There are ample consequences that can come with a conviction for a federal crime. Serving time in federal prison and facing the burden of steep fines are only some of the consequences of a conviction. One repercussion that might not immediately come to mind for some people is criminal forfeiture.
Criminal forfeiture is a power the federal government wields after certain criminal convictions. This process involves a judicial proceeding by the government that, if successful, will lead to the government keeping property owned by the defendant. Forfeiture is designed to remove assets either purchased with the proceeds of a crime or used during the commission of a criminal act.
Much like with a criminal case, you have rights during the forfeiture process. You are entitled to defend your property rights, and there are many circumstances where you could avoid the loss of your property. To discuss your right with an experienced federal defense attorney, contact the Doug Murphy Law Firm, P.C. right away.
Seizure vs. Forfeiture
To delve into this topic, it is important to first understand the differences between seizure and forfeiture. It is not uncommon for these words to be used interchangeably, but the reality is there is a vital difference between the two. Both terms are similar, however, as they involve the legal taking of a defendant's property.
Seizure is the physical restraint of an asset. It locks down money or property that could be instruments or the fruit of criminal activity. Seizure is temporary and can occur prior to a criminal conviction. Federal law enforcement agencies seize property, and the property is held until the court determines it should be returned to the defendant or if forfeiture proceedings may begin.
Seizure is especially common with assets that might be evidence in a criminal investigation. This process can also prevent defendants from moving or liquidating ill-gotten gains prior to trial.
Law enforcement must obtain a warrant signed by a judge to seize assets as evidence for a federal trial.
In the alternative, forfeiture is a formal legal process that leads to the permanent removal of an asset from the defendant's possession. This process can follow the seizure of an asset, but it can be used even on assets that have not previously been seized.
To proceed with forfeiture, the prosecutor needs more than a warrant signed by a judge. There is a formal forfeiture process, which is described below. Forfeiture has less to do with securing evidence for a trial and more to do about removing assets from the defendant's possession.
When can the government seize or forfeit property?
The federal government has always had a limited ability to seize property for crimes like treason. Over the years, the federal government has greatly expanded their ability to seize property in parallel with criminal prosecution. These efforts are typically involved in federal drug crimes and violations of the RICO Act.
There are steps the federal government must take to seize property. Forfeiture can only occur after a conviction and only with specific criminal offenses where the statute allows for it. The offenses that could involve criminal asset forfeiture include:
After a criminal conviction, the prosecutor can make the determination to seek forfeiture of assets of the defendant. The prosecutor must identify each asset they intend to seize and provide notice to the property owner of the forfeiture proceedings. This includes not only the defendant, but any party that has an ownership interest in the property.
What property can be seized and forfeited?
Following a criminal conviction in federal court, a prosecutor does not have free reign to seize every asset a defendant owns. To seize an asset, the prosecutor must establish during a formal proceeding that the asset is tied to the criminal activity. This formal proceeding is essentially a second trial, and it is held in front of a jury. To seize property, the prosecutor must prove that the assets in question meet one of the following criteria:
- The asset was an instrument in a federal crime.
- The asset was obtained through criminal activity.
- The asset was purchased using the proceeds of a federal crime.
There are many ways an asset could be used in the commission of a crime. One of the most common examples are motor vehicles used in the trafficking of narcotics. Computers used to create or distribute child pornography are another example.
Alternatively, the assets obtained through the commission of a criminal act are also eligible. For example, a boat purchased with the profits from drug trafficking could be subject to forfeiture.
Anything of value could be forfeited under federal law. The courts typically give wide latitude on what constitutes an asset. That said, prosecutors are unlikely to win forfeiture proceedings for items that lack real value.
While there is no master list of items that could be forfeited, some common examples include
- Commercial trucks
- Liquor licenses
- Professional certifications
- Rare artwork
- Motor homes
- Real estate
The Government's Burden in a Forfeiture Case
Much like with a criminal trial, it is the burden of the prosecutor to prove that forfeiture is warranted. These processes differ, as the prosecutor must only prove by a preponderance of the evidence that the assets are connected to criminal activity.
During the trial, the federal government must establish a variety of factors to prove their case. Each of these forfeiture hearings will involve establishing a number of certain factors.
The prosecutor will typically begin by establishing the criminal violation that occurred. This will involve not only showing the jury that a conviction was obtained but also that federal law allows forfeiture for this type of conviction.
The prosecutor must also identify the assets they intend to seize. This could involve a thorough evaluation of each asset as well as an explanation of where the asset is currently. If the asset has been seized prior to the hearing, the government will likely review how that came to be.
With these preliminary matters out of the way, the prosecutor will usually next turn to linking the asset to the criminal conviction. This is often the crux of a forfeiture hearing. The government must provide evidence that either proves the asset was used during the commission of the crime or that it was purchased with proceeds of the criminal act.
Witness testimony is necessary in both cases. Federal officers involved in the investigation or arrest could testify as to how the specific asset was used in the crime. For a vehicle, they could testify the car was involved in the traffic stop that led to the trafficking arrest. For computer equipment, the officers could explain to the court they were used by the defendant to transmit child pornography.
Demonstrating that assets were purchased with the proceeds of a criminal act requires financial records. These records can also tie into a money laundering case depending on how the assets were acquired.
The Fate of Seized or Forfeited Assets in Texas
What happens to seized or forfeited assets in Houston or elsewhere in Texas? The answer differs on whether the property was seized or forfeited.
If the federal government has seized your assets, it is possible the property will later be returned to you. The most common way to recover seized assets is to prevail in your criminal trial. If you are not convicted of a crime, the government may not move forward with forfeiture proceedings. An acquittal will not guarantee immediate release of your property, however. If these assets are also evidence in criminal proceedings against other people, the government will be able to hold onto them for those trials as well.
The outcome is not as optimistic following successful forfeiture proceedings. Once the court has ruled against you and forfeiture is complete, you are out of options for retaining the property. If the items hold some sort of sentimental value, there are circumstances where they will be put on public auction. In this case, there is nothing preventing you from purchasing your own items back from the government. In many cases, these items will be donated to federal agencies or used by the government in some capacity. When this occurs, you are likely out of luck on ever seeing your property again.
Let a Houston Federal Defense Attorney Help
Asset forfeiture can add an unexpected layer of frustration in a situation that is already challenging. The positive news is that forfeiture is never guaranteed. You are not only entitled to be heard during the forfeiture proceeding, you could also avoid these hearings entirely by prevailing in your underlying 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 prevailing in your criminal trial. By taking the right affirmative 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.