Federal Asset Forfeiture Defense in Miami

Attorney Dennis Gonzalez has litigated and handled asset forfeiture matters in both Florida state court and federal court. He is a former Miami-Dade prosecutor who has been defending people since 2012. Our office answers 24 hours a day.

For the big picture, including Florida forfeiture, see our Asset Forfeiture page.

Three Federal Tracks

1. Administrative forfeiture, handled by the seizing agency on paper. Many seizures start here.
2. Judicial civil forfeiture, a lawsuit in federal district court against the property itself, brought under statutes such as 18 U.S.C. § 981, with the general rules in 18 U.S.C. § 983.
3. Criminal forfeiture, ordered as part of the sentence after a conviction, under statutes such as 18 U.S.C. § 982 and 21 U.S.C. § 853, and Federal Rule of Criminal Procedure 32.2.

A case can move from one track to another, or run on two at once.

What Federal Law Can Reach

Federal civil forfeiture law reaches a wide range of property, including:

• Property involved in a transaction or attempted transaction in violation of the federal money laundering statutes (18 U.S.C. §§ 1956 and 1957) or the unlicensed money transmitting statute (18 U.S.C. § 1960), or traceable to that property. See Money Laundering and Unlicensed Money Transmitting.
• Property that constitutes or is derived from proceeds traceable to a long list of federal offenses, including bank fraud, identity fraud, computer fraud, and any offense defined as "specified unlawful activity" in the money laundering statute, or a conspiracy to commit one.

In criminal cases:

• A person convicted of federal money laundering or unlicensed money transmitting must be ordered to forfeit property involved in the offense, or traceable to it.
• A person convicted of a federal health care offense must be ordered to forfeit property that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the offense. See Healthcare Fraud.
• A person convicted of a federal drug felony must forfeit proceeds of the violation and property used, or intended to be used, in any manner or part, to commit or facilitate it. See Drug Trafficking.

Track 1: Administrative Forfeiture and the Claim Deadline

The government's notice deadline. In a nonjudicial (administrative) civil forfeiture, the government generally must send written notice to interested parties as soon as practicable, and in no case more than 60 days after the date of the seizure. When state or local police seize the property and turn it over to a federal agency for forfeiture under federal law, notice must be sent not more than 90 days after the date of seizure by the state or local agency. These periods can be extended in limited circumstances, by a supervisory official (up to 30 days) or by a court.

If the government does not send notice as required and no extension is granted, it must return the property to the person it was seized from, without prejudice to starting a forfeiture case later (contraband and property the person may not legally possess are excepted).

Your claim deadline. This is the deadline that matters most:

• A claim may be filed no later than the deadline set forth in the personal notice letter, and that deadline may be not earlier than 35 days after the date the letter is mailed.
• If the letter is not received, a claim may be filed no later than 30 days after the date of final publication of notice of seizure.

What the claim must do. It must identify the specific property being claimed, state the claimant's interest in it, and be made under oath, subject to penalty of perjury. It need not be in any particular form, and no bond is required to file it.

What happens next. Filing a timely claim forces the government's hand. Not later than 90 days after a claim has been filed, the government must file a forfeiture complaint in court or return the property, unless a court extends the time for good cause shown or upon agreement of the parties. If the government does neither (and has not obtained an indictment with a forfeiture allegation and taken steps to preserve custody under the criminal forfeiture statute), it must promptly release the property and may not take further action to civilly forfeit it in connection with the underlying offense.

If you never got notice. A person entitled to written notice who did not receive it may move to set aside a declaration of forfeiture, and the motion must be granted if the government knew, or reasonably should have known, of the person's interest and failed to take reasonable steps to give notice, and the person did not know or have reason to know of the seizure in time to file a timely claim. That motion may be filed not later than 5 years after the date of final publication of notice of seizure. It is the exclusive remedy for setting aside a declaration of forfeiture under a civil forfeiture statute. It is a narrow door; do not plan on it.

Track 2: Judicial Civil Forfeiture in Federal Court

Once the government files a civil forfeiture complaint, the case is governed by 18 U.S.C. § 983 and Rule G of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions.

The claim in court.

• Under the statute, a claim may be filed not later than 30 days after the date of service of the government's complaint or, as applicable, not later than 30 days after the date of final publication of notice of the filing of the complaint.
• Under Rule G, unless the court for good cause sets a different time, the claim must be filed by the time stated in a direct notice; or, if notice was published but direct notice was not sent to the claimant or the claimant's attorney, no later than 30 days after final publication of newspaper notice or no later than 60 days after the first day of publication on an official internet government forfeiture site. Rule G sets other deadlines when there was neither published notice nor direct notice.
• Under Rule G, the claim must identify the specific property, identify the claimant and state the claimant's interest, be signed under penalty of perjury, and be served on the government attorney named in the notice.

The answer. The two sources give different numbers, and both are in force. The statute, 18 U.S.C. § 983(a)(4)(B), says a claimant "shall file an answer to the Government’s complaint for forfeiture not later than 20 days after the date of the filing of the claim." Supplemental Rule G(5)(b) says: "A claimant must serve and file an answer to the complaint or a motion under Rule 12 within 21 days after filing the claim." This page does not say which one controls in a given case. We calendar the earlier date: 20 days after the claim is filed.

The government's burden. In a civil forfeiture case:

• The government has the burden to establish, by a preponderance of the evidence, that the property is subject to forfeiture.
• The government may use evidence gathered after the complaint was filed.
• If the government's theory is that the property was used to commit or facilitate a crime, or was involved in one, it must establish a substantial connection between the property and the offense.

Getting property back while the case is pending (hardship release). A claimant is entitled to immediate release of seized property if the claimant has a possessory interest, has sufficient ties to the community, continued government possession will cause substantial hardship (such as preventing a business from functioning, preventing someone from working, or leaving someone homeless), and that hardship outweighs the risk the property will be destroyed, damaged, lost, concealed, or transferred. The request goes first to the appropriate official; if the property is not released within 15 days after the request, the claimant may petition the district court, which must decide not later than 30 days after the date of the filing unless extended. This hardship release does not apply to contraband, currency, other monetary instruments, or electronic funds unless they are the assets of a legitimate business, or to property to be used as evidence, property particularly suited for illegal use, or property likely to be used to commit more crimes.

Proportionality. A claimant may ask the court to decide whether the forfeiture was constitutionally excessive. The court compares the forfeiture to the gravity of the offense; the claimant must show by a preponderance of the evidence that it is grossly disproportional, and if so the court must reduce or eliminate it as needed to avoid violating the Excessive Fines Clause of the Eighth Amendment.

Counsel for a home. If a person with standing is financially unable to obtain counsel and the property is real property used as the person's primary residence, the court, at the person's request, must ensure the person is represented by an attorney for the Legal Services Corporation.

Truthful claims only. If the government wins and the court finds a claimant's assertion of an interest was frivolous, the court may impose a civil fine of 10 percent of the value of the forfeited property, but not less than $250 or more than $5,000.

The Federal Innocent Owner Defense

An innocent owner's interest in property may not be forfeited under any civil forfeiture statute, but the claimant has the burden of proving innocent ownership by a preponderance of the evidence. (Compare Florida, where the agency carries the burden on what the owner knew; see Florida Asset Forfeiture.)

• If you owned it when the illegal conduct happened, you are an innocent owner if you did not know of the conduct giving rise to the forfeiture, or, upon learning of it, did all that reasonably could be expected under the circumstances to terminate that use. Ways to show that may include timely notice to law enforcement and revoking, or trying in good faith to revoke, permission to use the property. You are not required to take steps you reasonably believe would put someone (other than the wrongdoer) in physical danger.
• If you acquired it after the conduct, you are an innocent owner if, at the time you acquired it, you were a bona fide purchaser or seller for value and did not know and were reasonably without cause to believe the property was subject to forfeiture. A narrow exception covers a claimant who gave nothing of value for a primary residence acquired through marriage, divorce, or legal separation, or through inheritance or probate as the spouse or legal dependent of the person who died, if other conditions are met; it is limited to the value needed for reasonable shelter in the community.
• Who counts as an "owner." The term includes a person with an ownership interest in the specific property, including a leasehold, lien, mortgage, recorded security interest, or valid assignment. It does not include a person with only a general unsecured claim, certain bailees, or a nominee who exercises no dominion or control over the property.
• No one may claim an ownership interest in contraband or other property that it is illegal to possess.

Track 3: Criminal Forfeiture

Notice in the charging document. A court may not enter a judgment of forfeiture in a criminal case unless the indictment or information gives the defendant notice that the government will seek forfeiture as part of the sentence. The indictment need not identify the property or the amount of any money judgment.

Freezing property before trial. In drug cases, and in other cases that borrow the same procedure, the court may, on the government's application, enter a restraining order or injunction, require a performance bond, or take other action to preserve property for forfeiture, including after an indictment or information is filed and, in some circumstances after notice and a hearing, even before.

After a guilty verdict or plea. As soon as practical, the court must determine what property is subject to forfeiture. If the government seeks specific property, the court must determine whether the government has established the requisite nexus between the property and the offense. If the government seeks a personal money judgment, the court must determine the amount. If forfeiture is contested, on either party's request the court must hold a hearing.

A jury can decide. In a jury trial where the indictment says the government is seeking forfeiture, the court must determine, before the jury begins deliberating, whether either party requests that the jury be retained to decide the forfeitability of specific property if it returns a guilty verdict.

Substitute property. If forfeitable property, because of the defendant's act or omission, cannot be located, was transferred to a third party, was placed beyond the court's reach, was substantially diminished in value, or was commingled so it cannot be divided without difficulty, the court must order forfeiture of other property of the defendant, up to that value.

When it becomes final. The preliminary order becomes final as to the defendant at sentencing (or earlier, if the defendant consents). If the order covers specific property, it stays preliminary as to third parties until the ancillary proceeding on their claims ends.

Third parties (family members, business partners, lenders). After an order of forfeiture, the government must publish notice. The statute says it may also send direct written notice; Rule 32.2 says it must send notice to any person who reasonably appears to be a potential claimant with standing to contest the forfeiture. A person other than the defendant asserting a legal interest may petition the court for a hearing within thirty days of the final publication of notice or receipt of notice, whichever is earlier. The petition must be signed under penalty of perjury. The hearing is before the judge alone, without a jury. The petitioner must prove by a preponderance of the evidence either a legal interest that was vested in the petitioner, or superior to the defendant's, at the time of the acts giving rise to forfeiture, or that the petitioner is a bona fide purchaser for value who was reasonably without cause to believe the property was subject to forfeiture.

Plea agreements. In federal court, forfeiture is very often negotiated as part of a plea. What you agree to forfeit, whether a money judgment is involved, and what third parties keep should be settled before you sign.

Remission and Mitigation Petitions (28 C.F.R. Part 9)

A remission or mitigation petition asks the government, not a judge, for relief.

• Who decides: in administrative forfeitures, the seizing agency (for example, forfeiture counsel at the DEA or the FBI). In civil and criminal judicial forfeitures, the petition is addressed to the Attorney General.
• Timing: the notice of seizure must advise interested persons to submit petitions within 30 days of the date they receive the notice in order to facilitate processing. In administrative cases, petitions are considered any time after notice until the property has been forfeited (with an exception for petitions to restore sale proceeds).
• What it must contain: the petitioner's identifying information, the agency, the asset identifier number, the date and place of seizure, a complete description of the property, and the petitioner's interest supported by documents. In administrative cases, that documentation includes evidence establishing the source of funds for seized currency. Facts must be supported by a declaration under penalty of perjury.
• Remission: may not be granted unless the petitioner has a valid, good faith, and legally cognizable interest as owner or lienholder and is an innocent owner within the meaning of 18 U.S.C. § 983(d)(2)(A) or (d)(3)(A).
• Mitigation: may be granted to a party not involved in the offense who does not meet the conditions for remission, to avoid extreme hardship, with monetary or other conditions in place of a complete forfeiture.
• The key limit: the ruling official presumes a valid forfeiture and does not consider whether the evidence is sufficient to support the forfeiture. A petition is a request for mercy. It does not make the government prove its case. If you want a judge to decide whether the government can keep your property, you need a timely claim, not just a petition.

How the Federal Criminal Case and the Forfeiture Interact

• A claim in a federal forfeiture case is made under oath or signed under penalty of perjury. What you say in a claim or an answer can be used in a criminal case.
• The government may include a forfeiture allegation in a criminal indictment instead of, or in addition to, filing a civil complaint. If criminal forfeiture is the only proceeding, the government's right to keep the property is governed by the criminal forfeiture statute.
• If the seizure came from an illegal stop or search, that issue may matter in both cases. See Motions to Suppress.
• Frozen accounts can affect bond and the ability to pay for a defense. See Bond & Nebbia Hearings.
• Forfeiture comes up constantly in White Collar, Healthcare Fraud, Money Laundering, Unlicensed Money Transmitting, and Drug Trafficking cases.

What to Do If Federal Agents Seized Your Property

1. Keep the envelope and the letter. The personal notice letter sets the claim deadline. Note the date you received it.
2. Do not ignore an online notice. Publication can start a deadline even if you never got a letter.
3. Do not file a sworn claim or petition on your own without advice; it is made under penalty of perjury and can be used against you.
4. Gather proof of ownership and the source of the money or property.
5. Call us right away.

Why Choose Dennis Gonzalez Law, P.A.

• Forfeiture experience in both courts. Attorney Dennis Gonzalez has litigated and handled asset forfeiture matters in both Florida state court and federal court.
• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

Frequently Asked Questions

How long do I have to file a claim after a federal seizure?

In an administrative forfeiture, until the deadline in your personal notice letter, which may not be earlier than 35 days after the letter was mailed. If you did not receive the letter, no later than 30 days after the date of final publication of notice of seizure. Call as soon as you get any notice.

Is a petition for remission the same as a claim?

No. A petition asks the agency for relief, and the official presumes the forfeiture is valid. A claim makes the government go to court and prove its case.

Who has to prove what in federal civil forfeiture?

The government must prove by a preponderance of the evidence that the property is subject to forfeiture. If you raise the innocent owner defense, you must prove it by a preponderance of the evidence.

Can I get my car or business property back while the case is pending?

Possibly, through a hardship release request, if you meet the statute's conditions. That remedy does not apply to cash or other monetary instruments unless they are the assets of a legitimate business.

My relative was convicted and the court ordered forfeiture of property I own. What can I do?

A person other than the defendant may petition the court within thirty days of the final publication of notice or receipt of notice, whichever is earlier. Do not wait.

How fast can you help?

Our office answers 24 hours a day. Call (305) 209-0384.