As discussed in Part One, Federal Rule of Criminal Procedure 41(g) provides that “[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return.”
Does this mean the federal government can seize a person’s assets? Yes.
Are there ways that the person can fight to take back their property? Yes.
The person whose asset was taken can file a Rule 41(g) motion with the district court and ask for the property to be returned. This happens when criminal charges are not filed—therefore, the person first needs to ask the court to hear the case, that is, to exercise its civil equitable jurisdiction.
Is there a test the court applies to decide whether to hear the Rule 41(g) petition? Yes.
Courts typically analyze four factors when deciding whether to hear a Rule 41(g) petition. These are often called the “Richey Factors” because of the decision in Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir. 1975). The four factors are: (1) whether the government displayed a callous disregard for the constitutional rights of the petitioner; (2) whether the petitioner has an individual interest in and need for the property; (3) whether the petitioner would be irreparably injured by denial of the relief requested; and (4) whether the petitioner has an adequate remedy at law for the redress of his grievance. Id.
In what circumstances can the motion be filed: A motion under Rule 41(g can be filed in the following circumstances:
- If the government violates 18 U.S.C. § 983(a)(1)(A)(i) by choosing an administrative or nonjudicial forfeiture, but not sending a written notice of seizure to the interested parties within sixty (60) days of the taking; or
- If the government does not return the property promptly after failing to take action within ninety (90) days after you filed a verified claim for the property based on the written notice of seizure.
Is an innocent person protected? Yes.
The statute provides that “an innocent owner’s interest in property shall not be forfeited under any civil forfeiture statute.” 18 U.S.C. § 983(d). More information will be found on the next part of this series.
Our attorneys at Beggs & Lane have decades of experience in federal court forfeiture proceedings. Contact us for a consult.
By: Matthew P. Massey, Esq.
Beggs & Lane’s White Collar Criminal Defense and Internal Investigations Group is led by former First Assistant United States Attorney David McGee. The Group includes Gregory R. Miller, a former United States Attorney for the Northern District of Florida; Charles T. Wiggins, a Board-Certified Civil Trial Lawyer and former criminal prosecutor with the Office of the State Attorney, First Judicial Circuit of Florida; and Matthew P. Massey, a former Assistant United States Attorney with the U.S. Attorney’s Office for the District of Columbia.