Chapter 14

Emergency Judicial Relief

14.1 Tactical Reasons for Making the Motion for an Emergency Hearing

14.2 Basis for Emergency Hearings

14.2.1 Rule 41(e)

14.2.2 Anomalous Jurisdiction of District Courts

14.3 Factual Basis For Equitable Relief

14.4 Legal Argument

14.5 Interim Relief

14.6 Fees for Emergency hearings under the Equal Access To Justice Act ("EAJA")

If no relief is in sight through petitions or compromises with the seizing agency, or those mechanisms are too slow, an additional tactic available to the claimant anxious to get back his seized property is to go directly to court and seek emergency relief. There are several good reasons for doing this in the appropriate case. Appropriate case means that the claimant can withstand early and detailed scrutiny of his factual position and has a considerable amount of equity on his or her side.

14.1 Tactical Reasons for Making the Motion for an Emergency Hearing

First, one of the great frustrations of a forfeiture case is that the government can seize property on a very low and suspect amount of evidence and then tie up the property for years during judicial resolution. By forcing the hearing early, the Claimant gets a look at the basis for the seizure that otherwise could be obscured for a long time. Additionally, just as the Claimant must be careful about being "locked-in" to a factual position, the hearing also forces the government to state their basis before the benefit of extensive discovery of the Claimant's case. Often such discovery will give the government new reasons for having seized the property.

Second, an AUSA is brought into the matter at an early stage which adds some degree (though often not much) of objectivity to evaluating the case of the seizing agency. Moreover, unknown weaknesses in the government's case will get flushed out perhaps expediting settlement by the AUSA.

Third, posturing yourself as an attorney able to go the distance on each procedural route will effect the seizing agency's and AUSA's judgment of your abilities and increase the settlement value of the case in their eyes. Finally, to the extent issues of preservation of property must be dealt with, the hearing allows that issue to be addressed.

Needless to say, this is not to propose meaningless exercises which waste the time of court and attorneys and bring Rule 11, Federal Rules of Civil Procedure, to bear.

14.2 Basis for Emergency Hearings

Each district court has its own peculiar set of rules governing when, where and how an emergency hearing can be held. In order to properly file the required papers to cause such a hearing to be held, the clerk of the court must be consulted to determine that court's particular rules regarding emergency hearings. Nonetheless, each court does have a set of rules which, when followed meticulously, require that a federal judge at least review the filed papers promptly and often require that a hearing be set. Get the rules and follow their mandates exactly.

There are two theories which allow access to the courts for emergency relief from forfeiture. The legal theory is found at Rule 41(e), Federal Rules of Criminal Procedure. The equitable theory is addressed to the anomalous jurisdiction of the court.

14.2.1 Rule 41(e)

Federal Rule of Criminal Procedure 41(e) provides that:

(e) Motion for return of property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.

Of most important note, not all federal circuits recognize this rule as an appropriate basis for seeking emergency relief from a forfeiture seizure. Alternatively, it is only recognized at certain stages of the forfeiture proceeding. Thus, as this area is in flux, the prudent practitioner will refer to his or her circuit's decisions on this issue.

14.2.2 Anomalous Jurisdiction of District Courts

The other ground upon which emergency relief from the court can be sought is an appeal to the general "equitable" or "anomalous" powers of the court. These powers allow the court to take jurisdiction of the matter and make whatever orders are appropriate to see that justice is done. The legal authority for such a motion is found at $8,850 in United States Currency, 461 U.S. 555, 569 (1983). In that case, the United States Supreme Court held:

First, the claimant can file an equitable action seeking an order compelling the filing of the forfeiture action or return of the seized property. 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 Federal Rule of Criminal Procedure 41(e) for a return of the seized property.

How the circuit courts' can conclude that Rule 41(e) doesn't apply to them after this unambiguous Supreme Court ruling is difficult to understand. Regardless, the proper drawn motion will educate the district court to the legal basis for the relief requested.