Most individuals facing charges are worried about fines, incarceration, and other penalties of a conviction. However, it can be a surprise when the government takes property in connection to the alleged crime. If your money or assets have been subject to criminal asset forfeiture, it is essential to consult with the legal experts at the Asset Forfeiture Attorney. We can prove that the property should be returned to you on numerous grounds or why the criminal case should be dismissed or acquitted.
Understanding What Asset Forfeiture Is
Asset forfeiture occurs when a government agency ceases an individual's asset because the government thinks it was acquired through criminal activity or used to commit an offense.
The forfeiture could only happen after civil proceedings.
A proceeding is a litigation where the government brings against the asset it wishes to cease. In this case, the asset is the accused, not the property owner.
To acquire the asset, the government should prove that:
- Based on the preponderance of the evidence
- Your property is linked to the crime
The preponderance of the evidence is a low standard of proof compared to beyond any reasonable doubt that is used in most criminal cases.
More often than not, the asset owner is already found guilty of an offense before their asset is taken. However, sometimes a forfeiture could occur without discovering that:
- You engaged in criminal activity
- The crime was committed
For instance, police officers take a firearm from you after arresting you for a gun's negligent discharge. The police might keep the weapon and take its ownership. However, they might only lawfully do so if they name your firearm in the case. Then the prosecution will have to establish during the trial that the gun was related to the crime.
Although the police cease the firearm before the accused is found guilty, they can forfeit the gun until the defendant is sentenced.
The law allows prosecutors and police officers to seize a wide range of property, including:
- Weapons involved in assault with a deadly weapon offense
- Computer or telecommunications equipment used to engage in a computer offense like internet fraud
- Property interest obtained through a pattern of criminal profiteering activity
- Controlled substances or building, land, or machinery used to make the drugs
- Machines used to violate the law such as a machine used to make fake trademarks
- A motor vehicle used to violate laws like transporting stolen assets
- Animals, if you are sentenced for animal abuse and cruelty
Why You Need a Asset Forfeiture Attorney in Recovering the Forfeited Assets
If police officers confiscate your money or asset and you have challenges recovering it or have been accused of an offense, you should immediately consult with an experienced lawyer. If the police think that you committed the criminal conduct, almost everything pertinent to your case will be seized.
Discussed in the sections below is how your attorney can help you recover your property:
Guide You After Receiving a Notice of Forfeiture
In a federal case, you'll obtain a Notice of Forfeiture from the Drug Enforcement Administration or Federal Bureau of Investigation. The notice explains the process. However, it can be confusing.
To have a right to a hearing in a court of law to protect your property, you have to bring an Administrative Claim in time and post a cost bond. Forfeiture for breaking the United States Customs laws will need you to pay a cost bond of ten percent of the asset's value when you submit the claim. Cost bonds are different from the bail bond because you do not need a bonds agent, and the asset won't get released awaiting trial.
You have thirty-five days after getting your notice to bring your claim. Your attorney should ensure you file the notice in time. The claim should be sworn to under penalty of perjury, show your interests in the asset, and indicate that your claim isn't frivolous.
After filing your cost bond and claim, the U.S Attorney's Office will review your case. If the Attorney's Office decides to proceed with the asset forfeiture, it will bring a case in the United States District Court. You will also be given a complaint. The government agency has ninety days after getting the administrative claim to bring a forfeiture action.
After receiving the complaint, you've thirty days to submit a verified claim. The verified claim states your interests in your property. It is different from an administrative claim. After filing the verified claim, you should file your answer within twenty days. The answer indicates whether you deny, admit, or do not have adequate information to deny or admit the allegation in your complaint. Then your attorney should help you outline your defenses.
Additionally, an experienced attorney should guide you on what to say in all documents you bring. Anything you do or say could work against you in tax or criminal proceedings. If you've a pending case, make sure you consult with an attorney before answering questions that might be incriminating.
A defendant could declare the Fifth Amendment when answering questions at the same time they have their forfeiture case but will experience challenges defending their forfeiture case should they take the Fifth at all. The most practical thing to do when you've both civil forfeiture and criminal cases is to resolve the criminal case first.
Search For and Take Advantage of Mistakes Made by the Government Lawyers
Your success could depend on the attorney's response when a government agency fails to respond timely. For instance, per federal laws, the government should provide a notice of forfeiture 60 days from the date your asset was confiscated. Should the government fail to satisfy the deadline, your forfeiture attorney should bring a motion for the return of the asset per Rule 41(g) of the Federal Rules of Criminal Procedures before the government brings a complaint. The motion will prevail if you can prove that the asset was obtained unlawfully or detained for long in violation of the constitution or statutory deadlines.
Moreover, your attorney could identify evidence that is inadmissible (proof that the prosecution is not permitted to present) during trial preparation. The attorney will contact the prosecutor before the trial and make sure the prosecutor will not adduce or lead the proof.
Develop Affirmative Defenses
Your attorney will come up with the following weapons to fight the government's allegations. It is reached after analyzing the collected case facts and creating a defense theory that encapsulates your version of the story and addresses all doubts and questions the prosecutor is likely to raise. Any experienced attorney will use a team approach when developing defenses; brainstorming, researching, and thinking outside the box resulting in innovative and effective defense strategies.
The attorney should contest the probable cause or rationale for the seizure by bringing evidence suppression motion arguing that the government agency did not have enough reasons to take the property when the property was seized. The law enforcers who took your asset should prove that they had reliable details that your property was linked to a crime.
In case the probable cause isn't viable or fails, your attorney should present evidence to the court that the property or money involved originated from a legal source.
The forfeiture lawyer will have the upper hand and a strong case if:
- The probable cause of the government is nonexistent or weak, or
- You have evidence that money or property originated from lawful sources.
If the claims are available, your attorney should negotiate and realize a case dismissal and return of your asset without litigation.
There are numerous affirmative defenses that your knowledgeable and seasoned asset forfeiture attorney could use. They include:
Unreasonable Delay Response
There is a limited period as far as the government agency holding your asset without taking your case to court is concerned. If this delay is extended, it can be hard for you to fight for your hard-earning property. At that point, you should bring the case yourself. Your attorney can then leverage the delay and use it as a defense to have the asset forfeiture case dropped. Moreover, the attorney could use the argument to establish that the seizing authority doesn't have adequate proof to link the seized asset to the offense.
Innocent Owner Defense
Innocent owner defense is viable in almost all asset forfeiture cases to innocent owners. However, the owners should establish possession of the confiscated asset and prove that they weren't aware of the crime or didn't give permission to the illegitimate use of the asset.
The term "innocent owner" means an owner who didn't know about the act resulting in the forfeiture or after discovering the criminal activity did all that reasonably could terminate the use of the asset under the given circumstances.
In 1996, the U.S. Supreme Court held that owners of seized assets didn't have the right to this affirmative defense in asset forfeiture cases. The court will not take it as legal defense if a concern of willful blindness exists (if you decided to be ignorant as far as the commission of the crime in connection with your asset is concerned). Assume you received numerous bank transfers worth six hundred and thirty thousand dollars in your bank account from a firm you have never dealt with. The transfer was one of the DEA's investigations to get drug-trafficking and money-laundering rings. Although you were not involved in the crime, you are not innocent because you did not inquire about the origin of the money.
The court will be willing to grant you the innocent owner defense if you ended a business relationship immediately you discovered your partner was investing embezzled money.
Unreasonable Fine (Disproportionality)
The law protects defendants from being left entirely helpless as a result of the property seizure. Therefore, it means the government can't subject you to unreasonable fines. Acting so can be considered as violating the law and your constitutional rights. If you are asked to pay unjustified penalties, your attorney should use this defense in court. If your counsel argues the point well, your criminal charge could be dropped, and the confiscated asset returned.
However, the effectiveness of disproportionality as defense varies depending on the circumstances. Per the Fourth Circuit, in many cases, the court will finally win a forfeiture of proceeds not grossly disproportionate to the alleged crime. The rationale behind the reasoning is that the statute is already restricting civil asset forfeitures to properties linked to the commission of the crime. Often proportionality arguments come into play in situations where culpability has been apportioned among many defendants. In this case, the notion is that the alleged offense's property might not be sufficient to warrant complete forfeiture.
More and additional defenses can be used under specific state and federal statute used by the property seizing authority. For instance, there are bank accounts that are exempted from federal or state forfeiture. Should the government take money from the account, your lawyer could bring the court's attention to the matter's nature and have your money returned.
Illegal Search and Property Seizure
A legal document should be issued before confiscating private property. It serves as proof that the government knows of the search and has authorized forfeiture. A judge should sign the document and provide it with adequate evidence that links the asset to unlawful conduct.
Your attorney should conduct a thorough investigation. If there isn't a connection between the criminal activity and the property, your attorney should establish it and have your charges dropped. Moreover, if no papers were issued at the time of seizure, then that could be a good reason to have your charges dropped.
Help You Know What to Expect
A forfeiture case can take months or even years to resolve. Therefore, it is vital to expect an extended haul. An experienced attorney should help you appreciate that the case can be expensive. That way, you can budget wisely. Should you run out of money, you might represent yourself and ultimately lose the case.
One of the advantages of hiring a defense lawyer is the provision of confidence. You can get answers about the case from the attorney. That way, you can plan accordingly about your future, given their understanding of how they expect the forfeiture case will end and experience.
Present Evidence Professionally
The rule of evidence is complicated. For instance, during a court proceeding, an unrepresented person might ask questions that don't adhere to the evidence. Their analysis of witnesses is then met with objection and interruption from the prosecution leading to a court ruling that they can't proceed with that line of questioning.
A seasoned criminal defense attorney knows what questions to ask and how to frame them. The attorney could also present arguments about why a given line of questioning is necessary and ought to be permitted. Moreover, the lawyer will have a plan for interviewing witnesses, which could change your case's outcome.
Offer Professionally Advice
When you hire an attorney to represent you, the professional is working on your behalf to fight for your rights. That means you can consult with the legal expert about any action you consider taking that you are uncertain of how it will affect your asset forfeiture case. Although it might not look like a big deal immediately, you will discover their advice throughout the case is irreplaceable because of how it simplifies complicated questions.
Engage Expert Witnesses to Fight the Criminal Case
Expert witnesses can be engaged to refute the prosecution or law enforcement evidence and strengthen your case.
Evidence like gunshot residues, fingerprints, or blood spattering could prove that neither you nor the seized asset was used in criminal activity. The expert witness can also highlight:
- Reasonable doubt about your identity
- Misconceptions or assumptions in the prosecutor's case
- False/questionable statements presented by the prosecutor
Prepare the Necessary Paperwork and Evidence
Once you have identified all the necessary documents and physical evidence that you plan to file, your lawyer should prepare them for trial. Organizing the papers will help you remain calm and relaxed in court.
An experienced attorney will ensure you have brought the following to court:
- Copies of all legal papers that you have either received, sent, or filed
- A summary of the case facts
- A notebook and pen
- Evidence like reports or photographs
Make copies for yourself and the other side. Do not give the judge the original copies unless they request you to do so.
Finally, make sure your outfit presents the best image to the court. It should show that you respect the courtroom and are taking the case seriously.
Find an Asset Forfeiture Attorney Near Me
In an asset forfeiture action, there is a legal presumption that the property or money in your possession originated from an offense's illegal proceeds unless you prove otherwise. Additionally, even when the criminal charges against you were dismissed, the property might not be returned without legal action. Asset Forfeiture Attorney represents clients in both state and federal courts. We understand how the law affects forfeiture and has experience in criminal cases. Call us today at 888-571-5590 to schedule an initial consultation.