"Criminal Forfeiture

"Criminal forfeiture is an action brought as part of the criminal prosecution of a defendant that includes the forfeiture of property used or derived from the crime. If the defendant is convicted, the judge or the jury may find that the property is forfeitable. Forfeiture is limited to the property interests of the defendant and only to property involved in the particular counts on which the defendant is convicted. Only the defendant’s interest can be forfeited in a criminal case because criminal forfeiture is part of the sentence in the criminal case. For example, if the defendant used someone else’s car to commit a crime and the owner of the car was not indicted for the crime in which the car was used, the car cannot be forfeited in the criminal case. Instead, a civil forfeiture case can be filed against the car.

"If a third party claims an interest in the property that the Government seeks to forfeit criminally, the issue is determined in an ancillary hearing before the court only after the criminal trial is completed, the defendant convicted, and a preliminary order of forfeiture is entered. Once the interests of third parties are resolved, the court issues a final order of forfeiture. The order of forfeiture might not happen for months or years, even if the forfeiture is uncontested, resulting in a delay in the disposal of the property.

"If the property subject to forfeiture is no longer available, the court can enter a money judgment or order the forfeiture of substitute assets.

"Civil Forfeiture

"Civil forfeiture is a proceeding brought against the property rather than against the person who committed the offense. Civil forfeiture does not require either criminal charges against the owner of the property or a criminal conviction.

"To obtain a federal forfeiture, the Government must prove the forfeiture and the connection between the property and the crime by a preponderance of the evidence. Forfeiture may be applicable to property that is traceable as proceeds of the offense, that facilitated the offense, or that was involved in money laundering. All claims of interest or ownership in the property, such as property owned by third parties, are resolved in a single trial."


Asset Forfeiture and Money Laundering Section, "Guide to Equitable Sharing for State and Local Law Enforcement Agencies." (Washington DC: U.S. Justice Department, April 2009), Appendix A. pp. 31-32.