Asset forfeiture is brought as a part of the criminal prosecution of the defendant. If the government is successful, certain of the defendant’s property or assets will be confiscated by the state.
Criminal asset forfeiture is a powerful tool used by law enforcement agencies against criminals and criminal organizations to deprive them of their ill-gotten gains, through seizure of these assets.
The government’s reasons for conducting forfeitures include:
- Removing the tools of crime so they cannot be used again
- Recovering property for victims of crime
- Deterring crime by taking away the profit
- Punishing the wrongdoer
Criminal forfeiture is available to the prosecutors when part of the defendant’s property was connected to a crime in some way. For example, if a person uses a car to transport illegal drugs, that car would be subject to criminal forfeiture. Likewise, any money obtained from selling the illegal drugs would also be subject to criminal forfeiture.
Criminal asset forfeiture is commonly associated with certain types of criminal activity, including:
- Terrorist activities
- Drug related crimes, especially the distribution and manufacturing of illegal drugs
- Crimes involving the manufacture or storage of illegal guns
- Warehouse activity involving counterfeit products
- Illegal use of patented or copyrighted goods
Criminal forfeiture examples include confiscating:
- Money gained through illegal gambling
- A warehouse used to hold illegal weapons
- A truck used to transport illegal drugs
- A cell phone used to conduct criminal activities
When Does Criminal Forfeiture Apply?
Criminal forfeiture typically applies in cases where:
- Forfeiture is permitted under the laws in the jurisdiction
- The defendant has been convicted of, or is in the process of being convicted of, a crime
- The property has a strong enough connection to the criminal conduct to justify depriving an owner of their property
There are some commonly seized assets and properties, including cash, business assets, automobiles, homes, and other types of real property.
Criminal forfeiture applies in certain types of criminal activity more than others, including drug trafficking, racketeering, and illegal gambling
What Are My Rights When it Comes to Criminal Forfeiture of Property?
Your rights in connection with criminal forfeiture will vary from state to state and may depend upon the type of offense involved.
An important aspect of criminal forfeiture is the timing of when it is raised by the prosecution. In the majority of cases, you will be given advance notice of a forfeiture before the court prosecution begins. If you are provided advanced notice of the intended forfeiture, you may be able to address the issue through plea negotiations with the prosecutor before trial starts.
If, however, criminal asset forfeiture is only raised at a later time, including during a trial or after a conviction, you might be able to successfully argue that if you had known the prosecution was going to threaten forfeiture you would have agreed to a plea deal to avoid the forfeiture.
In either situation, it is important to have the representation of a criminal defense lawyer because they will be aware of the steps and know when to raise any issues related to the forfeiture. This is important because it is possible for a defendant to wait too long and then lose the opportunity to raise a defense or objection to the proposed forfeiture.
How Is Criminal Asset Forfeiture Different from Civil Asset Forfeiture?
In criminal forfeiture, the government takes property after obtaining a conviction, as part of the defendant’s sentence. In civil forfeiture, a criminal charge or conviction is not needed; the government only needs to show that the property was used to facilitate a crime.
Civil asset forfeiture does not require a criminal conviction or even any wrongful conduct by the owner of the property. In a civil asset forfeiture, the assets are seized based on another reason, such as failure to pay taxes.
Other differences between the two types of forfeiture include:
- The standard of proof is higher in a criminal case: asset forfeiture in a criminal conviction requires proof beyond a reasonable doubt that the property was used in connection with a crime. In civil forfeiture, the government only needs to show by a preponderance of the evidence (more likely than not) that the property was used to facilitate a crime
- In a criminal case, a defendant may be provided an attorney by the state
- Criminal assets which were seized may, in some cases, be used to fund state activities, including recruiting or placing more law enforcement officers in the force
- Civil forfeiture is typically federal, but criminal forfeiture typically follows state laws
Can the Government Take Any Property I Own?
In general, the government is only permitted to take property which meets one or both of the following criteria:
- The property was used during the commission of a crime, and/or
- The property was obtained as a result of criminal conduct
For example, a vehicle may be seized by the government if it was used to transport drugs, because the vehicle was involved in the crime itself. If the vehicle was simply used to go to the bank to deposit improperly obtained funds, that may not be a close enough tie to the criminal activities and forfeiture may not be allowed.
On the other hand, property may be seized even if it wasn’t used in a crime, but it was obtained with funds gained from the commission of the crime. For example, if a drug dealer uses their ill-gotten gains to buy a boat, the boat may be forfeited even if it was never involved in the commission of a crime.
What Is the “Innocent Owner” Defense?
In some instances, a defendant may raise the “innocent owner defense” in order to prevent their property from being forfeited. Pursuant to this defense, a defendant may claim that their property should not be seized because they are not the one who committed the crime.
In order for a defendant to be able to claim this defense, they typically must prove that:
- They did not participate in the crime
- They had no knowledge of the crime
- They did not provide consent to the crime occurring
For example, suppose a property owner leaves their property for several months to go on a business trip outside the country and, without their consent or knowledge, a group of individuals breaks into the property to use it to store and transfer drugs. If this drug operation is discovered and disbanded, the owner of the property may be able to use the “innocent owner” defense to prevent their house from being seized because they were not aware of the illegal activity and they did not consent to it.
Should I Contact an Attorney About Criminal Asset Forfeiture?
It is essential to have the assistance of a criminal defense lawyer for any issues, questions, or concerns you may have related to criminal asset forfeiture. The laws governing criminal asset forfeiture are technical and complex.
It is important to consult with a local attorney to understand more about the laws of your state and to prevent a seizure or even possibly regain your property. Your attorney can provide you guidance on these issues and can represent you in court.
