Asset forfeiture is a ruthless process, through which state and federal government confiscate – and seek, to permanently take – private property, such as cash, bank accounts, estate properties, vehicles, or other personal property. The government takes away everything from a person. There are hundreds, thousands, of federal and state statutes which can result in asset forfeiture. These statutes allow the government to seize property by proving there’s a connection between the property/assets and illegal activity. If there is even a level of “probable cause,” it’s enough for the government to take over the property/assets. The link doesn’t have to be significant. The property doesn’t have to be directly linked to the illegal activity.
Our NYC asset forfeiture lawyers can help, regardless of the complexity of your case.
There are two types of asset forfeiture. State and Federal. The state forfeiture will be done via a District Attorney or an Attorney General. Federal asset forfeiture is done via the United States Attorney’s Office. The federal law has 3 types of situations: criminal, in rem(civil), and administrative. In New York, the federal asset forfeitures are handled by the Assistant United states Attorney Generals from the Southern District of New York, Eastern District of New York, Northern District of New York, and Western District of New York.
Criminal forfeiture is the most common form of federal asset forfeiture. This is when the federal government tells you that if you’re convicted of a crime you’re charged with – then you have to forfeit property of yours. If the government is going after a specific property, they must name the property in question. They also need to seek a money judgement, which is a judgement against you for a certain sum of money – which represents the amount of money you made from the crime. These proceedings are determined by Rule 32.2 of the Federal Rules of Criminal Procedure. Federal laws, which regulate criminal forfeiture, require a US District judge, to order the forfeiture. That means the forfeiture is decided as a part of the sentencing. It typically requires a lower burden of proof than the criminal case. As a result, you need the very best asset forfeiture lawyer when in Federal Court. If a case goes to trial, the forfeiture will probably be handled by another trial.
In order to start a forfeiture procedure, a Federal prosecutor has to give notice to the defendant of the intention to forfeit property. That notice has to be included in the indictment. If the trial is on the criminal case, then forfeiture is mentioned until after a verdict is passed. At that time, there will be a separate forfeiture proceeding. If the defendant is convicted, then the government has to show in the second proceeding that there is a link between the crime and the property the government is requesting be forfeit.
If the property belongs to another owner, the government cannot confiscate it. Third parties are excluded from participating in a federal crimine case, which means if you own property which is being forfeited as a part of someone else’s criminal case – then you have to wait until the end of the case for the ancillary proceeding. During this proceeding, you can assert your right to get the property back
Under NY State Law, District Attorneys can forfeit proceeds of crime. In New York, state prosecutors cannot forfeit real property – except in drug cases. That means they cannot go after your home. It is extremely difficult for a state prosecutor to do so, and the law is on your side in this case. The prosecutor can go after ill-gotten gains, such as cash, bank accounts, real property, personal property, etc. Property which is an instrument of the crime. That means vehicles, real estate, currency, etc, is fair game for forfeiture.
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