US v. $31,000 in US Currency, et al. (6th Circuit, filed 9/20/17), In this Asset Forfeiture Case, the Court Finds Dismissal of Challenge to Forfeiture Improper when Claimants Have Article III and Statutory Standing to Challenge. Also, Wow! The Government Arrogance in Just Taking Shit That Doesn’t Belong to Them and Then Complaining About It.

It is unbelievable to me how utterly arrogant and entitled the federal government is when it comes to taking property without any reasonable suspicion, much less probable cause, that a crime has been committed.  This conduct is outrageous.  Excellent lawyering on the part of James R. Willis who represented two complainants here. But, as the facts of this case show, if the feds take your property, GET A LAWYER IMMEDIATELY.

The facts are straightforward: Both complainants, Wiggins and Allison, were at the airport in Cleveland getting ready to fly to Orange County, California.  They each had prior felony drug convictions, and they were being followed by the DEA. There are significant material disputes about what exactly happened, but essentially they were both approached, separately, while in the airport. DEA agents state the encounters were “consensual” and that they both “consented” to the search of their effects that resulted in the DEA taking $43,000 from them ($33K from Wiggins, $10K from Allison).  Wiggins and Allison deny that these were consensual encounters.  From the DEA’s version of events, there were some inconsistencies in their accounts of where the money came from.  Of course.  There are always “inconsistencies” when the government is suggesting you’re a criminal so they can take your money. Keep in mind, there was never even an allegation that they were involved in any criminal activity.

The government filed its civil in rem forfeiture complaint.  In response, Wiggins and Allison filed verified claims and they both asserted ownership interests in the money.   They also both claimed that the searches were illegal.   The court held a status conference and a scheduling order was put in place.  Prior to the expiration of the discovery deadline, the government moved to dismiss their claims because they did no more than make “a naked assertion of ownership.”  The district court agreed and struck Wiggins and Allison’s claims.  They appealed.

To challenge an in rem action, a claimant must have Article III standing (just like any federal plaintiff). The “irreducible constitutional minimum of standing” requires (1) a “injury in fact,” defined as the “invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical”; (2) “a causal connection between the injury and the conduct complained of”; and (3) a likelihood “that the injury will be redressed by a favorable decision.”  Lujuan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).  In a case like this, that means a claimant must have a colorable ownership, possessory or security interest in at least a portion of the defendant property.”  See United States v. $515,060.42 in U.S. Currency, 152 F.3d 491, 497 (6th Cir. 1998).

Also, a claimant must comply with Rule G of the Federal Rules of Civil Procedure’s Supplemental Rules for Admiralty or Maritime Claims and Civil Forfeiture Actions (the “Supplemental Rules”).  These rules essentially provide the procedural roadmap for how to raise a challenge to the government’s forfeiture.  If a claimant complies with this Rule, then it has statutory standing. But careful! “A single deviation from the statute’s requirements deprives a claimant of statutory standing.” See, e.g., One 2011 Porsche Panamera, 684 F. App’x at 506-08 (striking a claim for failure to file a timely answer).

Here, the claimants did what they were supposed to do– they filed claims that complied with the statute.  But, for the government that wasn’t enough.  They thought they needed to be more specific in their claims so they could figure out how to best construct their interrogatories so they could challenge the claims.  Puh-leeze.  The Sixth Circuit has decided to follow the lead of the Seventh Circuit and hold that at the pleading stage, a verified claim of ownership is sufficient to satisfy Article III and the procedural requirements of Rule G.  Full stop.  That’s it.

But the Court continued:  It noted its “concern” that the government’s approach would turn the burden of proof in forfeiture actions on its head.  Under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the government has the burden of proving by a preponderance of evidence that the subject of a civil forfeiture action is, in fact, forfeitable.  The government here was asking the Court to essentially relieve them of that burden by putting the onus on the claimant to meet a higher pleading standard. This Court was having none of it:

“We have no doubt that the lawyers of the United States Attorney’s Offices within the Sixth Circuit have the capacity to draft useful interrogatories that will either confirm a claimant’s interest in the res or expose the futility of the claim.  They do not need our hand on the scale.”

This is an excellent opinion and appears to me to be yet another incremental step in finding the whole civil forfeiture apparatus deeply constitutionally flawed.  If the government had its way, these guys, who had not even been accused of wrongdoing, were not even going to be allowed to challenge the government’s actions in taking a substantial amount of money from them. But, important take-away.  If this is happening to you, exercise your right to remain silent.  The courts have looked at “inconsistent accounts of where the money comes from” as a basis to deny Article III standing.  Best to let a lawyer talk for you so there won’t be any of the “miscommunications” that obviously happened in this case.