Criminal and Civil Asset Forfeiture in State and Federal Court
Asset forfeiture is an often ruthless legal process through which the state or federal government seeks to permanently seize private property from citizens. The government uses civil and criminal asset forfeiture to attempt to obtain assets. Timing matters. There are strict deadlines that must be met in order to successfully challenge the government’s attempts to seize property.
There are countless federal and state statutes which trigger asset forfeiture. These statutes allow the government to seize property by proving there is a connection between the property which the government seeks to confiscate and some illegal activity.
In order to successfully protect your property you need the assistance of experienced legal counsel in forfeiture proceedings. Effectively handling these cases requires both skill and experience. Federal criminal defense lawyer Kresta Daly has successfully represented people in numerous forfeiture cases, both in forfeiture proceedings as well as when there is a parallel criminal case.
In some instances there does not have to be a connection between the property and the illegal activity, in other instances the law requires a connection but the connection can be very minor. Often in order for the government to seize the property they merely need show “probable cause” to believe that the property and illegal activity are linked. Both California and the federal government have used a wide variety of statutes to confiscate property.
A common misconception is that forfeiture of property affects only those convicted of crimes. Not so. Often people who have not been arrested, let alone criminally charged, have been forced to forfeit property to state and federal government.
Federal forfeiture laws consist of a myriad statutes and forfeiture categories relating to specific crimes such as drug trafficking and other controlled substance crimes, marijuana cultivation, tax evasion, money laundering, forgery and pornography. Federal law allows for the forfeiture of substitute assets – meaning if the government can not find the specific asset they are looking for the law allows them seize other assets that have the same monetary value.
Similar to federal law, California law enables the government to take your property under such statutes as The California Control of Profits of Organized Crime (California Penal Code §186), or California Health and Safety Code §11470(e), which allows forfeiture of controlled substances as well as any money, equipment or vehicles linked to possession of such substances.
If the government seizes and seeks to forfeit your property, seek legal advice early. The forfeiture process has crucial deadlines and failure to respond and take the appropriate steps in a timely manner can be fatal to your ability to defend your rights in court.
It is risky to call to discuss or to negotiate your case with the prosecutors or the police on your own. If forfeiture proceedings are underway law enforcement believes you or someone you’re connected to have committed a crime. Anything you say to law enforcement could later be used against you in court.
“[F]ederal prosecutors make criminal forfeiture a routine part of criminal law enforcement in federal cases… Until 1970, American law did not often use the concept of ‘criminal forfeiture’. A lot can change in 40 years”.
18 S.Cal.Rev.L & Soc. Just. 45.