Asset forfeiture is a remedy that forcibly disposes of assets that are alleged to be the fruits or instrumentalities of a crime or statutory violation. Our asset forfeiture lawyers can help represent you in an asset forfeiture proceeding to help prevent the government from seizing your property. The federal, New York State, county, and New York City governments have legal means to seize and auction property that they believe is the instrumentality, fruit of, the proceeds of a crime or statutory violation. Examples of the types of forfeitures that can occur are: real estate forfeiture, car forfeiture, cash forfeiture, gun forfeiture, fish and game forfeiture, tax forfeiture, business forfeiture, forfeiture of a corporation, securities forfeiture, boat forfeiture, or jewelry forfeiture. Despite this seeming like an unconstitutional and unreasonable seizure under the Fourth Amendment, the Supreme Court has upheld asset forfeiture as constitutional, provided that there is due process, and that the statute authorizing the forfeiture is not void for vagueness.
To protect yourself from being unjustly deprived of your property call our experienced asset forfeiture attorneys today for a free consultation.
Forfeitures commonly occur when people are transporting large amounts of cash and they are pulled over or searched by the police. There have also been numerous cases in which people have attempted to board an airline with a large amount of cash in their carry on luggage, some of whom were later accused of various crimes including money laundering, fraud, tax evasion, and dealing drugs. Others were never even arrested or charged with crimes at all. This is because asset forfeiture is generally a civil proceeding against the property itself and not based upon a criminal conviction, however, under some circumstances this is not the case. Additionally, businesses or other ventures that the state believes are adverse to the interests of public health, safety, and morals may be subject to forfeiture as well.
Often asset forfeiture proceedings will accompany criminal charges for financial crimes such as Grand larceny, Insurance Fraud or Enterprise Corruption. Under New York Law civil asset forfeiture cases are stayed during the pendency of the criminal proceedings.
Defendants have a number of constitutional protections from asset forfeiture. Asset forfeiture statues and procedures must comply with the requirements of the Fifth and Fourteenth Amendments, which state “no person… shall... be deprived of life, liberty, or property, without due process of law.” What this means in the context of an asset forfeiture is that no asset forfeiture may occur without a jury trial or the equivalent thereof in the forfeiture proceeding. A criminal jury trial meets this requirement. One exception to this is where the property is a nuisance and it is of inconsequential value. Another exception to the jury trial requirement is where property may be summarily destroyed by statute.
A jury is also required where there is a genuine issue of material fact, in layman’s terms a difference between what the prosecution and defendant believe the important facts are a jury trial in a forfeiture proceeding is also required. Another requirement of due process under the Fifth and Fourteenth Amendments in asset forfeiture proceedings is notice. This means you must receive papers detailing where and when the asset forfeiture proceedings will be held, and that adequately apprise you of the time, date, and location of the hearings. Without such notice, it would not be constitutionally permissible to forfeit a defendant’s property.
Furthermore, due process requires that asset forfeiture statutes not be void for vagueness. This means that the statute must be adequately definite under the Fifth and Fourteenth amendments of the Constitution. If you have been served with a notice that the government is attempting to forfeit your assets and you are unsure of how to proceed to protect your property our asset forfeiture attorneys can help you. Please call us for a free consultation today.