Criminal Forfeiture

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 What is Criminal Forfeiture?

Asset forfeiture laws permit the state governments as well as the federal governments to seize property that was:

  • Used during the commission of a crime; or
  • Obtained through criminal activity.

Examples of types of property which may be seized include:

  • Drug money;
  • Vehicles used to transport drugs; and
  • Vehicles used to transport weapons.

The government is also permitted to seize personal property which was only tangentially related to the illegal activity, for example, homes or businesses. Criminal forfeiture occurs when an individual’s property is taken by the state, typically in connection with criminal activity.

For example, if an individual’s home was being used to manufacture illegal drugs, that home may be seized as part of the criminal investigation and trial. This process is referred to as criminal forfeiture, where the individual forfeits the property that was connected to the criminal offense.

What is the Difference between Criminal and Civil Forfeiture?

There are 2 main categories of asset forfeiture in the United States, criminal forfeiture and civil forfeiture. Criminal forfeiture is less common.

It typically occurs after an individual has been convicted of a crime. It is commonly used as part of the punishment the defendant receives.

Civil forfeiture, in contrast, does not operate through the criminal justice system. Instead, the government essentially sues the property to gain possession of it.

This process results in some strange case names, for example:

  • United States v. $100,000 in U.S. Currency;
  • California v. 500 Cedar Street; and
  • United States v. A 1965 Ford Mustang.

If the state or federal government believes that a piece of property is being used to commit a crime, it is only required to present probable cause that the suspicion is true. This is a low burden of proof.

This burden of proof is typically defined as reasonable belief. Once this burden is met by the government, the owner of the property is required to prove that it was not used to commit a crime by a preponderance of the evidence.

This means that the owner must show it is more likely than not that the property was not used in the commission of a crime. Although this is a fairly low burden of proof, it is often difficult to prove a negative.

When Does Criminal Forfeiture Apply?

Criminal forfeiture typically applies when:

  • Forfeiture is permitted under the laws of the jurisdiction;
  • The defendant is in the process of being convicted or has been convicted of a crime; and
  • The property has a strong enough connection to the criminal activity to justify depriving the owner of the property.

Commonly seized property items and assets in a criminal forfeiture action include:

  • Homes;
  • Businesses and business assets;
  • Automobiles; and
  • Other types of real property.

In particular, criminal forfeiture applies especially to certain offenses more than others, for example:

What are My Rights When it Comes to Criminal Forfeiture of Property?

An individual’s rights in connection with a criminal forfeiture will vary by state in addition to the type of crime that was involved. An important aspect of criminal forfeiture is the timing of when the issue is raised.

In the majority of cases, a defendant will be provided with advance notice of the forfeiture issue even before prosecution begins. If the defendant is provided notice, it may be possible to address the issue of forfeiture through a plea negotiation with the prosecutor.

In some cases, however, criminal forfeiture is only raised at a later time, for example, during the trial or following the conviction. If this occurs, the forfeiture may depend upon the evidence which is presented during the trial.

No matter the circumstances, it is important for an individual to have a criminal lawyer representing them because they would be aware of how to raise issues related to criminal forfeiture because it is possible to lose the opportunity to raise the issue.

Does Double Jeopardy Apply to Forfeiture?

Similar to most questions involving law, it depends. If a defendant was convicted and sentenced already, a criminal forfeiture may constitute a second punishment, therefore triggering double jeopardy.

A civil forfeiture, on the other hand, is not considered a prosecution or a punishment. Additionally, civil forfeiture proceedings typically occur prior to sentencing.

Therefore, a civil forfeiture is not a second prosecution or punishment for double jeopardy purposes.

Are There Any Defenses to Forfeiture?

Because criminal forfeiture only occurs after the defendant is convicted of the crime, the best defense to criminal forfeiture is to present a successful defense against the underlying criminal charge. It is trickier with civil forfeiture.

In a civil forfeiture, instead of focusing on the underlying criminal charge, the defense should be based upon law enforcement and the defendant’s conduct regarding the property itself. Forfeitures are based upon law enforcement search and seizure powers.

If law enforcement does not have a warrant to search, they must have probable cause to search and seize the property. Proving that law enforcement lacked probable cause in searching and seizing the forfeited property can often be detrimental to the government’s case.

If the property was not connected to the criminal offense, then law enforcement does not have a basis for seizing the property. For example, suppose a drug dealer used a rental property to sell drugs.

The landlord may be able to argue that the building should not be subject to forfeiture because the landlord did everything a reasonable and innocent owner could do, including calling law enforcement and evicting tenants who use drugs.

Are There Any Limitations to Forfeiture?

There are a few limitations to forfeiture, however, they are not difficult for the government to overcome. The forfeiture must be substantially connected to the crime.

Law enforcement is not permitted to seize property unless they believe that the property was being used to violate a law. The legal standard, however, preponderance of the evidence, however, is quite low, as noted above.

Because of this, it is easy for local, state, or federal governments to prove that the property was connected to criminal activity. For example, law enforcement often seizes cash from a driver moving across state lines if that driver is transporting thousands of dollars.

The argument for this practice is that large amounts of concealed cash is sufficient evidence that a driver intended to purchase illegal drugs. If the government is able to show that the property was used to facilitate a crime, which they typically can, the defendant will have the opportunity to show that the government’s accusations are not true.

The issue with this limitation is that, in many states, the burden of proof shifts to the defendant and the rules of evidence that normally aid a defendant in a criminal case does not apply in a civil case. The most significant limitations on forfeitures are based on procedural issues rather than individual rights.

The federal government is required to provide notice to the owner of the property. The failure to send this notice within a certain time period will be detrimental to the government’s case, so it is important for an individual to watch for that notice.

The government is permitted to keep forfeited property if the owner does not prevail in court. In certain jurisdictions, if the government fails to properly seize the forfeited property, the government may only keep that property for a certain period of time.

In these cases, the owner may have a second chance to retrieve their property.

Should I Consult an Attorney if My Property has been Seized?

The laws governing forfeiture of property are among the most complex and technical in the country. It may be very helpful to consult with a criminal defense attorney in these types of cases.

In addition, this is a specialized area of law. Therefore, you should consult with an attorney who has experience in these types of proceedings to set your case up for the most favorable outcome.

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