Forfeiture refers to the seizure of assets without remuneration as a consequence of a punishment for criminal behavior.
Statutory criminal forfeiture allows government authorities to recover commodities that were either used for unlawful acts or purchased with illegally obtained funds. The Department of Justice, has stated that the goal of confiscation is to “destroy the funding and investment of structured illegal networks and drug traffickers, and to reclaim assets that can be utilized to recompense survivors and prevent crime.”
Individuals who don’t understand the procedure may believe the authorities can confiscate significant assets like your vehicles, property, or even money transfers even after you’re imprisoned. To confiscate your assets, federal agents and the state have to go through a procedure.
Forfeiture Can Occur Before, or After Conviction of a Criminal Offense
Forfeiture is an exclusive procedure filed by a prosecutor against an accused that results in the confiscation of the defendant’s possessions, wealth, and income gained explicitly or implicitly from illegal activity. However, there are two different approaches that prosecutors can take-civil proceeding or a criminal forfeiture tied to a criminal indictment. At the outset of a criminal investigation the prosecution may seize assets and file a civil forfeiture proceeding. It can also occur after an individual or a corporate entity is convicted of a crime. It was intended to be able to forfeit all propety, and earnings or assets associated with the offenses for which the defendant is found guilty. In a civil forfeiture the burden of proof is less for the prosecutors. Futhermore, the risks can be great in defending a civil forfeiture. In a civil forfeiture the prosecution is entitled to take the sworn testimony of the party making a claim for the property. They may ask questions that can implicate a person or corporation in criminal activity and there is no Fifth Amendment privilege. The prosecution must show a link between the act of guilt and the assets or funds that the authorities would confiscate by a preponderance of the evidence.
In a criminal forfeiture, normally linked to a criminal indictment the prosecution must first prove guilt beyond a reasonable doubt before seeking the forfeiture. Where a criminal forfeiture occurs if those assets directly acquired with the illegal earnings cannot be located the prosecutors may try and collect from “substitute assets”. Substitute assets are any assets bearing the defendant’s name or which can be proven to have been placed by the defendant in a third party’s name to avoid detection.
The United States Supreme Court has shown a revitalized commitment to enforce the limits of asset forfeiture legislation to ensure that accused are treated with dignity and respect.
Understanding Your Options in Criminal Forfeiture Case
Too often defendants, frequently at the urging of their attorneys will not contest forfeiture. But that approach is a mistake and negotiating or litigating the efforts to forfeit assets is crucial in the defense of a case.
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