FEAR’S Asset Forfeiture Defense Manual
(c) 2001 Brenda Grantland & Judy Osburn,Forfeiture Endangers American Rights Foundation
Appendix 1
CAFRA digested by key word
Claimant must file an answer within 20 days after filing a judicial claim. 18 U.S.C. § 983(a)(4)(B).
Attorney - court appointment of
If an indigent claimant has court appointed counsel in a related criminal case, the court may appoint that attorney to defend forfeiture. The court should consider whether the person has standing, and whether the claim appears to be made in good faith. 18 U.S.C. § 983(b)(1)(A)-(B).
If a claimant with standing to contest a forfeiture of their primary residence is indigent, the court, upon request by claimant, must insure the person is represented by Legal Services Corporation. 18 U.S.C. § 983(b)(2)(A).
When Legal Services Corporation is appointed to represent indigent whose residence is seized, they shall submit claims for reasonable fees and costs, which will be paid, at CJA rates, regardless of the outcome of the case. 18 U.S.C. § 983(b)(2)(B).
A claimant who substantially prevails is entitled to reasonable attorney's fees and costs. 28 U.S.C. § 2465(b)(1)(A).
Exceptions to 28 U.S.C. § 2465(b)(1): Attorney's fees are not available if claimant was convicted of the underlying crime, or if there are multiple claims to the same property and U.S. promptly recognizes claimant's claim, returns claimant's interest to him promptly if it can be divided, does not cause additional costs or fees, and prevails against one or more of the other claims. 28 U.S.C. § 2465(b)(2).
If the court enters judgment in part for claimant and in part for the government, the attorney's fee and cost award will be adjusted accordingly. 28 U.S.C. § 2465(b)(2)(D).
The burden of proof is on the government to establish by a preponderance of the evidence that the property is subject to forfeiture. The government may use evidence obtained after the filing of the complaint. 18 U.S.C. § 983(c).
CAFRA's procedural reforms apply to federal civil forfeiture statutes except: any forfeiture provision from title 19 U.S.C., the Internal Revenue Code, the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), Trading with the Enemy Act (50 U.S.C. App. 1 et seq.) or 22 U.S.C. §401. 18 U.S.C. § 983(i).
Section 21 of CAFRA provides: “Except as provided in section 14(c) [fugitive disentitlement], this Act and the amendments made by this Act shall apply to any forfeiture proceeding commenced on or after the date that is 120 days after the date of the enactment of this Act.” The fugitive disentitlement provisions of CAFRA § 14 take effect immediately upon enactment under §14(c). The statute was enacted on April 25, 2000, making the effective date August 23, 2000.
Claim must: identify property claimed, state claimant's interest (and provide documentary evidence if available), and be made under oath, under penalty of perjury. 18 U.S.C. § 983(a)(2)(C). An amendment to CAFRA eliminated the requirement that the claim state that the claim was not frivolous.
Any person claiming property may file claim by deadline stated in notice (which can't be less than 35 days after mailing of notice). If person doesn't receive notice, the deadline is 30 days after final publication. 18 U.S.C. § 983(a)(2)(A)-(B).
Claim need not be made in any particular form. Agencies will make claim forms available on request. 18 U.S.C. § 983(a)(2)(D).
Claimant has 30 days after service of complaint to file a verified
claim (now called a "Verified Statement of Interest") in compliance
with
Supplemental Rule C(6). 18 U.S.C. § 983(a)(4)(A).
When the subject of the forfeiture action is cash, negotiable instruments, funds on deposit or precious metals, it is not necessary for government to specifically identify the specific property involved in the offense, and it is not a defense that the property involved in the offense has been removed and replaced by identical property. 18 U.S.C. § 984(a)(1).
Action under 18 U.S.C. §984(a) to forfeit cash, monetary instruments, funds on deposit or precious metals that are not directly traceable to offense may be commenced more than 1 year after the offense. 18 U.S.C. § 984(b).
18 U.S.C. §984(a) does not apply to an action against funds held by a financial institution in an interbank account unless the account holder knowingly engaged in the offense that is the basis for forfeiture. 18 U.S.C. § 984(c).
Complaint - deadlines for filing
Government must file complaint within 90 days after claim was filed or return the property pending filing of complaint, except a court can extend filing deadline for good cause or by agreement of parties. 18 U.S.C. § 983(a)(3)(A).
If the government does not file judicial complaint or criminal forfeiture indictment within 90 days after claim is filed (or within any extension), the government must return the property, and cannot later civilly forfeit the property for that offense. 18 U.S.C. § 983(a)(3)(B).
Cost bond is abolished in all CAFRA cases, but still applies in Customs carve out cases. In CAFRA cases, an administrative claim filed within deadlines of 18 U.S.C. § 983(a)(2)(B) is all that is required. 18 U.S.C. § 983(a)(2)(E).
Except for interest, attorney's fees and costs awarded under 28 U.S.C. § 2465(b)(1), “the United States shall not be required to disgorge the value of any intangible benefits nor make any other payments to the claimant not specifically authorized” by §2465. 28 U.S.C. § 2465(b)(2)(D).
If a civil forfeiture statute, but no criminal forfeiture statute, exists for any crime for which a person is indicted, the government may include the civil forfeiture in the indictment, and upon conviction the court shall order the forfeiture of the property according to the procedures of 21 U.S.C. §853. 28 U.S.C. § 2461(c).
Damages to property while detained
CAFRA waives sovereign immunity, allowing claimants to sue under the
Federal Tort Claims Act for damages to, or the loss of, seized property
while detained pending forfeiture proceedings. See Federal Tort Claims Act, below.
Federal adoption
When property is seized by state or local agency and turned over to the federal government for federal forfeiture, administrative forfeiture notice must be sent to interested parties within 90 days of seizure by state or local agency. 18 U.S.C. § 983(a)(1)(A)(iv).
CAFRA amends the Federal Tort Claims Act - 28 U.S.C. § 2680 - to waive sovereign immunity
for “any claim based on injury or loss of goods, merchandise or other property” while in
possession of law enforcement agency if: (1) the property was seized for forfeiture under any federal forfeiture statute
other than as a sentence imposed upon conviction, (2) the claimant's interest was not forfeited,
remitted or mitigated, and (3) the claimant was not convicted of a crime for which the interest of the
claimant was subject to forfeiture under criminal forfeiture law. 28 U.S.C. § 2680(c).
The Federal Tort Claims Act does not apply to any claim based upon an act or omission of a government employee, exercising due care, in the execution of a statute or regulation -- whether or not such the statute is valid, and regardless of whether any discretion involved was abused. 28 U.S.C. § 2680(a).
On motion of claimant, the court shall enter a stay of the civil forfeiture proceeding if the claimant is the subject of a related criminal investigation or case, claimant has standing, and the civil forfeiture proceeding could adversely affect the claimant's Fifth Amendment rights. 18 U.S.C. § 981(g)(2).
If the government prevails and the court finds that claimant's claim was frivolous, the court may impose a civil fine of 10% of the value of the property, but not less than $250 or more than $5,000 (the same formula used to determine cost bond, pre-CAFRA). Additionally, the court can impose sanctions under F.R.Civ.P. Rule 11. 18 U.S.C. § 983(h)(1)-(2).
A judge may forbid a claimant in a civil forfeiture case or a third party claimant in a criminal forfeiture proceeding from defending the forfeiture case if the claimant, knowing that a warrant has issued for his arrest, purposefully leaves the jurisdiction of the U.S. or declines to reenter or otherwise evades the jurisdiction of the criminal court. This rule does not apply if the claimant is incarcerated in another jurisdiction. 28 U.S.C. § 2466.
Government attorney who is privy to grand jury information concerning banking law violation may disclose that information for use in civil forfeiture under 18 U.S.C. 981. 18 U.S.C. § 3322.
A lawyer for the government who is privy to grand jury information, received in the course of his duty as an attorney, or disclosed under FRCrP 6(e)(3)(A)(ii) may disclose that information to another attorney for the government for use in any federal civil forfeiture proceeding. 18 U.S.C. § 3322(a).
Any vehicle used in a violation of 8 U.S.C. §1324(a), the gross proceeds of such a violation, and any property traceable to such conveyance or proceeds are subject to forfeiture. The procedures are those of 18 U.S.C. §981 et seq. 8 U.S.C. § 1324(b)(1)-(2).
Prima facie evidence of a violation of 8 U.S.C. §1324(a) includes: records of any prior judicial or administrative hearing where it was determined the alien was illegally here, official records of the Dept. of State showing the alien was illegal, and testimony of immigration officer having personal knowledge concerning the alien's status. 8 U.S.C. § 1324(b)(3).
CAFRA amends 18 U.S.C. §982 to include immigrant smuggling offenses. 18 U.S.C. § 982(a)(6).
An innocent owner's interest shall not be forfeited under any civil forfeiture statute. The claimant has the burden of proving innocent owner defense by preponderance of the evidence. 18 U.S.C. § 983(d)(1).
Claimant who had an interest in property at the time of the offense is an innocent owner if he did not know of the illegal conduct, or upon learning of it did all that reasonably could be expected under the circumstances to terminate such use of property. 18 U.S.C. § 983(d)(2)(A).
Ways a claimant can show they did “all that reasonably could be expected” include: notifying law enforcement agency of the illegal conduct, timely attempt to revoke such use of property, work in consultation with police to prevent illegal use. 18 U.S.C. § 983(d)(2)(B)(i).
To establish they've done all that reasonably could be expected to prevent illegal use, the claimant doesn't have to take steps they reasonably believe would subject anyone to physical danger. 18 U.S.C. § 983(d)(2)(B)(ii). If claimant obtained interest in property after triggering offense, “innocent owner” means: (A) bona fide purchaser or seller for value who did not know and was reasonably without cause to know that property was subject to forfeiture … OR (see B) 18 U.S.C. § 983(d)(3)(A).
OR … (B) even if he didn't pay for property if: property is primary residence, forfeiture would deprive person of shelter, property is not proceeds, & property was acquired through divorce, inheritance. But value limited to that necessary for shelter in community for claimant and dependants. 18 U.S.C. § 983(d)(3)(B).
If court determines that an innocent owner has a partial interest, joint tenancy or tenancy by entireties in forfeited property, the court may sever property, transfer it to the government and require compensation to innocent owner for value of interest, or permit owner to retain property subject to government lien. 18 U.S.C. § 983(d)(5).
A claimant who substantially prevails is entitled to post-judgment interest, and in cases involving money or negotiable instruments, prejudgment interest comprised of interest actually paid the U.S. (if deposited in an interest-bearing account) and/or imputed interest for any period during which it was not earning actual interest, except for periods when in use as evidence or for scientific testing. 28 U.S.C. § 2465(b)(1)(B)-(C).
Exceptions to 28 U.S.C. § 2465(b)(1): Interest on seized property is not available if claimant was convicted of the underlying crime, or if there are multiple claims to the same property and U.S. promptly recognizes claimant's claim, returns claimant's interest to him promptly if it can be divided, does not cause additional costs or fees, and prevails against one or more of the other claims. 28 U.S.C. § 2465(b)(2).
If any person is charged in a foreign country with an offense which would trigger forfeiture of property inside the U.S. under 18 U.S.C. §981 or a drug statute, the government may apply to a court in the district where the property is located for an ex parte restraining order. The restraining order is good for 30 days, but the time may be extended for good cause, shown by affidavits, depositions or live testimony. 18 U.S.C. § 981(b)(4)(A).
An application for restraining order under 18 U.S.C. §981(b)(4)(A) shall set forth the nature of the foreign charges and the basis for belief that the person has forfeitable property within the U.S., and shall state that the restraining order is necessary to preserve the property for such time as to receive evidence from the foreign country in support of probable cause to seize the property. 18 U.S.C. § 981(b)(4)(B).
Definitions re: enforcement of foreign forfeiture judgment. “Foreign nation” means a party to the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.” 28 U.S.C. § 2467(a).
A foreign country which wishes to have foreign forfeiture judgment enforced against property in the U.S. shall submit request to Attorney General, along with a copy of judgment, an affidavit indicating the person received notice and that the judgment is not subject to appeal. Attorney General's decision is final and not subject to review (even under Admin. Procedures Act.) 28 U.S.C. § 2467(b).
Enforcement of foreign forfeiture order - Attorney General shall file a proceeding in district court in D.C. (or district where property or claimant is located). The district court shall have jurisdiction over a defendant residing outside the U.S. if served according to F.R.Cv.P. 4. 28 U.S.C. § 2467(c).
Enforcement of foreign forfeiture judgment: The district court shall enter orders enforcing the judgment unless it finds that the foreign judgment was rendered under a system that provides procedures incompatible with due process, the foreign court lacked jurisdiction over the defendant or the subject matter, the defendant did not receive notice of the foreign proceedings, or the judgment was obtained by fraud. 28 U.S.C. § 2467(d).
Enforcing a foreign forfeiture judgment: (e) In enforcing judgment, the district court is bound by the findings of fact of the foreign court to the extent they are stated in the foreign judgment. (f) The applicable exchange rate is the rate in existence on the date of filing of the action to enforce the foreign judgment. 28 U.S.C. § 2467(e)-(f).
Motion to dismiss - FRCvP 12(b)
No complaint may be dismissed on the grounds that the government did not have adequate evidence at the time of seizure of the property. 18 U.S.C. § 983(a)(3)(D).
Motion to set aside forfeiture
Any person entitled to notice who wasn't given notice can move to set aside declaration of administrative forfeiture. Motion shall be granted if government knew or reasonably should have known of party's interest and failed to take reasonable steps to provide notice, and claimant did not know or have reason to know of the seizure within time to file a timely claim. 18 U.S.C. § 983(e)(1).
If the court sets aside a declaration of administrative forfeiture, it is without prejudice to the right of the government to commence a civil forfeiture proceeding, notwithstanding the expiration of the statute of limitations. The new forfeiture proceeding must be commenced within 60 days of order setting aside default if nonjudicial, and within 6 months if judicial. 18 U.S.C. § 983(e)(2).
Motion to set aside declaration of administrative forfeiture obtained without constitutionally sufficient notice must be filed within 5 years after date of final publication of notice of seizure of the property. 18 U.S.C. § 983(e)(3).
If motion is granted but the property has already been disposed of, the government may institute forfeiture proceedings against a substitute sum of money equal to the value of the claimant's interest in the property at the time the property was disposed of. 18 U.S.C. § 983(e)(4).
After CAFRA takes effect, a motion to set aside forfeiture under 18 U.S.C. §983(e) is the exclusive remedy for seeking to set aside an administrative declaration of forfeiture obtained without constitutionally adequate notice. 18 U.S.C. § 983(e)(5).
Upon motion by the government, a court may extend the period for sending notice under subparagraph (A) for 60 days, followed by further 60 day periods if the court determines that the conditions in paragraph (D) are present. 18 U.S.C. § 983(a)(1)(C).
Notice of forfeiture “shall be sent in a manner to achieve proper notice” within 60 days after date of seizure, unless government files judicial forfeiture or criminal forfeiture is included in indictment within that time. 18 U.S.C. § 983(a)(1)(A)(i)-(v).
When property is seized by state or local agency and turned over to the federal government for federal forfeiture, administrative forfeiture notice must be sent to interested parties within 90 days of seizure by state or local agency. 18 U.S.C. § 983(a)(1)(A)(iv).
If the identity of a party having an interest in the property is not discovered until after the seizure or turnover, but before a declaration of forfeiture is entered, the government must notify the party within 60 days after discovery of their identity. 18 U.S.C. § 983(a)(1)(A)(v).
An official in the seizing agency may extend the applicable period for providing notice under 18 U.S.C. § 983(a)(1)(A) for 30 days only if it determines the conditions in 18 U.S.C. § 983(a)(1)(D)
exist -- that is, if there is reason to believe sending notice
immediately would have an adverse result, such as endangering the life
or safety of a person, allowing a flight from prosecution, the
destruction of evidence or intimidation of witnesses or jeopardizing an
investigation. 18 U.S.C. §
983(a)(1)(B).
The 60 day notice deadline may be extended only if there is reason to believe it would: endanger life or safety of a person, cause flight from prosecution, destruction of evidence, witness intimidation, jeopardize investigation or delay trial. 18 U.S.C. § 983(a)(1)(D).
If the government doesn't provide notice within 60 days of seizure (or in compliance with one of the exceptions to the rule), the claimant is entitled to return of the property - without prejudice to later seizure and forfeiture. 18 U.S.C. § 983(a)(1)(F).
“Owner” means person with an ownership interest in the specific property - including a
leasehold, lien, mortgage, recorded security interest, or valid assignment, but does not include
general unsecured interest, bailee (unless bailor is identified and bailee shows colorable interest)
or nominee who exercises no dominion or control. 18 U.S.C. § 983(d)(6).
If
the court determines that an innocent owner has a partial interest, joint tenancy or tenancy by
entireties in forfeited property, the court may sever the property, transfer it to the government and
require compensation to innocent owner for value of interest, or permit owner to retain property
subject to government lien. 18 U.S.C. § 983(d)(5).
Penalties for secreting assets to avoid seizure
Interference with search, surveillance or seizure is punishable by fine or up to 5 years imprisonment or both. 18 U.S.C. § 2231.
Anyone knowing of the pending execution of a search or seizure warrant who attempts to give notice to the subject in advance of the search or seizure shall be imprisoned up to 5 years or fined, or both. 18 U.S.C. § 2232(c).
Anyone who, knowingly damages, destroys, or disposes of any property subject to seizure or takes any other action for the purpose of preventing or impairing the government's ability to seize it, or continue holding it after seizure, is subject to 5 years imprisonment and a fine. 18 U.S.C. § 2232(a).
Anyone, knowing property is subject to civil forfeiture, who knowingly destroys, damages, disposes of or takes any other action to destroy in rem jurisdiction of court is subject to a fine and 5 years imprisonment. 18 U.S.C. § 2232(b).
Post-seizure probable cause hearing
If the court authorizes pretrial seizure of real property under 18 U.S.C. § 985(d), it shall conduct a prompt post-seizure hearing, during which the property owner may contest the basis of the seizure. This section only applies to real estate, and not the proceeds of real estate. This section does not apply to restraining orders against real estate. 18 U.S.C. § 985(e).
In addition to the limitations on prisoner suits of 28 U.S.C. §1915, no prisoner may file a claim or appeal a civil forfeiture judgment if he/she has, on 3 or more prior occasions, while incarcerated, brought an action or appeal in a federal court that was dismissed on grounds that it was frivolous or malicious, unless the prisoner shows extraordinary or exceptional circumstances. 18 U.S.C. § 983(h)(3).
Upon entry of judgment for claimant property shall be returned forthwith to claimant or his agent; but if it appears there was PC for seizure, court shall issue certificate thereof and claimant shall not be entitled to costs, nor shall officer be liable. 28 U.S.C. § 2465.
In cases involving illegal goods or services, unlawful activities and telemarketing and health care fraud schemes, “proceeds” means property obtained directly or indirectly as the result of the offense, and is not limited to net profit. In cases involving legal goods or services sold or provided in an unlawful manner, “proceeds” is amount acquired minus direct costs (but not overhead or taxes.) Claimant has burden of proving direct costs. 18 U.S.C. § 981(a)(2).
Motion challenging proportionality of forfeiture is heard by judge, sitting without jury. The court shall compare the gravity of the offense to the value of the property, with claimant having the burden of establishing, by a preponderance of the evidence, that forfeiture would be grossly disproportionate. The court can reduce or eliminate forfeiture to avoid a violation of the Eighth Amendment. 18 U.S.C. § 983(g).
All forfeitures of real property shall proceed as judicial forfeitures. 18 U.S.C. § 985(a).
Real property shall not be seized before entry of an order of forfeiture (except under 18 U.S.C. § 985(d)(1)), and the owners or occupants shall not be “evicted from or otherwise deprived of the use and enjoyment of” the property pending trial. The filing of a lis pendens and execution of a writ of entry to permit inspections shall not be considered a seizure under this section. 18 U.S.C. § 985(b).
Real property forfeiture cases must be initiated by filing a complaint for forfeiture, posting a notice on the property, and serving the notice and complaint on the property owner. If the owner cannot be served because he: is a fugitive, resides outside the U.S. and service under Rule 4 FRCvP is unsuccessful, or cannot be located despite the exercise of due diligence, constructive service may be made pursuant to state law where the property is located. 18 U.S.C. § 985(c)(1)-(2).
If real property is posted according to the requirements of this statute (complaint filed, posted on property and served on owner), it is not necessary for the court to issue a warrant for arrest in rem or take any other action to acquire in rem jurisdiction. 18 U.S.C. § 985(c)(3).
Real property may be seized prior to entry of order of forfeiture if the government notifies the court, the court: gives notice to the owner and conducts a hearing in which the property owner has a meaningful opportunity to be heard; or determines ex parte that there is probable cause for the forfeiture and that exigent circumstances permit the government to seize the property without prior notice and opportunity to be heard. To establish exigent circumstances, the government must show that less restrictive measures such as lis pendens, restraining order or bond would not prevent destruction, sale or continued unlawful use of property. 18 U.S.C. § 985(d)(1)-(2).
Reasonable cause, certificate of
Upon entry of judgment for claimant in any federal forfeiture case, (1) the “property shall be returned forthwith” and (2) if the court finds there was reasonable cause for the seizure, it must issue a certificate of reasonable cause. Such a certificate immunizes the seizing officers and prosecutors from suit, and bars claimant's recovery of costs. 28 U.S.C. § 2465(a). But see exceptions set out in 28 U.S. C. § 2465(b).
A claimant is entitled to immediate release of seized property if: he/she has a possessory interest in the property and sufficient ties to the community to ensure property will be available at time of trial; continued possession by the government would cause substantial hardship to claimant, such as preventing functioning of business, preventing claimant from working or making claimant homeless; claimant's hardship outweighs risk property will be destroyed or lost if returned; and none of the conditions in 18 U.S.C. § 983(f)(8) apply. 18 U.S.C. § 983(f)(1).
A claimant must first request release from appropriate official. Request must set forth reasons which justify release under 18 U.S.C. § 983(f)(1). If property isn't released within 15 days, claimant may file petition in district court in which the complaint is filed, or if no complaint is filed, in the district court which issued the seizure warrant, or where the property was seized. 18 U.S.C. § 983(f)(2).
Judicial petition for release of property must set forth the basis under which the requirements of 18 U.S.C. § 983(f)(1) are met, and the steps claimant has taken to obtain release from the agency officials. 18 U.S.C. § 983(f)(3)(B). The court will deny release pending trial if the government establishes that the claimant's claim is frivolous. In attempting to establish that the petition is frivolous, the government may submit evidence ex parte to avoid disclosing matter that may adversely affect an ongoing criminal investigation or pending criminal trial. 18 U.S.C. § 983(f)(4).
The court shall render a decision on a petition for release within 30 days of filing, unless deadline is extended by consent of the parties or by the court for good cause. 18 U.S.C. § 983(f)(5).
If petition for release of property is granted, the court shall order the property returned to claimant pending completion of proceedings. The court may enter any order necessary to ensure the value of the property is maintained, including requiring inspections, photographing, inventories, bonds, and insurance. The government may place a lien or lis pendens against the property. 18 U.S.C. § 983(f)(6)-(7).
Motion for release of property mechanism doesn't apply to: contraband; or currency, monetary instruments or wire transfers of funds (unless they are assets of a legitimate business which has been seized). It also doesn't apply to property to be used as evidence, property modified or particularly suited for an illegal purpose, or property likely to be used to commit additional criminal acts if returned. 18 U.S.C. § 983(f)(8).
Each seizing agency must report to Congress “periodically” the number of times extensions of 60 day deadline for notice of forfeiture are granted by agency administrator. 18 U.S.C. § 983(a)(1)(E). The Attorney General shall file with Congress (and make available to the public) annual reports, no later than 4 months after close of fiscal year, detailing the total deposits to the fund, by state; total expenses by category and recipient; listing of number, types and value of property taken into official use by federal agency; a report by type of disposition, of the property forfeited that year; report on year-end inventory of property seized but not forfeited, with type of property, value, and liens; a listing of all non-forfeited properties with an equity greater than $1 million. 28 U.S.C. § 524(c)(6)(A). The Attorney General shall transmit to Congress and make available to the public, no later than 2 months after final issuance, the audited financial statements for each fiscal year of the forfeiture fund. The publication requirement may be fulfilled by posting it on the internet on the DOJ website. 28 U.S.C. § 524(c)(6)(B).
CAFRA (in §6) amended the list of entities that are authorized to receive forfeited funds to include restitution to victims of any offense, including the underlying offense in a money laundering case. 18 U.S.C. § 981(e)(6).
Restraining orders - civil forfeiture
If any person is charged in a foreign country with an offense which would trigger forfeiture of property inside the U.S. under 18 U.S.C. §981 or a drug statute, the government may apply to a court in the district where the property is located for an ex parte restraining order. The restraining order is good for 30 days, but the time may be extended for good cause, shown by affidavits, depositions or live testimony. 18 U.S.C. § 981(b)(4)(A). An application for a restraining order under 18 U.S.C. §981(b)(4)(A) shall set forth the nature of the foreign charges and the basis for belief that the person has forfeitable property within the U.S., and shall state that the restraining order is necessary to preserve the property for such time as to receive evidence from the foreign country in support of probable cause to seize the property. 18 U.S.C. § 981(b)(4)(B).
Upon application by the U.S., and after notice to claimant and opportunity to be heard, the court may enter a restraining order, injunction, receivership, or require performance bonds to preserve value of property. Application may be made upon filing of civil forfeiture complaint, or prior to filing if: (1) there is a substantial probability that U.S. will prevail in forfeiting property, and that failure to enter the order will result in property being destroyed or removed, and (2) the need to preserve the property outweighs the hardship on the party being restrained. The order is effective only 90 days, but can be extended for good cause shown. 18 U.S.C. § 983(j).
A temporary restraining order may be issued, without notice to claimant, even if the forfeiture complaint has not been filed - if: the U.S. demonstrates probable cause to forfeit property and that provision of notice will jeopardize availability of property for forfeiture. The order is good for 10 days unless extended for good cause, or by agreement. A hearing under this section is not governed by the Federal Rules of Evidence. If claimant requests a hearing to contest this order it shall be held at the earliest possible time, prior to expiration of the order. 18 U.S.C. § 983(j)(3).
After effective date of CAFRA, if the court sets aside a declaration of administrative forfeiture,
obtained without valid notice to claimant, it is without prejudice to the right of the government to
commence a civil forfeiture proceeding, notwithstanding the expiration of the statute of
limitations. 18 U.S.C. § 983(e)(2)(A).
Under 18 U.S.C. §981 a seizure warrant shall be issued in the same manner as a search warrant issued under the Federal Rules of Civil Procedure, but a seizure may be made without a warrant if a civil forfeiture complaint has been filed and an arrest warrant in rem issued, or there is probable cause to believe property is subject to forfeiture and seizure is pursuant to lawful arrest or search or other exception to the warrant requirement, or the property was lawfully seized by a state or local agency & turned over to the federal agency. 18 U.S.C. § 981(b)(2).
Notwithstanding the provisions of Rule 41(a), a seizure warrant may be issued in any district in which a forfeiture action may be filed under 28 U.S.C. §1355(b), and may be executed where ever the property may be found, or transferred to a foreign country for execution according to a treaty. 18 U.S.C. § 981(b)(3).
Property subject to forfeiture under 21 U.S.C. §881 may be seized in the manner provided in 18 U.S.C. §981(b). 21 U.S.C. § 881(b).
Statute of limitations - government's
If the court sets aside a declaration of administrative forfeiture, it is without prejudice to the right of the government to commence a civil forfeiture proceeding, notwithstanding the expiration of the statute of limitations. 18 U.S.C. § 983(e)(2)(A).
The government's statute of limitations for bringing a forfeiture action is 5 years after discovery of the alleged offense or 2 years after discovery of the involvement of the property in the offense, whichever is later. 19 U.S.C. § 1621.
In the case of a violation of 19 U.S.C. §1592 or 19 U.S.C. §1593a, the statute of limitations is 5 years after the violation, or if the violation arises out of fraud, 5 years after discovery of the fraud. 19 U.S.C. § 1621(1).
Statute of limitations - tolling
The government's statute of limitations is tolled during the absence of the claimant from the U.S. or during the concealment or absence of the property. 19 U.S.C. § 1621(2).
Stay pending outcome of criminal case
On motion of government, the court shall stay a civil forfeiture if it determines that civil discovery would adversely affect a related criminal investigation or prosecution. On motion of claimant, the court shall enter a stay if the claimant is the subject of a related criminal investigation or case, and the civil forfeiture proceeding could adversely affect the claimant's Fifth Amendment rights. 18 U.S.C. § 981(g).
In determining whether to grant a stay, court should consider whether a protective order limiting civil discovery would protect the interest of the opposing party without unfairly limiting his/her ability to pursue the civil case. The court should not impose a protective order as an alternative to the stay if the effect would be to allow one party to pursue discovery while the opposing party is unable to do so. 18 U.S.C. § 981(g)(3).
Under this subsection, “related criminal case” and “related investigation” mean an actual investigation or case in progress at the time the motion is made. In determining whether it is “related” the court should consider the similarity between the parties, witnesses, facts and circumstances, without requiring an identity with respect to any one or more factors. 18 U.S.C. § 981(g)(4).
The court may allow the government to submit evidence ex parte in appropriate cases. 18 U.S.C. § 981(g)(5).
When case is stayed, the court should enter orders to preserve the value of the property or protect the rights of lienholders or other persons with interests in the property while the stay is in effect. 18 U.S.C. § 981(g)(6).
A determination that the claimant has standing for purpose of participating in a motion regarding a stay shall not preclude the government from challenging standing later by dispositive motion or at trial. 18 U.S.C. § 981(g)(7).
The provisions of 18 U.S.C. §981(g) apply to forfeitures under 21 U.S.C. § 881(i).
“The court, in imposing sentence on a person convicted of an offense in violation of section 5313(a) [CTRs], 5316 [CMIRs], or 5324 [structuring] of title 31, or of section 1956 [money laundering], 1957 [money laundering], or 1960 of this title, shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property. However, no property shall be seized or forfeited in the case of a violation of section 5313(a) of title 31 by a domestic financial institution examined by a Federal bank supervisory agency or a financial institution regulated by the Securities and Exchange Commission or a partner, director, or employee thereof.” 18 U.S.C. § 982(a)(1).
If the government's theory is that the property was used to facilitate an offense, it must establish
that there was a substantial connection between the property and offense. 18 U.S.C. § 983(c)(3).