9-116.110
Federal Adoption Form
All state and local requests for adoption must be reported on
a form entitled "Request for Adoption of State or Local Seizure."
A copy of this form is in the Criminal
Resource Manual at 2288. The form must be completed by the
requesting state or local agency, but Federal personnel may, in
their discretion, complete the form for the requesting state or
local agency.
Information concerning any state forfeiture proceedings
instituted against the property must be detailed in the request for
adoption. The state or local agency must also complete the Federal
agency's standard federal asset seizure form as part of its
adoption request. All information provided must be complete and
accurate. An estimate of fair market value must be provided for
each item of seized property presented for adoption and any liens
and lienholders must be identified. Copies of any investigative
reports and of any affidavits in support of warrants pertinent to
the seizure shall be attached for review. State or local agencies
may redact from investigative reports information which may
disclose the identity of a confidential informant.
9-116.120
Federal Investigative Agency Review of
Adoption Requests
The adopting federal agency must review and accept or decline
adoption requests promptly. Property management issues must be
addressed in consultation with the U.S. Marshals Service prior to
an adoption. The request for adoption must be accepted prior to the
transfer of the property to federal custody unless exceptional
circumstances exist.
Seizures presented for adoption must be reviewed by an attorney
outside the chain-of-command of operational officials (e.g., the
seizing agency's Office of Chief Counsel or other legal unit)
unless:
- the seizure was based on a judicial seizure warrant;
or
- an arrest was made in connection with the seizure;
or
- drugs or other contraband were seized from the person from
whom the property was seized.
Such attorney review shall verify that:
- the property is subject to federal forfeiture;
- there is probable cause to support the seizure;
- the property is not within the custody of a state court;
and
- there is no legal impediment to a successful forfeiture
action.
For more information on this topic, see the
Criminal Resource Manual at 2263 (Federal
Investigative Agency Review of Adoption Requests),
2264 (Minimum Monetary Thresholds for
Adoption), and 2265 (Forfeitures
Generally Follow The Prosecution).
9-116.150
Judicial Review Favored
Judicial review allows a neutral and detached magistrate to
assess the basis for seizure prior to adoption and protects federal
enforcement personnel against potential civil suits. Pre-seizure
judicial review is not required for adoptive, joint, or federal
seizures, but federal personnel are encouraged to secure judicial
review whenever practicable prior to Federal seizures or the
adoption of a state or local seizure. A judicial determination of
probable cause is required prior to a federal adoption of seized
real property.
9-116.160
30-Day Rule for
Presentation for Federal Adoption
State and local agencies have 30 calendar days from the date of
seizure to request a Federal adoption. Waivers of the 30-day rule
may be approved by the adopting Federal agency where the state or
local agency requesting adoption can demonstrate the existence of
circumstances justifying the delay.
9-116.170
United States Attorney Recommendation
For Adoption of Seizure
A United States Attorney may recommend in writing that a
Federal seizing agency adopt a particular state or local seizure.
If the Federal agency declines to adopt the seizure despite the
recommendation of the United States Attorney, the agency must
promptly document its reasons for declination in a memorandum and
forward copies of the memorandum to the United States Attorney and
the Asset Forfeiture and Money Laundering Section (AFMLS). AFMLS
will resolve any disagreements and may authorize direct adoption of
state or local seizures by United States Attorneys for judicial
forfeiture in appropriate circumstances.
[cited in
USAM 9-119.102]
9-116.180
Notice Requirements in Adopted Seizures
Prior to approval of an adoption, the state or local agency
must not state or imply that a federal agency is the seizing agency
or has any law enforcement interest in the property. Once adoption
is approved, then notice to all interested parties will be executed
by the adopting federal investigative agency pursuant to federal
law and policy.
As applied in the case of adopted seizures, the requirements of
written notice "at the time of seizure" as set out in 21 U.S.C.
§ 888(b) and in the editorial note to 21 U.S.C.
§ 881, are construed to mean at the time of the
federal seizure, i.e., the decision to adopt the seizure for
federal forfeiture. This construction reflects the intent of
Congress and no other interpretation is feasible because seizing
state and local law enforcement agencies cannot know that the
property they seize will be accepted for federal forfeiture until
the appropriate federal officials review the seizure and agree to
adopt it.
Once a decision has been made to adopt the seizure of an item
of property covered by the notice requirements set out at 21 U.S.C.
§ 888(b) or the note to 21 U.S.C. § 881, the
adopting agency must take steps to ensure that the statutory
notices are served in the most expeditious manner practicable. Each
component of the Department should adjust its internal policies and
procedures as necessary to give force to this construction.
9-116.190
Retention of Custody by State or Local
Agency
To minimize storage and management costs to the Department of
Justice, state and local agencies which present motor vehicles for
federal adoption should generally be asked to serve as substitute
custodians of the property pending forfeiture. Any use of such
vehicles, including official use, by state and local law
enforcement officials or others is prohibited by Department of
Justice policy until such time as the forfeiture is completed and
the equitable transfer is made. Adopted cash and real property
must, however, be turned over to the custody of the U.S. Marshals
Service. In addition, the Marshals Service must be consulted prior
to the adoption of a seizure of real property.
9-116.200
Referral of DAG 71/DAG 72 Forms to
United States Attorneys' Offices
Seizing agency field offices will provide a copy of the
Application of Transfer of Federally Forfeited Property (DAG-71)
and the "preliminary" Decision for Transfer of Federally Forfeited
Property (DAG-72) to the pertinent United States Attorney's Office
for all (whatever the value) administrative and judicial
forfeiture actions. The originals of these forms will be
concurrently forwarded to the agency's headquarters decision-maker.
A United States Attorney's Office may choose not to receive the
DAG-71 and/or the preliminary DAG-72 for property appraised at
$100,000 or less. Written notice of this decision should be
forwarded to the seizing agency for its records.
9-116.210
Notifying the Department's Criminal
Division of United States Attorneys' Equitable Sharing
Decisions
Even though United States Attorneys have final decision
authority with respect to equitable sharing in judicial forfeiture
cases involving less than $1 million, the "Application for Transfer
of Federally Forfeited Property" (DAG 71) and "Decision Form for
Transfer of Federally Forfeited Property" (DAG-72), along with
final orders of forfeiture, must be forwarded to the Criminal
Division for processing and record-keeping purposes. Moreover, all
DAG-71s should be filled out completely and all DAG-72s should be
signed by the United States Attorney or an official authorized by
the United States Attorney to sign on his or her behalf. Such
authorizations of persons to sign on behalf of the United States
Attorney should be reduced to writing and a copy supplied to the
Criminal Division. See the Criminal Resource
Manual at 2266.
9-116.310
Equitable
Sharing Check Disbursement in Judicial Forfeitures
In judicial forfeiture cases in which the United States
Attorney or a Departmental official is the decision maker for
equitable transfer, the U.S. Marshal will mail the check to the
United States Attorney's office, attention "Law Enforcement
Coordinating Committee (LECC) Coordinator." If the United States
Attorney makes an equitable sharing decision on a request from a
state or local law enforcement agency from a different judicial
district, the coordinator should contact the United States
Attorney's office in the second district to determine whether or
not that United States Attorney wishes to present the check. See
the Criminal Resource Manual at 2267.
9-116.311
Equitable Sharing Check
Disbursement in Administrative Forfeitures
In administrative forfeiture cases in which the federal
investigative agency makes the equitable sharing decision, the U.S.
Marshal will mail the check to that agency unless otherwise
directed by the local agency head.
9-116.312
Role of Law Enforcement Coordinating
Committees
Pursuant to the Attorney General's Guidelines on Seized and
Forfeited Property, July 1990, (
USAM 9-118.000) the Law
Enforcement Coordinating Committees "shall promote and facilitate
the Department of Justice forfeiture program with federal, state
and local law enforcement agencies." By memorandum dated June 15,
1990, to all United States Attorneys from the Associate Deputy
Attorney General, LECC Coordinators were required to "serve as a
clearinghouse for state and local inquiries about the status of
pending sharing cases."
To perform these functions, the U.S. Marshal shall provide
advance notice to the LECC coordinator of all equitable
sharing payments and transfers to state and local law enforcement
agencies in the judicial district. United States Attorneys' Offices
and seizing agencies should work together to ensure proper
coordination of all equitable sharing activities.
9-116.330
Transmittal Letters for Equitable
Sharing Checks
All federal components shall enclose a transmittal letter which
reiterates the policies governing the use of equitable shares as
set forth in The Attorney General's Guidelines on Seized and
Forfeited Property (July 1990) (
USAM 9-118.000).
It is important to consistently give the same message to the
recipient agencies. The following points should be made:
- The sharing check represents the agency's equitable share
of the net proceeds.
- The monies must be used for the law enforcement purposes
stated in the Application for Transfer of Federally Forfeited
Property (DAG 71).
- These funds must increase and not supplant the agency's
appropriated operating budget.
- Any interest earned on these funds must also be used for
law enforcement purposes.
A sample letter is in the Criminal Resource
Manual at 2289.
9-116.400
International
Sharing of Forfeited Assets
It is the policy of the Department to share, in accordance with
United States law and established procedure, the proceeds of
successful forfeiture actions with the country or countries which
facilitate the forfeiture of assets under United States law.
Commitments to share internationally in specific cases can only be
made with the approval of the Attorney General and the Department
of State. Please advise the Asset Forfeiture and Money Laundering
Section in writing of any foreign assets that have been forfeited
or are about to be forfeited under United States law with the
assistance of a foreign country.
To initiate this process, the investigative agency or
prosecutive office responsible for the forfeiture should send AFMLS
a memorandum detailing the foreign assistance provided and
recommending the amount to be shared. Representatives of foreign
governments should not be asked to submit a sharing request. Unlike
domestic sharing, there is no authority for us to insist that a
foreign country use shared property in any particular manner or
allocate it to any particular governmental component (e.g., a
provincial law enforcement agency). See the
Criminal Resource Manual at 2268.
[cited in
USAM 9-119.107]
9-116.500
Weed and Seed InitiativeTransfers of
Real Property
United States Attorneys, assisted by the United States Marshals
Service, are authorized to identify seized or forfeited properties
for potential transfer in support of the Weed and Seed initiative.
See the Criminal Resource Manual at 2269
and 2270. As properties are forfeited,
appropriate Weed and Seed transfers will be made pursuant to the
policies and procedures set out herein.
The proposed uses of any property to be so transferred must be
in accordance with the Weed and Seed initiative, focusing on the
support of community-based drug abuse treatment, prevention,
education, housing, job skills, and other activities that will
substantially further Weed and Seed goals. United States Attorneys
are encouraged to consult with the Asset Forfeiture and Money
Laundering Section for guidance in particular cases. The property
must also be suited to the proposed use and the use must be
consistent with all applicable federal, state, and local laws and
ordinances.
Any proposed transfer must have the potential for significant
benefits to a particular community and these benefits must outweigh
any financial loss or adverse effects to the Department of Justice
Assets Forfeiture Fund.
[cited in
Criminal Resource Manual 2270]
9-116.520
Transfer
of Forfeited Real Property Pursuant to Weed and Seed
Initiative
All requests for sharing of real property pursuant to the Weed
and Seed Initiative shall be in a Form DAG-71 and must follow the
established sharing procedures as outlined in the Attorney
General's Guidelines on Seized and Forfeited Property (
USAM 9-118.000). The appropriate
official of the seizing federal investigative agency must recommend
the transfer, as well as the United States Attorney in the
particular judicial district where the property is located.
Approval by the Office of the Deputy Attorney General is required
for transfers of forfeited real property.
The participating state or local law enforcement agency, or
other governmental entity permitted by applicable laws to hold
property for the benefit of the law enforcement agency, will
receive the initial transfer of the real property. The state or
local agency will then, pursuant to prior agreement, transfer the
property to the appropriate public or private non-profit
organization for use in support of one of the programs described
above.
The authority of the participating state or local investigative
agency to transfer forfeited real property to other state or local
public agencies may vary from jurisdiction to jurisdiction. In each
case, the issue must be addressed in the submitted DAG-71 prior to
the sharing transfer to the state or local agency.
[cited in
USAM 9-119.121]
9-116.530
Liens, Mortgages, and Third Party
Ownership Interests in Weed and Seed Transferred Real
Property
Mortgages on real property transferred pursuant to the Weed and
Seed initiative are not payable from the Department of Justice
Assets Forfeiture Fund. Liens and mortgages shall be the
responsibility of the recipient state or local community-based
organization.
Any secured debts or other qualified interests owed to
creditors are not payable from the Department of Justice Assets
Forfeiture Fund. The payments of these interests are the
responsibility of the recipient state or local agency or non-profit
organization.
[cited in
Criminal Resource Manual 2269]
9-116.540
Asset Seizure,
Management and Case-Related Expenses
Expenses incurred in connection with the seizure, appraisal, or
security of the property are payable from the Assets Forfeiture
Fund. Case-related expenses incurred in connection with normal
proceedings undertaken to protect the United States' interest in
seized property through forfeiture, are also payable from the
Assets Forfeiture Fund.
[cited in
Criminal Resource Manual 2269]
9-116.550
Law
Enforcement Concurrence
Any state or local law enforcement agency that would otherwise
receive an equitable share of proceeds from the sale of a forfeited
property must voluntarily agree to forego its share before a Weed
and Seed transfer will be authorized.
[cited in
Criminal Resource Manual 2269;
2270]
9-116.600
Transfer of Property Forfeited under the
Magnuson Fisheries Conservation and Management Act from the
Department of Justice to the National Oceanic and Atmospheric
Administration
Under the authorities contained in the Magnuson Fisheries
Conservation and Management Act, (MFCMA) 16 U.S.C. §
1801-1882, the Department of Justice will transfer to the National
Oceanic and Atmospheric Administration (NOAA) funds forfeited by
the Attorney General for violations under the MFCMA. Assets seized
for forfeiture under the MFCMA should be deposited in the Seized
Asset Deposit Fund with the United States Marshals Services (USMS).
Following the forfeiture action, the funds will then be transferred
by the USMS to NOAA. Where expenses have been incurred by the USMS,
these expenses must first be deducted before the net proceeds of
forfeiture are transferred to NOAA. If no expenses are incurred,
the entire amount will be transferred to NOAA.
Any MFCMA forfeitures and requests for transfers occurring
after June 1, 1992, should be identified and processed pursuant to
the procedures in set forth in the Criminal
Resource Manual at 2272. In addition to USMS expenses, the
Department of Justice (DOJ) Assets Forfeiture Fund will retain 10
percent of the total net proceeds of the forfeiture. This amount
represents the Department of Justice share based upon its effort in
forfeiting the property. See the Criminal
Resource Manual at 2271.
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