Penalties for federal crimes include not only prison and fines . . . the government may also seize the defendants' property through "asset forfeiture." But a skilled Nevada criminal defense lawyer may be able to safeguard the defendants' assets while also getting the criminal charges dismissed.
Continue reading to learn more about "criminal forfeiture" in federal cases. Topics include the definition of asset forfeiture, how it works, and ways to fight it in Nevada.
What is "asset forfeiture" in Nevada federal criminal cases?
Asset forfeiture in Nevada criminal cases is when the government assumes ownership of a defendant's property that has a connection to his/her alleged criminal activity. Henderson NV criminal defense attorney Michael Becker gives an example:
Example: Joey from L.A. drives to Henderson with a kilogram of marijuana in his car. If he is caught, the U.S. Marshals Service could book Joey at the Henderson Detention Center for the federal crime of marijuana trafficking in Nevada. If he is convicted, the government may be able to confiscate Joey's car though asset forfeiture because he used the car to traffic the drugs.
What is the purpose of "asset forfeiture" in Nevada federal criminal cases?
The FBI describes "asset forfeiture" as "taking the profit out of crime." Confiscating a defendant's assets reduces his/her ability to continue carrying out illegal activity. Furthermore, these assets may be liquidated to help pay for damages caused by the defendant's crimes or to pay restitution to victims of the crime.
What types of assets can be forfeited in Nevada federal criminal cases?
There are two categories of assets that are subject to criminal asset forfeiture in Nevada federal cases:
- The proceeds of the alleged crime, such as cash used to purchase drugs.
- The instrumentalities of the alleged crime, such as a car used to traffic drugs.
Forfeitable assets can include any type of property from real estate and vehicles to money, jewelry, and computers.
How does asset forfeiture work in Nevada federal criminal cases?
The asset forfeiture process is extremely fact-specific and complex. And many federal criminal statutes have individual provisions governing how forfeiture operates in particular circumstances. But in general criminal forfeiture in Nevada federal cases operates like this:
When a suspect is charged with a federal crime in Nevada, the prosecution may list in the indictment all the property owned by the defendant that either:
- facilitated the alleged criminal activity, or
- was earned through the alleged criminal activity.
If the defendant is ultimately convicted of the crime, the court would then hold another hearing concerning the property listed in the indictment. If the court determines that these assets were connected to the defendant's criminal activity, then the assets may be forfeited to the government.
When does asset forfeiture occur in Nevada federal criminal cases?
Generally, the U.S Marshals Service is not allowed to seize a defendant's property until after the defendant was convicted and the court ruled that his/her property should be forfeited. But there are exceptions, and they usually occur in cases involving either:
- federal drug crimes in Nevada,
- the federal crime of money laundering in Nevada or
- the federal crime of racketeering in Nevada
In these situations, the Nevada federal court may issue a "seizure warrant" early in the criminal case. This allows the police to take and hold onto assets pending whether the defendant gets convicted. The purpose of this premature seizure is to keep the assets safe and out of the hands of alleged co-conspirators.
What are defenses to asset forfeiture in Nevada federal criminal cases?
There are various ways to fight government claims that a defendant's assets should be forfeited. Among the most common arguments are that the police took the wrong property or too much property. Boulder City criminal defense attorney Neil Shouse provides an illustration:
Example: An undercover agent catches Ben selling drugs on the street in Reno. Ben is then booked at the Washoe County Detention Center for the federal crime of drug trafficking in Nevada. Authorities also seize Ben's biggest asset, a boat that he keeps on Lake Tahoe. As long as the defense attorney can show that Ben did not use the boat to sell drugs, or that he did not buy the boat with drug money, then chances are good that the boat will not be forfeited.
Another effective defense to criminal forfeiture is that the police failed to follow proper search warrant procedures when taking the property. If the court finds that law enforcement behaved unconstitutionally when seizing a defendant's assets, then the court may order the police to relinquish the property back to the defendant.
What if assets forfeited in a Nevada federal criminal case do not belong to the defendant?
Nevada federal court may hold an "ancillary hearing" for third parties claiming to own the forfeited property. If the court finds that the property was wrongly forfeited, it will be released back to the third parties.
What is "civil" asset forfeiture in Nevada federal cases?
Civil forfeiture is another avenue by which government can try to have someone's assets forfeited. But unlike criminal forfeiture, in civil forfeiture, the government is simply suing the defendant for the property and not charging him/her with a crime.
Note that the U.S. Attorney's Office may slap someone with both criminal charges and a civil forfeiture lawsuit. The reason they may choose to do this is that civil forfeiture cases are easier for the government to win than criminal forfeiture cases. Whereas the burden of proof in criminal cases is "beyond a reasonable doubt," the burden in civil cases is only "preponderance of the evidence."
Where do assets go if they are forfeited in Nevada federal criminal cases?
Can asset forfeiture occur in Nevada state criminal cases?
Yes, and the rules are generally similar. Learn more in our article on Nevada asset forfeiture laws.
Arrested? Call . . .
If your property is at risk of being seized through "asset forfeiture" in Nevada, call our Nevada federal criminal defense attorneys at 702-DEFENSE (702-333-3673) for a free consultation. We may be able to get the charges reduced or thrown out so your record remains clean and you keep your assets.
For information on California asset forfeiture laws, go to our article on California asset forfeiture laws.