Petition for Remission or Mitigation of the Forfeiture
After your property or currency is seized, you should hire an attorney to file a verified claim for court action (sometimes called “early judicial intervention”). For the vast majority of people, it makes no sense to forgo those rights by requesting administrative remedies of remission or mitigation. In fact, the ONLY way to challenge the legality of the seizure is to file a verified claim demanding judicial referral for court action. Act quickly because the verified claim must be received by the agency (in their hands) before the deadline listed in the notice of seizure. If you miss the deadline by one day, then all of your property will be forfeited with little chance of getting it back.
Federal agencies take a “hide the ball” approach by encouraging people to file a petition for remission or mitigation. That petition has the effect of waiving any rights to contest the seizure for forfeiture. Keep in mind that if you petition for remission or mitigation, the Ruling Official does not even consider whether the evidence was sufficient for forfeiture, but presumes that the forfeiture was valid. 28 C.F.R. § 9.5 (a) (4). See Juncaj v. United States, 894 F.Supp. 318, 320 (E. D. Mich. 1995); Reinoso v. Drug Enforcement Administration, No. 93-CIV-1516 (KTD), 1994 U.S. Dist. LEXIS 18054. In other words, if you decide to file a petition for remission or mitigation you are effectively stipulating that the forfeiture was lawful and valid for administrative purposes.
The petition for remission or mitigation may NOT be used to challenge the sufficiency of the evidence to support the forfeiture or the actions of any government official. Instead, it presumes a lawful and valid forfeiture and asks the agency to invoke its power to “pardon” the property, in whole or in part. If the agency decides to not return any of your money, then you have NO right to appeal that decision. The federal agency that seized the property will argue that the only correct forum in which to challenge the legality or constitutionality of the forfeiture is the Federal District Court. As a result, if the petitioner fails to contest the forfeiture judicially, then the option is no longer open. United States. v. Giraldo, 45 F.3d 509 (1st Cir. 1995).
Even more problematic is the fact that numerous downsides exist to forgoing the judicial action instead of filing a petition for remission or mitigation including the standard for remission is incredibly high; the petitioner has a heavy burden of providing sufficient documentation to prove a legitimate origin for the forfeited currency; the standards for probable cause to support the seizure is incredibly low; carrying large sums of currency is presumed to be “strong evidence” of narcotics trafficking; showing an “alert” by a trained narcotics dog (even when no controlled substances were found and the alert was false), and the way the evidence is concealed is considered to be evidence.
Remission and mitigation are administrative remedies for recovering property that has been legally forfeited pursuant to either an administrative or a judicial proceeding. See 19 U.S.C. §§ 1613, 1618. The granting of remission, or mitigation, is entirely within the discretion of the government agency and is not subject to judicial review. If your petition fails to meet the requirements for remission or mitigation under 28 C.F.R. Part 9, then your petition will be quickly denied. Most petitions do not meet the minimum conditions for remission.
The petition may be examined to determine whether “extenuating circumstances” existed that warrant mitigation of the forfeiture under 28 C.F.R. Section 9.5(b), but in the vast majority of these cases, the federal agency will find that the Petitioner has utterly failed to demonstrate that any mitigating factors exist to support granting any relief from forfeiture. The federal agency might review the facts of the case to determine if the forfeiture would be in violation of the U.S. Constitution’s Eighth Amendment prohibition against excessive punishment, as discussed in Austin v. United States, 113 S. Ct. 2801 (1993). But in almost all of these cases, the federal agency will determine that the administrative forfeiture was entirely proportional to the offense, considering the substantial connections between the forfeiture property and the offense.
If a federal agency seized your cash, contact an experienced attorney about the benefits of demanding the early judicial intervention in the U.S. District Court in the days following the seizure. You don’t have to wait for a notice in order to demand early judicial intervention in the U.S. District Court. By filing the demand for court action, the case is taken away from the agency that seized the money and turned over to the Assistant United States Attorney in the asset forfeiture unit. Once the verified claim for court action is filed, the Assistant United States Attorney (AUSA) has to decide whether to return 100% of the property or file a forfeiture action in the U.S. District Court. Attorney Sebastian Rucci represents persons involved in illegal seizures and innocent owners of the property taken by federal agents.
Benefits of Demanding Judicial Review
A petition for remission or mitigation cannot be used to challenge the sufficiency of the evidence to support the forfeiture or the actions of any government officials who seized the asset. Instead, any petition for remission or mitigation presumes that a valid forfeiture occurred and ask the DEA to invoke its power to pardon the property, in whole or in part. A petitioner has no right to appeal the DEA’s decision.
By failing to file a claim to contest the forfeiture, and by filing for remission or mitigation, you have waived any challenge to the seizure. Once the government initiates an administrative forfeiture proceeding and the property is not the subject of an ongoing criminal proceeding, the district court loses jurisdiction to resolve the issue of the return of property.
In Malady Drugs and Pharmaceuticals, Ltd. v. Tandy, 522 F..3d 885, 889 (D.C. Cir. 2009), the court concluded that it will not grant judicial review of an administrative forfeiture where the claimant failed to avail itself of its right to have the case referred to the U.S. Attorneys Office.
The claimant’s assertion that the administrative forfeiture of property valued in excess of $500,000 was invalid cannot be heard by the district court where the claimant did not raise that objection with the seizing agency in the first instance. In United States v. Shigemura, 664 F.3d 310, 312 ( 10th Cir. 2011), the district court lacked jurisdiction to review the merits of administrative forfeiture since the claimant did not file a claim.
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