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out of date but still helpful compendium.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.