You cannot be punished for a crime until you are convicted, and you are innocent until proven guilty. The law is clear. Or is it?
Unfortunately, civil asset forfeiture laws allow law enforcement to easily seize assets believed to be linked to criminal activity. Law enforcement does not need to get a conviction to seize assets. They do not even need to file charges. In other words, you can be punished with the loss of assets simply because law enforcement suspects you committed a crime.
A recent article from the Huffington Post details a case involving law enforcement taking thousands of dollars from a small restaurant without even filing charges, a case that turns out to be one of many of its kind, and a case that should serve as a warning to small businesses and others.
The Crime: Depositing Money The Wrong Way
The reason law enforcement started paying attention to the restaurant was because owners had made cash deposits in their bank account in amounts less than $10,000. That is the amount at which banks must report transactions to the federal government. To law enforcement, this looked like a crime known as structuring.
Not surprisingly, structuring allegations have led to the government, specifically the IRS, seizing nearly $125 million between 2006 and 2013. This is according to a report from the Institute for Justice, which also shows that the majority of these involved no other criminal allegations beyond structuring.
Many small businesses across the country have been swept up in these cases. In the case described in the article, the restaurant had been told by the bank that deposits of $10,000 or more required paperwork, so the owners simply thought they were doing the bank employees a favor by keeping deposits under that amount. While they have not been charged and they have complied with law enforcement, they have been battling for three years now to get the seized money back, only to be met with resistance at every turn.
Recovering Seized Assets
Once law enforcement seizes assets, getting them back is no simple task. In criminal cases, it is the prosecutor's job to prove that the accused is guilty beyond a reasonable doubt. In civil asset seizure cases, however, the accused must prove their innocence. Even when that is done, law enforcement may not just hand back the money.
Thankfully, some pieces of legislation have been introduced to curb law enforcement's ability to take money from innocent businesses and other parties. One is the Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures Act of 2016, also known as the Due Process Act. In the meantime, individuals and businesses facing the threat of asset forfeiture should act quickly and retain an attorney experienced in handling these types of white collar crime cases.
At the law office of Phillip A. Linder, we encourage you to contact us if you are under investigation or have been questioned by law enforcement about an issue such as structuring. Early intervention may allow us to mitigate future problems. If you have already had assets seized, we will work to recover them and to prevent criminal charges from being filed. If you have officially been charged with structuring or a similar crime, we can use our 20-plus years of experience to defend you.