The seizure and forfeiture of property by the Government has been around along time. Last year the Government seized $4 billion through forfeiture. There are two types of forfeiture, criminal and civil. A criminal forfeiture is judicial and occurs when a person in indicted in federal court for a crime and the property seized is named in the indictment. The seized property can only be forfeited if the person is convicted and the property can be traced to or connected with the underlying crime. In a civil forfeiture proceeding, the action is commenced against the property, not the person. As a consequence, no one is ever charged with a crime.
In the above airport example, a civil forfeiture proceeding is commenced. Within 60 days of the seizure, the Government must send written notice of the seizure to the small business owner. If the Government fails to send notice of the seizure within the sixty day period, the seized property must be returned to the owner subject to the Government’s right to commence a forfeiture proceeding at a later time.
Within 35 days after the mailing of the written notice of seizure letter, the business owner must file a claim of ownership to the property. The claim must specifically identify the property, state the claimant’s interest in the property, and be made under oath, subject to the penalty of perjury. Within 90 days of filing the claim of ownership, the Government must file a forfeiture complaint in federal district court. If the Government fails to file a forfeiture complaint or obtain a criminal indictment within the 90 day period, they must promptly return the seized property to the owner and can take no further action against the property.
There is a long list of the type of property subject to forfeiture including property involved in transactions with money laundering, property traceable to federal loan fraud, mail fraud, wire fraud, and controlled substance crimes. The burden of proof will be on the Government to prove by a preponderance of the evidence that the property is subject to forfeiture. The Government in our example will need to prove that the fifty thousand dollars in cash was derived from, or traceable to, any proceeds obtained directly or indirectly from the commission of a criminal offense. The claimant will need to introduce evidence as trial proving that the cash was derived from earnings made running a legitimate small business.
Don’t let the Government take cash, homes and cars without anyone ever being convicted or charged with a crime. If you are a victim of a civil forfeiture proceeding, call Minneapolis forfeiture defense attorney Robert J. Shane for a free phone consultation at (612) 339-1024 and stand up for your rights. Mr. Shane will file a claim on your behalf and demand a prompt hearing to contest the civil forfeiture of your property.