About Forfeiture

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Forfeiture:

There are two types of forfeiture available to the government: civil forfeiture and criminal forfeiture. A civil forfeiture is intended to confiscate property used or acquired in violation of the law; a criminal forfeiture is imposed on a wrongdoer as part of his/her punishment following a conviction. The procedures involved in these two types of forfeiture are very different; however, the results are the same, which is the transfer of rights, title, and interest of the property to the United States. Whichever procedure is employed, a party asserting an interest in the property may petition to recover that interest.

Civil Forfeiture

The purpose of civil forfeiture is to confiscate property used in violation of the law and to remove the illegally gained profits from violators. Civil forfeitures are in rem. In rem refers to a legal action directed solely against the property based on a legal finding that the property itself is used in an illegal manner. An in rem proceeding is not an action against a violator, but against the property involved. In rem proceedings are separate legal actions from any criminal action taken against the violator.

There are two types of proceedings used for civil forfeiture: administrative and judicial. Administrative proceedings are conducted by the seizing agency while judicial proceedings are conducted in a court before a judge. The value and type of seized property and whether or not the forfeiture is contested determine the proceeding used. In general, if the property seized is valued at $500,000 or less civil administrative forfeiture proceedings may be used. There are exceptions, for example real estate cannot be forfeited under administrative proceedings and monetary instruments can be forfeited using administrative proceedings even if the value exceeds $500,000. Administrative proceedings cannot be used when the action is contested by the filing of a claim.

Criminal Forfeiture

The purpose of a criminal law is to punish the violator, and criminal forfeiture is imposed as part of that punishment following conviction. Criminal forfeiture is in personam or against the individual, and requires that the government indict the property used in or obtained with proceeds from the crime. Upon completion of a criminal trial, if the defendant is found guilty, criminal forfeiture proceedings are conducted in the court before a judge. The proceedings may result in a verdict forfeiting property used in the crime or obtained with proceeds from the crime. An ancillary hearing may be conducted for other parties claiming an interest in the forfeited property.

SELECTED FORFEITURE LEGAL AUTHORITIES:

• 18USC492: Forfeiture of counterfeit paraphernalia.
• 18USC844: Forfeitures relating to explosive law violations.
• 18USC924: Forfeitures relating to firearms violations.
• 18USC1955: Forfeitures related to illegal gambling businesses.
• 18USC Chapter 96: Racketeer Influenced and Corrupt Organizations (RICO).
• 18USC1963: Criminal forfeitures under RICO.
• 18USC2253: Criminal forfeiture provisions related to sexual exploitation and other abuse of children.
• 18USC2254: Civil forfeiture provisions related to sexual exploitation and other abuse of children.
• 18USC981: Civil forfeiture.
• 18USC982: Criminal forfeiture.
• 19USC1607: Forfeiture provisions for seizures valued $500,000 or less.
• 21USC Chapter 13: Controlled Substances Act (CSA).
• 21USC853: Criminal forfeiture under the CSA.
• 21USC881: Forfeiture provisions under the CSA.
• 28USC2461: Criminal forfeiture authority.
• 49USC80303: Forfeitures of conveyances carrying contraband