2242

Consultation with the Seizing Agency Before Settlement or Plea Bargaining in Civil and Criminal Actions to Determine Pending Administrative Forfeitures

There have been instances in which Assistant United States Attorneys (AUSAs) have arranged plea agreements providing for the disposition of administratively forfeitable property without consulting the appropriate seizing agency. There also have been instances in which AUSAs have agreed to return to a defendant property that has already been forfeited administratively. Property that has been administratively forfeited belongs to the government and, therefore, cannot be returned to a defendant or used to pay restitution as part of a plea agreement. Furthermore, a judicial forfeiture action may not be commenced against any property that has administrative forfeiture potential pursuant to 19 U.S.C. §§ 1607, 1609, unless it falls within one of the three exceptions identified in USAM 9-112.110, Administrative Forfeiture Policy. If an AUSA intends to pursue one of these exceptions, before doing so the seizing agency must be consulted to ensure that the agency has not already commenced an administrative forfeiture proceeding against the property. A number of courts have held that the commencement of an administrative forfeiture action divests district courts of jurisdiction over forfeiture proceedings, unless a claim and cost bond are filed under the statutory scheme created by Congress in the customs laws. See United States v. One 1987 Jeep Wrangler, 972 F.2d 472 (2d Cir. 1992); Onwubiko v. United States, 969 F.2d 1392 (2d Cir. 1992). Recently, a court found that Congress precluded the possibility of concurrent jurisdiction over civil forfeitures in a district court and a seizing agency. Linarez v. United States Department of Justice, 2 F.3d 208, 211 (7th Cir. 1993). Administrative forfeitures commence upon notice by publication of the government's intent to forfeit.More specifically, the AUSA handling the forfeiture must notify the seizing agency's contact of his/her intent to file a judicial forfeiture against the property so the seizing agency can stop the administrative process if in fact it is in progress. If the administrative forfeiture is completed, then it is not subject to judicial forfeiture. A completed administrative forfeiture is not waivable. The exceptions in USAM 9-112.110 should be explored prior to the commencement of the administrative forfeiture process. [cited in USAM 9-113.103]