Federal Asset Forfeiture: How the Government Seizes Property and How to Fight Back

Criminal and civil forfeiture explained — what the government can seize, the difference between the two tracks, innocent-owner defenses, and how forfeiture is contested.

Federal asset forfeiture can feel like a bewildering and overwhelming process, especially when you're worried about a family member who might be facing such charges. Understanding the difference between civil and criminal forfeiture is crucial to navigating this complex legal landscape.

Civil Forfeiture vs Criminal Forfeiture

Civil forfeiture is a case brought against property itself rather than its owner. This means the government can seize assets without charging you or your loved one with any crime. Under 18 U.S.C. 981, items like cash, vehicles, real estate, and other property used in criminal activity can be taken by the government.

Criminal forfeiture, on the other hand, is part of a prosecution against you or your family member. It requires a conviction under 18 U.S.C. 982 before any assets can be seized.

In drug cases specifically, the government uses 21 U.S.C. 853 to allow for forfeiture of proceeds and property used to facilitate a crime.

What Can Be Seized?

The government can seize more than just the direct proceeds of an illegal activity. They might also take:

• Proceeds: Money or assets directly connected to criminal activities.
• Facilitating Property: Items used in a crime, such as vehicles or equipment.
• Substitute Assets: Other property of equal value if the original items are no longer available.

The Hardship of Seizures During Investigation

Seizures can occur early on in an investigation, long before charges are filed. This sudden loss of assets can cause severe financial hardship for families and businesses. Without access to your property or funds, daily life becomes incredibly difficult.

Losing a vehicle used for work or essential household items can disrupt routines and strain relationships. Seized cash reserves might be needed for medical expenses, rent, or other critical needs. The emotional toll of losing these assets is significant, adding stress during an already challenging time.

The Innocent-Owner Defense

If the seized property was not used in a crime and you had no knowledge of its illegal use, you might qualify as an innocent owner under 18 U.S.C. 983. To prove this, you need to show that you did not know about or consent to the conduct giving rise to forfeiture.

The real test is whether you knew about the criminal activity and could reasonably be expected to prevent it. If you had no knowledge of illegal activities involving the property, and took reasonable steps to ensure its lawful use, you may have a strong defense as an innocent owner.

Challenging Probable Cause and Proportionality

If the seizure seems unjust or if there's insufficient evidence against your family member, challenging probable cause is possible. Additionally, under the Eighth Amendment, seizures must be proportional to the crime committed. This means taking away all of someone’s property for a minor offense would likely violate this constitutional protection.

Timelines and Claim Procedures

The government has strict timelines for filing forfeiture actions after seizing assets. You or your family member have limited time to file claims once notified by the authorities. Missing these deadlines could mean losing any chance of getting property back.

To challenge a seizure, you must act quickly. After the government sends notice of a seizure, you have a short, fixed window to file a formal claim — the notice itself states the deadline, and missing it can forfeit your right to contest the seizure at all.

Once a claim is filed, the government must either return the property or take the case to federal court within a set period. If a court case follows, you face another short deadline to file your claim and answer in that proceeding. These timelines are unforgiving, which is why forfeiture counsel should be involved as soon as property is taken.

Litigating Forfeiture Alongside Criminal Charges

When facing federal asset forfeiture, it's crucial that a defense lawyer handles both the criminal case and the forfeiture action simultaneously. This involves:

• Investigation: Gathering evidence to challenge the government’s claims.
• Motions: Filing legal documents to contest probable cause or other aspects of the case.
• Negotiation: Working with prosecutors to reach a favorable resolution, possibly involving plea bargains.
• Sentencing Advocacy: Arguing for leniency and working to minimize penalties including asset forfeiture.

A skilled attorney will use these strategies to protect your family's assets and fight against unjust seizures.