Defendant in a criminal case will get the benefit of a motion in limine to prevent alleged admissions under the Fifth Amendment in his forfeiture case from being used against him. United States v. Mendoza, 2020 U.S. Dist. LEXIS 166898 (D. N.M. Sept. 11, 2020):
Because the Court agrees with the Government that there are not actual civil proceedings to stay pursuant to Defendant’s Motion, and because the Court also agrees with Defendant that his right to abstain from self-incrimination should be secured regardless of the procedural context in which it arises, the Court will instead order a remedy consistent with the principles of $133,420.00 in United States Currency, 672 F.3d at 643 (“We have recognized that courts must seek to accommodate the defendant’s right against self-incrimination in a civil forfeiture proceeding.”) (internal quotations omitted) (citing United States v. Thirteen (13) Mach. Guns, 689 F.2d 861, 864 (9th Cir. 1982) and 4003-4005 5th Ave., 55 F.3d at 84 (“courts should explore all possible measures in order to select that means which strikes a fair balance … and … accommodates both parties.”)). To do so, this Court will refer to the Government’s suggestion that Defendant file a motion in limine seeking to exclude the use of the claims forms as evidence in the Defendant’s concurrent criminal trial. Rather than taking this suggestion wholesale, however, the Court will issue a protective order to the same effect of limiting “the use of the claim forms as evidence in the criminal case,” for which the Government advocated. Doc. 62 at 3. The Court agrees with Defendant that a motion in limine invites needless litigation, Doc. 74 at 4, and may fail, upon the outcome of such litigation, to remedy the unconstitutional effects of § 983(2) as it restricts Defendant’s ability to transfer the proceeding to the U.S. Attorney without stating his ownership interest in the seized property. Instead, while Defendant may be forced to make the statements if he intends to initiate judicial proceedings or to assert any right to said property, he can do so now knowing that there is no Constitutionally actionable harm, as the claims forms submitted in response to the Government pursuant to § 983(2) shall be sealed and protected from undue disclosure in Defendant’s corresponding criminal trial.