Articles Posted in Forfeiture

Published on:

Federal law enforcement agents from the DEA routinely seize quantities of cash that they suspect to be tied to or derived from narcotics trafficking. Frequently, these seizures happen in conjuncture with the arrests of those in possession of the cash, or pursuant to indictments. But most of the time, agents seize cash – even huge sums of it – without arresting anyone. In those cases, the owners or possessors of that seized cash have some difficult decisions to make.

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.

Published on:

It can be somewhat dangerous for people to travel in and out of the United States with large quantities of cash. Section 5316(b) of the Title 31 of the U.S. Code requires individuals to file reports with U.S. Customs when “knowingly transporting [or] being about to transport monetary instruments of more than ten thousand dollars at one time.” The failure to file such a report is a violation of 31 U.S.C. 5361(a)(1)(A), and if a Customs officer discovers an individual who has misrepresented the amount of cash he or she is carrying, that officer will almost certainly seize the cash for forfeiture in addition to arresting the defendant. Those individuals arrested for failing to disclose their cash may also be subject to the charge of lying to a federal agent, in violation of 18 U.S.C. § 1001.

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.

Contact Information