The Law Regarding Asset Forfeiture and Attorney Fees Explained
Recent changes in the law have reduced the value and quantity of assets collected by the government in forfeiture matters. To compensate for the reduced forfeiture revenue, federal and state law enforcement agencies are becoming more aggressive in seeking asset forfeiture in Michigan.
Asset forfeiture or seizure is a tool used by federal and state law enforcement agencies, such as police, FBI, and DEA, as a way of funding law enforcement activities and other governmental functions. Forfeiture is a revenue-generating tool and an additional way of pressuring and punishing those convicted of any serious criminal offense, such as drug distribution or trafficking, racketeering (RICO), conspiracy, white-collar crime, fraud, and embezzlement. The government may seize your business, home, jewelry, vehicles, and other property that law enforcement suspects were obtained or maintained with proceeds from drug activity or used to help or facilitate criminal activity.
The government works uncompromisingly to seize and sell property believed to have been involved with criminal activity such as fraud and drug crimes. Law enforcement agencies have many tools at their disposal to take a person’s assets and then sell them at auction.
A Conviction is Now Required for Forfeiture in Most Cases
Under recent amendments to Michigan law, a criminal conviction is now required before a person’s assets can be seized and forfeited. A forfeiture may only proceed, without a criminal conviction, if one of the following applies:
- the aggregate or total value of the assets exceeds $50,000,
- no person claims any interest in the property,
- the owner of the property withdraws his or her claim in the property,
- the owner of the property waives the criminal conviction or plea requirement,
- a criminal charge has been filed, and the defendant is outside this state and cannot reasonably be extradited or brought back to the state for prosecution or reasonable efforts have been made to locate and arrest the defendant, but the defendant has not been located.
Fighting Forfeiture and Seeking the Return of Money, Jewelry, Real Estate, and Other Assets
When assets are seized by the government, a person claiming an interest in the property has 20 days to file a notice of ownership or legal right, called a claim of interest. The 20-day period runs from the time the owner or interest holder receives notice or notice is published. If no one claims an interest within 20 days, the property may be sold at auction.
If criminal charges are filed, the forfeiture case is delayed until the outcome of the criminal case.
In most cases, an asset can be forfeited if the government proves by clear and convincing evidence that it is either “subject to forfeiture” or that the owner or person claiming an interest in the asset had prior knowledge of or consented to the commission of the crime.
If a claim of interest is filed and more than 90 days pass without criminal charges, the government must return the property to the owner within 14 days. Additionally, the government has 14 days to return the asset if the defendant is acquitted (found not guilty), the charges are dismissed, or a court orders the return of the asset.
Property, assets, or things of value are “subject to forfeiture” if they are:
- contraband (something illegal, such as controlled substances/illegal drugs),
- vehicles used to transport the contraband or something of value intended to be exchanged for contraband,
- books, records, and research products and materials, including formulas, microfilm, tapes, and data used, or intended for use relative to the sale or distribution of contraband, and
- anything of value that is furnished or intended to be furnished in exchange for contraband.
Clear and Convincing Burden of Proof for Forfeiture
Generally, the government must prove that an asset, property, or another thing of value is subject to forfeiture by clear and convincing evidence. Money that is found in close proximity to contraband is presumed to be subject to forfeiture. This presumption can be rebutted by the owner or person claiming an interest with clear and convincing evidence.
For civil forfeiture related to a racketeering allegation, the government must now prove by clear and convincing evidence (1) that the property is subject to forfeiture and (2) the person claiming an ownership interest in the property had actual prior knowledge of the commission of an offense listed in the definition of racketeering.
Types of property commonly seized in drug cases include:
- Precious metals
- Money in bank accounts
- Computers and other electronics
- Business equipment
The Government Wants to Forfeit My Assets – How Do I Pay Legal Fees?
The law firm of LEWIS & DICKSTEIN, P.L.L.C. is routinely successful in forfeiture representation. Generally, in cases where there are substantial assets at stake, the firm charges a percentage of the value of any assets or things of value that are recovered directly or indirectly through the firm’s representation. In other cases, the firm may charge an hourly rate, a flat fee, or a mixed rate fee, meaning some combination of a flat fee, an hourly rate, and a percentage. For example, the firm may charge a flat fee of $5,000.00 to take a case and then a percentage of any value over $25,000.00. Every case is unique, and a fee would be customized based on the individual circumstances of the matter. If you call LEWIS & DICKSTEIN, P.L.L.C., we will be able to provide you a free consultation and determine the fairest way to charge legal fees in your case.
Criminal Defense Attorneys in Michigan – We Can Help
The attorneys of LEWIS & DICKSTEIN, P.L.L.C. are the premier criminal defense attorneys in Michigan defending clients on state and federal criminal charges, and handling asset forfeiture matters. Our attorneys are current on all criminal law related decisions coming from the United States Supreme Court and the Michigan Supreme Court. We take great pride in our ability to protect you from overeager police officers and prosecutors. LEWIS & DICKSTEIN, P.L.L.C. is well respected by lawyers and judges. We are the criminal defense attorneys in Michigan that can help you with fighting a forfeiture matter or negotiating a favorable settlement.
Call us today at (248) 263-6800 for a free consultation, or complete a Request for Assistance Form and we will contact you promptly.