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Civil forfeiture also permits recovery of assets of defendants who have died or where the wrongdoer cannot be identified. In rem (against the property) court proceeding brought against property that was derived from or used to commit an offense, rather than against a person who committed an offense. Unlike criminal forfeiture, there is no criminal conviction required, although the government is still required to prove in court by a preponderance of evidence that the property was linked to criminal activity. The proceeding allows the court to gather anyone with an interest in the property in the same case and resolve all the issues with the property at one time. In a civil forfeiture case, the government is the plaintiff, the property is considered the defendant, and any person who claims an interest in the property is a claimant. Civil forfeiture allows the government to file cases against property that would not be reachable through criminal forfeiture, such as property of fugitives, terrorists, and other criminals located outside the United States.
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The court then will enter a final order of forfeiture.
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In personam (against the person) action against a defendant that includes notice of the intent to forfeit property in a criminal indictment. A criminal conviction is required, and forfeiture is part of the defendant’s sentence. Criminal forfeiture is limited to the property interests of the defendant, including any proceeds earned by the defendant’s illegal activity. Criminal forfeiture is generally limited to the property involved in the particular counts on which the defendant is convicted. As part of sentencing, a court may order the forfeiture of a specific property listed in the indictment, a sum of money as a money judgment, or other property as substitute property. The government must establish by a preponderance of the evidence the requisite connection between the crime of conviction and the asset. After a preliminary order of forfeiture is entered, a separate, ancillary proceeding begins to determine any third-party ownership interests in the property the government seeks to forfeit. Under Federal law, there are three (3) types of forfeiture: criminal forfeiture, civil judicial forfeiture, and administrative forfeiture. See the table below for more information. Asset forfeiture is a critical legal tool that serves a number of compelling law enforcement purposes. Asset forfeiture is designed to deprive criminals of the proceeds of their crimes, to break the financial backbone of organized criminal syndicates and drug cartels, and to recover property that may be used to compensate victims and deter crime.