In these cases, federal law generally requires the agents to send a notice to the person from whom the cash was seized. The person who receives the notice is typically given the opportunity to make a claim for the cash, which includes an explanation as to the source of the cash. This response must be made under penalty of perjury, and can include supplemental documentation from a related business (such as tax returns or bank statements), or sworn statements from other people, among other things. Every once in awhile, the agents return the cash to the claimant based upon the representations made by the claimant, or based upon the evidence demonstrated to the agency. Our attorneys have successfully assisted clients in getting cash returned by federal agents this way.

If, however, the agency refuses to return the money based upon these representations, then they must commence a civil forfeiture action in federal court. The precise procedures for doing so are outlined in 18 U.S.C. § 983. Ultimately, in a civil court proceeding, the federal agency (DEA) must prove by a preponderance of the evidence that the seized cash represents proceeds of illegal activity. This is the civil standard for proof and it is much lower (easier) than the “beyond a reasonable doubt” standard necessary to prove a person’s guilt of a crime.

Of course, the DEA may also elect to arrest the claimant as a co-conspirator to narcotics trafficking or money laundering. In that case, the DEA and federal prosecutor (U.S. Attorney) can add a forfeiture count to the indictment, and a civil forfeiture proceeding no longer becomes necessary.

The person considering whether to respond to this initial seizure notice has many things to consider. First, the response has to be made under oath. Thus, a false statement relating to the seized cash is punishable as a federal crime pursuant to 18 U.S.C. § 1001. Second, the claimant should carefully consider the circumstances under which the cash was seized. They should ask themselves: how did the DEA agents know that there was cash to be seized? Did they simply stumble upon it, or has there been a long-term investigation with wiretaps, cooperating witnesses, and/or surveillance that led them to make this cash seizure? The latter is normally more likely. Of course, it could be suspicious for a claimant to let DEA agents seize a huge quantity of cash without any protestations – after all, if, say, one million dollars in cash were lawfully obtained, wouldn’t the owner want it back?

Ultimately, the top priority for someone whose cash has been seized by the DEA should be avoiding an arrest or an indictment by federal authorities. Thus, any response to a seizure notice should be made after careful discussion with a knowledgeable criminal defense attorney. Matthew Galluzzo, an experienced criminal defense attorney and former prosecutor, has assisted many clients in these sorts of matters and is prepared to assist you or a loved one as well.

Most of the time however, people accused of this crime are frequently also charged with other crimes, too. For example, this charge is frequently brought against those who lie to U.S. Customs officials about their possession of cash, in conjunction with a charge of 31 USC § 5361(a)(1)(A). It is also common in health care fraud matters for a defendant to be charged with violating both 18 U.S.C. § 1035 – making false statements relating to health care matters – as well as 18 U.S.C. § 1001. In any case, the additional charge for making false statements may not be as serious as the underlying crime for which the defendant was originally investigated, but the fact that the defendant lied to law enforcement can be viewed as an “aggravating factor” by the judge at sentencing, meaning that it could seriously increase the ultimate sentence that the defendant will serve.

Though the maximum possible statutory penalty for this offense is five years in prison, pursuant to the Federal Sentencing Guidelines, the base offense level for this crime is 6. This base offense level means that a person convicted of this crime (and this crime alone) is more likely to receive a sentence of between 0 to 6 months in prison.

If you or a loved one have been arrested or are being investigated by federal law enforcement officers, you should strongly consider hiring the experienced federal criminal defense attorneys at the Law Office of Matthew Galluzzo. Their team of former Manhattan prosecutors has successfully represented individuals arrested and accused of making false statements to law enforcement officers. They may be able to help you as well.