by both sides can often exceed a year or better. This is particularly so in cases of factual complexity or multiple defendants.

The recognition that the system favors plea deals is reflected in the U.S. Sentencing Guidelines reduction in sentencing exposure for "acceptance of responsibility." The penitent defendant who agrees to plead guilty early in the process is a candidate for a two -to-three level reduction in the offense severity level used by the court to establish the guidelines sentencing range. That reduction can translate into months and even years saved from prison.

In typical plea deals defense counsel and the prosecutor strive to negotiate parameters of the plea which are them memorialized in a written plea agreement. The agreement serves as a sort of contract to plead guilty between the defendant and the government. It is not binding on the sentencing judge but is binding on the government and the defendant. Thus, an agreement may reflect that the parties agree to a particular guidelines sentencing range, but that does not bind the judge. If however, having struck such an agreement, the defendant reneges on his part, the government is free to disregard the limits it has previously acknowledged and seek harsher sanctions.

Typical provisions may include a stipulation of relevant conduct, which is important for determination of the appropriate sentencing guidelines range; recognition that the plea satisfies all criminal liability in the district; an agreed figure for forfeiture or restitution; an acknowledgement of acceptance of responsibility.

Madoff admitted guilt in all the existing charges with no restrictions on the government's ability to continue its investigation and take an aggressive posture toward sentencing and forfeiture of assets. News accounts suggested that Madoff unsuccessfully sought an agreement not to prosecute his wife or sons, and exempt family assets from seizure and forfeiture.

The goal of forfeiture is to take the profit out of crime. Criminal forfeiture is part of the criminal prosecution, requiring that the government indict the asset obtained from the crime along with the defendant. Typically these forfeitures accompany drug cases, racketeering (RICO), and money laundering and obscenity violations.

Civil judicial forfeiture is an action brought against the property itself without the necessity of criminal charges against the owner. Even without indictment, Mrs. Madoff is exposed to an action seeking the forfeiture of assets that remain in her name.

The government has filed a notice in the current prosecution of her husband that they are seeking to forfeit all known Madoff family assets. If the prosecutors prove that the defendant -- through his criminal conduct -- acquired the assets, the court can order the property forfeited despite the title appearing in Mrs. Madoff's name. The burden would rest on the Madoffs to prove that the wife is an innocent third party who acquired the assets prior to or independent of her husband's criminal acts.

My money is on the government wining this battle.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. His column also appears in the Sunday Norwich, CT Bulletin. Website, www.meehanlaw.com

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