The term “asset forfeiture” refers to the government's right to take an individual's property due to a reasonable suspicion that the property was acquired illegally or has been used to commit a crime.
In forfeiture cases, the property owner has been convicted of a crime before having the property taken away due to forfeiture, though this isn't necessarily always the case. In many cases, the government can seize property before a conviction is entered against a criminal defendant.
Asset forfeiture laws in California are frequently used by law enforcement for all types of property and even money. Readers might have heard of overzealous government agents seizing an owner's assets in forfeitures directly related to a family member's illegal drug enterprise or other criminal activity.
However, the government cannot simply take the property away without notice; there are a few steps in asset forfeiture.
The government must file a civil lawsuit against the asset it wishes to take. This means the defendant in the lawsuit is the property itself—not the property owner.
For the government to be able to win the case and seize the property, they're required to show sufficient evidence demonstrating the fact the property in question has been used in connection to criminal activity. If you face asset forfeiture, you must speak to an experienced legal counsel. Our California criminal defense lawyers will examine this topic further below.
What Type of Properties Can Be Forfeited?
Government agents have broad power to seize not just bank and brokerage accounts. In most instances, they can take away just about any property. Listed below are some examples:
- homes purchased with money from illegal activity;
- cash acquired from illegal drug activity;
- weapons involved in assault cases;
- animals, after a person has been convicted of animal abuse;
- laptops or phones used in criminal activity;
- cars or trucks used to transport stolen goods;
- boats used to transport illegal controlled substances;
- a machine used to print counterfeit bills;
- drugs and the equipment and facilities used to manufacture them;
- contraband like illegal drugs or guns, or illegal imports;
- exchanges in which the government seizes and the owner forfeits cash;
- any proceeds earned from illegal sales of drugs or other contraband;
- other real property obtained through a pattern of criminal activity.
The federal government seizes about half a billion dollars in drug-offense assets annually, while California receives about one hundred million dollars in annual forfeiture distributions.
All too often, federal and state law enforcement exercises their powers unjustly. The government often appears to have unchecked power to seize and forfeit assets, but you have rights and don't have to give in to government intimidation and abuse.
For example, agents might attempt to seize a family or business vehicle that the criminal secretly used for drug distribution. They could also try to seize a home or commercial property secretly used for drug manufacturing, even if the actual property owner was unaware of the crime.
Asset forfeiture: drug cases
Most asset forfeitures in California are related to criminal violations of the State's drug laws.
The two primary concerns in these events are whether an individual must be convicted before a property is seized and the required procedures the government must follow to take the property.
Is a Conviction Required?
Frequently, asset forfeiture due to drug offenses requires the government to secure a conviction of the person of the drug offense itself.
Specifically, the person must have been convicted of a primary or associated criminal action for property such as boats, airplanes, vehicles, money, or real estate to be taken away.
Two exceptions exist to this requirement, however. No conviction is required to forfeit property connected to drugs if there's a defendant for an original criminal action and the defendant does not show up for their case. In this scenario, the government has to provide decent evidence showing that the property was related to the crime.
The second exception relates to the forfeiture of cash or securities totaling more than $40,000. No conviction is required beforehand in this event. The government still has to prove that the money was acquired by, or was intended to be used in, drug transactions.
What Are the Required Procedures for Forfeiture in Drug Cases?
There are three types of required procedures involved in forfeiture drug cases that the government must follow: summary procedures, administrative procedures, and judicial procedures. The facts of a particular drug case determine the specific procedure and the resulting type of forfeiture.
- Summary Forfeiture: This type allows the government to forfeit certain drugs without procedure, such as marijuana, heroin, MDMA, or LSD;
- Administrative Forfeiture: These procedures are required in instances that involve personal property worth less than $25,000. Police must first give public notice that includes the property's description, value, date/location of the seizure, corresponding justification, and how to challenge the forfeiture. If no one contests the forfeiture, after 30 days, the police can sell the asset and keep the money. If a person does challenge the asset being taken, the case will be heard in court;
- Judicial Procedures: These are used in the event someone: a.) challenges the seizure of property valued at less than $25,000, and b.) when state or local police agencies seize assets worth above $25,000. A civil trial has to take place before the property can be forfeited.
What About Organized Crime?
For the government to be able to seize property in connection with an organized crime allegation, there must first be a conviction for a crime involving a pattern (two or more connected crimes) of criminal behavior done over time with the intent to profit from it financially.
Some examples of these offenses include child pornography, extortion, or receiving stolen property.
How Does the Asset Forfeiture Process Work?
Asset forfeiture in California typically follows three steps. Law enforcement agents will first take control of the property by:
- putting banks or brokers on notice to place a “hold” on accounts,
- taking physical possession of the personal property, or
- recording forfeiture notices against property to prevent transfer.
After government agents take control, the owner loses the ability to sell, use, or otherwise benefit from the property.
Under the seizure and disposition rules under California Health and Safety Code 11469 HS, forfeitures typically require that the government proves their forfeiture right at a court hearing.
Under California Health and Safety Code 11475, some forfeitures, such as certain illegal drugs, allow the government to act summarily without hearing.
California Health & Safety Code 11488.5(a)(1) describes administrative forfeiture procedures requiring only notice but permitting the owner to demand a hearing.
If you are facing asset forfeiture, we might be able to frustrate and defeat the government's efforts. It might also be possible to win at the forfeiture hearing.
California's forfeiture laws and proceedings are often complex. The government is always intimidating, and its agents may not always follow the restrictions. We can preserve your assets and reputation against overzealous government action.
Eisner Gorin LLP is a top-ranked criminal defense law firm in Los Angeles County. We represent people throughout Southern California, including Orange County, Ventura County, Riverside, and San Bernardino. Contact our office for an initial case review at (310) 328-3776 or use the contact form.