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Types Of Forfeitures
There are two primary types of Federal Forfeiture, Criminal forfeiture and Civil forfeiture, with some sub-types that arise in Civil cases.
The two main forfeiture actions differ in many ways, including: (1) the point in the proceeding, generally at which the property may be seized; (2) the burden of proof necessary to forfeit the property; and (3) in some cases, the type of property interests that can be forfeited:
1. Criminal forfeiture:
This is an action brought as a part of the criminal prosecution of a defendant. It is an in personam (against the person) action and requires that the government indict (charge) the property used or derived from the crime along with the defendant. If the jury finds the property forfeitable, the court issues an order of forfeiture.
A criminal forfeiture action must be judicial. The property subject to forfeiture is named in the same indictment that charges the defendant with a criminal violation. The jurisdiction of the court over the defendant provides the court with jurisdiction over the defendant’s property interests. While there is some disagreement among the appellate courts, generally, the government must meet the legal standard of proof, beyond a reasonable doubt, necessary to convict the defendant in order to forfeit the property. The property may be forfeited in this manner only if the defendant is convicted of the underlying offense charged, and the trier of fact finds that the property named in the indictment was illegally tainted.
As a general rule, the seizure of the property through criminal forfeiture may not occur until after the property has been forfeited. The district court then issues an order to seize the property, and the seizure is made by the United States Marshals Service (USMS). There are some exceptions to this rule. For example, a seizure warrant may be used in certain circumstances in a criminal forfeiture matter under the Controlled Substances Act (CSA) and under the Money Laundering Control Act (MCLA). For forfeitures pursuant to the Controlled Substances Act (CSA), Racketeer Influenced and Corrupt Organizations (RICO), as well as money laundering and obscenity statutes, there is an ancillary hearing for third parties to assert their interest in the property. Once the interests of third parties are addressed, the court issues a final forfeiture order.
Criminal forfeiture provisions such as those found in the Racketeer Influenced and Corrupt Organizations Act (RICO) and CSA identify property that can be forfeited upon conviction of a defendant in broader terms than the provisions of law concerning most civil forfeitures. Criminal forfeiture laws name interests subject to forfeiture that are more complex, including property acquired or maintained in violation of RICO, and various types of legal interests in property that have afforded a source of influence over the illegal enterprise. The civil forfeiture laws generally name specific property that is integrally connected with prohibited activity, including conveyances used, money furnished, and real property used.
2. Civil forfeiture:
Civil judicial forfeiture is an in rem (against the property) action brought in court against the property. The property is the defendant and no criminal charge against the owner is necessary. A civil forfeiture action is effected through either a summary, administrative, or judicial procedure. A summary forfeiture procedure is limited to the CSA and then only to a narrow category of property.
a. Administrative Forfeiture:
Administrative forfeiture is an in rem action that permits the federal seizing agency to forfeit the property without judicial involvement. The authority for a seizing agency to start an administrative forfeiture action is found in the Tariff Act of 1930, 19 U.S.C. § 1607. Property that can be administratively forfeited is: merchandise the importation of which is prohibited; a conveyance used to import, transport, or store a controlled substance; a monetary instrument; or other property that does not exceed $500,000 in value; if the property is a monetary instrument, in which case there is no maximum monetary limit.
The use of asset forfeiture in criminal investigations aims to undermine the economic infrastructure of the criminal enterprise. Criminal enterprises in many ways mirror legitimate businesses. They require employees, equipment, and cash flow to operate. Criminal enterprises also generate a profit from the sale of their “product” or “services.” The obvious difference is that the profit generated from criminal enterprises is derived from criminal activity. Asset forfeiture can remove the tools, equipment, cash flow, profit, and, sometimes, the product itself, from the criminals and the criminal organization, rendering the criminal organization powerless to operate.
If the administrative action is not contested in a timely manner, any legal claim to the property is thereafter barred and the agency may declare the property forfeited. An administrative action can be contested by the filing of a claim of ownership. A timely claim to the property forces the government to terminate the administrative forfeiture action and to commence a civil judicial action.
b. Judicial forfeitures:
If a claim responding to an Administrative forfeiture is filed by the property owner in a timely manner, then the federal agency must transmit it to the United States Attorney’s office in the district where the property was seized and the Administrative forfeiture must cease; however a new Judicial forfeiture action is brought in federal court in the district where the property was seized. This action is basically a federal court case between the U.S. and the property owner, over the property. However, if the property subject to forfeiture is not a monetary instrument or a hauling conveyance, and is valued over $500,000, the proceedings must commence as a judicial action and not an Administrative forfeiture. In addition, if the forfeiture action is against real property, the proceedings must be judicial, regardless of the value of the property.
Historical Origins of Forfeiture
The seizure of property is a practice historically used by governments across the world. For example, in English common law, the value of an inanimate object could be forfeited to the monarch if that object caused the death of a person. Therefore, the forfeiture of property was generally justified as a penalty for carelessness. This tradition and justification has, over time, merged with a belief that the right to own property could be denied an individual who engaged in criminal conduct.
The forfeiture sanction is a legal concept that involves the application of procedures resulting in the transfer of the ownership of property to the government. Many of the criminal laws enforced by federal agencies (FBI, DEA, FDA, IRS, FTC, SEC, Homeland Security, Secret Service, ATF, etc.) contain forfeiture provisions. Some of these forfeiture provisions are frequently used such as forfeiture under federal drug laws and under money-laundering laws.
Other types of forfeitures, such as forfeiture of prison-made goods illegally transported in interstate commerce, are less frequently employed by the federal government.
The seizure of property by law enforcement authorities generally is permissible when the property is evidence of a crime or is subject to forfeiture. The seizure of property for forfeiture implicates the property owner’s rights under the Fourth and Fifth Amendments of the United States Constitution. The proper method of seizure of property, for example in a civil forfeiture action, depends upon the methods permitted in the relevant statute, the location of the property, Department of Justice and agency policy, and whether or not exigent circumstances are present. For instance, the FBI policy is to seize property for forfeiture pursuant to a seizure warrant.
Burden of Proof
The burden of proof on the federal agency to seize property for civil, administrative and judicial forfeiture is probable cause. This burden must be met to satisfy both statutory and constitutional requirements in light of the property owner’s Fourth and Fifth Amendment rights. A civil forfeiture action commences upon notification by both mail to the property owner and publication of the government’s intent to forfeit the property. Probable cause for an administrative forfeiture is defined as a reasonable ground for belief of guilt, supported by less than prima facie proof, but more than mere suspicion. This is a fairly low burden of proof.
The initial burden of proof in a judicial action is also probable cause. After seizure, the prosecuting U.S. Attorney’s office must make an independent determination of whether the property can be forfeited. After finding the forfeiture action has merit, a verified complaint must be filed with the federal court in the district where the property was seized, in effect, charging the property with violating the law. The burden is then on the government to prove the property is subject to forfeiture by a preponderance of the evidence. Preponderance of the evidence is defined as “superior evidentiary weight that, though sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
It should be remembered that a civil judicial forfeiture action is a civil proceeding, rather than a criminal proceeding. The Federal Rules of Civil Procedure are applicable, as well as the Federal Rules of Evidence. Discovery processes under the Civil Rules of Procedure are different than those found in criminal procedures.
How The Forfeiture System Works
The United States Marshals Service administers the Department of Justice’s Asset Forfeiture Program by managing and disposing of properties seized and forfeited by federal law enforcement agencies and U.S. attorneys nationwide. The program has become a key part of the federal government’s efforts to combat major criminal activities.
There are three goals of the Asset Forfeiture Program: enforcing the law; improving law enforcement cooperation; and enhancing law enforcement through revenue. Asset forfeiture is a law enforcement success story, and the Marshals Service plays a vital role.
In 1984, Congress enacted the Comprehensive Crime Control Act, which gave federal prosecutors new forfeiture provisions to combat crime. Also created by this legislation was the Department of Justice Assets Forfeiture Fund (AFF). The proceeds from the sale of forfeited assets such as real property, vehicles, businesses, financial instruments, vessels, aircraft and jewelry are deposited into the AFF and are subsequently used to further law enforcement initiatives.
Moreover, under the Equitable Sharing Program, the proceeds from sales are often shared with the state and local enforcement agencies that participated in the investigation which led to the seizure of the assets. This important program enhances law enforcement cooperation between state/local agencies and federal agencies.
The asset forfeiture community consists of: The Marshals Service; U.S. Attorney’s Offices; Federal Bureau of Investigation; Drug Enforcement Administration; Department of Homeland Security, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. It is important to note that the Marshals Service participates with the U.S. Attorneys Offices and the investigative agencies in pre-seizure planning — the first critical step to ensuring that sound, well-informed forfeiture decisions are made.
The role of the Marshals Service is to not only serve as custodian of seized and forfeited property but also to provide information and assist prosecutors in making informed decisions about property that is targeted for forfeiture. The Marshals Service manages and disposes of all assets seized for forfeiture by utilizing successful procedures employed by the private sector. The Marshals Service contracts with qualified vendors who minimize the amount of time an asset remains in inventory and maximize the net return to the government.
Hire An Attorney Experienced in Forfeiture
J. Clark Baird is an attorney with extensive experience dealing with the various types of forfeiture actions, in both state and federal courts. Attorney Baird has dealt with both cash/liquid assets as well as personal property such as cars, computers, firearms and other items seized by law enforcement agencies. Attorney Baird has been successful in helping many of his clients recover their seized property by aggressively challenging the government’s case and advocating on his client’s behalf.
Do not forfeit your property rights and allow the state or feds to seize your property!!! Don’t allow your constitutional rights to be trampled by an out-of-control law enforcement agent. Stand up for yourself and your rights and defend your hard-earned property. Contact an forfeiture defense attorney: contact J. Clark Baird PLLC now before it’s too late!!
Websites/Links to Information on Forfeiture:
- Types of Federal Forfeiture
- US Code Criminal Forfeitures
- What is A Civil Asset Forfeiture?
- What is a Forfeiture and why do we fear it?
- US Marshals Asset Forfeiture Program
- American Bar Association – Overview of Asset Forfeiture
- Lawyer at Large – Federal Forfeiture Manual
- IRS Asset Forfeiture & Seizure
DO NOT TALK TO LAW ENFORCEMENT AGENTS OR ALLOW THEM TO SEARCH! EXERCISE YOUR SIXTH AMENDMENT RIGHT TO COUNSEL AND DEMAND TO SPEAK TO YOUR LAWYER!! Contact Louisville, Kentucky federal criminal defense attorney J. Clark Baird immediately for assistance: (502) 583-3388 or firstname.lastname@example.org or After Hours 24/7 at (502) 797-4625!