When the federal government seizes property, the seizure and forfeiture process is usually subject to The Civil Asset Forfeiture Reform Act of 2000 (CAFRA). CAFRA imposes strict safeguards and time limits on the government when forfeiting property, and even provides an innocent owner defense for claimants. However, many seizures and forfeitures by Customs and Border Protection (CBP) are not subject to CAFRA.
The Customs Carve-Out
18 U.S.C. 983(i) defines the term "civil forfeiture statute" under CAFRA in part by listing several forfeiture statutes that are exempt from CAFRA. Section 983(i) provides that any seizure and forfeiture law under Title 19 of the U.S. Code is not considered a “civil forfeiture statute" for CAFRA purposes, meaning that any seizure and forfeiture authority under Title 19 is not subject to the procedural safeguards of CAFRA, including notice and the innocent owner defense. When CBP seizes imported merchandise under 19 U.S.C. 1595a(c), they are exempt from the strict CAFRA procedures and safeguards. Likewise, seizures of exported merchandise are usually exempt from CAFRA because CBP's power to seize merchandise for export "contrary to law" is derived from 19 U.S.C. 1595a(d). Because of this, the Title 19 exclusion under Section 983(i) is nicknamed the "Customs Carve-Out" of CAFRA.
Notice of Seizure & Forfeiture
Most seizure notice requirements for Customs do not follow CAFRA procedures because CBP's general authority to seize is derived from Title 19. However, CBP may also seize merchandise under the authority of other forfeiture statutes subject to CAFRA, such as currency seizures under the Bank Secrecy Act via 31 U.S.C. 5317(c). In those instances, CBP is required to follow CAFRA notice and forfeiture requirements. To differentiate between these CAFRA and Non-CAFRA seizures, CBP uses two separate and appropriately titled forms when generating the notices of seizure.
Seizures subject to CAFRA require the notice of seizure to be sent to interested parties within 60 days of the date of seizure under 18 U.S.C. 983(a)(1)(A)(i). If the notice of seizure is late, the government must return the property seized via 18 USC 983(a)(1)(F). However, for a non-CAFRA seizure, Customs is not required to send the notice of seizure within any deadline (except the 5-year statute of limitations under 19 U.S.C. 1621).
Delay in Non-CAFRA seizures by CBP
19 U.S.C. 1621 provides a 5-year statute of limitations barring forfeiture and penalties beginning at the time the alleged offense was discovered. There is no statute that provides due process procedures for Customs seizures like CAFRA. However, federal courts recognize a defense to non-CAFRA seizures/forfeitures if the government has taken an "unreasonable" or "undue" delay in seizing and forfeiting the merchandise. This defense, which originated in the Supreme Court in U.S. v. $8,850, 461 US 555 (1983), is a factor test that asks the Court to examine the reason and length of the delay, as well as any prejudices to the interested parties. Successfully arguing the government was undue in their delay in initiating forfeiture proceedings requires the court to release the claimant’s property and cancel forfeiture.
Conclusion
CAFRA imposes strict safeguards and time limitations on the government when seizing and forfeiting private property. Most seizures by CBP are not subject to CAFRA because seizures and forfeitures under the authority of Title 19 are exempt from CAFRA requirements. Because of this Customs Carve-out, it is important to understand the type of seizure you are dealing with as the protections for your clients may vary.
