FORFEITURE AND SEIZURE
Civil forfeiture and administrative seizure trials are quasi-criminal processes by which authorities take control of property claiming that it is connected in some way with illegal activity and therefore subject to confiscation. Getting an experienced forfeiture attorney is the best way to get your stuff back from the government.
Although administrative seizure and civil forfeiture are technically not criminal actions, they are inextricably connected to criminal actions and they frequently precede or accompany them. The burden of proof that rests on government prosecutors in a forfeiture proceeding is much lower than in a criminal matter. Further, the burden of proof could even be shifted to the claimant. You may be asked to demonstrate that you have a legitimate claim to the property. Because the government’s burden of proof is so low, courts could maintain that property is forfeited by illegal activity even when the government cannot bring enough evidence to obtain a criminal conviction. Understandably, this practice is controversial. It stands to reason that being stripped of your belongings amounts to a criminal punishment without the protections of a trial. In addition, there are those who argue that local governments and law enforcement agencies profit handsomely from civil forfeitures and thus the incentive to make unwarranted seizures is great. Nonetheless, our courts and elected officials permit these practices and have even expanded their reach.
Seizures and forfeitures are customarily done in connection with federal investigations into money laundering and organized crime, especially racketeering and drug conspiracies. A number of the relevant criminal statutes—especially racketeering—are equipped with their own criminal forfeiture provisions. Such laws only come into effect after a criminal conviction. While criminal forfeitures can have much broader scope and possibly affect more property, a higher burden of proof rests on the government in these matters than in civil forfeitures.
Specified Unlawful Activities
Pursuant to the Money Laundering Act of 1986, it is illegal to engage in financial transactions using money derived from “specified unlawful activities” with the intent to conceal the origins of the funds or to evade federal or state currency transaction reporting requirements. The term “specific unlawful activities” encompasses a wide array of crimes such as drug manufacturing and distribution, violent crimes and fraud. Currency transaction reporting regulations require that financial institutions file reports with the federal government anytime individuals make financial transactions in cash or other currency worth more than $10,000. This is the Act that prohibits carrying more than $10,000 out of the U.S. with the intent to evade the law or to transport currency that you know are the proceeds of a crime.
When Can Authorities Seize Property and Get a Civil Forfeiture?
In some scenarios, government officials may believe that certain funds or property comes under those prohibited categories. If they do, then they have the authority under various laws to seize those funds or property. They can obtain a civil forfeiture, whether or not a crime is actually proven, or even charged. They may also seize property and funds they believe were earned from or are traceable to criminal activity. This is true even when the funds or property are presently in the possession of a third party who is not involved. A warrant is generally required for seizures of land and real property. Conversely, currency and personal belongings that can easily be destroyed or moved may often be seized by federal officers without them needing to go before a magistrate judge to show probable cause for a warrant.
What Happens After a Seizure Takes Place?
Once property is seized, federal authorities are mandated to provide written notice to the owner within 60 days. At any point, the property owner or another authorized party wishing to challenge the seizure has a right to file a claim with the seizing agency. In the claim, they need to identify the property and state their interest in it. After a claim gets filed, the agency has 90 days to initiate a civil forfeiture proceeding in a federal District Court or return the property. In a civil forfeiture proceeding, the government bears the burden of proof to demonstrate by a preponderance of the evidence that the property is legitimately subject to forfeiture. For example, any property derived from an illegal source or involved in an unlawful transaction is subject to forfeiture.
Possible Defenses to A Civil Forfeiture Action
There are numerous defenses to a civil forfeiture action. The first line of defense is to challenge the government’s factual claims. The prosecution must demonstrate by a preponderance of the evidence that:
- the currency or property in question was connected to a specified unlawful activity or
- that the property owner intentionally attempted to launder the funds or avoid transaction reporting requirements.
If they fail to do this, the forfeiture claim will fail. Thus, for example, consider a person who made multiple $9,000 cash bank deposits, but did not intend to avoid the federal reporting requirements. They would have a solid defense to the government’s forfeiture claim.
Owners who are innocent also have an affirmative defense to a forfeiture action. They can regain their property even though it was involved in a specified unlawful activity. That said, because it is an affirmative defense, the owner is obligated to prove that he was unaware about the illegal conduct. Finally, the Eighth Amendment to the U.S. Constitution prohibits excessive fines. This may come into play where the forfeiture sought by an agency is “grossly disproportionate” to the unlawful activity alleged.
Among the most significant consequences of civil forfeiture, government’s power to confiscate virtually all a person’s assets can depriving a claimant of the ability to hire an attorney in the event that criminal charges are later brought against him. Further, to challenge the forfeiture, a claimant must bring evidence that the property is not subject to forfeiture. Where criminal charges can be brought, going on the record with the government is usually the last thing any person should do. Thisforces a claimant into a tough position: either fight the forfeiture at risk of handicapping a later criminal defense, or exercise the right to remain silent while allowing the government to seize your property unchallenged.
U.S. Customs and Border Protection
Akin to civil forfeitures, administrative seizures are authorized under dozens of federal laws and are usually performed by U.S. Customs and Border Protection at points of entry into the U.S. or by other federal agencies in the course of criminal investigations. Customs agents are authorized to seize any property it has probable cause to believe is:
- contraband, such as illegal drugs or weapons,
- subject to a restriction, such as counterfeit goods, absinthe, cat and dog fur,
- or is non-compliant with federal regulations, such as biological materials or weapons without the required permits or licenses.
Administrative Seizures by Other Government Agencies
Federal agencies like the IRS, DEA, FBI, and others may confiscate property when they believe it is either the proceeds or the instrumentalities of a crime, such as a car or home allegedly used in a drug operation. A claimant has a right to sue an agency in federal court. In general, the law offers claimants fewer protections when Customs has seized their property. A forfeiture and seizure attorney with years of experience in federal court knows the best way to navigate this complex process.
As with any important legal question, you should always consult an attorney licensed to practice in your jurisdiction. Call our offices today for your free consultation with a skilled forfeiture and seizure attorney.