Fighting DEA Forfeitures
Did a federal agent with the Drug Enforcement Administration (DEA) take your property in Florida and provide you with a receipt? After the property is taken by the DEA, expect to receive a letter entitled the “Notice of Seizure of Property and Initiation of Administrative Forfeiture Proceedings” from the U.S. Department of Justice (DOJ), Drug Enforcement Administration (DEA).
The notice warns you that the failure to file a claim within the time allowed may result in the seized property being forfeited to the United States Government. The form will list the identifying information of the seized property including the date of the notice, the asset ID number, the description of the property, the asset value, and the forfeiture authority.
When the DEA takes property, the notice will usually claim that the forfeiture of the property is pursuant to 21 U.S.C. 881 and the following additional laws:
- 19 U.S.C. Section 1602-1619;
- 18 U.S.C. Section 983; and
- 28 C.F.R. Parts 8 and 9.
Very strict deadlines apply in these cases. If you miss the deadline, your chance of getting the property back drops significantly. Keep in mind that your correspondence will be deemed filed or submitted on the business date is is actually received by the Forfeiture Counsel at the address listed above.
A facsimile transmission (fax) is NOT considered to be filed or submitted. Hiring an experienced attorney to send the demand on time is the best way to make sure that your rights are protected and that your property is returned without any undue delay.
In the vast majority of these cases, you should contest the action by filing a claim demanding early judicial intervention in the U.S. District Court. Don’t waive those important rights by filing a petition or remission or mitigation until you understand the pros and cons.
Attorneys Fighting DEA Forfeitures in Tampa, Florida
If DEA agents took your money, vehicles, jewelry, or other valuable assets, then contact an experienced criminal defense attorney to fight for the return of the property. Call for a free and confidential consultation in the office to discuss the case.
We can help you file for an adverse preliminary hearing showing that the property was illegally seized or that the forfeiture was otherwise illegal.
The asset forfeiture attorneys in Tampa, FL, at Sammis Law Firm, also represent clients in cases involving the Florida Contraband Forfeiture Act in state court. Contact us to find out more about the authority for forfeitures under state or federal law, important defenses that apply, and the best way to fight for the immediate return of your property.
Call (813) 250-0500 today.
Contesting the Forfeiture in the US District Court
To contest the forfeiture of the property in the United States District Court you must file a claim. If you do not file a claim, you will waive your right to contest the forfeiture of the asset. If no other claims are filed, you may not be able to contest the forfeiture of the asset in any other proceeding, criminal or civil.
Although you do not need an attorney to contest a DEA forfeiture action, you are entitled to have an attorney represent you at every stage of the case. The attorney can help you fight for the immediate return of your property. The attorney can also make sure you are not subjected to burdensome discovery requests by the Government that serve no other purpose than to embarrass or harass you.
You must contest the forfeiture by filing a claim for property seized by the DEA. The claim should be filed by mailing it with the U.S. Postal Service or via a Commercial Delivery Service to the Drug Enforcement Agency Administration (DEA) at the address listed in your notice which might be listed as:Forfeiture Counsel for the DEA Asset Forfeiture Section of the DEA 8701 Morrissette Drive Springfield, VA 22152
Time Limits for Contesting a DEA Forfeiture Action
To contest a DEA forfeiture, you must file a claim within thirty-five (35) days of the date of the letter as provided in U.S.C. Section 983(a)(2). Be sure to properly serve the notice because the claim is deemed filed on the date received by the Forfeiture Counsel in the DEA’s Asset Forfeiture Section at the address listed in the notice.
After you send the submission regarding the assets, the Office of Operations Management for the DEA will send you a letter that provides:
The claim has been accepted and this matter has been referred to the United States Attorney for the Civil Division in the appropriate judicial district. Please direct all inquires regarding this matter to that office.
Legal Requirements for the Asset Forfeiture Claims
To fight for the return of property seized by the DEA, you must file a claim that complies with the following requirements:
- the claim must be in writing;
- the claim must describe the property taken;
- the claim must state your ownership or other interest in the property; and
- the claim must be made under oath and subject to the penalty of perjury.
The requirements for filing the claim are listed in U.S.C. Section 983(a)(2)(C) and 28 U.S.C. Section 1746.
The claim does not need to be made in any particular form, but a claim form is available at www.forfeiture.gov, which you may print and deliver to the DEA’s Forfeiture Counsel in the asset forfeiture section of the DEA as required in the notice.
Although not required, you are permitted to submit supporting evidence such as the title paperwork or bank records showing your interest in the seized property to support your claim.
Filing the claim in a timely manner stopped the administrative forfeiture proceeding. The DEA is then required to timely forward the claim to the U.S. Attorney’s Office for further proceedings.
If you intentionally file a frivolous claim, you may be subject to a civil fine as specified in 18 U.S.C Section 983(h). If you intentionally submit a claim containing false information, you may be subject to prosecution as provided in 18 U.S.C. Section 1001. Failure to file the claim within allotted time may result in the property being forfeited to the United States government.
How to Release of Property Based on a Hardship
After filing a proper claim for property seized by the DEA, you may request the release of the seized property during the pendency of the forfeiture proceeding due to hardship if you meet specific conditions set out in 18 U.S.C. Section 983(f) and 28 C.F.R. Section 8.15.
The hardship request must be in writing and establish the following:
- you have a possessory interest in the property;
- you have sufficient ties to the community to assure that the property will be available at the time of trial; and
- the Government’s continued possession will cause a substantial hardship to you.
You can find a complete list of the hardship provisions at 18 U.S.C Section 983(f) and 28 C.F.R. Section 8.15. Some assets are not eligible for release.
The DEA’s Civil Forfeiture Proceedings
Civil forfeiture proceedings are governed by statute, by the Federal Rules of Civil Procedure, and by the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (“Supplemental Rules”).
Certain property is subject to forfeiture by the United States, pursuant to 21 U.S.C. § 881. The United States Attorney General may elect to seek criminal forfeiture under 18 U.S.C. § 982 or civil forfeiture under 18 U.SC. § 983.
Criminal forfeitures operate in personam against the defendant and serve as a penalty upon conviction. Civil forfeitures operate in rem against the property itself, “under the theory that the property is guilty of wrongdoing.” See United States v. Duboc, 694 F.3d 1223, 1228 (11th Cir. 2012). In a civil forfeiture proceeding, the property owner’s culpability is not considered in determining whether the property should be forfeited.
While a conviction is necessary to uphold a criminal forfeiture, a conviction is irrelevant in a civil forfeiture proceeding. 3 Crim. Prac. Manual § 107.4 (2012).
Forfeiture under 21 U.S.C. 881
The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), 18 U.S.C. § 983(c), sets forth the Government’s burden of proof in a civil forfeiture action. Under CAFRA, it is the Government’s burden to show by a preponderance of the evidence that forfeiture applies. 18 U.S.C. § 983(c)(1).
Section 881 provides, inter alia, for the forfeiture to the United States of property used in the commission of federal controlled substance violations punishable by more than one year in prison. See 21 U.S.C. § 881.
When the Government seeks forfeiture under 21 U.S.C. § 881(a)(6), the claim is that money is:
- furnished or intended to be furnished by any person in exchange for a controlled substance;
- traceable to such an exchange; or
- used or intended to be used to facilitate any violation of this sub-chapter.
Although the Government must meet this burden at trial, it is not necessarily required to meet it at the pleadings stage. Both CAFRA and the Supplemental Rules state that a complaint may not be “dismissed on the ground that the government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property.” 18 U.S.C. § 983(a)(3)(D); Fed. R. Civ. P. Supp. R. G(8)(b)(ii).
In a civil forfeiture proceeding, the government bears the burden of establishing by a preponderance of the evidence that the property is subject to forfeiture. If the government’s theory is that the property was used to commit or facilitate the commission of a criminal offense, the government must establish that there was a substantial connection between the property and the offense.
The courts have explained the civil forfeiture provision of the Controlled Substances Act, 21 U.S.C. § 881(a)(6), as follows:
Civil forfeiture standards are now subject to the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), 18 U.S.C. § 983(c)(1). CAFRA heightens the government’s evidentiary burden in civil forfeitures—the government must demonstrate by a preponderance of the evidence that the property sought is subject to forfeiture….
Furthermore, § 983(c)(3) provides that ‘if the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.’
United States v. Funds in Amount of Thirty Thousand Six Hundred Seventy Dollars, 403 F.3d 448, 454 (7th Cir. 2005) (internal citations omitted).
A claimant’s “cash hoard may be subject to forfeiture if the currency at issue represents the proceeds of an illegal drug transaction or was intended to facilitate such a transaction.” Id. at 454.
District Courts enjoy original subject matter jurisdiction over civil forfeiture proceedings via 28 U.S.C. §§ 1345 and 1355. See, e.g., United States v. Marrocco, 578 F.3d 627, 632 n.3 (7th Cir. 2009). Venue lies, inter alia, under 28 U.S.C. § 1395, which includes “any district where such property is found.”). See 21 U.S.C. § 881(j).
Motion to Dismiss the Forfeiture under Supplemental Rule G(8)(b)
In an action for civil forfeiture in rem, as to which the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions apply, the claimant can bring a motion to dismiss the forfeiture under Supplemental Rule G(8)(b), which allows a claimant with standing to move to dismiss a forfeiture action under Federal Rule of Civil Procedure 12(b)(6).
Under Fed. R. Civ. P. Supp. R. A(1)(b), the Supplemental Rules are part of the Federal Rules of Civil Procedure and govern procedures in civil forfeiture actions. The Federal Rules of Civil Procedure also apply to such actions to the extent they are not inconsistent with the Supplemental Rules. Fed. R. Civ. P. Supp. R A(2).
Fed. R. Civ. P. 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief may be granted.”
Suppression for a Bad Stop in Forfeiture Proceedings
A Fourth Amendment-based suppression motion is proper in an in rem civil forfeiture proceeding. Since civil forfeiture proceedings are quasi-criminal in nature, the exclusionary rule applies, and suppression motions may be filed.
For example, in United States v. $291,828.00 in U.S. Currency, 536 F.3d 1234, 1236-38 (11th Cir. 2008), the court reasoned that the “Fourth Amendment exclusionary rule applies to civil forfeiture actions.”
In United States v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1164 (9th Cir. 2008), the court explained that the “exclusionary rule applies in civil forfeiture cases…. It bars the admission of evidence obtained in violation of the U.S. Constitution, as well as ‘fruits of the poisonous tree.’ ” Since the exclusionary rule applies, the res must be returned if it was improperly seized.
In many of these cases, the claimant can show the the officers had no jurisdiction to make the stop and the officer had no valid purpose in making the stop. Under 21 U.S.C. § 878, the deputization of DEA officers provides that:
(a) Any officer or employee of the Drug Enforcement Administration or any State, tribal, or local law enforcement officer designated by the Attorney General may—
(1) Carry firearms;
(2) Execute and serve search warrants, arrest warrants, administrative inspection warrants, subpoenas, and summonses issued under the authority of the United States;
(3) Make arrests without warrant
(a) for any offense against the United States committed in his presence, or
(b) for any felony, cognizable under the laws of the United States, if he has probable cause to believe that the person to be arrested has committed or is committing a felony;
(4) Make seizures of property pursuant to provisions of this subchapter; and
(5) Perform such other law enforcement duties as the Attorney General may designate.
21 U.S.C. § 878.
If the DEA agents lack jurisdiction to make the stop, the fact that the officers are acting beyond the bounds of their jurisdiction violates the Fourth Amendment.
Additionally, the claimant can often show that the way the stop was conducted was unreasonable, or that the stop was unconstitutionally prolonged, or that the drug dog alert was not reliable. The Government fails to demonstrate that the drug dog was reliable enough to justify a warrantless search of the vehicle when no dog expert was called and no log books of reliability of the dog were produced.
Filing a Motion for Return of Property
After the property is taken by the DEA, the owner of the property can filed a claim is based on Criminal Rule of Civil Procedure 41(g) and 18 U.S.C. § 983. Rule 41(g) provides:
(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
Fed. R. Crim. P. 41(g).
Federal law, specifically the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), subjects to forfeiture “[a]ll moneys … furnished or intended to be furnished by any person in exchange for a controlled substance …, all proceeds traceable to such an exchange, and all moneys … used or intended to be used to facilitate any violation” of Subchapter I of the Drug Abuse Prevention and Control Act. 21 U.S.C. § 881(a)(6).
CAFRA authorizes the government to seize all such property pursuant to 18 U.S.C. § 981(b). 21 U.S.C. § 881(b).
“Any motion for the return of property seized under [§ 981] shall be filed in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized.” 18 U.S.C. § 981(b)(3).
“Property taken or detained under this section … shall be deemed to be in the custody of the Attorney General,” but upon forfeiture, the Attorney General is authorized to transfer the property to another agency or to a state or local law enforcement agency, among other potential transferees. Id. § 981(e).5
The property owner can file a motion for return of property in federal court. The federal civil asset forfeiture procedure includes a 60-day period in which the government is to provide notice of a seizure or to commence a forfeiture proceeding. 18 U.S.C. § 983(a)(1)(A)(i), (ii).
When the government fails to comply with the notice requirement, subject to certain exceptions not at issue here, “the Government shall return the property … without prejudice to the right of the Government to commence a forfeiture proceeding at a later time.” Id. § 983(a)(1)(F).
“The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.” 18 U.S.C. § 983(a)(1)(F).
In effect, Rule 41(g) permits a person subject to a federal prosecution to seek a specific remedy—the return of seized property—through equitable proceedings against the government, rather than through the potentially more burdensome process of pursuing a claim against the individual officers who seized the property.
Additionally, while Rule 41(g) authorizes an order for the return of seized property, a claim in equity based on the alleged unconstitutional deprivation of currency does not require the return of specific funds. Perez-Colon v. Camacho, 206 Fed.Appx. 1, 4 (1st Cir. 2006) (a claim for the return of currency involves equitable restitution, not money damages, and specific currency need not be provided).
This article was last updated on Tuesday, September 18, 2018.