2216

Posting Real Property Without Taking Actual Custody and Control (Continued Occupancy)

Posting Real Property Without Taking Actual Custody and Control (Continued Occupancy) is to be preferred and utilized in every case unless a balancing of the interests weighs in favor of a pre-seizure hearing or exigent circumstances dictate immediate seizure without a pre-seizure hearing. The clerk of the court may issue a warrant of arrest in rem pursuant to Rule C(3) of the Supplemental Rules for Admiralty and Maritime Claims, which is then posted upon the real property by the U.S. Marshal. "Posting" consists of placing a copy of the complaint and the clerk's warrant upon the defendant in rem. In the case of unoccupied land, process consists of tacking the arrest warrant in a visible location on the property. Where a structure is involved, the complaint and arrest warrant is tacked upon the outside of the structure. United States v. TWP 17 R 4, Certain Real Property in Maine, 970 F.2d 984, 986 n.4 (1st Cir. 1992). This process establishes the jurisdiction of the court. A warrant of arrest in rem without a finding of probable cause may be signed by the clerk of the court. The warrant of arrest in rem must contain the word "arrest" on its face so as to meet the requirements of the Admiralty Rules and actually establish the jurisdiction of the court. (Under the Admiralty Rules, initiation of civil forfeitures requires the use of the "Warrant of Arrest In Rem." This document fulfills the purpose that a summons does in ordinary civil actions and should be considered the "process" used to establish the jurisdiction of the court.) Use of the words "arrest" and "seize," however, should be avoided in the section of the warrant containing directions to the U.S. Marshal. (Case law on this subject indicates that for purposes of the Admiralty Rules, the term "arrest" means "seize." See Yokohama Specie Bank v. Wang, 113 F.2d 329 (9th Cir.), cert. denied, 311 U.S. 690, 61 S. Ct. 71, 85 L.Ed. 446 (1940). The warrant should include direction to the U.S. Marshal to "post" the warrant by affixing it to the structure to effect service of process on the defendant in rem; and contain a statement that the property is not being seized or otherwise taken into custody and that the U.S. Marshals Service is not responsible for the care or maintenance of the property during the pendency of the forfeiture action. PRACTICE TIP: Copies of sample warrants of arrest in rem can be found in the Asset Forfeiture Bulletin Board (AFBB) Civil Forms section, Warrant topic. The Asset Forfeiture Bulletin Board (AFBB) is the Department of Justice on-line repository of information on asset forfeiture. It contains, among other things, pleadings, indictments, jury instructions, briefs, newsletters, current case summaries, and policies. For copies of sample pleadings relative to procedures outlined in this policy, contact the AFBB Systems Operator in the Asset Forfeiture and Money Laundering Section, Criminal Division, at (202) 514-1263. A finding of probable cause, or advance ex parte judicial approval is not required. It is recommended, however, that districts continue the practice of obtaining advance ex parte approval where magistrates and judges are willing to make a finding of probable cause in the context of directing the clerk to issue a warrant of arrest in rem for posting. Where state law allows, the simultaneous filing of a complaint and a lis pendens should occur to prevent the transfer or encumbrance of the real property subject to forfeiture. The government must continue to provide all known persons or entities that may have a possessory or ownership interest in, or claim against, the defendant real property with notice of the government's intent to forfeit regardless of whether the property is "seized" or "posted." Service of process, whether by personal service or mail, is still required. The U.S. Marshals Service requires that formal appraisals be obtained for all real properties targeted for forfeiture in civil forfeiture actions. Appraisals must be ordered within 10 days after seizure, or 10 days after posting the warrant of arrest in rem. Entry into the property may be obtained only by permission or writ of entry. (If permission or writ of entry is not obtained, the U.S. Marshal may order an appraisal without an interior inspection of the property.) Forfeiture orders in cases where the property has been "posted" should provide notice to the occupants to vacate the premises by a date certain and include authorization allowing the U.S. Marshals Service to evict the occupants, if necessary. A copy of a forfeiture order containing this type of language can be located in the AFBB Civil Forms Section, Disposition topic. A protective order or an agreement should accompany every civil complaint for forfeiture of real property. This order or agreement should ensure that the property is maintained in the same or better condition as when seized. (This includes, but is not limited to, ordinary and routine maintenance; the procurement of casualty, fire, and liability insurance; the timely payment of any and all mortgage, loan, rent, utilities, tax and/or other obligations; and the continual maintenance of quiet title to the property.) EXAMPLE: The District of Alaska typically applies for a "Writ of Waste." A sample "Writ of Waste" can be found in the AFBB Civil Forms Section, Orders Preserving Property topic. Restraining orders are available prior to seizure but will serve only to secure the property until a hearing can be held. If there is evidence, in a particular case, that an owner is likely to destroy his or her property when advised of the pending action, the government may obtain an ex parte restraining order, or other appropriate relief, upon a proper showing in the district court. A sample restraining order can be found in the AFBB Civil Forms Section, Orders Preserving Property topic. [cited in USAM 9-111.130]