The Oklahoma Bar Journal March 2023

Thus, while filing a claim may be necessary to protect the right of judicial review, resolution and return of property will likely take longer in a judicial forfeiture proceeding than an administrative proceeding.

worth filing both a petition and a claim. 31 The additional time to pre pare both documents is relatively short as the claimant can utilize similar answers in both docu ments. However, with CBP, there is no need to file a claim unless the petition is denied because the CBP letter currently allows for filing a claim after denial of the petition. While the government’s desire to avoid unnecessarily burdening the courts or wasting resources is admirable, claimants must be aware that the DOJ’s rules make administrative forfeitures a poten tially risky proposition. Failing to pursue judicial forfeiture means the claimant is ultimately trusting an unknown agency employee to exercise discretion in the claim ant’s favor. 32 Additionally, some times pursuing judicial forfeiture can make the government view the proceeding as more trouble than it is worth. For example, in one instance after a lienholder filed a claim, the DOJ withdrew its interest in the property even though there was substantial pos itive equity available to the DOJ after satisfying the lien. If the DOJ really does desire to save time and avoid judicial forfeiture proceed ings, then all the DOJ has to do is change the seizure notice letter

under §853(n). 29 In a criminal for feiture, the forfeiture determination is not made until after the verdict or plea of guilty, and the determi nation of third-party interests are deferred until even later. 30 Thus, while filing a claim may be neces sary to protect the right of judicial review, resolution and return of property will likely take longer in a judicial forfeiture proceeding than an administrative proceeding. CONCLUSION In certain situations, such as for innocent lienholders, the govern ment does not usually deny admin istrative petitions for remission. But because there is no right to review petition denial or for subsequent judicial proceedings in DOJ for feitures, claimants should always file claims after DOJ seizures. It is just good business (and a way to avoid a potential malpractice claim). The claim forces the forfei ture into court, giving the claimant the opportunity for judicial review by law instead of discretionary administrative review. The contents of a petition and a claim are sufficiently similar that they can be drafted in tandem. The DOJ may still consider remission or settlement concurrently with a judicial proceeding, so it is still

provide a claim deadline expiring after petition denial, but 18 U.S.C. §983(a)(2)(B) provides that the claim deadline is the date set forth in the seizure letter. 25 Therefore, a claim ant of property seized by the CBP does not have to immediately file a claim in order to preserve the right to judicial review of the forfeiture and related appeal. JUDICIAL FORFEITURES A claim forces the seizing agency to refer the matter for civil or crim inal judicial forfeiture proceedings, and failure to do so after a certain time requires releasing the prop erty. 26 Specifically, 18 U.S.C. §983(a) (3) provides that the government must release the property unless it files a civil complaint, obtains a criminal indictment containing forfeiture allegations or otherwise takes appropriate steps to preserve its right to maintain custody of the property per the applicable criminal forfeiture statute. 27 Civil judicial forfeiture proceeds according to the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions and the Federal Rules of Civil Procedure. 28 Criminal judicial forfeiture proceeds under 21 U.S.C. §853 and Federal Rule of Criminal Procedure 32.2, and third parties may assert interests

28 | MARCH 2023

THE OKLAHOMA BAR JOURNAL