Brian Silber, Esq. is a Miami asset forfeiture attorney and criminal defense lawyer who helps clients recover their property following Government seizures. Such seizures may take place concurrently with a criminal prosecution or in other cases, be executed even when there is no criminal prosecution. Sometimes, law enforcement may believe that there is enough evidence to support an asset seizure, but not enough evidence to proceed with a criminal prosecution. This is due to the fact that asset seizures can be litigated in civil court where the evidentiary standard is lower than it is in criminal court.
In my work as a Miami asset forfeiture attorney, I find that most people do not understand the fundamental difference between “asset seizure” and “asset forfeiture”. In fact, it is a distinction most attorneys do not understand.
When the Government takes possession of your privately owned property, that action is referred to as a “seizure.” The most commonly seized objects include:
- Aircraft
- Bank Accounts
- Boats
- Computers
- Commercial Equipment
- Guns
- Jewelry
- Real Estate
- Vehicles
Once property is seized, the Government must choose from three courses of action:
1) Retain the property for use as evidence,
2) Return the property to its rightful owner,
3) Keep the property for itself.
The third option (keeping the property) is not automatic and requires a very specific legal process to guarantee that the owner is given a fair chance to challenge the Government’s action.
This legal process is called “asset forfeiture” and is governed by very strict rules.
However, if the Government wins this process, the seized property is said to have been “forfeited” to the Government.
Thus, the difference between asset seizure and asset forfeiture are as follows:
Asset Seizure = When the Government takes possession of someone’s property.
Asset Forfeiture = When the Government acquires ownership (title) of someone’s property.
As powerful and as far reaching as Government authority can be, the ability to forfeit private property to itself is a highly regulated process. If the process is not followed correctly, ownership does not formally transfer to the Government and the items may ultimately have to be returned to its rightful owner.
For this reason, the U.S. Government has attorneys in the U.S. Dept. of Justice who specifically deal with asset forfeitures as part of the Government’s Asset Forfeiture Program. When it comes to State forfeitures, the different states have different ways of dealing with forfeitures. Regardless of the type of case you have, if your property has been seized, you must hire a Miami asset forfeiture attorney to help you.
How can an attorney help me get my property back?
Step One: Federal Asset Forfeiture or State Asset Forfeiture
The first step a criminal attorney takes when analyzing an asset forfeiture case is to identify which government agency seized the property. Is this a Federal asset forfeiture or a state asset forfeiture?
This information is crucial because it will help the criminal attorney determine which laws and which jurisdiction apply to your case.
Remember, the United States has two separate court systems: Federal and State.
Asset forfeiture cases brought by the U.S. Government will take place under the jurisdiction of U.S. District Court. Whereas asset forfeiture cases brought by State authorities will take place under the jurisdiction of State courts, such as 17th Judicial Circuit of Florida (which covers all State claims brought in Broward County, Florida).
Step Two: Identify the Agency
Next, a criminal attorney must identify which agency is involved. Doing so will help the criminal attorney determine who is on the other side. Knowing who a criminal attorney will be litigating your asset forfeiture case against is crucial for two reasons.
First, as a practical matter, the criminal attorney will know where and to whom notices and pleadings must be sent. Additionally, identifying the proper agency also helps a criminal attorney determine who to contact to discuss the case and open a channel of communication with their attorneys.
Step Three: Criminal Asset Forfeiture vs. Civil Asset Forfeiture
There are actually two types of asset forfeiture that a criminal attorney will encounter. They are:
- Civil Asset Forfeiture
- Criminal Asset Forfeiture
Criminal Asset Forfeiture
When a person is indicted with a crime in Federal court, it is not uncommon for prosecutors to include a count for criminal asset forfeiture. The purpose of this additional count is to target the proceeds the defendant obtained from his/her alleged criminal activity.
In criminal asset forfeiture, the substantive criminal case is litigated before the asset forfeiture. For example, if a person is charged with two counts of possession with intent to distribute cocaine and one count for asset forfeiture, the two counts of possession with intent to distribute cocaine must get resolved either by a guilty plea, dismissal by the court, or verdict at trial before the asset forfeiture is dealt with.
The exception to this rule occurs when a plea agreement addresses the criminal charges and the asset forfeiture at the same time.
In cases where there is no plea agreement that includes an agreement on the asset forfeiture, the Government may only forfeit property that is directly linked to the crimes which the defendant either plead guilty to or was found guilty of at trial.
In other words, the property to be forfeited must be the proceeds of the guilty criminal conduct.
For example, lets assume a person went to trial one two counts of possession with intent to distribute cocaine and lost the first count, but was found not guilty of the second count. When this occurs, the Government may only forfeit those assets which are tied to the first count (the “count of conviction”), as opposed to the count that the defendant beat at trial.
This is an important distinction because the Government is only entitled to forfeit property that is tainted by criminal conduct. If a jury acquitted a person of the underlying criminal conduct, then the property in question cannot be considered tainted.
This is why the asset forfeiture portion of an indictment is not litigated until the end of the case and it is known what the defendant is guilty of.