In United States v. Elgersma, the Eleventh Circuit Court of Appeals decided the issue of what burden of proof applies to a criminal forfeiture proceeding under section 853 of the Comprehensive Crime Control Act of 19842 ("section 853"). After examining the legislative history of section
853 and case law- from its own and other circuits, the court held that criminal forfeiture is a criminal charge requiring the government to prove the guilt of the accused beyond a reasonable doubt. A majority of the court rejected Judge Anderson's concurring opinion in which he argued that criminal forfeiture is an element of sentencing to be determined by a preponderance of the evidence standard.
Tolliver, James D.
"United States v. Elgersma: The Burden of Proof in Criminal Forfeiture Proceedings under 21 U.S.C. § 853,"
Mercer Law Review: Vol. 43:
4, Article 16.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol43/iss4/16