Criminal attorneys deal with civil asset forfeiture all the time. The most important thing to understand, is that civil asset forfeiture is completely different from criminal asset forfeiture.
What is the difference between “civil asset forfeiture” and “criminal asset forfeiture”?
The primary difference between civil asset forfeiture and criminal asset forfeiture is that civil asset forfeiture can proceed independently without any criminal case. In fact, civil asset forfeiture can take place before someone is arrested or when a person is never arrested.
Civil asset forfeiture exists independent of criminal court. In many cases, a criminal investigation may be terminated for lack of evidence, but a civil asset forfeiture may proceed nonetheless. This is because the burden of proof in a civil asset forfeiture case is a lot less than in a criminal prosecution.
In a criminal case, the prosecution must prove each and every allegation beyond a reasonable doubt. In a civil asset forfeiture case, the Government must prove that the property is tainted by a preponderance of the evidence, which is a much lesser standard than reasonable doubt.
Legal Process of a Civil Asset Forfeiture
Unlike a criminal asset forfeiture, civil asset forfeiture begins administratively. Meaning, it does not start in the courts. Rather, it starts within the agency that seized the property, such as the DEA or the FBI.
Within 60 days of seizure, the government agency must send a “Notice of Seizure” to the property owner. This notice must identify the property seized, the date of seizure, the seizing agency, and advise the property owner where, when, and how a claim must be made.
Depending on the nature of the asset, the property owner, and the circumstances surrounding the seizure, a criminal attorney may decide to file a notice of claim, a petition for remission, or both.
No more than 90 days after the filing of a notice of claim by a criminal attorney, the seizing agency must decide on a course of action. It can do any of the following:
- Return the property in its entirety to the owner,
- Negotiate a settlement that returns part of the property to the owner,
- Proceed with a judicial asset forfeiture (by filing a lawsuit in court),
- Indict the property owner and proceed with a criminal asset forfeiture.
One of the best defenses a criminal attorney has in his/her arsenal is the Government’s routine failure to abide by the time limitations. If the Government inexcusably fails to send a timely notice of seizure or inexcusably fails to file a judicial asset forfeiture, then the property must be returned to the owner.
If the Government decides to proceed with a judicial civil forfeiture, then the case will transfer from an administrative action to a lawsuit litigated in court. Like any other civil lawsuit, the Federal Rules of Civil Procedure apply and the asset forfeiture will proceed through civil court like any other lawsuit.
Criminal Attorney’s Next Move
Once your criminal attorney has determined whether your case concerns a criminal asset forfeiture or a civil asset forfeiture, he/she can make the next move. If your case is a criminal asset forfeiture, then the next step will be tied to your criminal case. Usually the asset forfeiture portion is of secondary importance to what happens with the underlying criminal charges.
However, if your case concerns a civil asset forfeiture, then a criminal attorney will proceed to Step Four… filing a notice of claim and/or a petition for remission.
Filing a notice of claim and/or a petition for remission is time sensitive, so it is extremely important to contact a criminal attorney as soon as possible. Failure to timely file a notice of claim or a petition for remission can result in the loss of the property.