9-119.100
Forfeiture-related
Approval/Consultation RequirementsAdministrative Forfeiture
60-Day Notice Waiver
In all administrative forfeitures, the notice under 19 U.S.C.
§ 1607 to possessors, owners, and other interested parties,
including lienholders, known at the time of seizure, shall occur no
later than 60 days from the date of seizure. For parties whose
identity is determined after seizure, the written notice shall
occur within 60 days after such determination. Waivers of this
60-day rule may be obtained in writing in exceptional circumstances
from a designated official within the seizing agency. See
Asset Forfeiture Policy Manual (1996), Chapter 2; Asset
Forfeiture Manual, Volume III, Policy Compendium -tab 45;
and USAM 9-112.210.
9-119.102
Adoption Policy Approval/Consultation Procedure
If a Federal agency declines to adopt a 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. See Asset
Forfeiture Policy Manual (1996), Chapter 6; Asset Forfeiture
Manual, Volume III, Policy Compendium - tab 42; and
USAM 9-116.170.
9-119.103
Assets Located in Foreign CountriesApproval/Consultation Procedure
Assistant United States Attorneys shall consult with the Office
of International Affairs (OIA) before filing a civil action based
on 28 U.S.C. § 1355(b)(2). OIA and AFMLS will determine whether
the foreign country where the assets are located can assist in the
U.S. action. See USAM 9-13.526.
9-119.104
Attorney FeesApproval/Consultation Procedure
No criminal or civil forfeiture proceedings may be instituted
to forfeit an asset transferred to an attorney as fees for legal
services without the prior approval of the Assistant Attorney
General, Criminal Division. Requests for approval to forfeit
attorneys' fees should be made to the Asset Forfeiture and Money
Laundering Section (AFMLS).
No formal or informal, written or oral agreements, including
the exemption of certain assets to pay attorneys' fees restrained
as substitute assets, may be made to exempt an asset transferred to
an attorney as fees for legal services from forfeiture without the
prior approval of the Assistant Attorney General, Criminal
Division. All such requests for approval to exempt the attorneys'
fees should be made to AFMLS. See Asset Forfeiture
Manual, Volume III, Policy Compendium - tab 15; Asset
Forfeiture Policy Manual (1996), Chapter 9, section II;
and USAM sections
9-119.202 and
9-119.203.
9-119.105
EAJA Attorneys' Fees and Costs Payment
from the Assets Forfeiture FundApproval/Consultation
Procedure
Payment of costs and attorneys' fees from the Assets Forfeiture
Fund to pay Equal Access to Justice (EAJA) awards arising from
actions related to the forfeiture of property must be approved.
Requests for approval to charge an EAJA award against the Fund or
against Fund allocations must be submitted to the Asset Forfeiture
and Money Laundering Section (AFMLS). See Asset
Forfeiture Policy Manual (1996), Chapter 7; Asset Forfeiture
Manual, Volume III, Policy Compendium - tab 48; and
USAM 9-117.210.
9-119.106
Equitable Sharing Approval/Consultation Procedure
The Deputy Attorney General (or designee) must approve
equitable sharing:
- in cases involving $1 million or more in forfeited assets;
- in multi-district cases; and
- in cases involving real property transfers to a state or
local agency for law enforcement related use.
The United States Attorney may approve equitable sharing in
judicial cases involving less than $1 million in forfeited assets
(including transfer of personal property for official use.)
The seizing agency may approve equitable sharing in
administrative cases involving less than $1 million in forfeited
assets (including transfer of property for official use.)
The Deputy Attorney General (or designee) must approve
allocations from the Assets Forfeiture Fund to program participants
for statutorily designated uses.
Personal approval of the United States Attorney is required for
discontinuance of federal forfeiture action in favor of state
proceedings.
See Attorney General's Guidelines on Seized and
Forfeited Property; Asset Forfeiture Policy Manual
(1996), Chapter 8; Asset Forfeiture Manual, Volume III, Policy
Compendium - tab 10; and
USAM 9-118.000 et seq.
9-119.107
Equitable Sharing in
International CasesApproval/Consultation Procedure
Commitments to share internationally in specific cases may only
be made with the approval of the Attorney General and the Secretary
of State. Prior commitments regarding sharing with foreign
governments should be scrupulously avoided. The request to share
internationally should be made to the Asset Forfeiture and Money
Laundering Section (AFMLS). See Asset Forfeiture Policy
Manual (1996), Chapter 6; Asset Forfeiture Manual, Volume
III, Policy Compendium - tabs 11, 24; and
USAM 9-116.400.
9-119.108
Exceptions to Cash Management PolicyApproval/Consultation Procedure
The Department of Justice Cash Management Policy requires that
all seized cash be deposited promptly into the Seized Asset Deposit
Fund. Cash may be detained only when its retention serves an
essential evidentiary purpose. The United States Attorney may
approve this retention for amounts less than $5,000. The Chief of
the Asset Forfeiture and Money Laundering Section (AFMLS) may grant
exceptions for amounts of $5,000 or more in extraordinary
circumstances. See Asset Forfeiture Policy Manual
(1996), Chapter 1; Asset Forfeiture Manual, Volume III, Policy
Compendium - tab 33; and
USAM 9-111.600.
9-119.109
Expedited Payment of Lienholders in
Forfeiture CasesApproval/Consultation Procedure
The Asset Forfeiture and Money Laundering Section (AFMLS) must
approve in writing any agreement to pay liens and mortgages to a
lienholder prior to forfeiture under the Expedited Forfeiture
Settlement Policy for Mortgage Holders. See Asset
Forfeiture Policy Manual (1996), Chapter 3; Asset Forfeiture
Manual, Volume III, Policy Compendium - tab 44; and
USAM 9-113.800.
9-119.110
Expedited SettlementApproval/Consultation Procedure
The United States Attorney shall within 10 working days report
the denial of a request for expedited settlement made by a
financial institution (as defined in 31 U.S.C. § 5312) in
real property cases to the Asset Forfeiture and Money Laundering
Section (AFMLS). See Expedited Forfeiture Settlement and
Policy for Mortgagees and Lienholders, revised October 1993;
Asset Forfeiture Policy Manual (1996), Chapter 9, Section I,
at page 9-4.
9-119.111
Forfeiture AppealsApproval/Consultation Procedure
Adverse decision memos in any forfeiture shall be sent to the
Appellate Section, Criminal Division, with a copy to the Asset
Forfeiture and Money Laundering Section (AFMLS).
9-119.112
In Forma Pauperis PetitionsApproval/Consultation Procedure
In cases where the seizing agency believes there are clear and
articulable reasons for denial of an In Forma Pauperis petition,
the request for waiver shall be referred to the Asset Forfeiture
and Money Laundering Section (AFMLS) for final determination.
See Asset Forfeiture Policy Manual (1996), Chapter 2;
Asset Forfeiture Manual, Volume III, Policy Compendium - tab
28; and USAM 9-112.220.
9-119.113
Judicial Forfeiture of Property
that is Administratively ForfeitableApproval/Consultation
Procedure
The Asset Forfeiture and Money Laundering Section (AFMLS) must
approve judicial forfeiture of property that would otherwise be
forfeited administratively in cases that are not covered by
the exception for aggregation of seized property or the exception
for compelling prosecutorial considerations. See Asset
Forfeiture Policy Manual (1996), Chapter 2; Asset Forfeiture
Manual, Volume III, Policy Compendium - tab 28; and
USAM 9-112.110.
9-119.114
Official Use of Personal PropertyApproval/Consultation Procedure
The seizing agency head (or designee) may approve placement of
personal property into the agency's own official use or that of
another participating agency, but the Chief, Asset Forfeiture and
Money Laundering Section (AFMLS), must approve the decision if
liens on the property equal $25,000 or one-third of the value,
whichever is greater.
The U.S. Marshals Service must approve the placement of
personal property into official use by non-participating federal
agencies, but the Chief, AFMLS, must approve the decision if:
- the property is $25,000 or more in value; or
- liens on property equal or exceed $25,000 or one third of
the value, whichever is greater.
See The Attorney General's Guidelines on Seized and
Forfeited Property, Asset Forfeiture Policy Manual
(1996), Chapter 8; Asset Forfeiture Manual, Volume III, Policy
Compendium - tab 10; and
USAM 9-118.400.
9-119.115
Official Use of Real PropertyApproval/Consultation Procedure
The Attorney General must approve the placement of real
property into official use by any federal agency. See The
Attorney General's Guidelines on Seized and Forfeited Property,
Asset Forfeiture Policy Manual (1996), Chapter 8; Asset
Forfeiture Manual, Volume III, Policy Compendium - tab 10;
and USAM 9-118.400.
9-119.116
Seizure/Restraint of Ongoing
BusinessApproval/Consultation Procedure
The Money Laundering guidelines require that Assistant United
States Attorneys consult with AFMLS before seeking forfeiture of an
ongoing business on a money laundering facilitation theory. See
USAM 9-105.330.
9-119.117
Settlement Authority (Attorney General
Order 1598-92)Approval/Consultation Procedure
Consultation with the Asset Forfeiture and Money Laundering
Section (AFMLS) is required regarding a proposed settlement if a
civil or criminal forfeiture claim is more than $500,000, unless
the original claim is between $500,000 and $5 million, and the
difference between the original claim and the settlement amount
does not exceed 15 percent of the original claim.
United States Attorneys have authority to independently settle
civil or criminal forfeiture cases:
- involving amounts not exceeding $500,000; and
- involving amounts between $500,000 and $5 million when the
settlement releases not more than 15 percent of the original
claim.
The Deputy Attorney General's approval is required for a
settlement in which the difference between the original claim and
the proposed settlement exceeds $2 million or 15 percent of the
original claim, whichever is greater. See Asset
Forfeiture Policy Manual (1996), Chapter 3; Asset Forfeiture
Manual, Volume III, Policy Compendium - tab 40; and
USAM 9-113.200.
9-119.118
SettlementsUnsecured Partial
PaymentsApproval/Consultation Procedure
Settlements should not provide for unsecured partial payments
except with the approval of AFMLS in consultation with the U.S.
Marshals Service. See Asset Forfeiture Policy Manual
(1996), Chapter 3; Asset Forfeiture Manual, Volume III, Policy
Compendium - tab 55; and
USAM 9-113.107.
9-119.119
Temporary Restraining Orders
Pre-IndictmentApproval/Consultation Procedure
Prior approval of the Asset Forfeiture and Money Laundering
Section (AFMLS) is required to seek a pre-indictment ex parte
application for a temporary restraining order in criminal
forfeiture cases. (Organized Crime and Racketeering Section
independently exercises authority to review restraining orders and
seek the views of AFMLS.) See Asset Forfeiture Policy
Manual (1996), Chapter 2; Asset Forfeiture Manual, Volume
III, Policy Compendium - tab 7; and
USAM 9-112.240.
9-119.120
Warranting TitleApproval/Consultation Procedure
Approval must be sought from the Seized Assets Division,
Marshals Service, to convey title through a general warranty deed
or its equivalent. See Asset Forfeiture Policy Manual
(1996), Chapter 5; Asset Forfeiture Manual, Volume III, Policy
Compendium - tab 34; and
USAM 9-115.421.
9-119.121
Weed and Seed InitiativeApproval/Consultation Procedure
The Deputy Attorney General (or designee) must approve transfer
of real property to a state or local agency for further transfer to
other government agencies or non-profit agencies for use in the
Weed and Seed Program. Requests should be submitted to the Asset
Forfeiture and Money Laundering Section (AFMLS). See
Asset Forfeiture Policy Manual (1996), Chapter 6; Asset
Forfeiture Manual, Volume III, Policy Compendium - tab 38;
and USAM 9-116.520.
9-119.200
Policy Limitations on Application
of Forfeiture Provisions to Attorney Fees
While there are no constitutional or statutory prohibitions to
application of the third party forfeiture provisions to attorneys
fees, the Department recognizes that attorneys, who among all third
parties uniquely may be aware of the possibility of forfeiture, may
not be able to meet the statutory requirements for relief for third
party transferees without hampering their ability to represent
their clients. In particular, requiring an attorney to bear the
burden of proving lack of reasonable cause to believe that an asset
was subject to forfeiture may prevent the free and open exchange of
information between an attorney and a client. The Department
recognizes that the proper exercise of prosecutorial discretion
dictates that this be taken into consideration in applying the
third party forfeiture provisions to attorney fees. See the
Criminal Resource Manual at 2301 through
2303. Accordingly, it is the policy of the
Department that application of the forfeiture provisions to
attorney fees be carefully reviewed and that they be uniformly and
fairly applied.
[cited in
USAM 9-112.240;
USAM 9-113.600]
9-119.202
Division Approval
No civil or criminal forfeiture proceedings may be instituted
to forfeit an asset transferred to an attorney as fees for legal
services without the prior approval of the Assistant Attorney
General, Criminal Division, pursuant to the guidelines set out in
the Criminal Resource Manual: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |