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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.

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