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ADMINISTRATIVE > CIVIL FORFEITURE > CRIMINAL FORFEITURE
Many if not most Criminal Defense Attorneys are unfamiliar with and inexperienced in Federal Forfeiture laws and therefore unwilling to become involved in that part of your case.
At Houlon Berman, our co-managing partner, Richard Finci and Senior Associate, Jeremy Feldman, have years of experience handling the seizure and forfeiture elements of our client’s Administrative, Criminal and Civil Forfeiture matters. In fact, over the years, we have recovered literally millions of dollars of our client’s cash, automobiles, jewelry and real property (homes and land). We are known throughout the State of Maryland as experts in Federal Forfeiture law and Richard Finci has lectured and advised other lawyers on the subject on many occasions.
Federal forfeiture laws are harsh, aggressively pursued and enforced by Federal authorities and on many occasions, unfairly applied both against those charged with a Federal crime and innocent family members who are co-owners of the property being forfeited.
Federal forfeiture is generally controlled by the Civil Asset Forfeiture Reform Act of 2000 (known as CAFRA). The Federal criminal statutes controlling Forfeiture can be found at 21 U.S.C. §853 (Criminal Forfeitures), 18 U.S.C.§983 (Civil Forfeitures) and Federal Criminal Procedure Rule 32.2 (applying to Criminal Forfeitures) and the Federal Rules of Admiralty. (There are other related statutes as well, but these are the major provisions which apply).
Federal Forfeitures begin with the seizure of property often resulting from the execution of a Search warrant, a Property Seizure warrant or simply the recovery of a large sum of money from a vehicle or someone’s person. Within 30-60 days, the person from whom the property was seized and any other person who can be arguably identified as having a possible ownership or possessory interest in the money or property will receive an Administrative Forfeiture Notice from the federal agency which seeks to forfeit the property (perhaps the FBI, DEA or Customs and Border Protection (CBP). This Notice sets forth choices and rights that the owner has with respect to challenging the forfeiture. The owner may ask for the agency to forgive the forfeiture and return the property, or may request an agency or judicial referral of the forfeiture matter.
In our experience, there is virtually no chance that the agency will voluntarily return your property once an Administrative forfeiture notice is issued. Your only viable chance to get your property back is to request that it be referred to the U. S. Attorney’s office for consideration of Judicial forfeiture. We almost universally recommend that our clients who wish to seek the return of their property seek Judicial forfeiture by filing the necessary Claim to the property. Of course this advice is subject to consideration of evidentiary and strategic factors in any underlying criminal case or any criminal case exposure.
Once the case is referred to the U.S. Attorney’s office, a couple of possibilities are presented. First, the US Attorney might decline to take on the case. This happens more often when the case referral is from a State agency under “adoptive forfeiture” policies related to the controversial federal “equitable sharing” program. For a recent interesting scholarly article on this general subject take a look athttps://harvardlawreview.org/2018/06/how-crime-pays-the-unconstitutionality-of-modern-civil-asset-forfeiture-as-a-tool-of-criminal-law-enforcement/.
On many past occasions, the Assistant United State’s Attorney to whom the now referred matter is assigned would contact us and a process of informal exchange of information would move forward and negotiations commence. These types of less formal discussions of the Forfeiture issues at hand was common in the past and will helpfully continue into the future. However, over the past few months, negotiations have been difficult as the current Chief of the Maryland U.S. Attorney’s Office Asset Forfeiture Unit has decided to either decline cases with no criminal charges or include the asset in a related Indictment in order to pursue Criminal Forfeiture of the asset.
We can help you with your Federal Forfeiture issues. Recent Supreme Court case law has narrowed the scope of Civil Forfeiture, has provided that seized assets which are not directly tainted by the alleged offense may be accessed to help pay your attorney fees and that a forfeiture judgment under a joint and several liability theory for the entire proceeds of a criminal enterprise should not be granted. Only a judgment for the amount directly associated with funds received by the person charged should be granted.
Additionally, we can at a minimum help work to ensure that any assets seized for Forfeiture will be applied to mandatory victim restitution rather then be separately retained by the Government with you still owing a large Judgment of Restitution to the victim.
Whatever you do, it is absolutely crucial that your Criminal Defense Attorney also be willing to become involved in the related Asset Forfeiture issues and that your attorney have the expert knowledge to do so effectively.