9-117.100
Transfer of Funds From the Seized
Asset Deposit Fund to the Assets Forfeiture Fund
The United States Attorney's Office securing a forfeiture is
responsible for initiating transfers from the Seized Asset Deposit
Fund to the Assets Forfeiture Fund and should provide prompt
notification to the United States Marshals Service (USMS) of the
events which should lead to a transfer from the Seized Asset
Deposit Fund.
In the case of either a consent judgment or a default judgment,
the USMS will immediately transfer the forfeited cash to the Assets
Forfeiture Fund, unless the United States Attorney determines that
execution of the judgment should be delayed.
In the case of a judgment after trial or upon summary judgment,
there is an automatic stay of execution of the judgment of 10
working days. If the United States Attorney's Office indicates that
no motions or requests for additional stays have been filed, then
the forfeited cash will be transferred to the Assets Forfeiture
Fund on the eleventh working day following a summary judgment or a
judgment after trial.
9-117.200
Payment of
Costs and Attorneys' Fees From the Assets Forfeiture
FundLimited Authority
Notwithstanding the legal availability of the Assets Forfeiture
Fund for EAJA awards, see the Criminal
Resource Manual at 2273, the Department limits by policy the
cases in which Fund monies may be used for such awards. The
Congress enacted the EAJA for specific public policy reasons. It
would be inappropriate for the Fund to be used in a manner that
completely ignored or negated the public policy basis for the EAJA.
In an attempt to balance the competing interests involved, the
following three tier policy is established:
- The Assets Forfeiture Fund will fund the EAJA award in any
case in which the actions of the Federal participants were clearly
consistent with current law and Department policy. This includes
those cases in which:
- The Asset Forfeiture and Money Laundering Section (AFMLS),
Criminal Division, is involved in planning a specific case or
program initiative and the participating agency was executing the
planned initiative in good faith;
- The Federal participants were executing their
responsibilities in consonance with current law and Department
policy but the court creates a novel reason or basis for
overturning a case that could not be anticipated;
- Similar "no fault" cases. Once approved, the EAJA awards
in these cases will be paid by the Fund against the case related
expenses category;
- The Assets Forfeiture Fund allocations of the federal
participant will be available to fund awards where the agency
personnel were acting in good faith but it is not clear that their
actions were consistent with existing law and Department policy.
Once approved, the funds are to be taken from the case related
expenses category. If there are insufficient funds available to
cover the award, then the shortfall may be made up by funds
available for other categories of expense. A request for
reallocation will be approved for this purpose. Total allocations
will not be increased to make up for the payment of the award;
and
- In any case in which the court finds bad faith or an
intentional disregard for existing law or Department policy by the
federal participants, the Assets Forfeiture Fund will not be
available, either directly or indirectly, to fund the EAJA
award.
9-117.210
Payment of Costs
and Attorneys' Fees From the Assets Forfeiture FundProcedure
No EAJA award may be charged against the Assets Forfeiture Fund
or the Federal participant's Fund allocations without the express
written approval of the Asset Forfeiture and Money Laundering
Section (AFMLS). Requests for approval to charge an EAJA award
against the Fund or against Fund allocations must be submitted to
AFMLS in writing. See the Criminal Resource
Manual at 2274.
If the government has contested the case and incurred an
adverse judgment, a copy of the court order should be provided to
all involved agencies immediately to permit their participation in
preparation of the request package. The request should be forwarded
by the United States Attorney's Office to AFMLS by express mail
within 5 business days of the court order. The request should
include, as appropriate:
- a copy of the court order indicating that the award is
being made under 28 U.S.C. § 2412(d) or that the
government's position was not substantially justified;
- a copy of the seizure warrant and associated affidavit or
a copy of the probable cause statement supporting the seizure, if
the seizure was cited as a basis for the award;
- a copy of any pleadings or answers or a description of any
litigative position that was cited as a basis for the
award;
- a description of any governmental action not referenced
above that was cited as a basis for the award; a description of any
extenuating factors affecting the seizing agency and the United
States Attorney's Office that should be considered;
- a list of the agencies involved in the case; and
- a joint proposal for allocation of responsibility for the
EAJA award among the involved agencies.
If the United States Attorney's Office is proposing to settle
an EAJA claim, the materials cited in items (2) through (7) above
should be provided to AFMLS in advance of agreeing to any
settlement. This policy is in addition to any other policies
governing settlements.
Proposed court orders drafted by the government should be
silent as to the source of funds for paying any award. The
identification of appropriate sources of funding to pay court
judgments is an Executive Branch function and may vary from case to
case depending on the facts of the particular case. See also the
Criminal Resource Manual at 2275 and
2276.
[cited in
USAM 9-119.105]
9-117.300
Disposition
of ADP Equipment Purchased with Assets Forfeiture Fund
Allocations
ADP equipment purchased with Assets Forfeiture Fund monies
shall retain any statutory conditions or limitations on its use
until:
- The equipment fails or suffers serious performance
degradation and it is economically impractical to invest in
equipment repair; or
- The equipment is rendered functionally obsolete for
forfeiture program purposes of the using office, and
- No other agency participating in the Assets Forfeiture
Fund within a reasonable radius can use the equipment for
forfeiture program purposes, and
- The Asset Forfeiture and Money Laundering Section is
provided 30 days written notice of the intent to redirect the
equipment out of the asset forfeiture program with a brief
explanation of the attendant circumstances.
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