If you have had property seized by the police or other government agency it is critical to your case that you hire effective legal representation right away. Do not risk having your rights violated by neglecting to retain a skilled, experienced criminal defense attorney. Contact the Houston, Texas, law office of Kuniansky & Associates today. We will work diligently to ensure your rights are protected.

What is Federal Forfeiture?

Forfeiture, the government seizure of property connected to illegal activity, has been a major weapon in the Federal government's "war on drugs" since the mid-eighties. Forfeiture is a potent deterent, as well as a revenue source on which law enforcement has grown increasingly dependent. However, it brings with it far fewer procedural safeguards than the criminal law.

Most forfeiture activity occurs under Federal law, and most of that is connected to the traffic in illegal drugs. Cities and other municipal governments have cooperated in forfeiture actions under both Federal and state drug laws.

Forfeiture takes two distinct forms -- criminal and civil. Nearly all contemporary forfeiture involves the civil variety. Criminal forfeiture operates as punishment for a crime. It, therefore, requires a conviction, following which the state takes the assets in question from the criminal. Civil forfeiture rests on the idea (a legal fiction) that the property itself, not the owner, has violated the law.  Thus, the proceeding is directed against the res, or the thing involved in some illegal activity specified by statute.  Unlike criminal forfeiture, in rem forfeiture does not require a conviction or even an official criminal charge against the owner. This is the source of its attractiveness to law enforcement, and its threat to those concerned about abuse or circumvention of Constitutional protections.

What are some examples of property subject to forfeiture in a Federal Case? ?

• Contraband:

Property for which ownership by itself constitutes a crime, including smuggled goods, narcotics, and automatic weapons.  The government's mandate in protecting the public forms the justification for seizure in this case.

• Proceeds from Illegal Activity:

Property directly resulting from, or that can be traced to, an illegal activity.  Once a crime is identified, the government may seize any property flowing from the activity.  In some cases, the government may seize property in lieu of provable criminal proceeds.  Statutory innocent owner defenses provide a check on the seizure power, although this burden lies with the owner, not the government.

• Tools or Instrumentalities Used in Commission of a Crime:

Property used in the commission of a crime, including vehicles and real estate.  By being associated with the crime, the property is "guilty" of the offense, and subject to seizure.  In some cases, the innocence of the owner may not be a defense, although Constitution limitations, such as the Eighth Amendment's Excessive Fines Clause, may apply.

What Happens to Property that is Forfeited?

The United States Marshals Service is responsible for managing and disposing Federally seized and forfeited properties. It currently manages around $1 billion worth of property. The goal of the program is to maximize the net return from seized property by selling at auctions and to the private sector and then using the property and proceeds for law enforcement purposes.

How does the State of Texas seize assets?

Chapter 59, Texas Code of Criminal Procedure, provides the statutory authority whereby a law enforcement agency may seize money, vehicles, real property or any other tangible items and seek to have a court order them forfeited to the State of Texas.

Property that is used in the commission of, intended to be used in the commission of, the proceeds gained from the commission of, or acquired with the proceeds of certain criminal offenses, can be seized and have a forfeiture action taken. A civil lawsuit is filed wherein the State of Texas, acting through the district attorney’s office, alleges that the property is subject to forfeiture and should be forfeited to the State of Texas.  The State has the burden of proof and has to show the judge or the jury that the property was used in the commission of a crime or the proceeds of criminal activity before a forfeiture judgment will be granted.

Forfeited property is transferred to the law enforcement agency that originally seized it and then must be used only for law enforcement purposes.  The district attorney’s office may have local agreements with law enforcement agencies that award a small percentage of the forfeited property to their office, but the majority goes to the seizing agency and must be utilized for law enforcement purposes.

The government may seek criminal forfeiture when the property is used in the commission of a criminal offense or was obtained through criminal activity. For example, the government may seek forfeiture of money or bank accounts if it proves that the money was used in the commission of a crime or is the proceeds of a crime.

Do I need a lawyer to represent me if I am innocent?

Every criminal defendant needs an attorney. Innocent defendants are perhaps in even greater need of zealous representation throughout the criminal process to ensure that their rights are protected.

Do I need a lawyer if I simply intend to plead guilty ?

You may not understand the full implications of the crime with which you are charged. Criminal defense attorneys equalize the balance of power between the defendant and the prosecution and ensure that the constitutional rights that are guaranteed to all criminal defendants are preserved.

Richard Kuniansky has over 28 years experience with drug crime cases and handles them on a regular basis. We have a unique understanding of the government's strategy and will work vigorously on our clients' behalf to defend their interests. Contact Kuniansky & Associates today for committed legal advocacy.

---