Statute of Limitations in Forfeiture Cases

If your property has been seized for forfeiture under federal law, you should act promptly to retain the services of an experienced civil asset forfeiture attorney. Your attorney must act swiftly to preserve evidence (including any surveillance video of the detention or seizure) and file a claim for court action within 35 days of the issuance of the notice of seizure.

The purpose of the forfeiture statute of limitations period is to provide some certainty against the extraordinary, quasi-criminal remedy of forfeiture. It prevents a party that has been the subject of criminal prosecution from having to worry for decades after that offense about whether the Government will seek to forfeit its property.

The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) imposes other statutory deadlines in forfeiture cases, including:

• a 60-day deadline to issue a notice of seizure to all interested parties in a nonjudicial (administrative) forfeiture;
• a 90-day deadline to file a complaint for forfeiture after the verified claim demanding court action is filed;
• a five-year statute of limitations deadline to initiate the civil asset forfeiture proceeding after the government knows or should know of the “offense;”
• a one-year statute of limitations deadline for forfeiture of fungible property as long as the action is commenced within one year from the date of the offense as explained in 18 U.S.C. § 984(a)-(b); or
• a one year statute of limitations deadline for the institution of an action to seize substitute assets under 18 U.S.C. §984, the applicable statute of limitations is one year. United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004).

This article discusses the statute of limitations in federal civil asset forfeiture cases. If you want to set aside a declaration of forfeiture because you did not receive notice, be aware that CAFRA requires the “motion to set aside the declaration of forfeiture” to be filed no later than five years after the date of final publication of the notice of seizure. See 18 U.S.C. § 983(e).

A statute of limitations defense under 19 U.S.C. § 1621 is an affirmative defense that must be pled in the claimant’s answer. See United States v. 6 Fox St., 480 F.3d 38, 45 (1st Cir. 2007) (affirming district court’s finding that the claimant “had waived . . . any statute of limitations defense when he failed to raise that affirmative defense in a responsive pleading”).

Attorneys on Statute of Limitations in Forfeiture Cases

The attorneys at Sammis Law Firm represent clients in civil asset forfeiture actions in federal court. Contact us to discuss how the five (5) year statute of limitations for civil asset forfeiture actions might impact your case.

We can help you assert affirmative defenses, including a claim that you are an innocent owner of the seized property or that it was illegally seized. Visit our offices in downtown Tampa in Hillsborough County, New Port Richey in Pasco County, and Clearwater in Pinellas County, FL.

The attorneys at Sammis Law Firm represent clients in civil asset forfeiture cases throughout the greater Tampa Bay area and the rest of Florida. We frequently collaborate with attorneys in other jurisdictions as co-counsel to litigate these cases across the nation. Even if we can’t take your case, we might be able to point you in the right direction.

Call 813-250-0500.

Five-Year Statute of Limitations for Forfeitures

Federal law has long recognized that statutes of limitation that bar the government’s rights must be given strict construction. Under the plain language of §1621, the legislative intent in a traceable proceeds case is to provide the government with five (5) years after it discovers that property is tainted by its purchase with drug proceeds to commence a civil in rem forfeiture action against the property. 19 U.S.C. § 1621 provides, in relevant part:

[n]o suit or action to recover . . . [for] forfeiture of property accruing under the customs laws shall be instituted unless such suit or action is commenced within five years after the time when the alleged offense was discovered, or in the case of forfeiture, within [*11] 2 years after the time when the involvement of the property in the alleged offense was discovered, whichever was later….

Id.  The plain language of the statute suggests the Government may file a civil asset forfeiture action within either the two-year or five-year prong of the statute of limitations, whichever is later.

Statutes of limitation are statutes of repose representing “a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Id. at 32 (citing United States v. Kubrick, 444 U.S. 111, 117, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979). Congress extended the Government five years to develop and file its case. Id. at 33.

When determining when the offense was discovered, the statute of limitations has been enforced according to a “known or should have known” standard. The issue is when the Government discovers or possesses the means to discover the alleged wrong, whichever occurs first. United States v. $ 116,000 in U.S. Currency, 721 F. Supp. 701, 703-04 (D.N.J. 1989).

The statute of limitations is an affirmative defense that may be raised in a Rule 12(b)(6) motion to dismiss for failure to state a claim. See United States v. Duygu Kivanc, 714 F.3d 782, 789, 2013 U.S. App. LEXIS 8516, *9, 85 Fed. R. Serv. 3d (Callaghan) 863, 2013 WL 1777511.

In the following cases, the Court found the Government’s forfeiture claims were barred by the statute of limitations:

• United States v. $30,006.25, 236 F.3d 610, 612 (10th Cir. 2000)
  • The forfeiture action was barred by the statute of limitations because the complaint was not filed against the seized property within five years.
• Clymore v. United States, 164 F.3d 569 (10th Cir. 1999)
  • The appellate court reversed summary judgment granted in favor of the government after holding that constitutionally ineffective notice voided certain DEA and United States Customs administrative forfeitures as to Mr. Clymore. The appellate court vacated the forfeitures as to him, and because the five-year statute of limitations for filing forfeiture proceedings against Mr. Clymore had run we remanded the case for further proceedings, including a determination whether the government had any defenses to the operation of the statute of limitations. Id. at 574 (“Where obvious statute of limitations problems exist, we think the offending forfeiture should be vacated and the statute of limitations allowed to operate, subject, of course, to any available government arguments against it.”). See also United States of America v. Clymore, 245 F.3d 1195 (10th Cir. 2001)(second appeal from the dismissal with prejudice of these claims for the return of property administratively forfeited in federal proceedings).
• United States v. $515,060.42, 152 F.3d 491, 501-03 (6th Cir. 1998)
  • The forfeiture action was barred by the statute of limitations because the complaint was not filed against the seized property within five years.
• United States v. $ 515,060.42 in United States Currency, 152 F.3d 491, 502-503 (6th Cir. 1998)
  • In $515,060.42, the forfeiture action was time-barred because although the government seized currency from a recent bingo operation, it had discovered the illegal gambling operation more than five years before filing the forfeiture action. 152 F.3d at 502-03. The court concluded the statute of limitations runs “from the date of ‘discovery’ of an offense….'” The court noted that the government “cannot disregard its discovery of earlier occurring offenses in preference for later offenses which would produce a more favorable timeline.” Id.
• Santana v. United States Customs Serv., 972 F. Supp. 304 (M.D. Pa. 1997)
  • For purposes of statute of limitations under 19 USCS § 1621, government’s forfeiture action had accrued on date when it had known or should have known of alleged narcotics violations, rather than on date bonds had been seized, where, at latest, government had known about such violations when defendant had been investigated, had been arrested, and had pleaded guilty to offenses, in that informant had reported to federal agents during such time period that he had physically viewed bonds and that defendant had told him that bonds were method of hiding illegal proceeds.
• United States v. $ 116,000, 721 F. Supp. 701 (D. N.J. 1989)
  • The court found the government had not acted within the five-year statute of limitations in a gambling case. The government filed the forfeiture action more than five years and three months after seizing $ 116,000 in a raid following an acquittal of the party in interest in the criminal gambling case. Id. at 702. The court found the government had discovered sufficient facts to institute a forfeiture when it confiscated the $ 116,000. Id. at 705. It was apparent the federal government knew because it obtained a search warrant based on probable cause and listed currency as an item it expected to seize. Id. 704-5. In finding the statute of limitations barred the forfeiture action initiated too late, the court explained its reasoning as follows: “Statutes of limitation are statutes of repose representing a “pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Id. at 705 (citations omitted).
• United States v. R. I. T. A. Organics, Inc., 487 F. Supp. 75 (N.D. Ill. 1980)
  • Knowledge that the importer has made false statements on import documents means that Customs’ discovery of a violation of 19 USCS § 1592 causes the statute of limitation under 19 USCS § 1621 to begin to run.

One-Year Statute of Limitations to Forfeit Fungible Property under Section 981(d)

Section 984 provides for the forfeiture of fungible property as long as the action is commenced within one year from the date of the offense. 18 U.S.C. § 984(a)-(b). Section 984 does not require the property to be traceable to a substantive offense if the government acts within the one-year time limit. The distinction is important because the one-year deadline under § 984 is shorter than the alternative statute, § 981, which has a five-year statute of limitations as explained in 19 U.S.C. § 1621.

The courts are split as to when the one-year period “commences.” For example, in United States v. Currency, $300,000 Seized from Bryant Bank Account No. XXXXX4029, No. 12-cv-2431, 2013 U.S. Dist. LEXIS 50786, 2013 WL 1498972, *4 (N.D. Ala. Apr. 9, 2013), the court concluded that “[w]hat constitutes a ‘commencement’ under Section 984 is apparently an issue of first impression in the Eleventh Circuit.”

In United States v. Funds in the amount of $193,773.00, No. 11-cv-2062, 2011 U.S. Dist. LEXIS 143371, 2011 WL 6181424, at *2-3 (M.D. Fla. Dec. 13, 2011), the court concluded, “the parties’ arguments with respect to the one-year time limit present a difficult and unsettled issue for the Court’s consideration.”

In United States v. $8,221,877.16 in United States Currency, 330 F.3d 141, 157-61 (3rd Cir. 2003), the court found that “[S]ection 984, by its plain and unambiguous language, requires the filing of a complaint within one year of the offense.”

In United States v. Funds Representing Proceeds of Drug Trafficking, 52 F. Supp. 2d 1160, 1166 (C.D. Cal. 1999), the court concluded that: “[E]ither the filing of the complaint or the seizure ‘commence’ the action for purposes of section 984.”

Section 984 of the U.S. Code does not create a separate forfeiture action, but applies when the government seizes money or other fungible properties under § 981. When the assets cannot be physically traced once commingled or deposited, the fungible property statute found in 18 U.S.C. § 984 permits the government to “substitute” “any identical property found in the same place or account as the property involved in the offense.” United States v. Currency, 300,000 Seized from Bryant Bank Acct. No. XXX-XX-XXXX, 2013 U.S. Dist. LEXIS 50786, 2013 WL 1498972, at *3.

If the proceeds constitute “specific” and “identifiable” property, the five-year statute of limitations outlined in § 981(d) applies. If, however, the property is “fungible,” the statute of limitations is governed by the one-year period provided for by § 984(c).

The rationale behind § 984’s one-year limitations period: “The time limitation is considered necessary to ensure that the property forfeited has a reasonable nexus to the offense giving rise to the original action for forfeiture.” All Funds, 832 F. Supp. at 558-59 (internal quotation marks omitted) (quoting H.R.Rep. No. 102-28).

Congress subsequently has revised § 984 to provide that it applies to “any forfeiture action in rem in which the subject property is… funds deposited in an account in a financial institution….” 18 U.S.C. § 984(a)(1) (2001). Congress has also left the identical limitations period in place. 18 U.S.C. § 984(b).

In United States v. All Funds Presently on Deposit or Attempted to be Deposited in any Accounts at American Express Bank, 832 F. Supp. 542, 560 (E.D.N.Y. 1993), Judge Glasser examined Second Circuit precedent and the legislative history of § 984, before concluding that “all forfeitures of fungible property involved in money laundering or structuring violations are subject to a one-year statute of limitations [under § 984]” even if the action is brought under § 981(A)(1)(a). All Funds, 832 F. Supp. at 559 (emphasis in original). 

Other courts reaching the same decision include:

• United States v. $ 3,148,884.40 United States Currency (Seized from Accounts of Bital), 76 F. Supp. 2d 1063, 1067 (C.D.Cal. 1999);
• United States v. Funds Representing Proceeds of Drug Trafficking in the Amount of $ 75,868.62, 52 F. Supp. 2d 1160, 1166 (C.D.Cal. 1999); 
• Marine Midland Bank, N.A. v. United States, 1994 U.S. Dist. LEXIS 9832, at *9, No. 93 Civ. 0307, 0357 (S.D.N.Y. July 19, 1994); and
• United States v. Currency, $300,000 Seized from Bryant Bank Account No. XXXXX4029, 2013 U.S. Dist. LEXIS 50786, *19, 2013-1 U.S. Tax Cas. (CCH) P50,274, 2013 WL 1498972 (Section 984 requires the government to file a forfeiture complaint within one year of the underlying offense. As such, the one-year statute of limitations bars the seizure of $120,000 of Claimant’s property seized prior to July 11, 2011).

But see United States v. One Parcel of Property with Buildings, Appurtenances and Known as 170 Westfield Drive, Located in the Town of East Greenwich, Rhode Island, 34 F. Supp. 2d 107, 118 (D.R.I. 1999).

Tolling of the Statute of Limitations for Forfeiture Actions

The statute of limitations is tolled during any period of concealment. The tolling provision enables the government to file a civil forfeiture action when it learns or discovers the involvement or purchase of the property with drug proceeds.

If the § 1621 limitations period were not tolled until the government discovers the drug-tainted nature of the property, then a convicted drug trafficker would be rewarded by succeeding in his efforts to conceal the fruits of his criminal drug activities.

When the statute of limitations is asserted as a bar to pursuing a forfeiture case, the court must determine when the alleged offense actually occurred, although the government might argue that it is the discovery of the “alleged offense” that matters. In a traceable proceeds case, this knowledge of the connection or link of drug proceeds to the subject property might commence the running of the five-year limitations period.

Under 19 U.S.C. 1621, the government might argue the statute of limitations in a federal seizure case is the latter of either:

• two (2) years from the date that the involvement of the property in the alleged offense was discovered; or
• five (5) years from the date of discovery of the violation.

When the property subject to forfeiture is absent from the country, that time might not be counted in the statutory limitation period.

Alternatively, the statute of limitations may be tolled during “any concealment or absence of the property.” See United States v. James Daniel Good Real Property, 510 U.S. 43, 63, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993).

“Continuing Violation Doctrine” in Civil Asset Forfeiture Cases

The “Continuing Violation Doctrine” applies under limited circumstances. The doctrine provides the government with relief from a time-barred act by linking it to an act that falls within the limitations period. For purposes of the limitations period, courts treat such a combination as one continuous act that ends within the limitations period.” Selan v. Kiley, 969 F.2d 560 (7th Cir. 1991).

For example, in Van Heest v. McNeilab, Inc., 624 F. Supp. 891 (D. Del. 1985), the court found: “…if defendant engages in a continuing course of prohibited conduct and plaintiff’s action is timely as to any act of that course of conduct, plaintiff will be allowed to litigate statutory violations within the limitations period and all preceding violations that are a part of that course of conduct.”

The doctrine is extremely limited because, for most cases, the statute of limitations does not run from the date of a particular violation but from the date of “discovery” of an offense.United States v. $ 515,060.42 in United States Currency, 152 F.3d 491, 502-503, 1998 U.S. App. LEXIS 10411, *29-30, 1998 FED App. 0161P (6th Cir.) For this reason, “[t]he Government cannot disregard its discovery of earlier occurring offenses in preference for later offenses which would produce a more favorable timeline.” In applying the “Continuing Violation Doctrine,” the courts distinguish between a single, continuing offense versus multiple, separate offenses. The court concluded:

Statutes of limitation are statutes of repose representing “a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” United States v. Kubrick, 444 U.S. 111, 117, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979). Congress extended the Government five years to develop and file its case. By the fall of 1988, the Government possessed extensive evidence linking the illegal bingo activities to Virginia Hurst and her currency and it possessed information that Hurst was taking cash proceeds home following a night’s bingo games. The Government certainly knew or should have known of a federal offense. The Government offers no excuses or mitigating circumstances for its delay in filing the underlying forfeiture action. The purpose of the statute of limitation’s notice would be undermined in this case if the Government was allowed to prosecute its action. In any event, the district court did not commit clear factual error in making its assessment of the point of “discovery.” Accordingly, we affirm its dismissal on the basis that the Government exceeded the statute of limitations.

Is the Statute of Limitations Jurisdictional?

The government has argued that the statute of limitations set forth at 19 U.S.C. § 1621 is not jurisdictional. Rather, it is an affirmative defense that, at the pleading stage, must be adjudicated based on the well-pleaded facts in the complaint. For this reason, the claimant can waive the statute of limitations issue.

In some cases, the government’s misconduct might render the statute of limitations waiver void. The government might argue that, in the absence of misconduct, the waiver of the statute of limitations by the claimant is irrevocable or that equitable estoppel prevents a claimant from revoking it.

This article was last updated on Friday, May 23, 2025.