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280. Forfeiture of Assets Located in Foreign Countries

Any attorney for the Federal government who plans to file a civil forfeiture action for assets located in another country pursuant to 28 U.S.C. § 1355(b)(2) is directed to notify the Office of International Affairs (OIA) of the Criminal Division before taking such action. Notification to the Office of International Affairs should be in writing and set forth the following information:

a precise description of the assets subject to forfeiture;

identification of the foreign country in which the assets are located and specific information as to their exact location (e.g., city, bank, account number and/or name);

a brief description of the facts supporting the proposed forfeiture, particularly the acts or omissions occurring in the district requesting concurrence;

identification of any other known districts which might have a claim to seeking forfeiture of the same assets and/or which have charges pending against the defendant/owner of the assets in question; and

a description of any contact or communication already undertaken by the pertinent government attorney or U.S. law enforcement agents with the U.S. Embassy in the foreign country involved or with any officials or law enforcement authorities of that country concerning the assets, their potential forfeitability, or the offenses or criminal case underlying the proposed forfeiture.

BACKGROUND: As amended in 1992, 28 U.S.C. § 1355, the statute vesting U.S. district courts with original jurisdiction in civil forfeiture cases, provides in subsection (b)(2) that when property that is forfeitable under U.S. law is located in a foreign country or has been seized or detained pursuant to foreign law, an action for forfeiture can be brought against the property in the U.S. District Court for the District of Columbia, the district in which any of the acts or omissions giving rise to forfeiture occurred, or any district where venue is authorized under 28 U.S.C. § 1395 or any other venue statute (e.g., 18 U.S.C. § 981(h) or 21 U.S.C. § 881(j).

The extraterritorial jurisdiction provided by 28 U.S.C. §  1355(b)(2) gives Federal prosecutors a powerful mechanism to deprive criminals and criminal enterprises of the proceeds and instrumentalities of their illegal activities, wherever those assets may have been transferred. The ability to obtain civil forfeiture orders in the United States for property abroad can result in substantial benefits to international forfeiture efforts, both by facilitating the repatriation of illicit assets to this country for disposition and sharing under U.S. law and by providing a means to assist foreign governments in the confiscation and disposition of assets pursuant to their own laws.

Despite the potential benefits involved, certain issues of foreign sovereignty and domestic resource allocation and coordination are raised by the jurisdictional law relating to forfeitable property abroad. For instance, there are some countries which may perceive the mere filing of a forfeiture action here against property within their borders as an affront to or infringement on their sovereign prerogatives. The invocation or attempted enforcement of extraterritorial forfeiture jurisdiction in such circumstances could well prove prejudicial to legitimate foreign policy interests or to other law enforcement initiatives or activities involving the country in question. Moreover, when it is known or can be ascertained in advance that a particular foreign government either cannot or will not recognize, enforce, or otherwise make beneficial use of a forfeiture order obtained in this country, it would clearly be a waste of U.S. prosecutorial and judicial resources to pursue the forfeiture action.

The broad grant of authority in 28 U.S.C. § 1355(b)(2) also raises potential problems with conflicts between or duplicative efforts by different districts asserting jurisdiction over the same assets in other countries. It is not uncommon for major criminals to have charges pending against them and their organizations in a number of districts in the United States, each of which could have an arguable claim to the foreign assets of the defendant or his illicit enterprise. Even in the absence of pending charges, various districts might be able to argue that certain "acts or omissions giving rise to forfeiture" occurred within their territory. The filing of multiple extraterritorial forfeiture actions for the same property would clearly not be a wise use of U.S. time and effort, and the presentation of multiple forfeiture orders to the foreign government in question would likely be both confusing and counterproductive.

[cited in USAM 9-13.526]

Updated May 20, 2015