Asset Forfeiture Law

Question 1

49 USC 80302

Answer 1

Prohibits use of vehicles to transport, carry, convey , conceal, possess, use to facilitate CONTRABAND

Question 2

49 USC 80303

Answer 2

Forfeiture of the conveyance used in 80302

Question 3

18 USC 492

Answer 3

CFT Paraphernalia

Question 4

What are the two ways to seize property?

Answer 4

Seizure Warrant

Pursuant to lawful exception (incident to arrest, consent, exigent circumstance)

Question 5

What can be forfeited?

Answer 5

Proceeds
Property involved in Crimes
Vehicles used to convey contraband (not credit cards)
49 USC 80302

Question 6

Can vehicles that are used to convey CFT access devices, checks or identifications be seized?

Answer 6

NO

-only seized if conveying “contraband” or are purchased with the proceeds of fraud

Question 7

What are the three different proceedings for seizing property?

Answer 7

Civil Administrative Forfeiture
Civil Judicial Forfeiture
Criminal Judicial Forfeiture

Question 8

What does CAFRA do?

Answer 8

Requires gov’t to provide notice to interested parties of its intent to forfeit property, if no notice is given, property must be returned.

Question 9

What are the notification time limits under CAFRA?

Answer 9

Within 60 days of a federal seizure

Within 90 days of a seizure if adopted from a local authority

Question 10

18 USC 981

Answer 10

Civil Administrative & Civil Judicial Forfeiture

Question 11

What are the elements of Civil Administrative Forfeiture?

Answer 11

Agency on it own has the ability to forfeit items w/o court:

• CAFRA notification applies
• Applies to all cash and monetary instruments
• Personal property worth less than $500K
• No Real Property (ie. houses/real estate)
• Done by the agency NOT the courts

Question 12

What are the elements of Civil Judicial Forfeiture?

Answer 12

Agency goes to Civil Court to get items forfeited:
- CAFRA notification applies
- No Limits on amount or type of property forfeited
- Must be decided by a federal judge
- MUST OCCUR WHEN INTERESTED PARTY FILES CLAIM WITH THE AGENCY
- CAFRA allows for forfeiture of fungible property (ex. you know bad guy took $1 million, and we find $60K in legitimate $ we can take the $60k b/c money is fungible)
(fungible = substantially identical, interchangeable)

Question 13

18 USC 982

Answer 13

Criminal Judicial Forfeiture

Question 14

What are the elements of Criminal Judicial Forfeiture?

Answer 14

Requires Federal Criminal Conviction:

• CAFRA notifications do NOT apply
• Allows for substitution of assets (substitute any kind of asset for assets that are known to be proceeds of crimes)
• Can probably be used if a CAFRA deadline is missed
• Forfeiture is part of the sentence for the criminal

Question 15

Who can petition the court (file a claim against property)to stop the service from forfeiting a defendant’s assets?

Answer 15

Innocent Owners
Lienholders
Victims

Question 16

What must the petitioner show if they file a clam against the property so it won’t be forfeited?

Answer 16

Owners and Lienholders:

1. Good Faith Interest
2. No Knowledge of Offense
3. No Willful Blindness

Victims:

1. Pecuniary (Monetary) Loss
2. No Willful Blindness
3. No Other Recovery (insurance proceeds, ongoing civil claim, etc)

Question 17

What is the advantage of criminal forfeiture over civil forfeiture?

Answer 17

Criminal Forfeiture allows for the Substitution of Assets

Question 18

Can real property or personal property that can be traced as avenues of money laundering or proceeds of a violation be forfeited?

Answer 18

YES

Question 19

What is the burden of proof for Civil Administrative Forfeiture? What about for Civil Judicial Forfeiture?

Answer 19

Probable Cause

Preponderance of the Evidence

Question 20

Can you use Civil Administrative Forfeiture if the forfeiture is contested?

Answer 20

NO, if contested it has to go to court