FEAR
Forfeiture Endangers American Rights Foundation
is a 501(c)(3) charitable organization. Donations are tax deductible.
20 Sunnyside Suite A-419, Mill Valley, CA 94941     Phone: 415-389-8551  or toll-free  888-FEAR-001

“Assistance of counsel is a fundamental right essential to a fair trial.” -Gideon v. Wainwright

FEAR's Gideon Project

Implementing the right to effective assistance of counsel for asset forfeiture victims
FEAR's Gideon Project seeks to afford owners of seized property a fair chance in court by:

    • educating judges, court clerks, and criminal defense attorneys about forfeiture claimants’ statutory right to counsel; and

    • providing research materials and the nation's only forfeiture training program for criminal defense attorneys and pro-se litigants, which will be made available nationwide, at low cost to participants.

Click here to save or print FEAR's tri-fold Gideon Project brochure (PDF file).

Congress responded to numerous stories of abusive forfeitures by enacting our nation’s only federal forfeiture reform, the Civil Asset Forfeiture Reform Act of 2000.

CAFRA’s  18 U.S.C. § 983(b) requires courts to appoint counsel to indigent owners of seized homes, and allows appointment of counsel in other types of civil forfeitures where the claimant has appointed counsel in a related criminal case. Both provisions are available only upon request.

But in most courtrooms today nobody knows to tell the judge of these provisions! Sadly, the overwhelming majority of lawyers and judges apparently still do not even know that homeowners have a right to assistance of counsel in forfeiture proceedings1 — and many well-meaning attorneys risk malpractice suits for causing irreparable damage because they don’t know the arcane rules governing forfeiture procedures.

Congress charged the Legal Services Corporation with providing attorneys for indigent claimants whose residence has been seized, and estimated it would cost $5 million over the 2001-2005 period.2 However, LSC reported to Congress only “one request from court personnel” prior to 2003, plus “several additional requests for cases in Washington DC and California” during the year ending March, 2004. Then, during their 2004-2005 reporting period “LSC obtained representation for a claimant in California.”3 In February 2008, LSC said CAFRA appointments “are approaching one a month” — nationwide! That is abysmally low.

In U.S. v. 130 High Rock Acres Drive (2007) — one of only two cases reported on Lexis involving CAFRA’s appointment of counsel to defend claimants’ primary residence — the court appointed counsel to represent two minors, whose mother did not know she could ask the court to appoint counsel.

Without attorneys, forfeiture victims are left defenseless against prosecutors, who continue to routinely overreach in seeking assets and money judgments.4

FEAR’s first goal in the Gideon Project is to educate lawyers, victims, and the court system about CAFRA’s appointment of counsel process.

But simply getting courts to appoint counsel achieves little without a pool of lawyers trained in forfeiture law to effectively defend the cases.

The wise judge in 130 High Rock Acres Drive warned counsel about the complexity of forfeiture procedure:

"Recognizing that Legal Services Corporation may have little experience in civil forfeiture actions, [counsel] is respectfully advised that civil forfeiture actions are governed by unique rules that require claimants to file both claims and answers within very specific time frames. Specifically, this action is governed by the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. Such rules may be found… ."

The government spends “vast sums of money to establish machinery”5 to deprive people of their property.  It offers extensive Continuing Legal Education courses on forfeiture exclusively for prosecutors — but no CLE course on substantive forfeiture law and procedure exists for defense attorneys!

Defense attorneys often unwittingly waive their client’s right to jury trial on the forfeiture, either by failing to file a jury demand in the civil forfeiture case, or, in criminal forfeiture cases, by failing to assert the right before the jury panel is excused after the guilt phase.

Often, attorneys trying diligently to assist their clients in the new and unknown area of law, choose the administrative petition for remission process instead of filing an administrative claim, and thereby forever waive their client’s rights to any hearings in court on the forfeiture case.

Even the best attorneys when handling their first forfeiture cases make mistakes that cause their clients to lose by default. Numerous courts have held that failure to file a verified claim with the court in strict compliance with the rules deprives the claimant of standing to defend against the forfeiture. “Under such circumstances, a litigant's [only] appropriate remedy is a suit against his attorney for malpractice.”6

Now: at long last, 8 years after CAFRA’s right to counsel provision took effect, we  have a functioning process for appointing counsel to represent indigent homeowners! Claimants who want to request an attorney can find free sample appointment of counsel applications and forms by clicking the red “Victim Support” button on FEAR’s main page at www.fear.org.

Defense lawyers new to forfeiture law should check out the free and low cost materials on FEAR’s website. In addition to numerous free materials in the public section of FEAR’s website, even forfeiture veterans benefit from purchasing FEAR’s Asset Forfeiture Defense Manual (500 pages, $119) and Forfeiture 101, the first in a series of CLE forfeiture law training videos on DVD ($100, or save by ordering both and combining shipping). These materials are also designed for use by pro se litigants who fall through the cracks in CAFRA’s right to counsel provisions. And for $100 per year FEAR offers an on-line Brief Bank containing over 200 sample motions, forms and briefs, plus several complete Department of Justice manuals and many other research materials — all indexed by topic.

Please help us level the playing field for victims of overreaching forfeiture prosecutions!

Spread the word.  If you are a court-appointed attorney or work in the criminal justice field, please tell forfeiture victims, judges and other lawyers about CAFRA’s right to counsel provisions.
Please click here to save or print FEAR's tri-fold Gideon Project brochure (PDF file)

Or click here to:

Donations and proceeds will help produce future CLE forfeiture training videos.

March 2011 UPDATE: Assistant United States Attorney asset forfeiture chief confirms negligible number of appointments of counsel under CAFRA’s right to counsel provision.

In his declaration filed January 10, 2011, Assistant United States Attorney Steven R. Welk described his first actions after becoming aware in December, 2010 of the first ever appointment of counsel in the Central District of California (Los Angeles) pursuant to the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).  As Chief of his district’s Asset Forfeiture Section, “with oversight responsibility over all forfeiture matters filed in the district,” – which includes the counties of Los Angeles, Orange, Ventura, Santa Barbara and San Luis Obispo – AUSA Welk sent an email to his fellow asset forfeiture coordinators in each of the U.S. Attorneys Offices throughout nation “inquiring about their experiences, if any, with appointments of counsel made pursuant to 18 § U.S.C. 983(b)(2),” CAFRA’s right to counsel provision for claimants whose home has been seized.7  Of the 93 other forfeiture coordinators (one for each of the 94 judicial districts), only seven USAO’s reported that any such appointments had been made in their districts, with only four of those reporting more than one appointment of counsel under CAFRA’s ten-year-old right to counsel provision.
 
CAFRA’s right to counsel provision dysfunctional by design

Upon learning of the first appointment and claim for attorney fees in his district, AUSA Welk also contacted Mark Freedman of the Legal Services Corporation, which Congress charged with providing counsel for asset forfeiture claimants.  “Mr. Freedman was very helpful, and candidly admitted that while the LSC had developed a system for handling such appointments, the statutory appointment language was not reasonably reconcilable with the LSC’s statutory mission.”  According to AUSA Welk’s sworn declaration, CAFRA’s right to counsel provision was drafted without consulting LSC, which only became aware of the provision after it was passed.

Additionally, AUSA Stefan Cassella, who “was personally involved both in drafting the Department’s proposals for CAFRA and the negotiations and Congressional hearings that led to the enactment of the Act” advised Welk that no reference to the LSC was included until “very late in the drafting process.”  In a March 2008 email obtained by Welk, General Counsel for LSC Victor Fortuno stated  that “LSC’s involvement [in the § 983(b)(2) appointment process] came about because of some confusion by Congress about how LSC works ... . LSC does not provide representation itself, but rather provides grants to local civil legal aid organizations.”

Those of us who worked with the late Representative Henry Hyde in passing the Civil Asset Forfeiture Reform Act of 2000 remember well the disappointing compromises pressured by Department of Justice lawyers who watered down our nation’s first and only federal forfeiture reform during those final hours before its passage.  This particular Catch-22, created by assigning the responsibility of providing counsel for representation of indigent claimants to a grant funding organization that is incapable of providing representation to individuals, has resulted in the provision having been “applied only a relatively few times across the country.” 

Therefore, in United States v. $19,985 8 AUSA Welk now argues in the government's opposition to the nation's first motion for interim fees for counsel appointed under CAFRA, that after “a thorough investigation, government counsel has found that no court has ever entered an interim fee order in connection with a § 983(b)(2) appointment,” and therefore the court should find no basis for making “such an extraordinary deviation” from the small handful of cases in which CAFRA’s right to counsel provision has been implemented at all. 

LSC received no direction from Congress as to how the provision should be put into effect. However, because the issue has arisen in various districts since CAFRA’s enactment, the LSC had developed the following procedure with respect to § 983(b)(2) appointments: if an attorney contacts the LSC and indicates a desire to be appointed under the statute, Mr. Freedman issues what is essentially a form letter (like the one issued in this case) advising the court that it consents to the requested appointment. From that point forward, the LSC has no further involvement.

Congress left counsel appointed under CAFRA to seek an order from the court approving fees and costs, which the AUSA submits to the Department of Treasury for payment – but not before vigorously fighting against any motion for such an order.  In United States v. $19,985 Welk argued on behalf of the government that “the LSC has no authority to bind the federal government or establish federal policy with respect to waivers of sovereign immunity” from its statutory liability for paying attorneys to represent qualified claimants in forfeiture proceedings. 

Thus, for over a decade claimants’ rights to counsel have been completely thwarted in 87 of the 94 federal judicial districts, with four of the remaining seven districts having made only one appointment of counsel to represent forfeiture claimants – a negligible number out of the tens of thousands of civil forfeiture cases prosecuted by the United States since the enactment of CAFRA ten years ago.

  Endnotes:
  1. A 2008 Lexis search revealed only one case in which a court appointed counsel under CAFRA’s 18 U.S.C. § 983(b)(2), which requires the judge to appoint counsel for claimants whose primary residence was seized and who cannot afford a lawyer: U.S. v. Real Prop. at 130 High Rock Acres Drive, 2007 U.S. Dist. LEXIS 59601 (2007) — and only one case in which a court appointed counsel to represent a criminal defendant’s interest in property subject to forfeiture in the related civil forfeiture pursuant to § 983(b)(1): U.S. v. One 2000 Wells Cargo 24 Foot Long Trailer, 2002 U.S. Dist. LEXIS 6554 (2002). See also notes 2-3 below. UPDATE: In 2010 the 9th Circuit denied a motion to withdraw filed by the attorney appointed by the appeals court to represent the claimant-appellate in United States v. 777 Greene Ave., 609 F.3d 94 (2010), as the motion fell short of applicable standards for withdrawal of appointed counsel in a criminal appeal. We also recently discovered: an unpublished opinion from another appeals court, which vacated and remanded a district court's summary judgment for forfeiture because the lower court erred in failing to appoint counsel to claimant, in an case mentioned upon remand in United States v. Real Prop. Located at 7199 Grant Road, 2008 U.S. Dist. LEXIS 60086, *8 (W.D. Wis. Aug. 1, 2008); and a district court that denied a criminal defendant's motion for appointment of separate counsel to represent him in related civil forfeiture proceedings, but authorized his court appointed criminal defense attorney to represent defendant in connection with a motion to stay the civil forfeiture proceedings, holding that if the stay is granted until termination of the criminal case defendant must demonstrate the necessity of appointed counsel continuing to represent him in the forfeiture cases.
  2. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE H.R. 1658, Civil Asset Forfeiture Reform Act of 2000.
  3. Legal Services Corporation Semiannual Report to the Congress for the Period October 1, 2003 - March 31, 2004, page 11; LSC Semi-Annual Report to Congress for the Period October 1, 2004 – March 31, 2005 (page 17).
  4. While the federal government obtained 92% of the criminal convictions it sought in Fiscal Year 2007, U.S. Attorneys vastly overreached for assets and money judgments – litigating over $3.8 billion in assets – nearly three times the $1.3 billion value of civil and criminal forfeiture judgments obtained (United States Attorneys' Annual Statistical Report: Fiscal Year 2007). During fiscal years 2005 and 2006, U.S. Attorneys obtained a 91% conviction rate, but pursued litigation of assets valued over four times the value of forfeiture judgments obtained (United States Attorneys' Annual Statistical Report: Fiscal Year 2005; same, Fiscal Year 2006.).  UPDATE: In 2008 and 2009 the Executive Office for United States Attorneys omitted columns from Table 16 of its annual reports that had previously displayed the cash value of assets litigated in forfeiture proceedings. It reported $1.1 billion deposited into the Asset Forfeiture Fund in 2008, and nearly $1.3 billion in 2009 (United States Attorneys' Annual Statistical Report: Fiscal Year 2008; and FY 2009).  
  5. Quoting Gideon v. Wainwright, 372 U.S. 335 (1963). UPDATE: In Fiscal Year 2010 the Asset Forfeiture Fund paid the Department of Justice $5.4 million for costs of prosecuting forfeiture cases, plus over $1 million for costs of forfeiture training and printing. ASSETS FORFEITURE FUND AND SEIZED ASSET DEPOSIT FUND ANNUAL FINANCIAL STATEMENTS FISCAL YEAR 2010, U.S. Department of Justice Office of the Inspector General Audit Division Audit Report 11-12, January 2011, at page 56. 
  6. U.S. v. Indoor Cultivation, 55 F.3d 1311, 1318 (7th Cir., 1995); see also: U.S. v. Commodity Acct #549, 219 F.3d 595, 598 (7th Cir., 2000) (quoting U.S. v. 8136 Dobson St., 125 F.ed 1076, 1084: “Claimants in this forfeiture proceeding pose the question whether their former attorney's gross negligence in representing their interests entitles them to another opportunity to litigate.. The answer is No."); U.S. v. 817 NE 29th Dr., Wilton, 175 F.3d 1304, 1311 n.14 (11th Cir, 1999) (claimant’s “only remedy for the alleged incompetence of his attorney is a suit for malpractice”).
  7. AUSA Welk's survey included only 18 U.S.C. § 983(b)(2), which requires courts to appoint counsel to indigent owners of seized homes. CAFRA's other right to counsel provision merely allows courts to appoint counsel in other types of civil forfeitures in which the claimant is represented by counsel in related criminal proceedings.
  8. Case 2:07-cv-03622, Central District of California.