by Sina Bahadoran, Boston College Law
March 31, 2000

House 1658

§ 2- in nonjudicial forfeitures, the Government must provide interested parties with written notice within 60 days of the seizure. The court may allow for an extension, but only upon a showing of good cause.

Senate 1658

§ 2- in nonjudicial forfeitures, the Government must provide interested parties with written notice within 60 days of the seizure. The Government may seek an extension of up to 30 days if the supervisory official of the seizing agency believes that notice may have an adverse result (the bill offers five specific exceptions). If this extension is made, the Government may not seek any other extensions. Another option is that the government may instead ask the court for an extension of up to 60 days if the court finds that notice may have an adverse result (as defined by the five specific exceptions).

House 1658

§ 2- if a person who is entitled to notice is not given timely notice, the forfeiture is void with prejudice, so that the Government must return the seized property and cannot start the process over again.

Senate 1658

§ 2- if a person who is entitled to notice is not given timely notice, the Government must return the property, but the forfeiture is void without prejudice, so the Government can start the entire process all over.

House 1658

§ 2- lengthens the time for filing a nonjudicial forfeiture claim to 30 days after the administrative forfeiture notice (currently 20 days), and need not be sworn.

Senate 1658

§2- time for filing a claim is limited by the deadline in the personal notice letter (minimum of 35 days after letter is mailed), and if no letter is received a claim must be filed within 30 days of the notice of seizure. It must be sworn, and include documentary evidence supporting interest in the property, and not be frivolous.

House 1658

§ 2- NO comparable provision
 

Senate 1658

§ 2- a claim need not be made in any particular form. Federal agencies shall make claim forms readily available and in easy to understand language.

House 1658

§ 2- eliminates the cost bond (currently a claimant must pay the seizing agency a bond of 10% of the value of the property, up to $5000, with a $250 minimum, in order to have the right to contest the forfeiture in court).

Senate 1658

§ 2- IDENTICAL.

House 1658

§ 2- NO comparable provision

Senate 1658

§ 2- no complaint for forfeiture may be dismissed on the ground that the Government did not have adequate evidence at the time the complaint is filed.

House 1658

§ 2- lengthens claimant's time for responding to a judicial forfeiture complaint to 30 days for filing a verified claim (current deadline is 10 days) with answer due 20 days after that.
 

Senate 1658

§ 2- IDENTICAL.

House 1658

§ 2- indigents claimants are entitled to court appointed counsel under the Criminal Justice Act (currently there is no right to counsel for indigents, and most are forced to represent themselves and likely lose, or give up).
 

Senate 1658

§ 2- indigent claimants are only entitled to appointed counsel as to their civil forfeiture proceeding, only if they are also in a related criminal case where they have appointed counsel.

House 1658

§ 2- puts the burden of proof on the government to demonstrate by a clear and convincing standard of evidence (currently the burden is just probable cause).
 

Senate 1658

§ 2- puts the burden of proof on the government- by a less strict preponderance of the evidence standard.
 

House 1658

§ 2- creates a uniform innocent owner defense for all owners who did not know of the illegal use of the property, or after finding out, did all that could reasonably be expected to end the illicit use. "...Did all that could be expected ... to end such [illegal} use" is defined as supplying law enforcement with all information that led to the claimant becoming aware of the illegal use, and revoking or making a good faith effort to revoke permission for use of the property, without subjecting one's self to physical danger.
 

Senate 1658

§ 2- also creates an identical innocent owner defense, with the burden on the claimant by a preponderance of the evidence standard.

House 1658

§ 2- allows people who acquire their interest in the property after the illegal act to assert an innocent owner defense if they are a- bona fide purchaser, seller for value, or acquired the property through probate or inheritance, if at the time of the transaction they were without cause to believe that the property was subject to forfeiture.

Senate 1658

§ 2- identical innocent owner protection for bona fide purchasers and sellers for value, but not those acquiring an interest through inheritance or probate.

House 1658

§ 2- innocent owner defense also applies to the spouse or minor child of the person who committed the offense, if the seized property is their primary residence and was acquired through dissolution of marriage, or by operation of law in the case of the spouse, or inheritance in the case of the child. Both must have been without knowledge that the property was subject to forfeiture.
 

Senate 1658

§ 2- the innocent owner protection will apply to those who acquired the property by way of marriage, divorce, legal separation, inheritance, or probate, only if it is their primary residence, and depriving them of the property would leave them without reasonable shelter. Additionally, the property cannot be traceable to the proceeds of criminal activity, and the amount of the property will be limited only to an amount that is necessary to maintain reasonable shelter.

House 1658

Sec 2.- "owner" is defined to include a leasehold, lien, mortgage, recorded security device, valid assignment, and bailee with a colorable interest.
 

Senate 1658

§ 2- IDENTICAL

House 1658

§ 2- allows for immediate release of the seized property to the claimant pending trial if there is substantial hardship- effect business, prevent from working, leave homeless.
 

Senate 1658

§ 2- also provides for release upon substantial hardship, but makes it contingent upon a showing that the claimant has sufficient ties to the community to ensure that the property will be available at the time of trial.

§ 2- NO comparable provision.
 

Senate 1658

§ 2- allows the court to conduct a proportionality test to determine if the forfeiture was "constitutionally excessive." The court will consider the gravity of the offense, and the burden shall be on the claimant to show by a preponderance of the evidence at a hearing that the forfeiture is disproportionately excessive. Codifying the holding in Austin v. U.S. at 113 S.Ct. 2801. The court will have the ability to reduce or eliminate the forfeiture as required by justice.

House 1658

§ 2- NO comparable provision.
 

Senate 1658

§ 2- if a claimant's action is frivolous, the court can impose a civil fine of 10% of the value of the forfeited property, with a minimum of $250 and maximum of $5,000. This also includes possible Rule 11 sanctions under the Federal Rules of Civil Procedure. There is also a three time bar for prisoners who have previously filed three or more claims that have been dismissed for being frivolous or malicious, unless a extraordinary circumstances are demonstrated.

House 1658

§ 3- waives the sovereign immunity for suit under Federal Tort Claims Act for damages to property while seized, if the claimant prevails in the forfeiture action (currently, a claimant can't sue the US for damages to their property incidental to seizure).

Senate 1658

§ 3- IDENTICAL.

House 1658

§ 3- requires the government to pay a successful claimant post-judgement interest, and pre-judgement interest on seized currency, negotiable instruments, or proceeds of an interlocutory sale.

Senate 1658

§§ 3, 4- also allows for pre-judgement and post-judgement interest, but only if the claimant "substantially" prevails, and will also be awarded reasonable attorney fees, and litigation costs. Currently, a prevailing party has the more difficult standards of showing that the government was "not substantially justified" in pursuing its action. See E.A.J.A. 28 U.S.C. § 2412 (d)(1)(B)

House 1658

NO comparable provision.

Senate 1658

§ 9- allows for civil forfeiture restraining orders wherein the Government may be given an injunction, requiring the execution of performance bonds, receiverships, appointment of conservators, custodians, appraisers, accountants or trustees, or any other action to seize and preserve the property if the government makes a showing that there is a substantial probability that they will prevail at trial, and that there is a risk to the preservation of the property for trial.

House 1658

NO comparable provision.

Senate 1658

§ 12- creates penalties for those who knowingly destroy, remove, or impair forfeitures. Also creates penalties for those who warn those subject to a search warrant.

NO comparable provision.
 

Senate 1658

§ 17- enhances the Government's ability to access a claimant's bank records, even if it is subject to financial secrecy laws.

House 1658

NO comparable provision.
 

Senate 1658

§ 19- requires the Attorney General to make an annual detailed report concerning the amount and nature of forfeitures for the previous fiscal year.