Don't Wait, Contact Us Now
617-391-0592
${site.data.firmName}${SEMFirmNameAlt} Menu directions

Mo' Money, Mo' Problems in Civil Forfeiture

The son of a disabled veteran, 24-year-old Charles Clarke spent his life laying the groundwork for a promising future. However, as Clarke attempted to board a plane in February 2014 to return to his studies at the University of Central Florida, the college student had an unfortunate encounter with federal agents, who served him a harsh lesson in the practice known as civil forfeiture. The agents seized Clarke's life savings in cash, $11,000.00, and sent him on his way - never even charging Clarke with a crime.

How is that legal?

Civil Forfeiture: a primer

Civil forfeiture is a practice that allows the government to seize property suspected to be involved in a crime. It differs from criminal forfeiture, in which the government may seize the ill-gotten gains of criminal activity after an individual is convicted of a crime. However, unlike criminal forfeiture, police can use civil forfeiture to seize property without so much as ever even bringing criminal charges against its owner.

Once the property is in the hands of the government, the burden is on the owner to prove that the property is not involved in criminal activity - that is, in effect, to prove his innocence, despite having never been convicted or even charged with any wrongdoing. Civil forfeiture turns the American justice maxim, "innocent until proven guilty," on its head, and, because the agencies seizing innocent assets receive a portion of the seizure in funds, this practice perverts the criminal justice system with financial incentive.

Who is at risk of a civil forfeiture action?

Civil forfeiture does not discriminate against anyone - especially in cases, like Clarke's where the property seized is cold hard cash. However, local and federal authorities can also seize cash from bank accounts, real estate, and motor vehicles, and any other category of asset regardless of whether they can actually prove its involvement in criminal activity.

Small business owners whose trade may require they deal in cash more often than typical should be especially wary to avoid the appearance of "structuring" assets - a federal crime wherein individuals purposefully move modest sums of cash under the federal reporting requirement of $10,000.00 to avoid drawing scrutiny from authorities.

Who pursues civil forfeiture actions?

Local and state authorities pursue assets through "in rem" proceedings, under G. L. c. 94C, § 47 (d), wherein the property becomes the subject of the action instead of the person - hence why civil forfeiture cases feature such bizarre titles as Commonwealth v. One 2004 Audi Sedan Auto and Commonwealth v. One Hundred Twenty-Five Thousand One Hundred Ninety-One Dollars.

Under Massachusetts' civil forfeiture law, law enforcement need only show probable cause that your property was related to a crime to forfeit it. You must then shoulder the burden of proving that the property was not forfeitable or that you did not know and should not have known about the conduct giving rise to the forfeiture. Further, law enforcement keeps the entirety of all forfeited property. The receipts are split: half to the prosecutor's office and half to the local or state police. [1]

In addition, federal agencies, such as the Internal Revenue Service, the Federal Bureau of Investigation, the Drug Enforcement Agency, the Secret Service, among others, may bring a forfeiture action alone or in conjunction with local authorities under the federal "equitable sharing" program. Under the program, state and local police receive up to 80 percent of forfeiture proceeds in exchange for referring seized property to federal authorities.

In instances where multiple state and federal agencies share jurisdiction, the division of proceeds can be reminiscent of Caribbean pirates fighting over booty. For example, in the case of UCF student Charles Clarke, 13 different law enforcement agencies from Kentucky and Ohio -- including the Kentucky State Police, the Ohio Highway Patrol, and even the Bureau of Criminal Investigations within the Ohio Attorney General's office -- are seeking their cut of Charles' money, even though 11 of the agencies were not involved in the seizure.[2]

What recourse does one have when subjected to civil forfeiture?

Under the civil forfeiture laws, you must have a valid interest in the property seized and you must assert that interest in court on the date that appears on the charging notice. Failure to appear for the forfeiture hearing will result in the seizure of the assets at stake and the loss of your opportunity to regain your property.

How do investigators determine they're entitled to seize your property?

Unfortunately for citizens, the Commonwealth's burden in a civil forfeiture proceeding is not necessarily to prove, with admissible evidence, probable cause that the property at issue derived from illegal narcotics or facilitated a violation of the controlled substances laws, but to prove that the Commonwealth had reliable information in its possession that established probable cause of such a nexus and that justified the initiation of the in rem proceeding.[3] In practical terms, this means that the Commonwealth may proffer evidence not admissible in court, such as hearsay evidence, in initiating the action to show that the Commonwealth is entitled to keep the seized assets.

What to do when you've had assets seized?

Whether your property was seized as the target of a federal investigation, or as a victim of an unlawful traffic stop, you may not know where to turn.

Once you become aware of a civil forfeiture action against you, legal counsel can help to make the difficult decisions of what to do next. You must decide whether the value of the property seized is worth the cost to gain the property back, and the likelihood of success in achieving that end as the Court may award your attorney's fees for your trouble. The question of how to approach the government following a forfeiture action is a critical decision that could lead to a fair and reasonable resolution, and navigating the civil forfeiture program without counsel experienced in these matters may leave you without any recourse to regain your property.

[1] Williams, Marian et al., Policing for Profit: the Abuse of Civil Asset Forfeiture, Institute for Justice, March 2010.

[2] Ingraham, Christopher, Drug Cops Took a College Kid's Savings and Now 13 Police Departments Want a Cut, Washington Post WonkBlog, June 30, 2015.

[3] Commonwealth v. One 2004 Audi Sedan Auto & Others, 456 Mass. 34, 39 (2010).

How is that legal?

Civil Forfeiture: a primer

Civil forfeiture is a practice that allows the government to seize property suspected to be involved in a crime. It differs from criminal forfeiture, in which the government may seize the ill-gotten gains of criminal activity after an individual is convicted of a crime. However, unlike criminal forfeiture, police can use civil forfeiture to seize property without so much as ever even bringing criminal charges against its owner.

Once the property is in the hands of the government, the burden is on the owner to prove that the property is not involved in criminal activity - that is, in effect, to prove his innocence, despite having never been convicted or even charged with any wrongdoing. Civil forfeiture turns the American justice maxim, "innocent until proven guilty," on its head, and, because the agencies seizing innocent assets receive a portion of the seizure in funds, this practice perverts the criminal justice system with financial incentive.

Who is at risk of a civil forfeiture action?

Civil forfeiture does not discriminate against anyone - especially in cases, like Clarke's where the property seized is cold hard cash. However, local and federal authorities can also seize cash from bank accounts, real estate, and motor vehicles, and any other category of asset regardless of whether they can actually prove its involvement in criminal activity.

Small business owners whose trade may require they deal in cash more often than typical should be especially wary to avoid the appearance of "structuring" assets - a federal crime wherein individuals purposefully move modest sums of cash under the federal reporting requirement of $10,000.00 to avoid drawing scrutiny from authorities.

Who pursues civil forfeiture actions?

Local and state authorities pursue assets through "in rem" proceedings, under G. L. c. 94C, § 47 (d), wherein the property becomes the subject of the action instead of the person - hence why civil forfeiture cases feature such bizarre titles as Commonwealth v. One 2004 Audi Sedan Auto and Commonwealth v. One Hundred Twenty-Five Thousand One Hundred Ninety-One Dollars.

Under Massachusetts' civil forfeiture law, law enforcement need only show probable cause that your property was related to a crime to forfeit it. You must then shoulder the burden of proving that the property was not forfeitable or that you did not know and should not have known about the conduct giving rise to the forfeiture. Further, law enforcement keeps the entirety of all forfeited property. The receipts are split: half to the prosecutor's office and half to the local or state police. [1]

In addition, federal agencies, such as the Internal Revenue Service, the Federal Bureau of Investigation, the Drug Enforcement Agency, the Secret Service, among others, may bring a forfeiture action alone or in conjunction with local authorities under the federal "equitable sharing" program. Under the program, state and local police receive up to 80 percent of forfeiture proceeds in exchange for referring seized property to federal authorities.

In instances where multiple state and federal agencies share jurisdiction, the division of proceeds can be reminiscent of Caribbean pirates fighting over booty. For example, in the case of UCF student Charles Clarke, 13 different law enforcement agencies from Kentucky and Ohio -- including the Kentucky State Police, the Ohio Highway Patrol, and even the Bureau of Criminal Investigations within the Ohio Attorney General's office -- are seeking their cut of Charles' money, even though 11 of the agencies were not involved in the seizure.[2]

What recourse does one have when subjected to civil forfeiture?

Under the civil forfeiture laws, you must have a valid interest in the property seized and you must assert that interest in court on the date that appears on the charging notice. Failure to appear for the forfeiture hearing will result in the seizure of the assets at stake and the loss of your opportunity to regain your property.

How do investigators determine they're entitled to seize your property?

Unfortunately for citizens, the Commonwealth's burden in a civil forfeiture proceeding is not necessarily to prove, with admissible evidence, probable cause that the property at issue derived from illegal narcotics or facilitated a violation of the controlled substances laws, but to prove that the Commonwealth had reliable information in its possession that established probable cause of such a nexus and that justified the initiation of the in rem proceeding.[3] In practical terms, this means that the Commonwealth may proffer evidence not admissible in court, such as hearsay evidence, in initiating the action to show that the Commonwealth is entitled to keep the seized assets.

What to do when you've had assets seized?

Whether your property was seized as the target of a federal investigation, or as a victim of an unlawful traffic stop, you may not know where to turn.

Once you become aware of a civil forfeiture action against you, legal counsel can help to make the difficult decisions of what to do next. You must decide whether the value of the property seized is worth the cost to gain the property back, and the likelihood of success in achieving that end as the Court may award your attorney's fees for your trouble. The question of how to approach the government following a forfeiture action is a critical decision that could lead to a fair and reasonable resolution, and navigating the civil forfeiture program without counsel experienced in these matters may leave you without any recourse to regain your property.

[1] Williams, Marian et al., Policing for Profit: the Abuse of Civil Asset Forfeiture, Institute for Justice, March 2010.

[2] Ingraham, Christopher, Drug Cops Took a College Kid's Savings and Now 13 Police Departments Want a Cut, Washington Post WonkBlog, June 30, 2015.

[3] Commonwealth v. One 2004 Audi Sedan Auto & Others, 456 Mass. 34, 39 (2010).

How is that legal?

Civil Forfeiture: a primer

Civil forfeiture is a practice that allows the government to seize property suspected to be involved in a crime. It differs from criminal forfeiture, in which the government may seize the ill-gotten gains of criminal activity after an individual is convicted of a crime. However, unlike criminal forfeiture, police can use civil forfeiture to seize property without so much as ever even bringing criminal charges against its owner.

Once the property is in the hands of the government, the burden is on the owner to prove that the property is not involved in criminal activity - that is, in effect, to prove his innocence, despite having never been convicted or even charged with any wrongdoing. Civil forfeiture turns the American justice maxim, "innocent until proven guilty," on its head, and, because the agencies seizing innocent assets receive a portion of the seizure in funds, this practice perverts the criminal justice system with financial incentive.

Who is at risk of a civil forfeiture action?

Civil forfeiture does not discriminate against anyone - especially in cases, like Clarke's where the property seized is cold hard cash. However, local and federal authorities can also seize cash from bank accounts, real estate, and motor vehicles, and any other category of asset regardless of whether they can actually prove its involvement in criminal activity.

Small business owners whose trade may require they deal in cash more often than typical should be especially wary to avoid the appearance of "structuring" assets - a federal crime wherein individuals purposefully move modest sums of cash under the federal reporting requirement of $10,000.00 to avoid drawing scrutiny from authorities.

Who pursues civil forfeiture actions?

Local and state authorities pursue assets through "in rem" proceedings, under G. L. c. 94C, § 47 (d), wherein the property becomes the subject of the action instead of the person - hence why civil forfeiture cases feature such bizarre titles as Commonwealth v. One 2004 Audi Sedan Auto and Commonwealth v. One Hundred Twenty-Five Thousand One Hundred Ninety-One Dollars.

Under Massachusetts' civil forfeiture law, law enforcement need only show probable cause that your property was related to a crime to forfeit it. You must then shoulder the burden of proving that the property was not forfeitable or that you did not know and should not have known about the conduct giving rise to the forfeiture. Further, law enforcement keeps the entirety of all forfeited property. The receipts are split: half to the prosecutor's office and half to the local or state police. [1]

In addition, federal agencies, such as the Internal Revenue Service, the Federal Bureau of Investigation, the Drug Enforcement Agency, the Secret Service, among others, may bring a forfeiture action alone or in conjunction with local authorities under the federal "equitable sharing" program. Under the program, state and local police receive up to 80 percent of forfeiture proceeds in exchange for referring seized property to federal authorities.

In instances where multiple state and federal agencies share jurisdiction, the division of proceeds can be reminiscent of Caribbean pirates fighting over booty. For example, in the case of UCF student Charles Clarke, 13 different law enforcement agencies from Kentucky and Ohio -- including the Kentucky State Police, the Ohio Highway Patrol, and even the Bureau of Criminal Investigations within the Ohio Attorney General's office -- are seeking their cut of Charles' money, even though 11 of the agencies were not involved in the seizure.[2]

What recourse does one have when subjected to civil forfeiture?

Under the civil forfeiture laws, you must have a valid interest in the property seized and you must assert that interest in court on the date that appears on the charging notice. Failure to appear for the forfeiture hearing will result in the seizure of the assets at stake and the loss of your opportunity to regain your property.

How do investigators determine they're entitled to seize your property?

Unfortunately for citizens, the Commonwealth's burden in a civil forfeiture proceeding is not necessarily to prove, with admissible evidence, probable cause that the property at issue derived from illegal narcotics or facilitated a violation of the controlled substances laws, but to prove that the Commonwealth had reliable information in its possession that established probable cause of such a nexus and that justified the initiation of the in rem proceeding.[3] In practical terms, this means that the Commonwealth may proffer evidence not admissible in court, such as hearsay evidence, in initiating the action to show that the Commonwealth is entitled to keep the seized assets.

What to do when you've had assets seized?

Whether your property was seized as the target of a federal investigation, or as a victim of an unlawful traffic stop, you may not know where to turn.

Once you become aware of a civil forfeiture action against you, legal counsel can help to make the difficult decisions of what to do next. You must decide whether the value of the property seized is worth the cost to gain the property back, and the likelihood of success in achieving that end as the Court may award your attorney's fees for your trouble. The question of how to approach the government following a forfeiture action is a critical decision that could lead to a fair and reasonable resolution, and navigating the civil forfeiture program without counsel experienced in these matters may leave you without any recourse to regain your property.

[1] Williams, Marian et al., Policing for Profit: the Abuse of Civil Asset Forfeiture, Institute for Justice, March 2010.

[2] Ingraham, Christopher, Drug Cops Took a College Kid's Savings and Now 13 Police Departments Want a Cut, Washington Post WonkBlog, June 30, 2015.

[3] Commonwealth v. One 2004 Audi Sedan Auto & Others, 456 Mass. 34, 39 (2010).

How is that legal?

Civil Forfeiture: a primer

Civil forfeiture is a practice that allows the government to seize property suspected to be involved in a crime. It differs from criminal forfeiture, in which the government may seize the ill-gotten gains of criminal activity after an individual is convicted of a crime. However, unlike criminal forfeiture, police can use civil forfeiture to seize property without so much as ever even bringing criminal charges against its owner.

Once the property is in the hands of the government, the burden is on the owner to prove that the property is not involved in criminal activity - that is, in effect, to prove his innocence, despite having never been convicted or even charged with any wrongdoing. Civil forfeiture turns the American justice maxim, "innocent until proven guilty," on its head, and, because the agencies seizing innocent assets receive a portion of the seizure in funds, this practice perverts the criminal justice system with financial incentive.

Who is at risk of a civil forfeiture action?

Civil forfeiture does not discriminate against anyone - especially in cases, like Clarke's where the property seized is cold hard cash. However, local and federal authorities can also seize cash from bank accounts, real estate, and motor vehicles, and any other category of asset regardless of whether they can actually prove its involvement in criminal activity.

Small business owners whose trade may require they deal in cash more often than typical should be especially wary to avoid the appearance of "structuring" assets - a federal crime wherein individuals purposefully move modest sums of cash under the federal reporting requirement of $10,000.00 to avoid drawing scrutiny from authorities.

Who pursues civil forfeiture actions?

Local and state authorities pursue assets through "in rem" proceedings, under G. L. c. 94C, § 47 (d), wherein the property becomes the subject of the action instead of the person - hence why civil forfeiture cases feature such bizarre titles as Commonwealth v. One 2004 Audi Sedan Auto and Commonwealth v. One Hundred Twenty-Five Thousand One Hundred Ninety-One Dollars.

Under Massachusetts' civil forfeiture law, law enforcement need only show probable cause that your property was related to a crime to forfeit it. You must then shoulder the burden of proving that the property was not forfeitable or that you did not know and should not have known about the conduct giving rise to the forfeiture. Further, law enforcement keeps the entirety of all forfeited property. The receipts are split: half to the prosecutor's office and half to the local or state police. [1]

In addition, federal agencies, such as the Internal Revenue Service, the Federal Bureau of Investigation, the Drug Enforcement Agency, the Secret Service, among others, may bring a forfeiture action alone or in conjunction with local authorities under the federal "equitable sharing" program. Under the program, state and local police receive up to 80 percent of forfeiture proceeds in exchange for referring seized property to federal authorities.

In instances where multiple state and federal agencies share jurisdiction, the division of proceeds can be reminiscent of Caribbean pirates fighting over booty. For example, in the case of UCF student Charles Clarke, 13 different law enforcement agencies from Kentucky and Ohio -- including the Kentucky State Police, the Ohio Highway Patrol, and even the Bureau of Criminal Investigations within the Ohio Attorney General's office -- are seeking their cut of Charles' money, even though 11 of the agencies were not involved in the seizure.[2]

What recourse does one have when subjected to civil forfeiture?

Under the civil forfeiture laws, you must have a valid interest in the property seized and you must assert that interest in court on the date that appears on the charging notice. Failure to appear for the forfeiture hearing will result in the seizure of the assets at stake and the loss of your opportunity to regain your property.

How do investigators determine they're entitled to seize your property?

Unfortunately for citizens, the Commonwealth's burden in a civil forfeiture proceeding is not necessarily to prove, with admissible evidence, probable cause that the property at issue derived from illegal narcotics or facilitated a violation of the controlled substances laws, but to prove that the Commonwealth had reliable information in its possession that established probable cause of such a nexus and that justified the initiation of the in rem proceeding.[3] In practical terms, this means that the Commonwealth may proffer evidence not admissible in court, such as hearsay evidence, in initiating the action to show that the Commonwealth is entitled to keep the seized assets.

What to do when you've had assets seized?

Whether your property was seized as the target of a federal investigation, or as a victim of an unlawful traffic stop, you may not know where to turn.

Once you become aware of a civil forfeiture action against you, legal counsel can help to make the difficult decisions of what to do next. You must decide whether the value of the property seized is worth the cost to gain the property back, and the likelihood of success in achieving that end as the Court may award your attorney's fees for your trouble. The question of how to approach the government following a forfeiture action is a critical decision that could lead to a fair and reasonable resolution, and navigating the civil forfeiture program without counsel experienced in these matters may leave you without any recourse to regain your property.

[1] Williams, Marian et al., Policing for Profit: the Abuse of Civil Asset Forfeiture, Institute for Justice, March 2010.

[2] Ingraham, Christopher, Drug Cops Took a College Kid's Savings and Now 13 Police Departments Want a Cut, Washington Post WonkBlog, June 30, 2015.

[3] Commonwealth v. One 2004 Audi Sedan Auto & Others, 456 Mass. 34, 39 (2010).

How is that legal?

Civil Forfeiture: a primer

Civil forfeiture is a practice that allows the government to seize property suspected to be involved in a crime. It differs from criminal forfeiture, in which the government may seize the ill-gotten gains of criminal activity after an individual is convicted of a crime. However, unlike criminal forfeiture, police can use civil forfeiture to seize property without so much as ever even bringing criminal charges against its owner.

Once the property is in the hands of the government, the burden is on the owner to prove that the property is not involved in criminal activity - that is, in effect, to prove his innocence, despite having never been convicted or even charged with any wrongdoing. Civil forfeiture turns the American justice maxim, "innocent until proven guilty," on its head, and, because the agencies seizing innocent assets receive a portion of the seizure in funds, this practice perverts the criminal justice system with financial incentive.

Who is at risk of a civil forfeiture action?

Civil forfeiture does not discriminate against anyone - especially in cases, like Clarke's where the property seized is cold hard cash. However, local and federal authorities can also seize cash from bank accounts, real estate, and motor vehicles, and any other category of asset regardless of whether they can actually prove its involvement in criminal activity.

Small business owners whose trade may require they deal in cash more often than typical should be especially wary to avoid the appearance of "structuring" assets - a federal crime wherein individuals purposefully move modest sums of cash under the federal reporting requirement of $10,000.00 to avoid drawing scrutiny from authorities.

Who pursues civil forfeiture actions?

Local and state authorities pursue assets through "in rem" proceedings, under G. L. c. 94C, § 47 (d), wherein the property becomes the subject of the action instead of the person - hence why civil forfeiture cases feature such bizarre titles as Commonwealth v. One 2004 Audi Sedan Auto and Commonwealth v. One Hundred Twenty-Five Thousand One Hundred Ninety-One Dollars.

Under Massachusetts' civil forfeiture law, law enforcement need only show probable cause that your property was related to a crime to forfeit it. You must then shoulder the burden of proving that the property was not forfeitable or that you did not know and should not have known about the conduct giving rise to the forfeiture. Further, law enforcement keeps the entirety of all forfeited property. The receipts are split: half to the prosecutor's office and half to the local or state police. [1]

In addition, federal agencies, such as the Internal Revenue Service, the Federal Bureau of Investigation, the Drug Enforcement Agency, the Secret Service, among others, may bring a forfeiture action alone or in conjunction with local authorities under the federal "equitable sharing" program. Under the program, state and local police receive up to 80 percent of forfeiture proceeds in exchange for referring seized property to federal authorities.

In instances where multiple state and federal agencies share jurisdiction, the division of proceeds can be reminiscent of Caribbean pirates fighting over booty. For example, in the case of UCF student Charles Clarke, 13 different law enforcement agencies from Kentucky and Ohio -- including the Kentucky State Police, the Ohio Highway Patrol, and even the Bureau of Criminal Investigations within the Ohio Attorney General's office -- are seeking their cut of Charles' money, even though 11 of the agencies were not involved in the seizure.[2]

What recourse does one have when subjected to civil forfeiture?

Under the civil forfeiture laws, you must have a valid interest in the property seized and you must assert that interest in court on the date that appears on the charging notice. Failure to appear for the forfeiture hearing will result in the seizure of the assets at stake and the loss of your opportunity to regain your property.

How do investigators determine they're entitled to seize your property?

Unfortunately for citizens, the Commonwealth's burden in a civil forfeiture proceeding is not necessarily to prove, with admissible evidence, probable cause that the property at issue derived from illegal narcotics or facilitated a violation of the controlled substances laws, but to prove that the Commonwealth had reliable information in its possession that established probable cause of such a nexus and that justified the initiation of the in rem proceeding.[3] In practical terms, this means that the Commonwealth may proffer evidence not admissible in court, such as hearsay evidence, in initiating the action to show that the Commonwealth is entitled to keep the seized assets.

What to do when you've had assets seized?

Whether your property was seized as the target of a federal investigation, or as a victim of an unlawful traffic stop, you may not know where to turn.

Once you become aware of a civil forfeiture action against you, legal counsel can help to make the difficult decisions of what to do next. You must decide whether the value of the property seized is worth the cost to gain the property back, and the likelihood of success in achieving that end as the Court may award your attorney's fees for your trouble. The question of how to approach the government following a forfeiture action is a critical decision that could lead to a fair and reasonable resolution, and navigating the civil forfeiture program without counsel experienced in these matters may leave you without any recourse to regain your property.

[1] Williams, Marian et al., Policing for Profit: the Abuse of Civil Asset Forfeiture, Institute for Justice, March 2010.

[2] Ingraham, Christopher, Drug Cops Took a College Kid's Savings and Now 13 Police Departments Want a Cut, Washington Post WonkBlog, June 30, 2015.

[3] Commonwealth v. One 2004 Audi Sedan Auto & Others, 456 Mass. 34, 39 (2010).

How is that legal?

Civil Forfeiture: a primer

Civil forfeiture is a practice that allows the government to seize property suspected to be involved in a crime. It differs from criminal forfeiture, in which the government may seize the ill-gotten gains of criminal activity after an individual is convicted of a crime. However, unlike criminal forfeiture, police can use civil forfeiture to seize property without so much as ever even bringing criminal charges against its owner.

Once the property is in the hands of the government, the burden is on the owner to prove that the property is not involved in criminal activity - that is, in effect, to prove his innocence, despite having never been convicted or even charged with any wrongdoing. Civil forfeiture turns the American justice maxim, "innocent until proven guilty," on its head, and, because the agencies seizing innocent assets receive a portion of the seizure in funds, this practice perverts the criminal justice system with financial incentive.

Who is at risk of a civil forfeiture action?

Civil forfeiture does not discriminate against anyone - especially in cases, like Clarke's where the property seized is cold hard cash. However, local and federal authorities can also seize cash from bank accounts, real estate, and motor vehicles, and any other category of asset regardless of whether they can actually prove its involvement in criminal activity.

Small business owners whose trade may require they deal in cash more often than typical should be especially wary to avoid the appearance of "structuring" assets - a federal crime wherein individuals purposefully move modest sums of cash under the federal reporting requirement of $10,000.00 to avoid drawing scrutiny from authorities.

Who pursues civil forfeiture actions?

Local and state authorities pursue assets through "in rem" proceedings, under G. L. c. 94C, § 47 (d), wherein the property becomes the subject of the action instead of the person - hence why civil forfeiture cases feature such bizarre titles as Commonwealth v. One 2004 Audi Sedan Auto and Commonwealth v. One Hundred Twenty-Five Thousand One Hundred Ninety-One Dollars.

Under Massachusetts' civil forfeiture law, law enforcement need only show probable cause that your property was related to a crime to forfeit it. You must then shoulder the burden of proving that the property was not forfeitable or that you did not know and should not have known about the conduct giving rise to the forfeiture. Further, law enforcement keeps the entirety of all forfeited property. The receipts are split: half to the prosecutor's office and half to the local or state police. [1]

In addition, federal agencies, such as the Internal Revenue Service, the Federal Bureau of Investigation, the Drug Enforcement Agency, the Secret Service, among others, may bring a forfeiture action alone or in conjunction with local authorities under the federal "equitable sharing" program. Under the program, state and local police receive up to 80 percent of forfeiture proceeds in exchange for referring seized property to federal authorities.

In instances where multiple state and federal agencies share jurisdiction, the division of proceeds can be reminiscent of Caribbean pirates fighting over booty. For example, in the case of UCF student Charles Clarke, 13 different law enforcement agencies from Kentucky and Ohio -- including the Kentucky State Police, the Ohio Highway Patrol, and even the Bureau of Criminal Investigations within the Ohio Attorney General's office -- are seeking their cut of Charles' money, even though 11 of the agencies were not involved in the seizure.[2]

What recourse does one have when subjected to civil forfeiture?

Under the civil forfeiture laws, you must have a valid interest in the property seized and you must assert that interest in court on the date that appears on the charging notice. Failure to appear for the forfeiture hearing will result in the seizure of the assets at stake and the loss of your opportunity to regain your property.

How do investigators determine they're entitled to seize your property?

Unfortunately for citizens, the Commonwealth's burden in a civil forfeiture proceeding is not necessarily to prove, with admissible evidence, probable cause that the property at issue derived from illegal narcotics or facilitated a violation of the controlled substances laws, but to prove that the Commonwealth had reliable information in its possession that established probable cause of such a nexus and that justified the initiation of the in rem proceeding.[3] In practical terms, this means that the Commonwealth may proffer evidence not admissible in court, such as hearsay evidence, in initiating the action to show that the Commonwealth is entitled to keep the seized assets.

What to do when you've had assets seized?

Whether your property was seized as the target of a federal investigation, or as a victim of an unlawful traffic stop, you may not know where to turn.

Once you become aware of a civil forfeiture action against you, legal counsel can help to make the difficult decisions of what to do next. You must decide whether the value of the property seized is worth the cost to gain the property back, and the likelihood of success in achieving that end as the Court may award your attorney's fees for your trouble. The question of how to approach the government following a forfeiture action is a critical decision that could lead to a fair and reasonable resolution, and navigating the civil forfeiture program without counsel experienced in these matters may leave you without any recourse to regain your property.

[1] Williams, Marian et al., Policing for Profit: the Abuse of Civil Asset Forfeiture, Institute for Justice, March 2010.

[2] Ingraham, Christopher, Drug Cops Took a College Kid's Savings and Now 13 Police Departments Want a Cut, Washington Post WonkBlog, June 30, 2015.

[3] Commonwealth v. One 2004 Audi Sedan Auto & Others, 456 Mass. 34, 39 (2010).

No Comments

Leave a comment
Comment Information
View our Practice Areas
bostlnno Boston Business Journal CNN The wall street journal Forbes

Email Us Now

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Dhar Law, LLP

1 Constitution Center, Suite 300
Charlestown, MA 02129

Phone: 617-391-0592
Fax: 617-880-6160