NATIONALLY RECOGNIZED FEDERAL LAWYERS
Last Updated on: 9th August 2023, 12:13 am
There is a legal action that can be brought in conjunction with the criminal prosecution of a defendant, it is called criminal forfeiture. This legal action involves the government seizing property derived from or utilized in connection with a crime. Should a jury render a verdict that property listed as part of a crime is forfeitable, the court will then issue a legal order of forfeiture.
The history of asset forfeiture is one of an ancient practice done by governments for hundreds of years. It was utilized to discourage and defend against piracy. Governments would seize a vessel and all the contraband it contained.
Use Of Forfeiture Laws
Today, federal criminal asset forfeiture laws are used to remove the tools of a criminal’s trade. It is used to dismantle, disrupt and deter criminals from going after the vulnerable for financial gain. A goal of these laws is to return assets to a victim.
The Department of Justice Asset Forfeiture Program has returned billions of forfeited assets to victims. This has been done by placing forfeited funds with courts so victims can be paid restitution. The forfeited property has been used for everything from building government facilities to sheltering child abuse victims as well as advancing community-based policing. Forfeited funds have been used to finance the salaries of school resource officers, job skills programs, bulletproof vests, bomb-sniffing canines and more.
An effort was made to fight organized crime and drug trafficking starting in the 1970s. In order to make this possible, federal lawmakers significantly expanded forfeiture laws in the United States. Since these laws have been put in place, the value and amount of personal and real property seized by the federal government have increased dramatically. Agents of the federal government can seize a boat if they can prove it was utilized to transport drugs. They can seize a warehouse and all its contents if it can be shown the warehouse was used to store drugs. A residence can be seized, if it can be shown it was bought using money made from illegal activity. A car can also be seized, if it is shown the vehicle was purchased using funds from illegal activity or was used in the commission of illegal acts.
The federal government is using criminal asset forfeiture as a way to undermine criminal enterprise infrastructures. In many cases, a criminal enterprise will function as a legitimate business. They will need cash flow, as well as employees, and equipment to operate. A criminal enterprise generates its profits from the sale of illegal services or products. With federal asset forfeiture, the equipment, as well as profits, and the products seized by the government could make a criminal enterprise unable to operate.
Not every federal criminal case will involve forfeiture. This can only be utilized if a defendant is charged with a crime that permits forfeiture. It can be used with crimes involving child pornography, money laundering, organized crime, drug trafficking as well as copyright infringement and more. In order for forfeiture to be utilized, a defendant must be convicted of a crime.
It is up to a prosecutor to show assets should be seized after a defendant is convicted of a crime that permits it. A prosecutor will have to convince a jury using evidence that a defendant’s property was used as part of their criminal activity. Prior to assets being seized, a prosecutor will have to follow the legal standard applicable to the criminal conviction.
Third Party Interests
In a federal criminal asset forfeiture case, an individual has the right to challenge the seizure of their property during trial proceedings. An ancillary hearing for third parties will take place. These hearings are so third parties can assert interest concerning their property. A court will issue a final forfeiture order once the interests of the third party are addressed.
Should a person be charged or convicted of a crime where asset forfeiture is involved, they could lose a substantial amount of their assets. In many cases, criminal forfeiture laws have been abused by the government. In this situation, the help of an experienced attorney can make a huge difference. They will know how to protect a person’s rights. An attorney can help a person lose as little as possible in asset forfeiture and obtain the best possible outcome.
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Federal Criminal Asset Forfeiture
Asset forfeiture can be practiced on either a state or a federal level. Different states have different procedures and rules in place regarding asset forfeiture. The federal regulations remain the same regardless of the state you’re in. When you talk to a federal asset forfeiture attorney, they can explain the important differences between federal asset forfeiture and the asset forfeiture procedures in the courts of whatever state you reside in.
State asset forfeitures are typically completed through the District Attorney’s office or through the office of the Attorney General. Meanwhile, federal asset forfeitures are presided over by the Attorney’s Office of the United States. Federal law regarding forfeitures codifies three types of actions: administrative, civil or in rem, and criminal. Asset forfeitures on a federal level are managed by Assistant United States Attorney Generals. These are attorneys who work on behalf of the federal government in more than ninety different federal sections throughout the US.
Some states, like New Jersey and Connecticut, have only one federal district that encompasses all the counties and individuals living inside the borders. But for larger and more populous states, the land is broken down further into segmented districts. If you live in New York, the federal district you’re part of will vary depending on your geographic location in the state. There are four federal districts, one of which encompasses roughly each cardinal location on the map.
When federal asset forfeiture occurs, it’s most commonly of the criminal type. A criminal forfeiture occurs when the federal government informs you that, should you be convicted of a crime you’ve been charged with, the government will forfeit certain pieces of your property. Sometimes the government will already know what pieces of property they intend to seize, in which case these pieces of property must be detailed and explained on the initial indictment. The government might also put in writing that they are seeking a “money judgment,” which occurs when a judge rules that you owe a certain sum of money. Usually, the sum of money is the same as the amount of money you supposedly made from your criminal activity.
There are stipulations in federal law that indicate that criminal forfeiture can be used as a portion of a defendant’s sentence. criminal forfeiture cannot be authorized except through a United States District Judge, an approved federal judge who makes rulings in federal criminal cases. The forfeiture is usually handed down as part of the sentence when an individual is convicted of a crime. Forfeitures don’t need to be proven beyond a reasonable contest; they only need to be based on a cursory examination of evidence. Because of this, it’s vital that you have the guidance of an experienced federal forfeiture attorney who can understand your options and the importance of the sentence being passed. Should you challenge the terms of the forfeiture after your trial is concluded and you’ve been sentenced, the situation will usually turn into an entirely new mini-trial.
If a federal prosecutor intends to begin a criminal forfeiture procedure, the first step is to inform the defendant that the US government intends to forfeit that person’s property in the event of a conviction. This notice needs to be included in an official criminal indictment. As such, the investigating entity needs to be considering and planning for forfeiture early in the criminal investigation process. It can’t be shoehorned in later.
If the criminal case goes to trial rather than being dismissed or ending in a plea deal, there will be no mention of asset forfeiture until a verdict has been rendered. Assuming the defendant is found guilty, a new proceeding will begin to determine the asset forfeiture. To forfeit a defendant’s property, the government is required to provide evidence indicating that the property is tied to their criminal activity. It’s not required that the government prove this fact beyond a reasonable doubt.
When a jury considers forfeiture, owning the property in question isn’t an issue. In fact, to keep the government from unfairly seizing property from criminally convicted individuals, there is legislation specifying that the government is only able to forfeit the property of a defendant who is convicted in federal criminal proceedings. If the property belongs to a person other than the defendant, like a spouse or immediate family member, the government has no right to seize it.
One problem that may arise is that third parties affected by a criminal case cannot make their voices heard during that case in federal court. As such, if you’re a person whose property is being seized due to another individual’s criminal actions, you’ll need to wait for the initial proceedings to conclude. Then you’ll be able to participate in an ancillary proceeding, which is the point at which third parties are allowed to assert their property rights.
Federal Criminal Asset Forfeiture
Asset forfeiture is a practice that was traditionally used as a measure of fighting piracy. Currently, it is used to fight drug trafficking organizations and organized crime. Asset forfeiture is particularly indispensable in the fight against white collar crime. Recent studies have shown that a huge share of federal forfeiture cases concern white collar crime. In the past decade, the Department of Justice recovered over billion from criminal fraud proceeds through asset forfeiture. Here is a brief overview of what asset forfeiture entails and how it is used to recover assets for victims.
What is Asset Forfeiture?
Asset forfeiture is the seizure of property that is acquired through criminal means, or involved in a crime, or which makes it easier to commit a crime. For example, consider a scenario where a person uses their business to operate a ponzi scheme and uses money derived from this scheme to purchase fancy items like boats, cars, and condominiums. If you are convicted, you might want to consider appealing the crime and speaking to a federal criminal appeals lawyer. The government can step in to seize the business because it is involved in a crime and has facilitated criminal activities, or made it easier to conceal and commit criminal activities. Since the boats, cars, and condominiums were acquired through the business proceeds, the government may also forfeit these assets.
Types of Forfeiture
Asset forfeiture can be classified into three branches under federal law: civil judicial forfeiture, administrative forfeiture, and criminal forfeiture.
Civil Judicial Forfeiture: This is a judicial process that permits law enforcement agencies to seize assets that have been involved in a crime. Civil judicial forfeiture is also known as in rem action. This means the action is subject to property and not the person who owns the property.
Administrative Forfeiture: An administrative forfeiture is one where no one objects to the seizure of property. Examples of assets that can be administratively forfeited include a monetary instrument, merchandise that is prohibited from importation, and property whose value is not more than $500,000. Real property and houses are not subject to administrative forfeiture. If a seizure is contested, the government may resort to civil judicial or criminal forfeiture to claim the property.
criminal Forfeiture: A criminal forfeiture is also known as an in personam action. In this action, the government indicts both the property used or acquired through criminal means, and the defendant. Individuals who are subject to criminal forfeiture can contest the acquisition through trial proceedings.
Methods of Seizure For criminal Forfeiture
The government has no right to take possession of assets without a protective order or a seizure warrant.
After the government files an indictment, the court can enter a restraining order to preserve the availability of assets that are subject to forfeiture. When the concerned parties appear for a hearing, the court will determine that:
- The government is likely to prevail on the case of forfeiture and; therefore, failure to issue a protective order will result in the property being made unavailable for forfeiture
- The need for the availability of the property is more important than any hardship on the party against whom the order is served
criminal Seizure Warrants
- The assets are subject to forfeiture
- A restraining order is not enough to preserve the availability of the assets for forfeiture
Disposition of Forfeited Assets
After a criminal forfeiture order is acquired and the assets of a defendant are seized, the Department of Justice is authorized to return the forfeited assets to the victims of the criminal offenses that led to the forfeiture. The Department of Justice gives back forfeited assets to victims through the “Victim Asset Recovery Program” (VARP). VARP is executed by a team of professionals including claim analysts, auditors, accountants, and lawyers in the Asset Forfeiture and Money Laundering Section, a branch of the Department of Justice’s criminal Division. There are two main procedures used to return seized assets to victims:
This is a process through which the attorney general uses their discretion to liquidate forfeited assets so as to provide financial payments to victims who incurred losses from the offense that led to the forfeiture.
This is a process through which the attorney general uses their discretion to subject forfeited assets to the restitution imposed by the court against a defendant. Restitution is used to impose equitable measures against a defendant during sentencing. Restitution helps make the victims of a crime whole and prevent the defendants from ripping benefits from their criminal activities.
The Take Away
criminal asset forfeiture is decided on a lower burden of proof than other criminal cases. In the event you need immediate funding, and loans, you can get a hard money loan against the assets taken away from you. The courts normally make rulings in these cases based on a preponderance of evidence. A criminal forfeiture can cause you to lose valuable assets which you cannot reclaim in future. To protect your assets and yourself from the negative effects of property forfeiture, you should hire a criminal asset forfeiture lawyer to protect your interests.