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Federal Criminal Forfeiture – Federal Civil Forfeiture

July 7, 2020

As a function of a criminal prosecution of a defendant in federal court, the prosecution can bring an action to charge the property used in the commission of a crime or received as proceeds from the crime, in tandem with charging the defendant in a case. If a jury concludes that the property is forfeitable, then the court can issue an order of forfeiture. What this means to you is that if you are facing federal criminal charges, not only is your freedom at stake, but it is also possible that your home, money, vehicle, boat, or any other property you own could also be in peril. It is critical that you retain a defense lawyer who can take the time to deal with the many various elements of a complex case.  Your attorney’s experience should allow them to handle the criminal forfeiture considerations you might also be dealing with. 

What is the Difference Between a Criminal Forfeiture and a Civil Forfeiture?

Both kinds of forfeiture actions are brought by a prosecutor against property.  If you are convicted of a crime, the government can take possession of any property connected to the crime from you through criminal forfeiture.  On the other hand, a civil forfeiture allows the government to pursue a legal action against specific property alone.  In the event that you lose a civil forfeiture case, your property will be seized, the fact that you may not have ever committed a crime notwithstanding. 

How Exactly Does a Criminal Forfeiture Work?

Pursuant to 18 U.S.C. 982,  a long list of offenses might prompt the prosecution to bring criminal forfeiture actions against a defendant’s property. When rendering a verdict and imposing a sentence, the court would require a person to forfeit any real or personal property that was  involved in these offenses to the federal government. Such property can include anything that was employed in the commission of the crime, any profits gained as proceeds from the commission of the crime, or any items used to facilitate the commission of a crime.

Due to the fact that the standards for what is forfeit-able are so vague, there is not much the government won’t target  if you are facing prosecution for a federal criminal offense. 

How Much of My Property Can The Government Seize Through Criminal Forfeiture?

In the event that you are convicted of a federal offense, there is no limit to the amount of property the government can seize.  Under some circumstances, including drug crime cases, the government is required to hold a hearing where third parties can claim an interest in the property to be seized; however the amount you will lose is not affected either way. 

On top of that, the government could pursue a civil forfeiture action against your property alone even if a conviction against you is not possible.  In some situations, an administrative forfeiture could be an option.  This type of forfeiture takes the court process out of the equation completely. It is critical that you have a seasoned, specialized attorney who can sort through the multiple actions against you and comprehensively protect you on every separate matter.

If you are convicted of a crime, the government can take possession of any property connected to the crime from you through criminal forfeiture. The federal government, on the other hand, can also take your property from you even if you have not even been convicted of a crime. This is known as a civil forfeiture.  It is sometimes referred to as a civil asset forfeiture.  A civil forfeiture allows the government to pursue a legal action against specific property alone.  In the event that you lose a civil forfeiture case, your property will be seized, the fact that you may not have ever committed a crime notwithstanding. 

What Is Civil Judicial Forfeiture?

Civil judicial forfeiture, also known as an in rem (against the property) action, is not brought against a person, but rather against property. Therefore, the case pits the prosecution against the property itself.  In other words, the property acts as the defendant. What this means to you is that even though no charges may be pending against you as the owner of the property, the action against the property could, nonetheless, lead to possible forfeiture.

What is an Administrative Forfeiture

Administrative forfeiture, also an in rem action, is a related proceeding that permits an agency to bypass the court and seize property such as money or imported items. In other words, no judicial involvement is necessary to authorize this type of seizure.  For example, if you attempt to import something illegal in your suitcase, it can be seized at the airport by U.S. Customs without warning.

According to the Tariff Act of 1930, 19 U.S.C. § 1607, property that can be administratively forfeited is: 

  • any merchandise, the importation of which is prohibited by law; 
  • a conveyance used to import, transport, or store any controlled substance; 
  • any monetary instrument; or 
  • other property that is not worth more than $500,000 in value.

As the owner of property seized by the government, a civil forfeiture case does afford you an opportunity to fight back and protect your property. For example, in seizures that are connected to money laundering statutes, obscenity statutes, the Controlled Substances Act (CSA), Racketeer Influenced and Corrupt Organizations (RICO), an ancillary hearing allows third parties to assert their interest in the property. After the interests of third parties are heard and taken into record, the court then issues a final forfeiture order.  All that said, it is generally extremely difficult to defend your property against the federal government’s attorneys and their wealth of resources. 

Federal Civil Forfeiture Defense

Civil forfeiture gives the government the right to confiscate money, cars, homes, and other property that is suspected to have been involved in criminal activity.  They can accomplish this without every bringing any charges against a person. What this right has created is an incentive for the federal government and federal agencies to carry out actions against property for profit, even when the evidence against an individual is weak.

Our attorneys will go the distance to defend your property and prove to the court that you are the rightful and lawful owner. 

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