Confiscation of assets by states and federal authorities is a practice that has resulted in billions of dollars in property seizures. Although initially meant to discourage criminal activity, this policy has also led to untold misery for countless people. If law enforcers have summarily seized your property on allegations of criminal activity, all is not entirely lost.
There are various legal channels you can employ to clear your name as well as have your property returned to you. Read on for an in-depth look into how Asset Forfeiture Attorney can help you.
Comparison between Civil and Criminal Forfeiture Trials
As you prepare to contest the seizure of your property, it’s essential that you understand some of the differences between these two types of asset forfeitures. Below are the most common:
- Civil forfeiture offers you more procedural rights compared to criminal forfeiture.
- Unless your primary residence is under threat of getting seized, civil forfeiture doesn’t guarantee you the right to a state-appointed counsel. Criminal forfeiture on the other hand grants you this right under the Criminal Justice Act (CJA).
- Because discovery is curtailed in federal criminal cases, it is harder for criminal forfeiture cases to be dismissed than for civil trials.
- Civil forfeitures are generally heard and concluded faster than criminal forfeiture trials. This is because the forfeiture aspect of criminal cases is determined after a conviction.
- With civil forfeiture cases, your right to a jury trial is guaranteed. The same cannot be said of criminal forfeiture trials.
- During a trial, the Federal Rules of Evidence are applicable in full for civil forfeiture cases, unlike in criminal forfeiture cases.
- A criminal conviction triggers criminal forfeiture. Civil forfeiture can occur even without you being charged with a crime, leave alone a conviction.
With a few exceptions such as the right to an appointed attorney and the requirement for a conviction, civil forfeiture offers you better protection.
Asset Forfeiture Appeal Process
If the state succeeds in seizing your property, you have the right to a pretrial hearing that will assess the validity of that seizure. This claim should be made 2 months before the scheduled start of the criminal trial related to the asset forfeiture.
As the claimant, you should file a motion showing the validity of your interest in the property. The motion will be heard within 30 days after its filing, after which the state shall file a counter motion explaining its reasons for seizing the property in question.
If the court has reason to believe that the final judgment in your criminal trial will result in the state to return your property, your motion will be granted. Your motion could also succeed if the court establishes that your seized property plays a considerable role in your ability to pay for legal representation.
The law grants you the right to a jury trial in your forfeiture case. The prosecution shall also be held together with the related criminal trial unless you move to separate the two cases. If you decide to have separate trials, both the prosecution and the defendant will have the right to introduce evidence that was previously not presented in the criminal trial.
If you didn’t waive the right to a jury trial in your forfeiture case, and a jury finds you guilty of the criminal offense related to the asset seizure, the court will introduce the aspect of the forfeiture to the jury as well.
Appealing a Civil Forfeiture
Due to the broad powers, law enforcement officers are granted, they can quickly seize your property under suspicion of being proceeds of crime. Although the law makes a presumption of innocence until proven guilty beyond reasonable doubt, in actual sense the burden of proof is placed on the claimant.
For you to have any chance of getting back your assets, you should prove to a court that they are neither proceeds of crime nor were they being used to commit criminal activities. If the government prevails after a civil forfeiture hearing, your property won’t be transferred to it immediately. The law provides a ten-day automatic stay after judgment.
During this period, you can use either file what is known as a supersedeas bond or petition to stay the judgment.
Also called an appeal bond, it refers to money that is provided by an appellant during the hearing of an appeal. It’s usually equivalent to or sometimes higher than the value determined by the lower court’s judgment. Appellate courts do not allow any new evidence. Instead, they only focus on issues that were in contention during the lower court trial.
Asset forfeiture appeals take a long time to conclude, sometimes going on for years. If a lower court had ordered you to pay a certain amount as judgment, you wouldn’t be compelled to do so until your appeal process is exhausted. Although this might come as a relief, you will also be required to cover any legal expenses out of your pocket.
Due to the possibility of you going bankrupt during the appeals process, you must post a surety bond before it can begin. This is also a sign of good faith that you don’t intend to waste the appellate court’s time.
Filing an Appeal after the Ten-Day Stay Period
If you fail to post a supersedeas bond or move to stay a judgment within ten days of an unfavorable ruling, the court may transfer your assets to the government without further notice to you. Filing an appeal after this fact may prove to be an uphill task.
Most courts refuse to hear these kinds of asset forfeiture appeals, arguing that transfer to the government ended theirs in rem jurisdiction. The government could also easily move your seized property to another jurisdiction where that particular district court has no power, hence using the “no res, no case” logic to deny you any chance of ever reclaiming it.
For these reasons, once judgment has been issued against you in a district court, you should move fast to start asset forfeiture appeals proceedings before the automatic 10 day stay period elapses.
Appealing a District Court Judgment
The federal rules of appellate procedure guide asset forfeiture appeals. Under the law, you have the right to file an appeal notice through the district clerk within 10 days of losing a trial. If another claimant from a separate but related trial is interested in appealing, you can file a notice of appeal jointly. If successful, you’ll both be recognized as one appellant. A joint appeal is desirable because it saves time and legal costs for both of you.
A notice of appeal should be as detailed as legally possible. It must clearly identify all the parties taking part in the appeal, specify the judgment for which an appeal is being filed, and name the court that will hear the appeal. If your spouse or children are parties to the case, a pro se notice of appeal is automatically deemed to have been filed on all of your behalf, unless it states otherwise.
Once a district clerk receives the notice of appeal, he or she must notify the counsels of all parties involved in the suit via mail, other than that of the appellant. If you’re a defendant and don’t have counsel, notice will be mailed to your last known address. The district clerk is also required to send a copy of the notice of appeal to the clerk serving in the court of appeals that is mentioned in the filing.
However, the failure of the district clerk to serve interested parties with the notice does not invalidate the appeal. So long as copies of the notice are mailed, it doesn’t matter whether the intended recipients actually get a hold of the documents.
Once you file a notice of appeal, you’ll be required to pay all the necessary fees to the district clerk, who will also receive and forward any fees intended for the court of appeal.
Stay or Injunction Pending Appeal
A motion for stay is initially filed in the district court. If you’re the appellant and your motion is successful, it will grant you the following relief:
- A stay of the district court’s order or judgment pending appeal.
- Acceptance of a bond provided by the defendant in order to secure an injunction or stay in judgment.
- An order in favor of an injunction pending an appeal
For this motion to be made in a court of appeal, the appellant must show that:
- It wouldn’t make sense to move it in a district court first
- It was denied by the district court. The reasons given by the lower court for denying it must be clearly stated.
Your motion must also include the reasons why you want the requested relief, both originals and copies of affidavits and sworn statements outlining the dispute, and any other relevant information. If you’re the one moving it, you must notify all parties involved in a reasonable manner.
Your motion must be filed at the circuit clerk’s office and will be assessed by a panel convened by the court. Its success might be based on whether you filed a bond with the district court.
Release in a Criminal Case
Since a criminal conviction triggers a criminal forfeiture, a release could be contested by the prosecution. If a defendant is released or detained before a judgment of conviction, the district court must give proper reasons for the order. The appellant must furnish the court of appeals with the order, as well as the district court’s reasons as soon as a notice of appeal is filed.
Asset forfeiture appeals courts then base their decisions on the papers and affidavits presented to them. It’s possible for the court of appeal to release the defendant pending the appeal disposition.
If a defendant is released after a judgment of conviction, the party filing a notice of appeal must include a copy of the judgment.
Record on Appeal
In asset forfeiture cases, the record is made up of the following items:
- The original documents presented in the lower court, as well as exhibits.
- Transcripts of proceedings
- Verified copy of docket entries as made by the district court’s clerk.
If you file an appeal on the basis that a finding is not corroborated by the evidence, you must incorporate a transcript of all evidence relevant to the case as part of the record. You must also pay the court reporter the cost of any transcripts used.
If transcripts of the district court’s trial are not available, you’re allowed to make a statement of the proceedings or evidence from the best alternative source. This includes your best recollection of events. The statement is then served to the appellee, who also has the right to serve an objection or propose amendments to it.
The final statement is then forwarded to the district court for assent. Once settled and approved, the district clerk must include it in the official record on appeal. An alternative to the record on appeal could be a statement prepared, signed and submitted to the district court by all parties to the case.
This statement shows how the problems meant to be addressed by the appeal arose. If the statement is determined to be truthful, the district court approves then certifies it to the higher appellate court. As the official record on appeal, the district clerk then sends the file to the court clerk.
Correction of the Record
During asset forfeiture appeals, conflicts may arise as to whether what is documented in the record on appeal is the true representation of what happened in the district court trial. These differences should be settled by that court and the record updated accordingly.
Any other inquiries regarding what is contained in the record should be submitted to the court of appeals.
Docketing the Appeal
To officially register your appeal with the appellate court, it should undergo the process of docketing. Once the circuit clerk receives a notice of appeal from the district court clerk, he or she files it under the title it had in the district court. The appellant is also identified and their name added if necessary.
Within 14 days of filing the notice, your attorney must submit a statement to the circuit clerk naming you and any other parties he represents in the appeal. Once a record, partial record or certificate is received from the district clerk, the circuit clerk should file it as soon as possible, and notify all interested parties of its filing date.
General Guidelines for Asset Forfeiture Appeals
If you ever file an appeal to a property forfeiture trial, you should remember some of these important guidelines:
- If your appeal is deemed to be frivolous or lacking in merit, it could make the process significantly more costly for you. The court may award damages to the appellee, but not without first giving you the chance to respond to the motion.
- The appellant’s brief must contain all the required information. This includes the case number, the court’s name, the case title, type of proceeding, parties involved in the appeal, and details of the appellant’s attorney.
- Unless otherwise agreed, if an appeal is dismissed or judgment affirmed, costs will be covered by the appellant. The appellee will cover the costs associated with a reversed judgment. If a judgment is partly affirmed or reversed, or modified, the court will decide on how the costs will be covered.
- If all parties to an appeal agree to voluntarily dismiss a case, it may be done either in the district court or in the court of appeals depending on what stage the process is at. If a circuit clerk hasn’t yet docketed an appeal, it may be dismissed at the district court after a stipulation filed by all parties is filed.
- Once docketed, the parties involved can submit a signed dismissal agreement to the circuit clerk. This should clearly spell out how costs are going to be shared, as well as pay any other fees that the court might require.
- Parties to an appeal may be substituted for various reasons. If one dies after the filing of a notice of appeal, the court may allow his personal representative to substitute him. The same procedure can be used to substitute parties for reasons other than death.
- Attorneys admitted to the bar of the court of appeals must be professionals of high moral standing.
Find an Asset Forfeiture Appeals Attorney Near Me
If you’re looking for an attorney with the above characteristics and more, then Asset Forfeiture Attorney is the answer to your legal problems. Other than aggressively fighting for your rights, Jacek Lentz will use his legal expertise to ensure the best possible outcome for your asset forfeiture trial.
With an enviable track record of recovering seized property in over 80% of cases, the Asset Forfeiture Attorney dramatically improves your legal prospects. His affordable services are also based on a contingent arrangement fee, meaning you only pay if you win. Call our asset forfeiture lawyer today on 888-571-5590 for a free and exhaustive consultation. We offer our services all over the US.