2214

Obtaining Criminal Forfeiture Seizure Warrants for Property Located Outside Districts

The most commonly used criminal forfeiture statutes authorize the issuance of a warrant for the seizure of property subject to criminal forfeiture "in the same manner as provided for a search warrant." (18 U.S.C. §  1467(d) (obscene material); 18 U.S.C. § 2253(d) (sexual exploitation of minors); 21 U.S.C. § 853(f) (controlled substances); and, by incorporation of 21 U.S.C. § 853(f) by reference, 18 U.S.C. § 982(b)(1)(A) (money laundering) and 18 U.S.C. §§ 793(h)(3) and 794(d)(3) (espionage)). In turn, Fed. R. Crim. P. 41(a), which governs the procedure for the issuance of search warrants, provides that warrants may be issued for property that is "within the district." Fed. R. Crim. P. 41(a). This suggests that seizure warrants for criminal forfeiture may be issued by the court in the district in which the property to be seized is located at the time the warrant is sought. This authority, however, may not be exclusive. The "Jurisdiction to enter orders" provision in all of the criminal forfeiture statutes that authorize seizure warrants provides that "[t]he district courts of the United States shall have jurisdiction to enter orders as provided in this section without regard to the location of any property which may be subject to forfeiture under this section or which has been ordered forfeited under this section." 18 U.S.C. §  1467(j); 18 U.S.C. § 2253(k); 21 U.S.C. § 853(l); and, by incorporation of 21 U.S.C. § 853(l) by reference, 18 U.S.C. § 982(b)(1)(A) and 18 U.S.C. §§ 793(h)(3) and 794(d)(3). Emphasis added. Seizure warrants are court orders. Consequently, district courts have jurisdiction to issue seizure warrants for property subject to criminal forfeiture "without regard to the location" of the property, at least to the limited extent necessary to allow the court that has jurisdiction for the criminal forfeiture to issue seizure warrants for property located in other districts. Such jurisdiction is consistent with the jurisdiction of the district courts for the issuance of warrants of arrest in rem in civil forfeitures of property in other districts. See 28 U.S.C. § 1355(d) (authorizing nationwide service of "process" by district courts with jurisdiction over a civil forfeiture action "as may be required to bring before the court the property that is the subject of the forfeiture action"); compare 18 U.S.C. §  981(b)(2)(b), 21 U.S.C. § 881(b) (civil forfeiture seizure warrants "pursuant to" and "in the same manner as provided for a search warrant under the Federal Rules of Criminal Procedure").The conservative approach would be to seek criminal forfeiture seizure warrants in the district court for the district in which the property is located. That approach, however, frequently causes logistical and procedural problems, especially when multiple properties to be seized are scattered around the nation in multiple districts. In light of the above analysis, Assistant United States Attorneys seeking seizure warrants for the criminal forfeiture of properties located in districts outside of the district where the indictment is pending are authorized to request such warrants either from the district court that has jurisdiction over the indictment or from the district court in the district where the property is located. When requesting a seizure warrant for the criminal forfeiture of substitute assets located outside of the district where the indictment is pending, Assistant United States Attorneys should consider the applicability of Third, Fifth, Eighth or Ninth Circuit law holding that the pre-trial restraint of substitute assets is not permitted. Because Fed. R. Crim. P. 41(e) provides that a motion for the return of property may be made in the district court for the district in which the property was seized, it is recommended that seizure warrants state that any questions concerning the property which is the subject of warrant should be directed to the United States Attorney's office or the seizing agency in the district where the indictment is pending. As always, when requesting a warrant in one district that is to be executed in another district, it is incumbent on the prosecutor requesting the warrant to advise the United States Attorney and the United States Marshal for the district where the property is located that a seizure in that district is contemplated, and to coordinate the seizure with those offices. [cited in USAM 9-111.250]