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Playing with a different set of rules

On May 16, 2013, in federal, by Scott Alexander Meiner

Curious ruling out of Nebraska:

Claimant argues that the Complaint should be dismissed because the United States did not timely notify Claimant of its intent to initiate forfeiture of the Defendant currency. Section 983(a)(1)(A)(iv) of the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) provides, “In a case in which the property is seized by a State or local law enforcement agency and turned over to a Federal law enforcement agency for the purpose of forfeiture under Federal law, notice shall be sent not more than 90 days after the date of seizure by the State or local law enforcement agency.” A claimant is entitled to judicial relief if he received inadequate notice. Section 983(e) states:

(1) Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person’s interest in the property, which motion shall be granted if – - (A) the Government knew, or reasonably should have known, of the moving party’s interest and failed to take reasonable steps to provide such party with notice; and (B) the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.  18 U.S.C. § 983(e)(1).

The circumstances surrounding this case do not support dismissal of the Complaint. The Defendant currency was seized by law enforcement on November 28, 2011. Following the seizure, the United States attempted to notify Claimant by sending written notice to multiple addresses on several dates, including January 9, 2012, February 29, 2012, and March 16, 2012. Claimant ultimately received notice on approximately March 6, 2012, ninety-nine days after the November 28, 2011 seizure. It is apparent that the United States reasonably attempted to notify Claimant within the ninety-day time frame. Moreover, the delay in Claimant’s receipt of notice was minimal. United States of America v. $63,530.00 In United States Currency, No. 8: 12-CV-201 (D.Neb. May 10, 2013).

The memorandum and order is silent on which forfeiture notice(s) the court considered reasonably calculated to reach the claimant within the ninety-day time frame contemplated at 18 U.S.C. § 983 but one hopes that the court does not accept the latter notices, both apparently sent more than ninety days from the seizure, as probative of reasonable attempts. The opinion is equally silent on which notice(s) the claimant received and why the court believes it is apparent that the United States reasonably attempted to notify the claimant within the ninety-day time frame.

The court does, however, seem dismissive of the ninety-day deadline that Congress imposed on the Government pursuant to the Civil Asset Forfeiture Reform Act of 2000–which seems a bit unfair in light of repeated Eighth Circuit holdings “that district courts may require claimants in forfeiture proceedings to comply strictly with [the Supplemental Rules] in presenting their claims to the court.” United States v. $1,000.00 Refunded to Mango Creek Properties, Inc., No. 8: 11-CV-372 (D. Neb. Jan. 27, 2012) quoting United States v. Three Parcels of Real Property, 43 F.3d 388, 391 (8th Cir. 1994).


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