Drug Trade

Asset Forfeiture for Property Used in the Drug Trade

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.

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).

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

The prior rule, under which the claimant had to prove that the property was not subject to forfeiture, had 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).

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.