Home   »   Types of Violations   »   Drug Trade

Drug Trade

Asset Forfeiture for Property Used in the Drug Trade

Under 21 U.S.C. § 881(a)(6), all money furnished or intended to be furnished by a person in exchange for a controlled substance, and all proceeds traceable to such an exchange, are subject to forfeiture to the United States. Property used in illegal activities may be subject to forfeiture under federal law. See 18 U.S.C. § 981(a); 21 U.S.C. § 881(a). That illegal activity might include money “furnished or intended to be furnished by any person in exchange for a controlled substance,” as well as “all proceeds traceable to such an exchange.” 21 U.S.C. § 881(a)(6); see also 18 U.S.C. § 981(a)(1)(A), (C).

In a criminal prosecution for drug trafficking or other drug crimes, the government may seek forfeiture as part of the defendant’s sentence. See 18 U.S.C. § 982. But regardless of whether the government brings criminal charges, it can pursue civil forfeiture through an in rem proceeding against the property itself. See id. § 983.

Civil forfeiture is a proceeding in rem, where the property itself is treated as being guilty of the wrongdoing. United States v. Funds in the Amount of One Hundred Thousand & One Hundred Twenty Dollars ($100,120.00), 901 F.3d 758, 768 (7th Cir. 2018).

The property owner’s culpability is not considered in determining whether the property should be forfeited. United States v. $128,915.000, No. 20-00667, 2021 U.S. Dist. LEXIS 111591, 2021 WL 2432064, at *2 (S.D. Ill. June 15, 2021). Even when there is no criminal prosecution, the Government can seize cash that it believes is traceable to drug trafficking. See 21 U.S.C. § 881(a)(6); 18 U.S.C. § 983(a)(3).

Seizure of Money Involved in the Illegal Drug Trade

What happens when the Drug Enforcement Administration (DEA) or another federal agency seizes U.S. currency or other valuable property based on a suspicion that the money was involved in the illegal drug trade? The DEA does not have to charge anyone with any crime, but can instead initiate administrative or judicial civil asset forfeiture proceedings by filing a notice of seizure.

The notice of seizure gives any potential claimant three options:

  • Do nothing;
  • File a petition for remission or mitigation; or
  • File a claim for court action which converts the administrative forfeiture into a judicial forfeiture that requires court action.

Filing the claim for court action is the only way to challenge the legality of the taking.

After the claim for court action is filed, the seizing agency no longer gets to decide what happens to the asset. Instead, it must convince an Assistant United States Attorney (AUSA) to file a complaint for forfeiture. The AUSA might also “decline” the case which means the DEA must immediately return the property to the claimant.

If the AUSA decides to file a civil forfeiture complaint, it might alleged the seized currency or other property was the proceeds of an illegal drug trade.

After the complaint for forfeiture is filed, the Claimant must then file a verified judicial claim and an answer to the government’s complaint.

In the judicial claim, the Claimant claim ownership of the seized asset and also argue the stop, detention, search and seizure were in violation of the Fourth Amendment. For example, the claimant might argue the stop was illegal from its inception or that it became unreasonably prolonged.

Read more about seizures of alleged drug proceeds by DEA for forfeiture.

Burden of Proof for Civil Asset Forfeiture of Drug Trafficking Proceeds

The Government bears the burden of establishing, by a preponderance of the evidence, that the property is subject to forfeiture. United States v. Funds in Amount of Thirty Thousand Six Hundred Seventy Dollars ($30,670), 403 F.3d 448, 454 (7th Cir. 2005) (citing 18 U.S.C. § 983(c)(1)).

In a civil forfeiture case, “the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture,” i.e., that the property is tied to criminal wrongdoing. Id. § 983(c)(1).

The preponderance of the evidence standard requires a greater showing than “probable cause.” United States v. 5 S. 351 Tuthill Rd., Naperville, Ill., 233 F.3d 1017, 1023 (7th Cir. 2000); $100,120.00, 730 F.3d 711, 716 n.5.

To meet its burden, the Government must demonstrate a “substantial connection” between the property seized and a criminal offense. See 18 U.S.C. § 983(c)(3).

The government may rely on evidence gathered both before and after the filing of the forfeiture complaint to do so. Id. § 983(c)(2).

While the claimant may move to dismiss a forfeiture action under Federal Rule of Civil Procedure 12(b), the complaint may not be dismissed on the ground that the government did not have adequate evidence at the time the complaint was filed to establish sufficient evidence to establish the forfeitability of the property. Fed. R. Civ. P. Supp. R. G(8)(b)(ii); 18 U.S.C. § 983(a)(3)(D).

Congress placing this burden on the government which was an important changemade in the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Pub. L. No. 106-185, § 2(a), 114 Stat. 202, 205 (2000).

Prior to CAFRA, the claimant had to prove that the property was not subject to forfeiture, which prompted “widespread criticism,” United States v. $80,180.00 in U.S. Currency, 303 F.3d 1182, 1184 (9th Cir. 2002), based on perceived unfairness to persons from whom the government had seized property, see United States v. Real Prop. in Section 9, 241 F.3d 796, 799 (6th Cir. 2001).

Congress’s legislative fix in CAFRA also resonates with broader due process concerns that have been raised about the civil forfeiture process. See Culley v. Marshall, 601 U.S. 377, 393-403 (2024) (Gorsuch, J., joined by Thomas, J., concurring); id. at 403-08, 415 (Sotomayor, J., joined by Kagan and Jackson, JJ., dissenting); Leonard v. Texas, 580 U.S. 1178, 1178-82 (2017) (statement of Thomas, J., respecting the denial of certiorari).

Forfeiture Complaint for the Proceeds of Drug Trafficking

Rule G of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions governs civil asset forfeiture proceedings for the proceeds of drug trafficking. United States v. Funds in the Amount of $239,400, 795 F.3d 639, 641 (7th Cir. 2015).

Supplemental Rule G(2) provides that a forfeiture complaint must:

  1. be verified;
  2. state the grounds for:
    1.  subject-matter jurisdiction;
    2. in rem jurisdiction over the defendant property; and
    3. venue;
  3. describe the property with reasonable particularity;
  4. if the property is tangible, state its location when any seizure occurred;
  5. identify the statute under which the forfeiture action is brought; and
  6. state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.

Fed. R. Civ. P. Supp. R. G(2)(a)-(f).

This article was last updated on Monday, July 20, 2026.