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Federal Asset Forfeiture

Federal Asset Forfeiture

Federal law permits the government to seize and take ownership, or “forfeit," any real or personal property that it can connect with a federal crime. In cases not involving controlled substances, such as cases involving fraud, the government must prove that the property was involved in an illegal transaction, or traceable to such illegal transaction. In cases involving controlled substances, the government must prove that that property facilitated the crime, or is the proceeds or maintained with the proceeds of the crime. Asset forfeiture actions may be administrative, civil, or criminal.

Administrative Forfeitures

The Government initiates most forfeiture actions, except those involving real estate or property with a value over $500,000, administratively, that is, through an informal process conducted by the agency that seized the property. After federal law enforcement agents seize any item of property, the seizing agency must notify all persons who potentially have an interest in the property of the seizure, by letter, within sixty days from the date of the seizure. Any person or entity who has an interest in the property, known as a claimant, must respond to the notice of seizure by submitting to the seizing agency either a verified claim (a statement describing the claimant’s interest in the property signed under penalty of perjury) within thirty-five days from the date of the notice of the seizure, or a request for remission (a request to return the property and the reasons in support of that request) within thirty days from the date of the notice of seizure. A verified claim will cause the seizing agency to refer the matter to the appropriate United States Attorney’s Office for litigation, and a request for remission—although rarely successful because the claimant is asking the agency who decided there was a valid reason to seize the property simply to return it—will result in either the return of the property in the rare case that the seizing agency grants it, or an immediate forfeiture of the property if the seizing agency denies it. Several agencies, such the United States Secret Service, allows a claimant to submit a verified claim and pursue a judicial determination even after an unsuccessful request for remission.

Civil Forfeitures

The government, in cases in which a claimant submits a verified claim in response to a notice of seizure, must file a civil action in the appropriate United States District Court within ninety days from the seizing agency’s receipt of a claimant’s verified claim. The government must initiate asset forfeiture actions in all cases involving real property or property with a value of more than $500,000 by filing such civil action. The government must then serve the claimant with the civil action, who then must file a second verified claim within thirty-five days from that date of such service, and then an answer to the government’s complaint within twenty-one days from the date of the filing of the verified claim. The case then will proceed with discovery by both parties and an eventual trial, unless the claimant is the target of a related criminal investigation or the defendant in a related criminal prosecution—if so, the claimant may request the court to stay or suspend the civil action pending the resolution of the criminal investigation or case. The purpose for that stay is to prevent the government from violating the claimant’s Fifth Amendment right against self-incrimination by questioning him or her during the discovery process in the civil action in an effort to elicit responses that it may use against the claimant in the criminal investigation or case pending against him or her.

Criminal Forfeitures

The government, as an alternative to an administrative or civil asset forfeiture action involving any property, including real property or property with a value more than $500,000, may indict the claimant and include the property in a forfeiture allegation in the indictment. If the government elects to proceed with an indictment containing a forfeiture allegation, the forfeiture issue will be held in abeyance until the criminal case is resolved by trial or plea of guilty. If the defendant proceeds to trial, the jury will consider the asset forfeiture issue in a separate proceeding immediately after the verdict, whether that verdict is one of guilty or not guilty (an acquittal at trial does not preempt the forfeiture by operation of law, nor does a guilty verdict cause the forfeiture by operation of law). If the defendant pleads guilty with or without a plea agreement, the parties typically negotiate a resolution to the forfeiture issue as a part of that agreement.

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