Prison isn’t the only punishment on the table when the government believes a crime has been committed. The government can actually take property away from the alleged criminal and others through civil or criminal forfeiture.
For example, if a person sells drugs out of a van, there are procedures by which the government can take the vehicle, even if that vehicle belongs to someone else.
If property is taken away in connection with someone else’s crime, it has been very difficult to challenge the decision. This conundrum was at the center of a case won by Brown, Bradshaw & Moffat’s own James C. Bradshaw in December 2022.
As part of a criminal case, the government took property away that belonged to a person who was never charged or provided their day in court. Bradshaw helped take that property back.
In this matter, a friend of the uncharged landowner was found guilty for running an illegal factoring business.
The property that was ultimately forfeited as a result of the crime belonged to the uncharged friend. He purchased land in West Jordan, Utah that he wanted to hold for development. The money used to purchase the property was his own and had nothing to do with the criminal factoring business. The only connection to the criminal factoring business was that the criminal defendant had provided a bridge loan to the uncharged friend to help him pay off a hard money loan. The criminal defendant had not secured a mortgage and never claimed an interest in the property.
Although the criminal defendant consistently told the prosecutor and the court that he had no interest in the real property, the government tried to forfeit it.
When the government filed a motion to carry out the forfeiture, they did not tell the judge about what the defendant said about not owning the property. They failed to tell the court that title was in the name of the uncharged friend. Not knowing the actual facts, the court accepted the forfeiture motion, and once the criminal defendant was sentenced, the forfeiture was final. The land—which belonged to the uncharged friend—was now owned by the United States government.
As a result of this case, the uncharged friend hasn’t been able to do anything with his property since 2020. During that time, real estate market values soared, and he missed out on financial opportunities.
Bradshaw represented the uncharged friend to help him get his land back, but it was an uphill battle the entire way. There are only two parties that can participate in a federal criminal matter —the government and the defendant. Because the uncharged friend was an innocent third party, there was no way for him to contest the order. The government cited that fact after Bradshaw tried getting the order vacated by Judge Howard C. Nielsen, Jr. of the Utah District Court.
Judge Nielsen acknowledged that the government was correct, but he did something called sua sponte. This means he decided to revisit the order on his own without any formal challenge behind it.
In the end, the judge ruled that because the land never belonged to the criminal defendant, the government could no longer hold it. The previous forfeiture order was vacated.
Judges in other states have taken on cases sua sponte to vacate a forfeiture order in favor of a third party. However, it has never been done within the 10th circuit — a jurisdiction that includes Utah, Wyoming, Colorado, New Mexico, Kansas, and Oklahoma. By doing this, Judge Nielsen set a precedent by which other judges in the area can cite to as justifying the procedure.
If you have property that you feel was unjustly taken as part of an erroneous forfeiture order, contact the lawyers at Brown, Bradshaw & Moffat. We have over two decades of experience with all types of criminal matter, including civil and criminal forfeiture. For a free consultation, call (801) 532-5297.
United States of America v. Justin Peck - Memorandum Decision And Order Granting Third-Party Petition. Case 2:20-cr-00185-HCN, Document 64 (U.S. District Court of Utah 2022).
