Paulette Martin, Derrek Lewis Bynum, and Learley Reed Goodwin were convicted of committing a number of drug related charges. The District Court also forfeited various items including “over $400,000 in currency from accounts held by Appellants, a Mercedes automobile owned by Martin, and several million dollars” that the court found to be the proceeds of the drug trade.

By January of 2005 the government was pursuing both civil and criminal forfeiture of the items. Martin challenged the civil forfeiture during February of 2005. Under the Civil Asset Forfeiture Reform Act, 18 U.S.C. § 983 (“CAFRA”) the government has 90 days from the date Martin filed her complaint to do one of the following:

(1) ‘file a [civil] complaint for forfeiture,’ (2) ‘obtain a criminal indictment containing an allegation that the property is subject to forfeiture[ ] and take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute,’ or (3) ‘return the property.’ 18 U.S.C. § 983(a)(3)(B)

The government did none of these. Failure to comply requires release of the property. However, the court found the claim untimely. ¹ The government obtained a criminal seizure warrant.

After the criminal trial the court held two hearings on the forfeiture announcing that it planned to declare a forfeiture but the subject of the forfeiture was somewhat unclear. Then it sentenced the defendants on December 19, 2006, without mentioning the forfeiture. No one objected at the sentencing. It wasn’t until June 14, 2007 that the court entered its final judgement on the forfeiture and it did not amend the judgement.

The law requires that the forfeiture which is a type of punishment be entered at the time of the sentencing and be part of the judgement.

On appeal the defendants either individually or jointly argued that the civil forfeiture was illegal and that invalidated the criminal forfeiture. They also argued that the criminal forfeiture was invalid in that it was untimely. The Fourth Circuit Court of Appeals ruled that even if the civil forfeiture was illegal the government can forfeit the property on independent grounds in the criminal forfeiture action. Although the requirements are found in Federal Rule of Criminal Procedure 32.2 it does not state what the remedy is for the court’s failure to comply. The defendants argued that the court lost jurisdiction to order the forfeiture but the Fourth Circuit held that the court did not lose jurisdiction as long as prior to sentencing it made it clear that that it planned to order forfeiture. The dissent argued that at best the court must make it clear exactly what was going to be forfeited and without doing so it lost jurisdiction. But the majority thought that the court made it sufficiently clear and upheld the forfeiture.

The Eighth Amendment”s Excessive Fines Clause reads, “Excessive bail shall not be required, nor excessive fines imposed.” The Fourth Circuit ruled yesterday in a case applying the Clause to a civil forfeiture.

Girma Afework attempted to deposit $79,650.00 into his PNC bank account. When told the bank would have to complete a government form prior to accepting any amount over $10,000, he limited his deposit to $9900 and in succeeding deposits he put the entire sum into his PNC and Bank of America accounts. Dividing a deposit into several deposits in order to avoid the $10,000 limit violates Federal law and is called “structuring.”

The government seized the money and moved to forfeit it. Afework sued to get the money back. He lost, the trial court finding sufficient evidence tat 1) he structured the transaction, 2) that he knew of the bank’s obligation to file reports with the government, and 3) that he structured the transaction with the intent to avoid the reporting requirement. But the trial court limited the government’s gain to $50,000 based upon the Guideline penalty for structuring.

Under the Eighth Amendment. fines, both civil and criminal must be proportional to the harm done. Generally the courts looks at possible penalties to determine whether or not the fines meets the proportionality requirement of the Eighth Amendment. The Fourth Circuit found that the maximum fine for structuring over $100,000 is $500,000. ¹ Therefore the appellate court remanded the case for resentencing.

The old adage, “justice delayed is justice denied” has once again been proven true. Twenty years ago Erick Flores-Rivera was arrested and the government seized his new Jeep Cherokee, $1,903 in cash, and other items. All parties admit that the seizure was without proper notice and therefore illegal. Flores-Rivera plead guilty to two counts in January 1991 and was sentenced to twenty years in prison.

From 1992 to 1999 the government used the vehicle and then sold it for $6400. During this period Flores-Rivera entered into a contract with the government to make installment payments on a fine that was imposed upon sentencing.

Throughout this entire period Flores-Rivera diligently attempted to get his vehicle and his money back. In 1999 the government conceded the illegality of the seizure and the need to return the property to Flores-Rivera. But it was not until 2006 that the government requested the court to set a hearing date. But no date has yet been set. In 2006 the government said it did not know what happened to the vehicle or the car. In 2007 it reported that the car had been sold and the money placed in a forfeiture fund.

In July 2006 an attorney was appointed to represent Flores-Rivera but he was not informed of the appointment until 2008.

In November 2008 the First Circuit Court of Appeals, upon a further motion from Flores-Rivera ordered the District Court to determine the value of the seized property. The District Court ignoring the Circuit Court order and the contract to repay the fine ordered without a motion from the government that the forfeited property to be used towards paying Flores-Rivera’s fine.

Finally in 2009 the Federal Public Defender is appointed to represent Flores-Rivera.

So what does the First Circuit do when it gets the case back in 2010. Does it order immediate payment including interest and rent on the vehicle for the period that the government used the vehicle? No, while admitting that “further delay is unacceptable,” it ordered that “the district court should promptly conduct a hearing, follow the applicable statutory procedures, and otherwise provide Flores with the long-delayed process to which he is entitled.” It sounds like its back at square one and another twenty years of litigation is to follow.