Each year in the United States, law enforcement agencies seize and forfeit assets worth hundreds of millions of dollars. Property that can be forfeited include vehicles, airplanes, boats, real estate, cash, and securities.In some ways, asset forfeiture is like a form of criminal penalty, but it’s often considered a civil penalty. Civil forfeiture laws allow law enforcement to seize assets they suspect are connected to criminal activities, even if the owner has not been charged with or convicted of a crime.The asset can become subject to forfeiture proceedings, in which the government will be seeking to keep the assets or their proceeds.
If law enforcement has custody of your property, you’re likely interested in getting it back. Read on to understand California’s forfeiture laws and how you can recover your assets.
Asset Forfeiture’s Underlying Potential for Abuse
Asset forfeiture laws create an avenue for law enforcement agencies to police for profit. This is because the agencies get to keep a fraction of the proceeds of assets they seize. In California, law enforcement agencies get 65% of asset forfeiture proceeds. This means that police officers and their employers stand to benefit from seizing as much property as they can, which creates a huge incentive for misconduct. Another practice known as “equitable sharing” worsens the situation. California laws provide good protections for individuals whose assets have been seized. But the equitable sharing rule allows police to make the law work in their favor by handing over seized property to federal law enforcement agencies. The property becomes subject to federal asset forfeiture laws, which are more stringent than California’s. In such cases, local and state agencies keep 80% of the proceeds of the assets after forfeiture, while the federal agencies keep the other20%.
Conviction Requirement for Asset Forfeiture
It undeniably makes sense for there to be a requirement for a conviction before a person’s assets could be forfeited. Otherwise, cops could seize and keep an innocent individual’s property so long as they believe that it is somehow connected to criminal activity. Under the Uniform Controlled Substance Act, California law requires that there be a conviction for some (but not all) asset forfeitures. This means that a person has to be convicted in a related or underlying criminal action before the seized property can be forfeited. Also, the underlying crime should have taken place within 5 years of the date of seizure or the date of the issuance of a forfeiture notice.
It’s worth noting that the defendant does not have to be convicted in order for the property to be seized. Instead, a conviction is required before the property can be forfeited i.e. before it becomes the property of the government, and the original owner cannot reclaim it. This requirement also applies in cases where the forfeiture is contested. As such, any person who has an interested in the seized property should move quickly to contest the forfeiture, or they lose the property forever, even if they’re never charged with or convicted or a crime themselves.
Instances Where Conviction is Not a Requirement
If the cops seize cash or items worth more than $25,000, the government may forfeit that money even if it never convicts anyone of a crime in connection with the money. But still, the government has to prove that the money was going to be used or came from illegal transactions. Instead of the government proving “beyond a reasonable doubt” that the money or items are connected to a crime, it only needs to prove by “clear and convincing” evidence that the asset was involved in a crime.
There’s an important exception to the conviction requirement before a real property vehicle, or money can be forfeited. If the defendant willfully fails to appear and reclaim the property, then the conviction requirement does not apply. And if this happens, the government will not be required to prove anything during forfeiture proceedings. Instead, it just has to make a “prima facie” case, which involves showing that the property is subject to forfeiture. This means that the government only needs to produce some basic evidence that the property is connected to a crime.
Procedures for Getting Your Seized Property Back
Whether you’re a criminal defendant or an innocent owner of a seized asset that is subject to forfeiture, you have rights that may help you recover your assets. Under California asset forfeiture law, there are certain procedures that the government has to follow before it can forfeit a property. But keep in mind that cops can seize and hold onto assets with minimal procedure.
If the seized property is worth $25,000 or less, the prosecutor has to:
- Give notice of forfeiture proceedings to all individuals whose names appear on the receipt of the property and everyone who has an ownership interest in the property. To find out who has an ownership interest in the assets, the prosecutor has to get records from federal agencies and DMV onboats, vehicles, and airplanes.
The notice of the forfeiture proceedings has to take a certain form. For every individual named in the receipt, the notice has to be given by service of process. But for other individuals who have anownership interest in the property, the notice has to be delivered in person or by registered mail. Also, the notice should include a description of the property, the date, and place where it was seized or the location of the property that is yet to be seized, the appraised value of the property, and the alleged illegal activity it is related to. The notice should also provide instruction and state time limits for filing and submitting a claim.
- Publish the notice in a general-circulation newspaper in the county where the seizure took place or where the property is located.
Filing a Claim for Seized Property
If you’re served with a notice of asset forfeiture for your property or you see the notice in the newspaper, your next step should be filing a claim. If you want to recover your assets, you need to move quickly because you only have 30 days of the day you receive the notice or the day it was first published in the newspaper. You can get a deadline extension from the court, but otherwise, missing the deadline means you’ll lose the chance to contest the forfeiture.
To file a claim, you need to fill Form MC-200, which is available on the California courts website.The form should be completed and filed in the court in the county where the charges were filed.And within 30 days after you file the form, you need to serve it on the prosecutor who initiated the forfeiture proceedings. It’s worth noting that you may be charged a fee to file a claim for property worth more than $5,000.
If No One Files a Claim
In an administrative forfeiture proceeding, if claims are not filed within the 30-day deadline, the property can be declared forfeited. In this case, the prosecutor only has to draft and sign a “declaration of forfeiture,” which will then be sent to all the individuals who received the initial notice. This is why it’s crucial not to miss the deadline if you want to stop forfeiture and recover your assets.It’s also important to ensure your claim is error-free, because improper filing may not be effective in preventing the property from being forfeited.
If Claims Are Filed by the Deadline
If one or more person files a claim before the 30-day deadline expires, then the state cannot forfeit the property through the administrative forfeiture procedure. Instead, the procedure will be converted to a court forfeiture. A court forfeiture begins when a “petition of forfeiture” is filed by the prosecutor in the county where the defendant has been charged with a crime or where the property is located or was seized. This petition has to be filed within one year of asset seizure. The process is similar to administrative forfeiture in that the prosecutor has to serve a notice to individuals named on the property receipt or those with an ownership interest or publish the notice in an area newspaper. However, if the notice was already sent to interested individuals, it’s not mandatory for the prosecutor to serve the notice to the same people after the process is converted to court forfeiture.
Elements that the Prosecutor has to Prove if the Forfeiture Goes to Trial
If you file a claim and your property is subject to a court forfeiture, the prosecutor has to prove to the jury that:
- The property was used in the commission or derived from crime and so satisfies the criteria for property subject to asset forfeiture, and
- The owners consented to the use of the property, with the knowledge that it was or would be used in an illegal manner that can lead to forfeiture.
These two things have to be proven beyond a reasonable doubt unless the property was cash or negotiable items worth more than $25,000. In that case, the prosecutor only needs to use clear and convincing evidence to prove the claims. It may not make total sense that you could find yourself in a trial arguing in front of a jury that you deserve to get your property back even if no charges have been filed against you. But this is commonplace due to California’s asset forfeiture laws.
Even if you’re charged with the underlying crime in California, forfeiture can add incredibly harsh penalties because it means you lose the property you may have worked hard to obtain- in addition to the standard criminal penalties.
Defenses to Asset Forfeiture
Criminal defendants and individuals who have interests in the seized property can raise several defenses to prevent the forfeiture of the property. This includes:
The Property Was Not Involved in a Criminal Activity
This is the main defense that property owners in asset forfeiture proceeding raise. They have to prove that the property was not used to help a criminal activity in any way. For example, a criminal defendant can claim that the boat seized from the harbor was not used in a drug-smuggling operation, although the defendant who ran the operation had access to the boat. Or, a person whose money was seized from his bank account can argue that the money was not the proceeds of his illegal transactions.
In essence, you need to prove the following in order to get your assets back:
- Your property did not help the criminal conduct
- You aren’t responsible for the alleged criminal conduct
- You did not benefit from the criminal conduct
- You did not know about the criminal activity
- You’re not holding the asset for the benefits of the accused defendant
Innocent Owner Defense
This is the most common defense to asset forfeiture and is potentially available in all forfeiture proceedings. The defense can be used by innocent third party owners of property seized before, during, and after the time of the underlying crime. An innocent owner who can prove ownership of the property, it can be easier to use this defense and show that he/she did not know or did not consent to the property’s illegal use. The owner can also use this defense to show that they bought the property, but it was seized before they could take possession. Or it’s possible that the police had seized the property but it was still sold to them. This defense is not always available because some statutes exclude innocent third party owners from being able to file a claim.
Illegal Search and Seizure
A property owner can defend asset forfeiture on ground that property was illegally confiscated because there was no reasonable or probable cause linking the property to illegal activities. Law enforcement must provide a legal document before searching or confiscating any private property. The document serves as proof that the state is aware of the search and has authorized seizure. The search warrant must be signed by a recognized judge.
Lack of Probable or Reasonable Cause
Before a property is forfeited, the prosecutor has to prove that the seized property, such as a vehicle or cash, is connected to a specific crime, such as drug manufacture and distribution. The state’s link between the asset and the crime has to be based on sufficient evidence existing at the time of the seizure. It’s not sufficient for the prosecutor to make arguments based on subjective intuitive speculations of the police or the fact that the property owner has a past criminal record. In essence, the evidence presented must sufficiently link the property to illegal conduct by showing that it was a tool with which the crime was committed or constituted proceeds from a crime.
Disproportional Fine Defense
The law protects citizens from being left utterly helpless due to asset forfeiture. This means a person can argue that forfeiture of certain assets constitutes a grossly disproportionate fine compared to the severity of the offense. And doing so would be regarded as unconstitutional and unjust. If this point is brought out well, the seized property can be returned.
Unreasonable Delay Defense
There is a limit as to how long the government can hold seized property without taking the case to court. An excessive delay can hinder the property owner’s ability to fight to recover their assets. In such a case, the asset owner can file a case him/herself, have the forfeiture case dismissed, and get a court order for the return of the property.
Filing an Appeal to Recover Your Assets after Forfeiture
If you lose your assets after a forfeiture hearing, your property won’t be transferred to the government immediately. Claimants have ten days to petition to stay the judgment or file a supersedeas (or appeal) bond. A supersedeas bond referred to money provided by the appellant to delay forfeiture until an appeal is over. The amount is usually equivalent to or higher than the value required by law or ordered by the court. It’s meant to show a person’s commitment to paying the judgment if he/she loses the case or to show that the appeal is not a mere tactic to delay or avoid payment.
If you do not post a supersedeas bond within 10 days of the unfavorable ruling, your assets may be transferred to the government without the court issuing a further notice to you. Also, missing the deadline can prove to be an uphill task, especially if the court argues that the property transfer ended in their rem jurisdiction. Also, the government could move the seized asset to another jurisdiction, thereby using the “no res, no case” logic to deny you the chance to ever getting it back. For these reasons, you should act fast to initiate asset forfeiture proceedings before the 10-day period elapses.
Find an Asset Forfeiture Attorney Near Me
Some victims of asset forfeiture try to handle their cases on their own, only to get bogged down by the costs, time, and effort needed to successfully petition the government for the return of their property. You need the assistance of an experienced attorney who will challenge the government’s procedure is keeping the property. At Asset Forfeiture Attorney, our legal team concentrates on protecting your property by establishing a separation between the property and the alleged criminal activity.