9-116.000
EQUITABLE
SHARING
9-116.100 General Adoption
Policy
and Procedure
9-116.110 Federal Adoption Form
9-116.120 Federal Investigative
Agency Review of Adoption Requests
9-116.150 Judicial Review
Favored
9-116.160 30-Day Rule for
Presentation for Federal Adoption
9-116.170 United States
Attorney
Recommendation For Adoption of Seizure
9-116.180 Notice Requirements
in
Adopted Seizures
9-116.190 Retention of Custody
by
State or Local Agency
9-116.200 Referral of DAG
71/DAG 72
Forms to United States Attorneys' Offices
9-116.210 Notifying the
Department's
Criminal Division of United States Attorneys' Equitable Sharing
Decisions
9-116.310 Equitable Sharing
Check
Disbursement in Judicial Forfeitures
9-116.311 Equitable Sharing
Check
Disbursement in Administrative Forfeitures
9-116.312 Role of Law
Enforcement
Coordinating Committees
9-116.330 Transmittal Letters
for
Equitable Sharing Checks
9-116.400 International Sharing
of
Forfeited Assets
9-116.500 Weed and Seed
Initiative
-- Transfers of Real Property
9-116.520 Transfer of Forfeited
Real
Property Pursuant to Weed and Seed Initiative
9-116.530 Liens, Mortgages, and
Third Party Ownership Interests in Weed and Seed Transferred Real
Property
9-116.540 Asset Seizure,
Management
and Case-Related Expenses
9-116.550 Law Enforcement
Concurrence
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
9-116.100 General Adoption Policy and
Procedure
The policies and procedures set forth below are intended
to ensure
consistent review and handling of state and local seizures
presented for Federal
adoption. See the Criminal Resource
Manual at
2262. These policies and procedures do not apply to adoption
of seizures by
the United States Customs Service.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
| October 1997
| USAM Chapter 9-116
|