The federal government wields tremendous power when it comes to civil or
criminal asset forfeiture laws. Specifically, 18 U.S.C. § 981, permits
the government to seize "any property, real or personal, involved
in a transaction or attempted transaction in violation" of any of
a long list of offenses, most significantly money laundering. Section
881 allows the government to seize "[a]ll moneys, negotiable instruments,
securities, or other things of value furnished or intended to be furnished
by any person in exchange for a controlled substance . . ., all proceeds
traceable to such an exchange, and all moneys, negotiable instruments,
and securities used or intended to be used to facilitate any violation"
of the drug laws. And what is the level of suspicion that the government
must have in order to seek civil or criminal asset forfeiture prior to
an arrest: it must state sufficiently detailed facts to support a reasonable
belief that the government will be able to meet its burden of proof at
trial. Proof at civil trial dealing the civil and criminal asset forfeiture,
by the way, is preponderance of the evidence (well below a beyond a reasonable
doubt legal standard of proof).
Indeed, a very low threshold - making it all the more clear the extent
of the government’s power when it comes to these legal areas. The
reason for the lower standard is because often times individuals who have
their money seized by the federal government are not charged with any crimes.
However, recently, in Omaha, Nebraska, the tables turned a bit. There,
U.S. District Judge Joseph Bataillon, ordered that the government return over 1 million dollars to the plaintiff,
Tara Mishra, an exotic dancer, who sued for the money back. To make his point, Judge
Bataillon also ordered that the government pay her lawyer’s fees
– approximately 40 thousand dollars – as well.
The facts show that Ms. Mishra and her husband, while driving in their
car in California, were stopped by police and ordered out of the car.
The money – about 1 million dollars – was found in the car.
To add, a drug-sniffing dog showed some indication that drug residue on
the cash. On the other hand, Ms. Mishra claimed that this was legitimate
money earmarked for the purchase of a New Jersey nightclub. The police
nevertheless seized the money and handcuffed Ms. Mishra and her husband.
In exchange for Ms. Mishra agreeing to waive any right to the cash, she
and her husband were released without charges.
But Ms. Mishra refused to accept this treatment by the police. She chose
not to be victimized by what was effectively nothing more than the federal
government taking what was legitimately hers. She hired a civil and criminal
asset forfeiture attorney and sued the federal government for the money,
the interest lost, and lawyer’s fees. Ultimately, Judge Bataillon
agreed with Ms. Mishra and decided that the federal government failed
to show that they could meet their burden of showing by a preponderance
of the evidence that Ms. Mishra’s money was involved in a transaction
controlled substance crimes. The fact that the money had evidence of controlled substance residue
did not convince the judge that Ms. Mishra had knowledge of it.
Far too often we notice that individuals accept the forfeiture by the federal
government and choose not contest it. This case should help to support
the idea that the actions by the federal government do not go without
scrutiny. If you have been a victim of an asset forfeiture, feel free
to discuss it with the civil and criminal asset forfeiture lawyers at
Sullivan Brill, LLP so we can advise you on how to proceed