Warrant of Arrest in Rem
What happens if the Assistant United States Attorney (AUSA) files a “Verified Complaint for Forfeiture In Rem” and an application for a “Warrant of Arrest In Rem.” Why does the AUSA apply for an in rem arrest warrant?
First, the phrase “in rem” means “power against the thing.” Jurisdiction in rem assumes the property is the object of the action and not a person associated with the property. The latin phrase is either italicized or underscored in legal documents.
The warrant for arrest in rem can only be issued by the Court upon a finding of probable cause based facts contained in an affidavit or a verified complaint as explained in Local Admiralty Rule 7.03.
If approved by the Court, then a “warrant of arrest in rem” is issued by the Clerk of the U.S. District Court under Rule C, Supplemental Rules for Certain Admiralty and Maritime Claims, pursuant to a complaint for forfeiture brought by the U.S. Attorney, in a case brought by the federal government.
If the court finds probable cause to issue an in rem arrest warrant, then the clerk of the court must give the warrant to an authorized entity to execute or serve. In most cases, the United States Marshall’s Service will serve the in rem arrest warrant.
If the property was originally seized by an agent with the Department of Homeland Security or complaint for forfeiture originated with the Department of Homeland Security, the warrant in rem or notice of the complaint may be executed by a U.S. Customs agent.
Attorney for the Warrant of Arrest in Rem
If your property was seized for forfeiture by a law enforcement officer with the Federal Bureau of Investigations (FBI), Customs and Boarder Protection (CBP), or Homeland Security Investigations (HSI), then contact an federal asset forfeiture attorney in Tampa, FL, at Sammis Law Firm.
Our forfeiture attorneys in downtown Tampa, fight state and federal forfeiture cases throughout Florida, including the taking of U.S. currency (paper money or cash) or other property from travelers at the airport. Read more about attorneys for seizures of cash at airports in Florida.
Our forfeiture attorneys can help you file a verified claim immediately after the seizure without having to wait for the 60 day notice to arrive in the mail. We can also help you present information to the agency holding the property to convince them to return within the 90 day deadline triggered by your verified claim.
Sometimes other attorneys contact us about working with them and acting as co-counsel on a civil asset forfeiture case.
When done correctly, your attorney can force the Assistant United States Attorney to either return the property or file their complaint in court within 90 days of the taking. If the government fails to take appropriate action, then we can help you file a complaint to get the money back immediately along with a demand that the government pay your reasonable attorney fees and costs.
In the event the Government files its own “Verified Complaint for Forfeiture In Rem” and an application for a “Warrant of Arrest In Rem” within their 90 day deadline, then our forfeiture attorneys can help you file a “Statement of Right or Interest” and Answer, or a Motion to Dismiss the Government’s Verified Complaint with the appropriate Office of the Clerk, United States District Court.
Federal asset forfeiture actions are not a good do-it-yourself project. You really need an experienced attorney to challenge the taking. In fact, your failure to follow the requirements set forth above may result the forfeiture taking place, or a judgment by default being taken against you for relief demanded in the Government’s Verified Complaint.
For this reason, you should seek legal advice to protect your interests at every stage of the case beginning on the same day that your money or property is seized.
The AUSA’s Notice of Complaint for Forfeiture In Rem
If the AUSA is aware of any party that filed a claim then the file a Notice of Complaint for Forfeiture In Rem and ask a claimant to acknowledge service.
The notice explains that pursuant to Rule G(4) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, Federal Rules of Civil Procedure, and the Due Process Clause of the Fifth Amendment of the United States Constitution, the United States Assistant (AUSA) must give notice of the action to anyone who has asserted a claim.
The notice includes a disclosure that:
- a Verified Complaint for Forfeiture was filed in the above-styled action in the appropriate United States District Court against certain property as set forth in the caption of the case;
- the cause of action alleges violations of 21 U.S.C. $ 801 et seq.; and
- that defendant property is subject to seizure and forfeiture pursuant to 21 U.S.C. $ 881(a)(6).
In essence, the notice explains that the United States of America filed a civil complaint seeking forfeiture, pursuant to 21 U.S.C. §881(a)(6), in the appropriate United States District Court, against the property seized.
Filing of a Verified Claim to Trigger the 90 Day Deadline
Pursuant to Supplemental Rule G(5)(a)(ii), in order to avoid forfeiture of the defendant property, any person who asserts an interest in the defendant property must file a verified claim. The claim can be filed in the days or weeks after the seizure.
At the Sammis Law Firm, our attorneys can file the first verified claim on the same day of the seizure. We also take all of the steps necessary to preserve any video surveillance evidence that shows how the property was seized or what the law enforcement officer did with the property after the seizure (especially if any of the property went missing).
If you do not immediately file the claim, then within 60 days of the seizure, the agency that seized the property must send a notice. The notice then creates a 35 day deadline for you to file a verified claim. At the Sammis Law Firm, we recommend filing a second verified complaint in response to any notice you receive.
Pursuant to Rule G(5)(a), at a minimum the claim must include the following:
- identify the specific property claimed;
- identify the claimant and state the claimant’s interest in the property; and
- be signed by the claimant under penalty of perjury.
In signing your verified claim under penalty of perjury, you must specifically certify, under penalty of perjury, that the assertions contained in it are true and correct. See 28 U.S.C. § 1746. If the Statement of Right or Interest is made on behalf of the person entitled to possession by an agent, bailee, or attorney, it must state that the agent, bailee, or attorney is duly authorized to make the Statement of Right or Interest.
Filing a Verified Claim to Challenge the Forfeiture
If you claim the defendant property or claim any right in or lien upon the same, you must file your verified claim with the Clerk of this Court, pursuant to 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.
At the Sammis Law Firm, our first verified claim is sent to the agency on the day of the seizure (if we are hired in time), and the second verified claim is filed within 35 days of receiving the notice. So the third verified claim is filed immediately after determining that the Government filed a complaint for forfeiture in federal court.
The claim must be verified on oath and must identify the claimant’s interest in the property. If the claim is made by an agent, bailee, or attorney on behalf of the person entitled to possession of the property, it shall state the authority by which he/she is entitled to make the claim on behalf of such person.
The claim must be filed within thirty-five (35) days after service of the complaint, thirty (30) days after the final date of publication, or no later than sixty (60) days from the first day of publication on the official internet government forfeiture site, www.forfeiture.gov, whichever is earlier, or within such additional time as the Court may allow.
Filing an Answer or Motion to Challenge the Forfeiture
After you file a verified claim in response to the Government’s Verified Complaint for Forfeiture In Rem and a Warrant of Arrest In Rem, then you must file an answer to the complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure with the appropriate Office of the Clerk, United States District Court within twenty (20) days after filing the verified claim.
As noted above, both the verified claim and answer must be filed with the with the appropriate Office of the Clerk, United States District Court at the address provided in the notice. A copy of any Statement of Right or Interest and Answer (or motion) flied also must be sent to AUSA assigned to the case.
The failure to follow the requirements set forth above may result in judgment by default taken against you for relief demanded in the Complaint. You may wish to seek legal advice to protect your interests. In other words, if no person or entity files a claim and an answer, the plaintiff will seek and the Court may enter a final judgment forfeiting the defendant property in accordance with the law.
Additional procedures and regulations regarding this forfeiture action are found at 18 U.S.C. § 983; 19 U.S.C. §§ 1602-1619; and 28 C.P.R.§ 9.
Problems with Filing a Petition for Remission of Mitigation
Although the notice might invite you to file a petition for remission or mitigation, which pardon all or part of the property from the forfeiture, such requests are not part of the court action and do nothing to preserve your right to court action. That basically means you are asking the government to issue a “pardon” of the property.
As most people would guess, such pardon’s are not nearly as effective as simply fighting the legality of the seizure and forfeiture in court. As explained in 28 U.S.C. § 1746, the petition for remission or mitigation (if you decide to file the petition in addition to any claim, answer or counterclaim) must include:
- a description of your interest in the property supported by documentation;
- include any facts you believe justify the return of the property; and
- be signed under oath, subject to the penalty of perjury, or meet the requirements of an unsworn statement under penalty of perjury.
The regulations pertaining to remission or mitigation of the forfeiture are 28 C.P.R.§§ 9.1- 9.9. The criteria for remission of the forfeiture are found at 28 C.P.R.§ 9.5(a). The criteria for mitigation of the forfeiture are found at 28 C.F.R § 9.5(b).
The petition for remission need not be made in any particular form and may be flied online or in writing. You should file a petition for remission not later than 30 days after the date you receive this notice. See 28 C.F.R. § 9.3(a).
The Government might encourage you to file a petition for remission or mitigation. In fact, on its website is provides access to a standard petition for remission form that may be mailed and the link to file a petition for remission online if you can find the desired assets online. If you cannot file the desired asset online, then you must file your petition for remission in writing by sending it to the address listed in the notice. The Government’s website even provides answers to frequently asked questions (FAQs) about filing a petition for remission.
Keep in mind that you can file both an ancillary petition with the court and a petition for remission or mitigation, although the ancillary petition with the court is the most important thing to file and is the only way to challenge the legality of the seizure and forfeiture in court.
When the Judge Files a Final Order of Forfeiture
If you do not act appropriately to contest the forfeiture, then the Assistant United States Attorney will file a Motion for Default Judgment and Final Order of Forfeiture. Based on that motion for default judgment, the United States District Court Judge will determine whether:
- the United States filed a Verified Complaint for Forfeiture In Rem that alleged that the Defendant Funds are subject to forfeiture pursuant to 18 U.S.C. § 981(a)(1)(C) for violations of 18 U.S.C. § 1035;
- the Clerk of Court issued a Warrant of Arrest and Notice In Rem directing the U.S. Marshal or another federal agency to arrest the Defendant Funds and to serve all persons thought to have a potential interest in the Defendant Funds with a copy of the Complaint for Forfeiture In Rem, and the Warrant of Arrest and Notice In Rem;
- the United States sent by certified mail the Notice of Judicial Forfeiture Proceedings, the Verified Complaint for Forfeiture In Rem, and the Warrant of Arrest and Notice In Rem, to all interested parties;
- the U.S. Attorney’s Office posted a notice of forfeiture on an official government internet site (www.forfeiture.gov) for at least 30 consecutive days in compliance with Rule G(4)(a)(iv)(C)
- any claimant filed a Claim for the Defendant Funds;
- any other verified claim or answer has been filed, and the time for filing a claim and answer has expired under Rule G(5), Supplemental Rules For Admiralty Or Maritime Claims and Asset Forfeiture Actions.
- the United States and any claimant have stipulated to settle the claim (the stipulation often provides that all or a portion of the property will be returned to claimant or whether any amount and any accumulated interest on the Defendant Funds will be forfeited to the United States); or
- the United States’ Motion for Default Judgment and Final Order of Forfeiture is granted, and that default judgment is entered against all unknown persons and entities having an interest in the Defendant Funds for failure to file a verified statement of interest in or right against the Defendant Funds and an answer to the Verified Complaint for Forfeiture In Rem as required by 18 U.S.C. § 983(a)(4)(A) and (B), and Rule G(5) of the Supplemental Rules For Admiralty Or Maritime Claims And Asset Forfeiture.
U.S. Marshals on Process for Warrant for Arrest In Rem – Visit the website of the U.S. Marshals Service to find out more about service of process including the summons, complaint and warrant of arrest in rem. Learn more about why the warrant of arrest in rem may be initiated either by a private party or by a federal agency pursuant to a federal statute. Find information on territorial limits in forfeiture actions, who issues the warrant in rem, and why a Deputy U.S. Marshal or the Homeland Security Office might serve the warrant.
Definition of “In Rem Jurisdiction” on Wikipedia – Visit Wikipedia to find the definition of in rem jurisdiction in the context of forfeiture actions in the United States. Find examples of In Rem Jurisdiction in the United States.
This article was last updated on Thursday, February 13, 2020.