Asset Seizure and Forfeiture: A Basic Guide
By Colin May, M.S.
State and local law enforcement agencies conduct investigations involving a variety of crimes, including many where gangs, drug traffickers, fraudsters, or other types of criminals aim to make a profit. But, how do investigators address these offenses when the perpetrators consider a prison sentence merely a cost of doing business—a brief respite from their regular lives—and know that they will return to their “toys,” illegal profits, and high standards of living when released?
To thoroughly explore the complex world of asset seizure and forfeiture, the FBI Law Enforcement Bulletin presents this article in two parts. The first provides an introduction to the topic and gives readers a basic understanding of seizure and forfeiture, including common investigative techniques and best practices for law enforcement.1
When communicating about asset seizure and forfeiture, some people, including professionals, use words interchangeably when, in fact, the terms have unique meanings and refer to distinct processes and concepts. Especially given this potential confusion and misuse, it is important to properly define some commonly used terms.
An asset is a piece of property, an item, or other thing that has intrinsic or external value.2 Assets comprise cash, real estate, land, buildings, cars, and motor homes. Other types include liquor licenses, professional certifications, income tax refunds, and artwork. In short, an asset could be anything that carries worth to the person who owns, possesses, or seeks it.
Seizure involves the physical restraint of an asset or its transfer from the owner or possessor to the custody or control of the government, primarily through a law enforcement agency.3 This occurs in three main contexts: 1) incident to arrest, 2) adherent to a search warrant, or 3) pursuant to a warrant for specific items subject to forfeiture.4
Mr. May is a forensic auditor for the U.S. government and an instructor at Stevenson University in Owings Mills, Maryland.
Asset forfeiture entails a legal process whereby the ownership of an asset is removed from individuals because they used it illegally, received or derived it from illicit activity, or employed it to facilitate a crime.5 The vesting of title with the government follows a civil, criminal, or administrative proceeding.6
Most law enforcement personnel understand the procedures for found, abandoned, or unclaimed property. But, some lack familiarity with obtaining a warrant for seizing a particular asset.
The Fourth Amendment regulates seizures.7 Their use commenced during the birth of American democracy. The colonists found it deplorable that agents—mostly soldiers—of the English crown could enter homes to remove items without independent checks or balances.8
Today, investigators generally must obtain authority for seizures from a warrant issued by a neutral magistrate and based upon a sworn affidavit that describes in detail the item for seizure and the evidence showing its connection to the crime.9 The Federal Rules of Criminal Procedure, Rule 41, governs the authorization of seizure warrants.10 The basis for seizing an asset falls into one of four categories.
“Seizure and forfeiture constitute two unique, distinct legal processes that share many similarities....”
1) Evidence of an offense
2) Contraband or items illegally possessed
3) Fruits of crime (profits and illegally obtained items)
4) Instrumentalities (property used in an illegal act)11
During an investigation, officers should recall these categories of property for seizure, particularly contraband, fruits, and facilitating property. Investigators must show one or more of these categories in the warrant affidavit.
Occasionally seizures occur after a traffic stop, in the execution of a search warrant, or during a search incident to arrest. Officers could immediately identify the potential evidentiary value of an item or understand its role in the crime. In these situations they must deal with the seizure as quickly as possible and obtain legal advice from prosecutors on how to handle it.
However, investigators should undertake most seizures only after a full investigation and detailed evaluation of factors by a team of officers, prosecutors, and managers. For example, they would handle the seizure of a late-model luxury car differently from that of a dilapidated older vehicle. Investigators should begin preseizure planning once an investigation has identified assets for seizure or forfeiture.
Preseizure planning methodology helps ensure that agencies avoid potentially costly management or safekeeping issues and that no incomplete investigations occur that result in a dismissal of charges or the return of the asset prematurely to a criminal. The U.S. Marshals Service—the primary federal agency responsible for seized asset management—has developed preseizure planning methodology and used it extensively.12
Of course, as a primary issue during preseizure planning, officers should consider whether to seize the asset at all. In some cases, no compelling reason exists. For instance, the burden on taxpayers to clean up property contaminated by chemicals used in methamphetamine production could be cost-prohibitive. In these instances, officials should weigh alternatives to seizure or forfeiture.13
Other issues officers must consider prior to a seizure include the warrant execution (and safety issues), storage and management concerns, and assurance that the property’s value remains stable or does not drop significantly. Investigators must address additional considerations, like ownership interests and potential claimants to the item.14
Officers also must identify the item’s reasonable worth. The financial significance and equity of an asset—particularly real estate, vehicles, and aircraft—are important determinations. Investigators can enlist the help of experts, such as appraisers and valuation professionals. The value of cash is identified easily, unlike that of other items, such as houses.
Recent U.S. Supreme Court decisions have afforded higher priority to the use of seizure warrants as the proper way to make a lawful restraint.15 Once investigators have written the probable cause affidavit in the investigation, the forfeiture process becomes much simpler because they already have completed the bulk of the work.
Even if officers seize the asset while executing a search warrant or working a traffic stop and it falls under the exceptions authorized by case law, investigators still subsequently can obtain a seizure warrant for the asset. This could prove helpful because although the item has been restrained, additional evidence gathered following the seizure may strengthen the case. In fact, the U.S. Department of Justice noted that obtaining judicial authorization to seize property serves multiple purposes, such as enhancing protection for agencies, investigators, and officers against potential civil suits claiming wrongful seizures and “reducing the potential that the public will perceive property seizures to be arbitrary and capricious.”16
An essential law enforcement tool, forfeiture constitutes a legal process enabling the government to remove—without compensation for the individual—ownership of property involved in a crime. It may occur in a civil procedure, like a lawsuit against the item, or after the conviction of an individual in a criminal trial.17 Forfeiture removes the profit motive from the crime and returns property obtained under fraudulent pretenses by the criminal to the victims.
While recent negative press reporting has focused on civil liberties issues surrounding a small percentage of forfeiture actions, the history of asset forfeiture stretches back to ancient times. The theory of asset forfeiture—taking the offending profit or property involved in the crime—first was mentioned in the Old Testament.18 It frequently was carried out by practitioners of pre-Judeo Christian religions.19
A more recent forfeiture of property was authorized in common-law England, where the Navigation Acts of 1660 provided for not only the seizure and forfeiture of illegally operated vessels (i.e., non-British ships) but also the goods shipped in violation of the law.20 Shortly after becoming independent, the first U.S. Congress enacted similar legislation in 1789.21 Within a few years, it added a number of offenses upon which to authorize forfeiture, including piracy, slave trafficking, and customs violations.22
Forfeiture allows the government to curb criminal behavior, thus, improving the health and safety of a community. It ensures that criminals no longer have the capacity to profit and control a community through intimidation, extortion, and violence. Officers also can invoke the process to remove criminal safe havens, stash houses, and conveyances used to transport contraband. Any contemplated seizure or forfeiture should be based on one or more of several policy objectives.
- Punish an unlawful enterprise
- Deter illicit activity and crimes
- Remove tools used by a criminal, including facilitating property
- Disrupt an illegal organization
- Return proceeds of fraud to the victims
- Protect the community
- Save taxpayer money by using forfeited funds for law enforcement and public safety23
Investigators, agency managers, and the general public should understand the objectives of forfeiture. Such knowledge helps provide context to the purpose of a forfeiture or seizure. Forfeiture actions and seizure warrants never should occur without a proper evidentiary and legal basis that supports the policy objectives.
Presentation of a Forfeiture Case
After securing the asset, officers must commence an action against the property.24 While investigators present a forfeiture case, the prosecutor will ask several key questions. Officers must provide answers, as well as supporting evidence.
1) What is the criminal violation?
2) Is there a forfeiture provision for the crime?
3) What property is forfeitable under the statute?
4) What evidence specifically ties the asset to the crime or violation?
5) How should it be (or how was it) seized?
6) What is the value of the property?
7) Where is it now?
8) Who owns or controls the asset (or has liens or interests)?25
Officers can follow certain guidelines when drafting seizure warrant affidavits and civil forfeiture complaints. Based on his experience in writing search and seizure warrant affidavits and working with prosecutors on forfeiture complaints, the author offers some recommendations.
- Start early, plan, outline, and revise frequently
- Have another person review for clarity
- Use small paragraphs to help the reader understand the issues
- Use clear, simple, and easy‐to‐follow language
- Include a summary paragraph or case overview to help in complex investigations
- Show that the source of information is reliable and corroborated by independent evidence
- Focus on facts26
Review of the Evidence
Evidence that ties the asset to the crime or the criminal proves crucial. Reviewing evidence with prosecutors early enables them to help identify gaps and provide guidance on what additional proof can help present the strongest case.
Officers may find a previously drafted probable cause affidavit useful. In the federal context, seizure warrant affidavits often are included in the civil forfeiture complaint as an addendum. However, sometimes “less is more,” so investigators should allow the forfeiture prosecutor to decide what goes into the final complaint. In an ongoing case, officers also can include evidence gathered in the time between the filing of the civil complaint and the prosecution of the case.
Investigators should become familiar with some additional questions. These may prove useful in evaluating evidence in a forfeiture complaint or seizure warrant affidavit.
- What is/was the role of the asset in the commission of the crime?
- Was the property acquired with proceeds obtained from the illicit activity?
- Is the asset itself the proceeds of the illicit activity?
- Who owns the property, both on paper (title) and in reality (control)?
- What is the cost of maintaining the asset pending the forfeiture action?
Seizure and forfeiture constitute two unique, distinct legal processes that share many similarities in the planning and management of the asset. Often, people confuse them with one another, and they become subject to misunderstanding.
In pursuing lawful seizures of items that aid criminals or allow them to profit, investigators should conduct prudent investigations that establish a criminal violation, demonstrate the nexus of the property to the crime, and ensure that it is safeguarded while in government custody. Failing to do so or not meeting the law enforcement or public policy objectives in seizing and forfeiting property could result in tremendous loss for both the investigator (personally and professionally) and the agency. Part two of this article will confront ethical and legal problems faced in safeguarding, managing, and disposing of seized and forfeited assets.
Mr. May can be contacted at firstname.lastname@example.org.
The views presented in this article are those of the author. For an overview of asset forfeiture from the FBI, visit https://www.fbi.gov/about-us/investigate/white_collar/asset-forfeiture.
1 This article was written primarily from the federal perspective because much of the developed case law is federal. However, readers can use it as a starting point for discussions with competent counsel about local and state laws.
2 Author’s definition; see also U.S. Department of Justice, Criminal Division, Asset Forfeiture and Money Laundering Section, Guide to Equitable Sharing for State and Local Law Enforcement Agencies, April 2009, accessed April 11, 2016, https://www.justice.gov/criminal-afmls/file/794696/download.
3 Author’s definition based on U.S. CONST. amend. IV. A historical and case-based treatment on search and seizure (too often simply lumped together) is available from U.S. Congress, Constitution of the United States of America: Analysis and Interpretation, Fourth Amendment: Search and Seizure, accessed April 11, 2016, https://www.congress.gov/content/conan/pdf/GPO-CONAN-REV-2014-10-5.pdf. There also are civil litigation cases that involve private persons or companies applying to a court for permission to seize or restrain assets involved in some type of tort claim, fraud recovery, or other circumstances.
4 Ibid., 1391.
5 Stefan D. Cassella, “Introduction to Asset Forfeiture: Lecture Outline,” Asset Forfeiture Law, LLC, February 18, 2016, accessed April 11, 2016, http://assetforfeiturelaw.us/wp-content/uploads/2016/03/Introduction-to-Asset-Forfeiture.pdf.
6 Douglas A. Leff, “Money Laundering and Asset Forfeiture: Taking the Profit Out of Crime,” Money Laundering and Forfeiture 61, no. 5 (September 2013): 7-9, accessed March 2, 2016, http://www.justice.gov/usao/eousa/foia_reading_room/usab6105.pdf; and Stefan D. Cassella, Asset Forfeiture Law in the United States, 2nd ed. (Huntington, NY: Juris Publishing, 2013). This resource offers a thorough explanation of the nuances of asset forfeiture. The main federal statutes governing forfeiture are 18 U.S.C. § 981 (civil forfeiture), 18 U.S.C. § 982 (criminal forfeiture), 21 U.S.C. § 881 (drug trafficking civil forfeiture), and 21 U.S.C. § 853 (drug trafficking criminal forfeiture).
7 U.S. CONST. amend. IV.
8 U.S. Congress, Constitution of the United States of America: Analysis and Interpretation, Fourth Amendment: Search and Seizure.
9 Ibid. 1215-1226 and 1228-1250.
10 FED. R. CRIM. P. 41.
11 Ibid. Law enforcement officers may find helpful information through the Federal Law Enforcement Training Center, Legal Division, which offers legal texts, training materials, and other resources. U.S. Department of Homeland Security, Federal Law Enforcement Training Center, Legal Division Handbook, ed. Ken Anderson, 2015, accessed April 4, 2016, https://www.fletc.gov/legal-division-handbook-pdf.
12 The U.S. Marshals Service assigns investigators to assist in asset forfeiture duties across each judicial district; representatives also participate in preseizure planning meetings with U.S. attorneys’ offices and investigating agencies. Its policies and procedures relating to seizure and forfeiture management are available in a partially redacted form on its website. U.S. Marshals Service, United States Marshals Service Policy Directives: Asset Forfeiture, USMS Policy Directive 13, March 4, 2010, accessed March 3, 2016, http://www.usmarshals.gov/foia/ directives/asset_forfeiture.pdf [hereafter, USMS AF Manual]. These directives contain excellent advice for investigators and managers considering seizing assets.
13 For example, a temporary restraining order could be applied for in a criminal case under 21 U.S.C. § 853(e). However, this only applies to assets directly traceable to the offense. Viable alternatives in a methamphetamine house may include engaging other state and local environmental agencies to explore pursuing abatement, filing notices of contamination (if available), or condemning the property through local heath administrators. See USMS AF Manual, 13.3, “Real Property,” 14.
14 “[P]re-seizure planning provides the Government with the opportunity to make informed decisions on matters regarding the financial impact of forfeiting and managing assets, and on matters affecting the Government’s ability to efficiently dispose of assets after forfeiture. Specifically, pre-seizure planning consists of anticipating and making informed decisions about what property is going to be seized or restrained, how and when it is going to be seized or restrained, and, most important, whether it should be forfeited at all.” U.S. Department of Justice, Criminal Division, Asset Forfeiture Policy Manual 2013, rev. March 22, 2014, 20, accessed March 3, 2016, http://www.justice.gov/criminal/afmls/pubs/pdf/policy-manual-2013rev.pdf. [Hereafter, AFMLS Policy].
15 FED. R. CRIM. P., notes to Rule 41 citing legal decisions, including Trupiano v. United States, 334 U.S. 699, 705 (1948), quoted with approval in Chimel v. California, 395 U.S. 752, 758 (1969). See also Coolidge v. New Hampshire, 403 U.S. 443 (1971); and Stephen H. Paul, “Chamber v. Maroney: New Dimensions in the Law of Search and Seizure,” Indiana Law Journal 46, no. 2 (Winter 1971): 257-69, accessed March 3, 2016, http://www.repository.law.indiana.edu/cgi/ viewcontent.cgi?article=2631&context=ilj.
16 AFMLS Policy, 27.
17 An in rem forfeiture is Latin for “against the thing.” Such a case is captioned or titled, for example, United States v. One 1999 Black Chevrolet Caprice, VIN 6TETU62N96Z152364. An in personam forfeiture means “against the person.” In this forum, the assets to be forfeited are named in the grand jury indictment, criminal information, or subsequent bill of particulars following indictment.
18 Exodus 21:28.
19 Austin v. United States, No. 92 6073, 509 U.S. 602 (1993).
20 Jimmy Gurule, Complex Criminal Litigation: Prosecuting Drug Enterprises and Organized Crime, 2nd ed. (New York, NY: LEXIS Publications, 2010), 285-88.
21 Judiciary Act of 1789, 1st Cong., 1st sess., accessed April 11, 2016, http://www.ourdocuments.gov/doc.php?flash=true&doc=12.
22 Cassella, Asset Forfeiture Law in the United States, 29; and Dee R. Edgeworth, ed., Asset Forfeiture: Practice and Procedure in State and Federal Courts, 2nd ed. (Washington, DC: American Bar Association, 2009). Edgeworth covers significant state issues and many of the laws applicable to specific state criminal offenses and also provides valuable practical information on the forfeiture process across the spectrum of federal and state contexts.
23 Kaley v. U.S., 134 S. Ct. 1090 (2014) at I(A). For a foreign perspective, see the Crown Prosecution Service, CPS Asset Recovery Strategy, June 2014 (London, UK: Crown Prosecution Service, 2014), accessed March 9, 2016, https://www.cps.gov.uk/publications/docs/ cps_asset_recovery_strategy_2014.pdf.
24 For example, if the owner of the asset is a fugitive, has died, or otherwise is unavailable for trial.
25 U.S. Department of Justice, Bureau of Justice Assistance, Asset Forfeiture: How to Present the Forfeiture Case to the Prosecutor, Laurence E. Fann, Glenda G. Gordon, and Arthur W. Leach, NCJRS 142055, March 1993, accessed March 10, 2016, https://www.ncjrs.gov/pdffiles1/ Digitization/142055NCJRS.pdf.
26 Ibid. In addition to analyzing dozens of forfeiture complaints and warrants as an instructor, the author has written multiple search or seizure warrant affidavits and drafted numerous forfeiture complaints valuing over $18 million.