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Motion to Set Aside a Declaration of Forfeiture

The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) sets forth the general rules for civil forfeiture proceedings. 18 U.S.C. § 983. When CAFRA was enacted in 2000, its statutory provisions became “the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.” 18 U.S.C. § 983(e)(5).

But what happens if you didn’t receive proper notice of the administrative forfeiture? CAFRA authorizes an interested party a mechanism to challenge the seizure of property after a forfeiture proceeding has been completed. Specifically, the statute provides in pertinent part:

Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person’s interest in the property, which motion shall be granted if:

(A) the Government knew, or reasonably should have known of the moving party’s interest and failed to take reasonable steps to provide such party with notice; and

(B) the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.

18 U.S.C. § 983(e)(1).

How to Reopen a Forfeiture Proceeding

So even after the completion of an administrative forfeiture, a party may seek to set it aside and reopen forfeiture proceedings, for which a motion under 18 U.S.C. § 983(e) provides the “exclusive” avenue. 18 U.S.C. § 983(e)(5). Section 983(e) limits the bases for setting aside an administrative forfeiture to defects in the notice provided to a person with an interest in the property. Id.

In fact, § 983(e)(1) explains that a section 983(e) motion “shall be granted if . . . the Government knew, or reasonably should have known, of the moving party’s interest and failed to take reasonable steps to provide such party with notice” and “the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.”

Likewise, in United States v. Brome, 942 F.3d 550, 552 (2d Cir. 2019), the court noted: “The right to seek to set aside [a] forfeiture is limited to claims of lack of adequate notice.”

A motion under section 983(e) must be made within “5 years after the date of final publication of notice of seizure of the property.” Id. § 983(e)(3).

If granted, the declaration of forfeiture is set aside “without prejudice to the right of the Government to commence a subsequent forfeiture proceeding,” meaning the most likely result is a reopened proceeding in which the claimant can attempt to prevent the forfeiture of his property. Id. § 983(e)(2)(A).

Statute of Limitations for Setting the Forfeiture Declaration Aside

If you want to set aside a declaration of forfeiture because you did not receive notice, be aware that CAFRA also provides that “[a] motion to set aside the declaration of forfeiture must be filed no later than five years after the date of final publication of notice of seizure.” Landry v. United States, 600 F. App’x 216, 220 (5th Cir. 2015) (citing 18 U.S.C. § 983(e)(3)).

In some cases, the limitations period should be equitably tolled. “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in the way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

Attorney to File a Motion to Set Aside a Declaration of Forfeiture

If you are interested in setting aside a declaration of forfeiture in federal court because you were not properly served with a notice, then contact an attorney at Sammis Law Firm in Tampa, FL.

We help clients after their assets or property are seized by federal law enforcement agents at the FBI, ATF, Homeland Security, ICE, or CBP. With offices conveniently located in Tampa, FL, we can help.

Call 813-250-0500.

This article was last updated on Friday, January 17, 2020.

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