Tag: election of proceedings

Notice of Seizure and Intent to Forfeit (CAFRA) at the Port of Detroit

Cash seized by Detroit Airport CBP: Going, going… gone?

Posted by Jason P. Wapiennik on May 5, 2017

I’ve been a busy customs lawyer recently, but most especially the last six months. Therefore, while I’ve still been trying to get each of you many readers some new stuff for the customs law blog each week, my attention has been mostly elsewhere.

And so, I’ve finally got back to keeping an eye on the weekly forfeiture notices published U.S. Customs & Border Protection each week. There was nothing interest this week for Detroit or Chicago in terms of CAFRA seizures, but last week’s notice had some unfortunate postings:

PUBLICATION/POSTING START: April 28, 2017

PUBLICATION/POSTING END: May 28, 2017

DEADLINE TO FILE A CLAIM: June 27, 2017

2017380700072301-001-0000, Seized on 02/08/2017; At the port of DETROIT, MI; U.S. CURRENCY RETAINED; 217; EA; Valued at $20,719.00; For violation of 31USC5316, 31USC5317, 31CFR1010.340(A)

2017380700078501-001-0000, Seized on 02/22/2017; At the port of DETROIT, MI; US CURRENCY RETAINED; 151; EA; Valued at $13,989.00; For violation of 31USC5316, 31USC5317, 31USC5324, 31CFR1010.340(A)

I cringe when I see entries like this. What in the hell happened that two people have let almost $35,000 get published for forfeiture? Both occurred at Detroit airport in February, both contain no allegations of illegal activity aside from a failure to report or a cash structuring violation, and yet…. here it is, just about as good as gone. (The only way it would be published and not as good as gone is if someone filed seized asset claim form, as opposed to some administrative option. Generally, for most people and cases, a claim is a bad idea. Despite what other self-styled “premier forfeiture litigators” may put on their websites.)

“But wait!” you say, “the deadline to file a claim is not until June 27!” That is true, but you are ineligible to file a claim if you received a notice of seizure letter. So if you just chose to do nothing in the 30 days from the date of mailing of the notice then you can’t step in and file a claim once it has been published…. that is unless you have a Really Clever Customs Lawyer.

The CBP global entry line at Detroit Metropolitan Airport.

Detroit Metro Airport CBP Seize $59,451 Cash

Posted by Jason P. Wapiennik on December 1, 2016

Finally, a CBP cash seizure press release from my own home port of Detroit that happened at Detroit Metropolitan Airport, which is just a few miles down the road from our office. This one involves a U.S. citizen returning from China with his wife; together, the couple was found to be transporting more than $10,000 cash through Customs…. about $50,000 more, actually.

Here’s the full story from Detroit CBP:

DETROIT— On November 28, 2016, U.S. Customs and Border Protection (CBP), Office of Field Operations at the Detroit Metropolitan Airport seized $59,451 in U.S. currency from a United States citizen after he failed to report the currency to CBP officers. The traveler is a member of the Global Entry trusted traveler program.

The male traveler and his wife arrived in Detroit on a flight from Beijing, China. He initially denied carrying $10,000 or more in U.S. currency or its equivalent in foreign currency. CBP Officers questioned the traveler as he and his wife attempted to exit the federal inspection area separately 13 minutes apart. Further inspection led to the discovery of $59,451 divided between the two.

“You must report to CBP that you are carrying $10,000 or more in U.S. dollars or equivalent foreign currency or other monetary instruments when you travel into or out of the United States, especially if you are a member of Global Entry.” said Devin Chamberlain, CBP Detroit (Airport) Port Director. “There is no limit as to how much currency travelers can import or export. However, the law requires travelers to report when they carry at least $10,000 in monetary instruments. Violators may face criminal prosecution and forfeiture of the undisclosed funds.”

As you can see, this story involves both a failure to report cash to customs and unlawful cash structuring. As we’ve explained time and time again at this customs law blog, cash will be seized by Detroit CBP if it is divided between a husband and wife (or other family members) traveling together and CBP has cause to believe it was done for the purpose of avoiding filing the currency report on form FinCen 105.

Had cash seized at Detroit Metro Airport by CBP?

If you’re like the people in this story and have suffered a cash seizure by U.S. Customs & Border Protection (CBP) at Detroit Metro Airport, you’re in need of a lawyer to help you get your money back and potentially avoid criminal prosecution or inquiry. Every case is different and nuances, exceptions and interpretations are almost always present making each case unique and challenging. Many people need help even understanding the election of proceedings form that is included with the notice of seizure.

Please make use of our customs currency seizure legal guide, but remember to also take advantage of our free currency seizure consultation by contacting us today by clicking on the contact button!

Being Forced to Abandon Cash to Customs can Occur by Signing an Election of Proceedings form or Notice of Abandonment form

Threatened by CBP to abandon cash

Posted by Jason P. Wapiennik on August 19, 2016

Based on our sources, I have come to the belief that a good chunk of the notices of seizure and intent to forfeit publications/postings concerning cash seized at the Detroit Metropolitan Airport are the result of an effort, on the part of some CBP officers, to encourage people to abandon their money through such things as the threat of arrest, or the threat of futility. Read the we called “Forced to Abandon Cash to Customs?” from a few months ago about the process (video on the topic here).

The threat of arrest is real, if often improbable. Not reporting currency, smuggling cash, and/or structuring it is a crime, even punishable by prison. But, in our experience, if there is no apparent and obvious connection to illegal activity, CBP will not make an arrest and there will be no criminal prosecution.

At the time of seizure, I’ve had clients tell me they are presented (prematurely…) with an “election of proceedings form”. The election of proceedings form is explained to them in a way that leads the client to believe there only chance of avoiding arrest is to choose to abandon the money and relinquish all rights to it and to future notice; and if they don’t want to abandon it, they will be arrested, will have to go to court, and even if they win, they will only get back a few dollars due to fees and penalties that will be charged. That’s the threat of futility. Why fight if you’ll never win?

This is not true. Never, ever trust the people who are seizing your money to tell you the truth about the best way to get it back. Never take legal advice from anyone who is not a lawyer, especially if that person is has no reason to act in your best interests. Above all, remember, you have the right to remain silent.

With this in mind, last week’s Forfeiture Notice for Detroit contained a high dollar seizure that occured on June 29, 2016, at Detroit Metropolitan Airport. Here’s the excerpt:

2016380700090601-001-0000, Seized on 06/29/2016; At the port of DETROIT, MI; US CURRENCY RETAINED; 437; EA; Valued at $36,090.00; For violation of 31USC5317, 31USC5316, 31CFR1010.340(A), 31USC5324

When faced with a situation where CBP is telling you to abandon the cash or risk everything, it’s the proverbial gun to the head. “Give me your money or your life” situation. Don’t be fooled, the choices CBP may have presented you with are not real. They are false, and might be designed to manipulate you into abandoning your hard earned money.

Did you abandon cash to Customs (CBP)?

If you abandoned your cash by mistake, or by the threat of force or coercion, you need the advice of a customs lawyer, not this article (which is not legal advice). If you were forced to abandon cash to Customs, you can learn more about the process from our trusted customs money seizure legal guide and can contact us for a free currency seizure consultation by clicking the contact buttons on this page. You can also watch this video where this topic is discussed:

Detroit CBP Cash Seizure: Last Call!

Posted by Jason P. Wapiennik on July 19, 2016

On July 8, CBP Detroit issued a notice of intent to forfeit $15,554 that was seized at Detroit Metropolitan Airport on May 9, 2016, for a violations of the unlawful structuring and the border cash reporting requirements. The notice of seizure and intent to forfeit publications on forfeiture.gov or the legal equivalent of the bartender yelling “Last call!” at a bar and turning on the lights.

As with a similar story we posted days ago, because this notice is being published likely means that someone chose to abandon cash seized by CBP, or that they never a notice of seizure by mail. Because someone missed the deadline, the notice, or abandoned the property, CBP has thus begun administrative forfeiture proceedings.

Here’s the notice:

PUBLICATION/POSTING START: July 08, 2016
PUBLICATION/POSTING END: August 07, 2016
DEADLINE TO FILE A CLAIM: September 06, 2016

2016380700077501-001-0000, Seized on 05/09/2016; At the port of DETROIT, MI; US CURRENCY RETAINED; 200; EA; Valued at $15,554.00; For violation of 31USC5317, 31USC5316, 31CFR1010.340(A), 31USC5324

Anyone with a legal interest in the property can submit a claim, with some limitations. Completing a claim and properly submitting it to CBP is the last chance for anyone with an interest in the property to try to get it back.

After money has been seized by CBP, it is best to consult with and proceed with the advice of a law firm that specializes in customs laws and cash seizures; there are number of mistakes that can be made in electing to proceed with making an offer in compromise, filing a claim, an administrative petitioner, or otherwise responding.

If you want to learn more about responding to a customs cash seizure, read our trusted customs money seizure legal guide and can contact us for a free currency seizure consultation by clicking the contact buttons on this page.

A CBP notice of seizure letter contains bad legal advice from CBP; 30 days from date of mailing, not date of the letter.

Don’t Take Legal Advice From CBP

Posted by Jason P. Wapiennik on July 6, 2016

In our piece of responding to a customs money seizure and a petition for return of seized cash, we warn anyone who has had cash seized by Customs against trusting customs that, in a few simple steps, they will get their money back. Do not trust the purported requirements in the notice of seizure like explaining why you “broke the law” (admitting a crime = bad idea) or “unquestionably proving” the source and use of the money, or that bank statements and tax returns are always necessary. Do not take legal advice from CBP. You need legal advice from a customs lawyer.

Recently, I read a court opinion by a (wise) judge who complained about bad legal advice from CBP. In all the 50 states, only lawyers can give legal advice. If a lawyer happens to work for CBP, they could not give advice to someone who has had cash or property seized because they would have a conflict of interest and could not be expected to give candid advice. This judge, in United States v. Martin, 460 F. Supp. 2d 669, 674 (D. Md. 2006), said:

It is . . . unfortunate that, though sent by non-lawyers to people who could not in any case be their legal clients, [CBP] purport[s] to give legal advice [by stating in the notice of seizure letter “Your legal options are as follows.”[]].

It is illegal to practice law without a license. So when someone at CBP tells you what to do to protect your legal rights, it’s probably illegal. That’s why I bristle when I read CBP’s notice of seizure because it is often inaccurate and contradictory. Worse still are decision letters that ignore or mis-state the petitioner’s right to file a supplemental petition. This puts anyone in jeopardy when trying to respond to the complex and contradictory instructions in a notice of seizure.

Another of those bad pieces of legal advice from CBP is that, if you choose to file an administrative petition under 19 CFR 171.2, it must be filed within 30 days of the date of the notice of seizure letter. This is potentially misleading. In fact, 171.2(b)(1) says “Petitions for relief from seizures must be filed within 30 days from the date of mailing of the notice of seizure.”

In saying this, the notice of seizure letter presumes that the date on the letter is the date it is being mailed. That is sometimes true. It is also sometimes not true. Certainly, there is probably a rebuttable presumption that the date on the letter is the same date as the date of mailing. Atteberry v. United States, 27 CIT 751; 267 F Supp 2d 1364 (2003). But, the post mark on the letter might bear evidence that the date of mailing is other than on the date of the letter.

The best practice is not to fight about it, and submit a petition within 30 days of the date of the letter or obtain an extension. But if 30 days has already passed and CBP is telling you they will not accept the petition, you should hope you saved the mailing envelope and it is post-marked after the date of the notice of seizure letter. And that CBP will act reasonably when presented with that information.

I once received a letter from CBP that provided 30 days to respond. It was dated April 6, ‘post-marked’ on April 15 (from a private meter), and received on April 29. 14 days is a long time for a piece of first class mail to be delivered, and so I suspect from April 15 to April 26 it was sitting on someone’s desk, until that person finally put it in the mailbox for pickup.

Did you take bad legal advice from CBP?

If you “missed” an incorrect deadline or have been asked to admit a violation to CBP, please contact us by clicking the “Call Now” button at the top or right side, or fill out the contact form for a callback.

Forced to Abandon Cash to Customs?

Posted by Jason P. Wapiennik on March 24, 2016

Were you forced to abandon cash to Customs (CBP) after it was seized? Occasionally I get called by someone who says they were forced into abandoning their money while they were being detained and questioned by CBP. We can help.

Why abandon cash to CBP?

The decision to abandon cash is usually coerced by the threat of arrest, threatening statements concerning

prior violations with Customs (for money seizures or other incidents), criminal convictions, or

because person carrying the cash does not want miss their flight, or are told if they abandon it they will not be further questioned.

A chance of being forced to abandon cash by customs is of the many, many, many, many reasons why you should never talk to CBP after a currency seizure; instead, assert your constitutional right to remain silent.

Can I get abandoned cash back from CBP?

At least when done during a detention, abandoning cash might not mean that you have no option to get the money back from CBP. Certainly, it makes the chances of retrieving the cash abandoned to customs harder, but perhaps not always impossible.

Much will depend on how the cash was abandoned. You will probably have been told to sign something, which could either be an election of proceedings form or something like a “notice of abandonment of all rights and interest in property,” which says:

I understand that I have a right to assert a claim in the seized property described above and to seek return of the property. With full knowledge of those rights, I hereby abandon any and all claims I may have to that property. I waive my right to receive notice of future administrative or judicial proceedings involving the property. I also waive any further right to contest the administrative or judicial forfeiture of the property described above.

This particular abandonment language has been successfully challenged in court, based on due process violations, coercion, and lack of a knowing and intelligent waiver. In other words, it could be challenged if were you forced into it and had no idea what you were signing and what it meant.

Beyond this, whether an abandonment can ever be successful is another interesting question. There appears to be no particular customs law on abandoning property, such as the laws written concerning administrative petitions, claims, and offers in compromise. Although it’s always an option presented in the CBP election of proceedings form, the form references no statutes or regulations, it simply states:

You may abandon the property or state you have no claim to or interest in it . . . . The government may proceed with forfeiture proceedings or address claims from other parties concerning the property, without further involving you.

The option does not say if abandoning the property is final, or irrevocable. It also tries to relieve CBP of their duty to provide notice. But, even an argument can be made about whether CBP can waive their obligation under the law to provide notice.

But could an administrative petition be filed with CBP to get back seized cash? Maybe! Could a CAFRA seized asset claim form be filed? Maybe! Could an offer in compromise be made? Maybe! There’s a lot of unsettled questions of law in the area of abandoning cash seized by CBP, to the point where I question whether it could really be irrevocably abandoned.

That leaves a lot of room to negotiate for it’s return, either through CBP or the U.S. Attorney’s Office. That means there’s a fairly decent chance of settling a cash abandonment case.

Were you forced to abandon cash to Customs (CBP)?

The process of getting seized cash back from CBP is, obviously, long, complicated and fraught with numerous problems. You need the advice of a customs lawyer, not this article (which is not legal advice). If you were forced to abandon cash to Customs, you can learn more about the process from our trusted customs money seizure legal guide and can contact us for a free currency seizure consultation by clicking the contact buttons on this page.

Understanding CBP’s Election of Proceedings Form

Posted by Jason P. Wapiennik on October 28, 2015

What is an election of proceedings form?

Upon receipt of a notice of seizure for unreported currency by Customs, you will see that CBP asks you to complete an “election of proceedings form.” This article is intended to help you understand what the form is and what can be done with it. As always, you should consult with a lawyer before communicating with Customs and deciding how to handle your seizure case.

What’s the purpose of an election of proceedings form?

The CAFRA Election of Proceedings Form. — The CAFRA Election of Proceedings Form tells Customs how you want to proceed with your currency seizure case

This election of proceeding form does exactly that: it tells Customs how you want to proceed with your currency seizure case (or other property seizure case, for that matter, but we here are limiting this to CBP currency seizure cases) under various different laws and procedural options. This form presents you with a variety of options, all of which are explained in some legal detail on the form itself:

Petition Administratively
Officer in Compromise
Abandon Any Claim or Interest
File a Claim for Court Action

You should only choose what option is best for your case after consulting with a lawyer; often a petition makes sense, but there are many times when a claim or offer in compromise is strategically the best decision to get your seized cash back from customs.

What box should I check on the form, and should I file a claim?

You should not blindly sign and returning documents to Customs without completely understanding what you are doing. As CBP’s notice of seizure says, you can only elect/choose one option. Prior to contacting our office for a consultation, you may find our article about responding to a currency seizure an aid to your understanding of the currency seizure process.

I often see client’s mistakenly send in both an election of proceedings form that says they want to file a petition and a CAFRA Claim Form. These are clients who have started the process by themselves and quickly get frustrated and lost in procedural details, who finally seek our help to get their seized cash back from customs.

You cannot sign the election of proceedings form requested that CBP consider a petition, and then also simultaneously file a “CAFRA Seized Asset and Claim Form”. The two exclude each other; you cannot do both at the same time. You must either file a petition, file a claim, make an offer in compromise, or abandon your interest.

What does each option do?

Again, the election of proceedings form goes into a good amount of legal detail that we won’t repeat here. But basically:

Filing a petition keeps the proceeding with Customs, to be decided by the port’s Fines, Penalties & Forfeitures Officer;
Filing the CAFRA Seized Asset Claim Form removes the decision from Customs FP&F and puts the case in front of a federal judge;
Abandoning your interest does just that, relinquishes your interest in the property; and,
Making an offer in compromise essentially is an avenue for someone to make a settlement offer to the government to settle a “questionable” (i.e., implausible) claim or controversy, and the offer in compromise laws must be strictly complied with.

There are often very good reasons for filing a claim. But, when filing a claim, you should understand that submitting the CAFRA Seized Asset Claim Form will take the decision before a Federal district court judge. That means you will have to appear at a Federal district court on several occasions, exchange written discovery, take and have your deposition taken (that is, sworn testimony under oath and recorded), likely make and respond to several pre-trial motions (such as motion for summary judgment or motion to dismiss), and ultimately, have your “day in court” with a real judge and real government prosecutor’s cross-examining you about the circumstances of the seizure and your finances.

As stated, the analysis of “what box to check” should not be undertaken with consulting with an attorney who knows the customs laws. This article is not a substitute for the legal advice you would receive from a law firm like us, so do not rely on it.

I’m confused about what to do. Now what?

If you have had currency seized from Customs do not try to respond yourself but hire our firm, because we know what we are doing and have successfully handled many cases like yours. If you have questions, please give us a call at (734) 855-4999. We are able to assist with cash seized by customs around the country, including Chicago, Atlanta, New York, Los Angeles, Orlando and many other places, and not just locally in Detroit. Please read these other articles: