What’s the Difference Between Criminal and Civil Asset Forfeiture?

What’s the difference between criminal and civil asset forfeiture?

If you are convicted of a crime in federal court, there is a good chance the government is also trying to take your property, whether it is with your consent in a plea agreement or against your will after a guilty verdict at trial.

When can the government take your property after a conviction? When can the government take your property without a criminal conviction? What is the difference between criminal and civil asset forfeiture?

Can I fight forfeiture proceedings? What kinds of defenses can I raise and what will I need to prove?

What is Criminal Asset Forfeiture?

Criminal asset forfeiture is when the government tries to take your property in connection to criminal charges against you.

Unlike civil asset forfeiture, criminal asset forfeiture is “in personam,” meaning the action is against you instead of solely against the property. The government must indict you for a crime that would allow them to take your property and they must also name the property (“indict the property”) as part of your criminal case.

If you go to trial in your criminal case, the jury must convict you, and they must find that your property is forfeitable. What happens if you enter a guilty plea, though?

Is Asset Forfeiture Part of a Plea Agreement in Federal Court?

Criminal asset forfeiture is often included in written plea agreements in federal criminal cases. If you sign a proposed plea agreement that includes the voluntary forfeiture of your money or property, you are agreeing to give your property to the government without a fight…

In some cases, that might be a good idea – particularly if it is a plea agreement that benefits you and if there is no obvious challenge to the forfeiture. But what if you don’t want to give the government your property or they do not have a valid claim to forfeiture?

Can I Fight Criminal Asset Forfeiture?

If you go to trial in your criminal case, you can also challenge any forfeiture claims that the government asserts in your case. Although many federal defendants just sign over their property as a condition of a plea agreement, you may be able to enter a guilty plea without consenting to forfeiture and then assert your defenses to the forfeiture claim.

What if the government is trying to take your property as part of another person’s criminal case?

For many criminal asset forfeiture claims, including cases under the Controlled Substances Act (CSA), Racketeer Influenced and Corrupt Organizations (RICO), and money laundering cases, the Court will hold a separate hearing to allow third parties to challenge the forfeiture based on their own interests in the property before issuing a final forfeiture order.

What is Civil Asset Forfeiture?

The main difference between criminal and civil asset forfeiture is that, with civil asset forfeiture, the government does not need to convict a person of a crime to take their property. For a civil asset forfeiture, the government need only show that it is more likely than not (a preponderance of the evidence) that the property was used to facilitate a crime.

Civil asset forfeiture cases are brought against the property (“in rem”) instead of against the person. Not only is a conviction unnecessary, but the government does not even have to charge you with a crime.

Imagine getting pulled over on the interstate for speeding, and one of the first questions the officer asks you is, “How much money are you carrying?”

Sound crazy? It happens every day across the nation – and some law enforcement agencies will take your money and try to keep it even though there was nothing illegal in your car and no criminal charges were filed…

What Type of Property Can the Government Take in Civil Asset Forfeiture Proceedings?

Any property they claim is connected to illegal activity is subject to forfeiture, including:

• Money used to fund illegal activities;
• Proceeds from illegal activities;
• Vehicles;
• Boats;
• Homes; and
• Jewelry or other valuables.

What is Administrative Asset Forfeiture?

Administrative asset forfeiture is a process that allows the government to seize your property without ever going to court.

Law enforcement can initiate administrative forfeiture proceedings to seize:

• Merchandise the importation of which is prohibited;
• Vehicles used to transport, import, or store controlled substances;
• Monetary instruments; or
• Property that is worth less than $500,000.

What are the Defenses to Asset Forfeiture?

There are many potential defenses to civil (and criminal) asset forfeiture, including:

• There was no probable cause that the seized property was connected to the alleged illegal activity;
• Even if probable cause was established that the property was connected to illegal activity, you can present evidence to prove that the property came from a legitimate source;
• Innocent third-party defense – if someone borrowed your car, for example, and you had no idea they were engaging in the illegal activity, we should be able to recover your property because you are an “innocent owner:”
• Constitutional defenses – the forfeiture statute or the method in which the forfeiture law is applied may be unconstitutional;
• Proportionality – forfeitures must be proportional to the underlying offense.

Are Civil Asset Forfeiture Proceedings in State or Federal Court?

Civil asset forfeiture proceedings can be in either state or federal court, although most criminal asset forfeitures are found in federal criminal cases.

In some cases, state and federal authorities will cooperate in making traffic stops and seizing cash from motorists, and then divide the “proceeds” amongst the different agencies involved – most of these cases will be in federal court as well.

When cash or vehicles are seized by local or state authorities, however, the resulting forfeiture proceedings will be in state court.

Civil Asset Forfeiture Attorney in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.