What is Forfeiture?
Since ancient times, governments have used forfeiture to confiscates assets involved in certain illegal activities. Today, Federal law enforcement agencies use forfeiture in certain crimes to deter and punish criminals, disrupt the financial structure of criminal organizations, remove the items they need to conduct their activity, and deprive individuals of ill-gotten gains. The agencies also often use the proceeds from forfeiture to fund their own operations.
The U.S. government first created a forfeiture law in 1789 to penalize ships committing customs violations and people convicted of treason. In the 1970s and 1980s, Congress greatly expanded the law to allow forfeiture of money or real property used in connection with the illegal drug trade.
The Constitution does not allow the government to deprive someone of their property without due process, however. It must first prove that a person convicted of a crime used the asset to facilitate illicit activity, or received or derived the property from illegal activity. Criminal forfeiture is the legal process through which the government gains the right to remove the disputed asset from an individual permanently.
Although the intent behind forfeiture may be honorable, innocent parties sometimes become entangled in forfeiture proceedings and have their property removed even though they did not participate in the criminal activity.
If you believe the Federal government has wrongfully seized your assets, you must urgently speak with an experienced criminal forfeiture defense attorney to protect your rights and understand your options.
Federal seizure and forfeiture
Before examining forfeiture more closely, it's important to know the difference between seizure and forfeiture. Although people often use the terms interchangeably, they have distinct meanings.
A seizure occurs when Federal government agents take physical possession of an individual's asset because they believe the property was involved in or derived from a crime. At the time of seizure, the owner still has title to the asset, but the Federal government holds it or puts a lien on it until a court decides whether the government must return it or the property is subject to forfeiture. A seizure is thus the first step toward a forfeiture.
In most circumstances, the Federal agent seizing the property must have both probable cause and a warrant signed by a judge. Probable cause means that the agent has reasonable grounds to believe that the property was involved in a crime, or was purchased with the proceeds of criminal activity.
Federal organizations that may seize assets related to drug trafficking include the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS), among others.
Assets subject to Federal seizure and forfeiture
In Federal drug cases, the government may seize assets and seek forfeiture of property that falls into any of the following four categories.
Contraband. Contraband are goods that are illegal to own, sell, possess, or manufacture. In a drug trafficking case, the contraband would be the illegal drugs being trafficked.
Assets derived from illegal activity. When unlawful activity produces certain assets, or the government can trace the assets back to that criminal activity, government officials may seize those assets. For example, the government may seize and seek forfeiture of money arising from drug trafficking. It may also confiscate homes, jewelry, or any personal or real property purchased with money earned from the illegal drug trade.
Tools or instruments used in conjunction with the crime. The government can seize and initiate forfeiture proceedings on any property an individual used to facilitate the drug trade. To illustrate, the government might seize a car, airplane, or a boat that an individual used to transport drugs, or a warehouse or house where individuals stored the drugs. Computers, cell phones, bank accounts, guns, and many other items may be subject to forfeiture under this heading.
Money judgments. A convicted defendant in a drug case will have an ongoing obligation to forfeit the money resulting from or used in the crime, even if he hasn't physically retained the money.
How Forfeiture Works
In a Federal drug crime case, the government has the burden of proving that forfeiture is appropriate. A prosecutor may only succeed in a forfeiture proceeding in a Federal drug case if they meet the following three elements.
1. The defendant has been convicted of a Federal drug crime.
Criminal forfeiture requires that a prosecutor convict the defendant of a Federal drug crime connected to that piece of property. Therefore, if Federal agents seize an asset but never press criminal charges, or the defendant is found not guilty, then the asset is not subject to forfeiture.
If the government has thus seized your property in connection with an alleged drug crime, but has not brought charges, you should immediately speak to an asset forfeiture defense lawyer. The longer you wait, the greater the risk that you will lose your property forever.
2. The property is connected to the crime.
During the forfeiture proceeding, the prosecutor must prove the property was involved in (or derived from) criminal activity for which the defendant was convicted. The court will consider the property to be involved in the criminal activity if it is “contraband,” or the defendant used it to carry out the criminal activity, or the defendant purchased it with proceeds from illegal activity.
The property only has to be loosely related to the crime to be subject to forfeiture. For example, if the defendant occasionally used the family car to transport drugs, it will be subject to forfeiture, even if its primary purpose wasn't for illicit activities. The government may even seize a family home if a party made illegal drug sales within it.
The prosecutor must prove that the property was connected to the crime by a preponderance of the evidence. This evidentiary standard is lower than the ‘reasonable doubt' standard. A preponderance of the evidence means that the court or jury believes there is a greater than 50 percent chance that the property was involved in the crime.
3. The prosecutor has identified the property.
The prosecutor must also identify the property to be forfeited so that third parties with an ownership interest have the opportunity to state their claim. Property identification means that the Federal government publishes a notice describing the property, explaining where to find it, and detailing how it came to be in government possession. Traditionally, the government placed such announcements in newspapers. Today, it lists property in pending Federal forfeiture proceedings on this website.
If innocent parties have an interest in the property, they can appear and object to the property forfeiture. Innocent parties may include owners, co-owners, business partners, unsecured creditors, and lienholders. Thus, if the government seizes a house because the defendant used it for drug trafficking, the homeowner may object and fight the forfeiture.
If the innocent party successfully argues against forfeiture, then the property will be returned to them. However, if the party loses, the court will issue a final order, and the government will become the official owners of the property, to use and dispose of at will.
For this reason, if the government has seized your property, it's critical to retain a skilled and experienced asset forfeiture defense lawyer who will fight for what's yours as soon as possible. Unfortunately, many people needlessly lose their seized property to forfeiture because they did not take legal action fast enough.
Both innocent parties and convicted defendants have several potential asset forfeiture defenses that may shield their property from forfeiture. These include:
• The “innocent owner” defense. Under this defense, an innocent party may argue that they were not aware of or involved in the criminal act that led to the government's seizure of the property. For example, let's say the defendant sold illegal drugs in a borrowed car and the government seizes it. The car's owner may avoid forfeiture by proving they were unaware of the criminal activity, didn't consent to the defending using the vehicle for an illegal purpose, or that they took reasonable measures to prevent the criminal act.
• The “property was not connected to the crime” defense. Property owners often seek to prove that seized assets were neither used for an illegal purpose nor purchased with ill-gotten gains. Defendants might argue that they bought the car, home, or diamond ring that the government seized with money earned at a legitimate job. Alternatively, they might argue that the property was never involved in criminal activity, although the defendant had access to it. For instance, if a drug-dealing defendant had the keys to the owner's car, but the owner can show that the defendant never used it for criminal activity, the owner may be able to stop the forfeiture proceeding.
• The “unreasonable search and seizure” defense. The Fourth Amendment of the Constitution prevents the government from unreasonably searching and seizing an individual's property. Both defendants and innocent parties can argue that the government didn't have the right to seize the property associated with the drug case because they didn't follow the legal procedures, such as obtaining a warrant.
Other defenses may apply to your particular situation.
GET HELP FROM A DEDICATED HOUSTON ASSET FORFEITURE DEFENSE ATTORNEY
If the government has seized your assets in connection to a Federal drug crime, you may feel frustrated and helpless. But forfeiture is not a foregone conclusion. With the help of a knowledgeable lawyer, you may be able to regain your property–and prevail on the associated criminal case.
Attorney Doug Murphy is a board-certified criminal defense lawyer and experienced Federal criminal defense attorney. He can advise you of your rights during the seizure and forfeiture process, as well as your chances for a good outcome in your criminal trial. By taking the right steps, you can avoid losing your assets to the Federal government. To learn more about your rights, schedule a free consultation with the Doug Murphy Law Firm, P.C. today.