Non-CAFRA Forfeitures for Vessels and Smuggling
CBP might also seize a vessel for forfeiture after alleging the vessel was outfitted for smuggling, pursuant to 19 U.S.C. § 1703.
These seizures serve as a reminder for all vessel masters of their responsibilities under the law to implement and enforce stringent security measures to prevent smuggling attempts.
When the vessel arrives at a port in the United States, it might be subjected to an examination by the U.S. Customs and Border Protection (“CBP”) and the U.S. Coast Guard (“USCG”).
The Coast Guard might place a “Captain of the Port” (COPT) hold on the vessel while it undergoes further inspections. After that, the vessel might be seized pursuant to 19 U.S.C. § 1703.
Property is subject to forfeiture pursuant to 19 U.S.C. § 1703, as:
- a vessel fitted out in whole or in part, or held, in the United States or elsewhere;
- for the purpose of:
- being employed to defraud the revenue or to smuggle any merchandise into the United States; or
- to smuggle any merchandise into the territory of any foreign government in violation of the laws there in force, and
- as a vessel found, or discovered to have been employed, or attempted to be employed, within the United States for any such purpose.
When the Government alleges a violation of 19 U.S.C. § 1703, it considers the subject vessel contraband that cannot be returned while the forfeiture action is pending.
Attorney Fighting CBP Smuggling Forfeitures
We can help you file a verified claim and cost bond that triggers a deadline for the return of the property or the filing of a complaint in court.
If the government files the Complaint for Forfeiture In Rem, we can help you file the verified claim in court along with an answer and affirmative defenses.
We can help you ask the Court to enter judgment in favor of the owner or company that owns the vessel, an order vacating the Warrant for Arrest in Rem, and a request for costs and reasonable attorney’s fees to Claimant.
Pursuant to Rule 38, Fed. R. Civ. P., we can help you demand a trial by jury of all issues so triable, when appropriate.
Notice of Seizure in a Non-CAFRA Vessel Forfeiture Case
The notice letter sets forth a legal remedy under 19 U.S.C. §1614 for the release of the vessel.
One of the legal remedies enumerated in CBP’s notice letter is filing a verified claim and delivering a cost bond to request that the Subject Vessel be referred to the U.S. Attorney’s Office for judicial action.
The judicial referral is the only way to contest the legality of the seizure to conduct discovery.
Pursuant to Supp. Rs. G(2), the civil forfeiture complaint must be verified and state sufficiently detailed facts to support the reasonable belief that the government will prevail at trial.
If a verified claim and cost bond is filed by the true owner of the vessel, then it triggers a deadline for the Assistant United States Attorney (AUSA) to return the property or file a Verified Complaint for Forfeiture in Rem.
In the complaint, the ASUA will request that any and all persons having any claim to the vessel be directed to file and serve their verified claims and answers as required by Rule G(5) of the Supplemental Rules for Certain Admiralty or Maritime Claims and Asset Forfeiture Actions or suffer default thereof.
The AUSA will further request the Court to declare the vessel condemned and forfeited to the United States of America, pursuant to 19 U.S.C. § 1793.
In response, the attorney for the claimant will file a verified claim and answer to the complaint.
If the government seizes a vessel for forfeiture alleging it was outfitted for smuggling, the judicial action is commenced by the filing of a civil forfeiture complaint.
The complaint must “state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.” Fed. R. Civ. P. Supp. Rule G(2)(f).
In addition to the verified claim, the attorney for the Claimant will also file an Answer and Affirmative Defenses to the Plaintiff’s Verified Complaint for Forfeiture In Rem.
The answer will admit or deny each allegation in the complaint, including any allegation that the vessel is subject to forfeiture as a vessel outfitted for smuggling pursuant to 19 U.S.C. Sec. 1703.
Why is a Vessel Used for Smuggling Considered to be Contraband?
“The proper application of 19 U.S.C. § 1703 renders a vessel outfitted with hidden or false compartments forfeited to the United States independent of any use to which the res has been put. The vessel itself, like a sawed-off shotgun, or like explosives, is contraband.” United States v. One (1) 1983 Homemade Vessel Named Barracuda, 625 F. Supp. 893, 900 (S.D. Fla. 1986).
A request for return of property “is properly denied if the [claimant] is not entitled to lawful possession of the seized property, the property is contraband or subject of forfeiture, or the government’s need for the property as evidence continues.” United States v. Garcon, 406 F. App’x 366, 369 (11th Cir. 2010) (quoting United States v. Pierre, 484 F.3d 75, 87 (1st Cir. 2007), in upholding denial of Fed. R. Crim. P. 41(g) motion) (emphasis added).
Affirmative Defenses in Vessel Forfeiture Case
Affirmative defenses in a non-CAFRA forfeiture might include a claim that:
- the Government’s forfeiture of the vessel would violate the Excessive Fines Clause of the Federal Constitution as the vessel is not contraband and the vessel is not outfitted for smuggling in violation of 19 U.S.C. Sec. 1703;
- the Government lacks probable cause for seizure and forfeiture of the vessel;
- Customs and Border Protection violated its regulations regarding the contents of a seizure notice when it issued a seizure notice to the owner that was devoid of any facts supporting the seizure of the vessel;
- any compartments or spaces contained in the vessel were either original construction, de minimis, or were otherwise not aboard the vessel for the purpose of outfitting it for smuggling merchandise or defrauding the United States of any revenue in violation of 19 U.S.C. Sec. 1703.
What Constitutes Sufficient Notice?
In many of these cases in which a vessel is seized, the CBP’s Notice of Seizure letter provides very little information.
When no information is provided to describe any facts showing out the vessel is outfitted for smuggling, then the notice might be constitutionally deficient which results in a due process violation.
The Supreme Court held the Constitution does not require the government “give detailed and specific instructions or advice to owners who seek the return of property lawfully seized.” City of West Covina v. Perkins, 525 U.S. 234, 236 (1999).
Instead, the government is only required to take reasonable steps to inform the owner that “the property has been taken so the owner can pursue available remedies for its return.” Id. at 240 (citation omitted).
Some courts have found that the government need not include “additional information in the notice, including the underlying factual basis for the seizure, the court case or arrest number connected with the seizure, and the various details of the forfeiture process.” Brown v. Dist. of Columbia, 115 F. Supp. 3d 56, 69 (D.D.C. 2015).
For example, in Juda v. Nerney, 149 F.3d 1190 (10th Cir. 1998), the court found the notice to be constitutionally adequate when the owner claimed the notice was deficient because it failed to specify the source of the check or detail the illegal acts authorizing forfeiture. The court found “no case law supporting [the] suggestion that we require a particularized narrative of allegedly illegal acts.”
In Rodriguez v. U.S. Dept. of Justice, 4 F. App’x 104, 107 (2d Cir. 2001), the court found the forfeiture “notices were also sufficient because they set forth in understandable terms the nature and authority for the forfeiture proceedings and the means by which [the owner] could (a) challenge the forfeiture by filing a claim and cost bond and/or (b) seek remission and mitigation” and rejecting claim the notices were deficient “in both form and content.”
The Notice of Forfeiture often fails to comply with CBP’s notice regulation under 19 C.F.R. section 162.31(b) which required the notice of liability to forfeiture contain “[a] description of the specific acts or omissions forming the basis of the alleged violations.” 19 C.F.R. § 162.31(b)(2).
If the notice is not adequate, any violation might be shown to deprive the vessel owner of the procedural safeguards in a way that creates prejudice in any adjudicative proceeding.
This article was last updated on Friday, January 6, 2023.