461 U.S.

555
103 S.Ct. 2005
76 L.Ed.2d 143

UNITED STATES, Petitioner,

v.
EIGHT THOUSAND EIGHT HUNDRED AND FIFTY
DOLLARS ($8,850) IN UNITED STATES CURRENCY.
No. 81-1062.
Argued Jan. 18, 1983.
Decided May 23, 1983.

Syllabus
The Bank Secrecy Act of 1970, 31 U.S.C. 1101, requires persons
knowingly transporting monetary instruments exceeding $5,000 into the
United States to file a report with the Customs Service declaring the
amount transported. The Government is authorized under 31 U.S.C.
1102(a) to seize and forfeit any monetary instruments for which the
required report was not filed. On September 10, 1975, claimant Vasquez
upon arrival at Los Angeles International Airport from Canada, declared
that she was not carrying more than $5,000 in currency, but a customs
inspector discovered and seized from her $8,850 in United States
currency. On September 18, 1975, the Customs Service informed Vasquez
by letter that the seized currency was subject to forfeiture and that she had
a right to petition for remission or mitigation. A week later, she filed such
a petition. Thereafter, from October 1975 to April 1976, the Customs
Service, suspecting Vasquez of narcotics violations, conducted an
investigation of the petition, but concluded, after contacting federal, state,
and Canadian law enforcement officials, that there was not evidence of
any violations. Vasquez, however, was indicted in June 1976 for, and
convicted in December 1976 of, knowingly and willfully making false
statements to a customs officer. In March 1977, a complaint seeking
forfeiture of the currency under 31 U.S.C. 1102(a) was filed in Federal
District Court. Vasquez claimed that the 18-month delay between the
seizure of the currency and the filing of the forfeiture action violated her
right to due process, but the District Court held that the time that had
elapsed was reasonable under the circumstances and declared the currency

forfeited. The Court of Appeals reversed and ordered dismissal of the

forfeiture action.
Held: On the facts, the Government's 18-month delay in filing a civil
proceeding for forfeiture of the currency did not violate the claimant's
right to due process of law. Pp. 562-570.
(a) The balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d 101, developed to determine when Government delay has
abridged the right to a speedy trial provides the relevant framework for
determining whether the delay in filing a forfeiture action was reasonable.
That test involves a weighing of four factors: length of the delay, the
reason for the delay, the defendant's assertion of his right, and prejudice to
the defendant. Pp. 562-565.
(b) In this case, the balance of factors under the Barker test indicates that
the Government's delay in instituting civil forfeiture proceedings was
reasonable. Although the 18-month delay was a substantial period of time,
it was justified where there is no evidence that the Government's
investigation of the petition for remission or mitigation was not pursued
with diligence or that the Government was responsible for the slow pace
of the criminal proceedings. Nor is there any evidence that Vasquez
desired early commencement of a civil forfeiture proceeding, she never
having used the available remedies to seek return of the seized currency,
and she has never alleged or shown that the delay prejudiced her ability to
defend against the forfeiture. Pp. 565-570.
645 F.2d 836 (9th Cir., 1981), reversed and remanded.
Andrew L. Frey, Washington, D.C., for petitioner.
Victor Sherman, Los Angeles, Cal., for respondent.
Justice O'CONNOR delivered the opinion of the Court.

United States Customs officials seized $8,850 in currency from the claimant as
she passed through customs at Los Angeles International Airport. The question
in this case is whether the Government's 18-month delay in filing a civil
proceeding for forfeiture of the currency violates the claimant's right to due
process of law. We conclude that the four-factor balancing test of Barker v.
Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), provides the
relevant framework for determining whether the delay in filing a forfeiture
action was reasonable. Applying the Barker test to the circumstances of this

case, we find no unreasonable delay.

2* A.
3

Section 231 of the Bank Secrecy Act of 1970, 31 U.S.C. 1101, requires
persons knowingly transporting monetary instruments exceeding $5,000 into
the United States to file a report with the Customs Service declaring the amount
being transported. Congress has authorized the Government to seize and forfeit
any monetary instruments for which a required report was not filed. 31 U.S.C.
1102(a). Since the Bank Secrecy Act does not specify the procedures to be
followed in seizing monetary instruments, the Customs Service generally
follows the procedures governing forfeitures for violations of the customs laws,
as set forth in 19 U.S.C. 1602 et seq., and the implementing regulations.
Under these procedures, the Customs Service notifies any person who appears
to have an interest in the seized property of the property's liability to forfeiture
and of the claimant's right to petition the Secretary of the Treasury for
remission or mitigation of the forfeiture.1 See 19 CFR 162.31(a) (1982). The
regulations require a claimant to file the petition within 60 days. 19 CFR
171.12(b) (1982).

If the claimant does not file a petition, or if the decision on a petition makes
legal proceedings appear necessary,2 the appropriate Customs officer must
prepare a full report of the seizure for the United States Attorney. 19 U.S.C.
1603 (1982).3 Upon receipt of a report, the United States Attorney is required
"immediately to inquire into the facts" and, if it appears probable that a
forfeiture has been incurred, "forthwith to cause the proper proceedings to be
commenced and prosecuted, without delay." 19 U.S.C. 1604. After a case is
reported to the United States Attorney for institution of legal proceedings, no
administrative action may be taken on any petition for remission or mitigation.
19 CFR 171.2(a) (1982).

The Customs Service processes over 50,000 non-contraband forfeitures per

year. U.S. Customs Service, Customs U.S.A. 36 (1982). In 90% of all seizures,
the claimant files an administrative petition for remission or mitigation. Brief
for Petitioner 7. The Secretary in turn grants at least partial relief for an
estimated 75% of the petitions. Ibid. Typically, this relief terminates the dispute
without the filing of a forfeiture action in district court.

B
6

On September 10, 1975, claimant Mary Josephine Vasquez and a companion

arrived in Los Angeles International Airport after a short visit to Canada.

During customs processing, Vasquez declared that she was not carrying more
than $5,000 in currency. Nevertheless, a Customs inspector discovered and
seized $8,850 in United States currency from her. On September 18, 1975, the
Customs Service officially informed Vasquez by letter that the seized currency
was subject to forfeiture and that she had the right to petition for remission or
mitigation. A week later, Vasquez filed a petition for remission or mitigation,4
asserting that the violation was unintentional because she had mistakenly
believed she was required to declare only funds that had been obtained in
another country and that she had brought the seized funds with her from the
United States.
7

On October 20, 1975, the Customs Office of Investigation assigned Special

Agent Pompeo to investigate the petition. Within a few days, Agent Pompeo
had interviewed the Customs inspectors at the airport who were involved in the
seizure. After several unsuccessful attempts to contact him, in mid-November
Agent Pompeo contacted Vasquez's attorney to arrange an interview with
Vasquez. The attorney was unable to meet at that time and he desired to be
present during the interview with his client. Around this time, Agent Pompeo
also opened a criminal file because she suspected Vasquez of smuggling drugs.
From November 1975 until April 1976, Agent Pompeo contacted various state,
federal, and Canadian law enforcement officials to determine whether the
seized currency was part of a narcotics transaction.5

In January 1976, Vasquez's attorney inquired about the status of the petition,
and was informed it was still under investigation. On March 2, 1976, Agent
Pompeo again contacted the attorney regarding an interview with Vasquez, and
an interview took place three days later. On April 26, 1976, the attorney again
inquired about the status of the petition and requested that it be acted on as soon
as possible. Also in April 1976, Agent Pompeo received final reports from the
law enforcement agencies. From these reports, Agent Pompeo concluded there
was no evidence to support a charge of narcotics violations.

In May 1976, Agent Pompeo submitted a report to the United States Attorney,
recommending prosecution of Vasquez for the reporting violation. After Agent
Pompeo reinterviewed the customs agents and reported her findings, the United
States Attorney submitted the case to the grand jury. On June 15, 1976, a grand
jury returned an indictment charging Vasquez with the felony of knowingly and
willfully making false statements to a United States customs officer, in
violation of 18 U.S.C. 1001; and with the misdemeanor of knowingly and
willfully transporting $8,850 into the United States without filing a report, in
violation of 31 U.S.C. 1058 and 1101. The indictment sought forfeiture of
the currency as part of the misdemeanor count.

10

In August 1976, Agent Pompeo recommended that disposition of the remission

petition be withheld until the currency was no longer needed as evidence at the
criminal trial. On December 24, 1976, Vasquez was convicted on the felony
count but acquitted on the misdemeanor charge of willfully failing to file a
currency report.6 Four days after the criminal trial was completed, Vasquez's
attorney again inquired whether there would be any further delay in acting on
the petition.

11

On March 10, 1977, the Customs Service informed Vasquez that the claim of
forfeiture had been referred to the U.S. Attorney. Within two weeks, a
complaint seeking forfeiture under 31 U.S.C. 1102 was filed in federal
District Court.7 In answer to the complaint, Vasquez admitted the factual
allegations but asserted as one of several affirmative defenses that the
Government's "dilatory processing" of her petition for remission or mitigation
and "dilatory" commencement of the civil forfeiture action violated her right to
due process. The District Court, after a two-day bench trial held in January
1978, determined that the time which had elapsed was reasonable under the
circumstances and therefore declared the currency forfeited under 31 U.S.C.
1102.

12

A divided panel of the Court of Appeals for the Ninth Circuit reversed.
Proceeding from the premise that the Government must bring forfeiture actions
promptly because seizures infringe upon property rights, the Court of Appeals
concluded that the Government's 18-month delay in filing its forfeiture action
was unjustified. The Court of Appeals specifically held that pending
administrative or criminal investigations cannot justify the delay when the
necessary elements for a forfeiture were established at the time of the seizure
and when the claimant seeks a speedy resolution of the claim. The Court of
Appeals likewise rejected the Government's argument that the claimant should
be required to show that the delay prejudiced her ability to present a defense to
the forfeiture action. As a remedy for the due process violation, the Court of
Appeals ordered dismissal of the Government's forfeiture action.8

13

Since other Circuits have determined that pending criminal 9 or administrative10

investigations and prejudice to the claimant11 are relevant considerations in
determining whether a delay in instituting forfeiture proceedings violates due
process, we granted certiorari to resolve the conflict. 455 U.S. 1015 (1982). We
reverse.

II
14

The due process issue presented here is a narrow one. Vasquez concedes that

14

the Government could constitutionally seize her property without a prior

hearing.12 Nor does Vasquez challenge the sufficiency of the judicial hearing
that was eventually held. She argues only that the Government's delay in filing
a civil forfeiture proceeding violated her due process right to a hearing " 'at a
meaningful time,' " Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32
L.Ed.2d 556, quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187,
1191, 14 L.Ed.2d 62 (1965). Unlike the situation where due process requires a
prior hearing, there is no obvious bright line dictating when a post-seizure
hearing must occur. Because our prior cases in this area have wrestled with
whether due process requires a pre-seizure hearing, we have not previously
determined when a post-seizure delay may become so prolonged that the
dispossessed property owner has been deprived of a meaningful hearing at a
meaningful time.13

15

The Government argues there is no general due process requirement of prompt

post-seizure filing of a judicial forfeiture action. Rather, the Government urges
that the standard for assessing the timeliness of the suit be the same as that
employed for due process challenges to delay in instituting criminal
prosecutions. As articulated in United States v. Lovasco, 431 U.S. 783, 97 S.Ct.
2044, 52 L.Ed.2d 752 (1977), such claims can prevail only upon a showing that
the Government delayed seeking an indictment in a deliberate attempt to gain
an unfair tactical advantage over the defendant or in reckless disregard of its
probable prejudicial impact upon the defendant's ability to defend against the
charges. The Government argues that in the absence of unfair conduct of this
sort, the timeliness of the suit is controlled only by the applicable statute of
limitations. Here, Congress has required the Government to institute forfeiture
proceedings within five years. 19 U.S.C. 1621.

16

We reject the Government's suggestion that Lovasco provides the appropriate

test for determining whether the delay violates the due process command.
Lovasco recognized that the interests of the suspect and society are better
served if, absent bad faith or extreme prejudice to the defendant, the prosecutor
is allowed sufficient time to weigh and sift evidence to ensure an indictment is
well-founded. While the value of allowing the Government time to pursue its
investigation applies to the civil forfeiture situation as well as the criminal
proceeding, a major distinction exists. A suspect who has not been indicted
retains his liberty; a claimant whose property has been seized, however, has
been entirely deprived of the use of the property.

17

A more apt analogy is to a defendant's right to a speedy trial once an indictment

or other formal process has issued. In that situation, the defendant no longer
retains his complete liberty. Even if he is allowed to post bail, his liberty is

subject to the conditions required by his bail agreement. In Barker v. Wingo,

407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we developed a test to
determine when Government delay has abridged the right to a speedy trial. The
Barker test involves a weighing of four factors: length of delay, the reason for
the delay, the defendant's assertion of his right, and prejudice to the defendant.
Id., at 530, 92 S.Ct., at 2192.
18

Of course, Barker dealt with the Sixth Amendment right to a speedy trial rather
than the Fifth Amendment right against deprivation of property without due
process of law. Nevertheless, the Fifth Amendment claim herewhich
challenges only the length of time between the seizure and the initiation of the
forfeiture trialmirrors the concern of undue delay encompassed in the right to
a speedy trial. The Barker balancing inquiry provides an appropriate framework
for determining whether the delay here violated the due process right to be
heard at a meaningful time. We have often repeated the seminal statement from
Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484
(1972), that "due process is flexible and calls for such procedural protections as
the particular situation demands." E.g., Schweiker v. McClure, 456 U.S. 188,
200, 102 S.Ct. 1665, 1672, 72 L.Ed.2d 1 (1982); Memphis Light, Gas & Water
Division v. Craft, 436 U.S. 1, 14, n. 15, 98 S.Ct. 1554, 1563, n. 15, 56 L.Ed.2d
30 (1978). The flexible approach of Barker, which "necessarily compels courts
to approach speedy trial cases on an ad hoc basis," 407 U.S., at 530, 92 S.Ct., at
2192, is thus an appropriate inquiry for determining whether the flexible
requirements of due process have been met. As we stressed in Barker, none of
these factors is a necessary or sufficient condition for finding unreasonable
delay. Rather, these elements are guides in balancing the interests of the
claimant and the Government to assess whether the basic due process
requirement of fairness has been satisfied in a particular case.14

III
19

In applying the Barker balancing test to this situation, the overarching factor is
the length of the delay. As we said in Barker, the length of the delay "is to
some extent a triggering mechanism." Little can be said on when a delay
becomes presumptively improper, for the determination necessarily depends on
the facts of the particular case. Our inquiry is the constitutional one of due
process; we are not establishing a statute of limitations. Obviously, short delays
of perhaps a month or soneed less justification than longer delays. We
regard the delay heresome 18 monthsas quite significant. Being deprived
of this substantial sum of money for a year and a half is undoubtedly a
significant burden.

20

Closely related to the length of the delay is the reason the Government assigns
to justify the delay. Id., at 531, 92 S.Ct., at 2192. The Government must be
allowed some time to decide whether to institute forfeiture proceedings. The
Customs official's decision to seize property is of necessity a hasty one. Both
the Government and the claimant have an interest in a rule that allows the
Government some time to investigate the situation in order to determine
whether the facts entitle the Government to forfeiture so that, if not, the
Government may return the money without formal proceedings. Cf. Lovasco,
supra, 431 U.S., at 791, 97 S.Ct., at 2049. Normally, investigating officials can
make such a determination fairly quickly, so that this reason alone could only
rarely justify a lengthy delay.

21

An important justification for delaying the initiation of forfeiture proceedings is

to see whether the Secretary's decision on the petition for remission will obviate
the need for judicial proceedings. This delay can favor both the claimant and
the Government. Cf. Barker, supra, 407 U.S., at 521, 92 S.Ct., at 2187;
Lovasco, supra, 431 U.S., at 794-795, 97 S.Ct., at 2051. In many cases, the
Government's entitlement to the property is clear, and the claimant's only
prospect for reacquiring the property is that the Secretary will favorably
exercise his discretion and allow remission or mitigation. If the Government
were forced to initiate judicial proceedings without regard to administrative
proceedings, the claimant would lose this benefit. Further, administrative
proceedings are less formal and expensive than judicial forfeiture proceedings.
Given the great percentage of successful petitions, allowing the Government to
wait for action on administrative petitions eliminates unnecessary and
burdensome court proceedings. Finally, a system whereby the judicial
proceeding occurs after administrative action spares litigants and the
Government from the burden of simultaneously participating in two forums.15

22

The Government takes the extreme position, however, that a pending

administrative petition should completely toll the requirement of filing a
judicial proceeding. Nothing in the statutory scheme or in our cases supports
this argument. A claimant need not waive his right to a prompt judicial hearing
simply because he seeks the additional remedy of an administrative petition for
mitigation.16 Unreasonable delay in processing the administrative petition
cannot justify prolonged seizure of his property without a judicial hearing.
Rather, the pendency of an administrative petition is simply a weighty factor in
the flexible balancing inquiry.

23

Pending criminal proceedings present similar justifications for delay in

instituting civil forfeiture proceedings. A prior or contemporaneous civil

proceeding could substantially hamper the criminal proceeding, whichas here

may often include forfeiture as part of the sentence. A prior civil suit might
serve to estop later criminal proceedings and may provide improper
opportunities for the claimant to discover the details of a contemplated or
pending criminal prosecution. Compare Fed.R.Civ.P. 26(b) with Fed.R.Crim.P.
16. In some circumstances, a civil forfeiture proceeding would prejudice the
claimant's ability to raise an inconsistent defense in a contemporaneous criminal
proceeding. See, e.g., United States v. U.S. Currency, 626 F.2d 11 (CA6 1980).
Again, however, the pendency of criminal proceedings is only an element to be
considered in determining whether delay is unreasonable. Although federal
criminal proceedings are generally fairly rapid since the advent of the Speedy
Trial Act of 1974, 18 U.S.C. 3161 et seq., the pendency of a trial does not
automatically toll the time for instituting a forfeiture proceeding.
24

In this case the Government relies on both a pending petition for mitigation or
remission and a pending criminal proceeding to justify the delay in filing civil
forfeiture proceedings. During the initial seven months after the seizure the
Customs Service was determining whether to grant the petition. This
investigation required responses to inquiries to state, federal and Canadian law
enforcement officers. Such an investigation inherently is time-consuming, and
there is no indication that it was not pursued with diligence. The Customs
Service then referred the matter to the United States Attorney, who obtained
criminal indictments within two months. Importantly, one count of the
indictment sought forfeiture as part of the sentence. If the Government had
prevailed, a civil forfeiture would have been rendered unnecessary. There is no
evidence in the record that the Government was responsible for the slow pace
of the criminal proceedings, which reached a verdict five months later. After
the criminal trial ended, the Secretary of the Treasury made a final decision
within three months to deny the petition, and the United States Attorney
promptly filed a civil forfeiture proceeding.

25

We are impressed by the assessment made by the District Court that the
Government had acted with all due speed. Indeed, in an oral colloquy during
trial the District Court commented:

26

"I have been anxious to see in this case whether there has been a lot of dilitory
[sic] conduct that the government has really not done what it should do in order
to push this thing with all reasonable speed, and, frankly, I don't see any point in
which the government has been lax.

27

"If I had found such, and I found it an unreasonable length of time, I would have
been happy to so hold. . . .

28

"But, in view of the evidence here, I just cannot see any way in which this
Court can say that the government has not pursued their claim in all reasonable
diligence." App. 77.

29

In sum, the Government's diligent pursuit of pending administrative and

criminal proceedings indicate strongly that the reasons for its delay in filing a
civil forfeiture proceeding were substantial.

30

The third element to be considered in the due process balance is the claimant's
assertion of the right to a judicial hearing. A claimant is able to trigger rapid
filing of a forfeiture action if he desires it. First, the claimant can file an
equitable action seeking an order compelling the filing of the forfeiture action
or return of the seized property. See Slocum v. Mayberry, 15 U.S. (2 Wheat.) 1,
10, 4 L.Ed. 169 (1817) (MARSHALL, C.J.). Less formally, the claimant could
simply request that the Customs Service refer the matter to the United States
Attorney. If the claimant believes the initial seizure was improper, he could file
a motion under Fed.R.Crim.P. 41(e) for a return of the seized property. Vasquez
did none of these things and only occasionally inquired about the result of the
petition for remission and asked that the Secretary reach a decision promptly.
The failure to use these remedies can be taken as some indication that Vasquez
did not desire an early judicial hearing.

31

The final element is whether the claimant has been prejudiced by the delay.
The primary inquiry here is whether the delay has hampered the claimant in
presenting a defense on the merits, through, for example, the loss of witnesses
or other important evidence. Such prejudice could be a weighty factor
indicating that the delay was unreasonable. Here, Vasquez has never alleged or
shown that the delay affected her ability to defend the propriety of the
forfeiture on the merits. On the contrary, Vasquez conceded that the elements
necessary for a forfeiture under 1102(a) were present in her case.

IV
32

In this case, the balance of factors indicates that the Government's delay in
instituting civil forfeiture proceedings was reasonable. Although the 18-month
delay was a substantial period of time, it was justified by the Government's
diligent efforts in processing the petition for mitigation or remission and in
pursuing related criminal proceedings. Vasquez never indicated that she desired
early commencement of a civil forfeiture proceeding, and she has not asserted
or shown that the delay prejudiced her ability to defend against the forfeiture.
Therefore, the claimant was not denied due process of law. The judgment of the
Court of Appeals is reversed, and the case remanded for further proceedings

consistent with this opinion.

33

So ordered.

34

Justice STEVENS, dissenting.

35

The Fifth Amendment provides that no person shall be deprived of property

without due process of law. In this case the respondent was deprived of her
property on September 10, 1975.* No pre-seizure process of any kind was
provided. The post-seizure proceeding that, under the Court's view, satisfies the
constitutional requirement was commenced on March 22, 1977, over 18 months
later.

36

None of the various activities that various government bureaucrats undertook

before filing the civil forfeiture proceeding was required by the Constitution or
by any statute. None of those activities made it impossible, or even arduous, for
the Government to act promptly to establish its right to hold respondent's
currency. In my opinion a rule that allows the Government to dispossess a
citizen of her property for more than 18 months without her consent and
without a hearing is a flagrant violation of the Fifth Amendment.

37

I respectfully dissent.

In addition to the general remission provisions of Title IV, Title II of the Bank
Secrecy Act contains its own remission provision, 31 U.S.C. 1104: "The
Secretary may in his discretion remit any forfeiture or penalty under this
subchapter in whole or in part upon such terms and conditions as he deems
reasonable and just."

At the time of the seizure in this case, a Customs officer could institute nonjudicial, summary forfeiture proceedings if the value of the seized merchandise
was not more than $2,500. See 19 U.S.C. 1607-1609 (1976). Congress has
since raised this limit to $10,000. 19 U.S.C. 1607 (1976 ed., Supp. V). Even
for a seizure of property appraised at less than $10,000, the claimant has a right
to a judicial determination upon posting a $250 bond to cover costs. 19 U.S.C.
1608 (1976 ed., Supp. V).

At the time of the seizure of the currency from Vasquez, 19 U.S.C. 1603
contained no requirement of a prompt report of a seizure by the Customs
Service to the United States Attorney for purposes of instituting forfeiture

proceedings. As amended in 1978, 1603 now requires the appropriate

Customs officer "to report promptly" to the United States Attorney whenever
legal proceedings "in connection with such seizure or discovery are required."
19 U.S.C. 1603 (1976 ed., Supp. V).
4

On September 9, 1975, the day after the seizure, Vasquez's counsel had written
an informal letter to the District Director of Customs, explaining why she had
not declared the money.

This inquiry was relevant to the reporting violation. A currency reporting

violation is normally a misdemeanor, but a reporting violation committed in
furtherance of any other federal offense is a felony. Compare 31 U.S.C. 1058
with 31 U.S.C. 1059.

The conviction on the felony count was subsequently reversed because court
files were left in the jury room during deliberations. United States v. Vasquez,
597 F.2d 192 (CA9 1979).

On March 28, 1977, the Customs Service officially notified Vasquez that her
petition had been denied.

Because we find no violation of due process, we do not decide whether

dismissal of the forfeiture action with prejudice would be an appropriate
remedy for undue delay.

E.g., White v. Acree, 594 F.2d 1385 (CA10 1979).

10

E.g., United States v. Thirty-Six Thousand One Hundred & Twenty-Five

Dollars in U.S. Currency, 642 F.2d 1211 (CA5), cert denied, 454 U.S. 835, 102
S.Ct. 136, 70 L.Ed.2d 114 (1981) (aff'g 510 F.Supp. 303 (ED La 1980)).

11

E.g., United States v. Various Pieces of Semiconductor Manufacturing

Equipment, 649 F.2d 606 (CA8 1981); United States v. One 1976 Mercedes
450 SLC, 667 F.2d 1171 (CA5 Unit B 1982).

12

The general rule, of course, is that absent an "extraordinary situation" a party

cannot invoke the power of the state to seize a person's property without a prior
judicial determination that the seizure is justified. Boddie v. Connecticut, 401
U.S. 371, 378-379, 91 S.Ct. 780, 786-787, 28 L.Ed.2d 113 (1971). See also
North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42
L.Ed.2d 751 (1975); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d
556; Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23
L.Ed.2d 349 (1969); cf. Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct.
1895, 40 L.Ed.2d 406 (1974). But we have previously held that such an

extraordinary situation exists when the Government seizes items subject to

forfeiture. In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94
S.Ct. 2080, 40 L.Ed.2d 452 (1974), the Court upheld a Puerto Rico statute
modelled after a federal forfeiture statute, 21 U.S.C. 881(a), which allowed
Puerto Rican authorities to seize, without prior notice or hearing, a yacht
suspected of importing marijuana. Pearson Yacht clearly indicates that due
process does not require federal Customs officials to conduct a hearing before
seizing items subject to forfeiture. Such a requirement would make Customs
processing entirely unworkable. The Government interests found decisive in
Pearson Yacht are equally present in this situation: the seizure serves important
governmental purposes; a pre-seizure notice might frustrate the statutory
purpose; and the seizure was made by government officials rather than selfmotivated private parties.
13

In United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S.Ct.

1400, 28 L.Ed.2d 822 (1971), we construed a statute allowing Customs
officials to seize obscene material as requiring a post-seizure filing within 14
days and completion of the hearing in an additional 60 days. That case
interpreted the statute so as to avoid possible First Amendment problems of
prior restraint. The case did not involve, and thus we had no occasion to
address, the time restraints imposed by the Due Process Clause. Even if we
were inclined to interpret the statutes here in such a way as to avoid any due
process question, it would be impossible to read into the statutory scheme, as
we did in Thirty-Seven Photographs, a short statute of limitations, since 19
U.S.C. 1621 expressly allows the Government to bring a civil forfeiture
proceeding within five years.

14

The deprivation in Barker loss of libertymay well be more grievous than

the deprivation of one's use of property at issue here. Thus, the balance of the
interests, which depends so heavily on the context of the particular situation,
may differ from a situation involving the right to a speedy trial.

15

By regulation, the Secretary is not allowed to process any petition for remission
or mitigation while a civil forfeiture proceeding is pending. 19 CFR 171.2(a)
(1980).

16

Under the 1978 revisions to 19 CFR 162.31(a), the Customs Service is now
required to warn claimants that unless they agree to defer judicial forfeiture
proceedings until completion of the administrative process, the case will be
referred promptly to the United States Attorney for institution of judicial
proceedings, or summary forfeiture proceedings will be begun.

The property was not contraband; it was seized simply because respondent

made a misstatement to a Customs officer.