Forfeiture Endangers American Rights

F.E.A.R. Brief Bank


BRIEF BANK
Index - by type of Motion or Pleading
Revised and updated April 5, 2005

New additions: 

Be sure to check out our new section of the Brief Bank - Private Collection of Legal Research Materials - which contains excerpts from FEAR's Asset Forfeiture Defense Manual and  the text of two very useful DOJ forfeiture publications. 

Alphabetical index
Administrative forfeiture claim
Amicus brief
Answer to requests for admissions
Answer to civil forfeiture complaint
Appellate brief
Bivens suits
Brief on appeal
Certiorari petition
Civil (judicial) forfeiture claim
Civil rights actions (42 U.S.C. § 1983)
Constitutional challenges
Criminal forfeiture motions
FOIA request for documents
In Forma Pauperis petition
Interrogatories
Jury instructions
Letter brief
Motion for interlocutory sale of property to preserve value
Motion for release of property for substantial hardship
Motion for sanctions
Motion for summary judgment
Motion to vacate default
Motion to compel discovery
Motion to correct the record/amend transcripts
Motion to dismiss civil forfeiture complaint
Motion to dismiss for undue delay
Motion to suppress
Motion for return of property (Rule 41(g))
Motion for extension of time
Notice of deposition
Objections to interrogatories
Objections to a magistrate's recommended findings
Offer of judgment
Offer in compromise
Petition for remission or mitigation
Proportionality motion
Release of property for substantial hardship
Request for admissions
Requests for production of documents and tangible evidence
Rule 41(g) proceedings
Settlement conference statement
Statement of interest (judicial claim)
Stay of judgment pending appeal
Stay of civil forfeiture case pending criminal case/investigation
Stipulation
Supplemental authorities, notice of
Trial memorandum

MOTIONS AND PLEADINGS ARRANGED BY SUBJECT MATTER

Note:  The list below is grouped roughly in the order the pleadings/motions would be used chronologically in the case, within each type of case -- administrative, civil or criminal.  There is a separate section for motions that apply in both civil and criminal forfeitures at the bottom of this page.  This allows browsing through our collection in a logical order.  If you can't find what you're looking for by browsing below, use the alphabetized list above to find the place where that type of motion/brief is classified.

Administrative forfeiture pleadings

Administrative Claim

Administrative forfeiture claim - CAFRA case - (2003) - Grantland  [CAFRAadminClaim][Word Perfect 6-10 | Word/RTF format]

Pre-CAFRA administrative claim, 1990, blank,  (B. Grantland) (this claim form should be used in non-CAFRA cases, such as Customs seizures)  [claim002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

In Forma Pauperis forms

Note: In Forma Pauperis forms are no longer needed in CAFRA cases because the cost bond has been abolished.  However, the cost bond has not been abolished in non-CAFRA cases -- such as Customs cases.  If you are indigent and can't afford to post the cost bond, you'll need to submit an In Forma Pauperis form.  If you have time, it's best to request an IFP form from the seizing agency.  If you don't have time, modify one of the forms below so you can send it in on time, and enclose a letter asking the seizing agency to let you know if the IFP petition you filed is not in the proper format

DEA In Forma Pauperis petition, 1996, (B. Grantland) [ifp003][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

DEA In Forma Pauperis petition, 1990, (B. Grantland) [ifp001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

FBI In Forma Pauperis petition, 1990, blank, (B. Grantland) [ifp002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Petition for remission &/or mitigation

Note:  A petition for remission or mitigation is an inferior remedy because there is no judge -- the petition is decided by the seizing agency, and claimants usually lose.  Do not waive your right to a day in court by pursuing one of these remedies instead of filing a claim.  If the agency allows you to both file a claim (and thereby get judicial remedies) and also file a petition for remission or mitigation, then there's no harm pursuing this remedy.  If you've missed your deadline for filing a claim (and therefore have no right to judicial remedies at all) then a petition for remission/mitigation is your only option.

DEA Petition for remission, 1988, (B. Grantland) [[rem001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Offer in compromise  [no samples available]


Civil judicial forfeiture pleadings

Judicial Claim - (now called Statement of Interest after CAFRA)

Verified statement of interest (previously called a “judicial claim”) - CAFRA case - 2002 [[CAFRAjudicialClaim][Word Perfect 6-10 | Word/RTF format]

Verified claim of owner of house seized under 21 U.S.C. §881,  U.S. Dist. Ct., D.C. 1992, (B. Grantland) [vclaim001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Verified claim for bank account seized under 21 U.S.C. §881,  U.S. Dist. Ct., D.C. 1989, (B. Grantland) [vclaim002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Answer 

Federal

Answer to forfeiture complaint - (C.D.Cal. 2002) - Grantland (asserts Fifth Amendment privilege. Defenses: illegal search & seizure, Excessive Fines clause)  [answer258a][Word Perfect 6-10 | Word/RTF format]

Answer to 21 U.S.C. § 881 complaint - re: seizure of home; (defenses: illegal search & seizure, innocent owner, proportionality, temporary taking; counterclaim for attorney's fees; jury demand) U.S.Dist.Ct.-D.C. 1992, (B. Grantland)  [ans002][Word Perfect 6-8 | Word Perfect 5.1MS Word for Mac 5.1]

Answer to 21 U.S.C. § 881 complaint - re: seizure of home; (defenses: innocent owner, undue delay, proportionality; counterclaim for eviction without compliance with D.C. Landlord-Tenant eviction law; jury demand) U.S.Dist.Ct.-D.C. 1989, (B. Grantland) [ans001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

District of Columbia

Answer to complaint - D.C. drug forfeiture statute, money & jewelry seized with owner not arrested; issues: service of process, undue delay; counterclaims under 42 U.S.C. 1983 and for interest; D.C. Superior Ct. 1989,(B. Grantland)  [ans003][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Answer to complaint- D.C. drug forfeiture statute, money seized from car, owner not arrested; issues: illegal search and seizure; counterclaim for attorney fees under Rule 11; D.C. Superior Ct. 1989, (B. Grantland) [ans004][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]


Motion to dismiss complaint

This type of motion is filed before the deadline for filing an answer, but after the judicial claim.  In federal cases it is governed by Rule 12(b)(6) of the Federal Rules of Civil Procedure.  In state courts it is sometimes called a  "demurrer."  The purpose is to allow the court to review whether the  government's forfeiture complaint states a claim for forfeiture.   In deciding this motion the court assumes the allegations the government makes in its complaint are true, and rules whether or not that would be sufficient grounds for forfeiting the property.  This is a good way to attack the complaint for lack of specificity, or for missing early deadlines or the statute of limitations

Motion to dismiss forfeiture complaint for lack of particularity (S.D.N.Y. 1998) - Grantland  (Issues:   Rule 12(b)(6) motion to dismiss; requirements of Supplemental Rule E and F.R.Civ.P. Rule 9(b) (complaints alleging fraud) that complaint state facts with particularity; nexus between seized property and offense.) [12b6motion][Word Perfect 6-10 | Word/RTF format]   

Motion to dismiss for lack of probable cause, re: cash seized in airport - (S.D. Cal. 1998) - R. Barnett [dismiss001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Stay of civil forfeiture pending outcome of criminal charges or investigation

Motion to stay proceedings pending outcome of related criminal investigation (C.D.Cal. 2003) - Grantland  (Issues:  stay under 18 U.S.C. § 981(g)(2), Fifth Amendment) [motiontostay][Word Perfect 6-10 | Word/RTF format]

Motions for release of seized property for substantial hardship 

Motion for Release Of Seized Property pursuant to 18 U.S.C. §983(f) - U.S. Dist. Ct. S.D. Cal. 2003 (Frederick Reich) [release001][Word Perfect] | MS Word]


Motion for interlocutory sale of subject property

Motion for interlocutory sale to preserve a restrained asset, brought by third parties in a criminal  forfeiture proceeding (N.D. Cal. 2003) - Grantland  (Issues:  third parties request for equitable relief pending trial in criminal forfeiture proceeding; substitute assets may not be restrained pretrial)  [interlocutorySalePA][Word Perfect 6-10 | Word/RTF format]

Reply re: motion for interlocutory sale (N.D. Cal. 2003) - Grantland (Issues:  jurisdiction to provide equitable relief to third parties prior to trial, court may order lis pendens lifted)  [replyinterlocutorysale][Word Perfect 6-10 | Word/RTF format]


Civil discovery requests and responses

Interrogatories

Collection of assorted forfeiture interrogatory questions from assorted cases (to give you ideas) - (B. Grantland) [rog001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Interrogatories for D.C. case for forfeiture of truck for drug facilitation - D.C. Superior Ct. 1989  (B. Grantland) [rog002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Interrogatories for California state forfeiture of land - Superior Ct. El Dorado County 1996; (innocent lienholder who foreclosed while forfeiture was pending, property seized under drug statute) (B. Grantland) [rog003][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Interrogatories for cash transaction reporting requirement money seizure case - U.S.Dist.Ct. Tenn. 1995; (Fed Ex package searched by Customs at virtual border)  (B. Grantland) [rog004][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Objections to interrogatories  [no samples available]

Notice of deposition  [no samples available]

Requests for production of documents & tangible evidence

Documents requests for bank account seizure under 21 U.S.C. §881, U.S.Dist.Ct. D.C. 1989  (B. Grantland) [docreq001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Answers/Objections to documents requests

Response to documents request (D.C. Cal. 2002) - Grantland [respdocreq][Word Perfect 6-10 | Word/RTF format]

Response to documents requests with objections to release of IRS records - U.S.Dist.Ct. Tenn 1995 (B. Grantland) [docans001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Request for admissions

Request for admissions - Aguirre (D.N.Mex. 2000) - Grantland  (requesting admission of genuineness of document) [reqAdmissions1][Word Perfect 6-10 | Word/RTF format]

Answer to request for admissions  [no samples available]

Motion to compel discovery  [no samples available]

Motion for sanctions for discovery violations  [no samples available]

FOIA request

FOIA request to the DEA for documents showing where administrative forfeiture notices were sent, and what mail was returned to sender undelivered, 1996, (B. Grantland) [foia001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1] 



Miscellaneous civil motions

Motion to vacate default  [no samples available]

Stipulation extending time

Stipulation extending time to file motion - (S.D.N.Y. 1998) - Grantland [StipExtTime][Word Perfect 6-10 | Word/RTF format]

Motion for extension of time

Motion to late file response to complaint (with consent of prosecutor) - (S.D.N.Y. 1998) - Grantland [latefilemotion][Word Perfect 6-10 | Word/RTF format]

Offer of judgment

Offer of judgment under Rule 68 of Fed. Rules of Civil Procedure - U.S.Dist.Ct. D.C. 1990 (B. Grantland) [offerjud001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Letter brief

Sometimes -- usually when there is a big rush to rule on something -- judges ask you to file a letter brief instead of a properly formatted formal brief complying with the rules of procedure.  It looks just like it sounds -- legal argument with citations, but in a letter format
Notice of supplemental authorities - (C.D.Cal. 2002) - Grantland  (Issues:  standing of cohabiting spouse to defend forfeiture of real estate, resulting trust, constructive trust)  [NoticeSuppAuth][Word Perfect 6-10 | Word/RTF format]

Notice of supplemental authorities

Notice of supplemental authorities - (C.D.Cal. 2002) - Grantland  (Issues:  standing of cohabiting spouse to defend forfeiture of real estate, resulting trust, constructive trust) [NoticeSuppAuth][Word Perfect 6-10 | Word/RTF format]

Objections to magistrate judge's recommended findings 

Note:  In federal cases, when an evidentiary hearing is held before a magistrate judge instead of an Article III judge, and the magistrate issues proposed findings of fact and conclusions of law,  failing to object to the magistrate judge's proposed findings may result in waiving your rights to appeal the decision once the Article III judge rules on it.

Objections to magistrate’s recommended findings in 41(g) motion - (D.N.Mex. 2000) - Grantland  (Issues:  standing, laches, denial of evidentiary hearing) [objectionstomagistrate][Word Perfect 6-10 | Word/RTF format]

Motion to Amend Transcripts

Motion to Amend a Transcript to Add an omitted tape recorded deposition which was played at trial - D. Alaska, 2004 (John Collette, pro se) [motion_amend_transcripts][Word Perfect 6-10 | Word/RTF format]

Notice of appeal

Notice of appeal - (D.N.Mex. 2000) - Grantland  [noticeappeal][Word Perfect 6-10 | Word/RTF format]


Motion to dismiss for undue delay

Rule 41(e) motion for return of car & personal property, documents,  U.S. Dist. Ct., D.C. 1992, (B. Grantland) [41e003][Word Perfect 6-8] | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1] (innocent owner, undue delay)

Points & authorities in support of Rule 41(e) motion above, U.S. Dist. Ct., D.C.,1992, (B. Grantland) [41e004][Word Perfect 6-8] | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Motion to dismiss for 7 years pretrial delay - D.C. Superior Court 1989 (B. Grantland) [delay001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Points and authorities in support of motion to dismiss for undue delay -   D.C. Superior Court 1989 (B. Grantland)  [delay002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]


Motions for summary judgment

Gonzales v. Albuquerque - Amended plaintiff's response to Defendant's Motion for Summary Judgment - (in a § 1983 proceeding challenging the City of Albuquerque's policies and practices in seizing and detaining property (Joseph Kennedy/shannon Oliver, 1-27-2004) [Gonzales1][Word Perfect 6-10 | Word/RTF format]

Gonzales v. Albuquerque - Plaintiff's Memorandum in Support of Motion for Summary Judgment -  (Joseph Kennedy/shannon Oliver, 1-27-2004) [Gonzales2][Word Perfect 6-10 | Word/RTF format]

Aguirre motion for summary judgment - (D.N.Mex. 2002) Grantland  (Rule 41(e) case)  (Issues:  statute of limitations, items to be forfeited must be named with particularity, abandonment, due process) [AguirreMOSJ][Word Perfect 6-10 | Word/RTF format]

Aguirre reply summary judgment - (D.N.Mex. 2002) Grantland [replysummjud][Word Perfect 6-10 | Word/RTF format]

Aguirre opposition to summary judgment - (D.N.Mex. 2002) Grantland (Issues:  amendment of pleadings to add new claims, facts in dispute, abandonment, res judicata, statute of limitations for Rule 41(g) motions, no innocent ownership requirement, law of the case) [AguirreOppSummJ][Word Perfect 6-10 | Word/RTF format]

Aguirre reply to statement of material facts - (D.N.Mex. 2002) Grantland (Issues:  summary judgment, collateral estoppel) [Aguirrereplymaterialfacts]Word Perfect 6-10 | Word/RTF format]

Aguirre opposition to summary judgment - (D.N.Mex. 2002) Grantland (Issues:  amendment of pleadings to add new claims, facts in dispute, abandonment, res judicata, statute of limitations for Rule 41(g) motions, no innocent ownership requirement, law of the case) [AguirreOppSummJ][Word Perfect 6-10 | Word/RTF format]

Aguirre reply summary judgment - (D.N.Mex. 2002) Grantland [replysummjud][Word Perfect 6-10 | Word/RTF format]

Aguirre opposition to summary judgment - (D.N.Mex. 2002) Grantland (Issues:  amendment of pleadings to add new claims, facts in dispute, abandonment, res judicata, statute of limitations for Rule 41(g) motions, no innocent ownership requirement, law of the case) [AguirreOppSummJ][Word Perfect 6-10 | Word/RTF format]

Aguirre reply to statement of material facts - (D.N.Mex. 2002) Grantland (Issues:  summary judgment, collateral estoppel) [Aguirrereplymaterialfacts]Word Perfect 6-10 | Word/RTF format]

Due process/notice summary judgment motions from Patterson v. D.C., an ancient (but still active) § 1983 action against the District of Columbia for due process notice violations under color of District of Columbia forfeiture laws - available only in PDF format:
• Plaintiffs' original motion for summary judgment on behalf of plaintiffs Hinton & Layne, whose property was seized and sold/destroyed before they were given notice and the opportunity to claim their property [PatterMOSJ1] - (Grantland, 10-20-1993)<><>
• D.C. Government's response to the Hinton/Layne motion for summary judgment [PatterMOSJ1r] - (11-22-1988)
• D.C. Government's response to the supplement [PatterMOSJ2r] - (9-11-1989)
• Plaintiffs' Reply to D.C. Government's response [PatterMOSJ3] - (Grantland, 10-19-1991)
• Plaintiff's Response to Defendant's Submission to the Court - [PatterMOSJ4] - (2-28-1992)
• Plaintiffs' Proposed Order [PatterMOSJpo]

Motion for summary judgment that forfeiture of home would be unconstitutionally disproportionate, undue delay - U.S.Dist.Ct. D.C. 1990; (note: this predates Austin, so you'll need to update the case law; also discusses due process requirements because forfeiture is punitive)  (B. Grantland) [mosj001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Motion for summary judgment arguing forfeiture of car for simple possession of tiny amount of drugs would be disproportionate  - Maryland state court case 1988  (note: this predates Austin, so you'll need to update the case law)   (B. Grantland) [mosj002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Motion for summary judgment by lienholder in §881 case involving land - California state court case 1996 (argues lienholder validly foreclosed while forfeiture was pending, thus there was nothing to forfeit; that California forfeiture law expired with the sunset, leaving no law to forfeit with; undue delay.  The government caved in and gave the property back rather than respond!)   (B. Grantland) [mosj003][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Statement of Material Facts As To Which There Is No Genuine Dispute - in support of above California summary judgment motion  (B. Grantland) [mosj004][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]


Settlement conference statement

Settlement conference statement - (N.Dist.Cal. 2003) - Grantland [SettlementConfStatement][Word Perfect 6-10 | Word/RTF format]


Trial Memoranda

Aguirre trial memorandum - (D.N.Mex. 2002) Grantland  (Issues:  burden of proof at 41(g) trial, relation back doctrine, doctrine that one can’t acquire an interest in proceeds is now invalid, law of the case, presumption of ownership from possession, statute of limitations in 41(g), judicial forfeiture limited to items specifically described in complaint, Admiralty Rule C, abandonment, due process)  [AguirreTrialMemo][Word Perfect 6-10 | Word/RTF format]


Jury instructions [no samples available]


Criminal forfeiture motions

Motion for interlocutory sale to preserve a restrained asset, brought by third parties in a criminal  forfeiture proceeding (N.D. Cal. 2003) - Grantland  (Issues:  third parties request for equitable relief pending trial in criminal forfeiture proceeding, substitute assets may not be restrained pretrial) [interlocutorySalePA][Word Perfect 6-10 | Word/RTF format]
Reply re: motion for interlocutory sale (N.D. Cal. 2003) - Grantland (Issues:  jurisdiction to provide equitable relief to third parties prior to trial, court may order lis pendens lifted) [replyinterlocutorysale][Word Perfect 6-10 | Word/RTF format]

Memorandum to the court on the right to a jury trial on the severed criminal forfeiture counts after a conviction on the underlying criminal count, (N.D. Cal.1996), Toyfoya, (B. Grantland) [crimf001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]


Motions to suppress - (civil and criminal)

Motion to suppress on Franks grounds (false or incomplete information in affidavit to secure search warrant) - D. Hawaii, 2003 (Shawn Perez) [voss_motion][Word Perfect 6-8 MS Word]

Points and authorities in support of suppression motion above, D.C. Superior Ct. 1988 (B. Grantland) [supp002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Suppression motion for traffic stop - Superior Court of Sonoma County, CA, 2000 (Mark Clausen) - (Note the humorous poem in the introduction)  Issues:  traffic stop, detention too prolonged, lack of consent to search, reasonable suspicion) [Rodriguez15385][Word Perfect 6-10 | Word/RTF format]

Motion to suppress evidence for pretext stop of car - D.C. drug forfeiture statute, D.C. Superior Ct. 1988 (B. Grantland) [supp001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Points and authorities in support of suppression motion above, D.C. Superior Ct. 1988 (B. Grantland) [supp002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]


Proportionality motions - (civil and criminal)

Memorandum regarding proportionality of forfeiture of ranch for 21 U.S.C. §853 manufacturing methamphetamine  - U.S.Dist.Ct.N.D.Cal 1995,  (B. Grantland) [prop001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Declaration of chemist on value of drugs, in support of above memorandum - U.S.Dist.Ct.N.D.Cal 1995,  (B. Grantland) [prop002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Motion for reconsideration, in support of above memorandum - U.S.Dist.Ct.N.D.Cal 1995,  (B. Grantland) [prop003] Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]


Stay of judgment pending appeal - (civil and criminal)

Motion to stay judgment pending appeal - criminal forfeiture, U.S.Dist.Ct.N.D.Cal. 1996, (B. Grantland) [crimf002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Memorandum re: court's power to stay judgment pending appeal - criminal forfeiture, U.S.Dist.Ct.N.D.Cal.1996, (B. Grantland) [crimf003][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Reply memorandum re: court's power to stay judgment pending appeal - criminal forfeiture, U.S.Dist.Ct.N.D.Cal.1996, (B. Grantland) [crimf004][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Opposition to Motion to Stay - civil forfeiture, D.Vt., (Meub Associates, Inc.)  [opposition][MS Word]


Rule 41(g) proceedings (formerly called 41(e) proceedings)

Rule 41(g) of the Federal Rules of Criminal Procedure provides a remedy for return of propery that is illegally held. A Rule 41(g) motion can be filed in the criminal case, but if there is no criminal case pending, many jurisdictions call the remedy a civil equitable proceeding for the return of seized property rather than a Rule 41(g) proceeding.
Note: You cannot file a Rule 41(g) motion or equitable proceeding if the government has commenced civil (administrative or judicial) forfeiture or criminal forfeiture proceedings against the property -- your remedy is limited to litigating the forfeiture case.   If the government has commenced administrative forfeiture proceedings against your property but failed to serve you,  your remedy may be limited to a motion to set aside the declaration of administrative forfeiture, pursuant to 18 U.S.C. § 983(e).

Motion for return of property filed in a criminal forfeiture case,  U.S. Dist. Ct. Hawaii 2003 (S. Perez)
(Issues: release of seized property that was not forfeited; substitute assets cannot be restrained prior to trial) [41e009][Word Perfect 6-10Rich Text Format (RTF)]

Motion arguing the right to a jury trial in a Rule 41(g) proceeding, U.S. Dist. Ct. Alaska 2004 (by FEAR member John Collette, pro se) (Issues: although Rule 41(g) is normally an equitable proceeding, claimant should be entitled to a jury trial in a Rule 41(g) proceeding since he would have been entitled to a jury trial in the forfeiture case had the government given him notice) [motion_for_jury_trial][Word Perfect 6-10MS Word 6 | Rich Text Format (RTF)]
Supplement to Rule 41(e) motion in the Marolf case, U.S.Dist.Ct.C.D.Cal. 1997 (S. Perez) [41e007][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Reply to Government's Opposition to Rule 41(e) motion in the Marolf case, U.S. Dist.Ct. C.D. Cal. 1997  (S. Perez) [41e008][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]
Rule 41(e) motion for return of guns, U.S. Dist. Ct. N. D. Cal 1997, (B. Grantland) [41e005][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1](lack of notice)
Rule 41(e) motion for return of personal property seized in home, U.S. Dist. Ct., D.C. 1992, (B. Grantland) [41e001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1] (innocent owner, no probable cause to forfeit) Points & authorities in support of Rule 41(e) motion above, U.S. Dist. Ct., D.C.,1992, (B. Grantland) [41e002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Rule 41(e) motion for return of car & personal property, documents,  U.S. Dist. Ct., D.C. 1992, (B. Grantland) [41e003][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1] (innocent owner, undue delay) Points & authorities in support of Rule 41(e) motion above, U.S. Dist. Ct., D.C.,1992, (B. Grantland) [41e004][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Civil rights suits challenging the constitutionality of forfeiture practices/procedures

Gonzales v. Albuquerque - Amended plaintiff's response to Defendant's Motion for Summary Judgment - (in a § 1983 proceeding challenging the City of Albuquerque's policies and practices in seizing and detaining property (Joseph Kennedy/Shannon Oliver, 1-27-2004) [Gonzales1][Word Perfect 6-10 | Word/RTF format]

Gonzales v. Albuquerque - Plaintiff's Memorandum in Support of Motion for Summary Judgment -  (Joseph Kennedy/Shannon Oliver, 3-31-2004) [Gonzales2][Word Perfect 6-10 | Word/RTF format]

Gonzales v. Albuquerque - Plaintiff's Response to Defendant's 12(b)(6) Motion to Dismiss -  (Joseph Kennedy/Shannon Oliver, 8-3-2004) [Gonzales2][Word Perfect 6-10 | Word/RTF format]

Jones v. City of Albuquerque, § 1983 complaint challenging seizure and retention of property without following forfeiture procedures (D.N.Mex. 2004) - Neal-Post  (Issues:  Fourth Amendment, Due Process, municipal policy violates Due Process, Failure to train and supervise, injunctive relief)  [Jones1983Complaint][Word Perfect 6-10 | Word/RTF format]

Opposition to demurrer (California state court term for dismissal for failure to state a claim) in Tanzel v. City of Richmond, a taxpayer suit challenging Richmond, Cal. Forfeiture ordinance (Super.Ct. Contra Costa County, CA 2004) - Clausen (Issues:  taxpayer standing under California Code, 4th Amendment and Due Process requirement of prompt post-seizure hearing, right to jury trial in forfeiture cases under ordinance, due process is violated by the police and prosecutors’ pecuniary interest in the outcome, default procedures violate Due Process) [Richmond2][Word Perfect 6-10 | Word/RTF format]

Hernandez v. City of Sacramento - supplement to motion for summary adjudication (Super.Ct. Sacramento County 2004) - Clausen (Issues:  right to prompt post-seizure hearing) [SumAdjSupp][Word Perfect 6-10 | Word/RTF format]

Motions for summary judgment on due process notice issues, Patterson v. District of Columbia  (D.C. Superior Court, 1988-1992, B. Grantland) - in PDF format:

Appellate briefs

Aguirre 1 brief - (10th Cir. 2000) Grantland  (Issues:  standing, laches, Rule 41(g), government’s statute of limitations) [Aguirre1brief][Word Perfect 6-10 | Word/RTF format]

Aguirre 1 reply brief - (10th Cir. 2000) Grantland  (Issues:  standing, laches, Rule 41(g), government’s statute of limitations, 12(b) motion to dismiss) [Aguirre1replybrf][Word Perfect 6-10 | Word/RTF format]

Aguirre 2 brief - (10th Cir. 2003) Grantland  (Issues:  amendment of pleadings to add new claims, Rule 41(g), summary judgment, statute of limitations, law of the case)  [Aguirre2brief][Word Perfect 6-10 | Word/RTF format]

Aguirre 2 reply brief - (10th Cir. 2003) Grantland  (Issues:  amendment of pleadings to add new claims, Rule 41(g), presumption of ownership from possession, judicial estoppel, statute of limitations, request for remand to another judge) [Aguirre2replybrf][Word Perfect 6-10 | Word/RTF format]

Aguirre & Clymore motion to consolidate - (10th Cir. 2003) Grantland & Neal-Post [AguirreClymoreConsol][Word Perfect 6-10 | Word/RTF format]

Opening brief in Sohigian v. City of Oakland, a taxpayer suit challenging the constitutionality of Oakland’s forfeiture ordinance (Ct. App. Cal. 2003) - Clausen (Issues:  allowing police and prosecutors to benefit financially from forfeiture violates due process; the ordinance violates due process by failing to provide for a prompt post-seizure hearing; Excessive Fines clause)  [AOB][Word Perfect 6-10 | Word/RTF format][MSWord]

Opening brief from U.S. v. Marolf - 9th Cir. 1997  (Rule 41(e) proceeding)  Issue:  Whether the District Court erred in determining, on the merits, the forfeiture of a yacht under 21 U.S.C. § 881, rather than ordering its return, after it found that the administrative forfeiture was void and that the government's five-year statute of limitations for forfeiture had expired? (S. Perez)  [brief002][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Reply brief from U.S. v. Marolf - 9th Cir. 1997  (S. Perez)  [brief003][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

Brief from U.S. v. 9844 S. Titan Court - 10th Cir. 1994.  ( Issues: (1.) Whether the trial court erred in refusing to allow claimants to move to suppress evidence. (2.) Whether the trial court erred in granting summary judgment for the government. (3.) Whether the trial court erred in forfeiting unit 10, when there was no evidence that it was used to facilitate drug trafficking, but was "tainted" according to the government's theory because it adjoined Unit 9.  (4.) Whether the trial court erred in holding that Frances May owned no defensible interest in marital property, and therefore could not assert an innocent owner defense at all. (5.) Whether the district court applied the wrong standard in determining whether the forfeiture was disproportionate to the offense. (B. Grantland)  [brief001][Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]


Certiorari petitions

Certiorari petition - forfeiture of coins, money and car for structuring  - 1993 case originating from 11th Circuit; (issue: did court err by dismissing claim of family trust for lack of standing; straw owner theory) (B. Grantland)  [certpet001]Word Perfect 6-8 | Word Perfect 5.1 | MS Word 6 | MS Word for Mac 5.1]

U.S. v. $405,089.23 - Government's Petition for Certiorari to the Supreme Court, filed August 28, 1995


Amicus briefs

Amicus brief (proposed) in support of Carol Thomas - (N.J. 2003) Clausen [never filed]  (Issues:  allowing police and prosecutors to benefit financially from forfeiture violates due process)  [AmicusSamples][Word Perfect 6-10 | Word/RTF format]

Libretti v. United States, amicus brief of F.E.A.R. Foundation, U.S. Supreme Court, filed 6/30/95

U.S. v. James Daniel Good Real Property, amicus curiae brief of the Institute For Justice, U.S. Supreme Court, 1993,(Institute for Justice is a D.C. public interest law firm active in property rights issues, and a long time ally of F.E.A.R.)