Federal asset forfeiture laws are contained in the following two statutes:

1. 18 U.S.C. § 982 (Criminal Forfeiture).
This statute reflects that the person convicted of an illegal activity is required to forfeit any property that was either utilized in that criminal activity or is the proceeds of that criminal activity.
In a criminal forfeiture the asset is tried in a criminal proceeding along with the person who allegedly committed the violation. The asset forfeiture in this case depends upon the conviction of the person for that violation. It requires the same statutory burden of beyond a reasonable doubt as a criminal conviction would require.


2. 18 U.S.C. § 981 (Civil Forfeiture).
This statute reflects that any asset which is the proceeds of an illegal activity, represents the proceeds from the sale of any asset which was used in an illegal activity or was utilized to commit a criminal activity is forfeit. The advantage of this statute is that it does not contain the same burden of proof of criminal forfeiture and only requires a preponderance of evidence to forfeit the asset.

This stature is under a great deal of criticism since the burden of proof is somewhat less and deprives the owner of the property. Currently, legislative attempts are being made to require a larger burden of proof before assets can be forfeited.


The concept of forfeiture requires that an asset be taken from an individual. All case law and statutory authorizations must comply with constitutional statutes. A statute or legal opinion can not authorize conduct, which comes into conflict with protective Constitutional rights. Therefore, any seizure and/or subsequent forfeiture action must be in agreement with the reasonableness requirement of the Constitution¹s Fourth and Fifth Amendments.

For Constitutional purposes, a search results from law enforcement¹s intrusion into an individual¹s "reasonable expectation of privacy" and a seizure occurs when law enforcement¹s conduct "interferes with a person¹s ownership of property". The law has consistently preferred that a warrant be obtained prior to any search procedure. The legal preference for a warrant is not as great in seizure and subsequent forfeiture actions. The basis for this difference is that a seizure, the first step in a forfeiture action, when based upon probable cause, is considered reasonable action under the Fourth Amendment. However, evidence obtained in violation of either Fourth Amendment or Fifth Amendment guarantees is not admissible in court. The seizure of property in "plain view" is presumed reasonable, assuming that law enforcement can establish probable cause to associate the property with criminal activity.

The government¹s right to seize the proceeds of an illegal activity even though it interferes with the owner¹s Constitutional rights of ownership was enacted by statute and has been upheld by the United States Supreme Court in as early as 1890. In that decision, the court found that when a statute provides for civil forfeiture, the forfeiture takes place the moment the property is used or illegally generated, unless another statute provides otherwise. At that moment, all rights and legal title to the property vests in the government and any subsequent transfer of that property has no effect. In the eyes of the law, the subsequent judicial proceedings merely confirm a forfeiture that has, in theory, already taken place. Because the government¹s right to proceeds relates back to the time that the illegal activity took place, the forfeiture is only gaining the actual title of the property.

As stated earlier, the statute for civil forfeiture is coming under intense scrutiny by various legislative authorities and changes may take place in the future in this area. Until such time that this law may change, an effective legal defense is necessary to ensure that a person¹s property rights are protected.