New York Forfeiture Lawyer Will Protect Your Rights
Definition of Forfeiture
The United States Code and the New York Code both prohibit a person from profiting from criminal acts. Any property, money or assets that are believed to have been obtained as a result of criminal activity may be seized. There are two primary types of asset forfeiture that make it possible for the government to take property suspected to be the fruits of a criminal act: criminal forfeiture and civil forfeiture.
Civil asset forfeiture allows the government to seize millions of dollars from civilians each year, even before a person has been convicted of a crime. The American Civil Liberties Union has spoken out against civil forfeiture practices, indicating that the way in which civil forfeiture is being used has put “our civil liberties and property rights under assault.”
Asset forfeiture has become big business for the government and you must protect yourself. New York City criminal defense lawyers at Bukh Law Firm, PLLC have extensive experience representing clients who are at risk of asset forfeiture or who have had their property and possessions taken.
Call today to schedule a consultation and take the first step towards securing your property rights.
Criminal Asset Forfeiture
Criminal asset forfeiture is part of the sentencing phase of a criminal case. It requires a conviction before property, money or assets can be seized. Only the property of the defendant who has been found guilty can be taken, and only if the property is directly related to a violation of a criminal offense. For example:
- 21 United States Code Section 853 requires criminal forfeiture of property obtained from violations of the controlled substances act as well as forfeiture of property that was used to commit violations.
- 21 U.S. Code Section 982 requires that a person who has committed certain fraud offenses must forfeit real or personal property that was obtained due to the fraud offense.
Criminal forfeiture is largely uncontroversial, because a trial has been carried out and a conviction secured before the assets are taken. Further, criminal forfeiture actions are brought against the person convicted, rather than against the property being taken.
Avoiding conviction for a criminal offense can make it possible to avoid criminal forfeiture. Even once you have been convicted of a crime, a New York City criminal defense lawyer can help you to argue that a particular asset is not related to or purchased as a result of your crime and that you should not be forced to forfeit that real or personal property.
Civil Asset Forfeiture
Civil asset forfeiture is much more controversial than criminal asset forfeiture. New York law addresses civil forfeiture in Penal Code Section 1311, which establishes rules for the seizure of assets in the state. United States Code Section 983 explains general rules for civil forfeiture proceedings at the federal level. While these laws allowing forfeiture should be written and enforced to protect people from having their property taken without due process of the law, the laws are not effective in any way at ensuring that constitutional rights are secure.
Just like laws allowing criminal forfeiture, laws allowing civil asset forfeiture on both the state or federal level make it possible for assets to be seized if the property was used to facilitate a crime or if it is believed to be from the proceeds of a crime. The similarities between civil and criminal forfeiture laws stop there.
- When civil asset forfeiture takes place, the action is in rem or brought against the property rather than against the person as in the case of criminal forfeiture.
- The standard of proof for taking assets through civil forfeiture is a preponderance of the evidence standard, rather than beyond a reasonable doubt standard used for criminal proceedings.
- Seizure- or the actual taking of assets- often occurs as the first step in the process of civil forfeiture, long before there is any conviction or even before criminal charges have been filed. Often, charges are never filed but the property is kept by the government anyway. With criminal forfeiture, an injunction may be issued preventing a defendant from accessing certain assets while a criminal trial is ongoing, but the government does not actually take a person’s property without conviction of some criminal offense.
Although the U.S. Constitution guarantees your right to due process before being deprived of property, civil forfeiture laws are seen by many as circumventing those rights. This is because federal and state police officers frequently just take money from civilians during traffic stops simply by making the assertion that the money is connected to an illegal activity. As long as the officer claims probable cause that money or assets are related to criminal offenses, the police can usually just seize your belongings before filing any charges against you and without first giving you the opportunity to argue against the seizure.
Police are not the only ones who can just take property and money, and this government action does not just happen at traffic stops. The New York Times reported on the Internal Revenue Service seizing bank accounts without charging people with crimes by simply making allegations that the account holder tried to avoid triggering government reporting requirements.
Deposits over $10,000 must be reported according to the Bank Secrecy Act, and small business owners who make frequent deposits under this threshold have been accused of trying to evade this requirement even when just making routine deposits. Their bank accounts have been frozen and seized as a result of these alleged crime, but they haven’t been charged with any offense.
The bottom line is, drug enforcement agency (DEA), the IRS, and virtually all state and federal law enforcement officers and agencies have the authority to seize any property that they suspect is tied to a crime- even without filing any charges. Not only that, but they also have incentive to take property as they are usually entitled to keep some of the seized items as well as a portion of money recovered.
The person or business whose property has been taken has to try to fight to get the money back, and many people end up giving up because they don’t know how or because they believe it is too expensive to try. Law enforcement agencies are enriched because of a civil forfeiture that may not have actually had any underlying basis in a criminal offense… and those who had their property taken suffer.
How a New York City Assets Forfeiture Lawyer Can Help
Do not allow your possessions to be taken without a fight. If you are facing civil or criminal asset forfeiture, a criminal defense lawyer at the Bukh Law Firm, PLLC. is here to help.
