Fighting Civil Asset Forfeiture in Federal and State Court

February 13, 2013

One of the tools that prosecutors, both in state and federal court, love to use is called civil asset forfeiture. That is when the government prosecutors seize the personal property (cars, cash, computers, guns, etc) and real property (houses, land, condos) of a person with the civil process. What that essentially means is the government takes your stuff even though they are not necessarily trying to convict of you of a crime.

Of course, in a criminal case, forfeiture can happen as a result of a criminal conviction. In Arizona state court, criminal forfeiture falls under Arizona Revised Statutes A.R.S. 13-4312.
Civil forfeiture proceedings usually occur in drug cases, in which the government tries to take the cash proceeds of drug trafficking. It usually happens in conjunction with a criminal prosecution, but not necessarily. The government confiscates the property because it has been used in violation of the law and to require disgorgement of the fruits of the illegal conduct. (see United States v. Ursery, 518 U.S. 267,284 (1996)).

The benefit to the government is that to take someone's real or personal property, proof beyond a reasonable doubt is not necessary and the lower civil standard of proof is sufficient. In other words, the government does not have to have enough evidence to convict you of a crime, you can be innocent, to take your stuff. In fact, unlike criminal trials, hearsay evidence is admissible. Federal civil forfeiture states are found at 21 USC 881 and Arizona civil forfeiture statutes are found at ARS 13-4311. Forfeiture is usually based on either contraband forfeiture, proceeds forfeiture, facilitation forfeiture, or enterprise forfeiture.

Needless to say, there is a quite a lot of room of abuse by prosecutors, which brings up the obvious question: can you fight the government if they are trying to take your stuff? Yes, of course you can. For example, see  US v. 434 Main Street, Tewksbury, Massachusetts. In that case, the federal district court denied forfeiture of a motel, pursuant to the Civil Asset Forfeiture Reform Act ("CAFRA"), 18 U.S.C. § 983(c)(1), where drug transactions were allegedly taking place. The court ruled in the matter that the federal prosecutors failed to meet their burden of proof, and the court vacated the forfeiture. Even more importantly, the Court found Mr. Caswell, the defendant, to be an innocent owner:

This court also finds that the Claimant has met his burden of proving that he is an innocent owner of the Property. He did not have actual knowledge of the forfeitable drug crimes before or while they were occurring, and there is no evidence that he should have known that they were likely to occur. I further find that Mr.Caswell has met his burden of proving that he was not willfully blind to the drug crimes. Finally, I find that Mr. Caswell took all reasonable steps to prevent drug crime on the Property.

What does all this mean? If the government is trying to take your property through a forfeiture proceeding, fight it!