Should you litigate?

A civil forfeiture action proceeds like any other civil action with a Complaint and Answer, document discovery and interrogatories, depositions and summary judgment motions.

Therefore, if you are under investigation, the lure of obtaining agent reports and deposing the investigating agents might tempt your attorney to litigate the forfeiture action fully. On the other hand, you also may be obligated to sign pleadings making detailed factual allegations, and to answer interrogatories and depositions under oath.

Recent reform of the federal forfeiture statutes and many state statutes impose the burden of proof on the government. Nevertheless, as a practical matter the circumstantial evidence shifts the burden to you to justify your ownership of the property.

Consider the following factors in deciding whether and to what extent to contest a forfeiture:

  • Do you need the forfeited or seized property to run your business, maintain your house and family, or pay your attorney? A court can release property upon a showing of hardship, at least until final disposition of the forfeiture action, if you convince the court that the property will not be dissipated. This argument works best for residences, offices and business equipment.
  • Can you litigate the forfeiture action without prejudicing your defense in the criminal case? Anything you represent in contesting the forfeiture can be used against you, but the forfeiture defense might depend on issues unrelated to the criminal action or involve issues that will be undisputed in the criminal case.
  • Will contesting the forfeiture aid in negotiating a favorable criminal plea agreement? Federal and many state policies forbid using forfeiture to coerce a plea. Therefore, a vigorous defense of the forfeiture should not elicit vindictive terms in the criminal plea offer. To the contrary, the prospect that you will continue to fight the forfeiture even after a plea may persuade the government to offer favorable terms to settle the forfeiture action. For example, a conviction might result in a restitution order against you, but you might find that the assets you may have used to satisfy that order have been seized as the forfeitable proceeds or instrumentalities of the crime. The government has no obligation to apply those assets to restitution. However, the prosecution, when faced with the prospect of protracted forfeiture litigation, might agree to apply the assets to restitution in return for an agreement that they are forfeitable.
  • Are you an innocent third party? If so, you can litigate the case vigorously without fear of incrimination. Once a criminal forfeiture judgment has been entered, third parties still can vindicate their interests in the property in an “ancillary proceeding.”