Asset forfeiture is the government seizure of an individual’s assets on suspicion that the assets are tainted by a connection to or are proceeds of criminal activity. Many people in California State & Nationwide lose rights to their property by wrongfully assuming that they have to face charges before forfeiture. However, this is untrue because the government can forfeit your property through civil or administrative forfeiture, which doesn’t require a conviction or filing criminal charges. At the Asset Forfeiture Attorney, we have highlighted how administrative forfeiture differs from civil forfeiture in this blog and how we can save your property from seizure.
What is Administrative Forfeiture?
Administrative forfeiture is a nonjudicial civil action that is inaugurated by government agencies like DOJ, DEA, IRS, and FBI. These agencies handle the matter internally without court litigation if no one contests the seizure.
What is Civil Forfeiture?
Civil forfeiture is a judicial action or lawsuit against the property where an individual is allowed to contest the seizure. The government doesn’t pursue a criminal action because, under this category of forfeiture, no criminal conviction is necessary to forfeit the property, unlike criminal forfeiture.
How is Administrative Forfeiture Different from Civil Forfeiture?
Civil and administrative forfeitures are unique because they don’t require a conviction for the seizure of assets to happen. Despite this similarity, the two are different in multiple ways. Some of the differences between the two include.
Differences in Assets Being Forfeited
Administrative and civil forfeitures are civil actions against property, and the owner of the property is considered a third party in the lawsuits. The property is the defendant, while the government agency doing the forfeiture is the plaintiff. Under California law, civil forfeiture applies when a party challenges the seizure of property worth not more than $25,000, and if the law enforcement has seized property whose value is more than $25,000. The assets in question include all personal property like cars, houses, and real estate.
In contrast, administrative forfeiture applies to forfeited property like:
- Cash from crime or corruption proceeds
- Bank accounts involved in the facilitation of illegal transactions
- Merchandise whose importation is outlawed
- Any vessel like a plane or yacht that is involved in moving illegal merchandise
- A structure that stores outlawed products or narcotics
- Computers or servers involved in the commission of a crime
- Items, devices or tools used to produce and distribute illegal imports
The objective of administrative forfeiture is to remove the tools, profits, or infrastructure used by a criminal enterprise to make it impossible to continue with normal operations. Take note that under this type of asset forfeiture, real estate or houses are excluded from personal property subject to forfeiture. In California, this form of seizure applies only if the individual assets in question are worth less than $25,000. In case they are more than 25,000 dollars, civil forfeiture is used. Under federal law, the value of property to be administratively forfeited must be less than $500,000.
Also, it’s critical to understand that assets that are subject to property forfeiture must be forfeited administratively unless under the following circumstances:
- Where there are multiple elements of personal property subject to civil forfeiture under the same law, same factual basis, joint owner, and the value of assets in question is more than $500,000, the assets should be forfeited in a single civil judicial action. Note that monetary instruments are not part of personal property in this case.
- Where the assets in question can be administratively or civilly forfeited, the forfeiture must happen in a single judicial action.
- If it appears the government is evading the strict timelines provided under administrative forfeiture, the forfeiture should happen through civil action.
- Where the United States attorney agrees with the forfeiting agency that the forfeiture should happen in a civil judicial action, an administrative forfeiture won’t occur.
- When the United States attorney says that administrative forfeiture should be suspended to allow criminal forfeiture.
Keep in mind that in both forfeitures, the property seized is sold through public auction and the sales deposited in Assets Forfeiture Funds (AFF). Even if it is a local or California agency that forfeitures the assets, the proceeds of the transaction are placed in the fund so that the federal government can get its share, and the rest goes to the local authorities to finance their activities.
Civil and administrative forfeitures begin when the state or federal government seizes a person’s property because it is connected or involved in crime or where the assets in question are proceeds of crime. The government then notifies all the parties with interest on the property about the pending forfeiture. If no one comes out to claim the ownership of the assets subject to forfeiture, the assets are forfeited administratively, without the government having to file a civil case with the district court. But if someone comes out to claim the property or when the assets don’t fall under the category of properties forfeited administratively, civil forfeiture is used.
In administrative forfeiture proceedings, there are strict timelines that one must adhere to. Before the passage of CAFRA by congress, the law allowed the government to register an administrative forfeiture without providing a timeframe. However, CAFRA provided a timeline for this nonjudicial forfeiture later. As per the current CAFRA laws, the government should send a notice to the interested parties in no more than 60 days. The announcement of the forfeiture should appear after a week for three successive weeks in a paper that is popular in the jurisdiction where the seized asset is situated. If the price of the assets or property seized doesn’t exceed one thousand dollars, the notice can be placed in a public place like a district court near the location of the seized asset.
The information that must be contained in the announcement includes:
- The name of the presiding official, the notifying government body, the street, and the physical address of the party to receive the petition and the number that will help identify the assets.
- A comprehensive portrayal of the seized assets
- Time, location and the reason for seizing the property
- Provisions of the law that have been violated
- And a description of the privileges that will help interested individuals to register a claim against the assets.
Note that the timeline can be extended under adoptive forfeiture to 90 days. If the notice doesn’t meet the above guidelines and deadline, and the court denies them an extension, the property returns to the owner.
The claimant will have 35 days after the notice letter is received to register motion. In case the announcement of proposed forfeiture doesn’t get to the interested parties, they are allowed a 30 days window after the last day of publishing the notice to register a claim. A claim is made under oath and is subject to penalties for perjury, where a claimant gives false information.
If no one files a claim within the stipulated period, the government issues a forfeiture declaration under administrative forfeiture. The declaration forfeiture is in written form, and it usually goes to all parties whose identity or rights on the forfeited assets is easily verifiable. Some of the information that must is contained in the announcement include:
- A report of the forfeited property
- A declaration including time, place and the cause of forfeiture
- Provisions of the statutes violated
- A mention of the proposed forfeiture and an account of the date and the fashion the advertisement was conducted.
- The declaration must also mention that an answer to the announcement wasn’t received promptly by the pertinent official, an indication that the claimant admitted to the allegations mentioned in the advertisement.
- Finally, there must be a directive of forfeiture by the state or federal government to dispose of the assets based on provisions of the law.
Luckily, CAFRA established a mechanism in which a claimant can register a motion with the district court to have the administrative forfeiture set aside in case it didn’t provide notice of the proceedings. If you file the claim, administrative forfeiture will be set aside, and the case goes to the country’s attorney office where the process of civil forfeiture begins.
Civil forfeiture proceeding, on the other hand, begins when a claimant responds to an administrative forfeiture or when the government has substantial evidence to link the property with criminal activity. The proceedings follow a similar process with administrative forfeiture, which involves notifying the potential claimant who then files a response within one month. When the property owner files a claim, he or she gets a date in court where the government presents its evidence to prove the assets are forfeitable by a preponderance of evidence standard.
In the trial, the plaintiff must prove to the prosecutor specific elements for civil forfeiture to happen in California because the government carries the burden of proof. These elements include:
- The assets or property was used to commit a crime or was bought by the proceeds of criminal activity.
- The claimant or asset owner was aware that the property was being used to engage in criminal activity and agreed to it or didn’t try to stop it.
If the government agency succeeds in proving these elements, the property will be forfeited through civil action, and you will lose your property.
When you compare the two proceedings, the main procedural difference is that civil forfeiture happens through court, while the administrative forfeiture occurs internally within the government agency. In administrative forfeiture, the relevant government agency receives the petition and evaluates its merits to decide if to forfeit the property or not. But with civil judicial forfeiture, although there is no conviction required, the court listens to the proof by the government and claimant to decide if the forfeiture should happen or not.
Contesting Administrative and Civil Forfeiture
The process of challenging these two proceedings is also different. In administrative forfeiture, after receiving a notification about the proposed forfeiture, a claimant should reply to the notice with a reduction or mitigation. The motion must occur under oath, and it is subject to perjury penalties. In the petition, you must capture the ensuing information:
- Name of the claimant or property owner, address and taxpayer identification number
- The name of the notifying authority
- When and where the seizure happened
- The number for identifying the seized assets
- A detailed account of the confiscated assets
- An explanation of the claimant’s interest in the property and it should be supported by documented evidence.
Once a claimant is sure that the petition meets the above requirements, the next step is submitting the appeal to the agency which you are required to send the petition to. Commercial delivery services or postal services within the country can file the petition.
Also, a claimant must submit the mitigation response within the days postulated in the poster. The date when the notifying agency acknowledges the petition is considered as the date of filing. Remember that if the appeal is filed late, administrative forfeiture allows the government to forfeit the property. Once the agency receives the petition, it refers the issue to the DOJ where the proceeding is initiated.
If the mitigation is successful, the notifying body will review the evidence of the motion and formulate an on-paper report containing the outcome of their inquiry. The agency then submits this statement to the presiding official.
Once the report is received from the notifying agency, the presiding official will evaluate their findings and decide whether to grant or deny the mitigation.
When your petition is granted, the presiding official writes his or her decision. The ruling usually contains the standings of you as the claimant will follow to get the seized property back. The decision will also include the procedures you will need to follow to regain property rights. The decision can either be mailed to your or your asset forfeiture attorney.
When remission is denied, you will receive an inscribed print of the decision and the reason for being denied the petition. Claimants should present a request for reexamination of the disavowal if they are not satisfied with the decision.
When it comes to civil forfeiture proceedings, things are different because the matter is handled in court. After the seizing government body has presented its evidence, the burden of proof shifts to you as the claimant, and you must demonstrate that the property that was seized was not used to facilitate crime, nor is it a purchase from the proceeds of criminal activity. If someone else was using your assets for illegal activity, you have to prove that you did not consent to the unlawful use. You are required to show that the property is untainted by the connection to a crime. The defense is called an innocent owner.
The definition of an innocent owner under California and federal statutes is the same. The only difference is that the burden of proof shifts to the plaintiff under state laws, but under federal, the preponderance of evidence remains with the notifying government institution.
An innocent owner is one who either wasn’t aware of the conduct that resulted in the forfeiture or upon learning the property was being used in the commissioning of a crime and did everything possible to terminate the usage.
Take note that the court will not accept innocent owner defense where they suspect the claimant opted to remain ignorant about the conduct that resulted in the forfeiture. This is called willful blindness, and the purported innocent owner is not entitled to innocent owner defense. The reason being, the claimant was aware of the criminal conduct, although he or she has not been linked directly to the crime that led to the civil forfeiture.
But if there is no willful owner blindness, the court is likely to grant you the innocent owner defense, which means your property will not be forfeited. Keep in mind that the innocent owner defense has different definitions under the old and new law. For this reason, if the more modern law favors you in your argument, you should consider using it. Not very many Californians understand the old and new asset forfeiture laws. You will need an asset forfeiture lawyer for representation because they know The Rule of Lenity.
The Bottom Line
Civil and administrative forfeiture differ in terms of assets seized because administrative forfeiture doesn’t involve real property like households or real estate. Also, the process of contesting the charges is different because in administrative forfeiture, the notifying agency is the one that reviews the petition, and the presiding officer makes the decision. In civil forfeiture, the evidence is presented before the court by both sides, and the judge gives a verdict. The process of contesting the forfeiture in the two proceedings is also different.
One common thing about the two proceedings is that you will need legal advice. In administrative forfeiture, the attorney will help not to jeopardize the change to challenge or appeal the administrative decision. Under civil forfeiture, an attorney will protect you from making mistakes that will deny a claim, like giving the wrong address or late filing of a motion. An experienced attorney will also know how best to use the innocent owner defense for a favorable decision.
Find the Right Asset Forfeiture Attorney Near Me
Both administrative and civil forfeitures can result in loss of property. If you receive a notice of proposed forfeiture, reach out to the Assert Forfeiture Attorney at 888-571-5590 for a free consultation. Our attorneys will help people in California State & Nationwide recover seized assets or property from the government.