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Bar News - January 15, 2014

Criminal Law: A Quick Guide to State and Federal Civil Asset Forfeiture Laws


For property owners, civil asset forfeiture is a waking nightmare. It allows state or federal law enforcement to strip all rights in any property used, or intended to be used, in furtherance of a crime (particularly drug crimes), whether it’s a car, bank account, cash, or even a home or business. People and corporations never accused of any crime must then prove their innocence, lest their property be forfeited to the government.

In New Hampshire, a forfeiture action can be brought in one of two ways: By the state attorney general, or by the federal government. What follows is a thumbnail sketch of the forfeiture process from the innocent owner’s perspective.
Deadlines to File and Protect Clients’ Property
State and federal law set out deadlines for both the government and the property owner. In New Hampshire, state law enforcement may seize property “used or intended for use” in connection with a controlled substance offense under RSA 318-B:17b, which also sets out a number of significant deadlines. Within seven days, the seizing agency (usually local law enforcement) must notify anyone with a known interest in the property. The agency must also “promptly” submit a written request for civil forfeiture to the state justice department.

The most important deadline, however, is the 60-day deadline to “either file a petition in the superior court... or seek administrative forfeiture.” Unless the justice department takes one of these two steps within 60 days of seizure, the property “shall be released or returned to the owners.” Within those 60 days, the justice department may opt for administrative forfeiture under RSA 318 B:17d, if the property (other than real property) is worth less than $75,000. Property owners can then choose to file a petition challenging the decision, which the justice department will handle administratively. Or, the owners can file a request to transfer the proceeding to superior court, and the case then proceeds just as if the justice department had filed a petition in superior court.

Federal law provides similar deadlines under 18 USC 983. (Some federal forfeitures are exempted from these deadlines, including those under the Internal Revenue Code.) Within 60 days from seizure, a federal agency seeking administrative forfeiture must send notice to all persons with an interest in the property. In an “adoptive” forfeiture – one where the initial seizure was conducted by state law enforcement – the notice deadline extends to 90 days from the date of seizure. Owners then have 30 days in which to file a claim in the property. Filing a claim starts the clock on a new deadline: The US Attorney has 90 days to file a civil complaint, else a civil forfeiture action will be forever barred.
Shifting Burdens of Proof and Special Defenses
Once a contested forfeiture case lands in court, both New Hampshire and federal law employ a shifting burden of proof. The government must initially prove by a preponderance of the evidence that the property is subject to forfeiture. The owners must then prove by a preponderance of the evidence that they had no knowledge of the underlying crime.

If the owners did know about the crime, the owners can still prevail under New Hampshire law by showing they did not consent to use of the property in connection with the crime. Federal law is more demanding: Owners who knew the about the criminal use of the property must prove that they took reasonable steps (such as calling the police) to prevent it.

And there are other defenses. First, property seized in violation of the Constitution cannot be subject to civil forfeiture, ostensibly allowing recovery of property seized in an unreasonable, warrantless search. But beware the minefield of civil discovery sanctions: When the government serves interrogatories asking, for example, how the property came to be found inside a crack house, the owners’ claims will be dismissed as a discovery sanction if they refuse to answer.

Second, New Hampshire law requires dismissal of civil forfeiture actions if an owner has been acquitted of the underlying charge under RSA 318-B:17b. Ironically, this means that owners never charged with a crime must prove their own innocence by a preponderance of the evidence, but owners accused of a crime must defeat a forfeiture action by showing reasonable doubt.

Federal forfeiture laws provide different procedures for different offenses, and some of the statutes directly contradict one another. The combination of strict deadlines and a maze of contradictory laws can make civil forfeiture actions difficult cases to try, and the monetary value of property in a forfeiture action can be too small to justify legal fees.

But before advising clients that contesting a civil forfeiture would be a pyrrhic victory at best, counsel should take note that federal law requires an award of attorney’s fees to an owner who “substantially prevails” in a federal civil forfeiture case (See 28 USC 2465(b)). That opportunity to collect fees can make defending a client’s interest in a relatively low-value property economically viable for both attorney and client, provided that counsel arm themselves with knowledge (or recruit co-counsel with knowledge) of the minutia of the federal civil forfeiture laws.

Jeremiah Newhall is an associate at Ellis Boxer & Blake PLLC, which represents clients in courts all across Vermont and New Hampshire. His practice focuses on employment litigation, worker’s compensation defense, and federal criminal defense.

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