forfeiture doctrine in Massachusetts

1994See Commonwealth v. Funches, 379 Mass. 283 , 291 n.10 (1979).

1984Compare Commonwealth v. Funches, 379 Mass. 283 , 291 & n.10 (1979), where the court noted that the nineteen year old witness had counsel and “answered all questions willingly until he invoked the privilege” but concluded that *467 the substance of the answers previously given was not sufficient to result in a forfeiture of the privilege.

2010Compare, e.g., United States v. One Lot of U.S. Currency ($36,634), 103 F.3d 1048, 1054 (1st Cir. 1997) (probable cause “measured by what the government knew at the time of the institution of the forfeiture proceedings”); United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1066-1067 (9th Cir. 1994) (same); United States v. Ninety One Thousand Nine Hundred Sixty Dollars, 897 F.2d 1457, 1462 (8th Cir. 1990) (same), with United States v. $67,220.00 in U.S. Currency, 957 F.2d 280, 284 (6th Cir. 1992) (court “must assess probable cause at the time of the forfeiture hearing”); United States

2000See Mercado v. U.S. Customs Serv., 873 F.2d at 645; see also U.S. v. $81,000.00 in U.S. Currency, 189 F.3d 29 , 35 (1st Cir. 1999); $191,910.00 U.S. Currency, 16 F.3d at 1058 , United States v. Contents of Accounts Nos. 3034504504, 971 F.2d 974, 985 (3rd Cir. 1992).

2023If a party alleges a lack of personal jurisdiction in an answer and then fails timely to pursue the defense, a forfeiture of that defense may result.”), cert. denied, 574 U.S. 1061 (2014); Lamarche v. Lussier, 65 Mass. App. Ct. 887, 889 (2006) (lack of personal jurisdiction “defense may be waived by conduct, express submission, or extended inaction”).[8] Applying the teaching of Bodimetric¸ USiDG has waived its personal jurisdiction argument by failing to file a motion for relief under § 5N(9).

2016See Commonwealth v. Moffett, 383 Mass. 201, 208 (1981). 15 The defendant was incarcerated at the time of the hearing, presumably limiting counsel’s options in arranging an interview prior to the hearing. 16 The record reflects that, after the forfeiture hearing, the defendant attempted to obtain medical records that, he indicated, would demonstrate a “cystic brain tumor” and other brain damage that affected his behavior.

2014See Sarin v. Ochsner, 48 Mass. App. Ct. 421, 422-423 (2000) (“defendants’ active participation in the proceedings, albeit they alleged the defense of lack of personal jurisdiction in their answer, amounted to a waiver of that defense”); Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990) (discussing defense of lack of personal jurisdiction and noting that waiver may occur where defendants’ “conduct in delaying consideration of [personal jurisdiction] manifests an intent to submit to the court’s jurisdiction”).

2014See Sarin v. Ochsner, 48 Mass. App. Ct. 421, 422-423 (2000) (“defendants’ active participation in the proceedings, albeit they alleged the defense of lack of personal jurisdiction in their answer, amounted to a waiver of that defense”); Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990) (discussing defense of lack of personal jurisdiction and noting that waiver may occur where defendants’ “conduct in delaying consideration of [personal jurisdiction] manifests an intent to submit to the court’s jurisdiction”).

2010Evid. 804(b)(6), which “codifies the forfeiture doctrine,” Giles, supra at 367 , quoting Davis v. Washington, 547 U.S. 813, 833 (2006), and includes an intent requirement.

2010Compare, e.g., United States v. One Lot of U.S. Currency ($36,634), 103 F.3d 1048, 1054 (1st Cir. 1997) (probable cause “measured by what the government knew at the time of the institution of the forfeiture proceedings”); United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1066-1067 (9th Cir. 1994) (same); United States v. Ninety One Thousand Nine Hundred Sixty Dollars, 897 F.2d 1457, 1462 (8th Cir. 1990) (same), with United States v. $67,220.00 in U.S. Currency, 957 F.2d 280, 284 (6th Cir. 1992) (court “must assess probable cause at the time of the forfeiture hearing”); United States

2010As the defendants observe, there can be no deterrent value to a clause contained in an instrument that is not made public incident to the proceeding in which the challenge arises (and thus not thereby disclosed to all beneficiaries); indeed it would be draconian to invoke a forfeiture clause against beneficiaries who challenge a will that does not contain an in terrorem clause, based on the inclusion of such a provision in a separate but undisclosed instrument. 8 We likewise observe that, “because equity does not favor forfeitures, [in terrorem] clauses have been construed narrowly.” Bogert, T

2010Compare, e.g., United States v. One Lot of U.S. Currency ($36,634), 103 F.3d 1048, 1054 (1st Cir. 1997) (probable cause “measured by what the government knew at the time of the institution of the forfeiture proceedings”); United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1066-1067 (9th Cir. 1994) (same); United States v. Ninety One Thousand Nine Hundred Sixty Dollars, 897 F.2d 1457, 1462 (8th Cir. 1990) (same), with United States v. $67,220.00 in U.S. Currency, 957 F.2d 280, 284 (6th Cir. 1992) (court “must assess probable cause at the time of the forfeiture hearing”); United States

2010Compare, e.g., United States v. One Lot of U.S. Currency ($36,634), 103 F.3d 1048, 1054 (1st Cir. 1997) (probable cause “measured by what the government knew at the time of the institution of the forfeiture proceedings”); United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1066-1067 (9th Cir. 1994) (same); United States v. Ninety One Thousand Nine Hundred Sixty Dollars, 897 F.2d 1457, 1462 (8th Cir. 1990) (same), with United States v. $67,220.00 in U.S. Currency, 957 F.2d 280, 284 (6th Cir. 1992) (court “must assess probable cause at the time of the forfeiture hearing”); United States

2010Compare, e.g., United States v. One Lot of U.S. Currency ($36,634), 103 F.3d 1048, 1054 (1st Cir. 1997) (probable cause “measured by what the government knew at the time of the institution of the forfeiture proceedings”); United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1066-1067 (9th Cir. 1994) (same); United States v. Ninety One Thousand Nine Hundred Sixty Dollars, 897 F.2d 1457, 1462 (8th Cir. 1990) (same), with United States v. $67,220.00 in U.S. Currency, 957 F.2d 280, 284 (6th Cir. 1992) (court “must assess probable cause at the time of the forfeiture hearing”); United States

2010See Meyer v. Meyer, 162 Cal. App. 4th 983 (2008).

2009Cf. United States v. Leggett, 162 F.3d 237, 249-251 (3d Cir. 1998), cert, denied, 528 U.S. 868 (1999) (defendant forfeited right to counsel at sentencing hearing by physically attacking counsel).

2009Second, he asserts that, even if forfeiture is recognized, his conduct was not sufficiently egregious to warrant its application to him. 12 Factual findings related to the loss of the right to counsel, such as voluntary waiver, are entitled to substantial deference, but we review claims of violations of the right to counsel de novo, making an “independent determination of the correctness of the judge’s application of constitutional principle to the facts found.” Commonwealth v. Currie, 388 Mass. 776, 784 (1983). a.

2008In United States v. $405,089.23 U.S. Currency, 122 F.3d 1285, 1289 (9th Cir. 1997), the court simply considered “the scope of evidence that can be considered when making probable cause determinations” at the forfeiture hearing and held that the government may not rely on evidence acquired after the forfeiture complaint was filed.

2005See, e.g., United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985), cert. denied, 475 U.S. 1124 (1986); United States v. Potamitis, 739 F.2d 784, 788 (2d Cir.), cert. denied sub nom.

2005See, e.g., United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985), cert. denied, 475 U.S. 1124 (1986); United States v. Potamitis, 739 F.2d 784, 788 (2d Cir.), cert. denied sub nom.

2005For example, the United States Court of Appeals for the Second Circuit required the prosecution to show “(1) the defendant . . . was involved in, or responsible for, procuring the unavailability of the declarant ‘through knowledge, complicity, planning or in any other way,’ . . . ; and (2) the defendant. . . acted with the intent of procuring the declarant’s unavailability as an actual or potential witness.” United States v. Dhinsa, 243 F.3d 635, 653-654 (2d Cir.), cert. denied, 534 U.S. 897 (2001), quoting United States v. Miller, 116 F.3d 641, 668 (2d Cir. 1997), cert. denied, 524 U.S. 905 (

2005We decline to follow New York’s conclusion because “a higher standard of proof under the forfeiture doctrine would not actually separate out the more from the less reliable hearsay and admit only the former (it would simply reduce the scope of the doctrine’s application).” United States v. White, 116 F.3d 903, 912 (D.C.

2005For example, the United States Court of Appeals for the Second Circuit required the prosecution to show “(1) the defendant . . . was involved in, or responsible for, procuring the unavailability of the declarant ‘through knowledge, complicity, planning or in any other way,’ . . . ; and (2) the defendant. . . acted with the intent of procuring the declarant’s unavailability as an actual or potential witness.” United States v. Dhinsa, 243 F.3d 635, 653-654 (2d Cir.), cert. denied, 534 U.S. 897 (2001), quoting United States v. Miller, 116 F.3d 641, 668 (2d Cir. 1997), cert. denied, 524 U.S. 905 (