What are the Three Types of Federal Forfeiture?
Under Federal law, there are three (3) types of asset forfeiture: criminal forfeiture, civil judicial forfeiture, and administrative forfeiture. They are all really criminal because the seizures always arise out of a violation of law. However, the criminal forfeiture follows a conviction. The civil and administrative forfeiture are against the property and not a person so they move quickly and without proof beyond a reasonable doubt. Also civil and administrative forfeitures are used to financially weaken a defendant and also as part of a criminal investigation to gather evidence.
The document that lists the criminal charges (Indictment) also contains a notice of the intent to forfeit property. You only lose the property if you are convicted and the forfeiture is limited to the proceeds earned by the defendant’s illegal activity. The Indictment can list specific properties by name or address. The burden is on the government to prove that there is a connection between the property and the crime. They have a light burden. They only have to show that the connection is more likely than not. (Also called a "preponderance of the evidence".)
Civil Judicial Forfeiture
This is not criminal because property cannot commit a crime, only people commit crimes. (Guns don’t kill people, people kill people type of argument.) The government does not need a criminal conviction to take the property. Instead, the government proves that it is more likely than not the property was tied to criminal activity.
The government sues the property! People who claim an interest have to file their own claims. The government loves to seize huge piles of cash and then see if anyone is willing to claim that the cash belongs to them. The IRS and criminal investigators are watching and waiting.
This is also against the property and does not require a person to be involved. It requires a showing of “probable cause” to seize the property and again, anyone making a claim is exposing themselves to potential criminal prosecution and certainly law enforcement scrutiny.
What is the Government Trying to Achieve by Forfeiture?
The United States Department of Justice has published its goals in administering its forfeiture program:
“The Program has four primary goals:
(1) Punish and deter criminal activity by depriving criminals of property used in or acquired
through illegal activities.
(2) Promote and enhance cooperation among federal, state, local, tribal, and foreign law
(3) Recover assets that may be used to compensate victims when authorized under federal law.
(4) Ensure that the Program is administered professionally, lawfully, and in a manner consistent
with sound public policy.
The rules for forfeiture defense are rather technical and it is easy to make a misstep and lose your rights to contest. The gravest danger in contesting any forfeiture is the exposure to civil discovery. If you assert your ownership interest in property you must prove that interest and your lack of criminality in achieving that ownership. This opens you to questioning, perjury charges and inadvertently exposing yourself to criminal prosecution.
If you are the subject of a federal forfeiture proceeding you need expert legal advice and quick action. Daniel Horowitz has that experience both as criminal defense specialist and with an office team that includes other specialists (certified by the State Bar of California Board of Legal Specialization) and an MBA. Call us if we can help. Our offices are located in Lafayette, California (Contra Costa County). We handle forfeiture cases nationwide and in the case of U.S. v. Lazarenko we have litigated forfeiture issues nation and worldwide.