Understanding Federal Criminal Forfeiture

Did you know that if you are charged with and convicted of a crime in federal court, you could lose a lot more than your freedom as a penalty? The process is called “Criminal Forfeiture,” and it gives the government sweeping powers to seize certain property and assets both before and following a criminal conviction.

The FBI defines the purpose of criminal asset forfeiture as follows:

The use of asset forfeiture in criminal investigations aims to undermine the economic infrastructure of the criminal enterprise. Criminal enterprises in many ways mirror legitimate businesses. They require employees, equipment, and cash flow to operate. Criminal enterprises also generate a profit from the sale of their “product” or “services.” The obvious difference is that the profit generated from criminal enterprises is derived from criminal activity. Asset forfeiture can remove the tools, equipment, cash flow, profit, and, sometimes, the product itself, from the criminals and the criminal organization, rendering the criminal organization powerless to operate.

The authority to seize assets deemed to have been used in criminal activities for which you were convicted is derived from various federal criminal laws—such as drug laws and money laundering laws—which contain provisions for criminal forfeiture. A criminal asset forfeiture is known as an in personam action, or an action against a person, as opposed to a civil forfeiture which is known as an in rem action, or an action against property. While the power of the government to conduct civil asset forfeiture was actually reined in by the Civil Asset Forfeiture Reform Act of 2000, this same act actually expanded the powers of the Department of Justice to conduct criminal forfeitures.

In order for property to be forfeited by the government under criminal forfeiture, the property that is to be seized must also be charged in the indictment along with the person who is a named defendant. If the defendant is found guilty, either by the verdict of the jury or a guilty plea, then the property is subject to forfeiture. If the government can prove that the property was tainted by (or contributed to) the illicit activity by a preponderance of evidence, the court will rule that the property is forfeited.

A criminal forfeiture can also affect an innocent spouse, business partner or creditor who may have an interest in assets owned by a criminal defendant. Furthermore, if the actual proceeds of a criminal offense are no longer available for the government to seize, in certain circumstances “substitute assets” may be seized and forfeited. And most significantly, in federal court, the protections of the Homestead laws which shield one’s home from creditors do not apply.

Criminal forfeiture is an incredibly complex area of the law, with far reaching consequences. Fortunately there are actions which a knowledgeable attorney can take to potentially prevent the seizure of your assets by the government.

If you have been convicted of a crime, you already stand to lose a great deal. There is much potential for the power of criminal forfeiture to be abused by the government, and it is vital that you enlist an experienced attorney to assist you with also defending your assets so you don’t lose any more than you have to. If you are facing criminal forfeiture of your assets, please contact attorney Barry M. Wax today.

Law Offices of Barry M. Wax