Did you know that the federal government can confiscate your car, house, or boat if it suspects you drove it to transport illegal drugs or commit a similar crime? This is known as federal asset forfeiture. Read this article to learn more about when the government can seize your property and what you can do to get it back.
Table of Contents
- Types of Federal Asset Forfeiture
- Criminal Forfeiture
- Civil Judicial Forfeiture
- Administrative Forfeiture
- What Can the Government Seize?
- How Do I Contest Federal Asset Forfeiture?
- Return of Seized Property
- Get Help if the Feds Have Seized Your Property
The government can seize your property if it suspects that property was used in the process of committing a crime.
Types of Federal Asset Forfeiture>
Under federal law, there are three types of asset forfeiture:
- criminal forfeiture
- civil judicial forfeiture
- administrative forfeiture
Criminal forfeiture is considered an in personam action, meaning it is brought against a person who has committed a crime. You must be convicted of a crime before the federal government can bring a criminal forfeiture action against you.
Criminal forfeiture is limited to your property interests, including any proceeds you earned through illegal activity. These actions are generally limited to the property involved in the crimes of which you have been convicted. As part of your sentencing, a court may order you to forfeit a specific piece of property listed in the indictment, a sum of money as a financial judgment, or other property as substitute property. Source: U.S. Department of Justice
The government must establish a connection between your crime and the asset by a preponderance of evidence. After the government enters a preliminary order of forfeiture, a separate proceeding begins to determine any third-party ownership interests in the property.
Civil Judicial Forfeiture
Unlike criminal forfeiture, civil judicial forfeiture actions are brought against property rather than a person. Further, no criminal conviction is required for these actions. However, the government still must prove in court that the property was linked to criminal activity.
Anyone with an interest in the property must attend a civil judicial forfeiture proceeding. In a civil forfeiture case:
- the government is the plaintiff
- the property is the defendant, and
- any person who claims an interest in the property is a claimant.
Source: U.S. Department of Justice
When Can the Government Use Civil Judicial Forfeiture?
The government may use civil forfeiture proceedings to seize property that would not be reachable through the criminal forfeiture process. This can include assets belonging to criminals located outside the U.S., including terrorists or deceased defendants. The government also may use civil forfeiture in cases where no defendant can be identified.
An administrative forfeiture action permits the government to seize property without filing a case in federal court. The administrative forfeiture process occurs before the agency that seized the assets when no one has filed a claim contesting the seizure.
As with civil forfeiture, the government must show probable cause to seize any property subject to administrative forfeiture.
What Can the Government Seize?
The government may seize all kinds of property if it can establish a probable connection between the property and a crime. Examples include:
- drug manufacturing equipment
- your vehicle
- your home
How Do I Contest Federal Asset Forfeiture?
The government must send written notice of a nonjudicial forfeiture proceeding to all interested parties no more than 60 days after the date of the seizure. 18 U.S. Code § 983
Here is an example notice.
To challenge a civil forfeiture, you must file a claim by or before the deadline specified in the notice. 18 U.S.C.S § 983(a)(2)(B)
If you do not receive notice, you may file a claim no later than 30 days after the date of the final publication of notice. If you do not file a timely claim, the government may issue a declaration of forfeiture. This has the “same force and effect as a final decree and order of forfeiture in a judicial forfeiture proceeding in a district court of the United States.” Thorp v. United States, Civil Action No. 11-cv-00206-PAB-KLM (D. Colo. Nov. 16, 2012)
Notice and Claim Requirements
Your written claim must:
- describe the seized property,
- state your ownership or other interest in the property, and
- be made under oath, subject to penalty of perjury. 18 U.S.C. § 983(a)(2)(C) and 28 U.S.C. § 1746
You are not required to submit supporting evidence of your claim, but you may do so to substantiate your case.
A timely claim stops the administrative forfeiture proceeding. The seizing agency will then forward your claim to the U.S. Attorney’s Office for further proceedings. Source: Bureau of Alcohol, Tobacco, Firearms, and Explosives website
Innocent Owner Defense
This applies in civil forfeiture cases when a property owner claims to have no knowledge of the underlying crime — or, if he or she knew about it, they did not consent to it.
The government must first establish probable cause that the property is connected to a crime. Once that happens, the burden shifts to you.
You must establish by a preponderance of the evidence that either:
- the property did not derive from illegal drug activity or
- that you did not know about or consent to the illegal drug activity.
Return of Seized Property
Certain property may be released following federal seizure for forfeiture but prior to the filing of a claim.
You may be entitled to the immediate release of your seized property if:
- you have a possessory interest in the property;
- you have sufficient ties to the community to assure that the property will be available at the time of the trial;
- not releasing the property will cause you substantial hardship, such as preventing the functioning of your business, preventing you from working, or leaving you homeless;
- your hardship outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to you while forfeiture proceedings are pending. 18 U.S.C.S. § 983
Request Release of Your Property
Get Help if the Feds Have Seized Your Property
Clearly, there is much at stake with federal asset forfeiture proceedings. Hiring an experienced attorney gives you the best chance of recovering your property. Call 303-688-0944 to begin your free case assessment.