Komie and Associates is one of Chicago’s top forfeiture groups with the greate success in the return of money and property seized by the government in both federal and state courts.
A forfeiture case involves the seizure of money, personal possessions, or real estate by the federal or state government on the allegation that the property was involved in or the proceeds of illegal activity.
We have provided you with a general description of the history and laws pertaining to forfeiture proceedings. This summary has been drawn up to give you a general understanding of forfeiture law. We have focused on some of the federal laws and Illinois statutes. However, each state has its own set of forfeiture laws as well as case law interpreting these statutes. Furthermore, the facts of an individual case will dictate what law applies, any exceptions or presumptions that will affect the outcome of the case.
The parties involved in a forfeiture proceeding:
The plaintiff is the state or federal government. The state and federal governments can not file forfeiture proceedings at the same time against the same property. United States v. $506, 231 U.S.C., 125 F.3d 442 (7th Cir. 1991)
The defendant is the property seized by the government.
The claimant is the owner of the defendant property. The property owner must file a verified claim indicating his or her interest in the property so that the owner can participate in the legal proceedings. There can be more than one claimant to the defendant property.
The history of forfeiture laws in the United States:
Forfeiture cases are based on our admiralty laws. 28 United States Code, Rules A - F of the Supplemental Admiralty and Maritime Claim Rules. Forfeiture laws originally came about to address the need to seize shipping vessels suspected of being involved in a crime before they left port and avoided a court’s jurisdiction. Thus, a unique aspect of forfeiture law is that it allows the seizure of property before a hearing takes place on whether the property is actually guilty of the crime charged. Pre-trial seizure is an exception to the basic constitutional safeguards found in the 5th Amendment and 14th Amendment of the federal constitution prohibiting the government from taking a person’s property prior to a hearing.
Forfeiture laws now extend to seizure of money and any property involved in or proceeds of illegal activity, such as houses, cars, boats, and jewelry.
Criminal vs. civil forfeiture proceedings:
Criminal forfeiture proceedings involve the forfeiture of any property when its owner is convicted of certain violations of the law. The federal law governing criminal forfeiture is 18 U.S.C. § 982.
Civil forfeiture proceedings involve any property that the government alleges was involved in or is the proceeds of an illegal activity. The federal law governing this type of seizure and forfeiture is 18 U.S.C. §981. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §881, falls under this provision.
In Illinois, the Drug Asset Forfeiture Procedure Act, 725 ILCS 150/1 et seq., lists the procedures for property to be forfeited under the Illinois Controlled Substance Act, 725 ILCS 570/100 et seq, and the Cannabis Control Act, 720 ILCS 550/1 et seq.
The steps to a forfeiture proceeding:
The government files a complaint demanding forfeiture. Upon review, the clerk issues a warrant for the arrest of the property. Rule C, Supplemental Admiralty and Maritime Claim Rules. After review, the clerk may issue a warrant for the arrest, or seizure, of the property.
The United States Supreme Court has ruled that if the government wants to seize a house prior to a hearing, the government must establish 1) exigent circumstances exist, and 2) that less restrictive measures, such as a lis pendens, would not protect the property from being destroyed or removed. United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492 (1993)
Once the warrant is issued and the property seized, the government must notify owners of the property. The federal admiralty laws require public notice of the action in a local newspaper. However, the United States Supreme Court has ruled that the Fifth Amendment of the federal constitution requires actual notice be given when the government can obtain names and addresses of the interested parties. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652 (1950). See also, U.S. v. $274,481, 903 F.Supp 259 (Dist. Puerto Rico 1995)
The property owner, or claimant must file a verified claim showing his or her ownership over the property within a certain amount of days after publication or receiving actual notice of the forfeiture action. (The filing time requirements are very stringent, yet can vary according to the law. It is necessary to refer to the specific statute under which the property is being seized to determine the time requirements.) Filing this claim allows the individual to take part in the legal proceedings and challenge the seizure of the property.
The claimant must file an answer or otherwise plead within a certain amount of days after the verified claim for forfeiture being filed. (The filing time requirements are very stringent, yet can vary according to the law. It is necessary to refer to the specific statute under which the property is being seized to determine the time requirements.) If the forfeiture action is a civil one, then the rules of pleading apply. See, Federal Rules of Civil Procedure. Under federal law, the government must allege in its complain that there is probable cause to believe the property is subject to forfeiture. United States v. $506, 231 U.S.C., 125 F.3d 442 (7th Cir. 1991)
Under Illinois law, actual notice must be given to the property owner when required by statute. 725 ILCS 150/4. The state’s attorney must file a verified complaint within 45 days of receipt of the seizure notice by law enforcement, or the filing of a claim. 725 ILCS 150/9(A). The answer to the complaint must be filed within a certain number of days after service of the complaint. 725 ILCS 150/9(E).
In Illinois, the verified complaint must conform to the Illinois Rules of Civil Procedure, 735 ILCS 5/2-600 et seq. Furthermore, the verified complaint must include sufficient facts to allege a nexus between the property seized and the illegal activity. People v. $1,124,905 U.S.C. and One 1988 Chevrolet Astro Van, 177 Ill.2d 314, 685 N.E.2d 1370 (1997)
Defending Against a complaint for forfeiture
The first line of attack for the claimant is the sufficiency of the complaint and whether it can be dismissed under 735 ILCS 5/2-615, Motion with Respect to Pleadings, and/or 735 ILCS 5-2-619, Involuntary Dismissal Based on Certain Defects or Defenses. For example, in Illinois the positive result of a dog sniff test on currency is not sufficient to show a cause of action for forfeiture. People v. $30,700 U.S.C., 316 Ill.App.3d 464, 736 N.E.2d 137 (1st Dist. 2000). This position is also adopted by many courts around the country, including the District Court for the Norther District of Illinois. See, United States v. $506, 231 U.S.C., 125 F.3d 442 (7th Cir. 1991)
If the complaint is not dismissed on the pleadings, the case then proceeds through the discovery phase; that is, the gathering of evidence through depositions, interrogatories, and document production requests, and finally a trial.
At trial, the government must prove the property is forfeitable. If the government meets its burden, the claimant must then prove, by a preponderance of the evidence, the property is not subject to forfeiture.
If the judge or jury determines that the property is forfeitable, then the claimant may raise the issue of an 8th Amendment violation. The 8th Amendment of our federal constitution protects individuals against excessive fines. The United States Supreme Court has ruled this protection applies to forfeiture cases. United States v.Bajakajian, 524 U.S. 321, 118 S.Ct. 2028 (1998) A forfeiture violates the 8th Amendment of the federal constitution if it is grossly disproportional to the gravity of the offense. Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801 (1993)