What You Need to Know about Asset Forfeiture

And Why You Need a Good Asset Forfeiture Attorney

Imagine getting arrested, charged with a crime, and then having those charges dismissed by the prosecuting attorney. You would likely count your blessings — until you learn a few days later that the government has seized your vehicle, bank account or even your home. If you have been the subject of asset forfeiture, you already know this can happen. If it has never happened to you, it is important to understand that it can and does happen every day, all across the country to people just like you.

Asset forfeiture attorney Michael J. Wynne aggressively challenges asset forfeitures for individuals and companies who have been unfairly targeted by over-zealous law enforcement agencies.

What Is Asset Forfeiture?

Asset forfeiture is an ancient practice governments once used to seize vessels, contraband and profits as a way to defend against piracy. Modern asset forfeiture laws, though much broader, are used similarly and for similar reasons.

Forfeiture laws allow the state or federal government to confiscate assets allegedly linked to criminal activity in an attempt to disrupt or dismantle the criminal enterprise. A various different federal, state or local law enforcement agencies can seize assets. The victim of an asset forfeiture action can challenge the seizure of assets; however, it’s often an uphill battle.

Types of Asset Forfeiture

There are three methods by which the government can seize, and forfeit, your property, including:

• Criminal forfeiture — This type of forfeiture is directly linked to the criminal prosecution of a defendant and requires that the government indict the property used or derived from the crime along with the defendant.
• Civil judicial forfeiture — This type of forfeiture is a judicial process that doesn’t require a criminal conviction. Instead, it’s an action filed against the property itself, rather than a person.
• Administrative forfeiture — This type of forfeiture occurs when a government seizes assets, but no one files a claim to contest the seizure. Assets seized using administrative forfeiture cannot exceed $500,000 in value. In addition, real property may not be forfeited using administrative forfeiture. If someone does contest the seizure, the U.S. government must initiate criminal or civil judicial forfeiture proceedings.

What Types of Assets Can Be Forfeit?

This is where asset forfeiture becomes particularly convoluted because we don’t have a universal forfeiture statute that covers all property and all crimes in the U.S. Instead, the federal government and individual states have their own forfeiture laws, resulting in over 200 different federal, state and local crimes for which assets could be forfeit. As a general rule though, the following categories of assets can be seized and forfeited:

• Proceeds — This includes both direct proceeds of the crime (cash or other property of value) and indirect proceeds, which includes any property traced back to the proceeds. For example, if you purchased a vehicle with cash gained from criminal activity, the vehicle could be forfeit.
• Facilitating property — This refers to property you used to make the crime easier to commit or harder to detect, such as a speed boat to transport drugs from Central America to America.
• Property involved in the crime — This typically includes actual cash involved in money laundering.

What Must the Government Prove in an Asset Forfeiture Case?

Because asset forfeitures stem from alleged criminal activity, most people assume that the standard of proof in an asset forfeiture case is the same as in a criminal prosecution. Unfortunately, that’s not always the case. In fact, it’s not even usually the case. For a defendant in a criminal prosecution to be convicted, the prosecution must prove the defendant’s guilt beyond a reasonable doubt. If the government chooses to pursue criminal forfeiture, it must convict the defendant  of the underlying criminal offense beyond a reasonable doubt. In that case, the forfeiture is part of the criminal prosecution, and the asset forfeiture becomes part of the sentence the defendant receives as a result of the conviction.

Conversely, while a civil forfeiture stems from alleged criminal conduct, it’s not part of a criminal prosecution. Instead, it’s a separate lawsuit that doesn’t require the prosecution to secure a criminal conviction. Furthermore, the standard of proof in a civil forfeiture proceeding is “preponderance of the evidence,” a standard that is considerably easier to prove than its criminal “beyond a reasonable doubt” counterpart. In practice, this means the government can prevail in a civil forfeiture case by showing it is “more likely than not” that the assets are linked to the underlying crime, even if you were never convicted of the crime. In fact, it isn’t even necessary for the government to charge you with a criminal offense to seize your property and initiate civil forfeiture proceedings.

Can I Contest an Asset Forfeiture?

If your assets have been seized, you have the right to contest the forfeiture of those assets. If the government is using criminal forfeiture, contesting that forfeiture will be included in your overall defense to the charges against you. Remember, in a criminal forfeiture the government cannot prevail unless you’re convicted of the criminal offense that authorizes the forfeiture.

In a civil asset forfeiture, the government must provide you with a notice of the intent to forfeit the seized assets. From the date of notification, you have a specific time within which you must file a claim with the appropriate agency or office. The amount of time you have to assert your claim will vary depending on which statute authorizes the forfeiture. However, the time frame is often as short as 30 days. Failing to act within that time frame can forever waive your right to contest the forfeiture.

Filing a claim effectively stops an administrative forfeiture and converts it to a civil forfeiture. From there, property owners have the burden of proving that they didn’t purchase it with proceeds of illegal activity or that they didn’t know their property was used in the commission of a crime. How do you prove that you did not know something? As you can well imagine, it isn’t always easy.

Contact an Understanding Asset Forfeiture Attorney Today

Once your assets have been seized and targeted for forfeiture, getting them back is an uphill battle that should only be fought with an experienced asset forfeiture attorney by your side. Michael J. Wynne is that attorney. As an assistant U.S. attorney in the Southern District of Texas for over a decade, Wynne learned how to navigate the complex maze of laws and procedures relating to forfeitures. He’s now dedicated to applying his vast knowledge and experience to helping individuals and corporations secure the return of wrongfully seized assets.

If your assets have been seized or you have reason to believe a seizure is imminent, contact Michael J. Wynne by calling 713-942-2255 or schedule a consultation online.