Forfeiture in Federal Drug Trafficking Matters

Forfeiture is a prosecutor’s best friend (along with federal conspiracy and wire fraud charges). Federal forfeitures comes in two varieties: “civil forfeiture” and “criminal forfeiture.” The former, codified at 18 USC § 981, does not require a conviction; it is rather considered “civil” in nature, with lower applicable standards and fewer of the procedural safeguards available than in criminal matters.

Civil Forfeiture

We have been consulted on too many cases where police or federal agents simply stop a vehicle or enter a home, search it, and discover sizeable quantities of cash or other property (sometimes between $100,000.00-$200,000) secreted in the vehicle or home, but find no contraband. After inevitably grilling the driver or occupant as to the source of the money, and maybe having a drug dog “alert”, the police simply seize the money or property and give the driver or occupant a receipt for it. No criminal charges are ever filed. But no one gets the the money back, at least without a fight. The government at some point issues a notice of impending forfeiture, either through the federal or state systems. Here, the government is only required to prove that is more likely than not that the property is the proceeds of or otherwise directly tied to “specified unlawful activities”—typically drug trafficking.

These kind of cash seizures, and other forfeitures, present several obstacles, sometimes insurmountable, for the people who want the money or property back. The first issue is who is the claimant, and the second is what is the legitimate source of the funds or property (Typically the police will ask the driver or driver who’s money or property it is, and sometimes the driver denies that it is his. Other times the driver claims that it is his money, but when asked where it came from, the driver provides a thin explanation [e.g. “gambling winnings”]but can produce no documentation). If there are enough funds involved, this also raises IRS taxable income questions. As a practical matter, contesting a seizure and forfeiture of significant cash or other property, even without criminal charges involves, requires at the least detailed and usually documented explanation of source of funds.

Criminal Forfeiture

In contrast, criminal forfeitures, codified in part at 18 USC § 982, depend on a criminal conviction to take effect. Typically in federal drug trafficking indictments there will be a criminal forfeiture allegation addended as the last or final count, alleging forfeiture of the vehicle or real property where the drugs were found, or any cash or weapons or other property found in conjunction thereof. Unlike civil forfeiture, the criminal forfeiture is part of the same criminal proceeding, and a conviction on the underlying counts is usually presumptive evidence that will justify the forfeiture.

Michael has handled numerous significant federal and state civil forfeiture matters, ranging in value from $100,000.00 to $2,500,000.00.