The difference between administrative, civil and criminal forfeiture, the notice a claimant receives and the deadline it starts, standing to contest, the innocent owner defense, substitute assets when the original property is gone, restraint of assets before trial and the effect on paying counsel, proportionality review, and the return of property.
A claimant must show a colorable ownership or possessory interest in the property to satisfy Article III, and bare assertion is not enough. The statute defines an owner to include a leasehold, lien, mortgage, recorded security interest or valid assignment, and to exclude a nominee who exercises no dominion or control, a general unsecured creditor and an unexplained bailee. A motion to strike puts the burden of establishing standing on the claimant by a preponderance.
Under 18 U.S.C. § 983(g) a claimant may petition the court to determine whether a civil forfeiture is constitutionally excessive. The court compares the forfeiture to the gravity of the offense giving rise to it. The claimant must establish gross disproportionality by a preponderance of the evidence at a hearing without a jury, and if the standard is met the court reduces or eliminates the forfeiture to avoid violating the Excessive Fines Clause.
Under 18 U.S.C. § 983(d) an innocent owner's interest is not forfeited under any civil forfeiture statute, and the claimant carries the burden by a preponderance of the evidence. An interest held before the conduct is protected by lack of knowledge or by reasonable steps to terminate the use. An interest acquired afterward is protected only by bona fide purchaser status, with a narrow exception for a primary residence taken by marriage, divorce, separation or inheritance.
Section 853(e)(1)(A) allows a restraining order on the filing of an indictment or information alleging forfeiture, with no separate showing. Before charges, section 853(e)(1)(B) requires notice, a hearing and findings of substantial probability of success, and the order lasts no more than ninety days. A temporary order may issue ex parte for fourteen days. Section 853(f) supplies a seizure warrant and section 983(j) the civil-side equivalent.
Civil seizure ordinarily proceeds on a warrant issued under 18 U.S.C. 981(b) using the procedures of Rule 41, and may proceed without one where an established Fourth Amendment exception applies or where a state or local agency lawfully seized the property first. A criminal seizure warrant under 21 U.S.C. 853(f) requires the additional finding that a restraining order may not be sufficient. Real property may not be seized before an order of forfeiture is entered.
Section 983(d)(2)(A)(ii) preserves the innocent owner defense for a claimant who, upon learning of the conduct, did all that reasonably could be expected under the circumstances to terminate such use of the property. Section 983(d)(2)(B) supplies a presumption keyed to timely notice to law enforcement and timely revocation of permission, and provides that no one is required to take steps likely to subject another person to physical danger.
In a nonjudicial forfeiture the seizing agency must send written notice as soon as practicable and no later than sixty days after the seizure, or ninety days after a state or local seizure later adopted by a federal agency. The notice states a claim deadline that may be no earlier than thirty-five days after the letter is mailed. Where notice is not sent in time the government must return the property, and a declaration entered without notice may be attacked for five years.
An agency may forfeit seized property by declaration where no claim is filed, subject to the value ceiling and the categories of 19 U.S.C. 1607. A United States attorney may sue the property itself in rem, proving forfeitability by a preponderance and, on a facilitation theory, a substantial connection. A prosecutor may seek forfeiture from a convicted defendant at sentencing, where the court finds a nexus to the offense and third parties are confined to an ancillary proceeding.
Supplemental Rule G(5)(b) requires an answer or a Rule 12 motion within twenty-one days after a claim is filed, while 18 U.S.C. 983(a)(4)(B) states twenty days for the same step. Rule G(6) lets the government serve interrogatories limited to the claimant's identity and relationship to the property without leave, answerable within twenty-one days. A motion to strike under Rule G(8)(c) must be decided before any motion by the claimant to dismiss.
A claim must identify the specific property, state the claimant's interest and be made under oath subject to penalty of perjury by the claimant rather than by counsel. No bond may be required in a proceeding governed by the reform statute. In an agency case the deadline is the date stated in the notice letter, no earlier than thirty-five days after mailing. In court the claim is due thirty days after service of the complaint, and an answer follows.
Section 983(f) permits a claimant to obtain possession of seized property while the forfeiture case proceeds. All five conditions must be met: a possessory interest, sufficient ties to the community, substantial hardship from continued government possession, hardship outweighing the risk of loss, and no excluded category. Currency is excluded unless it constitutes the assets of a legitimate business. A request precedes a petition after fifteen days, and the court rules within thirty days.
