What is Federal Forfeiture?

Federal forfeiture is a narrow area of law unlike any other. In short, your property can be seized and then forfeited by the United States Government (hereinafter “Government”).

First, without a conviction for a crime in what is known as Civil Forfeiture, and second, Criminal Forfeiture which requires a criminal conviction to proceed.

As a practicing federal forfeiture and criminal defense lawyer, I will try my best to give my audience the basics without the specifics that cause considerable confusion to almost all lawyers and the general public alike.

Federal Forfeiture Statutes frame the law used by Federal Government Agencies such as US Customs, HSI, DEA, FBI, USPIS, and USSS.

Civil Forfeiture is defined under Title 18 USC § 981, 982, and by procedure in 983.

Under these, a federal law enforcement agency may seize currency, vehicles, and property if the Government asserts that the property is reasonably suspected of being acquired through illegal conduct, used to commit a whole list of crimes, or is traceable to the illegal conduct.

How Does the Government Justify Federal Forfeiture and Seizure?

Historically, forfeiture was used by Kings and Lords of fiefdoms in Europe, where the kings could forfeit fief, which was given to the farmers or vassals and then taken back if they did not produce pursuant to the agreement.

Later, forfeiture was used in maritime law to board ships flying a country’s flag and asserting the gold was taken from land their country declared.

This forfeiture theory stayed with the United States and became part of the goal of Government to punish, deter, and incapacitate criminal organizations and activity. 

Problem is, the Government does not always get it right, and the process is sometimes abused, whether intentionally or by an overly aggressive law enforcement officer.

That is where San Diego Defenders – Forfeiture Law Firm comes in to rescue those innocent owners and others who simply don’t deserve to forfeit all the property, vehicles, and/or currency that was seized.

Three Types of Federal Forfeiture

Administrative Forfeitures

Administrative Forfeitures are the most common and are sometimes referred to as non-judicial forfeitures.

The DEA, CBP, HSI, FBI “3 letter” agencies or USPIS, USSS, or state law enforcement seize property, currency, Bitcoin, vehicles, or you name it pursuant to a search warrant or at the time of detention or arrest regardless of whether you are actually charged and have to go to court or not.

The state agency can “hand off” the seized property and then send a letter within 60 days explaining your options and the deadline to file.

The Notice of Seizure of Intent to Forfeit letter will usually spell out your options under the Election of Proceedings and a time to file a petition, offer in compromise, abandon, or claim.

Here are some samples of both forms from U.S. Customs and Border Protection (CBP):

Notice of Seizure and Information to Claimants CAFRA Form Election of Proceedings — CAFRA Form

Note that the respective law enforcement agency, like CBP or DEA, tries to encourage you to file a petition or offer in compromise, which gives them full control with no time limit.

If the claimant makes a mistake, the administrative procedure leaves little protection for the claimant.

Call San Diego Defenders – Forfeiture Law Firm at (619) 258-8888, and we will give you a free consultation and our opinion of the best way to recover your property and the likelihood of success.

Civil Forfeitures

Civil Forfeiture occurs when property is seized under the guise of an administrative forfeiture described above and is contested when the claimant files a claim. AND the Government has just 90 days to file the case in federal court.

The property may be seized under a warrant.

For instance, a pyramid scheme may result in the recovery of a million dollars.

The Government could file a civil forfeiture, which would look like The United States of America vs. $1,296,912.00 in Bank Funds in Cathay Bank Account 0462 et al. CV 24-071690ODW.

Due to the litigation, i.e., discovery, motions, and possible trial, the Government may choose to negotiate with the forfeiture attorney at any time depending on the strengths and weaknesses of the plaintiff government and the defendant claimant’s case.

The standard of proof in civil cases is a preponderance of the evidence or just a tick over 50%.

That is, in most cases, the claimant ultimately shows that the property, currency, vehicle, or what have you, was not intended for a criminal purpose or traceable to illegal proceeds.

That is why it is important to have legal representation.

The old adage that “a man who represents himself has a fool for a client” is applicable in civil forfeiture cases.

The evidence code, rules of civil procedure, and impeccable negotiation skills are super important for any level of success in getting your property returned in a federal civil forfeiture proceeding.

Criminal Forfeiture and Ancillary Proceedings

Criminal Forfeiture and Ancillary Proceedings are a hybrid of sorts due to the fact that the forfeited property, and its ownership, are litigated in an Ancillary Proceeding after a criminal prosecution results in a conviction.

Notice is given via publication or written notice to individuals or third parties identified to have a possible interest in the seized property.

The third party files a petition in federal court asking that a hearing be conducted to contest the preliminary order of forfeiture that the Government has filed asking that the Judge approve said order.

Although a third party is said to be afforded all the due process of a civil proceeding by way of discovery, the judge may rule without ordering that discovery be conducted.

To further complicate matters, the two prevailing theories to determine ownership are equitable distribution or funds directly traceable to the third parties.

This example is primarily important when there are multiple third parties vying for a set amount of funds or property that may or may not have been commingled.

In some cases such as multiple bank accounts, one account may involve third party funds commingled at different times and the other may be separate.

While it is true that an innocent owner is entitled to a return of the property and that no criminal should profit from deceiving the third party, the lines are often blurred, resulting in the Government keeping property considered unclaimed if it is not directly traceable to the third party.

We have seen this difficulty more often as of late in crypto-currency cases involving Bitcoin, Ethereum, and other crypto.

This is a brief overview of federal forfeiture and many other specifics come into play, such as the state’s case law determining property rights.

Contact San Diego Defenders – Forfeiture Law Firm Today!

Call us at (619) 258-8888 for a free, confidential consultation, and we can review your potential case.

Remember, in all of the above, there are deadlines, and time is of the essence.

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