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Timothy J. Eckstein, 018321 

Joseph N. Roth, 025725 

Sarah P. Lawson, 036436 

OSBORN MALEDON, P.A. 

2929 North Central Avenue, 20th Floor 

Phoenix, Arizona 85012-2793 

(602) 640-9000 

teckstein@omlaw.com

jroth@omlaw.com

slawson@omlaw.com

Attorneys for the Estate of James Larkin 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

 

vs. 

James Larkin (2), et al.,

 Defendants. 

Case No. 2:18-cr-00422-PHX-DJH 

MOTION TO ENFORCE 

ABATEMENT OF PROSECUTION 

When a defendant in a pending criminal case dies, the death “abates [as to that 

person] . . . all proceedings in the prosecution from its inception,” including the 

government’s efforts to obtain assets through criminal forfeiture. United States v. 

Oberlin, 718 F.2d 894, 895 (9th Cir. 1983). Defendant James Larkin died on July 31, 

2023, shortly before trial was to commence. Although the Court dismissed the 

indictment’s charges against Mr. Larkin, additional action is required to fully abate the 

action against him as represented through the interests of his estate. 

. . . 

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Accordingly, the Estate of James Larkin asks the Court to enforce the abatement 

of the prosecution by: (1) dismissing from the Superseding Indictment (Doc. 230) the 

criminal forfeiture allegations against property relating only to Mr. Larkin and no other 

defendant; (2) pursuant to Fed. R. Crim. P. 41(g), ordering the release to Mr. Larkin’s 

Estate his property that is not also alleged to be subject to forfeiture in the consolidated, 

parallel civil actions in the Central District of California, United States v. $1,546,076.035 

In Bank Funds Seized from Republic Bank of Arizona Acct 1189, et. al, No. 2:18-cv08420-RGK, PJW (C.D. Cal.) (Civil Forfeiture Action); and (3) ordering that the 

government execute and record the documents necessary to uncloud title to property that 

was used as security for Mr. Larkin’s release pending trial. 

A proposed order is being filed with this motion. 

I. Pertinent background.

James Larkin died on July 31, 2023, eight days before he was set to begin trial in 

this matter. (See Doc. 1655.) On August 4, the Court dismissed the superseding 

indictment against him. (Doc. 1675.) 

In addition to the charges against Mr. Larkin and the other named defendants, the 

Superseding Indictment alleged that many parcels of real property and accounts would be 

subject to criminal forfeiture. (See SI, Doc. 230 at 63–92 (Forfeiture Allegations One and 

Two)). Among the property/accounts listed, several relate solely to James Larkin and not 

to any other defendant. For the following property, the only basis for listing it in the 

Superseding Indictment is that the property is allegedly traceable to James Larkin: 

Real property listed in Forfeiture Allegations One and Two, ¶ 2.a: 

¶ 3: 1308 E. 56th Street, 2, Chicago, IL 60637 

¶ 4: 14 rue Saint Guillaume, Paris, France 75007 

¶ 16: 493 Zinfandel Lane, Saint Helena, CA 94574 

¶ 19. 5555 North Casa Blanca Drive, Paradise Valley, AZ 85253 

“[F]unds, securities, and/or other assets held in the following bank accounts,” 

listed in Forfeiture Allegations One and Two, ¶ 2.a: 

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¶ 11. Republic Bank of Arizona Account XXXX1889 

¶ 12. Republic Bank of Arizona Account XXXX2592 

¶ 13. Republic Bank of Arizona Account XXXX2500 

¶ 14. Republic Bank of Arizona Account XXXX1938 

¶ 15. Bank of America account XXXXXXXXXXXX8225 

¶ 16. Bank of America account XXXXXXXXXXXX7054 

¶ 24. Perkins Coie Brokerage Account XXXXXX7012 

¶ 25. Perkins Coie Liquid Assets xxxxxxxxx0012 

¶ 37. Republic Bank of Arizona Certificate of Deposit xxxxxx8103 

¶ 38. Republic Bank of Arizona Certificate of Deposit xxxxxx8162 

¶ 39. Republic Bank of Arizona Certificate of Deposit xxxxxx8189 

¶ 62. Acacia Conservation Fund Brokerage Account number x2020 (Ocotillo 

Family Trust) 

The government has listed all but two of these assets as in rem defendants in the 

Civil Forfeiture Action, identifying them as the “James Larkin Assets.”2 The Estate 

believes that two assets are listed in the Superseding Indictment only and not in the Civil 

Forfeiture Action: the property located in Paris, France (Real Property at 63, ¶ 2.a.4) and 

the Republic Bank of Arizona account X2500 (Id. at 64 ¶ 2.a.13). Most of the assets have 

been seized, including the X2500 account. 

Counsel for the Estate has asked the government to stipulate to the dismissal of 

these assets from the Superseding Indictment. The government has refused, asserting that 

it may still pursue these assets in the forfeiture phase of this criminal case, should there 

be convictions. (Doc. 1713 at 4.) 

Separate from the Superseding Indictment’s forfeiture allegations, the real 

property located at 5555 North Casa Blanca Dr., Paradise Valley, AZ 85253 (the 

“Paradise Valley Property”) was used as security for Mr. Larkin’s release pending trial. 

2 See Exhibit B, Consolidated Master Verified Complaint for Forfeiture in Civil Forfeiture 

Action at ¶¶ 17-29 & ¶¶ 177-190 (allegations against “James Larkin Assets”). 

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To facilitate its use as security, the property’s owner (the Ocotillo Family Trust) recorded 

two documents: a “Waiver of Homestead Exemption” and an “Agreement to Forfeit Real 

Property to Obtain a Defendant’s Release.” See Ex. C. Although the bond securing 

release has now been exonerated (Doc. 1736), the recorded documents are a potential 

cloud on the title to the Paradise Valley Property, requiring some action on the part of the 

government to ensure those documents no longer cloud title. 

II. Argument 

A. The doctrine of abatement applies to forfeiture proceedings and other 

financial penalties. 

A defendant’s death during a prosecution “abates . . . all proceedings in the 

prosecution from its inception.” Oberlin, 718 F.2d at 895. This longstanding principle 

applies to the entire prosecution, including any fines, and to criminal forfeiture 

proceedings. Id. at 895–96 (holding that criminal forfeiture proceedings are “essentially 

penal”, a “step in the criminal process,” and are therefore abated upon death of a 

defendant). That a defendant’s death may be by suicide does not alter this rule. Id. at 

896 (rejecting government’s argument that a defendant’s suicide caused a “waiver” of 

abatement). See also United States v. Logal, 106 F.3d 1547, 1552 (11th Cir. 1997) 

(restitution order abated after defendant’s suicide). 

This doctrine applies to the entire prosecution, including to fines and criminal 

forfeiture proceedings, which are “essentially penal”, a “step in the criminal process,” and 

are therefore abated upon death of a defendant. Id. at 896. As the government conceded 

in its recent Trial Brief regarding forfeiture proceedings, “[c]riminal forfeiture is imposed 

on a convicted defendant as part of sentencing.” (Doc. 1713 at 2.) 

The same goes for other financial penalties resulting from a conviction, such as 

fines and restitution. See United States v. Brooks, 872 F.3d 78, 89–91 (2d Cir. 2017) 

(conviction and restitution order are abated due to defendant’s death during his direct 

appeal); United States v. Est. of Parsons, 367 F.3d 409 (5th Cir. 2004) (en banc) (even 

criminal penalties already paid must be abated); United States v. Christopher, 273 F.3d 

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294, 297 (3d Cir. 2001);. See also Nelson v. Colorado, 581 U.S. 128 (2017) (holding that 

when a criminal conviction is vacated, due process requires that the state return all costs, 

fees, and restitution previously paid by the criminal defendant). 

B. To enforce the abatement, the forfeiture allegations must be 

dismissed. 

Given the doctrine of abatement, every potential consequence against James 

Larkin stemming from this prosecution must be resolved, not merely the dismissal of Mr. 

Larkin as a named defendant. Indeed, if Mr. Larkin were the only defendant named in 

the Superseding Indictment, then abatement would require the dismissal of the entire 

action—that is, an abatement of “the prosecution from its inception.” Oberlin, 718 F.2d 

at 895. Accordingly, the Court must also dismiss from the Superseding Indictment the 

government’s forfeiture allegations that list assets in which no defendant other than Mr. 

Larkin had any interest. Those properties are listed above and in the proposed order. 

The government has informed the Estate’s counsel that it will not agree to the 

dismissal of these allegations because the government may still seek criminal forfeiture 

of the decedent’s property. As it explains in its recent Trial Brief, the government posits 

that its forfeiture allegations should remain unchanged because it is theoretically possible

that one of the remaining criminal defendants has some unknown interest in Mr. Larkin’s 

assets, meaning that the government could still seek criminal forfeiture following another 

defendant’s conviction. (Doc. 1713 at 4 n.3 (asserting that dismissal of James Larkin 

“has no bearing on the assets alleged to be subject to forfeiture” because the government 

“may elect to seek to forfeit any interest that any convicted defendant may have in any 

property alleged in the SI, including any property owned in part by Larkin or his estate.”)) 

The government’s Trial Brief however, does not assert that it has any basis other 

than hypothetical speculation to believe any other defendant has any interest in the assets 

listed above. No other defendant filed a claim to any of these assets in the related Civil 

Forfeiture Action, and the government does not contend that any defendant has asserted 

such an interest. Ex. A, Declaration of Joseph Roth, ¶¶ 4-5. To the contrary, the 

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government has identified these real properties and accounts as “James Larkin Assets” 

only. Ex. B at ¶¶ 177-190. If James Larkin had never been a defendant, the government’s 

mere speculation could not have provided a good-faith basis to include his assets in the 

Superseding Indictment to begin with and such speculation cannot justify keeping them 

in the criminal action now. 

Allowing the government to proceed in the criminal case against property and 

assets belonging to Mr. Larkin’s estate would violate well established abatement law and 

criminal forfeiture law. As the government’s Trial Brief states, “[c]riminal forfeiture is 

an in personam remedy, in that it may be imposed after a criminal conviction and applies 

only to the property of the convicted defendant.” (Doc. 1713 at 3 (emphasis added)). 

An order of forfeiture directed to other property in which a defendant does not hold an 

interest would be invalid. E.g., United States v. Lucas, 986 F.3d 224, 229 (3d Cir. 2021) 

(admonishing the government that it “must turn square corners when it exercisesits power 

to confiscate private property”); United States v. Nava, 404 F.3d 1119, 1136–37 (9th Cir. 

2005) (ancillary hearing procedure cannot be used to forfeit legal interests of a third party, 

even if he is not innocent; government must file civil forfeiture case to forfeit third party’s 

interest); United States v. Totaro, 345 F.3d 989, 997 (8th Cir. 2003) (if criminal forfeiture 

reaches beyond the property of the defendant it would be in rem rather than in personam

and would improperly punish the third party owner); United States v. Grossi, 482 Fed. 

Appx. 252, 255, (9th Cir. 2012) (government could forfeit only defendant’s interest in 

the warehouse, not a third party’s); Rivera v. Carter, No. 2:09-CV-2435-FMC. 2009 WL 

8753486, *16-21 (C.D. Cal. July 31, 2009) (granting preliminary injunction enjoining 

government from seizing property bearing the collective membership mark of motorcycle 

club because government cannot forfeit mark of non-defendant club, even assuming that 

named defendant controlled the use of the mark). 

In sum, the government cannot maintain its criminal forfeiture efforts against Mr. 

Larkin’s assets based on theoretical claims that could be made by other defendants in 

third-party ancillary proceedings. The government has not produced and cannot produce 

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any evidence showing that any of the remaining criminal defendants hold an interest in 

any of the James Larkin Assets. 

If such hypothetical third-party claims are eventually made against some part of 

Mr. Larkin’s property, those claims can and will be resolved in the pending Civil 

Forfeiture Action in the Central District of California. Mr. Larkin’s assets, however, have 

no place in this criminal action. Under the doctrine of abatement, the allegations against 

Mr. Larkin—including the forfeiture allegations relating to him—must be dismissed. 

C. To enforce the abatement, Rule 41(g) requires the prompt release of 

assets belonging to James Larkin’s Estate that are not named as in rem

defendants in the Civil Forfeiture Action because the government has 

no other basis for retaining them. 

As noted above, most but not all of the Larkin-only assets listed in the forfeiture 

allegations are also in rem defendants in the Civil Forfeiture Action. At least two, 

however, are not: the Paris property and the Republic Bank of Arizona account number 

XXXX2500. The assets in the Republic Bank account have been seized. The 

Superseding Indictment is no longer a basis to maintain control over these assets and there 

is no other legal basis for retaining them. Thus, to fully abate the prosecution, the Court 

must order the government to promptly release any assets alleged to be subject to 

forfeiture in 18-cr-00422 but not named in the Civil Forfeiture Action, including the Paris 

property and the funds seized from the Republic Bank of Arizona account number 

XXXX2500. The assets should be released and (where seized) returned to the Estate, 

through its Personal Representative/Executor (Margaret Larkin). 

This form of relief is required under Rule 41(g), the typical procedural vehicle for 

the return of a defendant’s property at the conclusion of a criminal case, as is the case for 

Mr. Larkin. Indeed, in the Ninth Circuit such a motion will lie even if criminal 

proceedings are still “underway against the aggrieved property owner.” Omidi v. United 

States, 851 F.3d 859, 863 (9th Cir. 2017)). 

Here, Rule 41(g) requires return of the assets, as the government cannot carry its 

“burden of demonstrating that it has a legitimate reason to retain the property.” United 

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States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987) (“When the property in question 

is no longer needed for evidentiary purposes . . . the burden of proof changes. The person 

from whom the property is seized is presumed to have a right to its return, and the 

government has the burden of demonstrating that it has a legitimate reason to retain the 

property”); Bailey v. United States, 508 F.3d 736, 739 (5th Cir. 2007) (same). 

The government has not asserted an interest in these properties as part of the Civil 

Forfeiture Action. The statute of limitations to add new defendants to that action, filed in 

March 2018, has expired. 19 U.S.C. § 1621 (five-year statute of limitations). And as to 

the government’s suggestion that there may be some so-far-secret assertion of ownership 

by another defendant, counsel have found no case in which the government has even 

argued that it has a right to retain a deceased defendant’s property just in case some later 

hypothetical interest may be asserted. 

D. Finally, to enforce the abatement, the Court should order the 

government to record documents necessary to uncloud title to property 

previously used to secure the release of Mr. Larkin.

The Court previously exonerated the bond securing the release of Mr. Larkin. 

(Doc. 1736.) The security underlying the bond was the Paradise Valley Property. As 

described above, this involved the execution and recording of a “Waiver of Homestead 

Exemption” and an “Agreement to Forfeit Real Property to Obtain a Defendant’s 

Release.” See Ex. C. The recorded documents are a potential cloud on the title to the 

Paradise Valley Property. To fully abate the prosecution to its inception, the government 

must record a release of any security interest in the Paradise Valley Property.

III. Conclusion 

For the foregoing reasons, this Court should order the government to dismiss the 

forfeiture allegations relating to James Larkin (but not to other defendants); to release and 

return any properties to the Personal Representative of his Estate (Margaret Larkin) that 

are not named as defendants in Civil Forfeiture Action; and to execute and record 

documents necessary to uncloud the title to the Paradise Valley Property. 

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DATED this 13th day of October, 2023. 

OSBORN MALEDON, P.A. 

By s/ Timothy J. Eckstein

Timothy J. Eckstein 

Joseph N. Roth 

Sarah P. Lawson 

2929 North Central, 20th Floor 

Phoenix, Arizona 85012-2794 

Attorneys for the Estate of James Larkin 

10074716.1 

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