Most people assume that asset forfeiture can only occur after being convicted. However, you do not have to commit a crime for your assets to be forfeited. Most asset forfeitures occur through a criminal process, but administrative or civil forfeiture processes are also standard. For example, you can lose your assets through an administrative or civil forfeiture process if you file your tax returns incorrectly or fail to complete them promptly. The federal government or the state can seize any asset through forfeiture proceedings.

Some assets that can be seized include cash, real estate, bank accounts, vehicles, planes, boats, computers, software, servers, and other properties. If you face asset forfeiture in California or any part of the U.S., the Asset Forfeiture Attorney can help you. Our attorneys are experienced in handling asset forfeiture cases and will fight for your rights.

Understanding Asset Forfeiture

Asset forfeiture is where the authorities seize your asset if they suspect that the asset  was either:

  • Secured through criminal activity, or
  • Used in committing an offense

Asset forfeiture could only happen after a civil or criminal hearing. This is where the prosecutor files a case against the asset itself, but not you as the asset owner. The prosecutor has to show by a preponderance of the evidence that the asset was linked to criminal activity for them to win the case. ‘’By a preponderance of the evidence’’ means ‘’more likely than not’’. This is a lesser burden of proof than in criminal proceedings. In criminal proceedings, the prosecutor must provide enough evidence that you are guilty.

Law enforcement can seize your asset before you are convicted of an offense, but they cannot forfeit it until you are convicted. Sometimes, forfeiture agents can seize an asset that is:

  • Found your property but belongs to another innocent person
  • Misidentified as your asset

Seizing An Asset

Forfeiture agents will do the following to have control over your asset allegedly connected to criminal activity:

  • Take physical possession of your property like vehicles, cash, or drugs
  • Request brokers or banks to hold your accounts to prevent you from withdrawing any money
  • Record notices of forfeiture on your real estate to prevent you from mortgaging, transferring, or selling it

You cannot benefit from or control your property once it has been seized. You can only benefit or have control over it if the court denies forfeiture and orders the asset to be returned to you and the legal title cleared.

Criminal Forfeiture Versus Civil Forfeiture

A criminal forfeiture often accompanies a criminal conviction, while a civil forfeiture can occur even if you have not committed an offense. A civil forfeiture proceeding is independent of criminal proceedings, and the burden of proof required is much lower. A civil forfeiture can affect many people other than the defendant. For example, if a government agency seizes a defendant’s home, the other innocent family members will suffer.

Assets That Are Subject To Forfeiture

The asset forfeiture laws permit law enforcement and prosecution to seize most types of assets. The following are the common properties that could be seized:

  • Illegal drugs, land, buildings, or machinery used to manufacture illicit drugs
  • Machines used to break the law, like using a machine to make counterfeit trademarks
  • Boats and planes
  • Vehicles used to commit offenses, like the transport of stolen property or the distribution of drugs
  • Animals, if you are convicted of animal cruelty and abuse
  • Raw materials
  • Computer equipment or telecommunications used to commit a computer offense, like internet fraud
  • A weapon like a firearm that is involved in an assault with a deadly weapon case

The law does not allow the police to seize your home or any real estate you own jointly with another person without knowledge that criminal activity occurred there. All properties that are subject to forfeiture fall under one of the following categories:

  • Facilitators, which include assets used to further criminal activities like vehicles
  • Exchanges, which include liquid money or other assets traded contraband or intended to be traded for contraband
  • Proceeds from contraband or other unlawful activities like real estate, cash, or other valuable assets
  • Contraband involved in illegal activity like firearms or narcotics

Available Safeguards For Asset Holders

Police used to avoid forfeiture laws in California by giving seized assets to federal law enforcement with less strict regulations. Federal law enforcement sold the assets through equitable sharing and kept 20%, leaving state and local agencies with 80% of the proceeds.

However, in 2016, Senate Bill 443 was passed, significantly restricting equitable sharing and closing ways for the police in California to overreach and get around state forfeiture laws. The bill also increased the burden of proof for the prosecutor in certain forfeiture cases. In this case, an individual must be criminally convicted to lose property. Federal law enforcement, however, can still seize your asset based only on probable cause. This is a far lower standard than is needed in many state lawsuits.

Asset Forfeiture In Organized Crimes

There has to be a conviction for the police to forfeit property in an organized crime case. It must be a situation where there is a pattern of criminal behavior done for financial gain. In this case, a pattern means an individual committed two or more related offenses. The common organized crimes include:

  • Child pornography under Penal Code 311
  • Extortion under Penal Code 518
  • Receiving stolen property under Penal Code 496

The Process Of Forfeiting An Asset In Organized Crimes

The prosecutor follows the following procedure for the government to forfeit your property:

  • File a petition in court
  • Issue a notice of the asset forfeiture to any person interested in the ownership
  • In some cases, publish a notice of the asset forfeiture in a local newspaper

After the notice is published in the newspaper, you have 30 days to challenge the forfeiture. If the prosecutor proves that the property is subject to forfeiture, the court will hold a hearing and permit the forfeiture.

Asset Forfeiture In Drug Cases

You must be convicted of an underlying or related criminal action in a drug case before the authorities can forfeit your:

  • Securities or money worth up to $40,000
  • Vehicle, airplane, or boat
  • Any real estate or lands and buildings

However, the following exceptions exist to the above conviction requirements:

  • You do not appear in your criminal hearing, and the government shows that the asset in question is linked to the offense. This is also known as a prima facie case.
  • Securities or money worth more than $40,000 can be forfeited with no conviction if the prosecutor proves that the money came from or was going to be used for unlawful drug transactions.

The Process Of Forfeiting Property In Drug Cases

The prosecutor can follow one of the following procedures depending on your drug case before the government forfeits your property:

Judicial Procedures

A civil hearing can be set if you challenge the seizure of your asset that does not exceed $25,000 or a state or local law enforcement agency seizes your property that exceeds $25,000. The prosecutor must prove that the property was used to commit a crime forfeiture. The prosecutor must also prove that the property was bought with cash obtained illegally and that you were guilty and were aware that the offense was being committed and agreed to it.

Administrative Forfeiture

The police must give public notice of the following before they can forfeit your personal property that does not exceed $25,000:

  • Instructions for challenging the taking
  • The facts justifying its seizure
  • Date and place of its seizure
  • Appraised value
  • The description of the property

You will have 30 days to challenge the seizure of property once the notice is given. The police could sell the property and keep the proceeds if you fail to challenge the seizure. The judicial procedures could apply if you challenge the seizure.

Summary Forfeiture

This is where the authorities can forfeit Schedule I drugs like peyote, L.S.D., ecstasy, heroin, and marijuana without any procedure. The officers could seize your marijuana, but you can have it back if you have the right to have it under medical marijuana laws.

Law enforcement can make procedural mistakes because asset forfeiture is complicated and forfeiture agents are not attorneys. A reasonable attorney can use these mistakes to convince the judge to return your asset.

U.S. Department Of Justice Asset Forfeiture Program (DOJAFP)

The DOJ AFP was put in place to use asset forfeiture to disrupt, prevent, and dismantle criminal activities, denying them the instruments and proceeds of criminal activity. This Department constitutes tribal, state, federal, and local law enforcement agencies across the United States. The primary goals of DOJAFP are:

  • To ensure professionalism is upheld while administering the program, and to ensure it is administered legally and in a way consistent with sound public policy.
  • To recover property, which could be used to compensate victims when ordered under federal law
  • To enhance cooperation among tribal, local, state, federal, and foreign law enforcement agencies.
  • To impose discipline and prevent criminal activity by depriving criminals of property used in or obtained through illegal activities.

The Department of Justice achieves the above goals by using asset forfeiture to investigate, identify, seize, and forfeit the property of criminals and their organizations while ensuring that the rights of all property owners are not violated. Asset forfeiture plays a major role in dismantling and disrupting unlawful enterprises. It denies criminals the proceeds of unlawful activity, restores property to victims, and deters crimes.

The effective use of civil and criminal asset forfeiture is a crucial component of the Department’s efforts to deal with the most sophisticated organizations and criminal actors. The Department also works hard to combat transnational drug cartels, human traffickers, fraudsters, cybercriminals, and terrorist financiers.

The Assets Forfeiture Fund (AFF) funds the DOJ AFP. The AFF has the statutory powers to expand and support the use of forfeiture sanctions throughout the federal law enforcement society. Additionally, the AFF was established under the Comprehensive Crime Control Act of 1984 (P.L. 98-473), codified in 28 U.S.C. 524(c). Typically, AFF is a special fund within the Treasury that receives the proceeds of forfeitures. The Comprehensive Crime Control Act permits the Attorney General to use the fund to pay any necessary costs related to the asset forfeitures administered or enforced by the Department of Justice. This could include certain general investigative costs, victim compensation, seizure, forfeiture, and disposal of such assets. The DOJAFP must ensure that the effectiveness of law enforcement remains an essential consideration for agents. It also guides prosecutors in pursuing forfeiture under a national program framework.

Ways In Which Claimants Miss Chances To File Legal Petitions For Their Seized Assets

There are various ways in which property owners miss the opportunity to file legal claims for their seized assets. In this case, the asset forfeiture is declared unopposed. Examples include:

  • If you encounter confusing instructions with many options in federal seizures, they could waive your rights to a federal court trial and have your case heard in front of an agency attorney instead.
  • Confusing instructions on where and how to file a petition to challenge forfeiture. State petitions must be made in state civil court with payment of the correct filing fee. The court clerk could reject a non-compliant petition, causing the deadline to elapse.
  • If the forfeiture notice is sent to the wrong address — An old address on a driver’s license or I.D., the 30-day deadline elapses as the notice goes to the person who owns the asset and wishes to file a petition.
  • If you receive an administrative or civil forfeiture notice while in custody, the paperwork is unavailable. The 30-day statute of limitations begins, but you cannot work with an attorney while you are in custody, and your public defender or criminal defense attorney cannot help.

Find An Asset Forfeiture Attorney Near Me

Has a federal or state agency seized or forfeited your property? Asset forfeiture is a powerful tool but one that government agencies often abuse. Government agencies can use asset forfeiture as a weapon against citizens, whether or not they have committed a crime. At the Asset Forfeiture attorneys, we have an in-depth understanding of the federal and state asset forfeiture laws. We can help you defend your constitutional rights and protect your assets.

Whether you are a defendant or your assets were seized through civil or administrative proceedings in California and the United States, our attorneys can help. Contact us at 888-571-5590 to speak to one of our attorneys.