Steve’s Fresh Perspective

Forfeitures–A Reverse Stimulus Package

Clients are often surprised to learn that the government can take away not only your freedom, they can take away your personal belongings too.  In recent years, Federal prosecutors have been routinely including a “forfeiture count” in criminal indictments.  This means exactly what you think it means:  Uncle Sam wants both you and your stuff. 

Here’s how it works:

In a forfeiture allegation, which usually follows all of the criminal counts in an indictment, the government will allege that it is seeking forfeiture of all property 1) involved in the charged offenses (e.g. money laundering, alien harboring, drug trafficking), 2) derived from or traceable to the proceeds obtained directly or indirectly from the commission of those offenses, and 3) used to facilitate or intended to facilitate the commission of those offenses.

As you can see, the government is asking for a lot.  “All property” does not simply mean “all proceeds.”  Let’s break it down in the context of a money laundering case. 

Several appellate courts have held that  “all property involved in the charged offense” should be read broadly.  This means that even legitimate funds may be forfeited if they were used to disguise illegitimate funds. 

For example,  if a defendant puts $1,000.00 in drug money into an account with other money, and then transfers $17,000.00 out of the account, the $17,000.00 transfer would be a money laundering offense.  The property to be forfeited includes the entire $17,000.00, not just the initial $1,000.00 that was used in the actual offense.

Let’s assume the $17,000.00 was used to purchase real property.  In that case, the real property could also be forfeited as it is traceable to the charged offense.

Finally, “facilitating property” is generally defined as property that makes the offense easier to commit or harder to detect.  There must be a  substantial connection between the property and the criminal offense.  For example, if a defendant convicted of money laundering and alien harboring used vehicles to transport illegal aliens from their job to their home, the government may allege that the vehicles are forfeitable because they facilitated the offenses.

The government still has one more weapon in its arsenal:  if agents and investigators cannot locate the property actually involved in the offense, they will seek forfeiture of substitute assets up to the value of the property they are seeking to forfeit.  So, if the $17,000.00 or the vehicles mentioned above cannot be found, the government will ask the court to forfeit specific, untainted property in substitution for the laundered funds and facilitating property.

As you can see, this is a complex area of the law.  As such, it requires that an experienced criminal defense attorney focus on not just the client’s return from custody, but the return of the client’s property as well.

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