ASSET FORFEITURE, MOTIONS FOR RETURN OF PROPERTY,
AND OTHER PROCEDURES GOVERNING RECOVERY OF
PROPERTY SEIZED BY POLICE
by Brenda Grantland,Esq.
- Last updated May 1992
NOTE: The laws have changed since this publication was last
updated. Please make sure you check for changes in the law and use
this only for a starting point of your research.
We want to update this compendium of forfeiture law. Please send
us any suggestions (and copies of cases) you have for updating this
out of date but still helpful compendium.
Table of Contents
[Because this is an ASCII text, the page numbers will not match,
but they might help you find your way.]
I. Introduction to Asset Forfeiture ................. 4
A. Civil vs. Criminal Forfeitures .............. 6
B. Constitutional Implications of Quasi-
Criminal Nature of Forfeiture ............... 8
II. The Government's Authority to Take ..............10
III. Statutory Grounds for Forfeiture ...............12
A. Federal .....................................13
1. Drug Forfeitures .......................13
2. RICO Forfeitures .......................15
3. Customs Forfeitures ....................16
4. Firearms Forfeitures ...................16
5. Counterfeiting Forfeitures .............17
6. Immigrations Forfeitures ...............17
B. District of Columbia ........................18
IV. Defenses To Forfeiture ..........................19
A. Innocent Owner Defense ......................19
1. Federal ................................19
2. District of Columbia ...................20
B. Personal Use ................................21
C. Statute of Limitations ......................21
D. Constitutional Defenses .....................22
1. Suppression of Evidence ................22
2. Denial of Speedy Trial .................23
V. Forfeiture Procedure .............................24
A. Seizure Warrants, Restraining Orders
& Warrantless Seizures .....................24
1. Warrantless Seizures ...................25
2. Seizure Warrants .......................27
3. Restraining Orders .....................28
B. The Period Between Seizure and the
Commencement of Proceedings ................29
1. Suspension of the Right To Replevin ....29
2. Post-seizure Probable Cause
Determinations ........................30
C. Notice ......................................31
1. Federal cases ..........................31
2. District of Columbia ...................31
3. Constitutional Requirements For Notice .32
D. Claim & Cost Bond ...........................34
1. Federal.................................34
2. District of Columbia ...................35
E. Administrative Forfeiture Procedure .........36
1. Federal ................................36
2. District of Columbia ...................36
F. Judicial Proceedings ........................37
1. Complaint/Libel of Information .........37
a. Federal ...........................37
b. District of Columbia ..............38
2. Verified Claim and Answer ..............40
a. Verified Claim ....................40
b. Answer ............................40
i. Counterclaims ................41
ii. Jury Demand ..................42
3. Vacating Defaults ......................42
4. Discovery ..............................43
a. Fifth Amendment Implications ......43
b. Failure to Cooperate In Discovery .44
5. Motions ................................45
6. Burden of Proof ........................45
7. Stays During Pendency of Criminal Case .46
8. Expediting the Trial ...................47
9. Stays Pending Appeal ...................47
VI. Motions For Return of Property and Other
Collateral Remedies .............................48
A. Motions For Return of Property ..............48
B. Collateral Attacks On Forfeiture ............50
1. Lack of Notice .........................50
2. Void Forfeitures .......................51
3. Statute of Limitations .................52
VII. D.C. Property Clerk Proceedings -- Property
Seized Under Non-Judicial Forfeiture Statutes,
or Otherwise Coming Into Possession of Police ..53
A. Administrative Forfeiture Statutes ..........53
B. Office of the Property Clerk ................56
1. Powers and Responsibilities ............56
2. Immunities from Liability ..............57
C. Procedures in Property Clerk's Office .......57
1. Procedures Re: Release To Owner ........57
a. Property Allegedly Feloneously
Obtained or Proceeds of Crime ....58
i. Release to Victim ............58
ii. Release to Defendant ........59
b. Dangerous Articles ................59
c. Lost Property .....................61
d. Abandoned Property ................61
e. Property Set Out During Eviction ..63
f. Property of Deceased Persons ......64
g. Property of Incompetent Persons ...64
2. Summary forfeiture .....................64
a. Notice ............................65
b. Summary Forfeiture Procedure ......66
3. Auctions and Other Final Dispositions
of Property ...........................66
a. Advertising and Other Means of
Assuring Fair Market Value ........66
b. Purchaser's Rights ................66
c. Lienholder's Rights ...............66
d. Distribution of Proceeds ..........67
e. Storage Fees ......................67
D. Due Process in the Property Clerk's Office ..67
ASSET FORFEITURE, MOTIONS FOR
RETURN OF PROPERTY, AND OTHER
PROCEDURES GOVERNING RECOVERY OF
PROPERTY SEIZED BY POLICE
I. 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 hottest and most controversial law
enforcement weapons in the "War Against Drugs." Although it has
just in the past few years come into vogue, it traces its origin to
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.
"Criminal Forfeiture", 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 procedure 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).
A. 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, 416 U.S. at 682, 94 S.Ct.
at 2091; 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 affects someone's
property rights was at first not considered.
Civil forfeiture follows the rules of civil procedure, with
the exceptions discussed in Section B, below. 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 D.C. 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 first 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 v. Ward, 448 U.S. at 248-49, 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
finding 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.
B. 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 v. $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 (D.C.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 F.2d 1049 (9th Cir. 1987) (RICO statute - 18 U.S.C.
1963(a) - is subject to Eighth Amendment); United State v. Huber,
603 F.2d 387 (2nd Cir. 1979), cert. denied, 445 U.S. 927 (1980)
(same); United States v. Littlefield, 821 F.2d 1365 (1987) (drug
"criminal forfeiture" statute, 21 U.S.C. 853, is subject to Eighth
Amendment). A case is pending in U.S. District Court for the D.C.
Circuit challenging a civil forfeiture under 21 U.S.C. 881, on
Eighth Amendment grounds. United States v. One 1985 Mercedes Benz
300SD, U.S. District Court for D.C., No. 87- 2168 (Judge Hogan).
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, Argersinger 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 v. 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.
II. The 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 v.
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.
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 v. One 1981 Datsun 200SX,
115 D. Wash. L. Rptr. 645 (April 2, 1987) (D.C. Super. Ct., J.
Burgess), quoting State v. 1979 Pontiac Trans Am, 98 N.J. 474, 487
A.2d 722, 726 (1985).
III. Statutory Grounds For Forfeiture
The following terms are commonly used in both federal, state
and D.C. forfeiture statutes, and are defined, interpreted or
distinguished in the cases cited:
"Used or Intended for Use to Facilitate" -- United States
v. Fleming, 677 F.2d 602 (7th Cir. 1982) (car used to transport
defendant to place where drug transaction was to take place was
subject to forfeiture); United States v. 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 connection 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, ___ U.S. ___, 106 S.Ct.
795 (1986).
"Proximity to drugs" -- D.C. Code 33-552(a)(7)(B) creates a
presumption that money found in close proximity to drugs was used
or intended for use in violation of the drug laws. This provision
was found to be unconstitional by Superior Court Judge Curtis Von
Kann, in District of Columbia v. $987 (Purvis Williams), 115 D.
Wash. L. Rptr.1393 (July 8, 1987).
Quantity of drugs necessary to effect a forfeiture -- Under
the terms of both federal and District of Columbia statutes, the
amount of drugs involved in a drug forfeiture case is immaterial to
the forfeiture case. United States v. One 1976 Porsche, 670 F.2d
810, 811 (9th Cir. 1979); United States v. One Clipper Bow Ketch
Nisku, 548 F.2d 8 (1st Cir. 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).
A. 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 Organized Crime)
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)
1. Drug forfeitures
The most commonly used civil forfeiture statute governing
forfeiture for drug offenses is 21 U.S.C. Sec. 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;
(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;
(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.
(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. Sec.
881 is the criminal forfeiture statute, 21 U.S.C. Sec. 853, which
allows forfeiture of property involved in felony drug offenses
proscribed in title 21 of U.S.Code. Before forfeiture can occur
under Sec. 853, the owner must have been convicted of the
underlying felony drug offense. Procedurally trials of Sec. 853
criminal forfeitures vary substantially from civil forfeiture
trials under Sec. 881, for in Sec. 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 __, or of engaging in a continuing
criminal enterprise, under 21 U.S.C. Sec. 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. Sec. 853(a). A conviction under 21 U.S.C. Sec. 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. Sec. 848(c)(2).
Vessels, vehicles and aircraft used to transport contraband
drugs are forfeitable under 49 U.S.C. Sec. 781(b)(1).
2. Racketeer Influenced Organized Crime Forfeitures
Anyone convicted under 18 U.S.Code Sec. 1962, Racketeer
Influenced Organized Crime, 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 seciton 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.
Sec. 1963(a).
3. Customs Forfeitures
19 U.S.C. Sec. 1497 authorizes forfeiture of any article
required to be declared upon entering customs if the article was
not properly declared.
31 U.S. Code Sec. 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
Sec. 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. Sec. 545. This applies to anyone who
knowlingly 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..
4. Firearms Forfeitures
Under 49 U.S.C. Sec. 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. Sec. 881(a)(11).
5. Counterfeiting Forfeitures
Counterfeit money of the United States or any other country,
and the equipment used to create counterfeit money, is subject to
forfeiture under 49 U.S.C. Sec. 781(b)(3).
6. Immigration Forfeitures
8 U.S.C. Sec. 1324(b)(1) authorizes forfeiture of any vessel,
vehicle, or aircraft, "which has been or is being used in the
commision of a violation" of 8 U.S.C. Sec. 1324(a).
Section 1324(a)(1) makes it a felony to:
(A) knowing that a person is an alien, bring or attempt to
bring into this country such a person, at a place other than a
designated port of entry;
(B) knowing or in reckless disregard to the fact that an
alien has entered and remains in the country in violation of
immigration laws, transport or attempt to transport the alien
within the country, in furtherance of such a violation;
(C) knowing or in reckless disregard to the fact that an
alien has entered and remains in the country in violation of
immigration laws, conceal, harbor or shield the alien from
detection, in any place including any means of transportation;
(D) encourages an alien to illegally enter or reside in the
U.S., knowing or in reckless disregard of the fact that the entry
or residence is in violation of the law.
Section 1324(a)(2) makes it a misdemeanor to, knowing, or in
reckless disregard of the fact that an alien has not received prior
authorization to enter the U.S., bring or attempt to bring the
alien into the U.S. "in any manner whatsoever."
B. District of Columbia Statutes
The District of Columbia has forfeiture statutes covering
gambling and drug offenses.
33 D.C. Code Sec. 552(a), the drug forfeiture statute,
authorizes the forfeiture of:
(1) controlled substances;
(2) raw materials and equipment used in manufacturing,
processing or delivering controlled substances;
(3) property used or intended for use as a container of
property listed in (1) or (2) above;
(4) conveyances, including aircraft, vehicles or vessels
"used, or intended for use, to transport, or in any manner to
facilitate the transportation, for the purpose of sale or receipt
of property" described in (1) or (2);
(5) books, records, research products and materials, including
formulas and data, which are used or intended for use in violation
of the drug laws;
(6) money "which has been used or intended for use" in
violation of the drug laws;
(7) "everything of value furnished or intended to be
furnished in exchange for a controlled substance . . . , proceeds
traceable to such an exchange, and all moneys, negotiable
instruments or securities used or intended to be used to
facilitate" any drug violation. Money found in close proximity
to drugs, paraphernalia, or records of drug transactions are
presumed forfeitable. The burden of proof is on the owner to rebut
the presumption. 33 D.C. Code Sec. 552(a)(7)(B).
(8) real estate "used or intended to be used in any manner to
commit or facilitate the commission of" a felony drug offense.
Forfeiture for gambling offenses, under 22 D.C. Code Sec.
1505(c), encompasses:
All moneys, vehicles, furnishings, fixtures, equipment,
stock (including, without limitation, furnishings and
fixtures adaptable to nongaming purposes, and equipment
and stock for printing, recording, computing,
transporting, safekeeping, or communication), or other
things of value used or to be used: (1) in carrying on
or conducting any lottery, or the game or device commonly
known as a policy lottery or policy, contrary to the
provisions of Sec. 22-1501; (2) in setting up or keeping
any gaming table, bank, or device contrary to the
provision of Sec. 22-1504; or (3) in maintaining any
gambling premises. . ."
There are also lesser known D.C. statutes, not generally
thought of as forfeiture statutes, that authorize the forfeiture of
contraband such as illegal weapons (22 D.C. Code Sec. 3214). See
part VII for a fuller discussion of these administrative forfeiture
statutes. They are considered "administrative forfeitures" because
the statute does not require the government to go to court to
obtain approval to permanently deprive the owner of his/her
interest in the property, but leaves it up to an administrative
agency -- the police -- to decide what to do with the property.
However, even in these cases, aggrieved parties can often appeal to
the court through a motion for return of property.
IV. Defenses To Forfeiture
Affirmative defenses must be raised in the answer, FRCivP
and SCR-Civ Rule 8(c), but the answer may be amended even at the
time of trial to conform with the evidence. FRCivP and SCR-Civ 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.
A. Innocent Owner Defense
1. Federal
21 U.S.C. Sec. 881(a)(7), 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 establishefd 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.
2. District of Columbia
The District of Columbia drug forfeiture statute has a
liberal "innocent owner" defense. It provides:
No conveyance is subject to forfeiture under this section
by reason of any act or omission established by the owner
thereof to have been committed or omitted without his or
her knowledge or consent.
D.C. Code 33-552(a)(4)(B). D.C. Code 33-552(a)(8) provides the
same protection to the owners of real estate. "Actual knowledge or
consent is the proper standard to be applied." D.C. v. One 1981
Datsun 200SX, 115 D.Wash.L.Rptr. 645 (April 2, 1987). When the
statute reads "knowledge or consent," (rather than "knowledge
and
consent") the defense has been found to be available to an owner of
real estate who knew of but did not consent to the illegal use of
his property. U.S. v. Certain Real Property and Premises Known as
171-02 Liberty Ave., Queens, N.Y., D.C., E.N.Y. No. CV-88-0683
(4/7/89) (landlord's interests not forfeitable for acts of
tenants).
The term "owner" was construed in D.C. v. One 1981 Datsun
200SX, 115 D.Wash.L.Rptr. 645, 649 (D.C. Superior Court, April 2,
1987). Judge Burgess ruled that forfeiture statutes must be
construed liberally in favor of the claimant, and in such a manner
"'as to give effect to the objects and purposes of the statute,'"
1981 Datsun at 649, quoting Mason v. Automobile Finance Co., 73
U.S. App. D.C. 284, 286, 121 F.2d 32, 34 (1941).
Although such a construction places weight on who holds
title, the ultimate issue is who had the "power and the
legal right to permit its use by another." 73 U.S. App.
D.C. at 287, 121 F.2d at 35. . . . Federal courts, in
determining who has standing to raise defenses under the
federal forfeiture statute, 21 U.S.C. Sec. 881(a), have
first held that to challenge forfeitures, the challenger
must own the res. They have then analyzed several factors
in determining who is the owner, including, among others,
who holds title, who exercises dominion and control, who
has possession, and who has a financial stake in the
property.
1981 Datsun at 649.
B. 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 the D.C. drug
forfeiture statute, 33 D.C. Code 552(a)(4)(C), or real estate under
33 D.C. Code Sec. 552(a)(8)(B). See also, United States v.
Zarbough, 115 D. Wash. L. Rptr. 273 (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.
C. Statute of limitations
In D.C., the statute of limitations in forfeiture cases is
one year. D.C. Code Sec. 12-301(5). However, the statute of
limitations is tolled during the pendency of criminal proceedings
related to the property. Ward v. District of Columbia, 494 A.2d 666
(D.C. 1985).
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.
D. Constitutional Defenses
1. 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 v. 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 v. One 1977 Mercedes Benz, 450
SEL, 708 F.2d 444, 448 (9th Cir. 1983) (owner relinquished
reasonable expectation of privacy when she lent her automobile to
a third party.)
A guilty plea in the criminal case without asserting an
illegal search should not preclude the claimant from litigating a
suppression motion in the forfeiture case. Judge Beaudin so held in
District of Columbia v. One 1980 Blue Jaguar, CA 3256-87, on the
ground that the issue of the illegality of a search or seizure
could be raised at any time, even during trial. He suggested,
however, that the better practice would be to enter a conditional
plea under Criminal Rule 11(a)(2), reserving the suppression issue.
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 v. Doby, ___ U.S. App. D.C. ___, 459 F.2d 1195, 1197 (1972).
2. Denial of Speedy trial
In United States v. $8,850, 461 U.S. 555 (1983), the United
States Supreme Court held that the four factor balancing test of
Barker v. 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 v. 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 v. 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 v. Banco Cafetero Panama, 797 F.2d 1154 (2nd Cir.
1986).
[T]here has been no uniformity in deciding what
constitutes a reasonable length of time. Delays of five
months, [] nine months, [], and fourteen months,
[] 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.[]
Darmstadter & Mackoff, "Some Constitutional and Practical
Considerations of Civil Forfeitures Under 21 U.S.C. Sec. 881," 9
Whittier L. Rev. 27, 40 (1987).
The government's undue delay in instituting forfeiture
proceedings after seizure may bar forfeiture of the
claimant's property. Although extenuating circumstances
may lengthen the amount of time allowed for the
government to file a complaint for forfeiture, delays of
more than six months have generally been sufficient to
trigger successful "deprivation of due process" defenses.
In reviewing the merits of a defense of unreasonable
delay, the determination of reasonableness is a finding
of fact. The court will generally allow time for
investigation and processing petitions for mitigation and
remission. The courts are divided concerning whether the
delay must cause harm before it can be found
unconstitutional. A claimant's dependency of the property
may strengthen the claim. Courts also look less favorably
on delay when the property seized is a wasting asset,
such as an automobile.
Note, "An Analysis of Federal Drug-Related Civil Forfeiture,"
34
Maine L. Rev. 435-454 (1982).
IV. Forfeiture Procedure
A. Seizure Warrants, Restraining Orders and Warrantless
Seizures
In federal law, warrantless forfeitures are governed by 21
U.S.C. Sec. 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.
In the District of Columbia, 33 D.C. Code Sec. 552(b)
provides:
Property subject to forfeiture under this chapter may be
seized by law enforcement officials, as designated by the
Mayor, upon process issued by the Superior Court of the
District of Columbia having jurisdiction over the
property, or without process if authorized by other law.
Presumably, the "other law" referred to is the body of search
and
seizure law, developed in the criminal courts, authorizing
warrantless searches and seizures.
1. Warrantless Seizures
Both D.C. Code 33-552(b) and 21 U.S.C. 881(b)(4) provide
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 F.2d 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 reading.
Id. at 327, quoting United States v. One 1972 Chevrolet Nova, 560
F.2d 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 F.2d
154 (3rd 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
Plymouth 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, "Seizures 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.
2. 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.
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).
3. Restraining Orders
Under the RICO (18 U.S.C. Sec. 1962 et seq.) and CCE (21
U.S.C. Sec. 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 may be 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 F.2d 1293 (9th Cir. 1982) the Ninth Circuit vacated an
ex parte restraining order, holding that
Even when exigent circumstances permit an ex parte
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).
These restraining order provisions in the federal criminal
forfeiture laws have no counterpart in D.C. law.
B. The Period Between Seizure and the Commencement of
Proceedings
1. Suspension of Right to Replevin
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. As a trade-off, the statutes require the government
to file the forfeiture action "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 the seizure and
indefinite detention of their automobiles.
2. Post-seizure probable cause determinations
The problem with allowing warrantless seizures of property
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 probable 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 Amer. Crim. L. Rev. 59
(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-Seizure 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 seizures requires that a
forfeiture claimant receive a prompt probable cause determination
on demand. (Order docketed January 6, 1989), 117 W.L.R. 741, (April
13, 1989). This probable cause determination appears to be
something 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. See section V below.
C. Notice
1. Federal Cases
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% 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 only have 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 U.S.C. Sec. 1608. The 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.
2. District of Columbia
The 1989 amendments to the D.C. drug forfeiture laws changed
the procedures to mimic the federal administrative procedures.
Like the federal procedures, the administrative forfeiture
process commences with a notice of seizure and intent to forfeit,
published once a week for two successive weeks in a local newspaper
of general circulation, and by providing
written notice of the seizure or custody and information
on the procedures for claiming the property, including
any requirement for a bond and a preliminary
determination as to the amount of the bond, to each
person or entity who is known or in the exercise of
reasonable care should be known by the Property Clerk to
have a right of claim to the property.
6A DCMR Sec. 805.3(b). The notice must be sent, "by registered or
certified mail, return receipt requested, to the last known or
discoverable address of each claimant." 6A DCMR Sec. 805.4. This
language is broad enough to include service upon an inmate
incarcerated in District of Columbia facilities at the place where
he/she is incarcerated, which is required by the Constitution,
but the District has admitted in answers to interrogatories in
Patterson v. District of Columbia, C.A. No. 87-5726, that it still
does not have an official policy requiring that notice be sent to
inmates at the place of their incarceration. (Answers to
Interrogatories filed March 30, 1992.)
The law also seems a bit loose about returned mail:
Where no claimant is known or in the exercise of
reasonable care should be known to the Property Clerk, or
where the notice to a claimant is returned as
undeliverable . . .
Id. sec. 806.2, the time for filing a claim and cost bond expires
30 days after the second date that notice is published.
Considering the fact that certified mail sent out return receipt
requested is not delivered to one's house, cannot be picked up by
people other than the claimant, and does not identify the source of
the mail, a person's merely being out of town for two weeks could
prevent notice from being timely obtained.
3. Constitutional Requirements for Notice
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.
Id. at 314-15.
Where the names and post office addresses of those
affected by a proceeding are at hand, the reasons
disappear for resort to means less likely than the mails
to apprise them of its pendency.
Id. at 318.
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
v. 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 the 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).
Both the District of Columbia and the federal government play
loose games with notice, and in a large percentage of the 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.
D. Claim and Cost Bond
1. Federal
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% of the value of the property, whichever
is lower, but not less than $250). 19 U.S.C. 1608. The 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 seizure, identify the person making
the claim, state their interest in the property (i.e., owner,
lienholder, etc.), and 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.
Filing a Declaration of Indigency does not automatically
result in permission to proceed without paying the cost bond. The
agency conducts an investigation and makes a decision. Denials by
the agency of motions to proceed in forma pauperis may be appealed
under the Administrative Procedure Act, 5 U.S.C. ___. Wiren v.
Eide, 542 F.2d 757 (9th Cir. 1976); Lee v. Thornton, 538 F.2d 27
(2nd Cir. 1976).
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 v. One 1969 Plymouth Two-Door Hardtop,
360 F. Supp. 488 (M.D. Ala. 1973).
If the claimant does not file a claim 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 is 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 v.
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.
2. District of Columbia
The D.C. cost bond requirement is almost identical to the
federal requirements. The bond is set in the amount of 10% of the
fair market value of the property seized, but not more than $2,500
nor less than $250. Id. Sec. 806.3. The claimant is allowed to
present evidence to the Property Clerk to rebut the Property
Clerk's determination of the value of the property. Unlike the
federal statute, however, the statute provides for bonding by
sureties, instead of allowing only cash bonds. Id. Sec. 806.4.
However, the surety must guarantee payment of all the costs and
expenses of the forfeiture case up to the cost of the bond. Id.
The unsuccessful claimant may lose all the bond and still have
to pay more, for Sec. 806.5 requires the unsuccessful claimant to
pay all the costs of forfeiture. pay all the costs of forfeiture.
Claimants who cannot afford the bond can apply to proceed in
forma pauperis. The Property Clerk may require documentary
evidence including federal and D.C. income tax returns for the ast
three years. Id. Sec. 806.6. Unlike the federal statute, in
response to claimant's evidence of inability to afford the bond,
the bond may be reduced as well as dispensed with altogether. Id.
Sec. 806.7.
If a claimant fails to file a claim and post a cost bond (or
file an in forma pauperis declaration within 30 days after notice
is received (or after the second publication date, if the claimant
was not notified personally because he/she was not reasonably known
or the mail was returned undeliverable, the property is
automatically forfeited to the government. The rule states that
the Property Clerk "shall" declare the property forfeited if the
claim and cost bond are not filed timely, which appears to indicate
the Property Clerk has no discretion to allow a late-filed claim
and cost bond. Id. Sec. 807.1. However, Sec. 807.2 states:
If at any time the Property Clerk determines that
property seized or in custody is not subject to
forfeiture, the Property Clerk shall return the property
to its rightful owner.
This seems to indicate that, even when a claim and cost bond is not
timely filed, the Property Clerk is duty bound to return the
property if the government lacks grounds to forfeit it.
Once the claim and cost bond is filed, or the in forma
pauperis, if filed, is granted, the Property Clerk must refer the
case to the Office of Corporation Counsel for the filing of
judicial proceedings. Id., Sec. 807.4(b).
In all cases in which the value of the property seized is
$250,000 or more, judicial forfeiture proceedings are always
required, without the filing of a cost bond. Id. Sec. 807.1 and
807.4(a).
E. Administrative Forfeiture Procedure
1. Federal Cases
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 CFR 1316.79 through 1316.81, in DEA and FBI
cases, or 19 CFR 171.12 through 171.14 for customs seizures.
2. District of Columbia
The current D.C. forfeiture procedures also include petitions
for remission and/or mitigation. See Id. Sec. 809.1 through 809.5.
The petition for remission must include: (a) a complete
description of the property, (b) the date and place of seizure, (c)
the claimant's interest in the property, supported by documents of
title and sale, and (d) the facts and circumstances (including
affidavits and documentary proof) to establish that the petition
should be granted. Id. Sec. 809.2.
Grounds for remission or mitigation are:
(a) That the forfeiture was incurred without willful
negligence on the part of the petitioner or without any
intention on the part of the petitioner to violate the
law, or (b) That mitigating circumstances justify
remission or mitigation of the forfeiture.
Id. Sec. 809.3. Under Section 809.4, mitigating circumstances
include, but are not limited to:
(a) The excusable inability of the petitioner to respond
to the notice of seizure of to file a timely claim; (b)
The seasonableness of the filing of the petition for
remission or mitigation; (c) The absence by the
petitioner of knowledge of or responsibility for the
underlying criminal conduct; (d) The degree of
involvement by the petitioner in the underlying criminal
conduct; (e) The extent of the petitioner's cooperation
in the investigation of the underlying criminal conduct;
(f) The seriousness of the charges relative to the value
of the property seized; and (g) The degree of hardship
the petitioner or the petitioner's family would suffer if
the petition for remission or mitigation were denied.
As with all other proceedings in asset forfeiture, with regard to
petitions for remission or mitigation, the burden of proof is on
the property owner. Id. Sec. 809.5.
F. Judicial procedure
1. The Complaint or Libel of Information
a. Federal Cases
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, supra, at 1308; United
States v. $39,000 in Canadian Currency, 801 F.2d 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.
b. D.C. Cases
Under Superior Court Rule 71A-I, the judicial forfeiture case
is commenced with the filing of a libel of information. The rule
does not require that it be verified, nor that it set out with
specificity the grounds for forfeiture. The only requirements for
the contents of the libel of information are that it
allege a description of the property seized, the date and
place of the seizure, the person or persons from whom the
property was seized, and that the property was used, or
was to be used, in violation of 22-1505 et seq. D.C. Code
1967 ed.
The standard libel of information currently used by the
Office of Corporation Counsel merely alleges that the property is
used or intended for use in violation of a specific forfeiture
statute, and quotes parts of the statute, excluding those parts
that set out defenses to forfeiture. It is not verified -- it
merely alleges "on information and belief." It does not allege
any
specific facts. It is a lengthy document, written in archaic
legalese which is difficult to decipher. Nowhere does it clearly
set out the procedures to be followed to contest the forfeiture. It
directs the claimant to "duly intervene and file an answer by the
return date of such process," but doesn't itself specify the return
date. The return date can be found in the Order for Issuance of
Warrant and Advertising of Seizure and the page that is entitled
"The President of the United States to the Marshal for Said
District, Greetings:." These are usually the last two pages of the
document.
Civil Rule 71A-I requires the libel of information to be sent
by first class mail to the the last known address of
any lienholder of record, to any person who has made
written claim to the res to the office of the Corporation
Counsel, and to any other person who is known or in the
exercise of reasonable diligence should be known to the
Corporation Counsel to have a right of claim to the res.
. . .
Libels of Information are usually 8 or 9 pages long, and usually
include a large number of unrelated property seizures all grouped
together into one case. The claimant responds by filing an answer
with D.C. Superior Court (in room JM-220) by the "return date".
The
return date is listed on the page that has the caption "The
President of the United States to the Marshal for Said District,
Greetings:" (usually it is the last page of the document.)
If the claimant doesn't file an answer to a libel of
information on time, D.C. Corporation Counsel will obtain a default
judgment and the property will automatically be forfeited and sold
at auction or put into government use. Under current court rules
and practices, the government doesn't have to put on any ex parte
proof to prevail when the claimant defaults -- not even affidavits
or documents. The claimant can move to vacate a default judgment
within a year after its entry. See part __ below.
2. Claim and Answer to the Complaint or Libel of
Information
a. Verified Claim
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 v. 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 71A-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.
b. Answer
There is nothing in the D.C. Statutes or Superior Court
rules which specifies how much time must be provided for filing an
answer to a libel of information. The rule merely requires that the
libel specify the return date. Generally, the return date is two or
more months after the warrant of seizure is issued by the court.
Under both federal and District of Columbia 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.
(i). Counterclaims
There is conflicting authority as to whether claimants may
counterclaim against the government for lost 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 v. One 1965
Chevrolet Impala Convertible, 475 F.2d 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 Kozak v. United
States, 465 U.S. 850 (1984).
The District of Columbia also has an immunity statute. D.C.
Code 4-162 makes the District of Columbia and its officers and
employees immune from liability for
damage to any property resulting from the removal of such
property from public space, or the transportation of such
property into the custody of the Property Clerk,
Metropolitan Police Department, nor for damage to any
such property while such property is in the custody of
the Property Clerk, Metropolitan Police Department, when
such custody is maintained pursuant to the requirements
of law, except that the government of the District of
Columbia or any such officer or employee may be liable
for damage to such property as a result of gross
negligence in the removal, transportation, or storage of
such property. . . . For purposes of this section the
term "gross negligence" means a willful intent to injure
property, or a reckless or wanton disregard of the rights
of another in his property.
This language deals only with property damage, and not
depreciation. To the extent that it purports to immunize the
government for temporary takings it is probably unconstitutional.
Even if it does provide a degree of immunity, it would not bar the
counterclaim outright, because the claimant might be able to prove
gross negligence.
When claimants counterclaim against the D.C. government,
Corporation Counsel usually files a boilerplate motion to dismiss
the counterclaim, arguing that because forfeitures are in rem
actions, the defendant is the property and the claimant is not a
party. The motion has been denied in at least three Superior Court
cases, District of Columbia v. One 1977 Black Cadillac Seville
(James Simon), CA ________ (Judge Salzman); District of Columbia v.
One 1986 Mitsubishi, CA 3435-87 (Judge Rufus King III), and
District of Columbia v. One 1980 Blue Jaguar, CA3256-87 (Judge
Rufus King III), but no written opinion was issued in any of those
cases.
(ii). Jury Demand
Claimants in forfeiture cases have a right to a jury
trial. 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
1-1/2 to 2 years on the nonjury calendar.
A jury trial is waived unless demanded in the answer or
within 10 days after filing the answer. The jury demand must
specify a jury of 12, or else a jury of 6 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.
3. Vacating Default Judgments
In D.C. cases, if the claimant doesn't file an answer to a
libel of information on time, D.C. Corporation Counsel will obtain
a "default decree of condemnation" (the equivalent of a default
judgment.) Currently the court doesn't require the government to
put on ex parte proof in forfeiture default cases. In fact, because
the civil rule governing forfeitures, Rule 71A- I, allows service
by first class mail, without return receipt, the court currently
doesn't even require the government to prove that the person
received notice. Lack of notice, however, is grounds for vacating
a default judgment.
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. . . . "No
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., ___ U.S. ___, 108 S.Ct.
896 (1988).
In Superior Court, pro se claimants can pick up forms for
vacating a default in the Civil Actions Clerk's Office. The clerks
are generally helpful in telling them how to fill them out,
although the lines of people waiting for information and assistance
limits the amount of attention they can give individual claimants.
4. Discovery
a. Fifth Amendment Implications
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. See section __, infra.
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 v. 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 F.2d 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." Lefkowitz v. Cunningham,
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 F.2d 1084], 1088
(5th Cir. 1979).
626 F.2d at 14.
b. Failure to Cooperate in Discovery
Whether because they don't understand how to answer
interrogatories, or because they are afraid of incriminating
themselves, a large number of pro se forfeiture claimants fail to
answer interrogatories. The government then 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.
In Superior Court, the claimant has to pay a $20 filing fee
to file a motion to compel discovery (the government is exempt from
filing fees). At least one Superior Court judge has ordered a
claimant's filing fee for the motion refunded when the claimant's
motion to compel discovery was justified and the government's
noncompliance with discovery was found to be unreasonable.
5. 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 tell what kind of motions to raise them
in. In several cases in Superior Court claimants have successfully
argued that the criminal rules should be applied to quasi-criminal
motions, and have captioned their motions as if the case were a
criminal case (i.e. "Motion to Suppress", or "Motion to Dismiss
for
Denial of Due Process"). See, e.g., District of Columbia v. One
Blue Jaguar, CA 3256-87 (J. Beaudin, trial judge) (ruling made
orally during trial.)
In Superior Court Civil Division, there is a filing fee for
every motion unless the claimant has been granted leave to proceed
in forma pauperis. The government does not have to pay filing fees.
6. 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 v. 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 v. 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
rights2. In United States v. Jackson, D.C. Superior Court #
69808-76, 106 D.Wash.L.Rptr. 177 (1-30-78), Judge Neilson held that
the provision of D.C. Code 22-3217(e) which imposes the burden of
proof upon the claimants in "dangerous article" forfeiture cases
violates the Due Process clause. See also McClendon v. Rosetti, 460
F.2d 111, 113 (1972) (Administrative Code of City of New York, Sec.
435-4.0, shifting burden of proof to claimant in forfeiture
proceedings, violated Due Process.)
7. 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 v. Banco Cafetero
Panama, 797 F.2d 1154 (2nd 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 $8850.
8. 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,
neither the federal nor the D.C. courts make a practice of
advancing trial dates in forfeiture cases in front of non-quasi
criminal cases.
Still there are things that can be done to speed up the
process. The squeeky 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.
9. 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 v. $57,480.05, 722 F.2d
1457 (9th Cir. 1984); Alyeska Pipeline Service Company v. the
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.
This doctrine has not been specifically adopted by the
District of Columbia courts. However, to be on the safe side,
claimants wishing to appeal a judgment of forfeiture should
immediately take steps to stay the judgment, lest this rule later
be applied to deprive the court of appeals of jurisdiction over the
appeal.
V. Motions for Return of Property and Other Collateral Remedies
A. Motions For Return of Property
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. Some judges have
been denying such motions without a hearing, requiring instead that
D.C. government file a forfeiture action within a specified time
period. However, a few favorable rulings have been obtained at the
trial level in Superior Court, 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 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 v. Zarbough, 115 D.Wash.L.Rptr. 273
(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, . . . " Id. at 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 vhicle 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 v. 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.
B. Collateral Attacks on Forfeitures
Because the forfeiture statutes themselves bar claimants
from filing replevin actions (civil suits for the return of their
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.
1. 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 F.2d 1046 (9th Cir. 1983),
on remand after judgment vacated, ___ U.S. ___, 103 S.Ct. 2446 (
); Wiren v. Eide, 542 F.2d 757 (9th Cir. 1976). Menkarell v. Bureau
of Narcotics, 463 F.2d 88 (3rd Cir. 1972; Jaekel v. United States,
304 F. Supp. 993 (S.D.N.Y. 1969). Glup v. United States, 523 F.2d
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., ___ U.S. ___, 108 S.Ct. 896 (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 had 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 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. ___, 552, 85 S.Ct. ___, 1191 (19__), 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.
2. 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 v. 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 v. 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.
3. Statute of Limitations
Another situation where the courts should entertain
collateral suits is where the statute of limitations for initiating
a forfeiture action has passed without the government having filed
a complaint or libel of information naming the claimant's interest
in the property. Forfeiture provisions which suspend the claimant's
rights to replevin also require the government to institute
proceedings "promptly." Whatever "promptly" means, it
cannot
mean after the statute of limitations has run.
In Chandler v. District of Columbia, Superior Court civil case
# SC-89-8132, a claimant brought a small claims suit after the
statute of limitations (for the forfeiture) had expired without the
government having filed any action naming her interest (although
they had filed a libel naming the wrong person, served that person
and obtained a default judgment). The government moved to dismiss
the complaint, arguing that: (1) the forfeiture statute's
provisions barring replevin barred a small claims action, (2) the
default judgment obtained against the person it had mistakenly
named as the owner of the money was res judicata and binding on
this claimant, and (3) if the claimant had any remedy at all, she
would have to move to vacate the default judgment obtained against
the wrong person. The court denied the motion to dismiss, and held
that, when the statute of limitations has expired the claimant can
file a small claims suit (if under $2000 jurisdictional limit) to
recover the value of the property seized, and that the claimant
need not move to vacate a judgment when she was not made a party to
the suit. The court also awarded attorneys fees (totalling over
four time the amount of money taken from Ms. Chandler) against the
government, under Rule 11, for engaging in frivolous litigation.
Collateral suits have been brought in a variety of forms,
including Bivens-type actions, Seguin v. Eide, 720 F.2d 1046
(1983); actions brought under 42 U.S.C. Sec. 1983, Ford v.
Turner, 531 A.2d 233 (D.C. 1987); inverse condemnation actions
under the Just Compensation clause of the Fifth Amendment and the
Tucker Act, 28 U.S.C. 1346(a)(2), United States v. One 1965
Chevrolet Impala Convertible, 475 F.2d 882 (6th Cir. 1973), United
States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th
Cir. 1972), Jaekel v. United States, 304 F. Supp. 993 (S.D.N.Y.
1969); and small claims suits, Chandler v. District of Columbia,
supra.
VI. Property Clerk Proceedings
A. Administrative Forfeiture Statutes
There are a number of D.C. statutes, other than the drug
and gambling forfeiture statutes, under which the D.C. government
can take and permanently deprive persons of property. The following
forfeiture statutes are administered by the Metropolitan Police
Department Property Clerk:
D.C. Code 4-153 et seq. (lost, abandoned, and stolen
property),
D.C. Code 22-1630 (hunting and fishing equipment),
D.C. Code 22-3217 (dangerous articles),
D.C. Code 25-129 (untaxed, etc., alcoholic beverages),
D.C. Code 47-2320 (untaxed gasoline)
These statutes are also forfeiture statutes, although they
differ drastically from the drug and gambling forfeiture statutes
both in substance and procedure. They are not governed by the
procedures in Superior Court Civil Rule 71A-I, and generally never
appear in Superior Court at all. Instead, the procedures
terminating property interests are conducted entirely within an
administrative agency (if they are conducted at all). For that
reason, these are called "administrative forfeiture" statutes.
Several other statutes, although not forfeiture statutes in
themselves, authorize the police to take private property into
their possession. Once the property is in the custody of the
Property Clerk, it is disposed of in accordance with 4-153, et
seq., which means in most cases the final disposition of the
property will be sale at auction and deposit into the treasury of
the District, without any judicial proceedings. These statutes are:
D.C. Code 11-2305 (evidence of the cause of death)
D.C. Code 22-3214 (dangerous weapons)
D.C. Code 23-525 (evidence seized pursuant to a search
warrant)
On their faces, these administrative forfeiture statutes
fail to provide minimum due process safeguards. Several of the
statutes do not require the government to give notice of the
seizure and intent to forfeit to interested parties unless the
parties somehow learn of their remedies and file a claim with the
Property Clerk. See D.C. Code 4-157(b), 22-3217(d)(1), Other
statues do not mention any notice requirements, e.g. D.C. Code
47-2320, and some seem to cut off all due process remedies, D.C.
Code 47-2320. The D.C. Court of Appeals has recognized the
shortcomings of these statutes, and has read into them the minimum
due process requirements of notice, "reasonably calculated" to
inform owners of interests in the property of the reasons for the
seizure and their remedies by which they can contest the
forfeiture, and the opportunity to be heard. Ford v. Turner, 531
A.2d 233 (1987). However, it is unclear whether the government
instituted any major changes in their notice practices and
procedures in response to Ford v. Turner opinion. Metropolitan
Police Department General Order 601.1, governing "Recording,
Handling and Disposition of Property Coming into the Custody of the
Department" includes provisions requiring notice to the owner only
in certain situations. This General Order has not been revised
since 1981. Special Order 88.27, effective July 26, 1988, adds new
internal regulations police must follow in forfeiture cases, but
it, by its terms only applies to drug and gambling forfeiture cases
under D.C. Code 33-552 and 22- 1505(c) respectively.
Because these takings occur without any judicial oversight
or any other scrutiny which might bring to light failures of notice
or the opportunity to be heard, attorneys should be particularly
wary when property fitting one of these categories is seized, and
should warn potential claimants to take affirmative action to
assert their claims in writing to the Property Clerk, the Office of
Corporation Counsel, or both.
B. Office of the Property Clerk
1. Powers and Responsibilities
D.C. Code Sec. 4-152 et seq. creates the Office of Property
Clerk and defines its powers and responsibilities. Section 4-156
empowers the Property Clerk to
administer oaths and certify depositions which may be
necessary to establish the ownership of any property or
money lost, abandoned, or returned to him under the
directions of the Mayor of the District of Columbia,
including such property or money so returned which is
alleged to have been feloniously obtained or to be the
proceeds of crime.
Thus, the Property Clerk has the power to adjudicate, and
may determine, under this statute: that property is owned by
someone other than the person it was taken from, in which case it
is returned to its adjudicated owner, unless the owner is unknown,
in which case it reverts to the District; that property is "lost"
or "abandoned", in which case it is summarily forfeited to the
District unless the owner comes forward with sufficient proof of
ownership; or that it was proceeds of crime, in which case it is
returned to the owner, so long as the owner is not the criminal
defendant, and if the owner doesn't come forward, it is retained by
the government.
Under D.C. Code 22-3217, the Property Clerk also has the
responsibility of adjudicating whether property seized by police is
a "dangerous article" within the meaning of 22-3217(a), in which
case it may be transferred to a D.C. or federal agency to be put
into use, or destroyed, if it has no value. See section VI.C.1.b.
below.
2. Immunities From Liability
The Property Clerk is immune from liability in damages for
any official action performed under the Property Clerk statute in
good faith. D.C. Code Section 4-157(c).
D.C. Code Section 4-162 immunizes the Property Clerk and the
District of Columbia from liability for damages to the property
while it is in the custody of the District, "when such custody is
maintained pursuant to the requirements of law." However, the
government and its officers are liable for damages from gross
negligence. The statute defines gross negligence as "a willful
intent to injure property, or a reckless or wanton disregard of the
rights of another in his property." Sec. 4-162.
C. Procedures in the Property Clerk's Office
Sections 4-157 to 4-161 set out the procedures that are
generally used by the Property Clerk. Some of the administrative
forfeiture statutes set out above have their own distinct
procedures. Others dovetail with the Property Clerk statute
procedures at some point -- that is, usually the earlier
proceedings are governed by the specific statute, and if the owner
is not found, the property is treated as if abandoned, following
the procedures of 4-161.
Several provisions allow summary forfeiture (forfeiture
without a hearing) unless property is claimed within a certain time
after a particular event, such as publication of notice. These
statutes are particularly suspect on due process grounds, because
of the heightened risk of an erroneous deprivation. When property
is seized from someone against his/her will, held by the police an
indefinite period of time, then notice is sent, by first class mail
to their last known address (when they may be in jail) giving them
30 days in which to respond, the chances that due process was
denied are substantial.
1. Procedures regarding release to the owner
In general, the Property Clerk is required to return
property to its rightful owner (or the owner's representative)
"upon satisfactory evidence of ownership" 4-157(a). Also, as a
general rule,
[s]eizure or impoundment of property by the Metropolitan
Police Department from an individual is prima facie
evidence of that person's ownership of the property. The
prima facie evidence shall constitute a presumption of
ownership by possession and in the absence of other
evidence or claims of others shall be satisfactory
evidence of ownership.
D.C. Code 4-157( )(1).
When two or more persons claim ownership, the Property Clerk
is required to give notice of a hearing to both by registered mail.
At the hearing the Property Clerk receives evidence and determines
who is the owner.
There are a number of exceptions, depending on the type of
property, who claims ownership, how the property is characterized
(lost, alleged proceeds, etc.), and a number of other variations.
a. Property Allegedly Feloneously Obtained or
Proceeds of Crime
1. Release to the victim/owner
No property alleged to be feloniously obtained or the
proceeds of crime may be released to an alleged victim of crime
until the criminal trial is over, D.C. Code 4-159, or within one
year after its seizure, unless the United States Attorney certifies
in writing that it is no longer needed as evidence. 4- 157(d).
There are exceptions to this rule, however. Section 4-165
sets out a procedure whereby a victim of crime can secure the
release of property, other than money or perishable property, by
presenting sufficient evidence that it is "necessary for the
current use of the owner and not for sale," and posts a bond of
twice the value of the property, conditioned on the production of
the property at the time of trial.
Perishable property and large quantities of goods for sale
(with a value of over $50), both exceptions to the general rule
quoted above, are governed by, respectively: Sec. 4-166, which
provides for its return "on ample security being taken by the court
for his appearance to prosecute the case;" and Sec. 4-167, which
provides for its return "on ample security to prosecute the case."
(2). Release to the Criminal Defendant
When property taken from an accused is allegedly proceeds of
crime or feloneously obtained, and the trial judge
shall be satisfied from evidence that the person arrested
is innocent of the offense alleged, and that the property
rightfully belongs to him, said court may, in writing,
order such property or money to be returned, and the
Property Clerk, if he have it, to deliver such property
or money to the accused person himself, and not to any
attorney, agent, or clerk of such accused person.
D.C. Code 4-158. The late Judge Riley of Superior Court relied upon
this statute in ruling that a criminal defendant who is acquitted
in Superior Court may elect to have the criminal judge rule on the
merits of the forfeiture case, rather than have a separate
proceeding. United States v. Mabel Powell and George Grant, Crim.
#M3515-83, M3516-83 (order issued Jan. 19, 1984) (opinion on file
in the PDS library).
If someone other than the accused claims ownership of the
property under oath before the court, the property must remain in
the custody of the Property Clerk until the conclusion of the case.
D.C. Code 4-159. The defendant should be notified before any
intended release of the property to someone other than the
defendant. United States v. Averell, 296 F. Supp. 1004 (D.D.C.
1969).
Unless the defendant claims ownership of the property, which
is held as proceeds, within a year of its seizure, the property
will be treated as abandoned and summarily forfeited. D.C. Code
4-169.
b. Dangerous articles
"Dangerous articles" are defined as
(1) Any weapon such as a pistol, machine gun, sawed-off
shotgun, blackjack, slingshot, sandbag or metal knuckles; or
(2) Any instrument, attachment, or appliance for causing
the firing of any firearms to be silent or intended to lessen or
muffle the noise of the firing of any firearms.
D.C. Code 22-3217(a). Such articles are declared to be nuisances,
Sec. 22-3217(b), and police officers are authorized to confiscate
them and deliver them to the Property Clerk. Sec. 22-3217(c).
Within 30 days of the surrender any person can file a claim,
in writing, of ownership. The Property Clerk must notify each
claimant who submits a written claim, by registered mail, of the
date and place of a hearing to determine whether they are entitled
to possession. The hearing must be held within 60 days of the
seizure. D.C. Code 22-3217(d)(1).
At the hearing, the property clerk receives evidence.
Thereafter, he must render a written decision and send it to each
claimant by registered mail. D.C. Code 22-3217(d)(2).
To prevail, the claimant must show satisfactory evidence
that: (1) he/she is the owner or owner's "accredited
representative" (having a power of attorney) and that the ownership
is lawful, (2) that, at the time it was seized, it was not
illegally owned, nor illegally "possessed or carried by the
claimant or with his knowledge or consent," and (3) that the
receipt of the property by the claimant will not cause the property
to be a nuisance. D.C. Code 22-3217(e).
The claimant may appeal the decision to Superior Court, by
filing the appeal with Superior Court within 30 days of the date of
mailing of the decision, and giving notice to the Property Clerk.
The Property Clerk may not dispose of the property pending appeal.
Sec. 22-3217(d)(3).
In Ford v. Turner, 531 A.2d 233 (D.C. 1987), the court held
that the statutory notice requirements in D.C. Code Sec. 22-
3217(d)(1) were insufficient to satisfy the requirements of due
process.
The statute itself does not require the Property Clerk to
notify persons whose property has been seized. The
statute, therefore, is premised on an assumption that any
possible claimant will -- somehow -- have
constitutionally adequate notice of the seizure and can
make a timely claim. As this case illustrates, however,
that assumption can be fallacious.
531 A.2d at ____. The court went on to hold that
this failure to inform her of the reasons why the
Property Clerk held the guns and of the means by which
Ford could challenge appellees' continued custody of them
violated due process.
531 A.2d at ___.
In United States v. Jackson, 106 D. Wash. L. Rptr. 177 (1-
30-78), Judge Neilson held the shifting of the burden of proof onto
the property owner in this section to be unconstitutional.
c. Lost Property
"Lost property" is defined by the statute as
any personal property, tangible or intangible, the owner of which
is unknown and which has been casually or involuntarily parted with
through negligence, carelessness, or inadvertance.
D.C. Code 4-152(b)(1). The statute also defines the term "finder of
lost property" to be anyone other than a police officer who finds
lost property. D.C. Code 4-152(b)(2).
When lost property comes into the hands of the Police
Department and is held over 90 days (60 days for motor vehicles),
without being claimed, the statute provides for the Property Clerk
to publish notice (in a newspaper and by posting at the Police
Department) for three weeks that the property must be claimed
within 60 days or it will be given to the finder, after deductions
for expenses of storing, or will belong to the District government.
D.C. Code 4-161(a). This substituted service is not sufficient
under the Due Process clause and Ford v. Turner, supra, and counsel
should be on the alert for instances where the government followed
the statutory procedures rather than those required by the
Constitution.
The owner may claim lost property by presenting the Property
Clerk with "satisfactory evidence of ownership". D.C. Code
4-157(a). See section VI.C.1. supra.
If neither the rightful owner nor the finder appear to claim
the lost property, title to such property shall transfer to the
District government and may be sold at public auction. . . . The
Property Clerk need not offer any property for sale if, in the
Property Clerk's opinion, the probable cost of sale exceeds the
value of the property.
D.C. Code Sec. 4-161(b).
d. Abandoned Property
Abandoned property is disposed of under the same procedures
as lost property, with notice by publication and posting. D.C. Code
4-161(a).
Property held as proceeds of crime which is not claimed
within a year and not called for as evidence may be treated as
abandoned. D.C. Code 4-169. A lot of property seized under other
statutes, authorities and pretexts ends up treated as abandoned
after a certain period of time elapses without the owner asserting
a claim. For example, under M.P.D.C. General Order 601.1(III)(B),
2. An "Abandoned Vehicle" is any motor vehicle in
which the owner has relinquished all right, title, claim
and possession.
a. Although time is not the only element that
determines abandonment, a lapse of time may be considered
as evidence of the owner's intent to abandon.
b. There must be factors other than mere
non-use of the vehicle that indicate the owner's intent
to disclaim the vehicle (e.g., stripped of parts,
incapable of being operated, or the owner has
intentionally removed the license plates, registration,
or identification from the vehicle.)
3. A "Junk Vehicle" can be defined as a vehicle
which has outlived its usefulness as originally
manufactured or engineered, even though the vehicle's
parts have salvage or scrap value, and such vehicle
constitutes a nuisance to the health and welfare of the
public.
Officers processing abandoned or junk vehicles are required
to make a thorough investigation to determine ownership, including
a canvass of the vicinity in which it was parked and a check of the
license number and vehicle identification number with the
Department of Transportation. Gen. Order 601.1 Part (III)(B)(5). PD
Form 783 (Warning Notice to Remove Abandoned Vehicle) is used to
warn owners to remove the property. General Order 601.1 does not
specify how long the owner has to claim the property before it may
be towed away, but the warning sticker tells the owner he/she has
72 hours to remove the vehicle. "The Department of Environmental
Services has been granted the authority to remove junk vehicles to
a scrap processor and tow abandoned vehicles to the Blue Plains
Impounding Lot." Gen. Ord. 601.1 Part (III)(B)(6).
The District's procedures with regard to the processing of
junk vehicles have been found to violate minimum requirements of
Due Process. In Propert v. District of Columbia, No. 90-7131 (D.C.
Cir, Nov. 19, 1991), the court described the District's policy with
regards to abandoned and junk vehicles as follows:
After towing, abandoned vehicles are held in an
impoundment lot for at least 45 days while attempts are
made to contact the owner via registered letter and
advertisements in the newspaper; junk vehicles, however,
are towed directly to a demolition yard and immediately
destroyed.
Id. slip op. at 5. Limiting its holding to the issue of
whether D.C.'s conceded failure to provide any kind of
hearing, or any form of notice other than the warning
sticker, to owners of properly licensed or registered
vehicles identified as "junk", offends the due process
clause of the Fifth Amendment.
Id. slip op. at 8. The District of Columbia government conceded
that its policy provided no hearing, either before or after towing,
with regard to abandoned and junk vehicles. The court found this
to be a constitutionally fatal flaw in the District's policy. Id.
slip op. at 12.
Because D.C. law prohibits parking on D.C. streets for more
than 72 consecutive hours, the court found the 72 hour notice
period after the posting of the warning sticker to give
constitutionally acceptable pre-towing notice. However, the court
stated:
Even assuming that to be the case, however, D.C. still
would be required to provide some post-towing (pre-
destruction) process to owners of vehicles that have been
identified as "junk" in order for its policy to pass
muster under the Mathews balancing test. See 424 U.S. at
335. In other words, even if D.C. may tow a 2vehicle
that is seen to be "junk" pursuant to the sticker notice
without offending due process, D.C. may not thereafter
act to destroy the car without affording the owner post-
towing notice and an opportunity to be heard.
Id. slip op. at 15.
This constitutionally deficient policy has probably affected
large numbers of automobile owners. On one day alone, August 20,
1987, just hours before Mayor Marion Barry was to appear there for
a speech commemorating the first anniversary of Operation Clean
Sweep, 40 cars were removed by police from the area of Paradise
Manor housing project in Southeast Washington, D.C., and crushed
the same day. One of the cars belonged to a plaintiff in Patterson
v. District of Columbia. Plaintiffs were unable to obtain through
discovery the names and facts regarding the rest of the vehicles
seized and destroyed that day.
e. Property Set Out During Eviction
General Order 601.1 Part (III)(C) provides that property set
out on public space as a result of eviction cannot be removed by
police unless it "creates a hazard to public travel and the owner
cannot be located or refuses to have the property removed, or the
property's significant value dictates that it should be
safeguarded." Part III(C)(1). The Watch Commander on duty at each
organizational element determines whether or not to take property
into custody. Part III(C)(3). Part III(C)(4) sets out the
procedures for safeguarding property.
f. Property of Deceased Persons
Section 4-160 provides that whenever any property of a
deceased person of a value less than $1000 comes into the hands of
the Property Clerk, and it is not claimed within 6 months, it will
be disposed of "as lost or abandoned property" pursuant to Section
4-161. Sec. 4-160(b)2 provides that when property of a deceased
valued at more than $1000 comes into the hands of the Property
Clerk, and remains in custody 6 months, the records must be
referred to the Office of Corporation Counsel, which is required to
institute proceedings to have an administrator of the estate
appointed. If no one claims it within three years after time for
final settlement of the estate, it belongs to the District of
Columbia.
The Property Clerk is directed to determine, prior to
summary forfeiture, whether there is a pending in D.C. Superior
Court a petition for appointment of a legal representative. If so,
the Property Clerk may not dispose of the property pending final
action on the petition. (The same rule applies if the Property
Clerk is given actual notice of the pendency of a similar petition
in a court outside the jurisdiction.) D.C. Code Sec. 4-160(b)(1).
g. Property of incompetent persons
When property belonging to an incompetent person comes into
the hands of the Property Clerk, and a committee has been appointed
but fails to take possession of the property within 6 months, the
Property Clerk gives the committee 60 days notice by registered or
certified mail, and if the committee doesn't claim it within that
time, the Property Clerk may: sell the property at public auction,
deduct expenses of sale, maintence, and custody of the property,
and any expenses due D.C. for the care of the patient, and pay the
remainder to the committee. If the Property Clerk determines that
the property has no value, he may dispose of it, in compliance with
any regulations of the Mayor. D.C. Code 4-160(c).
3. Summary Forfeiture
Several provisions allow for summary forfeiture (i.e.,
without a hearing) in certain circumstances.
Property held as proceeds of crime which "shall not be
called for as evidence by any proceeding in the courts of
the District within 1 year fromthe date of such return,
may, unless specially claimed by the owner within that
time" is treated as abandoned, and summarily forfeited.
D.C. Code 4-169.
Section 4-157(e) provides that when the owner has been
notified by registered or certified mail to pick up his/her
property within 30 days of the mailing of notice and fails to do
so, it will be disposed of pursuant to Section 4-161, or destroyed,
if the Property Clerk determines the property has no saleable
value.
Under D.C. Code 4-161, property other than "perishable
property, animals, firearms and property of insane persons, not
otherwise disposed of in accordance with Sec. 4-160" which remains
in the custody of the Property Clerk for more than 90 days (60 days
for motor vehicles) without being claimed and repossessed is
summarily forfeited if 60 days passes after notice is published
telling owner to pick up his/her property within 60 days or it will
revert to: the finder of loss property if applicable (minus
storage etc. expenses) or, if none, to the District, post notice
in the police department headquarters at 300 Indiana Ave. N.W..
If the government stores the property at a commercial
warehouse pursuant to D.C. Code 4-160(d)(2) & (3), it may sell it
at public auction when the storage fees exceed 75% of the value of
the property
as determined by the Property Clerk, regardless of the
amount of time for which such property is required by
other sections of this chapter to be held by the Property
Clerk.
D.C. Code Sec. 4-160(2).
Under Section 4-160 property of a deceased person with a
value less than $1000 which comes into the hands of the Property
Clerk, and which is not claimed within 6 months, will be summarily
forfeited as lost or abandoned property pursuant to Section 4-161.
Horses and other animals taken by the police and unclaimed
after 20 days may be advertised and sold on 10 days' notice. D.C.
Code 4-163. Perishable property taken and unclaimed shall be sold
at once. D.C. Code 4-164.
a. Notice
Except for perishable property, animals, firearms, and
property of insane persons, any property remaining in the custody
of the Property Clerk for more than 90 days (or 60 days for motor
vehicles) triggers the following notice requirements: (1) published
notice telling owner to pick up his/her property within 60 days or
it will revert to: the finder of loss property if applicable (minus
storage etc. expenses) or, if none, to the District. (2) post
notice in the police department headquarters at 300 Indiana Ave.
N.W.. D.C. Code 4-161(a).
That is all the notice the statute requires. The Constitution
requires notice by mail when the owners' names and addresses are
readily ascertainable from public records. See section __ above.
b. Summary Forfeiture Procedure
If after the notice, described above, and the period of time
specified to respond, neither the rightful owner or finder of
property come forward, title to the property is transferred to the
District, and the property may be sold at public auction. If the
property clerk decides the property is not worth the cost of sale,
it doesn't have to be sold. 4-161(b).
3. Auctions and Other Final Dispositions of Property
a. Advertising and Other Means of Ensuring
Fair Market Value
Property Clerk auctions are advertised in a large box in
the classified ad section of the Washington Post. The auctions are
held monthly at the Blue Plains Impoundment lot. A deposit of $50
is required to attend the auction. That amount is applied to the
purchase price, or, if no purchase is made, refunded upon leaving
the lot. Terms of sale are cash, certified check or cashier's
check. Cars and other property are sold as is. The entire purchase
price must be paid before leaving the lot. If a person makes a high
bid and cannot pay the entire amount of the bid before leaving the
lot, the $50 deposit is forfeited.
b. Purchasers Rights
The purchaser at the auction
shall receive title to the property purchased, free from
all claims of the rightful owner or the finder of the
property and all persons claiming through and under the
rightful owner or finder.
D.C. Code 4-161(c).
c. Lienholder's Rights
D.C. Code Sec. 4-161(e) requires the government to notify
lienholders, whose liens are noted in the records of the Recorder
of Deeds, prior to the auction, to claim the vehicle within 30 days
of the date of mailing, and if they fail to repond, their liens are
deemed null and void, and the sale at auction is free and clear of
the liens.
Given the circumstances of the sale, the auction price is
usually below, and sometimes far below, the ordinary market value
of the property. In the case of automobiles, which have sat on the
impoundment lot for a period of time, generally they are not in the
best of conditions to fetch the highest bid. The costs of
impoundment and sale, as described below, are taken out before
proceeds are distributed to any lienholders.
d. Distribution of proceeds
Proceeds of the sale are distributed in this order:
(1) the cost of storage and expenses for custody
and sale, to the District, and then
(2) for the payments of liens declared null and
void by the forfeiture, and then
(3) for the payment of the owner or finder, if
such is determined under 4-161(a), and then
(4) the remainder to the District of Columbia.
D.C. Code 4-161(e).
e. Storage fees
Section 4-160(d)(2) authorizes the Mayor to fix, by
regulation, fees to be charged by D.C. for storage, etc., at a rate
reasonable estimated by him to be the true cost of storage, etc.
The Property Clerk may waive the fees for property held as evidence
or proceeds, or from insane persons. 4-161(d)(2).
D.C. Code 4-160(d)(1) authorizes the Property Clerk, at his
discretion, to store property in commercial warehouses or garages,
in which case the storage fees are presumably set by the commercial
warehouse.
D. Due Process in The Property Clerk's Office
The Property Clerk's Office has responsibility for
determining the disposition of a large volume of property,
ownership of which might with reasonable inquiry be determined.
Despite the enormous volume of property that must be subject to
these provisions, hearings at the Property Clerk's office are rare.
Discovery provided in Patterson v. District of Columbia, Superior
Court Civil Action # 5726-87, an action brought under 42 U.S.C.
1983 challenging the constitutionality of the forfeiture procedures
used in the District of Columbia, indicates that, in the period
between October 1986 and October 1987, there were only 18 hearings
held at the Property Clerk's Office, while five requests for a
hearing were resolved in favor of the claimant without a hearing.
A probable explanation for the paucity of persons demanding
property clerk hearings is lack of notice of the remedies.
In several of the statutes administered by the Property
Clerk, the statutory notice requirements are insufficient on their
faces. A number of the statutes do not require notice at all.
Others require published notice alone; clearly this is not
sufficient when the names and addresses of owners of interests are
readily ascertainable from public records. Under Ford v. Turner,
531 A.2d 233 (D.C. 1987), the constitutional requirements for
notice are read into the statute, and, if they are not followed,
the procedures are ineffective in terminating property rights.
However, if the person never learns he/she had rights, it is
unlikely the deprivation of due process will ever come to light.
If the property owner learns of a purported forfeiture with invalid
notice, collateral remedies are available to obtain compensation
for the value of the property taken.