Responding to the Complaint for Forfeiture In Rem
How should you respond if the AUSA files a complaint for forfeiture In Rem against the U.S. Currency within the 90 day deadline? The complaint for forfeiture In Rem names the U.S. Currency as the Defendant (sometimes called the “defendant currency”).
Responding to the Complaint for Forfeiture In Rem is not a good do-it-yourself project. The attorneys at the Sammis Law Firm are experienced in civil asset forfeiture cases.
This article explains how you should respond by retaining an attorney to file a verified claim, file an answer to the complaint for forfeiture In Rem, demand discovery, respond to the government’s interrogatories and request for production, litigate a motion to suppress, and represent you during a jury trial if the case is not resolved on a pre-trial basis.
Contesting a civil asset forfeiture action is not a good do-it-yourself project. Instead, you should also contact an experienced forfeiture attorney so that you understand your rights and the best ways to file a verified claim for court action.
Keep in mind that asking the government to “pardon” the property because you filed a remission or mitigation is rarely successful. Demanding court action and fighting the case is the ONLY way to challenge the legality of the seizure.
If you are an attorney unsure how to proceed with your case, our attorneys also co-counsel in these cases with attorneys across the country.
Attorneys for Responding to the AUSA’s Complaint for Forfeiture
What happens if the United States files a “Verified Complaint for Forfeiture in Rem” against your property including U.S. currency (cash or money)?
An attorney can help you demand that the case be referred for court action which triggers a 90-day deadline for the United States Attorneys’ Office to file a verified complaint for forfeiture In Rem. If a complaint for forfeiture is not filed within the 90-day timeline, then the property must be returned to the person who elected court action.
On the other hand, if the complaint for forfeiture is filed within the 90-day timeline, then an attorney can help you file a verified claim and answer with the court.
Our forfeiture attorneys represent innocent owners of the property who get caught up in a seizure or forfeiture. We also represent clients after their money was seized without a valid or lawful basis, including a warrantless seizure in violation of the Fourth Amendment of the United States Constitution.
We are particularly experienced in civil asset forfeiture cases involving an allegation that a traveler at the airport carried more than $10,000 in U.S. Currency but filed to file a lawful Currency and Monetary Instrument Report or FinCEN 105 Form, engaged in a currency reporting violation, or structured the transaction to evade the reporting requirements.
Contact the asset forfeiture attorneys in Tampa, FL, at Sammis Law Firm, to discuss your case. Whether your money was just taken or you are an attorney that wants to co-counsel with us to resolve the case, contact us today.
Call 813-250-0500 today.
AUSA’s Notice of Filing the Complaint for Forfeiture In Rem
The notice is published pursuant to 21 U.S.C. § 881. The notice usually provides that any person claiming a legal interest in the Defendant Property must file a “Verified Claim” with the court within 60 days from the first day of publication of this Notice on this official government internet web site.
The notice also explains why the claimant must file an “Answer” to the complaint or motion under Rule 12 of the Federal Rules of Civil Procedure within 21 days thereafter.
The verified Claim and Answer must be filed with the Clerk of the Court in the appropriate District Court at the address provided in the notice, and copies of the verified Claim and Answer must be served upon the Assistant United States Attorney identified in the notice at the address listing in the notice.
A default will be entered and the court will order the forfeiture of the property under 18 U.S.C. § 983(a)(4)(A) and Rule G(5) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, if the verified Claim and Answer is not filed within the allotted time.
After filing the verified complaint for forfeiture in rem, the United States Attorney’s Office will post a notice on the https://search.forfeiture.gov/ website. The notice often provides, in part:
Pursuant to 18 U.S.C. § 981, the United States filed a verified Complaint for Forfeiture against the following property: $________ US currency which was seized from __[name of traveler]___on ___[date]___ at _______Airport located at ___[address]___.
Any person claiming a legal interest in the Defendant Property must file a verified Claim with the court within 60 days from the first day of publication of this Notice on this official government internet web site and an Answer to the complaint or motion under Rule 12 of the Federal Rules of Civil Procedure within 21 days thereafter.
The verified Claim and Answer must be filed with the Clerk of the Court, ___[address]____, and copies of each served upon Assistant United States Attorney ___[AUSA name]___, ___[address of AUSA]___, or default and forfeiture will be ordered. See, 18 U.S.C. § 983(a)(4)(A) and Rule G(5) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions.
The government may also consider granting petitions for remission or mitigation, which pardon all or part of the property from the forfeiture….
The https://www.forfeiture.gov/FilingPetition.htm website provides access to a standard petition form that may be mailed and the link to file a petition online. If you cannot find the desired assets online, you must file your petition in writing by sending it to Assistant United States Attorney Cameron McCree, 425 W. Capitol, Ste 500, Little Rock, AR 72201. This website provides answers to frequently asked questions (FAQs) about filing a petition.
You may file both a verified claim with the court and a petition for remission or mitigation.
Being Served with Notice of the Complaint for Forfeiture In Rem
After filing the complaint, the government is required to issue a personal notice of the pending lawsuit with a true and correct copy of the complaint and warrant being served on any potential claimants.
The notice of the lawsuit will be served on any potential claimants who have previously filed a claim along with a copy of the Warrant of Arrest in Rem. The Assistant United States Attorney (AUSA) assigned to the case will then file a copy of the Warrant in Rem and Summons returned.
Additionally, in accordance with Rule G(4)(a)(iv)( C), of the Supplemental Rules of Admiralty or Maritime Claims and Asset Forfeiture Actions, the United States will publish a notice of the forfeiture by posting it on an official government site (www.forfeiture.gov) for thirty (30) consecutive days.
The notice will list the last date to file a claim for the defendant currency. The proof of publication for the Public Notice of Action and Arrest is filed with the Court.
The Deadlines to File a Claim and Answer
The claim and answer serve two different purposes:
- the claim sets forth the interest that the claimant is asserting in the property;
- the answer responds to the allegations in the Government’s complaint.
A person asserting an interest in seized property, in accordance with subparagraph (A), shall file an answer to the Government’s complaint for forfeiture not later than 20 days after the date of the filing of the claim. Title 18, United States Code, Section 983 (a)(4)(B). Federal Rules of Civil Procedure Rule G(5)(b) Answer.
A Claimant must serve and file an answer to the complaint or a motion under Rule 12 within 21 days after filing the claim. Rule G(5)(b) provides that the claimant must file an answer to the Government’s complaint within 21 days of filing a claim.
As one Court noted, the claimant’s failure to file an answer leaves the Government and the Court guessing as to which allegations in the complaint are admitted and which will require proof at trial. United States v. $242,484.00, 389 F.3d 1149, 1174 n.15, 1175 n.17, (11th Cir. 2004) (en banc) (Tjoflat, J., concurring) (the function of the answer is to deny allegations on which the Government has the burden of proof; if the Government cannot meet that burden, the claimant prevails on the basis of its answer; but if the claimant cannot deny the allegation – such as the allegation that the property is forfeitable – without running afoul of Rule 11, it must admit and rely on another defense – such as innocent ownership).
How to File a Claim
Pleadings in civil forfeiture actions must be filed in accordance with the Supplemental Rules. See 18 U.S.C. Section 983(a)(4)(A) and (B) (“any person claiming an interest in the seized property may file a claim asserting such person’s interest in the property in the manner set forth in the [Supplemental Rules]”).
Pursaunt to Rule G(5)(a), 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).
The deadline for filing the claim is listed in the direct notice or the published notice.
Pursaunt to Rule G(5)(b), the claimant must serve and file an answer to the complaint or a motion under Rule 12 within 21 days after filing the claim. A claimant waives an objection to in rem jurisdiction or to venue if the objection is not made by motion or stated in the answer.
In United States v. $315,298.52 in U.S. Currency, No. 09–0520, 2010 WL 1529404, *1 n.5 (D. Md. Apr. 14, 2010), the court explained the interplay of Section 983(a)(4) and the Supplemental Rules. The claim and answer must comply with the requirements of Rule G(5)(a) and (b). Id.
If a claimant fails to file a claim that complies with the requirements of Rule G(5), the Government may move to strike it pursuant to Rule G(8)(c)(i)(A) for failing to comply with Rule G(5) or (6).
In United States v. $12,126.00 in U.S. Currency, 337 Fed. Appx. 818, 820 (11th Cir. 2009), the court noted that the Government may move under Rule G(8)(c) to strike a claim for failure to comply with Rule G(5), and affirmed an order striking a claim for lack of statutory standing.
In United States v. Vehicle 2007 Mack 600 Dump Truck, 680 F. Supp.2d 816, 822-25 (E.D. Mich. 2010), the court granted the government’s Rule G(8)(c) motion to strike a claim filed 40 days after the filing deadline in Rule G(5)(a), and held that to have statutory standing, the claimant must “strictly comply” with the rule.
In United States v. $13,970.00 in U.S. Currency, No. 5:06-CV-386, 2007 WL 1231659 (M.D. Ga. 2007), the court held that statutory standing is a threshold issue, and that a claimant who fails to comply with section 983(a)(4) and Rule G(5) lacks standing.
How to File an Answer in Compliance with the Requirements in Rule G(5)(b)
In addition to filing the claim, an answer must also be filed in compliance with the requirements in Rule G(5)(b).
What happens if you file to file an answer? The government will allege that failing to file a timely answer will result in the claimant’s lack of statutory standing to contest the forfeiture action.
Rule G(5) sets forth the requirements for filing a timely and answer. The Courts require “strict compliance” with those requirements, and hold that a claimant who fails to comply lacks statutory standing to contest the forfeiture action.
In United States v. $12,126.00 in U.S. Currency, 337 Fed. Appox. 818, 820 (11th Cir, July 21, 2009), the court affirmed an order striking claim for lack of statutory standing; “the district court was entitled to insist upon strict compliance with the procedural requirements set forth in Rule G(5)”).
In United States v. $14,132.00 in U.S. Currency, 2011 WL 3235720, *1(D. Col. July 28, 2001), the court granted a Rule G(8)(c) motion to dismiss for lack of statutory standing where claimant filed claim but no answer).
In United States v. 2007 Cadillac Escalade, 2011 WL 2516161, *3 (M.D. Ala. June 20, 2011), the court required strict compliance with Rule G(5) and granted a motion to strike the claim because it was untimely and not filed under the penalty of perjury.
To be timely pursuant to Rule G(5) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture, the answer to the complaint must be filed “within 20 days after filing the claim.” However, the “district court has discretion to extend the filing period.” United States v. $12,126.00 in U.S. Currency, 337 F. App’x 818, 819 (11th Cir. 2009).
Pursaunt to Rule G(8), the claimant may file a Motion To Suppress Use of the Property as Evidence. The rules provides: “[i]f the defendant property was seized, a party with standing to contest the lawfulness of the seizure may move to suppress use of the property as evidence. Suppression does not affect forfeiture of the property based on independently derived evidence.
Pursaunt to Rule G(9) the trial is to the court unless any party demands trial by jury under Rule 38.
What Happens if You File a Claim But Not an Answer?
When the government files a motion to strike a claim for failure to comply with Rule(5), it should do so pursuant to Rule G(8)(c), not Rule 12 of the F.R.Civ.P., United States v One Men’s Rolex Masterpiece Watch, No. 07-2508, 2008 WL 2769368, (W.D. Tenn. July 11, 2008) aff’d, 357 Fed. Appx. 624 (6th Cir. 2009).
The Courts have granted default judgment in cases where a claimant filed a timely claim but thereafter fails to file a timely answer. In fact, the most common ground on which the Government may challenge the claimant’s statutory standing is filing a claim without filing an answer.
For example, in United States v. All Assets Held at Bank Julius Baer & Co., 664 F. Supp. 2d 97, 104 (D.D.C. 2009), the court granted a Rule G(8)(c) motion to strike for failure to file an answer.
What Happens if you File an Answer but Not a Claim?
The Courts have granted default judgment in cases where a claimant filed an answer but never filed a claim. In United States v. $288,914.00 in U.S. Currency, 722 F. Supp. 267, 271 (E.D. La. 1989), the District Court struck that claimant’s untimely answer and granted the government’s motion for default.
What Happens if You File the Answer Late?
The government will allege that allowing a late filing of an answer subverts the strict time limits established by Supplemental Rule G(5).
In those cases, the government will ask the Court to grant the government’s Rule G(8)(c) motion to strike since there are no other claimants. Then the government will ask the Court to enter judgment for the Government directly.
For example, in United States v. $1,000.00 Refunded to Mango Creek Properties, Inc., 2002 WL 254044, *2 (D. Neb. Jan. 27, 2012), the court granted a motion to strike for lack of statutory standing and entering default judgment.
In United States v. $5,565.00 in U.S. Currency, 2010 WL 4222047 (D. Col. Oct. 20, 2010), adopting 2010 WL 4256211 (D. Col. Sept. 20, 2010), the court struck an answer that was filed without a verified claim, and entered judgment for the Government because there were no other claimants.
Filing a Motion to Suppress in a Forfeiture Case
One of the most important issues in any forfeiture case is filing and litigating all viable motion to suppress evidence illegally obtained. Most civil asset forfeiture cases involve the warrantless detention of the person being searched, prolonged detention, or the warrantless seizure of evidence including the property itself.
A motion to suppress is filed under the Supplementary Civil Rule G(8)(a). Pay attention to the deadlines for filing such a motion under the court’s local rules. For example, the local rule might require that motions be filed within 30 days of the beginning of discovery unless the filing party has obtained prior permission of the Court to file the motion.
Keep in mind that some of the local rules don’t apply to proceedings exempt from initial disclosures, such as civil asset forfeiture cases. Fed. R. Civ. P. 26(a)(1)(B)(ii) (exempting “a forfeiture action in rem arising from a federal statute” from initial disclosures). In any event, obtain permission from the Court to file the motion when required.
Reasons the Court Enters a Default Judgment
The government will argue that entry by the Court of a default judgment against the claimant is appropriate if the claimant fails to plead or defend the case after receiving notice by complying with the requirements for filing a verified claim and answer in a civil forfeiture case.
To avoid the court entering a default judgment, contact the attorneys at Sammis Law Firm. We represent clients during civil asset forfeiture cases.
In many of these cases, the complaint alleges that the defendant currency is forfeitable from the person from whom it was seized, pursuant to Title 31, United States Code, Section 5317 because of a failure to file a lawful Currency and Monetary Instrument Report, as it represents currency or property involved in a currency reporting violation under Title 31 United States Code, Section 5316.
The complaint might also allege that the currency is forfeitable pursuant to Title 31, United States Code, Section 5324, i.e., Structuring to Evade Reporting Requirement, if two or more people acted with the intent to evade the currency reporting requirement of Title 31, United States Code, Section 5316, by knowingly divided the defendant currency between themselves so that each was transporting less than $10,000 from a place inside the United States to a place outside the United States (or vise versa).
Case law favorable to the claimant includes:
- United States v. Approximately $13,205.54 in United States Currency Seized from Rahkim Franklin on August 21, 2018 in Rutherford Cnty., N.C., 2022 U.S. Dist. LEXIS 46934, 2022 WL 813817 (finding that the totality of the evidence presented by the Government fails to establish by a preponderance of the evidence that the Defendant Currency seized during a traffic stop was proceeds traceable to an exchange for controlled substances within the meaning of 21 U.S.C. § 881(a)(6). Because the Government has failed to satisfy its burden of proof regarding forfeitability, the Court need not address whether the claimants have shown by a preponderance of the evidence that they are innocent owners of the defendant property. 18 U.S.C. § 983(c), (d)(1). Judgment shall be entered in this matter in favor of the Claimants.
No matter the circumstances, contact an experienced attorney to fight your civil asset forfeiture case.
This article was last updated on Monday, December 28, 2020.