Asset forfeiture happens when the government requires a person to give up possessions linked to criminal activity. By requiring offenders to surrender their property, the government and law enforcement have reduced any incentive for illicit behavior. By preventing the criminal from controlling the resources usually required to carry out these illicit acts, asset forfeiture removes the profit from crime.
Additionally, asset forfeiture is a powerful tool for making amends for unjustified victims. The return of property to victims, specifically in white-collar crimes, is a top goal. Most often, white-collar crime victims have stolen money from them.
What Distinguishes Criminal Forfeiture from Civil Forfeiture?
Asset forfeiture comes in three types: administrative, civil, and criminal. Once the person is the target of the action, criminal forfeiture happens. Once found guilty, forfeiture can be applied to this person.
In contrast, a civil forfeiture action is taken against the property, and even if there are no criminal repercussions, the property is “sued” as an asset in a crime. Additionally, no criminal charge is necessary for administrative forfeitures.
Crime Forfeiture Measures
The conditions listed below must be satisfied for a criminal forfeiture case to proceed:
- It is legal to forfeit property in the jurisdiction;
- The defendant has been found guilty of, or is being tried for, a crime; and
- The property’s relation to the crime is significant enough to warrant depriving the owner of it.
The property will subsequently be subject to a court order for seizure. The attempt by the government to seize the defendant’s property is added to the criminal complaint or indictment as a distinct and supplementary count or charge.
At this stage, uninvolved persons interested in the confiscated property may step forward and try to reclaim it. To regain title to the property, the uninvolved third party must make a showing of ownership. To challenge the government in an evidentiary hearing, where the burden of proof lies with the party claiming an interest in the subject property, these third parties are often needed to file a petition.
Even if they did nothing to stop the property’s improper use, innocent third parties could typically receive their property back.
Suppose a third party purchased an interest in the property after it had been tainted by criminal conduct. In that case, they must demonstrate that they were an innocent buyer who had no reason to suspect the property was being used for criminal purposes or was otherwise liable to forfeiture.
Actions for Civil Forfeiture
Criminal asset forfeiture proceedings are not conducted similarly to civil forfeiture cases. Neither criminal investigations nor arrests are made. In this case, the government chooses to take only civil action; it will file a civil legal lawsuit to permanently take and forfeit the particular piece of property it wants to seize.
In a civil case, the government has a substantially lower standard of proof. It is sufficient for the government to demonstrate a sufficient link between property and illegal behavior rather than having to establish anyone’s guilt on a criminal charge.
The government frequently tries to shift the burden of proof onto the property owner or claimant, forcing them to demonstrate that the property they want to reclaim came from a legal source and was not associated with any illegal activity.
Forfeiture of Administrative Assets
Governmental organizations like the Department of Justice, Drug Enforcement Administration, Federal Bureau of Investigation, Customs Service, Internal Revenue Service, or the Bureau of Alcohol, Tobacco, and Firearms may initiate administrative asset forfeitures, which are non-judicial actions.
Each agency handles these forfeitures internally; no court litigation is involved in this process. These forfeitures are typical and account for the vast bulk of federal forfeitures.
What Sort of Property Is Seized in a Procedural Against Asset Forfeiture?
In connection with a criminal forfeiture process, federal law permits the government to seize various forms of property. They consist of the following:
- Weapons used or intended for use in connection with the drug crime;
- Criminal paraphernalia;
- Property used to create, process, deliver, import, or export drugs, such as cars, boats, planes, materials, products, and equipment;
- Money (if more than $300); and,
- Real estate (such as house and land).
As mentioned above, the property owner need not be guilty of a crime for civil forfeiture procedures to begin. According to civil asset law, the property is accused of committing a crime.
Therefore, authorities can seize vehicles, houses, cash, or valuables without bringing a criminal complaint against the property’s owner. Similar to civil asset forfeiture processes, administrative asset forfeiture proceedings are carried out.
What Takes Place With My Property?
Unless the property is seized as proof of a crime, when police or the government confiscate someone’s property through asset forfeiture, the property will be returned when the case is over.
But there are some exceptions. The property cannot be returned if it is illegal in its own right or falls under one of these exclusions. The government will issue a receipt to the owner for any property taken.
A notice from the government stating that the person’s property is being held for asset forfeiture will be given if it is detained for this purpose. Even if someone is not guilty of a crime or is not charged at all, they must be successful in a separate forfeiture action to recover their property if the government has taken it through asset forfeiture.
If you get a notice regarding your property, you have a legal need to reply within the timeframes specified in the notice or risk losing your right to the property. A bond will probably be needed for the remainder of the case if the owner asks for a hearing to contest the forfeiture.
The federal Civil Asset Forfeiture Reform Act of 2000 was passed to assist persons facing asset forfeiture proceedings. Those whose assets have been frozen have the right to legal representation throughout the legal process and the provisional return of their frozen assets while the investigation is completed. However, the temporary return of the seized property is not a given. The person must demonstrate that going without the asset would be difficult.
What Factors Does the Government Consider When Taking Property?
Usually, the government will inspect a person’s property to see if it complies with the following standards:
- It is legal to take the property under state or federal forfeiture laws;
- The owner of the property has been found guilty of a crime or is currently awaiting trial;
- There is a direct link between the property and the criminal activity; or
- The government has another valid reason to take the property from the owner.
What Kind of Cases Involve Asset Forfeiture Most Frequently?
One could assume that asset forfeiture cases solely target criminals. This is not the case, though. Civil forfeiture proceedings are equally common as criminal asset forfeiture processes.
These processes do not necessitate a finding of guilt or even a criminal charge, as previously indicated. There are numerous instances where civil and administrative asset forfeiture processes took innocent people’s assets.
Are There Defenses Against Asset Forfeiture?
Depending on your state and federal legislation, there are a variety of defenses that one can make. Defense strategies include, for instance:
Unreliable Third-Party Owner
The third party must prove their ownership interest in the forfeited property and their innocence regarding the property’s seizure in a civil forfeiture process. However, the timing of the innocent owner’s acquisition of a stake in the property is crucial for bringing up this defense.
Provided the third party had an interest in the property when the illegal activity occurred, the person is regarded as an innocent third party if they either were unaware of the illegal activity that led to the forfeiture or took all reasonable steps to stop it after learning about it.
When a third party acquires an interest in the property after the actions leading to the forfeiture have already occurred, the person is regarded as an innocent owner if they were a bona fide buyer or seller of value and were unaware—and could not reasonably be expected to have been unaware—that the property was the subject of a forfeiture proceeding.
Being innocent is not a good defense in a criminal forfeiture case. The third party must establish superior ownership rights by persuasively demonstrating that they have a legal interest or right in the property higher than the criminal defendant’s interest in the property.
The third party was a bona fide purchaser for value is another argument that might be used. It must be proven that an actual purchase was made and that the property was acquired in an arms-length transaction to be recognized as a bona fide purchaser for value. Additionally, it must have been unknown to the person that the property was the subject of a forfeiture case.
Property Value Out of Proportion to Alleged Crime
Suppose it can be demonstrated that the value of the property being seized is disproportionate to the offense accused. In that case, an effective defense may be presented to prevent the property from being confiscated since assets are seized in an asset forfeiture action with the potential goal of compensating victims.
Do I Need Counsel?
If your assets have been taken in a forfeiture proceeding, numerous legal defenses can be made. A criminal lawyer familiar with asset forfeiture matters can help on the arduous path ahead.
