On 19th June, Patterson Belknap published an article about a US case which, it said, offered a lifeline to the wife of a defendant convicted of tax fraud. She sought to argue that the tainted funds had been commingled with legitimately earned funds prior to their transfer and therefore could not easily be traced back to her husband’s crimes. In an appeal, the court concluded that because she had been barred by statute from participating in his criminal proceedings, due process demanded that she be given the opportunity to plead a plausible claim and this would provide her an opportunity to file an amended petition, if she could assert facts that would go beyond those in her current petition. Denying her the opportunity to present them “would raise significant due process concerns” the court said. The article concludes that the ruling will benefit other third-party forfeiture claimants who previously might have been denied the right to litigate an issue that was determined against them at a sentencing proceeding in which they could not participate. It is unfair — and now unconstitutional in the US — for the forfeiture rules to prevent a claimant from having an opportunity to litigate her entitlement to the property to be forfeited.
