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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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