Federal prosecutors in the infamous Barefoot Bandit case say Colton Harris-Moore shouldn’t profit from his story. If you remember, Harris-Moore’s arrest stems from a spate of crimes in 2009 and 2010. He escaped from a federal detention center in Seattle and made a daring race across the country in which he stole cars, flew planes, and operated boats. He is suspected of more than 100 crimes across nine states. He was eventually captured in the Bahamas. Not surprisingly, Hollywood came calling for his story, but now Federal prosecutors are seeking forfeiture of any potential profits Harris-Moore may earn from his story. How can the Feds subject property to forfeiture before it has even been realized?

Federal Rule of Criminal Procedure 32.2(b) guides the determination of the scope of forfeitable property. The court or jury identifies the property subject to forfeiture and determines whether the “requisite nexus between the property and the offense” has been established by the government. Implicit in this nexus requirement is the determination of the defendant’s guilt.

The court’s determination may be based on evidence already in the record or any additional evidence submitted by the parties in a forfeiture hearing. The court must then promptly enter a preliminary order of forfeiture “setting forth the amount of any money judgment, directing the forfeiture of specific property, and directing the forfeiture of any substitute property.” Then, at either sentencing or whenever the defendant consents, the preliminary order becomes final as to the defendant. However, third parties may still have a greater claim than the government does to certain property subject to forfeiture.

Property subject to forfeiture opens up with the concept of “substitute property.” The judge or jury can order the forfeiture of substitute property to fulfill whatever money judgment has been awarded or if the actual property derived from criminal activity is unavailable. “A money judgment permits the government to collect on the forfeiture order in the same way that a successful plaintiff collects a money judgment from a civil defendant.” U.S. v. Hall, 434 F.3d 42 (2006). Thus, even if a defendant does not have sufficient funds to cover forfeiture at the time of conviction, the government may seize future assets to satisfy the order. Property subject to substitute forfeiture are identified by applicable statutes. Most jurisdictions allow courts to seize substitute assets when forfeitable assets cannot be located, have been transferred or sold to a third party, are beyond the court’s jurisdiction, have been reduced in value or comingled and not easily separated. See 21 U.S.C. 853(p);18 U.S.C. 982(b); 18 U.S.C. 1963(m).

So it is likely that the Barefoot Bandit may have the profits derived from his story forfeited, but probably only up to the amount of a money judgment to cover the costs of the crimes he committed. Hollywood will probably make it worth his while regardless; though it should be mentioned that Harris-Moore has personally agreed to give all the proceeds of his story to charity.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

Bookmark and Share