Court Tells DEA To Stop Pushing Burden Of Proof Back On Claimants In Forfeiture Case

from the procedures-matter dept

The government has lost its claim to money lifted from two men by the DEA at the Cleveland airport. Despite agents being super-sure the money was either drug profits or intended for drug purchases, no charges were brought. But the DEA decided to keep the money -- $31,000 from one and $10,000 from the other -- for itself.

The Sixth Circuit Court of Appeals says not so fast. The decision [PDF] lets the government know it's jumping the gun on claiming sole ownership of this lifted cash. The opinion starts out with a brief description of how the cash-focused Drug Enforcement Agency starts each airport workday.

The parties dispute most of the facts underlying this action. We begin where they find common agreement, drawing these details from the pleadings. On February 24, 2016, Taiwan Wiggins and Dalante Allison (together, "claimants") were each at the Cleveland Hopkins International Airport for a flight to Orange County, California. The Drug Enforcement Administration (DEA) was aware of the claimants' itineraries and that each had previous felony drug convictions. The DEA observed them at the airport engaging in conversation before they walked together toward the security checkpoint.

As we've discussed before, the DEA takes great interest in certain travelers -- even going so far as to ask TSA agents to be on the lookout for cash during bag inspections and X-ray screenings. Here, the DEA appeared to hit the jackpot (in more ways than one): traveler with previous convictions and tickets to California. As the multiple law enforcement officers have sworn in multiple court statements, the only reason anyone travels to California is to buy drugs. (Conversely, the only reason to leave California is to go sell the drugs they just purchased.)

The DEA took the cash from the two men, ran a dog past it, and announced the dog said the DEA could keep the money. The government then filed for forfeiture under the theory the money was drug-related. Both men submitted affidavits stating the money was theirs and was seized illegally.

The court took the affidavits and set a date for discovery to see if the men could stake a legal claim to the seized cash; i.e. prove it was legally obtained. The DEA decided to do things out of order. It moved to strike the men's claims. The district court agreed, finding the men had made nothing but "naked assertions of ownership" -- far below the evidentiary standard needed to reclaim the seized cash.

Open-and-shut… or so the DEA thought. The men appealed and the Appeals Court finds the lower court also skipped a step when arriving at its conclusion. As it states during its long discussion of forfeiture proceedings, the lower court shifted the burden of proof to the wrong party at this early stage.

Rule G(5) requires claimants to do no more than identify themselves and state their interest in the property subject to forfeiture. The government, on the contrary, wants claimants to provide additional detail, a position that it attempts to justify as a means to ward off false claims and to give it a starting point to draft its special interrogatories pursuant to Rule G(6). Nowhere in the text of Rule G do we see any support for this approach, and our case law demonstrates why it is not necessary. First, the would-be claimant must demonstrate Article III standing, which, at the pleading stage, necessarily requires that the claimant allege the facts necessary to satisfy Lujan’s “irreducible constitutional minimum of standing.” See Lujan, 504 U.S. at 560. Second, a claimant’s ability to proceed under Rule G, which we have called “statutory standing,” is satisfied through mere compliance with the rule, see Real Props. & Premises, 521 F. App’x at 384, and we see no persuasive reason to import a heightened pleading standard that has no basis in the text. And third, we have held that Rule G’s verification requirement is a built-in preventative measure that limits the danger of false claims. One Men’s Rolex Pearl Master Watch, 357 F. App’x at 627.

As the appeals court points out, the government wants too much too soon, and when it doesn't get it, it wants to take the money and run. But so far, all the court has to work with are competing allegations about the legality of the cash, and the government doesn't get to pretend its claim has more value.

Here, where the government alleged that it took a bundle of cash from a claimant’s suitcase, and each claimant stated that he owned the cash, there is a clear allegation of ownership that satisfies Article III. And the claimant’s making of such a statement is what satisfies Rule G’s statutory standing requirement. Therefore, at least at this stage in the litigation, there was no basis on which the district court could strike the claim.

There is no sympathy for the DEA in the Sixth Circuit:

The government sings a sirens’ song about the value of high pleading standards and the benefits it will receive from forcing claimants to support their claims from the outset of a forfeiture proceeding. But all of the government’s arguments rest on flawed assumptions about the procedural rules governing in rem forfeiture cases.

And if the government doesn't like it, it's welcome to take it up with… the government.

If Congress wishes to add an additional layer of protection to the statutory requirements by having claimants state their interest with specificity, it may. But a panel of our court is not the proper body to do so.

To close things out, the court points out in detail the wrongness of the government's position. The government's assertions suggest inverting what little there is of due process in forfeiture proceedings.

Finally, we note our concern that the government's approach would turn the burden of proof in forfeiture actions on its head. Under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the government bears the burden of proving by a preponderance of evidence that the subject of a civil forfeiture action is, in fact, forfeitable. Requiring a forfeiture claimant to explain the nature of his ownership at the pleading stage would be asking the claimant to satisfy the government's burden of proof, or at least go a long way toward doing so.

Back the case goes to the lower court with all the correct steps -- and a modicum of due process -- revived. The government may still be able to retain possession of the seized cash, but it needs to provide at least some evidence it wasn't legally obtained first.


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  • identicon
    Anonymous Coward, 29 Sep 2017 @ 4:17am

    so what the appeals court is saying.

    Even though they had their rights fucked, all the lower court needed to do was to go ahead and have the case and just say officially, "yea, we think it be drug money". The only thing that saved them was the lower court NOT following proper process?

    regardless of how this shakes out it is already at complete fucking bullshit levels.

    The only thing the 6th Circuit does here, is nicely tell DEA you just need to start following protocol better next time.

    The lower court should not be able to fuck this shit up that much and walk away with just a re-hearing for this one case. These rulings should at the very lease trigger action on EVERY case of a similar nature the Judge has ruled on and force them ALL into a review.

    reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 29 Sep 2017 @ 4:27am

    Maybe the DEA should have just waited for the ... forfeitants? ... to return with their checked or carry-on bales of drugs.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 29 Sep 2017 @ 5:05am

      Re:

      That would be taking chances. They might buy something completely legal, or with bad resale value.

      Pretty much the worst that could happen is that they buy drugs. Because when you confiscate drugs, the resale value is rather low: basically you can only resell what you put aside before registration, and even then it is frowned upon.

      No, if drug trafficking is supposed to be a dependable part of law enforcement financing, it's much better to confiscate cash rather than drugs, and since cash trafficking is not illegal, proving an actual nexus to drugs would be overly burdensome for law enforcement and deprive it of much of its income.

      reply to this | link to this | view in chronology ]

      • icon
        orbitalinsertion (profile), 29 Sep 2017 @ 5:22am

        Re: Re:

        That's pretty much it, exactly. In fact, LEOs have been know to do it the other way around: Track someone they are sure is running, and wait for them to return with the cash so they can take it. Way to go, "War on Drugs".

        reply to this | link to this | view in chronology ]

  • identicon
    dr evil, 29 Sep 2017 @ 6:31am

    the government.. your friend

    i came into the US with some very, very good quality prop/novelty money .. about 20k face value.. that, for fun, I declared on the 'over 10k' question. They were very interested and were going to impound for no reason until one guy noticed the russian lettering. The police state is in it for the money, never doubt it. the move to cashless aligns with that ultimate goal.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Sep 2017 @ 6:37am

      Re: the government.. your friend

      "The police state is in it for the money, never doubt it. the move to cashless aligns with that ultimate goal."

      Exactly, just observing your rights now is considered an admission of guilt by many. Most citizens do not even know how subtle their perceptions are being manipulated little by little over time.

      And now, since the government has full access to your bank account via 3rd party doctrine and OMG you might be a drug dealer hand wringing they have effectively cornered the vast majority into having ZERO financial privacy.

      reply to this | link to this | view in chronology ]

      • identicon
        David, 29 Sep 2017 @ 4:47pm

        Re: Re: the government.. your friend

        Exactly - and how many people will chime in "Who would carry that much money?" and almost go along with the thought that only criminals carry large sums of cash.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Sep 2017 @ 4:36pm

          Re: Re: Re: the government.. your friend

          Most used car sales between private parties is conducted in cash. I guess the two parties could arrange to meet at a bank where the transfer could occur indoors thus avoiding going out in public with your "guilty cash" - but that is a pain and most people would say screw that.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Sep 2017 @ 8:15am

    You need to prove to us that this money is not guilty of high crimes. How does one prove a negative?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Sep 2017 @ 8:39am

      Re:

      Easy, just explain how you obtained the money.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Sep 2017 @ 8:58am

        Re: Re:

        we don't believe you and consider your evidence to be manufactured.

        Now you don't just lose the money, you get to go to jail for evidence tampering and lying to the police.

        win, win, win

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Sep 2017 @ 9:04am

        Re: Re:

        Sure you legally earned $200k from your employer last year.... but prove that this $20K is part of that and not from drug sales....

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Sep 2017 @ 10:46am

        Re: Re:

        Easy, just explain ...

        STOP RESISTING!!!!!!

        I'm just trying to ...

        STOP RESISTING !! - I'm going to tase your wallet if you keep this up. Them green backs are guilty - I can smell it.

        reply to this | link to this | view in chronology ]

    • identicon
      Justme, 29 Sep 2017 @ 7:33pm

      Re:

      That's the part that just floors me. If i am not even charged with a crime, then an Inanimate Object (money) that i have in my pocket can't be guilty of a crime.

      Now money certainly can be the proceeds of crime activity, but that requires convicting an actual human of some kind of crime! Which would require them to actually conduct an investigation and collect evidence, and that a lot of work.

      So instead they choose to be the modern version of highway bandits, pulling travelers over and relieving them of their money and then sending them on their way.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Sep 2017 @ 11:21am

    Nice straw man, and I am not saying that people should have the burden of proof on their money, but the fact is, it isn't hard to prove where money you are carrying came from.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Sep 2017 @ 11:52am

      Re:

      How naive
      Say .. I have this bridge for sale

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Sep 2017 @ 1:22pm

      Re:

      Nice straw man, and I am not saying that people should have the burden of proof on their money, but the fact is, it isn't hard to prove where money you are carrying came from.

      That's an interesting claim, since if it were true, successful forfeitures of cash should be very rare because the rightful owner could easily prove the forfeiture was baseless. Yet actual forfeiture numbers completely contradict this. Cash forfeitures are common and usually successful. Yes, it's easy to claim where you got the money. I don't think it's easy to prove to the standard required by the court that this money is legally obtained.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Sep 2017 @ 1:41pm

      Re:

      An example, how do you prove that you have been putting some of you legal income as cash under the mattress for the past 18 months? The problem with cash is that you have no direct proof of how you got it.

      reply to this | link to this | view in chronology ]

      • identicon
        Paul Brinker, 29 Sep 2017 @ 3:45pm

        Re: Re:

        Some easy ways to prove your money is yours, Did a bank give you the money? You can easily show a receipt. Do you run a high cash business? Your IRS reporting and bank slips generally work here.

        Of course the cops are going to be assholes, so you need more "Proof" like pay stubs and bills of sale. This is a game the government can play a long time, challenging your place of work and costing you far more then the amount taken. That's the game here, they made it more costly to get your money back so you never challenge them.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Sep 2017 @ 1:33am

          Re: Re: Re:

          Even that does not prove that any cash you are carrying is legal, because the the payslips and receipts for what you sold only prove a certain amount of income. Now prove what that the cash you have is the difference between that, and what you have spent and put away in bank accounts.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Sep 2017 @ 7:20am

          Re: Re: Re:

          "Did a bank give you the money? You can easily show a receipt. Do you run a high cash business? Your IRS reporting and bank slips generally work here ... pay stubs and bills of sale"

          Cops: Tell it to the judge, we are keeping your money.

          reply to this | link to this | view in chronology ]

  • icon
    Advocate (profile), 30 Sep 2017 @ 10:35am

    Legal fictions are all fictions, but sometimes they're lies. Eliminate legal fictions.

    reply to this | link to this | view in chronology ]

  • identicon
    Wyrm, 6 Oct 2017 @ 7:19pm

    Forfeiture should be like RICO.

    And yes, it's never RICO, for a good reason, and forfeiture should be subjected to similar standards.

    Basically, forfeiture was created to deprive criminals from the proceeds of their activity when you couldn't indict the criminal himself. (Think about contraband shipped through containers. The owner is abroad so you can't get to him.)

    In recent days, it's just a lazy way to legally steal money. If the purpose was really proper law enforcement, well, you have your criminal right there since you're literally taking his property from his hands. If you really have strong evidence that he's a criminal, you could arrest him there and then, then build your case and indict him legitimately.

    What should have been an exception became the norm, and it will only get better if judges step up and decline to rubber stamp these illegitimate forfeitures. Or if lawmakers decide to explicitly raise the standards LEOs have to meet in forfeiture cases (including attaching a forfeiture to actual charges). Preferably both.

    reply to this | link to this | view in chronology ]


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