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FEDERAL ASSET FORFEITURE: USES AND REFORMS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

HOMELAND SECURITY, AND INVESTIGATIONS 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 11, 2015 

Serial No. 114–5 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, HOMELAND SECURITY, AND INVESTIGATIONS

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

KEN BUCK, Colorado 

MIKE BISHOP, Michigan 

SHEILA JACKSON LEE, Texas 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

CAROLINE LYNCH, Chief Counsel 
(III) 

C O N T E N T S 

FEBRUARY 11, 2015 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations ................................................ 1 

The Honorable Sheila Jackson Lee, a Representative in Congress from the 

State of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, 

Homeland Security, and Investigations ............................................................. 3 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 4 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 6 

WITNESSES 

Kenneth A. Blanco, Deputy Assistant Attorney General, Criminal Division, 

United States Department of Justice 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 11 

Keith A. Henderson, Prosecuting Attorney, Floyd County, IN 

Oral Testimony ..................................................................................................... 20 

Prepared Statement ............................................................................................. 22 

Darpana M. Sheth, Attorney, Institute for Justice 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 31 

David B. Smith, Attorney, Smith & Zimmerman, PLLC 

Oral Testimony ..................................................................................................... 55 

Prepared Statement ............................................................................................. 57 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Ranking Member, Subcommittee 

on Crime, Terrorism, Homeland Security, and Investigations ......................... 83 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Steve Pearce, Member of Congress .................................................... 102 

Message from Sheriff Scott M. London, Eddy County Sheriff’s Office, Carlsbad, New Mexico .................................................................................................. 103 

(1) 

FEDERAL ASSET FORFEITURE: 

USES AND REFORMS 

WEDNESDAY, FEBRUARY 11, 2015 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON CRIME, TERRORISM, HOMELAND SECURITY, AND INVESTIGATIONS

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:03 a.m., in room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Goodlatte, Chabot, 

Gohmert, Poe, Gowdy, Buck, Bishop, Conyers, Jackson Lee, Chu, 

Bass, and Richmond. 

Staff Present: (Majority) Allison Halataei, Parliamentarian & 

General Counsel; Christopher Grieco, Counsel; Alicia Church, 

Clerk; (Minority) Joe Graupensperger, Counsel; and Veronica Eligan, Professional Staff Member. 

Mr. SENSENBRENNER. The Subcommittee will come to order. 

Without objection, the Chair will be authorized to declare recesses 

when there are votes in the House. And hearing no objection, so 

ordered. 

The Chair will yield himself some time for an opening statement. 

It is hard to believe this can happen in America. The Government is seizing billions of dollars of cash and property from Americans, often without charging them with a crime. With origins in 

medieval law, civil asset forfeiture is premised on the legal fiction 

that inanimate objects bear moral culpability when used for wrongdoing. 

The practice regained prominence as a weapon in the modern 

drug war as law enforcement sought to disrupt criminal organizations by seizing the cash that sustains them. The practice, however, has proven a far greater affront to civil rights than it has 

been as a weapon against crime. 

While forfeitures have received increased attention in recent 

months, they are still poorly understood. During her recent confirmation hearing, Loretta Lynch, President Obama’s nominee to 

replace Eric Holder as Attorney General, testified that civil asset 

forfeiture is ‘‘done pursuant to supervision by a court, it is done 

pursuant to a court order, and I believe the protections are there.’’ 
2 

As a United States attorney, Lynch was known for her aggressive use of forfeiture provisions. She was, however, wrong when she 

testified that forfeiture is done pursuant to supervision by a court 

and wrong again when she said it was done pursuant to a court 

order. One wonders if she would still believe that the protections 

were there if she properly understood how they worked. 

After property is seized, its owner will usually have the option 

of challenging the seizure judicially with the Federal court system 

or administratively with the seizing agency itself. Seizures that are 

not challenged within 30 days of receiving notice are automatically 

forfeited. 

A majority of Federal civil forfeitures are never contested largely 

because of the high cost of retaining counsel, which often exceeds 

the value of the property itself. Because of the expense and complexity of the Federal court system and the short timeframe, most 

owners who contest forfeitures do so administratively. Thus, contrary to Ms. Lynch’s testimony, only a small percentage of Federal 

civil forfeitures have any involvement or supervision by a court or 

a judge. 

I look forward to hearing from our witnesses today about whether these administrative processes provide property owners with sufficient protections. Better documented has been the Justice Department’s use of adoption, which occurs when a Federal agency adopts 

a seizure from a State or local law enforcement and proceeds with 

Federal forfeiture. 

Under the Equitable Sharing Program, DOJ returns up to 80 

percent of the forfeited money to State agencies. Federal adoption 

allows police to ignore restrictions in State law by working with the 

Federal Government. 

A 2011 study found that police were, in fact, more likely to rely 

on Federal equitable sharing in States where the law made forfeitures more difficult or less rewarding. This presents a profound federalism problem and opens law enforcement agencies to allegations 

that they are policing for profit. 

After 5 last night, at the last minute before today’s hearing, DOJ 

sent new guidance on the revised adoption procedures it issued last 

month. I look forward to learning more about the impact of these 

revised adoption guidelines. 

Just last month, we learned that the DEA, through their cold 

consent searches, may have improperly searched citizens’ belongings at transportation hubs throughout the country. During these 

searches, DEA seized cash based mainly on the suspicion that a 

large quantity of cash was indicative of illegal activity. 

To make matters worse, according to the DOJ Inspector General, 

DEA did not always provide adequate information to those who 

had their cash seized. At times, people did not even know which 

agency had seized their money, making contesting the seizure extremely difficult. 

Our Founders understood the virtues of limited government. The 

right to own property is enshrined in the Fifth Amendment, which 

says no person shall be deprived of life, liberty, or property without 

due process of law. Current forfeiture provisions mock the spirit 

and meaning of that passage and create serious issues under several other constitutional provisions. 
3 

It is no wonder why my former colleague, Henry Hyde, described 

civil asset forfeiture as ‘‘an unrelenting Government assault on 

property rights, fueled by a dangerous and emotional vigilante 

mentality that sanctions shredding the U.S. Constitution into 

meaningless confetti.’’ 

Hyde led an effort that culminated in the passage of the Civil 

Asset Forfeiture Reform Act, known as CAFRA. It was a noble effort, but it plainly fell short. In advancing CAFRA, Hyde noted that 

in 1993, DOJ forfeited $556 million. Post-CAFRA, in 2012, DOJ 

seized $4 billion. 

Forfeiture’s only defenders seem to be its beneficiaries, the law 

enforcement agencies entitled to keep the proceeds of their seizures. The conflict of interest so stark that it takes us to another 

stage, and adequate forfeiture reform is overdue. 

I yield back the balance of my time and recognize the gentlewoman from Texas, the new Ranking Member of this Subcommittee, Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

I look forward to working with you, and I commend you for calling the first hearing of this Subcommittee in the 114th Congress 

to focus on the important issue of asset forfeiture. 

I would also like to acknowledge my colleagues, the Ranking 

Member, Mr. Conyers, Ms. Chu, Ms. Bass, and the other Members 

of this Committee who will be working with us in this term on 

what I consider a very important Committee. 

It is especially appropriate that we start with this topic because 

today’s hearing concerns foundational principles with respect to the 

relationship between government and its citizens. We ask government, largely through law enforcement agencies, to help protect us 

from crime, and we also expect that the government will respect 

our rights and not harm us. 

When we convict someone of a crime, often we deprive him or her 

of liberty. And for that, we put the burden on the government to 

prove guilt beyond a reasonable doubt. When the government seeks 

to use civil forfeiture laws to take someone’s property, only needing 

to prove its case by preponderance of the evidence, the government 

is not putting the person in prison, but it may be taking someone’s 

home or property that is critical to a person’s survival or livelihood. 

And of course, seizing even a relatively small amount of money 

may present a hardship for those of lesser means. The Government’s practice of asset forfeiture involves the intake of substantial 

sums of money. The forfeiture funds maintained by the Department of Justice and Department of Treasury together take in over 

$2 billion per year. 

The size of these amounts helps put into focus the tension between our property and due process rights on the one hand, and 

the Government’s interests in maintaining this funding system on 

the other hand, often relying on civil forfeiture procedures involving the low standard of proof. 

That is why we must ensure that the Federal laws that allow the 

forfeiture of money and other assets include necessary protections 

to ensure the innocent do not suffer from wrongful confiscation. 

Unfortunately, it is increasingly apparent that our laws are not 

sufficient in this regard. 
4 

The Chairman is right. We have looked at these issues over a period of time on this Committee and on our larger—on the full Committee. And I believe this is an important issue to take up at this 

time. 

We must guarantee that innocent owners are given a clear, affordable mechanism to successfully challenge unwarranted forfeiture, and the burden should not be on them to prove their innocence. Or we must end the practice of adoptive forfeitures that motivate some State and local law enforcement agencies to engage in 

tactics such as highway interdictions for the purpose of seizing assets to raise money. 

And while Federal law enforcement functions should be robustly 

funded through the normal appropriations process, we must eliminate any financial benefits that Federal law enforcement agencies 

may receive. 

For a moment, Mr. Chairman, if I might take note of the fact 

that we are operating under a set of laws that we have had since 

1789 and then the revised statutes of the United States approved 

on June 22, 1874, and a body of laws called the Code of Laws of 

the United States of America. And I only say that to stop for a moment and to acknowledge, as the Chairman indicated, my presence 

here as a new Ranking Member and my commitment to working 

with the Chairman. 

But I must take note of the fact that over the last 2 years, we 

have had a tumultuous time operating under the Criminal Code. 

We have seen families raise questions about the transparency of 

grand juries. We know that there is a need for prison reform. 

I want to thank the Chairman for his overcriminalization task 

force, working with Ranking Member Conyers and Chairman Goodlatte, and we know that there is a high rate of incarceration. I am 

hoping, as this Committee proceeds in its work, that we can work 

in a bipartisan manner to address the questions of mandatory 

minimums, prison reform, transparency in grand jury, and, yes, the 

use of lethal force. 

America is a great country, and I am proud to be an American. 

I believe its laws are important laws that exude liberty and justice. 

But I know that we on this Subcommittee, working with the full 

Committee, can find a pathway that treats fairly those who lift the 

hand of the law, who must go out every day to protect and serve, 

and those who are subjected to the law. 

My commitment is working with this Committee in a bipartisan 

manner to find that pathway and to give relief to mothers of persons such as Trayvon Martin, Eric Garner, Sean Bell, Tamir, and 

many others, who likewise are facing concerns that they would like 

to have addressed. 

With that, Mr. Chairman, I yield back my time. 

Mr. SENSENBRENNER. It is now my pleasure to recognize for his 

opening statement the Chairman of the full Committee, the gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. I thank Chairman Sensenbrenner for convening 

this hearing today on the important issue of civil asset forfeiture, 

and I, along with the gentleman from Wisconsin, the gentlewoman 

from Texas, Mrs. Jackson Lee; and the gentleman from Michigan, 
5 

Mr. Conyers; as well as others here today, were all serving on this 

Committee the last time Congress delved deeply into forfeiture. 

In 2000, Congress passed CAFRA, the Civil Asset Forfeiture Reform Act. CAFRA came from a recognition by this Committee and 

by others that civil asset forfeiture is a useful law enforcement tool, 

but one that needs to be carefully monitored. That same recognition exists today, but with the understanding that perhaps we need 

to add to the protections of CAFRA. 

Recent reports by The Washington Post, the New Yorker, and 

others have shown that there are systemic problems in the current 

system of civil forfeiture. We have heard of citizens losing their car 

or home when others in their family have been involved in small 

crimes. We have heard of traffic stops that result in innocent people losing the cash they were carrying to buy a car or for their 

small business. 

These stories, along with the recent Department of Justice Inspector General report on DEA cold consent encounters, have also 

highlighted the long and complicated process that innocent owners 

must go through to get their property back. As the report noted, 

travelers may be under significant pressure to sign away their belongings because of the location of the cold consent encounters. The 

Inspector General also noted that many citizens are not even aware 

of which agency seized their property, making contesting the preceding forfeiture action extremely difficult. 

I understand two of the witnesses today have represented these 

innocent owners and are familiar with the procedural morass of the 

current system. I look forward to hearing from them about how we 

can change the process to make sure that fewer innocent people are 

caught in the web of civil forfeiture while making it easier for those 

who are to be made whole. 

I also look forward to hearing from law enforcement. As I said 

at the beginning, I believe that civil forfeiture, when used appropriately, is a useful law enforcement tool that helps to eliminate 

the profits from criminal enterprises. Like any law enforcement 

tool, if used improperly or without significant safeguards, it has the 

possibility of infringing on the rights of citizens. 

The Justice Department, as the largest law enforcement agency 

in the country, has a vital role to play in this. We have heard a 

number of problems stemming from Federal adoptions of State seizures. I look forward to hearing from the department about how 

the recently announced changes to the department’s adoption policy will impact the department’s law enforcement responsibilities 

and how the new policy will impact law enforcement. 

I also understand there are significant exceptions to the so-called 

ban on Federal adoptions and look forward to hearing why those 

exceptions are in place and how wide the exceptions really are and 

whether or not they are an effective reform. 

I am also eager to hear from our local law enforcement officials. 

As the front line of all efforts to fight crime, it is imperative that 

we make sure that they have the tools they need to confront the 

criminal elements within their jurisdiction. 

While there have been changes since the passage of CAFRA and 

many more States now have their own forfeiture laws, the resources of our State and local law enforcement to prosecute for-
6 

feiture actions has not increased. I look forward to hearing from 

Mr. Henderson, a local prosecutor, about the resources at his disposal, how important Federal forfeiture is to policing and law enforcement in his county, and most importantly, how the recently 

announced DOJ policy will impact his ability to do his job. 

I am thankful that we have this opportunity to learn more about 

current civil forfeiture. I am eager to hear about ways we can 

strengthen the procedures and policies to make sure that this law 

enforcement tool can be used without infringing on the rights of ordinary Americans. 

I yield back. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The Chair now recognizes the Ranking 

Member of the Committee, the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Goodlatte. 

I, first of all, welcome all the witnesses, especially the witness 

from the Institute for Justice and our own witness, David Smith 

from Smith & Zimmerman. 

Members of the Committee and Chairman Sensenbrenner, it has 

become increasingly apparent that the procedures in Federal law 

governing civil asset forfeiture are inadequate from the perspective 

of fundamental fairness. And that is the theme I am getting from 

much of the opening statements. 

The unfairness of these laws and related procedures have recently been highlighted by revelations about abuses involving adoptive seizures. The practice of adoptive forfeiture allows the Federal 

Government to share the proceeds of the seizures with State and 

local law enforcement agencies and has motivated some of these 

agencies to engage in policing for profit. 

The series of articles in the Washington Post last year, entitled 

‘‘Stop and Seize,’’ detailed how equitable sharing motivated some 

State and local police to engage in abusive and coercive traffic 

stops in order to find pretense to seize assets from motorists. I 

have been hearing about that for a long time before I even came 

to the Congress. 

I commend the Attorney General Eric Holder, who apparently 

conservatives want to keep in that spot for as long as they can, for 

engaging in a review of Federal forfeiture policy. And specifically, 

last month, he was announcing significant changes to the Justice 

Department’s procedures governing adoptive seizures. 

The changes purport to cease this practice except when necessary 

to protect public safety. But I remain concerned that the new policy 

includes other exceptions, which would allow adoptive seizures to 

continue to a significant degree. 

Yesterday, the Justice Department announces clarifications to its 

policy, and I hope the department’s witness will provide us as 

much information about that today as he can. And I hope that 

other witnesses will offer comments on this policy as well. 

We must address the fundamental flaws in Federal forfeiture 

law. The problem is much broader, and I think Ranking Member 

Jackson Lee of Texas made some comment in this direction. We 

must address the Federal fundamental flaws in forfeiture law. The 

problem is much broader in scope than the issue of adoptive seizures. 
7 

The vast majority of forfeitures processed under the Federal law 

are the result of seizures by Federal law enforcement, and we must 

do more than adjust policies. We must change Federal law so that 

the burden is on the Government to prove that a property owner 

is not innocent, to raise the burden of proof on the Government 

when bringing a case, to send the proceeds of forfeitures to the general treasury fund, and to codify the elimination of equitable sharing. 

And finally, asset forfeiture reform has long been a bipartisan 

issue, raising serious concerns about fairness and due process on 

both sides of the aisle. We last enacted reform to the law in 2000 

under the Civil Asset Forfeiture Reform Act, which I coauthored 

with its primary sponsor, the late Henry Hyde. And so, we have 

learned a lot since the passage of that law, and that is why I am 

working with the Chairman of this Subcommittee and its Ranking 

Member to develop legislation addressing these issues. 

I thank the Chair, and I return the balance of my time. 

Mr. SENSENBRENNER. Before introducing the witnesses, let me 

yield to the gentleman from Virginia, Mr. Goodlatte, for an introduction. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Actually, two brief personal points of privilege. One, I would like 

to note that this is the first hearing in which the brand-new portrait of the former Chairman of the Committee and current Ranking Member is hanging in the hearing room, and I want to again 

commend the gentleman from Michigan for such a wonderful portrait that we are proud to hang in the Committee. [Applause.] 

Mr. SENSENBRENNER. He looks over us in many ways. [Laughter.] 

Mr. GOODLATTE. Secondly, I would like to take note that in the 

audience today is a prosecutor who is here for a meeting of prosecutors from around the country. Many of them are in town, but 

I am privileged to have one who is the commonwealth attorney for 

the City of Lynchburg, Virginia, Mike Doucette. Welcome, we are 

glad to have you with us here today as well. 

Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. Thank you. 

Without objection, other Members’ opening statements will be 

made a part of the record. 

Today’s witnesses are, first, Mr. Kenneth Blanco. Mr. Blanco was 

appointed to the position of Deputy Assistant Attorney General of 

the U.S. Department of Justice in April of 2008. His supervisory 

responsibilities include the Asset Forfeiture and Money Laundering 

Section, Child Exploitation Section, Narcotic and Dangerous Drug 

Section, and matters relating to Colombia and Mexico. 

Previously, Mr. Blanco served in various sections of the MiamiDade County State Attorney’s Office, including the Organized 

Crime Section, Public Corruption Section, and the Major Narcotics 

Section. He also served in the U.S. Attorney’s Office for the Southern District of Florida as an assistant United States attorney, and 

served in numerous leadership positions. 

He was also detailed to Washington, D.C., to serve as general 

counsel to the 1994 United States Attorney’s Office in the Executive Office of United States Attorneys. He also served as the Chief 
8 

of the Narcotic and Dangerous Drug Section at DOJ prior to his 

current position. He earned his law degree from Georgetown Law 

Center. 

Mr. Keith Henderson is the prosecuting attorney for Floyd County, Indiana. Prior to his four terms as Floyd County prosecutor, he 

was a Crawford County prosecutor and a former Indiana State 

trooper. He previously practiced private law and consulting. 

He is a board member of the Indiana Prosecuting Attorneys 

Council and current Chairman of its Ethics Committee. He represents Indiana prosecutors on the National District Attorneys 

Board and has served on its Executive Committee since 2007, 

which means he is currently serving in his ninth year. 

Mr. Henderson earned his undergraduate degree at Valparaiso 

University and his juris doctor at Brandeis School of Law. 

Third is Darpana Sheth. She is an attorney with the Institute for 

Justice. Her responsibilities include litigating property rights cases, 

as well as economic liberty cases. Prior to her role at the Institute 

for Justice, Ms. Sheth served as assistant attorney general for the 

State of New York. She previously practiced law as a litigation associate at the New York City law firm of Chadbourne & Parke, 

LLP. 

She also served as a law clerk to the Honorable Jerome A. 

Holmes of the U.S. Court of Appeals for the 10th Circuit. She received her undergraduate degree from the University of Pennsylvania and her law degree from Georgetown University Law Center. 

Mr. David Smith is in private practice at the law firm of Smith 

& Zimmerman, PLCC. His areas of practice include civil and criminal forfeiture, white-collar defense, restitution, and fines and criminal appeals. 

Prior to private practice, he was a prosecutor in the Criminal Division of the United States Department of Justice and at the U.S. 

attorney’s office in Alexandria, Virginia. While at DOJ, Mr. Smith 

served in the Appellate and Narcotic Sections of the Criminal Division and as first deputy chief of the Asset Forfeiture Office. 

He earned his undergraduate degree from the University of 

Pennsylvania, was a graduate student at Pembroke College, and 

earned his law degree from Yale Law School. 

Without objection, each of the witnesses’ statements will be entered into the record in its entirety. 

I ask that each witness summarize his or her testimony in 5 

minutes or less. You all know what the red, yellow, and green 

lights mean. 

And Mr. Blanco, you are first. 

TESTIMONY OF KENNETH A. BLANCO, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, UNITED STATES 

DEPARTMENT OF JUSTICE 

Mr. BLANCO. Thank you, Chairman Goodlatte, Ranking Member 

Conyers, Chairman Sensenbrenner, and Ranking Member Jackson 

Lee, and other Committee Members. 

I appreciate the opportunity to talk to you today about asset forfeiture and to discuss some recent misconceptions about our law 

enforcement efforts in this area. 
9 

As you know, asset forfeiture is designed to remove criminally 

tainted assets from circulation, thereby depriving criminals of the 

proceeds of crimes and the tools they have used to commit those 

crimes. By taking criminally tainted assets out of circulation and 

off the streets, we intend to break the financial backbone of organized criminal syndicates, terrorists, fraudsters, drug cartels, and 

use these assets to compensate victims and deter crime. 

Over the past 15 years, the department has returned billions of 

dollars to victims as a result of forfeiture. Nearly half of that was 

recovered through civil forfeiture. The department is proud of its 

Asset Forfeiture Program. 

However, we are keenly aware of certain concerns raised about 

certain seizures and forfeiture practices. The department takes seriously allegations of abuse of the forfeiture program, and we are 

constantly looking forward of ways to improve it. 

Over the past year, the department has been conducting an internal review of the Asset Forfeiture Program and the first results, 

the strict limitations on adoptions, were announced last month. 

This means that while State law enforcement agencies may undertake asset forfeiture under State law, the department will not 

adopt State seizures to be forfeited under Federal law unless certain public safety exceptions exist. The review that led to this 

change in our practice is continuing. 

Now I would like to address some of the most widespread misconceptions about civil forfeiture. We are acutely sensitive to the 

misconception and criticism that owners of seized property are presumed guilty and, thus, have the burden of proving their innocence 

to regain their property. This is not correct. In civil forfeiture, the 

burden is always on the Government. In order to seize an asset, 

the Government must show probable cause, linking that asset or 

that property to a crime. 

Then if the seizure is contested, the Government has the burden 

of proving by a preponderance of the evidence the nexus of that 

property in question to a crime before the Government can forfeit 

that property. If the Government fails to meet this burden of linking the property to a crime, the Government loses its case. 

In other words, the property’s connection to a crime must be 

proven by the Government, not disproven by the owner. Only after 

the Government meets its burden of proving that the property is 

criminally tainted—that is, it represents the proceeds of a crime or 

has facilitated a crime—does the Government get the forfeited 

property. After the Government has met its burden and the property is adjudicated or determined to be forfeited, the law provides 

the property owner the opportunity to assert an innocent owner 

claim. 

Critics also claim that civil forfeiture enables the Government to 

take possession of a person’s property without charging or convicting that person of a crime. The criticism is that we can seize 

and forfeit property in the complete absence of a crime. This is not 

the case. The property seized, the Government must have probable 

cause to believe that it is connected to criminal misconduct. 

To forfeit property in a civil proceeding, the Government has to 

prove by a preponderance of the evidence that that property was 
10 

tied to a crime. The Government must always demonstrate a nexus 

to a crime. 

Now in many cases, the assets may be separated by design from 

their true owner and criminal. The tainted property may be in the 

possession of a third party other than the person who committed 

the crime. 

Criminals may be located outside the United States and outside 

the reach of our jurisdiction. The defendant or criminal may also 

be deceased. In these cases, civil forfeiture is the only means by 

which the Government can take these criminally tainted assets out 

of circulation and repay the victims. 

Finally, it is important to note that asset forfeiture enables the 

Government to assist and compensate victims of crime. In fact, 

asset forfeiture laws, including civil asset forfeiture laws, are the 

most effective tool in recovering the proceeds and property of crime 

for victims. Since 2000, the department has returned over $4 billion in assets to victims of crime through asset forfeiture, $1.87 billion of which was recovered through civil forfeiture and returned 

to victims. 

Thank you. 

[The prepared statement of Mr. Blanco follows:] 
11 
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14 
15 
16 
17 
18 
19 
20 

Mr. SENSENBRENNER. Thank you very much, Mr. Blanco. 

Mr. Henderson? 

TESTIMONY OF KEITH A. HENDERSON, 

PROSECUTING ATTORNEY, FLOYD COUNTY, IN 

Mr. HENDERSON. Chairman Sensenbrenner, Chairman Goodlatte, 

Ranking Member Jackson Lee, and Ranking Member Conyers, 

Members of the Subcommittee, my name is Keith Henderson. I am 

the prosecuting attorney in Floyd County, Indiana, part of the Louisville, Kentucky, metro area. 

I am also here today as a member of the Executive Committee 

for the National District Attorneys Association, NDAA, the largest 

and oldest organization representing prosecutors from across the 

country. 

Civil asset forfeiture laws have changed substantially over the 

years, beginning with the Federal forfeiture program and now including forfeiture laws in most States. On Friday, January 16th, 

Attorney General Eric Holder announced changes to these civil forfeiture policies under the DOJ that would eliminate the ability of 

State and local law enforcement to seize assets and turn them over 

to Federal authorities for forfeiture. 

NDAA as well as law enforcement have expressed concern that 

these policies have not adequately been studied as far as the impact on and the direction on State and local governments and that 

a key constituency has been left out of that process. Attorney General Holder indicated that State adoptions would be prohibited, and 

I quote, ‘‘except for property that directly relates to public safety 

concerns, including firearms, ammunition, explosives, and properties associated with child pornography.’’ 

While we applaud the continued inclusion of these types of property, we remain concerned that the decision is yet another step in 

the continued erosion of drug enforcement by the Federal Government. 

Asset forfeiture is a tool. It is a tool used by law enforcement to 

go after the pocketbooks of drug dealers. If we take away the disincentive for these criminals to profit from their crimes, we could 

jeopardize the safety of our communities and drug enforcement. 

Additionally, there is less of an incentive now for locals to partner with Federal officials. Agencies such as the FBI and DEA need 

participation from local law enforcement, as these Federal agencies 

rely heavily on local intelligence being gathered to aid in the broader investigations. Local police must now question the financial feasibility of embedding officers with Federal law enforcement with 

these changes. 

As part of the recent decision, drug forfeitures would be severely 

limited, and adoptions would only be granted through very narrow 

exceptions. For example, under the new policy, DOJ will take an 

adoption if a firearm is involved but might not otherwise. This approach seems shortsighted, as very few cases involve just firearms. 

The bottom line is this. Drug dealing remains a major crux of 

crime in this country. It is the root cause of many other crimes of 

violence. From murder to property crime to the endpoint of the increasing number of drug-ingested deaths, the human destruction 

attributable to drug dealing remains high. 
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Criticisms of the program have been offered with stories of individuals having assets seized and never returned, regardless of the 

outcome of any criminal charges. Let me be clear. Our members 

strongly support due process under the law and fully denounce any 

seizure of property and other assets of falsely accused individuals. 

Several potential reforms could be examined in conjunction with 

a comprehensive study. We do not condone unfair and abusive 

practices, but we must have factual documentation of these abuses 

in order to properly understand what types of reform could make 

the current system more effective. 

Recently, four national law enforcement organizations—the 

Major Cities Chiefs, the Major County Sheriffs, the International 

Association of Chiefs of Police, and the National Sheriffs—all 

signed a letter to the Attorney General regarding the Asset Forfeiture Program and included some major policy proposals for reforms. We stand with law enforcement in calling for these reforms 

to be reviewed as potential paths forward on the Asset Forfeiture 

Program. 

Finally, NDAA believes that law enforcement and prosecutors 

should always avoid pursuing forfeiture actions when the primary 

purpose is to obtain assets rather than pursue a criminal prosecution. We remain hopeful that the Administration and DOJ will improve its communication with organizations that I have outlined 

and with NDAA as a means to develop sound, practical, and effective policy. 

We stand ready to engage with the department on this issue and 

many others. 

Thank you. 

[The prepared statement of Mr. Henderson follows:] 
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Mr. SENSENBRENNER. Ms. Sheth? 

TESTIMONY OF DARPANA M. SHETH, ATTORNEY, 

INSTITUTE FOR JUSTICE 

Ms. SHETH. Good morning, Mr. Chairman Sensenbrenner, Mr. 

Chairman Goodlatte, Ranking Member Jackson Lee, and Ranking 

Member Conyers, and Members of the Committee. 

Thank you for inviting me to testify about the urgent need to reform our Federal forfeiture laws. There is an emerging consensus 

across the political spectrum that the time for reform is now. Even 

the Justice Department and the State and local law enforcement 

have conceded the need for reform. 

In light of this overwhelming consensus, I will focus my remarks 

on two key aspects that Congress must address. First, the self-financing of law enforcement agencies, which inherently distorts law 

enforcement priorities. And second, the inadequate procedural protections afforded to property owners. 

Current Federal law incentivizes forfeiture by allowing law enforcement agencies to keep 100 percent of the proceeds. At a time 

when government at all levels face serious budget shortfalls, it is 

no surprise that forfeiture has become ever more attractive. But directing forfeiture proceeds back to the very agencies responsible for 

the forfeiture is antithetical to our American constitutional system 

in three ways. 

First, the self-funding of executive branch agencies violates the 

separation of powers. The Constitution gives Congress, the most 

representative branch of Government, the power over the purse. 

And it is past time for Congress to reclaim this power as an important check on the executive branch. 

Second, it violates principles of federalism. Under the Equitable 

Sharing Program, State and local law enforcement can seize property for a Federal forfeiture action and then share in the proceeds. 

As Mr. Henderson even acknowledges in his written statement, 

this generous bounty encourages State and local law enforcement 

to evade their own stricter State laws in favor of more lax Federal 

rules. 

The DOJ’s new policy does not cure this problem, as it leaves almost three-quarters of all equitable sharing cases untouched. 

Third, giving law enforcement a direct financial incentive in the 

seizure of property violates a central command of due process. The 

administration of justice must be impartial. The lack of impartiality is best seen in a single statistic. In the last 6 years, almost 

two-thirds of all Federal forfeitures were administrative with the 

process conducted by the seizing agency itself, without any judicial 

involvement. 

But even when the judicial branch is involved in civil forfeitures, 

there are inadequate safeguards to protect property owners. My 

written testimony details these gaps, including the lack of counsel, 

the low burden of proof on the Government, and the absence of a 

prompt opportunity to contest the seizure of cash. 

But I want to highlight a key deficiency. Contrary to Mr. Blanco’s testimony, the process does, in fact, turn the presumption of 

innocence on its head. In administrative proceedings, the forfeiture 
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is presumed valid, and the property owner must make the case for 

its return. 

In civil forfeiture proceedings, it is true that the Government 

must prove the property is connected to a crime. But under the innocent owner provision, the burden then shifts to the property owners to affirmatively prove they did not know of the illegal activity. 

Consequently, in civil forfeiture, while the property might be presumed guilty, property owners very much are. 

The absence of adequate process, married to the perverse financial incentive, has led to widespread abuse, with a disproportionate 

impact on minorities. If only civil forfeiture were limited to the unusual situations like criminals overseas or criminals who are deceased, as highlighted by Mr. Blanco or in his written statement, 

like Michael Vick’s pit bulls or rare dinosaur eggs, we could all 

pack up and go home. But civil forfeiture has treated countless of 

ordinary Americans worse than criminals. 

Since 9/11, civil forfeiture has resulted in more than 61,000 cash 

seizures totaling $2.5 billion through highway interdictions, all 

without any search warrants or indictments. And there are many 

like my client Russ Caswell, who stood to lose his family-run motel 

to civil forfeiture, even though he did nothing wrong. 

While convicted criminals should not benefit from their ill-gotten 

gains, no one in America should lose their property without being 

convicted of a crime. This is not about bad apples in law enforcement. This is fundamentally about bad incentives, flawed incentives. 

The solution is not to better police the police. The solution is to 

end policies that distort their incentives. This financial incentive 

and the lack of process undermine our public trust in law enforcement and the belief that is so vital to our republic that we are a 

nation ruled by laws and not by men. 

Thank you for your time and attention. 

[The prepared statement of Ms. Sheth follows:] 
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APPENDIX A 
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APPENDIX B 
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APPENDIX C 
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Mr. SENSENBRENNER. Thank you very much. 

Mr. Smith? 

TESTIMONY OF DAVID B. SMITH, ATTORNEY, 

SMITH & ZIMMERMAN, PLLC 

Mr. SMITH. Thank you, Mr. Chairman. 

I only have 5 minutes, and I have been asked to focus my remarks on administrative forfeitures, an area that most people don’t 

know that much about. And we have heard a little bit about it this 

morning, but I am hoping that the Subcommittee will focus some 

of the reforms on the much-neglected administrative process. 

As my colleague Ms. Sheth just mentioned, the vast majority of 

civil forfeiture cases begin and end as administrative forfeitures. So 

a judge never sees those cases. 

I explain in my written statement how Congress vastly expanded 

the scope of administrative forfeitures in two pieces of legislation 

way back in 1984 and 1990. Before 1984, only property valued at 

less than $10,000 was subject to administrative forfeiture. The two 

amendments in 1984 and 1990 made almost all property subject to 

administrative forfeiture. 

The main exceptions to that are real estate and property valued at over $500,000. And incidentally, currency, which is frequently 

seized, there is no—there is no limit on the amount of currency 

that can be administratively forfeited. 

So considering that I think Ms. Sheth said 67 percent of all forfeiture cases are administrative, it deserves a lot more attention 

than it has gotten. And it is largely an invisible process, so invisible, indeed, that neither the press nor the Justice Department has 

really focused on what is wrong with it because it is very hard— 

as some Members of this Committee have found out, it is very hard 

to actually find out the facts about administrative forfeiture. 

Gathering, I know letters—there have been Washington Post stories about letters that Mr. Sensenbrenner has submitted to the 

DEA and other branches of the Government asking for some statistics, and they still haven’t been answered, months later. And that 

gives you an idea of how difficult it is for anyone to find out what 

is really going on. 

But I know what is going on because I deal with these cases constantly, and believe me, it is not a pretty picture. Contrary to Mr. 

Blanco’s written statement, administrative forfeitures are not surrounded by all sorts of procedural protections designed to protect 

a property owner. He doesn’t mention what those protections are, 

and I am not aware of them. And I think I would be if they were 

there. 

He mentions the fact that there is a probable cause requirement 

that is a legal requirement for any forfeiture, and it is also a constitutional requirement in the Fourth Amendment. But who actually is enforcing that probable cause requirement? That is the real 

issue. 

In an administrative forfeiture, essentially no one is enforcing it. 

There is no judge involved. There is no prosecutor involved. The 

only people who are involved are law enforcement agency employees, both on the State and local level and that is in adoptive cases, 

and on the Federal level, the Federal seizing agencies are involved 
56 

in they are supposed to assess whether there is probable cause for 

the forfeiture. 

Unfortunately, I find that in case after case, they fail to do so, 

and it is a systematic failure. It is not just a few bad apples, which 

is the typical explanation you will get from the Justice Department 

or the law enforcement community. It is not just a few bad apples. 

It is a systematic failure to enforce this probable cause requirement. 

I want to be discriminating. These seizing agencies are vastly different from each other. I find that the DEA and Customs and Border Patrol are probably the worst in terms of doing their job here. 

The FBI is one of the best. So I don’t want to lump everybody in 

the same boat. 

But you know, DEA and Custom and Border Patrol do an enormous percentage of the forfeitures in this country, the administrative forfeitures as well. And there is a culture in the general counsel’s offices of those agencies, which I am familiar with, and it is 

a very bad culture for individual property rights. 

The attorneys in these counsel’s offices are underworked, overpaid, and not committed to enforcing constitutional rights. What 

they are committed to is doing as many administrative forfeitures 

as quickly as possible and thereby eliminating those cases from 

what goes into court. 

And it is a very bad culture, and it is illustrated by all sorts of— 

you don’t have to take my word for it. You just have to look at 

some of the cases that have been litigated. I see I am over my time 

already. 

But it is all in there, and I would be happy to answer questions 

about this. I suggested a number of reforms, the detailed reforms 

of the administrative process, and I have also submitted an unrelated—— 

Mr. SENSENBRENNER. The gentleman’s time has expired by a 

minute and a half. 

Mr. SMITH. Thank you. I apologize. 

[The prepared statement of Mr. Smith follows:] 
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Mr. SENSENBRENNER. We will now to go questions under the 5- 

minute rule. The Chair yields himself 5 minutes. 

Mr. Henderson, in your submitted testimony, you wrote, ‘‘Law 

enforcement and prosecutors should avoid pursuing forfeitures actions when the primary purpose is to obtain assets rather than 

pursue a prosecutable case.’’ Now there is a lot of evidence to the 

contrary, and let me just mention three of them. 

In Volusia County, Florida, the sheriff’s department set up a forfeiture trap to stop motorists traveling Interstate 95 and seized 

over $5,000 a day from motorists over a 3-year period, over $8 million total. In three-quarters of the seizures, no criminal charges 

were filed. 

In Shelby County, Texas, court records from 2006 to 2008 showed 

nearly 200 cases in which Tenaha police seized cash and property 

from motorists. Again, 75 percent of the time, no charges were 

filed. 

A local Nashville TV station found that by about a 3-to-1 ratio, 

the police were pulling over suspected drug couriers as they were 

leaving Nashville rather than when they were entering the city. 

This suggests that there is more interest in seizing cash than keeping drugs off the street. 

Now, if the goal is to pursue prosecutable cases, why isn’t criminal forfeiture sufficient? Mr. Henderson? 

Mr. HENDERSON. Yes, the cases you have cited, again going back 

to NDAA, the policy of the national prosecutors, State and local 

prosecutors, as well as my home State of Indiana, there is a difference between chasing the money and chasing the criminals. But 

the priorities in those particular cases—and I don’t want to speak 

specifically about the facts because I am not that familiar with 

them. But in those cases where the primary purpose is to chase the 

money, that would not be supported by prosecutors. 

I think the priorities in those particular examples have been 

turned upside down. I think that that is why we need an open discussion on reform. 

But I don’t want to confuse that with, Chairman, with the idea 

that people who deal in illicit drugs should be allowed to profit 

from it as well because it is a tool that can be used to discourage 

those that deal drugs for profit. 

And if I could finally say is that drugs would not be dealt, but 

for profit. That is why they are on the street from the top all the 

way down. 

Mr. SENSENBRENNER. Okay. 

Mr. HENDERSON. And that is how they end up in those hands. 

Mr. SENSENBRENNER. Well, you also testified, ‘‘Local prosecutors 

have no choice but to access assets forfeited under Federal law’’ to 

get around what you see is an unwise State limitations on forfeiture. Now I guess there are two ways for us to go about reform, 

and I am not advocating either one of them at this time. 

You know, one is to simply repeal the possibility of adoption as 

a way of getting around State law and send you back to Indianapolis to try to get the State law changed, and other prosecutors have 

their own State capitals. The other thing is to completely repeal 

civil asset forfeiture and require it to be criminal asset forfeiture, 

which means that you have got to indict somebody or file a charge. 
82 

Can you tell me how you would reform this so as to avoid either 

of those possibilities being discussed around here? 

Mr. HENDERSON. I believe that there are some States that have 

gotten it right, and I believe there is judicial review. You know, I 

am always concerned when the review is only administrative. I 

think judicial review would go a long way toward due process. 

I believe some States—— 

Mr. SENSENBRENNER. Would you advocate mandatory judicial review, meaning that the property is seized, and it automatically 

goes to court rather than any type of administrative review when 

somebody’s property is seized and they don’t know what agency 

seized them, and there is only 30 days for them to contest it? 

Mr. HENDERSON. I would be much more comfortable with a judge 

making the decision under whatever law is applicable in that State 

or in the case of Federal law versus an administrative. However, 

I am certain there are logistic issues when it comes to the Federal—— 

Mr. SENSENBRENNER. Of course, there are. Because it is so simple do it and keep the money and let the time limit expire. 

The gentlewoman from Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. Mr. Chairman, thank you very much. 

Let me as well express my appreciation to the witnesses today. 

Mr. Chairman, I would like to ask unanimous consent to submit 

into the record a letter from the ACLU, dated February 11, 2015, 

regarding the endorsement of the Fifth Amendment Integrity Restoration Act. 

Mr. SENSENBRENNER. Without objection. 

[The information referred to follows:] 
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Ms. JACKSON LEE. If I might, and to the witnesses, our time is 

short. Questions may be long. If you can be pithy in your answers, 

I would appreciate it. 

The new policy announced by the Attorney General in January 

purports to end the Federal adoption of State seizures except in 

limited circumstances. This practice involves Federal law enforcement sharing up to 80 percent of the proceeds of these seizures for 

State and local law enforcement agencies, which has raised concerns that these agencies are motivated to engage in seizures for 

profit. 

Mr. Blanco, if you will, the new policy, under this policy, adoptive 

seizures and equitable sharing may take place if a State or local 

law enforcement agent seizes assets while participating in joint operations with Federal agencies. But doesn’t this exemption still 

allow a huge volume of adoptive seizures to continue if the Federal 

agents are added to task forces only to serve in minor roles to call 

them ‘‘joint operations.’’ 

And I am just going to give you a subset. And then under this 

new policy, adoptive seizures may take place if the seizures take 

place pursuant to warrants issued by Federal courts. Doesn’t this 

allow States with Federal agents to subvert the new policy by simply having more seizures done through the Federal warrants? 

You can just be brief in your answer. 

Mr. BLANCO. Thank you, Congresswoman, for the opportunity to 

answer that question and to address that issue head on. 

As the Congresswoman has so aptly pointed out, the new adoption policy issued by the Federal Government really takes out all 

of those adoptions that I think the Congresswoman had talked 

about. What the Congresswoman is talking about now are what 

was never adoptions. 

When Federal agencies do joint investigations or are on task 

forces with State and locals, which is critical to law enforcement, 

those are not adoptive cases. Those are cases that are done under 

the supervision and under the authority of Federal Government, 

and our Federal policies and guidelines apply. So those are not 

adoptions in those instances. 

And let me go further by saying that with respect to the seizure 

of those assets, when you talk about equitable sharing at the end 

of the day, two very different things. One is the forfeiture of the 

property, which we must go through the procedures in order to forfeit it. Once that property is forfeited, then there is a potential that 

that law enforcement agency may get some money back or some 

asset back. 

There is no guarantee that they will. And in fact, many instances 

these task forces operate, for example, with the fraud task forces 

or task forces having to do with anything other than narcotics, they 

get no money back. 

Ms. JACKSON LEE. Let me just leave on the table, if I might, the 

underlying point of the question was couldn’t there be sidestepping 

of these orders? I am not going to pursue it with you. I am going 

to leave it on the table, if you will, sidestepping by dragging in, if 

you will, of Federal officers? 

And so, we have a lot to consider. Let me move on to Mr. Henderson. But I thank you for hitting the question straight on. 
88 

Mr. Henderson, first of all, we count on prosecutors in local jurisdictions to be the people’s lawyer. We understand the responsibilities, and as I indicated in my opening remarks, there are a number of issues that I hope the prosecutors will join us on in trying 

to explore. 

In this instance, might I say why should we allow State and local 

law enforcement agencies to ignore the asset forfeiture laws of 

their own States, which may be more restrictive than Federal law, 

and pursue seizures by in essence dragging in or bringing in Federal agencies in order to receive the proceeds? Let me have a subset to that. 

The Washington Post, in recent articles about adoptive forfeitures and highway interdictions by State and local police, the Post 

examined 400 cases in which people challenged seizures and received some money back. And the majority were Black, Hispanic, 

or another minority. 

Of course, this raised the serious issue of racial profiling and concerns that minorities are being disproportionately targeted. Would 

you comment on that, those two questions, please? 

Mr. HENDERSON. Yes, Congresswoman. Every State is different, 

and certainly in a State like Indiana, there would be very few, if 

any, seizures under the old law. And it is part of the Indiana constitution, and so as it stands, none of those monies would be returned into the general fund, nor would those funds be returned to 

law enforcement. It would go into a some sort of guaranteed fund 

for school—— 

Ms. JACKSON LEE. But if your law were more restrictive, would 

you want to be under that law just for the rights of the citizens 

involved? If—apparently, your State law is not, but if it was? 

Mr. HENDERSON. Well, I believe there would be no incentive at 

that point to spend the resources to pursue these, especially these 

larger adoption cases. And if I may just give one brief example? 

Ms. JACKSON LEE. And what about the racial profiling? 

Mr. HENDERSON. Well, clearly, a separate issue. But there is no 

room for racial profiling anywhere in this country, nor should it be 

occurring. And that is with proper supervision and proper training. 

And to the extent that that is happening, that should be dealt 

with at that local jurisdiction or with that particular State agency. 

Our laws are such in this country and in all States that that would 

be strictly forbidden. So, again, that would be a particular department issue. 

Mr. SENSENBRENNER. The time of the gentlewoman has expired. 

Ms. JACKSON LEE. I thank you. 

Mr. SENSENBRENNER. The gentleman from Virginia, Chairman 

Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. Blanco, one of the key points from the Inspector General’s 

report on cold consent searches is that the general public doesn’t 

know their rights when confronted in seizure situations and often 

turns over money because they are pressured or believe they have 

to do so. And they are, as I noted in my opening statement, in an 

uncomfortable situation. 

What can the Justice Department do to fix this? 

Mr. BLANCO. Thank you, Chairman, for that question. 
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I am not familiar with the OIG’s report. I am not familiar with 

that instance, but I can tell you what the Federal Government can 

do in order to—— 

Mr. GOODLATTE. Let me back up. You are not familiar with the 

Inspector General’s report on—— 

Mr. BLANCO. I have not read that report, no. 

Mr. GOODLATTE. Well, don’t you think it would have been a good 

idea to read that before you came here today? 

Mr. BLANCO. I am happy to read it, Mr. Chairperson. 

Mr. GOODLATTE. Please do. 

Mr. BLANCO. But I can tell you two things. One is the Federal 

Government can definitely get involved by training individuals, by 

training officers, and by supervision. By providing in place, or putting in place, guidelines for them in how they approach individuals 

and how they do their job, which we do on a regular basis. 

I think there is also a way to make sure that the public knows 

what their rights are, and I think the Federal Government can do 

those things in lockstep, as well as training its law enforcement officers. 

Mr. GOODLATTE. What about not adopting cases in which certain 

Federal guidelines have not been followed? 

Mr. BLANCO. Well, I think, Chairman, that at this point, if you 

take a look at the adoptions which has been much of the criticism 

that has come out, at least our first step in reviewing our process. 

And as you know, we are taking a very extensive top-to-bottom review of the process. 

Federal adoptions of State cases have been eliminated, Chairperson. What you have right now are for specific exceptions, and 

those are public safety exceptions. So that is not even on the table. 

Mr. GOODLATTE. Let me stop you, because I have limited time, 

and go to Ms. Sheth. In his written testimony, Mr. Blanco quotes 

Justice Kennedy and states, ‘‘No interest of any owner is forfeited 

if he can show he did not know of or consent to the crime.’’ How 

realistic of a statement is that in practice? 

Ms. SHETH. Practically speaking, that is not a realistic statement. As I explained, many forfeitures, 64 percent, are administrative. And in that circumstances, the forfeiture is presumed valid. 

So property owners—maybe it is helpful to walk through how ordinary seizures work. Initially, the seizure must be based on probable cause. 

Mr. GOODLATTE. Better walk fast because I only have a limited 

amount of time. Go ahead. [Laughter.] 

Ms. SHETH. Initially, the seizure must be based on probable 

cause, and that is usually an on-the-ground determination by police 

officers. There is no check on that. The only check in administrative forfeitures is by the seizing agency itself. 

To the extent it even gets to a civil forfeiture, which is only when 

a property owner files a claim, then they still face these burdens 

of needing to hire counsel because there is no guarantee to counsel. 

They need to affirmatively prove that they are innocent of a crime 

and that they did not know of the illegal activity. 

Mr. GOODLATTE. Okay. 

Ms. SHETH. So it is very difficult, and this process stacks the 

deck against innocent property owners. 
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Mr. GOODLATTE. Let me follow up with Mr. Smith on that. You 

note in your testimony that few attorneys or petitioners understand 

the administrative process to recover seized assets and ask that 

agencies include a detailed description of the process within their 

notice of seizure. However, you also note the technicalities of this 

process make it difficult for attorneys to properly file an appeal. 

What changes can we make to the process for administrative forfeitures that will make it more understandable for petitioners and 

attorneys alike? 

Mr. SMITH. Thank you for that question. 

In my written materials, I have made a number of suggestions. 

And actually, I have even further suggestions for reforming the administrative forfeiture process that are not included here, but 

which the Members of the Committee are aware of. 

I chose to focus here because I figured I had very little time—— 

Mr. GOODLATTE. You have very little time because I have got one 

more question to ask Mr. Henderson. 

Mr. SMITH. But basically, the ones that are in my written submission here fall into two categories, Mr. Goodlatte. One is a particular—— 

Mr. GOODLATTE. You are going to have to submit them in writing. I am sorry. 

Mr. Henderson, do you have the manpower to prosecute forfeiture cases in your county in the absence of DOJ adoption policies, and what will happen to the cases that DOJ would have taken 

under the previous policy? 

Mr. HENDERSON. In my county, no. I do not have those resources, 

especially in the instances where there are criminal enterprises, if 

you will. In my written comments, I spoke of, you know, garages, 

barber shops, cash businesses that are being used as fronts. That 

is one of the areas that local—generally local authorities and a majority of prosecutors offices in this country are not major metropolitan areas and have a very difficult time handling those kinds of assets and in that type of procedure. 

There is a provision to allow outside counsel to take contingency 

fees, if you will. Personally, I have never been a fan of that and 

have not made use of that. But I know there are some instances 

of that occurring. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. Before recognizing Mr. Conyers, let me 

say, Mr. Blanco, I am going to reserve the right to recall you. 

Mr. BLANCO. Thank you. 

Mr. SENSENBRENNER. You know, I am absolutely shocked that 

you have come as a Justice Department witness to this hearing 

without reading the Inspector General’s report that is directly on 

point. You know, IG’s reports are designed to give the department 

an opportunity to clean up its own act, rather than having Congress to give you a kick in the behind to do that. 

Now, apparently, a kick is necessary. And you know, I will be 

honest to say that you came up here without being prepared with 

the major point that the Inspector General’s report is making. 

The gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you. 
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Attorney Sheth, let us talk about a very unpleasant subject, racial profiling, which we got laws against it, and everybody has 

preached about it. But it is still happening, and I think to a greater 

extent than many of us are aware. 

And I just want to see how you and Attorney Smith think this 

thing plays into more problems when we come to asset forfeiture? 

Ms. SHETH. Sure. Unfortunately, there are no hard statistics on 

the disproportionate impact of civil forfeiture on minorities and 

those of lower income. But a study or examination by the Washington Post revealed that in 400 Federal court cases they examined 

in which people contested seizures and received their money back 

because there was absolutely no grounds for the seizure, the majority were Black, Hispanic, or another minority. 

And even the DOJ itself has implicitly acknowledged that cold 

consent encounters are more often associated with racial profiling 

than contacts based on previously acquired information, and that 

is revealed in the OIG report from January 2015. 

If I may just briefly address some of the points that Mr. Henderson raised? There is no better way to ensure that the primary purpose of asset forfeiture is not to benefit from those assets than simply to eliminate the ability of law enforcement to retain those assets. 

Also, a point of clarification. Mr. Henderson is, unfortunately, 

wrong on the point about Indiana law. While the Indiana constitution does require forfeitures to go to the common school fund, Indiana statute allows for law enforcement expenses of forfeiture to be 

paid out of forfeiture proceeds, and indeed, the Indiana attorney 

general has taken the formal legal position that because these are 

civil and not criminal proceedings, civil forfeitures are not required 

to go to the common school fund. 

Mr. CONYERS. Thank you. 

Do you have anything to add to that, David Smith? 

Mr. SMITH. Yes. Yes, Mr. Conyers. I appreciate that fact that we 

do have some statistics on racial disparities in this area. But you 

don’t need a report or statistics to know that that is the case because we have seen dozens and dozens of newspaper stories for decades now, since the—since the late ’80’s when forfeiture abuse first 

came to the attention of the public through the press. And time 

after time, the stories have focused on that theme that minorities 

are targeted by the highway patrols for these outrageous stops 

where they are just looking for money. They are not trying to enforce the law through these stops. 

You know, they talk about we are looking for terrorists on the 

highway. That is what they actually tell some of the—the Virginia 

State Police will stop a motorist and say, you know, we are out 

here looking for terrorists and drug dealers, and then they get 

around to saying, by the way, do you have any cash in your car? 

And that is what they are really after. 

So it is really a disgraceful situation. And by the way, I want to 

compliment Mr. Henderson for bringing up the very distasteful 

subject of how many DAs in Indiana actually hire private outside 

counsel to do all of their civil forfeiture cases, all of them. It is like 

a contract. 

Mr. CONYERS. Other States do that, too, do you know? 
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*Note: The submitted material, an investiative series by The Washington Post, is not reprinted in this record but is on file with the Subcommittee, and can also be accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=102930. 

Mr. SMITH. I am not aware of it happening in any State except 

Indiana. And there is no statute saying that, you know, go ahead 

and do this. It is just a practice that has developed, and I compliment Mr. Henderson for saying he doesn’t approve of it. 

But apparently, it is a practice that most DAs in Indiana do follow. 

Mr. CONYERS. Okay. Thank you. 

Ms. SHETH. Well, to clarify, the Indiana statute specifically authorizes prosecutors to hire private attorneys. The contingency fee 

agreement is what it is, by practice, and it is usually up to 30 percent. 

To answer your question, what can be done for the racial 

profiling is to require the DOJ to actually track statistics. Greater 

transparency in reporting about how it is affecting minorities and 

how many stops are minorities. 

Mr. CONYERS. Thank you. 

Mr. Chairman, I would like to close by asking unanimous consent to put The Washington Post series by Robert O’Harrow in the 

record.* 

Mr. SENSENBRENNER. Without objection. 

The gentleman from Colorado, Mr. Buck. 

Mr. BUCK. Thank you, Mr. Chairman. 

Mr. Blanco, quick questions for you. You mentioned in your opening statement that asset forfeiture is designed to break the financial backbone of organized criminal syndicates and drug cartels. 

Correct? 

Mr. BLANCO. That is correct, sir. 

Mr. BUCK. And I take it you were in the Southern District of 

Florida. My memory was that there were huge minimums in order 

to justify prosecution, especially in the cocaine area. I don’t know 

if it was 50 kilos or 100 kilos, but it was large quantities that you 

folks were dealing with. 

Mr. BLANCO. It varied, sir, depending on whether you were a 

State prosecutor or a Federal prosecutor. 

Mr. BUCK. Oh, I am talking about Federal. You were in the U.S. 

attorney’s office. 

Mr. BLANCO. We had mandatory minimums, yes, on those cases. 

Mr. BUCK. Okay. And they were huge? 

Mr. BLANCO. Yes. 

Mr. BUCK. All right. It would take a very large forfeiture to 

break the backbone of the drug cartels that you were dealing with 

in the Southern District of Florida? 

Mr. BLANCO. Congressman, let me answer that question in this 

way—— 

Mr. BUCK. Well, it is kind of a yes or no question. I take it, these 

drug cartels deal with huge amounts of cash. You are not talking 

about taking $10,000 from somebody and being able to put—and 

this is your quote. ‘‘Break the financial backbone of a drug cartel.’’ 

Mr. BLANCO. That is right. 

Mr. BUCK. It has got to be a large forfeiture to break the financial backbone. 
93 

Mr. BLANCO. Congressman, but sophisticated drug cartels and 

syndicates don’t keep their money in one place. They keep them in 

different places, and they have different people moving the money 

around. They do it either through smurfs, or they do it through 

couriers, or they do it through bank accounts and other third-party 

gatekeepers. 

So when you find a stash, the amount that you are talking about, 

yes, it can happen. But what really drives them is the way that 

they can move their money and hide their money. And when you 

take that—when you take that possibility—— 

Mr. BUCK. So a series of small forfeitures could also break the 

financial backbone? 

Mr. BLANCO. That is correct, Congressman. 

Mr. BUCK. All right. How many backbones have these adoptive 

forfeitures broken? 

Mr. BLANCO. Pardon me, sir? 

Mr. BUCK. Name a drug cartel. Name an organization, a syndicate that adoptive forfeitures from States, name one that has 

been broken by those forfeitures. 

Mr. BLANCO. I can tell you there have been several, particularly 

with the Mexican cartels, who move their money with smurfs and 

couriers. Every amount of money you take from them is money that 

they cannot reinvest in their organization. 

Mr. BUCK. Can you tell me about one that has been broken with 

these stops—— 

Mr. BLANCO. Yes, I can. The Zeta Cartel is a cartel that we take 

money from on a regular basis. And in many instances, it is very 

difficult for their gatekeepers on the border to continue. They have 

to pay their people. 

Mr. BUCK. And these are adoptive forfeitures. These are not Federal forfeitures? 

Mr. BLANCO. I am talking about forfeitures in general, sir. Adoptive forfeitures, which no longer exist in the Federal Government 

without exceptions with public safety—— 

Mr. BUCK. We are going to get to the exceptions. But I am asking 

you, it seems to me that the adoptive forfeitures tend to be much 

smaller than the Federal forfeitures, and I am asking you. You are 

talking about forfeitures, the purpose is to break backbones. Do 

adoptive forfeitures break backbones, or do they just supplement 

funding for local law enforcement agencies? 

Mr. BLANCO. I believe, Congressman, that they do break the 

backbone of these cartels and these organizations. For example, in 

my experience—— 

Mr. BUCK. Let me ask you this. What is the percentage of adoptive forfeitures that are over, say, $100,000? 

Mr. BLANCO. Depends on where you live, Congressman. I can tell 

you in my district, in Miami, when I was both a State and Federal 

prosecutor, it wasn’t that unusual to open the trunk of a car and 

find $50,000 to $100,000 of which no one knew who owned that 

money. And that would probably be an adoptive forfeiture, sir. 

Mr. BUCK. And that would go through—the State would work 

with the Federal Government on that? 

Mr. BLANCO. Depending on whether the Federal Government 

was involved, and it can go through two ways, Congressman. It can 
94 

go through the administrative forfeiture procedure, where it gets 

forfeited administratively because no one in their right mind is 

going to go claim $100,000—— 

Mr. BUCK. Especially if it has white powder on it. 

Mr. BLANCO. Well, or it is in the trunk of a car, or it is stuck 

in a dashboard, or it is stuck in other areas of the car. Or it can 

go judicial, which means the U.S. attorney’s office is then reviewing 

that matter and will file a civil forfeiture claim. Or indict the 

money along with an individual, or decide to give that money back. 

Mr. BUCK. I understand the different types of forfeiture. Let me 

ask you something. What is the burden of proof in a forfeiture 

case? I think you mentioned preponderance of the evidence. 

Mr. BLANCO. It is preponderance. 

Mr. BUCK. What is the burden of proof if no one shows up, if it 

is uncontested? 

Mr. BLANCO. If it is uncontested, there is no need to have a burden of proof because, more often than not, Congressman, in my experience, the reason that they don’t show up is because they want 

to distance themselves from the tainted money or the tainted action. 

Mr. BUCK. Your experience is different than mine. If someone 

can’t afford a lawyer, they don’t show up to court to contest, do 

they? 

Mr. BLANCO. I think, Congressman, in some instances, that may 

be true. 

Mr. BUCK. And that tends to be in the lower amounts. In other 

words, $1,000 is found, and that money is the subject of a forfeiture 

action. Someone doesn’t show up to contest that, there is no burden 

of proof. 

Mr. BLANCO. Congressman, I don’t have that statistic in front of 

me. I can tell you that I think it is across the board. I am not so 

sure it is just the small denominations of money. 

But I understand your point, and I have to tell you, I empathize 

with your concern. And that is one of the concerns that we are taking with us when we do our review. 

I don’t think that what you are saying is outrageous, Congressman. I think it is right, and I think we need to take a look at it. 

And I think it is important to look at it. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentlewoman from California, Ms. Bass. 

Ms. BASS. I want to thank the Chair and the Ranking Member 

for this hearing, and I am really glad that the Committee is going 

to look into this issue. 

And I just have to tell you, years ago I remember when some of 

these laws were being passed around—asset forfeiture—that many 

folks in communities were hoping that some of the resources would 

actually go for drug treatment or other resources in the community. And clearly, that hasn’t happened. 

I did want to ask you about one particular area. I would like for 

you to talk about what happens to forfeitures related to the prosecution of child sex traffickers? So a recent report on the issue says 

that Federal prosecutors aren’t aggressively pursuing restitution 

for victims of sex trafficking, even though it is required under 

TVPA. 
95 

And I am wondering if Mr. Blanco could answer that, and perhaps Mr. Smith can comment? 

Mr. BLANCO. Thank you, Congresswoman. 

That is something very important to me, as you might imagine, 

in what I supervise at the Department of Justice. I have to tell you 

that the Federal Government, particularly in child exploitation 

cases and child trafficking, is trying to do everything that we can. 

If what you are saying is a concern out there, I am happy to take 

it back. But I got to tell you, that is an area that we must take 

a closer look at, and it is an area that we must begin either seizing 

those funds. And not only funds, but assets, in the facilities that 

are carrying out such a horrendous kind of crime, whether there 

are buses that are used, cars that are used. All the assets and the 

whole weight of the Federal Government should really come into 

that plan. 

Ms. BASS. And it is my understanding that one of the reasons 

why there is some confusion around this is because in some jurisdictions, the girls are still charged as criminals when, in my opinion, if you are a child, you should never be charged as a prostitute 

if you are under the age of consent. That doesn’t seem to make 

sense at all. 

So I don’t know if you have any suggestions. You know, one, if 

any of the panel is familiar with confusion around this, what kind 

of reforms you might suggest that we make because, clearly, these 

girls need resources. One of the reasons why they stay with pimps 

is because they have no place else to go, nothing else to do. 

Mr. BLANCO. I agree. I can tell you, federally, I don’t recall a case 

where we have indicted a child. That is generally done on the State 

side. 

Ms. BASS. I didn’t mean indict the child. 

Mr. BLANCO. Oh, okay. 

Ms. BASS. I meant that because the child was considered a criminal. 

Mr. BLANCO. Oh, okay. 

Ms. BASS. Not that, you know, so you are going to give money 

to somebody who is a criminal when that person should have never 

been considered a criminal. 

Mr. BLANCO. I got you. I got you. 

Ms. BASS. Anybody else want to comment on that? 

Ms. SHETH. I will just note that I know one of the justifications 

asserted for civil forfeiture is to compensate the crime victims, and 

Mr. Blanco has said that the DOJ has returned over $4 billion to 

crime victims, and $1.87 billion of that was recovered through civil 

forfeiture. Presumably, hopefully, some of that money would help 

victims like of sex trafficking. 

But in fact, that $4 billion represents approximately only 13 percent of seizure and forfeiture values, and that is from 2000 to August 2014. So it is a very minor portion of the revenue being generated. 

Ms. BASS. Is there a way that the revenue that is seized could 

be used for resources for girls, victims? Could money be targeted 

that way? Is it ever targeted as to—— 

Ms. SHETH. Well, that could be, and that is exactly the role of 

Congress that when forfeiture proceeds come in, it shouldn’t go 
96 

back to the law enforcement agencies for them to unilaterally decide how it should be spent. It should go to Congress. 

Now Congress can allocate that money as it sees fit, and that is 

exactly where it should go and to eliminate that profit incentive 

and compensate crime victims and do other revenue-neutral kind 

of things. And to be fair, as law enforcement agencies do need the 

money and do need resources, they should be adequately funded to 

fight crime. 

Ms. BASS. Sure. 

Ms. SHETH. But that is the role of Congress or the legislative 

branch to ensure. 

Mr. BLANCO. Congresswoman, we have in the past used these 

funds to compensate victims of sex crimes. And there also is a provision—— 

Ms. BASS. Child sex trafficking—— 

Mr. BLANCO. I can say sex crimes, I am not sure—but I can certainly look at that. There is also a provision in those agencies that 

are part of the equitable sharing that they can use these proceeds 

that they receive back for community projects and services. That 

may be one of them that they could use that for, and I will look 

into that. 

Ms. BASS. And maybe, you know, to my colleagues, as we are 

considering reforms in this area, maybe that is something that we 

could consider as well. 

And looks like I am out of time. Yield back my time. 

Mr. SENSENBRENNER. Thank you. 

The gentleman from South Carolina, Mr. Gowdy? 

Mr. GOWDY. Thank you, Mr. Chairman. 

Ms. Sheth, I have been out of the courtroom for a long time, and 

I think the whole world has changed since I was last there. I want 

to give you a chance to tell me how much of it has changed. Can 

you still waive your right to remain silent and confess, even to the 

most heinous of crimes? 

Ms. SHETH. I am sorry? 

Mr. GOWDY. Can you still waive your Fifth Amendment right and 

confess? 

Ms. SHETH. Yes. Yes, that is correct. 

Mr. GOWDY. Can you still waive your right to a jury trial and 

plead guilty? 

Ms. SHETH. Yes. 

Mr. GOWDY. Can you still waive your right to a jury trial and 

have a bench trial? 

Ms. SHETH. Yes. 

Mr. GOWDY. Can you still waive your right to counsel and proceed pro se, no matter how stupid that may be? 

Ms. SHETH. Yes. 

Mr. GOWDY. Can you still waive your right to appeal for everything except ineffective assistance of counsel? 

Ms. SHETH. Yes. 

Mr. GOWDY. Can you still waive your right to appeal even in a 

capital case and expedite your own execution? 

Ms. SHETH. Yes. 

Mr. GOWDY. I am just wondering why you can’t waive whatever 

property interest you may have in a piece of forfeited property. If 
97 

you can do all of that, then you ought to be able to waive your 

right—I will let you think about that for a second because I want 

to go to the two district attorneys. 

Mr. District Attorney, I will bet you did not go to law school and 

become a district attorney because you had an interest in being a 

revenue producer for your county or your State? 

Mr. HENDERSON. That is correct, Congressman. 

Mr. GOWDY. And the same would be true for Mr. Blanco. So what 

strikes me as a pretty easy remedy here—well, before we get to the 

remedy, Mr. Blanco, are you aware of any States that don’t have 

asset forfeiture laws? 

Mr. BLANCO. I believe all States have considered and all States 

have passed some form of an asset forfeiture law. 

Mr. GOWDY. All right. And being the good lawyer that you are, 

you are sitting there wondering, well, if a State already has asset 

forfeiture laws, why are they coming to the Feds? What is it about 

the Federal system that makes it more attractive than pursuing 

your own State remedy? 

So the remedy I would propose to the two of you all is I would 

get the Attorney General or the new Attorney General to sit down 

with the district attorneys. I would take the financial incentive out 

of it for district attorneys and law enforcement. I don’t know a single cop or prosecutor that went into the business to be a revenue 

producer. Let the money go to the general fund. 

If that is the hang-up, if that is the issue is that cops and prosecutors are somehow going to benefit financially from this forfeiture, then just take that away and send it to the general fund 

because I don’t know a prosecutor or a cop that majored in business or economics. They don’t want to be in that business. 

But I do want to ask you, Mr. District Attorney, in Indiana, who 

provides the funding for your office? 

Mr. HENDERSON. The counties provide most of the funding for 

our offices in Indiana. 

Mr. GOWDY. And it is the exact same way in South Carolina. 

Now how many of your State laws are passed in the capital of Indiana? How many are passed by the State legislature? 

Mr. HENDERSON. All the States laws are passed by the State legislature. 

Mr. GOWDY. All of them. Same in South Carolina. All the laws 

are passed in Columbia, but not all the funding comes from Columbia. So all the laws are passed at the State level in Indiana, but 

all your funding doesn’t come from the State level. 

Mr. HENDERSON. That is correct. 

Mr. GOWDY. So it strikes me that if you want to take the money 

out of prosecution and out of law enforcement, they should fully 

fund your office. 

Mr. HENDERSON. Certainly, Congressman, that would be the 

case. But let me also say that the money generally would go back 

to the criminal with the money. Because if you are asking the prosecutor or the police to devote resources toward forfeiting money 

and taking that limited resource that the county or State has given 

us in order to pursue civil actions, I would hazard a guess that that 

just wouldn’t happen. 
98 

And I put in my paper, too, the practice of embedding officers 

with the Feds. So you have county sheriffs and chiefs of police that 

are paying their officers, taking them out of the community, and 

lending them, if you will, to the Federal authorities so that they 

could work together so that they can produce intelligence. 

I believe and, in fact, the chiefs and sheriffs in my area made 

sure to tell me this before I came here today, in that they will have 

to pull those people back because they can’t justify that to the community. And so, and if that is the outcome, that is the outcome. 

But I do not see any widespread forfeiture of drug funds or any 

other illegally obtained funds if there is not an incentive. 

And if I could just quickly say finally—— 

Mr. GOWDY. Well, I am almost out of time. But there are two 

things that are going to kill us, and I am talking to you as a former 

DA, not as a fledgling Member of Congress. 

The two things that are going to kill us is if we ever start trading 

prison time for asset forfeiture and if we are perceived as being 

more interested in the finances than the enforcement. So I would 

tell your State reps and my State reps fully fund your office and 

let you do your job and get you out of the revenue producing business. 

Mr. HENDERSON. I agree. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentlewoman from California, Ms. Chu. 

Ms. CHU. Mr. Blanco, just yesterday there was the directive 

issued, and it required the Federal prosecutor to justify in writing 

whether there should be a joint task force. But it seemed that the 

new directive doesn’t prescribe the importance of any particular 

factor. 

Could you describe a situation in which a Federal prosecutor 

may find one, but not all of the factors to be present and still find 

insufficient Federal law enforcement oversight or participation? For 

example, could you walk us through how a prosecutor would determine whether Federal forfeiture should apply in situations where 

Federal authorities are not involved in the investigation leading up 

to the seizure but were only pulled in at the time of the actual seizure? 

Mr. BLANCO. Tthank you, Congresswoman, for that question. I 

think it is an important issue to discuss. 

Obviously, every case is very fact specific. So I can’t give you a 

cookie-cutter of what might happen. But for instance, in what you 

just described, there could be a situation where there is a Federal 

investigation going on for which the Federal Government may not 

want to tip its hand that these individuals are being investigated. 

For example, that there is either a confidential source or a wiretap on individuals. We know they have a car filled with cocaine or 

money, and it is traveling. We may contact a State and local law 

enforcement officer and either tip off that this car has the contraband in it or let them know that they should be on the lookout for 

this car, and they will then determine their own probable cause to 

stop that vehicle. 

At that instance, that becomes a State and Federal investigation. 

They are assisting the Federal Government. As the Congresswoman knows, Federal agencies, as great as they are, and we are— 
99 

Federal investigative agencies are the best in the world. There is 

no question about it. Can’t do their jobs without their State and 

local partners. 

The element of a task force situation, which I have been involved 

with in many instances, is critical to law enforcement not just in 

this area, but law enforcement in general. So that would be an area 

where I would look at. 

And I, as a Federal prosecutor, and what I would expect for that 

assistant United States attorney to do is to look at that scenario 

and determine is this a situation where their participation was necessary? Is this a situation in which they were asked to participate? 

Or is this a situation where that State and local law enforcement 

officer on her own decided, or his own, decided to use State laws 

to either stop that car or create their own investigations? 

Ms. CHU. So let me ask, the new directive places a great deal of 

discretion on the Federal prosecutors to determine whether the seizure by State and local law enforcement should be treated as Federal forfeiture. Will there be a review process of these decisions? 

Mr. BLANCO. That is a good question, Chairperson. That is something that I will take back to the department with me, and we will 

certainly talk about it. I won’t commit to it, but it sounds very fair 

to me. 

Ms. CHU. Thank you. 

Ms. Sheth, there is this incredible incentive for State and local 

law enforcement to do these seizures, and it is troubling that someone with the authority to seize property should be incentivized to 

do so. Could you walk us through reforms that could balance the 

monetary needs of local and State law enforcement for these assets 

while reducing the negative incentives that the Equitable Sharing 

Program creates? 

Ms. SHETH. Sure. As an initial matter, the Equitable Sharing 

Program should be abolished. To give you an idea of the scope of 

the Equitable Sharing Program, since 9/11, the amount of cash seizures have totaled $2.5 billion. 

Now the ability of State and local law enforcement to generate 

that revenue, they should, as Representative Gowdy suggested, 

should be adequately funded, and that should come from the State 

level or through maybe other revenue-neutral Federal grants. But 

it should not come from civil forfeiture by seizing property owners’ 

property without any adequate process. 

One of the examples should be to abolish adoptive seizures in 

their entirety. The additional, it should be—there is no—I am not 

saying that we shouldn’t have joint task forces, but that monetary 

incentive should be abolished. And similarly, at the Federal level, 

the profit incentive should be abolished. 

And by increasing different procedural safeguards, like the right 

to counsel or like increasing the burden of proof on the Government 

from preponderance of the evidence to clear and convincing or restoring the presumption of innocence on property owners, to put 

the burden rightly on the Government to prove knowledge. 

Also the ability to have a prompt opportunity to contest the seizure. Right now, under Federal law, that is only allowed for for 

other kinds of property, but not cash, and that should be provided 

for cash seizures as well. 
100 

Finally—— 

Mr. SENSENBRENNER. Excuse me. Go ahead. 

Ms. SHETH. Oh, okay. Sorry. Finally, increased transparency and 

reporting would also go a long way. For example, putting the CATS 

database online or how property is distributed under equitable 

sharing requests. 

Mr. Blanco had said something about whether or not State and 

local law enforcement actually receive any of the proceeds. I would 

question how many equitable sharing requests were denied. 

Mr. SENSENBRENNER. The time of the gentlewoman has expired. 

This concludes today’s hearing, and thanks to all witnesses and 

Members for attending. 

Without objection, all Members will have 5 legislative days within which to submit additional written questions for the witnesses 

or additional materials for the record. 

And without objection, the hearing is adjourned. 

[Whereupon, at 12:01 p.m., the Subcommittee was adjourned.] 
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