Beginner's Guide to Federal Forfeiture
| Publication year | 2001 |
| Pages | 18-23 |
| Citation | Vol. 70 No. 3 Pg. 18-23 |
70 J. Kan. Bar Assn. 3, 18-23 (2001). Beginner's Guide to Federal Forfeiture
70 J. Kan. Bar Ass'n, March 2001, 18-23 (2001)
I. Introduction
During the recent legislative session, Congress made numerous changes to the statutes that govern federal asset forfeiture. On August 23, 2000, the provisions of the Civil Asset Forfeiture Reform Act (CAFRA) of 2000[1] took effect. On Dec. 1, 2000, the new comprehensive rule, Fed. R. Crim. P. 32.2, for criminal forfeiture took effect. Further, barring any additional changes by Congress, the modifications to the Supplemental Rules for Certain Admiralty and Maritime Cases will take effect. This article will present a brief overview of current asset forfeiture procedure and highlight the expected changes resulting from the enactment of CAFRA, Rule 32.2 and the Admiralty Rules. It will focus on a generic forfeiture, such as those for controlled substances violations, rather than detailing unique statutes or regulations that pertain only to certain types of property, such as firearms, or to certain agencies, such as the Internal Revenue Service.
II. Administrative Forfeiture
Administrative forfeiture allows a federal agency to forfeit property to the United States without judicial process. The primary statutory authority for this type of forfeiture is found in the Customs laws (19 U.S.C. §§ 1602-21). Agencies utilizing the administrative process specifically incorporate these provisions.[2] The types of property that can be forfeited administratively are listed in 19 U.S.C. § 1607, which include property with a value that does not exceed $500,000. One of the new CAFRA statutes creates an exception to the administrative process: 18 U.S.C. § 985 requires that all civil forfeitures of real property shall be conducted as judicial forfeitures.
Under the present statute, once property has been seized, the seizing agency is required to commence "forthwith" and "without delay" the administrative forfeiture proceeding.[3] However, no specific deadline for commencement of the forfeiture proceedings is provided (except for firearms forfeitures).[4] CAFRA contains a new procedural statute, 18 U.S.C. § 983(a), that imposes deadlines upon the agency for commencement of the forfeiture proceeding. Under this section, the agency must send written notice to interested parties not more than sixty days after the date of the seizure of the property.[5] There are, however, exceptions to the sixty day notice deadline. For example, no notice by the agency is required if the government files a civil judicial forfeiture action before the expiration of the sixty day period.[6] On adoptive cases (where the property is seized by a state or local law enforcement agency and then turned over to a federal law enforcement agency to pursue federal forfeiture), notice to interested persons must be sent out not more than ninety days after the date of the initial seizure.[7] CAFRA provides that if the government fails to send notice of seizure to the person from whom the property was seized, the government shall return the property. However, the government still will be allowed to commence a forfeiture proceeding against the same property at a later date.[8]
To begin the administrative forfeiture process, the agency must publish notice of the seizure of the property and the intent to forfeit the property for three successive weeks in a newspaper of general circulation in the judicial district in which the processing for forfeiture is brought.[9] Currently, the DEA publishes its notices in the Monday edition of the Wall Street Journal. Other agencies utilize different newspapers. Written notice is also mailed to those known to have an interest in the property such as owners, lienholders, and possessors.[10] The publication notice and the written notice must describe the seized property, state the time, place and cause of seizure, and provide the requirements for filing a claim.[11]
In order to contest the administrative forfeiture, under current law, a person must file a claim with the agency within twenty days of the first publication together with a bond in the amount of $5,000 or ten percent of the value of the claimed property whichever is lower, but not less than $250.[12] If someone is unable to post a bond, he may submit an in forma pauperis petition seeking a waiver from the agency of the cost bond requirement based on indigence.[13] If no timely claim and cost bond are filed, the agency may issue a declaration of forfeiture.[14]
CAFRA not only enlarges the date for filing a claim to contest the forfeiture, it eliminates the requirement of a cost bond.[15] Potential claimants will have thirty days from the last date of the published notice. If written notice is received, potential claimants will have until the deadline specified in the written notice to file a claim, but that deadline must be not less than 35 days after the date that the notice is mailed.[16] Additionally, CAFRA specifies what must be contained in the claim. The claim must state the claimant's interest in the property and provide customary documentary evidence for the claim, and the claim must be made under oath, subject to the penalty of perjury.[17] Under pre-CAFRA or CAFRA, potential claimants must submit their claims by the appropriate deadline to avoid losing the ability to contest the forfeiture.
III. Civil Judicial Forfeiture
Once a proper claim and cost bond are filed, the administrative process is halted, and the seizing agency must refer the matter to the United States Attorney for the institution of judicial forfeiture proceedings.[18] Civil forfeiture actions brought pursuant to 21 U.S.C. § 881 (drug forfeiture) and 18 U.S.C. § 981 (general civil forfeiture statute) are governed by 19 U.S.C. § 1621 which requires that the actions be filed within five years after the offense is discovered. Despite the five-year statute of limitations, the civil forfeiture statutes require that the proceedings be instituted promptly.[19] In cases involving the drug-related seizure of an automobile, the government must file the civil forfeiture complaint within sixty days after the claim and cost bond were filed with the agency.[20]
CAFRA contains specific deadlines for the filing of the complaint for forfeiture. The government has ninety days after the filing of the claim to either file a civil forfeiture complaint...
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