1 Forfeiture Terminology

• Library: Asset Forfeiture: Practice and Procedure in State and Federal Courts (ABA) (2014 Ed.)

1 Forfeiture Terminology

A. Introduction

One of the most challenging aspects of asset forfeiture is mastering the various legal concepts and principles that are its foundation. With roots in biblical and English common law, the unwary practitioner can become bewildered when confronted with concepts that he has not heard discussed since he left the halls of law school, if even then. This chapter will review some of the basic terms and concepts utilized in asset forfeiture practice.

B. Definition

Asset forfeiture has been described as the divestiture without compensation of property used in a manner contrary to the laws of the sovereign. See United States v. Eight Rhodesian Stone Statues, 449 F. Supp. 193,195 C.D. Cal.1978). In other words, the government confiscates the property because it has been used in violation of the law and to require disgorgement of the fruits of the illegal conduct. See United States v. Ursery, 518 U.S. 267, 284 (1996).

C. Jurisdiction

Remember the law school discussions about types of jurisdiction? Hopefully you paid enough attention to discern the difference between in personam and in remjurisdiction.

1. In Personam Jurisdiction

In personam jurisdiction is simple to comprehend as it is against a specific individual. See Black's Law Dictionary, 4th edition, West Publishing, St. Paul, Minn., 1968 p. 899. In this type of jurisdiction, the person or individual becomes the party to the lawsuit. The prosecuting authority files charges against the defendant in personam and that is reflected in the caption of the pleading (i.e., People v. Orenthal James Simpson). For example, in criminal actions, the court obtains jurisdiction over the defendant when she is arraigned in court. From that point on until the conclusion of the action, the court has jurisdiction over the defendant and she is personally liable to comply with the orders of the court. If she fails to appear in court, the magistrate issues a bench warrant for her arrest. If she is convicted of the criminal offense, the judge may impose a sentence over the defendant such as a fine, probation terms, or jail time because he has in personam jurisdiction over her.

The same principle applies to civil actions. In a civil in personam action, the case is filed against a specific individual whose name is listed in the pleading caption (i.e., Fredric Goldman v. Orenthal James Simpson). Once the lawsuit is filed, the first action is to serve the defendant with notice of the lawsuit and a summons ordering him to file a response with the court. That action gives the court in personam jurisdiction over the defendant and he becomes subject to the power of the court. Failure to comply with the orders of the court can subject him to an adverse judgment enforceable against him personally.

2. In rem Jurisdiction

In rem jurisdiction is not against a specific individual but is designed with reference to all whom it may concern, i.e., "all the world." See Black's Law Dictionary, 4th edition, Id. Here the court obtains jurisdiction against the property rather than the wrongdoer based on the legal fiction that the property is "guilty." The subject of the lawsuit is the property itself and it becomes the party of the litigation. Hence, the legal pleading caption may contain such interesting parties as "United States v. One Assortment of 89 Firearms" see 465 U.S. 354 (1984) or "One 1958 Plymouth Sedan v. Pennsylvania" see 380 U.S. 693 (1965). Notice is given to all potential individuals who may have a legal interest in the property and if they desire to contest the in rem action they must file a legal response as "claimants." Since the court has jurisdiction over the property, it will decide which party has the superior legal claim to the property.

D. Methods of Forfeiture

There are various methods that are utilized to implement asset forfeiture. These include nonjudicial forfeiture, such as summary and administrative forfeiture, and judicial forfeiture comprising criminal and civil forfeitures.

1. Summary Forfeiture

This forfeiture works by operation of law. It applies to items that the law has declared to have no lawful or legitimate purpose and is therefore characterized as contraband per se. These forfeitures are generally effectuated without formal legal process. When the property that has been seized has no further evidentiary value, the law permits the law enforcement agents to destroy it. Examples of items subject to summary forfeiture include controlled substances, see N.C. Gen. Stat. § 90-112(e), and drug paraphernalia. Ark. Code Ann. § 5-64-505(b).

2. Administrative Forfeiture

Administrative forfeiture entails forfeiture of property without formal court action. When statutorily authorized, it permits a law enforcement or prosecutorial agency to give notice to potential claimants that property has been seized based on probable cause, that it is subject to forfeiture, and unless a claim is filed opposing the administrative forfeiture action, the agency will declare the property forfeit to the government.

The rationale for granting administrative forfeiture authority is that it is faster and less expensive than judicial cases and conserves judicial time and resources on uncontested matters. See In re Application for Warrant to Seize One 1988 Chevrolet Monte Carlo, 861 F.2d 307, 310 (1st Cir. 1988); United States v. $57,960.00 in U.S. Currency, 58 F. Supp. 2d 660, 664-65 (D.S.C. 1999); United States v. Ninety-Three (93) Firearms, 330 F.3d 414, 422 (6th Cir. 2003); People v. Angeloni, 40 Cal. App. 4th 1267, 1271 (1995); Malladi Drugs and Pharmaceuticals, Ltd. v. Tandy, 552 F.3d 885, 889-90 (D.C. Cir. 2009). There are four basic elements for administrative forfeiture actions.

1. Notice of the forfeiture action must be served on all potentially interested parties;
2. Notice of the forfeiture proceeding must be either published in a newspaper of general circulation or posted on an official government Internet website, see Supplemental Rules for Certain Admiralty and Maritime Claims, Rule G(4)(a)(iii)(B);
3. If no claim opposing forfeiture is filed during the statutorily required period of actual or published notice, the item is declared forfeit by the administrative agency.
4. If a claim opposing forfeiture is filed, then the administrative forfeiture proceeding halts and the matter is converted into a judicial forfeiture action.

These are civil actions and when they are uncontested, probable cause is sufficient to sustain the forfeiture. Examples of administrative forfeitures are found at 19 U.S.C. § 1602 et seq. (federal customs statutes) and Georgia Code Annotated§ 16-13-49(n).

For a list of states that authorize administrative or uncontested forfeiture, see Table 1-1 below.

Table 1-1 Summary of State Asset Forfeiture Statutes Administrative/Uncontested Forfeiture

State	Statute
Alaska	Ak. Stat. § 17.30.116
Arizona*	Ariz. Rev. Stat. Ann. § 13-4309
California	Cal. Health & Safety Code § 11488.4 (j)
Delaware	Del. Code Ann. Title 16 § 4784 (b) & § 4791 (c)
District of Columbia	D.C. Code § 48-905.02 (d)(3)
Georgia	Ga. Code Ann. § 16-13-49 (n)
Hawaii	Hawaii Rev. Stat. § 712A-10
Illinois	725 ILCS 150/6
Iowa	Iowa Code Ann. § 809A.8
Kansas*	Kan. Stat. Ann. § 60-4109
Louisiana*	La. Rev. Stat. Ann. § 40:2608
Michigan	Mich. Comp. Laws §§ 333.7523; 600.4707
Minnesota	Minn. Stat. Ann. § 609.5314
Mississippi	Miss. Code Ann. § 41-29-176
New Hampshire	N.H. Rev. Stat. Ann. Title § 318-B:17-d
Oregon*	Ore. Rev. Stat. Ann. § 131A.200
Rhode Island	R.I. Gen. Laws § 21-28-5.04.2 (h)
Tennessee	Tenn. Code Ann. § 53-1 1-201
Washington	Wash. Rev. Code Ann. § 69.50.505 (3)

* = Uncontested forfeiture (See Chapter 2, section G.2)

3. Criminal Forfeiture

Criminal forfeitures are in personam actions filed in conjunction with criminal charges as part of the criminal punishment. United States v. Lazarenko, 476 F.3d 642, 647 (9th Cir. 2007). Therefore, it is the defendant's interest in the property that is forfeited rather than the actual property itself. See United States v. Gilbert, 244 F.3d 888, 919-20 (1 1th Cir. 2001). Generally, the forfeiture count or allegation is included on the criminal indictment or information but could also be initiated by a separately filed petition.

Criminal forfeiture requires that the defendant be convicted of the related criminal offense. See United States v. Aramony, 88 F.3d 1369, 1387 n. 11 (4th Cir. 1996). If the underlying criminal conviction is reversed, or the defendant dies prior to sentencing, there can be no criminal forfeiture. United States v. Cherry, 330 F.3d 658, 670 (4th Cir. 2003); United States v. Lay, 456 F. Supp. 2d 869, 875 (S.D. Tex. 2006); United States v. Warshak, 631 F.3d 266, 333 (6th Cir. 2010) (vacating money judgment).

Some jurisdictions require that the forfeiture action be proven beyond a reasonable doubt, see Cal. Penal Code § 186.5(d), but others permit forfeiture by a preponderance of the evidence. See Tenn. Code Ann. § 39-11-708(d). Under federal law, criminal forfeiture is considered part of the sentence and may be proven by preponderance of the evidence. See Libretti v. United States, 516 U.S. 29, 36 (1995); United States v. Dicter, 198 F.3d 1284, 1289 (1 1th Cir. 1999); United States v. Garcia-Guizar, 160 F.3d 511, 517-18 (9th Cir. 1998); United States v. Ferrario-Pozzi, 368 F.3d 5, 8 (1st Cir. 2004).

There are a few unique features of criminal forfeiture. Since it is an in personam action, prior seizure of the property is not required for court jurisdiction and the right to possession remains with the owner. This poses obvious risks, especially if the owner is also a defendant and knows of the impending forfeiture action. If the defendant/owner is allowed to retain possession of the property pending the conclusion of the criminal action, there is a concern...