5 Civil Pretrial Motions

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

5Civil Pretrial Motions

A. Overview

The strategy of both the prosecutor and defense attorney should be to conclude the litigation as quickly and inexpensively as possible. A pretrial motion brought early in the action could terminate the matter without the necessity of prolonged civil discovery or even a trial. Each side, therefore, should review potential motions that could be brought immediately after the action is filed. For ease of discussion, they will be categorized and discussed as potential prosecution and defense motions.

1. Prosecution Motions

Prosecution pretrial motions should be brought to attack any procedural defects in the defense's responsive documents or to challenge the claimant's standing to contest the forfeiture.

B. Standing

There are two types of standing that are required in asset forfeiture litigation. They are: 1) statutory and 2) jurisdictional standing. In the federal system, jurisdictional standing is called case or controversy, Article III, or constitutional standing. See United States v. $38,000 in U.S. Currency, 816 F.2d 1538, 1543 (1 1th Cir. 1987); United States v. $103,387.27, 863 F.2d 555, 561, fn. 10 (7th Cir. 1988); United States v. One-Sixth Share Lottery Ticket No. M246233, 326 F.3d 36, 40 (1st Cir. 2003); United States v. 8 Gilcrease Lane, 641 F. Supp. 2d 1, 5-6 (D.D.C 2009); United States v. $487,825.00, 484 F.3d 662, 664 (3d Cir. 2007); United States v. $541,395.06 in U.S. Currency, 2012 WL 3614294 (W.D.N.Y. 2012); United States v. $5,730.00 in U.S. Currency, 109 Fed. Appx. 712, 713 (6th Cir. 2004).

1. Statutory Standing

Current federal statutes set specific timelines within which the claim, see 18 U.S.C. § 983(a)(4)(A); Supplemental Rule G(4)(b)(ii)(B) (35 days); Supplemental Rule G(5)(a)(ii)(B) (30-60 days); and answer, see 18 U.S.C. § 983(a)(4)(B); Rule G(5)(b) (21 days), must be filed. The states have similar filing requirements. See Table 4-2. Federal and state statutes also require that the responses be verified. See Supplemental Rule G(5)(a)(i)(C); Ohio Rev. Code Ann. § 2981.04(E)(1)(b); Ark. Code Ann. § 5-64-505(g)(4).

These are statutory provisions, and once these procedural requirements have been met, the claimant has statutory standing to contest the forfeiture. See United States v. $38,000 in U.S. Currency, 816 F.2d at 1544; United States v. $103,387.27, 863 F.2d at 559; United States v. $6,207.00 in U.S. Currency, 2009 WL 2169167, *4 (M.D. Ala. 2009). Proof of ownership is not an element of statutory standing. United States v. Assets Described in "Attachment A", 799 F. Supp. 2d 1319, 1327-28 (M.D. Fla. 2011).

Therefore, if the claim or answer are unverified, see United States v. Commodity Account No. 54954930 at Saul Stone & Co., 219 F.3d 595, 597 (7th Cir. 2000); Matter of $70,269.91 in U.S. Currency, 172 Ariz. 15; 833 P.2d 32, 37 (Ariz. App. 1991), or untimely filed, see United States v. One 1990 Mercedes Benz 300 CE, 926 F. Supp. 1, 5 (D.D.C. 1996); Stalvey v. State, 210 Ga. App. 544; 436 S.E.2d 579, 580-81 (Ga. App. 1993), a motion to strike the pleadings should be brought for lack of statutory standing.

Federal and state courts generally have strictly enforced these filing requirements and stricken claims and answers that are not timely filed or properly verified. See Mercado v. U.S. Customs Service, 873 F.2d 641, 645 (2d Cir. 1989); People v. $400, 17 Cal. App. 4th 1615, 1620 (1993); United States v. $25,790 in U.S. Currency, 2010 WL 2671754, *2 (D. Md. 2010).

Courts have discretion to waive these requirements, however, and occasionally exercise it. See United States v. Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir. 1985); United States v. Real Property at 2659 Roundhill Drive, 194 F.3d 1020, 1024 (9th Cir. 1999); United States v. $125,938.62, 370 F.3d 1325, 1329 (1 1th Cir. 2004); Games-Neeley ex rel. West Virginia State Police v. Real Property, 211 W.Va. 236; 565 S.E.2d 358, 366 (W.Va. 2002); United States v. $15,840.00 in U.S. Currency, 2011 WL 4558668, *3 (S.D. Ohio 2011). If the court does strike the claim and answer, the government should then proceed to obtain a default judgment.

2. Jurisdictional Standing

Federal Standing

Before a federal court can assert jurisdiction in a matter, it must assure that the litigant has an actual case or controversy as defined by Article III of the U.S. Constitution. This means that the litigant has alleged a personal stake in the outcome of the controversy as to warrant his or her invocation of the federal court jurisdiction. See Warth v. Seldin, 422 U.S. 490, 499 (1975). Further, the plaintiff must have suffered some type of direct or indirect injury due to the act challenged in court. See Village of Arlington Heights v. Metropolitan Housing Development, 429 U.S. 252, 261 (1977).

Federal case or controversy standing is difficult to describe because the federal courts have been remarkably imprecise in defining it. It is essentially a legal, possessory, or equitable interest in the property. See United States v. Real Property (116 Emerson Street), 942 F.2d 74, 78 (1st Cir. 1991); United States v. Real Property at 221 Dana Avenue, 261 F.3d 65, 71 n. 5 (1st Cir. 2001). Some of the factors that the courts have considered in finding case or controversy standing include:

• Evidence of ownership, see United States v. Coluccio, 51 F.3d 337, 341 (2d Cir. 1995);
• Actual possession, see United States v. $191,910.00 U.S. Currency, 16 F.3d 1051, 1058 (9th Cir. 1994);
• Title owner, see In re Seizure of $82,000, 119 F. Supp. 2d 1013, 1017 (W.D. Mo. 2000); United States v. One 1945 Douglas C-54 (DC-4) Aircraft, 647 F.2d 864, 866 (8th Cir. 1981);
• Financial or personal stake, see United States v. One Lincoln Navigator 1998, 328 F.3d 1011, 1013 (8th Cir. 2003); United States v. $120,751.00, 102 F.3d 342, 343 n. 2 (8th Cir. 1996); or
• Direct injury, United States v. Cambio Exacto, S.A., 166 F.3d 522, 527 (2d Cir. 1999).

At minimum, federal case or controversy standing requires a "facially colorable interest" in the property. See United States v. $9,041,598.68, 163 F.3d 238, 245 (5th Cir. 1998); United States v. Premises Known as 7725 Unity Avenue, 294 F.3d 954, 957 (8th Cir. 2002); United States v. $38,570 U.S. Currency, 950 F.2d 1108, 1112 (5th Cir. 1992); United States v. U.S. Currency, $81,000, 189 F.3d 28, 35 (1st Cir. 1999); United States v. One-Sixth Share Lottery Ticket No. M246233, 326 F.3d 36, 41 (1st Cir. 2003).

A facially colorable interest should consist of at least an allegation of interest in addition to some supporting evidence. See Mercado v. U.S. Customs Service, 873 F.2d 641, 644-45 (2nd Cir. 1989); United States v. $38,570 U.S. Currency, 950 F.2d 1108, 1111-13 (5th Cir. 1992); United States v. One Parcel of Land Known as Lot 111-B, 902 F.2d 1443, 1445 (9th Cir. 1990); United States v. $9,041,598.68, 976 F. Supp. 642, 648 n. 10 (S.D. Tex. 1997); United States v. $100,348, 354 F.3d 1110, 1118 (9th Cir. 2004).

Some courts hold that a claimant must demonstrate "prudential standing." Under this rubric, the party must show that his interest in the property "is arguably within the zone of interests to be protected or regulated by the statute," which is equated with ownership as defined in 18 U.S.C. § 983(d)(6). United States v. $500,000.00 in U.S. Currency, 591 F.3d 402, 404 (5th Cir. 2009); United States v. $39,557.00, More or Less, in U.S. Currency, 683 F. Supp. 2d 335, 344 (D.N.J. 2010). However, other courts find that ownership is not required for jurisdictional standing so long as the claimant can demonstrate an economic injury as a result of the seizure. Via Mat International South America, Ltd. v. United States, 446 F.3d 1258, 1262-63 (11th Cir. 2006).

Even though a claimant may be able to demonstrate Article III or case or controversy standing to enter the lawsuit, he or she may not have sufficient evidence to establish the essential ownership interest to prevail on the affirmative defense issue of innocent owner once the case proceeds to trial. See United States v. $9,041,598.68, 163 F.3d 238, 245 (5th Cir. 1998); United States v. One Lincoln Navigator 1998, 328 F.3d 1011, 1014-15 (8th Cir. 2003); United States v. 5 S 351 Tuthill Road, 233 F.3d 1017, 1026-27 (7th Cir. 2001); United States v. 2001 Honda Accord EX, 245 F. Supp. 2d 602, 607 n. 4 (M.D. Pa 2003).¹ This is discussed more fully in Chapter 7, Section H.3.

Case or controversy standing is a pretrial legal question that should be determined by a court, not a jury. See United States v. Cambio Exacto, S.A., 166 F.3d 522, 526 (2d Cir. 1999); United States v. One Lincoln Navigator 1998, 328 F.3d 1011, 1014 (8th Cir. 2003); United States v. All Funds in the Account of Property Futures, Inc., 820 F. Supp. 2d 1305, 1325 (S.D. Fla. 2011). The decision should not later be revisited based on evidence presented at trial or the facts found by the jury. See United States v. $557,933.89 More or Less in U.S. Funds, 287 F.3d 66, 78 (2d Cir. 2002).

State Standing

Under state law, a claimant must also assert an interest in the property to contest a forfeiture action. See Cal. Health & Safety Code § 11488.5(a)(1); Ga. Code Ann. § 16-13-49(o)(3), and he or she carries the burden to prove standing. Chuck v. City of Homestead PD, 888 So.2d 736, 745 (Fla. App. 2004). It appears that in the state system, however, jurisdictional standing is higher than the case or controversy or Article III standard articulated by the federal courts.

For example, in California the word "interest" has been defined as a bona fide ownership, possessory, or security interest. See People v. $28,500 U.S. Currency, 51 Cal. App. 4th 447, 467 (1996); People v. Fifteen Thousand Two Hundred Seventeen Dollars, 218 Cal. App. 3d 720, 724-25 (1990). Therefore, standing in this state means a legally cognizable interest that must be established at the outset rather than the end of the forfeiture proceeding. See People v. $28,500 U.S. Currency, 51 Cal. App. 4th at 467. This is based on the premise...