Opposition Brief — Atchley v. Smith

No. 95-370

In The

Supreme Court of the Hnited States

October Term, 1995

¢

MARGARET ATCHLEY,

Petitioner,

vs.

BILLY JACK SMITH and the

CITY OF POTEAU, OKLAHOMA,

Respondents.

¢

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

¢

Eric D. JANZEN (OBA #13826)

Counsel of Record

Cuaries D. NEAL, Jr. (OBA

#6591)

Of the Firm:

STEIDLEY & NEAL

P.O. Box 1165

McAlester, OK 74502

918/423-4611

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

RULE 29.1 STATEMENT

Respondent City of Poteau, Oklahoma is a municipal

corporation within the State of Oklahoma and has no

parent company nor any corporate subsidiaries. Respon-

dent Billy Jack Smith is an individual and exempt from

the Rule 29.1 requirement.

ii

TABLE OF CONTENTS

Page

PETITIONER’S PRESENTATION OF APPELLATE

QUESTIOIG, «ic os0scckite sacecdncstepetecmsrectens 1

RESPONDENTS’ STATEMENT OF THE CASE...... 1

Facts Relevant to Issues for Review.............. 1

Nature and Course of Proceedings............... 4

SUMMARY OF ARGUMENT.............----+eeee 6

ARGUMENT AND AUTHORITY.................4. 8

Rulings by Lower Courts are Consistent ......... 8

Haring v. Prosise not Dispositive ................. 10

Wilder v. Virginia Hosp. Ass’n not Contrary to Tenth

Ciscullt ... . 0.0305 cesey shames kee eeeeeeneee OunaeS 11

Petitioner’s Stop, Arrest and Search Constitutional.. 13

Respondents did not Seize or Forfeit Currency... 13

CONCLUGION . . ..2sccscsupanvkhdnesaserasan aaa 14

APPENDEN « .....35ssccnecekakadseeebeeeaseeeie App. 1

lil

TABLE OF AUTHORITIES

Page

I. Cases CrTeD

Haring v. Prosise, 462 U.S. 306, 103 S. Ct. 2368, 76

eS |S Be. ee 10, 11

Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 110 S.

ce soe sec L. Ba. 20 455 (1990) .... 0.0 scene 11, 12

II. STATUTES AND RULES

EE ee 5

i Ls vi adivne sk vedeceetenseeuaseseis 12

a iva cA ee Caddies st¥ i bie tote aes passim

PETITIONER’S PRESENTATION OF

APPELLATE QUESTION

Petitioner’s “Question Presented” in her Petition for

Writ of Certiorari is not an independently sufficient basis

upon which this Court should grant certiorari. The “Ques-

tion Presented” assumes facts not proven or offered by

Petitioner in the underlying litigation. Thus, whether the

“Question Presented” actually presents a question wor-

thy of a grant of certiorari has no bearing on whether the

case at bar should be reviewed by this Court. Here,

certiorari should be denied.

RESPONDENTS’ STATEMENT OF THE CASE

The Respondents, Officer Billy Jack Smith and the

City of Poteau, Oklahoma accept Petitioner’s Statement

of the Case with the following additions and corrections.

Facts Relevant to Issues for Review

Petitioner is a 62-year-old female who owns a bar

and resides in Poteau, Oklahoma. Respondent Billy Jack

Smith is the Police Department Sergeant for Respondent

City of Poteau, Oklahoma. Carla Belcher is a dispatcher

for the Poteau Police Department and has experience as a

jailer.

On October 28, 1991, at 2:00 a.m., Officer Smith

stopped Petitioner’s car at the intersection of Broadway

and Parker in Poteau, a point near both the police station

and Petitioner’s residence. Smith made the stop because,

ee

among other things, Petitioner was occupying two south- |

bound lanes of traffic on Broadway. Petitioner was

arrested for suspicion of driving under the influence of

intoxicants (“DUI”), transporting a loaded fitearm and

possession of a controlled, dangerous substance.

At the police station, Petitioner was administratively

handled by Officers Carla Belcher and W.R. Seale, Ii in

connection with her DUI arrest and was observed during

an alcohol deprivation period. The breathalyzer test

administered to Petitioner tested 0.16, which is in excess

of the maximum legal limit. Petitioner subsequently pled

guilty to a reduced charge of reckless driving and paid a |

fine. The citation for transporting a loaded firearm was

dismissed.

While Petitioner was being transported to the police

station for her breathalyzer test, Sergeant Smith sum-

moned a wrecker to tow away Petitioner’s car. Prior to

the arrival of the wrecker, Sergeant Smith conducted an

inventory of Petitioner’s car. The inventory revealed a

tremendous quantity and variety of property within Peti- |

tioner’s car. Among other things, currency and checks in

the amount of $52,175.54 were discovered in the hatch-

back area of Petitioner’s car during the inventory.

$49,829.45 of the money discovered in the hatchback was

in the form of U.S. currency. Petitioner’s Brief acknowl-

edges she was carrying pills wrapped in the cellophane

from a cigarette wrapper at the time of her arrest. (Pet.

Brf. at p. 10)

Sergeant Smith took the checks and currency to the

police station to be counted for the inventory. Two Poteau

Police Department employees assisted in counting. The

$52,175.54 in small bills and checks found in Petitioner's

hatchback were separated by paperclipped scraps of

paper with notations written upon the paper. Petitioner

was given a document reflecting the final inventory tally

of $52,175.54 at the completion of the inventory. All of the

inventoried money in the form of checks was subse-

quently returned to Petitioner.

Petitioner was taken to the LeFlore County Jail under

the DUI charge until she was sober. Some time later, Peti-

tioner posted bond and was released from jail.

The currency was delivered to Detective Tamplin’s

custody after the inventory. The money was stored in the

Poteau City Hall safe overnight. On the following day,

October 29, 1991, the money was taken to the Poteau

State Bank and deposited in the bank’s vault.

The Poteau Police Department was aware of several

law enforcement stops in the area where large amounts of

currency were determined to have been drug related.

Thus, on October 29, 1991, Oklahoma State Bureau of

Investigations Agent Bob Almon was contacted. In turn,

Agent Almon contacted the IRS and the DEA. Although

the IRS conducted an extensive investigation, it ulti-

mately declined to institute forfeiture proceedings.

Part of the DEA’s investigation was to request the

Poteau Police Department to use the Department's drug

detection dog to see if the dog would positively identify

the currency discovered in Petitioner’s car as being

tainted by narcotics. Indeed, the dog made a positive

reaction to the currency and the DEA seized the currency

on November 19, 1991. The DEA records indicate that it

seized the entire $49,829.45.

The DEA properly provided Petitioner with notice of

the seizure and forfeiture proceedings. The DEA trans-

mitted the Notice of Seizure to Petitioner on December

16, 1991. (Resp. App. at 1) Petitioner acknowledged her

receipt of the DEA Notice of Seizure on December 23,

1991. The DEA’s Notice of Seizure was also published in

the USA Today newspaper. At this point, Petitioner

declined her opportunity to contest the DEA’s forfeiture

in a United States District Court. Rather, she chose to

participate in the DEA’s administrative forfeiture pro-

ceeding through her attorney.

The sole issue in the forfeiture hearing conducted by

the DEA was the propriety of the DEA’s seizure of the

currency. The DEA entered its Declaration of Forfeiture

on January 31, 1992.

Nature and Course of Proceedings

The District Court’s disposition of this case followed

the Respondents’ Motions for Summary Judgment.

Respondent Billy Jack Smith filed a separate Motion for

Summary Judgment on November 15, 1993 requesting

dismissal on the basis of his qualified immunity from

suit. Petitioner’s response disputed only the reason for

her police stop on October 28, 1991, the location of her

breathalyzer test and when her car was inventoried rela-

tive to her breathalyzer test. Respondent offered no other

evidence to support her proffered “Uncontroverted

Facts.”

Respondents collectively filed a Motion for Summary

Judgment on December 15, 1993 which was granted by

the District Court’s February 1, 1994 Order. Respondents’

Motion requested judgment from the District Court find-

ing as a matter of law (1) the Respondents did not seize

the currency discovered in the Petitioner’s vehicle, (2) the

Respondents did not forfeit the currency discovered in

the Petitioner’s car to the United States, (3) the seizure

and forfeiture of the currency discovered in Petitioner’s

vehicle were beyond the control of the Respondents, and,

(4) the Petitioner’s claim is barred by collateral estoppel

and/or res judicata.

Petitioner’s Response Brief did not follow Fed. R.

Civ. P. 56. The Respondents’ statement of facts with sup-

porting documents, testimony and affidavits were not

controverted by Petitioner. Thus, Petitioner confessed the

Respondents’ statement of facts.

The District Court granted the Respondents’ Motions

on February 1, 1994. A review of the District Court's

Order dismissing the instant case finds the court held

that it was Petitioner’s “election to challenge administra-

tive forfeiture by petition for remission, rather than by

posting a bond prior to judicial challenge” that bound

Petitioner exclusively to the remedies available in the

administrative proceedings. (Pet. for Cert. at p. 14a) In

essence, the District Court held that a trial court could

have assumed jurisdiction of the case and heard Peti-

tioner’s complaints concerning the alleged violations of

her fourth and fifth amendment rights as a consequence

of the seizure of the money found in her car. However,

Petitioner’s election to forego the judicial forum bound

her to the remedies available within the administrative

forum.

The Tenth Circuit Court of Appeals affirmed the Dis-

trict Court on June 5, 1995. The Tenth Circuit concurred

with the District Court’s conclusion that Petitioner’s elec-

tion to opt against a judicial forum for the forfeiture

proceeding divested the District Court of jurisdiction to

hear the allegations of constitutional rights violations.

Thus, the corollary must also be true: the District Court

sitting as a forum for a judicial forfeiture would have

jurisdiction to conduct a plenary hearing of Petitioner’s

allegations attendant with the seizure and forfeiture of

the money inventoried from her car. Significantly, Circuit

Judge Henry’s concurring opinion specifically found the

Petitioner’s DUI stop, arrest and search to have been

“completely unremarkable - and constitutional.” (Pet.

Brf. at 9a)

SUMMARY OF ARGUMENT

The DEA investigated an incident where a large

quantity of small denomination currency was discovered

during an inventory of Petitioner’s car subsequent to her

lawful stop and arrest by the Respondents Sergeant Billy

Jack Smith and the City of Poteau, Oklahoma. The DEA

seized the currency and instituted forfeiture proceedings.

Petitioner chose to contest the forfeiture through an

administrative procedure by filing a Petition for Remis-

sion or Mitigation. Petitioner did not prevail and the

currency was forfeited to the DEA. Petitioner did not

appeal the forfeiture and it became final. Later, Petitioner

brought 42 U.S.C. § 1983 claims against the Respondents

alleging violations of her fourth and fifth amendment

claims rights.

The Respondents filed a Motion for Summary Judg-

ment noting that Petitioner had waived her right to bring

the § 1983 claims. The District Court dismissed Peti-

tioner’s claim and held that it was divested of jurisdiction

when Petitioner declined the opportunity to have her

claims removed to a district court for a plenary hearing

on the issues surrounding the forfeiture.

The Tenth Circuit Court of Appeals affirmed the Dis-

trict Court’s dismissal. The Court of Appeals agreed that

Petitioner had simply declined to exercise her right to

pursue her § 1983 claims by failing to remove the pro-

ceedings to a district court. Moreover, Circuit Judge

Henry specially noted that Petitioner’s failure to contest

the seizure in the proceeding designed expressly for that

purpose was a serious mistake. However, after reviewing

the record, Judge Henry also noted that Petitioner’s

§ 1983 claims beyond the seizure and forfeiture would

have arisen from a completely constitutional stop, arrest

and search.

Here, Petitioner is essentially attempting to undo her

previous waiver of her right to bring § 1983 claims

against these Respondents. Summary judgment was

proper where the law provided Petitioner with an oppor-

tunity to litigate her § 1983 claims in a district court.

Summary judgment was also proper where the facts

prove Petitioner had no viable § 1983 claim against these

Respondents. Therefore, the Court should refuse to grant

certiorari.

ARGUMENT AND AUTHORITY

Rulings by Lower Courts are Consistent

Petitioner argues that this case is complicated by a

purported disparity in the bases for the District Court

and circuit court’s dismissal of this matter. However, a

closer review of the District Court’s February 1, 1994

Order and the Tenth Circuit’s June 5, 1995 Order reveals

both Orders to be consistent in their application of the

law and facts of the case.

The District Court’s Order initially notes that Peti-

tioner had an opportunity for a plenary review before a

District Court of the forfeiture and her several claims.

However, in order to obtain the judicial forum, she was

required to file a $250.00 bond.!

Thus, it was Petitioner’s “election to challenge

administrative forfeiture by petition for remission, rather

than by posting a bond prior to judicial challenge” that

bound Petitioner exclusively to the remedies available in

the administrative proceedings. (Pet. for Cert. at p. 14a)

In essence, the Order recognized that a District Court

could have assumed jurisdiction of the case and heard

Petitioner’s allegations under 42 U.S.C. § 1983 concerning

the seizure of the money found in her car. However,

Petitioner’s election to forego the judicial forum bound

her to the remedies available within the administrative

forum.

1 The DEA’s Notice of Seizure provides for in forma pauperis

filing by indigent claimants and explains how to request a

waiver of the bond. (Resp. App. at 3)

Petitioner argues that the Court of Appeals’ dismissal

is “on an entirely different ground” than the District

Court. To this end, Petitioner claims that the Tenth Circuit

found the relief and remedies available in the forfeiture

action were inadequate. Petitioner’s statement is correct

only insofar as it applies to the relief and remedies avail-

able to Petitioner withinan administrative forfeiture pro-

ceeding. Here, however, Petitioner has taken the court’s

language out of context and applied it to a judicial forfei-

ture. Petitioner’s non-contextual assertion is simply not

supported by the Orders from which she claims to refer.

Quite to the contrary of Petitioner’s assertion, the

Court of Appeals’ June 5, 1995 Order held that Petitioner

had been given an opportunity to present the instant

claims in a judicial forum. (Pet. for Cert. at p. 7a) In fact,

the court specifically held that

“Indeed, had she elected to pursue the forfeiture

in District Court as she clearly had the right to

do, there would have been no jurisdictional dif-

ficulties at all regarding her § 1983 claim.”

(Id.) It was Petitioner’s election to opt against a judicial

forum for the forfeiture proceeding that foreclosed the

right to challenge the seizure or the underlying conduct

leading to the seizure in District Court. The Court of

Appeals very succinctly addressed the issue upon which

Petitioner seeks certiorari when it declared its concern “to

ensure that a plaintiff who alleges a violation of constitu-

tional rights is not denied a forum in which to do so.”

(emphasis added) (Pet. for Cert. at p. 6a)

Here, it is quite plain that Petitioner was not denied

the forum in which to bring her constitutional rights

10

allegations. Rather, Petitioner could have elected to chal-

lenge the underlying forfeiture in a judicial forum and

brought separate claims against the Respondents. It is

precisely this election that divested the District Court of

jurisdiction. Thus, the District Court and Tenth Circuit’s

Orders are in accord.

Haring v. Prosise not Dispositive

Petitioner next contends Haring v. Prosise, 462 U.S.

306, 103 S. Ct. 2368, 76 L. Ed. 2d 595 (1983) essentially

rejects the District Court and Court of Appeals’ decisions

in the case at bar. However, Petitioner explains neither

how Haring applies to the instant case nor how it is

dispositive of the instant issue.

Haring v. Prosise was a review by this Court of the

effect of a state criminal court defendant’s opportunity to

raise federal civil rights claims in a state criminal court

trial. The primary issue addressed by the Court was

whether a criminal defendant’s guilty plea had a preclu-

sive effect on a subsequent § 1983 claim arising out of the

underlying fourth amendment issues. The Haring case

turned on the opportunity the criminal defendant had

been given in the criminal proceeding to litigate his

§ 1983 claim.

In Haring, the only issue raised in the criminal indict-

ment was whether the defendant was guilty of the charge

filed against him. Further, “none of the issues in the

§ 1983 action could have been ‘necessarily’ determined in

the criminal proceeding.” Haring, 462 U.S. at 316. Further

still, a determination of the merits of the criminal defen-

dant’s § 1983 claim in the context of the guilty plea

11

proceeding “would have been entirely irrelevant.” Id.

Consequently, the Haring Court held that the criminal

defendant’s guilty plea had not afforded him with the

opportunity to litigate his § 1983 claim.

In the case at bar, Petitioner was given a full and fair

opportunity to litigate her claim in court. In fact, Peti-

tioner was informed at the time of the DEA seizure that

she had a right to have her claims brought in the forum of

a district court. (Resp. App. at 1) However, Petitioner's

own decision based upon the advice of counsel was to

elect to pursue her claims in an administrative forfeiture

proceeding.

Here, unlike in Haring, both the forfeiture proceed-

ings and underlying § 1983 claims are civil in nature.

Moreover, both the District Court and Tenth Circuit have

acknowledged that Petitioner’s § 1983 claims could have

received a plenary hearing before a district court if the

claims had been raised in a judicial forfeiture proceeding.

Therefore, Petitioner was provided a forum and oppor-

tunity to litigate her § 1983 claims — she simply chose not

to do so. The instant appeal is merely an attempt to undo

her previous, binding election.

Wilder v. Virginia Hosp. Ass’n not Contrary to Tenth

Circuit

The other decision upon which Petitioner relies in

her Petition is Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498,

110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990). Petitioner’s

reliance on Wilder is also misplaced.

In Wilder, the Virginia Hospital Association sought

declaratory and injunctive relief under 42 U.S.C. § 1983.

12

The petitioners in Wilder argued that the Hospital Asso-

ciation could not enforce a claim based upon the Boren

Amendment to the Medicaid Act under § 1983. The Court

noted that Congress must expressly preclude resort to

§ 1983 in order to abrogate a private reliance on § 1983 to

enforce federally secured rights. Wilder, 496 U.S. at 520.

Here, it is not necessary for an administrative forfei-

ture under 26 U.S.C. § 7325 to provide Petitioner with the

ability to assert her § 1983 claims. Rather, as the Tenth

Circuit noted in the June 5, 1995 Order, Petitioner was

given — and refused — an opportunity to bring her § 1983

in a plenary judicial forfeiture hearing. Thus, Wilder is

distinguishable because the instant Petitioner was not

precluded from asserting a § 1983 claim. To the contrary,

Petitioner consulted an attorney and then elected to chal-

lenge the administrative forfeiture by petition for remis-

sion or mitigation in lieu of raising her § 1983 claims.

Petitioner’s argument that Wilder v. Virginia Hosp.

Ass'n is contrary to the Tenth Circuit’s June 5, 1995 Order

is premised on her conclusion that the Order requires a

§ 1983 action against state entities to “be preceded by a

[26 U.S.C.] § 7325(3) suit.” (Pet. for Cert. at p. 7) Here, it

is not necessary for the Court to resolve Petitioner’s

stated issue because her stated issue is based upon a

flawed premise. A closer review of the Order finds it does

not hold that a § 1983 action against state entities must be

preceded by a § 7325(3) suit. However, the Court of

Appeals does note that Petitioner’s election to not contest

the seizure in the proceeding designed expressly for that

purpose was fatal to her attempt to subsequently raise

§ 1983 claims. (Pet. for Cert. at p. 9a)

13

Petitioner’s Stop, Arrest and Search Constitutional

Finally, Petitioner argues she is not now contesting

the forfeiture of the money forfeited to the DEA; instead,

she now frames her cause of action as a wrongful seizure

by the Respondents. The law and facts do not support

Petitioner’s position.

It is important to note that Petitioner’s initial stop,

the inventory of her impounded car, the DEA’s seizure of

the money discovered in the inventory and the DEA’s

subsequent forfeiture are all interrelated. Both the Dis-

trict Court and Tenth Circuit were provided with an

extensive record of the facts in this case. In fact, Circuit

Judge Henry’s concurring opinion specifically found the

Petitioner’s DUI stop, arrest and search to have been

“completely unremarkable — and constitutional.” (Pet. for

Cert. at p. 9a) Further, it was never controverted that the

DEA was the party who seized the money discovered in

Petitioner’s car. (Resp. App. at 1) Finally, Petitioner

admits in her Brief that she may not now re-litigate the

DEA’s forfeiture of the money. (Pet. for Cert. at p. 8)

Respondents did not Seize or Forfeit Currency

The final issue Petitioner has apparently deemed

worthy of a grant of certiorari is whether the Respondents

violated her fourth amendment rights by seizing the

money discovered in her car. Within this claim, Petitioner

claims that the length of the detention is independently

sufficient to state a § 1983 claim. However, Petitioner

never controverted the fact that both the IRS and DEA ©

14

conducted investigations into the currency before the sei-

zure occurred. Similarly, it must be recalled that Peti-

tioner never controverted the fact that the DEA was the

party who seized the money. (Resp. App. at 1)

Finally, it is significant to note that the “drug dog

sniff” issue raised by Petitioner is not actually an issue.

Here, it is uncontroverted that the Respondent City of

Poteau’s “drug dog” was only used at the request of the

DEA. Further, it is uncontroverted that the Respondents

took no action based upon the result of the dog’s positive

reaction to the currency. In sum, there is no evidence to

support Petitioner’s claim. Consequently, both the Dis-

trict Court and Tenth Circuit properly dismissed Peti-

tioner’s claims against the Respondents Billy Jack Smith

and the City of Poteau, Oklahoma.

.

CONCLUSION

Petitioner was given an opportunity to bring her 42

U.S.C. § 1983 claims against the Respondents Billy Jack

Smith and the City of Poteau, Oklahoma in a plenary

hearing before a district court in a judicial review of the

DEA forfeiture. Instead, Petitioner elected to file a Peti-

tion for Remission or Mitigation. Petitioner’s choice to

have her claims heard in an administrative forfeiture

divested the District Court of jurisdiction to consider

15

Petitioner’s § 1983 allegations. Here, the Court should

deny certiorari.

Respectfully submitted,

Eric D. JANZEN (OBA #13826)

Counsel of Record

CnHarces D. Neat, Jr. (OBA #6591)

Of the Firm:

STEIDLEY & NEAL

P.O. Box 1165

McAlester, OK 74502

918/423-4611

Attorneys for Respondents Billy Jack

Smith and the City of Poteau, Okla-

homa

App. 1

DEFENDANT'S

EXHIBIT “G”

[LOGO] U.S. Department of Justice

Drug Enforcement Administration

SEIZURE #: ILLEGIBLE CASE #: ILLEGIBLE

PROP: $49,829.45 U.S. CURRENCY

VALUE: $49829.45

SEIZURE DATE: 91 NOV 19

SEIZURE PLACE: POTEAU, OK

SID FROM: ATCHLEY, MARGARET K

OWNER:

JUDICIAL DIST: OKLAHOMA EASTERN

BOND REQUIRED: 34983

DATE OF THIS LETTER: 16 DEC 91

DATE OF FIRST PUBLICATION: 91 DEC 24

ATCHLEY, MARGARET M

109 DOWNEY

POTEAU

OK 74913

1088878

NOTICE OF SEIZURE

The above-described property was seized by Special

Agents of the Drug Enforcement Administration (DEA)

for forfeiture under Title 21, United States Code (U.S.C.),

Section 881, because it was used or acquired as a result of

a drug-related offense. (See Title 21, Code of Federal

Regulations (C.F.R.), Section 1316.91(d) (54 Federal Regis-

ter 37610-37611) for the definition of the term “drug-

related offense.”) The seizure date and place, as well as

other pertinent information regarding the property are

App. 2

also shown above. Pursuant to Title 19, U.S.C., Sections

1602-1619, and Title 21, C.F.R., Sections 1316.71-1316.81,

procedures to administratively forfeit this property are

under way. You may petition the DEA for the return of

the property or your interest in it (remission or mitiga-

tion), and/or you may contest the seizure and forfeiture

of the property in court. Also, under certain circum-

stances, you may petition for the expedited release of the

property. You should review the following procedures

very carefully.

TO REQUEST REMISSION OR MITIGATION

OF THE FORFEITURE

If you want to request the remission (pardon) or mitiga-

tion of the forfeiture, submit a petition for remission or

mitigation within thirty (30) days from your receipt of

this notice. Follow the regulations set forth in Title 28,

C.F.R., Sections 9.1-9.7. State the facts and circumstances

which you believe justify return of the property or return

of your interest in the property. File an original petition

and two copies with the DEA’s Asset Forfeiture Section.

No bond is necessary if only a petition is filed. Pursuant

to Title 28. C.F.R., Section 9.4(c), a petition for remission

or mitigation of forfeiture shall be signed and sworn to

by the petitioner.

TO CONTEST THE FORFEITURE

In addition to or in lieu of petitioning for remission or

mitigation, you may contest the forfeiture of the seized

property in UNITED STATES DISTRICT COURT. To do

so, you must file a claim of ownership and cost bond with

App. 3

the DEA. Submit the bond in the amount shown above in

the form of a cashier’s check or a certified check payable

to the U.S. Department of Justice, or present satisfactory

surety. Claims must be signed by the parties making the claim.

Unsupported submissions signed by attorneys are insuffi-

cient to satisfy the requirement the claims be personally

executed. United States v. Fifteen Thousand Five Hundred

Dollars, 558 F.2d 1359, 1360 (9th Cir. 1977).

If you see indigent (needy and poor) you may not have to

post the bond. To request a waiver of the bond, you must

fully disclose your finances in a signed statement called a

“Declaration in Support of Request to Proceed In Forma

Pauperis” along with a claim of ownership of the prop-

erty. Use the format of the pauperis declaration shown as

Form 4 in the Appendix of Forms following Rule 48 of the

Federal Rules of Appellate Procedure or obtain a form

from a DEA field office. The claim of ownership, with

either bond or the “Declaration in Support of Request to

Proceed In Forma Pauperis” must be filed within Twenty

(20) days of the first date of publication of the notice of

seizure in the edition of the USA Today newspaper refer-

enced above. The notice will be published three succes-

sive weeks.