Innocent Owner Defense in Asset Forfeiture Cases
“Can I borrow the car grandma? I just want to go visit some friends.”
“Sure thing honey,” you answer, as your grandson hurries out the door. “Just be sure to bring it back before 5 p.m.”
What you don’t know is that your car is about to be used to commit a felony. Your grandson goes off to meet his friends and they spend the afternoon selling drugs out of your car. The police arrive, arrest your grandson, and seize your car as contraband. The fact that you are not getting your car back by 5 p.m. is the least of your worries. If you don’t do something, you may not get your car back at all.
Asset forfeiture is a complex area of the law. The government is allowed to seize property that they believe to be contraband. Contraband is property that is used or intended to be used in the commission of certain crimes (those crimes are listed out in the Chapter 59 of the Texas Code of Criminal Procedure). “Contraband” also includes the proceeds of those specific crimes, meaning that the money or property received from the commission of crime or anything purchased with that money or property can be seized by the government as contraband.
Once seized, the government may initiate a civil proceeding separate from any criminal prosecution. This means there will be an entirely separate trial regarding the potential forfeiture of the seized property to the government. If the government wins at this trial, then the seized property will belong to them.
Luckily, you can fight back if property seized by the government belonged to you and you are innocent. The law provides for the “Innocent Owner Defense” so that owners of seized property who are actually innocent of the crime and have no knowledge of it cannot have their property forfeited. The following will discuss the very basics of the innocent owner defense. If you have property seized and want to get it back, you should contact an experienced attorney as soon as possible. If you don’t file an answer to the State’s Notice of Intended Forfeiture quickly, the State will get a default judgment.
What is the Innocent Owner Defense?
Chapter 59.02(c) of the Texas Code of Criminal Procedure lays out the following:
(c) An owner or interest holder’s interest in property may not be forfeited under this chapter if the owner or interest holder proves by a preponderance of the evidence that the owner or interest holder acquired and perfected the interest:
(1) before or during the act or omission giving rise to forfeiture or, if the property is real property, he acquired an ownership interest, security interest, or lien interest before a lis pendens notice was filed under Article 59.04(g) of this code and did not know or should not reasonably have known of the act or omission giving rise to the forfeiture or that it was likely to occur at or before the time of acquiring and perfecting the interest or, if the property is real property, at or before the time of acquiring the ownership interest, security interest, or lien interest; or
(2) after the act or omission giving rise to the forfeiture, but before the seizure of the property, and only if the owner or interest holder:
(A) was, at the time that the interest in the property was acquired, an owner or interest holder for value; and
(B) was without reasonable cause to believe that the property was contraband and did not purposefully avoid learning that the property was contraband.
So what does all this mean in plain English? It means that if you are an innocent owner, the government cannot forfeit (keep) your property. To show that you are an innocent owner you need to do several things.
You Need to Assert Innocent Owner as an Affirmative Defense.
It is not enough to just be an innocent owner. You actually have to inform the court in your pleadings that you intend to show that you are one. An attorney will be able to help you out with pleadings.
You Have to Prove that You are an Innocent Owner.
Even though the government has taken your property, the burden is on you as the innocent owner or interest holder to show that the property cannot be seized. You must prove to the court by a preponderance of the evidence that you are an innocent owner. This means that your evidence must overcome the burden of being more likely than not (any amount over 50 percent likelihood) that you are truly an innocent owner.
There are two main ways to prove that you are an innocent owner, each is based on when you acquired ownership of the seized property. The first, and more common, is to show evidence that you acquired your rights to the seized property before or during the time in which the crime giving rise to forfeiture was committed and that you did not know and should not have had reason to know about the crime being committed. Basically, the first part shows that you are the owner and the second part shows that you are innocent.
59.02(c)(1) – Acquiring the property before the crime was committed.
In our example above, grandma owned the car before her grandson went out selling drugs and she believed that he was going to visit friends, rather than going out to commit crime. If these are the only facts and she can prove these things in court, then she should get her car back. However, if she knows that her grandson is going out to sell drugs, she is not innocent and cannot get her car back. Additionally, if grandma knows that her grandson has already been caught borrowing his mom’s car and selling drugs out of it and then doing the same thing in his aunt’s car, she probably should have known that he was going out to sell drugs in her car. In that case, she should have reasonably known her grandson was going out to commit a crime and she will likely not be able to establish her innocence.
59.02(c)(2) – Acquiring the property after the crime was committed.
The second main way to prove that you are an innocent owner occurs when you purchase the contraband property after the crime has been committed (which is what made it contraband) but before the government has seized it. For example, if the grandson had not been caught initially, he could have left the scene and sold grandma’s car to someone else. The government can still seize the car because it was used in the commission of a drug felony even though the new owner did not have anything to do with that crime.
In this case, you have to prove that you took the property for value (which is a fancy legal way of saying that you bought it in some way) and that you did not have cause to know it was contraband and you did not intentionally avoid finding out it was contraband. So if you bought grandma’s car from grandson and did not know it was contraband, you are innocent. However, if you notice the grandson and all his friends are carrying bags of drugs and large rolls of cash when they sell you the car, you may be out of luck.
So, in summary, the innocent owner defense requires you to basically prove two things: ownership and innocence. But it only helps the truly innocent. If you had reason to know your property was being used to commit crime or was acquired through the proceeds of crime, you are unlikely to get your property back.
If I am the innocent owner and I don’t do anything, they can’t just take away my property, right?
If you don’t act, the government absolutely can take away your property.
If you do not show up at the trial, or you choose to do nothing at all, the government will win in what is called a default judgment. If you have the opportunity to defend your rights in the property and choose not to take that opportunity, the judge will declare a default judgment and the state will automatically get your property. Art. 59.05(a) Tex. C.C.P.
If you do not use the affirmative defense of innocent ownership in your pleadings, you will generally not get to use the defense at all. This is true even if you prove innocent ownership at trial. If you have not pled the defense you will not get to use it, so make sure your pleadings are included early on.
If you go to trial, you need to make sure you bring sufficient evidence of ownership and your innocence. Whether that be documents or testimony, you will need to be able to prove your case at least beyond a preponderance of the evidence (more likely true than not). So if you can establish ownership but not innocence, or vice versa, you will fail to meet your burden and lose your property.
You can also contest that the property is connected to a crime at all.
Under the law, anybody who has standing to claim an asset, in other words to try and get it back, has the right to try and get it back. A secured creditor, a title owner, or someone who has some sort of equitable theory of ownership can all try to get their property back.
Taking an example, if my daughter goes off to college in a car that I bought for her, and hopefully this wouldn’t happen, but if she were to go out and sell marijuana from that car, they may try to forfeit it. Obviously, she would have done something wrong and has to accept her consequences, but I as a parent, someone who didn’t raise her to do that, may want to make a claim to get my property back. I would be asserting an innocent ownership defense which says I’m an owner, I’m not the one who committed any wrongdoing, and I want my property back.
Assets Seizures and the Innocent Owner Defense
Civil forfeiture is a complex area of law. If you are an innocent owner, you will have to fight to get your property back. But you do not have to fight alone. An experienced attorney can help you will all of the difficulties mentioned above. If you find yourself on the wrong side of a civil forfeiture case, call an experienced asset seizure attorneys at Varghese Summersett PLLC at (817) 203-2220 or contact us online:
Also published on Medium.