Serrano v. CBP
Serrano v. CBP
Serrano v. CBP
In The
Of Counsel:
Nathan C. Pysno
National Association of Criminal
Defense Lawyers
1660 L Street NW, 12th Floor
Washington, DC 20036
(202) 872-8600
Shana-Tara O’Toole
DUE PROCESS INSTITUTE
700 Pennsylvania Avenue SE #560
Washington, DC 20003
202-558-6683
Shana@iDueProcess.org
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certifies that the following listed persons and entities, in addition to those
this case. These representations are made in order that the judges of this
Amicus Curiae
National Association of Criminal Defense Lawyers
Cato Institute
Due Process Institute
Process Institute are not publicly held corporations, do not have any
Cynthia Orr
Counsel for Amicus Curiae
National Association of Criminal
Defense Lawyers
Shana-Tara O’Toole
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Table of Contents
TABLE OF AUTHORITIES .................................................................. iv
INTEREST OF AMICUS CURIAE ........................................................ 1
INTRODUCTION AND SUMMARY OF ARGUMENT ...................... 2
ARGUMENT ............................................................................................ 4
I. Unfair and Abusive Uses of Asset Forfeiture by Government
Agencies Underscore the Importance of Due Process Protections in
This Case................................................................................................ 4
II. Due Process Requires A Prompt Post-Deprivation Hearing When
The Government Seeks Forfeiture Of A Vehicle. ................................ 10
A. Relevant Supreme Court And Federal Court Precedent
Generally Require A Pre-Deprivation Hearing, But Still Require A
Post-Seizure Hearing For Seizure Of Vehicles. ............................... 10
B. The Factors In Mathews v. Eldridge Weigh Strongly In Favor
Of A Prompt Post-Seizure Hearing.................................................. 13
CONCLUSION ....................................................................................... 21
CERTIFICATE OF SERVICE ............................................................. 24
CERTIFICATE OF COMPLIANCE.................................................... 25
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TABLE OF AUTHORITIES
Cases
Alvarez v. Smith, 558 U.S. 87 (2009) ...................................................... 12
Brown v. District of Columbia, 115 F. Supp. 3d 56 (D.D.C. 2015) .... 5, 12,
20
City of Los Angeles v. David, 538 U.S. 715 (2003). ................................ 20
Coleman v. Watt, 40 F.3d 255 (8th Cir. 1994) ........................................ 14
Commonwealth v. 1997 Chevrolet & Contents Seized from Young, 160
A.3d 153 (Pa. 2017) .............................................................................. 14
Connecticut v. Doehr, 501 U.S. 1 (1991) ................................................. 10
Fuentes v. Shevin, 407 U.S. 67 (1972)......................................... 10, 11, 15
Goss v. Lopez, 419 U.S. 565 (1975).......................................................... 10
Grannis v. Ordean, 234 U.S. 385(1914) .................................................. 10
Harmelin v. Michigan, 501 U.S. 957 (1991) ........................................... 16
J.W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505 (1921) ..... 9
Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002) ............................... passim
Leonard v. Texas, 137 S. Ct. 847 (2017)................................................ 4, 9
Mathews v. Eldridge, 424 U.S. 319 (1976)...................................... passim
Neapolitan Navigation, Ltd. v. Tracor Marine Inc., 777 F.2d 1427 (11th
Cir. 1985).............................................................................................. 12
Nielsen v. 2003 Honda Accord, 845 N.W.2d 754 (Minn. 2013) .............. 16
Smith v. City of Chicago, 524 F.3d 834 (7th Cir. 2008) .......................... 12
Sniadidach v. Family Fin. Corp., 395 U.S. 337 (1969) .................... 11, 15
Stypmann v. City & County of San Francisco, 557 F.2d 1338 (9th Cir.
1977) ..................................................................................................... 14
Taylor v. Books a Million, Inc., 296 F.3d 376 (5th Cir. 2002) .................. 3
United States v. $506,231 in U.S. Currency, 125 F.3d 442 (7th Cir. 1997)
................................................................................................................ 8
United States v. 6109 Grubb Rd., 886 F.2d 618 (3d Cir. 1989) ................ 5
United States v. All Assets of Statewide Auto Parts, 971 F.2d 896 (2d
Cir. 1992)................................................................................................ 8
United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993)
...................................................................................................... passim
United States v. One 1971 BMW 4-Door Sedan, 652 F.2d 817 (9th Cir.
1981). .................................................................................................... 18
United States v. Von Neumann, 474 U.S. 242 (1986) ............................. 11
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Constitutional Provisions
U.S. Const. amend. V ..........................................................................................10
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of criminal defense attorneys to ensure justice and due process for those
NACDL files its brief in this case because asset forfeiture is one of the
1 No party or party’s counsel authored this brief in whole or in part, and no party or
party’s counsel contributed money that was intended to fund preparing or submitting
this brief. No person—other than the amicus curiae—contributed money that was
intended to fund preparing or submitting this brief. Pursuant to Federal Rule of
Appellate Procedure 29(a), counsel for amicus states that counsel for all parties
consented to the filing of this brief.
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Project on Criminal Justice was founded in 1999, and focuses on the scope
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Mexico to meet with his cousin about the cousin’s solar panel business.2
ROA.11, 13. Mr. Serrano is a legal gun owner and CPB found five .380
caliber bullets and a .380 caliber magazine that he had inadvertently left
leave the area on foot and was not charged with a crime.
among other things, violated his Fifth Amendment due process right to a
disagrees with the District Court’s dismissal. NACDL argues that this
NACDL also notes that frequent abuses of asset forfeiture laws by both
2Because this appeal comes from a motion to dismiss, the court must accept as true
the well-pled factual allegations in the complaint. E.g., Taylor v. Books a Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002).
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strong due process protections for persons whose property is seized using
ARGUMENT
dubious. Leonard v. Texas, 137 S. Ct. 847 (2017) (Thomas, J., statement
McDonald, Policing for Profit: The Abuse of Civil Asset Forfeiture 10 (2d
ed. Nov. 2015) (Department of Justice Assets Forfeiture Fund took in $4.5
3
See also Forfeiture Reform, Nat’l Ass’n of Crim. Defense Lawyers,
https://www.nacdl.org/forfeiture/ (stating that asset forfeiture “tears at the heart of
justice and fairness in our system and turns the fundamental principle that a person
is innocent until proven guilty on its head” and that it “represents one of the most
fundamental threats to the individual liberties of those accused of criminal activities
as well as citizens not charged with any crime”).
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with limited judicial oversight and retain it for their own use—has led to
egregious and well-chronicled abuses.” Id.; see also United States v. 6109
Grubb Rd., 886 F.2d 618, 624 (3d Cir. 1989) (“Civil forfeitures could
cash. Last Week Tonight with John Oliver: Civil Forfeiture (HBO
seized $22,000 under the “theory” that “common people do not carry this
much currency.” Id. Despite Reby’s protests and offers to show his bid
on the vehicle, and despite Reby never being charged with any crime in
conjunction with this stop, the officer confiscated Reby’s cash. Id.
4 Available at https://ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-
edition.pdf
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when a friend offered him an entry-level sales rep job there. Robert
O’Harrow Jr., Michael Sallah & Stephen Rich, They Fought the Law.
Who Won?, Wash. Post., Sept. 8, 2014.5 His father loaned him $2,500 in
cash. Id. While passing through the Nevada desert, Lee was stopped by
police, who confiscated nearly all of his cash on the “theory” that Lee was
to mail money to a friend in need. Nathaniel Cary, Anna Lee & Mike
Ellis, How Civil Forfeiture Errors, Delays Enrich SC Police, Hurt People,
depth/news/taken/2019/01/29/civil-forfeiture-south-carolina-errors-
delays-property-seizures-exclusive-investigation/2460107002/. Police
seized $6,000 in money orders even though Hamer was not charged with
any crime. Id. Hamer could prove that the money was his and it was
eventually returned, but he had to pay $1,200 for legal help. Id.
5
https://www.washingtonpost.com/sf/investigative/2014/09/08/they-fought-the-law-
who-won/?utm_term=.38852b4f8954.
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about the Government’s use of asset forfeiture and the negative impacts
them with a crime.” Federal Asset Forfeiture: Uses and Reforms: Hearing
Daniel Good Real Prop., 510 U.S. 43, 81 (1993) (Thomas, J., concurring
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offense.”); United States v. $506,231 in U.S. Currency, 125 F.3d 442, 454
(7th Cir. 1997) (stating that “the government’s conduct in forfeiture cases
leaves much to be desired” and noting that “[w]e are certainly not the
statutes); United States v. All Assets of Statewide Auto Parts, 971 F.2d
896, 905 (2d Cir. 1992) (“We continue to be enormously troubled by the
forfeiture statutes and the disregard for due process that is buried in
those statutes.”).
and its resulting abuses were as widespread as they are today, he wrote
that people unaware of the “history of forfeiture laws and 200 years of
454 (1996) (Thomas, J., concurring). He criticized the practice that allows
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Leonard, 137 S. Ct. at 847 (Thomas, J., dissenting). This allows forfeiture
concurring).
Justice Thomas’s concerns are not new. Nearly a century ago, the
violate that justice which should be the foundation of the due process of
United States, 254 U.S. 505, 510 (1921). Nevertheless, the Court upheld
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James Daniel Good Real Prop., 510 U.S. 43, 48-49 (1993); see also Goss v.
Lopez, 419 U.S. 565, 579 (1975) (stating that, “at the very minimum” due
385, 394 (1914) (“The fundamental requisite of due process of law is the
407 U.S. 67, 84-85 (1972); see Connecticut v. Doehr, 501 U.S. 1, 15 (1991)
The Supreme Court has been clear that Due Process requires a
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timing of that hearing may vary depending on the type of property seized.
for most types of property. See James Daniel Good Real Prop., 510 U.S.
Sniadidach v. Family Fin. Corp., 395 U.S. 337, 338-41 (1969) (finding
United States v. Von Neumann, 474 U.S. 242, 251 (1986). In these limited
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The courts that have considered this issue have agreed and found
by the government. See Krimstock v. Kelly, 306 F.3d 40, 48 (2d Cir. 2002)
Chicago, 524 F.3d 834, 836 (7th Cir. 2008) (“A post-seizure hearing is,
558 U.S. 87 (2009) (finding case was moot because the government
decision and the hearing of the case before the Supreme Court); Brown v.
enacted while appeal was pending, 916 F.3d 676, 679 (7th Cir. 2019); see
also Neapolitan Navigation, Ltd. v. Tracor Marine Inc., 777 F.2d 1427,
1430 (11th Cir. 1985) (“Although the usual due process requirements of
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the in rem arrest has taken place, and the vessel’s presence is assured.”).
The Supreme Court and lower courts have used the three-factor test
Krimstock, 306 F.3d at 60 (citing Mathews v. Eldridge, 424 U.S. 319, 335
(1976); James Daniel Good Real Prop., 510 U.S. at 53)). The factors are:
(1) the private interest that will be affected by the official action; (2) the
function involved and the fiscal and administrative burdens that the
The District Court used the correct standard, the Mathews test, to
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in the context of this case confirms the conclusions that other courts have
by Due Process.
With respect to the first factor, the private interest affected, courts
crucial to their lives and livelihoods. See Krimstock, 306 F.3d at 61 (the
Stypmann v. City & County of San Francisco, 557 F.2d 1338, 1342-43 (9th
Young, 160 A.3d 153, 177 (Pa. 2017) (stating that “in our society” a
vehicle is “often essential to one’s life and livelihood”). The District Court
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automobile for nearly two years without ever being charged with any
not cure the temporary deprivation that an earlier hearing might have
prevented.” James Daniel Good Real Prop., 510 U.S. at 56. Even a
85 (citing Sniadidach v. Family Fin. Corp., 395 U.S. 337, 338-41 (1969)
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position have likewise not been charged with crimes but have been
protections.
Prop., at 55-56; see Harmelin v. Michigan, 501 U.S. 957, 979 n.9 (1991)
the State stands to benefit.”); Nielsen v. 2003 Honda Accord, 845 N.W.2d
the receipt account for asset forfeitures for several federal government
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Forfeiture Fund, 2017 Report. The majority of the Fund’s revenue is used
GAO report, one of the three primary goals of the U.S. Department of
Justice’s Assets Forfeiture Fund, another major forfeiture fund and the
www.gao.gov/assets/600/592349.pdf.
1986, the year after the Assets Forfeiture Fund was created, it took in
$93.7 million in proceeds from forfeited assets. Id. at 11. By 2008, the
forfeiture proceeds free and clear of debt obligations and now available
for use by law enforcement. From fiscal years 2000 to 2012, the fund’s
net assets grew from $536.5 million to $ 1.6 billion.7 The Treasury
Forfeiture Fund, which CBP participates in, is smaller but has seen
that this factor favored the Government, the District Court cited United
States v. One 1971 BMW 4-Door Sedan, which noted the “substantial
burdens.” 652 F.2d 817, 821 (9th Cir. 1981). The relevance of this case,
however, is minimal. Mr. Serrano was a legal gun owner with a handful
7Compare U.S. Dep’t of Justice, Assets Forfeiture Fund and Seized Asset Deposit
Fund, Ann. Fin. Statements FY 2000,
http://www.justice.gov/jmd/afp/01programaudit/auditreport92002.htm, with Ann.
Fin. Statements FY 2012, http://www.justice.gov/oig/reports/2013/a1307.pdf.
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illicit activity and was not charged with any crime. Ultimately, we ask
abscond) (citing James Daniel Good Real Prop., 510 U.S. at 56-57). A
The District Court also cites the potential burden on the agency,
owners with the option to petition for remission of the forfeiture, have
was just. ROA.486. Leaving aside the fact that Mr. Serrano timely
petitioned for remission of his property and then was ignored for nearly
two years, it is not clear how requiring a prompt hearing before a neutral
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allow for prompt post-seizure hearings,9 and there is no evidence that the
interests at issue.
The District Court also cites with approval City of Los Angeles v.
David, which held that a mere 27-day delay in holding a hearing for a
property owner whose car had already been returned was not
the government. 538 U.S. 715, 718 (2003). There, Plaintiff paid $134.50
to get his car back and petitioned for the return of the money, arguing
that the 27-day wait for a hearing violated Due Process. See id. at 716-
sum (in comparison with the value of the seized property) and was
reunited with his car immediately. Mr. Serrano, on the other hand, paid
8 See James Daniel Good Real Prop., 510 U.S. at 59 (noting that altering the timing
of a required hearing “creates no significant administrative burden”).
9 See, e.g., Krimstock, 306 F.3d at 44, Brown, 115 F. Supp. 3d at 60.
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a much larger bond—over three thousand dollars—but his car was still
because of a delay of less than one month. Mr. Serrano waited nearly
two years and, unlike David, did not enjoy possession of his property
is minimal.
required to protect the significant private interest at stake from the risk
CONCLUSION
This Court should hold that Due Process requires a prompt post-
deprivation hearing in this and similar cases. The need for these
10 ROA.11.
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Of Counsel:
Nathan C. Pysno
NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS
1660 L Street NW, 12th Floor
Washington, DC 20036
(202) 872-8600
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Shana-Tara O’Toole
DUE PROCESS INSTITUTE
700 Pennsylvania Avenue SE
#560
Washington, DC 20003
202-558-6683
Shana@iDueProcess.org
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