Received a Federal Civil Forfeiture Complaint in South Carolina?
A Notice of Judicial Forfeiture Action tells a potential claimant that the United States has filed a civil forfeiture action in federal court against property in which the person may have an interest. The notice generally identifies the property, the federal court where the action is pending, the deadline for filing a claim, and the government attorney who must be served. A copy of the civil forfeiture complaint generally accompanies direct notice to a known potential claimant.
If you received a federal civil forfeiture complaint, the United States has already filed a lawsuit in federal court seeking to forfeit property in which you may have an interest permanently.
This is different from receiving a Notice of Seizure from the DEA, FBI, IRS, Homeland Security, or another federal agency. A Notice of Seizure may begin an administrative forfeiture process without a court case. A civil forfeiture complaint means a judicial case has already been filed in United States District Court.
The lawsuit is generally filed against the property itself. For example, a case might be titled:
United States of America v. $125,000 in United States Currency
or
United States of America v. Certain Real Property Located at [Address]
If you want to contest the forfeiture, simply telling the government that the property belongs to you is not enough. Federal civil forfeiture cases have specialized procedures and deadlines for asserting a claim to the property.
How Do I Know If a Federal Civil Forfeiture Lawsuit Has Been Filed?
Start with the documents you received.
A judicial civil forfeiture case should identify a United States District Court, contain a federal case number, and identify the property the government seeks to forfeit.
The United States generally files a verified complaint explaining the legal and factual basis for seeking forfeiture. A known potential claimant should receive notice of the action and a copy of the Complaint.
The notice should also tell you when you must file a claim and identify the government attorney who must receive the claim and answer.
This is different from an administrative forfeiture notice.
If you received only an agency Notice of Seizure and Intent to Forfeit and no federal lawsuit has been filed, you may be dealing with administrative forfeiture instead.
What Is the Deadline to Respond to a Federal Civil Forfeiture Complaint?
The first document to examine is the notice you received from the government.
Under Supplemental Rule G of the Federal Rules of Civil Procedure, direct notice to a potential claimant must provide a deadline for filing a claim that is at least 35 days after the notice is sent.
Do not assume that every case has the same deadline. The notice and federal court docket should be reviewed to determine the actual deadline in your case.
Missing the claim deadline can jeopardize your ability to contest the forfeiture.
What Is a Rule G Claim?
A person asserting an interest in property that is the subject of a federal civil forfeiture action generally contests the forfeiture by filing a claim in the federal court where the case is pending.
Under Supplemental Rule G, the claim must generally:
Identify the specific property being claimed;
Identify the claimant and state the claimant’s interest in the property;
Be signed by the claimant under penalty of perjury; and
Be served on the government attorney designated in the forfeiture notice.
These instructions are often contained on the Notice of Judicial Forfeiture action that is sent out. The claim is important because it establishes that the claimant is asserting an interest in the property and intends to contest the government’s forfeiture action.
This is not the same as simply sending the prosecutor a letter or providing documents that show ownership.
Do I File a Claim or an Answer?
Generally, both, but at different times and on slightly different timelines.
The claim and the answer are separate filings.
First, a person seeking to contest the forfeiture generally files a claim complying with Supplemental Rule G.
The claimant then generally must file an answer to the government’s Complaint or a motion under Rule 12 no later than 21 days after filing the claim. Depending on the circumstances, a Rule 12 motion, including a motion to dismiss, may be appropriate instead of an answer. The applicable deadlines should be determined from Rule G, the Federal Rules of Civil Procedure, the notice, and any orders entered in the case..
This procedure is one of the most important differences between a federal civil forfeiture case and an ordinary civil lawsuit.
A claimant should not assume that filing an answer alone is sufficient to establish the right to contest the forfeiture. Both a claim and an answer need to be considered, along with other potentially relevant filings such as a motion to dismiss.
Can the Government Challenge My Right to Contest the Property?
Yes.
The government can challenge a claimant’s standing to contest the forfeiture or seek to strike a claim or answer that does not comply with Supplemental Rule G.
The government can also serve special interrogatories limited to the claimant’s identity and relationship to the property.
For example, when multiple people or entities claim an interest in money, real estate, or a business account, questions may arise about who actually owns the property and the nature of each person’s interest. Likewise, if an individual moves to dismiss a case, the government may seek to establish that it actually has an interest in the matter before it can be dismissed, and the use of special interrogatories seeks to identify that interest.
Establishing the right to participate in the case can therefore become an important issue before the court ever reaches the ultimate question of whether the property is forfeitable.
What Happens After the Claim and Answer Are Filed?
Once a claimant has properly appeared, the case proceeds as federal civil litigation.
Depending on the case, the parties may engage in:
Written discovery;
Document production;
Depositions;
Financial tracing;
Expert discovery;
Motion practice;
Settlement negotiations;
Summary judgment; and
Trial.
The government must ultimately establish that the property is subject to forfeiture. The claimant may challenge the government’s evidence and assert any defenses available under federal forfeiture law.
For a broader explanation of the government’s burden, innocent-owner claims, and defenses to forfeiture, see our Federal Asset Forfeiture Defense in South Carolina page. It is important to note that, as these legal processes are playing out, discussions between the claimant’s counsel and government counsel occur regularly and can often be productive.
What If the Civil Forfeiture Complaint Is Connected to a Criminal Investigation?
A civil forfeiture case can exist even when the property owner has not been charged with a crime.
However, a forfeiture complaint can also be part of a larger federal criminal investigation, and often is.
That creates an important strategic issue.
A civil forfeiture case may require a claimant to sign a claim under penalty of perjury, produce financial and business records, answer discovery, or potentially give deposition testimony. Those decisions can have implications if federal prosecutors are simultaneously investigating the claimant for fraud, money laundering, drug trafficking, structuring, or another federal offense.
The best strategy for recovering property may therefore depend not only on the forfeiture case but also on the claimant’s potential exposure in the underlying federal investigation. It is extremely important to balance the efforts to defend a forfeiture case with the collateral effect on a criminal investigation. The reality is that they are often handled simultaneously, with counsel for a claimant working with federal investigators, federal criminal prosecutors, and government civil counsel. Identifying competing priorities is critical to developing an appropriate strategy.
Experience Handling Significant Federal Civil Forfeiture Litigation
The Law Offices of Nathan S. Williams represents claimants in federal civil forfeiture litigation involving significant assets and property interests, as well as cases involving parallel federal criminal investigations. For example:
Federal Civil Forfeiture Involving Multiple Real Properties Worth Approximately $2.1 Million
The firm represented claimants in a federal civil forfeiture action in which the United States sought forfeiture of five pieces of real property with an aggregate value of approximately $2.1 million.
The matter involved multiple real-estate assets and required addressing the claimants’ property interests, federal civil forfeiture procedure, and the government’s asserted basis for forfeiture. It further involved a collateral international investigation and a significant risk of criminal charges. We were able to avoid criminal charges against the businesses and individuals involved and negotiate a substantial settlement that substantially exceeded the claimants' expectations.
Every case depends on its particular facts. Prior results do not guarantee a similar outcome.
What Should I Do If I Received a Federal Civil Forfeiture Complaint?
If you received a complaint and notice, four things are particularly important. Because the applicable deadlines can affect the ability to contest the forfeiture, prompt review by counsel can be important..
Determine the deadline stated in the notice.
Preserve the Complaint, notice, and all earlier seizure documents.
Identify exactly what property interest you are claiming.
Consider whether the forfeiture allegations create potential criminal exposure before making substantive statements to the government.
The immediate issue is not simply whether the government should be allowed to keep the property. The first issue is making sure you properly preserve your ability to contest the forfeiture.
Frequently Asked Questions About Federal Civil Forfeiture Complaints
Is a federal civil forfeiture complaint the same as a Notice of Seizure?
No. A Notice of Seizure may begin an administrative forfeiture proceeding without a federal lawsuit. A civil forfeiture complaint means the United States has already filed a judicial forfeiture action in federal court. Confusingly, a federal civil forfeiture case also begins with a Notice of Judicial Forfeiture Action, which is different than a notice in an administrative forfeiture case.
How do I know if the government actually filed a lawsuit?
The documents should identify a United States District Court, a federal case number, and the property subject to the forfeiture action. You should generally receive notice of the action and a copy of the Complaint.
How long do I have to file a claim?
The direct notice should identify the deadline. Under Supplemental Rule G, that deadline must generally be at least 35 days after the notice is sent. There is a separate deadline to answer the Complaint, generally 21 days after the claim is filed.
Is filing an answer enough?
Do not assume so. A person seeking to contest a judicial forfeiture generally must file a claim complying with Supplemental Rule G and then file an answer or Rule 12 motion.
When is the answer due?
Under Supplemental Rule G, an answer or Rule 12 motion generally must be filed no later than 21 days after the claim is filed.
What happens if I miss the deadline?
Missing the deadline can jeopardize your ability to contest the forfeiture and can result in the government seeking forfeiture without your participation. Whether a late claim may be permitted depends on the circumstances and the court. Often, it can be discussed with the government attorney on the case, and they will sometimes agree to allow late filings.
Can I contest a civil forfeiture if I haven’t been charged with a crime?
Yes. Civil forfeiture targets property and can proceed without a criminal charge against the owner. A person asserting a qualifying interest in the property may contest the government’s forfeiture action.
What if the forfeiture case is connected to a criminal investigation?
That should be evaluated carefully. The civil case may involve sworn filings, financial records, discovery, and testimony that could have implications for a related federal criminal investigation. And civil forfeiture cases are often closely tied to criminal investigations. It is critical to consider both when dealing with civil forfeiture.