Civil asset forfeiture and criminal forfeiture are the two ways Government seizes money using allegations of criminal conduct.
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We help people recover money in Federal civil forfeiture claims.
Understanding the difference between Civil Asset Forfeiture and Criminal Forfeiture, is important. The differences are great as are some of the similarities.
What is Asset Forfeiture?
Asset Forfeiture is the legal process used by the Government to take ownership of private property due to criminal violations. However, to justify forfeiture under Federal law, at least one of two scenarios must be exist:
- Property is used or intended to be used to commit a crime
- Property does not have a legitimate source
For example, if a person uses an airplane to fly cocaine into the United States, the aircraft is subject to forfeiture because it was used to smuggle a controlled substance. Similarly, any money earned from selling cocaine is subject to forfeiture because it is the proceeds of illegal narcotic transactions.
Civil Asset Forfeiture Explained
All forfeiture cases come down to allegations of criminal conduct in one form or another. Civil Asset Forfeiture can be pursued under two different scenarios.
First Scenario:
In the first scenario, prosecutors can avoid waiting until the end of a criminal case to forfeit property by filing a civil forfeiture action at the same time or before a criminal prosecution.
When this happens, a person may face two distinct legal actions: One in the criminal courts for prosecution of a crime and a second in the civil courts for civil asset forfeiture.
Second Scenario:
In the second scenario, civil asset forfeiture is pursued by the Government without any criminal prosecution at all. In fact, a person does not even have to be arrested to face civil forfeiture under Federal law.
“No arrest civil forfeiture cases” are common at airports, at the border with customs, highway traffic stops, FedEx/UPS/USPS packages, and a host of other scenarios.
Criminal Forfeiture Explained
Criminal forfeiture is the type of asset forfeiture brought in a criminal prosecution. Despite its name, it is a civil proceeding, with a civil burden of proof, and has limited due process. For instance, there are no jury trials on Federal criminal forfeiture. Instead, resolution of claims are presided over by a judge. Criminal forfeiture is intended to be punitive.
While criminal forfeiture is a common practice in federal law enforcement, some states do not allow it. Florida, for instance, does not allow criminal forfeiture.
On the contrary, Florida only has civil asset forfeiture, which is codified in the Florida Contraband Forfeiture Act.
In federal court, criminal forfeiture proceedings take place after the person is convicted. Additionally, to seek forfeiture, prosecutors must trace the subject property to the specific count(s) of conviction. If the person is found not guilty, prosecutors are barred from pursuing criminal forfeiture of any property associated with allegedly committing or profiting from that count.
Because federal criminal forfeiture is tied to convictions, its legal process only begins when a criminal prosecution ends in conviction.
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Updated 11-27-2020