Responding to the Complaint for Forfeiture In Rem
If the United States files a complaint for forfeiture In Rem against the U.S. Currency within the 90-day deadline, the complaint for forfeiture In Rem names the U.S. Currency as the Defendant. This article explains how you should respond by retaining an attorney to file a verified claim, filing an answer to the complaint for forfeiture In Rem, demanding discovery, responding to the government’s interrogatories and request for production, litigating a motion to suppress and representing yourself during a jury trial if the case is not resolved on a pre-trial basis.
Contesting a civil asset forfeiture action is not a good do-it-yourself project. Instead, you should also contact an experienced forfeiture attorney so that you understand your rights and the best ways to file a verified claim for court action. Keep in mind that asking the government to “pardon” the property because you filed a remission or mitigation is rarely successful. Demanding court action and fighting the case is the ONLY way to challenge the legality of the seizure. If you are an attorney unsure how to proceed with your case, forfeiture attorney Sebastian Rucci can act as co-counsel in these cases with attorneys across the country.
Attorney Sebastian Rucci can help you demand that the case be referred for court action which triggers a 90-day deadline for the United States Attorneys’ Office to file a verified complaint for forfeiture In Rem. If a complaint for forfeiture is not filed within the 90-day timeline, then the property must be returned to the person who elected court action.
If the complaint for forfeiture is filed within the 90-day timeline, then an attorney can help you file a verified claim and answer with the court. Forfeiture attorney Sebastian Rucci often represents innocent owners of property who get caught up in a seizure or forfeiture. He also represents clients after their money was seized without a valid or lawful basis, including a warrantless seizure in violation of the Fourth Amendment of the United States Constitution.
Forfeiture attorney Sebastian Rucci is particularly experienced in civil asset forfeiture cases involving an allegation that a traveler at the airport carried more than $10,000 in U.S. Currency but filed to file a lawful Currency and Monetary Instrument Report or FinCEN 105 Form, engaged in a currency reporting violation or structured the transaction to evade the reporting requirements. Contact forfeiture attorney Sebastian Rucci to discuss your case. Whether your money was just taken or you are an attorney that wants to co-counsel with him to resolve the case, contact him today at 330-720-0398.
USA Complaint for Forfeiture In Rem
The notice is published pursuant to 21 U.S.C. § 881. The notice usually provides that any person claiming a legal interest in the Defendant Property must file a “Verified Claim” with the court within 60 days from the first day of publication of this Notice on this official government internet website.
The notice also explains why the claimant must file an “Answer” to the complaint or motion under Rule 12 of the Federal Rules of Civil Procedure within 21 days thereafter. The verified Claim and Answer must be filed with the Clerk of the Court in the appropriate District Court at the address provided in the notice, and copies of the verified Claim and Answer must be served upon the Assistant United States Attorney identified in the notice at the address listing in the notice.
A default will be entered and the court will order the forfeiture of the property under 18 U.S.C. § 983(a)(4)(A) and Rule G(5) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, if the verified Claim and Answer is not filed within the allotted time. After filing the verified complaint for forfeiture in rem, the United States Attorney’s Office will post a notice on www.forfeiture.gov. The www.forfeiture.gov website provides access to a standard petition form that may be mailed and the link to file a petition online. This website provides answers to frequently asked questions (FAQs) about filing a petition.
Notice of the Complaint for Forfeiture In Rem
After filing the complaint, the government is required to issue a personal notice of the pending lawsuit with a true and correct copy of the complaint and warrant being served on any potential claimants.
The notice of the lawsuit will be served on any potential claimants who have previously filed a claim along with a copy of the Warrant of Arrest in Rem. The Assistant United States Attorney (AUSA) assigned to the case will then file a copy of the Warrant in Rem and Summons returned.
Additionally, in accordance with Rule G(4)(a)(iv)( C), of the Supplemental Rules of Admiralty or Maritime Claims and Asset Forfeiture Actions, the United States will publish a notice of the forfeiture by posting it on an official government site (www.forfeiture.gov) for thirty (30) consecutive days.
The notice will list the last date to file a claim for the defendant’s currency. The proof of publication for the Public Notice of Action and Arrest is filed with the Court.
Deadlines to File a Claim and Answer
The claim and answer serve two different purposes: the claim sets forth the interest that the claimant is asserting in the property; the answer responds to the allegations in the Government’s complaint. A person asserting an interest in seized property, in accordance with subparagraph (A), shall file an answer to the Government’s complaint for forfeiture not later than 20 days after the date of the filing of the claim. Title 18, United States Code, Section 983 (a)(4)(B). Federal Rules of Civil Procedure Rule G(5)(b) Answer.
A Claimant must serve and file an answer to the complaint or a motion under Rule 12 within 21 days after filing the claim. Rule G(5)(b) provides that the claimant must file an answer to the Government’s complaint within 21 days of filing a claim.
As one Court noted, the claimant’s failure to file an answer leaves the Government and the Court guessing as to which allegations in the complaint are admitted and which will require proof at trial. United States v. $242,484.00, 389 F.3d 1149, 1174 n.15, 1175 n.17, (11th Cir. 2004) (en banc) (Tjoflat, J., concurring) (the function of the answer is to deny allegations on which the Government has the burden of proof; if the Government cannot meet that burden, the claimant prevails on the basis of its answer; but if the claimant cannot deny the allegation – such as the allegation that the property is forfeitable – without running afoul of Rule 11, it must admit and rely on another defense – such as innocent ownership).
Civil forfeitures laws permit law enforcement to seize property without a conviction and keep what they seize, this has warped law enforcement priorities and decimated public trust in law enforcement.
Filing a Claim
Pleadings in civil forfeiture actions must be filed in accordance with the Supplemental Rules. See 18 U.S.C. Section 983(a)(4)(A) and (B) (“any person claiming an interest in the seized property may file a claim asserting such person’s interest in the property in the manner set forth in the [Supplemental Rules]”).
Pursuant to Rule G(5)(a), a person who asserts an interest in the defendant’s property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must: (A) identify the specific property claimed; (B) identify the claimant and state the claimant’s interest in the property; (C) be signed by the claimant under penalty of perjury; and (D) be served on the government attorney designated under Rule G(4)(a)(ii)(C) or (b)(ii)(D). The deadline for filing the claim is listed in the direct notice or the published notice.
Pursuant to Rule G(5)(b), the claimant must serve and file an answer to the complaint or a motion under Rule 12 within 21 days after filing the claim. A claimant waives an objection to in rem jurisdiction or to the venue if the objection is not made by motion or stated in the answer. In United States v. $315,298.52, No. 09–0520, 2010 WL 1529404, *1 n.5 (D. Md. Apr. 14, 2010), the court explained the interplay of Section 983(a)(4) and the Supplemental Rules. The claim and answer must comply with the requirements of Rule G(5)(a) and (b). Id.
If a claimant fails to file a claim that complies with the requirements of Rule G(5), the Government may move to strike it pursuant to Rule G(8)(c)(i)(A) for failing to comply with Rule G(5) or (6). In United States v. $12,126, 337 Fed. Appx. 818, 820 (11th Cir. 2009), the court noted that the Government may move under Rule G(8)(c) to strike a claim for failure to comply with Rule G(5), and affirmed an order striking a claim for lack of statutory standing.
In United States v. Vehicle 2007 Mack 600 Dump Truck, 680 F. Supp.2d 816, 822-25 (E.D. Mich. 2010), the court granted the government’s Rule G(8)(c) motion to strike a claim filed 40 days after the filing deadline in Rule G(5)(a), and held that to have statutory standing, the claimant must “strictly comply” with the rule. In United States v. $13,970, No. 5:06-CV-386, 2007 WL 1231659 (M.D. Ga. 2007), the court held that statutory standing is a threshold issue and that a claimant who fails to comply with section 983(a)(4) and Rule G(5) lacks standing.
File an Answer in Compliance with the Requirements in Rule G(5)(b)
In addition to filing the claim, an answer must also be filed in compliance with the requirements in Rule G(5)(b). If you fail to file an answer, the government will allege that failing to file a timely answer will result in the claimant’s lack of statutory standing to contest the forfeiture action.
Rule G(5) sets forth the requirements for filing a timely answer. The Courts require “strict compliance” with those requirements, and hold that a claimant who fails to comply lacks statutory standing to contest the forfeiture action.
In United States v. $12,126, 337 Fed. Appox. 818, 820 (11th Cir, July 21, 2009), the court affirmed an order striking claim for lack of statutory standing; “the district court was entitled to insist upon strict compliance with the procedural requirements set forth in Rule G(5)”).
In United States v. $14,132, 2011 WL 3235720, *1(D. Col. July 28, 2001), the court granted a Rule G(8)(c) motion to dismiss for lack of statutory standing where the claimant filed a claim but no answer).
In United States v. 2007 Cadillac Escalade, 2011 WL 2516161, *3 (M.D. Ala. June 20, 2011), the court required strict compliance with Rule G(5) and granted a motion to strike the claim because it was untimely and not filed under the penalty of perjury.
To be timely pursuant to Rule G(5) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture, the answer to the complaint must be filed “within 20 days after filing the claim.” However, the “district court has the discretion to extend the filing period.” United States v. $12,126, 337 F. App’x 818, 819 (11th Cir. 2009).
Pursuant to Rule G(8), the claimant may file a Motion To Suppress the Use of the Property as Evidence. The rules provide: “[i]f the defendant property was seized, a party with standing to contest the lawfulness of the seizure may move to suppress the use of the property as evidence. Suppression does not affect the forfeiture of the property based on independently derived evidence. Pursuant to Rule G(9) the trial is to the court unless any party demands trial by jury under Rule 38.
If You File a Claim But Do Not File an Answer
When the government files a motion to strike a claim for failure to comply with Rule(5), it should do so pursuant to Rule G(8)(c), not Rule 12 of the F.R.Civ.P., United States v One Men’s Rolex Masterpiece Watch, No. 07-2508, 2008 WL 2769368, (W.D. Tenn. July 11, 2008) aff’d, 357 Fed. Appx. 624 (6th Cir. 2009).
The Courts have granted default judgment in cases where a claimant filed a timely claim but thereafter fails to file a timely answer. In fact, the most common ground on which the Government may challenge the claimant’s statutory standing is filing a claim without filing an answer.
For example, in United States v. All Assets Held at Bank Julius Baer & Co., 664 F. Supp. 2d 97, 104 (D.D.C. 2009), the court granted a Rule G(8)(c) motion to strike for failure to file an answer.
If you File an Answer but No Claim
The Courts have granted default judgment in cases where a claimant filed an answer but never filed a claim. In United States v. $288,914.00 in U.S. Currency, 722 F. Supp. 267, 271 (E.D. La. 1989), the District Court struck that claimant’s untimely answer and granted the government’s motion for default.
If You File the Answer Late
The government will allege that allowing a late filing of an answer subverts the strict time limits established by Supplemental Rule G(5).
In those cases, the government will ask the Court to grant the government’s Rule G(8)(c) motion to strike since there are no other claimants. Then the government will ask the Court to enter judgment for the Government directly.
For example, in United States v. $1,000.00 Refunded to Mango Creek Properties, Inc., 2002 WL 254044, *2 (D. Neb. Jan. 27, 2012), the court granted a motion to strike for lack of statutory standing and entering default judgment.
In United States v. $5,565.00, 2010 WL 4222047 (D. Col. Oct. 20, 2010), adopting 2010 WL 4256211 (D. Col. Sept. 20, 2010), the court struck an answer that was filed without a verified claim and entered judgment for the Government because there were no other claimants.
Filing a Motion to Suppress in a Forfeiture Case
One of the most important issues in any forfeiture case is filing and litigating a viable motion to suppress evidence illegally obtained. Most civil asset forfeiture cases involve the warrantless detention of the person being searched, prolonged detention, or the warrantless seizure of evidence including the property itself.
A motion to suppress is filed under Supplementary Civil Rule G(8)(a). Pay attention to the deadlines for filing such a motion under the court’s local rules. For example, the local rule might require that motions be filed within 30 days of the beginning of discovery unless the filing party has obtained the prior permission of the Court to file the motion.
Keep in mind that some of the local rules don’t apply to proceedings exempt from initial disclosures, such as civil asset forfeiture cases. Fed. R. Civ. P. 26(a)(1)(B)(ii) (exempting “a forfeiture action in rem arising from a federal statute” from initial disclosures). In any event, obtain permission from the Court to file the motion when required.
Reasons the Court Enters a Default Judgment
The government will argue that entry by the Court of a default judgment against the claimant is appropriate if the claimant fails to plead or defend the case after receiving notice by complying with the requirements for filing a verified claim and answer in a civil forfeiture case. To avoid the court entering a default judgment, contact forfeiture attorney Sebastian Rucci.
In many of these cases, the complaint alleges that the defendant currency is forfeitable from the person from whom it was seized, pursuant to Title 31, United States Code, Section 5317 because of a failure to file a lawful Currency and Monetary Instrument Report, as it represents currency or property involved in a currency reporting violation under Title 31 United States Code, Section 5316.
The complaint might also allege that the currency is forfeitable pursuant to 31 U.S.C. 5324, i.e., Structuring to Evade Reporting Requirement, if two or more people acted with the intent to evade the currency reporting requirement of 31 U.S.C. 5316, by knowingly divided the defendant currency between themselves so that each was transporting less than $10,000 from a place inside the United States to a place outside the United States (or vise versa). See United States v. $13,205.54, 2022 U.S. Dist. LEXIS 46934, 2022 WL 813817.
Attorney Sebastian Rucci Focuses His Law Practice on Seizures and Asset Forfeitures
Forfeiture Attorney Sebastian Rucci has 27 years of legal experience and FOCUSES HIS PRACTICE ON SEIZURES AND ASSET FORFEITURES. He also works with other attorneys co-counsel on civil asset forfeiture cases.
Forfeiture attorney Sebastian Rucci will challenge federal asset forfeiture cases throughout the United States. He can file a verified claim for the seized assets, an answer challenging the allegations in the verified forfeiture complaint, seek an adversarial preliminary hearing if one was denied, and challenge the seizure by filing a motion to suppress and dismiss on multiple procedural grounds demanding the immediate return of the seized assets.
Forfeiture attorney Sebastian Rucci can show that the seized assets are not the proceeds of criminal activity and that the agency did not have probable cause to seize the funds or other assets. Even if a showing of probable cause has been made, he can file to rebut the probable cause by demonstrating that the forfeiture statute was not violated, that the agency failed to trace the funds, or showing an affirmative defense that entitles the immediate return of the seized assets.
Forfeiture attorney Sebastian Rucci is available as co-counsel, working with other counsel, where he focuses on challenging the asset forfeiture and seizure aspect of the case throughout the United States. Forfeiture attorney Sebastian Rucci often takes civil asset forfeiture cases on a contingency fee basis, which means that you pay nothing until the money or other asset is returned. Let experienced forfeiture attorney Sebastian Rucci put his experience with federal seizures and forfeiture actions to work for you, call attorney Sebastian Rucci at 330-720-0398.
