9-112.110
Administrative Forfeiture Policy
Properties subject to administrative forfeiture must be
forfeited administratively, unless one of the following
exceptions applies:
- Where several items of personal property (other than
monetary instruments) are subject to civil forfeiture under
the same statutory authority, and on the same factual basis,
and they have a common owner, and have a combined appraised
value in excess of $500,000, the property should be
forfeited judicially in a single action.
- Where the items subject to forfeiture include some that can be
forfeited administratively and others that must be forfeited
judicially, the forfeitures may be combined in a single judicial
action.
- When pursuing administrative forfeiture might create the
appearance that the Government is circumventing the time limits
on administrative forfeiture set forth in 18 U.S.C. § 983(a), the
forfeiture should be done judicially.
- When the United States Attorney and the seizing agency agree
that the forfeiture should proceed judicially in the first
instance.
- When the United States Attorney requests that the seizing agency
suspend the administrative forfeiture to allow the forfeiture to
be handled criminally, and the seizing agency agrees to do so,
the forfeiture may be pursued exclusively as part of the criminal
case.
See Chapter 2 of the Asset Forfeiture Policy Manual
("Interplay of Administrative Forfeiture and Civil Forfeiture").
[updated May 2010]
[cited in USAM 9-2.400]
9-112.120
Interplay of Administrative Forfeiture and Criminal Forfeiture
|
The seizing agency should commence administrative forfeiture
proceedings against seized property by sending notice to
potential claimants. Simultaneously, the U.S. Attorney should
ask the grand jury to include a forfeiture allegation against the
same property in a criminal indictment. This is the proper
procedure. If there is no claim in the administrative forfeiture
proceeding, the property will automatically be forfeited. In
cases where no claim is filed and the property is forfeited
administratively, however, it is necessary to strike the
forfeiture allegation from the indictment to avoid a situation in
which the court, the defendant, or the jury is confused by the
procedure and mistakenly believes that the Government abandoned
the administrative forfeiture once the indictment was returned,
and intended to proceed with the criminal forfeiture alone.
Accordingly, in cases where administrative and criminal
forfeiture proceedings are instituted simultaneously, and no one
files a claim in the administrative proceeding, the agency should
complete the administrative forfeiture, and the AUSA handling the
criminal case should file a motion reporting the completed
forfeiture and therefore striking the forfeiture from the
indictment. See Chapter 2 of the Asset Forfeiture Policy
Manual ("Interplay of Administrative Forfeiture and Criminal
Forfeiture").
[updated May 2010]
9-112.130
Requesting the Seizing Agency to Suspend the Administrative Forfeiture
|
In an extraordinary case, the U.S. Attorney may have a
reason why the case should not be handled administratively and
may ask the seizing agency to suspend the administrative
forfeiture in favor of criminal forfeiture. Seizing agencies will
generally comply with that request, but the U.S. Attorney may
then have to take steps to ensure that the 60-day deadline for
commencing an administrative forfeiture proceeding under section
983(a)(1)(A) is not violated. See section
983(a)(1)(A)(iii) (no notice of administrative forfeiture is
required if, before the 60-day period expires, a grand jury
returns an indictment naming the property, and the Government
takes steps to preserve its right to maintain custody of the
property under the criminal forfeiture laws). See Chapter
2 of the Asset Forfeiture Policy Manual ("Requesting the Seizing
Agency to Suspend the Administrative Forfeiture").
[updated May 2010]
9-112.140
Conversion of Administrative Forfeitures Covered by the Customs Carve-Out in CAFRA to Judicial Forfeitures
|
There are times when an administrative forfeiture is
commenced under Title 19, but the ensuing judicial forfeiture is
brought under another statute. Title 19 forfeitures are exempt
from the provisions of CAFRA, whereas most other forfeitures are
not. The reforms enacted by CAFRA are applicable to all civil
forfeitures taken under any provision of federal law except for
those specifically exempted by 18 U.S.C. § 983(i).
Forfeitures to which the provisions of CAFRA are not applicable
include, inter alia, forfeitures under Title 19 that are enforced
by Customs and Border Protection (CBP) and U.S. Immigration and
Customs Enforcement (ICE) (formerly components of the U.S.
Customs Service). In instances where CBP (on its own, or on
behalf of ICE) commences an administrative forfeiture action
under Title 19 and the U.S. Attorney subsequently files a civil
judicial forfeiture action under a non-Title 19 statute, the U.S.
Attorney should comply with all CAFRA deadlines, including the
90-day filing deadline under section 983(a)(3), and CBP should
return the cost bond. For additional information on this topic
see Chapter 2 of the Asset Forfeiture Policy Manual ("Conversion
of administrative forfeitures covered by the Customs carve-out to
judicial forfeitures covered by CAFRA").
[new May 2010]
9-112.150
Seizure Pursuant to a Criminal Warrant: Availability of Administrative Forfeiture
|
A seizing agency may commence a forfeiture proceeding as a
criminal forfeiture (i.e., by seizing the property with a
criminal seizure warrant under section 853(f)) and subsequently
convert the proceeding to an administrative one without reseizing
the property or taking some other action under the civil
forfeiture statutes. Except in extraordinary circumstances, if
the Government desires to commence administrative forfeiture
proceedings against property seized pursuant to a criminal
seizure warrant, it should do so within 60 days of the seizure.
If the 60-day deadline has passed, and the Government still
desires to pursue the forfeiture civilly instead of criminally,
the case should be referred to the U.S. Attorney to commence a
civil judicial proceeding. For additional information on this
topic see Chapter 2 of the Asset Forfeiture Policy Manual
("Seizure Pursuant to a Criminal Warrant: Availability of
Administrative Forfeiture").
[new May 2010]
9-112.160
Motions for Reconsideration in Criminal Forfeiture Cases
|
When the order of forfeiture in a criminal case contains a
legal or factual error, the Government may file a motion for
reconsideration. If the order was entered prior to sentencing, as
contemplated by Rule 32.2(b)(2), Federal Rules of Criminal
Procedure, the filing of the motion for reconsideration is
straightforward. If the order is not entered until sentencing,
however, the opportunity to move to correct the order may be
quite limited. That is because the filing of a motion for
reconsideration in a criminal case may not suspend the time for
filing an appeal under Appellate Rule 4(b), and because, in any
event, the only vehicle for correcting an order of forfeiture
once it becomes part of the sentence may be Rule 35(a), which
requires that the motion be made, and the relief be granted,
within 7 days of the sentence.
Accordingly, prosecutors should always ask the court to issue
a preliminary order of forfeiture as soon as possible in
accordance with Rule 32.2(b)(2) so that there is ample
opportunity to correct the order before it becomes final at
sentencing. Prosecutors should not assume that a motion for
reconsideration filed after the sentence will suspend the
time for appeal.
The Department's policy is to assume that Rule 35(a) applies.
Accordingly, until this issue is resolved by the courts or by
Congress, in a criminal case in which the order of forfeiture is
not entered until sentencing, a prosecutor who files a motion for
reconsideration of the order should file the motion, and urge the
court to rule on it, within 7 days of the sentence. In addition,
the AUSA should not assume that the filing of the motion will
extend the time for filing an appeal, but should instead file the
notice of appeal before the 30th day under App. Rule 4(b)(1)(B)
regardless of the status of a pending motion for reconsideration.
As a courtesy to the district court, the prosecutor may want to
advise the court of the Government's policy on this matter so
that the court understands the reasons why the Government may
feel compelled to file its notice of appeal—which divests
the district court of jurisdiction—even though the court
may have scheduled a hearing on the Government's motion.
In all cases, however, the interests of justice would be
better served if the court were to enter a preliminary order of
forfeiture as soon as possible after the entry of a verdict or
the acceptance of a guilty plea so that the court would have a
full opportunity prior to sentencing to correct any legal or
factual error. A motion for reconsideration would always be
appropriate if filed after the order is entered but prior to
sentencing. If that practice is followed, much unnecessary
litigation over the scope of Rule 35(a), and many unnecessary
appeals, may be avoided.
Because the law regarding the application of Rule 35(a) and
App. Rule 4(b)(5) to motions to reconsider orders of forfeiture
in criminal cases is unclear, AUSAs should act conservatively to
protect the Government's right to appeal from the forfeiture
portion of a criminal sentence. Until the law on this issue
becomes more clear, prosecutors should assume that any motion for
reconsideration of a criminal forfeiture order should be filed
and ruled upon within 7 days of sentencing in accordance with
Rule 35(a), and that the filing of the motion will not suspend
the time for filing an appeal under App. Rule 4(b)(1)(B). In all
cases, the Government should urge the district court to comply
with Rule 32.2(b)(2) in issuing a preliminary order of forfeiture
as soon as possible after the entry of a verdict or the
acceptance of a guilty plea so that there is ample time to
correct the order prior to sentencing. For additional
information on this topic see Chapter 2 of the Asset Forfeiture
Policy Manual ("Filing a Motion for Reconsideration in a Criminal
Forfeiture Case").
[new May 2010]
9-112.170
Preference for Federal Forfeiture
|
As a general rule, if property is seized as part of an
ongoing federal criminal investigation and the criminal
defendants are being prosecuted in federal court—or it is
anticipated that a federal prosecution will be pursued—the
forfeiture action should be commenced administratively by a
federal agency or pursued in federal court regardless of whether
a local, state, or federal agency made the seizure. Forfeitures
should follow the prosecution for both legal and practical
reasons. Parallel state forfeitures can jeopardize the pending
federal criminal investigation or prosecution and create
unnecessary confusion. Where federal resources are expended on an
investigation and state and local law enforcement are assisting
in a federal prosecution, federal forfeiture, administrative or
judicial, should be pursued absent extraordinary circumstances.
The efforts of state and local law enforcement should be
recognized through formal equitable sharing rather than a
division of assets between state and federal forfeiture.
However, certain circumstances may make state forfeiture
appropriate. These circumstances include but are not limited to
the following:
(1) a state forfeiture is commenced on the seized asset
before the federal agency joins the investigation and has either
been concluded or substantial litigation has been conducted;
(2) an existing memorandum of understanding sets forth a
different procedure for the handling of the seizures and
forfeitures;
(3) the asset was seized by a state or local agency and state
law requires a turnover order. A decision not to seek the
turnover order must be coordinated with agency counsel and the
federal prosecuting official; if an adverse order is entered by
the state court, agency counsel, the federal prosecuting
official, and the local prosecuting attorney must participate in
deciding how to proceed;
(4) the seized asset does not meet the Department of
Justice's minimum monetary thresholds; or
(5) the pertinent federal prosecuting official has reviewed
the case, declined to initiate forfeiture proceedings, and
approved a referral for state forfeiture.
When a federal agency believes a state forfeiture is
appropriate, the referral of an asset for state forfeiture must
be discussed with agency counsel and the federal prosecuting
official responsible for asset forfeiture.
A federal prosecuting official may decline a prosecution if
significant assets have been referred for state prosecution after
a determination to seek federal prosecution was made and without
the prior consultation discussed above.
If there is a state forfeiture related to a federal criminal
prosecution, federal equitable sharing requests and decisions
must take into account the entire case, and seizures should be
reviewed before equitable sharing recommendations or decisions
are made. See Chapter 2 of the Asset Forfeiture Policy
Manual ("Preference for Federal Forfeiture").
[new May 2010]
9-112.210
Sixty-Day Notice Period in All Administrative Forfeiture Cases
|
Section 983(a)(1) requires that written notice of an
administrative forfeiture action be sent to interested parties as
soon as practicable but no later than 60 days after the date of
the seizure. For interested parties determined after seizure, the
written notice shall occur within 60 days after reasonably
determining ownership or interest. See section
983(a)(1)(A)(v). Waivers of this notice deadline may be obtained
in writing in exceptional circumstances from a designated
official within the seizing agency. See section
983(a)(1)(B). The exceptional circumstances are those set forth
in section 983(a)(1)(D).
If a waiver is granted, it must set forth the exceptional
circumstances and be included in the administrative forfeiture
case file. A waiver issued under this provision, however, is
valid for no more than 30 days. If additional time is required,
the waiver must be extended by a judicial officer pursuant to
section 983(a)(1)(c).
If a seizing agency discovers that it has inadvertently
failed to comply with a deadline for sending notice of the
administrative forfeiture of property in a case where such
deadlines apply, and the person from whom the property was seized
has not waived the 60-day deadline, no further action may be
taken to forfeit the property administratively based on the
offense giving rise to the original seizure, and the property
must be returned to the person from whom it was seized in
accordance with section 983(a)(1)(F), unless the return of the
property would be unlawful, or unless the Government, as soon as
may be practicable, commences a judicial forfeiture proceeding by
(1) naming the property in a criminal indictment or information
and obtaining a judicial order pursuant to section 853(e) or (f)
allowing it to hold the property; or (2) filing a civil judicial
forfeiture action and retaining lawful possession of the property
pursuant to an arrest warrant in rem. See Chapter 2 of
the Asset Forfeiture Policy Manual ("Sixty-Day Notice
Period in All Administrative Forfeiture Cases").
[updated May 2010]
[cited in USAM 9-119.010]
9-112.220
Policy on the Deadline for Filing a Civil Forfeiture Action in Cases that do not Begin as Administrative Forfeiture Proceedings
|
In cases where administrative forfeiture is possible under
19 U.S.C. section 1607, but the Government has elected for
whatever reason to by-pass the administrative forfeiture process,
the U.S. Attorney should file a civil or criminal action for the
forfeiture of the property within 150 days of the seizure of the
property. This reflects the total time that the Government would
have had to commence such an action if the Government had chosen
to proceed in the normal way: 60 days for the commencement of a
administrative forfeiture proceeding plus 90 days to file a civil
forfeiture complaint or to include the property in a criminal
indictment. By following this policy, the prosecutor will thus
deflect any concern that the Government by-passed the
administrative forfeiture process to circumvent the CAFRA
deadlines.
This policy applies only in cases where the U.S. Attorney, in
consultation with the seizing agency, affirmatively decided at
the outset of a case that the forfeiture of the seized property
would be done judicially in the first instance. It does not apply
to cases where the seizure should have been handled as a routine
administrative forfeiture to which the 60 or 90-day deadlines in
section 983(a)(1)(A) apply, but where the notice was not sent due
to inadvertence or error. The policy regarding the handling of
forfeitures in that situation is set forth in 9-112.210.
In cases where administrative forfeiture is barred by section
1607, it is not necessary to establish a fixed deadline for
commencing a judicial forfeiture action based on the date of the
seizure. Congress set no deadline in this instance, and it is not
necessary for the Government to adopt one. But the Government
should not be free to ignore indefinitely a request made by a
potential claimant for the release of his property or for the
commencement of formal judicial proceedings. Accordingly, in a
case where the U.S. Attorney receives a such a request in
writing, the prosecutor should treat the request as if it were a
"claim" referred to in section 983(a)(3)(A), and should thus
commence a judicial forfeiture action within 90 days of the
receipt of the request.
Nothing in this policy should be interpreted to allow a
potential claimant to shorten the deadline for commencing an
administrative forfeiture in a case where administrative
forfeiture is authorized. In all events, in such cases the
seizing agency will have 60 days (or 90 days in the case of
adoptive forfeitures) to determine whether or not to proceed with
the forfeiture proceeding. For additional information on this
topic, see Chapter 2 of the Asset Forfeiture Policy Manual
("Policy on the Deadline for Filing a Civil Forfeiture Action in
Cases that do not Begin as Administrative Forfeiture
Proceedings").
[new May 2010]
9-112.240
Prior Approval Requirements
|
Prior approval of the Criminal Division is required for the
forfeiture of attorneys' fees and preindictment ex parte
applications for Temporary Restraining Orders in criminal
forfeiture cases. See
USAM 9-119.010 and
USAM Chapter 9-120.000 for the Department's policy regarding
forfeiture of attorneys' fees.
[updated May 2010]
[cited in USAM 9-2.400;
9-119.119]
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