Asset Forfeiture Litigation and Trial (Federal Law)
Federal asset forfeiture is an extremely powerful tool for prosecutors and can impact one’s ability to pay everyday expenses or retain an attorney to help recover the seized property. The federal government has the authority to seize, without compensation, any personal or privately-owned real property involved in the commission of a crime. Forfeiture proceedings may be initiated in either criminal or civil court based on the alleged criminal activities as well as the statutory rules. What’s more, federal asset forfeiture laws comprise hundreds of statutes and many other categories specific to crimes such as forgery, money laundering, terrorism, tax evasion, pornography, drug trafficking,and other drug crimes.
Asset forfeiture is becoming more and more prevalent. While the government will charge you with a crime and attempt to seize your assets through criminal forfeiture, most cases will involve a civil or administrative forfeiture process. These often result in the loss of assets by parties who make disastrous mistakes by not filing their claims in proper form or in a timely manner. Criminal forfeiture, on the other hand, is an action against an individual and this means that the court can go to the extent of ordering the defendant to forfeit substitute assets or pay a money judgment if the property in question is not available. For instance, the government may seek criminal forfeiture of proceeds if an individual is convicted of fraud. If the proceeds are long gone, the court may order the forfeiture of the defendant’s property.
The government may sell the seized property and assets, keep them, or destroy them. If the seized cash is kept in the government’s custody, it may be used to fund a number of activities, including investigative activities, prosecutorial costs,supplemental school budgets, drug education programs, or restitution payments to victims. This may not seem fair, but that’s just how the law works.In some cases, however, the government may go beyond what the law allows. The lawyers at Asset Forfeiture Attorney have experience in asset forfeiture cases and have successfully defeated such actions through litigation, helping recover property and assets worth millions of dollars. When it comes to federal asset forfeiture cases, an immediate response is critical or you could lose the opportunity to recover your property. Contact Asset Forfeiture Attorney at 888-571-5590 to discuss how to preserve your claim and get your property back before it’s too late.
Federal Asset Forfeiture Law
When investigating crimes, federal agencies such as Drug Enforcement Agency (DEA) and Federal Bureau of Investigation (FBI) apply asset forfeiture laws as found in the Title 18, § 981 of the U.S. Code. Federal civil forfeiture cases are pretty much like any other civil case. The plaintiff is the United States Attorney’s Office and they file a complaint that shows how a given property is tied to a federal crime. The claimant is then required to answer the complaint and file a claim as provided under Supplemental Rule G of the Federal Rules of Civil Procedure and 18 USC 983. The case will then go through civil discovery and motions and depositions. A trial by jury is scheduled where the U.S Attorney’s Office has to provide a preponderance of the evidence to establish the forfeitability of property.
As provided by federal law, the government must submit written notice to the involved parties within sixty days of the seizure, but the deadlines sometimes vary. If the property owner submits a claim to the agency involved, the government has 90 days to obtain a criminal indictment for criminal forfeiture or file a formal civil complaint against the seized property (“in rem”). If the government fails to take either of these actions, it will be required to release the assets that were seized without prejudice to the government’s right to a forfeiture proceeding at a later time. However, the contraband or illegal property cannot be returned even if the property was not seized legally. Generally, the interested party has no right to counsel because the action is against the property. And because the action is primarily against the assets, the interested party (usually the proprietor) has no entitlement to counsel during these proceedings. The only exception to this is if the property in question is the primary residence of the owner.
If an individual with seeking to contest the forfeiture does not have the financial capacity to obtain representation, the court may permitcounsel to offer representation to that individual. This will be based on several factors, including whether the claim appears to be made in good faith as well as the individual’s standing to contest to property seizure.
Once a motion has been filed by the government, the court may extend the period in which a notice may be sent to the claimant for a period not exceeding 60 days. The extension may be based on written certification of a supervisory official from the seizing agency. The period may be extended only if there’s a reason to believe that the notice may have adverse implications, including:
- Flight from prosecution,
- Intimidation of potential witnesses,
- Endangering the physical safety or life of an individual,
- Tampering with or destruction of evidence, or
- Any other situation that may jeopardize an investigation or delay a trial.
The civil forfeiture process imposes numerous deadlines and complex legal obstacles. Failure to properly address these could result in default judgments and loss of the ability to recover what has been seized from you. And while you have up to 30 days to respond, we advise that you do not wait until you get a notice in order to consult with an attorney. Contact an Asset Forfeiture Attorney as soon as possible. We’ll provide guidance and help you avoid making fateful and critical mistakes. What’s more, seeking the intervention of a seasoned attorney early enough may help prevent disastrous implications various problems such as a missed notice.
Asset Forfeiture and Equitable Sharing
In July 2017, an announcement was made by Attorney General Jeff Sessions on the plans to revive the Equitable Sharing Program, to allow for better collaboration between local and state police and federal agencies. In this case, federal agencies are given the power to control assets seized through the collaborations and then return 80% of the money to the state agency. Even with state laws that limit the percentage of assets that local agencies can keep, the controversial equitable sharing program allows the agencies to easily get around these.
Motions for Return of Seized Property
Once an individual’s property has been seized illegally or without probable cause, the chance of getting the property back typically diminishes as time goes by and tends to lose value. As such, it’s important to file summary judgment motion or Rule 41(g) motion of the Federal Rules of Criminal Procedure as soon as possible. Our lawyers have the experience to help recover propertyseized to criminal or civil forfeiture. Motions for recovery of property that has been seized may be broughtunder the court’s general equity jurisdiction for civil forfeiture cases and under Rule 41(g) in criminal forfeiture matters. Claimants in civil forfeiture casesmay also file motions to dismiss the forfeiture complaint or motions for summary judgmentas a way to pursue the return of seized property. Filing one of these motions holds the government accountable to show probable cause for seizing the property.
Remission and Mitigation of Forfeiture Penalties
Federal asset forfeiture laws are harsh in their application and broad in their reach, especially when the property is seized from innocent parties due to alleged involvement in a crime. Filing a petition for mitigation and remission of forfeiture penalties is an avenue of relief for individuals in these situations. Mitigation refers to the acceptance of a smaller financial penalty instead of forfeiture whereas remission refers to the return of forfeited assets to a “victim” who has suffered pecuniary loss as a direct result of the forfeiture. One cannot qualify as a victim if he/she seeks recovery for physical injuries or torts not caused by the forfeiture, knowingly benefited from or contributed to the offense in question, and has recourse to other assets.
These avenues are discretionary forms of relief granted by the Criminal Division of the Department of Justice in Washington, D.C. or federal agencies involved in seizing properties, including the Federal Bureau of Investigation (FBI), U.S. Immigration and Customs Enforcement (ICE),Drug Enforcement Administration (DEA), U.S. Postal Inspection Service (USPIS), Department of Justice (DOJ) Criminal Division, U.S. Customs and Border Protection (CBP) and Internal Revenue Service (IRS).While some of these agencies have a similar approach to mitigation and remission, others have special regulations. The time limits, standards for considering petitions, the required information, and other matters differ from one agency to the other. Both holders of liens and owners of seized property may file petitions for mitigation and remission. In some cases, victims may use remission process to seek compensation for their damages.
Following the seizure of the property, the investigating agency and DOJ will identify all potential victims and send a notice informing them of the opportunity to file a petition. Documentary evidence must be provided to show a monetary loss and the date the loss occurred. Records used during investigations may also be used to help substantiate the alleged loss. Calculating pecuniary loss involves accounting for and deducting money returned to the victim separate from the request. When the forfeited funds are insufficient to compensate all the petitioners, each victim will receive 50 percent of the actual pecuniary loss. If remission of denied, the victim may submit a reconsideration request within 10 days of the denial notification letter.
The Burden of Proof for Asset Seizure
In a lawsuit or action brought under any asset forfeiture statute,a “preponderance of evidence” is needed for the government to prove their case and legally seize the property of a person connected to a crime. The government may use evidence gathered after a forfeiture complaint has been filed to establish that property is subject to forfeiture. The burden of proof is met provided the facts are simply “more likely true than not.”If the government’s theory of forfeiture is that the property facilitated or was used for the commission of a criminal offense, the government can establish the connection between the offense and the property. This has to be based on sufficient objective evidence available when the property is seized. So, the fact that the property owner has a past criminal record or the officers provided subjective intuitive hunches is typically not sufficient. In order to link the property to the alleged illegal conduct, the officers must show that the property was a tool with which the crime was committed and the property constituted profits from the illegal conduct.
Also, authorities can seize property even if an individual has not been charged or convicted of the crime. The forfeiture process is much like a second trial where a defendant gets a chance to defend his/her assets. Conversely, if a defendant pleads guilty to the offense, the plea will include a provision requiring him or her to allow the forfeiture of his/her assets.
Innocent Owner Defense
Because asset forfeiture cases are usually against a person and not directly against the asset or property, there’s the likelihood for an innocent third party to get involved in the case unknowingly. For instance, the government may seek the forfeiture of a house if the defendant is accused of using it to facilitate illegal drug business. But if the house belongs to another person, the actual owner may get involved and may have a claim to the property. To protect their interest in the house, the actual owner must initiate an ancillary proceeding.
Pursuant to 18 U.S.C. 983(d), an innocent owner can show interest in property under any civil forfeiture statute.This law section strictly defines an innocent owner as someone who did not know of the conduct in question or did all that reasonably could be done after learning the conduct giving to forfeiture. The “innocent owner” bears the burden of proof and must, therefore, provide a preponderance of the evidence to show that he/she is an innocent owner. A person can prove that he/she did all they reasonably could do, including showing that he/shereported to an appropriate law enforcement agency that the alleged conduct occurred or would have occurred. Also, the person must have revoked or made agood faith attempt to revoke individualsengaging in such activities or consulted with a law enforcement agency to find ways to prevent or discourage the unlawful use of the property.
To be in a position to recover interest on seized assets or property, the innocent owner must be a person who was a bona fide buyer or seller for value and did not know that the property was subject to forfeiture. In addition, a valid innocent owner claim cannot be denied just because the claimant did not give anything of value in exchange of the property if the property cannot be traced to any crime, the property is the claimant’s primary residence, and the property was acquired through marriage, divorce, or inheritance. The law provides that an innocent owner may not assert ownership interest if the property is illegal or contraband. What’s more, if the court determines that an innocent owner has a partial interest in the property, the court may enter an order to transfer the prompt to the government and have it reduced to liquid assets, severe the property, or allow the innocent owner to retain ownership.
Asset Forfeiture Litigation
Federal agencies are usually quick to freeze assets and seize property. The government has been caught on many occasions wielding its powers illegally and unfairly, violating the constitutional rights of the owner, missing the statutory deadlines, failing to prove probable cause, or failing to allege an appropriate basis for the forfeiture action. When there’s been an effort to seize your property, it’s important to respond with urgency and take the right steps. The lawyers at Asset Forfeiture Attorneylaw firm understand the process involved in asset forfeiture litigation and know how to move quickly on behalf of our clients. We aggressively litigate these cases from the initial step through the entire appellate process. We work can help with:
- Detained property
- Seized property
- Unreasonable delay
- Constitutional rights violation
- Federal statute violations
- Innocent owner case
- Disproportional fine defense
The federal asset forfeiture process typically begins with confiscation of property after police seize property without a warrant or based on the allegation that probable cause exists that the property is tainted by crime. Our attorneys will work diligently to challenge the procedure used in seizing the property, including refuting testimony, examining potential constitutional violations, challenging specious conclusion, identifying inconsistencies warrants, analyzing unsubstantiated claims, and raising challenges where the probable cause appears unreliable. What’s more, we employ professional techniques to identifyseparation of the forfeited property from the alleged crime.
Find a Federal Asset Forfeiture Litigation and Trial Attorney Near Me.
When litigating your asset forfeiture case, our attorneys take steps to ensure legal rights are protected against harassment by prosecutors and law enforcement officers, and against assaults on your private property. If your assets have been threatened or seized, call Asset Forfeiture Attorney at 888-571-5590 or fill out our online contact form to schedule a consultation and evaluate the available legal options and viable strategies for your case. We stand ready to fight for your rights anywherein the United States.