9-112.000
ADMINISTRATIVE
AND JUDICIAL
FORFEITURE
9-112.110 Administrative
Forfeiture
Policy
9-112.120 Administrative
Forfeiture
of Bank Accounts
9-112.130 Judicial Forfeiture
of
Real Property
9-112.210 Sixty-Day Notice
Period in
All Administrative Forfeiture Cases
9-112.220 Procedures for In
Forma
Pauperis Petitions
9-112.230 Exemption of Certain
Assets from Pre-trial Restraint of Substitute Assets
9-112.240 Prior Approval
Requirements
9-112.320 Cost Bond Procedures
9-112.330 Administrative
Forfeiture
by Settlement Agreement After A Cost Bond Has Been Filed
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;
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.
All forfeitures of real property or interests therein
shall be
conducted judicially. See the Criminal Resource
Manual at 2208.
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.
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.
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.
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.
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.
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).
| October 1997
| USAM Chapter 9-112
|