In re Pending Admin. Forfeitures & Filing Civil Forfeiture Complaints
| Decision Date | 28 July 2020 |
| Docket Number | Case No. 2:20-CV-862-MMD |
| Parties | IN RE MATTER OF PENDING ADMINISTRATIVE FORFEITURES AND FILING CIVIL FORFEITURE COMPLAINTS |
| Court | U.S. District Court — District of Nevada |
United States Attorney
Nevada Bar Number 13644
DANIEL D. HOLLINGSWORTH
Assistant United States Attorney
501 Las Vegas Boulevard South, Suite 1100
Las Vegas, Nevada 89101
(702) 388-6336
Daniel.Hollingsworth@usdoj.gov
Ex Parte Application For Extension of Time for ATF and DEA to Commence Administrative Proceedings, to Process filed Administrative Claims, for United States Attorney's Office to file Civil Forfeiture Complaints, and Order (Third Request)
The United States of America moves this Court on behalf of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and the Drug Enforcement Administration (DEA) in this district for a 60 day extension of time (1) to commence administrative forfeiture proceedings and (2) to process and to send filed administrative claims to the United States Attorney's Office for the District of Nevada (USAO) and (3) for the USAO to file civil forfeiture in rem actions within 90 days of the filed administrative claim with the federal seizing agency from July 15, 2020, to, and including, September 13, 2020, because of the national health emergency. ATF and DEA requested this third extension.1
The government's first extension for all federal seizing agencies was from March 13, 2020, to, and including, May 14, 2020, and its second extension for all federal seizingagencies was from May 15, 2020, to, and including, July 14, 2020. Motion, ECF Nos. 1, 4. This Court ordered the extensions of time. ECF Nos. 8, 9.
This application is based on the attached memorandum of points and authorities.
ATF and DEA of the United States Department of Justice (DOJ) with authority to seize property, to commence administrative forfeiture proceedings, and to forfeit property administratively need a third extension of time. Forfeiture statutes and regulations govern the seizures, the forfeitures administratively, and the remission or mitigation of DOJ forfeitures.2
For ATF and DEA administrative written notices generally have not been mailed out since the shutdown. DEA plans to enter phase one by opening on July 13, 2020, at 25% strength. DEA fears that when one of the employees tests positive for COVID-19, DEA will close the building again. DEA hopes that the 25% strength will work as efficiently as possible with the back log and the ongoing cases as they come in. Because of the mailroom shutdowns, mail has not been opened and processed. ATF has given no indication when it will implement phase 1.
Generally, matters with the 60-day deadlines were not mailed to potential claimants since the shutdown. The mail with potential administrative claims has not been opened, determined, or processed since the shutdown. DEA and ATF have not sent referrals to the USAO since the shutdown because they do not know whether or not they have matters to send to the USAO from the mail. The 90 day requirement to file a civil forfeiture in rem action timely cannot be met. Most of this process is mail, not electronic, even though the seizing agencies provide claimants the option of electronic process. DEA and ATF handle the majority of the 27,500 to 31,700 DOJ administrative forfeitures each year. Theseadministrative forfeitures generate massive amounts of paperwork and require the regular, close physical interaction among office personnel in each agency's headquarters to prepare notice letters, correction letters, denial letters, the mailing envelopes for all of those letters, and the preparation of notice by publication for each forfeiture on the government's dedicated forfeiture website (www.forfeiture.gov). In addition, these employees physically handle large volumes of mail from the public on a daily basis, including hand-written letters, claims, petitions for remission or mitigation, and requests for reconsideration. Although the seizing agencies are capable of processing claims and petitions submitted electronically, the overwhelming majority of all submissions (approximately 85%) still come through the mail.
On March 13, 2020, President Trump declared a national emergency, effective as of March 1, 2020, due to the Novel Coronavirus Disease (COVID-19) pandemic. To allow federal employees and contractors to engage in social distancing to slow the spread of the virus, on March 15, 2020, United States Attorney General William Barr implemented a "maximum telework" policy, including all Department of Justice law enforcement components. The Departments of Homeland Security and Treasury, and/or the agencies within the scope of this request similarly ordered their employees to maximize telework. As a result, virtually all asset forfeiture employees working in the headquarters facilities of the Agencies in and around Washington, DC are teleworking. Both forfeiture attorneys and the forfeiture unit staff in this USAO are teleworking.
Undersigned AUSA contacted the numerous forfeiture seizing agencies to determine the number of matters or cases to which this and other extensions of time would apply for each agency related to the District of Nevada. DEA and ATF still cannot answer that question and need the third extension.3 The rest of the agencies do not the extension and are addressing these matters as quickly as possible.
This Court has filed numerous COVID-19 general orders to protect people working at and coming to this Court. The Nevada Governor has authorized phase 1 and phase 2 buthas warned that if the business do not follow the procedures and if the COVID-19 continues to increase he will pull back on the phases. During this time period, DEA starts Phase One on Monday, July 13, 2020, at 25%. ATF does not know when Phase One will begin.
In the United States as of July 7, 2020, approximately 3,097,084 people have been tested positive for the coronavirus and approximately 133,972 people have died.4
With limited exceptions,5 the provisions of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Public Law 106-185, 114 Stat. 202, govern most aspects of federal administrative forfeitures and judicial forfeitures. For administrative forfeiture proceedings, CAFRA requires statutory deadlines for ATF and DEA to send written administrative notices by first class mail; by certified mail, return receipt requested; or commercial delivery with confirmation receipts to potential individuals or entities who may have an interest in the seized asset: 60-days from the date of seizure for federal seizures and 90-days from the date of state or local law enforcement agencies' seized property and requested federal government to adopt the seized property.6
In addition to, or instead of, submitting an administrative claim, a party may submit an administrative petition for remission or mitigation of the forfeiture that is described in the notice letter that most likely commences the administrative forfeiture proceeding, and must be submitted to the agency in a similar manner to an administrative claim.7
The federal law enforcement seizing agencies' headquarter supervisors can extend the time to send written administrative notices once for 30 days.8 The government can move for extensions of time, and the court may extend the time for the federal agencies to send written administrative notices in increments of 60 days.9 Some nonexclusive reasons are:
if there is reason to believe that notice may have an adverse result, including-(i) endangering the life or physical safety of an individual; (ii) flight from prosecution; (iii) destruction of or tampering with evidence; (iv) intimidation of potential witnesses; or (v) otherwise seriously jeopardizing an investigation or unduly delaying a trial.10
The administrative forfeiture proceedings probably commence when the government provides administrative notice.11 A person claiming an interest in the seized property has 35 days after receiving the written administrative notice to file an administrative claim. If it is not received, a person must file an administrative claim within 30 days after the last publication notice date.12
When an administrative claim is filed with ATF and DEA contesting the administrative forfeiture, ATF and DEA must send by email or mail the matter to the appropriate USAO who has 90 days to decline the matter, to request an extension of time to investigate it further, to file a civil forfeiture action, or to obtain an Indictment with a forfeiture allegation and to preserve the seized assets.13 The USAO can request extensions oftime to the 90-day deadline to file the civil forfeiture in rem complaints, and the court may extend the time period based on good cause shown or upon the parties' agreement.14
This Court should grant the 60 day extension of time for the law enforcement agencies' employees to mail written notice to potential claimants in administrative cases based on the following facts and reasons. The law enforcement agencies' employees were sent home for their protection to protect them and their families from COVID-19. Sending them home and closing down the mailroom until further notice prevents the employees to meet the CAFRA requirements of written notice to potential claimants of the seized assets.15
One of the Congressional reasons for an extension of time is if mailing the written notice would endanger "the life or physical safety of an individual."16 Requiring the federal law enforcement agencies' employees to work regularly and closely in physical contact with each other, handling large volumes of mail from the public on a daily basis, including claims, petitions for remission or...
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