(c) 2017 Brenda Grantland.com
It is terrifying when police seize your property and you have to fight to get it back.
They may be trying to take your home. At least you’ll get to use it while the case is pending.
Maybe they took your car. They usually get to hold onto cars pending trial. The federal statute allows you to ask the judge to release your car pending trial if you can show substantial hardship, but those motions are not always granted.
They may have taken your bank account, crippling your finances and your ability to hire a lawyer to defend your forfeiture case.
Unfortunately, those things may only be part of the nasty fallout from a forfeiture case.
You may have separate criminal charges brought against you, and even if you are not arrested initially, you may be later. The statute of limitations is generally five years on federal crimes, so you may be sweating bullets for years. After a few years of no charges the chances that charges will be brought dwindle, but you won’t be completely rid of them until the statute of limitations runs. Every time you see a police car coming down your street your heart will skip a beat.
To compound your problems the IRS may audit you, especially if it is a financial crime. Make sure your tax returns are filed and your taxes are paid – even if you have to borrow money to do that.
There are also some other commonly seen, horrific, side-effects of forfeiture cases:
Friends and co-workers may shun you
When the government files a forfeiture case against your property, many people assume you must have done something wrong or the government wouldn’t have gone after your property.
Unfortunately, the general public is blissfully ignorant of the wide reach of asset forfeiture laws and their ability to target totally innocent people for someone else’s crime. They are blissfully ignorant because they want to believe they could never be a target. So if they hear you were targeted they may assume you did something illegal so they can continue believing it won’t happen to them.
The reality is that forfeiture laws were designed to help police forfeit property more easily by taking away due process from property owners. Law enforcement has a very powerful lobby. They usually get what they want from the legislatures, especially when there is no organized opposition. Law enforcement wrote most of the forfeiture laws, with little input from defense counsel – because defense counsel cannot afford to lobby. Law enforcement sends paid employees to lobby for new forfeiture laws and oppose any reforms that benefit citizens.
The diabolical designers of these laws built it into the law that property owners do not have to be involved in the crime to have their property seized and forfeited. Civil forfeiture is an in rem proceeding — against the property itself — and the issue is whether the property is guilty. The government does not have to prove that the owner did anything wrong. The Supreme Court has held that the Constitution does not protect truly innocent owners from forfeiture. Whatever rights innocent owners have depend entirely on what the statutes create, the Supreme Court said.
You, or another affected family member may lose your job over it
When breadwinners miss work because they are in jail, their employer may fire them. That is understandable, but sometimes the forfeiture victim-employee did not get arrested, but they lost a job or were threatened with loss of the job — anyway, because of innuendos and assumptions arising from the forfeiture case.
Sometimes police go to your employer and ask questions in such a way as to imply guilt. Imagine if they interrogated your boss or co-worker the way they interrogate suspects on television, trying to elicit a certain answer by asking a loaded question that suggests the answer. Example: Did you have any indication that he/she was selling drugs at work? That implies that you were selling drugs elsewhere. Maybe you were not selling drugs anywhere, but when the police ask it that way it suggests that they know you were selling drugs. A person who is susceptible to suggestion may falsely volunteer their damaging suspicions that aren’t even true. You see how unfair this is?
This is really police misconduct, in my opinion, but most people feel too intimidated to complain or only suspect that is what happened because their co-worker won’t tell them.
Why do people believe the police over a person they have known and worked with for years? It’s human nature. Some people naturally assume the police would never lie because they were brought up to believe the police are honest. But it is part of the cop’s job to lie. Lying to suspects is an approved interrogation method. Unscrupulous cops sometimes apply those techniques to co-workers and other witnesses to get damaging accusations against forfeiture victims to build their forfeiture case.
If you get fired or threatened with firing because you were arrested or because of something the police said to them, ask for a conference with your boss and find out what the police told them. Ask your coworkers too. They may not say that the police told them you were selling drugs etc., because they didn’t actually tell them that, they just suggested it in their loaded questions. So ask them what the police asked them, and how they asked the questions. If you get the feeling that the employer now believes something false about you, find out what it is. Calmly tell your employer or co-worker that it is a common police tactic to ask loaded questions that suggest criminal conduct even when they have no evidence of it. That is how they get people to confess or give information about others. If you calmly discuss this with your boss and calmly get them to admit that the police poisoned their opinion of you, then you have the opportunity to undo the damage. Your employer has known you for X years and has worked closely with you every day. Ask them, “do you really believe I would do such a thing? What have I ever done which would make you believe that?” Remind them of how your patterns of behavior in the past are completely inconsistent with what the police are suggesting you did.
You may be able to talk them into giving you your job back.
When either of these things happens what do you do about it?
1. Stand up for yourself and refuse to be shamed
Maybe your husband or child was arrested and that triggered the forfeiture. That doesn’t mean you did anything wrong. Don’t let them shame you. They cannot take away your dignity and self-esteem unless you let them.
Stand up straight, look them in the eye and tell them that you did nothing wrong, and they shouldn’t blame you. This is what people expect an innocent person to do. Defend yourself! Isolating yourself from their prying eyes makes you look guilty to them.
Whether or not you have pending charges you should not talk about the details of your case with anyone other than your attorney – not even a family member. If anyone asks for details, tell them your attorney has advised you not to give any details. But you can still respond to the questions in a way that difuses unwarranted suspicions. Get your attorney to help prepare a statement you can recite to family and acquaintances. For example: “I’m not allowed to talk about my case to anyone, but I can just tell you that I plan to fight back. I have confidence in my attorney, and I believe I will win.” If you can honestly say you were not guilty it may be okay to tell people that you plan to rigorously defend your innocence – but ask your attorney first.
How you act around people who may be called as witnesses could well determine whether they will be witnesses for you or against you. Don’t skulk around and avoid people who were your friends just because they are asking about your case. Be especially careful what you say to your friends, because if you are used to confiding in them, you may forget and tell them something confidential. Remember you can’t talk to even your own witnesses about the facts of your case. If they are called as witnesses they can’t refuse to tell what you told them because the Fifth Amendment doesn’t allow someone to assert the privilege against self-incrimination to avoid incriminating another person. (That’s why it’s called “self-incrimination.”
2. Refuse to be paralyzed by it
Sometimes forfeiture victims are so stressed out that they are paralyzed and can’t think straight. You have to do whatever it requires to get over that. Try meditation, yoga, exercise, listening to music, self-hypnosis, burying yourself in work, etc. — whatever works to get your mind off it for a while until you gather your composure.
You can’t afford to be falling apart when everything you worked for all your life is at stake. Get to work!
You will need to summon your inner strength and give your undivided attention to putting together your case with (or for) your lawyer.
3. Gather and organize your records
Find out what the elements of the forfeiture statute and your defenses are, and then brainstorm about what evidence you need to gather to prove those things. Make lists of witnesses and evidence you will need and add to it as you think of new things.
If the case is based on allegations of financial crimes like fraud, money laundering, or allegations that proceeds of crime went into your property, immediately order bank statements and copies of cancelled checks covering the period. Do that right away because banks destroy those items after a certain number of years and you won’t be able to get them after that.
Also order credit card statements. Those are often full of evidence of where you were on a particular date. Order cellphone records. Those may also show where you were on a particular date, but they will also show who you talked to and when. Find your calendars. Find your receipts for the things they are trying to forfeit, and contracts showing how you paid for the property. Get your tax returns for all the relevant years and maybe the years proceeding that if they show where you got money that you later invested in the property.
If you corresponded with any potential witnesses in the case by letter or email, gather all of those letters and emails and save those to folders too. See if you can get your text messages from your cellphone provider if there may be relevant texts there.
Some of these things may not be necessary in your particular case. I just wanted to give you an idea of the wide range of places where you leave trails of evidence behind – including defense evidence that the government will not have unless you give it to them. Go over these suggestions with your lawyer and they may be able to limit the amount of work you have to do.
Organize all of this into folders or a notebook as you find them – or scan them in and put them in folders on your computer. If you scan them in, name the files for the type of record and the date, for example: BoA2015-June for your Bank of America statement for June 2015. I recommend renaming the files with this format YYMMDD-subject (where “subject” is the source of the record, such as BoA, Visa, Phonebill, etc.)
Once you’ve organized them this way you’ll easily be able to see what is missing and you can order them before the records are destroyed. If you double click the top of the list of filenames for that directory it will automatically sort chronologically.
As you put those together, draw up a timeline of important events in your case, in a Word document on your computer. Use your records to determine the exact date things happened and put a reference to those records/files in your timeline. For example you might note [150601-BoA] for your Bank of America statement for June 1, 2015.
Add the events alleged in the Complaint or Indictment to your timeline and put references to those documents as well, again with the date first in the reference and file name.
Compiling a timeline this way will allow you to see that the complaint or indictment has the wrong date for an event, or that the alleged crime occurred after you bought the property, so it couldn’t be purchased with proceeds.
Yes these things are very time consuming and it is very tiring. But if you are spending your day brooding about your case anyway, you might as well be working on it. Organizing your records and putting the evidence into a timeline will give you a sense of hope, because as you comb through your records you will find evidence that will help your case.
Find an experienced forfeiture lawyer
Don’t just hire the lawyer who did your will or your divorce. Even a highly experienced civil or criminal lawyer will probably know nothing at all about asset forfeiture defense. That is because forfeiture is a mixture of civil and criminal law with its own set of quirky procedures, and nobody learns them unless they have to.
Forfeiture statutes are complicated, and a lawyer who does not know forfeiture law my cause you to lose your case in the very beginning by missing an important step or overlooking an important defense, or inadvertantly waiving a jury trial by not demanding one in the Answer. Even when the lawyer quotes a very reasonable fee, you may be making an expensive mistake if you hire a lawyer inexperienced in forfeiture law. At the very least, he or she will have to learn forfeiture law as they go – as you pay them by the hour. Worst case scenario is they might lose your case because they miss something crucial.
Before you hire a lawyer, shop around. Ask them how much experience they have had defending forfeiture cases, what kinds of forfeiture cases they have handled (state or federal), whether they have had any cases based on the same alleged offense as yours, and how the cases were resolved. A lawyer who has handled six state cases, all ending in settlement after a few months, probably doesn’t have enough experience to handle your complex federal forfeiture case.
An experienced forfeiture defense lawyer may be difficult to find. In some areas there no lawyers who regularly practice forfeiture law. You might have to go out of town or even out of state to find an experienced forfeiture lawyer. Lawyers who regularly practice forfeiture law often handle cases in other states. Lawyers are allowed to practice in federal court in another state pro hac vice (“for this case only”) but they have to get the court’s permission. The courts usually require that you hire a local lawyer to act as local counsel. If the local lawyer won’t be doing much except allowing the out-of-state lawyer to practice there, it may not cost much to retain the local counsel. They will have to sign a few pleadings at the beginning and often they don’t have to do anything else. They are still good to have around because they can advise your lead counsel about the backgrounds and personality of the prosecutor and judge. And your lead counsel may need them to stand in for them in court for minor hearings to save you travel costs.
Make sure your lawyer listens to you and pays attention to your concerns. An attorney who acts like he/she doesn’t believe you will not work hard for you. They may take the easy way out and settle, maybe for much less of a deal than you deserve. If you feel that your lawyer is not doing an adequate job, find another lawyer before it is too late.
On the other hand if you know the prosecution’s case is strong, be realistic. At some point you may need to cut your losses and settle to avoid losing at trial, or because the cost of litigating to trial is too high for the value of the property at stake. But make sure your attorney determines that the government has a case first. Get discovery and look over it carefully with your lawyer to see what they have. You may be able to explain away some of the suspicious elements.
In your settlement letters, make sure your lawyer presents solid arguments, supported by evidence and law, showing your case is strong, and use those arguments and evidence to get better settlement offers. If they go in and just bat figures around you will end up with less than you are entitled to.
Don’t be afraid to make counter-offers. And don’t be afraid to be bold in making a counter-offer. In one settlement letter I told the prosecutor that they should give my client’s property back with my client paying nothing in exchange, and maybe the government wouldn’t have attorneys fees awarded against it. Needless to say, I supported that 25 page letter with copious documentation and cites to authorities. I would not have been so bold, except that I truly believed we would win, and I explained why in the settlement letter. The letter laid out what would have been a winning motion for summary judgment if I just put it into motion form. Obviously my letter convinced the prosecutor. After contemplating it for six weeks the forfeiture prosecutor made a counter-offer. The government would give back the house, worth in the mid-six figures, and keep the 10-year old Mercedes which had been impounded five years and probably wasn’t operable.
Some practical suggestions to keep you sane during this process:
1. Get involved in trying to change the law
Vent your frustration with the process to your state or federal legislators. Don’t tell them about the confidential things in your case, but tell them what an ordeal you are being put through and any unfairness you see in the system that they could fix by changing the law. This will serve several purposes. Getting outside yourself and trying to improve things for everyone will help you cope – and empower you. If you get involved in a grass-roots effort to reform the law you may meet new friends in the same boat who will empathize with you – and that makes your plight less terrifying. One of my clients told me that the whole ordeal of being a forfeiture victim was almost worth it for the great friends he met through FEAR (Forfeiture Endangers American Rights). He became one of our most powerful volunteer lobbyists.
2. Forgive and let it go
This may sound crazy, but forgive the police and forfeiture prosecutor. Don’t forget what they did, but forgive them and let the hostility and anger go. It is easier said than done, but it is worth the effort to try.
That anger and resentment could become a weakness they will exploit if you have to confront them in court. You don’t want to give them a trigger that can make you go unhinged whenever they pull it. More than once when my clients have faced off with the prosecutor without anger and hostility, they won the enemy over to their side. I have had cases where the agent sided with my client and asked the judge for leniency. More often they do the opposite though – so don’t let down your guard. Just let the animosity go. It will keep you awake at night and make you sick.
3. Turn the case off daily
Take time away from thinking about your case – every single day. Think of it as a job that you don’t bring home on the weekend or evenings. Tell your worried spouse “it’s after five. Case is closed.”
Unless you have to work on your case then, spend the evenings and weekends doing fun and relaxing things with the people you love and trust. This will help you sleep well at night, and nothing will weaken you faster than losing sleep over your case. As one forfeiture survivor named Sunni always said, “living well is your best revenge.”
4. Tune out your negative friends or family
If friends or family have turned against you because of their prejudiced attitudes about your case, let them go. Try not to think about them. Make new friends to replace the faux friends who deserted you in a time of need.
5. Stop thinking of yourself as a forfeiture victim
Even while your case is pending, start thinking of yourself as a forfeiture survivor. And that is what you will become.