|9-112.110||Administrative Forfeiture Policy|
|9-112.120||Interplay of Administrative Forfeiture and Criminal Forfeiture|
|9-112.130||Requesting the Seizing Agency to Suspend the Administrative Forfeiture|
|9-112.140||Conversion of Administrative Forfeitures Covered by the Customs Carve-Out in CAFRA to Judicial Forfeitures|
|9-112.150||Seizure Pursuant to a Criminal Warrant: Availability of Administrative Forfeiture|
|9-112.160||Motions for Reconsideration in Criminal Forfeiture Cases|
|9-112.170||Preference for Federal Forfeiture|
|9-112.210||Sixty-Day Notice Period in All Administrative Forfeiture Cases|
|9-112.220||Policy on the Deadline for Filing a Civil Forfeiture Action in Cases that do not Begin as Administrative Forfeiture Proceedings|
|9-112.230||Preservation Policy for Civil Forfeiture|
|9-112.240||Prior Approval Requirements|
9-112.110 - Administrative Forfeiture Policy
Properties subject to administrative forfeiture must be forfeited administratively, unless one of the following exceptions applies:
- Where several items of personal property (other than monetary instruments) are subject to civil forfeiture under the same statutory authority, and on the same factual basis, and they have a common owner, and have a combined appraised value in excess of $500,000, the property should be forfeited judicially in a single action.
- Where the items subject to forfeiture include some that can be forfeited administratively and others that must be forfeited judicially, the forfeitures may be combined in a single judicial action.
- When pursuing administrative forfeiture might create the appearance that the Government is circumventing the time limits on administrative forfeiture set forth in 18 U.S.C. § 983(a), the forfeiture should be done judicially.
- When the United States Attorney and the seizing agency agree that the forfeiture should proceed judicially in the first instance.
- When the United States Attorney requests that the seizing agency suspend the administrative forfeiture to allow the forfeiture to be handled criminally, and the seizing agency agrees to do so, the forfeiture may be pursued exclusively as part of the criminal case.
See Chapter 2 of the Asset Forfeiture Policy Manual ("Interplay of Administrative Forfeiture and Civil Forfeiture").
[updated May 2010] [cited in JM 9-2.400]
9-112.120 - Interplay of Administrative Forfeiture and Criminal Forfeiture
The seizing agency should commence administrative forfeiture proceedings against seized property by sending notice to potential claimants. Simultaneously, the U.S. Attorney should ask the grand jury to include a forfeiture allegation against the same property in a criminal indictment. This is the proper procedure. If there is no claim in the administrative forfeiture proceeding, the property will automatically be forfeited. In cases where no claim is filed and the property is forfeited administratively, however, it is necessary to strike the forfeiture allegation from the indictment to avoid a situation in which the court, the defendant, or the jury is confused by the procedure and mistakenly believes that the Government abandoned the administrative forfeiture once the indictment was returned, and intended to proceed with the criminal forfeiture alone. Accordingly, in cases where administrative and criminal forfeiture proceedings are instituted simultaneously, and no one files a claim in the administrative proceeding, the agency should complete the administrative forfeiture, and the AUSA handling the criminal case should file a motion reporting the completed forfeiture and therefore striking the forfeiture from the indictment. See Chapter 2 of the Asset Forfeiture Policy Manual ("Interplay of Administrative Forfeiture and Criminal Forfeiture").
9-112.130 - Requesting the Seizing Agency to Suspend the Administrative Forfeiture
In an extraordinary case, the U.S. Attorney may have a reason why the case should not be handled administratively and may ask the seizing agency to suspend the administrative forfeiture in favor of criminal forfeiture. Seizing agencies will generally comply with that request, but the U.S. Attorney may then have to take steps to ensure that the 60-day deadline for commencing an administrative forfeiture proceeding under section 983(a)(1)(A) is not violated. See section 983(a)(1)(A)(iii) (no notice of administrative forfeiture is required if, before the 60-day period expires, a grand jury returns an indictment naming the property, and the Government takes steps to preserve its right to maintain custody of the property under the criminal forfeiture laws). See Chapter 2 of the Asset Forfeiture Policy Manual ("Requesting the Seizing Agency to Suspend the Administrative Forfeiture").
9-112.140 - Conversion of Administrative Forfeitures Covered by the Customs Carve-Out in CAFRA to Judicial Forfeitures
There are times when an administrative forfeiture is commenced under Title 19, but the ensuing judicial forfeiture is brought under another statute. Title 19 forfeitures are exempt from the provisions of CAFRA, whereas most other forfeitures are not. The reforms enacted by CAFRA are applicable to all civil forfeitures taken under any provision of federal law except for those specifically exempted by 18 U.S.C. § 983(i). Forfeitures to which the provisions of CAFRA are not applicable include, inter alia, forfeitures under Title 19 that are enforced by Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) (formerly components of the U.S. Customs Service). In instances where CBP (on its own, or on behalf of ICE) commences an administrative forfeiture action under Title 19 and the U.S. Attorney subsequently files a civil judicial forfeiture action under a non-Title 19 statute, the U.S. Attorney should comply with all CAFRA deadlines, including the 90-day filing deadline under section 983(a)(3), and CBP should return the cost bond. For additional information on this topic see Chapter 2 of the Asset Forfeiture Policy Manual ("Conversion of administrative forfeitures covered by the Customs carve-out to judicial forfeitures covered by CAFRA").
9-112.150 - Seizure Pursuant to a Criminal Warrant: Availability of Administrative Forfeiture
A seizing agency may commence a forfeiture proceeding as a criminal forfeiture (i.e., by seizing the property with a criminal seizure warrant under section 853(f)) and subsequently convert the proceeding to an administrative one without reseizing the property or taking some other action under the civil forfeiture statutes. Except in extraordinary circumstances, if the Government desires to commence administrative forfeiture proceedings against property seized pursuant to a criminal seizure warrant, it should do so within 60 days of the seizure. If the 60-day deadline has passed, and the Government still desires to pursue the forfeiture civilly instead of criminally, the case should be referred to the U.S. Attorney to commence a civil judicial proceeding. For additional information on this topic see Chapter 2 of the Asset Forfeiture Policy Manual ("Seizure Pursuant to a Criminal Warrant: Availability of Administrative Forfeiture").
[new May 2010]
9-112.160 - Motions for Reconsideration in Criminal Forfeiture Cases
When the order of forfeiture in a criminal case contains a legal or factual error, the Government may file a motion for reconsideration. If the order was entered prior to sentencing, as contemplated by Rule 32.2(b)(2), Federal Rules of Criminal Procedure, the filing of the motion for reconsideration is straightforward. If the order is not entered until sentencing, however, the opportunity to move to correct the order may be quite limited. That is because the filing of a motion for reconsideration in a criminal case may not suspend the time for filing an appeal under Appellate Rule 4(b), and because, in any event, the only vehicle for correcting an order of forfeiture once it becomes part of the sentence may be Rule 35(a), which requires that the motion be made, and the relief be granted, within 7 days of the sentence.
Accordingly, prosecutors should always ask the court to issue a preliminary order of forfeiture as soon as possible in accordance with Rule 32.2(b)(2) so that there is ample opportunity to correct the order before it becomes final at sentencing. Prosecutors should not assume that a motion for reconsideration filed after the sentence will suspend the time for appeal.
The Department's policy is to assume that Rule 35(a) applies. Accordingly, until this issue is resolved by the courts or by Congress, in a criminal case in which the order of forfeiture is not entered until sentencing, a prosecutor who files a motion for reconsideration of the order should file the motion, and urge the court to rule on it, within 7 days of the sentence. In addition, the AUSA should not assume that the filing of the motion will extend the time for filing an appeal, but should instead file the notice of appeal before the 30th day under App. Rule 4(b)(1)(B) regardless of the status of a pending motion for reconsideration. As a courtesy to the district court, the prosecutor may want to advise the court of the Government's policy on this matter so that the court understands the reasons why the Government may feel compelled to file its notice of appeal—which divests the district court of jurisdiction—even though the court may have scheduled a hearing on the Government's motion.
In all cases, however, the interests of justice would be better served if the court were to enter a preliminary order of forfeiture as soon as possible after the entry of a verdict or the acceptance of a guilty plea so that the court would have a full opportunity prior to sentencing to correct any legal or factual error. A motion for reconsideration would always be appropriate if filed after the order is entered but prior to sentencing. If that practice is followed, much unnecessary litigation over the scope of Rule 35(a), and many unnecessary appeals, may be avoided.
Because the law regarding the application of Rule 35(a) and App. Rule 4(b)(5) to motions to reconsider orders of forfeiture in criminal cases is unclear, AUSAs should act conservatively to protect the Government's right to appeal from the forfeiture portion of a criminal sentence. Until the law on this issue becomes more clear, prosecutors should assume that any motion for reconsideration of a criminal forfeiture order should be filed and ruled upon within 7 days of sentencing in accordance with Rule 35(a), and that the filing of the motion will not suspend the time for filing an appeal under App. Rule 4(b)(1)(B). In all cases, the Government should urge the district court to comply with Rule 32.2(b)(2) in issuing a preliminary order of forfeiture as soon as possible after the entry of a verdict or the acceptance of a guilty plea so that there is ample time to correct the order prior to sentencing. For additional information on this topic see Chapter 2 of the Asset Forfeiture Policy Manual ("Filing a Motion for Reconsideration in a Criminal Forfeiture Case").
9-112.170 - Preference for Federal Forfeiture
As a general rule, if property is seized as part of an ongoing federal criminal investigation and the criminal defendants are being prosecuted in federal court—or it is anticipated that a federal prosecution will be pursued—the forfeiture action should be commenced administratively by a federal agency or pursued in federal court regardless of whether a local, state, or federal agency made the seizure. Forfeitures should follow the prosecution for both legal and practical reasons. Parallel state forfeitures can jeopardize the pending federal criminal investigation or prosecution and create unnecessary confusion. Where federal resources are expended on an investigation and state and local law enforcement are assisting in a federal prosecution, federal forfeiture, administrative or judicial, should be pursued absent extraordinary circumstances. The efforts of state and local law enforcement should be recognized through formal equitable sharing rather than a division of assets between state and federal forfeiture.
However, certain circumstances may make state forfeiture appropriate. These circumstances include but are not limited to the following:
(1) a state forfeiture is commenced on the seized asset before the federal agency joins the investigation and has either been concluded or substantial litigation has been conducted;
(2) an existing memorandum of understanding sets forth a different procedure for the handling of the seizures and forfeitures;
(3) the asset was seized by a state or local agency and state law requires a turnover order. A decision not to seek the turnover order must be coordinated with agency counsel and the federal prosecuting official; if an adverse order is entered by the state court, agency counsel, the federal prosecuting official, and the local prosecuting attorney must participate in deciding how to proceed;
(4) the seized asset does not meet the Department of Justice's minimum monetary thresholds; or
(5) the pertinent federal prosecuting official has reviewed the case, declined to initiate forfeiture proceedings, and approved a referral for state forfeiture.
When a federal agency believes a state forfeiture is appropriate, the referral of an asset for state forfeiture must be discussed with agency counsel and the federal prosecuting official responsible for asset forfeiture.
A federal prosecuting official may decline a prosecution if significant assets have been referred for state prosecution after a determination to seek federal prosecution was made and without the prior consultation discussed above.
If there is a state forfeiture related to a federal criminal prosecution, federal equitable sharing requests and decisions must take into account the entire case, and seizures should be reviewed before equitable sharing recommendations or decisions are made. See Chapter 2 of the Asset Forfeiture Policy Manual ("Preference for Federal Forfeiture").
9-112.210 - Sixty-Day Notice Period in All Administrative Forfeiture Cases
Section 983(a)(1) requires that written notice of an administrative forfeiture action be sent to interested parties as soon as practicable but no later than 60 days after the date of the seizure. For interested parties determined after seizure, the written notice shall occur within 60 days after reasonably determining ownership or interest. See section 983(a)(1)(A)(v). Waivers of this notice deadline may be obtained in writing in exceptional circumstances from a designated official within the seizing agency. See section 983(a)(1)(B). The exceptional circumstances are those set forth in section 983(a)(1)(D).
If a waiver is granted, it must set forth the exceptional circumstances and be included in the administrative forfeiture case file. A waiver issued under this provision, however, is valid for no more than 30 days. If additional time is required, the waiver must be extended by a judicial officer pursuant to section 983(a)(1)(c).
If a seizing agency discovers that it has inadvertently failed to comply with a deadline for sending notice of the administrative forfeiture of property in a case where such deadlines apply, and the person from whom the property was seized has not waived the 60-day deadline, no further action may be taken to forfeit the property administratively based on the offense giving rise to the original seizure, and the property must be returned to the person from whom it was seized in accordance with section 983(a)(1)(F), unless the return of the property would be unlawful, or unless the Government, as soon as may be practicable, commences a judicial forfeiture proceeding by (1) naming the property in a criminal indictment or information and obtaining a judicial order pursuant to section 853(e) or (f) allowing it to hold the property; or (2) filing a civil judicial forfeiture action and retaining lawful possession of the property pursuant to an arrest warrant in rem. See Chapter 2 of the Asset Forfeiture Policy Manual ("Sixty-Day Notice Period in All Administrative Forfeiture Cases").
[updated May 2010] [cited in JM 9-119.010]
9-112.220 - Policy on the Deadline for Filing a Civil Forfeiture Action in Cases that do not Begin as Administrative Forfeiture Proceedings
In cases where administrative forfeiture is possible under 19 U.S.C. section 1607, but the Government has elected for whatever reason to by-pass the administrative forfeiture process, the U.S. Attorney should file a civil or criminal action for the forfeiture of the property within 150 days of the seizure of the property. This reflects the total time that the Government would have had to commence such an action if the Government had chosen to proceed in the normal way: 60 days for the commencement of a administrative forfeiture proceeding plus 90 days to file a civil forfeiture complaint or to include the property in a criminal indictment. By following this policy, the prosecutor will thus deflect any concern that the Government by-passed the administrative forfeiture process to circumvent the CAFRA deadlines.
This policy applies only in cases where the U.S. Attorney, in consultation with the seizing agency, affirmatively decided at the outset of a case that the forfeiture of the seized property would be done judicially in the first instance. It does not apply to cases where the seizure should have been handled as a routine administrative forfeiture to which the 60 or 90-day deadlines in section 983(a)(1)(A) apply, but where the notice was not sent due to inadvertence or error. The policy regarding the handling of forfeitures in that situation is set forth in 9-112.210.
In cases where administrative forfeiture is barred by section 1607, it is not necessary to establish a fixed deadline for commencing a judicial forfeiture action based on the date of the seizure. Congress set no deadline in this instance, and it is not necessary for the Government to adopt one. But the Government should not be free to ignore indefinitely a request made by a potential claimant for the release of his property or for the commencement of formal judicial proceedings. Accordingly, in a case where the U.S. Attorney receives a such a request in writing, the prosecutor should treat the request as if it were a "claim" referred to in section 983(a)(3)(A), and should thus commence a judicial forfeiture action within 90 days of the receipt of the request.
Nothing in this policy should be interpreted to allow a potential claimant to shorten the deadline for commencing an administrative forfeiture in a case where administrative forfeiture is authorized. In all events, in such cases the seizing agency will have 60 days (or 90 days in the case of adoptive forfeitures) to determine whether or not to proceed with the forfeiture proceeding. For additional information on this topic, see Chapter 2 of the Asset Forfeiture Policy Manual ("Policy on the Deadline for Filing a Civil Forfeiture Action in Cases that do not Begin as Administrative Forfeiture Proceedings").
9-112.230 - Preservation Policy for Civil Forfeiture
The timing and scope of litigation holds can present complex issues. When an Assistant United States Attorney assigned to a case reasonably anticipates civil forfeiture litigation, the AUSA should consult Chapter 11, Section VII of the Asset Forfeiture Policy Manual for detailed guidance on preservation of potentially relevant evidence. Failure to comply with a duty to preserve when required by law may result in court-imposed sanctions or other adverse consequences.
9-112.240 - Prior Approval Requirements
Prior approval of the Criminal Division is required for the forfeiture of attorneys' fees and preindictment ex parte applications for Temporary Restraining Orders in criminal forfeiture cases. See JM 9-119.010 and JM Chapter 9-120.000 for the Department's policy regarding forfeiture of attorneys' fees.