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27 Jul 23

Federal Civil Asset Forfeiture

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Last Updated on: 9th August 2023, 01:25 am

Federal civil asset forfeiture is a huge issue throughout the United States. It differs from criminal asset forfeiture in which a person’s property is forfeited after they have been convicted of a crime. With federal civil asset forfeiture, a person’s property is seized by police even though the individual is never even charged with a crime.

What is Federal Civil Asset Forfeiture?

In general, federal civil asset forfeiture is usually utilized when a person is suspected of some sort of organized criminal activity or for drug related crimes. In most cases, it involves a lawsuit by the government against the property, such as when law enforcement suspects that property is involved in the commission of said crimes. Oddly, the property itself is the defendant in a way.

Although it depends on the jurisdiction, law enforcement officials are required to merely show that a preponderance of the evidence exists regarding the belief that the forfeited property was involved in a suspected crime. However, this is a considerably lower standard of proof than what is required to convict a person of a crime. It is why property can be so readily seized from a person when they are not convicted or even charged of a crime. However, at the same time, even if it is proven that the person who owns the property is completely innocent of any crime, if the property is believed to have been involved in the commission of a crime, they may never get that property back.

In most cases, property involved in a federal civil asset forfeiture is sold at auction, which means the owner can never recover it. The majority of the proceeds earned from the sale, including any cash that may have also been seized, goes directly to law enforcement.

Organizations that are typically involved in federal civil asset forfeiture include the Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA), as well as others. The Supreme Court gives these agencies the legal right to seize property suspected in crimes. However, as per the law, the government is required to send property owners written notice of the situation within 60 days of seizing the property.

If the owner of the property sends a claim to the government agency about the upcoming asset forfeiture, the government has 90 days to either file a civil complaint against the seized property or get a criminal indictment for the forfeiture. If the government fails to do either of those things, it is required to return the property to its owner.

Asset Forfeiture and Equitable Sharing

Back in July 2017, then Attorney General Jeff Sessions announced a plan to revive the Equitable Sharing Program. This would allow better collaboration between federal agencies and state and local police. This means that agencies that seized property in federal asset forfeiture cases would be able to return 80 percent of the money back to state agencies. It is controversial but allows agencies on the local sector to bypass state laws that put a limit on the amount earned from seized assets that they are allowed to keep.

For example, some states make it illegal for law enforcement agencies to use funds from asset forfeiture. However, with this program, law enforcement officials would be able to claim 80 percent of the funds to use right in their own police departments.

Unfortunately for people who lose their property to federal asset forfeiture, they usually never recover that property, even if they can prove that it was never used in a crime. A person may request of law enforcement authorities to get their property back, but the authorities would likely not comply. Additionally, they can legally refuse as well.

Don’t deal with Federal Civil Asset Forfeiture alone. Speak to the Spodek Law Group today.

Federal Civil Asset Forfeiture

The federal government originally instituted the practice of criminal asset forfeiture as a way to combat crime. It was surmised that the loss of assets would affect the way career criminals conduct their illicit affairs and asset forfeiture worked well for achieving that goal. It worked well enough, in fact, that government agencies have started using a variation of the law to seize assets from other individuals. Here’s a closer look at the law and why it affects more than just criminals.

Civil Asset Forfeiture in a Nutshell

Unlike criminal asset forfeiture, civil asset forfeiture isn’t dependent upon any criminal charges. The police, or other law enforcement agencies, only need to suspect an individual of committing crimes related to drug trafficking or other types of organized crime. Instead of gathering evidence to use against the individual, the government essentially files a lawsuit, naming the property, or assets, as the defendant. If you are convicted, you might want to consider appealing the crime and speaking to a federal criminal appeals lawyer. The term for this is “in rem” and it allows the government to take the items named in the lawsuit into custody.

Law enforcement can’t just take anything they want, however. They’re required to establish probable cause that the property was used in the commission of a crime. This is done by presenting a “preponderance of the evidence,” meaning evidence cumulatively suggests guilt. This requirement is far less than what is required to obtain a conviction in a court of law, making it easier for law enforcement to seize property than it would be to make a valid arrest. In many cases, the individual is never even charged with a crime, suggesting the seizure has more to do with profit than with enforcing laws.

Once the property is seized, it’s unlikely that the individual will ever have his property returned to him. Even supposing he’s arrested, tried, and acquitted of crimes related to the seizure of the property, the government rarely returns the assets in question. Instead, the property is sold at government auctions and profits from the sales go toward funding the law enforcement agency. Some jurisdictions at the state level may divert funds raised from such auctions toward education and other purposes, but, in most cases, the agency or department responsible for seizing the property keeps the money.

Law Enforcement Cooperation in Civil Asset Forfeiture

In addition to state police departments, federal agencies, such as the F.B.I. and D.E.A., are also authorized in seizing assets. The law, which is established in Title 18, § 981 of the U.S. Code, has been challenged and upheld in the U.S. Supreme Court, indicating that it’s here to stay. That doesn’t mean there aren’t strict rules governing the seizure of assets.

Federal law prohibits agencies from claiming assets whenever they choose. The agency or department must first notify the property owner in writing within a 60 day period preceding the seizure. In many cases, the property owner is able to get an extension on the deadline in court. Additionally, the individual may submit an official challenge against the agency seeking to seize the property. If this occurs, the agency has 90 days to act, either by filing a formal “in rem” civil complaint or by filing criminal charges against the individual.

Unfortunately, the nature of a civil asset forfeiture precludes the right to an attorney. Technically, the action is against the property, not the individual, so the right to counsel isn’t permitted. Courts may make an exception, if the property is the individual’s primary place of residence.

What happens when states and federal agencies clash over property seizures? In July of this year, Attorney General Jeff Sessions introduced plans for an Equitable Sharing Program, which would promote greater cooperation between agencies at the state and federal levels. In circumstances where the seizure of property is the result of state and federal collaboration, the assets will be seized by the federal government, but 80% of profits derived from the sale of the property is returned to the state or local agency.

The proposal is controversial, because it gives local police agencies leverage over the state. For instance, in states where local agencies are prohibited from keeping assets obtained through forfeitures, they need only ask for federal assistance. The federal agency will come in, seize and auction the property, and return 80% of the sale to the local city or county agency, bypassing the state police entirely.

Where asset forfeiture was introduced as a means of fighting crime, recent years have shown that it has become a means of securing funding for agencies. Both state and federal law enforcement organizations have begun to use civil asset forfeiture laws to their advantage, instead of utilizing them for the purposes for which they were created. Fortunately, the requirement of notification gives private citizens some advanced warning, which may be used to plan a defense. By contacting an attorney experienced in challenging asset forfeitures, you may be able to stall or prevent the seizure of your property under forfeiture laws.

Federal Civil Asset Forfeiture

Federal civil asset forfeiture is a form of property confiscation by the state. It is used to obtain the possible instruments or alleged proceeds of criminal activity. This can occur in cases involving civil and criminal offenses, terrorist activities, drug-related crimes and more. The goal of asset forfeiture is to disrupt criminal activity. Confiscating the assets that benefit the criminal behavior of an organization or individual is intended to decrease such criminal activity.

Types of Forfeiture
Under federal law, there are three different types of forfeiture. They are criminal, civil judicial as well as administrative forfeiture.

*Criminal Forfeiture – This will happen as a part of the criminal prosecution of an individual or organization accused of a federal crime. This is an action that makes it necessary for the government to indict property utilized or derived from the crime alleged to have been committed by the defendant. In a criminal forfeiture, the defendant does have the right to contest the asset seizure using trial proceedings.

*Civil Judicial Forfeiture – This is a judicial process. A criminal conviction is not required. It is considered a legal tool that enables law enforcement to confiscate any property believed to have been involved in a crime. This is considered an action filed against the property and not a person or organization. This type of forfeiture can also be contested using a trial proceeding.

*Administrative Forfeiture – Most of the cases involving federal forfeiture are uncontested. This happened even if it is associated with a criminal case. Administrative forfeiture happens when property is seized, but there is no claim submitted to contest the seizure. Certain types of property may be administratively forfeited. It includes property that is not more than $500,000 in value, a conveyance utilized to transport, import, or store a controlled substance as well as merchandise legally prohibited from importation. According to federal law, there are strict notification requirements and deadlines required during this forfeiture process. Should the seizure be contested, then the government of the United States must participate in a civil or criminal forfeiture proceeding.

Using Forfeited Assets
All over the United States, there are forfeited assets being utilized to help law enforcement and support communities. Here are examples of some ways forfeited assets have been utilized.

*Purchase of defibrillators
*Refurbish shelter for victims of child abuse
*Provide drug treatment facilities
*Equipment for 911 call centers
*Fund job skills programs
*Body cameras and bulletproof vests for law enforcement
*Salaries for school resource officers
*Rescue kits to help victims of an overdose
*Purchasing bomb-sniffing dogs

Innocent Owner Defense
Unfortunately, a person can be innocent and still have their assets seized. Once an innocent person or organization have their assets seized, there is no legal requirement for their assets to be returned to them. The United States Supreme Court has ruled the innocent owner defense is not a constitutional requirement. Two things that must be proven before property can be returned.

1. A person or organization must establish they were not involved in any type of criminal activity.

2. It must also be established a person or organization had no knowledge their asset was being utilized to facilitate the commission of a crime. It must also be proven the person or organization took necessary steps in their circumstances to stop any such use. The success rate of winning back assets is low. Many times, the person or organization that owned the property finds it too much trouble to pursue. They move on rather than try to overturn a forfeiture using the court system.

Equitable Sharing
This program makes it possible for local law enforcement officials to work with federal law enforcement to seize property using federal forfeiture laws. This happens even when state laws may not permit these types of seizures. Using the equitable sharing program, local law enforcement agencies can keep a portion of the proceeds when they seize assets using federal forfeiture laws. The rest is given to the federal government. In this way, local law enforcement can bypass state law and benefit from federal civil asset forfeitures.

Challenging Asset Forfeiture
In many cases, if a victim challenges a property seizure, it is possible for a prosecutor to return half of the seized assets. This is done in exchange for not suing. This also happens with local police departments who return seized assets in exchange or a promise to not bring a lawsuit against the police department. It is estimated that only one percent of assets seized during a forfeiture are ever returned to their original owners.

There are a number of legal defenses that have been successfully used against a federal civil asset forfeiture. In court, the government will have the burden of proving, by a preponderance of the evidence, that the assets seized were used in specific illegal activities. The owners of the assets may succeed with an affirmative defense. They may be able to prove the assets were used in criminal activity without their knowledge or permission. An experienced New York City criminal defense lawyer will know how to defend the victim of an unlawful federal civil asset seizure. They will know how to secure the seized property and make their clients whole again.