One of the most often debated powers the federal government has is the ability to seize people’s property, especially when that property might be linked to illegal activities. Under federal laws, law enforcement authorities can seize property and money from people convicted of specific federal crimes. This process is known as “forfeiture” and is most commonly seen in drug trafficking cases.

If a federal law enforcement agency believes the property or money was used in a crime, it can legally confiscate it. These forfeiture laws serve not only to discourage crime but also as a significant funding source for law enforcement activities.

While forfeiture can effectively disrupt organized crime, it sometimes leads to unfairly taking property from individuals. Before any property can be seized, a federal prosecutor must demonstrate that you used that property or money to commit a crime, earned it illegally, or purchased it with money from unlawful activities. If you’ve been accused of a federal crime or face possible forfeiture of your property, you should have a skilled federal defense attorney, like the Asset Forfeiture Attorney, to protect your rights.

What is Asset Forfeiture? 

Forfeiture is a legal process where the government can take property linked to criminal activity. According to Title 18 of the United States Code Chapter 46, federal law enforcement can start forfeiture actions against people and organizations involved in illegal activities like drug trafficking, money laundering, and organized crime. 

The main goal of forfeiture is to disrupt criminal organizations by taking away the money that fuels their illegal actions.

However, federal agents can make mistakes when enforcing forfeiture laws. They might go too far, and abuses can happen when they seize assets. 

Overview of Title 18 of the United States Code, Chapter 46

Below is what is covered under Title 18 United States Code 46: 

  • Civil forfeiture under 18 U.S.C. Section 981 allows the government to take property involved in or linked to certain crimes like money laundering, terrorism, and drug trafficking. It also explains how to handle forfeited property, including what to do with the proceeds and how to share them with state and local law enforcement agencies
  • Criminal forfeiture under 18 U.S.C. Section 982 lets the government take property linked to certain crimes, like drug trafficking and fraud. If the original property is missing or mixed with other assets, they can take substitute assets instead
  • The rules for civil forfeiture under 18 U.S.C. Section 983 outlines what needs to happen for federal forfeiture cases, including how to file claims, give notice, and have a court review the case. It also allows lawyers to help those who can’t afford one, and uses protective orders to keep the value of the seized property safe
  • Under 18 U.S.C. Section 984, the government can seize interchangeable assets like cash or precious metals held in banks. This law prevents criminals from hiding property by swapping it for other assets not directly tied to their illegal activities
  • Civil forfeiture of real property is covered by 18 U.S.C. Section 985, which allows the government to take land and buildings and sets the rules for how to do it
  • Subpoenas for bank records under 18 U.S.C. Section 986 lay out how to issue subpoenas to banks and financial institutions during civil forfeiture cases
  • Under 18 U.S.C. Section 987, if the government takes your property because it suspects it’s linked to terrorism, you can contest that action, and there are rules for how to do it

Types of Forfeiture

In the U.S., federal law allows three ways to forfeit property involved in a crime:

  • Administrative forfeiture
  • Criminal forfeiture
  • Civil forfeiture

Administrative Forfeiture

As the name suggests, administrative forfeitures are managed solely by a federal law enforcement agency without going through the courts or involving a prosecutor. The process starts when the agency seizes the property, usually with a warrant, but sometimes without one if there’s an urgent situation. This forfeiture happens when there’s a good reason to believe the property can be forfeited, like if it’s money made from a crime or was used in one. 

The agency must notify the property owner about the seizure and their right to contest it within 60 days. The property owner or anyone with a legal claim has 30 days to respond.

If no one claims the property, the agency can forfeit it by filing a Declaration of Forfeiture, which transfers ownership to the United States. Properties eligible for administrative forfeiture include cash in any amount and personal items worth up to $500,000. However, real estate can’t be forfeited this way.

Civil Forfeiture

When a seizing agency sends a contested case to the United States Attorney, the federal prosecutor has two options:

  • Start a civil forfeiture action against the property
  • Add the property to a criminal indictment

The law says the prosecutor must do one within 90 days after the person contesting the forfeiture, known as the “claimant,” files their claim with the agency.

The key point about civil forfeiture is that it doesn’t need a criminal conviction or case.

Civil forfeiture helps when the Government can’t file a criminal case but still has a good reason to take the property. It can apply whether the property belongs to the wrongdoer or someone else. The focus is on the connection between the property and the crime, not the person who committed it.

For example, if you use your wife’s car to commit a crime, the car can be forfeited in a civil case, even if your wife hasn’t committed any crime. She can claim an innocent owner's defense, but if she knew about your illegal use and didn’t do anything to stop it, that defense wouldn’t hold up.

So, the Government usually uses civil forfeiture when criminal forfeiture isn’t possible or suitable or when a criminal case isn’t ready for indictment. The prosecutor might choose to file a civil forfeiture action in these situations: 

  • The defendant is a fugitive or unable to stand trial 
  • The defendant is dead 
  • The crime breaks foreign law, but the property is in the US or under US court jurisdiction 
  • The defendant has already been convicted in a state, foreign, or tribal court, making another criminal prosecution unnecessary 
  • The property belongs to a non-innocent third party, like the defendant’s spouse
  • The defendant pleads guilty to a different crime than the one leading to the forfeiture 
  • The government could file a criminal case, but a lighter punishment makes more sense

Criminal Forfeiture

Criminal forfeiture happens when the prosecution seizes your assets, property, and any money related to criminal activities. Unlike civil forfeiture, you need to be convicted for this to happen.

So, criminal forfeiture can only occur after you are found guilty. It only applies to the property and money connected to your convicted crimes. The prosecution has to prove that there’s a clear link between the crime and the property or money they want to take. The trial can’t go after criminal forfeiture if you are acquitted. 

For instance, if you use a car to transport illegal drugs, that car can be seized. Similarly, any cash earned from selling those drugs can also be taken. But in both cases, you must be convicted of a drug-related crime.

What’s the Purpose of Asset Forfeiture?

Federal agents take real and personal property by applying laws like 18 U.S.C. Section 982 and 21 U.S.C. Section 853. Seizing property and money isn’t a separate legal action; it’s tied closely to the criminal case. The authorities use forfeiture to:

  • Punish offenders
  • Disrupt criminal groups
  • Discourage crime
  • Keep communities safe

The property and money that are forfeited often go to: 

  • Crime victims 
  • Educational programs
  • Treatment centers 
  • Law enforcement devices such as body cameras and bulletproof vests

Types of Federal Offenses that Justify Forfeiture

Asset forfeiture only applies to certain federal crimes, not all crimes. Federal drug crimes are the leading example of how this law applies. But drug crimes are just one type of crime under federal asset forfeiture laws. The federal statute Title 21 U.S.C. Section 982 broadens asset forfeiture to include other federal crimes, like:

  • Money laundering
  • Counterfeiting
  • Embezzlement
  • Wire fraud
  • Bank bribery
  • Mail fraud
  • Bank embezzlement

The Money Laundering Act makes it a crime to handle money from certain illegal activities if the goal is to hide where the money came from or to dodge reporting rules. This law covers various federal fraud offenses, and financial institutions must report transactions over $10,000. It’s also illegal to take more than $10,000 out of the U.S. to avoid federal laws.

Types of Properties Targeted in Asset Forfeiture 

Federal asset forfeiture laws target two main types of property. The first type is the proceeds of crime.

For instance, Title 21 U.S.C. Section 853(a)(i) states that forfeitable property includes any property constituting, or derived from, proceeds the person obtained, indirectly or directly, as the result of the qualifying federal crime.

Proceeds are what the suspect gains from the crime, often in cash or accounts where they stash money from illegal activities. Proceeds can also be items bought with that cash, like jewelry, planes, boats, cars, and houses.

The second type is the instrumentalities of crime.

According to Title 21 U.S.C. Section 853(a)(ii), forfeitable property includes any person’s property used, or intended to be used, in any manner to commit or facilitate the commission of the qualifying federal crime.” Instrumentalities are the suspect's tools to commit the crime, such as homes, vehicles, planes, warehouses, boats, business spots, or guns.

What is the Forfeiture Court Process? 

The government’s process of taking property or money linked to a crime can get tricky, and defending against it isn’t always straightforward. Here’s how the forfeiture process usually goes.

First, prosecutors identify the property they want to seize and notify the defendant, often placing a lien on it to stop the owner from selling or transferring it. Then, a federal court issues a preliminary order after deciding which assets to seize, and it sends a notice to any third parties who might have a claim to the property.

Next, there’s a court hearing where anyone interested in the property, like a bank holding a mortgage, can show up and present their case. Finally, the court typically issues a final order granting the government property ownership.

How Can I Stop My Property From Forfeiture? 

You can challenge your asset forfeitures. For instance, the seizure might not have had probable cause, or the government might struggle to prove that the money came from an illegal source. Here are some defenses you can use for your case:

Innocent Owner Defense

This defense is for third parties who can prove they own the seized property. To use this defense, you must show that you didn’t know your property was being used illegally or that you bought it in good faith. Unlike other criminal law areas, you’re not automatically considered innocent here. You have to prove you’re an innocent owner before the court will give your property back.

No Notice

Did you get enough notice about the forfeiture action? If not, that could be a reason to get your property back.

Illegal Search and Seizure

You can also argue that the property was seized illegally, violating your 4th Amendment rights, or that there wasn’t probable cause for the seizure.

Unreasonable Fines

The 8th Amendment protects you from unreasonable fines. In asset forfeiture cases, the government can’t take more money from you than a certain amount.

Find a Federal Asset Forfeiture Lawyer Near Me

If your property or money is at risk of being seized, you should talk to a lawyer who knows federal forfeiture laws immediately. Asset forfeiture cases can get complicated, and prosecutors and law enforcement pursue these cases aggressively. You’ll need a lawyer to protect your property rights and legal standing for the best chance of a good outcome. At the Asset Forfeiture Attorney, we are experienced in dealing with federal asset forfeiture procedures and can help you get a favorable outcome for your case. Give us a call for an initial consultation at 888-571-5590.