In U.S. v. Fleet, No. 06-12454 (Sept. 5, 2007), the Court held that the provision of the federal criminal forfeiture statute, 21 U.S.C. § 853(p), which authorizes the forfeiture of a criminal defendant’s substitute property in the event moneys traceable to the crime cannot be located or have been transferred to a third-party, preempts Florida’s homestead exemption and property law governing tenancies by the entireties.
The Court recognized that unlike the general provision governing criminal forfeiture, which expressly preempts State law, the provision governing substitute property did not contain an express preemption provision. The Court noted, however, that the Supreme Court has stated that the inclusio unius est exclusio alterius logic does not apply to express/implied preemptions. The Court therefore turned to words of the forfeiture statute, which broadly authorized the courts to forfeit "any" substitute property. Further, the Court noted that its interpretation was consistent with the remedial purpose of forfeiture, which is to enforce the old adage that crime does not pay.