§983 General Rules for Civil Forfeiture Proceedings

Summary

The Government must tell people about most seizures quickly and usually no later than 60 days after the property is taken. No notice is needed if the Government files a forfeiture lawsuit within 60 days. If the Government gets a criminal indictment before 60 days, it can either send notice within 60 days and keep the nonjudicial case, or stop the nonjudicial case and hold the property under criminal forfeiture rules. If state or local police seize and then give the property to federal agents, notice must be sent within 90 days of the state/local seizure. If a person’s identity is learned later, notice must be sent within 60 days of that discovery. A headquarters supervisor can delay notice up to 30 days, and a court can extend notice up to 60 days at a time if a written HQ certification shows notice would risk danger, flight, evidence destruction, witness intimidation, or seriously hurt an investigation or trial. Agencies must report how often HQ grants extensions. If the Government fails to give required notice and no extension was allowed, it must return the property to the person it came from, unless the item is illegal to possess. People can file a written, sworn claim to contest a nonjudicial seizure. The claim deadline is set in the personal notice letter (not earlier than 35 days after the letter is mailed) or, if no letter was received, no later than 30 days after final public notice. A claim must identify the property, say the filer’s interest, and be under oath. The Government must file a forfeiture complaint within 90 days after a claim or else return the property, unless the court extends that time for good cause or the Government preserves its criminal-forfeiture rights. In court cases, claims must be filed within 30 days after the Government’s complaint is served or after final publication, and answers are due within 20 days. If a person cannot afford a lawyer, a court may let a criminally appointed lawyer represent them in the civil case, and for someone whose primary home is at risk the court must arrange Legal Services Corporation counsel and pay reasonable fees. The Government must prove, by showing something is more likely than not, that property can be forfeited. The Government may use evidence found after it files a complaint. If the Government says property was used to commit a crime, it must show a substantial connection between the property and the crime. An innocent owner cannot lose their interest. An innocent owner is someone who did not know about the illegal use or who, once they learned, did what a reasonable person could do to stop it. A later buyer who paid value and did not and could not reasonably know of the problem can also be an innocent owner; special rules protect some primary residences acquired through marriage, inheritance, or similar transfers. No one may claim innocent-owner status in contraband or items illegal to possess. If a person who did not get proper notice moves to set aside a forfeiture, the court must grant relief if the Government knew or should have known of the person’s interest and failed to try to notify them, and the motion must be filed within 5 years of final public notice. If property causes serious hardship, a claimant can ask for its immediate return; they must ask the official first and, if not returned in 15 days, may petition the district court, which will rule within 30 days. The court can order return while the case continues and can require bonds, insurance, inspection, or liens to protect value. The law allows a person to ask the court to decide if a forfeiture is grossly excessive; the person must prove that by a preponderance of the evidence, and the court must reduce or cancel the forfeiture if it violates the Eighth Amendment. If the Government wins and a claimant’s claim was frivolous, the court may fine the claimant 10 percent of the property’s value, not less than $250 and not more than $5,000. The Government may seek restraining or protective orders, including temporary orders without notice in urgent cases, to hold property available for forfeiture. Definitions: a “civil forfeiture statute” is any federal law that allows forfeiture outside of a criminal sentence; an “innocent owner” is as described above; an “owner” means someone with a real ownership interest (like a lease, lien, mortgage, or recorded interest) and not someone with only an unsecured claim, an unnamed bailor, or a nominee with no control.