Asset Forfeiture Policy
The Middlesex District Attorney’s Office (“MDAO”) only seeks forfeiture in those matters where the court has found the defendant guilty beyond a reasonable doubt after trial, the defendant has pled guilty, or the defendant has acknowledged in open court under oath that the Commonwealth possesses sufficient facts to prove the defendant’s guilt beyond a reasonable doubt. The MDAO only seeks to forfeit property as statutorily authorized where the motive for the underlying crime involves profit, such as drug trafficking and organized crime cases. The MDAO, as a matter of policy, only proceeds when it has clear and convincing evidence showing that the property at issue is the proceeds or instrumentalities of a crime.
This means that under no circumstances does the MDAO seek forfeiture when the underlying criminal case has been resolved by means of an acquittal, nolle prosequi, dismissal, diversion, or pre-trial probation. The MDAO never commences a forfeiture action when a defendant has not been charged with an underlying crime. The MDAO does not in any way use asset forfeiture as a condition of plea bargaining. The right of innocent owners of property to contest forfeiture is fully protected in all forfeiture proceedings. The MDAO will not seek forfeiture of houses.
The MDAO follows stringent procedural safeguards to protect the rights of anyone who has a potential claim to the seized property. Before the MDAO takes any action to forfeit property, it provides the defendant in the underlying criminal case with written notice of the MDAO’s intent to seek forfeiture. The MDAO also provides written notice to the person from whom the property was seized, all owners of record, and any person the MDAO reasonably believes has an interest in the property. In the notice, the MDAO specifically identifies the property that it seeks to forfeit. The notice also advises the defendant that the MDAO will not seek an order of forfeiture prior to the resolution of the criminal charges against the defendant. Finally, the notice advises the defendant that in the event the defendant defaults in the criminal case and remains in default for over 90 days, the Commonwealth will seek to forfeit the specified property.
As a matter of law, the MDAO must proceed by means of a separate civil action in Superior Court when the seized property is a vehicle. With respect to forfeiture actions relating to vehicles, the MDAO does not seek final judgment unless and until the defendant has been convicted in the underlying criminal proceeding as described above. All other forfeiture proceedings begin and end in the court that adjudicated the defendant’s criminal responsibility. This allows the judge who presided over the criminal proceeding to determine if the property subject to forfeiture was illegally obtained as a direct result of criminal activity.