Originally published in InsideCounsel.com on August 23, 2012.

How Can a Victim Obtain Relief Through Forfeiture?

Forfeited property generally goes to the government to spend in whatever manner it sees fit. However there are means by which victims or third parties can challenge a forfeiture if they believe the property, in full or in part, rightfully belongs to them, or to seek relief based on losses resulting from the criminal acts that gave rise to the forfeiture. The first avenue of relief is the assertion of a claim to property sought to be forfeited, and this can be done by filing a claim and an answer in a civil forfeiture proceeding or through a petition for an ancillary hearing in a criminal case. The second avenue of relief involves the filing of a petition for remission or mitigation with the Department of Justice.

Any time the government intends to forfeit property, it is required to give notice to potentially interested third parties and to publish its intent on a government website. Any interested third party, including a victim of a crime, may then file a claim to the property in court within a specified time period.

A claim must set forth the nature and extent of a party’s “right, title, or interest” in the property, explain the circumstances in which the property was acquired, and be signed under penalty of perjury. Succeeding on a third party claim is difficult, however, because the claimant must prove either that it (1) has a right, title, or interest in the property superior to the government’s, or (2) is a bona fide purchaser for value and, at the time of purchase, was reasonably without cause to believe the property was subject to forfeiture.