Criminal forfeiture actions are generally thought of as a quasi-criminal matter. Criminal forfeiture involves the literal forfeiture of the defendant’s personal or real property. Probable cause must be shown to support the seizure of property subject to forfeiture.
There are various types of items that may be subject to criminal forfeiture. Some of the types of items include:
- bank accounts
- autos, boats, trailers and other recreational vehicles used in connection with the criminal activity
- other instrumentalities used in the commission of the crime
- real property, including things growing on or affixed to the land or found in the land
- tangible and intangible personal property, including rights, privileges, interests, claims, and securities
Typically, criminal forfeiture statutes provide for the restraint of the asset rather than the seizure of the forfeitable asset prior to the defendant’s conviction. If a restraining order, injunction or the like is not sufficient to prevent the assets from dissipation, a seizure warrant may be issued.
Forfeiture and Sentencing
Under federal law, the court imposing sentence upon the defendant may order that he forfeit any property involved in the offense or any property that is traceable to the property sought to be forfeited. Further, the court may order the defendant to forfeit any proceeds obtained directly or indirectly, as a result of violating the law.
Forfeiture is most commonly imposed with respect to convictions under the Racketeer Influenced and Corrupt Organizations (RICO) statute. In accordance with a RICO conviction, the defendant is required to forfeit:
- any interest or security in property or contractual rights of any kind affording a source of influence over any enterprise, which the defendant has established, operated, controlled or participated in
- any property constituting or derived from any proceeds that the defendant obtained directly or indirectly from racketeering activity or unlawful debt collection
The defendant may not only be subject to forfeiture of personal or real property, but may also be fined. It is within the trial court’s discretion to impose a fine along with forfeiture of property. However, the fine may not exceed twice the gross profits or other proceeds.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.