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Most of us are at least peripherally aware that the federal government can request and receive from the court system a forfeiture of assets including cars, property, and more when they are involved with criminal activity. What might be less known is that the majority of the asset forfeitures in the United States occur administratively, that is without permission of a judge or jury. An administrative forfeiture occurs most often during the course of a raid where an agency like the FBI, DEA, or Secret Service simply seizes property and takes it with them when they leave. Scary but true. The good news is you do have recourse but should be prepared to act quickly.
The Administrative Forfeiture Process
Up until the year 2000, with the passing of the Civil Asset Forfeiture Reform Act (CAFRA), there were fewer constraints on how a federal agency could seize and keep property. Since CAFRA, the process goes something like this:
Seizure: When property (excluding real estate or anything over $500,000 in value) is seized, the agency involved must start the administrative forfeiture within a defined period of time and also must give potential claimants enough time to stake their legal claim on the goods. Basically, this prevents the federal government from dilly-dallying forever while they decide whether or not to actually start a forfeiture and provides a window of opportunity broad enough to allow possible rightful owners to act to protect their property.
Claims: During the course of an investigation, an agency with probable cause can take property from your home, car, or right out of your pocket. As with most dealings with the federal government, there are legal processes in place to prevent abuse of power. The problem is that the average citizen might not understand the nuances and timelines involved in initiating a claim that has at least a fighting chance of resulting in property wrongly taken being rightfully returned. Keep in mind that if the property is entangled in illegal activity, such as purchased with drug money, you might be clean out of luck and will have many years sitting in prison to ponder the injustice of it all.
60 is an Important Number
If you remember nothing else from this article, stick the number 60 somewhere in your brain. That is how many days a federal agency has to to provide written notice to any and all interested parties that it intends to administratively forfeit the property. This is the case even if a subsequent party is identified after notice has been provided to what were believed to be the only relevant parties.
The reason this time frame is so important is that if the agency misses the deadline, no further action can be taken with the intention of holding the property seized as a result of the original alleged offense. In fact, the property must be returned under these conditions as long as it isn’t illegal to do so. Obviously, if the the property seized is a ton of cocaine ready to be sold on the street, you’re probably not going to get it back no matter how many deadlines are missed.
Why You Might Contest a Seizure
According to the FBI, most administrative seizures are not contested. The reason is obvious once you consider that many of these types of investigations are based on pursuing serious criminals conducting serious crimes. By the time an agency has progressed to the point of seizing property, the target has bigger problems to worry about – like not spending the rest of his or her natural life in prison.
We don’t like to think about it, but there are always examples of the government making a mistake. That’s why a contested seizure cannot be completed administratively but must be kicked over to be pursued by the government as either a criminal or civil judicial forfeiture, neither of which can be concluded unilaterally. It must be heard by a judge or jury or both first.
Thinking of the Victims
Before concluding that the federal government is simply a power-mad entity looking to own the world, consider that much of the property seized is returned to victims of crimes. Over the past decade, the Department of Justice has paid about $4 billion in restitution to victims of crimes ranging from financial scams to outright murder. This is no reason to not fight for what is properly yours, just know an overly eager agency may not be looking to possess property for the most obvious of reasons. There is a plan at work beneath it all.
The Bottom Line
While there are some court proceedings a citizen might be capable of handling without professional legal advice, when federal administrative asset forfeiture is involved, it’s probably a good idea to at least consult with an attorney before you inadvertently lay yourself down on the buzzsaw of the federal court system. The government isn’t playing around, and an innocent mistake on your part, either through ignorance or foolhardiness, could result in the property disappearing from your ownership forever. Don’t expect a do over if you screw it up. This is a case where it must be done right the first time or it’s sayonara forever.
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