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Asset Forfeiture: Civil Practice for Criminal Defense Attorneys

Mon, 07/23/2018 - 09:54 -- admin25

by H. Alex Fuller

Civil asset forfeiture is the process by which the State seizes and sells assets that were used to commit an offense or are the proceeds of criminal activity. Originally intended to prevent drug kingpins from keeping their ill-gotten gains, the scope of civil asset forfeiture has grown to include seizures of cars, homes and other property “used” by persons to commit drug possession and other low-level offenses. Often, the State obtains the property by default judgment because the people from whom it is seized cannot afford to fight the forfeiture. Even when a client can afford to fight, many criminal defense attorneys are reluctant to engage in this hybrid civil/criminal forfeiture litigation. However, use of the right tactics can result in great benefits for the client.

When the police believe property was used to commit a crime or is the proceeds of a crime, they may seize the property after obtaining a warrant, incident to a lawful arrest or search, or with the consent of the owner. The District Attorney’s office must commence the forfeiture proceeding within 30 days of the date of the seizure. The forfeiture case is an in rem proceeding against the property itself—and not the possessor or owner, although the State must serve the owner and any interest holder in the property with citation and a copy of the Notice of Forfeiture. The case then proceeds like any other civil case, is subject to the Rules of Civil Procedure, and is determined at a hearing where the State must prove by a preponderance of the evidence that the item is contraband, i.e., that it is the proceeds of illegal activity, was purchased with those proceeds, or was used or intended to be used in the commission of certain enumerated offenses. No conviction in the underlying civil case is required, and the forfeiture case can, and often does, proceed before the owner is formally charged or indicted, and even when the charges are never formally brought or dropped.

The State’s goal is to seize valuable property quickly. Law enforcement agencies and District Attorney’s offices thus focus on large amounts of cash, lien-free vehicles, and other intrinsically valuable property. The State may also take a chance on forfeiting less valuable property hoping to get a default judgment. However, when the defense files an answer the State often has a difficult time proving its case. In drug cases, it can take six months or more to get lab results back to prove that suspected narcotics are, in fact, controlled substances; during that time the State has no evidence to prove its case. In cases where witness testimony is necessary to prove the case, the State will have to make its police officers or complaining witness available to testify at deposition—which the prosecutors will not want to do.

Thus, when it is warranted, a criminal defense attorney can use the civil discovery process to investigate their defenses and the State’s positions in the criminal matter through the use of written discovery, depositions and summary judgment motions. Often, State asset forfeiture attorneys are younger, less-experienced criminal attorneys who are overworked—and thus incentivized to nonsuit or settle labor-intensive cases. Most contested cases do ultimately settle, and the property or the proceeds from its sale are split between the State and the former owner—often to the client’s benefit, as the client’s share can pay his or her attorney’s fees in a criminal case.

The State’s focus on valuable property often leads to overreach, such as seeking to forfeit cars for possession of personal-use amounts of narcotics. Although simple possession of narcotics in a car can be grounds for forfeiture, it is still, arguably, subject to the Eighth Amendment’s Excessive Fines Clause and must be “proportional” to the underlying offense. Thus, the State cannot forfeit a defendant’s vehicle simply because he has a small amount of cocaine inside it. Proportionality depends on factors including the nature of the offense, its relationship to other offenses, the maximum fine permitted by statute, and the harm caused by the offense. Although the Supreme Court has not formally incorporated the Excessive Fines clause against the States, at least one Texas Court has applied it to bar a disproportionate forfeiture. Moreover, the Supreme Court has recently agreed to hear a case that will likely decide whether to enforce the Excessive Fines clause against the states—so be on the lookout for the Court’s opinion in Timbs v. Indiana for the latest in constitutional forfeiture law.

Alex Fuller is a criminal defense attorney and civil litigator practicing primarily in Collin and Dallas Counties. He can be reached at

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