The government may seize property that is used in the commission of a crime, or was used to facilitate a crime.  For example, if a house is used as a drug house, the government can, literally, take the house from the owner.  The process by which the government obtains such property is called forfeiture. 

In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property, the burden of proof is on the government to establish, by a preponderance of the evidence that the property is subject to forfeiture. If the government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the government must establish that there was a substantial connection between the property and the offense.

The government must prove the connection between the property to be forfeited and the illegal activity by a preponderance of the evidence, rather than to prove merely probable cause to believe there is a connection. Owners are entitled to court hearings before the government may seize allegedly tainted property.

In addition, there is a powerful defense to a government forfeiture action called the “innocent owner” defense.  An innocent owner’s interest in property cannot be forfeited under any civil forfeiture statute.  A party claiming to be an innocent owner has the burden of proving that the he is an innocent owner by a preponderance of the evidence.  The term “innocent owner” means a person who, at the time that person acquired the interest in the property was a bona fide purchaser or seller for value and did not know and was reasonably without cause to believe that the property was subject to forfeiture.  Furthermore, an innocent owner is one who either lacks knowledge of the illicit activities giving rise to the forfeiture, or who has knowledge of the activity but has evinced his lack of consent by affirmatively attempting to stop it.

The government overreaches in civil forfeiture cases with surprising frequency.  A couple years ago, the FBI seized over $200,000.00 from my clients. The government alleged that my clients were involved in an international fraud ring.  My clients were never charged criminally.  During discovery, I pored over thousands of pages of documents and could not find a hint of any wrongdoing on the part of my clients.  Finally, I took the deposition of the FBI Special Agent who led the investigation and recommended the seizure of the funds.  During six hours of questioning, I got the agent to admit that none of the money seized from my clients was proceeds of criminal activity!  I was stunned.  And so were the United States Attorneys representing the government.  Shortly after that, we were able to settle the case and the government gave nearly all of the money back to my clients.  

— Kassem Dakhlallah is a partner with Jaafar & Mahdi Law Group, P.C.  His practice focuses on complex litigation including class actions, representative actions, commercial litigation, civil forfeiture and personal injury. He can be reached at 313. 846.6400 and kassem@jaafarandmahdi.com.