Getting Seized Cash Back: Filing a CAFRA Claim.

Seizure is the process that takes possession of your funds; civil forfeiture is the process that permanently transfers ownership. For instance, in some cases, federal agents will seize someone’s funds as part of an investigation and then seek forfeiture through a civil proceeding. Others will seize funds in anticipation of criminal forfeiture proceedings.

While the seizure of your cash is undoubtedly an alarming event, the seizure itself is just the first step in a longer process. The outcome of the process will depend in large part on what steps you take, if any, in response to the seizure.

Federal civil forfeiture proceedings are unique in that they are considered “in rem” proceedings, meaning they are actions taken against property rather than the property owner. As a result, the government does not need to arrest, charge, or even indict the owner in order to seize the funds; and, in many cases, the government can keep the seized funds even if the owner is never convicted of a crime.

The CAFRA claim is a civil-law enforcement tool designed to protect owners’ property rights in civil forfeiture cases. By filing an administrative claim to your seized cash, you force the government to take your claim seriously. This will either:

• Force the government to formally seize the property and initiate civil forfeiture proceedings in court, where you will have an opportunity to defend your property rights; or,
• Force the government to release your property (if the government does not have sufficient evidence to prove the grounds for forfeiture).

To take advantage of the CAFRA claim process, you (or your legal representative) must meet certain “standing” requirements. For the purpose of filing an administrative claim, standing means you must have an ownership, possessory, or security interest in the property, and that interest must be sufficient to give you a right to seek the return of the property.

What Must Your Federal Administrative Claim Say, and Where Must it Arrive?

If you are facing the loss of cash in a civil forfeiture action, you will need to make informed decisions quickly. There is no time for guesswork, especially in such a high-stakes situation.

We are confident that our CAFRA claims process is designed to maximize the chance that our clients get their cash back. Along with filing your administrative claim, we will also work to gather and utilize all evidence that may support your claim to the funds.

Our team consists of experienced attorneys who are familiar with federal civil forfeiture law, from CAFRA and related statutes to key court cases and pertinent DOJ guidelines. If you have any concerns or questions about seeking the return of seized funds through a CAFRA claim, we can provide clear and concise answers.

Will My Federal Administrative Claim for My Seized Cash Be Successful?

Will filing a CAFRA claim for your seized cash be successful? The answer is “it depends.” Filing a CAFRA claim is an important first step, but success in the CAFRA claim process is not guaranteed. As mentioned, a federal administrative claim forces the government to seek forfeiture in court, which opens the door to present evidence in support of your claim.

You may seek the return of your seized cash if you are able to establish that you have a valid and recognized “interest” in the funds in question. This includes an ownership interest as the rightful owner or a recognized security interest. To establish this interest, you need to be prepared to present all available evidence in your case, and not just any evidence. Any evidence you use to claim your funds must be “relevant, material, and competent.”

Even if you have a valid interest in your seized cash, you may face issues if you are not able to substantiate your claim. This is particularly true in cases where the government has specific evidence to use against you in order to keep your funds. To help you get your cash back, you will need an experienced federal forfeiture lawyer to assemble a compelling defense.

Additionally, there are other risks associated with pursuing a CAFRA claim. In addition to criminal-defense concerns, you may face concerns about the risk of civil litigation as well. If you have concerns about any of these issues, you should speak with your legal team before moving forward with your CAFRA claim.

How Does a Seized-Cash Dispute Move from the Agency into Federal Court?

If the government proceeds to initiate a judicial forfeiture action, this process is governed by Supplemental Rule G of the Federal Rules of Civil Procedure. According to Rule G, several steps must occur before the case moves forward into the federal litigation process:

• The government must file a judicial forfeiture complaint in federal district court.
• The claimant must file a verified claim identifying the property in question, their identity, and the nature of their interest in the property.
• The claimant must then file either a responsive pleading (an answer) or a motion to dismiss under Rule 12. Generally, an answer or Rule 12 motion is due twenty-one days after the verified claim.
• The government may also move to strike the claim in order to dismiss the case if the claim fails to meet the requirements of Rule G, if the claimant is not entitled to standing, or if the government has otherwise decided that it will not move forward with civil forfeiture proceedings.

What Is a Special Interrogatory and How Does it Affect a Seized-Cash Case?

In addition to the usual steps in the civil litigation process, the government has the ability to serve what are called “special interrogatories” to claimants. Special interrogatories are written questions that must be answered under oath. If you have been served with special interrogatories in your CAFRA case, these questions are usually very focused and will typically ask you to:

• Confirm your identity; and,
• Explain the nature of your relationship to the seized property.

Does My Attorney Need to be an Experienced Federal Forfeiture Lawyer?

Our firm focuses on protecting owners’ property rights in federal civil forfeiture actions. We understand that federal officials are extremely successful at pursuing civil forfeiture because few owners have experienced counsel on their side in these cases. To improve your chances of success, we recommend engaging the services of an experienced federal forfeiture lawyer who is intimately familiar with CAFRA, Supplemental Rule G, and the other rules and statutes that govern civil forfeiture proceedings.

What Must the Government Prove About the Cash, and Which Defenses Matter?

Our lawyers have noted that federal agents are remarkably successful in pursuit of civil forfeiture. Despite their success, they are not invincible. As a result, the first part of our defense strategy is to determine whether the government can meet its burden of proof. In order to forfeit the cash, federal agents must be able to prove, by a preponderance of the evidence, that:

• The funds are subject to forfeiture under federal law; and,
• There is a substantial connection between the funds and the offense.

As we discuss above, these two standards, the civil trial standard and the substantial connection standard, are very different from the legal standard that allows federal agents to seize the property in the first place.

But while the burden of proof is on the government, this is not where our work as federal forfeiture defense lawyers ends. In addition to scrutinizing the government’s evidence, we also rely on all available defenses in order to help our clients get their cash back.

In fact, in many cases, federal agents will rely on a particular charge to justify forfeiture; and, in these cases, the goal is to effectively challenge the validity of that charge. For example, the government may rely on the structuring charge in some cases. Structuring is a federal offense under 31 U.S.C. § 5324 and refers to the intentional breaking up of a financial transaction (or transfer) into multiple smaller transactions in order to evade reporting requirements. Due to this statute, the government is able to justify forfeiture in cases where the accused may not appear to have any connection to the drug trade. While structuring is a serious offense, merely carrying ten thousand dollars or any other large sum across state lines is not inherently unlawful, and, in many cases, federal agents will attempt to justify their seizure by labeling the action as structuring even where no evidence supports this charge.

In addition to the structuring defense, the innocent-owner defense is another common defense in civil forfeiture cases. Under the innocent-owner defense, the claimant must establish (by a preponderance of the evidence) that he or she had a qualifying lack of knowledge regarding the property’s unlawful use. If you are facing the loss of cash in a civil forfeiture action, we strongly recommend engaging our firm to find out whether one of these defenses (or perhaps another defense) will help you get your cash back.

Where Does Seized Cash Go While Forfeiture is Pending or After the Government Wins?

If no timely claim or appeal is filed by anyone, the government can pursue what is known as administrative forfeiture. As the name implies, this is an administrative process rather than a judicial process, and does not require review by a judge. This means the agency that seized your cash may be able to keep the property without judicial oversight and without anyone having to prove their case in court. However, administrative forfeiture is not an option in every scenario. Among other circumstances, administrative forfeiture is generally unavailable for property valued over $500,000, although monetary instruments and certain other property are subject to statutory exceptions (19 U.S.C. § 1607(a)). But there are statutory exceptions to this limitation as well. With respect to CAFRA and related provisions, there are two statutory exceptions that apply to proceeds of a federal criminal offense that are in the form of specific types of monetary instruments. If you do not file a CAFRA claim for your seized cash, what will happen to your property? Along with other funds the government chooses to keep, the government will generally deposit forfeited proceeds into the applicable federal forfeiture fund, such as the Justice Assets Forfeiture Fund or the Treasury Forfeiture Fund, rather than a U.S. Marshals Service forfeiture fund. In pursuit of forfeiture in civil cases, federal agencies are allowed to share the proceeds of the forfeiture with other participating state and local agencies. In federal cases, this is known as “equitable sharing.” Through federal equitable sharing, the government can return up to eighty percent of the forfeited proceeds back to the originating agency (i.e., a local law enforcement agency). Again, this is very different from criminal forfeiture actions. In a criminal forfeiture action, the government generally must obtain a conviction of the defendant for an offense carrying criminal forfeiture and establish that the property is forfeitable under the applicable statute. In a civil forfeiture action, the owner’s funds can be administratively forfeited without a criminal conviction, but the seizure must be based on probable cause that the property is subject to forfeiture, and the agency that seized the funds may then qualify for equitable sharing under applicable federal guidelines.

Speak With Counsel Before You Answer Anything

If agents have contacted you, the order matters: counsel first, answers second. Spodek Law Group has been practicing since 1976 and defends federal matters nationwide, coast to coast, from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028.