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.
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.