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 Please send us any suggestions (and copies of cases) you have for updating this out of date but still helpful compendium.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.