Reasons for Asset Forfeiture
In an attempt to reduce criminal activity, the government has asset forfeiture laws that allow the seizure of any property that is a result of criminal activity. Asset forfeiture reduces the amount of property available to continue criminal enterprises. Without funds, many criminals cannot continue to pursue criminal activities. Criminal organizations have similarities to legitimate businesses. They require employees, equipment and cash flow to operate. When the government can seize equipment, cash flow or property, the criminal operation is disrupted. For this reason, the government uses asset forfeiture as one way to deter criminal activity.
What is Asset Forfeiture?
Forfeiture is the legal means by which the government takes property obtained through criminal activity. The definition of property includes more than just real estate. Property that the government can seize through forfeiture includes:
- Real Estate
- Bank Accounts
- Personal Items
Forfeiture actions can be either criminal or civil. Criminal forfeiture actions are judicial. In the indictment charging the defendant of a criminal offense, the property will also be named. The government must then convict the defendant beyond a reasonable doubt, in order to seize the property. Once the defendant is convicted, an order of forfeiture must be issued before the property is seized. There are exceptions to this procedure. Under the Controlled Substances Act and Money Laundering Control Act, property may be seized first, followed by forfeiture hearings.
Civil forfeitures can be done through a summary, administrative or judicial procedure.
- Summary: A federal summary procedure is limited to a narrow category of property seized under the Controlled Substances Act.
- Administrative: A federal administrative forfeiture action can be taken for property valuing $500,000 or less, except for monetary instruments for which there is no maximum value. Certain procedures and time limits determine the proceedings and any contests must be made within the appropriate amount of time or will be forever barred. Timely filled claims will begin a judicial action.
- Judicial: A judicial forfeiture action occurs when a claim is made against an administrative action, the value of the property is more than $500,000 or if the action is against real property. Generally, real property means land and any improvements on it.
Burden of Proof
In order for the FBI to seize property, they must have probable cause. A federal civil forfeiture action begins with a notification by mail and publication that the government intends to forfeit the property. What constitutes probable cause is determine by the type of forfeiture action taking place.
- Administrative: Probable cause is defined as reasonable ground for belief of guilt. This must be more than mere suspicion, but less than prima facie proof. Prima facie is a latin term that refers to having enough evidence to prove the case.
- Judicial: After initial probable cause for forfeiture and determination that the property can be forfeited, the government must prove during the judicial case that the property is subject to forfeiture by a preponderance of guilt. A preponderance of guilt is defined as sufficient evidence that removes doubt and inclines a fair and impartial mind to one side of the issue.
Both the state and federal governments have asset forfeiture laws. The U.S. Code defines criminal and civil forfeitures for the federal government. According to the law, a person convicted of certain crimes will forfeit his/her property to the government. A few crimes that result in criminal forfeiture are:
- violations of the Controlled Substances Act (CSA)
- violations of Racketeer Influenced and Corrupt Organizations (RICO) statute
- violations of money laundering statutes
- violations of obscenity statutes
Any person convicted of one of these offenses will forfeit:
- any property derived from proceeds obtained from the violation, directly or indirectly
- any property used or intended to use to commit or facilitate the violation
- in cases of continued criminal enterprise violations, any property resulting from the continued criminal enterprise
The code defines property as:
- real property (land) and anything growing on, affixed to, or found on the land
- tangible and intangible personal property including rights, privileges, claims, interests, and securities
Several offenses can result in civil forfeiture procedures, including:
- money laundering
- monetary transactions in property derived from specified unlawful activity
- unlicensed money transmitting business
- offenses against a foreign nation, weapon trafficking, distribution of controlled substances
- mail fraud
- wire fraud
Regulations for criminal and civil forfeiture determine specifics as to how the property is forfeited. The government must publish their intent to forfeit property and must let any interested parties know of the property forfeiture. Interested parties must contest forfeiture within the required time frame.
Illinois Drug Asset Forfeiture Procedure Act
In Illinois, the Illinois Drug Asset Forfeiture Procedure Act details how assets can be seized by the state. The purpose of the statute is to deter drug abuse and trafficking in Illinois. Though forfeiture provides resources to the state, that is not the intended purpose of the law. To provide a deterrent to drug abuse and trafficking, the state can seize any property that is attributed to the sale, manufacture, transportation, distribution, possession or use of any substance in violation of the Controlled Substances Act, Cannabis Control Act, or Methamphetamine Control and Community Protection Act.
Police need probable cause to seize property under this act. Within 14 days of seizure, they must seek a preliminary determination from the circuit court to determine whether there was probable cause for forfeiture. Property forfeiture under this act is a civil procedure. The law specifies correct procedure and time frames for the forfeiture to take place legally and for contestations to be made. Experienced Asset Forfeiture Attorneys understand the complexities of Illinois law and can help navigate the system.
Exemptions from Forfeiture
Illinois law provides for several exemptions from forfeiture under the Illinois Drug Asset Forfeiture Procedure Act. For the property to be exempt from forfeiture the owner or interested party must establish a preponderance of evidence that:
- the owner is not legally accountable for the conduct that put the forfeiture into motion, and did not know about the conduct; or
- the owner of the real property is not legally accountable for the conduct, and did not solicit, conspire or attempt to commit the conduct; and
- the owner did not acquire or stand to acquire proceeds from the conduct; and
- if the property was a conveyance (vehicle), the owner did not co-own the property with someone whose conduct was the reason for the forfeiture; and
- the owner does not own the property for the person whose conduct gave rise to the forfeiture; and
- the owner acquired the property before the conduct occurred, or without knowing about the conduct, and before the notice of forfeiture was made
- In simplified terms, to be exempt from forfeiture, the owner of the property must prove that he/she was not part of the criminal conduct and did not know about the criminal conduct.
- Reversing Asset Forfeiture
Both federal and state laws require a systematic process for forfeitures. Administrative and judicial forfeitures allow short time periods for defendants to contest forfeiture and attempt to prevent or recover asset forfeiture. This is why a knowledgeable asset forfeiture attorney can assist in any asset forfeiture cases. Don’t lose your property by missing out on timely filing a contestation to forfeiture. Make sure to use an attorney that understands both federal and Illinois state laws and can fight against government seizure of your property. In some cases law enforcement can seize property with reasonable suspicion and then start procedures for asset forfeiture. If this happens, you will need an attorney to help fight the forfeiture and get your property returned. Assets can only be seized if they were obtained from criminal activity or used for criminal activity. One way to prevent seizure or to reverse seizure is to demonstrate that the property was obtained through legitimate means. Top Chicago asset forfeiture attorneys can help you show the court that your property was obtained through legal means and not subject to forfeiture.
What can I do about a forfeiture action?
If you or a loved one is involved in a forfeiture action, get a Chicago asset forfeiture attorney to help you. There are many ways an experienced attorney can fight against forfeiture of your property. An aggressive attorney in your corner can mean the difference between losing or keeping your property. Michael P. Chomiak is an experienced and aggressive Chicago asset forfeiture attorney, and he knows how to fight the seizure of your property. No matter how impossible a case may appear to be, hope is never lost with the skill and experience of Michael Chomiak. After a careful examination of the facts, the individuals involved, and the evidence available to the State, Michael P. Chomiak can determine the best course of action for your case.
If you are a facing a forfeiture in Cook County, hire an attorney with a proven record. Contact the The Law Office of Michael P. Chomiak today!