Isaac Safier Esq

Civil asset forfeiture law refers to various statutes that allow the government to seize assets (such as money or property) and then file a civil lawsuit to have a court order it forfeited so that it can be deposited into the government's treasury account (or sold, and keep the proceeds).  It is different than criminal forfeiture, which is a process in criminal court that arises out of a criminal indictment and follows a criminal conviction.   

The civil asset forfeiture statutes are based on in rem jurisdiction, which means that a case can proceed against an item in the area where it was seized even if the owner is far away. These type of cases begin in England in the 1600s, when the king wished to to seize smuggling ships but found it difficult to locate their owners, and the law was carried over to the colonies that became the United States.  

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Civil asset forfeiture cases are civil cases against the asset that was seized and are filed in the courthouse near where the property was interdicted. There are many different statutes and laws today that allow government agencies to initiate forfeitures. 

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Although these cases are civil cases against property or money, the owner must make a claim and litigate on behalf of the seized asset, as a "claimant".  When an asset is seized, the government agency conducting the seizure will issue a notice of seizure which includes instructions on how to make a claim. 

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California State Laws:  
 

The state police can pursue forfeiture of property under laws such as California Health and Safety §11470(f), which allows forfeiture of money given to a person in exchange for a controlled substance.  A state case title looks like this:  "People of California v. $100,000.00 U.S. Currency".  

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In California state cases, the Notice of Seizure must be issued within 1 year of when property was seized. If a civil asset forfeiture is initiated the seizing agency will send out a notice with instructions on how to file a claim in civil state court.  For smaller amounts of money the forfeiture starts out as administrative, which means that your claim is the first filing in court.  For larger amounts the state will file a complaint which requires an answer to be filed.  In California, thanks to SB 443, a "beyond a reasonable doubt" burden of proof is required for amounts between $25,000 and $40,000. 

 

Filing a claim can be tricky because it must be filed and served on the other party with the correct procedure in the correct court with the correct filing fee, which can be as much as $450 in state court.  If you just mail in a claim you might get a notice back saying that something wasn’t done correctly, but it may be too late if 30 days have passed.   In cases when no civil asset forfeiture is filed and there is no pending criminal case, we can file a non-statutory motion to return property in criminal court. 

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Federal Laws: 

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There is no law against on transporting any amount of money within the United States.  However, Federal government agencies such as CBP, Homeland Security, DEA, USPIS and the FBI can pursue forfeiture under statutes such as 21 U.S.C. 881, which makes property acquired as a result of a violation of the Controlled Substances act subject to forfeiture.  When you are caught with a large amount of money these agencies will assume you are involved in a drug transaction or other nefarious business.  Federal cases have names like this:  "United States v. $100,000.00 U.S. Currency".    

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In federal cases, under CAFRA laws, the seizing agency must send out a Notice of Seizure within 60 days of the seizure.  Once a claimant gets notice they have a limited amount of time (usually 35 days), as specified in the notice, to make a claim.  In addition, the agency will post the Notice of Seizure on Forfeiture.gov with an extended deadline to make a claim. Claims must be made in compliance with federal law 18 U.S.C. 983 and deficient claims may be rejected.  Claims are deemed filed when received, not when sent.  The Notice of Seizures may contain the option to elect an administrative process.  This means that the seizing agency's attorney reviews the case and makes a decision about whether to return the money.  Once a proper claim is correctly filed the U.S. Attorney's office then has 90 days to file a complaint for forfeiture in rem in federal court.  This complaint is then served by mail on the claimant or his attorney.  The claimant must then file a verified claim in federal court and an answer which responds to the complaint point by point.  The case then proceeds as any other civil case.  The claimant has the right to request a trial by jury.  

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Customs Seizures:

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The Law Requires anyone who physically transports, mails, or ships more than $10,00.00 U.S. Currency (or monetary instruments such as coins, travelers checks, money orders, and even promissory notes in bearer form) at a time in or out of the United States to file a FinCen Form 105 (formerly Customs Form 4790).  The form is required by 31 U.S.C. 5316 and Treasury Department regulations (31 CFR 103).  

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There are civil and criminal penalties, including fines up to $500,000 and imprisonment up to ten years, for failure to file a report, filing a report containing a material omission or misstatement, or filing a false or fraudulent report. Seized property may be subject to forfeiture under 31 U.S.C.5321 and 31 CFR 103.57; 31 U.S.

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In addition, U.S. Currency or monetary instrument may be subject to forfeiture under the provisions of 31 U.S.C. 5317(c)(2), 31 U.S.C. 5316(a)(1)(B) - Failure/Inaccurate Report of Over $10,000 into the U.S.  

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Since CAFRA was enacted in 2000 (the Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185). The new rules relating to civil forfeiture created by CAFRA, constitute an effort to reform civil asset forfeiture laws and are meant to make the procedure more equitable and fair.   Seizures under statutory provisions such as civil forfeitures for currency/monetary instrument seizures under the Bank Secrecy Act, 31 U.S.C. 5317(c), money laundering violations under the Money Laundering Control Act, 18 U.S.C. 981, and the Contraband Act, 49 U.S.C. 80302, et seq., are subject to CAFRA.  

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In seizures subject to CAFRA provisions, Customs issues a CAFRA notice of seizure within 60 days of the seizure to any person with an interest in the property (with a few narrow exceptions, such as when the identity of the owner is not determined or the seizure was initially made by state or local authorities).  

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What happens when you get a Notice of Seizure letter from customs?

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Once you receive a Notice of Seizure in a customs case you only have 30 days to file a claim or petition.  It is important to start early in order to assemble the evidence needed for a claim or petition.  Contact Attorney Isaac Safier, Esq., as soon as possible after receiving a Notice of Seizure in your customs case in order to start the claim or petition process.    

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Policing for Profit:

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Civil asset forfeiture generates substantial money for police and other government agencies.  Many seizing agencies even put forfeiture revenues in their budget. That means that if the government stopped seizing assets, or less than they expected, they would not meet their budgeted revenue.  A Washington Post investigation in 2014 showed that police in the United States have seized $2.5 billion in cash from almost 62,000 people since 2001.  

 

For more information about civil asset forfeiture, please read my article in New America.

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Playing for the Fumble:

There are many ways in which claimants miss their opportunity to make a lawful claim for their seized assets, which means that the asset forfeiture goes unopposed.  Examples include:

 

• When claimants are served with an administrative forfeiture notice while they are in jail, then the paperwork is taken away.  The 30 day clock starts ticking but they cannot find an asset forfeiture attorney while they are in jail and their public defender or criminal defense attorney may not assist with their claim. 

• When a forfeiture notice is sent to the wrong address (for example, an old address from an ID or Driver's License).  The 30 day clock ticks away as the notice makes its way to the person who has ownership of the asset and wishes to file a claim.

• Confusing instructions on how and where to make a claim opposing forfeiture.  State claims must be filed in state civil court with payment of the correct filing fee.  A non-compliant claim could get rejected by the court clerk causing the deadline to be missed.    

• When claimants are confronted with confusing instructions with multiple options in Federal Seizures they may waive their rights to a federal court trial and have their case heard in front of an agency lawyer instead.  

If you have had your money seized by the state police or a federal government agency such as USPS, CBP, Homeland Security or the DEA, it is very important that you contact a knowledgeable attorney as soon as possible so that a claim can be filed within 30 days.

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Don't Try this at Home (Don't Represent Yourself): 

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Both civil litigants and criminal defendants who represent themselves in the trial court are held to the same standards as are parties who are represented by counsel. Lombardi v. Citizens Nat. Trust etc. Bank (1955) 137 Cal.App.2d 206; People v. Lamb (1955) 133 Cal.App.2d 179; People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076 (self represented claimant lost her right to Jury trial because she did not follow the procedure for posting jury fees).  

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The information on this website is for informational purposes only and do not constitute advertising, solicitation, or legal advice. This information does not create an attorney-client relationship and may not reflect the most current legal developments. 

 

Last updated 12/6/2022.

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