9-116.100
General Equitable Sharing Policies and Procedures
|
Department of Justice policies and procedures governing the
equitable sharing of federally forfeited property, including
administration of and participation in the Department of Justice
Equitable Sharing Program, application for transfer of federally
forfeited property to State and local law enforcement agencies,
determination of equitable sharing distributions, and permissible
uses of transferred property by State and local law enforcement
agencies, are set forth in Department of Justice publications,
including A Guide to Equitable Sharing of Federally Forfeited
Property for State and Local Law Enforcement Agencies, The
Attorney General's Guidelines on Seized and Forfeited
Property, and The Asset Forfeiture Policy Manual.
In accordance with the Crime Victims' Rights Act (18 U.S.C.
§ 3771) and the Attorney General's authority, the Department of
Justice gives priority distribution of forfeited assets to valid owners,
lienholders, federal financial regulatory agencies, and victims (in that
order) through remission or restoration. After losses to the above parties
have been satisfied, any remaining proceeds can be shared with state and
local law enforcement agencies.
[updated May 2010]
9-116.110
Federal Adoption
|
The adoption policies and procedures are intended to ensure
consistent review and handling of state and local seizures
presented for federal adoption. See Chapter 1 of the
Asset Forfeiture Policy Manual.
All state and local seizures presented for adoption must be
reported on a form entitled "Request for Adoption of State or
Local Seizure." A copy of this form is in the Asset Forfeiture
Policy Manual, Appendix H. The form must be completed by the
requesting state or local agency, but Federal personnel may, in
their discretion, complete the form for the requesting state or
local agency. Depending on the jurisdiction, state or local
agencies may also be required to submit a declination letter from
the state court waiving the state's authority to conduct
forfeiture proceedings along with the Request for Adoption of
State or Local Seizure form.
Information concerning any state forfeiture proceedings
instituted against the property must be detailed in the request
for adoption form. A federal agency must not adopt a seizure
while the property remains subject to the jurisdiction of a state
court. The state or local agency also may be required to complete
the Federal agency's standard federal asset seizure form as part
of the adoption request. All information provided must be
complete and accurate. An estimate of fair market value must be
provided for each item of seized property presented for adoption
and any liens and lienholders must be identified. Copies of any
investigative reports and of any affidavits in support of
warrants pertinent to the seizure must be attached for review.
State or local agencies may redact from investigative reports
information which may disclose the identity of a confidential
informant. See Chapter 1 of the Asset Forfeiture Policy
Manual.
[updated May 2010]
9-116.120
Federal Law Enforcement Agency Review of Adoption Requests
|
The adopting federal agency must consider adoption requests
promptly. Property management issues must be addressed in
consultation with the U.S. Marshals Service prior to an adoption.
The request for adoption must be accepted prior to the transfer
of the property to federal custody unless exceptional
circumstances exist.
Only an attorney outside the chain-of-command of operational
officials (e.g., the seizing agency's office of chief counsel or
other legal unit) may approve a request for adoption unless:
- the seizure was based on a judicial seizure warrant; or
- an arrest was made in connection with the seizure; or
- drugs or other contraband were seized from the person from
whom the property was seized.
Federal law enforcement agencies may expand the circumstances
requiring attorney approval. Any attorney review shall verify
that:
- the property is subject to federal forfeiture;
- there is probable cause to support the seizure;
- the property is not within the custody of a state court; and
- there is no other legal impediment to a successful forfeiture
action.
For more information on this topic, see Chapter 1 of the Asset
Forfeiture Policy Manual.
[updated May 2010]
9-116.150
Judicial Review Favored
|
Whenever practicable, Department of Justice officials should
obtain ex parte judicial approval prior to seizing personal
property. See Chapter 1 of the Asset Forfeiture Policy
Manual.
[updated May 2010]
9-116.160
30-Day Rule for Presentation for Federal Adoption
|
A federal law enforcement agency may be required to commence
administrative forfeiture proceedings by sending written notice "not more
than 90 days after the date of seizure by the state or local law enforcement
agency." In order to allow ample time for federal agencies to process
adoptive seizures, state and local agencies must request federal adoption
within 30 calendar days of seizure. Any waiver of the 30-day rule must be
approved in writing by a supervisory-level official of the adopting agency
where the state or local agency requesting adoption demonstrates the
existence of circumstances justifying the delay. See Chapter 1 of the
Asset Forfeiture Policy Manual.
[updated May 2010]
9-116.170
United States Attorney Recommendation For Adoption of Seizure
|
A United States Attorney may recommend in writing that a
federal law enforcement agency adopt a particular state or local
seizure or category of seizures for federal forfeiture. If the
federal agency declines to adopt the seizure but has no objection
to the direct adoption of the seizure by the United States
Attorney for judicial forfeiture under federal law, the United
States Attorney may adopt the seizure and pursue the forfeiture
civilly or criminally. On the other hand, if the federal agency
declines to adopt the seizure and believes that it should not be
adopted for federal forfeiture and the United States Attorney
disagrees, the United States Attorney may refer the matter to the
Asset Forfeiture and Money Laundering Section (AFMLS). After
consulting with the headquarters office of the seizing agency,
AFMLS may authorize direct adoption of the seizure or category of
seizures by the United States Attorney where a compelling law
enforcement purpose justifies such action. See Chapter 1
of the Asset Forfeiture Policy Manual.
[updated May 2010]
[cited in USAM 9-2.400;
9-119.102]
9-116.190
Retention of Custody by State or Local Agency
|
To minimize storage and management costs to the Department of
Justice, the state or
local agency requesting adoption of a conveyance should serve as
the substitute custodian of
the property pending forfeiture. The United States Marshals
Service (USMS) may authorize a state or local law enforcement
agency requesting adoption of other personal property, except
cash and other financial instruments, to serve as the substitute
custodian where appropriate. Use or disposition of the property
during this period by state or local law enforcement officials or
others is prohibited. See Chapter 1 of the Asset
Forfeiture Policy Manual.
[updated May 2010]
[cited in USAM 9-119.010]
9-116.195
Use of Anticipatory Seizure Warrants
|
If a state or local law enforcement agency commences a
forfeiture action under state law, no federal forfeiture action
may be commenced as long as the state court has jurisdiction over
the subject property. If, however, the state or local authorities
determine, for whatever reason, that the state action will be
terminated before it is completed, and that the property will
accordingly be released, or a federal seizing agency otherwise
learns that the state court is about to order the release of
property that is federally forfeitable, a federal agency may
arrange to seize the property by obtaining an anticipatory
seizure warrant from a federal judge or magistrate. The
anticipatory seizure warrant must provide that it will be
executed only after the state court has relinquished control over
the property.
For purposes of the notice requirements in section 983(a)(1),
property seized pursuant to an anticipatory seizure warrant in
these circumstances is considered the subject of a federal
seizure such that the period for sending notice of the forfeiture
action is 60 days, commencing on the date when the anticipatory
seizure warrant is executed. See Chapter 1 of the Asset
Forfeiture Policy Manual.
[new May 2010]
9-116.210
Equitable Sharing Decisions
|
If the total appraised value of all the assets forfeited in a
single administrative forfeiture order is less than $1 million,
the head of the investigative agency (or designated agency
headquarters official), for each asset, determines the
appropriate equitable share, completes section II of the DAG-72,
and enters the decision in the Consolidated Asset Tracking System
(CATS).
If the total appraised value of all the assets forfeited in a
single judicial forfeiture order is less than $1 million, the
head of the investigative agency (or designated agency
headquarters official), for each asset, makes a recommendation as
to the appropriate equitable share, completes section II of the
DAG-72, enters the recommendation in CATS, and forwards the DAG-
71 and DAG-72 to the United States Attorney's Office. For each
asset, the United States Attorney (or designee) determines the
appropriate equitable share, completes section III of the DAG-72,
and enters the decision in CATS. Any authorization to determine
equitable sharing on behalf of the United States Attorney must be
reduced to writing and maintained with other delegations.
In multi-district cases, in cases involving the equitable
transfer of real property, and where the total appraised value of
all the assets forfeited in a single administrative or judicial
forfeiture order is $1 million or more, the head of the
investigative agency (or designated agency headquarters
official), for each asset, makes a recommendation as to the
appropriate equitable share, completes section II of the DAG-72,
enters the recommendation in CATS, and forwards the DAG-71 and
DAG-72 to the United States Attorney's Office. For each asset,
the United States Attorney (or designee) makes a recommendation
as to the appropriate equitable share, completes section III of
the DAG-72, enters the recommendation in CATS, and forwards the
DAG-71 and DAG-72 to the Chief of AFMLS, who also makes a
recommendation. The Deputy Attorney General, or designee,
determines the appropriate equitable share.
[updated May 2010]
[cited in USAM 9-2.400;
9-119.010]
9-116.310
Equitable Sharing Payments
|
The USMS issues equitable sharing payments after the sharing
request appears in the
CATS Equitable Sharing Payments Authorization Report. A request
will not appear in the
report unless the information permitting payment has been entered
in CATS by the
investigative agency, the United States Attorney's Office, and
the USMS. Consequently, each component's timely processing
ensures expeditious sharing payments.
The USMS transfers all equitable sharing payments to state and
local law enforcement
agencies electronically. The payment is deposited directly into a
bank account designated by
the recipient agency. The recipient agency also receives a
confirmation of the deposit by
e-mail. Known as E-SHARE, this program provides a fast,
efficient, and secure method to
make equitable sharing payments. Participation in the program is
mandatory. In order to receive equitable sharing payments
electronically, state and local agencies must submit a completed
Form USM-391 to the E-SHARE Help desk. The form, and additional
information about the E-SHARE program, may be obtained online at
http://www.usmarshals.gov/assets/eshare/index.html or by e-mail to
E.Share.Help@usdoj.gov.
See Chapter 6 of the Asset
Forfeiture Policy Manual.
[updated May 2010]
9-116.312
Role of Law Enforcement Coordinating Committees
|
Pursuant to The Attorney General's Guidelines on Seized and
Forfeited Property, July 1990
(USAM Chapter 9-118.000), the
Law Enforcement Coordinating Committees (LECCs) "shall promote
and facilitate the Department of Justice forfeiture program with
federal, state and local law enforcement agencies." By
memorandum dated June 15, 1990, to all United States Attorneys,
the Associate Deputy Attorney General directed LECC
Coordinators to "serve as a clearinghouse for state and local
inquiries about the status of pending sharing cases." LECC
Coordinators should regularly consult CATS to ascertain the
status of equitable sharing payments and transfers to state and
local agencies. United States Attorneys Offices and federal
investigative agencies must work together to ensure proper
coordination of all equitable sharing activities. See
Chapter 6 of the Asset Forfeiture Policy Manual.
[updated May 2010]
9-116.400
International Sharing of Forfeited Assets
|
It is the policy of the United States to encourage international
asset sharing and to recognize all foreign assistance that
facilitates U.S. forfeitures so far as consistent with U.S. law.
International sharing is governed by 18 U.S.C. § 981(i), 21
U.S.C. § 882(e)(1)(E), and 31 U.S.C. § 9703(h)(2), and is often
guided by standing international sharing agreements or the
subject of a future case-specific forfeiture sharing arrangement
to be negotiated by AFMLS and approved by the Department of
State. The decision to share assets forfeited to the United
States with a foreign government is a completely discretionary
function of the Attorney General or the Secretary of the
Treasury. It requires the concurrence of the Secretary of State,
and, in certain circumstances, it is a decision that can be
vetoed by Congress. The 1992 international sharing memorandum of
understanding between the Departments of State, Justice, and
Treasury expressly prohibits investigators or prosecutors from
making representations to foreign officials "that assets will be
transferred in a particular case, until an international
agreement and commitment to transfer assets have been approved by
the Secretary of State and the Attorney General or the Secretary
of the Treasury." Prosecutors and federal law enforcement
agencies always should be mindful that any domestic sharing
occurs after all international sharing is completed, and that the
domestic sharing of assets located abroad will occur from and
come out of the federal share, which is the amount of money that
the United States has available after completion of the
international sharing process. Thus, federal prosecutors and
investigators should take care not to make any representations
about the sharing of forfeitable assets located abroad or
forfeited domestically with the assistance of a foreign
government to either representatives of the foreign government or
any of the domestic law enforcement partners whose assistance may
have contributed to the seizure and ultimate forfeiture of the
assets in question.
Foreign governments are not required to follow a specific
process to submit a sharing request to the United States. They
may do so pursuant to a treaty, a sharing agreement, or even via
other diplomatic or law enforcement channels. Prosecutors and law
enforcement agencies can and should make spontaneous sharing
recommendations whenever they receive foreign assistance that
facilitated the forfeiture of an asset in a U.S. case,
particularly when that asset is located in the United States.
When the United States forfeits assets in a judicial forfeiture
case with the help of a foreign state and the seizing agency is a
Department of Justice component or participant in the Department
of Justice Assets Forfeiture Fund, it is the responsibility of
the federal prosecutor assigned to the case to send a formal
sharing recommendation to AFMLS. In an administrative forfeiture
matter, the seizing agency is responsible for the recommendation.
In cases that implicate the Treasury Forfeiture Fund (TFF), the
seizing agency, e.g., Internal Revenue Service, U.S. Secret
Service, Customs and Border Protection, or Immigration and
Customs Enforcement, has the responsibility to send a sharing
recommendation to the Treasury Executive Office for Asset
Forfeiture (TEOAF). However, the seizing agency should consult
the prosecutor on the case first. For Department of Justice
Assets Forfeiture Fund international sharing recommendations,
AFMLS prepares the sharing recommendations for approval by the
Deputy Attorney General. For Treasury Forfeiture Fund
international sharing recommendations, the director of TEOAF
approves the sharing recommendations. AFMLS and TEOAF also obtain
State Department and each other's concurrence for each proposed
transfer to a foreign government after it is approved by their
respective designees. This interagency process can be lengthy. To
avoid delays, it is advisable to make the international sharing
recommendation as soon as is practicable, or immediately after
the final order forfeiting the foreign assets is obtained. At the
earliest possible time, the seizing agency should note in CATS,
or the tracking system for a particular TFF agency, that a
particular asset might be, is, or will be subject to an
international sharing request or recommendation—and definitely
before that asset has been liquidated. See Chapter 10 of
the Asset Forfeiture Policy Manual.
[updated May 2010]
[cited in USAM 9-2.400;
9-119.010]
9-116.500
Transfer of Forfeited Real Property Pursuant to Weed and Seed
|
The goal of Weed and Seed is to help local communities
restore order and provide assistance in neighborhoods afflicted
with high crime rates or other serious problems. The proposed
use of any property to be transferred must support
community-based drug treatment, crime prevention, education,
improving housing, enhancing job skills, and other activities
that will substantially further the Weed and Seed strategy. The
property must be suited to the proposed use and the use must be
consistent with all applicable federal, state, and local laws and
ordinances.
Any proposed transfer must have the potential for significant
benefits to a particular community and these benefits must
outweigh any financial loss or adverse effects to the Department
of Justice Assets Forfeiture Fund.
All requests for sharing of real property pursuant to the
Weed and Seed Initiative must be submitted on the DAG-71 and must
follow the established sharing procedures outlined in The
Attorney General's Guidelines on Seized and Forfeited
Property (USAM Chapter 9-118.000). The appropriate official in the
federal investigative agency and the United States Attorney in
the judicial district where the property is located must
concur with the request. Where real property is forfeited in one
judicial district by a United States Attorney from another
district, the United States Attorneys in both districts should
recommend the transfer. Final approval authority for a transfer
of forfeited real property rests with the Office of the Deputy
Attorney General.
In addition to the forms DAG-71 and DAG-72, a request for a
Weed and Seed transfer requires the submission of the following
to AFMLS: (1) a written request from the United States Attorney
or the U.S. Marshal recommending the transfer, explaining the
factual and procedural history of the case and the proposed use
of the property by the requested Weed and Seed recipient; (2) a
draft Memorandum of Understanding to be signed by the United
States Attorney and authorized representatives of the federal
agency that processed the forfeiture, each state or local agency
that would otherwise receive sharing were it not for the Weed and
Seed transfer, and the organization that is contemplated to be
the ultimate recipient of the transferred property, whether that
recipient is a sharing agency or a qualified public or private
non-profit organization; and (3) a Lead-Based Paint Declaration.
Both the written request and memorandum should fully describe the
entity to which the property is proposed to be transferred and
the use to which that entity intends to put the property. See
Chapter 6 of the Asset Forfeiture Policy Manual.
[updated May 2010]
[cited in USAM 9-2.400;
9-119.010]
9-116.530
Mortgages and Ownership Interests in Weed and Seed Transferred Real Property
|
Mortgages on real property transferred pursuant to the Weed
and Seed initiative are not payable from the Department of
Justice Assets Forfeiture Fund. Liens and mortgages are the
responsibility of the recipient state or local sharing agency or
non-profit entity that ultimately takes title to the property
pursuant to the Memorandum of Understanding. The payment of any
such mortgages should be specifically addressed in the
Memorandum.
Any secured debts or other qualified interests owed to
creditors on such real property are not payable from the
Department of Justice Assets Forfeiture Fund. Satisfaction of
these interests is the responsibility of the recipient state or
local agency or non-profit entity. As with mortgages, the
payment of qualified third-party interests should be addressed in
the Memorandum of Understanding. See Chapter 6 of the
Asset Forfeiture Policy Manual.
[updated May 2010]
9-116.540
Asset Seizure, Management and Case-Related Expenses
|
Other expenses incurred in connection with the seizure,
appraisal, maintenance, or security of Weed and Seed property
before transfer of the property are payable from the Assets
Forfeiture Fund, as are case-related expenses incurred in
connection with normal proceedings undertaken to protect the
United States' interest in the property until the entry of a
judgment or order of forfeiture. See Chapter 6 of the
Asset Forfeiture Policy Manual.
[updated May 2010]
9-116.550
Law Enforcement Concurrence
|
Any state or local law enforcement agency that would otherwise
receive an equitable share of proceeds from the sale of forfeited
real property must voluntarily agree to forego its share before a
Weed and Seed transfer is authorized. See Chapter 6 of
the Asset Forfeiture Policy Manual.
[updated May 2010]
9-116.600
Transfer of Property Forfeited under the Magnuson Fisheries
Conservation and Management Act from the Department of Justice to the
National Oceanic and Atmospheric Administration
|
Under the Magnuson Fisheries Conservation and Management Act,
16 U.S.C. §§ 1801-1882, the Department of Justice may
transfer to the National Oceanic and Atmospheric Administration (NOAA) funds
forfeited by the Attorney General for violations under the Act. Assets
seized for forfeiture under the Act should be deposited in the Seized Asset
Deposit Fund administered by the USMS. After forfeiture, the funds may be
transferred by the USMS to NOAA, less any expenses incurred by the USMS and
less ten percent of the net proceeds of forfeiture, which is deposited into
the Assets Forfeiture Fund. See Chapter 6 of the Asset Forfeiture
Policy Manual.
[updated May 2010]
9-116.700
Permissible Use Policy
|
The permissible use policy states that a state or local law
enforcement agency may use not more than 15 percent of its shared
monies for the costs associated with drug abuse treatment, drug
and crime prevention education, housing and job skills programs
or other nonprofit community-based programs or activities, which
are formally approved by the chief law enforcement officer
(i.e., chief, sheriff, or prosecutor) as being supportive
of and consistent with a law enforcement effort, policy, and/or
initiative.
The United States Attorney in the district where an applicant
for benefits under the permissible use policy, or one of its
principals, is located, or where it or one of its principals is
operating, shall determine whether the applicant or principal
currently is the subject of grand jury proceedings or other
prosecutorial scrutiny in that district, and the United States
Attorney shall notify the federal investigative agency of the
findings, and also shall notify the chief law enforcement officer
involved (unless non-disclosure is required by federal law or to
safeguard a federal investigation in progress). See A
Guide to Equitable Sharing of Federally Forfeited Property for
State and Local Law Enforcement Agencies.
[new May 2010]
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