I. LEGAL DEFINITION
Generally speaking, forfeiture is the taking by the Government – without compensation to the owner – of property that was illegally used or obtained.
PC 186.3 – Under California law, if you are charged and convicted of criminal profiteering activities, the Government can go after the assets you acquired directly or indirectly through those activities. The assets subject to forfeiture include tangible property, such as buildings and vehicles, and intangible property interests, such as life insurance policies and shares of the company.
PC 186.2 – Criminal profiteering activities are defined as two or more acts, attempts, or threats made for financial gain/advantage and that meet the definition of the following crimes: arson, bribery, child pornography/exploitation, assault with a deadly weapon, car theft, computer hacking, embezzlement, extortion, forgery, gambling, grand theft, id theft, insurance fraud, kidnapping, making or selling counterfeit goods, mayhem, money laundering, murder, pandering, pimping, possession/transportation of drugs for sale, receiving stolen property, robbery, securities-laws crimes, unemployment insurance fraud, conspiracy to commit any of the crimes listed above, any of the crimes listed above when committed for the benefit of or in association with a street gang, solicitation of a crime.
HS 11470 – Under the asset forfeiture law that applies specifically to drug-related offenses, the prosecution can forfeit the following property: drugs illegally manufactured, distributed, or acquired, raw materials and equipment used to manufacture the drugs, vehicles (including boats and airplanes) used to manufacture or sell certain amounts of certain drugs, the money/securities/valuables (e.g. jewelry) used or intended to be used in exchange for drugs, and real property used to store or sell drugs.
Generally speaking, a forfeiture proceeding takes place after the owner of the property is convicted (or pleads guilty), and it consists of a civil lawsuit filed by the prosecution against the property seized by the police (e.g. The People of the State of California v. Cadillac Escalade with the license plate “Drg Lrd”). In the forfeiture proceeding, the prosecution has to prove beyond a reasonable doubt:
- That the property was used to commit a crime, or it was acquired gained illegally, and
- That the owner consented to the use of the property with knowledge that it would be used for a crime for which forfeiture is permitted.
In the case of property worth $25,000 or less and seized in connection with a drug-related offense, the property can be forfeited administratively, if the prosecution gives proper notice of the forfeiture action, and nobody files a proper and timely claim.
II. WHAT DOES IT MEAN?
If you commit any of the crimes that typically earn people significant amounts of money (e.g. transportation and sale of a large number of drugs), and you are arrested and convicted of those crimes, the Government can forfeit the property that you acquired with the money you earned by committing those crimes.
An important distinction to make is the one between the words “seizure” and “forfeiture”. Property is seized by the police when you are arrested, and it’s forfeited by the judge after a court proceeding initiated by the prosecution and held after your conviction in the criminal case. When the property is seized, it’s still your property, and it will be returned to you if the case is dismissed unless the property is an illegal item such as drugs. Once the property is forfeited, the judge transfers ownership to the Government, and the Government will sell the assets and keep the proceeds of the sale.
- John runs a sophisticated auto-theft operation in which he and his crew steal luxury cars, disable the tracking systems, load the cars into containers, and the cars are then shipped to Asia and the Middle East. John uses his auto-repair shop as a front and uses the money he earns through the car thefts to purchase a small office building near his business. The police arrest John and seize his auto-repair business and the office building. The District Attorney’s Office file notices of forfeiture for John’s business and the office building under PC 186.3. John files objections to the prosecution’s forfeiture notices. The judge denies the forfeiture of John’s business because John owned and operated the auto-repair shop before starting his “side business”. However, the judge grants the forfeiture of the small office building because John paid for it entirely with the money he was receiving as compensation for the stolen cars.
Forfeiture is an additional penalty that follows the conviction for one or more of the crimes listed in PC 186.2. However, the Government can seek further penalties, especially if you were convicted of drug-related charges. Under HS 11470.1, the Government can recover from you the expenses they incurred in seizing, eradicating, or destroying the controlled substance, or its precursors, or in taking remedial action with respect to a hazardous substance.
There are no immigration consequences associated with losing a forfeiture proceeding. The immigration consequences are attached to the conviction for the crime that triggered the forfeiture proceeding. However, losing a forfeiture proceeding (E.g. losing the property of an income-generating real property and/or being sentenced to pay for the clean-up of a property used to manufacturing methamphetamine) may cause you and/or your spouse to having to file for bankruptcy, which may have consequences on the professional licenses, if any, that you and/your spouse may have.
The defenses in a forfeiture proceeding depend on whether you are a First Party Claimant (I.e., the person convicted for the crime that triggered the forfeiture) or a Third Party (I.e. A party that claims no knowledge of Defendant’s criminal activity).
A First Party Claimant can argue that the property was not obtained with the proceeds of criminal activities, that the forfeiture was not initiated by a prosecutor, that there was an unreasonable delay between the time that property was seized and the time the initiation of the forfeiture proceeding, the Prosecution violated the one-year statute of limitation for filing the forfeiture petition, the police seized the property through an unlawful search and seizure, the police engaged in entrapment or other outrageous conduct.
A third party can challenge the forfeiture action by proving that he/she did not have actual or constructive knowledge of the facts that caused the property subject to forfeiture, or by proving that he/she has a community interest in the vehicle subject to forfeiture, or that the real property subject to forfeiture is being used as a family residence or for another lawful purpose (unless the property was purchased with money earned through the sale of criminal activities).
Asset forfeiture (PC 186 – 186.8 and HS 11469 – 11495) can cause you and your family substantial stress and financial hardship, and that’s on top of the consequences for the conviction you suffered in the criminal case. This is why it is crucial that you immediately contact our attorneys if you are charged, or have concerns that you may be charged, with one of the crimes that may trigger a forfeiture notice. We would immediately contact the assigned investigators and prosecutors to assess if law enforcement has sufficient evidence to even file charges or forfeiture notices, so that we may minimize the risks to your freedom, reputation, and finances. You, or your loved ones, cannot take a chance with such serious crimes and penalties. Our Ontario PC 186 – 186.8 and HS 11469 – 11495 attorneys have successfully defended thousands of people charged with crimes throughout the entire Inland Empire. Call your local Ontario Criminal Defense Attorneys today at the Inland Empire Defense (909) 939-7126. Located in Ontario.