Innocent Owner Defense

If you have any ownership interest in property seized for civil asset forfeiture, you should seek out the services of an attorney immediately after learning of the seizure or attempts to forfeit the property. In some cases, the owner of the property seized is a “victim” entitled to file a claim for court action.

Filing the claim for court action is the ONLY way to contest the forfeiture so that the property might be returned to you directly.

Although you might have the right to contest the legality of the seizure and whether the property should be forfeited, the government might not explain all of your options. Instead, the government might assume you are a “non-owner” victim who is only entitled to file a petition for remission or mitigation. The government might also encourage you to file a petition for remission or mitigation when they know or should know you are entitled to file a claim for court action instead.

Even if the government says you are a “non-owner victim,” you might have an ownership interest that gives you the right to file a claim for court action. Under those circumstances, the government should send you a notice of seizure explaining your rights, but they often do not.  Even if you were never given a “notice of seizure,” you might still be able to contest the seizure so that the money is returned to you directly without being subject to forfeiture.

Federal law entitles any claimant with standing to assert the innocent owner defense. The rules for qualifying as an innocent owner of the property are defined in 18 U.S.C. § 983(d).

In addition to punishing drug dealers through civil forfeiture, § 881(a)(6) protects unwitting or innocent owners by explaining that “no property shall be forfeited … to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.”

As to a wrongdoer, any amount of the invested proceeds traceable to drug activities forfeits the entire property. In other words, if one is a wrongdoer, the full value of the real property is forfeitable because some of the funds invested are traceable. On the other hand, if a person is an innocent owner, then no amount of that person’s or entity’s funds are forfeitable.

Attorneys for “Innocent Owner ” Forfeiture Defense

If your property was seized by federal agents in a civil asset forfeiture action, then contact an experienced criminal defense attorney at the Sammis Law Firm.

We represent clients throughout the greater Tampa Bay area after a seizure. We are particularly experienced with seizures of cash that take place at Tampa International Airport or other airports across Florida. Sometimes, we partner with other attorneys throughout the county, fighting similar battles.

During the consultation, we can explain any defenses that might apply in your case, including:

• the innocent owner defense;
• the five-year statute of limitations in forfeiture cases;
• unreasonable and illegal searches or seizures;
• prolonged detentions;
• entrapment;
• duress; and
• undue delay in bringing a forfeiture action.

The “innocent owner” defense is by far the most frequently utilized of these defenses. This defense involves a property owner who claims that he or she is uninvolved in and unaware of the illegal activity that is the basis for the forfeiture and that he or she took every reasonable precaution to prevent the misuse of the property.

An attorney can help you assert the affirmative defense of innocent ownership. We understand how the civil asset forfeiture statutes differentiate between “wrongdoers” and “innocent owners.” We can also explain why a bailee has standing to contest a seizure for forfeiture by filing a claim for court action.

We can help you assert the innocent owner defense when the facts show that you were unaware of the illegal activities and did not consent to them.

Call 813-250-0500 to discuss your case.

Differentiating Between the Wrongdoer and the Innocent Owner

The burden is on the claimant, not the government, to prove innocent ownership. In other words, the government need not prove, and the district court need not find, that the claimant had actual knowledge. Instead, the claimant’s responsible for proving the absence of actual knowledge.

The innocent owner defense is based on actual knowledge, not constructive knowledge, that existed at the time of the transfer and not at the time of the illegal activity. See United States v. 6640 SW 48th St., 41 F.3d 1448, 1452 (11th Cir.1995).

The innocent owner defense might not be available to a post-illegal act transferee attempting to profit by knowingly taking an interest in the forfeitable property. For example, the government might claim the innocent owner defense is unavailable just because the person was not on the scene early enough to consent to the illegal activity.

In other words, the post-illegal act transferee cannot assert the innocent owner defense to forfeiture if that person could know of the illegal activity, which would subject property to forfeiture at the time that person takes their interest.

When considering the innocent owner defense, the courts are looking to see if a “strawman” setup is being used to conceal the financial affairs of illegal dealings of someone else.

Two Types of Innocent Owner Defenses

Federal law provides for two different innocent owner defenses:

• one version is applicable to persons who owned their property interests while the illegal activity was occurring; and
• the second version is applicable to persons who acquired their interest in the property only after the illegal conduct occurred.

Persons who had an interest in the property at the time the illegal activity was occurring can defeat the Government’s proven forfeiture claim by establishing one of the following:

• the person did not know of the conduct giving rise to the forfeiture. See 18 U.S.C. § 983(d)(2)(A)(i); or
• upon learning of the conduct, the person did all that reasonably could be expected, under the circumstances, to terminate such use of the property, including:
  • giving timely notice to an appropriate law enforcement agency of information that led the person to know the conduct giving rise to a forfeiture would occur or has occurred; and
  • acting in a timely manner to make a good faith attempt to revoke permission for those engaging in such conduct to use the property or taking reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property. See 18 U.S.C. § 983(d)(2)(A)(ii) and (B)(i)(I) and (II).

After the illegal conduct occurred, a person who acquires an interest in the property can defeat the Government’s proven forfeiture claim by establishing that:

• the person qualifies as a bona fide purchaser for value of the interest; and
• at the time they acquired the interest, the person did not know and was reasonably without cause to believe that the property was subject to forfeiture. 18 U.S.C. § 983(d)(3).

When the likely owner of the property used to facilitate or conceal the underlying criminal activity was either the perpetrator or knowing participant in the activity, that evidence might be used to overcome any “innocent owner” defense.

But if the owner of the property is not the perpetrator of, or knowing participant in, the underlying criminal activity, then the “innocent owner” defense would prevent the forfeiture.

The Asset Forfeiture Policy Manual on Innocent Owners

According to the Asset Forfeiture Policy Manual, the government evaluates the innocent owner claim by considering whether the owner:

• has standing to maintain a claim in the forfeiture proceeding;
• is merely a nominee or straw owner for the perpetrator of the criminal activity;
• had knowledge of, consented to, or was otherwise willfully blind to illegal use of the property at the time of the criminal activity;
• learned of the illegal use after the fact, but failed to take reasonable and timely steps to properly notify law enforcement or to prevent the further illegal use of the property;
• financially or otherwise benefit from the property’s involvement in the criminal activity; or
• would qualify as a bona fide purchaser for value if he/she acquired the property after the criminal activity subjecting the property to forfeiture had been completed.

Under 21 U.S.C. § 881(a), the innocent owner defense was (and is) not applicable to forfeitable property which is itself contraband—e.g., controlled substances. See, e.g., 21 U.S.C. § 881(a)(8).

Innocent Owner as a Bona Fide Purchaser

When the “property interest [was] acquired after the conduct giving rise to the forfeiture has taken place,” the person claiming to be an “innocent owner” must show that, at the time that person “acquired the interest in the property[,] . . . [the person] was a bona fide purchaser . . . for value (including a purchaser . . . of goods or services for value); and . . . did not know and was reasonably without cause to believe that the property was subject to forfeiture.” 18 U.S.C. § 983(d)(3)(A).

In United States v. Assets Described in Attachment A to the Verified Complaint Forfeiture In Rem, 799 F. Supp. 2d 1319, 1330 (M.D. Fla. 2011), the court found that “[i]n order to establish an innocent owner defense under Section 983(d)(3)(A), for a property interest arising after the conduct giving rise to forfeiture occurred, a claimant must demonstrate by a preponderance of the evidence that it was a bona fide purchaser or seller for value and did not know or was reasonably without cause to believe the property at issue was subject to forfeiture.”

Finding a Lawyer for the “Innocent Owner” Defense after a Seizure

If you are the owner with standing to assert a viable innocent owner defense, we can help you fight the forfeiture action so that the property can be returned to you without delay.

Our attorneys can help you file a claim asserting that you are an innocent owner under Section 983(d). We can also help you prove the necessary elements needed to satisfy the four-part test from Section 983(d)(3)(B) by a preponderance of the evidence.

With offices in downtown Tampa in Hillsborough County, New Port Richey in Pasco County, and Clearwater in Pinellas County, FL, we fight forfeiture actions throughout the greater Tampa Bay area.

Call 813-250-0500 to discuss your case today.

This article was last updated on Friday, November 19, 2024.