Federal (and State) Asset Forfeiture
In a federal criminal case the prosecution may include line items included in an Indictment that demonstrate that the government is entitled to specified articles of property or certain amounts of cash that are connected to the criminal activity of an underlying crime. This is known as criminal forfeiture and is utilized in cases involving illegal narcotics, wire, bank, and securities fraud, charges involving money laundering as well as tax evasion, to name a few.
After an arrest, confiscation of illegal narcotics along with cash found in the possession of the individual or group they are taken from is the leading type of crime for a forfeiture claim for the actual money found with the drug upon a suspect(s) being taken into custody; however other cash assets, cars and real estate as well as other property owned by the accused entity or individual can usually be claimed as forfeiture items by the government.
In cases such as these it is not only the responsibility of the accused to prove their innocence, but additionally prove that the cash or property seized by the government is in no way linked to the confiscated drugs or any other criminal activity. But in the case of a criminal conviction the forfeiture of all items listed in the Indictment will most likely become an agreed stipulation of an overall plea agreement or as the result of a jury's verdict of guilt as it is intended as part of the punishment for the commission of the criminal act.
Unlike criminal forfeiture, civil forfeiture involves a law enforcement body seizing assets just on the basis of the suspicion of cash or physical items being the product of ill-gotten gains resulting from a possible crime without having to prove any wrongdoing.
This applies in many states where the accused typically has limited legal rights, while prosecutors and law enforcement enjoy the benefits of the specific state law. Additionally, when a negative judgment to the owner is accomplished, most state and federal laws award the law enforcement agencies that originally held the cash or property a percentage of the proceeds, and in many cases, all of the assets are ruled to be given in full to the agency that initially seized them. This situation encourages law enforcement a financial incentive for the taking of your property.
Thankfully, Florida's civil forfeiture laws afford more protections for owners of property that's been seized but still gives law enforcement agencies a motivation to utilize a forfeiture policy.
Here, the government or state must prove by strong and conclusive evidence that the cash or property was associated to criminal activity and consequently can be forfeited, which is obviously a higher standard than other states but nonetheless a lesser burden than the beyond a reasonable doubt standard essential for a criminal conviction. Also, in Florida persons that have had cash or property seized by law enforcement agencies are not presumed guilty. It is still the burden of the government to prove that the assets in question fit the proper criteria for forfeiture.
In any case that involves forfeiture, time is of the essence.
Unless property is seized during an arrest for a criminal act, a defendant will not be notified in advance that a seizure of assets for the purpose of forfeiture is about to take place. Once monetary funds or property is seized, a Notice of Seizure of Personal Property and a Right to an Adversarial Preliminary Hearing will be sent out giving the object of the forfeiture fifteen days for a state action or ten days for a federal action to respond. Not responding by filing a request for an adverse preliminary hearing within this timeframe will end all possibilities of preserving your rights.
With more than thirty-five combined years working in the legal field as an Assistant United States Attorney prosecuting cases for the government, a former Assistant State Attorney for Broward County, Florida, and for more than the past decade practicing as a criminal defense attorney, my law office specializes in federal and state criminal defense law including cases that involve asset forfeiture and is the proper choice to fight all allegations of any charges filed by the state or the federal government.
To view all of my qualifications and understand what should be done next if you or someone you care about is facing a criminal or civil asset forfeiture action or any other local or federal criminal matters, click here.
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