Asset Forfeiture

At My DUI Guy we understand that in the land of the free and the home of the brave where so many have shed their blood for our freedoms, there is nothing worse than when the government violates your constitutional rights by wrongfully seizing your assets. That’s why we work hard to protect your rights so your property can be returned to you as quickly and efficiently as possible.

What is Asset Forfeiture?

Asset Forfeiture is the legal process that the Government uses to take ownership of your private property or company assets. It can be done on the Federal and State levels and through the Criminal courts, Civil courts, or both.

FLORIDA FORFEITURE:

FL Criminal Forfeiture:

While criminal forfeiture is a common practice in some states, Florida does not allow it. However, Florida does allow civil asset forfeiture, which is codified in the Florida Contraband Forfeiture Act and is further explained below.

FL Civil Forfeiture:

The Florida Contraband Forfeiture Act (FCFA) is the set of laws that regulate asset forfeiture in Florida. Unlike Federal law and the laws of other states, Florida does not have criminal forfeiture. On the contrary, Florida only has civil asset forfeiture. However, despite being brought in civil court as opposed to criminal court, civil asset forfeiture in Florida has a criminal burden of proof, which is “beyond a reasonable doubt”.

This is actually better for you because it is harder to prove a case against you using a “reasonable doubt standard”, because it is the highest burden of proof in our legal system.

How do I know if the FCFA applies to my property?

Knowing which laws apply to your case is essential to have your personal property or assets returned. To determine if the Florida Contraband Forfeiture Act applies to your case, you must answer the following questions:

• Who is the seizing agency? Federal, state, or local law enforcement?
• What type of property was seized?
• Where was the property seized?
• When was the property seized?
• Have you received a “Notice of Seizure”? If so, from whom?
• Did prosecutors or agency attorneys file a forfeiture complaint in court?
• Does the case involve a criminal investigation? If so, by which agencies?

What Assets can I lose under the (FCFA)?

The Florida Contraband Forfeiture Act broadly specifies large categories of property that may be forfeited. They include, but are not limited to, the following:

• Money, currency, monetary instruments, securities
• Motor vehicles, aircraft, marine vessels
• Real property used to commit a felony
• Personal property used to commit a felony
• Firearms
• Any controlled substance
• Gambling paraphernalia
• Equipment used to violate beverage or tobacco laws
• Motor fuel when the motor fuel tax has not been paid

So what is the process under the FCFA?

Step 1: Seizure of your property

Under the FCFA, the civil forfeiture process begins with the seizure of your property by law enforcement. The term “seizure” simply refers to when the Government or its agents take possession of your property.

The actual seizure of your property is an important event in under the FCFA because it triggers a number of important deadlines, such as the Notice Requirement.

Step 2: Notice of Seizure

Under Florida law, the seizing agency (usually a police department or sheriff’s office) has a duty, pursuant to Fl. Stat. 932.701, to send you a formal “Notice of Seizure” after they take your property.

The notice must identify the seized property and advise you of the right to demand an Adversarial Preliminary Hearing, pursuant to Fl. Stat. 932.703(3)(a). We must request a hearing in writing and send it by certified mail within 15 days of receiving the Notice of Seizure or else your right to an Adversarial Preliminary Hearing will be waived.

Step 3: Probable Cause Finding

The next step requires a judge to determine if probable cause exists for law enforcement to continue to hold your property. If we request an Adversarial Preliminary Hearing, the judge will hear any evidence or argument we want to present as well as any evidence and argument law enforcement wants to present.

If we do not request an Adversarial Preliminary Hearing then law enforcement will file a motion asking the court to determine that there is probable cause to seize your property.

This is just like the first appearance in criminal court where a judge decides if there is probable cause to detain you following your arrest. However, in this case, the only difference is that we are talking about the detention of your property as opposed to your persons.

Just like a probable cause determination in criminal court, the probable cause determination in civil asset forfeiture is a very low standard. It is also not absolute and is based more on the representations made in police affidavits about what they believe the evidence will ultimately prove, as opposed to what it actually proves, if anything.

Just like first appearance court after your arrest, an Adversarial Preliminary Hearing is not a trial, and it is not the ultimate end of your civil forfeiture case. Rather, it is a check and balance on Government power to protect your rights by having a judge determine if law enforcement has satisfied the minimum requirements to seize your assets pending the outcome of your civil forfeiture case.

If the judge finds sufficient probable cause, then the Government will be allowed to retain your property pending the outcome of your civil case. However, if the judge finds that there is no probable cause, your property must be returned to you quickly. Additionally, if you win the Adversarial Preliminary Hearing, the Government will have to pay you up to $2,000 in Attorney’s Fees and Costs.

Step 4: Discovery

If the court finds that there is sufficient probable cause to detain your property, the next step is “discovery”.

During this phase, we will depose the State’s witnesses, demand all documentation they intend on using against you, demand they answer our interrogatories, which are questions, that require sworn answers, and we prepare your case for trial.

Given the nature of civil forfeiture proceedings, discovery typically involves the disclosure of police reports, witness statements, evidence logs, physical evidence, expert opinions, etc.

Discovery is a powerful tool that allows us to learn what the other side has and will be using before we go to court.

Step 5: Jury Trial

Unless your case has been dismissed, or we have reached a settlement agreement, the next step in the FCFA process is your jury trial. During the trial, a jury will be picked, and they will hear the Government’s evidence first. This evidence will be used to prove that your property was either the proceeds of crime or was used (or intended to be used) to commit a crime.

Like a criminal prosecution, the Government must prove its allegations beyond a reasonable doubt. We will have the opportunity to challenge every single Government witness, ask them any relevant question you would like, present our own evidence, call our own witnesses, and mount as strong of a defense as possible. You can even testify on your own behalf if you wish.

Step 6: The Verdict

Unless your case results in a mistrial or hung jury, the end game of every trial is the verdict. If the jury verdict is for the Government, ownership of the property formally transfers to them. Alternatively, if the jury verdict is for you, not only do you get your property back, but you are entitled to Attorney’s Fees, Costs, and Interest in cases where there is evidence that the Government acted in bad faith or abused its power.

FEDERAL FORFEITURE:

Law enforcement agencies such as the FBI, Customs and Border Protection, and the DEA are responsible for federal asset forfeitures. These agencies initiate asset seizures and forfeitures after a federal crime, or in instances, they believe your assets do not come from a legitimate source. In some cases, the federal and state governments work together so they can share the proceeds from your property.

Other agencies involved in federal asset forfeitures include:

• The U.S. Marshals Service
• The Federal Trade Commission
• Internal Revenue Service
• Attorney’s Office
• The Bureau of Alcohol, Tobacco, Firearms, and Explosives
• The Securities and Exchange Commission
• The Department of Homeland Security

Federal Asset forfeitures can be one of three types, which are:

1.) Federal Criminal Forfeiture:

Federal criminal forfeitures are brought in a criminal prosecution because of your asset’s relationship to the alleged criminal activity. Federal criminal forfeiture’s target the recovery of assets used in committing the crime or as proceeds of the crime.

Despite its name, which can be misleading, it is actually a civil proceeding with a civil burden of proof. As a result, you have very limited due process protection even though you have the right to contest it through trial proceedings. For example, there are no jury trials on Federal criminal forfeiture cases. Instead, resolutions of claims are presided over by a Federal judge.

Federal criminal forfeiture usually serves to punish you for the crime you allegedly committed. The government must first file a case against you and include a forfeiture allegation in the charging document or criminal indictment. The forfeiture allegation will identify your property the government seeks to forfeit, which might include houses, bank accounts, firearms, money, cars, and boats, etc.

If you are found guilty of the charges, the trial will then proceed to the forfeiture proceedings. If you are found not guilty, prosecutors are barred from pursuing criminal forfeiture of any property associated with allegedly committing or profiting from that count.

Forfeiture proceedings in Federal Court have a lower burden of proof because they only require a “preponderance of evidence”. In short, the government must only prove that there is a connection between the crime and your assets. The court will grant a preliminary order of forfeiture if the government successfully proves the connection.

After issuing the preliminary order, the court will also conduct a hearing to determine whether any third party has an interest or claim to the assets. Normally criminal forfeitures do not affect the rights of third parties, such as secured lenders or co-owners. However, it is very important that any third-party act diligently to ensure that the state does not dispose of the property before becoming aware of their interest. The court will issue a final order of forfeiture after settling the interests of third parties.

2.) Federal Civil Forfeiture:

Federal civil forfeiture is similar in many ways to criminal forfeiture. However, while criminal forfeiture imposes an additional penalty upon the owner of property for their wrongful conduct, a civil forfeiture action is brought against the property itself.

This type of case is known as an in rem action, a Latin term meaning "against the property". As a result, the names of the cases may seem odd, such as "United States v 1993 Toyota Land Rover Defender", “United States v 75 Firearms”, or "United States v One Hundred Fifty Thousand Dollars in U.S. Currency".

Unlike criminal forfeiture, civil forfeiture is much easier for the government to use. It requires neither a conviction nor a criminal charge to be filed. Instead, all the federal government must do is provide probable cause that one or more of your targeted assets are linked to criminal activity.

Interestingly enough, since the target of the forfeiture is the asset, rather than a person (as in a criminal case), it doesn’t have the same level of due process protection. Because of the relative ease with which the federal government can bring a civil forfeiture action, it is much more widely used and significantly easier to abuse.

In federal civil forfeiture cases, the government assumes possession of the property the moment you use it to facilitate or commit a crime. Federal bodies usually initiate civil forfeiture proceedings as part of their investigations into criminal cases.

Once they seize the property, they will send a written notice to the interested parties within 60 days. If you respond to the notice, the law enforcement agency will have 90 days to file a formal complaint against the property or file a criminal indictment.

You do not have the right to counsel in a federal civil forfeiture unless the property in question is your primary family residence.

3.) Federal Administrative Forfeiture:

Federal Administrative forfeitures are cases where no one files a claim to contest the forfeiture after a property is seized. 80% of federal forfeitures are administrative and do not involve litigation.

The federal government can forfeit several types of assets, including but not limited to:

• Cash
• bank accounts
• imported goods whose importation is illegal
• vessels transporting contraband or controlled substances
• buildings used for illegal activities
• contraband or controlled substances
• computers
• software
• tools, and equipment used to facilitate illegal activities.
• Houses and real property cannot be forfeited administratively.

Once forfeited, your asset becomes property of the United States subject to disposition as specified in the law.

The government forfeits most of the assets through administrative forfeiture since the majority of people are stripped of most or all of their assets, and don’t have the resources to pursue a claim.

So what is the Federal Administrative Forfeiture Process?

Step 1: Your Assets are Seized

In order to trigger the Federal Administrative Forfeiture process, your assets or personal property must first be seized by a government agency. It is imperative that you contact an attorney immediately if this has happened because they can begin preparing and reach out to the government agency for a possible early resolution.

Step 2: Notice of Seizure

Once a government agency has seized your property, they must publish a Notice of Proposed Forfeiture for a specific amount of time. The Notice must specifically state the forfeiture will occur if the owner of the asset fails to file a Claim or Petition against the forfeiture.

Step 3: Filing our Claim or Petition:

Once Notice has been given, you will then have an opportunity to contest your Administrative Forfeiture by filing a Claim or Petition. The Claim or Petition must contain specific information, or it will be rejected.

You have to submit your Claim or Petition to the seizing agency within thirty days of the last publication of the notice of proposed forfeiture. The seizing agency will then evaluate the Claim or Petition and prepare a report of the investigation before forwarding the report and your Claim or Petition to the U.S. Attorney’s Office. The U.S. Attorney’s office may pursue your case in Federal Court. However, most of the time a resolution can be reached.

Step 4: Distribution of your Personal Property

Once the forfeiture is complete, the disposition process begins. Disposition is the process whereby the forfeited assets are distributed to various parties as allowed under the law or in any settlement agreement that was reached.

CONCLUSION:

As you can see, the process by which the government takes your property is extremely complex and nearly impossible to navigate on your own.

If your personal property or your corporate assets have been seized by a government agency, contact My DUI Guy, P.A. immediately to schedule your consultation so we can help protect your rights.

So why should you call today? If you don't, you may forfeit your constitutional rights and allow them to be seized by the government.