Asset Forfeiture Settlement Negotiation
The federal government exercises tremendous authority to seize and forfeit property, including money, cars, real property, electronics, vehicles, and other miscellaneous property associated with illegal conduct. Several federal statutes allow the taking of property if the government can demonstrate that the property in question was obtained with proceeds traceable to a crime, or that the property was used to commit a crime. Often law enforcement agencies will take the property even if they have no concrete proof to show that the owner committed the alleged crimes.
To get your property back, you have to navigate the complex procedures of civil forfeiture cases. Moreover, just like with almost every legal proceeding, individuals will have the opportunity to negotiate before the case goes to trial. Some individuals will offer to settle the case and allow law enforcement to keep some of their property if they can avoid a trial and the expense of it. Even in a situation where you know you committed no crime, you are going to find yourself negotiating with the government.
The procedures for asset forfeiture settlement negotiation raise questions for all but the skilled and experienced asset forfeiture attorney:
When and how do you claim the property so that it will be recognized by a federal court?
How do you explain your ownership of the property without admitting that it was involved in illegal activity?
How do you handle an asset forfeiture case without incriminating yourself in a criminal case?
The Asset Forfeiture Attorney has the experience to guide you through the process, challenge the seizure, and negotiate a settlement that will help you get your property back. We have seen many individuals accept an offer that is not necessarily fair, but we have negotiated on behalf of our clients on many occasions and have been able to get a fair settlement successfully. We can help you:
Prepare and file an administrative claim
Respond to the government’s asset forfeiture complaint
Prepare appropriate defenses
Litigate substance motions asserting your rights
Investigate and defend against the government investigation to discover
Negotiate a favorable settlement
Fight the case at trial is a favorable agreement is not reached
We combine our knowledge and experience with civil litigation and criminal law to counsel and defend our clients. Our goal is to stop the government from forfeiting what you worked so hard to earn. Contact Asset Forfeiture Attorney at 888-571-5590 for a free consultation.
Forfeiture Claims Deadlines
A person who has received notice of asset forfeiture has only a limited amount of time to respond. Different procedures apply, and different deadlines govern the time allowed for a response, depending on whether the notice is governed by state or federal law, and whether the case is criminal or civil in nature. The claim deadlines are strictly enforced. You may qualify to file a property recovery claim if you have received such a notice, but you should act promptly to ensure you do it within the deadline. Also, it is important that you speak with an asset forfeiture attorney before filing a claim because any mistakes you make may subject you to criminal prosecution and ultimate loss of your property. Contact the Asset Forfeiture Attorney to determine your options before they expire.
Understanding Settlements in Asset Forfeiture Cases
The term settlement in criminal asset forfeiture includes:
A plea agreement with the defendant which addresses the forfeiture of seized property, or
An agreement of third-party claim resolution in the ancillary proceeding of the criminal case.
In civil forfeiture, the settlement is the resolution of a claim filed before or after the judicial complaint is filed. Settlement may also refer to the dismissal of an asset forfeiture case, or the release of property seized or restrained for the purposes of forfeiture. Negotiations between the defendant and federal agents involved may result in an agreement where the defendant will pay a sum of money to the federal government as, for example, a penalty or fine.
Consulting with the Seizing Agency for Forfeiture Settlement
Settlements to forfeit property are designed to conserve the resources of both the claimants and the government in situations where justice will be served. The investigating agent and the Assistant United States Attorney (AUSA) have an obligation to determine what property is being processed for an administrative forfeiture before any type of settlement is discussed. What’s more, negotiations about the return of property subject to administrative forfeiture procedures cannot commence without the AUSAs, and the defendant’s counsel is consulting the seizing agency. Property that has been subject to administrative forfeiture belongs to the Government and cannot be returned or be used to pay restitution in a plea bargain, except through the restoration process. All settlements in an asset forfeiture case must be negotiated in consultation with the U.S. Marshals Service and the seizing agency.
When negotiating and structuring settlements, the critical principle that must be applied is that forfeiture should not be used to gain an advantage in a criminal case. What’s more, the negotiation and settlements should be arrived at in compliance with Attorney General Order No. 92-1598, Appendix to Subpart Y, Part 0, Title 28, Code of Federal Regulations (C.F.R.). The term settlement, for the purpose of this chapter, includes a plea agreement in a case where there is an agreement regarding the forfeiture of property, the resolution of a claim filed by any claimant in forfeiture case, and the resolution of a third party claim in the ancillary proceedings of a criminal case, either before and after a judicial complaint is filed.
There must be a basis for the asset forfeiture and should be stated in the settlement documents to satisfy the elements of this statute. This means that the Government should not try to agree to a settlement in order to recover the costs associated with its investigation. In some circumstances, however, it may be inappropriate to receive extraordinary expenditures like funds required to clean up environmental damage that has affected the forfeited property. The parties involved should seek input from the U.S. Marshal Service to determine current and future expenses and ensure that the settlement is fiscally sound from the viewpoint of the Government.
Negotiating a Settlement on the Hearing Date
On the hearing date, the claimants will have the opportunity to negotiate an out of court settlement with a representative of the law enforcement agency involved in seizing the property and the State’s Prosecuting Attorney. If the parties reach a settlement, a Proposed Civil Settlement Agreement and Release of Liability form will be prepared by the State’s Attorney. All the parties will sign the form to show agreement with the settlement and the State’s Attorney will then prepare a Proposed Order of Compromise and Settlement. However, the disposition of the property only occurs after the judge issues an Order of Compromise and Settlement.
If a settlement cannot be reached, the case will proceed to a hearing, and the judge will have up to 90 days to render a decision. If you’d like to have the hearing held on another date, you will be required to file a Motion for Continuance and the judge’s ruling.
Settlement Negotiations Involving Fugitives
Prosecutors in asset forfeiture cases are trained to avoid negotiations with fugitives if there are no compelling circumstances. The prosecutors should exhaust all viable pre-trial motions before undertaking such negotiations. The prosecutors may consider negotiations with fugitives if the cost of maintaining the asset subject to forfeiture will be paid off by a settlement. Under civil forfeiture laws, the government can seize property without any criminal conviction for the same alleged criminal activity. Individuals who want to get their property back have to prove that the property is “innocent” or not linked to the criminal activity in question. However, the “fugitive disentitlement” doctrine prevents fugitive defendants from even making an argument. Negotiation with a fugitive is discouraged since he/she is barred from challenging asset forfeiture.
Prosecutors negotiate forfeiture settlements with fugitives only as a last resort. This usually occurs when they take into account the Government’s litigation risk should the case proceed to trial. For instance, negotiations may be conducted if the case involves tangible property incurring storage expenses or property with accruing lien. In such cases, the government will be open to negotiation so as to resolve the forfeiture matter quickly. However, a prosecutor should not settle the case in terms of releasing the assets if the defendant agrees to surrender and face criminal charges.
Monetary Amounts in an Asset Forfeiture Settlement
The Government has the authority to settle criminal and civil forfeiture cases in which:
The amount involved is between $100,000 and $5 million, if the amount to be released is not more than 15% of the amount involved.
The amount involved is less than 100,000 regardless of the amount that would be released as a result of the settlement.
In all other cases, the Money Laundering and Asset Recovery Section (MLARS) must approve the settlement. The chief of MLARS can approve any settlement required to be submitted for approval, except in a case where the amount to be released is more than $2 million and exceeds 15% of the amount involved. In such cases, the State’s Attorney should seek approval from the Deputy Attorney General.
In a civil forfeiture case, the “amount involved” referred to the fair market value of the interest claimed by the defendant in negotiations with the Government. If the person is claiming an interest in multiple assets, the amount involved is the aggregate of the interests. In a criminal forfeiture case, on the other hand, the amount involved is the fair market value of the defendant’s interest in the value of seized or restrained property subject to forfeiture.
The amount to be released refers to the value of the property that a defendant, claimant, or third party in the ancillary proceeding would be permitted to retain or would recover. The fair market value of the real property for the purposes of forfeiture settlements refers to the appraised value of the property without any outstanding liens, mortgages, and/or unpaid property taxes.
Settlement of Forfeiture and Plea Bargaining
A civil forfeiture action may be concluded in conjunction with the criminal charges against the defendant. However, the government cannot reach an agreement with the defendant to release seized property in order to coerce the defendant to plead guilty to the substantive charges. Also, the government cannot agree to dismiss the criminal charges in an attempt to coerce the defendant into a forfeiture settlement. This means that an asset cannot be forfeited to allow the defendant to submit property so as to lighten the potential incarceration component of the punishment. If a plea agreement is not meant to dismiss the asset forfeiture case, the judge should state that in the plea agreement. Failure to follow this guideline could have significant negative implications for the concurrent asset forfeiture action.
To the maximum extent possible, the forfeiture agreement and criminal plea should finalize the defendant’s business with the government. So, delaying an asset forfeiture agreement until after the criminal case is concluded tends to extend the government’s involvement with the defendant and also reduces its effectiveness. If the defendant wishes to forfeit the property after thorough negotiations and a plea agreement, the plea agreement should state that the defendant has any his/her constitutional and statutory rights. Any settlement should be documented separately from the plea agreement and should state:
The defendant’s interest in the property,
The defendant/claimant gives up all rights to the property,
The defendant gives up any right to contest the forfeiture,
He/she admits to the facts supporting forfeiture, and
Asset forfeiture settlement should be supported by a written agreement.
In addition, the defendant must admit to facts supporting the forfeiture. However, the government will still have the right to reopen a civil forfeiture action if it is determined that the defendant violated his/her plea agreement or the settlement was based on false information. The settlement must also state that the forfeited property may not be reacquired by the defendant/claimant directly or indirectly through people acting in concert with him/her. However, family members with a partial interest in the forfeited property may be allowed to purchase the interest.
Unless specified, the terms of the settlement will not affect the defendant’s tax obligations, penalties, fines, or any other monetary obligations owed to the government. This should be stated clearly in the settlement documents. Also, the Government cannot use a settlement to recover the costs of the investigations.
Negotiating a Monetary Amount in Lieu of Forfeiture
The Government may accept an agreed amount of money in lieu of the seized property when it’s in the best interests of justice. In a judicial forfeiture case, the Government, with court approval, may also accept an agreed amount of money in lieu of forfeitable property, which has not been seized.
In administrative forfeitures, the federal seizing agencies can accept and seize an agreed amount of money after negotiations with the defendant and his/her counsel pursuant to 18 U.S.C. § 981(d). However, the FBI and DEA limit their use of this authority only to cases where a timely claim for the seized property has been filed, and substitution is in the best interests of justice. The case must have been referred to the U.S. Attorney’s Office in order to initiate judicial forfeiture proceedings. After consultations and negotiations, a monetary amount of money may be accepted in lieu of forfeiture, and the U.S. Attorney’s Office will refer the matter back to the seizing agency in order to affect the settlement. In judicial forfeiture cases, the money accepted by the Government in lieu of forfeiture must be transferred to the USMS district office. Pursuant to the order of forfeiture, the amount will be deposited in the manner as it applies to the forfeited property. If the USMS and the seizing agency disagree with the settlement proposal made by the U.S. Attorney, the matter may be referred to the MLARS for resolution.
Finding Help with Asset Forfeiture Settlement Negotiation Near Me
What should you do if federal agents seize your belongings, empty or freeze your bank accounts, or serve you with a notice that your house is subject to forfeiture? It is common for individuals in such situations to believe that they can never get their belongings back. The Asset Forfeiture Attorney focuses on protecting your property and rights. In essence, the asset forfeiture process is initiated after a court issues a warrant based on allegations that the property was used in or derived from criminal activity. It also starts when the police seize property without a warrant, such as during a traffic stop, and then allege that the property is tainted by crime.
Our legal team works meticulously to challenge the government’s procedure and engage in negotiations to ensure our clients get a favorable settlement after their property has been seized. We work by identifying unsubstantiated claims, challenging specious conclusions, refuting testimony, checking the backgrounds of investigators, examining potential violations, and challenging unreliable prosecution evidence. When necessary, we employ tactics to establish separation of the seized property from the alleged crime.