Prolong Delays in a Federal Civil Asset Forfeiture Case
Due process demands that those with an interest in property seized by the government be given notice and an opportunity for a “timely post-seizure forfeiture hearing.” Culley v. Marshall, 601 U.S. 377, 384 (2024).
The Supreme Court has recognized that a delay in resolving a forfeiture action “may become so prolonged that the dispossessed property owner has been deprived of a meaningful hearing at a meaningful time.” Id. at 386 (internal quotation marks omitted).
To determine the reasonableness of a forfeiture-proceeding delay, the Supreme Court has borrowed the four-factor test applied to Sixth Amendment speedy-trial challenges. See Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). In that case, the Supreme Court considered four factors: the length of delay, reason for delay, defendant’s assertion of right to prompt trial, and prejudice to defendant. In United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in U.S. Currency (“United States v. $8,850”), 461 U.S. 555, 564-65, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983), the United States Supreme Court applied the Barker v. Wingo factors to claim of delay in federal civil asset forfeiture proceedings before CAFRA.
CAFRA created statutory deadlines including the 90 day deadline to commence judicial forfeiture proceedings after the date the claim is filed in a non-judicial or administrative forfeiture case. Through an apparent loophole in CAFRA, the statutory language makes it unclear whether a claimant can file a claim that triggers that statutory deadline when the case doesn’t begin as a non-judicial or administrative forfeiture.
A civil asset forfeiture attorney must first determine if the statutory deadline was missed. If so, that is the best way to win the civil asset forfeiture case. If the statutory deadline was not violated, the attorney must then decide whether due process was violated because any prolonged delay.
The Barker v. Wingo Factors for Forfeiture Delays
I. Length of the Delay
An 18-month delay in forfeiture proceedings was not found to be unreasonable in United States v. $8,850, see id. at 569-70. As the Supreme Court has recognized, investigations requiring international assistance are “inherently . . . time-consuming,” United States v. $8,850, 461 U.S. at 567.
Under this factor, the court considers whether there is any indication that the investigation was not diligently pursued. Id. at 567-68.
And, depending on the circumstances, a pending criminal proceeding may provide a valid reason for delay. See $170,000 in United States Currency, 2024 U.S. Dist. LEXIS 104957, at *15-17; 18 U.S.C. § 981(g) (1) (“Upon the motion of the United States, the court shall stay the civil forfeiture proceeding if the court determines that civil discovery will adversely affect the ability of the Government to conduct a related criminal investigation or the prosecution of a related criminal case.”).
II. Reason for the Delay
III. Assertion of Right to a Prompt Judicial Proceeding
IV. Prejudice to the Claimant
The primary inquiry here is whether the delay has hampered the claimant in presenting a defense on the merits. The most commonly alleged forms of prejudice involve the loss of witnesses or other important evidence. Eight Thousand Eight Hundred & Fifty Dollars($8,850) in United States Currency, 461 U.S. at 569.
In $20,000 in United States Currency, 589 F. Supp. 3d at 261, the court concluded that to find prejudice based on deprivation of property while waiting for the case to proceed requires “much longer stretches of time [than nine months] before the forfeiture proceedings were initiated.”
In $170,000 in United States Currency, 2024 U.S. Dist. LEXIS 104957, at *18-19, the court found the length of the delay not enough to establish prejudice when the claimant cannot specifically articulate prejudice.
