Asset Forfeiture:
What to do when police seize
your property
Copyright 2011 by Brenda Grantland & Judy Osburn
ISBN- 978-0-9715409-2-7
SMASHWORDS EDITION
* * * *
Published by:
Forfeiture Endangers American Rights Foundation, Inc.
Mill Valley, CA -- October 7, 2011
Smashwords Edition License Notes
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Published
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Table of Contents
The police took my property. What do I have to do to get it back?
What do I do if they say they intend to pursue forfeiture?
Will I need a state or a federal lawyer?
What do I do if I can't afford to hire a lawyer?
What if I don't qualify for court-appointed counsel and can't find an attorney I can afford?
How long does it take and what can I do to speed up the process?
What do I do once I receive a notice of forfeiture from the DEA or another federal agency?
What do I do once I am served with a federal civil forfeiture complaint?
What is criminal forfeiture and how does it differ from civil forfeiture?
What are the defenses to forfeiture?
Can I get my property back pending trial?
Should I keep up my mortgage payments and insurance?
How can these procedures be constitutional?
Appendix -- Selected federal forfeiture statutes
Q: The police took my property. What do I have to do to get it back?
If your property was seized as evidence of a crime, you should get it back when the case is over, unless it is contraband or the government is seeking asset forfeiture.
If it is contraband (drugs, paraphernalia, illegal firearms such as machine guns and sawed-off shotguns, or other items that are illegal to possess) you can’t get it back, and there will be no court proceedings to forfeit it -- it will just be destroyed or given to a police agency for its own use.
If they tell you it is being held for forfeiture, you will have to litigate and win (or settle) the forfeiture case in order to get it back.
Q: What is asset forfeiture?
Asset forfeiture is a process that allows the government to take property away from people and keep it permanently, without having to pay for it, if the property is involved in certain criminal offenses. Today about 400 federal offenses trigger forfeiture. Each state has its own forfeiture statutes as well. You can look up the federal and state forfeiture statutes in the free law library on the FEAR website at http://www.fear.org.
Unlike eminent domain -- where the government forces owners to sell property so it can build a freeway across it -- when property is forfeited, the government does not have to pay the owner for the property.
You do not have to be charged with a crime in order for the government to forfeit your property. In fact, in many civil forfeiture cases no one is arrested or prosecuted at all for the offense -- only the property is charged.
Even in cases where someone owning an interest in the property is charged in a related criminal case, a large percentage of forfeiture cases involve innocent third parties who own interests in the property. Those innocent third parties have to file claims in the case and litigate in the forfeiture case or they will lose their interests in the property. Even lien holders, such as banks that hold mortgages on real estate or finance companies that have liens on cars they financed, have to file claims and litigate the case or else they will lose their interests.
Any kind of property -- cars, boats, airplanes, cash, bank accounts, homes and even businesses can be seized and forfeited. Sometimes the government targets several assets belonging to the same person. Often they seize practically everything the person owns, taking away the resources they have to finance a defense.
When multiple assets are seized the government may commence several separate cases, at different times. One alleged criminal offense might trigger forfeiture cases in both state court and federal court. For example, a person's car, cash and other items may be seized during an arrest, and later, the person's bank accounts and/or home may be seized. The county prosecutors may go after the car and money, and turn the home and bank accounts over to the federal government for forfeiture under federal law.
As abusive such practices may seem, they are authorized by statutes and have been upheld against many Constitutional challenges in court.
Forfeiture is a big money-maker for law enforcement agencies, who get to keep the proceeds of the property they seize and the forfeitures they process. A recent Wall Street Journal article reported that, in 2010 alone, federal "forfeiture programs confiscated homes, cars, boats and cash in more than 15,000 cases. The total take topped $2.5 billion, more than doubling in five years, Justice Department statistics show." Federal Asset Seizures Rise, Netting Innocent With Guilty, by John Emschwiller and Gary Fields (Aug. 22, 2011). Under federal law, all of the proceeds of forfeiture go to law enforcement agencies, except for the small portion that goes to some crime victims under the discretionary remission program. Nothing goes to the general budget to reduce the deficit, or to schools, or to create jobs.
As the popularity of forfeiture continues to mushroom, the abuses of forfeiture laws that were widely reported in the past, and which led to the passage of the Civil Forfeiture Reform Act of 2000, have resurfaced in every part of our country.
Roadside forfeiture traps, which were the subject of many television exposes in the early 1990s, are widespread now, and are no longer limited to a few states in the deep south. As in the 1990s, vacationers traveling through another state are often stopped on the roadside by roving forfeiture squads and relieved of their cash, on the ruse that it is "drug money" -- though no drugs are found and no other evidence of crime is recovered. The mere "testimony" that a DEA drug sniffing dog "alerted" to the money is often enough for some courts to conclude that the government has proven that seized cash is drug money. One wonders whether the drug sniffing dog alerts to all money, since the dog and its handlers get rewarded for the seizure. For a time in the late 1990s, forensic scientists testified that dog alerts proved nothing because the entire money supply is tainted with drug residue. For a while the courts discounted drug dog evidence. Then it became expedient to ignore the science and restore blind faith in law enforcement. Competing police forensic scientists testified that their drug dogs' senses were so acute and their training so infallible that the drug dog can distinguish between normally contaminated money and drug dealer's money. Now the drug dog is considered credible evidence again. Why? Because communities where forfeiture traps thrive can fund their law enforcement agencies with cash seized from strangers from out of state, rather than raise taxes on local citizens. Drug dog alerts are a convenient tool in obtaining forfeiture judgments where there is little or no evidence of crime.
Other scandals of the 1990s are back in full swing again too. It once was considered outrageous that the DEA and other law enforcement agencies seized hotels and motels from property owners who were not doing anything wrong, merely because some guests possessed drugs on the premises. As in the 1990s, police have begun demanding that hotel owners and landlords be punished for the crimes of their guests and tenants, and seizing their business property when they fail to prevent crime. Multi-million dollar seizures raise money for law enforcement with far less effort than hundreds of smaller seizures, and often the wealthier motel or apartment building owner will quickly pay the government to make the forfeiture case go away. See IJ Challenges "Policing for Profit" in Massachusetts: New Report Documents How Civil Forfeiture Invites Abuse, Institute for Justice web release, October 4, 2011, http://www.ij.org/about/4057.
Also on the rise again are cases where police are caught stealing or misappropriating seized assets, or using the forfeiture fund to pay for personal expenses. Government property managers and disposers including a high ranking official of the U.S. Marshal Service, has been accused of directing appraisals and sales to insiders. Also at the Marshal Service, an audit revealed record-keeping on sold assets to be so lax (or non-existent) that it was sometimes impossible to tell how much something sold for and to whom. See Audit of the United States Marshals Service Complex Asset Team Management and Oversight, by the U.S. Dept. of Justice Office of the Inspector General, Audit Division, September 2011, http://www.fear.org/AuditUSMScomplexAssetTeam.pdf.
All of the police abuses exposed in the 1990s are back in full swing again, with abuses not previously thought of coming to light.
In Indiana, District Attorney Mark McKinney defied the state law directing forfeited assets to be deposited into an audited fund, and instead deposited the money in a task force bank account he himself controlled. McKinney personally benefitted from the forfeiture income, under an arrangement cooked up by his predecessor whereby county prosecutors would be hired part time on a contingency basis to prosecute the forfeiture cases, while drawing their regular salaries as criminal prosecutors. When the scandal was exposed, McKinney was defiant, insisting he had done nothing wrong despite having pocketed over $168,000 in contingency fees. The judge who took it upon himself to investigate and expose this scandal discovered that the forfeiture prosecutors for hire were not following the procedures outlined in the forfeiture statutes or obtaining court review of the forfeiture settlements. The judge ordered the DA to repay the money he had made from the contingency arrangements. The still defiant DA appealed the order and ran for re-election. A special prosecutor appointed to investigate the matter announced in 2009 that no criminal charges would be filed against McKinney. The Indiana Supreme Court imposed a 120-day suspension of the prosecutor's bar license. In the Matter of Mark R. McKinney, Indiana Supreme Court No. 18S00-0905-DI-220 (June 16, 2011).
The public seems to believe that reforms enacted by the Civil Asset Forfeiture Reform Act of 2000 cured the problems and gave claimants a "level playing field" in the forfeiture process. But the most important of CAFRA's reforms, the right to counsel provisions, are still not being implemented on a routine basis. Courts do not appoint counsel for indigent claimants who qualify for counsel because the claimant fails to ask for court appointed counsel, and the judge and prosecutor often fail to tell them about this right. As a result, in 2011, eleven years after CAFRA took effect, numerous federal district courts have never appointed counsel in a single CAFRA case involving claimants whose primary residences are being forfeited, although CAFRA requires it whenever the homeowner cannot afford counsel.
Additionally, those of us who worked with the late Representative Henry Hyde in passing CAFRA remember well the disappointing compromises pressured by the Department of Justice lawyers who watered down our nation’s first and only federal forfeiture reform during those final hours before its passage. The recent rising tide of forfeiture abuse by agencies addicted to policing for profit underscores the need for further reforms at the federal level.
Q: If I am found not guilty in my criminal case or they drop the charges, won’t I get my property back automatically?
No. If the government pursues an asset forfeiture case against your property, you have to win (or settle) the forfeiture case to get it back.
Some state forfeiture statutes require a criminal conviction to forfeit certain types of property. Check the state statute to see whether there is a conviction requirement in your type of forfeiture case. Under federal law, and the law of most states, there is no requirement that anyone be convicted of a criminal offense in order for property to be civilly forfeited.
Another type of forfeiture -- criminal forfeiture -- makes the forfeiture proceedings part of the criminal case against the indicted criminal defendants. In criminal forfeiture cases, in theory at least, only the property of defendants who are convicted may be forfeited, but innocent third parties' property may nevertheless be seized and detained pending the trial. Prior to trial the third parties have no standing to intervene in the criminal case, and they do not get to participate in the pretrial or trial process at all. After the defendant is convicted, and the property is forfeited, third parties have to go through a separate process to prove their ownership of an interest in the forfeited property in order to get their interests in the property returned. You'll hear more about criminal forfeiture later.
Q: What do I do if they say they intend to pursue forfeiture?
The civil forfeiture process has critical deadlines in the early stages and if you fail to jump through the proper legal hoops or miss crucial deadlines, they may declare a default and you lose your chance to defend your property in court. The process is very complex and really does not make good sense even to a seasoned civil lawyer, but those are the requirements, and you ignore them at your own peril.
It is crucial that you start preparing for litigation as soon as you hear that forfeiture proceedings are likely. Start by reading up on forfeiture law and procedure on the Forfeiture Endangers American Rights ("FEAR") website. See http://www.fear.org.
Forfeiture Endangers American Rights Foundation is a national non-profit organization, established in 1992, to educate the public and help forfeiture victims and defense attorneys obtain the information to successfully defend forfeiture cases. FEAR's website provides a huge amount of free information about forfeiture laws. Forfeiture victims should start with the Victim Support button on the right side of the FEAR home page, where you'll find the most important links for victims' frequently asked questions. Also take a look around the (free) FEAR Law Library, which is accessed from the main menu. We recommend that you print out the pages where you find information pertaining to your type of forfeiture case, and keep them to refer to later as you go through the process. Highlight the important deadlines, and make notes of anything you need to ask a lawyer about.
Then -- immediately -- start shopping around for a forfeiture lawyer. Don't wait until you get a notice in the mail because you only have about a month after you get notice before you encounter the first deadline, and it may take a while to find a lawyer.
One source of forfeiture lawyers is FEAR's Attorney Directory on the FEAR website -- http://www.fear.org. Click the Attorney Directory link in the main menu. Note: the lawyers listed in the FEAR website Attorney Directory do not work for FEAR. They are private lawyers who have some prior experience defending forfeiture cases and pay an annual fee to be listed in the directory. FEAR does not vouch for their credentials, so you will have to check them out for yourself.
If someone was arrested in the related case, that person's criminal defense lawyer might be able to recommend an experienced forfeiture lawyer in the community. The local public defender may also know of qualified forfeiture defense counsel.
It is best to interview several lawyers and comparison shop. Meet with the lawyers in person and ask them about their experience, whether they have defended forfeiture cases like yours, and how many years' experience they have had. Take notes, because the lawyer with the cheapest up-front fee may not be the best lawyer (or even the most economical) in the long run. A lawyer with a lot of experience defending forfeiture cases may cost less in the long run than a lawyer who is learning how to defend forfeiture cases while you are paying by the hour. And please be careful -- a lawyer who has never handled a forfeiture case before may make mistakes that ruin your chances of winning. Forfeiture procedures differ from ordinary civil procedures. Sometimes criminal procedures apply -- as well as admiralty law and quaint "in rem" procedures. Even the best lawyers have a lot to learn when they handle their first forfeiture cases. If you find a lawyer who doesn't have much prior forfeiture experience but you like him/her anyway, or can't find anyone else you can afford, you should purchase the FEAR materials for them to make sure they have what they need to represent you competently. FEAR's package deal -- which includes FEAR's Asset Forfeiture Defense Manual (a 500 page coffee-table size print book -- not available in digital format), Forfeiture 101 (a 2-hour DVD crash course in forfeiture law and procedure), and a one-year subscription to the Brief Bank -- can be purchased for $300 plus tax and shipping charges. This package includes the essential information a lawyer or a pro se litigant needs to know to defend forfeiture cases.
Q: Will I need a state or a federal lawyer?
No matter whether the property was seized by state or federal agents, the forfeiture case could be filed in either state or federal court -- or both. When several assets are seized, the cases against some of the property may be filed in the county courthouse, and the rest in federal court. You will not know at the beginning which one it will be. Even if the state cops seized your property, they can turn it over to a federal agency for forfeiture and get a kickback of up to 80% of the value of the property, under the "equitable sharing" program.
Within a few weeks after the property is seized you will get a notice in the mail about the process for contesting the forfeiture case. That is when you will know whether the forfeiture case will be federal or state. The procedures described below are those used in federal forfeiture cases, but state forfeiture laws and procedures are patterned after the federal forfeiture procedures, so most of the same principles apply, with variations peculiar to each state.
When you get a forfeiture notice in the mail, it will tell you (very basically) how to contest the forfeiture and the citations to the forfeiture statutes the government is relying on. Once you have the citations you can look up the statutes. Links to all of the federal and state forfeiture statutes can be found in the FEAR website’s Law Library. Print out copies of the statutes cited in the notice and keep them with your paperwork for your case. They will come in handy later as you prepare for hearings.