Asset Forfeiture
The federal and state governments are seizing more property, and more valuable property, for forfeiture than ever before. Many of these seizures are legally questionable, but getting the seized property back for its owners requires specialized knowledge of this area of the law. Mr. Smith is the author of the leading two-volume treatise on forfeiture, Prosecution and Defense of Forfeiture Cases (2023), published by Matthew Bender. The treatise also has a comprehensive account of federal law relating to restitution and fines.
Civil Forfeiture
Civil forfeiture is widely used by law enforcement agencies to seize property alleged to be either an instrumentality or the proceeds of criminal activity. Because civil forfeiture proceedings are in theory brought against property, rather than against individuals, they occur separately from criminal proceedings and are not dependent upon findings of criminal guilt.
Criminal Forfeiture
Criminal forfeiture is a penalty imposed on an individual or entity that has been convicted of a crime. The penalty of forfeiture is available for many different federal and state offenses. The procedures required in a criminal forfeiture are codified in Rule 32.2 of the Federal Rules of Criminal Procedure and in federal statutes, in particular 21 U.S.C. §853.
Motions for Return of Seized Property (Under Rule 41(g))
Once a person’s property has been seized, his or her chance of getting that property back may diminish with time, and the property often loses a significant part of its value while in the government’s custody. For these reasons, it is often essential to file a Rule 41(g) motion to challenge the government’s right to continue to hold the property, a summary judgment motion or a motion to dismiss the civil complaint early in the case.
Remission & Mitigation of Forfeiture Penalties
Remission, referring to the return of forfeited assets, and mitigation, normally referring to acceptance of a smaller financial penalty in lieu of forfeiture, are discretionary forms of relief granted by the federal agencies that are involved in seizing property or by the Money Laundering & Asset Recovery Section of the Criminal Division, Department of Justice, in Washington, D.C.
White Collar Defense
Our firm has earned a strong reputation for our defense of clients facing white collar criminal charges. Mr. Smith is one of only 7 Virginia attorneys chosen by Super Lawyers (2023) as outstanding in the white collar defense practice area, and one of 24 Virginia attorneys selected by Best Lawyers of America (2024) for white collar defense.
Structuring (31 U.S.C. §5324)
Our defense lawyers have the experience and insight to effectively defend clients who have been accused of breaking up currency transactions to evade reporting requirements. Structuring typically involves making a series of small deposits or withdrawals in place of a single transaction of over $10,000 in currency with the intention of avoiding the filing of a Currency Transaction Report by the bank. Mr. Smith has defended over 50 federal structuring cases, both criminal and civil. The Department of Justice sometimes brings such cases against upstanding citizens in order to obtain large forfeitures which supplement law enforcement budgets.
Money Laundering (18 U.S.C. §1956-1957)
Money laundering is one of the most frequently charged crimes in federal court. In part, this is because the money laundering laws are so broad as to reach otherwise innocent activity far removed from the common understanding of “money laundering,” resulting in abuse by prosecutors seeking to avail themselves of the heavy penalties for laundering convictions.
Money Transmitting (18 U.S.C. §1960)
After the 9/11 attacks, federal prosecutors began to pay a lot more attention to money transmitting businesses, supposedly motivated by concerns about the use of these institutions to launder money from drug trafficking organizations and terrorist networks. As a result, many operators of these entities find themselves facing serious criminal charges and huge forfeiture penalties because they failed to obtain a state license and to register with the FinCEN, an entity within the United States Treasury Department.
Racketeering (18 U.S.C. §§ 1961-1968)
The federal Racketeer Influenced and Corrupt Organizations (RICO) Act is a complex and confusing statute originally targeted at organized crime but used for many other purposes today. It not only provides severe criminal penalties but also authorizes private plaintiffs to sue defendants for treble damages. Many plaintiffs bring civil RICO cases against businesses that have defrauded them. A civil RICO claim is often the only way to bring a civil fraud case in federal court. Mr. Smith is co-author of Civil RICO (2023), a treatise published by Matthew Bender.
Federal Restitution & Fines
Federal criminal statutes and the U.S. Sentencing Guidelines provide for mandatory fines and restitution in most criminal cases, subject to a defendant’s ability to pay, and the government has an arsenal of collection remedies for unpaid fines and restitution orders.
Few criminal defense lawyers have a detailed grasp of these statutes and the voluminous case law interpreting them. At David B. Smith, PLLC, our team includes attorney David B. Smith, a recognized authority on the law governing criminal restitution and fines in the federal courts.
Criminal Defense
The sophisticated representation and defense offered by our criminal defense lawyers extend to all stages of criminal matters, from the initial investigation through trial and post-trial proceedings. The core areas of our criminal defense practice include all “white collar” crimes and:
Drug Crimes
Our attorneys represent clients who have been charged with federal drug offenses, including drug possession, manufacturing and trafficking.
Appeals & Post-Conviction Matters
We have extensive experience representing clients in federal criminal appeals, habeas corpus petitions, compassionate release and §404 relief under the First Step Act of 2018, and other post-conviction litigation.
Victims’ Rights & Ponzi Scheme Victims
Under the Mandatory Victims’ Restitution Act, the victims of federal crimes have a right to restitution for their losses. Under the Crime Victims’ Rights Act and Rule 60 of the Federal Rules of Criminal Procedure, victims have a number of important procedural rights, including the rights to be informed about and attend criminal proceedings and to be heard at any public proceeding concerning release, plea or sentencing.
Once a Ponzi scheme has been exposed, there are generally limited funds available to compensate the victims of the fraud for their losses. Victims who do not submit claims or take legal action to protect their rights may find themselves deprived of their fair shares. Our attorneys help Ponzi scheme victims use a variety of legal mechanisms to assert their rights and pursue fair compensation for their losses.