Rule 41(g) Motion for the Return of Property

If your property is not promptly returned after a seizure for forfeiture, your attorney might file a “Rule 41(g) for Return of Property.” Federal Rule of Criminal Procedure 41(g) provides that “[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return.”

For purposes of this discussion, the Rule 41(g) motion can be filed in the following two circumstances:

  1. if the government violates 18 U.S.C. § 983(a)(1)(A)(i) by choosing an administrative or nonjudicial forfeiture, but not sending a written notice of seizure to the interested parties within 60 days of the taking;
  2. if the government does not return the property promptly after failing to take action within ninety (90) days after you filed a verified claim for the property based on the written notice of seizure; or
  3. the agency seized property for forfeiture that went missing or was stolen by the agent and was therefore not part of the complaint for forfeiture filed by the government.

The Motion for Return of Property might be denied if the court determines that the proper forum for addressing the claimant’s contentions is in the civil forfeiture proceeding, rather than on a motion pursuant to Rule 41(g).

If your attorney prevails, the court can consider a “Motion for Attorney Fees and Costs” in a civil asset forfeiture case that might force the government to pay your attorney fees and costs.

Attorney for Rule 41(g) Motions for Return of Property

The attorneys at Sammis Law Firm in Tampa, FL, can help you after a civil asset forfeiture action by federal law enforcement officers.

If the property is not returned in compliance with the law, then we can help you file a Motion for Return of Property pursuant to Rule 41(g) and Motion for Attorney Fees, Costs, and Interest pursuant to 28 U.S.C. § 2465(b)(1).

We can bring this action against the agency that seized your property including the FBI, DEA, ATF, or Department of Homeland Security after seizures by agents with Customs and Border Protection (CBP) or a Homeland Security Investigations (“HSI”) Task Force Officer.

Many of these cases involve the seizure of cash or currency at the Tampa International Airport, or other airports throughout Florida.

We also represent clients after the government filed a Complaint for Forfeiture that alleged the funds were the proceeds of drug trafficking, money laundering, unlicensed money transmitting, and other unspecified unlawful activity.

In those cases, we can help you file a Verified Claim pursuant to 21 U.S.C. § 853(n) and Fed. R. Crim. P. 32.2(c), in order to identify your interest in the seized property.

Call 813-250-0500.

Responding to the Notice of Seizure

Immediately after the federal agents seize money, currency, or other property, you can file a petition to trigger early court intervention, even before you receive a Notice of Seizure.

Within sixty days of the seizure, the government must choose either administrative or civil judicial forfeiture. If the government chooses an administrative or nonjudicial forfeiture but does not send a written notice to the interested parties, then the government violates 18 U.S.C. § 983(a)(1)(A)(i) and must return the seized property.

In fact, 18 U.S.C. § 983(a)(1)(A)(i) applies “in any nonjudicial civil forfeiture proceeding ….” (emphasis added)).

Any challenge to an administrative forfeiture must be filed within thirty-five days after the date the personal notice is mailed, or if personal notice is not received, then no later than thirty days after the date of final publication of notice of seizure. Id. at 220 (citing 18 U.S.C. § 983(a)(2)(B)).

Failure to timely file a claim results in the property being administratively forfeited. See 19 U.S.C. § 160.

This means that after you receive the Notice of Seizure, the notice will set a deadline to file a claim for the property. You must timely file a claim that is received on or before the deadline.

If no action is taken by the federal agency within ninety (90) days after you make a claim for the property, then your attorney should file an action pursuant to Fed. R. Crim. Proc. 41(g) for the return of the money.

If you prevail in that motion, then your attorney can also seek an order from the court that requires the federal government to pay attorney fees and costs.

Legal Standard for a Rule 41(g) Motion for Return of Property

If your property was seized by the government, an attorney can help you file a motion for the return of the property under Federal Rule of Criminal Procedure 41(g) in the U.S. District Court.

The district court may exercise jurisdiction over a motion for the return of property even when no criminal proceedings are pending because “[s]uch an action is treated as a civil proceeding for equitable relief.” See United States v. Peloro, 488 F.3d 163, 172 (3d Cir. 2007).

In most cases, a Rule 41(g) motion will be denied if the claimant “is not entitled to lawful possession of the seized property, the property is contraband or subject to forfeiture or the government’s need for the property as evidence continues.” United States v. Chambers, 192 F.3d 374, 376, 377 (3d Cir. 1999).

What happens if some of the property seized by a federal agency goes missing or is stolen by the agent? When the government asserts that it does not possess the property sought, the district court is required to undertake a two-part analysis. See United States v. Albinson, 356 F.3d 278, 281 (3d Cir. 2004).

The motion for return of property is not rendered moot merely because the government no longer possesses the seized property, Instead, the court must first determine whether the government retains possession of the property. Second, if the court finds that the government is not in possession of the property, it “must determine what happened to the property.” Id. (quoting Chambers, 192 F.3d at 378).

Rule 41(g) requires a district court to “receive evidence on any factual issue necessary to decide the motion.” Fed. R. Crim. P. 41(g). An evidentiary hearing is required “only if needed to determine a disputed fact necessary to the resolution of the motion.” Albinson, 356 F.3d at 281.

Otherwise, “affidavits or documentary evidence, such as chain of custody records, may be sufficient to support a fact finder’s determination.” Albinson, 356 F.3d at 282. In the absence of pending criminal proceedings, the government bears the burden of producing evidence. See Chambers, 192 F.3d at 377.

Motions for Attorney Fees under CAFRA

The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) provides that in “any civil proceeding to forfeit property under any provision of Federal law in which the claimant substantially prevails, the United States shall be liable for reasonable attorney fees and other litigation costs reasonably incurred by the claimant.” 28 U.S.C. § 2465(b)(1)(A).

CAFRA expressly commands that not later than 90 days after a claim has been filed, the Government shall:

  1. file a complaint for forfeiture in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims; or
  2. return the property pending the filing of a complaint, except that a court in the district in which the complaint will be filed may;
  3. extend the period for filing a complaint for good cause shown or upon agreement of the parties.

18 U.S.C. § 983(a)(3)(A) (emphasis added).

In other words, the statute gives the Government ninety (90) days to initiate one of three possible options:

  1. file a complaint (civil or criminal) alleging the property is subject to forfeiture;
  2. return the property, or
  3. seek an extension of the deadline.


If by the end of the 90-day deadline, the Government has not initiated one of these options, its choice becomes limited to the prompt return of the property. See 18 U.S.C. § 983(a)(3)(B) (“if the Government does not [perform one of the actions listed above], the Government shall promptly release the property.”) (emphasis added).

The ninety (90) day deadline begins after the claim is received. If the property is not promptly released, then your attorney can file a Rule 41(g) Motion for the Return of Property.

Definition of “Shall Promptly Release the Property”

The statute does not give a specific time by which the Government must release seized property after the 90-day deadline has elapsed. Section 983 only provides that the Government “shall promptly release the property.” 18 U.S.C. § 983(a)(3)(B).

In Kazazi v. U.S. Customs & Border Prot., 4:18-MC-00051, 2019 WL 1872977, at *2 (N.D. Ohio Mar. 1, 2019), the court found that a delay of 44 days was in excess of the reasonable definition of “promptly.”

If the property is not returned promptly, then the only recourse is to file a motion for return of property. CAFRA’s fee-shifting provision applies to a “civil proceeding to forfeit property” as required by CAFRA, and is not merely an “equitable action for the return of property.” Id.

The government is not allowed to intentionally violate CAFRA without facing the remedial provisions. Innocent owners should not be forced to allow the Government to unlawfully keep [their] property indefinitely or have to retain counsel and pay out of [their] own pocket to recover it and potentially spend more in attorney fees than the value of the property. Id.

The stated purpose of CAFRA is to “make federal civil forfeiture procedures fair to property owners and to give owners innocent of any wrongdoing the means to recover their property and make themselves whole after wrongful government seizures.” H.R. REP. 106-192, 11; see also United States v. Coffman, 625 F. App’x 285, 289 (6th Cir. 2015).

CAFRA was designed to protect and make whole—innocent property owners merely seeking the return of their held property. In Coffman, 625 F. App’x at 289, the court found that CAFRA’s fee-shifting provision applies to an innocent third-party intervenor found to be a bona fide purchaser of property forfeited in a criminal proceeding against another.

If when the motion is filed, the petitioners do not have their property and obtain their property as a result of the filing, then they substantially prevail so as to be entitled to attorney fees.

Attorney’s fees in these cases can run very high. For example, in United States v. $ 116,850 in U.S. Currency, 166 F.Supp.3d 626, 637-38 (D.S.C. 2015), the court awarded $ 160,806.53 in fees, costs, and interest.

Other significant awards of attorney’s fees in asset forfeiture litigation are not uncommon. See., e.g., U.S. v. 4,432 Mastercases of Cigarettes, 322 F.Supp.2d 1075 (C.D.Cal.2004)(approved nearly $500,000 in fees pursuant to § 2465(b)(1)(A)); U.S. v. $60,201.00 U.S. Currency, 291 F.Supp.2d 1126 (C.D.Cal.2003)(approximately $60,000 in fees awarded); U.S. v. $193,680.00 U.S. Currency, CV 01-9676-CBM (Mcx)(over $125,000 in fees awarded); U.S. v. $215,271.00 et al., No. CV 01-9812-DDP (nearly $80,000 in fees awarded); and United States v. One Rolex 18K Gold Watch With Light Brown Crocodile Style Wrist Band, 696 F.Supp.2d 143 (D.Puerto Rico 2010) (awarding $6,842.25 in attorney’s fees).

The courts have noted that the “request for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “Ideally, of course, litigants will settle the amount of a fee.” Id. When settlement is not possible, the claimant bears the burden of establishing entitlement to and documentation of the appropriate hours and hourly rates. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988)(citing Hensley, supra).

The Claimant’s attorney should exercise “billing judgment” regarding hours worked and should

Legal Standards for Awarding Attorney Fees

The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) provides that in “any civil proceeding to forfeit property under any provision of Federal law in which the claimant substantially prevails, the United States shall be liable for reasonable attorney fees and other litigation costs reasonably incurred by the claimant.” 28 U.S.C. § 2465(b)(1)(A); see also U.S. v. Davis, 648 F.3d 84, 96–97 (2d Cir.2011).

CAFRA thus requires the Government to pay the attorney’s fees and other litigation costs of a claimant who “substantially prevails” in a forfeiture proceeding.

To “substantially prevail” under CAFRA, a claimant must achieve an “alteration of the legal relationship of the parties” marked by “judicial imprimatur on the change.” Buckhannon Bd. and Care Home Inc. v. West Virginia Dept. of Health & Human Services, 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).

For example, a claimant has “substantially prevailed” so as to entitle him to attorney’s fees, costs, and interest when the court denies the Government’s request for forfeiture of assets. See U.S. v. $10,795, No. 8:08–3358, 2009 WL 2513440, at *1 (D.S.C. August 12, 2009).

The claimant bears the burden of establishing entitlement to and documentation of the appropriate hours and hourly rates. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir.1988)(citing Hensley, supra).

Petition for Civil Equitable Relief

When the property is seized but the government does not file criminal charges against a claimant, the Rule 41(g) motion filed by the claimant is treated as a petition to the district court to exercise its civil equitable jurisdiction. Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993).

In these cases, the courts have adopted a four-factor test (herein called the “Richey factors”) seeking to balance:

  1. whether the government displayed a callous disregard for the constitutional rights of the claimant;
  2. whether the claimant has an individual interest in and need for the property that it wants returned;
  3. whether the claimant would be irreparably injured by denying the return of the property; and
  4. whether the claimant has an adequate remedy at law for the redress of his grievance.

See Ramsden, 2 F.3d at 325 (citing Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir. 1975)).

This article was last updated on Friday, September 3, 2022.