Recently by Mark Nestmann: No ‘Right to Silence’ To Avoid Disclosing Information About Offshore Accounts
A mans home may be his castle, but that does not keep the government from taking it.
~ U.S. v. Hendler
More than two centuries ago, when the United States first became a country, customs duties on goods entering through the nations ports were a primary source of revenue. Naturally, shipowners didnt want to pay the duties. But if they didnt pay, customs officials could confiscate their ship and all of its cargo.
Until the mid-1980s, revenues from such civil forfeitures were low. Nearly all civil forfeitures resulted from seizures of vehicles and boats used to smuggle illegal drugs or other contraband across U.S. borders.
That changed in 1984, when Congress enacted a tough anti-drug law with greatly enhanced civil forfeiture provisions. The law permitted state, local, and federal agencies to keep most or even all of the property they confiscate, or sell it to generate revenue. Congress also decreed that the government was entitled not only to the proceeds of a drug trafficking offense, but also to all property derived from, connected to or facilitating drug-related offenses.
Two years later, in 1986, Congress enacted a strict anti-money-laundering law. The act authorized civil forfeiture of all property representing the proceeds of, involved in, or facilitating a specified unlawful activity. The 1986 act, in effect, expands the scope of civil forfeiture from customs and narcotics violations to violations of virtually any criminal or regulatory infraction. Violations of nearly 400 federal laws and tens of thousands of state or local laws are now considered specified unlawful activity.
The legal theory behind civil forfeiture is that property not its owner is guilty of a crime. And, if the government alleges that your property somehow was involved in or facilitated a crime, you can lose it. Because civil forfeiture is a civil procedure, none of the protections that would apply to a criminal proceeding are in place. Your property is presumed guilty. If you cant prove that its innocent, you can lose it. If you dont have $20,000 or so to hire an attorney who specializes in civil forfeiture cases, youre unlikely to ever get it back.
The results of these legal incentives to seize property were predictable. In 2010, the Department of Justices Asset Forfeiture Fund generated more than $2.5 billion in net forfeiture revenues. And that figure doesnt include billions more in civil forfeitures by state and local police authorities.
Consider the plight of James Lieto. He hired an armored car service to transport money for his check-cashing company. Problem is, the FBI raided the armored car service and seized $19 million including $392,000 belonging to Mr. Lieto from vaults owned by its parent company. Basically, his money was in the wrong place at the wrong time. And hes still trying to get it back.
The plague of civil forfeiture is one of the main reasons Ive long recommended that our clients keep a generous portion of their wealth outside the USA. Most countries wont honor U.S. civil forfeiture awards unless theres an accompanying criminal proceeding. Yet, in the vast majority of civil forfeitures, the property owner is never accused of any crime. The civil forfeiture suffered by James Lieto simply wouldnt be enforced in virtually any other country.
Fortunately, if youre a victim of civil forfeiture, or an attorney representing a victim, help is available. The non-profit organization Forfeiture Endangers American Rights (FEAR) has some outstanding resources for forfeiture victims and their attorneys.
- Forfeiture 101 is a Continuing Legal Education course that enables defense attorneys to represent civil forfeiture victims competently. Its an important resource, because most attorneys arent familiar with the arcane legal rules of civil forfeiture.
- FEARs Brief Bank is another unique product. It contains more than 200 motions and briefs that you or attorney can draw from to reclaim seized property.
To order Forfeiture 101 or FEAR Brief Bank, see http://fear.org/ordform.html.
Even if youre not a forfeiture victim, FEARs Web site is a great source of hard-to-find information on civil forfeiture and an effective antidote to the avalanche of pro-forfeiture propaganda on the Internet. To learn more go to http:///www.fear.org.
Reprinted with permission from The Nestmann Group, Ltd.