The most important advice we can provide you is to contact a knowledgeable asset forfeiture attorney as soon as possible. A skilled and reputable lawyer will help you understand and evaluate your case by, among other things, alerting you to key deadlines and considerations such as your overall chances of success. Our law firm provides free consultations and evaluations of your specific situation, in full confidentiality and without any obligation on your part.
The task of defending forfeiture cases often starts with educating prosecutors and judges about forfeiture laws. Forfeiture defense often fails at the outset when the defense attorneys fail in the task in making the courts appreciate the fact that there are (fortunately still) rules and laws which set limits to the government's greed for taking your property.
If you decide to hire an attorney, the key to your successful asset forfeiture defense might depend on your lawyer's quick response when the government fails to act in a timely manner. For example, under federal law, the government has to provide notice of forfeiture within sixty days of the date when the property was seized. If the government fails to meet this deadline, the forfeiture attorney should file a motion for the return of property under Rule 41(g) of the Federal Rules of Criminal Procedure before the government files its complaint for forfeiture. Such a motion will be successful if a showing can be made that the property was seized illegally or detained for too long in violation of statutory deadlines or the Constitution.
In addition to being able to exploit and take advantage of any mistakes made by the government's attorneys, your asset forfeiture attorney will have two principal legal weapons to use against the government. In our office, we refer to these legal tools as Bullet No. 1 and Bullet No. 2. First, your attorney must challenge the Reasonable or Probable Cause for the seizure by filing evidence suppression motions arguing that the government lacked legally sufficient reasons to confiscate the property at the very time when the seizure took place.
Specifically, the law enforcement agency which confiscated the property must be challenged to show and prove that the confiscating officers possessed reliable information that the property was connected to an illegal activity. Second, if the Probable Cause challenge fails or is not viable for one reason or another, the attorney can ultimately show, and prove to the jury if necessary, that the money or the property involved came from a legitimate source.
Of course, your asset forfeiture attorney will have the strongest hand and arguments if both, (1) the government's probable cause for the seizure is weak or nonexistent and (2) there is good evidence that the property came from a legitimate legal source. In cases where both arguments are available, a skilled lawyer should be able to negotiate and achieve a complete dismissal and return of the property without the necessity for trial.
There are several different specific legal grounds, sometimes referred to as affirmative defenses, which a competent and knowledgeable attorney can use to successfully defend your case. These defenses, not all of which are necessarily viable in every asset forfeiture case, include:
Innocent Owner Defense
This defense is potentially available in all types of asset forfeiture cases to innocent third party owners who can prove ownership of the seized property and show that they did not know about or did not consent to the illegal use of their property. Such a showing is generally easier to make if the third party innocent owner acquired his or her interest in the confiscated property before the illegal activity that "tainted" the property took place. This defense is not always available as some statutes specifically exclude innocent third party owners from being able to seek relief.
Illegal Search And Seizure (Probable Cause). As mentioned above, forfeiture cases can be defended on the ground that the property was confiscated illegally because the seizure was not based on Reasonable or Probable Cause linking the property to an illegal activity. Forfeiture law requires the government to show a link between the seized property, such as cash or a vehicle, and a specific crime, such as drug trafficking, for example. The government's showing of a connection between the property and the illegal conduct has to be based on sufficient objective evidence existing at the time of the seizure. Subjective intuitive hunches by the officers, or even the fact that the person from whom the property was seized has a past criminal record, usually are not sufficient. Usually, the evidence linking the property to illegal conduct must show that either (1) the property, cash for example, constituted proceeds or profits from a crime or (2) the property, such as a vehicle, was an instrumentality or a tool with which the crime was committed.
Asset forfeiture laws often give the party opposing the forfeiture the right to challenge Probable Cause before the government can engage in the discovery of evidence process. A timely and quick filing of a Motion For Summary Judgment or a Motion To Suppress Evidence attacking the Probable Cause often is a key to success. This is because if the government succeeds in establishing Probable Cause for the forfeiture, the burden of proof will shift to the defendant of the seizure and will require him or her to show evidence that the property came from a legitimate source. Such a showing can be problematic even for innocent individuals who have not been involved in any crimes.
Unreasonable Delay Defense. There are limits as to how long the government can wait before filing the forfeiture case or bringing the case to trial. A delay which is excessive and has harmed your ability to fight to get the property back can be good legal cause for the dismissal of the entire forfeiture case and the court's order for the return of your property.
Disproportional Fine Defense. Forfeitures of certain property can be deemed disproportional to the severity of the offense and therefore unconstitutional and unjust.
Statutory Defenses. Additional and more specific defenses might be available under specific federal or state statutes used by the government to forfeit your property.