Three Ways to Stop the Government From Forfeiting Your Property
As a means of combating organized crime and the large scale distribution of controlled substances, federal, state, and municipal governments are allowed to seize property used in the commission of certain crimes. In fact, the government may seize your property for a variety of reasons, chiefly:
- Condemnation – your property is condemned in order to be converted for public use, in which case the government must compensate you fairly for your loss.
- Judicial lien – you owe a substantial amount in unpaid taxes. The property will typically then be sold at auction, and the proceeds will be used to offset your debt to the government.
- Civil forfeiture – the government seizes property that has been involved in the commission of a criminal act. This is the only instance where the government is not required to compensate you or offset your loss in any way.
The Difference Between Seizure and Forfeiture
There is a difference between a seizure and forfeiture. A seizure is the actual taking of your property, but does not reflect whether or not the government can keep your property. Forfeiture is the process by which the government establishes that they are entitled to keep the property that has been seized from you.
Defense to Forfeiture
When your property has been seized, there are three primary ways to prevent the government from forfeiting your property and have it returned to you. These defenses to forfeiture include:
- Violation of procedure
- The innocent owner defense
- Defeating the underlying criminal charge
Congress has established certain procedures that must be followed, in order for the government to forfeit property that has been seized by private citizens. These procedures were established to ensure that your rights are not being violated by any seizure or forfeiture, and include the filing of complaints and notice requirements.
An experienced asset forfeiture attorney will be able to look at the facts and challenge any procedure in which the authorities have seized and are attempting to forfeit your property without following the proper procedure. If it can be proven that the authorities did not follow the proper procedure, then the person whose property has been seized may have grounds to have the property returned to them.
The Innocent Owner Defense
This defense rests upon the premise that you had no idea that your property was being used for illegal purposes, or as a recipient of funds, and that you didn’t know that the funds were coming from illicit sources.
For example, you might rent your home or apartment to people who you believe to be trustworthy. But, after some time, federal agents might come and arrest the tenants and seize the property because it is being used to manufacture or distribute drugs. You had no knowledge of the illicit acts for which your property was being used. Nonetheless, your property has been taken from you. When this happens, you can use the innocent owner defense to fight the government and get your property back.
Defeating the Underlying Criminal Charge
You may also fight government forfeiture of your property by defeating the underlying criminal charge in court. For example, if you are charged with embezzlement and can show in court that you did not embezzle any funds, the government will have no right to seize or forfeit any funds or property from you that they consider to be related to the charge. You will then be entitled to the return of your funds and/or property. However, there may still be the possibility that you can lose your property under civil forfeiture statutes and laws. Therefore, it is very important to hire an attorney who is well-versed in both the criminal and civil aspects of forfeiture.
Contact an Albuquerque Criminal Defense Lawyer
Here at the New Mexico Criminal Law Offices, not only are we experienced criminal attorneys, but we are also experienced in asset forfeiture and can handle both aspects of your case at the same time. Contact our experts today online or by calling (505) 375-4664 so we can walk you through the process.