Criminal Forfeiture

Protecting Criminal Defendants From Property Seizures

Federal and state criminal forfeiture statutes are varied and complex. Few defense attorneys have an understanding of how these statutes operate and what can be done to protect the property of individuals and entities facing forfeiture.

At David B. Smith, PLLC, based in Alexandria, Virginia, and New York City, our lawyers handle criminal forfeiture matters in Virginia, the District of Columbia metropolitan area, New York, and federal courts nationwide. Our firm is led by attorney David B. Smith, a former federal prosecutor and nationally recognized authority on asset forfeiture law. Mr. Smith is the author of the leading two-volume treatise, Prosecution and Defense of Forfeiture Cases (2023), published by Matthew Bender.

Understanding The Different Types of Criminal Forfeiture

Unlike civil forfeiture, which is a proceeding brought against property, 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.

In federal cases, criminal forfeiture procedure is governed by Rule 32.2 of the Federal Rules of Criminal Procedure and by the procedural provisions of the drug forfeiture statute, 21 U.S.C. § 853. Rule 32.2, promulgated in 2000, improperly limits the right to have the jury decide the factual issues on which a criminal forfeiture depends. Case law also holds that the government only needs to prove its forfeiture case by a preponderance of the evidence. However, in Southern Union Company v. United States, 132 S. Ct. 2344 (2012), the Supreme Court held that, where a fine is substantial enough to trigger the Sixth Amendment’s jury-trial guarantee, Apprendi v. New Jersey, 530 U.S. 466 (2000), applies in full and requires the jury to determine, beyond a reasonable doubt, any facts that set a fine’s maximum amount. Southern Union‘s analysis should also fully restore the jury’s historic role in determining the facts relating to a criminal forfeiture.

Only the defendant’s interest in the property may be subjected to criminal forfeiture. Third-party interests in the same property are determined in a separate, “ancillary” proceeding after a forfeiture order is entered against the defendant. Third parties known to the government must be given personal notice that they have an opportunity to contest the forfeiture of the property by filing a “petition” requesting the court to adjudicate their claims to the property. The ancillary proceeding is governed by Rule 32.2 of the Federal Rules of Criminal Procedure and 21 U.S.C. § 853(n). The proceeding is considered civil in nature and the Federal Rules of Civil Procedure are generally applied.

Our firm represents clients who are facing forfeiture of their assets in criminal proceedings and advises other lawyers and law firms on issues related to asset forfeiture. Call us today or request an appointment to discuss your case.