9-14.000 - Procedure for Disposal of Seized Evidence in Closed Criminal Cases

9-14.000 Definitions
9-14.001 Applicability and Exemptions
9-14.002  Presumption Favoring Disposal of Seized Evidence in Closed Criminal Cases
9-14.003 Exceptions to the Presumption
9-14.004 SAC’s Notice of Intent to Commence Seized Evidence Disposal Process
9-14.005 USAO’s Response to Notice Received
9-14.006 SAC’s Decision
9-14.007 USAO’s Right to Appeal
9-14.008 Deputy Attorney General’s Decision
9-14.009 Documentation of Disposed Evidence


9-14.000 - Definitions

In this procedure, “seized evidence disposal process” means actions taken by Department of Justice (“Department”) agencies to return personal property seized as evidence in a criminal case to its lawful owner once its continued retention and use for official purposes is no longer necessary, or to otherwise legally dispose of such evidence. This includes all subsequent actions involving the property taken pursuant to CFR Title 41, Subtitle C, Chapter 128, Part 128-48.001-128-48.503, “Utilization, Donation, or Disposal of Abandoned and Forfeited Personal Property.” 

In 9-14.005 through 9-14.008 “United States Attorney’s Office” (“USAO”) includes all divisions within the Department that prosecute criminal cases.

[added December 2020]


9-14.001 - Applicability and Exemptions

1) This procedure applies:

a) to criminal cases prosecuted by the Department in which evidence was seized and retained by a Department agency and two years have elapsed since the date of the appellate ruling that denied relief under 28 U.S.C. § 2255 for the last charged defendant in the case, or two years have elapsed since the expiration of the limitation period provided in 28 U.S.C. § 2255(f) (1) for all charged defendants in the case; and

b) to evidence seized and retained by Department agencies for criminal investigations in which no indictment was returned and any applicable limitations period has expired for all federal criminal offenses relevant to that investigation.  

2) This procedure does not apply to: 

a) evidence seized in a case in which the punishment imposed was death;

b) classified evidence;

c) biological evidence;

d) derivative electronic evidence;

e) real property;

f) seized evidence otherwise subject to legal forfeiture proceedings;

g) evidence seized, obtained, or retained pursuant to a mutual legal assistance request from a foreign country in a criminal matter;

h) the destruction of controlled substances as set forth in 28 CFR § 50.21 and § 9-100.100 of the Justice Manual; or

i) any other seized evidence not included in provisions 2 (a)-(h) if the Department agency with custody of the evidence and the USAO or other Department division with prosecutorial jurisdiction of the case in which the evidence was seized agree to immediately commence the seized evidence disposal process. If more than one USAO or Department division with prosecutorial jurisdiction investigated, prosecuted, or otherwise assisted with the case, all such offices or divisions must agree to the immediate commencement of the seized evidence disposal process.

j) Any seized evidence related to a civil rights era cold case as defined by Congress in the Emmett Till Unsolved Civil Rights Crime Act of 2007, the Emmett Till Unsolved Civil Rights Crimes Reauthorization Act of 2016, and the Cold Case Records Collection Act of 2018.

[added December 2020]


9-14.002 - Presumption Favoring Disposal of Seized Evidence in Closed Criminal Cases

It is the policy of the Department that there is a presumption favoring the disposal of seized evidence in closed criminal cases and the commencement of the seized evidence disposal process at the expiration of the thirtieth day after notice has been provided as described in 9-14.004.

[added December 2020]


9-14.003 - Exceptions to the Presumption

The presumption favoring the disposal of seized evidence in closed criminal cases and the commencement of the seized evidence disposal process is subject to the following exceptions:

1) Investigative exception:

a) An applicable limitations period has not expired;

b) There is an open investigation relating to one or more uncharged suspects in the same case or a case related to the one in which the evidence was seized; or

c) The continued retention of the evidence is necessary or useful for any investigative purpose or for potential litigation in any court related to an open investigation.

2) Judicial exception:  The evidence is currently subject to a civil or criminal preservation order entered by a court of competent jurisdiction. This exception shall not be used to circumvent the Department policy described in 9-14.002;

3) Legal exception:  Federal law requires that the evidence be retained for a designated period of time that has not fully elapsed;

4) Historical preservation and training or research exception:

a) The evidence has historical value or significance; or

b) The evidence has value or importance for law enforcement training or scientific research.

A speculative possibility of future litigation relating to the case in which the evidence was seized is not a valid exception to the presumption favoring the disposal of seized evidence and the commencement of the seized evidence disposal process.

[added December 2020]


9-14.004 - SAC’s Notice of Intent to Commence Seized Evidence Disposal Process

Before Department agencies may commence the seized evidence disposal process, the Special Agent in Charge (“SAC”) of the field office that seized the evidence must confirm that all relevant criteria described in 9-14.001 have been met. After confirmation is complete, the SAC shall electronically transmit to the Criminal Chief of the USAO or the Section Chief of the Department division with prosecutorial jurisdiction of the case written notice of the agency’s intent to commence the seized evidence disposal process on evidence seized in the case at the expiration of the thirtieth day after which notice was provided. If more than one USAO or Department division with prosecutorial jurisdiction investigated, prosecuted, or otherwise assisted with the case, the SAC shall provide notice to each such office or division.

[added December 2020]


9-14.005 - USAO’s Response to Notice Received

The USAO shall respond to the SAC’s thirty-day notice of intent to commence the seized evidence disposal process in one of the following ways:

1) Before the expiration of the thirty-day period, the USAO may electronically transmit a written response to the SAC concurring with the decision to commence the seized evidence disposal process. USAOs are encouraged to provide SACs with such responses as soon as possible in all cases for which there is no basis for an exception described in 9-14.003; or

2) The USAO may allow the thirty-day period to expire without sending a written response to the SAC, which shall be deemed assent to the SAC’s decision to commence the seized evidence disposal process; or

3) The USAO may, before the expiration of the thirty-day period, determine that an exception described in 9-14.003 applies. In that case, the USAO shall electronically transmit a written response to the SAC requesting retention that:

a) cites any applicable exception; and

b) explains why the exception(s) apply(ies); and

c) explains how continued retention of the evidence will serve the purpose(s) described in the cited exception(s).

Summary assertions that one or more exceptions apply are insufficient.

[added December 2020]


9-14.006 - SAC’s Decision

If the USAO transmits a written response requesting retention pursuant to 9-14.005, the SAC shall consider the cited exception(s) and determine whether the reasons provided in support of the exception(s) are sufficient to justify the continued retention of the evidence. The SAC may grant or deny the request as to one or more items of evidence in a case and not others in that case.

If the SAC grants the USAO’s request to retain evidence, the written decision shall cite the exception(s) provided in 9-14.003 that justify(ies) the decision not to commence the seized evidence disposal process and the continued retention of the evidence.

If the SAC denies the USAO’s request to retain the evidence, the decision shall be in writing and shall explain:

1) that the exception(s) cited by the USAO are not among those described in 9-14.003; or

2) that the USAO has provided summary assertions in support of a valid exception; or

3) that the USAO has provided otherwise insufficient reasons to justify the applicability of a valid exception.

The SAC shall electronically transmit to the USAO the written decision within five days after it is issued.

The seized evidence disposal process shall not commence until fifteen days have elapsed after the SAC has provided the USAO with the decision denying the request.

[added December 2020]


9-14.007 - USAO’s Right to Appeal

The USAO may either accept the SAC’s decision or appeal that decision to the Deputy Attorney General (“DAG”). The DAG, or a designee in the Office of the Deputy Attorney General (“ODAG”) acting on behalf of the DAG, shall consider and decide all appeals from a SAC’s decision to deny a USAO’s request to retain evidence.

A USAO’s appeal of the SAC’s decision to deny its request to retain evidence must be in writing and electronically transmitted to ODAG prior to the expiration of the fifteenth day after the USAO receives the SAC’s written denial of its appeal. The USAO shall concurrently provide an electronic copy of the appeal to the SAC.

A USAO’s appeal of the SAC’s decision must provide specific reasons why the evidence (either as individual items or as a whole) meets one or more of the exceptions described in 9-14.003.

In its appeal, the USAO must:

1) identify any applicable exception;

2) explain why the exception(s) apply(ies) to the evidence in the case; and

3) explain how the continued retention of the evidence will serve the purposes described in the cited exception(s).

Summary assertions that one or more exceptions apply are insufficient.

A speculative possibility of future litigation relating to the case in which the evidence was seized is not a proper basis for an appeal.

The seized evidence disposal process shall not commence until final resolution of the USAO’s appeal of the SAC’s decision.

[added December 2020]


9-14.008 - Deputy Attorney General’s Decision

The DAG may grant or deny an exception as to one or more individual items of evidence in a case and not others in that case.

If the DAG grants the USAO’s appeal, the decision will be in writing and will cite the exceptions provided in 9-14.003 that justify the non-initiation of the seized evidence disposal process and the continued retention of the evidence.

If the DAG denies the USAO’s appeal to retain the evidence, the decision will be in writing and will explain:

1) that the exception(s) cited by the USAO are not among those described in 9-14.003; or

2) that the USAO has provided summary assertions in support of a valid exception; or

3) that the USAO has provided otherwise insufficient reasons to justify the applicability of a valid exception.

If the DAG denies the appeal, the seized evidence disposal process may commence immediately after the DAG’s decision is provided to the USAO and the SAC.

The DAG will electronically transmit the decision to the USAO and the SAC within five days after it is issued.

The DAG’s decision is final. No further appeal is available. However, if, after the DAG grants the USAO’s appeal to retain the evidence, the reasons set forth in the DAG’s written decision for continued retention of the evidence become inapplicable, the SAC may commence the seized evidence disposal process via the notice described in 9-14.004.

[added December 2020]


9-14.009 - Documentation of Disposed Evidence

All evidence subject to the seized evidence disposal process under this procedure must be photographed, copied, recorded, or otherwise documented before it is returned to its owner; or its condition is substantially altered; or it is destroyed.

[added December 2020]

 

Updated December 18, 2020