Asset forfeiture is an important part of civil and criminal law enforcement both in New York State and the Federal Government. While prosecutors are generally focused on putting defendants in jail or punishing crimes, they also often try to use a variety of civil and criminal means to remove the tools of crime – whether they are guns, planes, or cars – and the ill-gotten gains.
In its most basic form, asset forfeiture starts with the seizure of assets by the government. Seizure is different from forfeiture, however. Usually, government agents seize property, and then begin a legal process known as “forfeiture” to confiscate the property. People who are owners of the property, who have some colorable interest in asserting a claim to the property, may fight the seizure and confiscation in court.
To seize property, the government or state must have probable cause to believe that property is forfeitable. To forfeit it (meaning to confiscate it forever), it must demonstrate the forfeiture by a preponderance of the evidence, which is a higher standard. There are many ways for the government to seize property, whether it’s a warrantless seizure (property in plain view, or exigent circumstances, part of a traffic stop) or the product of a seizure warrant.
- New York State Asset Forfeiture
- Federal Criminal Asset Forfeiture
- Federal Civil Asset Forfeiture
- Federal Administrative Asset Forfeiture
- Defenses to Federal and State Asset Forfeiture
Whether forfeiture is pursued as part of a criminal prosecution or a separate civil action, asset forfeiture proceedings have the ability to leave you destitute or irreversibly damaged financially. Whether or not the federal government or the State of New York is correct in their belief that your property or money should be clawed back from your home, bank accounts or other investments, the reality is that Federal and New York State prosecutors (the New York State Attorney General or local District Attorney) will pursue your property with the hope that you will ultimately submit to their demands in light of what appears to be a great risk for you to continue to fight.Asset Forfeiture: Government and State Theories
After property or money is seized by the Federal Government or the State of New York, prosecutors and Assistant District Attorneys generally can try to confiscate it under several theories. The first theory is that the property constitutes the “proceeds” of crime. Proceeds are usually defined in the case law by a “but for” test: if the defendant had not committed the crime, he or she would not have obtained the money or property. Also, the government does not try to forfeit only the profits of crime; it usually seeks to forfeit the gross proceeds. That means that if a defendant is accused of having sold $10,000 of narcotics, the government will not care that he or she spent $1,000 on purchasing product; the entire $10,000 is forfeitable. There is no reduction for overhead expenses. The government can also forfeit “facilitating property,” meaning any property that makes the crime easier to commit. If a drug dealer allegedly uses a car to make the drug sales, then the car is forfeitable as an instrumentality of the crime.
Usually, forfeiture is part of a criminal case, heard in court after a defendant is arrested. However, the government can also seize property without making an arrest. Usually, the government then proceeds “administratively” to forfeit the property, meaning that a Federal law enforcement agency, such as the DEA or FBI, engages in a procedure to confiscate the property outside of a courtroom. Under the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), the Federal government has strict time lines for sending out notice to potential claimants of an administrative forfeiture proceeding. Under CAFRA, real property and personal property having a value in excess of $500,000 may not be administratively forfeited.
In addition to representing clients accused of criminal wrongdoing, the lawyers at Saland Law can assist victims of crime who are searching for property that has been stolen for them. We have sophisticated asset searching capacity that allows us to trace and track down stolen assets. We can also engage in judgment collection work on your behalf.
As experienced New York City criminal defense lawyers in both New York State and Federal courts, Saland Law represents clients who have had their assets seized or restrained by law enforcement. So-called “asset forfeiture” is an extremely complex area of law and, as noted above, involves civil lawsuits by the government against your property or is at the heart of a criminal case. Federal agencies also have the power to engage in “administrative” forfeiture, which happens completely outside of a courtroom. Saland Law, a law firm whose partners collectively served as prosecutors in Manhattan and the United States Attorney’s Office, is well equipped to protect and exercise your rights. Let Saland Law’s experience, knowledge and advocacy be your defense against Federal, State and administrative asset forfeiture cases to best secure your seized property and make you once again whole.
Call the asset forfeiture lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.