What asset forfeiture laws target proceeds of white collar crime?
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Asset Forfeiture Laws and White Collar Crime
If you’ve been accused of a white collar crime, your lawyer might warn you that the government could seize your valuable assets through something called asset forfeiture. This basically means any property or money connected to the alleged crime could be taken away. Asset forfeiture laws allow prosecutors to hit white collar criminals “where it hurts” – right in the wallet!
These laws have their roots in efforts to combat organized crime and drug trafficking. But nowadays they also apply to many financial and corporate crimes. The idea is to not just send someone to prison, but also take away the ill-gotten gains. Supporters argue asset forfeiture is an important tool to disrupt criminal operations. But critics say it lacks sufficient due process protections for property owners.
Key Federal Asset Forfeiture Laws
There’s a whole web of federal statutes that provide for criminal and civil asset forfeiture. Some of the main ones used in white collar cases include:
- The Racketeer Influenced and Corrupt Organizations (RICO) Act – This 1970 law aimed at the mafia contains provisions for criminal forfeiture of property connected to racketeering crimes. Any profits or proceeds from the criminal activity can be seized.
- Money Laundering Control Act – Passed in 1986, this law allows cash or property involved in transactions aimed at concealing criminal profits to be confiscated.
- Criminal Forfeiture Statutes – Various federal fraud, bribery, and other financial crime laws authorize seizure of property linked to violations.
In addition to criminal forfeiture, federal agencies like the FBI and IRS can pursue civil asset forfeiture without having to first convict someone of a crime. They just need to show there’s a preponderance of evidence connecting the assets to criminal activity.
How Asset Forfeiture Works
If you’re charged with a white collar offense like securities fraud or embezzlement, here’s a quick overview of how asset forfeiture may play out:
- Prosecutors will look to identify assets like houses, cars, boats, cash, stocks, etc. that are linked to the alleged criminal conduct. Things bought with illicit profits are prime targets.
- The forfeiture allegations will be included in the indictment outlining the charges against you.
- If convicted, the court can order forfeiture of the identified assets as part of your sentence.
- The government then takes ownership and liquidates the assets, using the proceeds for law enforcement purposes.
With civil forfeiture, law enforcement can often seize assets without even filing criminal charges. They’ll initiate their own legal case against the property itself and try to confiscate it by proving it’s tied to illegal activity.
What Assets are Vulnerable?
Prosecutors cast a wide net when it comes to forfeitable assets. Basically any property connected to the alleged crime either directly or indirectly could be targeted:
- Proceeds: Money or items obtained directly from the criminal activity.
- Facilitating Property: Things like cars, computers, or real estate used to facilitate the offense.
- Involved Property: Funds commingled with criminal proceeds, like adding dirty money to a bank account.
- Substitute Assets: Legally acquired property used as a replacement for forfeitable assets that can’t be located or have substantially declined in value.
And it’s not just the accused’s assets at risk. Prosecutors can also seek forfeiture of property transferred to third parties if there’s evidence it was done to shield assets from seizure. So things you donate or gift to friends or relatives could be clawed back.
Fighting Back Against Excessive Seizures
Civil liberties groups argue asset forfeiture is often abused in cases involving “ordinary” citizens not typically linked with organized crime:
- Property owners bear the burden of challenging seizures and proving assets are “innocent.”
- Law enforcement agencies have a financial incentive to pursue forfeiture since they keep a cut of the proceeds.
- Seizures can happen without due process safeguards you’d see in a criminal case.
There have been some attempts to reform federal asset forfeiture laws to better protect property rights:
- The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) raised the government’s burden of proof in civil cases and allowed property owners to request a jury trial.
- Recent proposals would eliminate the financial incentive for law enforcement to pursue forfeiture and shift the burden of proof onto the government.
But major changes face significant political hurdles. So if you’re embroiled in a white collar case where forfeiture is on the table, here are some practical tips:
- Consult an experienced attorney to carefully assess each asset prosecutors are targeting and build defenses to protect legitimate property.
- Scrutinize the strength of the government’s evidence connecting each asset to alleged criminal conduct.
- Negotiate with prosecutors and highlight weaknesses in their forfeiture claims.
- For facilitating property like houses or cars, argue forfeiture would be an excessive fine under the Eighth Amendment.
- Distinguish assets obtained legally vs. those directly traceable to any admitted criminal conduct.
Bottom line – with billions of dollars seized every year through asset forfeiture, the government wields powerful weapons against accused white collar offenders. So protecting your property and limiting financial damage should be a top priority.
References
A Look at Asset Forfeiture and White Collar Crime
Penalties for White-Collar Crimes in New York
Hit Them Where It Hurts: RICO Criminal Forfeitures and White Collar Crime
Asset Forfeiture for White Collar Crimes – What Are Your Rights?