Courthouse Steps Preview: Culley v. Marshall

Which Test is it Anyway? Civil Asset Forfeiture and the Right to a Prompt Post-Seizure Hearing at the High Court.
The Court will hear argument on Monday, October 30, 2023, in Culley v. Marshall. Petitioners Halima Culley and Lena Sutton contend police seized their vehicles and held those vehicles for more than a year without judicial oversight. The Respondents assert that those vehicles were seized because they were being used to traffic narcotics and then Petitioners sat on their rights. Ultimately, the state court denied the Petitioners a post-seizure hearing based on the Sixth Amendment speedy-trial test of Barker v. Wingo, 407 U.S. 514 (1972). The Petitioners contend the court employed the wrong test and they should have received a prompt post-seizure hearing under the Due Process Clause.
Accordingly, the Question Presented in the case is: “In determining whether the Due Process Clause requires a state or local government to provide a post seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983), and Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), as held by at least the Second, Fifth, Seventh, and Ninth Circuits.”
Stef Cassella, CEO of Asset Forfeiture Law, LLC, and Robert Johnson, Senior Attorney at the Institute for Justice, joined us for an an exciting preview of the oral argument in Culley. The discussion was moderated by Adam Griffin, Constitutional Litigation Fellow at Pacific Legal Foundation.
Featuring:

Stefan Cassella, CEO, Asset Forfeitrure Law, LLC
Robert Johnson, Senior Attorney, Institute for Justice
Moderator: Adam Griffin, Constitutional Litigation Fellow, Pacific Legal Foundation

Episode Transcript

(00:01):
Welcome to TeleForm, a podcast ofthe Federal Society's Practice Groups. I'm Nick
kes Barrett, Vice President and Directorof Practice Groups at the Federal Society.
For exclusive access to live recordings andpractice group TeleForm programs, become a Federal
Society member today at fedsoc dot org. Hello, and welcome to today's Federal

(00:21):
Society virtual event. Today October twentyfourth, twenty twenty three, we are
excited to present a courthouse Steps previewrecap in the case of Kully v.
Marshall. My name is Jackapeazi andI'm an assistant director of Practice Groups at
the Federal Society. As always,please note that all expressions of opinion are
those of the speakers on today's call. After our speakers have given their remarks,

(00:43):
we will turn to you, theaudience, for any questions that you
might have. If you do havea question at any point, please type
it into the Q and a featureat the bottom of your screen, and
we'll handle those questions as we cantowards the end of the program. With
that, thank you all very muchfor being with us today. I'll turn
it over to to our moderator.Our moderator is Adam Griffin. A constitutional
litigation fellow at Specific Legal Foundation anda member of our environmental law and property

(01:07):
rights practice group. Adam over toyou, Thanks Jack, and thanks to
the Federal Society and to our audiencefor being here today for our courthouse steps
preview of Kully versus Marshall Court.This case concerns private property rights, civil
asset forfeiture, and due process oflaw. The question presented to the court

(01:32):
is whether, when the government seizesan individual's private property, whether or not
the government must afford that individual aprompt post seizure probable cause hearing, and
then also whether or not the determinationof whether that hearing is required falls under
the speedy trial test of Baker versusWingo or under the due process three prong

(01:56):
due process test of Matthews versus Eldridge. Here to discuss this very interesting topic
with us today are two of theleading lights in civil asset forfeiture. Robert
Johnson is a senior attorney at theInstitute for Justice, where he litigates free
speech and private property and other individualliberties. He is a well recognized expert

(02:16):
on civil asset forfeiture law and haslitigated numerous cases against the Federal government in
defense of individuals, private properties,private property rights. He filed an amicus
brief with the Institute for Justice inthis case, representing both his firm and
several of his clients that he hasrepresented in civil asset forfeiture cases prior to

(02:38):
Kully versus Marshall. Our other speakeris mister Stephen D. Cassella. He
is the CEO of Asset Forfeiture LawLLC. Mister Cassella is a well recognized
expert in civil asset forfeiture law.Prior to becoming CEO of Asset Forfeiture Law,
he was a federal prosecutor and anexpert in money laundering and civil asset

(03:00):
forfeiture. He's published widely on thesubject of civil asset forfeiture and has published
textbooks and is a well recognized expertin federal prosecutor law and anyone interested in
the subject to civil asset forfeiture.Very grateful to both of our speakers for
being here today and to talk aboutthis interesting case. Mister Johnson, the

(03:21):
floor is yours great, Thank you, Adam, so is. I think
most listeners are probably aware. Civilforfeiture is a legal mechanism that allows the
government to take people's property based onsuspicion of a crime, and then to
keep that property forever without having toconvict anybody of anything. So in civil

(03:44):
forfeiture cases, the property itself isthe defendant, and that results in strange
case names like United States versus fourthousand dollars or State of Alabama versus One
Dodge Durango. And because the itselfis the defendant, ordinary concepts of due
process and fair play go out thewindow. So the normal criminal standard of

(04:12):
guilt beyond a reasonable doubt is foundnowhere in civil harboriture law, and in
fact, in many cases, propertyowners in forfeiture cases actually have to prove
their own innocence as a defense inorder to get their property back. And
as particularly relevant here, when you'rearrested, the government is required to give

(04:36):
you a hearing where you can contestthe basis for your arrest within a reasonable
time after your arrest, ordinarily fortyeight hours. But in the forfeiture context,
the government can take property and thenit can hold it for months or
even years without providing any hearing atall. And that is the question in

(05:00):
an issue in this case culling atthe Supreme Court the question is, Cully,
is whether in civil forfeiture cases,when the government takes your property,
the government should be required to providea prompt post seizure hearing where you can
contest the basis for the seizure andthe basis for the continued retention of your
property, just like the government hasto do when a person is arrested.

(05:25):
So the facts of sudden Cully.Rather, it's two individuals of who are
residents of Alabama, whose vehicles wereseized not because they did anything wrong,
but because other people allegedly violated thelaw. So Lena Sutton had her vehicle

(05:45):
seized because her friend allegedly adult drugs, and Heleimacully had her vehicle seized because
her son allegedly adult drugs. Andthen their vehicles were held for fourteen months
and respectively without a hearing. Now, the law in Alabama has since been

(06:06):
amended to provide for prompt hearings,but their case is not moved because they're
still seeking damages. And this remainsvery much a live issue in other jurisdictions,
and that's something that we highlighted inthe brief that we filed with the
court. So as Adam mentioned.The brief that we filed was on behalf

(06:26):
of both the Institute for Justice andalso two clients in ij cases, and
their stories show the importance of thequestion that's before the court right now.
The first client is Stephanie Wilson.Stephanie's vehicle was seized by the city of
Detroit because the father of her childrenand her ex boyfriend allegedly purchased drugs,

(06:51):
and then after her vehicle was seized, it was held for almost two years
without any hearing. Now. Stephanierepeatedly asked to see a judge during that
time, but those requests were deniedand instead she had to go to meetings
with prosecutors, and at those meetings, the prosecutors offered to give the car

(07:13):
back, but only if she wouldagree to settle for a payment of eighteen
hundred dollars. Stephanie turned those offersdown. She finally saw a judge after
two years, and the judge orderedthe car returned, but at that point
the car had sat for so longin a Detroit impound lot that it was
no longer operable. The other clienton our brief is Gerardo Serrana. Girardo's

(07:40):
car was seized at the border byCustoms and Border Patrol agents because they found
five bullets that Gerardo had forgotten inthe center console of the car, and
they claimed that this made Girardo aninternational arms smogler and made his truck subject
to forfeiture. And again, Girardo'scar was held over two years without any

(08:01):
kind of a hearing, and heonly got it back when he filed a
federal class action lawsuit, at whichpoint the government agreed to give the car
back. And these stories aren't unique. The brief highlights many stories of IJ
clients and others where the government hasheld property for months or years without hearing.
And in fact, this kind ofdelay is baked into the law.

(08:24):
Federal forfeiture laws that apply to mostseizures give the government at least one hundred
and sixty days to file a forfeitureaction after property has been seized, and
then, of course, as anylawyer knows, bunch of cases been filed,
you're going to be waiting months oryears to actually get to a decision.

(08:45):
So these delays are not just common, they're an expected part of the
law. And these delays impose importantcosts. People have to rent a car
or buy a new car. Theyhave to miss all kinds of events family
events, work events. People relyon their cars to get to work.

(09:05):
They may lose their job if theydon't have a car. People also have
to give up all kinds of businessopportunities is their properties being held. Just
as an example, we had anij client who had seventy five thousand dollars
that was seized at the airports.Eventually returned, but she was taking that
property with her to Nigeria where shewas playing to open a medical clinic and

(09:30):
that's her home country of Nigeria,and she had to give up that plan
because her money was seized. Theseare just examples. The other problem that
we seized because of delay is thatpeople give up and so often what we
see and what we saw in Stephanuscase, is that the government will offer
to return property but only if peopleagree to make some sort of a monetary

(09:52):
payment or in the case of seizedcash, agree to forfeit some percentage of
the whole. So we've had clientswho've been offered to he have seized cash
return but only if they agreed toforfeit half of it. And these settlement
offers are very coercive when you haveto wait months or years for hearing,

(10:13):
because some people just can't afford towait months or years to get their property
back, even if they've done nothingwrong. So that's the problem as a
legal matter. Very quickly, who'sright? And on that? I'm actually
just going to defer to the recentopinion of the Sixth Circuit in Stephanie Wilson's

(10:35):
case. The Sixth Circuit there,i think, undoubtedly with an eye to
this Supreme Court case, held thatthe Constitution requires a prompt post seizure hearing.
The majority there said that a hearinghas to be held within fourteen days
after property has been seized, andJudge the Park occurring said actually, no,

(10:56):
it should be held within forty eighthours. And both opinions make two
points in support of this conclusion.The first is an originalist point. Both
of the both the majority and theconcurrence point out that historically the kind of
delays that we see in modern forfeiturelaw were just unheard of, and that

(11:18):
there were procedures in early American forfeiturelaw, which incidentally was limited to the
pirate shifts and things that have nothingto do with the kinds of crimes that
today can lead to fortiture. Buteven putting that aside, early American porfeiture
law allowed for speedy procedures to allowfor the quick resolution of forfeiture cases.

(11:41):
And then the second point is onebased on precedent. The Supreme Court's due
process cases hold that due process requiresthe meaningful hearing at a meaningful time,
and hearing that occurs years after yourproperty has been seized. Just isn't a
mean, meaning full time to havea hearing. I think ultimately the point

(12:05):
that I would make is that modernorfiture procedures are an anomaly. There are
no other areas of the law wherethe government can just take your property and
hold it for years without giving youany kind of a hearing. Ordinarily,
the government has to give you apreseizure hearing, but at the very least
they should have to give you aprompt post seiz hearing. And civil forfeiture

(12:28):
is an anomaly, and in thisrespect it needs to be ended. Thank
you, mister Johnson. Great presentation, mister Cassella. The floor's yours well,
thank you very much. First ofwhich, want to begin by making
one correction to what Rob said ina civil forfeiture case, as most people

(12:48):
watching, No, the government cannotsees based on mere suspicion. It can
only sees based on probable cause,the same standard that applies to making an
arrest of an individual. And itcannot forfeit the property permanently based on mere
suspicion. It can only do soafter it proves on the ponderance of the
evidence that a crime occurred and theproperty was involved in the crime. The

(13:11):
defendant does not or the property ownerdoes not have to prove his innocence.
That is, the government that hasthe burden of proving that the property is
subject to forfeiture. And as misterJohnson knows, the Congress changed the law
to make that the law twenty threeyears ago, not what he is referring
to as the law that existed backin the twentieth century. But we're not

(13:31):
here to talk about that. We'rehere to talk about the basis for making
a seizure and then following it upwith an immediate post seizure probably cause hearing.
The cases before the Supreme Court aresimple cases. Sully, Sorry,
Sutton and Cully. Our case isinvolving simple facts. Somebody was transporting drugs

(13:54):
in a car in one case methamphetamine, in the other case marijuana. The
police sees the are the owner,who was somewhere else at the time,
says, hey, I need mycar to get to work. I think
the seizure was illegal, so Iwant my car back. That I have
a right to contest all of thisin some hearing before a judge someday is
nice, but I need my carnow. The seizure was illegal and I

(14:16):
should have the right to have thatimmediate hearing. So it is easy to
see how, in a simple case, under a balancing test, the request
for immediate hearing would make sense.What, after all, is the burden
on the government to grant such ahearing in such a simple case. Indeed,

(14:37):
for twenty plus years this issue hasbeen percolating in the federal courts,
and courts have been granting such hearingsin similar state civil corporture cases. The
Second Circuit did so in the Crimstockcase, with the author was justice so
to my r then on the SecondCircuit, the Seventh Circuit did so in
the Smith case, and as wejust heard in the Ingram case, the

(15:01):
Six Circuit did so recently as well, and It's likely that the Supreme Court
in this case will say that promptpost seizure hearing makes sense because of the
simple facts. But the plaintiffs arenot seeking a probable cause hearing rule that
would apply only in simple state casesinvolving automobiles, where they're seeking as a

(15:22):
general rule that under Matthew versus Eldridge, there is a probable cause hearing requirement
in every civil corfeture case. Butwhat Matthews requires in a simple case is
maybe not what it requires in afar more complicated case. Indeed, Justice
sotomayor herself in the Krimstock case acknowledgethat in the holding in that case that

(15:46):
it's holding might not apply in amuch more complicated federal case simply because it's
more complicated. What I believe iswhat the Court should hold in this case
is that where there are complicated factualissues, standing issues in affirmative defenses such
as arise in almost every federal civilarbiture case, the balance required by Matthews

(16:08):
is the speedy trial rule of Barkerversus Wingo, coupled with the due process
protections that have already been written intofederal forfeiture law. Now As I say,
Krimstock and the other cases have beenpercolating in the federal courts for twenty
plus years. But in all ofthat time, in all of that time,
no court has held that there's aright to an immediate post seizure hearing

(16:30):
in a federal civil arboriture case.Now why is that? Well, lots
of reasons. First, the administrativeburden. I don't know how often Alabama
seizes a car from a drug dealerin Alabama, but the DEA makes fourteen
thousand seizures a year, the FBImakes four thousand seizures a year. The
last time I look, the CustomerService made sixty thousand seizures a year.

(16:55):
To couple that with what the IRS, the Secret Service, Security, the
FICIENT, and Wildlife Services so forth, you're talking about an enormous administrative burden
if every case required an immediate postseizure hearing. Second, warrants. In
most most federal civil arborture cases,the seizure is pursuant to a warrant.

(17:17):
The risk of erroneous deprivation is minimizedif the seizure has already been authorized by
a federal magistrate judge who has issueda warrant. Third, in these federal
cases, there's often a parallel criminalcase. The forfeiture may be begun as
a civil case, because that's governmentpolicy to begin every seizure of property as

(17:37):
a civil or administrative forfeiture, becausemost of them are going to be uncontested,
But there's often a parallel criminal case, and there is a great risk
that if you had an immediate probablecause hearing, it would be used as
discovery by the defense and it wouldjeopardize the criminal investigation or the criminal prosecution.
Fourth, there are deadlines. Thegovernment cannot these property and sit on

(18:00):
it indefinitely. Also, twenty threeplus years ago, Congress required the government
to commence the civil forarpature action withinsixty days if and someone files a claim,
it must thereafter, within ninety days, file an action either criminally or
civilly in federal court. If thegovernment does not comply with the guidelines,
there is Rule forty one G ofthe Federal Rules of Criminal Procedure, which

(18:22):
do give the property owner the veryright that mister Johnson suggesting they should have
the right to a hearing because thegovernment has not acted promptly enough as required
by law. Most important cases havenot been applied to federal law because federal
law contains a hardship provision. Ifsomeone's property is seized and it's a car

(18:45):
or something that he needs immediately toget to work or to school, he
has a right to petition the seizingagency and if not successful there petition the
court for the immediate release of theproperty pending trial. This has nothing to
do with the merits, nothing todo with whether there's probable cause. The
only issue is whether there is ahardship and the person needs the property in
order to get about his daily business, and there is some way of guaranteeing

(19:08):
that the property is not going todisappear while the case is pending Next there's
a remission process under federal law.You don't need to make a claim,
you don't need to go to court, you don't need to have a prosecutor
involved. You can simply petition theseizing agency for the immediate release of the
property, and the courts of recognizedtime and again that that is a streamline

(19:29):
process that makes it easy for peoplewho have a justifiable reason for suggesting that
the seizure was incorrect to get thatproperty back without going through all of the
due process that is required in afederal case. But the most important reason
why federal cases have not recognized itright to a post seizure probable cause hearing
in federal civil forfeitures is because,as Justice Soto Mayor recognized, federal cases

(19:55):
are complicated. Yes, there aresimple seizures of fifty thousand dollars from drug
courier who stopped at the airport,but federal civil corporiture cases involved the seizure
of Russian of the yas from Russianoligarchs, of money used to finance terrorist
organizations like CAAMAS and Hezbollah, ofmoney going to sanctioned countries like Iran and

(20:15):
North Korea, international money laundering casesinvolving cryptocurrency and ransomware, the proceeds of
foreign public corruption that's found in theUnited States, as in the case of
Prime Minister Lazarenko from Ukraine or misterGeneral Abacha from Nigeria. The proceeds of
foreign organized crime invested in the UnitedStates, as in the Magnitsky case involving

(20:37):
Russian organized crime, the proceeds ofponzi schemes involving hundreds of victims, like
in the matter off cases, thereis a whole, well designed, orderly
process for litigating such cases, andshort circuiting that process to require a probable
cause hearing within days of the seizuresimply makes no sense. And that's particularly
the case because there is seldom inneed in those cases the immediate return of

(21:00):
the property, as there might bein the case of somebody's automobile that was
sived in Alabama. Also in federalcases, they're standing issues. In those
cases, the claim is not necessarilyfiled by someone who says, hey,
that's my car and I want itback. There can be multiple parties claiming
the property x spouses, creditors,trusts, shell corporations that are created in

(21:25):
bank secrecy jurisdictions, and so forth. With all those multiple claimants coming forward,
who gets the probable cause hearing?Do it have to be multiple probable
cost hearings? So the bottom lineis that except in the simplest cases arising
under state forfeiture statutes, as wesee in Cully and in Sutton, even
under a balancing test, there shouldbe no due process right through an immediate

(21:48):
pro seizure hearing. Let me makeone last point before I wrap it up.
Even with respect to the simplest cases, even with a case like the
one before us today, Sutton andIn calling this case is the wrong case
to be used to decide this issue. Why at most, at most the
property owners should have the right tocontest the legality of the seizure, was

(22:11):
their probable cause to believe that acrime occurred and the property was involved in
the crime, is not entitled toa hearing on every affirmative defense that conceivably
could be raised in the course ofthe litigation. The two cars in these
cases were seized because they were beingused to transport drugs. There was no
doubt about that. There was noquestion that they were being used to transport
drugs, no question that the seizureswere legal, or that they were forfeitable

(22:34):
under state law. What the ownerswanted was an immediate right to assert their
affirmative defense that they were innocent ownerswho didn't know that their property was being
used for this purpose. But justas the government does not have to plead
the negative of an affirmative defense tocharge someone with a crime in a criminal
case, it does not need toshow the negative of an affirmative defense to

(22:56):
seize and retain property for forfeiture ina civil case. If a third party
could assert his affirmative defenses as areason to release the property, such as
the unison owner defense, why notevery other affirmative defense. That he acquired
the property after the crime as abona fiddie purchaser for value, that the
statute of limitations had run the venueis improper, that the government missed the

(23:19):
filing deadlines, that the forfeiture wouldviolate the excessive fines clause of the Eighth
Amendment. None of those are appropriateto raise at the probable cause stage,
where you're just questioning whether or notthere was a legal legal seizure of the
property. Based on probable cause,it is subject to forfeiture. So the
point is this, in this case, even if the Supreme Court were to

(23:41):
hold that there's an immediate right toa post seizure probable cause hearing, it
would do the plaintiff's no good.There was probable cause for the seizures.
The process for determining their affirmative defensesis to litigate the case of trial.
So this is simply the wrong caseto be used to resolve the issue that
was presented. Thank you, Thankyou, mister Cassell A great presentation,

(24:08):
mister Johnson rebuttal. Yeah, Well, I guess i'd like to start by
just saying I think I sort ofappreciated that step ended with the last remarks
about innocence being an affirmative defense,because he began his remarks by saying that
I was wrong to say that incivil corporature cases, innocence is a defense,

(24:30):
so there was sort of a nicecircularity. We actually ended by contradicting
the very first thing that Steph saidin his remarks, so that I appreciated,
and I was going to start bytalking about how actually innocence is a
defense, but I think Steph justdid that nicely himself, so I'll just
leave that point alone. I don'twant to just very quickly say that.

(24:56):
Steph also said that I was wrongto say that civil cop whture allows the
government to take property based on suspicionof a crime. But obviously probable cause
is just suspicion of a crime,and I think every lawyer knows that the
standard for probable cause is not high. Steph also said that in many cases
property is ceased pursued to a warrant, but we know that in most cases

(25:18):
involving civil forfeiture, there is nowarrant, and in fact, the question
that the court is deciding is whatto do in cases where there is no
warrant for a seizure, which therewas no warrant. Obviously in Lina Sutton's
case, and Lina's and Allie mccully'scase, there was no warrant, in
Stephanie Wilson's case, there was nowarrant in Girardo Serrano's case. Either.

(25:45):
These are all warrantless seizures where youjust have an officer seizing cause because seizing
property because in the officer's subjective opinion, there's probable cause to think that the
property is somehow tied to a crime. Now, I think a lot of
Stef's remarks really focused on what Iwould consider sort of edge cases where property

(26:08):
is being seized because it's linked tosome sort of crazy cryptocurrency scheme or because
it's the property of Russian oligarchs.And the first thing I would say is
that's just those are not the typicalcivil forfeiture cases. And we know this
that the Institute for Justice has doneempirical research where we have obtained data on

(26:29):
forfeitures through the Freedom of Information Actand from states using their public records laws.
And we've compiled those into a reportcalled Leasing for Profit, and it
looks at civil forfeiture cases, andone of the things that it finds is
that most forfeitures are quite small,just a few thousand dollars. So the
typical forfeiture is not some yacht that'sbeing seized from a Russian drug oligarch.

(26:55):
The typical forfeiture is somebody's car orjust a few thousand in cash property like
the property that is an issue inthis very case in the court right now,
so you know. And I alsowould say, I think it's step
sort of remark that, well,in complicated cases, we can't have a

(27:15):
probable cause hearing. The first thingI would say, I guess is I
don't know why not. Why can'tyou have a hearing? If the government
thinks it has probable cause to takeproperty, surely it could particulate that probable
cause and a hearing. But ifthere is some circumstance where that's not possible,
then I think perhaps the government shouldargue that there should be an exception

(27:37):
in some classic cases, and thecourt might consider that but I don't see
why the sort of inarticulate concern thatthere might be some classic cases where we
can't have a hearing should be areason why somebody like you know, Nina
Sudden or Hlee McCully should have togo over a year without a hearing about
their CEASCR. Now, just acouple other small points. Steph also mentioned

(28:06):
the concern that what happens if there'sa parallel criminal case, and I would
say, in that case, thegovernment should just use what's called criminal forfiture,
which you know, our position atthe Issue for Justice is that all
fortiture should be criminal forfiture. Criminalforfeiture allows the government to take property as
part of a criminal proceeding, andthe Supreme Court is held that if there's

(28:27):
an indictment, the government can seizeproperty pursuing to that indictment if it's included
in the indictment, and then holdit for the duration of the criminal proceeds.
So you know, that's something thegovernment can do. Stuff also mentioned
that there are deadlines in the law, but I think I mentioned those in

(28:48):
my initial presentation, and the pointthat I would make is that those deadlines
give the government up to one hundredand sixty excuse me, at least one
hundred and sixty days. Basically,the way the deadlines are set up,
there's no way that a case isgoing to get to course or any faster
than one hundred and sixty days afterthe property has been seized. And one

(29:11):
hundred and sixty days is a longtime. And again just that just is
to the filing of the forfeiture complaint. Once the complaint is filed, then
you have a whole nother round ofservice, a claim an answer, and
then you have discovery, you havea fight over you know, do they
have standing or not, and thenyou're going to have you know, months

(29:34):
more proceedings until you get to atrial. So again, the way these
deadlines are set up is it notjust does it often take months or years.
It has to take months or years, and which is precisely why it's
so important to have the initial hearingright at the start of the process.
The other thing I would just veryquickly say is Steph mentioned the idea that

(29:56):
you can get a hardship hearing underfederal laws. One thing I would point
out is harsh appearance are not availableif the seized property is currency they are
available for some other kinds of property, but you have to prove quote substantial
hardship, which is a hyburden toprove. And I think this just ultimately
flips things around and puts the burdenin the wrong place. The burden should

(30:18):
be on the government if it takesyour property, to provide some good reason
why it took it. And ifthe government can't do that, then it
should have to give the property back. Okay, So those are kind of
my big picture of thoughts in responseto Steff Okay, Well, we could
debate all day whether or not thelaw is or is not what it says.

(30:42):
Section nine eighty three C of Titleeighteen says the burden of proof is
on the government. To prove acivil arbortry case, the government must prove
my preponderance of the evidence that acrime occurred and that the property was involved
in a crime. If the governmentsees is fifty thousand dollars from a drug
courier, it must prove that itwas drug money. And that's and the

(31:04):
innocent owner defense only comes into playafter the government has met its burden and
someone comes in and says, butI didn't realize that I was purchasing or
requiring money that was derived from acrime. I was a bona fiddie purchaser,
or I didn't realize my car wasbeing used to rob the bank.
I didn't know that that's what myfriend was doing with it when he went

(31:25):
out and borrowed it last night.So the government has the burden approved.
Now. These the cases that Icited are the typical civil corporature cases that
the federal government brings. I onlydid this for thirty years, so I
don't know why I would know,But that's what you do day in and
day out, these cases that involvecomplicated cases. Yes, there are some
simple cases involved, but if yougo to my website, you will find

(31:48):
page after page after page of listedof federal civil corporature cases that have nothing
to do with seizing five thousand dollarsfrom knuckle headed a traffic light, but
which have to do with complicated internationalmoney loan cases, Ponzi schemes, money
going to North Korea and so forthand so on. These are complicated cases.
Why can't you have a probable causehearing? Well, if the government

(32:08):
alleges that some Russian was selling electronicparts to a Russian military organization that was
actually being fronted by a Chinese company. You might not want to reveal all
the evidence you have in the firstprobablelek cost hearing, and it might be
a little bit difficult to do,but nevertheless, you have to establish probable

(32:28):
cause in the first instance to geta warrant, and having done so that
there's little reason to have a secondprobableok costs hearing just because someone who claims
to be acting in on the partof the Chinese corporation or the British Virgin
Island shell company that asserts an interestin the property, wants a probable cost
hearing. Why can't we just dothese cases as criminal cases? Because sometimes

(32:50):
the bad guy is not in theUnited States. Sometimes he's dead, Sometimes
he's a fugitive, Sometimes he's aforeign actor who wandered his property here.
Sometimes he's just unknown. In aransomware case, you might be able to
track the ransomware the cryptocurrency that wasused to pay the ransom, but have
no idea who the bad guys were, whether they were in Russia or Turkey
or tim bucktoo. You need civilforfeiture. You have to have civil forfeiture.

(33:15):
It is an essential part of thecriminal justice system. The Institute for
Justice wants to repeal civil farfiture.I understand that. I respect that.
I think that taking money away fromterrorists, money going to North Korea to
fund the nuclear weapons program, orare important things to do. Getting money
back to victims in cases where thedefendant who committed the crime is no longer

(33:36):
available, those are important cases todo. Others disagree, but you have
to have civil forfraiture if you wantto do those cases. And the last
thing about the hardship. This wasseriously debated twenty some years ago before Congress
as to under what circumstances should someonehave their right to the release of his
property, and the decision was made. He doesn't have to show lack of

(33:59):
pop the cause. All he hasto show is that he needs the property.
And there has to be a balancethough, to show that the property
is still going to be available forforfeiture at the end of the day.
So in the case of a vehicle, if he can post a bond or
in some ways show that he needsthe property but it can be secured,
then he gets the property back.But in the case of cash, there's

(34:21):
no way of determining that that's goingto be available, and so cash cannot
be released on a showing of hardshipthe government. However, you know,
as I've explained before, in caseswhere there's a real immediate need for the
property, as in the case ofsomeone who needs property to vindicate his six
Amendment right to counsel because he hasa need to hire an attorney in a
criminal case, that's an exception tothe general rule. And there is a

(34:44):
right to a probable cost hearing.It's called the Jones Farmer rule after two
cases from the tenth in the FourthCircuits. So there is a right,
but you require a substantial hardship becauseotherwise you get what happens in some real
cases. You can go look themup. Some one says, I need
my automobile in order to get towork. Well, wait a minute,
it's a Mercedes convertible. Why andyou have two others? Is that a

(35:07):
substantial hardship. Maybe you can takethe bus, Maybe you can get a
ride from a friend. It's onlyin cases where somebody really needs the property
that we have this balance between whatis a real hardship and what's the government's
interest in preserving the property, andthat's been passed on by Congress, and
they came up with a rational compromisethat balances both sides of it. The

(35:30):
bottom line is, there is aprocess for litigating all of these issues,
from the merits of the forfeiture tothe standing issues, to the affirmative defenses.
And rather than short circuit that processby having an immediate probable cost hearing
in the typical criminal a civil forfeiturecase brought by the federal government which involved

(35:52):
complex issues, we should just deferto the process that has worked so well
and that no court has ever heldis improper. In a simple case involving
someone who says, hey, youtook my car, but it's the wrong
car, then give them a hearingand then we should be done. Okay,
So on this point, uh,what is each of your so,

(36:16):
mister Casela, you would kind ofagree that in some of these simple cases
a prompt post seizure probable cause hearingmight make sense, But there shouldn't be
a categorical rule in all cases becausethere may be these foreign is there any
grounds for distinguishing those as a formalmatter, So if we weren't going to
use if you know, Matthews isthe case. I'm guessing you're going to

(36:37):
say that, it's just you wouldbalance out the equities and then on one
side of the balance. In thesecomplex cases, you wouldn't have this rule.
When it's these simple cases, itwould balance out. Is there any
kind of like historical analog for treatingthe sort of simple property cases differently than
you know, these international terrorist cases. Is there any? Is there any?

(36:58):
No, there's not. It's becauseit's such a market basket of different
considerations. It's not just the simplicityof the case versus the complexity of the
case. But as I mentioned,it's the administrative burden, the thousands and
tens of thousands of cases that areprocessed federally versus what they do in Alabama.
It's the opportunity for the exception ifyou have a sixth Amendment right,

(37:21):
it's the immediate need for the property. Is it a car versus is it
an investment accountant? Or is ita bitcoin wallet? You know, all
of those issues, The fact thatfederal law has a hardship provision and it
has a remission provision, which thestates don't generally have. All of those
things factor into whether or not there'sa right to a hearing. What I'm

(37:42):
afraid of is, you know,although it will keep me in business for
the rest of my life, isthat the Supreme Court will say right to
a hearing in this case. Butin general you have to go to this
balancing case, reviewing these thirteen factors, and will be litigating that until the
cals come home. So it's becausethere's no bright line. There's no bright
line rule. I think that ifon balance the right what you would come

(38:07):
up with, if you try tocome up with a bright line role is
it in cases that involve warrants,in cases that involve federal law, and
cases that involve international issues, andcases that you know, involve all the
things that I've been talking about,you generally don't need to have a probable
cause hearing, and it should bethe unusual exception in the simplest case.

(38:29):
And by the way, it shouldbe limited to the probable cause for the
seizure, not the probable cause tobelieve that this person is or is not
an innocent owner, or that thestatute of limitations is run or whatever.
That is simply the wrong standard.It would make no sense whatsoever to have
to you have to pretrial the entirecase before you got started if you wanted
to hear whether or not the personhad standing and the person had an affirmative

(38:53):
defense. Mister Johnson, do youhave anything the idea of sort of like
any kind of historical analog brightline rulethat you would offer in contrast and how
that would play into some of thesecomplex cases the mister Decelle's rising. Yeah,
So, I mean the first thingI would say is, I just

(39:13):
want to reemphasize that we have usingFOYA, we obtained a database. It's
called the CATS database, and it'sthe database that the federal government uses to
track every asset forfeiture case in theentire country. And we analyzed all of
that data. It took us years, and what we found is that the
average fortraiture at the federal level isjust a few thousand dollars. And you

(39:38):
know, yes, it's I'm surethat in Stepf's practice. The cases where
people are hiring lawyers and they're hiringyou know, expensive lawyers, and then
the Tarmament Justice is coming in withtheir forfeiture experts and it's being contested all
the way up through the courts.Those are the complicated cases, but that

(39:59):
doesn't mean that's the average case.The average case is a small dollar fortrature,
just like the cases that are anissue in the Callay case. And
so, you know, when we'redesigning a system, I think the question
is do you design the system aroundthe average case, the sort of normal

(40:20):
case, which is the small cases, or do you design the system around
the really expensive, sort of unusualcase where people maybe actually can afford to
hire a lawyer and come in andcan test it. And I guess what
I would say is it doesn't makesense to design what Steph is talking about
are basically the edge cases, andit doesn't make sense to sacrifice the new

(40:40):
process rights of most of the peoplewho are actually getting caught up in these
fortoriture cases because it would be inconvenientfor the edge cases. Whether you have
to have a bright line rule ornot, I mean, you know,
I guess it sounds like maybe Stephand I agree about this. I think
you do need to write mind rule. I don't think it makes sense to

(41:00):
sort of in every single case saywell, is this a case where we're
going to have a probable cause hearing. I don't think that's workable. I
think you might. You know,perhaps there are situations where the government could
come in and try to convince acourt that they should be there should be
an exception in this particular case basedon you know, the sort of particular

(41:21):
circumstances. But the sort of presumptionat least should be that you get a
hearing, and any departure from thatshould be something that government would have to
justify. I think that's more administrable, and it just makes more sense.
I mean, you know, atthe end of the day, I guess
I just don't understand what would beso difficult for the government to come in
and say, this is why wethink we know, this is why we

(41:45):
took this property, and this iswhy we think we should be allowed to
keep it. Well, the casesthat Rob's talking about are overwhelmingly state cases
that are adopted by federal agencies,the typical criminal case being a violation of
federal law, whether the federal seizureare the cases that I'm talking about,
Those adoption cases and the real simplecases that involve seizure a few thousand dollars

(42:09):
are overwhelmingly uncontested. I mean,what's the point of having a rule that
applies across the board that is governedby your view of what happens in the
eighty percent of the seizures that areuncontested. Eighty percent of the seizures by
the DEA are uncontested. Why isthat they see some a few thousand dollars

(42:30):
in a drug case, they sendnotice out that says, on the first
of May, we see sixty thousanddollars wrapped in rubber bands, two kilos
of cocaine and a handgun. Anyoneinterested in making a challenge to this can
follow acclaim in the following fashion,and eighty percent of the time nobody does
surprise. But we don't want thetail wagging the dog. The cases that

(42:52):
matter are the cases that we're talkingabout here, and that's you know,
if you have a very minor caseinvolving someplace where there's a real question whether
there's a showing and probable clause,then we can deal with that. But
you can't deal with that in tensof thousands of cases process by Customs,

(43:12):
Fish and Wildlife and all the otheragencies, including the DA and the FBI,
and in cases where there's no reasonto believe there's anything wrong with the
seizure and that would just be anincredible administrative burden that would be used as
discovery by defense counsel trying to getthe facts of an underlying criminal investigation before

(43:35):
them. And I want to getto our question. That was a great
back and forth, very interesting.Has the government raised any standing argument as
the car was returned after suit wasfiled? I think this is kind of
briefly touched on. I know thegovernments, I mean, I know that
the respondents have argued, you know, some standing and those kinds of Section

(43:58):
nineteen eighty three, not a thestake's not a not a person for the
suit purposes, because the government returnedthe car, why do they have standing?
So I think this in this casestanding is relatively uncontested because there's a
claim for damages that can proceed againstthe municipal dependants under monnel. And you

(44:21):
know this is this issue has beenup to the Supreme Court before, and
the last time it was up tothe Supreme Court they had to dismiss it
for mootness because the cars have beenreturned. But in doing so, one
of the things they specifically noted wasthere was no claim for damages in that
case. There is a claim fordamages here, So you know, I

(44:43):
don't think it can be seriously debatedwhether they're standing. I don't disagree.
I don't know anything different from whatRob is saying about the mootiness of the
case. And I know that theSmith case out of the Seventh Circuit is
the one is referring to that wasdismissed from mooteness ground ten years ago or
so. The Supreme Court is obviouslybeen looking for a case to resolve this

(45:05):
issue for years. Rob's case Serenowas one where they denied cirt last year.
That wasn't the right case. Thisone again is not the right case.
But nevertheless they've granted certain and we'llsee what they're going to do with
it. But all of these havebeen state cases. There hasn't been a
case involving federal seizure to which anycourt has applied the rule of an immediate

(45:25):
probable cause hearing. For the reasonsthat I've already mentioned. What the government
did raise in its amicus brief wasstanding in a different sense. That is,
you don't always know whose property itis that has been seized. You
seize jet engines being exported to theIslamic Revolutionary Guard, and all kinds of

(45:49):
people file claims, the exporter,the importer, the consignee, the person
who has the letter of credit,the shell company that claims ownership, and
so forth and so on, andthe difficulty in determining which of those people
has standing is the big part ofthe litigation of the case. Well,
you need to know that before youcan determine who's going to have the right
to a probable cause hearing, andit would be putting the cart before the

(46:13):
horse. You'd be litigating probable costswith a seizure in the when the issue
has been raised by someone who mightnot have standing to raise the issue.
And so the government has pointed outthat one of the reasons for not requiring
an immediate probable cost hearing is thatyou have to resolve the standing issue first,
depending on who's gotten notice and whohas responded to the notice within the

(46:35):
statutory period of time, just veryquickly. I mean, the way you
deal with that is that if thereare multiple claims, that obviously you need
to figure out tests and sort ofthe proceeding to figure out who to return
the property to. You know,I don't think anyone would dispute that.
But again, like the most commonsituation, that's not what's going on.

(46:57):
There's some the property is you're talkingabout cash that's sees from somebody who's holding
the cash. You're talking about acar that sees from uh, you know,
seas and it has a clear owneron the title. You know,
there's especially with vehicles, you know, most of these cases are about vehicles
that are being come you know,with this issue being brought up, and
with vehicles, there's no question whothe vehicle belongs to. And so again

(47:21):
I guess to me, it's justthe cases that Steph is talking about are
so often just these kinds of bizarreedge cases that you know, yeah,
I get it, those are thecases that Steph litigates, but those are
that's not the typical forfeiture case.And you know, to say that we
should hold you know, Lena Sutton'scar without a hearing because maybe they you

(47:47):
know, sees some jet engines thatwe're headed to Iran, and you know,
I just think that's ridiculous to beto be quite honest. Well,
my view, of course is theopposite. We should have a hearing where
we give the Isroamic Levendar's revolutionary Guardand probable cost hearing because there's some case
in Alabama involving somebody's car is whatI would call ridiculous. I guess I

(48:10):
just wonder why would it be sohard? I mean, assuming that the
Islamic Republican Guards shows up for theirprobable cause hearing, which seems unlikely,
presumably it would be pretty easy toexplain why the jet engines were seized.
Yeah, well who would show up? But of course would be the shell
company that claims to be the beneficialowner, even though it turns out that
they're incorporated someplace where you can't tellwho the beneficial owner is. But you

(48:32):
say that it's always obvious who theowner of a car is. It's just
not so. You see, isa car from a drug dealer, and
what you find out is it istitled in the name of his maiden aunt
from Vermont, who's never seen thecar and has no idea how to drive
a car with a standard transmission becausethey titled their property in the names of
nominees. That's the whole purpose ofthis. You know hundreds of pages of

(48:52):
case law on standing and on theinnison utter defense, because you've got to
establish it you're the real owner,not somebody who was in that nominated as
a nominee. That's the issue youlitigate in most of these cases. When
General Labatch's property is seized on itsway through the United States and an honest
way to the Channel Islands, theclaims were filed by trusts and then held
in the names of family members,and you had to determine what was the

(49:15):
nature of the trust and under whatunder what foreign or state law was to
try to established, and so forth. They are complicated cases. It's not
always obvious who the owner of theproperty is. Where it is obvious,
then you have a nice case tobring to the Supreme Court involving Mississaudi.
But you know, once again,she's not even contesting the legality of the
seizure. So why are we here? I guess from when I hear that.

(49:37):
What I hear it is sometimes wetake property and we don't know who
it belongs to, and we don'tknow why we think we should be able
to keep it, but we wantto have some time to figure that out.
No, you got to guess aswe know that a crime was occurred
and the property was involved in thecrime, and a civil of arboriture case,
the ownership of the property is irrelevant. It's it's the crime and the

(49:57):
connection between the property and the crime. Someone lost to raise an affirmative defense,
they have a statutory right to dothat on a due process right.
The Supreme Court has already said that. But it's the connection between the property
and the crime that gives rise toa forfeiture. That's why they're called in
ram forfeitures. So it seems tome it's if it's obvious that the property
should be forfeited, then it shouldbe fairly easy to establish probable cause.

(50:20):
And if it's not obvious, thenthe government shouldn't be taking the property in
the first place. And the hearingseems like an easy place to sort all
of this out. All right,great back and forth. So is So
we've talked a little bit about thisidea of a bright line rule that you
know that you can't. Both ofyou agree that we can't. Just you
can't have this litigating every case todetermine whether or not you even get a

(50:45):
hearing, and then determine whether there'sa hearing or not in every case.
Is Matthews, seems like a multifactor like balancing test So would you be
saying that this brightline rule emerges fromMatthews or is Matthews? Why is Matthew's
the right or wrong test? Andwhere would the brightline rule come from?
Regardless of what side of the brightlinerule you're on. Well, I think

(51:08):
that it's sort of a false dichotomyto say it's in either the Matthews test
or the Barker test. I thinkthat under any balancing test, you would
have to consider whether or not,given all the factors we've been talking about,
the Barker test is all the dueprocess that's required. That's a balance.

(51:30):
It's a balance between you know,the administrative burdens and all of the
complexities involved in the case and onthe one hand, and the right of
the person to an imediate probable causehearing. So you have a balancing test,
but the default would be that youdon't need a probable cause hearing in
a federal civil forfiture case because thosecases are more complex. And if Justice

(51:52):
Soto Mayora isn't a good authority onthat, then I don't know who is.
That's what she said in Krimstock.So I would say we would,
you know, if the Supreme Courtwants to codify what has been the evolving
rule for the last twenty years andsay that in state cases involving automobiles,
if people need to get to work, there's a right to a probable cause
hearing, but otherwise there's not,because federal cases are different than I would

(52:15):
be happy to live with that,Rob. Did you have a like about
Matthews and whether or not Matthews shouldapply every whether Matthews, Yeah, I
know, just processing his his positionme too, whether Matthews should apply in

(52:37):
every case, or if there's likeif under Matthew's this prompt post seizure hearing
is just always required. So I'mjust I'm kind of wondering because Matthew's test
is a multi factor balancing test.But then there's kind of this argument that
every case should have this probable causehearing, and I'm wondering how those how
those square does Matthews apply or doesthis rule apply and where does that come

(53:00):
from? Yeah, I appreciate thatwe've sort of forgotten the initial question.
Yeah, so I think that,you know, so, just for backgrounds,
the Barker test is a test thatthe Supreme Court developed in the criminal
context, and the Barker test isthe test that they apply when someone says,
you know, I've been held injail for years and I haven't gotten

(53:20):
a trial, a speedy trial,and you shouldn't be able to convict me
at all, you know, Andthe sort of the question the test that
the court applies to determine if you'vegotten a speedy trial. Separate from Barker
in the criminal context, the Courthas also held that people who are arrested
are entitled to a prompt probable causehearing if the government's going to hold them

(53:42):
pending trial, and that's those aretwo separate issues. Ultimately, I think
what the petitioners in Kulli are arguingfor, what we're arguing for is that
the same rule should apply when thegovernment takes your property. And Supreme Court
has already held at the Barker testapplies to the ultimate timeliness of the porporture
case. So if your property isheld for years and then you say it's

(54:07):
been too long to get to theactual trial, that's when Marker applies.
But there's a separate question of doyou get a prompt hearing when your property
is taking a probable cause hearing?Where the government has to just explain in
court why they took your stuff andwhy they're holding it for the years that

(54:27):
it's going to take to resolve theporporture case. And you know, whether
that's sort of analyzed under Matthews ornot. You know, I think Matthews
is one way to think about it, you know, to sort of take
this this question of are you entitledto a hearing? One way to think
about that is using Matthews and tosay, you know, balancing the Matthews
factor, it is just not thathard for the government to provide you with

(54:51):
a probable cause hearing where they explainwhy they took this property and it's going
to prevent all kinds of erroneous deprivations. So we should require that. I
think you can do that under Matthews. But the other way to do it,
and this is what Judge the partsays in his concurrence in Ingram is,
you know, forget Matthews. Let'sjust sort of look at this more
from a sort of property rights originalistperspective that the government can't just hold property

(55:17):
without giving you some sort of process. And so, you know, he
said within forty eight hours, thegovernment should hold a hearing, and he
didn't really apply Matthews. He justapplied the sort of bigger picture notions of
due process and what that meant ishistorical matter. So, you know,
does it have to be Matthews orcan it be some other way of sort
of thinking about it. I'm notsure, but I think that at the

(55:37):
end of the day, if youkind of look at this from a Matthew's
perspective, the Matthews factors way infavor of hearing. If you look at
it from an originalist perspective, historyways in favor of hearing. If you
look at it more just from theperspective of you know, what is the
due process of law? You know, due process I think requires some sort
of a hearing. So I'm notsure that the the test has to be

(56:01):
dispositive. That helps a question alsofollowing up on krim Stock. Do you
agree that the judge then judged outof my orers opinion in krim Stock leads
to the conclusion that federal cases aredifferent than state and state cases. You
might have this right, but infederal cases you do not, because the
logic doesn't logic of Krimstock doesn't applyto the federal context. So Judge Sonimer,

(56:23):
Judge Krimstock is a case that JudgeSodemurer decided when she was a judge
on the Second Circuit, and thatcase involved vehicle forfeitures under New York state
law. You know, very alot of factually very similar to the Colley
case, to Stephanie Wilson's case,and she held it that prop post seizure

(56:47):
hearings are required, and there arethere's a footnote in that decision where she
suggests that maybe federal law would bedifferent. She doesn't decide that issue.
It wasn't presented. There was reallyno occasion to decide that issue, obviously
because it wasn't a federal case.So I don't think that Krimstock leads to

(57:07):
that conclusion that federal cases would bedifferent. And you know, frankly,
it's just simply not true that mostfederal cases involve these sort of you know,
sort of elaborate circumstances involving jet enginesheaded to Iran. Those may be
again the cases that you know,steph is seen litigated, but you know,

(57:30):
the statistics are very clear that themost federal forfeiture cases are small dollar
drug seizures. Some of them areinitiated directly by the DEA. Some of
them are what Steff referred to asadopted seizures, where it's local law enforcement
is seizing property and then turning itover to the federal government for the federal

(57:52):
government to forfeit it. But eitherway, these are relatively small amounts of
money or property, and there's justno reason not to provide a hearing in
those types of cases. Rob,let me jump in because I want to
give you each a final opportunity tospeak. Sorry to cut you off there,
mister Cassello. We're coming right tothe end. We have a question

(58:13):
that Rob was kind of hitting on, and I wanted to make sure that
he got to address that question.And then each of you can have a
closing closing statement. And since Rob, since you got the first word,
I'll give you this question. Letyou make a closing statement, and then
we'll give the last word to misterCassello. TJ. Abernathy asks for Robert,
can you explain further how you usethe data for your result to claim

(58:36):
that most cases are small amounts?So where did you get you said you
foy ed, but where did youget the information from? DJ? I?
R. S dhs, and I'maware the federal government utilizes minimum thresholds
which are significantly high, when infact they would not take on a small
case to the deminimus value. SoI think you can see that question below
if you want to address that questionand then give any closing comments, and

(58:57):
then we'll turn it over to misterCassella for final remark. So the data
was again it came by a FOYAfrom the Department of Justice, and it's
their cat's asset tracking database and thedata has all the analysis. Is publishing
our reports called Policing for Profit.It's available on our website. Feel free

(59:20):
to check it out. It's veryexcellent. You know, in terms of
the deminimus thresholds, this actually cameup in a case I've been litigating recently
involving a bunch of seizures by theFBI. I know in that case,
the FBI agents testified that their thresholdfor forfeiture is five thousand dollars. So
you know, if property is lessthan five thousand dollars, they won't try

(59:42):
to forfeit it because it's not worthit. Five thousand dollars not a lot
of money, you know, Imean in the grand scheme of things,
if you're going to go out andyou're going to hire a lawyer, you're
going to end up spending more thanfive thousand dollars, which again, is
that stuff pointed out. Yeah,a lot of these cases are not contested.
That's why it's very expensive to hirea lawyer and to try to contest

(01:00:06):
a forfeiture, and so a lotof people just give up. And then
you start, on top of thatall these delays. You know, if
you're going to have to hire alawyer and it's going to take years,
and people just give up, Andthat's exactly why a hearing is so important.
Let me say this, No onedisagrees that there's a right to do
process in a civil forfeiture case,and that has been litigated for two hundred

(01:00:30):
years and it has been codified inthe Civil ascid corporature a format. The
government has to seize property based onprobable cause, generally with a warrant.
Unless one of the warrant exceptions applies, the government has to commence its action
within sixty days. The government hasthe burden of proof. There's a right

(01:00:50):
to a jury trial, there's aright to raise an affirmative defense. There
is a limitation on forfeitures by theEighth Amendment under the hassive fines claus And
if for any reason the property ownerprevails, they get their attorneys fees paid
for. That's a lot of dueprocess. The question is whether, in
addition to all of that, thereis a right to an immediate hearing after

(01:01:13):
the property is seized, rather thanrequiring the person to filew the claim to
establish standing, which is often thekey issue in these cases, and then
to put the government to its proofas to its ability to prove that there
was a crime that the property wasconnected to the crime. In the vast
majority of cases, there is nohardship and there's no reason to have a

(01:01:34):
hearing unless there is a showing ofhardship. And if there is a showing
of hardship, there is a hardshipprovision under federal law that allows the property
to be released even if there isprobable cost. So, except in the
very unusual situation, there is noneed to burden the process and to disrupt
this orderly process that has been codifiedto have a probable cost hearing immediately after

(01:02:00):
case. The fact of the matteris these involved complicated issues, and it's
not appropriate to put the government tothe showing of probable cause if there's already
been the determination by a judge ora magistrate, if there's already if there's
no claim has been filed, ifthere's a parallel criminal case, if there's
no hardship involved, for all ofthe reasons we've been talking about, there's

(01:02:21):
no reason to do that. It'sjust an administrative burden that those who opposed
civil forfeiture would like to impose sothat there was less enforcement of the law.
Great, thank you so much.This was a really lively debate and
a great discussion. Thanks to Fedzogand to our audience for being here and
to our wonderful speakers for sharing theirexpertise. Turn it over to Jack for

(01:02:44):
last word. Thanks a lot.Adam certainly want to echo your thanks to
Rob and Steph for sharing their timeand expertise today, and also Adam to
you as well from moderating the program. Certainly a good back and forth,
but informative as always, which iswhat we're going for. As always,
please do keep an eye on ourwebsite and your emails for upcoming programs.

(01:03:05):
If you'd like to provide feedback.You may do so by email at info
at fedsock dot org. A recordingand audio recording of this will be available
on our website the next couple ofdays. So with that, thank you
all very much for joining us.We are journey. Thank you for listening
to this episode of Teleforums, apodcast of the Federal Societies Practice Groups.

(01:03:28):
For more information about the Federal Society, the practice groups, and to become
a Federal Society member, please visitour website at fedsoc dot org.