The Oklahoma Bar Journal March 2023

C riminal L aw

When in Doubt, File a Claim: Administrative vs. Judicial Federal Forfeitures

By Spencer T. Habluetzel

I F IT HAS NOT ALREADY HAPPENED, you may someday have a client who asks you for return of property seized by the federal government. The client might be an innocent owner who let someone borrow their property or an innocent lienholder who did not know the property was at risk of being seized. You could seek return of the property in the admin istrative forfeiture proceeding, but for the U.S. Department of Justice (DOJ) agency forfei tures, you should almost always pursue a judicial forfeiture proceeding by filing a claim.

administrative proceeding because they are uncontested. 5 In an admin istrative forfeiture, an individ ual may submit a “Petition for Remission or Mitigation” or file a “Claim.” 6 A petition offers an expedited administrative proce dure to informally seek return of property without judicial action. 7 A petition does not contest the for feiture, while a claim initiates the judicial process to decide whether the property should be forfeited. 8 The problem with adminis trative federal forfeitures arises because for some federal agencies, there is no right after denial to pro ceed in court or appeal. Petitions do not contest the forfeiture, but they are like pardons in that they are discretionary. 9 “Congress granted complete discretion to the Attorney General to remit or miti gate forfeitures as an ‘act of grace,’ and no judicial review of remission decisions is available.” 10 Courts “may only determine whether the

Federal forfeitures are compli cated. Generally, there are three ways to forfeit property: adminis trative (non-judicial, in rem ), civil (judicial, non-conviction, in rem ) and criminal (judicial, post-conviction, in personam ). 1 “No single law autho rizes federal criminal forfeiture.” 2 Instead, there are multiple federal statutes, regulations and proce dures applicable to forfeitures. 3 The DOJ Asset Forfeiture Policy Manual states, “The administrative forfei ture process promotes the efficient allocation of Department resources and discourages undue burdens on the federal judicial system while affording interested parties a prompt resolution through the remission process.” 4 Usually, federal forfeitures begin as an administra tive proceeding.

agency followed the applicable procedural requirements prior to forfeiting the property.” 11 As a result, if the reviewing forfei ture officer denies the petition for an arbitrary or incorrect reason, there is little the claimant can do to contest the denial other than for improper notice. 12 Whether the dis cretionary treatment of administra tive petitions is a problem depends on the seizing agency’s regulations. Under DOJ and its sub-agency 13 reg ulations, there is no right to proceed in court after a petition denial and no right to appeal like you can do in court. Conversely, U.S. Customs and Border Protection (CBP) regulations do allow the claimant to proceed in court after petition denial. 14 COMPARING DOJ AND CBP ADMINISTRATIVE FORFEITURE PROCEDURES In both cases, after a seizure, DOJ and CBP will send a seizure notice that details the possible

ADMINISTRATIVE FORFEITURES

The vast majority of all federal forfeitures begin and end as an

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THE OKLAHOMA BAR JOURNAL