(US law) A federal judge in Massachusetts made a landmark ruling that the asset forfeiture attorneys at Parkman & White, LLC were glad to hear about. Federal prosecutors had sought to seize a motel in Tewksbury, Massachusetts, based on alleged criminal drug activity taking place on the property. The problem was, the owners of the property not only did not participate in the criminal activity, they didn’t even know crimes were being committed. Police never even contacted the owners to warn them of the suspected drug transactions. That didn’t matter, alleged federal prosecutors, who sought to take the property anyway. Fortunately, the judge disagreed.
In federal criminal cases, the United States Department of Justice often seeks forfeiture of the proceeds of any crime, or of property used in the commission of a crime. There are two basic kinds of asset forfeiture proceedings: 1. Criminal asset forfeiture cases, and 2. Civil asset forfeiture proceedings.
If an indicted defendant is alleged to have used his property during the commission of a criminal offense, the law provides for criminal forfeiture. That is, the prosecution can forfeit the defendant’s right to the property in question if they show they used it for criminal activity. This forfeiture action is typically included in the criminal indictment, and allows the jury to make a ruling on whether to forfeit the property to the government. This procedure is well known to the public, and is hard to argue against.
What most people don’t realize is the civil procedure for an asset forfeiture, like that used in the case in Massachusetts. Like in the Tewksbury case, what happens when the property the government has its eye on is not own by the criminal perpetrators?
That’s when prosecutors utilize the civil asset forfeiture action. Instead of including a criminal forfeiture count in the indictment, federal prosecutors file a separate civil case against the property in question. They then send notice to all who claim an interest in the property, and seek to gain possession of the property through the civil action.
Historically, these civil actions were intended to be limited to situations where the owner of the property was not involved in the criminal conduct, but was aware (or should have been aware) their property was being used to further criminal activity. A common example would be the forfeiture of a vehicle that is used to transport drugs which is titled to the defendant’s parent. If the defendant has prior drug sale convictions, has no job, yet is caught driving his parents car with drugs and cash, the prosecutors will say the parents were on notice that the vehicle was being used for illegal activity.
Now, it seems prosecutors are trying to stretch this theory to innocent property owners who have absolutely no participation in or knowledge of any criminal activity. In the Massachusetts case, the prosecution argued that numerous drug arrests over the years gave the owners notice that the motel was being used to facilitate drug activity. However, the asset forfeiture attorneys successfully argued that there was no way for the motel owner to know which patrons were involved in drug activity and which were not. It would be impractical for a motel owner to completely prevent guests from abusing drugs on the property.
Thankfully, a common sense judge rejected this government infringement on private property rights and found that there must be some actual knowledge of criminal activity for a third party to be forced to forfeit any asset. At Parkman & White, we hope this will discourage future abuse of the asset forfeiture procedure by the authorities.