Petition for Pre-Trial Release of Property
The procedural rules for civil forfeiture actions in rem that arise from a federal statute are governed by the Federal Rules of Civil Procedure Supplemental Rule G and Supplemental Rules C, E, and the Federal Rules of Civil Procedure. Rule G was adopted in 2006 to explain the procedures that govern civil forfeiture actions. Rule G lists motions that are permitted before the forfeiture trial, including:
- motions to dismiss the action; and
- petitions to release property when the government holds property for judicial or nonjudicial forfeiture under a statute governed by 18 U.S.C. § 983(f).
To establish the right to immediate pretrial release of property under Section 983(f)(1)(A)—(D), the claimant must establish that:
- the claimant has a possessory interest in the property;
- the claimant has sufficient ties to the community to provide assurance that the property will be available at trial;
- continued possession by the Government pending trial will cause substantial hardship to the claimant; and
- the claimant’s likely hardship outweighs the risk that the returned property may be destroyed, damaged, lost, concealed, or transferred.
Under 18 U.S.C. § 983(f)(8), the court may not order the property returned, however, if it is:
- contraband, currency, or electronic funds (unless such currency constitutes the assets of a legitimate business that has been seized);
- used as evidence of a violation of the law;
- particularly suited for illegal activities; or
- likely to be used to commit additional criminal acts if returned to the claimant.”
Pre-trial Release to Hire a Criminal Defense Attorney
A claimant in a civil forfeiture proceeding may obtain immediate release of seized property if he demonstrates that he lacks sufficient assets to defend himself in an underlying or related criminal proceeding. Where the claimant requires seized funds to pay for his criminal defense, the claimant is entitled, as a matter of due process, to contest the government’s basis for forfeiture in a post-deprivation and pre-trial hearing.