agreement containing a provision to forfeit drug-tainted
property.
Parallel civil and criminal actions are endorsed, even
encouraged by the courts. See, e.g., United States v. Kordel,
397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1980). A
claimant may wish to suspend the tension caused by
parallel civil and criminal actions, for example, to avoid a
Fifth Amendment waiver for purposes of the criminal case
effected by answering the complaint or giving a
deposition in the forfeiture case. See State v. Kobrin
Securities, Inc., 111 N.J. 307 (1988). If so, the claimant
can seek a stay authorized by the forfeiture statute. See
N.J.S.A. 2C:64-3f. If a claimant is “a defendant in a
criminal proceeding arising out of the seizure, the ...
court may stay proceedings in the forfeiture action until
the criminal proceedings have been concluded by an
entry of final judgment. Id.
Generally, when parallel civil forfeiture proceedings
and criminal proceedings co-exist, the criminal case is
tried first “either out of solicitude for the indictee’s right
of self-incrimination or the preference customarily
accorded the criminal docket over a civil docket.” State v.
One 1976 Pontiac Firebird, 168 N.J. Super. 169 (App.
Div. 1979). Typically, a criminal defendant seeking a
stay of parallel civil proceedings asserts the Fifth
Amendment privilege; when the government seeks a stay
it does so to “prevent the criminal defendant from
broadening [the defendant’s] rights of criminal discovery
against the government.” S.E.C. v. Dresser Indus., 628
F.2d 1368, 1375 (D.C. Cir.), cert. denied 449 U.S. 993,
101 S.Ct. 529, 66 L.Ed.2d 289 (1980) (citing
Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962),
cert. denied 371 U.S. 955,83 S.Ct. 502, 9 L.Ed.2d 502
(1963)). A criminal conviction involving seized property
creates a rebuttable presumption that the property was
used in furtherance of unlawful activity. N.J.S.A. 2C:64-
3j.
- Discovery
Since statutory forfeiture under N.J.S.A. 2C:64-1 et
seq. is a civil action, “discovery rules permit, indeed
encourage, a broad factual inquiry.” State v. $199,167,
227 N.J. Super. 524, 527 (Law Div. 1988). The State
enjoys a right to discovery in a civil forfeiture action just
as it would in any other civil action, State v. Rodriguez,
130 N.J. Super. 57, 61 (App. Div. 1974), appeal after
remand, 138 N.J. Super. 575 (App. Div. 1976), aff’d, 73
N.J. 463 (1977). The State has a right to “bolster” its
cause of action through discovery. Printing-Mart
Morristown v. Sharp Electronics Corp., 116 N.J. 739, 768
(1989). In State v. 1987 Chevrolet Camaro, IROC-Z28,
307 N.J. Super. 34 (App. Div. 1998), the Appellate
Division concluded that the trial court had abused its
discretion in ordering as a discovery sanction dismissal
with prejudice of the State’s in rem forfeiture complaint.
The State sought forfeiture of claimant’s vehicle because
he had used it to facilitate a homicide. When the State
did not answer defendant’s interrogatories, defendant
first obtained dismissal without prejudice. Defendant
then sought dismissal with prejudice, and the State cross-
moved to reinstate the complaint, finally attaching
answers to defendant’s interrogatories. The trial court,
nevertheless, dismissed the complaint with prejudice and
denied the State’s cross-motion, because the State could
show no “exceptional circumstances” for not complying
with R. 4:23-5(a)(2) (procedure upon failure to serve
answers to interrogatories). The Appellate Division
determined that the trial judge erred in levying the
ultimate sanction of dismissal against the State, because
the defendant was unable to articulate any prejudice
attributable to the State’s tardy answers. The Appellate
Division noted that while discovery in civil actions
seeking the return of seized items is a right and while the
State’s excuses for not timely answering the
interrogatories did not constitute “exceptional circum-
stances,” the State ultimately did answer them and
defendant never proved that this untimely submission in
fact prejudiced him. On remand the defendant was
required to articulate prejudice, and the trial court was
required to evaluate it, as a predicate to dismissal with
prejudice. Also, the trial judge was required to relax the
rules and reinstate the complaint if defendant could not
establish actual prejudice. State v. 1987 Chevrolet
Camaro, IROC-Z28, supra.IV. FUNDAMENTAL FORFEITURE ISSUES
A. Rights of Third PartiesNew Jersey’s forfeiture statute affords protection
from forfeiture to an “innocent” lessor or lienholder who
was unaware of the unlawful activity and did not consent
to it, and to an “innocent” owner who had no reason to
know that the property would be involved in unlawful
activity and who did everything that reasonably could
have been expected to prevent involvement of the
property in unlawful activity. N.J.S.A. 2C:64-5.In Bennis v. Michigan, 516 U.S. 442, 116 S.Ct. 994,
134 L.Ed.2d 68 (1996), the United States Supreme
Court held that a claimant has no federal constitutional
due process right to advance an innocent owner defense.
However, in United States v. A Parcel of Land ... Known as
92 Buena Vista Avenue, Rumson, 507 U.S. 111, 113 S.Ct.