Can the federal government seize a person’s assets? Yes.
Can the federal government seize a person’s assets—even if there haven’t been any criminal charges? Yes.
Sound unfair? It probably does.
An explanation: If an asset (real estate, money, cars, etc.) was involved in committing a crime, the federal government has the right to seize that asset in civil proceeding. (A quick reminder: A civil proceeding is one in which a party seeks money or property—but no one is at risk of criminal penalties such as jail or prison. For example: A personal injury case is a civil proceeding.) The seizure is part of a “forfeiture” proceeding.
Civil forfeiture is a proceeding brought in court against the asset. In other words, the property is the defendant and no criminal charge against the owner of the asset is necessary. The owner of the property isn’t even named in the civil proceeding—only his or her property is named.
Does a person whose property is subject to seizure have rights to prevent the government from taking the property? Yes.
A property owner may assert his or her right to property seized by the federal government. Specifically, the owner may contest a governmental seizure in a civil proceeding—even if no criminal charge or indictment has ever been filed.
Rule 41(g) of the Federal Rules of Criminal Procedure provides an avenue for the return of the asset from the government where no criminal proceeding is pending: “A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. . . . If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.” This will typically consist of a motion by the property owner followed by an evidentiary hearing. See id.
An innocent third-party owner has the right to file a petition for remission or mitigation if the owner demonstrates that he or she has a valid, good faith, and legally cognizable interest in the seized property. See 28 C.F.R. § 9.5(a)(1). The owner must further demonstrate that he or she is an “innocent owner” as defined by 18 U.S.C. § 983(d)(2)(A) or (3)(A). The ruling official shall presume a valid forfeiture and shall not consider whether sufficient evidence supports the forfeiture. See 28 C.F.R. § 9.5(a)(4). The property owner has the burden of establishing the basis for granting a petition for remission or mitigation of forfeited property. See 28 C.F.R. § 9.5(a)(3).
Thus, the scheme established by 18 U.S.C. § 983 and Rule 41 provides a way for a property owner to seek the return of seized property from the government.
Our attorneys at Beggs & Lane have decades of experience in federal court forfeiture proceedings. Contact us for a consultation.
By: Matthew P. Massey, Esq.
Beggs & Lane’s White Collar Criminal Defense and Internal Investigations Group is led by former First Assistant United States Attorney David McGee. The Group includes Gregory R. Miller, a former United States Attorney for the Northern District of Florida; Charles T. Wiggins, a Board-Certified Civil Trial Lawyer and former criminal prosecutor with the Office of the State Attorney, First Judicial Circuit of Florida; and Matthew P. Massey, a former Assistant United States Attorney with the U.S. Attorney’s Office for the District of Columbia.