What Can the Government Seize in Asset Forfeiture
Asset Forfeiture Attorney is a well-established and highly rated law firm dedicated to serving clients in California and rest of the United States. The experienced attorneys of the firm are skilled with an expertise in handling both criminal and civil cases for recovery of seized assets and forfeited property under the federal and state forfeiture laws. There are many defense strategies that can be argued to challenge the forfeiture and protect a person’s property from seizure. The legal process of asset forfeiture is ever-changing and can be very complicated; your legal rights against the unjust seizure of property may get compromised in the absence of a strong asset forfeiture attorney on your side.
The Basics of Asset Forfeiture
Having its roots in the colonial times, lawmakers started deploying asset forfeiture as a powerful tactical weapon in their fight against drug trafficking and organized crimes during the times between the 1970s and 1980s. The so-called idea of asset forfeiture by the government is to disrupt or dismantle criminal activities and cripple large-scale criminal enterprises by diverting their resources. Recognizing the effectiveness of forfeiture laws, the U.S. government dramatically expanded the use of forfeiture laws in criminal prosecutions, especially involving fraud and white collar crimes.
So, what is asset forfeiture? Asset forfeiture is a commonly used term to describe the confiscation of assets by the government. This powerful, and potentially unfair, tool allows the federal or state government officials to seize assets or take possession of the property they suspect to be derived from a crime or involved in a crime. They may also seize an asset and then forfeit it if the property in question is known to make crime easier to commit or harder to detect. For instance, if you let a friend take your boat out, and while on the boat he sold a baggie of marijuana to one of his associates, then the government under the asset forfeiture laws can seize your boat because it was connected to a drug deal—even though you weren’t on the boat and knew nothing about the illegal sale of drug.
However, in recent years, many law enforcement agencies throughout the United States have filled their coffers with millions of dollars by seizing cars, cash, jewelry, clothing, and other property by tying the property in question to a crime. Asset seizures by police are more inclined towards benefitting their bottom lines rather than crime-fighting. This system of asset forfeiture, which was believed to be inherently abusive, has faced much criticism. Since the government only needs to tie the asset or property in question to a crime with a “preponderance of the evidence”—a much lower standard of proof; there are several lawmakers that look at it as a violation of the civil liberties of the innocent American citizens and sometimes denote it as “policing for profit.”
Types of Forfeiture Actions
Legal systems distinguish between the different types of forfeiture actions. Each kind of forfeiture action is handled differently under state and federal laws.
Criminal Asset Forfeiture
Typically, a criminal asset forfeiture proceeding—an extremely rare action—occurs as part of a sentence following a conviction. Such a forfeiture requires the government to obtain a criminal conviction, and proof that the property seized was used or derived through an illegal activity as the basis of forfeiting property.
Sometimes also referred to as a personal action, this type of asset forfeiture is directed at the person and requires a guilty verdict based on a crime to proceed. In legal terms, it is often referred to as an in personam action as it is pursued as part of a criminal case. Forfeiture of assets is a part of the punishment for the crime along with possible imprisonment.
In criminal forfeiture, the government bears the burden of proving the link between the defendant's criminal conduct and the property to support the seizure. The government has to show proof of the defendant’s crime beyond a reasonable doubt—meaning the evidence shown is fully satisfied, the facts are confirmed, and guilt is established. If the government meets the burden of proof, the court grants a preliminary forfeiture order for the government as to the defendant's interest in the property.
Civil Asset Forfeiture
Also known as civil forfeiture or civil judicial forfeiture, civil asset forfeiture, in the United States, is a type of criminal justice financial obligation. This legal process allows law enforcement officials to take possession of assets from individuals suspected of being involved with criminal or illegal activity. In order words, a suspect can lose their property to asset forfeiture even if they are innocent or not even accused of doing a crime. It usually doesn’t require a conviction.
However, unlike criminal asset forfeiture, this type of asset forfeiture doesn’t necessarily require the property owner to be convicted or accused of criminal charges. In other words, in a civil procedure, assets are confiscated by the law enforcement department based on suspicion of a crime, and without having to charge the asset owner with specific misconduct or wrongdoing. Civil forfeiture does not necessarily require any criminal proceedings or arrests.
In civil forfeiture, the government often pursues a civil action only, which involves filing a civil legal complaint with a motive to permanently seize and forfeit the specific property it seeks to confiscate. This is a lawsuit by the government "against the property," not the person. In legal terms, it is sometimes referred to by the Latin term in rem. It may be strange to believe that the defendant in such a proceeding could be an inanimate property—whether it’s a car or thirty-two gallons of whiskey—and no criminal charge against the owner of the property is needed.
When a law enforcement agency seizes property in civil forfeiture, the onus to prove that the seized property is clean falls on the property owner. The owner of the property has to prove that the property does not come from a legitimate source or not connected to any criminal conduct. In cases when the person doesn’t fight the seizure in court, they automatically lose their property. Moreover, the seized property is sometimes no more than a few thousand dollars, but considering the attorney’s fees, the whole process of legal proceedings ends up being costlier than the property’s real value.
Typically, both criminal and civil forfeitures need judicial involvement; however, there exists a variation of the civil forfeiture, known as administrative forfeiture. This type of asset forfeiture is basically a civil forfeiture that doesn’t need the involvement of the judiciary. Federal forfeitures that go uncontested are commonly known as “administrative forfeitures” and are processed by the law enforcement agency which seized property when authorized by the federal law. In administrative forfeiture, property forfeited may include a conveyance used to import, transport, or store a controlled substance; merchandise prohibited from importation; a monetary instrument; or other property being forfeited has a monetary value less than $500,000. This kind of forfeiture may not forfeit houses and other real property.
Regardless of the asset forfeiture action—civil or criminal—the government has to provide “probable cause” to carry out the seizure. Although as discussed, asset seizure does not mandate criminal charges or conviction of the asset owner, the government must prove that the asset seized, or to be seized, is linked to some form of illegal activity.
Asset Forfeiture: What Kind of Property Can the Government Seize?
An asset could be an item, property or anything that carries worth to an individual who owns it. Under the California law, the various forms of assets subject to seizure include cash, real estate, vehicles, weapons, telecommunication or computer equipment, controlled substances, books and research materials, and in some cases, animals too. Assets in the form of securities, professional certifications, artwork, liquor licenses, negotiable instruments, as well as tax refunds can also be seized.
Depending on the crime, the state or federal government may permit asset forfeiture in a variety of situations, and when the government seizes your property through the asset forfeiture procedure, it is not required to compensate you. A law enforcement agency to seize and forfeit cash, property, and other materials that are believed to be linked with illicit or unlawful activity. This includes the alleged asset proceeds or instruments of the crime, facilitating property, and the property involved in a criminal offense.
By far the most common path to asset forfeiture in California is its drug laws. According to the Health & Safety Code Section 11000 et seq. of California’s Uniform Controlled Substance Act, the government can seize virtually any kind of property involved in a drug-related crime. It may include the illegally transmitted or acquired controlled substance (drugs) as well as the property used in the manufacturing, delivering, and importing or exporting of the same. It can include any property such as boats, planes, or vehicles used to transport or deliver the controlled substances. A warehouse or land (real estate) to store drugs or a residential house if it is shown to be purchased with money made from illegal drug distribution can be seized. However, there are a few exceptions. If a family uses a home for residential or other lawful purposes, the police cannot seize it. Similarly, police cannot seize a real estate property owned by two or more persons wherein one of the owners was unaware of it being used for criminal or unlawful activities.
Government agents can also seize raw materials or equipment used or intended to be used in a drug-related crime. A property could be as trivial as a container used for keeping drugs or as lethal as a weapon. Any weapon, such as a firearm, machete, sword, or anything else, if used or intended for use in relation to the drug crime can be seized.
In a case related to organized crime, asset forfeiture is only possible if there has been a criminal conviction for a “pattern of criminal profiteering activity.” If you are convicted in such a criminal case, the California Control of Profits of Organized Crime Act allows the seizure of any property interest that is acquired through a pattern of criminal profiteering activity, and all proceeds gained from a pattern of criminal profiteering activity. This also includes valuables received in exchange for those proceeds.
Any computer or telecommunication equipment such as a mobile phone used to commit a crime, say online or internet fraud, can be taken in custody.
In cases where a targeted individual is convicted of selling or manufacturing counterfeit trademarks on goods, the vehicles used for transport of the goods in question, the equipment or machinery used to make those fake trademarks as well as the goods themselves can be seized.
Furthermore, any books, records, or research materials utilized with a motive to violate laws relating to controlled substances or other unlawful activity are subject to be seized. The government can seize different kinds of property, such as cash, securities, negotiable instruments, and other items of intrinsic value that were used or intended to be used for sale or transportation of the controlled substances.
In some cases, where an individual is convicted of animal abuse or cruelty, the pet or that animal can be taken away by law enforcement agencies.
Under the federal laws, a property may also be seized by civil proceedings or in administrative action without the involvement of the judiciary. The government, as per the forfeiture laws, is allowed to preserve the seized property and money, destroy it, or sell it and use the proceeds to support law enforcement welfare activities. The Institute of Justice (IJ)—a non-profit, libertarian public interest law firm—has ranked California as the second worst state for its civil asset forfeiture laws with over 65 percent of the forfeiture proceeds going to law enforcement.
Conviction Requirement for Asset Forfeiture
It is important to understand the conviction requirements for any kind of asset forfeiture by the state or federal government. Under the Uniform Controlled Substances Act, California asset forfeiture law requires a conviction in an “underlying or related criminal action” before a possible forfeiture. As per the law: an airplane, boat or any vehicle; any real estate; or money, securities, etc. worth up to twenty-five dollars ($25,000) would require such a conviction before there can be a forfeit. It is noteworthy that the seizure of property does not require a conviction; conviction is required only before a forfeiture. A conviction to crime is also required if the forfeiture is “contested”, which means the burden of proof is on the government to prove that the property in question meets all the required criteria for forfeiture.
For asset forfeiture in a case of organized crime, the prosecutor must file a petition with the county court and notice is served to all the people who share an asset ownership interest by means of registered mail or personal delivery. In case the defendant claims that the property should not be forfeited, then a hearing on the forfeiture is held. The forfeiture hearing is held in the same court as where the trials for criminal charges are being undertaken. In order to prove that the property is subject to forfeiture, the prosecutor must prove the crime beyond a reasonable doubt.
What Defenses Can Be Used Against Asset Forfeiture by the Government?
Based on the specifics of the case, various possible asset forfeiture defenses can be used to prevent the property from being forfeited; the most common defense is the third party "innocent owner" defense. Under this “affirmative defense," that is intended to protect the interests of the genuinely innocent owner, the defendant must establish an ownership interest in the property being forfeited and his/her innocence on the subject of the property’s forfeitability. In order to claim the innocent owner defense and prevent the property from being confiscated, the defendant must show that they were not involved in the crime and that they had no knowledge of the crime and had never consented to the illegal activity.
Based on your Eighth Amendment rights, the proportionality forfeiture defense argues the seizure of certain assets as the value of the forfeited property is grossly disproportionate to the crime or offense in question.
There are a few other defenses that you can raise in order to prevent the property from being forfeited. You may avoid the forfeiture of a vehicle by showing that there is another "innocent" co-owner of the car and that the vehicle is used to fulfill the needs of your immediate family.
All these defense strategies put the burden of proof of the individual facing the forfeiture. Also, the forfeiture process has critical deadlines to mount their defense—the failure to respond and take appropriate steps within the timeline can severely impact their ability to defend their legal rights during the trial, and may lead to losing the only chance to win their property back. Therefore, it is crucial for people facing asset forfeiture to start building their defense as early as possible with the help of an experienced forfeiture attorney.
Find an Asset Forfeiture Attorney Specializing in Asset Forfeiture Cases Near Me
If the government has seized your assets or forfeited your property, wait no more to seek the best legal advice available. Since forfeiture proceedings are subject to crucial deadlines, you can only defend your legal rights and recover your assets or property if you connect with a skilled and experienced law firm like Asset Forfeiture Attorney in a timely manner. The expertise and experience of our attorneys can successfully navigate the ins and outs of an asset forfeiture case and put all possible defense arguments that best represent your interests. Call our asset forfeiture lawyer at 888-571-5590 to get in touch with our highly qualified legal experts to seek advice regarding your asset forfeiture case. We are ready to fight for you and help you get your assets and property back.