Some people lose their right to their property by wrongly assuming that they have to be charged with a crime in order to have their property forfeited. This is one of the most common, and most costly, mistakes. While the government sometimes will charge you with a crime and attempt to forfeit your property through the criminal forfeiture process, the government often will pursue civil or administrative forfeiture proceedings which do not require any criminal conviction or even filing of any criminal charges. Civil and administrative forfeitures often result in the loss of property by innocent third party property owners who make disastrous mistakes by, for example, not filing their claims in a timely manner or in proper form.
There is virtually no limit on the kinds of property the state or federal government can seize through any of the three forfeiture actions. Common items include real estate, cash, bank accounts, antiques, jewelry, boats, planes, computers, servers or software, not to mention items which in themselves are illicit or are used in manufacture and distribution of contraband.
Civil Asset Forfeiture. Civil asset forfeiture does not necessarily involve any criminal proceedings or arrests. Often, instead of the filing and prosecuting of criminal charges and pursuing asset forfeiture as part of the criminal process against a defendant, the government will decide to purse a civil action only; it will file a civil legal complaint for the purpose of permanently seizing and forfeiting the specific item of property which it seeks to confiscate. The government's decision to pursue civil, as opposed to criminal, asset forfeiture will often depend on the strength of the government's case and the evidence the government has to show that the property is connected to an illegal activity. The key distinction is that in criminal cases, the government has the burden of proving the defendant's criminal liability or guilt, by the legal standard known as guilt beyond a reasonable doubt. By contrast, the burden of proving its case in a civil action is much lower for the government. Generally, in a civil asset forfeiture case, the government is required to win its case by a much lower preponderance of evidence standard. The government is not required to prove anyone's criminal guilt, only a sufficient connection between the property and criminal activity. Often, the government will succeed in shifting the entire burden of proof upon the owner or the claimant of the property, requiring him or her to show that the property came from a legitimate source and therefore was not connected to any criminal conduct. In short, because of the burdens of proof and various other aspects of civil litigation, the government will often pursue civil forfeiture process as offering a better opportunity for taking your money or other property from you.
The civil forfeiture process imposes complex legal obstacles and numerous deadlines which, if you do not act properly, will result in default judgments and your inability to recover what the government has taken from you. Your first deadline is triggered when you receive a notice in the mail about the process of contesting the forfeiture. In most cases, you will have approximately a month to respond. However, we advise that you do not wait until receiving notice to seek legal advice as it is critical that you consult with an asset forfeiture lawyer as early as possible. Attorneys at our law firm will provide you with a free consultation that might save you from making a critical and fateful mistake even if at the end you decide to handle the entire forfeiture process yourself or retain a different lawyer. Getting an attorney to intervene in the forfeiture process early might prevent disastrous consequences from, for example, problems created when a notice is sent to a wrong address or is missed by the owner for some other reason. A good asset forfeiture attorney should also be able to evaluate your case properly and remove a significant amount of stress and uncertainty. Even when your forfeiture case is weak or hopeless, it is better for you to know your situation as soon as possible.
Administrative Asset Forfeiture. Administrative asset forfeitures are non-judicial civil proceedings that are instituted by a governmental agency, such as the Department of Justice, the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI), the Customs Service, the Internal Revenue Service (IRS) or the Bureau of Alcohol, Tobacco and Firearms (ATF). These forfeitures are handled internally by the government; they do not involve court litigation as they are based on the claimants' petitions for so-called remission and/or mitigation. The law enforcement agency administering the proceedings might or might not be the same agency that seized the property. Administrative forfeitures are common as they account for approximately 80 percent of all federal forfeitures. These proceeding may involve all types of property except real estate which cannot be forfeited administratively.
In theory, administrative asset forfeitures are supposed to be cheaper and significantly more efficient than judicial forfeitures. In practice, administrative forfeiture rigs the rules and stacks the deck against the property owners by depriving them of meaningful due process. The rules of administrative forfeitures are written from the perspective of, and are designed to be the tools of the law enforcement for the purpose of confiscating your property. The main task of the asset forfeiture attorney involved in any administrative forfeiture proceeding is to not jeopardize the opportunity for challenging and appealing the administrative decision by the government later on in court proceedings, if necessary. As in situations involving civil asset forfeitures, the key to fighting administrative forfeitures is based on a timely and appropriate response to a notice of forfeiture.
Criminal Asset Forfeiture
If the property owner is being prosecuted criminally, the government may choose to pursue forfeiture of the property linked to the criminal activity within the same criminal case rather than through a separate civil or administrative action. In criminal forfeiture proceedings, the government's attempt to seize property is added as a separate and additional count or charge to the criminal complaint or indictment. In cases involving criminal forfeitures, the criminal trial is bifurcated into a guilt phase and a forfeiture phase. If the case goes to trial, the additional forfeiture charges are usually decided by the same jury which decided the criminal charges, but in a separate hearing after the jury returns a guilty verdict on the criminal charges related to the forfeiture. It is also possible for the forfeiture charges to be decided by a judge, later in a separate trial without a jury.
Criminal forfeiture proceedings may be based on the government's attempt to seize assets and property that are clean or untainted by any connection to a criminal activity. This takes place when the government seeks a personal money judgment against a criminal defendant for the amount claimed to be equal to proceeds of a criminal conspiracy. The government will then proceed to enforce such a judgment by seizing and if necessary liquidating any assets belonging to the criminal defendant, regardless whether an asset had any connection to the criminal activity at all.
When innocent third parties have an interest in the property which the government seeks to forfeit through a criminal action, they may not pursue any legal action to obtain the property until after the criminal proceedings have been concluded. After the criminal trial is concluded, third parties can seek to get back the property taken from the criminal defendant by proving their ownership in the property. This is usually accomplished by filing an appropriate petition and fighting the government in an evidentiary hearing decided by the judge, not a jury. In such a hearing, third parties have the burden of proving that they have an interest in the particular property which is superior to the interest that the criminal defendant has. Defendant's general creditors, who do not have a lien against or a specific interest in the particular property, cannot avail themselves of this procedure.
Generally, innocent third parties can get their property back even if they did nothing to prevent the property's illegal use, assuming they acquired their interest before the illegal activity took place. If a third party acquired an interest in the property after it was tainted by the illegal activity, he or she must prove that he or she was an innocent bona fide purchaser who had no reasonable cause to believe the property was used in or connected to a crime and subject to forfeiture.