Chapter
U.S. DEPARTMENT OF JUSTICE ASSET FORFEITURE POLICY MANUAL AND GUIDE TO EQUITABLE SHARING
U.S. DEPARTMENT OF JUSTICE ASSET FORFEITURE POLICY MANUAL AND GUIDE TO EQUITABLE SHARING
Chapter 1 ASSET FORFEITURE POLICY MANUAL (2012)*
PART 1: SEIZURE/RESTRAINT
I. Guidelines for Pre-seizure/Restraint Planning
B. Scope of Assets Covered by Guidelines
C. General Policy Guidelines
C.2. Pre-Seizure Planning Overview
D. Pre-Seizure Planning Questionnaires and Documentation
D.1. Asset-Specific Net Equity Thresholds
D.2. Compelling Law Enforcement Interest/Liability Forfeitures
D.3. Pre-Seizure Planning Questionnaires
D.4. Net Equity Worksheet
D.4.A. Ownership and Encumbrances
D.4.B. Financial Analysis: Avoiding Liability Seizures
E. Trustees and Monitors in Forfeiture Cases
II. General Procedures for Seizing Property
A. Notification by Seizing Agency
B. Pre-Seizure Judicial Review
B.1. Pre-Seizure Judicial Authorization of Property Seizures
B.2. Pre-Seizure Judicial Review Favored for Seizure of Personal Property
C. Forms of Process to Be Used
C.1. Warrant of Arrest in Rem
C.3. Seizure of Real Property
D. Responsibility for Execution of Process
III. Seizures for Criminal Forfeiture
A. When Is a Seizure Warrant or Restraining Order Required?14
C.1. Property Seized Pursuant to a Civil Seizure Warrant or Warrant of Arrest in Rem
C.2. Property Seized without a Warrant
C.3. Property Seized for Evidence
C.4. Property Obtained from the State for Adoptive Forfeiture
D. Proper Use of Writs of Entry in Civil and Criminal Forfeiture Cases
IV. Contaminated Real Property
B. Personal and Cashier’s Checks
C. Certificates of Deposit
E. Stocks, Bonds, and Brokerage and Other Investment Accounts
VI. Seized Cash Management
VII. General Adoption Policy and Procedure
A. Adoptive Seizures Are Encouraged
B. Federal Adoption Request
C. Federal Law Enforcement Agency Review
D. Minimum Monetary Thresholds
E. Forfeitures Generally Follow the Prosecution
F. 30-Day Rule for Presentation for Federal Adoption
G. Direct Adoption by the U.S. Attorney
H. Retention of Custody by State or Local Agency During Federal Forfeiture Proceedings
J. Use of Anticipatory Seizure Warrants
K. Concurrent Jurisdiction
VIII. Custodial and Authority Chart
A. Department of Justice Asset Forfeiture Program
B. Department of the Treasury Asset Forfeiture Program
PART 2: ADMINISTRATIVE AND JUDICIAL FORFEITURE
I. Interplay of Administrative and Civil Judicial Forfeiture
A. Preference for Administrative Forfeiture
B. Administrative Forfeiture of Bank Accounts
C. Conversion of Administrative Forfeitures Covered by the “Customs Carve-out” to Judicial Forfeitures Subject to 18 U.S.C. § 983
D. Whether to File a Judicial Forfeiture Action When the Timeliness or Form of An Administrative Forfeiture Claim Is Disputed or Unclear
E. 60-Day Notice Period in All Administrative Forfeiture Cases
F. Inadvertent Violation of 60-Day Deadline for Sending Notice
G. Policy on the Deadline for Filing a Civil Forfeiture Action in Cases That Do Not Begin as Administrative Forfeiture Proceedings
G.3.B. Cases That Do Not Begin Administratively
G.3.D. Policy on Filing a Judicial Forfeiture Action
II. Interplay of Administrative Forfeiture and Criminal Forfeiture
A. Starting a Case Administratively
B. Requesting the Seizing Agency to Suspend the Administrative Forfeiture
C. Disposing of Administrative Forfeiture in a Plea Agreement
D. Seizure Pursuant to a Criminal Warrant: Availability of Administrative Forfeiture
A. Claims Must Be Filed under Oath by the Claimant, Not by an Attorney or Agent
IV. Criminal Forfeiture Procedure
A. Filing a Motion for Reconsideration in a Criminal Forfeiture Case
A.2. Applicable Rules and Statutes
A.3. The Traditional Rule Is That a Motion for Reconsideration Suspends the Time for Filing an Appeal
A.4. Rule 35(A) Motions Do Not Suspend the Time
A.5. The Rules Applicable to Rule 35(A) Motions May Not Apply to Motions for Reconsideration of a Forfeiture Order
A.6. The Department’s Policy, However, Is to Assume That Rule 35(A) Applies
V. Publication and Direct Notice of Order of Forfeiture
A. Civil Forfeiture Cases
B. Criminal Forfeiture Cases
VI. Preference for Federal Forfeiture
VII. Firearms Forfeiture Policy Summary
A. Firearms Are Treated Differently
B. Preference for Forfeiture
B.3. Recovery of Investigative and Other Costs
B.4. Status of Administrative Forfeiture
B.6. Property Located in Another District
B.9. Reacquiring the Property
B.10. Effect on Taxes and Other Obligations
B.11. Settlement Authority
II. Authority of the U.S. Attorney to Enter into a Settlement
III. Authority of AFMLS to Approve a Settlement
IV. Using Administrative Forfeiture to Effect a Settlement
A. Settlement of Forfeiture After a Claim Is Filed in an Administrative Forfeiture Proceeding, but Before a Judicial Complaint Is Filed
B. Settlement of Civil Judicial Forfeiture Without Prior Administrative Action
C. Using Administrative Forfeiture to Settle a Criminal Forfeiture Action
V. References to the Remission or Restoration Processes in Settlements
VI. Settlements in Civil Judicial Forfeiture Cases
VII. SETTLEMENTS IN CRIMINAL FORFEITURE CASES
VIII. Acceptance of a Monetary Amount in Lieu of Forfeiture of Other Tangible Property
IX. Agreements to Exempt Attorneys’ Fees from Forfeiture
I. Payment of a Relator’s Share
A. Overview of the False Claims Act
B. Forfeiture Proceedings as Alternate Remedies
C. The Source of the Relator’s Right to Recover
D. The Relator’s Share is a Percentage of the Net Forfeiture Recovery
E. Procedure for Paying Relator’s Share
PART 5: USE AND DISPOSITION OF SEIZED AND FORFEITED PROPERTY
I. Management and Disposal of Seized Assets
A. Role of the U.S. Marshals Service
B. Department of Treasury Property Custodians
D. Coordination of Custody and Disposition Decisions
II. Use of Seized Property
B. Use of Seized Property by Department of Justice Personnel
C. Use of Seized Property Where Custody Is Retained by the State or Local Seizing Agency
D. Use of Seized Real Property by Occupants
III. State and Local Real Property Taxes
A. Civil Forfeiture Cases
B. Criminal Forfeiture Cases
C. Payment of Interest and Penalties on State and Local Real Property Taxes
IV. Disposition of Forfeited Property
B. Disposition of Forfeited Property in Civil and Criminal Cases
C. Disposition of Forfeited Funds
V. Attorney General’s Authority to Warrant Title
B. Use of a Special Warranty Deed and Indemnification Agreement
C. Use of a General Warranty Deed
VI. Purchase or Personal Use of Forfeited Property by Department of Justice Employees
PART 6: EQUITABLE SHARING AND OFFICIAL USE
I. Processing Applications for Equitable Sharing
C.1. Investigative Agency
C.2. United States Attorney
C.3. Deputy Attorney General
C.3.A Assets Valued between $1 Million and $5 Million
C.3.B. Assets Valued over $5 Million
D. Communication with the Requesting Agency
E. Reimbursement of Federal Costs and Expenses
II. Equitable Sharing Payments
IV. Equitable Sharing Ceremonies
V. Federal Contribution Form
VIII. International Sharing of Forfeited Assets
IX. Real Property Transfers
C. Governor’s Request for Historic and Recreational Purposes
D. Real Property Transfer to a Federal Agency
I. Payment of Attorneys’ Fees in Civil Forfeiture Cases
C. Procedure for Requesting Payment of an Award from the Judgment Fund
II. Forfeiture of Attorneys’ Fees
III. Payment of Attorneys’ Fees in Criminal Forfeiture Cases
A. Defendant’s Attorneys’ Fees
B. Third Party Petitioner’s Attorneys’ Fees
I. Disclosures of Grand Jury Information under 18 U.S.C. § 3322(a)
II. Presenting Forfeiture to the Grand Jury21
B.1. The Constitution Does Not Require a Grand Jury Finding of Probable Cause for Forfeiture
B.2. Criminal forfeiture Statutes and the Federal Rules of Criminal Procedure Do Not Require That the Grand Jury Find Probable Cause for Forfeiture
B.3. Although the Constitution, Statutes, and Rules Do Not Require a Grand Jury Finding of Probable Cause for Forfeiture, the Best Practice Is to Request Such a Finding
B.4. It Is Not Necessary to Ask the Grand Jury to Determine the Defendant’s Interest in Forfeitable Property
B.5. Presenting Forfeiture Evidence to the Grand Jury
B.6. Instructing the Grand Jury on Forfeiture
B.7. Memorializing and Describing the Grand Jury’s Probable Cause Finding
PART 9: INTERNATIONAL FORFEITURE
II. Importance of Reciprocal Cooperation
III. Policy on International Contacts
IV. Foreign Property Management Issues
V. Publication of Notice Abroad
VI. Consultation with AFMLS and OIA When Seeking Repatriation of Forfeitable Assets Located Abroad
VII. Probable Cause Finding to Seize or Restrain Assets Abroad
A. Civil Forfeiture Cases
A.1. Warrant of Arrest In Rem
A.2. Civil Seizure Warrant
B.3. Criminal Seizure Warrant
C. Parallel Civil and Criminal cases
VIII. Approval Process for Section 981(k) Seizure from Correspondent Bank Account
IX. Lack of Administrative Forfeiture Authority for Overseas Property
X. Consultation for Civil Forfeiture of Property Located Overseas
XI. Settlements, Plea Agreements, and Attorneys’ Fees
XII. Enforcement of Judgments
A. Foreign Enforcement of U.S. Judgments
B. U.S. Enforcement of Foreign Judgments and Restraining Orders
XIII. International Sharing
PART 10: APPOINTMENT OF TRUSTEES AND MONITORS
B. Responsibilities of Trustees and Monitors
C. Circumstances in Which a Trustee or Monitor Should Be Engaged
E. Federal Acquisitions Regulations
F. Selection and Appointment of a Trustee or Monitor
G. Payment of Monitor and Trustee Fees and Expenses
H. Goals, Duties, and Powers of the Trustee or Monitor
I. Reporting Requirements of the Trustee or Monitor
II. Department of Justice Policy: Trustees and Monitors in Forfeiture Cases
C. Definitions and Responsibilities
D. Determining When a Trustee or Monitor Should Be Engaged
E. Prerequisites to the Selection of a Trustee or Monitor: Pre-Seizure Planning and Other Requirements
F. Selection and Appointment of a Trustee or Monitor
F.1. Qualifications of the Trustee or Monitor
F.2. Sources for Potential Trustees and Monitors
G.1. Three Methods of Contracting with a Trustee or Monitor
G.3. Use of Staff, Consultants, and Private Counsel by Trustees and Monitors
H. Payment of Monitor and Trustee Fees and Expenses
H.1. Availability of Department of Justice Assets Forfeiture Fund
I. Defining the Goals, Duties, and Powers of the Trustee or Monitor
J. Reporting—Trustees and Monitors
PART 11: LITIGATION ISSUES
I. Avoiding Accusations of Vindictive Prosecution
II. Is a Prosecutor Bound, Ethically or Otherwise, to Forego Forfeiture in Favor of Restitution?
III. Negotiating with Fugitives
IV. Criminal Forfeiture and Brady Obligations
V. Considerations Relating to Global Settlements and Dealing with Claimants and Witnesses
B. Claimants and Witnesses
VI. Fifth Amendment Advisements in Civil Forfeiture Cases
VII. Preservation Policy for Civil Forfeiture
C. Information Subject to Preservation
D. The Litigation Hold Notice
D.3. Multiple Agency Situations
PART 12: FORFEITURE AND COMPENSATION FOR VICTIMS OF CRIME
I. Returning Forfeited Assets to Victims
A.1. 28 C.F.R. Part 9, Standards for Victims
A.2. Qualification to File
A.5. Additional Grounds for Denial of Remission to Victims
B.2. How the Restoration Process Works
C. Termination of Forfeiture and Direct Payment of Assets to Victims
D. Comparison of Judicial Remission and Restoration
II. Remission for Insurers of Victims
III. Constructive Trusts in Multiple-Victim Fraud Cases
PART 13: APPROVAL, CONSULTATION AND NOTIFICATION REQUIREMENTS
APPENDIX A: REDELEGATIONS OF AUTHORITY
APPENDIX B: OFFICE OF LEGAL COUNSEL OPINION, AG ORDER NO. 1860-94
Office of Legal Counsel Opinion1
APPENDIX C: EQUITABLE SHARING
APPENDIX D: EXAMPLES OF RESPONSIBILITIES OF TRUSTEES AND EXAMPLES OF DUTIES AND RESPONSIBILITIES OF A MONITOR
Examples of Responsibilities of Trustees
Examples of Duties and Responsibilities of a Monitor
Chapter 2 GUIDE TO EQUITABLE SHARING FOR STATE AND LOCAL LAW ENFORCEMENT AGENCIES*
I. WHAT IS THE DEPARTMENT OF JUSTICE ASSET FORFEITURE PROGRAM?
II. WHICH NON-FEDERAL AGENCIES ARE ELIGIBLE TO PARTICIPATE IN THE JUSTICE EQUITABLE SHARING PROGRAM?
A. State or Local Law Enforcement Agencies
B. State National Guard agency or unit
C. State and Local Prosecutorial Agencies
III. HOW DO AGENCIES PARTICIPATE IN THE EQUITABLE SHARING PROGRAM?
B. Adoption of a State or Local Seizure
IV. WHAT ARE THE MINIMUM MONETARY THRESHOLDS FOR ADOPTIVE FORFEITURES?
V. HOW IS PROPERTY FEDERALLY FORFEITED?
A. Administrative forfeiture
VI. HOW DO AGENCIES APPLY FOR AN EQUITABLE SHARE?
A. Completing the Form DAG-71
B. Common Causes of Delay
VII. HOW IS AN AGENCY’S EQUITABLE SHARE DETERMINED?
B. Joint Investigations with Federal Agencies
1. Spin-Off Investigations
C. Sharing in Task Force Cases
1. Formally Chartered Task Forces
D. Equitable Sharing Deciding Authorities
2. United States Attorney
3. Deputy Attorney General15
E. Sharing Always Based on Net Proceeds
VIII. WHAT ARE THE USES OF EQUITABLY SHARED PROPERTY?
3. General Guidance Concerning Use
B. Increase and Not Replace
C. Transfer of Forfeited Real Property
D. Transfer of Forfeited Tangible Personal Property
E. Reimbursement of Federal Costs
F. Return of Equitably Shared Funds
IX. WHAT ARE THE ACCOUNTING PROCEDURES AND REQUIREMENTS FOR SHARED CASH, PROCEEDS, AND TANGIBLE PROPERTY?
A. Bookkeeping Procedures and Internal Controls
X. WHAT ARE THE REPORTING AND AUDIT REQUIREMENTS?
A. Federal Equitable Sharing Agreement and Certification Form
XI. WHAT IF AGENCIES DO NOT FULFILL THE COMPLIANCE REQUIREMENTS?
APPENDIX A: WHAT ARE THE TYPES OF FEDERAL FORFEITURE?
A. Administrative Forfeiture
APPENDIX B: NATIONAL CODE OF PROFESSIONAL CONDUCT FOR ASSET FORFEITURE
APPENDIX C: GUIDELINES FOR DETERMINING A COMMUNITY-BASED PROGRAM’S ELIGIBILITY
II. BACKGROUND AND COMPLIANCE WITH LAW AND POLICY
A. Certification by Applicant
B. Statement by Chief Law Enforcement Officer
C. Inquiry by the Chief Law Enforcement Officer
D. Inquiry by the Federal Investigating Agency
E. Inquiry by the United States Attorney
APPENDIX D: FORM DAG-71: APPLICATION FOR TRANSFER OF FEDERALLY FORFEITED PROPERTY
APPENDIX E: EQUITABLE SHARING AND AGREEMENT ANNUAL CERTIFICATION REPORT
U.S. Department of Justice Asset Forfeiture Policy Manual and Guide to Equitable Sharing
( Law, Crime and Law Enforcement )
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