A New Jersey Criminal Defense Law Firm Attorney Explains Civil and Criminal Forfeiture

Jun 26, 2014

|

Articles

Under forfeiture proceedings, the government can seize assets or force persons or companies to give up material goods or assets that have been linked to alleged criminal behavior. In the paragraphs that follow, a New Jersey criminal defense law firm explains how this works.

What Can Be Seized

Anything a person allegedly used to commit a crime can be seized by the government. That can include a car that was allegedly used as a getaway vehicle, a residence if it served as a base for drug trafficking or a powerboat if it was used to carry and transport illegal materials. Also, if a person is indicted, any property they have that is material to the charges can be claimed under forfeiture proceedings, with the government attempting to keep that property. Third parties to whom such property has been turned over may also be forced to relinquish the property under the government’s forfeiture action.

Civil vs. Criminal Forfeiture

If a forfeiture proceeding is civil, it can be submitted whether or not criminal proceedings have been brought. If the forfeiture proceeding is criminal, it is included with the criminal case and will be determined at the same time as the underlying criminal charges.

The Doctrines

State court forfeiture laws are defined according to each state’s statutes, so the exact laws will not be identical. There are also separate federal forfeiture laws. Despite the variation in the various forfeiture laws, there are a few themes that emerge. These are:

• Under a civil forfeiture, the property or asset is the object of the action rather than the owner, who may be completely guiltless; and
• Even property that was received by third parties who knew nothing of the criminal activity to which the property is connected can be seized under forfeiture procedures. It became subject to seizure when the crime was committed. Even though the owners received the articles in good faith, they can be required to give them up.

Forfeiture Theories

Prosecutors may institute forfeiture actions based on the following theories:

• It is illegal to own the property. In other words, it is contraband. If the property is contraband, such as an illegal drug, it is a violation of the law even to possess it. Once seized, it is not to be given back under any circumstances since the possessor should never have had it to begin with;
• The property was purchased using funds acquired through illegal means. Property purchased under this premise was bought with money obtained through crime or perhaps given as a payment or reward for participation in a crime. Legal proceedings must determine if the possessor innocently bought the items, if the current owner received the articles by sale or transfer from someone else, and whether proof of the crime has been established; and
• The property was instrumental in the commission of a crime. This can involve extremely valuable articles or enormous sums of money. Whether it is a vehicle or a residence used in drug trafficking, money that has been “laundered,” or other assets, the prosecution may try to seize these under a forfeiture action. In some situations, defense counsel contest the forfeiture under the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.

Take Steps to Protect Yourself

If you need help or representation, have questions or would like to learn more, contact Tim Anderson, your New Jersey criminal defense lawyer by calling 732-212-2812 today.