Seizure and Asset Forfeiture Defense
The state and federal governments may appear to have almost unlimited powers, one of which involves seizing assets when it is believed they were gained through illegal activities. Seizing your property can be performed even if you have not yet been charged or convicted of an offense. Your bank accounts, cash, property, and investment accounts may be seized. Once seized by the authorities, you may lose your property forever through forfeiture. Recovering your property is challenging. The agencies involved are not required to prove the action was correct – it is up to you to take action to recover your property. You need an experienced lawyer to help you through this complex legal process.
We will fight to protect the rights and property of our clients.
While we may generally believe that seizing the assets of drug lords or organized crime bosses is fair, it is unfortunate that the majority of people who have suffered property seizure or forfeiture are not in this category. They are usually regular citizens who have become the target of a police investigation and are believed to be guilty of criminal activities. The property seizure can occur long before a conviction, defying one of the most valued legal tenets: Innocent until proven guilty. The types of property that state or federal authorities can seize can include:
- Residential property
- Commercial property
- Bank accounts
- Vehicles, watercraft
- Personal property that law enforcement believes is evidence
Seizure and forfeiture abuse
If you are convicted of certain crimes, the government may take action to confiscate property alleged to have been acquired through funds gained in the commission of a crime. In civil forfeiture cases, the police can seize and then subsequently keep and sell any property alleged to be involved in a crime without an arrest, charges, or a conviction.
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It is a frightening fact, but once your property has been seized, the agency which seized it can keep and sell it unless you prove it was seized illegally. The government will keep your property unless you can prove the facts against them, with tight deadlines for filings to initiate the return of your assets to your control.
Federal and state statutes make it possible for law enforcement to seize property alleged to have been used in the commission of a crime or purchased with funds gained from criminal activities. Asset forfeiture requires a lawsuit filed by the government outlining the property the government agency wants to take from you. The case filed by the government must prove that the property is connected to some type of criminal activity. The standard of proof required is called a “preponderance of the evidence,” a lower standard. In drug crimes, property can be forfeited without a conviction in some cases. The governmental agency may claim that the money used to purchase the property was gained through the drug trade. The legal justification for these acts used by the agency are often one of the following:
- Contraband theory: This theory relates to forfeiting illegal items such as drugs or weapons.
- Exchange theory: The seizure and forfeiture of items alleged to have been exchanged for illegal items, such as money for drugs.
- Proceeds theory: This theory is that the money in an account resulted from an illegal exchange, such as the sale of drugs.
- Facilitation theory: This legal theory allows for the forfeiture of items alleged to have facilitated the commission of an illegal act, such as a vehicle.
State or federal proceedings?
The prosecutor has the option to choose whether to pursue a forfeiture case through the state courts or in federal court through the U.S. Department of Justice or the U.S. Department of Treasury Asset Forfeiture programs. State and federal agencies may work in concert. They sign agreements outlining their responsibilities and which agency will gain what portion of the value of the forfeited property.
Contesting seizures and forfeitures in the Bay Area: Hickey & Chung LLP
With the help of the legal team at Hickey & Chung, various legal strategies could help you avoid the permanent loss of your property. The seizure of your property may have violated the procedures mandated by law, or a person may not have had any knowledge of criminal activities. The process of fighting to have your property returned will require a full evaluation of the facts in the case. Our legal team at Hickey & Chung has a great breadth of knowledge regarding the laws, how the state and federal agencies operate, and how to take action on your behalf. The earlier we get involved, the better it could be for you, and we urge you to contact our firm at once for assistance.