How to Defend An Asset Forfeiture Case Without Waiving the 5th Amendment Privilege

(c) 2014 Brenda Grantland

Back when I was answering questions from callers to Forfeiture Endangers American Rights Foundation, I frequently took calls from forfeiture victims who had already lost their property by default because they were afraid to contest the forfeiture. Many believed, or were told by lawyers, that they couldn’t contest the forfeiture case without giving up their Fifth Amendment privilege against self-incrimination in a parallel criminal case, or that contesting the forfeiture would make it more likely that prosecutors would file criminal charges.

Those assumptions are not entirely true. The Fifth Amendment applies in civil forfeiture cases, and as a constitutional right, it trumps statutory rules and procedures.

If a forfeiture statute truly forced claimants to choose between forfeiting their property and incriminating themselves, the statute would be unconstitutional under a long line of Supreme Court cases beginning over a century ago with Boyd v. United States, 116 U.S. 616 (1886).[i]

In reality, in most cases claimants can safely file a claim and start the civil forfeiture process, and then seek a stay of the case pending the outcome of the criminal case, or go forward with civil discovery while carefully weighing each discovery question for potential incrimination, “taking the Fifth” where appropriate.

Here is my generic advice for forfeiture victims with potential Fifth Amendment issues. You’ll have to do the weighing and analysis yourself, preferably in consultation with a criminal defense lawyer.  Sorry — I no longer take calls from people seeking free advice.

Should you contest it at all?

In my experience, as a general rule, most of the people who have a credible defense and who actively contest the case will get some or all of their property back.

When the property owner is convicted of the underlying crime, the odds of his getting any of the property back are much lower, but not impossible. They still have defenses such as proportionality.

In criminal forfeiture cases — third parties such as spouses who are co-owners of criminally forfeited property have to file a petition in the criminal forfeiture proceedings, but the process doesn’t begin until after the criminal defendant is convicted.

If it is a civil forfeiture case, everyone who owns an interest in the property — including spouses, relatives, business partners, landlords and lienholders — have to file a claim in the civil forfeiture case and must raise the affirmative defense of innocent ownership in the Answer. Claimants have the burden of proof on innocent ownership.

If evidence is illegally seized it can be suppressed on Fourth Amendment grounds, in civil forfeiture case as well as criminal forfeiture cases.

Sometimes the risks of contesting the forfeiture outweigh the value of the property, considering the probable cost of litigating and the likelihood of winning. If you don’t have enough money to litigate to a conclusion, you should take that into account from the beginning and plan your strategy accordingly. People on limited budgets may achieve an acceptable settlement in which they get part of their property back, but generally that only happens after raising and litigating meritorious issues.

In cases in which it is not cost-effective to hire counsel to represent you, you can still litigate pro se. Forfeiture Endangers American Rights Foundation (fear.org) has low-cost and free materials designed to help pro se litigants defend forfeiture cases. I’ve seen a number of diligent forfeiture victims successfully defend themselves with the help of the FEAR materials and the advice of counsel when necessary. I encourage claimants to go pro se in cases with low dollar value when it isn’t cost effective to hire a lawyer. When government lawyers have to litigate a low dollar value nuisance suit they brought themselves, against educated forfeiture victims that they can’t wear down by running them out of money, the tables are turned. Forfeiture law is very complicated though, and I don’t generally recommend representing yourself if you can afford counsel.

If there are other potential crimes which could be charged, such as tax evasion, the property owner should consult an attorney before filing anything pro se in the forfeiture case.

Contesting the forfeiture does call attention to yourself, but if you are already under investigation it probably won’t make a difference.

Any agencies that are investigating you will use anything they can find against you, so be careful what you say to anyone at all, especially members of law enforcement or the prosecutors’ office.

If you failed to file income tax returns during the time when you acquired the property, claiming ownership could be incriminating on potential tax evasion charges.

Sometimes a pending criminal investigation triggers an IRS audit, whether you contest the forfeiture or not. Those who are behind in filing tax returns should consult an attorney about filing returns for the missing years.

How do you contest the forfeiture without waiving Fifth Amendment rights?

For claimants with pending criminal charges or who are under criminal investigation, undergoing full blown civil discovery is usually unwise. Ordinary civil litigants have no choice but to undergo civil discovery if they want to defend their civil cases, but in forfeiture cases the Constitution prevents the government from being able to force a person to give up one constitutional right in order to protect another.

The claimant who is facing criminal charges can file a claim and then ask that the case be stayed pending the outcome of the criminal investigation or charges. Under CAFRA, “on motion of claimant, the court shall enter a stay of the civil forfeiture proceeding if the claimant is the subject of a related criminal investigation or case, claimant has standing, and the civil forfeiture proceeding could adversely affect the claimant’s Fifth Amendment rights.” 18 U.S.C. 981(g)(2). This applies to all forfeiture statutes, including Customs cases.

Another option is to go forward with the civil litigation but assert the Fifth Amendment privilege where appropriate. You have a right to assert the privilege against self-incrimination in answer to any question on which you reasonably believe that the disclosures could be used against you in a criminal prosecution, or could lead to other evidence that could be used against you in a criminal prosecution. It is not necessary that the criminal charges be pending. The privilege against self-incrimination applies if there is a possibility of prosecution for any offense, and even shields against disclosures that aren’t directly incriminating, but could provide an indirect link to incriminating evidence.

 The privilege must be asserted on a question-by-question basis. As to each question, you have to decide whether or not to assert the Fifth Amendment privilege against self-incrimination. Even if you assert the privilege, you still have to answer those questions which aren’t potentially incriminating, or be held in contempt and have sanctions imposed against you.

Asserting the Fifth Amendment privilege against self-incrimination may make it impossible to win your civil forfeiture case, however.  Once you take the 5th on an issue, you can’t submit evidence on that issue in your defense. The courts have held that the Fifth Amendment can be used as a shield but not a sword – meaning that on issues on which the government has the burden of proof, your “taking the Fifth” can’t be used against you. You can still win on those issues if the government can’t prove its case. But on issues on which you have the burden of proof – for example, the innocent owner defense – asserting the Fifth Amendment privilege and refusing to answer a question can backfire. Your refusal to answer that question can support a negative inference that the evidence you refuse to reveal would be unfavorable to you.

Most of the Fifth Amendment issues come to bear at the summary judgment stage in civil forfeiture cases.  That is the stage at which many forfeiture claimants who have been convicted of the underlying crime lose the forfeiture case.  Under the doctrine of collateral estoppel, you can’t relitigate any issue you lost in the criminal case. If you assert the Fifth Amendment on an issue on which you have the burden of proof – such as the innocent owner defense — the court can grant summary judgment against you on that issue.

Unless there are factual issues in dispute that are not decided on summary judgment, the case will end there, with the judge deciding the case on the law. There will be no trial.

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[i] Boyd held that a statute which made the owner choose between producing a document or forfeiting his property violated the Fifth Amendment. See also Garrity v. New Jersey, 385 U.S. 493 (1967) (forcing petitioners to either forfeit their jobs or incriminate themselves violated the Fifth Amendment.) See also Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977) (“when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a subsequent criminal prosecution.”)

Brenda Grantland

Brenda Grantland is a private attorney in Mill Valley California, with 30 years’ experience primarily in asset forfeiture defense, as well as federal criminal appeals and victims rights and restitution. Brenda handles federal cases throughout the country, and frequently works with other attorneys or legal teams as a consultant or co-counsel.

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