Many individuals believe that the government requires a conviction to seize your money or property linked to criminal activity. However, they can seize property without a conviction through civil or administrative forfeiture. Only a criminal forfeiture requires a guilty verdict for a seizure. If federal or state authorities attempt to seize your property or money, the ensuing asset forfeiture process can take various forms, depending on the type of forfeiture. Understanding the three types of forfeiture is crucial in mounting a solid defense to retain your property.

A Quick Glance at Asset Forfeiture

Assert forfeiture is a powerful legal weapon used by authorities to assume ownership of property obtained through criminal activity or one utilized to commit a crime. Governments, both federal and state, use the tool against criminals and criminal entities to deny the proceeds of crime. By confiscating proceeds of or property used in crime, authorities send the message that crime does not pay, deter crime, and incapacitate criminal entities.

However, the power to seize property linked to crime has its limits. Congress and the courts establish safeguards intended to protect the owners of confiscated property and ensure due process is followed. Under federal statutes, forfeiture may occur after a civil, administrative, or criminal proceeding. The prosecutor lodges a charge against an asset associated with crime, but not you, the owner. The evidentiary standard in an asset forfeiture proceeding is less than that of criminal cases. The prosecutor has to prove, with a preponderance of the evidence (more likely than not), that money or an asset is associated with the crime as a product of, or used to commit, the crime.

Asset seizure by law enforcement can happen after a criminal allegation. However, the forfeiture occurs after the prosecutor secures a guilty verdict in your criminal case. Seizing a property or asset entails:

  • Assuming physical possession of the asset
  • Ask a broker or bank to freeze an account linked to a crime to prevent withdrawals or transfers.
  • Record a forfeiture notice against your real property to prevent mortgaging, transferring, or selling.

A seizure deprives you of all ownership rights to an asset. The only way to regain control is through a court ruling against the forfeiture application, ordering the return of the property, or by clearing the asset of any wrongdoing in a criminal hearing.

There are three types of asset forfeiture under federal statutes, each playing a unique role under a distinct legal framework. They include:

Criminal Asset Forfeiture

Also called personam action, a criminal forfeiture is leveled against you, the property owner, and not the property. However, the indictment lodged against you for your crime includes the property associated with the criminal activity. It is part of the criminal prosecution and occurs after you have been found guilty of a crime. A criminal forfeiture is usually part of the criminal sentence.

Criminal Forfeiture Process

When the indictment is filed against you, it includes a forfeiture notice from the government, showing their intent to forfeit any of your properties associated with the crime you are charged with. So, your property is on the line from the moment you face a charge. If you are convicted, the court will include forfeiture as part of the sentence. The prosecutor must demonstrate that it is more likely than not that the property in question is linked to your crime before it is seized. While this is a lower evidentiary standard, the court will deny the forfeiture if it is not fulfilled.

The forfeiture process only focuses on your equity or interest in a property linked to crime, including money generated from the criminal activity. Also, it is restricted to the property linked to the crime you have been convicted of and for which the government committed their intent to forfeit through a forfeiture notice at the start of the court case. You will forfeit any property.

Third-Party Claims

Not all property seized during a crime arrest belongs to the arrestee. If a third party has an interest or equity in an asset linked to a crime you have been convicted of, the presiding judge must schedule an ancillary hearing to settle the ownership matter before the government takes the property. However, these third parties must file a timely petition asserting an interest in the seized property either early in the case or immediately after the property is linked to a crime. In the ancillary hearing, the petitioner must prove that the seized asset has no link to the alleged crime, or that they lacked knowledge of its association with criminal activity when they made the purchase. If they had a superior interest before the crime or purchased it in good faith, the court will restore control.

Why You Need an Asset Forfeiture Attorney

The assets forfeited in criminal forfeitures go to the law enforcement involved in the arrest and subsequent seizure. The proceeds from the forfeiture fund their budgets, which motivates them to seize assets and try to link them to a crime, even where there is no clear relationship between the property and the criminal violation. So, as you fight the criminal charges to prevent a conviction, you must partner with an asset forfeiture attorney to contest the alleged relationship.

The prosecutor must establish, by a preponderance of the evidence, the relationship between the crime and the assault. So, the role of an asset forfeiture is to challenge the prosecutor’s evidence to show the property was not used to commit a crime or acquired using money from the crime for which you are charged. Additionally, the attorney can introduce third-party claims on the property and argue against forfeiture in the ancillary proceeding.

Types of Property Linked to Criminal Forfeiture

The crimes whose conviction comes with asset forfeiture as part of the sentence include theft, drug crimes, and fraud. If you face any of these charges, some of your assets that risk forfeiture include:

  • The proceeds or earnings from the crime
  • Contraband
  • Crime instrumentalities

Crime proceeds are money or property that the government can trace back to the crime. Unfortunately, due to their interest in the property forfeiture, authorities categorize all your wealth, property, and money as proceeds of crime, as they allege criminal activity is your primary source of income. Sometimes, even the money in your car during a traffic stop can be seized in connection with your violation. Other examples of crime proceeds include:

  • Real property
  • Dividends
  • Interests
  • Vehicles
  • Income
  • Cash

Conversely, contraband is any intrinsically unlawful asset. It includes:

  • Smuggled firearms
  • Stolen property
  • Drugs

Lastly, crime instrumentalities are any tools used to commit a crime. It could be the care you are transporting drugs in, or the house where the drugs are manufactured or stored. Even if the court finds the charges against you as untrue and drops the case, instrumentalities will still be seized and forfeited if the government can show a link between them and the crime.

Civil Asset Forfeiture

Civil forfeiture is a mechanism administered through a judicial process against property (an in rem action). It does not require a criminal conviction, which has a higher evidentiary standard than civil cases, as the crime is not filed against the property owner but against the property itself. Because the prosecutor is not required to prove the defendant is guilty for forfeiture to occur, civil forfeiture is very common. However, the prosecutor should show it is more likely than not that the property is not associated with a crime.

  1. The Civil Forfeiture Process

A civil forfeiture begins when the government files a proposed forfeiture notice with a civil court. The notice must be posted in a newspaper in circulation for at least three weeks or on the official website of the government agency proposing the forfeiture for 30 or more days. You and other parties with a verifiable interest in the property are then served with the notice. If you file a claim for the property within 30 days of service, the court will schedule a judicial proceeding.

In the hearing, the government must demonstrate why the property was confiscated. The elements that the prosecutor should demonstrate are:

  • The property is an asset derived from crime
  • The property is used to commit a crime
  • Every individual with a claim to the property was aware that it had been used to commit a crime and agreed to it.

If you have a claim on the seized property, you must prove you are a good-faith purchaser or owner or that you owned the property before it was linked to a crime.

  1. Controversies Surrounding Civil Forfeiture

The fact that the government can confiscate your property without a crime charge or conviction makes civil forfeiture controversial. Law enforcement can use the legal tool when a crime has been committed, but there is no evidence to convict the property owner. It means property owners can lose their property without legal protection. However, retaining a competent asset forfeiture attorney can improve your chances of regaining control of the property. Your attorney will guide you through the forfeiture process and defend against the civil action for a fair verdict.

  1. Civil Forfeiture Application

Instances when the government utilizes civil forfeiture include:

  • When property is worth at least $500,000
  • Where real property is linked to crime
  • A deceased, unidentified, or fugitive property owner

Lastly, the government uses this tool when the property in question is located abroad or when there is insufficient evidence to secure a conviction in a criminal trial.

Administrative Forfeiture

An administrative asset forfeiture is a non-judicial process that allows a government agency to seize property associated with crime and forfeit it without involving the court. The government handles the matter internally, but it must follow certain legal processes and oversight. During the administrative proceeding, the government entity shows that there was probable cause to seize and forfeit the property. With no litigation involved, you must act quickly by hiring an attorney to guide and represent you in the administrative process to prevent property forfeiture.

Administrative Forfeiture Process

The process starts with the seizing government entity publishing a forfeiture notice in a local newspaper once a week for at least 3 weeks or on its official website for 30 or more consecutive days, unless the property is worth less than $1,000. Also, the seizing entity must serve you, the property owner, and other interested parties with the notice so that you can submit a timely written claim. If you do not file the claim within 30 days, your asset will be forfeited. However, when you submit the claim on time, you will stop the forfeiture until your case is heard.

Losing your property to the government permanently can be traumatizing and can diminish the financial capability you need to fight an ongoing criminal case. Therefore, you should work tirelessly to prevent an administrative forfeiture. Hire a competent attorney to evaluate the notice and file a claim on time to retain the right to defend yourself.

Contesting an Administrative Forfeiture

Do not permanently lose your property to the government without a fight. Your attorney should submit a written remission petition under oath. The petition must outline:

  • Your identifying information
  • The location and date of the forfeiture
  • Name of the seizing authority
  • Identifying information of the seized property, including the serial number
  • A detailed explanation of the seized asset
  • Provide sufficient detailed paperwork about your interest in the asset

Submitting inaccurate or false information can attract criminal charges and possible conviction.

Once you satisfy the qualifying requirements, the next step is to submit your petition to the agency that seized your property. When the government receives the petition, they will review your strong arguments, the seizing entity will make a decision, and, if the petition is successful, they will prepare a written report explaining their decision. You will receive the terms and conditions of releasing the property or restoring ownership.

However, if the verdict is unfavorable, you can request a reconsideration within ten days of the administrative decision. Review the reasons for the remission petition denial and then submit the same information or evidence to prove that the officials erred in their decision and that you need the agency to reconsider their decision.

Find a Competent Asset Forfeiture Legal Representative Near Me

If your property has been seized, the seizing government entity can abuse its power to permanently take away control or ownership of a property, whether or not you are guilty of a crime. While criminal and civil forfeitures are judicial processes that allow property owners to defend their property, administrative forfeiture is non-judicial. It can implicate your Fourth Amendment rights to own property.

At Asset Forfeiture Attorney, we can defend your property if it is threatened by any type of forfeiture to prevent the trauma and distress of permanently losing property, especially when you are not guilty of a crime. Call us at 888-571-5590 to review your case in California and Nationwide.