Defending Criminal Asset Forfeitures in the United States
It started out innocently enough. You had been smoking marijuana recreationally since it was legalized in your state, but as time went by, prices have gone up much more than your wages have. So, you decided to start growing your own.
You sold a little to a few friends, and it became a nice, easy, extra income stream until you were arrested. Suddenly, you are charged with possession, cultivation, and distribution of cannabis, and faced with criminal forfeiture of your assets, including your home!
Having a skilled attorney on your side can mean the difference between recovering seized assets or losing them forever.
Securing A Strong Criminal Defense
If your assets have been seized, it is crucial for you to obtain skilled legal representation as soon as possible, preferably before speaking to investigators. The forfeiture process includes critical deadlines and an experienced asset forfeiture attorney understands how to take the appropriate steps in a timely manner.
When looking for an asset forfeiture attorney, you need to look for someone who has what it takes to stand up against the ruthless legal process of the government:
- Expertise - Court paperwork has to be done correctly and filed properly on time. If all is not followed to the letter, the consequences can be irreversible.
- Passion - Your property can be seized by law enforcement on a mere suspicion of a crime, before you are even found guilty of anything. It is important to find an attorney who wants to fight back against this atrocity.
- Results - Your attorney should have a well publicized record of success in asset forfeiture cases and have the relationships to back it up. This includes a dedicated team of personnel working on your case 24 hours a day, seven days a week, and having built lasting relationships with other attorneys throughout the United States who understand how the asset forfeiture process works.
- Education - It is important to take into account what law school your attorney graduated from, and what that school's national ranking and reputation is.
- Convenience - Personalized service, regardless of the time of day or night, is also important. Your attorney should always be available to you, particularly during an emergency.
- Cost - You should not have to pay any attorney's fees until you are awarded a settlement. In other words, if you don't get paid, your attorney shouldn't get paid either.
- Experience - Your attorney must be well versed in the complexities of asset forfeiture, because it can include aspects of both civil and criminal forfeiture. Very few attorneys have experience in both.
The Difference Between Civil and Criminal Forfeiture
Federal forfeiture law defines property as anything of value. In other words, it doesn't have to be something tangible. Property includes rights, claims, interests, privileges, and security. There are over 200 federal, state, and local crimes in the United States that allow forfeiture.
Criminal Forfeiture, or in personam action, occurs when a government agency determines that your property was used in commission of an illegal act and seizes that property. It is considered part of the punishment for the crime, so a criminal conviction is required.
The indictment will identify the forfeiture allegation and include a list of property the government wants to seize in connection with that allegation. This list may include businesses, bank accounts, vehicles, houses, and boats.
Because it is an in personam judgement, the court can order you to forfeit other assets that are not listed on the indictment if you are no longer in possession of the named property or they can require you to pay a money judgement.
Criminal Forfeiture usually applies when:
- It is allowed under jurisdictional law
- You have been convicted of or are in the process of being convicted of a crime
- The seized property has been determined to have a strong connection to criminal activity
If you go to trial and a guilty verdict is rendered against you, a second step of the trial called a forfeiture phase will begin. The government now has the burden of proof in regards to connecting the property with your criminal conduct. However, while your guilt had to be proven beyond a reasonable doubt during the initial trial phase, during the forfeiture phase, the government is only required to prove the connection between your crime and the property by a preponderance of the evidence.
A preponderance of the evidence is the amount of evidence required for a civil judgement, and it is based more on how convincing that evidence is versus how much evidence the DA actually presents during your trial.
Finally, if there are any third-party claims, an ancillary hearing must be held to address their claims. Co-owners of seized property often times have no knowledge or involvement in any illegal actions connected to that property. Those co-owners, or third parties, are entitled to a determination of what portion of this joint property they will now be in legal possession of.
Civil Forfeiture occurs in a similar manner to criminal forfeiture, but in the absence of criminal charges. During a Civil Forfeiture, the charges are brought against the property itself. This is called an in rem action. An example of this is if you are pulled over while in the possession of a large amount of cash. The police are unable to bring charges against you, but they are suspicious of where the money came from. By bringing charges against the money, they can still take it from you.
According to the United States government, the goal of Civil Forfeiture is not to punish someone, but to repair the harm caused to society. The forfeiture action is limited to property that is facilitated by or traceable to the offense or that was involved in money laundering. However, if it is your property that is being forfeited, it can bring irreparable harm to you, especially if said property is your home or business.
As with Criminal Forfeiture cases, all third-party claims must be litigated before a judgement on behalf of the government will be rendered.
There is also a third type of forfeiture, Administrative Forfeiture. These cases are processed by the law enforcement agency who seized the assets, when a forfeiture is not contested. The property being forfeited has to be worth less than $500,000, and said property can only be forfeited if federal law permits the law enforcement agency to do so.
In these types of cases, the law enforcement agency is also held to strict deadlines and notifications. The FBI is required to inform you, and anyone else with a potential interest in the property, that they are beginning the Administration Forfeiture process by placing a notice in your local newspaper.
If you don't file a claim to get your property back, it can be lost to Administrative Forfeiture without any civil or criminal proceedings required. While your house is not subject to this type of forfeiture, many other types of property are.
Abuse of Power
The government has hundreds of statutes at its disposal allowing it to seize your property by proving there is a connection between your property and an illegal act. This so-called proof can be no more than probable cause.
Sometimes, police will even use illegal methods, such as defective warrants and unreliable informants to build a case against you. Often times, the government will take everything you own, with the intent to permanently seize, leaving you without any resources before you even have the chance to prove your case.
These statutes contain dozens of categories covering specific crimes including:
- Controlled Substance Crimes
- Drug Trafficking
- Marijuana Cultivation
- Money Laundering
- Tax Evasion
California state law includes the California Health and Safety statute, which covers the forfeiture of controlled substances along with any money, equipment, or vehicles believed to be associated with it.
The police and prosecutors are not above resorting to trickery if you do not have legal representation. Remember, what you say can be used against you, and they have been known to do just that by manipulating you and twisting your words around to suit their own purposes.
In fact, aggressive police officers and prosecutors often benefit directly from what they have seized from you, and they will fight hard to keep it, regardless of whether or not they believe in your innocence.
A Good Defense
There are many legal defenses that an experienced asset forfeiture attorney can present on your behalf. The Innocent Owner defense applies when a property owner claims they are innocent, because they were unaware of any criminal activity taking place there.
For example, a landlord could reasonably explain that he or she had no idea there was any illegal activity taking place on the premises of their rental property. This defense would also apply if you were a co-owner of a property where one or more other co-owners were committing illegal acts that you were unaware of. Or perhaps the seizure is of your vehicle, but you are not the only one who drives it.
Other successful defense strategies are proving that your seized property was purchased by legally obtained funds or the value of it is much higher than the alleged crime.
Illegal search and seizure is another important defense. If law enforcement did not have probable cause to enter your home or pull over your vehicle, any evidence against you can be suppressed.
Even if you think you don't have a viable defense, left in the capable hands of a skilled asset forfeiture attorney, you may be able to beat your case and get your property back.
Conflicts Between Bankruptcy Law and Forfeiture
You may be thinking that filing bankruptcy can be a quick fix. Think again. There are documented cases of defendants who chose that route only to become completely overwhelmed and unsuccessful. Potential problems that can arise when declaring bankruptcy while having assets subject to forfeiture include:
- Whether the property subject to forfeiture is deemed part of the bankruptcy estate
- Whether the forfeiture proceedings are now stayed until the bankruptcy proceedings are concluded
- Whether or not the forfeiture should be determined by bankruptcy forum
The types of property subject to forfeiture falls under a very broad definition, which keeps that property in favor of forfeiture over bankruptcy. Section 853(e) of Title 21 of the United States code allows the federal court to take action, in the form of an injunction or a restraining order, to keep your property available for forfeiture. This can be done both before or after an indictment or filing of information about your case is executed.
In the United States v. Pelullo, the court had to decide what effect the defendant's decision to file bankruptcy had on a judicial order to sell his house. When Mr. Pelullo was unsuccessful in getting a stay on the sale of his home due to a criminal forfeiture, he filed Chapter 11 bankruptcy in an attempt to thwart the seizure by receiving the automatic stay that comes with this bankruptcy filing.
It was not enough, however, to stop the United States Marshal's office from selling his property, because they simply got a retroactive stay order that specifically forbid him from using bankruptcy as a tool to block criminal forfeiture. Mr. Pelullo then filed an appeal, which he subsequently lost, because the criminal forfeiture order was filed first, thereby revoking his right to any interest in said property. Therefore, the automatic stay did not apply when he filed Chapter 11 bankruptcy.
The many complexities of and conflicts between criminal forfeiture and bankruptcy laws require a detailed analysis and could be prohibitively expensive.
Time Is of The Essence
Early intervention is the key to a successful outcome for you. In fact, it is even possible that a dedicated asset forfeiture attorney acting on your behalf can actually intervene and stop charges from ever being filed against you.
After placing you under arrest, the police share the information they have obtained with the District Attorney's office in your jurisdiction. Sometimes, they are in regular contact with the DA's office throughout the entire investigation. If you are without legal representation, the prosecutor simply files charges against you based solely on the information given to him by the police department.
However, if you retain counsel immediately after arrest, you now have a much more even playing field. Your asset forfeiture attorney has an equal opportunity to meet with the DA and present your side of the story. A competent attorney will have gathered his or her own evidentury information and witness statements that, once presented, can lead to a reduction in charges or even to something called a DA Reject, which means the DA decides not to press any charges at all.
Remember, the law spells out very specific deadlines for the necessary paperwork to be filed with the court on your behalf. The government is going to be going full speed ahead with their plans to permanently seize your assets, and you'll have no more than 30 days, in most jurisdictions, to file the required documents needed to mount your defense.
Courts are not sympathetic to anyone who misses these deadlines. Nor do many police officers concern themselves with the fact that you are entitled to a defense, in part, because the law does not allow you to be provided with a public defender. If you are going to fight the forfeiture, enact your right to remain silent and contact an asset forfeiture attorney as soon as possible.
Perhaps you have already contacted a criminal defense attorney who has represented you in the past on an unrelated matter. If so, don't be afraid to get a second opinion. Any and all decisions made by legal counsel have a direct bearing on the outcome of your case. Consulting with an experienced asset forfeiture attorney will provide you with a more comprehensive defense, thereby increasing your odds of a more favorable outcome.
A Proactive Approach
It is detrimental to your case if your defense attorney waits until he or she receive copies of police reports or is given a court date. Instead, your attorney should be using that time to begin their own investigation.
An experienced asset forfeiture attorney knows that the first few days after arrest are critical to preparing your defense, and it will be in your best interest if they begin working on your case before charges are actually filed. A dedicated asset forfeiture attorney will use that time to gather evidence and interview witnesses. He or she will also use this time to:
- Conduct background checks on prosecution witnesses to determine their credibility
- Obtain and view surveillance tapes
- Canvass neighborhoods
By taking a proactive approach, your attorney will be able to give you the best defense possible.
Remember, you have rights during any criminal proceeding, including that of criminal forfeiture. The sooner you take appropriate action to stand up to aggressive law enforcement agencies and the prosecutor's office, the better prepared you will be to face them.
Our Asset Forfeiture Lawyer stands ready to fight for your rights in California and throughout the entire United States. Visit other pages on our website for more information and give us a call toll-free at 888-571-5590. We are available 24 hours a day, seven days a week to provide you with a free and comprehensive consultation and provide you with viable defense strategies geared to your specific case.