9-118.010
I. Statement of Goals and
Purposes
The Department of Justice asset forfeiture program has three
primary goals: (1) to punish and deter criminal activity by
depriving criminals of property used or acquired through illegal
activities; (2) to enhance cooperation among foreign, federal,
state and local law enforcement agencies through the equitable
sharing of assets recovered through this program; and, as a
by-product, (3) to produce revenues to enhance forfeitures and
strengthen law enforcement.
To meet these goals it is essential that the program be
administered in a fiscally responsible manner which will minimize
the costs incurred by the United States while maximizing the impact
on criminal enterprises. Moreover, the integrity of the entire
forfeiture program depends upon the faithful stewardship of
forfeited property and the proceeds thereof.
The Law Enforcement Coordinating Committees shall promote and
facilitate the Department of Justice forfeiture program with
federal, state and local law enforcement agencies.
These Guidelines are not intended to create or confer any
rights, privileges or benefits on prospective or actual claimants,
defendants or petitioners. Likewise, they are not intended to have
the force of law. See, United States v. Caceres, 440 U.S.
741 (1979).
9-118.200
II.
Definitions
- Adoptive Seizure refers to the federal adoption and
forfeiture of property seized exclusively through the efforts of
state or local agencies. Investigative bureaus empowered by statute
or regulation may adopt such seized property for forfeiture where
the conduct giving rise to the seizure is in violation of federal
law. Forfeitures of seized property accepted in this manner have
the same effect as if the property had originally been seized by
the investigative bureau.
- Appraised Value means the estimated fair market value at the
time of seizure of the same or similar property. For vehicles, this
will generally mean the average wholesale value in the N.A.D.A.
Appraisal Guides. For personal property, this will generally mean
estimated fair market value. For real property, businesses and
certain personal property, the value shall be determined by experts
qualified to make such determinations.
- Cash means currency, negotiable instruments or securities.
- Department component refers to agencies, divisions, offices,
sections or units of the Department of Justice.
- District refers to the federal judicial district.
- The Fund refers to the Department of Justice Assets Forfeiture
Fund as established by 28 U.S.C. § 524(c)(1).
- Investigative bureau refers to Department of Justice agencies
authorized by federal statute to investigate and enforce forfeiture
statutes. These agencies are: the Federal Bureau of Investigation,
the Drug Enforcement Administration and the Immigration and
Naturalization Service. It also refers to other federal agency
investigative units whose forfeitures result in deposits into the
Fund (e.g., U.S. Postal Inspection Service, Internal Revenue
Service, and the Bureau of Alcohol, Tobacco and Firearms).
- Joint investigation means cases in which one or more foreign,
state or local agencies participates in an investigation with a
federal law enforcement agency empowered to forfeit property.
- Law enforcement means the investigation or prosecution of
criminal activity and the execution of court orders arising from
such activity.
- Net proceeds means the forfeited cash or gross receipts from
the sale of forfeited property less allowable asset management and
case related expenses, third party interests and any award based on
the value of the forfeiture.
- Official use means utilization by a law enforcement agency in
the direct performance of law enforcement activities.
- Property means tangible personal and real property, other than
cash, when used in the context of the equitable transfer of
property.
- Seized Asset Deposit Fund refers to the holding account
administered by the U.S. Marshals Service for seized cash pending
resolution of forfeiture cases.
- Sharing means the transfer of cash, property or proceeds
realized through federal forfeitures pursuant to these
Guidelines.
- State and local agencies refers to state and local law
enforcement agencies.
- Transfer and "sharing" are synonymous under these
Guidelines.
| 9-118.300
III. General Provisions
- Whenever reference is made to a specific Department
official, such reference shall also be deemed to include any duly
authorized person acting for that official by law, regulation or
delegation. References to the Executive Office for Asset Forfeiture
include any successor organization.
- Whenever a statute, regulation or official form cited in these
Guidelines is replaced by a substantially identical one, the
citation shall be deemed to refer to the replacement.
- The Deputy Attorney General or his designee may issue
supplementary and interpretative guidance to address issues that
arise under these Guidelines. The Executive Office for Asset
Forfeiture, Office of the Deputy Attorney General, shall provide
assistance to the Deputy Attorney General in the oversight and
management of the Department's forfeiture program.
| 9-118.400
IV. Federal Retention and Use of
Forfeited PropertyA. General Authorization
The Attorney General has the authority to retain any civilly or
criminally forfeited property for official use by any federal
agency. No seized property shall be placed into official use until
a final determination of forfeiture has been made and the request
to place the property into official use has been approved by the
appropriate official.
[cited in
USAM 9-119.114;
USAM 9-119.115]
9-118.420
IV.B. Real
Property
The Attorney General does not delegate his authority to place
real property into official use. A department component may request
authority to place real property into official use only if the
proposed usage of that property would be and remain thereafter
consistent with a law enforcement purpose. Transfers of real
property to other federal components may be considered, if such
transfers will serve a significant and continuing federal purpose.
9-118.430
IV.C. Cash
No forfeited cash, nor any proceeds from the sale of forfeited
property, may be transferred to or retained by any federal agency
except as provided for in Chapter X or by statute.
9-118.440
IV.D. Personal Property
The Attorney General delegates his authority to place personal
property into official use in the order of priority set forth
below. Written notice to the Director, Executive Office for Asset
Forfeiture is required at the time property valued at $50,000 or
greater is placed into official use. The Director, Executive Office
for Asset Forfeiture, shall determine which agency may place
property into official use if more than one Department component
seeks to retain the same forfeited property for official use. All
property should be promptly turned over to the local U.S. Marshal
after seizure, including property intended to be placed into
official use, unless it is intended that such property will be used
in an undercover capacity.
- Seizing Investigative Bureau.
The head of
the seizing investigative bureau will determine whether to place
forfeited property into official use.
- Other Investigative Bureaus.
If the property
is not equitably transferred to a foreign, state or local agency,
and the seizing investigative bureau chooses not to place the
forfeited property into official use, then another investigative
bureau or the U.S. Marshals Service may, by written request to the
Director, U.S. Marshals Service, seek the transfer of the property
for its use.
- Other Department Components.
If no
investigative bureau chooses to place the property into official
use and the property has not been equitably transferred, other
Department components may, by written request to the Director, U.S.
Marshals Service, seek the transfer of the forfeited property for
its official use.
- Transfer of Forfeited Property to Other Federal
Agencies.
All requests by other federal agencies shall be
referred to the Director, U.S. Marshals Service. In exceptional
circumstances, the U.S. Marshals Service may transfer personal
property suitable for official use to a requesting federal agency
which did not participate in the acts which led to a seizure or
forfeiture. In all such cases, the U.S. Marshals Service shall
consult with the investigative bureau responsible for the
investigation which led to the forfeiture. Careful consideration
shall be given to the value of the property requested, its
potential benefit to the United States for law enforcement purposes
and its impact on the Fund. A decision to grant a request for
personal property with an aggregate value of less than $25,000
shall be approved in writing by the Director, U.S. Marshals
Service. The recipient agency shall pay expenses incurred by the
Department of Justice in connection with the forfeiture and
transfer of such property. A report on all such transfers shall be
prepared by the U.S. Marshals Service on a quarterly basis and
submitted to the Executive Office for Asset Forfeiture. A decision
to grant a request for any property valued at $25,000 or more shall
be approved in writing by the Director, Executive Office for Asset
Forfeiture. The recipient agency shall pay expenses incurred by the
Department of Justice in connection with the forfeiture and
transfer of such property.
9-118.450
IV.E. Investigative Bureau
and Department Component Official Use Policies
Each investigative bureau and department component shall
promulgate internal guidelines consistent with these Guidelines
governing the placement of property into official use. Such
guidelines and any subsequent supplements or revisions shall be
filed with the Executive Office for Asset Forfeiture ten (10) days
in advance of issuance.
All official use guidelines shall:
- Prohibit the placement into official use of any seized
property prior to the entry of a final determination of forfeiture
and the appropriate approval of the request to place the property
into official use;
- Require that all seized property be recorded and tracked in an
official inventory of seized property without regard to its
intended disposition;
- Require that a written justification be prepared in each
instance detailing the reasons why the forfeited property was
placed into official use and that these justifications be retained
for three (3) years;
- Require that a specific supervisory-level official be
responsible and accountable for the decision to place each item of
forfeited property into official use and for ensuring appropriate
official use of such property following its transfer;
- Require that property placed into official use shall be
identified and tracked in an accountable property system; and
- State that the property may not be transferred or retained if
it is primarily for purposes of trade or sale, or home-to-work
transportation or other uses not expressly authorized for property
acquired through the expenditure of appropriated funds. There must
be an intention to place the property into official use for two (2)
years.
9-118.460
IV.F. Competing Requests for
Property for Official Use by Investigative Bureau and Other
Federal, State or Local Agency
When the head of an investigative bureau seeks to place
forfeited property into official use and a federal, state or local
agency has filed a request for an equitable share of that property,
the head of the investigative bureau shall consider the following
factors in making a determination regarding the disposition of the
property:
- The relative need of the requesting agency and the
investigative bureau for the particular property;
- The uniqueness of the property and the likelihood of securing
similar property through seizures in the near future;
- The relative percentage of the requesting agency's
participation in the cases in addition to the other factors
pertinent to the determination of equitable transfer;
- The likelihood that the requesting agency will be eligible for
an equitable share of property from additional seizures arising
from the same investigation or from seizures in other cases in the
near future;
- The impact that a decision to place the property into official
use might have on federal, state and local relations in the
district; and
- The number and value of past equitable transfers to the
federal, state or local agency.
9-118.470
IV.G. Payment of Liens on
Personal Property Placed Into Federal Official Use
Liens on personal property placed into official use by
investigative bureaus and the U.S. Marshals Service may be paid
from the Fund provided that:
- There is an intent to place the property into official use
for at least two (2) years;
- The total amount to be paid from the Fund amounts to less than
one-third the appraised value of the property; and
- The total amount to be paid from the Fund is less than
$25,000.
Requests for exceptions may be submitted in writing to the
Director, Executive Office for Asset Forfeiture.
9-118.500
V. Equitable Transfer of Forfeited
Property to Participating State and Local Agencies
Pursuant to 21 U.S.C. § 881(e)(1) and
nbsp;U.S.C. § 1616a, as made applicable by
21 U.S.C. § 881(d) and other statutes, the
Attorney General has the authority to equitably transfer forfeited
property and cash to state and local agencies that directly
participate in the law enforcement effort leading to the seizure
and forfeiture of the property. Requests for equitable transfers
shall be filed in the form prescribed by the Director, Executive
Office for Asset Forfeiture.
9-118.510
V.A. Equitable Transfers
Generally
- All equitable shares shall be based on the net proceeds of
the forfeiture.
- State and local investigative and prosecutive agencies may
share in forfeited cash and property and the proceeds from the sale
of forfeited property.
- All property transferred to state and local agencies and any
income generated by this property shall be used for the law
enforcement purposes specified in the request.
- A state or local agency may file a request for an equitable
share of cash or property where it can demonstrate that it
participated directly in the law enforcement effort that resulted
in the forfeiture.
- No request shall be considered if it is submitted after sixty
(60) days following the seizure.
- Cash and property shall be equitably shared with a state or
local agency only where it will increase and not supplant law
enforcement resources of the specific state or local agency that
participated in the forfeiture.
- The deciding official shall ensure that the share approved has
a value that bears a reasonable relationship to the degree of
direct participation of the state or local agency in the law
enforcement effort resulting in the forfeiture, taking into account
the total value of all property forfeited and the total law
enforcement effort with respect to the violation of law on which
the forfeiture is based.
| 9-118.520
V.B. Factors Governing the Amount of
the Equitable Transfer
The amount of equitable transfer of proceeds from the sale of
forfeited property shall be based upon the net proceeds realized
from the sale of the property or liquidation of negotiable
instruments. Equitable sharing amounts shall be calculated after
the determination of any award based upon the value of the
forfeiture. Asset management expenses may be calculated on a pro
rata basis where expenses cannot reasonably be determined for a
specific asset.
In determining the amount of the equitable transfer for each
participating agency, the following factors shall be considered:
- Whether the seizure was adopted or was the result of a
joint investigation;
- The degree of direct participation in the law enforcement
effort by the state or local agency resulting in the forfeiture,
taking into account the total value of all property forfeited and
total law enforcement effort, including any related criminal
prosecution with respect to the violation of law on which the
forfeiture is based (21 U.S.C. § 881 (e)(3));
- Whether the state or local agency originated the information
that led to the seizure and whether the agency obtained such
information fortuitously or by use of its investigative resources;
- Whether the state or local agency provided unique or
indispensable assistance;
- Whether the state or local agency initially identified the
asset(s) for seizure;
- Whether the state or local agency seized other assets during
the course of the same investigation and whether such seizures were
made pursuant to state or local law; and
- Whether the state or local agency could have achieved
forfeiture under state law, with favorable consideration given to
an agency which could have forfeited the asset(s) on its own but
joined forces with the United States to make a more effective
investigation.
9-118.530
V.C. Sharing Percentages
- In cases involving adoptive seizures that are forfeited
administratively or in uncontested judicial proceedings, the
determining official shall allocate to the United States fifteen
(15) percent of the total net proceeds realized through the
disposition of forfeited property. In cases involving adoptive
seizures that are forfeited in contested judicial proceedings, the
determining official shall allocate to the United States twenty
(20) percent of the total net proceeds realized through the
disposition of the forfeited property. These amounts represent the
federal equitable share based upon its effort in forfeiting the
property. These sharing percentages shall be applicable to property
seized on or after September 1, 1990.
- In non-adoptive cases the determining official shall allocate
to the United States at least the applicable percentages set forth
in paragraph 1.
- The United States' equitable share will normally be satisfied
by the allocation of one or more of the items forfeited (or a
portion of the proceeds thereof) to the United States. In cases
where only one asset or item is forfeited and a state or local
agency requests that asset in lieu of proceeds from the disposition
of the property, the determining official shall ensure that the
United States receives its costs and equitable share to reflect
total federal participation in the forfeiture effort. If the
requesting agency is unable to pay the costs and federal share in
such a one-asset forfeiture case, the property shall be sold by the
U.S. Marshals Service and the proceeds distributed in accordance
with these Guidelines. Exceptions to this requirement may be
granted by the deciding official upon assurances that (1) the
requesting state or local agency lacks funds or authority to
satisfy the United States' equitable share and costs; and (2) the
forfeited item will fill a demonstrable need of the requesting
agency. Such exceptions shall be liberally granted where the two
abode showings are made.
- Nothing in this section shall alter the ability of the U.S.
Marshals Service to pay appropriate expenses from the Fund or to
recover costs directly from participating agencies.
| 9-118.540
V.D. Decision-Making
Authority
Sharing decisions should be made during the period when
forfeiture proceedings are being conducted. Decision-making
authority shall be as follows:
- Administrative Forfeitures Valued at Less than
$1,000,000.
The head of the seizing investigative bureau
shall determine the appropriate equitable transfer of assets
forfeited in a single administrative proceeding where the appraised
value of the asset(s) is less than $1,000,000.
- Judicial Forfeitures Valued Less Than
$1,000,000.
The United States Attorney shall determine the
appropriate equitable distribution of asset(s) forfeited in a
single judicial proceeding in his or her district where the
appraised value of the asset(s) is less than $1,000,000.
- Administrative and Judicial Forfeitures Valued at
$1,000,000 or Greater and Multi-District Cases.
In the
case of a single administrative or judicial proceeding where the
appraised value of the asset(s) forfeited is $1,000,000 or more and
in multi-district cases, the United States Attorney(s) shall, after
onsultation with the investigative bureau(s), forward his (their)
evaluation(s) and recommendation(s) to the Deputy Attorney General
or his designee for determination.
- Real Property Forfeitures.
The Deputy
Attorney General or his designee shall approve any equitable
transfer of real property. Where appropriate, any such transfer
shall include a provision for reversion of title to the United
States if the property is not used for the agreed upon
purposes.
9-118.600
VI. Sale of Seized and
Forfeited PropertyA. Pre-Forfeiture Sale of Seized
Property
- Pre-forfeiture sale of property (i.e., interlocutory or
stipulated sale) is favored as a means of preserving asset value
and mitigating asset management expenses.
- The United States Attorney shall consult with the
investigative bureau and the U.S. Marshals Service to determine the
status of any requests for equitable transfer or petitions for
remission or mitigation prior to seeking a pre-forfeiture sale of
property pending judicial forfeiture.
- Proceeds from any pre-forfeiture sale shall be promptly
deposited into the Seized Asset Deposit Fund unless otherwise
ordered by the court.
| 9-118.620
VI.B. Sale of Forfeited
Property
- Upon the successful completion of the forfeiture action
and if the property is not placed into official use or transferred
to a federal, state, or local agency, it shall be promptly sold and
the proceeds of sale promptly deposited in the Fund.
- Investigative bureaus and the United States Attorneys' offices
shall promptly notify the U.S. Marshals Service of all relevant
facts affecting the forfeited property. Relevant facts include, but
are not limited to:
- Outstanding bills, invoices, orders of mitigation
and remission of forfeiture;
- Orders of transfers to federal, state and local agencies;
- Orders of designation for official use by Department
components if known; and,
- Appraisals.
- Based upon these and other relevant factors, the U.S. Marshals
Service shall promptly and appropriately dispose of the
property.
| 9-118.700
VII. The Department of
Justice Assets Forfeiture FundA. Administration of the
Fund
- The Attorney General delegates the administration of the
Fund to the Director, U.S. Marshals Service under the supervision
of the Deputy Attorney General.
- The U.S. Marshals Service shall prepare annual reports on the
Fund in accordance with 28 U.S.C. § 524(c) (6).
- Pursuant to these Guidelines, federal agencies reimbursed by
or contributing to the Fund, shall provide information necessary to
prepare these reports as requested by the U.S. Marshals Service.
- The U.S. Marshals Service shall submit a monthly financial
statement reflecting the current status of the Fund to the
Director, Executive Office for Asset Forfeiture.
- The U.S. Marshals Service shall prepare annual budget
estimates for the Fund based on information submitted by the
requesting agencies.
| 9-118.720
VII.B. Payments and
Reimbursements
Payments and reimbursements are permitted in six (6) general
categories. In any fiscal year, reimbursement for program
management expenses and investigative expenses expressly identified
in 28 U.S.C. § 524(c)(1) shall not exceed the
amount specified in the annual appropriation limitation on the
Fund. The categories listed in order of priority are set forth in
USAM 9-118.721 (VII.B.1 through
VII.B.6 below).
9-118.721
VII.B.1. Asset Management Expenses
Asset management expenses are those expenses that are incurred
in connection with the seizure, inventory, appraisal, packaging,
movement, storage, maintenance, security and disposition (including
destruction) of the asset(s). Asset management expenses include
payments for contract services and the employment of outside
contractors to operate and manage properties or provide other
specialized services as necessary to dispose of such properties. If
the asset is an on-going business, the normal and customary
expenses of operating the business are asset management expenses
only to the extent they are not covered by the income of the
business.
[cited in
USAM 9-118.720]
9-118.722
VII.B.2. Case Related Expenses
Case related expenses are those expenses that are incurred in
connection with normal proceedings undertaken to perfect the United
States' interest in seized property through forfeiture. This
includes fees and other costs of advertising, translation, court
and deposition reporting, expert witness, courtroom exhibit
services, employment of attorneys or other specialists in state
real estate law by the U.S. Marshals Service, travel and
subsistence related to a specific proceeding, and other related
items as approved by the Director, Executive Office for Asset
Forfeiture. The Director, Executive Office for Asset Forfeiture,
may approve the expenses incurred in connection with retention of
foreign counsel to gain access to information needed to conduct
pre-seizure planning on identified assets, to effect a seizure of
assets or to perfect title of forfeited property in a foreign
country.
9-118.723
VII.B.3. Payment of Qualified Third
Party Interests
Qualified third party interests are those incurred in the
payment of valid liens, secured mortgages and debts owed to
qualified general creditors pursuant to court order or a favorable
ruling on a petition for remission to a court order or an
administrative determination. Nothing in this section shall
preclude a departmental component from seeking reimbursement from
the state or local agency that received the property that is the
basis of the claim.
9-118.724
VII.B.4. Equitable Sharing Payments
Equitable sharing payments are those payments which represent
amounts paid directly to foreign governments or agencies and state
or local agencies. Pursuant to 21 U.S.C. § 881
(e)(3)(a), these amounts shall reflect the degree of participation
in the law enforcement effort resulting in the forfeiture, taking
into.account the total value of all property forfeited and the
total law enforcement effort with respect to the violation of law
on which the forfeiture is based.
9-118.725
VII.B.5. Program Management
Expenses
Program management expenses are those expenses incurred in
conducting program responsibilities that are not related to any
specific asset or to any one specific seizure or forfeiture.
Expenses included under this heading are:
- Automatic Data Processing
- Expenses for the purchase or lease of automatic data
processing equipment which is utilized the majority of the time for
asset forfeiture program related work;
- Expenses for the development of computer software that will
enhance the capability of the Department of Justice to identify,
track, manage, process and dispose of forfeitable property may be
approved by the Director, Executive Office for Asset Forfeiture;
- Each investigative bureau and Department component receiving
monies from the Fund for automatic data processing purposes shall
develop internal guidelines consistent with these Guidelines
governing the use of and accountability for automatic data
processing resources acquired with monies from the Fund. Copies of
such internal guidelines shall be filed with the Director,
Executive Office for Asset Forfeiture; and
- The design of all systems to be developed in whole or in part
with Fund monies shall be submitted to the Director, Executive
Office for Asset Forfeiture, for approval. The design of such
software shall be consistent with and advance the overall objective
of the Department to implement and maintain an integrated asset
seizure and forfeiture information system.
- Contracting for services directly related to the processing,
data entry and accounting for forfeiture cases.
- Printing and graphic services reasonably necessary to
effectuate program goals.
- Training
- The Executive Office for Asset Forfeiture shall have
responsibility for oversight of forfeiture training and will assist
Department components in coordinating asset seizure and forfeiture
training conferences. Goals of the Department's training program
shall be to provide consistent treatment of identical topics, to
take advantage of opportunities for joint training, and to foster
cooperation and appreciation of the needs of all components.
- Any agency that anticipates requesting reimbursement for
training personnel shall submit a justification indicating numbers
of persons to be trained, the purpose and scope of training, the
location and approximate cost of such training, an outline of
topics in need of coverage, and the priority of training needs, as
requested by the Director, Executive Office for Asset Forfeiture.
- A consolidated training calendar shall be maintained by the
Executive Office for Asset Forfeiture for asset seizure and
forfeiture training for Department components.
- The Assets Forfeiture Fund may be used to finance necessary
training expenses directly related to the asset forfeiture program.
Generally, this will include:
- any required training for employees or contractors
dedicated to the asset forfeiture program (e.g., trial advocacy for
asset forfeiture attorneys, training on agency computers for
contract employees);
- any exclusively asset forfeiture training program that is
conducted for other personnel, for whom asset forfeiture is an
ancillary duty, to enable them to be more effective in performing
asset forfeiture program functions; and
- that portion of a broader law enforcement training program
that is directly related to the identification, tracking,
evaluation, seizing, processing, accounting for, management or
disposition of property subject to forfeiture (e.g., 25 percent of
the expenses of a money laundering conference or a drug
investigation conference if 25 percent of the conference program
deals directly with the asset forfeiture program). Exceptions may
be granted on a case-by-case basis by the Director, Executive
Office for Asset Forfeiture.
- Other types of general program management and operational
costs as approved by the Director, Executive Office for Asset
Forfeiture.
9-118.726
VII.B.6. Investigative
Expenses
Investigative expenses are those expenses normally incurred in
the identification, location and seizure of property subject to
forfeiture. Investigative expenses statutorily eligible to be paid
from the Fund include such items as:
- Awards for information concerning violations of the
criminal drug laws;
- Awards for information leading to the forfeiture of property
under the Comprehensive Drug Abuse Prevention and Control Act of
1970 or the Racketeer Influenced and Corrupt Organizations (RICO)
statute;
- Awards for information concerning the killing or kidnapping of
a Federal drug law enforcement agent;
- Purchase of evidence of any violation of the Controlled
Substances Act, the Controlled Substances Import and Export Act,
RICO or 18 U.S.C. §§ 1956 and 1957;
- Contracting for services directly related to the
identification of potentially forfeitable assets;
- Equipping of conveyances for drug law enforcement functions;
and
- The storage, protection and destruction of controlled
substances.
9-118.730
VII.C. Liens and Mortgages
- Liens or mortgages on real property placed into federal
official use or transferred to state or local agencies are not
payable from the Fund unless expressly approved by the Director,
Executive Office for Asset Forfeiture.
- Liens and mortgages shall be satisfied after the sale of
forfeited property pursuant to a determination to remit or mitigate
the forfeiture or an order of the court, except under the following
conditions where payments may be made from the Fund:
- Where the payment prior to sale will improve the
United States' ability to convey title to the property;
- Where the United States has substantial equity in forfeited
real property and payment prior to sale will not result in a net
loss to the United States; or
- Where the property is approved for placement into official use
by an investigative bureau or the U.S. Marshals Service and all
necessary approvals have been obtained.
| 9-118.740
VII.D. Limitations on Use of
the Fund1. Items Not Payable From the Fund
Items not payable from the Fund include:
- Personnel expenses (e.g., salaries, overtime and
benefits) for employees of the United States;
- Expenses in connection with the seizure, detention and
forfeiture of property where the seizure was effected by a U.S.
Postal Inspection Service or a U.S. Customs Service officer and the
proceeds of forfeiture, if any, are to be deposited into the Postal
Fund or the Customs Forfeiture Fund, respectively;
- Purchase of real property or any interest therein except to
acquire full title to or to satisfy liens or mortgages on forfeited
property;
- Payments to equip property transferred to federal agencies
(other than investigative bureaus or the U.S. Marshals Service) or
state or local agencies;
- Expenses in connection with the seizure, detention and
disposition of property where the seizure was effected for debt
collection or other non-forfeiture purposes; and
- Reception and representation expenses (e.g., refreshments,
meals, gifts or entertainment).
| 9-118.742
VII.D.2. Claims of Unsecured
Creditors
Claims of unsecured creditors generally may not be paid from
the Fund, particularly if such payment may jeopardize the
legitimate claims of existing lienholders. Pursuant to 28
C.F.R. § 9.6(b), claims of unsecured creditors for
debts incurred within one hundred and twenty (120) days before
seizure may be paid by the U.S. Marshals Service in order to
preserve the continued operation of a seized business. Such payable
expenses include the following:
- Payment of reasonable salaries and benefits of
employees not believed to have been involved in the unlawful
activities giving rise to forfeiture and not having an ownership
interest in the business entity;
- Payments to third party contractors for goods or services
essential to carry on the business and who continue to provide
those goods or services as in the regular course of business; and
- Utilities.
9-118.743
VII.D.3. Payment of
Expenses
- Asset management expenses incurred by the U.S.
Marshals Service, qualified third party interests and equitable
sharing payments as set forth above will be obligated against and
paid directly from the Fund in accordance with standard
Departmental financial management and accounting policies and
procedures.
- Pursuant to a properly executed Reimbursement Agreement
Between Agencies (DOJ-216), all other obligations incurred under
these Guidelines will be paid by the agency incurring the
obligation and will be reimbursed from the Fund on a monthly basis
where practicable by means of an Inter-Agency Fund Transfer
(SF-1081).
- It is the responsibility of the agency incurring the
obligation to prepare the DOJ-216 and SF-1081 forms and obtain the
proper authorization from the Director, U.S. Marshals Service. Each
DOJ-216 and SF-1081 shall identify the appropriation to be
reimbursed from the Fund.
- Approved DOJ-216's and SF-1081's will be registered upon
receipt by the U.S. Marshals Service. Properly authorized requests
(SF 1081's) will be processed for payment in order of receipt. If
sufficient funds are available, the U.S. Marshals Service shall
approve the transfer of funds to the appropriation identified.
- All transfers from the Fund shall be based upon certification
of actual expenditures by the requesting agency. Transfers shall
not be made based upon estimated obligations.
- If a payment requested is in excess of funds available, the
U.S. Marshals Service shall not process the request and shall
advise the requesting agency of the reason.
- If the U.S. Marshals Service and the requesting agency cannot
agree on deferral or cancellation of the request, the parties shall
seek in writing a determination from the Deputy Attorney General or
his designee. The U.S. Marshals Service shall provide notice of the
decision to the agency submitting the SF-1081.
| 9-118.750
VII.E. Preparation of
Estimates of Anticipated Expenses and Reimbursement Agreements
- By June prior to the fiscal year in which the expenses are
anticipated and as necessary during the fiscal year, any agency
that anticipates requesting reimbursement for expenses from the
Fund shall submit requests to the Director, Executive Office for
Asset Forfeiture, based upon estimates of anticipated expenditures.
Prior to submission to the Director, Executive Office for Asset
Forfeiture, these requests shall be reviewed and approved in
accordance with the agency's internal procedures for budget
submissions.
- Requests for anticipated reimbursements with accompanying
justification shall be submitted in the format required by the
Director, Executive Office for Asset Forfeiture. Information
regarding appropriated resource levels shall be provided as part of
the justification. These requests shall include information
regarding the effect that any reprogramming of appropriated
resources had on the need for additional resources from the Fund.
- In evaluating the requests and approving allocations, the
Deputy Attorney General or his designee shall ensure that:
- Overall amounts recommended for authorization in a
budget for any fiscal year do not exceed appropriation limitations
for that year; and
- Overall amounts recommended for authorization in a budget for
any fiscal year do not exceed an agreed upon estimate of amounts
available for obligation, to include current year income plus any
carry-over from the prior year.
- To the extent possible, the Deputy Attorney General or his
designee shall approve a budget of expenses prior to the beginning
of the fiscal year. This budget will form the basis for the
establishment of reimbursement agreements between the U.S. Marshals
Service as the administrator of the Fund and the participating
agencies.
- An agency may change the distribution of its allocation among
particular categories of reimbursable expenses during a fiscal year
without approval of the Deputy Attorney General or his designee,
subject to the following conditions:
- A redistribution cannot increase the total amount
allocated for expenses subject to appropriation (i.e., program
management and investigative expenses); and
- A proposal for any redistribution shall be submitted with
supporting justification to the Director, Executive Office for
Asset Forfeiture, thirty (30) days in advance of the proposed
effective date of the proposal. A copy of the proposed
redistribution shall also be provided to the U.S. Marshals Service.
The Director, Executive Office for Asset Forfeiture, may deny such
proposed redistribution with notice to the agency and U.S. Marshals
Service.
- Forfeiture funds allocated for specific purposes shall
supplement and not supplant appropriated funds provided explicitly
or implicitly for those purposes. The calculation of appropriated
funds available for specific purposes shall take into account any
completed reprogrammings.
| 9-118.760
VII.F. Payment of Awards
Monies from the Fund may be used to pay awards for specific
information or instances of assistance. These monies are not to be
used to pay retainers or to pay cooperating informants in the
expectation of future specific information or assistance.
- Applications for awards will be accepted on behalf of any
individual. (The term "individual" encompasses corporations and
associations.)
- Applications for awards shall be submitted in a format
developed and approved by the Director, Executive Office for Asset
Forfeiture.
- Awards pursuant to 28 U.S.C. § 524
(c)(1)(C) shall be paid only after disposition of the forfeited
property.
- Awards will not be paid to individuals who are representatives
of state or local agencies. Any information or assistance provided
by an individual who represents a state or local agency will be
compensated under rules governing transfers of forfeited property.
- Any awards pursuant to
28 U.S.C. § 524(c)(1)(B) shall not exceed
$250,000. Any award pursuant to 28 U.S.C. § 524
(c)(1)(B) or (C) shall preclude the recipient of such award from
any additional award based on a forfeiture resulting in any way
from the same information or assistance. Any award pursuant to
28 U.S.C. § 524 (c)(1)(C) shall not exceed the
lesser of $250,000 or one-fourth the amount realized by the United
States from the property forfeited.
- If forfeited property is sold, then the "amount
realized by the United States from the property forfeited" is the
net proceeds; and
- If forfeited property is retained for official use, the
"amount realized by the United States from the property forfeited"
is the value of the property at the time of seizure minus expenses
paid from the Fund under Section VII.B (1, 2 and 3).
- All applications for awards shall be directed to the field
office of the investigative bureau responsible for processing the
forfeiture. Non-Department of Justice agencies (e.g., Organized
Crime Drug Enforcement Task Force members such as Internal Revenue
Service) should be instructed to direct any inquiries concerning
these awards to the investigative bureau responsible for processing
the forfeiture.
- The investigative bureau field unit receiving or initiating an
application for an award will prepare a written report that will
evaluate the value of the information or assistance provided by the
applicant and recommend an amount to be paid.
- If more than one application for an award pursuant to
28 U.S.C. § 524(c)(1)(C) is received in a
single action for forfeiture, the applications should be handled in
a consolidated manner. Decisions on all applications should be made
at the same time, and should consider the comparative value of
information or assistance provided by each applicant and the
aggregate amount of award(s) to be made. In these cases, the limits
discussed in paragraph VII. F (3 and 4) apply to the aggregate
amount of the awards to be made.
- Recommendations for payment of awards pursuant to
28 U.S.C. § 524(c)(1)(B) shall:
- Identify the investigation, including agency and/or
federal district court case numbers;
- Identify the recommended dollar amount of the award; and
- Include the recommendation of the amount of the award, the
seriousness and scope of the criminal activity involved, the degree
to which the information or assistance aided the investigation, and
whether the information or assistance provided was unique or
indispensable.
- Recommendations for payment of awards pursuant to
28 U.S.C. § 524(c)(1)(C) shall:
- Identify the property or properties regarding which
information or assistance was provided, including agency and/or
federal district court case numbers;
- Identify which of those properties were forfeited and when;
- Identify the recommended dollar amount of the award, the
degree to which the information or assistance aided in the
forfeiture and whether the information or assistance provided was
unique or indispensable; and
- Identify costs incurred under Section VII.B 1-3 with respect
to the property forfeited. A report on those costs shall be
obtained from the U.S. Marshals Service.
- Approval of awards will be in accordance with
28 U.S.C. § 524(c) (2) and any subsequent
delegations of authority.
9-118.770
VII.G. Purchase of
Evidence
- Pursuant to 28 U.S.C. § 524(c)(1)(G)
the Attorney General is authorized to utilize monies from the Fund
for purchase of evidence of any violation of the Controlled
Substances Act, the controlled Substances Import and Export Act,
18 U.S.C. Ch. 96 or 18 U.S.C. §§ 1956 and 1957.
- Approval of amounts for the purchase of evidence will be in
accordance with (1)(G) and any subsequent delegations of authority.
- Each investigative agency shall develop internal guidelines
covering the use of monies from the Fund for the purchase of
evidence. Such guidelines shall be filed with the Executive Office
for Asset Forfeiture.
- If a participating agency recovers part or all of the monies
that are used to purchase evidence for which it has obtained
reimbursement from the Fund, the recovered monies shall be returned
to the Fund.
| 9-118.780
VII.H. Payments to Equip
Conveyances for Drug Law Enforcement Functions
- Decisions to equip a government-owned or leased conveyance
(vehicle, vessel, or aircraft) for drug law enforcement functions
shall be made by the organizational component within the agency
which is responsible for management of the conveyance.
- Reimbursable payments may be made to equip conveyances which
are used the majority of the time for activity relating to the
investigation or apprehension of violators of the federal drug laws
and the seizure and forfeiture of their assets Monies from the Fund
may not be used for recurring expenses such as fuel, spare or
replacement parts, maintenance, or replacement of equipment due to
wear and tear by the agency using the conveyance.
- Equipping should generally occur before the conveyance is
placed into official use and only if it is intended to be in
service for at least two (2) years. Exceptions may be made to this
guidance only under extraordinary circumstances and shall be
documented.
- Unreasonable amounts shall not be spent on equipping
Government-owned or leased conveyances for-drug law enforcement
purposes. Purchased equipment must be affixed to the conveyance and
used integrally with the conveyance.
- Each agency shall establish internal guidelines which shall
ensure the effective utilization of monies from the Fund budgeted
for equipping forfeited, leased or owned conveyances for drug law
enforcement purposes. These guidelines should consider the
estimated useful life of the conveyance and the availability of
similarly equipped conveyances. Such guidelines, and any subsequent
revisions, are to be filed with the Executive Office for Asset
Forfeiture. Agencies shall maintain records, by conveyance, of
amounts from the Fund spent on equipping.
| 9-118.790
VII.I. Cash Management
Seized cash, except where it is to be used as evidence, is to
be deposited promptly in the Seized Asset Deposit Fund pending
forfeiture. The Director, Executive Office for Asset Forfeiture,
may grant exceptions to this policy in extraordinary circumstances.
Transfer of cash to the United States Marshal should occur within
sixty (60) days of seizure or ten (10) days of indictment.
9-118.800
VIII. Transfer of Forfeited
Property to Foreign Countries
- The Attorney General may transfer any forfeited
personal property or the proceeds from the sale of any forfeited
personal or real property, as authorized by statute, to a foreign
country which participated directly or indirectly in any acts which
led to the seizure or forfeiture of the property, if such transfer:
- Has been agreed to by the Secretary of State;
- Is authorized in an international agreement between the United
States and the foreign country; and
- Is made to a country which, where applicable, has been
certified under § 481(h) of the Foreign Assistance
Act of 1961.
- Requests by a foreign agency shall be in the form prescribed
by the Director, Executive Office for Asset
Forfeiture.
| 9-118.900
IX. Discontinuance of Federal
Forfeiture ProceedingsA. Federal Judicial Forfeiture
Proceedings
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