Topic:
CRIMINAL LAW; CIVIL PROCEDURE; FORFEITURE; DRUGS;
Location:
FORFEITURE;
Scope:
Federal laws/regulations; Connecticut laws/regulations;

OLR Research Report


The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH




December 1, 1995 95-R-1336

TO:

FROM: Sandra Norman-Eady, Senior Attorney

RE: Federal and State Drug Forfeiture Laws

You asked for a summary of federal and state drug forfeiture laws. You also wanted any available data on asset forfeiture in Connecticut.

SUMMARY

The federal anti-drug statutes contain two asset forfeiture provisions: one that requires certain types of property to be forfeited as part of the sentence imposed for a felony drug conviction; and one that allows federal prosecutors to bring a civil forfeiture proceeding to seize certain types of property even if there is no criminal conviction.

Connecticut's drug asset forfeiture law was enacted in 1989. It authorizes law enforcement agents to seize and prosecutors to bring a civil forfeiture action against property (1) used or intended to be used to commit or facilitate an illegal drug sale; or (2) derived or obtained from the proceeds of an illegal drug sale. The forfeiture action is considered an in rem proceeding (i.e., the action is filed against the actual seized property). Property may be forfeited even if there is no criminal conviction.

We have requested the Chief State's Attorneys Office's Asset Forfeiture Unit to provide us with state forfeiture statistics. We will send them to you as soon as they are received.

FEDERAL DRUG FORFEITURE LAW

Mandatory Forfeiture Accompanying Felony Drug Convictions

As part of the sentence imposed against a convicted federal felony drug offender, the law requires the offender to forfeit drug profits and proceeds, property used to commit the crime, and any interest he maintains in a continuing criminal drug enterprise (21 USCA 853 (a)). At the trial itself, there is a rebuttable presumption a convicted drug felon's property is subject to forfeiture if the prosecutor shows by a preponderance of the evidence that: (1) the property was acquired at the time of the drug crime or within a reasonable time afterward; and (2) there was no other likely source of the property (21 USCA 853 (d)).

Property subject to criminal forfeiture includes real property, plus things growing on, affixed to, and found in it; and tangible and intangible personal property, including rights, privileges, interests, claims, and securities. If the defendant transfers this property to another individual, it is subject to a separate forfeiture verdict unless that person bought the property for value in good faith and without notice of its criminal origin (USCA 853 (b) and (c)).

To preserve the availability of property subject to forfeiture, a prosecutor can obtain a temporary restraining order preventing the defendant from transferring it. The court may enter the order before an indictment is issued and without notice or a hearing for the defendant. The prosecutor must establish: (1) probable cause that the property would be forfeited upon conviction; and (2) notice would jeopardize the property's availability when forfeiture is ordered. This order cannot last more than 10 days but can be extended for good cause. An order issued after notice and an opportunity for a hearing is effective for up to 90 days unless extended or unless an indictment or information has been filed (21 USCA 853(e)(2)).

The court may also issue an injunction or require a bond to assure the availability of property subject to forfeiture. If a prosecutor seeks this remedy before an indictment is issued, he must give the offender notice and an opportunity for a hearing. At this hearing, the prosecutor must prove: (1) a substantial probability the government will prevail on the forfeiture issue; (2) the court's failure to order the remedy will likely result in the destruction or removal of the property from the court's jurisdiction; and (3) the need to preserve the property's availability outweighs the offender's hardship if the court orders the remedy. The pre-indictment bond or injunction cannot last more than 90 days; but it can be extended for good cause or if an indictment is filed. There is no time limit or requirement for a hearing and proof if the prosecutor seeks the bond or injunction after an indictment (21 USCA 853(e)(1)).

If the property cannot be located, is transferred or sold to a third party, is placed beyond the court's jurisdiction, is substantially diminished in value, or commingled with other property that cannot be divided without difficulty as a result of any act or omission by the defendant, the court must order the defendant to forfeit some of his other property up to the value of unavailable property (21 USCA 853(p)).

The Attorney General must direct the sale or some other commercially feasible disposition of forfeited property. The defendant, his agents, or co-conspirators cannot repurchase the forfeited property, and unsold forfeited property does not revert to him (21 USCA 853(h)).

The government must publish a notice of any forfeiture order and its intent to dispose of the forfeited property. The government may also provide direct written notice, instead of a published one, to anyone claiming an interest in the property. Within 30 days of receiving notice, anyone claiming an interest in the property can petition the court for a hearing. The petition must be signed under penalty of perjury and must specify the nature and extent of the petitioner's property interest, the time and circumstances of his acquisition, and any additional facts supporting his claim.

A hearing must be held within 30 days of the date the petition is filed. The hearing is held before the court, without a jury, and all parties have the right to present and cross-examine witnesses. If the court determines that the petitioner established his claim by a preponderance of the evidence, it must amend the forfeiture order in accordance with such determination. Following the disposition of any petition or the expiration date for filing such petition, the government has clear title to the forfeited property (21 USCA 853(n)).

Civil Forfeiture

In addition to mandatory forfeiture accompanying a felony drug conviction, federal law subjects other property to civil forfeiture proceedings and deprives the offender of any rights to the property. This property includes: (1) all privately owned vehicles, boats, or aircraft used to transport or conceal drugs; (2) all money, checks, notes, and securities paid in exchange for drugs and proceeds traced to these exchanges; and (3) all real property, such as land, buildings, and other improvements, used to commit a drug felony (21 USCA 881(a)).

The law deems the Attorney General temporary custodian of the seized property subject to an eventual forfeiture order, and the offender cannot recover the property pending the court's decision (21 USCA 881(c)). Once the court orders the property forfeited, the Attorney General has the following options: (1) retain the property for official use; (2) transfer it to any federal, state, or local agency in a manner generally reflecting its contribution to the law enforcement investigation; (3) sell property that is harmless or is not required to be destroyed; or (4) direct General Administrative Services to take the property and dispose of it. Any sale proceeds and any money forfeited must be used to pay costs associated with the seizure and maintenance of the property, advertising and court costs, and awards of up to $100,000 for informant information that leads to the arrest and conviction of a person who kills or kidnaps a federal drug enforcement agent (21 USCA 881(e)).

CONNECTICUT LAW

Connecticut does not have a mandatory forfeiture law. It authorizes prosecutors to institute civil forfeiture actions against any property derived or obtained from the proceeds of an illegal drug sale or exchange, or used or intended to be used to commit or facilitate an illegal drug sale. Property may be forfeited even if there is no criminal conviction. In addition, all proceeds and property obtained by a corporation as a result of money laundering are subject to forfeiture (CGS 54-36h).

Within 90 days of the date property is seized, the state may petition the court for a forfeiture order. The court must identify people who have a property interest in the seized property and the prosecutor must notify them of the hearing by certified or registered mail. The hearing is a civil proceeding, and the state must prove its case by clear and convincing evidence. The clear and convincing standard is higher than the preponderance of evidence required in federal law but not as high as the standard required in criminal cases (beyond a reasonable doubt).

The court must enter a forfeiture order if it finds that the owner used the property as indicated above or that he knew or could have reasonably known that the property was used in this manner. The commissioner of administrative services must sell the forfeited property at a public auction. Any sell proceeds must be used to pay (1) the balance due on any lien preserved by the court in the forfeiture proceedings; (2) the costs incurred for storing, maintaining, securing, and forfeiting the property; and (3) court costs (CGS 54-36h(f)). Any balance must be deposited in the Drug Assets Forfeiture Revolving Account for substance abuse treatment, education programs, and drug enforcement in accordance with the following formula: 70% to the Department of Public Safety, 20% to the Department of Public Health and Addiction Services, and 10% to the Division of Criminal Justice (CGS 54-36i).

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