Differences in civil forfeiture procedure between CAFRA and Customs cases

[Revised 12/10/2008]

The Customs carve-out of 18 U.S.C. §983(i) creates two classes of cases -- we call them "CAFRA cases" and "Customs carve-out cases."  The CAFRA's procedural reforms codified in 18 U.S.C. § 983 apply to CAFRA cases, but not to Customs carveout cases.  Customs carveout cases follow procedures codified in title 19 U.S.Code, the Supplemental Rules of Admiralty or pre-CAFRA case law. 

PROCEDURE CAFRA cases Customs carve-out cases
Once property is seized, US must commence administrative or judicial forfeiture process or name property in a criminal forfeiture indictment. Government must send administrative forfeiture notice within 60 days of seizure (90 for state seizures adopted by feds), or obtain extension, or must release property pending further procedures. 18 U.S.C. §983(a)(1). Government has no deadline other than the 5-year statute of limitations.  Excessive delay is grounds for motion to dismiss for undue delay.  U.S. v. $8,850,  461 U.S. 555 (1983).
Administrative forfeiture notice - claimant must file administrative claim (and submit cost bond if applicable) by deadline or lose all right to judicial remedies. Deadline is specified in notice.  It must be at least 35 days from date notice is mailed. 18 U.S.C. §983(a)(2)(B).
Cost bond is abolished in CAFRA cases.  §983(a)(2)(E).
Deadline 20 days from date of first publication (specified in notice).  Claimant must pay 10% cost bond (with $250 minimum, $5,000 maximum) to submit claim. 19 U.S.C. § 1608.
Once admin. claim is received, US must file a federal civil forfeiture complaint or include the property in forfeiture count of an indictment.
US has 90 days to file a judicial complaint or include property in indictment.  If US fails to meet this deadline or return property or obtain extension, it cannot later civilly forfeit the property.  18 U.S.C. §983(a)(3) Government has no deadline except 5 year statute of limitations.  19 U.S.C. § 1621.  Excessive delay is grounds for motion to dismiss for undue delay.  U.S. v. $8,850,  461 U.S. 555 (1983).
Claimant must file a judicial "claim" (also known as a “Verified Statement of Interest”) in federal court.
Claimant has 30 days after service to file claim.  18 U.S.C. §983(a)(4)(A). Claimant has until the deadline specified in the notice (about 30 days) to file a claim. Supp. Rule G(4)(b)(ii)(B).

Claimant must file an Answer.
Claimant has 20 days after filing claim to file Answer. 18 U.S.C. §983(a)(4)(B)
Claimant has 20 days after filing claim to file Answer.  Supp. R. G(5)(b).
Court-appointment of counsel for those unable to afford retained counsel to defend their forfeiture cases:
Court may appoint counsel if claimant has appointed counsel in a parallel federal criminal case, and must appoint counsel if claimant's primary residence was seized. 18 U.S.C. §983(b). No statutory provision authorizes appointment of counsel
Burden of proof Government has burden of proof by preponderance. 18 U.S.C. §983(c). Government burden is probable cause, then burden shifts to claimant to disprove forfeitability by preponderance. 19 U.S.C. § 1615.
Admissibility of hearsay at trial hearsay is not admissible because burden of proof is preponderance. Government can use hearsay to meet its probable cause burden of proof (as in suppression hearings).
Innocent owner defense Universal innocent owner defense codified at 18 U.S.C. § 983(d). Innocent owner defense available only if codified in the specific forfeiture statute. 
Remedy for vacating government's declaration of administrative forfeiture where the government failed to give notice to owner. Motion to set aside declaration of forfeiture under 18 U.S.C. § 983(e) is exclusive remedy. Claimant can file Rule 41(g) motion or civil suit in nature of 41(g).
Release of property for substantial hardship Court, on motion, may release property pending trial if claimant shows substantial hardship. 18 U.S.C. § 983(f). Only way to get property released is to post a bond for its value. 19 U.S.C. § 1614.
Proportionality defense Codified at 18 U.S.C. § 983(g) Available under S.Ct. cases: Austin & Bajakajian
Civil fine for filing a frivolous claim Government can ask for this under 18 U.S.C. § 983(h) Not applicable to non-CAFRA cases, but this would be taken out of the cost bond.