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Federal Criminal Asset Forfeiture

As your Federal asset forfeiture lawyer or attorney can explain, the main difference between New York State asset forfeiture (via a District Attorney or Attorney General) and Federal asset forfeiture (via the United States Attorney’s Office) is that Federal law has three different types of actions: criminal, in rem (civil), and administrative. In the New York State region, these Federal asset forfeitures are handled by Assistant United States Attorney Generals from the Southern District of New York (New York City, Manhattan, Bronx and northern suburbs), Eastern District of New York (Booklyn, Queens and Long Island), Northern District of New York (the Capital district and Adirondacks) and Western District of New York (Buffalo, Rochester and the Central New York and Southern Tier regions). Additionally, New Jersey and Connecticut have their own District Courts and United States Attorneys Offices.

Criminal forfeiture is the most common type of Federal asset forfeiture. Criminal forfeiture is when the Federal government puts you on notice that, if you are convicted of the crime with which they have charged you, they will seek to forfeit certain property of yours. If the government is going after specific property, they must name that property in the indictment. They may also seek a "money judgment," which is a judgment against you for a certain amount of money, usually representing the amount they allege you made from the charged crime. These proceedings are governed by Rule 32.2 of the Federal Rules of Criminal Procedure.

Federal law provides for criminal forfeiture, requiring a United States District Judge, as part of a defendant’s sentence, to order forfeiture in applicable cases. What that means is that forfeiture is usually decided as part of sentencing, on a lower burden of proof (preponderance of the evidence) than the criminal case (beyond a reasonable doubt). As such, the need for an experienced forfeiture lawyer in Federal court could not be greater. If a case goes to trial, in most cases, the forfeiture has to be resolved by another mini-trial on forfeiture after a verdict is rendered.

To start a criminal forfeiture procedure, a Federal prosecutor must give notice to the defendant of the United States’ intention to forfeit certain property. That notice must be included in the indictment. If there is a trial on the criminal case, forfeiture is not mentioned until after a verdict, at which time there is a separate forfeiture proceeding. If the defendant is convicted, then the government must show in the second forfeiture proceeding that there is a nexus between the crime and the property that the government is trying to forfeit. Unlike the criminal case, the government only has to show that nexus by a preponderance of the evidence.

It is imperative to recognize that the jury considering forfeiture does not concern itself with the ownership of the property. In fact, criminal forfeiture is called “in personam,” meaning that the government can forfeit only property belonging to the defendant in a Federal criminal case. That means that if the property belongs to another owner, the government cannot confiscate it. Unfortunately, third parties are excluded from participating in federal criminal cases, which means that, if you own property that is being forfeited as part of someone else’s criminal case, you may have to wait until the end of the criminal case for the “ancillary proceeding.” During the ancillary proceeding, third-party claimants can assert their right to get seized property back.

Whatever circumstances you may face, when the Federal government secures or attempts to seize your assets, hundreds of thousands and even millions of dollars may be on the line. Once it is gone, and you have not affirmatively exercised your rights, there may be no clawing back of what once was yours. Protect your assets. Protect your rights. Protect your future. Contact the asset forfeiture lawyers and former prosecutors at Saland Law and let experience, knowledge and advocacy be your strongest defense.

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

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