Civil Forfeiture or Criminal Prosecution

Generally speaking, the Double Jeopardy Clause of the Fifth Amendment prohibits the one specific government entity from punishing you twice for the same crime. The prohibition prevents the government from imposing a criminal sentence and taking your property.

As an example, if somebody is caught with money while traveling through the state of Nebraska, and the government suspects that money is being used to purchase illegal narcotics, the government can either take your money or they can prosecute you for violation of a crime.

The Double Jeopardy Clause bars the government from doing both.

In the State of Nebraska, it is a felony to possess money intended to be used to purchase drugs punishable by up to five years in prison. In Nebraska, and most other states, you could also be charged with conspiracy, which is simply an agreement between two or more people to break the law.

Conspiracy in Nebraska is a class III felony punishable by up to 20 years in prison.

In above example, where a person is arrested in Nebraska with a substantial amount of money, the State of Nebraska must choose between instituting a civil action to keep the money or pursuing criminal charges.

The Double Jeopardy Clause forbids the State of Nebraska from doing both.

Historically, the way the State of Nebraska has gotten around this problem is by getting the federal government involved. The Double Jeopardy Clause does not prohibit separate jurisdictions from proceeding under their own rules. Consequently, the State of Nebraska would pursue criminal charges while the federal government in Nebraska would go after the proceeds.

The Double Jeopardy Clause prohibits one jurisdiction from punishing a person twice. The Federal Government – represented by the United States Attorneys’ Office – is a different sovereignty than the State of Nebraska; consequently, both the federal court in Nebraska and the State of Nebraska, can prosecute a person for the same crime because the State of Nebraska is a separate and distinct sovereignty from the United States.

This separation is known as “dual sovereignty” or “separate sovereignty”.

In situations where a defendant is forced to defend against both a civil case and a criminal case, an experienced attorney is essential to ensure rights are protected.

The action to take the money is a civil action, and consequently, a defendant does not have the protections afforded in a criminal case. Generally speaking, in a civil action, the defendant has no right to an attorney, the right to remain silent, the right to a jury trial or the presumption of innocence.

Any seasoned and experienced criminal defense attorney will always advise a defendant facing criminal charges to assert the right to remain silent and not talk to anybody about any topic associated with the criminal case.

When both a civil forfeiture and a criminal case proceed at the same time, the defendant is put in a position where he has to choose between doing what is best in the criminal case as opposed to doing what is best in the civil forfeiture case.

The attorneys at the Berry Law have represented clients facing both criminal charges in state court and civil forfeitures in federal court. In our experience, once the federal government becomes aware of a pending criminal case in state court, one of the tactics used by the United States attorney is to subpoena tax records from the defendant. Another tactic used by the United States attorney is a deposition. At a deposition, the defendant is placed under oath, subject to criminal perjury charges, and questioned. The US Attorney will ask the defendant specific questions about his income, taxable income, money reported to the IRS, and where the money came from that was in the vehicle.

If the money is, in fact, being used for legal purposes, this line of questioning subjects the defendant to federal charges for tax fraud or tax evasion.

Further, those answers by the defendant can be subsequently used by the State of Nebraska to prosecute the defendant in the state court case.

Of course, the defendant could always assert his Fifth Amendment right not to answer questions posed by the federal government. The Federal Rules of Procedure will then permit the federal government to legally presume that silence is an admission. Once the government has admissions, through silence, they then simply obtain a default judgment against a defendant for the proceeds.

Although state and federal jurisdictions have worked together this way for years, recently, the United States attorney decided to put a stop to this practice. In a written policy statement dated January 16, 2015, the United States Attorney specifically indicated the federal government would no longer be in the business of civil forfeiture of property seized by state law enforcement pursuant to state law. The new policy does not apply to property seized by federal and state joint task forces.

A copy of the policy can be found here:

The significance of the policy statement cannot be understated. Instead of taking both property or money and initiating a criminal prosecution, states will have to chose whether to keep money they believe is being used for illegal purposes or prosecute a crime under state law.

Attorneys in the Berry Law have already used this policy statement to the advantage of clients – working out dismissals of criminal charges in exchange for voluntary forfeiture of assets or money.

If you or somebody you know has a criminal case in Nebraska or if the state or federal government is threatening to take property or money, contact an attorney with the Berry Law for a free consultation.

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