18 U.S. Code Chapter 46 - Federal Forfeiture Laws
One of the most poignant and often controversial powers exerted by the federal government is the power of forfeiture—that is, the right to seize people's property when that property has a suspected link to illegal activities.
The federal laws regarding forfeiture are found in Title 18, Chapter 46 of the U.S. Code. While forfeiture can be a helpful tool, significantly crippling organized criminal activity, it sometimes results in unfairly taking property from citizens.
Simply put, under federal laws, law enforcement agencies and prosecutors can legally seize property and money from people convicted of certain federal offenses. This is commonly called a “forfeiture” and is most common in drug trafficking and related drug cases.
Suppose a federal law enforcement agency has valid reasons to believe the property and money were used as instruments for a crime. In that case, they are allowed to confiscate it.
The forfeiture laws are not just designed as a deterrent for criminal activity but also a significant source of revenue for law enforcement expenses.
Notably, however, forfeiture first requires that a federal prosecutor prove that the defendant used the property or money to either commit the crime, earned it from illegal activity, or bought the property from proceeds of unlawful behavior.
The Drug Enforcement Agency (DEA), Federal Bureau of Investigation (FBI), and the Internal Revenue Service (IRS) are the leading agencies involved in a forfeiture case. For example, the DEA will often seize a speed boat used to transport drugs.
Suppose you have been accused of a federal crime or are subject to possible forfeiture of your property. In that case, it is essential to understand how these laws work and to have an experienced federal defense attorney to ensure your rights are protected. Let's review these federal laws further below.
What Is Forfeiture?
As noted, forfeiture is a legal process that allows the government to seize property connected to criminal activity. Under 18 U.S.C. Ch. 46, federal law enforcement agencies can initiate forfeiture proceedings against individuals and entities involved in illegal activities, such as drug trafficking, money laundering, and organized crime.
The primary purpose of forfeiture is to disrupt and dismantle criminal organizations by removing the financial incentives that drive their illegal activities.
The government can recover assets acquired through criminal conduct, compensate victims, and fund law enforcement programs through forfeiture.
Federal agents could seize real and personal property under federal statutes such as 18 U.S.C. 982 criminal forfeiture and the Comprehensive Drug Abuse and Prevention Control Act.
The forfeiture and seizure of property and money is not a separate indictment but a civil proceeding connected with criminal actions. Forfeited property and funds frequently go to the following:
- Victims of crime;
- Treatment facilities,
- Education programs,
- Law-enforcement tools include bomb-sniffing dogs, body cameras, and bulletproof vests.
However, federal agents can make errors when applying forfeiture laws. They can overreach, and abuse could occur when federal agents seize assets.
Civil vs. Criminal Forfeiture
There are two types of forfeiture under federal law: civil and criminal.
- Civil forfeiture is an in rem proceeding, which means it is directed against the property itself, regardless of whether the owner has been charged with a crime. In a civil forfeiture case, the government must prove by a preponderance of the evidence that the property is connected to criminal activity.
- Criminal forfeiture is an in personam proceeding, which means it is directed against the person or entity who allegedly committed the crime. In a criminal forfeiture case, the government must obtain a conviction before it can seize the defendant's property. The forfeiture is then included as part of the defendant's sentence, and the government must prove the connection between the property and the crime beyond a reasonable doubt.
It is typically easier for the government to seize property via civil forfeiture versus criminal forfeiture because the burden of proof is lower—and for that reason, most forfeitures are civil.
One way to think of it is that criminal forfeiture is punitive (to punish a crime committed), while civil forfeiture is remedial (meaning intended to right a perceived wrong).
Title 18 U.S.C. Chapter 46 - Sections Explained
Let's now take a quick look at the specific ordinances under 18 U.S.C. 46:
- Civil forfeiture under 18 U.S.C. 981 authorizes civil forfeiture for property involved in or traceable to certain offenses, such as money laundering, terrorism, and drug trafficking. It also outlines the procedures for handling forfeited property, including disposition, use of proceeds, and equitable sharing with state and local law enforcement agencies.
- Criminal forfeiture under 18 U.S.C. 982 authorizes criminal forfeiture for property derived from or used in commissioning specific crimes, such as drug trafficking, racketeering, and certain white-collar offenses. It also provides for the forfeiture of substitute assets if the original property has been disposed of, commingled, or cannot be located.
- Rules of civil forfeiture under 18 U.S.C. 983 establish the procedural requirements for federal forfeiture actions, including notice, claims, and judicial review. It also provides for the appointment of counsel for indigent claimants and the use of protective orders to preserve the value of the seized property.
- Civil forfeiture of fungible property under 18 U.S.C. 984 specifies that the government has the right to seize fungible property (i.e., interchangeable assets, such as the cash equivalent of precious metals, or vice versa) held in financial institutions. This section counters the practice of "hiding" property in criminal activity by exchanging it for property or currency that wasn't directly connected to the criminal activity. The government can take it either way.
- Civil forfeiture of real property under 18 U.S.C. 985 authorizes the civil forfeiture of real property (e.g., land, houses, etc.) and establishes the rules and procedures for doing so.
- Subpoenas for bank records under 18 U.S.C. 986 establish the procedures for issuing subpoenas to banks and other financial institutions concerning civil forfeiture proceedings.
- Anti-terrorist forfeiture protection under 18 U.S.C. 987 expressly authorizes owners whose property was confiscated under suspicion of international terrorist connections to contest that action and establishes the rules for doing so.
Protecting Your Rights and Property
If you are facing federal forfeiture, it is crucial to consult with an experienced attorney who can help you navigate the complex legal process and protect your rights.
Possible defenses against forfeiture include challenging the government's evidence, asserting innocent owner claims, and seeking the return of property through administrative remedies.
Perhaps we can argue during forfeiture proceedings that the property or money was not used in illegal activity. Maybe we can say that the owner was unaware of the unlawful activity involving their property.
Perhaps a new homeowner is informed of property forfeiture when they did not know what was happening before they made the purchase.
If your property or money is exposed in a forfeiture proceeding, you must immediately consult a federal criminal defense lawyer with experience in federal courts.
If you are the defendant or somebody with an interest in the property, these proceedings are often complex and aggressively pursued by law enforcement and federal prosecutors. You will need an attorney to protect your property and legal rights for the best chance at a favorable outcome.
You can contact our law firm to review your case details via phone or the contact form. Eisner Gorin LLP has offices in Los Angeles, CA.