Warren E. Burger: I think you may proceed whenever you're ready, Mr. Frey.
Mr. Andrew L. Frey: Thank you, Mr. Chief Justice, and may it please the Court: The claimant in this case arrived in Los Angeles from Vancouver, Canada on September 10th, 1975. On her Customs form was a question asking whether she was carrying with her more than $5,000 in currency. That question was answered "No". During the course of the Customs inspection process she was three times further asked whether she had on her person more than $5,000 in currency and three times denied it. Because of suspicions of the Customs officers she was searched, and the search revealed an envelope concealed in her brassiere containing $8,850 in United States currency. It's quite clear that she knew that this money was there, because when the Customs inspector counted the money and erroneously said it's $9,950, she said I know it's less than that. Now, the issue in this case is whether the Government... this money was seized, by the way... and the issue is whether the Government was required to bring a judicial forfeiture action promptly following the procedure without regard to the pendancy of any criminal investigation or prosecution, and without regard to the pendancy of an administrative proceeding for possible remission of mitigation of the forfeiture. And if there was some improper delay in bringing the action, whether the remedy was to return the money to the claimant despite the fact that she was not injured in any way by the delay. Now, in order to place this issue in context for the Court I'd like to describe briefly the Customs forfeiture procedures. After an item is seized, there is a prompt post-seizure notice given to the... any person who Customs is aware has... may have an interest in the item. This notice advises them that they are allowed 60 days to file an administrative petition with the Secretary of the Treasury for remission or mitigation.
John Paul Stevens: Mr. Frey, may I just ask, in this description are you describing the procedure under the Bank Secrecy Act or other forfeitures as well?
Mr. Andrew L. Frey: Well, Customs employs the... the Bank Secrecy Act itself has no procedural provisions, and they employ the general Customs provisions for the administrative remission process.
John Paul Stevens: Is... is... is your position that this case is typical of all forfeitures, or do we have a special problem under the Bank Secrecy Act in this case?
Mr. Andrew L. Frey: No. I think this case is reflective of a general problem that we have had with forfeitures being barred on account of alleged unconstitutional delay. There are some attributes which I'll get to later of the currency statute which make this, I think, a particularly strong case for the Government; but I will come to those.
John Paul Stevens: But generally we could consider it pretty much the same as say the seizure of a boat or an automobile and a narcotic?
Mr. Andrew L. Frey: I don't think there are any material differences, yes. Now, the claimants, as I say, are allowed 60 days to file a petition for remission or mitigation, and it's quite clear from the statute that the decision whether to grant remission or to mitigate the penalty involved in a forfeiture is within the essentially unfetterd discretion of the Secretary of the Treasury or his delegatee. Now, if an administration petition is filed, the practice is not to file a judicial forfeiture action until the administrative petition is decided. If no petition is filed, then the practice normally is to refer the matter promptly to the United States Attorney for judicial action. Now, I should point out that under the current statutes, the judicial action is required only where the value of the object to be forfeited exceeds $10,000. At the time of this seizure it was $5,000, I believe, or $2,500.
Warren E. Burger: What justification was presented for remission here?
Mr. Andrew L. Frey: Well, in this case, as I understand it, the claimant asserted that she was not aware of her obligation to declare the money, because she believed that only money that had been acquired abroad would have to be declared. I think that was the main reason that she gave.
Warren E. Burger: That she had carried it from the United States outside and then was bringing it back on the way to Canada, is that--
Mr. Andrew L. Frey: Yes.
Warren E. Burger: --That was the only justification?
Mr. Andrew L. Frey: Well, I... I... actually the appendix does not contain the letter, and I have not read the letter of remission; so that is my understanding as to what her principal justification was. But my colleague can perhaps fill that in. In any event, if the matter involved is worth less than $10,000, it's disposed of administratively unless the claimant posts a bond for cost to obtain a judicial proceeding. If it's worth more than $10,000, a judicial action is filed. Now, also the pendancy of a criminal investigation or a criminal prosecution will ordinarily delay both the decision on the remission petition and the filing of the judicial forfeiture action. Another point that I think is pertinent is that once the case is referred to the United States Attorney for civil in rem forfeiture proceedings, there is no further processing or entertaining by Customs of an application for remission or mitigation. Now, in most cases the jurisdiction to entertain such application shifts to the Department of Justice, to the Attorney General; and under the regulations, the Attorney General's standards for granting relief are much stricter, he is much less generous in granting relief than the Secretary of the Treasury after there has been a judicial forfeiture proceeding. In the case of currency seizures it is not absolutely clear and it is not settled whether the Attorney General would have jurisdiction or whether it would stay with the Secretary of Treasury for a mitigation petition because of the wording of the particular statute; but it's not material to this case. Let me also say a word about the substantive standards for currency forfeitures. 31 U.S.C. 1102... and I am told this has been recently recodified, and I don't have the section number... requires only two things: that there has been transportation in or out of the United States of currency or monetary instruments in excess of $5,000, and that they have not been declared. Any currency so transported and not declared is forfeitable. There is no requirement for a civil forfeiture that the person knew or understood that he or she was under a duty to make this report. There may be a requirement that they had to know that they were in fact carrying the money on their person, but that's not in question in this case. Now, this is in contrast to the criminal prosecution for this violation which would have an element of willfulness which the lower courts have construed to require knowledge of the reporting requirement. Let me go briefly through the procedural chronology of this case. The seizure occurred on September 10th. A remission petition was filed on September 28th of 1975, and on October 20th the case was assigned to a Customs agent for investigation. Between October 1975 and April 1976 her investigation largely focused on whether the money that was being transported by the claimant and was not declared was being used as part of some criminal activity. This, I am told, is a standard practice in currency seizure cases, and one of the reasons this, apart from the fact that there is commonly such an association and the discovery of the money may be a lead to uncover other criminal activity, is that the decision whether to prosecute as a misdemeanor or a felony may depend on whether the money was being transported in connection with some other criminal activity, in which case a felony is involved. In May of 1976 the case was referred for prosecution to the United States Attorney. An indictment was returned on June 15th of 1976, and it contained both a misdemeanor count charging the failure to declare the currency and a felony count for false statements to the Customs officer denying the possession of $5,000 during the interrogation. The trial was held in December of 1976, and at the conclusion of the trial the jury convicted respondent or claimant of the false statement counts and acquitted on the felony transportation... on the misdemeanor currency transportation count. Subsequently on her appeal the false statement counts were reversed because of inadvertent leaving of the court file in the jury room.
William H. Rehnquist: What is the statute governing the... the statutory section governing the false statement count?
Mr. Andrew L. Frey: 1001, 18 U.S.C. 1001. Now, following this, approximately three months after the verdict in the criminal case the remission petition was denied, and the case was referred to the United States Attorney for a judicial forfeiture action which was filed on March 22nd, 1977, approximately 18 months after the original seizure. In January of 1978 the district court entered its judgment upholding the forfeiture and holding that the delay in instituting the forfeiture proceeding was reasonable under the circumstances. Somewhat over three years later the Court of Appeals decided the appeal, held that the Government took too long in filing the judicial forfeiture action. Their holding is summarized at page 4A of the appendix to the petition for writ of certiorari. And the court said, "The administrative or criminal investigations cannot justify the Government's delay when the necessary elements for a forfeiture were established at the time of the seizure. " And then went on to hold that prejudice is irrelevant to the claim, and without regard to prejudice the claimant is entitled to a return of the property. Now, in order to sustain the judgment of the Court of Appeals, claimant must persuade the Court to find in its favor on three issues, each of three issues.
John Paul Stevens: Mr. Frey, before you get into your main argument, may I ask one other procedural question? In your brief you indicate that the Government prevails in about 80 percent of these--
Mr. Andrew L. Frey: Well--
John Paul Stevens: --Cases other than those where there's delay involved. Well, whatever the figure is.
Mr. Andrew L. Frey: --I think it's considerably higher.
John Paul Stevens: Say it's 90 percent. But take the 10 percent in which you don't prevail. Say on the merits, not for reasons of delay, the person gets the property back. Do they get any damages or any compensation for the time that--
Mr. Andrew L. Frey: Well, they have... they have a... they have a Bivens action possibly against the collector of the property.
John Paul Stevens: --What I mean, is there any routine statutory procedure for paying interest or anything else?
Mr. Andrew L. Frey: No. No, I don't believe there is a statute--
John Paul Stevens: They may have a lawsuit is what they--
Mr. Andrew L. Frey: --They may... they may suffer an injury as a result of the delay.
John Paul Stevens: --And may have a Bivens-type claim, and that's... that's--
Mr. Andrew L. Frey: They may have a Bivens-type claim, although that has its own difficulties.
John Paul Stevens: --Yeah.
Mr. Andrew L. Frey: I should say that under--
William H. Rehnquist: How... how about an action under the Federal Tort Claims Act or under the Tucker Act?
Mr. Andrew L. Frey: --Well, Section 2680(c) of Title 28, which is a Federal Tort Claims Act provision, seems to bar any claim for delay... for damages due to a delay in connection with a Customs seizure. Congress decided as a matter of policy not to permit it. As far as the Tucker Act was concerned, that was an issue that was involved in the Hatzlatch case. The Court did not decide it, and I have serious doubts whether there would be a Tucker Act action. It would have to be based on some implied contract. I should say that under the Department of Justice's procedures, any adverse decision in one of these forfeiture cases is supposed to be reported to the Solicitor General's Office for a decision whether or not to appeal. And I, apart from this delay issue that is before the Court today, the due process issue, I don't see more than half a dozen a year. Now, they may not all be reported to me, but I think the incidence is slight. In any event, in order to sustain the judgment of the Court of Appeals, the first thing that claimant must convince you of is that there exists a general due process requirement of prompt filing of a judicial action following a seizure of goods for forfeiture. Secondly, they must persuade you that due process does not allow the Government to defer such a filing on account of the pendancy of a criminal investigation or prosecution or an administrative petition for remission or mitigation. And thirdly, they must persuade you that the proper remedy for any violation of due process involved in failing to file promptly enough is automatic denial of the forfeiture, wholly without regard to whether the claimant suffered any injury whatsoever by virtue of the impermissible delay. I'd like to first make a couple of preliminary observations. The first one is apparently a somewhat old-fashioned idea that's gone out of favor with some of the lower courts, and that is the statute of limitations that Congress enacted governing the time within which actions of this sort must be brought, which is five years. Now, the second thing, turning to this case in particular--
William H. Rehnquist: Why do you say that's gone out of favor with some of the lower courts?
Mr. Andrew L. Frey: --Well, it's been largely ignored in numerous cases. I think not with this Court because in the Lovasco case, for instance, the Court reminded that the statute of limitations is the principal protection with regard to delay in the institution of judicial proceedings. But the Court of Appeals--
Byron R. White: Yes, but if the Government has already seized the property and is holding it--
Mr. Andrew L. Frey: --Well, the statute of limitations--
Byron R. White: --And so you've... it's sort of like you've started the case, in a sense. You've got the money, and you just aren't give it back. And you think you could wait five years. Well, Congress has said you could wait five years.
Mr. Andrew L. Frey: --That is correct.
Byron R. White: Well, you could wait five years to start your action, but that doesn't say you can wait five years to seize the property.
Mr. Andrew L. Frey: Well, you could wait... it's clear that the statute of limitations contemplates the possibility or the likelihood that the property will have been seized because it's five years from the date of discovery of the offense.
Byron R. White: Well, for example--
Mr. Andrew L. Frey: I don't--
Byron R. White: --There's a statute of limitations in criminal cases, too, but you can't... can't arrest a person and then just wait five years to prosecute.
Mr. Andrew L. Frey: --Well, if... we... we make the point in our brief that if you were to analogize the seizure to the arrest of the person and apply the speedy trial analysis... which I assume if you could meet the speedy trial test you would also comply with due process requirements... that the claimant would not prevail in this case under the four factor speedy trial analysis; because while the length of the delay arguably would satisfy the requirements, she could not... there are good reasons for the delay.
Byron R. White: Right.
Mr. Andrew L. Frey: There is no prejudice; and there never was a demand for the filing of a judicial proceeding.
Byron R. White: Well, that's part of your argument.
Mr. Andrew L. Frey: That is part of our argument.
Sandra Day O'Connor: Well, Mr. Frey--
Mr. Andrew L. Frey: I'm going to try to work it on in response to questions.
Byron R. White: --Now you know the best way you can. You do concede that due process rights are triggered by a Government seizure of someone's property, I suppose; to have a hearing on the seizure at, what, a meaningful or reasonable time, is that right?
Mr. Andrew L. Frey: Well, that's... we... we do concede that there... that the claimant, even though retrospectively title passed to the Government, at least at the time of the seizure, in our view, we do concede that in approaching this case the Court should recognize the existence of a property interest that requires some due process.
Sandra Day O'Connor: A property interest that was seized that triggers some due process right to a hearing at some reasonable or meaningful time.
Mr. Andrew L. Frey: In a meaningful time. And--
Sandra Day O'Connor: And it's your argument that the statute of limitations provides for the meaningful time, is that right?
Mr. Andrew L. Frey: --Well, it is our argument that in general if their delay in instituting the action is not motivated by some invidious attempt to gain a tactical advantage that due process is satisfied by a hearing within the statute of limitations, taking into account the other remedies that are available to a person whose property has been seized if they wish to secure an earlier hearing on certain aspects of the matter.
Thurgood Marshall: Mr. Frey, isn't there a sort of a piece of paper that could be filed at the same time that the person is taken into custody which would protect the Government?
Mr. Andrew L. Frey: Well, we think that is a very bad idea that is--
Thurgood Marshall: But it is possible, isn't it?
Mr. Andrew L. Frey: --It would be possible in most of these cases to file a complaint rather rapidly, but there are a lot of costs associated with that... a lot of costs, in our view.
Thurgood Marshall: Well, I know of one case in which all they did, they just filed a jeopardy assessment against the guy. He was going out of the country.
Mr. Andrew L. Frey: Well, now you're... you're in an area that I don't know very much about which is tax liens.
Thurgood Marshall: But I mean I'm just wondering about if you seize contraband, that's one thing, but this is good, solid money and it's not contraband.
Mr. Andrew L. Frey: Right. Not contraband per se.
Thurgood Marshall: Except that it's over $5,000.
Mr. Andrew L. Frey: Yes.
Thurgood Marshall: And I'm wondering if the Government, accepting all of your... what you say as being true, and it is... why there couldn't be some kind of thing... if you needed Congress, Congress could give it... of filing a piece of paper that would block this off.
Mr. Andrew L. Frey: Well, we do provide... I'm not sure in terms of filing something in court for the reasons that I will get into in my argument. I think you're talking about approximately 50,000 noncontraband seizures by Customs alone very year. That's not counting DEA and ATF and IRS.
Thurgood Marshall: That's money. I'm just talking about money now.
Mr. Andrew L. Frey: Well, but the same rules I think would apply if we seized an automobile or if we seized merchandise that's being brought into the country and there's some Customs violation.
Thurgood Marshall: Well, there's a lot of difference when you seize an automobile because of dope. The automobile wasn't the dope, but the money is the money.
Mr. Andrew L. Frey: No.
Thurgood Marshall: The money is the crime itself.
Mr. Andrew L. Frey: Well, the non... the nondeclaration of the money is the forfeitable act. But I'm not sure that I understand the difference in terms of... the same claim has been made in cases, not just in currency cases but--
John Paul Stevens: Well, I know I don't understand--
Mr. Andrew L. Frey: --In cases where automobiles have been seized or other merchandise that's been brought in and improperly declared has been seized. And... and you are talking about a... a true inundation in the courts of what we say are essentially meaningless action if all you're going to do is file the suit but nothing is going to happen with it because there has to be more investigation and because there's a criminal case possibly pending in some portion of these matters. You will also cut off the only right that is useful or important to 99.9 percent of people who are involved with one of these seizures, which is the right to petition for administrative relief from the Secretary, because once we file in court, the administrative relief is no longer available. The whole system is designed to try to channel these claims into the administrative process if possible, and only if that fails to produce a settlement that's satisfactory to the parties is the judicial action--
John Paul Stevens: --Was there a statutory restriction on you're continuing to make the administrative remedy available after this suit was filed, or is that a matter of administrative policy?
Mr. Andrew L. Frey: --I don't believe there has been a statutory restriction, but it is an administrative policy which I think reflects--
John Paul Stevens: Which... which could be changed, I suppose, then.
Mr. Andrew L. Frey: --Hmmmm?
John Paul Stevens: That could be changed then if--
Mr. Andrew L. Frey: It could be changed, but... but... you see, what happens under the Court of Appeals decision is that Customs can't afford to conduct the administrative proceedings prior to the judicial proceeding, so it will have to go forward right away with the judicial suit. And the whole part of the purpose of Congress in having the administrative remedy is to settle these cases, and something like three-quarters of the cases are settled with a remission or mitigation that's acceptable to the claimant.
John Paul Stevens: --Mr. Frey, when we get into this subject of alternative remedies, what if... what if the Government let the statute of limitations run, say five years, in a case in which they had probable cause to believe they were entitled to the money or whatever might be seized, so there would be no Rule 41 remedy? Does the former property owner have any remedy to get his property back? He has no tort claims remedy? Can the Government just keep the money?
Mr. Andrew L. Frey: Well, no. Our position is that a forfeiture action must be brought within the statute of limitations.
John Paul Stevens: But, supposing they don't? I'm saying supposing they don't bring it within the five years, can they just keep it?
Mr. Andrew L. Frey: I can't... this has never happened, but I--
John Paul Stevens: I can't conceive of it happening, but does the citizen have a remedy if that should happen?
Mr. Andrew L. Frey: --I am certain... I am certain that they would have a remedy in that situation.
John Paul Stevens: What... what would it be?
Mr. Andrew L. Frey: Well, they have a remedy even before the five years if there's an unreasonable delay in bringing the forfeiture action, which is the equitable action under Slocum against Mayberry.
John Paul Stevens: Which is an action requiring them to institute a forfeiture proceeding. And if the statute of limitations has run, that remedy wouldn't be available, would it?
Mr. Andrew L. Frey: Well, it would because the forfeiture proceeding would be instituted and judgment would be rendered for the claimant.
John Paul Stevens: After the statute had run?
Mr. Andrew L. Frey: Yes. On the grounds of the statute of limitations. And the property would be ordered returned. I have no doubt that if the property was held for five years and no judicial action... no settlement was reached and no judicial action was filed that the claimant would be able to... upon establishing their standing they're entitled to the property that--
John Paul Stevens: I have in mind the Treasure Salvors case last year. We had a problem of sovereign immunity. Of course, there's it's Eleventh Amendment. I think the Government has the same right to claim sovereign immunity, doesn't it?
Mr. Andrew L. Frey: --Well, I... I--
John Paul Stevens: Where the initial seizure was supported by probable cause. I don't know why you just can't keep the property.
Mr. Andrew L. Frey: --Well, I'm not sure what the answer is. I'm sure we can't, and I'm sure that there would be a due process objection. Whether there would be a sovereign immunity problem in terms of a remedy I just don't know the answer to that. But that's pretty far... I don't see that as a factor that ought to influence the decision on this case. Now, let me point out that the claimant in this case has never asked to have a judicial proceeding brought, and she had good reasons for not asking because the judicial proceeding would have been an open and shut, cut and dried case. She would have lost; she had no defense. Her explanations, her excuses for her behavior are things that could be considered in the administrative remission proceeding, but would not avail her in the least in court. Now, this is generally true in all of these forfeiture delay cases that I have seen. The last thing the claimant wants is the prompt filing of a judicial action. They just want to complain after the... if remission has been denied that the action hasn't been prompt enough at a point where the filing of the action can no longer hurt them or it's actually occurred. I wanted to clarify one other point before I got into more substantive matters, and that is there's been some discussion about the difference in the meaning of forfeiture statutes that say "shall be forfeited" and "subject to forfeiture". And just yesterday it came to my attention that there is a House and a Senate report that you should look at which explain the view of Congress in 1935 at least, that the "subject to forfeiture" language means the title vests in the United States for the purposes of this relation back doctrine at the time of the seizure, whereas "shall be forfeited" means that title vests at the time of the offense. In either case there would be no difference for this purpose of the present case. This is H.R. Report 868, 74th Congress, First Session, page 11; and Senate Report 1036, 74th Congress, First Session, page 15. I see my time is running short. I just want to make the point that due process requires an opportunity to be heard in a meaningful time, and in deciding whether the prompt filing of a judicial action is necessary to provide such an opportunity, you do have to look at what the options are that are available to the rare claimant who might actually want the prompt filing of a judicial action. First of all, he cannot file or withdraw his administrative remission petition which will normally produce the prompt judicial filing. Secondly, if he claims that the seizure itself was unlawful, the Rule 41(e) remedy for return of property is available. Now, this is significant because the class of cases that we're talking about here in terms of assessing the risk of error in determining what process is due is the class of cases in which the items were seized with probable cause to believe that they were subject to forfeiture. In that class of cases the risk of error is very slight. This is especially true in these currency cases, because all you need to prove is events that happened right there in front of the Customs inspector: the discovery of the money and the fact of nondeclaration. So the risk of error in this class of cases is very small. Finally, there is the equitable action. I think I should reserve the balance of my time for rebuttal, if I may.
Warren E. Burger: Very well. Mr. Kroft.
Victor Sherman: Mr. Chief Justice, may it please the Court: The first question, as to whether or not the due process clause requires a prompt post-seizure hearing and as to whether or not the statute of limitation is the only limitation of the Government, first of all, 19 U.S.C. Section 1621, which is the applicable statute of limitations, says that the action must be instituted within five years after the time when the alleged offense was discovered. Obviously, if the Government believes that a crime has occurred or that a forfeiture is appropriate and they do not seize the person's property, they have five years within to bring an action. That's the normal statute of limitations. However, when they have seized the property... and this Court has already indicated in the Pierson Yacht case in 1974 that once an item has been seized under a forfeiture proceeding, there is an emergency reason not to comply with the normal rule that before seizure you are to give a person notice and a hearing. It's only in the rare instance where because of other governmental interest such as in the Pierson Yacht case or potentially in this case that you can seize the property and merely postpone the hearing. And once the event has happened, there is no reason to delay the hearing beyond the requirement of the due process prompt hearing requirement. And I believe the Government has cited no cases, and there are no cases, either at the District Court, Court of Appeals, or Supreme Court that says the Government has up to the statute of limitations. The rule has always been that once the property is seized, you are required to give a prompt post-seizure hearing. The Government has--
William H. Rehnquist: Well, is that a constitutional rule?
Victor Sherman: --Certainly, first of all, since the Government concedes that the remission petitions are to be decided under 19 U.S.C., Sections 1602, 1603 and 1604 have been interpreted by the various courts to apply to this situation. 1602 talks about once a seizure has occurred the seizing officer is to immediately make a report to the appropriate Custom officer; there's to be an immediate investigation and an appraisal of the property under 1603, and then the matter referred to the United States Attorney's Office; and 1604 to be a filing of the action forthwith. The Court has indicated in the First Amendment area in the Thirty-Seven Photographs case that in order to save the facial constitutionality of the section in that particular case, it read into this statute certain time limitations... 14 days for a preliminary hearing as to whether or not the particular film in question--
William H. Rehnquist: Well, you're not suggesting that any First Amendment interest is involved in a certain amount of money, are you?
Victor Sherman: --No. What I am suggesting is that in other areas the Court has said that promptitude or promptness is required. And I'm saying in this particular area the due process clause also is applicable. Although this is a Fifth Amendment area and not a First Amendment area, and potentially the time restraints may be somewhat different depending upon the interest involved, certainly the principle that something has to be done within a prompt period of time and that the due process clause has a role to play in that determination is applicable in this case. And I believe that any argument that says that once the Government seizes an individual's property and can sit on it for five years and has to do nothing is foreign to every single court from the Magna Carta onward who has even discussed this point. And the reason the Government is unable to cite any cases that says they can wait five years is because there are no cases because everybody assumes--
Sandra Day O'Connor: Well, I suppose we don't have to decide that to resolve this case, do we, because the Government didn't wait that long, and you don't have to resolve that. What you have to resolve here is whether the delay, which involved waiting for the resolution of the criminal action, in effect, did amount to a meaningful time for the provision of the judicial proceeding.
Victor Sherman: --And this is where the facts become extremely important, and that's why the Government's continued assertion that the petitioner did not want a prompt hearing is totally belied by the record. First of all, if the Court will note that the day after the seizure occurred, I wrote a letter on behalf of the claimant indicating the reason the funds were not reported and the mistake of fact which the petitioner or the claimant was under due to the confusing Customs form given to her on the airplane; and that we wanted a prompt hearing of the matter; and that we wanted to know the reasons if there was to be a denial of the petition, and the standard under which the Secretary was making the decision. And consistently thereafter I wrote letters to Customs asking for reasons if there was going to be denial and to handle the matter promptly. Now, at all times Customs agent Janet Pompeo, in this case, related to me that this was a civil forfeiture proceeding and never gave any indication whatsoever there was going to be a criminal case. And this is where the bad faith of the Government comes in. Not only did she indicate to me that--
William H. Rehnquist: Well, where do we find that in the record, counsel?
Victor Sherman: --It's in the Appendix, Your Honor. At the civil trial Janet Pompeo testified that she went so far as to obtain an interview of my client under the guise of a petition for remission when she had already made the decision in October within a few days after receiving the information regarding the seizure that she was going to file a criminal case. And the only reason there was delay in this case was not to investigate the remission petition, but it was to try to gather further information under the guise of investigating the remission petition to file the more serious felony of 1059.
William H. Rehnquist: Well, why can't they investigate both at the same time?
Victor Sherman: Well, I'm not saying that Customs cannot investigate both at the same--
William H. Rehnquist: You say it's bad faith to do it?
Victor Sherman: --I'm not saying... it's bad faith to tell the attorney for a claimant that you are seriously considering a remission petition, get an interview of the claimant, when at the same time all you're trying to do is getting... is get an incriminating statement against the claimant to use in a criminal proceeding, and also induce the claimant not to ask for the forfeiture, judicial forfeiture proceedings because you're telling the claimant we are honestly going to consider your remission petition. If Janet Pompeo would have told me I am investigating a criminal case--
William H. Rehnquist: Well, now, is this all in the record?
Victor Sherman: --Yes, it is all in the record.
William H. Rehnquist: Do you cite appropriate places in your brief?
Victor Sherman: Yes, we did.
William H. Rehnquist: Do you have a record citation? Did you say it's in the Appendix?
Victor Sherman: The entire civil forfeiture matter is in the Appendix.
William H. Rehnquist: Do you have a page citation to the testimony that you're relying on?
Victor Sherman: I believe it's at pages 53 to... 59 to 61 and 63 to 64 in the Appendix.
Thurgood Marshall: Thank you. Mr. Sherman-- --Mr. Sherman, all this time you were writing letters could you have filed any legal action?
Victor Sherman: Could I have?
Thurgood Marshall: Yes.
Victor Sherman: Well, first of all, the Government makes a big point of--
Thurgood Marshall: That's a very simple... could you or could you not?
Victor Sherman: --If I wanted to go to the expense of filing an action to force them to file a forfeiture action.
Thurgood Marshall: Most legal action costs money. My question was could you have filed a legal action of any kind?
Victor Sherman: Under that broad question the answer is yes.
Thurgood Marshall: Did you?
Victor Sherman: No, I did not.
Thurgood Marshall: Well, how do you explain that?
Victor Sherman: Because--
Thurgood Marshall: They said you delayed. Well, didn't you?
Victor Sherman: --No, I did not.
Thurgood Marshall: Weren't you getting the... trying to get the Customs people to decide your case--
Victor Sherman: What I was--
Thurgood Marshall: --Without spending any money?
Victor Sherman: --What I was trying to do--
Thurgood Marshall: Without litigating.
Victor Sherman: --What I was trying to do was take advantage of what the Government was offering me and telling me they were going to treat in good faith; that is, the remission procedure. The remission procedures are intended to settle these matters fast and efficiently--
Thurgood Marshall: They lulled you... they lulled you into giving up your rights.
Victor Sherman: --More than lulled. They affirmatively made representation--
Thurgood Marshall: But didn't you go to law school to prevent people from lulling you?
Victor Sherman: --I also learned in law school and... that if the Government tells you something that they are doing that you supposedly can rely upon what they're telling you, and if they're lying to you that you have a recourse afterwards.
Thurgood Marshall: If the Government says they're going to do your work for you, you don't have to do it.
Victor Sherman: I'm not saying that they were telling me they were doing their work for me. They were telling me if you submit a petition for remission in good faith, we will consider it in good faith; and I relied upon that representation to me.
Harry A. Blackmun: Mr. Sherman, you appealed the felony conviction and won a reversal.
Victor Sherman: That's correct.
Harry A. Blackmun: Has she ever been retried?
Victor Sherman: No.
Harry A. Blackmun: Do you know why?
Victor Sherman: Well, the Government dismissed... it was on the Government motion that the criminal case was dismissed. By the way--
Sandra Day O'Connor: Mr. Sherman, neither the District Court nor the Court of Appeals found bad faith on the part of the Government, did they?
Victor Sherman: --Well, I believe that although the words "bad faith" were not used, the Court of Appeals found that there was absolutely no justification for the Government delaying in this case.
Sandra Day O'Connor: They found that the failure was unjustified but did not find bad faith, isn't that correct?
Victor Sherman: Well, again, Justice O'Connor, they did not use the word 18-month delay in filing the forfeiture action without any valid justification whatsoever certainly be read--
Sandra Day O'Connor: They just found it was too long, that's all, not bad faith, isn't that right?
Victor Sherman: --Again, they did not use the words "bad faith". Justice Marshall, as far as bringing another type of action, the Government claims that we could have filed a 41(e) action in order to test the legality or the propriety of the seizure. First of all, that would not go to whether or not the money should be forfeited, but also there's federal criminal rule procedure 54(b)(5) which states that you may not use a 41(e) action in a forfeiture case. So there's another section that specifically says we can't even file a 41(e) motion. Also, under the Snidiak--
Thurgood Marshall: Well, then I amend my question. Did you try to file any legal action?
Victor Sherman: --No, I did not try to file any legal action. Also, under Snidiak and Fuentes the Court has specifically held and indicated that it's not up to the persons whose property has been seized in order to go to court to try to file or force the issue; it's the person who has seized the property that has the primary responsibility in the action. In this particular case it's the Government that seizes an individual's property. They set up a procedure which says if you can show that there's been an innocent mistake of fact, which we tried to show in this case, makes it available to the claimant, as they made it available in this case, and we take advantage of that procedure. And then rather than considering the petition... at no time was this petition ever considered as part of the remission procedures. Janet Pompeo had made the decision within a day or two of investigating the matter that she was going to file a criminal case, and she never intended to consider the remission petition. All she did is delay for this period of what turned out to be 18 months for the purpose of proceeding with the criminal case. And then she told the district director don't decide the remission petition until after the criminal case is over, because that would have a bearing on whether or not there should be a forfeiture to see if we can get a conviction under 1102. And this is where the Government attempted to take advantage, tactical advantage, which is mentioned in Footnote 17 of Lovasco, because if they would have gotten a criminal conviction under 1101... excuse me... they would have utilized that as a forfeiture under 1102, and then the person was acquitted.
Sandra Day O'Connor: Mr. Sherman, it sounds to me as though it's pretty logical for the Government agents, for the Treasury Department to investigate in connection with a remission petition whether there's some underlying criminal activity afoot; that that's an appropriate thing to do in deciding whether some administrative petition to return the money is appropriate to grant. In this case the Government decided this woman had violated the law, had committed felonies, and ultimately decided to prosecute. Now, why is that unreasonable?
Victor Sherman: Your... Justice O'Connor, the Government concedes that if I would have filed no petition whatsoever within a 60-day period that very soon thereafter they would have been required to file a judicial forfeiture action. So if I would have done nothing, if I would have sat back rather than writing the letter the day after and filing the petition some 10 days later, and done nothing, some 60 days and a little--
Sandra Day O'Connor: I didn't understand that to be a Government concession.
Victor Sherman: --Yes. It is... it's stated in their brief that if no petition--
Sandra Day O'Connor: Show me where in the brief that's stated.
Victor Sherman: --May I have my associate look for it while I--
Sandra Day O'Connor: Surely.
Victor Sherman: --The... if you file no petition for remission, then Customs has nothing to consider, so all they do is have the money. The next step in the process would be the filing of the judicial forfeiture action. So it's only the filing of the forfeiture petition--
Sandra Day O'Connor: Well, maybe the next step would be the filing of a criminal prosecution.
Victor Sherman: --First of all, the criminal prosecution took place... the indictment was returned some nine months after the seizure of the funds, so there might be a question right there: Is nine months considered prompt? And if the purpose of waiting nine months to file the forfeiture action... in the particular indictment in this case the Government indicted Mary Vasquez on 1001 and 1101 and also asked for the forfeiture of the funds. So if you want to consider the indictment an attempt to forfeit the funds, they asked for the forfeiture of the funds which the person was acquitted on that particular charge. Now, when the matter ended up going to the jury, the Government realized that they could not actually get forfeiture in the criminal proceedings and would have to wait for the civil action. But by originally putting in the indictment that they were attempting to forfeit the funds and then losing on that issue--
William H. Rehnquist: Well, what was she convicted of?
Victor Sherman: --She was convicted of 1001 which eventually was overturned on the appeal.
Sandra Day O'Connor: A more serious offense, right? A false statement.
Victor Sherman: Yes, but--
William H. Rehnquist: The jury was satisfied of her guilt on that, I take it.
Victor Sherman: --Well, yes, because the court file which showed a prior criminal record was put into the jury room, and so the Court of Appeals held that they were obviously influenced by extrinsic matters, and so they reversed the conviction. So you can't very well say that the jury found her guilty based upon appropriate evidence, and now since they didn't retry her say that they were convinced of her guilt.
William H. Rehnquist: Well, they... they didn't really give her a clean bill of health either.
Victor Sherman: Well, they acquitted her. Well, Your Honor, I think that's an unfair comment in a sense to make under the facts of this case, but if we want to carry it one step further, they did give her a clean bill of health as to whether or not she filed the 1101 reporting form. They acquitted her.
William H. Rehnquist: Well, they didn't give her a clean bill of health as being guilty of making a material false statement to the Government.
Victor Sherman: Well, if you want to say that they did not give a clean bill of health because they were influenced by improper evidence put into the jury room, no, they did not give her a clean bill of health. But if the Government is waiting until a jury makes a decision as to whether or not the appropriate form was filed, and they give her a clean bill of health and say not guilty, and the Government has used as a tactical advantage this time period in which to try to get a jury to make that determination, then they lose and they say well, it's totally irrelevant to us and then bring a forfeiture action, they are taking two bites of the apple, heads, we win, tails, you lose. If we get a conviction of 1101, we'll forfeit the money; and if we don't, we'll just do it another way. And that was the tactical advantage referred to in Lovasco that we're referring to. I would also like to point out that there's another section. One of the major arguments the Government makes in this case, well, if we rule in favor of the claimant in this matter, we're out of luck; there's nothing we can do. That is totally not true. There's a Section 31, U.S.C. Section 1103, and also the recent Ninth Circuit case decided in October of 1982, which is 295 Ivory Carvings, that says besides forfeiting the item, another alternative is for the Secretary to assess a fine against the offender and assess that fine giving credit for any amount of... the amount of the forfeited item. So if, for instance, the Government delays in bringing the forfeiture action and loses the ability to forfeit that particular item, they can obtain the same result by filing an action under 31 U.S.C. 1103 getting a judgment for the amount that they believe is owed to the Government and collect that way. And that only has to be done within the five year statute of limitations. But if the Court permits or reverses the Court of Appeals judgment in this case, they're going to say to the Government you can take somebody's property, they can deal with you in an honest fashion, they can ask for prompt action within the remission procedures, they can rely upon your representation the remission procedures are what you are considering, they can hold that property for an indefinite period up to five years, and there's nothing you can do to complain about it, unless you want to take the expense of filing, which seems to be the only potential remedy, an action against the Government saying file a forfeiture action against me. And why at that time the Government would then make the same arguments: well, we don't have to file a forfeiture action against you because there's a pending criminal matter. I would doubt very much if any members of this audience, or as obviously by the opinions of the Court of Appeals, would countenance the ability of the Government to seize somebody's property and hold it for five years and give them no relief. And that's exactly the position that the Government is arguing in this particular matter.
Warren E. Burger: How long did they hold it here?
Victor Sherman: Eighteen months.
Warren E. Burger: That's quite a ways off from five years, isn't it?
Victor Sherman: It's also a lot of a ways off from a common understanding of the word "promptly".
Warren E. Burger: How about Lovasco?
Victor Sherman: Lovasco, I think as Justice White--
Warren E. Burger: It was 17 1/2 months, wasn't it?
Victor Sherman: --Lovasco was a pre-indictment situation, and the Court, to give a little summary, has basically said nobody has a right to be arrested or indicted; that basically it's a prosecutorial discretionary decision as to when to proceed with a criminal case. And since nobody is under any deprivation of any kind, we can't say that you have to file a case within a particular period of time. And in order to show a violation under Lovasco, you must show actual prejudice, because until you can show actual prejudice, the Government has done nothing to deprive you of anything. If we were going to use an analogy to any of the prior decisions, obviously the Barker case, Barker v. Wingo, is more applicable because we can analogize the seizure of property to the seizure of a person. In actuality, forfeiture sections are considered in rem proceedings, so it's an arrest of the property as an arrest of the person. So once there's been a deprivation, as in this case, now the mechanism similar to a speedy trial application in Barker takes place. And in Barker there were four specific tests to determine whether or not something was speedy, which is the same kind of determination on an ad hoc basis that should be made as to whether something is prompt... a balancing of factors. And the court in the Ninth Circuit has balanced those factors and said, for instance... and the Government again concedes in its brief that the 18-month period... and I believe I can give you the page citation... is on its face not prompt or sufficiently stale to trigger the other decisions or the other factors in Barker v. Wingo. So the first factor, of course, is the length of delay. The second factor is whether or not there is any reason for the delay. In this particular case the Court of Appeals found as a matter of law that there were no reasons for the delay because the delay had nothing to do with the ostensible purpose for seizing the funds which was the forfeiture action, the remission petition procedure.
Warren E. Burger: You think you had no obligation to show prejudice?
Victor Sherman: I'm not saying that I have no obligation to know prejudice. First of all, I think that it's very important... and that's why I mention 1103, this prejudice question. The reason prejudice is so important in the criminal area is because if the Government loses, it's the end of the matter; the person is free. Now, first we have the higher potential society responsibility to prosecute criminals, and when we start letting people that may have committed crimes go, we want to be very careful that there's been a substantial violation of constitutional right before we do that. Second of all, as I've already indicated, in the criminal area if the Government loses, it loses. There's nothing further they can do. In the forfeiture area if the Government loses under this procedure, they haven't... they have other remedies. They can bring a criminal action, which they did in this case, or they can sue under 1103. So their prejudice, if we're balancing prejudice to the Government versus prejudice to the claimant, the Government suffers almost no prejudice whatsoever if they don't bring the forfeiture action promptly because they have another alternative.
Warren E. Burger: Well, do you suggest that there was any prejudice other than being deprived of the use of the money?
Victor Sherman: I am not suggesting that there was prejudice in the sense of being able to put on the defense of the case. I would say that--
Warren E. Burger: On this record there was no defense, was there?
Victor Sherman: --Yes, there was a defense. The defense in this particular case... and I think it was the first question Your Honor asked... was whether or not at a forfeiture trial there would have been any defense, and the defense in this particular case was that the form that Mary Vasquez was required to fill out upon the return into the United States mentioned property acquired abroad, and she--
Warren E. Burger: Well, I'm talking about... I'm talking about the physical evidence. The fact of concealment negates all that, doesn't it?
Victor Sherman: --Not at all. Mary Vasquez has testified that the reason, this was just a safe hiding place for the funds rather than carrying it in her pocket or her purse where it could be taken by some third party. She had nothing to hide. The form said property acquired abroad. She understood it to mean that in order to be required to... to... to report the funds, you had to acquire the property abroad.
William H. Rehnquist: Well, Mr.... Mr.--
Victor Sherman: Sherman.
William H. Rehnquist: --Sherman, 19(a) where the... Judge Curtis' findings of law, he says, "The claimant violated 13 U.S.C. 1101 (a) when she executed a Customs form stating that she was not carrying currency. " "Furthermore, she repeatedly failed to make a proper declaration during a primary oral examination. " Now, were those contested issues at the trial of the forfeiture action?
Victor Sherman: By way of stipulated testimony as to what claimant would say, yes. But again, it's not after the fact that Judge Curtis happened to have made that particular determination. The question was did she have anything to litigate, and the fact that Judge Curtis did not believe her did not mean that she did not have something to litigate.
William H. Rehnquist: Well, she had nothing to gain by being tried earlier. She just would have lost earlier.
Victor Sherman: Well, Your Honor, I would quote back to this Court many cases that say that to one who protests against the taking of his property without due process of law it is no answer to say in his particular case due process of law would have led to the same result because he had no defense upon the merits. That's basically what Your Honor is saying is if you can't win, what difference does it make if your due process violations are violated? Let's apply that to the criminal area.
William H. Rehnquist: Well, when you come right down... when you come right down to it, what difference does it make?
Victor Sherman: Well, then why... then why have Fourth Amendment, Fifth Amendment, Sixth Amendment? If the person is guilty and along the way we can convict him any way we want and it doesn't matter, then what's the point of the procedure of due process?
William H. Rehnquist: Well, I'm not saying any way we want. There's no suggestion that you were prejudiced in your effort to prepare your case for the forfeiture proceeding before Judge Curtis. You're saying that just in the abstract without any showing of prejudice the fact that it came to trial maybe six, eight, ten months after you think it should have should mean the Government just gives up the forfeiture. Now, that doesn't make any sense to me.
Victor Sherman: Not gives up... Your Honor, if I'm sitting in this courtroom and one of your marshall comes over to me and takes my wallet under some theory, and takes my wallet and takes it into his office and holds it for five years, and you're saying to me I have no rights to try to get that property back.
William H. Rehnquist: Well, I'm not really addressing that situation. I'm addressing the kind of situation where your client was on a plane from Vancouver to Los Angeles carrying concealed currency on her person, fails to declare it. I think that puts the case in a little bit different light than your example.
Victor Sherman: Well, you're accepting the fact that she had no justifiable belief in what she was doing.
William H. Rehnquist: I am accepting Judge Curtis' findings of fact made after a full evidentiary hearing, I take it.
Victor Sherman: Well, again, I would just quote to you that the end result is not the determining factor as to whether or not there's been a violation of due process. And I think what Your Honor is saying is that if there's been, let's say, a Miranda violation, what difference does it make if the person is guilty. That's why we have procedural due process rules.
Lewis F. Powell, Jr.: Counsel, may I ask a question? As I read the findings of fact, it... it's stated on page 15A that it is further stipulated that during the questioning, Inspector McCulloch asked your client if she were carrying more than $5,000. She replied in the negative, and that question was repeated three times.
Victor Sherman: That's correct.
Lewis F. Powell, Jr.: Did you... did you prepare the stipulation? Did you agree to it?
Victor Sherman: Yes. That was an undisputed fact.
Lewis F. Powell, Jr.: Right. And... and do you compare that with somebody coming up and seizing your wallet here in court?
Victor Sherman: No. What I am saying, first of all, the forfeiture in this case was not based upon a 1001 violation.
Lewis F. Powell, Jr.: But it was based upon an absolutely false statement made to a Customs officer.
Victor Sherman: No. You can make the false statement to the Customs officer, and then if she would have... if she would have been given the form and filled out the form, they could not forfeit these funds. It's the failure to follow the reporting form which triggers the forfeiture, not the false statement. But second of all--
Lewis F. Powell, Jr.: You're saying lying to a Customs officer is... is perfectly appropriate and--
Victor Sherman: --No.
Lewis F. Powell, Jr.: --Therefore there was no... no one... that therefore the conduct of the Government was unlawful at that time?
Victor Sherman: If you lie to a Custom officer and fill out the forfeiture form, they can't... and I mean, excuse me, fill out the appropriate reporting form, they can't forfeit your property. That's the statutory scheme. There is no statutory scheme that if you lie to a Customs officer they can take all of your property, whatever you have on you. It's the... the Bank Reporting Act is not... it's not illegal to bring in more than $5,000. The only illegality is failure to file the form.
Lewis F. Powell, Jr.: Oh, I understand the forfeiture is a different question, but we were talking about whether or not--
Victor Sherman: But... but, Your Honor--
Lewis F. Powell, Jr.: --The initial seizure was valid by the Government... Government.
Victor Sherman: --That's not a question as to whether the seizure--
Lewis F. Powell, Jr.: Well, that... that's the question I was addressing.
Victor Sherman: --I'm sorry. But, again, the reason she reported it that way, because she had already been informed through the Customs declaration form that she understood it to mean that she only had to tell them she had more than $5,000 if she acquired the money abroad.
Thurgood Marshall: Well, wouldn't that have been... shouldn't that have been her answer? Yes, I have more than $5,000, but I--
Victor Sherman: Well, that's what... you know, Your Honor, that's why people make mistakes, because they don't understand certain Customs forms, and in fact, she was acquitted on that very charge.
Thurgood Marshall: --I didn't say anything about the Customs form.
Victor Sherman: Yes, that should have been her answer.
Thurgood Marshall: I said that she should have said... you know, it's to answer the truth, the whole truth.
Victor Sherman: Well, she believed that she was answering truthfully.
Thurgood Marshall: And she was answering the whole truth.
Victor Sherman: That's what she believed.
Thurgood Marshall: That's what she believed.
Victor Sherman: That's what she believed.
Thurgood Marshall: And that's what you believe.
Victor Sherman: Well, that's what the jury believed.
John Paul Stevens: That's not what I asked. Counsel, but really the issues before us don't concern her guilt or innocence, do they? We accept the fact that she's been... it doesn't really matter, does it, on the forfeiture issue? She's going to lose on the merits in the forfeiture issue. You accept that, but you say for procedural reasons--
Victor Sherman: No, I don't... I don't accept... I accept that she did in fact lose--
John Paul Stevens: --Yeah.
Victor Sherman: --On the merits issue, but I'm saying--
John Paul Stevens: And you're not asking us to review... to review that determination.
Victor Sherman: --Well, I'm asking you to review it in the sense that if we assume that the remission petition are subject to due process requirements, which I believe they are, that... and no reason was given in the remission--
John Paul Stevens: Well, aren't you just arguing even a guilty person is entitled to a fair trial? That's all you're arguing.
Victor Sherman: --Exactly.
John Paul Stevens: So you can assume for purposes of that argument that she's "guilty" in the sense that she loses on the merits in the forfeiture case.
Victor Sherman: Yes. I'm asking that even a guilty person is entitled to procedural due process. And I would hope that the Court would agree with that, as I'm sure they do.
Byron R. White: Yes, but you're also... you're saying more than that. Entitled to due process, but if they don't get it, the entire proceeding must fail.
Victor Sherman: Well, Barker v. Wingo says that even though it may be a harsh result for purposes of the Government to dismiss the action, that's the only remedy. And I will quote from Barker. It says, "Such a remedy is more exclusionary than an exclusionary rule or reversal for a new trial, but it is the only possible remedy. " Right from this Court's own mouth that is the only possible remedy.
Warren E. Burger: Thank you, Mr. Sherman. Do you have anything further, Mr. Frey?
Mr. Andrew L. Frey: Yes, I do, Mr. Chief Justice. First of all, on this question of remedy, not even Fuentes v. Shevin on which my colleague relies, even though it's quite distinguishable, provides that the creditor's rights are extinguished.
Byron R. White: What about Barker?
Mr. Andrew L. Frey: Well, I'm not sure that... I'm not sure that Barker is... is an analogous situation for purposes of remedy. I mean it's--
Byron R. White: Well, are you arguing that even if there was unreasonable delay, the proceeding should not have been... the forfeiture proceeding should not have been dismissed?
Mr. Andrew L. Frey: --Yes, definitely.
Byron R. White: Well, what about Barker?
Mr. Andrew L. Frey: Well, I don't think there... I think there the proper analogy is to Carey v. Piphus. That is, prejudice is an element except in the Barker situation where there is an explicit constitutional provision on the speedy... on speedy trial. Here we're talking about due process, and the Court has said that in the absence of prejudice, you may be entitled to nominal damages because there is a desire and there is an interest in adhering to fair process even if you're not prejudiced by it. But it's crystal clear in this case. In fact, this remedy is exactly backwards. It's a little bit like the exclusionary rule. For people whose property should not be forfeited... that is, people who... who've been injured by the delay, they get nothing out of this remedy because they're going to get their property back anyway. The only people who get anything out of this remedy are people to whom the delay made no difference except to defer the date on which title to property was quieted in the United States. Now, this doesn't make very much sense to me. Now, with respect to Section 1103 which my colleague mentioned for the first time today, I am advised that that section is a section that deals with the situation where the discovery of the illegal transportation of the currency occurs after it's too late to seize it, but that in cases where the currency is seized, that section has no application.
Byron R. White: What about Rule 41? The suggestion was that it was wholly--
Mr. Andrew L. Frey: Oh, oh, yes. His suggestion about Rule 54(b), which is something else that has not been briefed, and I have not looked at the rule; but I will say that I think that applies only where there is a forfeiture action, and we are talking about a case of--
Byron R. White: --Well, 54(b) says that these rules do not apply to a civil forfeiture proceeding.
Mr. Andrew L. Frey: --Well, this is not... the Rule 41(e) motion is not a civil forfeiture proceeding.
Byron R. White: Right.
Mr. Andrew L. Frey: The Rule 41(e) motion is brought to the time. That is, in the case in which the marshall walks up and takes his wallet from him would be no--
Byron R. White: Yes. But you would be filing... the motion would be filed in a civil forfeiture proceeding--
Mr. Andrew L. Frey: --Not at all. The motion--
Byron R. White: --It would be in a criminal cases, is that it?
Mr. Andrew L. Frey: --No. The motion is a motion that is filed under the rules. It is not part of either... it is not part of any other case. If there... a criminal case--
Byron R. White: It's a proceeding in itself?
Mr. Andrew L. Frey: --Hmmm?
Byron R. White: It's a proceeding in itself?
Mr. Andrew L. Frey: It's an independent proceeding, I believe.
John Paul Stevens: Yes, but you only prevail on that if there's no probable cause, don't you? I mean most of these cases at least there'll be probable cause to make the seizure so--
Mr. Andrew L. Frey: Well, that's why... that's why the need for a prompt judicial filing, which is in fact suicidal for the interests of the claimant, is very much reduced because there is probable cause in these cases.
John Paul Stevens: --Well, if... I don't understand. The probable cause means you will win every 41(e) motion.
Mr. Andrew L. Frey: If there's probable cause.
John Paul Stevens: And assume there is. Then I would think in--
Mr. Andrew L. Frey: So the class of... when we... when we are making the due process inquiry, whether a meaningful... what the risk of error is in failing to provide a prompt judicial forfeiture action as opposed to a deferred one, we must--
John Paul Stevens: --It's the risk measured by the difference between probable cause and preponderance whatever that is.
Mr. Andrew L. Frey: --By the... yes. Or the possible--
John Paul Stevens: A clear and convincing--
Mr. Andrew L. Frey: --Existence of an affirmative defense. But we're talking about a class of cases in which the risk is inherently very low that the seizure has been improper or the forfeit--
John Paul Stevens: --We're talking about that small percentage in which you ultimately lose, which you say in your brief is 20 percent but on reflection you think is significantly less. But we're talking about maybe 10 percent or 5 percent of the forfeitures, and there are 50,000 of them; so we're talking about 4,000 or 5,000 cases--
Mr. Andrew L. Frey: --No, no, no, no. No. It's not 10 or 5 percent of 50,000. It's 10 or 5... it--
John Paul Stevens: --Of the litigated cases.
Mr. Andrew L. Frey: --Of the 25,000 cases, about two-thirds are settled. Of the remaining 6,000 or 7,000, the vast majority are defaulted when we file them. So that 80 percent figure related to some number--
John Paul Stevens: It's the litigated cases.
Mr. Andrew L. Frey: --Of a few hundred litigated cases. And I think it's more like one-tenth of one percent.
Warren E. Burger: Thank you, gentlemen. The case is submitted.