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FORFEITURE OF PROPERTY ASSOCIATED WITH CRIMINAL CONDUCT
Lawyers Practicing in the area of Forfeiture of Property
Introduction
Few areas of criminal law and procedure are more invasive of individual rights than the power of the government to seize assets of innocent property parties without a hearing and minimal due process protections of any kind.
Most people subjected to the nightmare of criminal property forfeiture are shocked to learn that whether or not they have been charged with a crime, state or federal authorities can seize their property without a hearing simply by a non-judicial officer- a police officer with a non-legal agenda for example- labeling it contraband or the so-called "instrumentality" of crime.
More incredibly once property is labeled as connected to criminal activity it can be seized without hearing even if the owner has no idea that it was connected to a crime and, more incredibly, even if the owner is not charged with a crime and is completely innocent of criminal activity.
Although a due process hearing is allowed after a property seizure, the prosecution need only show that there is a probability of a connection to criminal activity (not proof beyond a reasonable doubt as in a criminal trial) at which point the burden of proof shifts to the property owner to show that there is no connection to criminal activity.
Consistent with its characterization as an action against property rather than the person, forfeiture statutes have, as a general rule, made no allowance for the property interests of non-culpable third parties. As a result, unlawfully used property has traditionally been held forfeitable even though the owner had no involvement in the underlying criminal offense. When the owner of the property is also guilty of the underlying offense, forfeiture is said to provide an additional penalty for the criminal conduct by serving "to deprive potential [and actual] criminals of access to useful property, and hence to deter crime", in the language of the reported cases 0n this issue. The forfeiture of property owned by innocent third parties, on the other hand, is frequently justified by its alleged effect in inducing lessors, bailors, or secured creditors to exercise greater care when transferring possession of their property.
This incredibly unjust procedural process- contrary to basic notion of criminal and civil constitutional rights- has given risen to innumerable outrageous cases throughout the country, Connecticut being no exception.
Many of the most notorious cases of forfeiture in the last decades in which we have been involved have included innocent parents- many elderly without resources- who have been exposed to loss of their homes because of children using or selling pot and other drugs while residing on their parents homes without their knowledge.
History of Criminal Forfeiture in State and Federal Criminal Courts
The concept of forfeiture dates back to the biblical and medieval tradition of deodard, where any object that was the instrument of death or physical harm was sacrificed in an attempt to expiate the wrong. The tradition of deodard was continued by the early English common law, which required a chattel used to cause the death of a citizen to be forfeited to the sovereign who was presumed to apply the property for charitable purposes. The deodard was abolished in England in 1846 and rejected early in the development of the common-law tradition of this country.
Although the concept of deodard was never adopted in the United States, forfeitures have for no clear reason enjoyed a long statutory history, so that presently federal and state forfeiture statutes reach virtually any type of property that might be used in the conduct of criminal enterprise. After the enactment of a gambling paraphernalia forfeiture statute in 1805, Connecticut's forfeiture provisions were gradually expanded to include items associated with obscene literature and illegal alcohol until ultimately, with the passage of the present statute in 1963, the forfeiture of any property derived from contraband was allowed. Recognizing the penal nature of the forfeiture provisions, Connecticut and most other states require forfeiture requirements to be strictly construed against the state in favor of the claimant in accordance with the rule of strict statutory construction applicable to criminal statutes (until recently a requirement that has been little respected).
The use of a criminal rule of construction when dealing with a statute purportedly governing a civil property proceeding would suggest a certain confusion in analytic approach. Indeed, the United States Supreme Court has demonstrated considerable ambivalence in determining what constitutional rights are available in forfeiture proceedings.
Although recognizing that the penal character of forfeiture action mandates the application of certain limited constitutional protections, the Court has also relied on the allegedly "in rem" or civil property nature of the procedure to limit the availability of other constitutional safeguards. In the case of Various Items of Personal Property v. United States, for example, the United States Supreme Court refused to apply the fifth amendment protection against double jeopardy to bar a forfeiture action which followed a criminal trial since, in the Court's view, the forfeiture action was a civil proceeding to which the fifth amendment did not apply.
Similarly, the Court has refused to make use of due process protections available in a criminal proceeding to preclude the forfeiture of property owned by innocent third parties. A recent in-depth consideration of this issue is contained in Calero-Toledo v. Pearson Yacht Leasing Co., where it was held that the government's failure to provide pre-seizure notice and hearing to the owners of a yacht, forfeited for its involvement in a drug smuggling scheme, did not violate due process. It should be noted that Pearson has reference only to pre-seizure notice and hearing- the actual formal forfeiture of derivative contraband must, in all cases, be preceded by notice and the opportunity for hearing after seizure has been made. In any event, there is still no clear United States Supreme Court ruling requiring a warrant when the object of search is contraband seized solely for the purpose of forfeiture.
The Connecticut statutes presently provide separate forfeiture procedures for two types of property: gambling paraphernalia, and derivative contraband (defined as property "possessed, controlled or designed for use, or is or has been or intended to be used, with intent to violate or in violation of any of the criminal laws of this state"). Section 54-33g, which governs the disposition of derivative contraband, comports with the minimum federal constitutional requirements in this area. For example, the statute permits forfeiture only for items which have been seized either pursuant to an arrest (with or without warrant) or a duly executed search warrant (thereby eliminating the confusion created by the existing federal constitutional ambiguity on this issue). Provision is also made for prompt post-seizure notice and hearing: within ten days after seizure, upon the state's claim that the seized property is a nuisance, the judge responsible for the warrant must issue a summons describing the reasons for and circumstances of the seizure, and provide notice if a hearing to be held between six and twelve days after service is made. If after the hearing the court is satisfied that the state has carried its burden of proving the property's contraband character by a preponderance of the evidence (not proof beyond a reasonable doubt), it may order the property destroyed, disposed of to a charitable, educational, or governmental agency or institution, or sold at an auction to be conducted by the examiner of seized property; all money or valuable prizes become the property of the state.
The most interesting aspect of Connecticut's statute is the express exemption provided for third parties who possess "a bonafide mortgage, assignment of lease or rent, lien or security interest" in the property seized. Such parties are routinely shielded from forfeiture, apparently without consideration of their complicity in the underlying wrong-doing. While any attempt to exempt innocent third parties from the harshness of forfeiture is certainly commendable there seems little justification for creating an exception for a small group of secured lenders without consideration of guilt, and without providing a similar exception for uncompensated bailors. Uncompensated bailors are for the most part private individuals with limited resources who, in contrast to the lucrative financial position enjoyed by most secured lendors, are in the least favorable position to absorb the unfair consequences of innocent third-party forfeitures.
The forfeiture of gambling devices and other items used in connection with professional gambling is governed by section 53-278 which, by its own language, operates separately from the provisions of section of section 54-33g. In troubling contrast to section 54-33g, gambling devices and derivative material and paraphernalia may be forfeited even though seized without a warrant. Of greater concern, however, is the failure to provide for prompt notice and hearing at which interested parties may contest the forfeiture. Although the statute allows that forfeiture may be precluded upon a showing of "good cause" by the owner, this language is clearly not enough to remedy the federal constitutional deficiencies created by the lack of formal provision for notice and a full due process hearing. As with proceedings relating to the forfeiture of derivative contraband, the rights of any party with a secured or leasehold interest in the forfeited property are strictly protected.
Our Experience and Practical Concerns Regarding Forfeiture Prosecution
The above discussion will be regarded by most readers as academic and boring: let me know speak directly and practically.
Simply said, criminal forfeiture is a frightening experience for any citizen caught in its dangerous web for the simple reason that anyone who owns property with any connection to a criminal act, whether or not innocent of the act itself, is at risk of losing ownership of that property to state or federal law enforcement authorities. This is equally true of family and friends of a criminal defendant who stand to lose essential property such as homes and savings simply because of their association with the criminal defendant.
Once law enforcement authorities designate property as criminally tainted there is little the owner can do pre-seizure; equally distressing is the complicated and minimal procedural protections available after seizure has occurred especially for citizen with no connection to the underlying crime.
Fortunately, there has been some softening in the Court's application of this draconian process, spurred on in recent years by prosecutors and other members of the legal, law enforcement, and political communities who themselves have been exposed to loss of homes and properties even though innocent of criminal conduct.
Our office has had considerable experience in this area of law, including some notorious cases involving innocent parents confronted with seizure of the family homestead because of minimal criminal activity conducted by siblings of which the parent had no knowledge.
Over the years we have developed a sophisticated approach to the handling of these unfortunate prosecutions. Because of the laws and procedures designed to favor government seizure, anyone caught in this poisonous trap requires inventive, experienced, and vigorous legal representation for which we have developed a well-earned reputation by providing dedicated representation for each case we have taken on over the last several decades of practice.
Because of our sympathy for citizens who have been targeted by this process we welcome any calls or inquiries.