Claims vs Petition for Remission in Asset Forfeiture Cases
Letting the Fox Guard the Hen House
Why a Judicial Claim Makes More Sense than a Petition for Remission in Asset Forfeiture Cases.
Claims and Answers in Asset Forfeitures
Typically, when the feds seize an asset, they initiate administrative forfeiture proceedings. Such administrative forfeitures are authorized under 18 U.S.C. 983. This means that the law enforcement agency, such as the IRS, the FBI, USPIS, DEA, CBP, or ATF (or another agency) will try to accomplish the forfeiture without going to court.
For example, imagine the DEA does a controlled traffic stop and brings a dog to sniff the car. If the dog ‘alerts’ to the presence of an odor associated with narcotics then the officer who initiated the stop (could be a federal agent or a local police officer) will search the car. If money is found it will likely be seized as will be considered to be property that either facilitates drug distribution or fruits/proceeds of such activity. But at this point, that money is merely seized (possessed by the Government). It has not been forfeited whereby the Government is the legal owner of that property. To accomplish forfeiture, the agency must either accomplish an administrative forfeiture or judicial forfeiture.
Understand that all administrative forfeitures are civil forfeitures and thus government by 18 U.S.C. 983 (outside of some customs cases).
Notice of Intended Forfeiture
What typically happens at this point is the agency will send a notice of intended forfeiture stating that it intends to forfeit property on the basis of a particular statute. (In this hypothetical the statutes would likely fall under 21 U.S.C. 881 and 846). This notice letter must be sent within 60 days of the seizure. While this is an important protection for property owners, take little comfort. The feds are very consistent at beating this deadline. They also must publish notice of its intention on a Government website.
This letter will offer several alternatives to owners. A) Do nothing and let the property be forfeited by default. B) Make an administrative claim and request the case be sent to the U.S. Attorney’s Office for review. Or C) Request a Petition for Remission. Once the letter goes out, the property owner must make either an administrative claim or petition for remission within 35 days of the letters mailing or 30 days of the final publication on a website. If an owner fails to do so, the property becomes the Government’s by default which is how the great majority of assets are forfeited.
Judicial Claims in Asset Forfeiture Cases
Because they request different actions, it is important to understand the differences between options B (a judicial claim) and C (Petition for Remission). A judicial claim simply requests that the matter be sent to the U.S. Attorney’s Office. What will happen is that the prosecuting agency will determine whether there is sufficient evidence to go to court. Typically, people hire attorneys to make a claim. This is by far the preferable practice because it shifts the forfeiture decision from the agents to the U.S. Attorney’s Office (USAO) which is a separate from the seizing agency. USAOs are not incentivized to accomplish the forfeiture (at least they’re not as directly incentivized). They are also attorneys that have to decide whether they are willing to face a judge or jury before taking the case. This offers an excellent chance for the owner’s attorney to try to reach a settlement or even convince the U.S. Attorney’s Office to give the property back to the owner.
If the USAO decides to take they case then they must file a judicial complaint. It is at this point that the case is in court. Keep in mind, the case is a long way from trial and there is still an opportunity to negotiate. In other words, do not associate judicial claims with massive legal expense. Competent lawyers can handle this stage for a comparatively reasonable price. That is, it is much less expensive to engage in pre-litigation negotiation than to enter a full-blown civil case.
Petition for Remission in Asset Forfeiture Cases
As opposed to a judicial claim, the agency will offer the owner to make a petition for remission basically asking the legal counsel for the agency (not the USAO) to reconsider the seizure and decide whether to give the property back. Often people think that this avenue simply cuts out the lawyer similar to property owners who sell their houses without a realtor. Unfortunately, this strategy is perilous. This is because that assumption is incorrect on two grounds. First, petitions are often denied and then owners try to hire attorneys to clean up the mess. However, the agency has gained a major upper hand by this point as the deadline to make a judicial claim has already passed. Now the owner is paying a legal fee with far less leverage on her behalf. Second, as you may have already realized, agency counsel is on the side of the agency. They have every incentive to find against the petition for remission because their agency gets the lion’s share of the forfeited property. Further, any motion for reconsideration would be handled by agency counsel again.
People often ask if a court can overrule a denial of a petition for remission. The answer is no. The only thing a court can review is whether the agency sent proper notice before the deadline. If they have, game over for the owner.
In the end, filing a claim and entering into a pre-litigation representation relationship with an attorney to handle the matter is far more preferable to filing a petition for remission by yourself.
Finding an Asset Forfeiture Attorney
If your property has been seized by any branch of the federal government, your first step should be to call an attorney immediately. Our asset forfeiture attorneys include former federal prosecutors who have extensive experience defending asset forfeitures. Call our Asset Forfeiture Attorney Steve Jumes today at (817) 203-2220 or contact us online.