Criminal Forfeiture

An in personam (against the person) action

includes notice of the intent to forfeit property in a criminal indictment.

A criminal conviction is required, and forfeiture is part of the defendant’s sentence.

Criminal forfeiture is limited to the property interests of the defendant, including any proceeds earned by the defendant’s illegal activity.

Criminal forfeiture is generally limited to the property involved in the particular counts on which the defendant is convicted.

After a preliminary order of forfeiture is entered, a separate, ancillary proceeding begins to determine any third-party ownership interests in the property the government seeks to forfeit.

As part of sentencing, a court may order the forfeiture of a specific piece of property listed in the indictment, of a sum of money as a money judgment, or other property as substitute property.

Civil Judicial Forfeiture

The government must establish by a preponderance of the evidence the requisite connection between the crime of conviction and the asset.

An in rem (against the property) court proceeding brought against property that was derived from or used to commit an offense, rather than against a person who committed an offense.

Unlike criminal forfeiture, there is no criminal conviction required, although the government is still required to prove in court that the property was linked to criminal activity.

 The proceeding allows the court to gather anyone with an interest in the property in the same case and resolve all the issues with the property at one time.

 In a civil forfeiture case, the government is the plaintiff, the property is the defendant, and any person who claims an interest in the property is a claimant.

Civil forfeiture allows the government to file cases against property that would not be reachable through criminal forfeiture, such as property of criminals located outside the United States, including terrorists, and fugitives.

Civil forfeiture also permits recovery of assets held by deceased defendants or where no defendant can be identified.

Administrative Forfeiture

An in rem (against the property) action that permits property to be forfeited to the United States without filing a case in federal court.

The administrative forfeiture process occurs before the agency that seized the assets when no one has filed a claim contesting the seizure.

There are many procedures in place, including strict time limits and noticing requirements designed to protect the interests and rights of property holders.

Any seizure of property subject to administrative forfeiture must be based on probable cause.

The primary benefit of administrative forfeiture is to avoid burdening the courts with judicial actions when no one contests the forfeiture of the seized property.