Asset Forfeiture and Criminal Convictions

Following specific types of crimes, the government may seek to seize the assets of the convicted party if it is suspected that the assets were obtained in a less than honest way. One such example is when a party is convicted of a drug crime, particularly crimes involving the sale of illicit or illegal drugs, the government may go after anything that it thinks was purchased or obtained with the funds from the drug operations.

Asset forfeiture generally occurs after the government claims that someone has profited from a criminal activity and used those proceeds to acquire assets. The government will want to seize the proceeds of the criminal conduct. This can be done either through a criminal proceeding or a civil proceeding. The current is trend to seize ill begotten assets via a separate civil suit after the individual has been convicted.

There are two types of forfeiture cases because the government can go after something through the criminal court system or through the civil court system. Today, the vast majority, in fact nearly all, of forfeiture cases work through the civil system. In civil forfeiture in the United States, the government will sue the item of property instead of the owner of the property. The owner, in effect, becomes a third party claimant. In this type of lawsuit, the government has to establish probable cause that the property is in fact eligible for forfeiture. Once this threshold has been passed, the owner of the property must be able to prove by a “preponderance of the evidence” that the property is not subject to forfeiture. In this area, the owner of the property doesn’t actually have to be found guilty of a crime ever.

Criminal forfeiture is slightly different in that it occurs after a person has been convicted of whatever they were charged with. The forfeiture of assets is part of the punishment package that the offender is being sentenced with.

The government will typically opt for going in after the property via a civil suit. This is true in part because this type of lawsuit is much more expensive for the “owner” of the property and can take up to three years. The criminal version is far less expensive as it is part of sentencing but the government must wait until after the party has been convicted to seize anything.

Once the motion has been granted to seize a piece of property, The United States Marshals are responsible for seizing the properties and then disposing of the properties seized by the various agencies.