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Defenses to Federal and State Asset Forfeiture

Because prosecutors who serve as United States Attorneys and New York District Attorneys are often extremely aggressive in their pursuit of your money and property and often expect that you, a target or subject of an action, will ultimately bend to their demands, any defense to an asset forfeiture proceeding requires significant work, effort and thought. This cannot be understated. In fact, while no particular defense works in each case, there are many solid defenses to a forfeiture case that your criminal defense attorney or asset forfeiture lawyer can pursue.

Whatever your best defense to an asset forfeiture action may be, you and your counsel must be aware of certain timing issues or you may forego what would otherwise be your strongest defense. For example, there are a number of critical timing deadlines that must be closely watched. Under Federal law, the government must provide notice of a seizure within 60 days of the seizure itself. If it neglects to do so, your asset forfeiture attorney can file a Rule motion under Rule 41(g) of the Federal Rules of Criminal Procedure. If you receive a “notice of seizure,” you must act quickly to file a claim. Simply, if you do not, you risk losing your money. “Quickly” may be as little as thirty days.

Challenging Asset Forfeiture: Theories and Defenses

Forfeitures can usually be challenged under several theories. For example, the seizure may lack probable cause or the government may not be able to show that the money did not come from a legitimate source. The following are a few defenses worth exploring.

Innocent owner: The most important defense is called the “innocent owner” defense, which is meant for innocent third parties who can show ownership of the seized property. To use this defense, you have to show that you were unaware of the illegal use of your property or that you were a bona fide purchaser for value. You are not presumed to be innocent of either of these, unlike other areas of criminal law. In fact, you have the burden of proving that you were an innocent owner of property before a court will order it returned to you.

Notice: Did you receive sufficient notice of a forfeiture action? This may be grounds to have the property returned.

Illegal search: Another defense is to show that the property was illegal seized in violation of your 4th Amendment rights, or that there was no probable cause for the seizure in the first place.

Unreasonable fine: The 8th Amendment protects people from unreasonable, disproportionate fines. In the context of an asset forfeiture case, that often means that the government cannot seek to deprive you of more than a certain amount of money.

Statutory and other defenses: There are many other statutory and related defenses available in forfeiture cases. For example, certain types of bank accounts are exempt from State or Federal asset forfeiture under Federal law. Further, New York State law prohibits the forfeiture of any property linked to misdemeanor offenses.

Collectively, the asset forfeiture defense attorneys and criminal lawyers at Saland Law have years of knowledge and experience having served as New York and Federal prosecutors. It is this foundation that is central to our advocacy to identify and implement what we believe will be our client’s best defense. Whether you need counsel for asset tracing, property seizures, restraining orders, or forfeitures of property, put yourself in the best position to preserve what may have been wrongfully taken from you. Let Saland Law’s experience, knowledge and advocacy work for you.

Call the asset forfeiture lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.

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