Forfeiture Endangers American Rights

F.E.A.R. On-Line Library


Please send us the citations and/or links to important forfeiture decisions that you come across. If you have decisions that are not yet posted on the internet, send them in hard copy to FEAR Website, 20 Sunnyside Suite A-419, Mill Valley, CA 94941, or e-mail them to lawyerservices@fear.org.


Important Court Decisions on Forfeiture

Last Update April 8, 2004 by Brenda Grantland

Note:  This section of our website hasn't been updated in a long time, except for the few cases added today.  As I have time I'll add other cases to this collection, but it will take a lot of work to make this section useful.  If anyone would like to help with this task of updating the list of important forfeiture decisions, please volunteer!

I have deleted some cases I know to be no longer good law (or no longer the best law on the issue,)  but please do your research before relying on an old case (prior to 2000) cited below.  As we add new cases to this page, we will upload the actual opinions to a new section of the FEAR website, accessible to FEAR members with passwords only. 

Today I've added a new section on Drug Dog Sniffs, because of a new FEAR member/victim who recently was nabbed by a forfeiture trap in Texas, like the ones they used to have in Volusia County, Florida.   The Justice Department lobbyists would have you believe that forfeiture scams like this are a thing of the past, now that the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA") is in effect -- but it this case shows it's still business as usual in .


Appeals of Forfeiture Judgments
U.S. v. $10,000, 52 F.3d 329 (7th Cir. #94-2637, 4-11-95) (held: Claimant who moved to vacate default judgment, and then waited until denial of the motion to vacate to appeal underlying default judgment lost the right to appeal merits of underlying judgment)


Attorneys Fees
U.S. v. Douglas, 55 F.3d 584 (11th Cir. #94-8621, 6-21-95) (held: third party in criminal forfeiture case entitled to attorneys fees under Equal Access to Justice Act)

U.S. v. Land in Shelby County, Alabama, (11th Cir. No. 93-6519, decided February, 1995) (held: award of attorneys fees was not available under Equal Access to Justice Act to lienholder who prevailed under innocent owner defense; because property cannot be a "party," it can't be a prevailing party.)  [Note:  Attorneys fees are now available to successful civil forfeiture claimants under CAFRA.]



Certificate of Reasonable Cause
U.S. v. One 1986 Ford Pickup, 56 F.3d 1181 (9th Cir. #93-55367, 6-8-95) (held: before issuing a certificate of reasonable cause, court must make fact finding that there was probable cause that the property was involved in a violation of the specific forfeiture statute it invokes.)

Conveyances
U.S. v. Indoor Cultivation Equipment from High Tech, 1995 WL 317665 (7th Cir. #93-2817, 5-26-95) (Ray Pollard, pro se) (held: default judgment was void as to conveyances, where government filed complaint after 60 day statutory period had run; pick up truck, boat and trailer ordered returned)


Corporation as Claimant
U.S. v. Route 2 Box 472, [cite] (11th Cir. No. 94-8158, Aug. 1995) (held: where corporate employee engages in criminal activity beyond the scope of his employment, and there is no benefit to the corporation from the employee's illegal activity, employee's actions are not imputable to corporation)

U.S. v. Parcel, 7326 Hwy. 45 N., Three Lakes, Oneida County, WI, 95 F.2d 311 (7th Cir. 1992) (held: when an agent/co-owner of corporation who acted beyond the scope of his authority when he commited illegal act with the property, his actions were not imputed to corporate stockholders.)



Counsel, Right To

U.S. v. $292,888.04, 54 F.3d 564 (9th Cir. No. 93-16751, decided May 24, 1995) (held: trial court decision re: whether claimant had right to court-appointed counsel in civil forfeiture case -- is reviewed de novo on appeal; 6th Amendment right to counsel doesn't apply to civil forfeitures, and appointment of counsel under indigency statute, 28 U.S.C. Sec. 1915(d), is discretionary with judge)



Criminal Forfeiture

U.S. v. Saccoccia, 1995 WL 373441 (1st Cir. #93-1618, 93-2208 & 94-1506, 1st Cir., 6-28-95) (analyzes roots of modern criminal forfeiture and concludes criminal forfeiture is part of punishment, not a separate substantive charge for purposes of extradition clause)


Default Judgments
U.S. v. $10,000, 52 F.3d 329 (7th Cir. #94-2637, 4-11-95) (held: Claimant who moved to vacate default judgment, and then waited until denial of the motion to vacate to appeal underlying default judgment lost the right to appeal merits of underlying judgment)

Drug dog sniffs

cases in which dog sniffs were ruled non-probative of drug trafficking:

United States v. $53,082.00 in U.S. Currency, 985 F.2d 245, 250, note 5 (6th Cir.1993) (as much as 96 percent of currency has narcotics contamination)

United States v. Carr, 25 F.3d 1194, 1214-1218 (3rd Cir.1994) (Becker, J., concurring in part and dissenting in part) cert. denied, 513 U.S. 1086 (1995)

United States v. $639,558.00 in U.S. Currency, 955 F.2d 712, 714, note 2, (D.C.Cir.1992) (90 percent of currency contains sufficient quantities of cocaine to alert a trained dog)."

United States v. $506,231, 125 F.3d 442, 453 n. 8 (7th Cir. 1997) ("As Attorney Komie pointed out at oral argument, an American Bar Association Journal article described how Attorney General Janet Reno was subject to a canine-sniff and the bills in her purse triggered the dogs' response.  See Courts Reject Drug-Tainted Evidence, 79 A.B.A. J. 22 (Aug.1993).  The record in this case also contains the memo of a Drug Enforcement Agent chemist which states that the Federal Reserve rollers have been contaminated by cocaine, making the usefulness of dog sniffs limited.")

United States v. $30,060.00, 39 F.3d 1039, 1041-43 (9th Cir.1994) (noting widespread contamination and concluding that "the probative value of a positive dog alert in currency forfeiture cases in Los Angeles is significantly diminished") 


Excessive Fines Clause

Fugitive Disentitlement Doctrine


Informants
U.S. v. Solorio, unreported decision 53 F.3d 341 (9th Cir. #93-50507. 50508, 4-26-95) (held: informant's contingency fee agreement was found not to be contingent on conviction, therefore not "outrageous government conduct" that would invalidate conviction.)

U.S. v. McMahan, [cite] (criminal defendant who agreed to cooperate as informant and reveal his assets was sentenced to 60 months. Later he was found to have withheld information about some of his assets and about involvement of 3 coconspirators. Court found he breached plea agreement and sentenced him to 292 months.)


Innocent Owner Defense
U.S. v. $124,813, 53 F.3d 108 (5th Cir. #94-20866, 5-30-95) (held: Calero-Toledo did not create a general innocent owner defense where statute has none)

U.S. v. Real Estate, 6640 S.W. 48th St., Miami, 41 F.3d 1448 (11th Cir., Jan. 1995) (held: owner who acquires interest in property after tainting activity knowing of the illegal activity cannot be innocent owner; knowledge is measured at time of transfer of ownership)



Jury Trial

State of New Jersey v. One 1990 Honda Accord,  Superior Court of New Jersey, Appellate Division, #A-6880-95T2, (June 16, 1997) (held: owners of property seized under N.J.S.A. 2C:64-l are entitled to a jury trial on demand, pursuant to article 1, paragraph 9 of the New JerseyConstitution; the summary disposition procedure in the statute does not pass constitutional muster.  This is the forfeiture case of long-time FEAR member Lois McDermott.)



Landlords as Claimants

U.S. v. Real Property Located at 3756 W. 106th St., Inglewood, CA, 940 F.2d 1537 (9th Cir. 1992) (retired couple Melvin and Alice Hanberg lost their rental property because jury found they had not done enough to prevent drug dealing by their tenant. 9th Circuit rejected their proportionality defense (this was before Austin) but remanded for new trial on whether Mr. Hanberg was the agent for his wife so that his negligence is attributable to her.)


Legal Fictions
U.S. v. Land in Shelby County, Alabama, (11th Cir. No. 93-6519, decided February, 1995) (held: award of attorneys fees was not available under Equal Access to Justice Act to lienholder who prevailed under innocent owner defense; because property cannot be a "party," it can't be a prevailing party.)


Notice

Weng v. United States - 2nd Cir. No. No. 96-2918 (February 24, 1998) (held: notice of forfeiture sent to a prisoner at the place where he is believed to be incarcerated will only be effective if actually received by him).


Privilege Against Self-Incrimination
U.S. v. Real Property & Premises, 4003-4005 5th Ave., Brooklyn, 1995 WL 302501 (2nd Cir. #94-6149, 5-18-95) (held: where claimant had refused to comply with discovery, claiming privilege against self-incrimination, until confronted with government motion for summary judgment, court did not err in prohibiting claimant from withdrawing privilege and submitting evidence to rebut summary judgment)


Speedy Trial
U.S. v. $292,888.04, 54 F.3d 564 (9th Cir. No. 93-16751, decided May 24, 1995) (held: trial court decision re: denial of speedy trial is reviewed de novo on appeal; 30-month delay not excessive under circumstances)


Summary Judgment

U.S. v. 3 Parcels in La Plata, 53 F.3d 341 (9th Cir. #93-16633, 16642, 16873, 5-2-95) (held: a claimant's self-serving testimony is enough to withstand summary judgment; summary judgment is inappropriate even though claimant did not record his deed until after government filed lis pendens)