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Federal Criminal Forfeiture Defense

October 9, 2021 Federal Criminal Attorneys

Under federal law, people who have been convicted of certain federal crimes may have some of their property and assets seized by prosecutors and law enforcement agencies. Some of the convictions that could result in federal criminal forfeiture include drug trafficking, copyright infringement, money laundering, organized crime, and child pornography. However, forfeiture is not allowed in every federal criminal case.

Before your property and assets can be seized, the prosecutor must be able to prove that you got the property through committing crimes, purchased it with money you gained through illegal activity, or used it to commit the offense. If you have been indicted for a qualifying federal crime and have been notified that the government intends to seize your assets if you are convicted, you should seek help from an experienced federal criminal forfeiture attorney.

Federal criminal forfeiture vs. civil forfeiture

Since federal criminal forfeiture is an in personam action against the individual instead of against the property, a person must be convicted before the prosecutor can try to seize his or her property and assets. By contrast, civil forfeiture is an in rem action against the property itself and does not require a conviction.

In a federal criminal forfeiture case, the defendant must first be convicted of a qualifying federal crime. The federal prosecutor will have the burden of proving that the property was somehow used or obtained because of the defendant’s criminal activity. The property that the government intends to seize must also be identified so that others with an interest in the property can try to claim it.

Requirement to prove the property was involved in criminal activity

If you are convicted of a federal crime that allows the prosecutor to pursue federal criminal forfeiture, the prosecutor will have the burden to prove that the property was used or earned through criminal activity by a preponderance of the evidence. This is a lower burden than the prosecutor’s burden of proving your guilt of the criminal offense beyond a reasonable doubt.

In some cases, it is straightforward to show that property was involved in criminal activity. For example, if you purchased a vacation home with the money you earned through drug trafficking, it could be seized. In other cases, the link between criminal activity and the assets or property will be more tenuous and might not justify the government’s seizure.

How federal criminal forfeiture works

Defendants are notified that the government intends to pursue federal criminal forfeiture when they are indicted. The prosecutor might ask for a restraining order to prevent you from selling the identified property before your case is over or place a lien on it. If you are found guilty, the prosecutor will then present evidence to the jury that your property was somehow involved in the criminal activity, and the jury will determine whether or not it should be seized.

If the jury determines your assets should be seized, a preliminary order will be issued by the federal court. The government will then publish a notice of its intent to seize your property on the federal forfeiture website. Any third party that has an interest in the property can then appear at a hearing and object to the forfeiture. For example, if the government intends to seize your home, your mortgage lender might object at the hearing. If a defense is not successfully asserted at the hearing, the court will then issue a final order of forfeiture.

Defending against federal criminal forfeiture

Both federal criminal defendants and third parties with property interests in the property that the government intends to seize can raise defenses to federal criminal forfeiture.

The primary defense available to criminal defendants and property owners is that they did not use the property for illegal activities or gain it through illegal activity. For example, a defendant might argue that the money in his or her bank account came from an inheritance instead of being proceeds from drug sales.

Property owners who share the property that the government intends to seize with criminal defendants can argue that they were unaware that the property was used for illegal purposes. For example, a vehicle’s owner might argue that he or she did not know or consent to a co-owner’s use of the car to transport drugs. This type of defense is known as the innocent owner defense.

Secured creditors that are unaware of a defendant’s criminal activities can also argue against criminal forfeiture of the property in which they hold a secured interest. For example, in U.S. v. Huntington National Bank, the U.S. Court of Appeals for the Sixth Circuit found that a bank had a right to the proceeds held in an account that the government intended to seize through federal criminal forfeiture because the criminal defendant had a line of credit and loans from the bank, and the bank had no knowledge that the defendant had engaged in a massive fraud scheme.

Talk to an experienced federal criminal forfeiture attorney

If you are a criminal defendant with a property that is targeted for federal criminal forfeiture or are a third party with an interest in the property that the government intends to seize, you should consult with a federal criminal forfeiture attorney as soon as possible. These types of matters are complex, and prosecutors aggressively pursue them. With the help of an experienced attorney who practices in federal court, you might be able to protect your interests and rights.

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