Asset Forfeiture Lawyer
Criminals often do what they do because of their desire for material gain. The government has the ability to take possession of property it believes to have been obtained illegally. This is known as asset forfeiture. Asset forfeiture is an extremely powerful law enforcement tool. Not only does it reduce the incentive for a criminal to act illegally, it can later be used to financially support law enforcement programs that need additional funding. In essence, seizing illegally obtained material goods takes the profit out of many forms of criminal activity. Asset forfeiture makes it impossible for criminals to actively profit from their crimes.
Investigators use asset forfeiture to undermine the economic foundation of criminal activity. Businesses that are operated illegally are similar to honest businesses. They have all of the same components and function in much the same manner. Their employees must be productive and their equipment must function efficiently. Each one also needs adequate cash flow to maintain operations. Each one also benefits from the sale or either services or product lines. The only real difference is that in a legitimate business, money is made legally. In a criminal enterprise, the money taken in as profits are the result of some type of illegal activity. With asset forfeiture, an investigation can deprive the company of all of the material things it needs to remain in operation: cash, equipment, tools, inventory, etc.
With the proceeds received from asset forfeiture orders, the court can use the property and moneys recovered to provide compensation for individuals who may have been victimized. For law enforcement, the return of property to victims of white collar crime cases is the main priority. Considerable effort is spent on maintaining the assets of a criminal during the trial phase so that they can be redistributed once the case has been settled. Many people wrongfully believe that asset forfeiture is only a part of large drug cases. This, however, is not true. The white collar crime program of the FBI makes up the largest portion of all FBI's asset forfeiture cases in the country.
The FBI provides field offices and agents with the training and resources they need to continue to assist state and local law enforcement agencies with asset forfeiture programs throughout the country. The FBI provides field offices and agents with the training and resources they need to continue to assist state and local law enforcement agencies with asset forfeiture programs throughout the country. They are also capable of helping international law enforcement agencies as well. Through their efforts, they are able to deter, and in some cases, prevent illegal activity from taking place.
Civil Asset Forfeiture Law Origins
Property seizure has been used by governments for several years. The English Crown, for example, had the right to seize the property of a person if that property was responsible for the death of another person. The value of the forfeited property was taken as punishment for careless behavior. As time passed, a person's right to own personal property could be affected if they participated in criminal activity or profited from illegal activity.
There are several criminal laws within the FBI that allow for the transfer of ownership of property from its owner to the government if it is believed the property was the result of ill gotten gains. This includes money from drug trades as well as money laundering practices. The sanction for forfeiting property involves an application process as well as the knowledge that illegal activity has taken place.
Both the 4th and 5th Amendments to the Constitution allow for the seizure of property for forfeiture. There are specific methods to be used when seizing forfeited property. In all cases, the property must be accepted as evidence of illegal activity or subject to forfeiture due to a criminal's illegal activity that may have led to the acquisition of the property. Each case is different and must use the proper method of seizure contingent on the location of the property in question and whether or not circumstances exist that may negate the seizure.
Types of Forfeiture Actions
Criminal and civil are the two primary types of forfeiture actions. Criminal forfeiture or personal action, is directed at the person. Upon their conviction, the forfeiture of their property can be used against them. During a civil forfeiture or rem action, the action is taken directly against the property. Both forms are different in several ways. They include:
- The point during the proceedings when the property can be seized
- The level of proof needed to forfeit or seize the property
- The type of property interests that are being considered for seizure
Criminal Forfeiture Actions
Criminal forfeitures have to be judicial in nature. The indictment that charges the defendant with the illegal activity, must also state the nature of the property to be forfeited. The court that holds jurisdiction over the defendant will also assume jurisdiction over the property to be seized. In most cases, the government is required to present proof, beyond any doubt to convict the person before the property can be sufficiently seized. Property is forfeited in this fashion only if it is proven that the property was illegally gained and the defendant was convicted of the crime of receiving it by illegal means.
In most cases, property is not seized until after it has been forfeited, either through judicial decision or because it was at risk of being lost or destroyed. Once seizure has been ordered the U.S. Marshal Service is given permission to go and retrieve the property. A seizure warrant may be used under a variety of circumstances including a forfeiture case that falls under MCLA (Money Laundering Control Act) and the CSA (Controlled Substances Act). An ancillary hearing, or post-forfeiture hearing scheduled by the court is ordered after the forfeiture of property involving illegal activity. This is done so that third party claims can be filed against the property.
RICO (Racketeer Influenced and Corrupt Organizations Act) and CSA statutes identify property in much wider terms after the defendant has been convicted of the crime. This can include legal interests in property that may have contributed to any illegal activity. During civil proceedings involving forfeiture, the laws will normally name certain types of property that is known to be a part of the activity, such as vehicles, real property and monetary funds.
Civil Forfeiture Actions
Civil actions involving forfeiture are often administered through a judicial procedure, a summary or an administrative action. Summary forfeitures can only be used in accordance with the CSA and then, only a small category of property can be targeted.
Administrative forfeiture procedures are enacted by an agency authorized to seize property if the value of the property has an appraised value of less than $500,000. If the property is of a monetary nature, there is no set limit as to the amount which can be seized. If no one contests the administrative action in a reasonable amount of time, their legal right to the property is negated. At that time, the agency can declare that the property has been forfeited.
A person who wishes to contest an administrative action must file a petition or claim of ownership over the property in question. By asserting their claim of ownership, it forces the government to abandon the administrative forfeiture proceedings and begin a civil judicial action.
Claims that are filed within a reasonable time frame must be transmitted to the U.S. Attorney by the FBI and all attempts to enforce the administrative forfeiture must cease. When the property value is over $500.000 and is not in the form of cash or a hauling conveyance, for the proceedings to continue they must do so as a judicial action. If any forfeiture action is taken against real property, any proceedings must be in the form of judicial action. The value of the property makes no difference.
Burden of Proof
The FBI must have probable cause to seize any property for civil, judicial and administrative forfeitures. The burden of proof must satisfy both constitutional and statutory requirements. For a civil forfeiture action to commence, notification must be made by mail as well as the publication of the intent to forfeit the property by the government.
When it comes to an administrative forfeiture, the definition of probably cause is the reasonable grounds for the belief of guilt. This must be supported by more than mere suspicion, but less than prima facie proof. In most cases, only slight suspicion is needed when it comes to determining probable cause.
Probable cause is also used when determining the initial burden of proof as it pertains to a judicial action. Once the property has been seized, the U.S. Attorney's Office must then make its own decision as to whether or not the property in question can be forfeited. If it is determined that the forfeiture action has value, legitimate complaint must be filed. The complaint basically states that the property has violated the law. The government is then forced to show a preponderance of evidence as to why the property should be subject to seizure. A “preponderance of evidence” is basically, enough evidence to free the mind from reasonable doubt, it is still ample enough to incline a fair and unbiased mind to one or the other side of an issue.
Civil judicial forfeiture action is a civil matter and not a criminal action. Because of this, Federal Rules of Civil Procedures apply. The rules for discovery processes for civil procedures are much different than the ones that are used in criminal procedures.