Types of Forfeiture
Administrative
According to the DOF, the vast majority of federal forfeiture cases go uncontested. Administrative forfeiture occurs when a property is seized but no one files a claim to contest the seizure.
Administrative forfeiture can be used to seize and forfeit:
Any amount of currency
A single personal property asset valued at $500,000 or less, such as a car, gun, boat, or a piece of jewelry
Hauling conveyances of unlimited value (e.g., cars, boats, aircraft used to facilitate a drug offense)
Houses and other real property cannot be forfeited administratively.
As required by federal law, agencies conducting administrative forfeitures must adhere to strict deadlines and stringent notification timelines. Interested parties are given a set time period within which they can either petition for remission — essentially, alleging entitlement to a return of the property or proceeds following forfeiture — or contest the forfeiture. A person who contest the forfeiture alleges the property was neither purchased with proceeds of the alleged criminal activity nor used to facilitate the alleged criminal activity
If the seizure is contested, the government is required pursue either criminal or civil judicial forfeiture proceedings to gain title to the property.
Civil Forfeiture
Unlike criminal forfeiture, civil forfeiture is brought against property rather than a person and is not dependent on conviction.
To obtain a federal civil judicial forfeiture, the Government must prove the forfeiture and the connection between the property and the crime by a preponderance of the evidence. Forfeiture may be applicable to property that:
Is traceable as proceeds of the offense
Facilitated the offense
Was involved in money laundering
For example, if a defendant used someone else’s car to commit a crime, but the owner of the car was not involved and was thus not indicted for the crime, a civil forfeiture case may be filed against the vehicle.
Criminal Forfeiture
Criminal forfeiture is an action brought as part of the criminal prosecution of a defendant that may result in the forfeiture of property used or derived from the crime.
In other words, Criminal Forfeiture is the seizure of assets as part of the punishment for one or more individuals who has committed a crime, and it requires a criminal conviction as the basis for forfeiting property. The government must prove beyond a reasonable doubt the defendant committed the offense supporting the forfeiture.
Once the defendant has been convicted, the government is required to prove the connection between the property and the offense, and only the defendant’s own property and property involved in the particular counts on which the defendant is convicted can be considered for forfeiture. For example, in a criminal case where the defendant is indicted for drug trafficking, any proceeds related to the crime or assets that aid in the criminal’s ability to commit the crime could be forfeited.
Should the defendant no longer the property involved in the offense, the government can seek a money judgment for the value of any unrecoverable proceeds. For example, if it a defendant convicted of drug trafficking spent the majority of the proceeds of his criminal activity at casinos, the court may enter a money judgment for the estimated amount lost gambling.