Federal Civil Asset Forfeiture
COVID-19 Update – Some federal courts have enacted administrative orders to extend CAFRA deadlines in civil asset forfeiture cases.
For example, the Southern District of Florida, pursuant to 18 U.S.C. § 983, extended, by 60 days, the deadlines established by the Civil Asset Forfeiture Reform Act of 2002 (“CAFRA”) under which the Government is required to:
- commence administrative-forfeiture proceedings against seized property; and
- commence judicial forfeiture actions following submission of timely administrative claims in such proceedings.
The administrative orders might also extend the CAFRA deadlines for certain property identified in Administrative Order 2020-28 by an additional 60 days, and also extends deadlines for property seized on or between July 7, 2020, and August 31, 2020.
Amazingly, in accordance with 18 U.S.C. § 983(a)(1)(C), the supervisory officials at the headquarters offices of several federal agencies issued updated certifications.
The certifications indicate that in light of the COVID-19 pandemic, compliance with the statutory notice deadlines under 18 U.S.C. § 983(a)(1) for commencing administrative forfeiture continues to “likely endanger the life or physical safety” for personnel responsible for carrying out their respective administrative forfeiture programs.
As a result, the courts have found justification for the extension of those deadlines pursuant to 18 U.S.C. § 983(a)(1)(C), (D).
Those federal agencies asking to extend the time include;
- the Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”);
- Drug Enforcement Administration (“DEA”);
- Federal Bureau of Investigation (“FBI”); and
- United States Secret Service (“USSS”).
If federal or state law enforcement officers are attempting to use asset forfeiture laws to take your property, then contact the attorneys at Sammis Law Firm in downtown Tampa. Our attorneys are experienced in fighting asset forfeiture cases throughout Florida.
The federal law governing civil in rem forfeiture actions gives the government authority to seize property allegedly used in furtherance of criminal activity and to commence civil in rem proceedings against the property without charging the property’s owner with a crime.
In many of these cases, the government will allege that the currency was forfeitable pursuant to 21 U.S.C. § 881(a)(6), as proceeds traceable to drug trafficking activities or that the property was used or intended to be used to facilitate drug-trafficking in violation of 21 U.S.C. §§ 841(a), 846.
In civil asset forfeiture cases, the United States is the plaintiff who has seized the property. The property or asset is the defendant. The claimant is the party seeking to intervene in order to get the property back.
Federal agencies with forfeiture authority in the United States include:
- ATF- Bureau of Alcohol, Tobacco, Firearms and Explosives
- DEA – Drug Enforcement Administration
- FBI – Federal Bureau of Investigation
- IRS – Internal Revenue Service
- USAO – United States Attorney’s Office
- CBP – U.S. Customs and Border Protection
- USPIS – U.S. Postal Inspection Service
- USSS – U.S. Secret Service
At the pleading stage, the claimant will satisfy the burden of establishing constitutional standing by alleging a sufficient interest in the seized property. That interest can include an ownership interest, lawful possessory interest, or sufficient security interest.
To fight the complaint for forfeiture, the claimant can file a motion to dismiss if the Assistant United States Attorney missed a deadline or failed to comply with the strict requirements of CAFRA.
Affirmative defenses include a showing that the money was not the proceeds of illegal drug activity, the claimant is an innocent owner, or the forfeiture constitutes an excessive fine under the Eighth Amendment
Attorney for Federal Civil Asset Forfeiture in Tampa, FL
After the government commences a civil forfeiture action, you should act quickly to retain an attorney to file a claim asserting your claim of ownership to the property.
We can help you properly file a verified claim under Rule C(6) which is distinct and separate from filing an administrative claim with the seizing agency under 18 U.S.C. § 983(a)(2).
The attorneys at Sammis Law Firm can help you assert affirmative defenses include a showing that the money was not the proceeds of illegal drug activity or bulk cash smuggling in Florida. We can also represent an innocent owner who was not present when the money was seized.
If the government’s action is barred by the five (5) year statute of limitations, then we can help you file a motion to dismiss the forfeiture action. Whether your cash was seized at the airport or taken in connection with a criminal prosecution, we can help.
Don’t waive any of your rights by pursuing administrative options through a petition for remission or mitigation until you speak with us. The best course of action in many of these cases is to demand early judicial intervention in U.S. District Court immediately after the taking,
The Government’s Notice Obligations in a Civil Asset Forfeiture Action
Supplemental Rule G “governs a forfeiture action in rem arising from a federal statute.” Supp. R. G(1). To discharge its notice obligations in a civil asset forfeiture action, the United States must provide notice of the action to any potential claimants. See Supp. R. G(4). Supplemental Rule G(4)(a)(i) relates to notice by a publication by stating:
“A judgment of forfeiture may be entered only if the government has published notice of the action within a reasonable time after filing the complaint or at a time the court orders.”
As provided in Supp. R. G(4)(a)(ii) the notice must contain the following information:
- describe the property with reasonable particularity;
- state the times under Rule G(5) to file a claim and to answer; and
- name the government attorney to be served with the claim and answer.
Supplemental Rule G(4)(b)(ii) relates to notice to known potential claimants by providing:
“The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).” Supp. R. G(4)(b).
The notice must state:
(i) the date the notice is sent;
(ii) “a deadline for filing a claim, at least 35 days after the notice is sent”;
(iii) “that an answer or motion under Rule 12 must be filed no later than 21 days after filing the claim”; and
(iv) “the name of the governmental attorney to be served with the claim and answer.”
Intervening in a Civil Asset Forfeiture Action
To intervene in a civil asset forfeiture action, each claimant must meet both Article III and statutory standing requirements. To demonstrate Article III standing, the claimant must have an interest in the property sufficient to create a “case or controversy.”
To establish statutory standing, a claimant must comply with Supplemental Rule G(5)’s pleading requirements. Supplemental Rule G(5) states that, to assert their claim in a civil forfeiture action, claimants must file both a verified claim, and an answer to the United States’ complaint. See Supp. R. G(5). Supplemental Rule G(5)(a), delineating the requirements for filing a verified claim, states:
(a) Filing a Claim.
(i) A person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must:
(A) identify the specific property claimed;
(B) identify the claimant and state the claimant’s interest in the property;
(C) be signed by the claimant under penalty of perjury; and
(D) be served on the government attorney designated under Rule G(4)(a)(ii)(C) or (b)(ii)(D).
(ii) Unless the court for good cause sets a different time, the claim must be filed:
(A) by the time stated in a direct notice sent under Rule G(4)(b);
(B) if notice was published but direct notice was not sent to the claimant or the claimant’s attorney, no later than 30 days after final publication of newspaper notice or legal notice under Rule G(4)(a) or no later than 60 days after the first day of publication on an official internet government forfeiture site; ….
Supplemental Rule G(5) requires a claimant to file both a verified claim and an answer. The claim ensures that any party who wishes to defend a forfeiture action will be forced to swear his interest in the forfeited property.
Supplemental Rule G(8)(c) allows the United States to move to strike a claimant’s claim or answer under certain circumstances. See Supp. R. G(8)(c). Supplemental Rule G(8)(c) states: “At any time before trial, the government may move to strike a claim or answer … for failing to comply with Rule G(5) or (6), or … because the claimant lacks standing.” Supp. R. G(8)(c).
The advisory committee notes to Supplemental Rule G(8)(c)(i)(A) state: “As with other pleadings, the court should strike a claim or answer only if satisfied that an opportunity should not be afforded to cure the defects under Rule 15.”
While failure to comply with Supplemental Rule G(5) or G(6) constitutes grounds for a motion to strike a claimant’s claim or answer pursuant to Supplemental Rule G(8)(c), some courts have stated that a court may exercise discretion in extending the time for filing of a verified claim.
Administrative Asset Forfeiture
Administrative asset forfeiture refers to “the process by which property may be forfeited by a seizing agency rather than through a judicial proceeding.” 18 U.S.C. § 983.
Once the administrative proceeding begins, a claimant may contest the forfeiture by filing a claim, pursuant to the requirements outlined in 18 U.S.C. § 983(a)(2)(C). See 18 U.S.C. § 1983(a)(2).
When a claimant files a claim, the asset forfeiture action is converted into a judicial proceeding, and the United States must, within ninety days, file a complaint in accordance with the supplemental rules. See 18 U.S.C. § 1983(3).
Representing the “Innocent Owner ” in a Forfeiture Action
An attorney can help you assert the affirmative defense of innocent ownership. The federal civil asset forfeiture statutes are intended to punish drug dealers while still protecting unwitting or innocent owners. Under 21 U.S.C. § 881(a)(6), the statutory scheme differentiates between “wrongdoers” and “innocent owners.”
Any person connected with the property subject to forfeiture is a wrongdoer except those who are innocent owners. Innocent owners are those who have no knowledge of the illegal activities and who have not consented to the illegal activities.
As to a wrongdoer, any amount of the invested proceeds traceable to drug activities forfeits the entire property. In other words, if one is a wrongdoer, the full value of the real property is forfeitable because some of the funds invested are traceable. On the other hand, if a person is an innocent owner, then no amount of that person’s or entity’s funds are forfeitable.
When the innocent owner defense is asserted, the burden is on the claimant. In fact, the government need not prove, and the district court need not find, that the claimant had actual knowledge. Instead, it is the claimant’s responsibility to prove the absence of actual knowledge.
The innocent owner defense is based on actual knowledge, not constructive knowledge, that existed at the time of the transfer and not at the time of the illegal activity. See United States v. 6640 SW 48th St., 41 F.3d 1448, 1452 (11th Cir.1995).
This rule prohibits profit by the post-illegal act transferees who knowingly take an interest in forfeitable property. The innocent owner defense is not available just because the person was not on the scene early enough to consent to the illegal activity.
In other words, the post-illegal act transferee cannot assert the innocent owner defense to forfeiture if he could know of the illegal activity which would subject property to forfeiture at the time he takes his interest.
When considering the innocent owner defense, the courts are looking to see if a “strawman” set up is being used to conceal the financial affairs of illegal dealings of someone else.
Challenges to Forfeiture under the Eighth Amendment’s Excessive Fine Clause
In many of these cases, the attorney will raise an affirmative defense alleging that the forfeiture was excessive under the “excessive fine clause” of the Eighth Amendment. The constitutional challenge to forfeiture on this basis should be raised at the first opportunity and renewed at each stage of the case.
If the issue is not raised until a direct appeal, the appellate court will review the district court’s decision for plain error. United States v. Elfgeeh, 515 F.3d 100, 138 (2d Cir. 2008).
In United States v. Bajakajian, the Supreme Court of the United States established a two-step inquiry to determine whether the forfeiture was excessive under the Eighth Amendment. 524 U.S. 321 (1998).
The first step involves determining whether the Excessive Fines Clause applies to the forfeiture at issue. The Excessive Fines Clause applies only where the forfeiture may be characterized, at least in part, as punitive.
The second step involves determining whether the challenged forfeiture is unconstitutionally excessive. A forfeiture is unconstitutionally excessive “if it is grossly disproportional to the gravity of a defendant’s offense.” Bajakajian, 524 U.S. at 334.
The federal courts have not developed a bright-line test for determining gross disproportionality, but the courts have interpreted the Bajakajian decision as requiring the courts to consider the following four factors:
- the essence of the crime of the defendant and its relation to other criminal activity;
- whether the defendant fits into the class of persons for whom the statute was principally designed;
- the maximum sentence and fine that could have been imposed; and
- the nature of the harm caused by the defendant’s conduct.
United States v. Viloski, 814 F.3d 104, 110 (2d Cir. 2016).
The claimant can also file a motion to dismiss based on the five (5) year statute of limitations for civil asset forfeiture cases.
List of Defenses in a Federal Civil Asset Forfeiture Case
After the Assistant United States Attorney files a complaint for forfeiture of seized U.S. Currency or other property, anyone asserting a claim to that property must file an answer and assert the following affirmative defenses.
Those defenses might include:
- Plaintiff’s complaint fails to state claims upon which relief may be granted.
- The forfeiture violates the excessive fines clause of the Eighth Amendment to the United States Constitution.
- The seizure was in violation of the Defendant’s Fourth Amendment right to be free from an unreasonable seizure without probable cause.
- There was no substantial connection between the Defendant property and an offense as required by 18 U.S.C. §983(c)(3).
- The Defendant’s right to due process was violated by the government for failing to follow the strict time limits for the initiation of a forfeiture.
- The federal government failed to follow proper procedures and violated Defendant’s due process rights by taking over property originally seized by officers employed by the State of Florida.
- Title 21 U.S.C. §881 is unconstitutional because the government is attempting to punish the Claimant for a crime without a grand jury indictment and without the safeguards of Due Process as afforded by the United States Constitution.
- The property is not subject to seizure and forfeiture
- There is no probable cause to believe that the Defendant Property was used or maintained, or intended to be used or maintained, to commit or to facilitate the commission of any violation of 21 U.S.C. §§841or 846.
- The federal government is estopped from obtaining a forfeiture judgment because the seizure warrant was obtained through incorrect, misleading, or incomplete allegations.
- The federal government cannot obtain a forfeiture judgment because it has not acted in good faith.
- The equitable sharing provisions of the federal forfeiture program, including Titles 21 U.S.C.§881(e)(1)(A) and (e)(3); 18 U.S.C. §981(e)(2); 18 U.S.C. §1963(g); and 19 U.S.C. §1616(a), exceed the lawful powers of the federal government.
- These provisions create a means and an incentive for local law enforcement agencies to unilaterally circumvent state forfeiture laws, resulting in an actual, concrete injury to Claimants.
- The provisions deprive the people of Florida and their legislature from knowingly accepting participation in the equitable sharing program, and thereby impair state sovereignty and commandeer state and local law enforcement
agencies to administer federal laws contrary to state policy in violation of the Tenth Amendment to the United States Constitution.
- The federal government did not provide Claimant with proper notice of the seizure in violation of 18 U.S.C. §983(a).
- None of Claimant’s conduct or activities effect interstate commerce.
- The proceeds are not from unlawful activity.
- The claim is barred by the prohibition of depriving citizens of property without due process of law as provided for in the Fifth Amendment to the United States Constitution.
- The Government has waited an unduly long time in asserting its claims and such delay has prejudiced the Claimant’s rights and hindered the ability to defend/respond in this case, and therefore, the Plaintiff’s claims are barred by Laches.
- Plaintiff has waived any claims it may otherwise have had.
- Plaintiff’s Complaint does not comply with the requirement of Supplemental Rule G to “state sufficiently detailed facts to support a reasonable belief that the government will be able to meet it burden of proof at trial.”
- Forfeiture of the Defendant currency is barred by the Appropriations Clause of Article 1, Section 9 of the United States Constitution.
- If the forfeiture is completed, law enforcement agencies will be able to use money from the forfeiture to fund their activities absent any appropriation from Congress. But, under the Appropriations Clause, money for government spending must be secured through congressional appropriation.
The attorney defending the civil asset forfeiture action by answering the complaint will often demand a trial by jury on all issues so triable. Additionally, the answer to the complaint will request:
- that the Court deny Plaintiff’s claim for forfeiture of the Defendant currency;
- order the Defendant currency or other property returned to Claimant;
- order that Plaintiff pay Claimant’s attorney’s fees and costs pursuant to 28 U.S.C. §2465(b)(1)(A);
- order that Plaintiff pay pre-and post-judgment interest on the Defendant currency to Claimant pursuant to 28 U.S.C. §2465(b)(1)(B)-(C); and
- such additional relief as the Court deems just and proper.
Asset Forfeiture Program – Visit the website of the United States Department of Justice to learn more about the asset forfeiture program. Find statistics on seizure and forfeiture trends over the past five years. Find policy and guidelines on federal adoptions of assets seized by state and local law enforcement agencies. The Asset Forfeiture Program of the Department of Justice manages the seizure and forfeiture of assets that allegedly represent the proceeds of, or were used to facilitate federal crimes. By taking the proceeds of crime and other assets relied upon by criminals to perpetrate criminal activity, asset forfeiture laws are intended to increase public safety. Find links to the new Consolidated Asset Tracking System (CATS) and the annual financial statement showing how funds were accumulated and distributed.
This article was last updated on Friday, August 28, 2020.