Boston Criminal Defense Attorney, Kevin J. Mahoney: Should you fight a civil forfeiture action?
There are pros and cons to fighting a civil forfeiture action when you are also fighting criminal charges or are the subject of a criminal investigation. For example, if you pursue the civil case, you may be entitled to obtain confidential reports and take sworn statements from investigating agents. On the other hand, you may be required to swear to certain facts and to answer questions under oath. This is significant because what you say and do in the civil case can be used against you in the criminal case. Before you vigorously challenge a forfeiture action, you should consult with a knowledgeable Boston criminal lawyer to ensure that you fully understand the risks and potential rewards of such a challenge.
Factors to Consider when Property Targeted for Forfeiture
- Innocent third party. If you are an innocent third party whose property somehow got tangled up in a criminal matter, you may choose to litigate the forfeiture case to the fullest extent, without concern for any negative repercussions.
- Hardship. If you need the seized property to operate your business, keep up your house, support your family, or compensate your attorney, a court can make available some property until the case is finally resolved. To establish a hardship, you must also persuade the court that you will not squander the property.
- Damage to your criminal defense. Can you pursue the forfeiture action without hurting your defense in the criminal case? Remember that the prosecutor can use against you everything you allege in the forfeiture action. Your Boston criminal defense attorney can help you determine whether the legal and factual issues in the forfeiture case are sufficiently distinct from those in the criminal action, or relate to issues that are not subject to dispute in the criminal action. Tread carefully here. You do not want your conduct in the civil action to undermine your criminal defense.
- Move plea negotiations forward. Will a vigorous challenge to the civil forfeiture action help you obtain a more satisfactory plea offer in the criminal case? In some cases, the prosecutor may be persuaded to make a more favorable offer, in order to resolve both the criminal action and the forfeiture action together. For example, upon conviction for certain crimes, the defendant may be ordered to make “restitution” to (i.e., to pay back) his victims. To avoid a prolonged fight on the forfeiture action, the prosecutor might agree to apply the seized assets toward restitution, if you agree to forfeit the assets.
Contact the Boston Drug Crimes Attorneys at the Mahoney Criminal Defense Group
As you can see from this brief overview, the relationship between a civil forfeiture case and a criminal case, especially a drug charge, is complicated and precarious. Before you take any action in the civil matter, you are well advised to consult with an experienced Boston criminal defense attorney. If you would like our counsel, please call (617) 492-0055 to schedule a free initial consultation.
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