Forfeiture is a penalty used to take the profit out of crime. It is also
big business for the government. However in January of 2015, Attorney
General Eric Holder announced that he would not allow local and state
police to continue to seize cash and other property without criminal charges
In the state of Nebraska, one of the most common forfeiture cases is an
interstate drug stop where no drugs are found during the search, but large
amounts of cash suspected to be the proceeds of drug activities are located.
The government has three different forfeiture options that may be used
to take the money.
Types of Forfeiture
- Administrative Forfeiture: This involves a government agency which is usually
Customs or the DEA. No judge or prosecutor is involved.
- Civil Forfeiture: This is an action against the "guilty" property.
The claimant must file a claim and the case will proceed as a typical
civil case including depositions, interrogatories, motions and a trial.
- Criminal Forfeiture: These cases are prosecuted under 21 U.S.C. 853 and
18 U.S.C. 982 in federal court. The property is usually proceeds of a
crime or instrumentalities of the crime. In some cases when police stop
a vehicle on the interstate with large amounts of cash, the government
may seek to forfeit the cash as the proceeds of the crime and the car
as an instrumentality of the crime.
Often in interstate cash seizure cases in Omaha, Nebraska, no state criminal
charges are filed and the money is pursued though administrative and civil
forfeiture proceedings. However, additional criminal charges may be filed
if federal prosecutors believe they can prove a drug conspiracy or money
Interstate cash seizures in Lincoln, Seward, York, and other cities in
Nebraska are sometimes treated differently than in Omaha. Often these
cases are pursued criminally under Nebraska state law and charged as felonies.
The prosecution's theory in these cases is that the cash is the proceeds
of drug activities. Possession of "drug money" violates of Nebraska
Revised Statute 28-416 and carries a potential sentence of up to five
years in prison.
Other cases where the government regularly seeks asset forfeiture is in
white collar crime. In fraud cases it is not uncommon for the prosecutor
to seek both restitution and forfeiture of assets. While restitution focuses
on the losses suffered by the victim, forfeiture focuses on the net profit
by the defendant from illegal activities.
Often a criminal defense lawyer must not only protect his client from jail
time, but also protect his client's assets. It is not clear what effect
Holder's statement will have on local law enforcement. On one hand
this could mean less forfeiture cases. It could also mean more arrests
and criminal charges for driving on the interstate with large amounts of cash.