2219

Retroactivity of Good

The Good case arguably applies in all pending civil forfeiture cases that are not yet final for purposes of direct appeal. United States v. James Daniel Good Real Property, 114 S. Ct. 492 (1993). However, because the seizure will already have occurred in most of these cases, the only thing that should be required at this point is that property owners be permitted to request a prompt "probable cause" hearing to determine if the property should remain under seizure pending the outcome of the forfeiture action. There is no requirement that property owners be advised of the Good decision or the opportunity to request a hearing. If the government loses at the hearing, the only remedy is for the property to be returned to the custody of the owner pending final forfeiture order. Dismissal of the action is not an appropriate remedy. To avoid a hearing in a case in which a seizure has already occurred, the government may simply "undo" the seizure and rely on prior service of process and the lis pendens. However, this requires removing all indicia of the seizure (e.g., vacating the occupancy agreement (unless the occupants consent to a continuation), returning net rents collected post-seizure, etc.)(If rents are to be returned to owners, Assistant United States Attorneys should make some effort to recoup management expenses (i.e., to deduct these expenses from the rents collected) and provide the owner with a detailed accounting.) In cases where the government elects to "undo" a seizure previously made, it should apply to the court for an order vacating the seizure warrant. Such warrants typically order the U.S. Marshal to take custody of the property. If the government unilaterally abandons custody without obtaining such an order, the marshal may risk contempt should anything untoward and reasonably preventable happen on the property following such abandonment. [cited in USAM 9-111.130]