Joint Property Forfeiture.

There are three types of forfeiture: criminal forfeiture, civil judicial forfeiture, and administrative forfeiture. Federal civil forfeiture can proceed without charging or convicting the property owner. Civil forfeiture is an in-rem proceeding directed against the property itself. Federal criminal forfeiture is brought against a defendant within the criminal prosecution. Federal criminal forfeiture generally follows a conviction and forms part of sentencing, but prosecutors can pursue a forfeiture money judgment if the property has been transferred and cannot be reclaimed.

The most effective way to protect your interest in joint property is to assert an innocent-owner defense. Under this defense, an owner who lacks knowledge of the property’s connection to illegal activity may be able to protect their share. The innocent-owner defense is available in civil forfeiture proceedings, though it generally does not apply to the defendant in a criminal case. In criminal forfeiture proceedings, a third party generally has 30 days after the final publication of notice or receipt of notice, whichever is earlier, to petition the court for a hearing to adjudicate the validity of the third party’s alleged interest in the property.

The innocent-owner defense is not available to co-owners who knew of the conduct giving rise to forfeiture unless, upon learning of it, they did all that reasonably could be expected under the circumstances to terminate the property's use.

Owners can challenge a seizure of joint property by filing a petition or a motion for return of property. In some cases, the innocent-owner defense can be used to help prevent the seizure of joint property in the first place. If the government has initiated a civil forfeiture proceeding, the property owner can also assert a claim in the civil suit.

Regardless of the circumstances surrounding the seizure of joint property, owners must take immediate steps to protect their interests. If you or a member of your family is facing the loss of your interest in joint property, call Spodek Law Group as soon as possible.

How does a co-owner turn a forfeiture notice into a court case?

Federal law creates an “administrative forfeiture” procedure under which federal agencies are permitted to seize and forfeit certain property without any court proceedings whatsoever. However, the administrative forfeiture procedure does not apply to real property, and federal agencies cannot use this procedure to seize land or buildings.

According to one federal source, “administrative forfeiture” is the federal government’s primary means of forfeiting personal property. “This section applies to property with a value of $500,000 or less, and that is subject to administrative forfeiture under the applicable statute.”

If you are facing the loss of your interest in jointly held personal property, and you believe your interest should not be subject to forfeiture, you may be able to assert a claim to the property. This is different from asserting an innocent-owner defense, as asserting a claim is about claiming legal possession and ownership as well as challenging the government’s attempt to forfeit the joint property. Filing a timely administrative claim requires the government either to commence a judicial forfeiture action or return the property, subject to statutory exceptions. In most cases, owners have at least 35 days after the notice is sent to assert their claims in administrative forfeiture cases, although exceptions apply.

Alternatively, you may be able to file a remission petition. A remission petition asks the seizing agency for discretionary relief to return the owner’s interest in the property rather than seeking to keep the property through the forfeiture process. Like the innocent-owner defense, which is used to defend against forfeiture, a remission petition asks the government to return seized joint property without the owner having to prove a legal right to possession. This procedure asks for discretionary relief from the agency’s seizing unit, and you are not entitled to a court hearing if the agency denies your petition.

Unfortunately, failing to file a required claim can produce forfeiture by default. Even if a forfeiture case is deserved, the government may still be required to follow proper procedures in order to execute a forfeiture. Administrative forfeiture is a process whereby federal agencies can seize property and permanently dispose of it without ever referring the case to a judge to determine the merits of the government’s claims. This provides owners with fewer safeguards than they have in other types of forfeiture cases. Administrative forfeiture may permanently dispose of a co-owner’s interest without a judge ever reviewing the merits of the government’s claims. This means that administrative forfeiture may pose risks to co-owners that have not been present in previous forfeiture cases.

Spodek Law Group keeps an attorney on call around the clock, which is the whole point of a number you can ring at two in the morning.

Which proof can preserve an innocent co-owner's share?

In some cases, it will be possible to use other evidence to help demonstrate that a co-owner’s interest in the jointly-held property is not available for forfeiture. For instance, if a suspected drug offense has occurred and cash has been found on the property or within proximity of the drugs, the government may seek to include that cash as a subject of forfeiture proceedings. In this case, an innocent owner may want to show that they withdrew consent for the use of a joint property for criminal purposes.

A bona-fide purchaser for value can also assert innocent-owner protection when one of the previous owners of the purchased property used it for illegal purposes. This may include showing that reasonable steps were taken to stop illegal use of a shared resource, or that the fraudulent or illegal use was outside the scope of the purchaser’s ownership.

Forfeiture can often be challenged in other circumstances. For example, if one spouse uses a jointly owned house for criminal activity, the other spouse may be entitled to shelter protection as an innocent spouse. That exception is limited to maintaining reasonable shelter for the claimant and dependents residing with the claimant.

Co-owners may be able to rebut allegations that jointly-owned money is subject to forfeiture by showing that the money came from legitimate sources. Along with a legitimation of the funds, the owner may also show a lack of personal participation in the criminal activity at issue.

To challenge a seizure of cash, the claimant will need to assert a claim to the property. This is in addition to asserting that the property is the result of legitimate-source income or other non-criminal financial transactions. A claim to the property is most frequently proven by tracing the money back to its source. If the government seizes cash from you or your family member, you should immediately document the legitimate source of those funds. The government’s ability to challenge this will depend on the level of scrutiny they are able to apply to the financial source of the funds and any evidence they have regarding the source of the cash. For example, if you can provide documentation from your bank regarding the source of the cash, the government may find it difficult to challenge your ownership claim.

Why can a seizure be challenged separately from forfeiture?

Forfeiture disputes have multiple aspects, each of which may provide grounds for an innocent owner’s claim. These aspects range from the procedural to the substantive. Challenging a seizure separately from the forfeiture is important because it involves a different set of issues, such as whether the property was lawfully seized. Each is a distinct part of the legal process, and there are multiple opportunities for owners to challenge the government’s attempts to forfeit their property in the course of their litigation.

The Merits of Forfeiture

In federal civil forfeiture cases, the government has to prove that the property in question was used or intended for use in commission of a crime, used to facilitate a crime, or derived from the proceeds of a crime. The standard for proof in these proceedings is a “preponderance of the evidence,” which means it is more probable than not that the government’s claims are accurate. However, it is important to note that, while the government bears the merits burden for forfeiture in federal civil cases, the burden is not on owners generally.

Unlawful Seizure

The rules for federal seizure and forfeiture are not the same as the rules for criminal charges, and, as a result, a warrant is not always required for a seizure to be considered lawful. However, there are exceptions. If the government’s seizure of property violates the Fourth Amendment of the U.S. Constitution, owners may be entitled to assert a claim based on an unlawful search. This can have implications for the underlying forfeiture case as well.

Rule 41(g)

Rule 41(g) of the Federal Rules of Criminal Procedure is also a procedural avenue for challenging the seizure of personal property. This rule provides the grounds for motioning for the return of seized property.

Negotiated Settlement

As with other types of disputes, forfeiture disputes can often be settled. There are many ways that owners can settle these cases out-of-court, and prosecutors or seizing federal agencies may be open to negotiated settlements in order to avoid the risks of taking a case through a full trial.

Location of Seizure

For cases that involve property-seizure litigation, this litigation often occurs where the property was seized. This can be a significant burden for owners who live far from the jurisdiction where their interest in joint property is at stake.

If You Want Someone to Look at Your Case

Reading about a charge is not the same as having someone read your file. Spodek Law Group keeps an attorney on call around the clock, and the first consultation costs nothing and runs as long as your questions do. The number is 888 348 8028.