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Is it better to request a remission or mitigation of forfeiture or is it better to contest the forfeiture or do both?

Rockville, MD |

The money was taking from me by local police dept at the airport on my way to genuine business trip to purchase some equipment, i'm the owner of the money, the money was withdrew from my bank account, the money was a payment for services rendered to my client and it was a wire transfer to my account. Thank you

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Filed under: Filing a lawsuit
Attorney answers 1

Posted

If seized at the airport, this may be federal jurisdiction, not state or county, even though "local" police were involved. The "remission/mitigation" vs. "litigating/contesting" option is usually the language contained in a notice of forfeiture letter sent under federal law. You do not have the option of doing both: you must pick one or the other, and be stuck with the result. Depending on the amount seized, and your evidence regarding the source of funds, better advice guidance can be provided. I have handled many such cases, but if the amount is small, then the cost of attorney's fees will be a factor. There are strict time limitations involved, and I do not recommend that you try to argue this matter on your own. The parameters within which the seizing agency works is rather technical and difficult to navigate. In the remission/mitigation scenario, they will almost certainly not return all of the money even if you are successful in negotiating or convincing them of the innocent nature of the money. And once you choose that option, they have you over a barrel: you cannot go to court anymore to have a judge overturn their decision. On the other hand, litigating is both time consuming and potentially ruinous in terms of attorney's fees. We no longer live in a country where citizens can freely carry their own cash in whatever amounts they choose. Federal laws regarding the need to "declare" any cash over certain amounts when traveling, including any transaction in cash over certain amounts, create a trap for the innocent, and an automatic basis for the government to seize the cash and keep it. It is irrelevant that the cash is legally earned and has no connection to drugs or contraband (the reason those transaction law exist); it is enough for the government to show the amount and the failure to declare it as required or report the transaction. The burden then shifts to you. This is not to say that a good lawyer cannot negotiate most or all of your money back, or successfully litigate the case to a favorable judgment, but these cases are very fact specific, and it may depend on the reasonableness of the prosecutor who is on the other side of the negotiations or litigation.

Asker

Posted

You probably want to hire counsel regardless of whether you filing a claim or petitioning for remission/mitigation. Mark William Oakley correctly notes in a petition for remission or mitigation scenario you concede the opportunity for an independent judge to rule on the case. That being said, there are times in which a petition for remission or mitigation might make sense including an inability or unwillingness to answer probing special interrogatory questions incident to contesting the forfeiture by filing a claim. You might consider asking for help from relevant public interest groups who, among other things, help find appropriate local counsel for claimants. Regardless of how you proceed, contacting an experienced asset forfeiture attorney is prudent. Also, it should be noted that while there isn't any logical reason (that I am aware of) to file a petition for a mitigation/remission AND a claim (at least for federal asset forfeitures), some forms will nonetheless instruct you that you may file a petition for a mitigation/remission AND/OR a claim. Scott Alexander Meiner Americans For Forfeiture Reform

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