Drug Abuse

ASSET FORFEITURE: RULES AND PROCEDURES
by Brenda Grantland

Brenda Grantland, Esq., is an attorney in Washington, D.C. She has handled forfeiture cases since 1984 and has helped form a new organization,. FEAR is forming a forfeiture lawyers directory. If you would like to join the organization (membership $20) or be listed in the directory, contact FEAR at: P.O. Box 513, Franklin, NJ 07416.

Introduction to asset forfeiture

Asset forfeiture-the process by which the government permanently takes property away from the owner, without paying just compensation, as a penalty for offenses committed by the property or the owner-is one of the most controversial law enforcement weapons in the - "War Against Drugs." Although it has come into vogue in the past few years, asset forfeiture has existed since Biblical times.

Forfeitures have existed for thousands of years and are traceable to biblical and pre-Judeo Christian times. At early English law, there were three basic kinds of forfeiture. The first, "forfeiture consequent to attainder," was applied to felons and traitors in order to divest the convicted person of all real and personal property. The second, "statutory forfeiture," tailored the forfeiture to the severity of the crime. Finally, the English law recognized a kind of forfeiture known as "deodand," which required forfeiture of the instrument of a person's death. The principle was based on the legal fiction that the instrument causing death was deemed "guilty property" capable of doing further harm. For example, if a domesticated animal killed a person, it would be forfeited, usually to the King, regardless of the guilt of its owner. The original purpose for creating this legal fiction was to satisfy the superstition that a dead person would not lie in tranquility unless the "evil property" was confiscated and viewed by the deceased's kin as the object of their retribution. Eventually, the King used forfeiture to enhance revenue, and this corrupt practice lead to the statutory abolishment of deodand in England in 1846.

Irving A. Pianin, Criminal Forfeiture: Attacking the Economic Dimension of Organized Narcotics Trafficking, 32 American U.L. Rev. 227, 232 (1982

Many of the anachronisms in forfeiture procedure and doctrine-such as the fiction that the property itself is the defendant are remnants of this ancient history. Others-such as the lowering of the burden of proof to probable cause in the federal statute, and the requirement that the claimant post a bond in order to litigate his/her right to the property-were created by the legislature to make it easier for law enforcement to prevail. Because no liberty interest was implicated, proponents of the new forfeiture laws believed the government had virtually unlimited power to punish under the guise of "remedial" civil statutes without having to deal with the stringent proof requirements of the criminal courts.

A number of commentators believe the legislatures have gone too far in easing the government's burden of proof and relaxing the normal civil due process safeguards. Several of the controversial departures in proce dure have been struck down as unconstitutional.

The law is rapidly changing in this area. Because the War on Drugs has resulted in new tactics by law enforcement which go far beyond previous practices and test the limits of the Constitution, virtually every forfeiture case is a case of first impression on some issue. Attorneys who undertake forfeiture cases should be alert for these issues.

Even with the standards and procedures strongly slanted in the government's favor, often the government fails to measure up to them. Numerous problems have been cited in the federal government's management of property seizure and forfeiture programs in studies by the United States General Accounting Office. Among the specific problems cited are failures to preserve the condition of the property and to protect the interests of innocent third parties. See, e.g., "Real Property Seizure and Disposal Program Improvements Needed," Statement of Gene L. Dodaro, Associate Director, General Government Division, before the Subcommittee on Federal Spending, Budget and Accounting, U.S. Senate, GAO/T- GGD 87-28 (September 25, 1987) (a copy of this document may be obtained free of charge from the General Accounting Office publications office).

Civil vs. criminal forfeitures

There are two types of forfeiture--civil, or in rem forfeitures, and criminal, or in personam forfeitures. A number of courts have grappled with the distinction.

The classical distinction between civil and criminal forfeiture was founded upon whether the penalty assessed was against the person or against the thing. Forfeiture against the person operated in personam and required a conviction before the property could be wrested from the defendant. See Calero-Toledo v Pearson Yacht Gearing Co., 416 U.S. 663, 682, (1973); One 1958 Plymouth Sedan v Pennsylvania, 380 U,S. 693, 700, 85 S Ct. 1246, 1250; 14 L.Ed.2d 170 (1965). Such forfeitures were regarded as criminal in nature because they were penal; they primarily sought to punish.

United States v Seifuddin, 820 F.2d 1074, 1076 (9th Cir. 1987).

"Criminal" forfeitures are subject to all the constitutional and statutory procedural safeguards available under criminal law. The forfeiture case and the criminal case are tried together. The forfeiture counts must be included in the indictment of the defendant which means the grand jury must find a basis for the forfeiture. At trial, the burden of proof is beyond a reasonable doubt. Examples of criminal forfeiture statutes in current use are RICO (18 U.S.C. § 1963), the Continuing Criminal Enterprise statute (21 U.S.C. § 848) and the criminal forfeiture provision of the drug laws, (21 U.S.C. § 853).

"Civil" forfeitures, on the other hand, are in rem actions, "based upon the unlawful use of the res, irrespective of its owner's culpability." Id. Traditionally, civil forfeiture has operated on the fiction that the res itself is the guilty party, and the fact that the forfeiture of the property effects someone's property rights was at first not considered.

Civil forfeiture follows the rules of civil procedure, with the exceptions discussed in the following section entitled "Nature of Forfeitures." The most drastic difference is the burden of proof. In criminal forfeitures, the burden of proof is on the government to prove its case beyond a reasonable doubt. Under the District of Columbia and federal forfeiture statutes (as well as the statutes of many states) the government has only to show probable cause, then the burden shifts to the claimant. Most civil forfeiture statutes also relax the normal requirements for service of process in civil cases, and allow the government to send notice by fast class mail coupled with publication. This has traditionally been permitted because civil forfeiture is "in rem" instead of "in personam."

Often courts have drawn a distinction between civil and criminal forfeitures in determining whether a particular constitutional right applies to forfeiture. Analysis along these lines is problematic because the distinction is so arbitrary, and constitutional rights are not so neatly categorized. Whether a forfeiture statute is civil or criminal turns on whether it is "punitive or remedial" under the standard of United States v Ward, 448 U.S. 242, 248-49 (1980), which depends on the intent of the legislature in enacting the statute:

[T]he question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction.... Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other... Second where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.... In regard to this latter inquiry, we have noted that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground."

United States u Ward, 448 U.S. 242, 248-49 (1980), quoting Flemming v Nestor, 363 U.S. 603 (1960). In determining whether the sanctions are so punitive as to override a legislative intent to enact a civil penalty, the Court applied the seven considerations listed in Kennedy v Mendoza-Martinez, 372 U.S. 144, 168-69 (1963):

[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a fording of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.

Constitutional implications of the quasi-criminal nature of forfeitures

All forfeiture actions, whether they are denominated "civil" or "criminal" forfeitures, are "quasi-criminal" in nature, and therefore require many of the constitutional procedural safeguards guaranteed to defendants in criminal cases.

[P]roceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal. In this very case the ground of forfeiture ... consists of certain acts of fraud committed against the public revenue ... ; and it is declared, that the offender shall be fined ... or be imprisoned ... ; and in addition to such fine such merchandise shall be forfeited. These are the penalties affixed to the criminal acts, the forfeiture sought by this suit being one of them.... The [case], though technically a civil proceeding, is in substance and effect a criminal one.... As, therefore, suits for penalties and forfeitures incurred by the commission of offenses against the law, are of this quasi criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the constitution.

One 1958 Plymouth Sedan v Commonwealth of Pennsylvania, 380 U.S. 693, 697-98 (1965), quoting Boyd v United States, 116 U.S. 616, 633-34 (1886).

In addition to the Fourth Amendment's search and seizure clause, the United States Supreme Court has extended several other constitutional rights recognized in criminal cases to all forfeiture actions-civil or criminal.

These include: the Fifth Amendment's privilege against self-incrimination, United States v United States Coin & Currency, 401 U.S. 715 (1971); and the Sixth Amendment's speedy trial guarantee, which has been read in through the Fifth Amendment's due process clause. United States u $8,850, 461 U.S. 555 (1983).

The ex post facto clause of Article II Section 9 has been held to be applicable to forfeitures. United States v MacDonald, 607 F. Supp. 1183 (E.D.N.C. 1985); United States v Lot Number 50 on Map of Kingsbury, 557 F Supp. 72 (D. Nev. 1972). In several courts, the Eighth Amendment cruel and unusual punishment clause has been found to apply to bar disproportionality between the offense and penalty in criminal forfeiture cases. United States v Busher, 817 F2d 1049 (9th Cir. 1987) (RICO statute, 18 U.S.C. § 1963(a), is subject to Eighth Amendment); United States v Huber, 603 F2d 387 (2nd Cir. 1979), cert. denied, 445 U.S. 927 (1980) (same); United States v Littlefteld, 821 F.2d 1365 (9th Cir. 1987) (drug "criminal forfeiture" statute, 21 U.S.C. § 853, is subject to Eighth Amendment).

The double jeopardy clause has been found not to prevent forfeiture after a criminal acquittal for the same offense, nor does an acquittal bar forfeiture under the doctrine of collateral estoppel (because of the higher burden of proof in criminal cases). United States v One Assortment of 89 Firearms, 465 U.S. 354 (1984). The confrontation clause was held not to apply, in United States v Zucker, 161 U.S. 475 (1896); however, most of the forfeiture cases of that era have not stood the test of time.

Claimants in forfeiture cases are not entitled to representation by counsel at the government's expense. The Supreme Court has held that a person has a right to a court appointed attorney at the government's expense only if the judgment could result in the loss of liberty, Arg ersinger v Hamlin, 407 U.S. 25 (1972), and convictions can be reversed on denial of counsel grounds only if the judgment results in a sentence of imprisonment, Scott u Illinois, 440 U.S. 374-75 (1979).

There is a vast no-man's land of other constitutional guarantees from the criminal law context that have never been tested in the forfeiture arena.

Government's authority to take

The Fifth Amendment to the United States Constitution provides, among other things, "nor shall private property be taken for public use without just compensation." That would seem to bar forfeitures entirely, but it doesn't. In Calero-Toledo v Pearson Yacht Leasing Co., 416 U.S. 663 (1973), the Supreme Court rejected the contention that the Puerto Rican forfeiture statute, which had no innocent owner defense, "unconstitutionally authorized a taking for government use of innocent parties' property without just compensation." The Court cited a long line of Supreme Court precedents establishing that innocence of the owner was not a defense to forfeiture. "Judicial inquiry into the guilt or innocence of the owner could be dispensed with, the Court held, because state lawmakers, in the exercise of the police power, were free to determine that certain uses of property were undesirable and then establish `a secondary defense against a forbidden use.' " Calero-Toledo, 416 U.S. at 686. But, the Court pointed out, this doctrine too has its limitations:

This is not to say, however, that the "broad sweep" of forfeiture statutes remarked in Coin & Currency could not, in other circumstances, give rise to serious constitutional problems. Mr. Chief Justice Marshall intimated as much over a century and a half ago in observing that "a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed." Peisch u Ware, 4 Cranch 347, 363 (1808). It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent.... Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property.

Calero-Toledo, 416 U.S. at 688-89.

The power of the government to "take" private property without implicating the just compensation clause is limited to takings that are authorized by the police power. The police power is a function, delegated to each state and local government, to establish and enforce laws to preserve public order and tranquility, promote the public health, safety, and morals and prevent, detect and punish crime. See State v Hine, 59 Conn. 50,21 A.1024 (1890).

This is an area of overlapping and sometimes competing constitutional concerns--the rights of the individual vs. the protection of the public. It is also an area of the law that is in great flux. In 1987 the U.S. Supreme Court decided three takings cases: Keystone Bituminous Coal u DeBenedictis, 480 U.S. 470 (1987); First English Evangelical Lutheran Church a Los Angeles County, 482 U.S. 304 (1987), and Nollan u California Coastal Com mission, 483 U.S. 825 (1987). It is unclear at this point how the development of the "takings" doctrine will affect forfeiture cases. For an analysis of these cases, see Si emon and Lasen, The Taking Issue Trilogy: The Begin ning of the End? 33 J. Urban & Contemp. Law 169 (1988). See also Epstein, Takings: Private Property and the Power of Eminent Domain (Harvard University Press, 1985).

The police power permits the taking of life, liberty and property, but only with due process of law. At a minimum, like statutes imposing criminal penalties, forfeiture statutes must be strictly construed in favor of the claimant. Forfeiture statutes should be construed "in a manner favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation." District of Columbia u One 1981 Datsun 200SX, 115 (April 2, 1987) (D.C. Super. Ct., Burgess, J.), quoting State u 1979 Pontiac Trans Am, 98 N.J. 474, 487 A.2d 722, 726 (1985).

Statutory grounds for forfeiture

The following terms are commonly used in both federal and state statutes, and are defined, interpreted or distinguished in the cases cited:

"Used or intended for use to facilitate"-United States u Fleming, 677 F2d 602 (7th Cir. 1982) (car used to transport defendant to place where drug transaction was to take place was subject to forfeiture); United States u Ader, 520 F Supp. 313 (E.D.N.C. 1980) (interpreting term in connection with 21 U.S.C. § 881.)

"Proceeds traceable to a drug transaction "-This language has sometimes been interpreted to include a requirement that the property have a substantial connec tion to illegal drug trafficking." United States v A Single Family Residence, 503 F .2d 625 (11th Cir.1986), quoting United States v $4,255,625.39, 762 F. 2d 895 (11th Cir. 1985), cert. denied, 474 U.S. 1056 (1986).

"Proximity to drugs" D.C. Code 33-552(a)(7)(B) creates a presumption that money found in close proxim ity to drugs was used or intended for use in violation of the drug laws. This provision was found to be unconsti tional by Superior Court Judge Curtis Von Kann, in District of Columbia v $987 (Purvis Williams), 115 (July 8, 1987).

"Quantity of drugs necessary to effect a forfeiture" The amount of drugs involved in a drug forfeiture case is immaterial to the forfeiture case. United States v One 1976 Porsche, 670 F2d 810, 811 (9th Cir. 1979); United States v One Clipper Bow Ketch Nisku, 548 F.2d 8 (1stCir. 1977); United States v One 1975 Chevrolet K-5 Blazer, 495 F. Supp. 737 (W.D. Mich. 1980); United States v One Chevrolet Pickup, 503 F Supp.1027, 1030 (D. Colo. 1980); United States v One 1975 Mercury Monarch, 423 F. Supp. 1026 (S.D.N.Y 1976). These cases merely construed the statutes-none of the cases dealt with the issue of whether the proportionality requirement of the Eighth Amendment's cruel and unusual punishment clause was implicated by disproportionate penalties.

"Substantial connection requirement"-United States v One 1972 Datsun, 378 F. Supp. 1200 (D.N.H. 1974).

"To facilitate "-United States v One 1972 Chevrolet Corvette, 625 F.2d 1026 (1st Cir. 1980); Platt v United States, 163 F.2d 165 (10th Cir. 1947); United States v One Dodge Coupe, 43 F. Supp. 60 (S.D.N.Y 1942).

"Used in a gambling operation "-Vasille v District of Columbia, 296 A.2d 443 (D.C. 1972).

Federal statutes

The federal government has a large number of forfeiture statutes, but the most widely used are: 21 U.S.C. §§ 853, 881 (relating to drug offenses), 18 U.S.C. § 1963 (racketeer influenced and corrupt organizations), 8 U.S.C. § 1324 (immigration), 18 U.S.C. § 545,19 U.S.C. § 1497, 31 U.S.C. § 5317 (customs violations), 49 U.S.C. § 781 (transportation of drugs, illegal weapons, counterfeit money).

Below is a discussion of the federal forfeiture statutes which commonly relate to drug law enforcement. Drug forfeitures under federal statutes

The most commonly used civil forfeiture statute governing forfeiture for drug offenses is 21 U.S.C. § 881(a). It subjects to forfeiture:

(1) all controlled substances;

(2) raw materials, products and equipment used or intended for use to manufacture, process, deliver or import/export controlled substances;

(3) property used or intended for use as containers for controlled substances;

(4) conveyances, including aircraft, vehicles or vessels (except common carriers whose owner was not a consenting party or privy to the offense) used or intended for use to transport or facilitate the transportation of controlled substances. This section has two innocent owner defenses other than the common carrier exception, § 881(a)(4)(B) and § 881 (a)(4)(C);

(5) books, records, research, formulas and data used in violation of the drug laws;

(6) money and negotiable instruments or any other thing of value "furnished or intended to be furnished" in exchange for controlled substances, including all proceeds traceable to such a transaction, and money and negotiable instruments used or intended to be used to facilitate a violation of the drug laws. This section has an innocent owner defense which protects the interest of any owner from forfeiture of money "by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner";

(7) all right, title and interest to real property which was used or intended for use to commit, or to facilitate the commission of a felony drug offense. An innocent owner is protected from forfeiture of his/her interest in real estate "by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner";

(8) controlled substances possessed in violation of the drug laws;

(9) chemicals and equipment used in manufacture, distribution;

(10) drug paraphernalia

(11) firearms used or intended to be used to faciliate a drug offense.

A counterpart to the civil forfeiture statute 21 U.S.C. § 881 is the criminal forfeiture statute, 21 U.S.C. § 853, which allows forfeiture of property involved in felony drug offenses proscribed in title 21 of U.S. Code. Before forfeiture can occur under § 853, the owner must have been convicted of the underlying felony drug offense. Procedurally trials of § 853 criminal forfeitures vary substantially from civil forfeiture trials under § 881, for in § 853 cases, the forfeiture count is tried as separate counts, but along with the criminal case.

Upon conviction of a felony drug offense under title 21 U.S. Code Subchapter II, or of engaging in a continuing criminal enterprise, under 21 U.S.C. § 848(c)(2), the following property owned by the criminal defendant is subject to forfeiture:

(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;

(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and

(3) in the case of a person convicted of engaging in a continuing criminal enterprise in violation of section 848 of this title, the person shall forfeit, in addition to any property described in paragraph (1) or (2), any of his interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise. 21 U.S.C. § 853(a).

A conviction under 21 U.S.C. § 848(c), the "continuing criminal enterprise" statute, requires: (1) commission of a felony drug offense, and (2) the offense must have been "part of a continuing series of violations" of the felony drug laws

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources. 21 U.S.C. § 848(c)(2).

Vessels, vehicles and aircraft used to transport contraband drugs are forfeitable under 49 U.S.C. § 781(b)(1). Racketeer influenced and corrupt organizations

Anyone convicted under 18 U.S. Code § 1962, Racketeer Influenced and Corrupt Organizations, forfeits: (1) any interest the person has acquired or maintained in violation of section 1962; (2) any-{A) interest in; (B) security in; (C) claim against; or (D) property or contractual right of any kind affording a source of influence over; any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of in violation of section 1962; and (3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of section 1962.

In R.I.C.O. cases, the forfeiture counts are tried along with the criminal trial, and the court imposing sentence in the criminal case orders forfeiture of the property described above. 18 U.S.C. § 1963(a).

Customs forfeitures

19 U.S.C. § 1497 authorizes forfeiture of any article required to be declared upon entering customs if the article was not properly declared.

31 U.S. Code § 5316(a) requires persons carrying more than $10,000 at one time across the border (going into the U.S. as well as out of the U.S.), or receiving more than $5,000 at one time that has been transported across the border, to file a written report. When money has been transported across the border in violation of § 5316(a), or when a material omission or misstatement is contained in the report, is subject to forfeiture under 31 U.S.C. § 5317(b).

Smuggling goods across the border also subjects them to forfeiture under 18 U.S.C. § 545. This applies to anyone who knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document paper, or [w]hoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law.

Id.

Firearms forfeitures under federal law

Under 49 U.S.C. § 781(b)(2), "any firearm, with respect to which there has been committed any violation of any provision of the National Firearms Act or any regulation issued pursuant thereto" is subject to forfeiture.

Firearms used or intended for use to facilitate a drug offense are forfeitable under 21 U.S.C. § 881(a)(11).

Defenses to forfeiture

Affirmative defenses must be raised in the answer, Fed. R. Civ. P and Sup. Ct. R. Civil Rule 8(c), but the answer may be amended even at the time of trial to conform with the and Sup. Ct. R.-Civil Rule 15(b). However, it is a good practice to amend the answer as soon as there appears to be evidence to support an affirmative defense. The most common affirmative defenses to forfeiture are: Innocent Owner, Personal Use, Statute of Limitations, and the constitutional defenses of Denial of Speedy Trial, and Illegal Search and Seizure.

Innocent owner defense

Section 881(a)(7) of title 21 U.S.C., dealing with the forfeiture of real estate for violations of the drug laws, has an innocent owner defense identical in all significant respects to that used in the D.C. statute governing forfeiture of conveyances for drug violations:

[N]o property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reasons of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.

Id. Most of the other federal statutes provide little or no protection of the interests of innocent owners and third parties.

Where the forfeiture statute does not contain a better innocent owner defense, the Constitution guarantees at a minimum that a person not be deprived of his/her property if he/she did not know of or consent to the illegal use of the property and did everything he/she reasonably could be expected to do to prevent the illegal use. Calero Toledo v Pearson Yacht Leasing Co., 416 U.S. 663 (1974). This defense is read into the federal statute.

Personal use defense

That the drugs seized were intended for personal use and not for sale is a defense to forfeiture of a car under some state statutes. For example, the D.C. drug forfeiture statute, 33 D.C. Code § 552(a)(4)(C), or real estate under 33 D.C. Code § 552(a)(8)(B). See also United States v Zarbough, 115 (February 11, 1987).

Simple possession for personal use is not a defense to forfeiture under the federal counterpart, 21 U.S.C. § 881. Often when the D.C. police seize a car and do not have enough evidence of intent to distribute, they will turn the car over to the federal government (DEA or FBI) for prosecution under the federal statute. This is called federal adoption of a state seizure. If the federal government prevails, they share the proceeds with the District government.

Statute of limitations

Under the federal law, the statute of limitations is 5 years from the seizure. 19 U.S. Code § 1621. Even if the action is brought within the applicable statute of limitations, it may be time-barred by the Due Process Clause. $8850 supra.

Constitutional defenses: suppression of evidence

Although not technically a defense, winning a suppression motion often makes it difficult to impossible for the government to prevail at trial. In forfeiture cases the Fourth Amendment may be used to suppress evidence in the same manner as it is used in criminal cases. One 1958 Plymouth Sedan u Commonwealth of Pennsylvania, 380 U.S. 693 (1965). The entire body of search and seizure law is applicable.

Without question, contraband, incriminating documentary evidence, and money seized as a result of an illegal seizure of the res must be suppressed as evidence in the forfeiture trial. But the illegal seizure of the res does not itself bar forfeiture, so long as the government presents other, untainted evidence to prove the illegal use.

An innocent owner often does not have standing to challenge the stop and search of a car because he/she was not present at the time of the seizure. United States u One 1977 Mercedes Benz, 450 SEL, 708 R2d 444, 448 (9th Cir.1983) (owner relinquished reasonable expectation of privacy when she lent her automobile to a third party.)

Where there are parallel criminal and civil forfeiture proceedings involving the same parties and issues, resolution of a suppression issue in one case should be collateral estoppel in the other. The doctrine of collateral estoppel prohibits parties who have litigated one cause of action from relitigating in a second and different cause of action matters of fact which were, or necessarily must have been, determined in the first litigation. Tutt u Doby, 148 U.S. App. D.C. 171, 459 R2d 1195, 1197 (1972).

Denial of speedy trial

In United States u $8,850, 461 U.S. 555 (1983), the United States Supreme Court held that the four factor balancing test of Barker u Wingo, 407 U.S. 514 (1972), used to determine when delay of the trial in criminal cases violates the accused's rights to a speedy trial, is the test to be used in determining when delay in forfeiture cases violates the Due Process clause. The four factors set out by Barker u Wingo and $8850 are: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." $8850 at 565.

Although the delay challenged in $8850 was the delay between the seizure and the filing of a forfeiture complaint, it has been held that the Barker u Wingo factors also apply to delay between the filing of the action and the trial.

To require prompt filing of a forfeiture action but allow indefinite postponement of the trial would reduce the filing requirement to a nullity. Under the Barker test, which we think applies to the holding of the forfeiture trial as well as to the filing of the action, there is a due process violation at some point.

United States u Banco Cafetero Panama, 797 R2d 1154 (2d Cir. 1986).

[T1here has been no uniformity in deciding what constitutes a reasonable length of time. Delays of five months, United States v One 1973 Buick Riviera, 560 F. 2d 897 (8th Cir. 1977), nine months, United States v One 1972 Wood, 19 Foot Custom Boat, 501 R2d 1327, 1329 (5th Cir. 1974), and fourteen months, United States v One 1973 Ford LTD, 409 F. Supp. 741 (D. Nev. 1976), have been deemed reasonable. Generally a majority of the circuits have held that a delay of more than one year is unreasonable in the absence of a compelling reason, such as a lengthy criminal investigation or substantial problems with collecting evidence. States Marine Lines, Inc. v Schultz, 498 F .2d 1146 (4th Cir. 1974)

Darmstadter & Mackoff, Some Constitutional and Practical Considerations of Civil Forfeitures Under 21 U.S.C. Sec. 881, 9 Whittier L. Rev. 27, 40 (1987).

Forfeiture procedure, seizure warrants, restraining orders and warrantless seizures

In federal law, warrantless forfeitures are governed by 21 U.S.C. § 881(b), which provides:

Any property subject to civil or criminal forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court of the United States having jurisdiction over the property, except that seizure without such process may be made when

(1) the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;

(2) the property subject to forfeiture has been the subject of a prior judgment in favor of the United States in a

criminal injunction or forfeiture proceeding under this subchapter;

(3) the Attorney General has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

(4) the Attorney General has probable cause to believe that the property is subject to civil or criminal forfeiture under this subchapter.

In the event of seizure pursuant to paragraph (3) or (4) of this subsection, proceedings under subsection (d) of this section shall be instituted promptly.

Warrantless seizures

Federal law, 21 U.S.C. § 881(b)(4), provides exceptions to the warrant requirement in the seizure of assets for forfeiture. Generally it is thought that the power to seize without a warrant is coextensive with the power to search without a warrant, provided the search leads to probable cause to seize. The same exceptions to the warrant requirement apply to both searches for evidence and seizures for forfeiture. Thus, if under the facts of the case there exists probable cause for an automobile or container or other thing to be searched, under any exception to the warrant requirement, and the search turns up evidence which makes out probable cause to support a forfeiture of the automobile, container, etc., it may be seized without a warrant. There are, however, a few qualifications to that general rule.

It has been held by some courts that the seizure of the res must occur contemporaneously with the event giving rise to probable cause for seizure, and there must be a showing of exigent circumstances. In United States v Pappas, 613 F2d 324, 327 (5th Cir. 1979) the Fifth Circuit stated:

Since Sec. 881(b)(4) creates an exception that threatens to swallow Section 881(b)'s warrant requirement, we would be reluctant to give it an absolutely literal 327, quoting United States v One 1972 Chevrolet Nova, 560 F2d 464, 469 (1st Cir. 1977). The court held: we think it reasonable to read the "probable cause" exception as justifying the warrantless seizure of an automobile only when the seizure immediately follows the occurrence that gives the federal agents probable cause to believe that the automobile is subject to forfeiture under section 881(a) and the exigencies of the surrounding circumstances make the requirement of obtaining process unreasonable or unnecessary.

But see United States v One 1977 Lincoln Mark V Coupe, 643 F2d 154 (3d Cir.1981) (en banc) (holding that a short delay between the incident giving rise to probable cause and the seizure does not invalidate a warrantless seizure; however, this ruling is undermined by the court's reliance upon language from an older case indicating that the body of search and seizure law applicable to criminal cases does not apply to civil forfeiture, a contention which was clearly rejected by the Supreme Court in One 1958 Ply mouth Sedan v Commonwealth of Pennsylvania, 380 U.S. 693 (1965).)

Because real estate does not fit within the automobile exception, or any of the other exceptions relating to portable property, (and thus there is no exigency) a warrant is generally required for the seizure of real estate for forfeiture. United States v $128,035, 628 F Supp. 668 (S.D. Ohio 1986) ("requiring the Attorney General to secure a warrant prior to seizing a home or business represents a minimal burden, particularly in light of the substantial privacy interests infringed by the warrantless seizure of a home or business.") See also Sinoway, Sei zures of Houses and Real Property Under Marijuana Forfeiture Laws, 14 Search & Seizure L. Rpt. 113 (May 1987).

Warrants are also generally obtained when the forfeitable property-such as a bank account is held by another. This is probably because the government needs the force of authority of a warrant in order to get the third party to turn over the property.

Seizure warrants

In federal cases, property subject to forfeiture may be seized with a seizure warrant obtained pursuant to the procedures outlined in Supplemental Rule C, by merely filing a verified complaint meeting the specificity requirements of rule E. Under Rule C, the clerk then has no choice but to issue the warrant. There is no provision in the rule for a probable cause determination by a disinterested magistrate. This rule has been criticized by numerous commentators and has been found unconstitutional by numerous courts. See, e.g., United States v Certain Real Estate Property Located at 4880 S.E. Dixie High way, 612 F Supp. 1492 (S.D. Fla. 1985), 838 F2d 1558 (11th Cir. 1988); Application of Kingsley, 614 F. Supp. 219 (D. Mass. 1985), 802 F .2d 571 (1st Cir.1986); United States v Device, Labelled Theramatic, 641 F2d 1289 (9th Cir. 1981).

The rule was amended in 1985, admittedly to cure questions as to its constitutionality, and now requires a determination of probable cause by a disinterested magistrate before an admiralty warrant will issue. However, the amendment carved out an exception for all forfeiture cases, allowing seizure warrants in those cases to continue to be issued by the clerk without a probable cause determination. The questions regarding the constitutionality of this procedure continue to occur in forfeiture cases. Many federal courts have solved this problem by local rule. In some federal jurisdictions, local rules also provide post-seizure probable cause hearings at which the claimant can put on evidence. Strafer, Civil Forfeitures. Protecting the Innocent Owner, 37 U. Fla. L. Rev. 841, 852 (1985).

Restraining orders

Under the RICO (18 U.S.C. §§ 1962 et seq.) and CCE (21 U.S.C. § 848) criminal forfeiture statutes, once an indictment has been filed, the criminal court has jurisdiction to enter restraining orders, injunctions or prohibitions, to require posting of satisfactory performance bonds, or to take any other action it deems proper to prevent the dissipation of forfeitable assets prior to the conclusion of the case. See 18 U.S.C. § 1963(e), 21 U.S.C. § 848(d).

Under RICO, a restraining order maybe obtained prior to indictment if: (1) persons holding interests in the property are given notice and an opportunity for a hearing, (2) court determines there is substantial probability the government will prevail, and that failure to enter a restraining order will result in the dissipation of the property, and (3) the need to preserve the availability of the property outweighs the hardship on any party against whom the order is to be entered. 18 U.S.C. § 1963(e)(1)(B).

These restraining order provisions have been the source of a great deal of controversy as to their constitutionality because, at least in post-indictment restraining order cases, they fail to provide the defendant with a prompt post-seizure probable cause hearing. See Note, RICO Post-Indictment Restraining Orders: The Process Due Defendants, 60 N.Y.U. L. Rev. 1162, 1166 (Dec. 1985).

A number of federal circuits have imposed a requirement of a post-restraining order probable cause hearing in order to preserve the constitutionality of the statute. In United States v Crozier, 674 F2d 1293 (9th Cir. 1982) the Ninth Circuit vacated an ex pane restraining order, holding that

Even when exigent circumstances permit an ex pane restraining order, the government may not wait until trial to produce adequate grounds for forfeiture.

Section 848(d) authorizes the district court to enter such restraining orders as it deems proper. The section does not specify requirements for determining when a restraining order should issue. In the absence of specific language to the contrary, the district court must apply the standards of Rule 65 of the Federal Rules of Civil Procedure, which requires an immediate hearing whenever a temporary restraining order has been granted ex parte.

Id., at 1297. Accord United States v Spilotro, 680 F.2d 612 (9th Cir. 1982) (where government made an inadequate evidentiary showing at post-restraining order probable cause hearing, case is remanded for a further evidentiary hearing, with directions to vacate the restraining order if government fails to show it is likely to convince a jury beyond a reasonable doubt that defendant is guilty of crimes charged.) United States v Long, 654 F.2d 911, 915 (3rd Cir. 1981); United States v Beckham, 562 F. Supp. 488,489-90 (E.D. Mich. 1983).

The period between seizure and the commencement of proceedings

The forfeiture statutes specifically prohibit a property owner from bringing a replevin action (a civil suit seeking return of the property) when the property is seized under a forfeiture statute. See 21 U.S. Code Sec. 881(c). As a trade-off, the statutes require the government to file the forfeiture "promptly," although that requirement has no teeth in it. The length of time the government can delay before filing the forfeiture complaint is limited only by the Due Process clause and $8850. (See the Speedy Trial defense above). The problem is, $8850 motions can't be filed until the government files the complaint or libel of information, as the case may be. Claimants are often rendered destitute by seizure and indefinite detention of their automobiles.

Post-seizure probable cause determinations

The problem with allowing warrantless seizures of properly for forfeiture is that, in most courts, there is no probable cause determination at any time prior to trial. Because trials usually occur years after the seizure, the res is detained for an extended period of time without any determination of probably cause by a disinterested magistrate. When the res is the claimant's only automobile, or even virtually all of the claimant's assets-as RICO and CCE authorize this deprivation is extremely severe. The amount of process "due" under the Due Process Clause increases with the severity of the deprivation. Numerous law review articles in recent years have argued that the denial of a right to a post-seizure probable cause hearing is unconstitutional. See Strafer, End-Running the Fourth Amendment: Forfeiture Seizures of Real Property Under Admiralty Process, 25 (1987); Note, Criminal Forfeiture and the Necessity for a Post-Seizure Hearing: Are CCE and RICO Rackets for the Government?, 57 St. Johns L. Rev. 776-804 (Summer 1983); Kandaras, Due Process and Federal Property Forfeiture Statutes: The Need for Immediate Post-Sei zure Hearing, 34 Southwestern L.J. 925 (1981).

In Patterson v District of Columbia, D.C. Superior Court # CA 5726-87, Judge Rufus King III ruled that the Fourth Amendment prohibition against unreasonable sei zures requires that a forfeiture claimant receive a prompt probable cause determination on demand. (Order dock eted January 6,1989), 117 W.L.R. 741, (April 13, 1989). This probable cause determination appears to be some thing in the nature of a Gerstein proffer. As of this writing, however, the remedy has not been implemented in Superior Court. Judge King's ruling was certified as a final appealable order, but as of this writing the D.C. government has not filed notice of appeal, although they have stated their intention to do so.

There is no corresponding remedy available yet in the federal courts, except where local court rules provide such a remedy. In both Federal and D.C. courts, motions for return of property, filed in the criminal case under Criminal Rule 41, sometimes provide a probable cause determination, although they are often ineffectual.

Notice

In federal cases, the DEA and FBI send out a one page notice telling the property owner to file a claim in writing with their office and to include with the claim a sum of money-the "cost bond"-which is $2500 or 10 percent of the value of the property seized, whichever is less (but at least $250)-if they want a judicial determination in the forfeiture case. They also advise claimants that they can opt for administrative determination of the forfeiture, through a petition for remission or mitigation, in which case they need not pay the cost bond.

Property owners should be advised to beware of this cheaper solution. Petitions for remission and/or mitigation are denied in the vast majority of cases, without a hearing or even written reasons for the denial, and the agency's discretion is unreviewable. See Administrative Remedies, below.

The notice of seizure may be sent at any time. In most cases it arrives six months or more after seizure. Claimants have to be on the lookout for its arrival, because they have only a short period of time to react. The claimant must respond by filing a claim and cost bond within 20 days after the first publication date of the published notice of seizure. 19 notice is mailed out to the claimant just before the first publication date. The mailed notice specifies the publication in which the published notice will appear.

Forfeiture statutes and rules generally require published notice, although that is of negligible value to property owners. The Supreme Court has held that published notice alone is not sufficient notice under the due process clause when the names and addresses of owners of interests in property are readily ascertainable. In Mullane v Central Hanover Bank, 339 U.S. 306, (1950), the Supreme Court set the standard for notice:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections ... The notice must be of such a nature as reasonably to convey the required information ... and it must afford a reasonable time for those interested to make their appearance....

But when notice is a person's due, process which is a mere gesture is not due process.

314-15.

The Supreme Court has found the names and addresses of claimants to be "readily ascertainable" by the government when they are available in the government's deed records and tax rolls. Schroeder v. City of New York, 371 U.S. 211 (1962). See also Vance u United States, 676 F.2d 183, 186 (5th Cir. 1982) (where police officers and DEA agents knew claimant's name and address, published notice alone was insufficient); Jaekel v United States, 304 F. Supp. 993 (S.D.N.Y 1969) (same).

When a claimant is a prisoner incarcerated by the same state that is attempting to forfeit his/her property, the government has knowledge of the person's whereabouts and must send notice to the person at his jail/prison address. Robinson v Hanrahan, 409 U.S. 38 (1972).

The federal government plays loose games with notice, and in a large percentage of cases, defects in notice can be found which can be grounds for collaterally attacking (in court) an administrative forfeiture. However, that adds exponentially to the trouble and expense of litigation. To be on the safe side every claimant should be warned to look out for certified mail, and to pick it up at the earliest opportunity. A prisoner should have someone watching his/her mail at his/her last residence. It is also a good idea to notify the government in writing, that a claimant is represented by counsel, and of any change of address, including any place of incarceration.

Claim and cost bond

Under federal law, in order to have the right to a judicial proceeding, a claimant must, along with his/her written claim, post a cost bond ($2500 or 10 percent of the value of the property, whichever is lower, but not less than $250). 19 written claim does not have to fit any particular requirements as to format or contents, but should specify the seizure numbers and file numbers listed on the notice of the seizure, identify the person making the claim, state their interest in the property (i.e., owner, lienholder, etc.), an demand a judicial proceeding. The cost bond may be in cash, certified check, or "satisfactory sureties." 21 C.F.R. 1316.76(b).

Indigent claimants may file a Declaration In Support of Motion To Proceed In Forma Pauperis (use form 4 in the appendix to the Federal Rules of Appellate Procedure if the DEA is handling the case; the FBI uses its own forms which you can order from them over the phone).

Posting a cost bond does not result in the return of the property pending trial-instead, the bond is literally the cost the property owner has to pay for the judicial forfeiture proceedings. The cost bond is used as a security for the payment of storage fees, court fees, marshal's costs, etc. 21 C.F.R. 1316.76(b). If the claimant loses, he/she also loses the portion of the bond the court determines is necessary to offset court costs of the proceeding. If he/she wins, the bond is returned. Under 28 U.S.C. 2465, the successful claimant in a forfeiture case is not entitled to costs against the government if the court issues a certificate of probable cause for the forfeiture. United States u One 1969 Plymouth Two-DoorHardtop, 3608 Supp. 488 (M.D. Ala. 1973).

If the claimant does not file and post the bond or file an IFP declaration within the short period of time after receipt of notice, he/she forever loses the right to judicial proceedings in the forfeiture case. The agencies have been hardnosed about this time deadline, even though it so arbitrary. Because the agency's discretion is generally considered unreviewable, absent some reason that made it impossible to file a claim and cost bond on time (such as lack of notice) it would probably be very difficult to challenge an agency's refusal to allow extra time to respond. If constitutional grounds can be found for affording relief, the claimant can file a collateral attack on the forfeiture under 42 U.S.C. 1983. A claimant who fails to file a timely claim and cost bond can still file a petition for remission or mitigation with the agency, however. See Menkarell u Bureau of Narcotics, 463 F.2d 88 (3rd Cir. 1972).

Cost bonds have been held unconstitutional by a number of courts, although the current trend has been to uphold them.

Administrative forfeiture procedure

The notices sent out by the agency (DEA, FBI or customs) only sketchily describe the remedies claimants may pursue. They explain that one can avoid paying the cost bond by pursuing administrative remedies and waiving the judicial remedies. What it doesn't make clear is that if the claimant files only a petition for remission there will be no hearing, and the decision of the agency is unreviewable. The only evidence that will be considered is what they submit with their petition for remission. There is no discovery of the government's case. The administrative agencies deny petitions for remission or mitigation in a large number of cases, without giving detailed reasons. Claimants may pursue this administrative route along with the judicial route if they post the cost bond or qualify for in forma pauperis treatment.

Petitions for remission and/or mitigation must comply with the requirements of 21 C.F.R. 1316.79 through 1316.81, in DEA and FBI cases, or 19 C.F.R. 171-12 through 171.14 for customs seizures.

Judicial forefeiture procedure

The complaint or libel of information

In federal cases, judicial forfeiture proceedings are commenced with the filing of a complaint. The contents of the complaint are governed by Rules C and E of the Federal Supplemental Rules for Certain Admiralty and Maritime Claims (hereinafter cited as the Supplemental Rules). Rule C(2) provides:

In actions in rem the complaint shall be verified on oath or solemn affirmation. It shall describe with reasonable particularity the property that is the subject of the action and state that it is within the district or will be during the pendency of the action. In actions for the enforcement of forfeitures for violation of any statute of the United States the complaint shall state the place of seizure and whether it was on land or on navigable waters, and shall contain such allegations as may be required by the statute pursuant to which the action is brought.

The drafters of the rule did not, however, take the logical step farther and require a judicial determination of probable cause, based upon the allegations in the verified complaint, before the warrant of seizure would issue. When Rule C was amended in 1985, the drafters imposed a requirement of a probable cause determination but specifically exempted forfeiture cases from that provision. See Supplemental Rule C(3).

Supplemental Rule E(2) provides:

The complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.

If the complaint does not comply with the Supplemental Rule C(2) and E(2) requirements of verification and specificity it is subject to dismissal. One 1980 Ford Mustang, 648 F. Supp. 1305, 1308 (N.D. Ind. 1986). United States u $39,000 in Canadian Currency, 801 R2d 1210, 1222 (10th Cir. 1986). The court may dismiss the complaint on these grounds sua sponte if it notifies the government of the intent to dismiss and gives the government an opportunity to amend the complaint. One 1980 Ford Mustang, supra, at 1308.

Claim and answer to the complaint or libel of information

Under federal law, the claimant must file:

A claim within 10 days after process has been executed, or within such additional time as may be allowed by the court, and shall serve an answer within 20 days after the filing of the claim. The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. If the claim is made on behalf of the person entitled to possession by an agent, bailee, or attorney, it shall state that the agent, bailee or attorney is duly authorized to make the claim.

Supplemental Rule C(6).

Failure to file a claim under Rule C(6) deprives the claimant of standing to defend against the forfeiture. United States u Fourteen Handguns, 524 F. Supp. 395, 397 (S.D. Texas 1981); United States v. One 1980 Ford Mustang, 648 F. Supp. 1305, 1307 (N.D. Indiana 1986).

The claim required here should not be confused with the claim which is filed with the administrative agency along with the cost bond. It has been held that the claim submitted to the administrative agency is insufficient to satisfy the Rule C(6) requirement, because it was not submitted to the court. One 1980 Ford Mustang, supra. In that case, however, the court permitted the late filing of the claim under the Rule C(6) provision that allows a filing "within such additional time as shall be allowed by the court" because the government had alleged no facts to show probable cause.

Under District of Columbia law, there is no requirement that the claimant file a separate claim. Although Rule 71 A-I(c) states that "if no answer or claim" is filed before the return date a default may be entered, the word "claim" does not appear elsewhere in the rule. In accepted practice in Superior Court, one document, commonly entitled "Claim and Answer to Libel" or merely "Answer," is filed in response to a Libel of Information.

Under federal law, the form and contents of the answer are governed by the ordinary rules of civil procedure. See Federal and Superior Court rules 8, 9, 10, 12 and 13, and Superior Court rule 3-I.

Counterclaims

There is conflicting authority as to whether claimants may counterclaim against the government for loss of use and depreciation of the res during the period of detention. Where the forfeiture is later determined to be void, it is clear that the government is liable for depreciation. United States u One 1965 Chevroletlmpala Convertible, 475 R2d 882 (6th Cir. 1973). However, a federal statute immunizes the federal government and officials from liability if the court finds there was reasonable cause for the seizure and issues a certificate of probable cause. 28 U.S.C. § 2465. If there was no probable cause for the seizure, then the detention would be a temporary taking for which just compensation must be paid. Depreciation is an item of damages in takings cases. See also 28 U.S.C. § 2680(c), exempting from Federal Tort Claims Act's waiver of sovereign immunity claims arising out of the detention of goods or merchandise by any officer of customs or excise or other law enforcement officers. See Kosak u United States, 465 U.S. 850 (1984).

Jury demand

Claimants in forfeiture cases have a right to a jury trial. United States u One 1976 Mercedes Benz, 618 F.2d 453 (7th Cir. 1980); One Plymouth Automobile v United States, 165 R2d 186 (5th Cir. 1948); Pernell u Southall Realty, 416 U.S. 363 (1974). However, when the government has impounded an automobile, or another asset which depreciates rapidly or is vital to the claimant's livelihood, most claimants want a trial as soon as possible. Demanding a jury trial puts the case on a slower track-the first trial date in Superior Court Civil II jury calendar cases is often three years or more after the answer is filed, compared to one and a half to two years on the nonjury calendar.

A jury trial is waived unless demanded in the answer or within ten days after filing the answer. The jury demand must specify a jury of twelve, or else a jury of six will be provided. A jury demand fee of $75 must be paid at the time of filing of the demand, unless the court has granted permission to proceed in forma pauperis. If the case does not go to trial, the $75 may be refunded.

Vacating default judgments

 

Motions to vacate a default judgment are governed by Civil Rule 55(c). The motion must be accompanied by

 

A verified answer setting up a defense sufficient if proved to bar the claim in whole or in part...... NNo answer need be filed if the movant accompanies the motion with a settlement agreement or a proposed consent judgment signed by both parties.... [nor] when the movant asserts a lack of subject-matter or personal jurisdiction or when the default was entered after the movant had filed an answer."

SCR-Civil Rule 55(c). The Supreme Court has held that it is unconstitutional to require a litigant who has not received notice to file a verified answer in order to vacate a default judgment:

[A] judgment entered without notice or service is constitutionally infirm....

Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, "it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits." Coe v Armour Fertilizer Works, 237 U.S. 413 (1915).

Peralta v Heights Medical Center, Inc., 485 U.S. 80 (1988).

Discovery

Discovery in civil forfeiture cases is governed by the civil rules, which are much broader than criminal discovery rules. Often the government cites this ability of the criminal defendant to obtain discovery, through the forfeiture case, of information which he/she would not be entitled to in the criminal case, in arguing for a stay of forfeiture proceedings pending the disposition of related criminal charges.

The government's discovery from the defendant is also broader under the civil rules; however, the privilege against self-incrimination applies to forfeitures. In United States v. United States Coin & Currency, 401 U.S. 715, 719, 723 (1971) the Supreme Court so held, quoting Boyd u United States, 116 U.S. 616, 634 (1886):

"proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal" for Fifth Amendment purposes... [T]he Fifth Amendment's privilege may properly be invoked in these proceedings.

The Sixth Circuit, in United States v United States Currency, 626 R2d 11 (6th Cir. 1980), held that the Fifth Amendment privilege against self-incrimination could be asserted in forfeiture cases, but that the privilege does not require dismissal of the forfeiture action merely because Fifth Amendment privileges may be asserted in answering interrogatories.

The Supreme Court has declared that: ". . . government cannot penalize assertion of the constitutional privilege against self-incrimination by imposing sanctions to compel testimony which has not been immunized . . . the touchstone of the Fifth Amendment is compulsion, and direct economic sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the Amendment forbids." Lelkowitz v Cunning ham, 431 U.S. 801, 806,97 S. Ct. 2132, 2136, 53 L. Ed. 2d 1 (1977)...... The Supreme Court has disapproved of procedures which require a party to surrender one constitutional right in order to assert another." Wehling v Columbia Broadcasting System, 608 R2d 1084, 1088, (5th Cir. 1979).

14.

Failure to cooperate in discovery

A large number of pro se forfeiture claimants fail to answer interrogatories, perhaps because they do not understand how to answer them or they are afraid to incriminate themselves. In such cases, the government generally files a motion to compel discovery under SCR-Civil Rule 37(a), requesting sanctions.

A party who prevails on a motion to compel discovery is entitled to attorneys fees and costs for filing the motion, under Superior Court Civil Rule 37(a)(4). However, the rule exempts the government (D.C. or federal) from having to pay attorneys fees or costs for abuse of discovery. SCR-Civil Rule 37(f). The equivalent Federal Rule has been repealed.

Motions

In civil forfeiture cases, motions practice is governed by the civil rules. However, quasi-criminal issues, such as denial of speedy trial or the suppression of evidence, do not fit tidily into any of the civil motions rules. Because there are issues of fact which must be resolved by an evidentiary hearing, a motion for summary judgment is not appropriate for these issues. The motions authorized by Civil Rule 12 are also inappropriate. The Supreme Court cases applying these criminal procedural requirements to forfeiture cases do not discuss what kind of motions to raise them in.

Burden of proof

In criminal forfeiture cases, such as those brought under RICO (18 U.S.C. § 1963), the Continuing Criminal Enterprise statute (21 U.S.C. § 848), and the criminal forfeiture provision of the federal drug laws (21 U.S.C. § 853), the burden of proof is on the government to prove beyond a reasonable doubt that the property is subject to forfeiture.

Under both federal and District of Columbia civil forfeiture statutes the burden of proof is on the government to show "probable cause," as it is defined in the criminal courts to support a suppression motion or a search warrant. Brynegar u United States, 338 U.S. 160, 175-76 (1949). Once the government establishes probable cause the burden shifts to the claimant to show by the preponderance of the evidence that the property is not subject to forfeiture. 33 D.C. Code 552(d)(3)(G).

The constitutionality of applying the civil burden of proof to forfeiture cases has been considered in: United States v. $2500,689 F.2d 10 (2nd Cir.1982), and Bramble u Richardson, 498 F.2d 968 (10th Cir.), cert. denied, 419 U.S. 1069 (1974). However, both cases held only that proof beyond a reasonable doubt was not constitutionally required in civil forfeiture cases. Neither specifically addressed the issue of whether probable cause was too low a burden of proof for the deprivation of such valuable property rights.

Stays during pendency of criminal case

Because the broad civil discovery rules applicable in civil forfeiture cases can be used to obtain evidence which is not discoverable under the criminal rules, the government often requests a stay of the civil forfeiture proceeding pending the disposition of the criminal case. Such stays should not be granted automatically, for undue delay in holding the forfeiture trial implicates the due process clause. United States u Banco Cafetero Panama, 797 F2d 1154 (2d Cir. 1986).

In Landis v. North American Co., 299 U.S. 248 (1936), the Supreme Court stated:

[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.... True, the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both. Considerations such as these, however, are counsels of moderation rather than limitations upon power. There are indeed opinions, though none of them in this court, that give color to a stricter rule. Impressed with the likelihood or danger of abuse, some courts have stated broadly that, irrespective of particular conditions, there is no power by a stay to compel an unwilling litigant to wait upon the outcome of a controversy to which he is a stranger. . . .

Such a formula, as we view it, is too mechanical and narrow. All the cases advancing it could have been adequately disposed of on the ground that discretion was abused by a stay of indefinite duration in the absence of a pressing need.

299 U.S. at 254-55.

When the forfeiture case involves a third party not involved in the criminal action the calculus is different. When other means could be employed to protect the criminal prosecution from the risk of revealing undiscoverable information through civil discovery, such as protective orders, in camera discovery, sealed files, and other restrictions on dissemination of discovery materials, the government's need for the stay is easily outweighed by the claimant's due process rights under United States u $8,850, 461 U.S. 555 (1983).

Expediting the trial

There is currently no procedure available to expedite the trial date, in either the federal or local system. Even though the quasi-criminal nature of forfeiture actions requires speedy trial the federal courts make a practice of advancing trial dates in forfeiture cases in front of nonquasi criminal cases.

Still there are things that can be done to speed up the process. The squeaky wheel doctrine often helps. Filing a motion for return of property or a motion to dismiss for denial of speedy trial may bring immediate results. Even if the motion is denied, at least it makes a record that the claimant is asserting his/her rights to a speedy resolution of the case.

Stays pending appeal

Stays of orders of forfeiture, or orders denying forfeiture, pending appeal are governed by Civil Rule 62.

It has been held by some courts that when a claimant loses a forfeiture trial and fails to obtain a stay of the court order, the resulting sale or disposal of the vehicle deprives the court of jurisdiction over the appeal. United States u $57,480.05,722 F.2d 1457 (9th Cir.1984); Alyeska Pipe line Service Co. u Vessel Bay Ridge, 703 F.2d 381(1983); Canal Steel Works v One Drag Line Dredge, 48 F.2d 212 (5th Cir.), cert. denied, 284 U.S. 647 (1931). However, the improper destruction or release of the res despite a valid stay does not deprive the court of jurisdiction over the appeal. The Rio Grande, 90 U.S. 458 (1874).

This rule is particularly harsh in a situation where the res is a depreciating asset such as a car and there exists no mechanism by which a substitute res (such as a surety bond) can be posted to preserve the jurisdiction of the court. An extension of this rule to situations where the claimant prevails at trial and the government appeals produces absurd results. This is another area in which the court should tailor a remedy-such as a stipulation of jurisdiction, or a substitute res, so that the value of the property is not disipated during the pendency of the appeal.

Motions for return of property and other collateral remedies

At present, a claimant can still file a motion for return of property, under criminal rule 41 in the pending criminal case-at least if he/she is a defendant in that case. In Re Seizure Warrant (Appeal of Cyril Onwuasoanya), 830 F.2d 372 (D.C. Cir. 1987). Some judges have been denying such motions without a hearing, requiring instead that the government file a forfeiture action within a specified time period. However, a few favorable rulings have been obtained at the trial level giving claimants some remedy for the prolonged detention of property seized without a warrant, and without any determination of probable cause to believe it is forfeitable. In two recent cases in Washington, D.C. the claimants filed motions for the return of property in the criminal case, pursuant to Criminal Rule 41, and succeeded in getting a hearing on the motion before the criminal judge.

In United States u Zarbough, 115 (February 11, 1987), Judge Taylor granted a motion for return of property with regard to a seized car, but denied return of the money seized, when the facts supported only the offense of simple possession. The court pointed out that Section 33-552(C) "specifically exempts from forfeiture conveyances used solely in connection with the unlawful possession of any controlled substances, . . . " 275.

In United States v Golden, Judge Von Kann, who had taken the guilty plea of the criminal defendant to a misdemeanor, held that the automobile, which was owned by the defendant's father, would be returned to him pending trial in the forfeiture case, upon the posting of a bond by the owner sufficient to cover the losses to the District in the event the government prevailed at trial. In so ruling, the court stated:

In short, the evidence presented at the hearing overwhelmingly established that the use of this automobile to facilitate the transportation of controlled substances was carried on wholly without the owner's knowledge or consent. Accordingly, absent additional evidence which might change this conclusion, the subject vehicle is indeed exempt from [forfeiture] under D.C. Code Sec. 33-552.

[I]n view of the strong showing made by defendant at the hearing on this motion, it seems unfair to require that the vehicle remain parked on the District's impoundment lot for the months or years that may pass before the civil forfeiture proceeding is concluded. Doing so would deprive defendant and his family of the use of the vehicle for a long time while its value gradually declines. Even if they ultimately recover the vehicle after successfully prevailing in the libel action, there is no provision in Section 33-552 to compensate them for the loss of the use of the vehicle during this time or its diminished value. United States u Golden, 115 D. Wash. L. Rptr. 733, 738, 739 (April 13, 1987).

The fact that other judges have summarily denied relief should not deter attorneys from pursuing relief through a motion for return of property. Even when the court denies a hearing on the motion, usually the court will require the government to file a forfeiture action by a certain time, which expedites the case to some extent. Furthermore, filing a motion for return of property was recognized by the Supreme Court, in $8850, as a way to assert a demand for a speedy trial for purposes of a later filed $8850 motion.

Because the forfeiture statutes themselves bar claimants from filing replevin actions (civil suits for the return of property), the claimant generally has only two options to secure relief-through a motion for return of property in the criminal case or through the forfeiture action itself. A number of courts have held that claimants who receive notice of the forfeiture process cannot ignore those procedures and file a collateral suit; in many of those cases the court states that it lacks jurisdiction to entertain a collateral suit.

However, in some situations courts do allow collateral suits.

Lack of notice

Where the property was forfeited without constitutionally adequate notice to the claimant, the courts must provide relief, either by vacating the default judgment, or by allowing a collateral suit. See Seguin v Eide, 720 F2d 1046 (9th Cir. 1983), on remand after judgment vacated, 462 U.S.1101,103 S. Ct. 2446 (1983); Wiren v Eide, 542 F2d 757 (9th Cir. 1976). Menkarell v. Bureau of Narcotics, 463 F2d 88 (3rd Cir. 1972); Jaekel v United States, 304 F Supp. 993 (S.D.N.Y 1969); Glup v United States, 523 F2d 557, 560 (8th Cir. 1975).

In the past there was some authority for the proposition that, even when claimants are deprived of due process by forfeiture of their property without notice, they have to show that they have a meritorious defense in order to get relief. See, e.g., Cepulonis v United States, 543 F. Supp. 451 (E.D.N.Y 1982) (where claimant was deprived of due process for failure to receive notice of forfeiture, he was only entitled to nominal damages where he could not show he had a meritorious defense.) However, that case was overruled by the Supreme Court in Peralta v Heights Medical Center, Inc., 485 U.S. 80, (1988). Peralta held that:

[I]t is not denied by appellee that under our cases, a judgment entered without notice or service is constitutionally infirm.

The Texas courts nevertheless held, as appellee urged them to do, that to have the judgment set aside, appellant was required to show that he had a meritorious defense, apparently on the ground that without a defense, the same judgment would again be entered on retrial and hence appellant had suffered no harm from the judgement entered without notice. But this reasoning is untenable. As appellant asserts, had he been given notice of the suit, he might have impleaded the employee whose debt had been guaranteed, worked out a settlement, or paid the debt. He would also have preferred to sell his property himself in order to raise funds rather than suffer it being sold at a constable's auction.

Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, "it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits." Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S. Ct. 625, 629, 59 L. Ed. 1027 (1915). As we observed in Armstrong v. Manzo, 380 U.S. 545, 552 (1965), only "wip[ing] the slate clean ... would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place." The Due Process Clause demands no less in this case.

Peralta, supra, 108 U.S. at 898-99, 900.

Void forfeitures

When a forfeiture is void, there is no question but that the claimant may collaterally attack it and obtain return of the property or compensation for its value. The Supreme Court declared a gambling forfeiture statute to be void in United States u United States Coin & Currency, 401 U.S. 715 (1971). The statute in that case required gamblers to register and pay a gambling tax, and provided for forfeiture of proceeds as an additional sanction. The Court relied on the criminal cases of Marchetti v. United States, 390 U.S. 39 (1968) and Grosso u United States, 390 U.S. 62 (1968) in holding that penalizing the failure to register as a gambler "unconstitutionally burdened the privilege against self-incrimination," and therefore the statute violated the Fifth Amendment. Because the forfeiture statute was itself unconstitutional, the forfeiture was void.

Other cases finding a forfeiture statute to be constitutionally deficient have read into the statute the requirements of the constitution, and thus avoided vacating the forfeitures obtained under the statute. However, individual forfeitures may nevertheless be vacated if the statute as applied to that case violated the Constitution. Whether those would be void or voidable is another question.