This past year has seen an explosion of seizures of bank accounts by the Drug Enforcement Administration (DEA) and the U.S. Immigration and Customs Enforcement (ICE) or Homeland Security Investigations (HSI) for alleged trade-based money laundering or “structuring”. In 2011, I have handled these cases in Miami, New York, San Diego, Boston, Phoenix, San Juan, and Norfolk. The funds in the bank accounts are taken when the bank is served with a Seizure Warrant signed by a United States Magistrate Judge, based upon an affidavit prepared by the DEA or ICE Agent.
Typically, the bank (and its customer) do not get to see the Affidavit because the criminal proceeding is ongoing, and the Affidavit is sealed. The Seizure Warrant itself typically alleges that the money is subject to seizure because it is the proceeds of drug activity in violation of 21 U.S.C. 881 and 18 U.S.C. 1956.
A related legal basis for the seizure of bank accounts is ‘structuring’ – the deposit of $10,000 or less in cash repeatedly in a bank account to avoid the filing by the bank of a Currency Transaction Report (CTR) with the Financial Crimes Enforcement Network (FinCen), U.S. Department of the Treasury . See 31 CFR 1010.314. A CTR is FinCen Form 104. A CTR is required to be filed by all banks whenever a deposit of cash over $10,000 is made in a single day into a single account or by a customer into different accounts. Be aware that deposits of cash into multiple branches of a bank or in multiple transactions is still structuring. See 31 CFR 1010.313. Whenever a bank suspects that its depositor or customer is depositing $10,000 or less to avoid the bank filing the CTR, the bank often instead files a Suspicious Activity Report (SAR) . The SAR reports are analyzed by FinCen, and often referred to the DEA or ICE for investigation. Some of the investigations results in seizures of bank accounts as mentioned above.
Bank account holders absolutely have the right to challenge the taking of their money by the DEA or ICE. If your money has been seized, you have a right to know the legal basis for the seizure, and should, through your attorney, contact the DEA or ICE Agent, or the Assistant U.S. Attorney. In civil forfeiture cases, there is an administrative process to follow once a Notice of Seizure is issued to the bank account holder by the Fines, Penalties, and Forfeitures Office of U.S. Customs and Border Protection (CBP) or a Notice of Seizure by the DEA. If the Notice of Seizure is from CBP, file a Petition, and if the Notice of Seizure is issued by the DEA, file a Sworn Claim with the Asset Forfeiture Section located in Quantico, Virginia. The procedures of both agencies are very specific, and must be followed carefully, otherwise, your right to challenge the seizure will be lost forever.