United States. Congress. House. Committee on the J.

Civil Asset Forfeiture Reform Act : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 1916 ... July 22, 1996 online

. (page 28 of 37)
Online LibraryUnited States. Congress. House. Committee on the JCivil Asset Forfeiture Reform Act : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 1916 ... July 22, 1996 → online text (page 28 of 37)
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Now, many claimants are losing their right to contest the forfeiture of their property due to
procedural defaults. For example, they may lose their rights because of a failure to meet the
extremely short time deadlines for filing a claim and cost bond with the seizing agency under 1 9
U.S.C. Sec. 1608 (20 days from the date of the first publication of the notice of seizure), and for
filing a second verified claim (this one in federal district court), under "Supplemental Admiralty
Rule c (6)"' (10 days from the date of which the warrant of arrest in rem is executed).

Shockingly, the application of the Supplemental Rules allows warrantless seizures where
tliere are no recognized exceptions to the constitutionally mandated warrant requirement. These
rules are often ignored in order to comply with due process, but they nevertheless remain on the

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books, ready for abuse.

When the DEA or the FBI seizes property, a claimant is required to post a bond in the
amount of 10% of the value of the property to preserve the right to contest in court the forfeiture (not
less than $250, up to a maximum of $5,000). The claimant has up to 30 days to post the bond after
receipt of the notice of forfeiture. Frequently, the government seizes several items, and requires that
a separate bond be posted for each item. Many people lose their property at this stage because they
are unable to post the cost bond within the time limit.

This administrative forfeiture proceeding was designed to resolve uncontested forfeitures.
Under this process, a post-seizure probable cause determination is waived. The property is forfeited
without benefit of court intervention. The cost bond is the antiquated, perfunctory mechanism
through which contested seizures are supposed to be able to proceed to judicial resolution.

However, the requirement of posting a cost bond eliminates through attrition many claims
which would otherwise be contested. Adding insult to injury, the cost bond is used to pay the
government 's costs of litigating the forfeiture. This is an absurdly unjust arrangement ~ letting the
government take property away from someone without having to prove anything, then making the
owner pay in advance the government's costs of trying to take it away from him permanently.
Furthermore, unlike criminal cases, the bond is imposed without any independent determination of
probable cause.

The cost bond would be abolished by H.R. 1916, as it should be.
B. Court-Appointed Counsel for Indigents

Another extremely importai i reform that would be accomplished by H.R. 1916 is allowance
for appointment of counsel in cases in which the claimant satisfactorily demonstrates to the court

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that he or she is financially unable to retain counsel to fight for the return of the seized property.
The standards to be applied are the same, well-established ones applicable to the appointment of
counsel for indigent criminal defendants. But the money would come directly from the Justice
Assets Forfeiture Fund, so no new money would need to be budgeted for this just cause.

Contesting a forfeiture case can be an expensive proposition for one seeking the return of his
or her property. Many forfeitures go uncontested due to the high cost of litigating these cases. For
example, often an owner cannot economically hire counsel to defend against forfeiture of a $1 0,000-
520,000 automobile if the government is intent on proceeding to trial. Legal fees in such a case
might well eat up the value of this seized property in short order.

If a property owner has no money with which to retain counsel (either because he is too poor,
or because the government has rendered him indigent by taking or restraining his property), he does
not have a right to appointed counsel. He must defend the action without aid of counsel.

Claimants in civil forfeiture cases are not entitled to counsel as a matter of right, because the
Sixth Amendment does not apply to "civil" proceedings, including effectively punitive forfeitures.
Nor are federal defenders and Criminal Justice Act "panel" lawyers authorized to represent claimants
in civil forfeitures. There is not even a provision in the law to allow a person to recoup his or her
fees if a costly fight is undertaken and the property is ultimately shown to have been wrongly seized.
Consequently, many people lose their property simply because they cannot afford to hire a lawyer
and have no idea how to battle the government through the complex statutory terrain without one.

The indigent counsel provision in H.R. 1916 at least provides the indigent person a legally
trained champion in his or her fight to get a seized property back, and is a first step toward bringing
fundamental due process into this legal twilight zone of asset forfeiture law.

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C Burdens and S tnndards of Proof

H.R. 1916 puts the burden of proof, and sets the standard of proof, where they should be
according to fundamental principles of due process. Cunent statutory law gives the government
many unfair procedural advantages over citizens, especially as regards the burden and the standard
of proof
IVho Should Bear the Burden of Proof?

H.R. 1916 rightly places the burden of proof with the government so that the government
must prove its case before it can permanently deprive a citizen of his or her property.

One of the gravest problems with the current statutory framework is the burden of proof
provision, at 19 U.S.C. 1615. The statute places the burden of proof on the claimant to show that
the property is not subject to forfeiture. This is fundamentally unfair and constitutionally anomalous
in view of the quasi-criminal character of the proceedings and the important interest at stake. It is
extremely difficult to prove a negative.

For example, when the government offers testimony that an unidentified informant claims
to have participated in, or witnessed, a drug transaction at a claimant's residence, the claimant bears
the burden of proof that it did not occur. This tums the criminal presumption of innocence on its ear.
The reversal of the normal burden of proof is unique to civil forfeiture. In all other cases, the party
trying to change the stains quo has the burden of proof, by at least "a preponderance of the
evidence."
What Should the Burden Be?

In addition to placing the burden of proof with the government, H.R. 1916 also rightly
ensures that the government can deprive one of property only upon proof by "clear and convincing"

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evidence that the property is forfeitable. This is much less than the standard applicable in quite
similar criminal proceedings, in which the punishment can likewise be the taking of ones propen\ .
but it is still better than 'probable cause." At least the clezir and convincing standard recognizes that
deprivation of property on allegation of criminality is fundamentally akin to a criminal matter, and
not a mere "civil" one.

Moreover, Congress should clarify that the evidence allowed to meet the standard of proof
must be that which existed at the time of the proceeding's commencement. Evidence acquired after
the fact should not be allowed to "cure" the lack of cause at the time of the government's filing for
the property. After-acquired evidence should be excluded and cases lacking cause at the time of
filing should be barred."
D. The Need for a Meaningful Innocent Owner Defense

H.R. 1916 provides important clarification of the drug forfeiture law's irmocent owner
provisions.

Presently, many innocent people lose valuable property rights because of something someone
else has done which was beyond their control. The system treats a criminal defendant better that an
innocent third party. In criminal forfeitures brought under 21 U.S.C. 853 and the "RICO" statutes,



- See e.g.. United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051 (9th Cir.
1994) ("Without such a rule, goverrunent agents might be tempted to bring proceedings (and
thereby seize property) on the basis of mere suspicion or even enmity and then engage in a
fishing expedition to discover whether . . . cause exists.). See also United States v. $31,990, 982
F.2d 851, 856 (2nd Cir. 1993) ("The institution of a forfeiture can have serious effects on an
owner's right to use and control his property. It should not be undertaken without a
demonstrably good reason.").

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the criminal defendant is entitled to many criminal procedure safeguards.-^ Innocent third parties

in civil forfeiture proceedings should receive at least the same, and probably more rights. Instead.

they are required to bear the burden of proof and overcome the government's routine use of

otherwise inadmissible hearsay.

In his Annual Report of the Department of Justice Asset Forfeiture Program (1990), the

Attorney General claimed:

The Department of Justice routinely grants petitions for remission or mitigation of forfeiture,
primarily to innocent lienholders and innocent family members. It is the Department's
policy to liberally grant such petitions as a means of avoiding harsh results.

Although this statement sounds good, it is not accurate. Experienced defense attorneys rarely file

such petitions, because far from being "routinely grant[ed]," they are routinely denied.

For two centuries, 1 9 U.S.C. 161 8, the statute governing remission, has provided for the grant
of remission to petitioners who establish that they acted "without willful negligence." Historically,
DOJ had granted remission based upon a showing that the petitioner was not negligent in the care
and use of the property. But on August 31, 1987, DOJ issued new regulations abandoning the
statutory negligence standard and requiring petitioners to meet a more stringent standard of care."

To get relief through the remission process, a petitioner now must prove that forfeiture of his



" However, most circuits have misinterpreted Section 853 (d)'s rebuttable presumption to
mean that any property of a person convicted of a Title 21 drug felony is subject to forfeitiire
under section 853 if the government establishes its case by a preponderance of the evidence.
Congress should cl



Online LibraryUnited States. Congress. House. Committee on the JCivil Asset Forfeiture Reform Act : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 1916 ... July 22, 1996 → online text (page 28 of 37)