Asset forfeiture occurs when assets or property are confiscated by the state. It is sometimes known by other names, such as “asset seizure”, or simply “confiscation”. In the context of a criminal case, criminal asset forfeiture allows the government to take the property of persons who have been convicted of certain crimes. This generally occurs where the property is used to further a specific crime, or is somehow connected to a crime.
The main purpose of a criminal asset forfeiture is to help disrupt the criminal activity and prevent the property from being used for further criminal conduct. In many it is actually money that is confiscated, such as when authorities seize the profits from drug sales. Criminal forfeiture is commonly associated with specific types of criminal activity, such as:
- Drug related crimes, especially distribution and manufacturing of illegal drugs;
- Terrorist activities;
- Crimes involving the storage and manufacture of illegal guns;
- Warehouse activity involving counterfeit products;
- Violations involving patented or copyrighted goods; and/or
- Various other types of criminal activity.
For example, a person convicted of making drugs in their home may face a governmental seizure of said home. Here, the seizure occurs in order to prevent the individual (or criminal organization) from continuing to produce illegal drugs.
Some civil cases may also involve some aspects of asset forfeiture. However, civil asset forfeiture cases can involve many different factors and aspects than criminal asset forfeiture. To begin with, in a criminal asset forfeiture case, the property is seized by the government due to a wrongful action by the owner. Whereas civil forfeiture does not require a criminal conviction or wrongdoing, and the property is seized due to some other reason (like failure to pay taxes).
While sometimes the phrases are used interchangeably, there is a difference between civil and criminal forfeiture. Other differences between criminal and civil asset forfeiture cases include:
- The standard of proof is higher in a criminal case (beyond a reasonable doubt standard);
- The state generally provides the defendant with an attorney in criminal cases;
- Criminal assets that were seized may sometimes be used to fund state activities, such as recruiting or placing more officers in the force; and
- Civil forfeiture is typically federal but criminal forfeiture typically follows state laws.
Not all property is subject to criminal asset forfeiture. Generally speaking, the government can only take property which meets one or both criteria:
- The property was used during a crime; and
- The property was obtained as a result of criminal activity.
To illustrate, in the first category, a car may be seized by the government if it was used to transport drugs. Since the property was used during the commission of a crime, it may become subject to criminal asset forfeiture.
In the second category, items such as automobiles or homes can often be seized if they were purchased with money from selling illegal weapons, drugs, or other contraband.
In addition, when determining whether to make a seizure, the government will look at a person’s property to determine if it meets the following requirements:
- Taking the property is allowed under the state or federal forfeiture laws;
- The owner of the property was convicted or is in the process of being convicted of a crime; and
- There is a strong connection between the property and the criminal activity or the government can otherwise justify taking the property from the owner.
The “innocent owner defense” may sometimes be raised by a defendant in order to keep their property from being forfeited in a criminal case. Under this defense, the defendant claims that their property should not be forfeited because they are innocent of the crime connected with the property. In order to claim this defense, the defendant must usually prove that they did not partake in the crime and:
- They lacked knowledge of the crime; and
- They did not give consent to the crime occurring.
An example of this might be where a property owner leaves their property for a few months to go on a business trip in another country. Suppose that, without the owner’s consent, and without their knowledge, a group of people entered the property and used it to store and transfer drugs. If the drug operation is brought down, the owner of the property may use the innocent owner defense to prevent the house from being confiscated, since they were not aware of the illegal activity and never consented to it.
Criminal asset forfeiture laws are technical and complicated. Seek the advice of a local criminal defense lawyer to understand more about the laws and how to possibly regain property. An attorney can provide guidance and can also represent you in court during trial.