Step Four: Notice of Claim and/or Petition for Remission
Once your criminal attorney has determined that your case is a civil asset forfeiture in Federal court, the first thing a he/she must do is send “Notice of Claim” or a “Petition for Remission” to the seizing agency. By doing so, your criminal attorney will preserve your ability to challenge the seizure and hopefully get your property returned.
When a criminal attorney files a notice of claim, he/she gives notice to the Government that the property owner wishes to contest the forfeiture. When a criminal attorney sends a petition for remission, he/she is giving the Government equitable reasons why the property should be returned.
Failure to send a timely notice of claim or petition for remission will result in loss of the property. However, if a criminal attorney timely files a notice of claim or petition for remission, the legal process will begin.
If no notice of seizure has been received, the criminal attorney should file a notice of claim and/or a petition for remission as soon as possible. In some cases, the Government may send notice of seizure to an old address or to the wrong person. While this may be a defense to a notice of claim filed too late, it is better to avoid the problem from the start. In some cases, the Government will not acknowledge its mistake or it may force your criminal attorney to fight them on the issue in court.
In law, it is better to win battles by getting the end result without the risk of fighting. It’s the result that matters, not the fight.
Step Five: Communicate with Agency Attorneys
After your criminal attorney has filed a notice of claim, the next step is to communicate with the attorneys who represent the agency. In most cases, an attorney from the U.S. Attorney’s Office or the Department of Justice will handle the civil asset forfeiture from this point.
A criminal attorney will want to communicate with the attorney for the other side to get an idea of what the case is about from their end.
- Is this asset seizure connected to a criminal prosecution?
- What is the basis for the seizure?
- Is the Government willing to negotiate a settlement?
- Is the underlying client a target of a criminal investigation?
- Are criminal charges forthcoming against the client?
This information will help your criminal attorney assess your case and aid you in making decisions about how to proceed. It will also help a criminal attorney assess the likelihood of reaching a settlement or of proceeding to the judicial stage of the case.
Step Six: Settle or Litigate
Once your case has been evaluated by a criminal attorney, the proper claims have been filed, and an opportunity to communicate with the other side has been had, some important strategic decisions need to be made. A criminal attorney will help you make these decisions. They are:
- Abandon the claim
- Settle with the Government, if possible
- Fight the judicial forfeiture in court
If your decision is to settle, then the appropriate paper work needs to be drafted by your criminal attorney and the lawyers representing the Government. From there, specific Government forms need to be signed and returned to the Government. For example, if the property in question was the proceeds held in a bank account, a special form identifying your attorney’s trust account information will need to be executed.
If your decision is to fight the asset forfeiture in court, the next step is to proceed with the judicial aspect of the case. This will commence once the Government has filed a lawsuit in U.S. District Court against the property at issue. Once this is done, your criminal attorney will file a response to the complaint and the litigation will begin. Ultimately, the matter will likely proceed to trial or result in a settlement at the last minute before trial.