Forfeiture is a penalty used to take the profit out of crime. It is also big business for the government. However in January of 2015, Attorney General Eric Holder announced that he would not allow local and state police to continue to seize cash and other property without criminal charges or warrants.
In the state of Nebraska, one of the most common forfeiture cases is an interstate drug stop where no drugs are found during the search, but large amounts of cash suspected to be the proceeds of drug activities are located. The government has three different forfeiture options that may be used to take the money.
Types of Forfeiture
- Administrative Forfeiture: This involves a government agency which is usually Customs or the DEA. No judge or prosecutor is involved.
- Civil Forfeiture: This is an action against the "guilty" property. The claimant must file a claim and the case will proceed as a typical civil case including depositions, interrogatories, motions and a trial.
- Criminal Forfeiture: These cases are prosecuted under 21 U.S.C. 853 and 18 U.S.C. 982 in federal court. The property is usually proceeds of a crime or instrumentalities of the crime. In some cases when police stop a vehicle on the interstate with large amounts of cash, the government may seek to forfeit the cash as the proceeds of the crime and the car as an instrumentality of the crime.
Often in interstate cash seizure cases in Omaha, Nebraska, no state criminal charges are filed and the money is pursued though administrative and civil forfeiture proceedings. However, additional criminal charges may be filed if federal prosecutors believe they can prove a drug conspiracy or money laundering.
Interstate cash seizures in Lincoln, Seward, York, and other cities in Nebraska are sometimes treated differently than in Omaha. Often these cases are pursued criminally under Nebraska state law and charged as felonies. The prosecution's theory in these cases is that the cash is the proceeds of drug activities. Possession of "drug money" violates of Nebraska Revised Statute 28-416 and carries a potential sentence of up to five years in prison.
Other cases where the government regularly seeks asset forfeiture is in white collar crime. In fraud cases it is not uncommon for the prosecutor to seek both restitution and forfeiture of assets. While restitution focuses on the losses suffered by the victim, forfeiture focuses on the net profit by the defendant from illegal activities.
Often a criminal defense lawyer must not only protect his client from jail time, but also protect his client's assets. It is not clear what effect Holder's statement will have on local law enforcement. On one hand this could mean less forfeiture cases. It could also mean more arrests and criminal charges for driving on the interstate with large amounts of cash.