Forfeiture and Asset Seizure
Defending your Property Rights
If the Government suspects you are involved in a crime or violated customs laws, it has nearly unrestricted ability to seize your property. They don’t have to convict you. They don’t even have to charge you with a crime. But they can take and retain your property. Defending your property rights is a complicated process that puts the burden on you – the property owner – to prove the Government seized your property illegally.
The Importance of Legal Advice and Representation
Forfeitures and seizures can be very complex with strict guidelines requiring paperwork be filed in a timely manner. Law enforcement agencies aggressively pursue forfeitures because of the reliance on forfeiture proceeds for funding programs. In many cases, a criminal investigation occurs at the same time as forfeiture proceedings or can follow a forfeiture. Therefore, it is critical to know your rights and protect yourself with the assistance of a qualified and experienced attorney at every stage of the process.
Originally intended to seize the assets of money launderers and drug dealers, the law’s low requirement threshold has allowed government agencies to incorrectly identify someone as a possible suspect in a crime and take their assets. It can take more than a year for an innocent person who has had their business, property or finances seized to be cleared of wrongdoing, during which time they can lose everything.
Defenses to Forfeiture
The Property was not Involved in the Crime
The main defense raised by property owners in forfeiture proceedings is that the property was not used for an illegal purpose. For example, a criminal defendant can claim that money seized from his bank account was not the proceeds of his drug sales, but was earnings from his legitimate job. Or, the owner of a boat may claim that although the defendant, who ran a drug smuggling operation, had access to the boat, it was never involved in the operation.
Innocent Owner was not aware of the criminal link to the property
A property owner may assert a defense that they were unaware of the item’s role in an illegal activity. For instance, someone who buys property that is later threatened with forfeiture could claim the property was purchased without knowledge that it was used in criminal activity. Similarly, a vehicle owner could claim they had no knowledge that their vehicle was being used to transport contraband. Owners may also claim that they attempted, to a reasonable extent, to put a stop to the illegal activity.
Forfeiture, the government seizure of property connected to illegal activity, has been a major weapon in the Federal government’s “war on drugs.” Forfeiture has become a revenue source on which law enforcement has grown increasingly dependent. However, it brings few safeguards for the property owner, allowing Government wide latitude to seize and retain many forms of property. Legally, forfeiture is where a body of the Government (State or Federal) takes property without compensating the property owner. Forfeiture can be either civil or criminal. In a civil forfeiture, action is taken against a person’s property or assets, not against the individual. The property is the target of the proceeding. The owner does not have to be arrested or convicted of a crime in order for the property to be lawfully taken. In a criminal forfeiture, action is taken against the person following a criminal conviction.
Categories of Property Subject to Forfeiture
- Contraband – Property for which ownership by itself constitutes a crime, including smuggled goods, narcotics, and automatic weapons.
- Proceeds from Illegal Activity – Property directly resulting from, or that can be traced to, an illegal activity. Once a crime is identified, the government may seize any property flowing from the activity. In some cases, the Government may seize property in lieu of provable criminal proceeds. Statutory innocent owner defenses provide a check on the seizure power but the burden lies with the owner, not the Government.
- Tools or Instrumentalities Used in Commission of a Crime – Property used in the commission of a crime, including vehicles and real estate. By being associated with the crime, the property is “guilty” of the offense and subject to seizure.
Federal Forfeiture and Asset Seizures
Customs and Border Violations
All goods and currency that are introduced at ports of entry to the United States are subject to seizure if an individual or individuals fail to comply with reporting requirements of United States Customs and Border Control. To initiate a seizure, Customs must have probable cause to believe that there was a violation of a customs law or other law enforced by Customs with respect to specific property. Examples of Customs laws include undeclared or smuggled property, traveling with contraband, or counterfeit trademark goods. Both civil and criminal penalties can result from violations of these rules.
Failure to Declare Currency
There is no limit on the amount of money that can be taken out of or brought into the United States and there is no duty collected on currency. However, anyone traveling with $10,000 or more in currency must declare that currency. Failure to declare the currency can result in seizure, civil penalties and/or Federal criminal charges. This requirement applies to persons or families traveling together. The currency cannot be divided between individuals to avoid declaration. Customs and Border Protection provides forms and is responsible for oversight of regulations. If currency is seized, the case is referred to the Fines, Penalties, and Forfeitures division of Homeland Security. The regulations applying to currency also include other “negotiable monetary instruments” (i.e. currency, endorsed personal checks, travelers checks, gold coins, securities or stocks in bearer form).
The primary objective behind the declaring requirement is to prevent organized crime groups from moving large quantities of currency in bulk to and through airports, border crossings, and other ports of entry where the currency can be smuggled out of the United States and placed in a foreign financial institution or sold on the black market. The Government is concerned with preventing the laundering of criminal proceeds but equally enforces failure to declare where individuals simply do not abide by reporting requirements.
Relief from Seizure in Border Violations Cases
Customs and Border Protection has mechanisms in place to provide relief from forfeiture in certain circumstances. The relief can take the form of reduction of penalties, return of forfeited currency or goods. Once property is seized the case is referred to the Fines, Penalties, and Forfeitures office within 3 working days. Officers will send interested parties a notice of seizure and information on procedures to petition for relief from the forfeiture. Relief may take the form of return of the property following payment of a fine, reduction in fines and/or civil penalties.
Criminal Border Violations
It is a criminal offense (“Bulk Cash Smuggling”) when a person, with the intent to evade a currency reporting requirement, knowingly conceals more than $10,000 in currency or other monetary instruments on the person of such individual or in any conveyance, article of luggage, merchandise, or other container, and transports or transfers or attempts to transport or transfer such currency or monetary instruments. The penalty for this offense is imprisonment up to 5 years and forfeiture of any property involved in the offense.
A state may seize goods or currency according to its own laws. Washington State grants authority to seize certain personal property or currency when the following circumstances exist:
Forfeiture Without Conviction
Washington law does grant law enforcement the authority to seize property prior to a conviction. Such a seizure can lawfully take place when incident to an arrest or search under a warrant, when a law enforcement officer has probable cause to believe that the property is directly dangerous to health or safety, when a law enforcement officer has probable cause to believe that the property was used or is intended to be used in the commission of a felony. The most common instances of forfeiture prior to conviction are those where a law enforcement officer suspects an individual or individuals to be engaged in drug trafficking. There are many things that can lead a law enforcement officer to have probable cause to believe drug trafficking is occurring such as carrying large bundles of cash placed in different areas of the body or spread throughout various bags, or a high number of recurring flights to a known drug trafficking hub.
When law enforcement seizes property pursuant to a civil forfeiture, notice must be served upon property owner within fifteen days of the seizure. The property owner thereafter has forty-five days after the seizure to notify law enforcement of a claim of ownership. If such notice is not given within forty-five days the property is deemed forfeited. After notice is given a hearing will be scheduled during which the property owner has the burden to produce evidence demonstrating that they are the lawful owner of the property and that it should not have been seized. The government must establish that the property is related to a crime and thus subject to forfeiture by a mere showing of preponderance of the evidence, a standard lower than the beyond a reasonable doubt standard required for a criminal conviction. Property owners in forfeiture proceedings are effectively guilty until proven innocent, bearing the burden of proof for innocent owner claims.
A property owner may also negotiate with the Government agency seeking forfeiture for return of all or a portion of the property.
Forfeiture Pursuant to Felony Conviction
Following a conviction when the property or currency has been or was actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of any felony, or which was furnished or was intended to be furnished by any person in the commission of, as a result of, or as compensation for the commission of, any felony, or which was acquired in while or in part with proceeds traceable to the commission of a felony.