9-112.110
Administrative Forfeiture Policy
Properties subject to administrative forfeiture must be
forfeited administratively, unless one or more of three exceptions
applies. The three exceptions are:
- where several items of personalty are subject to civil
forfeiture under the same statutory authority, on the same factual
basis, have a common owner, and have a combined appraised value in
excess of $500,000, they shall all be forfeited judicially.
Monetary instruments as defined by 31 U.S.C. § 5312(a)
(3) and Part 103 of Title 31, C.F.R., hauling conveyances or
seizures of personalty that occur over a period of weeks are not
subject to this aggregation policy;
- prosecutive considerations dictate the criminal forfeiture
of the property as part of a criminal prosecution;
- the Department's Criminal Division has expressly
authorized judicial forfeiture based upon exceptional
circumstances. See the Criminal Resource
Manual at 2232.
[cited in
USAM 9-119.113;
Criminal Resource Manual 2242]
9-112.120
Administrative Forfeiture of Bank Accounts
|
Bank accounts are not "monetary instruments" and therefore may
not be administratively forfeited pursuant to 19 U.S.C.
§ 1607(a)(4). However, bank accounts of a value of
$500,000 or less may be administratively forfeited pursuant to 19
U.S.C. § 1607(a)(1). See the
Criminal Resource Manual at 2233.
9-112.130
Judicial Forfeiture of Real
Property
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All forfeitures of real property or interests therein shall be
conducted judicially. See the Criminal
Resource Manual at 2208.
9-112.210
Sixty-Day Notice Period in All Administrative Forfeiture
Cases
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It is the policy of the Department of Justice that the "written
notice" under 19 U.S.C. § 1607 to possessors, owners, and
other interested parties, including lienholders, known at the time
of seizure, shall occur not later than 60 days from the date of
seizure. For interested parties determined after seizure, the
"written notice" shall occur within 60 days after reasonably
determining ownership or interest. Waivers of this notice may be
obtained in writing in exceptional circumstances from a designated
official within the seizing agency. If a waiver is granted, the
waiver must set forth the exceptional circumstances and be included
in the administrative forfeiture case file. Where a reasonable
effort of notice has not been made within the 60-day period and no
waiver has been obtained, the seized property must be returned and
the forfeiture proceeding terminated. (This policy does not change
the existing policy that the phrase "date of seizure" for adoptive
seizures means at the time of federal seizure.) See the
Criminal Resource Manual at 2234.
[cited in
USAM 9-119.100]
9-112.220
Procedures for In Forma Pauperis
Petitions
The following procedural steps will apply when considering IFP
petitions to seizing agencies processing administrative
forfeitures:
- All agencies shall provide express reference in the
seizure notice to the owner's right to contest the forfeiture by
either posting a claim and cost bond or petitioning for a waiver in
the event he/she is indigent. All parties claiming indigent status
must be provided with the IFP request form and
instructions.
- All parties claiming indigent status must establish that
they are unable to post the required bond for reasons of financial
hardship and must do so in a sworn affidavit under oath that is
submitted to the seizing agency. The format for this affidavit is
Form 4 of the Federal Rules of Appellate Procedure.
- All cases involving claimants who establish, in the sworn
affidavit of indigence submitted to the seizing agency, that they
are unable to post the required bond will immediately be referred
to the United States Attorney for judicial action.
- In cases where the seizing agency believes there are clear
and articulable reasons for denial of the IFP petition, the request
for waiver shall be referred to AFMLS for final determination.
- If the IFP petition is denied, the seizing agency shall
inform the claimant that he/she may seek judicial review of the
denial of the bond waiver request. The seizing agency shall inform
the claimant that it will postpone the administrative declaration
of forfeiture for 20 days in order to give claimant time to
institute such a challenge if desired.
- In cases where a false IFP petition has been submitted to
the agency resulting in the United States Attorney proceeding with
judicial forfeiture in reliance upon the false information,
prosecutions under 18 U.S.C. §§ 1001 and 1621 should
be considered. See the Criminal Resource
Manual at 2235.
[cited in
USAM 9-119.112]
9-112.230
Exemption of Certain Assets from Pre-trial Restraint of Substitute
Assets
|
To be consistent with the Department's position on proposed
legislation, the United States Attorneys should adhere to the
following policy: where orders restraining substitute assets are
permitted and entered, United States Attorneys should agree to
allow the exemption from such orders of those legitimate assets
that are needed to pay attorneys' fees, necessary living expenses,
and the expenses of maintaining restrained assets. See the
Criminal Resource Manual at 2236.
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 USAM
9-119.200 et seq. for the Department's policy regarding
forfeiture of attorneys' fees.
9-112.320
Cost Bond Procedures
|
Upon receipt of the cost bond from the seizing agency, the
United States Attorney shall forward the bond to the U.S. Marshal.
(United States Attorneys usually will receive cost bonds from the
seizing agencies after the agency has determined that the claim and
the bond are in proper form. See, e.g., 21 C.F.R.
§ 1316.76(a), 28 C.F.R. § 8.8(b). However,
United States Attorneys usually will not receive cost bonds from
the U.S. Customs Service because it is the general policy of the
Customs Service to place the cost bond in a Customs Service
suspense account pending resolution of the claim.) The U.S. Marshal
shall hold the bond in the Seized Asset Deposit Fund pending
resolution of the claim for which the cost bond was filed.
If any of the property for which the cost bond was filed
is judicially forfeited:
- judgment for allowed costs should be included in the
judgment of forfeiture or sought by separate motion and
order;
- the costs allowed should be recovered from the amount of
the cost bond; and
- the amount remaining, if any, after the deduction of
allowed costs should be returned.
In the settlement of judicial forfeiture cases, the United States
Attorney shall retain the authority to waive the costs incurred in
the case and return the bond.
If none of the property for which the cost bond was
filed is forfeited, the cost bond, or the entire amount deposited
as the cost bond, should be returned to the claimant when the
property is returned.
9-112.330
Administrative Forfeiture by Settlement Agreement After a Cost Bond
has been Filed
|
When a claim and a cost bond have been filed and the claim is
withdrawn pursuant to a settlement agreement, the Department's
policy regarding the disposition of the cost bond is as follows.
If allowable costs have not been incurred: the
settlement agreement should provide for return of the cost bond, or
the entire amount deposited as the cost bond; and the cost bond, or
the entire amount deposited as the cost bond, should be returned to
the claimant pursuant to the settlement agreement.
If allowable costs have been incurred: the settlement
agreement should provide for return of the amount of the cost bond
remaining, if any, after deduction of an agreed upon sum specified
as allowable costs; the agreed allowable costs should be recovered
from the cost bond; and the bond amount remaining, if any, after
deduction of agreed costs should be returned pursuant to the
settlement agreement. See the USAM
9-113.310, for a discussion regarding the Administrative
Forfeiture in Settlement of Civil Judicial Forfeitures Stemming
From Administrative Actions (policy concerning requirement that a
forfeiture that proceeds administratively pursuant to written
settlement agreement include specific reference to the withdrawal
of the claim and the disposition of the cost bond).
All final orders of forfeiture in judicial cases following an
administrative seizure and referral must contain a provision for
the disposition of the cost bond in accordance with the policies
outlined above. Failure to include such a provision may prohibit
the United States from applying the cost bond to cover case-related
expenses and may result in the return of the cost bond to the
claimant by the United States Marshals Service.
Further information on cost bonds is available in the
Criminal Resource Manual at 2237
(Disposition of Cost Bonds), 2238 (Costs
Chargeable Against Cost Bond), and 2239
(Cost Bond Disposition Generally and in U.S. Customs Service
Cases).
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