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.

The penalties for this crime can be significant depending on the amount of cash that was being concealed. For most “bulk cash smuggling offenses,” the federal sentencing guidelines set a base offense level of eight (meaning 0-6 months in jail), see U.S.S.G. 2S1.3(a)(2) and U.S.S.G. 2S1.3(b)(1)(B), plus enhancements based upon the amount of money. See U.S.S.G. 2B1.1. Accordingly, for illegally smuggling, say, $20,000, the federal Sentencing Guidelines might suggest a sentence of 10-16 months in prison for first-time offenders (though this figure is highly dependent upon other variables).

People are often wary about revealing the amount of cash they are actually carrying through Customs because they are afraid that the cash will be investigated. The cash may constitute the proceeds of a crime, or suggest that someone has failed to disclose all of their income to the tax authorities. Regardless of whether the cash is actually illegal or not, however, the Customs officer is likely to seize a significant quantity of cash (50-100% of it, normally) and keep it unless and until the legitimate source of the income is sufficiently proven. This process of contesting forfeiture can take months and typically requires the assistance of an attorney to stand a solid chance of success.

If you or a loved one have been arrested for failing to disclose cash being transported through U.S. Customs, you should strongly consider retaining the services of the experienced federal criminal defense attorneys at the Law Office of Matthew Galluzzo. With their offices in New York City, they are particularly familiar with John F. Kennedy International Airport (JFK), LaGuardia International Airport, and Newark International Airport. Their attorneys have successfully represented individuals accused of this crime, and can assist you in navigating a difficult situation.