How Does Asset Forfeiture Work? - morgan and morgan
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How Does Asset Forfeiture Work?

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How Does Asset Forfeiture Work?

Many people are unaware that the government has the ability to seize certain assets in many different circumstances. It’s more common knowledge that in a criminal case, money that was earned through criminal activity can be seized, but there are many other circumstances in which this can happen as well. It’s important to know your rights so you can ensure that the government isn’t illegally seizing anything from you. If you believe this has happened to you, it’s important to contact a lawyer as soon as possible. Morgan & Morgan has been handling asset forfeitures for decades and we are always happy to assist. We have lawyers throughout the country who can help you with this, so no matter where you’re located, we are here for you. Contact Morgan & Morgan today for a free consultation.  

What Is Asset Forfeiture?

Asset forfeiture occurs when the government confiscates the assets of an individual or group of individuals, particularly when they are suspected of earning profits or any type of monetary gain through criminal activity. This tradition can be traced back to a few hundred years ago when pirates faced the risk of losing their ships once they arrived at a port. 

The United States Attorney’s Office has an asset forfeiture staff responsible for identifying and seizing assets during criminal or civil proceedings. They are also responsible for returning assets to individuals when appropriate.

Types of Asset Forfeiture 

There are three types of asset forfeiture: administrative, criminal, and civil. Below is an explanation of each type, the processes involved, and why it occurs.

Administrative Forfeiture

Through an in rem procedure, the federal government can attempt the forfeiture of a property without having to file a federal complaint or go through a court proceeding. When there is no objection to the seizure of property or assets that resulted from criminal activity, it is known as administrative forfeiture. 

The federal government carries this out directly by issuing a Notice of Proposed Forfeiture every week for at least three weeks in a newspaper that is typically circulated in the federal judicial district where the asset seizure took place. A notice must also be served to whoever owns the assets or property or any other individual who can be easily identified with a verifiable interest in them.

The owners or those with verifiable interest have up to thirty days to make a claim once they receive the Notice of Proposed Forfeiture. If no one comes forward to make a claim to contest the seizure of the assets, the assets are forfeited through an administrative forfeiture action. 

The principal advantage of having no claimant is that it relieves the courts of the hurdles of judicial proceedings. When there is no disagreement about whether assets should be seized, it makes the process much simpler and quicker for the government, taking up significantly less judicial resources. 

Criminal Forfeiture

This is an in personam action filed against anyone who is thought to have gained assets or properties directly or indirectly through criminal means. Unlike administration or civil forfeitures, criminal forfeiture typically can only take place after there has been a conviction in court. Part of the sentence will include forfeiture. 

In this case, the forfeiture is confined to assets, properties, and financial proceeds associated with any number of counts the defendant is found guilty of. The prosecution has the burden of proof and must provide a link between the assets and the crime the defendant is convicted of. 

A judge may order criminal forfeiture of a specific property, a sum of money, or another property as a replacement as part of the forfeiture process. Following a preliminary order of forfeiture, a separate ancillary procedure is initiated to ascertain the ownership rights of any third party in the property sought to be forfeited by the government. 

Civil Forfeiture

A civil forfeiture occurs when the government seizes assets or property that was obtained through criminal activity. This is an in rem action as opposed to an in personam action in criminal forfeiture. A conviction is not required for the government to bring a civil forfeiture claim. The primary difference is that in a civil forfeiture, the court proceeding is brought against the property and not a person. The action is not filed against the owner(s) of the property. There is no need to charge the owners of the property with a specific crime before the government can confiscate their property. 

The federal government only needs to prove that the property is lawfully forfeitable through a preponderance of the evidence. When such an attempt is made, the burden of proof is on the owner of the property, who must sufficiently demonstrate that the item was neither involved in nor received as the proceeds of illicit activities. 

The government primarily uses this medium to pursue forfeitures against assets and properties that would not have been obtainable through criminal forfeitures, such as the property of criminals located outside of the United States, including terrorists and fugitives. Additionally, civil asset forfeiture allows the government to seize property and assets from deceased defendants or in cases where the defendant cannot be identified. 

Civil forfeitures are sometimes criticized as an unconstitutional exercise of governmental powers and an attack on a fundamental presumption of innocence.

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FAQ

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  • How Does Asset Forfeiture Work?

    Asset forfeiture is a legal procedure, and there are rules and processes that must be followed in a forfeiture case. Some of the most important ones include the following:

    Notice of Forfeiture Order

    Whenever a court orders the forfeiture of a specific property, the government has a legal duty to publish the notice of the order and also send such notice to any persons who appear to be a potential claimant and has the standing to contest the forfeiture in an ancillary proceeding.

    The Burden of Proof

    In a criminal asset forfeiture case, the government has the burden of proof to establish that the owner was directly or indirectly involved in a crime and that the seized property benefits the crime. A defendant must be convicted of a crime (beyond a reasonable doubt) in order for a criminal forfeiture to take place. In a civil forfeiture case, however, the burden of proof is on the claimant, who must establish that they were not involved in a crime and the assets were not obtained through criminal activity.

    Petitions

    When a claimant or affected third party files a petition asserting their interests in the seized property within the statute of limitations, the court must conduct an ancillary proceeding except where the forfeiture involves a money judgment. The proceeding allows the court to hear the petitioner and may also permit the parties to obtain discovery in accordance with the federal rules of civil procedures.

  • What Is In Rem?

    In rem is a Latin term meaning “against a thing.” When an in rem procedure is held, it aims to remove the rights of any owners and potential owners of the property, even if they aren’t named in the lawsuit. The judgment follows the property rather than a person.

  • What Is In Personam?

    An in-personam proceeding is one that is filed against a specific person or persons. If successful, the government can seizure any assets or properties that were directly or indirectly obtained through criminal activity. The judgment follows the person, not the property.

  • What Happens to a Property Once It’s Forfeited?

    While the government takes ownership of the forfeited property, government officials cannot take immediate action. The United States constitution protects citizens’ rights to ownership of properties. There are strict measures in place before the government can take complete ownership. However, once assets or property has been forfeited, you have had your attorney file a petition to assert interest or ownership, and the court has dismissed your petitions, they can take complete control of the assets or properties. Additionally, if no one contends the seizure or claims an interest in the property, the government has control over the assets and property. 

    The forfeiture is enforced by agencies within the Department of Justice, and the property is handed over to the United States Marshal Service, as their director has the authority to dispose of forfeited real property and warrant title as delegated by the US Attorney-general. 

    USMS is responsible for the management and disposal of seized assets that have been forfeited. For example, in some circumstances, the property will be sold in an asset forfeiture sale. The Attorney General has the authority to dispose of the forfeited property through a sale or any other commercially feasible means. 

  • How Can I Fight Asset Forfeiture?

    When you receive a notice of forfeiture, you should speak with your attorney to discuss your legal options and file a claim immediately. There are several defenses to asset forfeiture, including the following:

    • Procedural Defense. If the government does not file and serve the notice of forfeiture in the appropriate time frame, you may be able to recover your property and assets.
    • Proportionality Defense. In civil forfeiture cases, you or your attorney can argue that the assets and property seized are not proportionate to the crime you are accused of committing.
    • Illegal Search & Seizure Defense. In many situations, police officers seize property from a suspect through unlawful means. Certain elements must be met that allow an officer to search a person, their car, or their house and seize items. If you and your lawyer can show that law enforcement violated your constitutional rights, you might be successful in fighting forfeiture.  
  • If I’m Found Not Guilty, Can I Still Be Required to Forfeit Assets?

    In some cases, you may still be required to forfeit the assets. Keep in mind that forfeiture of assets through a guilty verdict is only compulsory in criminal forfeitures. This means there are still other means by which the federal government can seize assets. 
     

  • Can I Ever Recover Property After Asset Forfeiture?

    Yes, you might be able to. You can appeal forfeiture and file a petition. If, upon a hearing, the court determines that property was wrongly forfeited, it would be released to you. However, if the court believes that the forfeited property was rightfully and lawfully seized, the authorities that first took it may keep it. 

    As a rule of thumb, properties that have been successfully linked to criminal activity rarely get returned to the owners.

  • Morgan & Morgan Can Help

    Asset forfeiture isn’t something to take lightly. The government can seize property in many situations, and if you don’t know your rights and how to fight back, you could end up losing those assets and properties forever. If you need help, Morgan & Morgan is always here to assist you. We have been handling these types of cases for decades and will do whatever it takes to give you the best chance of success. When you hire us, you’re hiring a firm that cares as much about your case as you do. With lawyers all across the country, Morgan & Morgan can help you regardless of where you’re located. Contact Morgan & Morgan today for a free consultation. 

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