Asset seizure or asset forfeiture is a form asset confiscation by the government. It has become one of the most important and powerful tools that the federal law enforcement employs against criminals and criminal entities – from terrorists to drug dealers as well as white collar criminals who accumulate their wealth by preying on the vulnerable. The intended goal of asset forfeiture is to disrupt criminal activities by seizing assets that could otherwise be used by the individual or organization to facilitate crimes.
What Can Be Forfeited?
Depending on the crime in question, the state can confiscate a variety of property and interests therein, including:
- Proceeds – suspected proceeds of crime (including anything of value obtained by virtue of committing a crime as well as any property traceable to those assets)
- The facilitating property – anything used to make the crime harder to detect, or easier to commit
- Property involved – these can include infrastructure involved in a money laundering offense such as the money being laundered as well as any property commingled with it.
The federal forfeiture law describes property as anything of value, both tangible and intangible, including rights and privileges, securities, claims, and interests. The essence of forfeiting a property is that it has to be linked to a crime, and the federal law must authorize forfeiture for the crime in question. In other words, every forfeiture must be backed by a specific law. In the U.S, there is no specific forfeiture statute that targets all crimes and all property. However, there is forfeiture in place for over 200 federal, state and local crimes. The most common forfeiture statutes are those that allow confiscation of drug proceeds as well as any kind of property used for committing drug trafficking offense. In money laundering related crimes, forfeiture statues approve the confiscation of any property involved in the money laundering crimes. In wire fraud and identity theft related cases, forfeiture statutes allow the confiscation of the proceeds of the crime.
Types of Asset Forfeitures and How You Can Fight Them
Sometimes, you can lose the right to your property by wrongly assuming that you have been charged with a crime that requires forfeiting of the property. This is a very common and costly mistake. While the state may sometimes charge you with a crime and invoke the criminal forfeiture statutes to confiscate your property, the government will often pursue administrative or civil forfeiture proceedings which neither require criminal conviction nor filing of any criminal charges. Administrative and civil forfeitures often result in an innocent third party losing their properties through disastrous mistakes like failing to file claims in the right form or in a timely manner.
Ideally, there is no limit to the kind of property the federal or state government can confiscate through any of the three forfeiture actions. Common properties include bank accounts, real estate, jewelry, cash, software and servers, antiques, as well as illicit items that are used in the production and distribution of contrabands.
Civil Asset Forfeiture
Civil asset forfeiture does not necessarily involve any arrests or criminal proceedings. Often, rather than filing criminal charges and following through with prosecutions, and opting for asset forfeiture as part of the defendant’s criminal process, the authorities will decide to opt for a civil action. It will seek to file a civil legal complaint with the aim of permanently confiscating and forfeiting a specific item or property which it wishes to forfeit. The authorities’ decision to go for a civil, rather than a criminal, asset forfeiture is often dependent on the strength of the case and the evidence the government has in place to prove that you used the item in question for purposes of committing the crime in question. The key difference is that in a criminal case, the government bears the burden of proving the defendant’s guilt or criminal liability, by the legal standard referred to as guilty beyond reasonable doubt. On the contrary, the burden of proving liability in a civil action is much lower. Thus, during a civil asset forfeiture proceeding, the government requires to win its case by a fairly lower preponderance of evidence standard. The government does not have to prove the subject’s criminal guilt; rather, it only needs to provide sufficient link between the criminal act and the property. Often, the government tends to shift the entire burden of proof to the claimant or property owner, requiring them to prove that they acquired the property through legitimate means and is therefore not connected to any criminal act. In short, because of an easier burden of proof, the government will often opt for civil forfeiture as it offers a better opportunity to seize your property or money.
The civil forfeiture process comes with complex legal obstacles and multiple deadlines which, if you fail to respond to appropriately, can result in unfavorable judgements and your inability to get back what the government has seized from you. Your first deadline is triggered when you receive a mail notice about the forfeiture contesting process. In most cases, you will be expected to respond within a month. However, you do not have to wait until you have received the notice to seek legal help as it is important that you talk to an asset forfeiture attorney as soon as possible. A competent forfeiture claims attorney will save you from making a costly mistake. A good forfeiture lawyer will evaluate your case and shield you from a significant amount of uncertainty and stress.
Administrative Asset Forfeiture
This is a non-judicial civil proceeding that is instituted by a governmental agency like the Department of Justice, the FBI, the IRS, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco and Firearms, or the Customs Service. The responsible government agency handles these forfeitures internally without involving court litigations since they are based on the claimant’s petitions for so-called mitigation and/or remission. The proceedings may or may not be enforced by the same agency that forfeited your property. Administrative forfeiture is the most common forfeiture type, accounting for nearly 80 percent of all federal sanctioned forfeitures.
Theoretically, administrative forfeiture is supposed to be more efficient and cost effective than judicial forfeitures. However, in practice, administrative forfeiture cheats its way around the rules and passes the burden on property owners while denying them right to a due process. The terms of engagement in administrative forfeiture are outlined from the perspective of, and are tailored to be the tools of law enforcement with the sole purpose of taking over your property. The main job of an asset forfeiture lawyer involved in any administrative forfeiture proceeding is to frustrate the opportunity for challenging and appealing the forfeiture decision by the government before the court of law, if necessary.
Like with civil asset forfeiture, the key to challenging administrative forfeitures is based on an appropriate and timely response to a forfeiture notice.
Criminal Asset Forfeiture
If a property owner is facing criminal charges, the government may decide to confiscate any property in their possession that is linked to the criminal activity for which they are facing charges rather through a separate administrative or civil action. During a criminal forfeiture proceeding, the government’s attempt to confiscate property will be added as a separate and additional charge or count to the criminal indictment. During the criminal forfeiture proceeding, the criminal trial will be bifurcated into a guilt phase as well as a forfeiture phase. When the case moves to trial, the same jury that decides the criminal charges will also decide the forfeiture charges. However, this will be done in a separate hearing upon delivering a guilty verdict on the criminal charges linked with the forfeiture.
Forfeiture Procedure and Deadlines
Forfeiture of property that has been used for committing a criminal activity, or that has been acquired using the proceeds of a crime, can be tricky when there is a third party involvement in the ownership of the property in question. For instance, a defendant may use a rented property to store drugs, or have mortgage on the property in question. In this case, the bank or landlord has an interest in the property, and will not take it lightly being confiscated by the authorities.
Fortunately, the claimant can protect their interest as explained below.
Identifying the Property
At the onset of the forfeiture case, the prosecution will issue a forfeiture notice to the defendant. This notice informs the defendant that the government intends to confiscate their property. The government may place a lien (also known as a legal claim) on the property in question or obtain a restraining order that prevents the disposition or transfer of the property before the case is decided before the court of law.
Later, after finding the defendant guilty and the jury or judge determining that the property in question should be forfeited, the property must be identified so that whoever has interest may get the chance to raise objection. The identification process happens as follows:
Once the jury or judge has determined that there are properties to be confiscated, the federal court will issue a preliminary forfeiture order.
Third party notice
Even after placing a lien on the property, the government is required to publish notice that it intends to confiscate it. Traditionally, this is done in the newspaper. Also, the government lists all properties under federal forfeiture proceedings at www.forfeiture.gov.
Anyone with interest in the property, like the bank that holds mortgage or the landlord, can appear and raise objection to the forfeiture.
If nobody mounts a successful objection, the court will issue the final order and the government will assume ownership of the property.
Contesting a Forfeiture
A defendant or other interested party in the property to be forfeited can raise one or more of the following defenses.
When the Property Has No Links to Crime
The most common defense raised by property owners during forfeiture hearings is that the property has no connection to illegal activities. For instance, a criminal defendant can protest that the money confiscated from his bank account was not the proceeds of drug trafficking, but was rather earned from legitimate activities. Or the owner of a building may claim that although the defendant who ran a drug trafficking venture, rented out his property, it was never involved in any way in the drug trafficking activity. That the “innocent owner” had no knowledge of the defendant’s tainted character or the activities for which they used the property.
The property owner may also deny knowledge of their property’s role in an illegal activity. For instance, an individual who purchases a property that is later threatened with forfeiture may claim that they had no knowledge that the property in question was used in criminal activity before purchase. Or, a truck owner could claim that his truck was hired and used to traffic drugs without their knowledge or consent. The property owner can also assert that, if they had prior knowledge of the activity, they made attempts, albeit to a reasonable extent, to stop the illegality.
Handling the Proceeds of Forfeiture
Every state has its own forfeiture laws. That said, “Equitable sharing” allows both local and state law enforcement bodies to share the proceeds of federal forfeitures. Such sharing occurs when the local or state agency either took part in the investigation that resulted in the confiscation, or requested the federal agency to “take over” forfeited property in a case where the defendant has violated federal law. Federal forfeiture rules apply in circumstances where the agencies have decided to participate in Equitable Sharing.
Step-By-Step Guide to Contesting the Forfeiture of Your Property
All forfeiture contests are handled by the United States District Courts. The process begins with the defendant filing a claim. Failure to do so may result in your property being forfeited by the responsible federal agency.
Filing a claim
You need to file a claim with the agency that issued a forfeit intent. In order to contest the forfeiture, you need to address the claim to the notifying agency’s address that is provided in the seizure notice. The claim should be mailed through the U.S Postal Service, or through a Commercial Delivery Service. If no address is provided in the seizure notice, then the claim ought to be delivered to the Associate Chief Counsel.
You are required to file the claim by the deadline date indicated in the notice. Read 10 U.S.C § 983 (a)(2). Your claim will be considered filed on the date received by the forfeiture agency as mailed with the U.S Postal Service or when sent by a Commercial Delivery Service.
You must submit your claim in writing. It should clearly describe the seized property as well as your ownership or interest in it. Finally, the claim must be made under oath, subject to penalty of perjury as outlined in 18 U.S.C. § 983(a)(2)(C) and 28 U.S.C. § 1746.
The claim form is available as a PDF through this link. You are required to print and deliver a completed form as instructed in 18 U.S.C. § 983(a)(2)(D).
While this is not mandatory, you may substantiate your claim by submitting supporting documents like bank records outlining your interest in the property or title paperwork.
When you file your claim
A timely submitted claim can stop the administrative forfeiture process. The confiscating agency will forward your claim to the U.S Attorney’s Office for further determination.
Penalties for submitting frivolous claims
You may be subject to a civil fine if you deliberately file a false or frivolous claim. Additionally, you may face prosecution if you submit a claim containing falsified information.
If you fail to file a claim
Failing to file your claim within the stipulated deadline may result in your property being forfeited.
You do not need a lawyer
You do not need a lawyer when filing your claim. However, you may hire one to provide legal counsel while going through this process.
Contacting an Asset Forfeiture Attorney Near Me
If your property is threatened by a federal forfeiture, whether you have an interest in the property or are a defendant in criminal matter, it is important that you contact a criminal defense lawyer who practices in the federal court as soon as you can. Forfeiture proceedings tend to be quite complicated and are often aggressively pursued by prosecutors and law enforcement agencies. It is, therefore, important that you have a competent attorney who will represent your interests. The right lawyer, hopefully you will protect your property’s rights and realize the best possible outcome.
In recent years, asset forfeiture has emerged as a powerful and effective tool in the fight against terrorism, drug trafficking, and other forms of organized crimes. According to latest statistics, nearly 50 percent of federal forfeiture cases involve some form of organized crimes. However, not all forfeitures are justifiable. If the government seeks to forfeit your property, be sure to seek legal help as soon as possible. The forfeiture process has important deadlines and failure to take the right steps during your response can hinder your ability to defend your property’s rights before the court of law and get the most favorable outcome. Call Asset Forfeiture Lawyer at 888-571-5590 for free and comprehensive consultation to explore the appropriate and viable strategies and solutions that can help you with your specific case.