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Problems with Petitions for Remission or Mitigation

After your property or currency is seized, you should hire an attorney to file a claim for early judicial intervention immediately. For the vast majority of people, it makes no sense to forgo those rights by requesting the administrative remedies of remission or mitigation.

Keep in mind that if you petition for remission or mitigation, the Ruling Official does not even consider whether the evidence was sufficient for forfeiture, but presumes a valid forfeiture. 28 C.F.R. § 9.5 (a) (4). See Juncaj v. United States, 894 F.Supp. 318, 320 (E. D. Mich. 1995); Reinoso v. Drug Enforcement Administration, No. 93-CIV-1516 (KTD), 1994 U.S. Dist. LEXIS 18054.

The DEA will also argue that the correct forum in which to challenge the constitutionality of the forfeiture is the Federal District Court. As a result, if the petitioner fails to contest this forfeiture judicially, this option is no longer open. United States. v. Giraldo, 45 F.3d 509 (1st Cir. 1995), Caraballo v. Drug Enforcement Administration, 62 Fed. Apps. 362, 363 (2003).

Even more problematic is the fact that numerous downsides exist to forgoing the judicial action instead of filing a petition for remission or mitigation including:

  1. the standard for remission is incredibly high;
  2. the petitioner has a heavy burden of provide sufficient documentation to prove a legitimate origin for the forfeited currency;
  3. the standards for probable cause to support the seizure is incredibly low;
  4. carrying large sums of currency is presumed to be “strong evidence” of narcotics trafficking;
  5. additional evidence can be established by a trained narcotics dog; and
  6. the way the evidence is concealed is considered to be evidence.

If your petition fails to meet the requirements for remission or mitigation under 28 C.F.R. Part 9, then your petition will be quickly denied. Most petitions do not meet the minimum conditions for remission.

The petition may be examined to determine whether “extenuating circumstances” existed that warrant mitigation of the forfeiture under 28 C.F.R. Section 9.5(b), but in the vast majority of these cases, the DEA will find that the Petitioner has utterly failed to demonstrate that the any mitigating factors exist to support granting any relief from forfeiture.

Although the DEA will review the facts of the case to determine if the forfeiture would be in violation of U.S. Constitution’s Eighth Amendment prohibition against excessive punishment, as discussed in Austin v. United States, 113 S. Ct. 2801 (1993), in almost all of these cases, the DEA will determine that the administrative forfeiture was entirely proportional to the offense, considering the substantial connections between the forfeiture property and the offense.

Attorney for DEA Asset Forfeiture Proceedings

The moral of the story? If the DEA seized your case, contact an experienced attorney about the benefits of demanding early judicial intervention in the U.S. District Court in the days following the seizure.

You don’t have to wait for a notice in order to demand early judicial intervention in the U.S. District Court. In many of these cases, the best thing to do is remove the case from the control of the DEA so that an Assistant United States Attorney is forced to either return the property or file a forfeiture action in the U.S. District Court.

You should also talk with your attorney about the best way to secure any video surveillance evidence that exists because it can often be use to show the illegality of the initial stop and detention.

The DEA takes a hide the ball approach by encouraging people to forego their rights in court by consenting to an administrative determination after petitioning for remission or mitigation. Many of the avenues of attacking the legality of the seizure are only available in court.

Before you decide, talk about the facts of your case in a confidential setting with an experienced attorney experienced in fighting the DEA forfeiture action. We can represent the person involved in an illegal seizure or an innocent owner of the property taken by federal agents. Whether your currency was seized at the airport or during a routine traffic stop, we can help.

Let us help you understand how the process of federal civil asset forfeiture works and the best ways to protect your rights as you right for the return of your property. Call 813-250-0500 today.

Reasons to File a Claim Demanding Judicial Review in U.S. District Court

By failing to file a claim to contest the forfeiture, and by filing for remission or mitigation, you have waived any challenge to the seizure. Once the government initiates an administrative forfeiture proceeding and the property is not the subject of an ongoing criminal proceeding, the district court loses jurisdiction to resolve the issue of return of property. See Malady Drugs and Pharmaceuticals, Ltd. v. Tandy, 522 F..3d 885, 889 (D.C. Cir. 2009) (a court will not grant judicial review of an administrative forfeiture where the claimant failed to avail itself of its right to have the case referred to the U.S. Attorney).

Claimant’s assertion that the administrative forfeiture of property valued in excess of $500,000 was invalid cannot be heard by the district court where the claimant did not raise that objection with the seizing agency in the first instance. United States v. Shigemura, 664 F.3d 310, 312 ( 10th Cir. 2011) (a district court lacks jurisdiction to review the merits of an administrative forfeiture if the claimant did not file a claim).

In your petition you state that the traffic stop by law enforcement was unlawful, you must file a Claim to Contest the Forfeiture, which would transfer this matter to the U.S. District Court in the appropriate venue for such a motion. If you were neither the operator nor an occupant for the stopped vehicle, then the DEA will claim that you “appear to lack standing” to object to any alleged unlawful stop.

The Standard for Remission is High

The standard for remission is high. Federal regulations explicitly prohibit remission of a forfeiture unless the petitioner establishes the following:

  1. A valid, good faith, and legally cognizable interest in the seized property as an owner or lienholder; and
  2. Qualification as an “innocent owner” within the meaning of the applicable civil forfeiture statute.

The standards for probable cause to believes the seized currency was furnished for a controlled substance is low. In these cases, the DEA will often allege that the investigation revealed probable cause exists to believe the seized currency was furnished or intended to be furnished in exchange for a controlled substance in violation of 21 U.S.C. §881(a)(6). See United States v. $93.685.61 In U.S. Currency, 730 F.2d 571 (9th Cir. 1984), cert. denied sub nom., Willis v. United States, 469 U.S. 831 (1984); United States v. $2,500 in U.S. Currency, 689 F.2d 10 (2d Cir. 1982), cert. denied, 465 U.S. 1099 (1984).

The Petitioner Has the Burden

The petitioner has the burden of establishing the basis for granting a petition for remission or mitigation of forfeited property. See Regulations Governing the Remission or Mitigation of Civil and Criminal Forfeiture, 28 C.F.R. § 9.5 (a) (3). Under 19 U.S.C. § 1618, the Attorney General may return the property if he finds mitigating circumstances to justify the remission.

This means that the burden is on you to provide sufficient documentation showing a legitimate origin for the forfeited currency. In most of these cases, the DEA will alleged that you failed to provide sufficient documentation showing a legitimate origin for the forfeited currency. Pursuant to 28 C.F.R. § 9.3(c)(l)(iv), the interest of a Petitioner in the property, as owner or otherwise, must be supported by satisfactory documentary evidence, such as employment records, financial statements, bank statements, or cancelled checks.

If you are alleging the forfeited currency to be the proceeds of some transaction, you must then provide credible, verifiable documentation evidencing the transaction, such as bills of sale, contracts, deeds, or mortgages.

Large Sums of Currency are Presumed to be Strong Evidence of Narcotics Trafficking

Any large sum of currency are presumed to be “strong evidence” of narcotics trafficking. “[T]he possession of a large sum of currency is strong evidence of narcotics trafficking.” United States v. $22,991.00, More or Less, in United States Currency, 227 F. Supp. 2d 1220, 1232; 2002 U.S. Dist. LEXIS 19343 (S. D. Ala. 2002); United States v. $42,500.00 United States Currency, 283 F.3d 977 (9th Cir. 2002).

For example, in United States v. $45,000.00 in U.S. Currency, 2012 WL 6680447 (D. Neb. Dec. 21 , 2012), the court found that carrying a large quantity of money, wrapped in rubber bands and concealed in vacuum-sealed bags, on an interstate highway is sufficient evidence of connection to drug activity. See also United States v. $26,620.00 in U.S. Currency, 2006 WL 949938, *7-9 (N.D. Ga. 2006).

In fact, even carrying large quantities of cash is considered strong evidence. “The discovery of large quantities of cash alone is not sufficient to show a connection to illegal drug transactions, but it can be ‘strong evidence that the money was furnished or intended to be furnished in return for drugs’. United States v. $93,685.61 in U.S. Currency, 730 F.2d 571 , 572 (9th Cir.1984).

Evidence Can Be Established by a Trained Narcotics Dog

Evidence can be established by a trained narcotics dog. If a dog was actually alerted to the scent of controlled substances on the forfeited currency or its container, then the positive trained drug canine alert for the presence of narcotics on the seized property is strong evidence of a relationship between the property and drug transactions. See United States v. $105,180 in U.S. Currency, CV-12-08122-PCT-DGC, 2013 WL 2153326 (D. Ariz. May 17, 2013). See United States v. $215,300 United States Currency, 882 F.2d 417, 419 (9th Cir. 1989); United States v. 1988 BMW IL, VEH. ID WBAGC83 l 8J2765453, 716 F.Supp. 171 , 175-176 (E.D. Pa. 1989); United States v. U.S. Currency Totaling $92,000.00, 707 F.Supp. 540,543 (N.D. Ga. 1989).

The Way the Currency is Concealed is Considered Evidence

The way the currency is concealed can be considered evidence. Traveling with large sums of cash banded by rubber bands and wrapped in several layers of plastic is not consistent with legitimate business activity.

For instance, in United States v. $124,700 in U.S. Currency, 458 F.3d 822, 826 (8th Cir.2006), the court “adopted the commonsense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking.”

In United Stares v. $242,484.00, 389 F.3d 1149, 1160-61 (11th Cir.2004), the court acknowledged a “common sense reality of everyday life is that legitimate businesses do not transport large quantities of cash rubber-banded into bundles and stuffed into packages … because there are better, safer means of transporting cash if one is not trying to hide it from the authorities.” See also United States v. $119,030.00 in U.S. Currency, 5:11CV088, 2013 WL 3336624 (W.D. Va. July 2, 2013).

Reconsideration of the DEA’s Decision to Deny the Petition for Remission or Mitigation

When your petition is denied, your notice will disclose your right to request reconsideration of this decision. 28 C.F.R. § 9.3(j). Only one request for reconsideration shall be considered. Any request for reconsideration must be based on material to the basis for this denial or must present a basis clearly demonstrating that the denial is erroneous.

Requests must be postmarked or received by this office within 10 days of your receipt of this letter. If you elect to request reconsideration of this decision, please include your referenced documentation establishing a legitimate origin for the seized currency.

This article was last updated on Wednesday, January 22, 2019.

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