Patriot Act Limited: Foreign Forfeiture Judgment Required Before U.S. Court May Freeze Assets

Before 2000, the U.S. could forfeit assets at the request of a foreign government only by instituting independent forfeiture proceedings in a U.S. court based on alleged violations of U.S. law. In 2000, Congress passed and President Clinton signed the Civil Asset Forfeiture Reform Act. Section 2467 allowed the U.S. government to forfeit assets based on the existence of a foreign court judgment; no longer did the government need to institute independent forfeiture proceedings based on violations of U.S. law to seize such property.  

In 2001, Congress passed and President Bush signed the Patriot Act, which included what is now 28 U.S.C. §2467(d)(3). That provision authorizes federal district courts to issue temporary restraining orders to “preserve the availability of property subject to a foreign forfeiture or confiscation judgment.”  
 
Now, the U.S. Court of Appeals for the District of Columbia Circuit has ruled that property may be frozen under § 2467(d)(3) only after a foreign court has entered a forfeiture judgment, and may not be frozen before any such foreign court forfeiture judgment. (The issue is not a national security issue.)
 
The circuit court’s decision is In re Any and All Funds or Other Assets, In Brown Brothers Harriman & Co. Account #8870792 in the Name of Tiger Eye Investments Ltd., No. 09-5065 (D.C. Cir. July 16, 2010). Attorneys involved in the case include Jean B. Weld, Linda M. Samuel, Daniel H. Claman, and R. Craig Lawrence, for the Department of Justice; Kelly B. Kramer and Anjali Chaturvedi, for Opportunity  Fund; and Andrew C. Lourie, Michael S. Kim, and Lara Levinson, for Tiger Eye Investments, Ltd.