March 27, 2024 |

Kibler Fowler & Cave Files Petition for Writ of Certiorari with the United States Supreme Court Seeking to Resolve Growing Circuit Split Over Criminal Forfeiture Statute

On March 20, 2024, Kibler Fowler & Cave made its debut before the United States Supreme Court by filing a petition for writ of certiorari on behalf a small family business and two small business owners who, despite having never been accused of criminal wrongdoing, have had their property seized pursuant to the federal criminal forfeiture statute, 21 U.S.C. § 853.

In the underlying action, the petitioners filed a timely petition for the release of money that the government had seized based on a plea deal with a defendant who told the government that the money did not belong to him. But because they (neither of whom is a native English speaker) signed an affidavit that was incorporated into the petition rather than the petition itself, the government argued that they failed to sign the petition as required by Section 853(n). The district court accepted that argument, denying the petitioners’ motion for leave to amend to add the signature and concluding that the 30-day filing deadline of the statute prohibits amendment. Kibler Fowler & Cave, which was retained to handle the appeal to the Eleventh Circuit, sought to reverse the district court’s decision. On appeal, the Eleventh Circuit accepted the district court’s reasoning, and as a result, the government was permitted to rely on a readily correctible pleading deficiency to obtain clear title to private property despite sworn allegations that the government was aware that the property had no nexus to criminal activity.

The certiorari petition argues that the Court should grant certiorari to resolve a 2-2 circuit split over whether a district court has the discretion to permit amendment to a timely-filed Section 853(n) petition to correct minor pleading deficiencies. In so doing, it highlights serious constitutional problems raised by the Eleventh Circuit’s interpretation of the statute that effectively enables the government to seize private property without meeting its burden of proof, and then insulate itself from accountability through a small and readily correctible pleading deficiency. As set forth in the petition, this flawed interpretation will likely disproportionately impact lower income individuals in disadvantaged communities who are unable to find an attorney and forced to proceed in these cases pro se.

The KF&C team includes Counsel Stephen F. Raiola and Associate Zien Halwani. They are joined in the case by Juan Berrio of Berrio & Berrio, P.A.

Kibler Fowler & Cave’s petition for certiorari can be found here.

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