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Civil Forfeiture

Federal Prosecution of Alleged Criminal Acts

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While both the Federal and the State governments prosecute crime, the manner in which these cases are investigated, brought forward, and prosecuted is very different. Where the typical District Attorney’s Office is overwhelmed and, by comparison with their Federal counterparts, has limited resources to investigate and prosecute individuals accused of crimes, the U.S. Attorney’s Office accepts only those cases it wants to prosecute and those cases are usually thoroughly investigated by the F.B.I. before a decision to prosecute is made. The U.S. Attorney’s Office typically only indicts those individuals against whom it has compelling proof of guilt.  That is, however, not always the case. Federal prosecutors are, occasionally, overly aggressive and move ahead with cases that they will have great difficulty proving.

Although Federal judges are no longer required to follow the Federal Sentencing Guidelines, which can be quite severe, most continue to sentence in accordance with the guidelines. Just how the guidelines apply to a particular criminal prosecution depends on the indictments obtained by the U.S. Attorney’s Office. Given the power that these guidelines bestow on Federal prosecutors, some criminal cases are resolved by way of agreement between the soon-to-be defendant and the prosecutor before the defendant is even indicted. Because the guidelines punish criminal defendants who refuse to take responsibility for their crimes, the vast majority, maybe 97% or higher, of Federal criminal cases not resolved before indictment are resolved with a plea. There are, therefore, few criminal cases tried in the Federal Courts.

It is incumbent on a person being investigated by the F.B.I. to retain counsel as quickly as possible.  Attorney Mahoney is well-prepared to defend you if the F.B.I. or the U.S. Attorney’s Office is investigating you or if you have already been indicted.    

Forfeiture

Prosecutors force defendants to forfeit property that was obtained from, or used to further, a crime. Civil forfeiture can occur even if a defendant has not been formally charged with a crime and the government only possesses probable cause. In this case, the defendant, not the government, holds responsibility for the burden of proof and must prove that the money in question was not derived from illegal activities, but obtained through lawful means. Through the criminal forfeiture process, the government can seize all the convicted defendant’s assets, including those unrelated to the crime.  An attorney may be able to assist the defendant in demonstrating he has standing to challenge the seizure and in proving lawful possession of the property. (18 U.S.C. § 981(a)(2)). A defendant demonstrates standing by providing evidence of genuine, vested ownership of the property. After a proper showing of standing, a claimant must prove lawful ownership of the property by demonstrating that he did not participate in any illegal activity and was, indeed, ignorant of the illegal activity of those with whom he did business.

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