When Your Property Has
Forfeiture Endangers American
F. E. A. R.
What is forfeiture?
Asset forfeiture is a process that allows the government to take property away from people permanently, without paying for it, if the property or its owner is alledgedly involved in certain criminal offenses, such as drug offenses or gambling. Any kind of property ó cars, boats, airplanes, cash, bank accounts, homes and even businesses ó can be forfeited.
If I am found not guilty in my criminal case or they drop the charges, wonít I get my property back automatically?
No. If the government decides to "forfeit"
it, you have to win the forfeiture case to get it back. That would mean
a separate civil trial.
The process youíll have to undergo depends a lot on whether the seizure will be federal, state or local. Often you wonít know at the beginning whether the forfeiture case will be state or federal. Even if the state cops seized your property, they can turn it over to the federal government for forfeiture and get a kickback of up to 80% of the value of the property forfeited, under the "equitable sharing" program. The procedures described below are those used in federal forfeiture. You should get a copy of your stateís forfeiture statutes and read them to see how the procedures differ in your state. Some of the state statutes can be found in the FEAR websiteís Law Library. If your stateís statute is not there, check online at other legal websites, or go to the nearest law library (thereís probably one in your nearest large courthouse or college library). Please send us a copy to add to our collection.
Federal cases usually start with a notice of forfeiture or a civil (judicial) forfeiture complaint, which will come by registered mail.
If you havenít received a notice of forfeiture or any court documents, all you can do is wait. The forfeiture law prohibits property owners from filing civil suits to get their property back. Instead, the government is supposed to start the forfeiture process within a "reasonable time", and if it doesnít, you can raise the Unreasonable Delay defense later. In the meantime, thereís not much you can do to speed up the process except to call or write the police demanding they start the process. If you call them, be careful what you say ó everything you say can and will be used against you in court. Itís better to write, so they donít get a chance to ask questions ó and keep to the subject of asking about your property. Donít discuss the alleged crime that led to the seizure of the property. Keep copies of your letters ó they can be used later to support a motion to dismiss for undue delay.
Make sure the police know you are claiming the property, and that they have your correct address. And be sure to pick up your mail promptly.
You only have about 35 days after receiving the notice to file the claim. Check the forfeiture notice for the exact deadline. Your claim must be sworn to under penalty of perjury, it must identify your interest in the property (owner, co-owner, lienholder, etc.), and it must state that the claim is not frivolous.
The notice of forfeiture may also tell you that, instead of paying the cost bond and filing the claim, you can file a Petition for Remission or Mitigation. Beware of that option! Petitions for Remission are decided by the seizing agency, and they almost never decide to return the property. You donít get a hearing, and you canít appeal their decision.
Once you file your claim and cost bond, the United States Attorneyís Office reviews the case. If they decide to go ahead with the forfeiture (which they usually do), they will file a civil case in U.S. District Court, and serve you with a Complaint. Under CAFRA, the government has 90 days after receiving your administrative claim to file a judicial forfeiture action. If they miss this deadline, they can't forfeit the property.
After you are served with a Complaint, you have 30 days to file a Verified Claim. A verified claim is a statement under penalty of perjury stating your interest in the property. This is separate from the Administrative Claim you had to file earlier with the seizing agency. Once you file your verified claim, you have 20 days to file an Answer. Your Answer must state whether you "admit", "deny", or "donít have enough information to admit or deny" each allegation in the Complaint. Then you list your defenses. The defenses to forfeiture are listed below. Be sure to include a demand for a jury trial in your answer, or you wonít get one. Ask for a jury of twelve or youíll get a jury of six.
Be careful what you say in any other documents you file. Anything you say can be used against you in a separate criminal or tax proceeding. If you have a pending criminal case, consult your lawyer before you answer any questions that could be incriminating. You can assert the Fifth Amendment in answer to some questions and still keep your forfeiture case alive, but you will have difficulty defending your forfeiture case if you take the Fifth as to everything. The best thing to do when you have a criminal case and a civil forfeiture case pending at the same time is to get the civil forfeiture case stayed until the criminal case is resolved. Under CAFRA you have an absolute right to a stay if there is a pending criminal case or investigation against you -- but you have to ask for the stay. You can still try to settle it in the meantime, but answering civil discovery questions is not a good idea with a criminal case pending.
If your property is being forfeited by a state or D.C. law enforcement agency, the procedures will be different. Read the statute and consult your lawyer to make sure you know your deadlines and the steps youíll have to take to defend your case so you can react promptly. If you cannot afford a lawyer, contact FEARís victim support committee (firstname.lastname@example.org) and weíll try to find a lawyer who can answer questions for you.
For others who fall through the cracks in CAFRA's court appointed counsel scheme, you may still be able to get an attorney to represent you on a contingency, or on the expectation of getting a fee award. Under CAFRA if you win your forfeiture case, you are entitled to have your attorney's fees reimbursed. That's true whether you can afford to pay for counsel or not.
Build a support network of friends and family members sympathetic to your plight, and turn to them for moral support. If you need more moral support than they can give ó or if theyíre just not sympathetic enough ó contact FEARís victim support committee (email@example.com) This committee has several members who were forfeiture victims themselves, who can telll you how they coped with the stress and overcame the obstacles.
If you think these laws are unfair, write your Congressman and ask that the laws be changed. Tell them that the meager reforms that were left in CAFRA after the Senate compromise are not enough, and that you support the version of the Hyde bill that was passed in the House of Representatives on April 11, 2000 -- by a vote of 375 to 48.
If you are a victim of asset forfeiture or would like to join with some people who have been victimized by harsh forfeiture laws in rallying for reform, there is a national organization to reform forfeiture laws called F.E.A.R. ("Forfeiture Endangers American Rights"). To find out more about F.E.A.R. call or write us:
Forfeiture Endangers American
20 Sunnyside Suite A-419
Mill Valley CA 94941