9-117.000
DEPARTMENT OF
JUSTICE
ASSETS FORFEITURE FUND
9-117.100 Transfer of Funds
From the
Seized Asset Deposit Fund to the Assets Forfeiture Fund
9-117.200 Payment of Costs and
Attorneys' Fees From the Assets Forfeiture Fund -- Limited
Authority
9-117.210 Payment of Costs and
Attorneys' Fees From the Assets Forfeiture Fund -- Procedure
9-117.300 Disposition of ADP
Equipment Purchased with Assets Forfeiture Fund Allocations
The United States Attorney's Office securing a forfeiture
is
responsible for initiating transfers from the Seized Asset Deposit
Fund to the
Assets Forfeiture Fund and should provide prompt notification to
the United
States Marshals Service (USMS) of the events which should lead to
a transfer from
the Seized Asset Deposit Fund.
In the case of either a consent judgment or a default
judgment, the
USMS will immediately transfer the forfeited cash to the Assets
Forfeiture Fund,
unless the United States Attorney determines that execution of the
judgment
should be delayed.
In the case of a judgment after trial or upon summary
judgment, there
is an automatic stay of execution of the judgment of 10 working
days. If the
United States Attorney's Office indicates that no motions or
requests for
additional stays have been filed, then the forfeited cash will be
transferred to
the Assets Forfeiture Fund on the eleventh working day following a
summary
judgment or a judgment after trial.
Notwithstanding the legal availability of the Assets
Forfeiture Fund
for EAJA awards, see the Criminal
Resource Manual
at 2273, the Department limits by policy the cases in which
Fund monies may
be used for such awards. The Congress enacted the EAJA for
specific public
policy reasons. It would be inappropriate for the Fund to be used
in a manner
that completely ignored or negated the public policy basis for the
EAJA. In an
attempt to balance the competing interests involved, the following
three tier
policy is established:
- The Assets Forfeiture Fund will fund the EAJA award in any
case in which
the actions of the Federal participants were clearly consistent
with current law
and Department policy. This includes those cases in which:
- The Asset Forfeiture and Money Laundering Section (AFMLS),
Criminal
Division, is involved in planning a specific case or program
initiative and the
participating agency was executing the planned initiative in good
faith;
- The Federal participants were executing their
responsibilities in
consonance with current law and Department policy but the court
creates a novel
reason or basis for overturning a case that could not be
anticipated;
- Similar "no fault" cases. Once approved, the EAJA awards
in these cases
will be paid by the Fund against the case related expenses
category;
- The Assets Forfeiture Fund allocations of the federal
participant will
be available to fund awards where the agency personnel were acting
in good faith
but it is not clear that their actions were consistent with
existing law and
Department policy. Once approved, the funds are to be taken from
the case
related expenses category. If there are insufficient funds
available to cover
the award, then the shortfall may be made up by funds available for
other
categories of expense. A request for reallocation will be approved
for this
purpose. Total allocations will not be increased to make up for
the payment of
the award; and
- In any case in which the court finds bad faith or an
intentional
disregard for existing law or Department policy by the federal
participants, the
Assets Forfeiture Fund will not be available, either directly or
indirectly, to
fund the EAJA award.
No EAJA award may be charged against the Assets Forfeiture
Fund or the
Federal participant's Fund allocations without the express written
approval of
the Asset Forfeiture and Money Laundering Section (AFMLS).
Requests for approval
to charge an EAJA award against the Fund or against Fund
allocations must be
submitted to AFMLS in writing. See the Criminal
Resource Manual at 2274.
If the government has contested the case and incurred an
adverse
judgment, a copy of the court order should be provided to all
involved agencies
immediately to permit their participation in preparation of the
request package.
The request should be forwarded by the United States Attorney's
Office to AFMLS
by express mail within 5 business days of the court order. The
request should
include, as appropriate:
- a copy of the court order indicating that the award is
being made under
28 U.S.C. § 2412(d) or that the government's position was not
substantially
justified;
- a copy of the seizure warrant and associated affidavit or
a copy of the
probable cause statement supporting the seizure, if the seizure was
cited as a
basis for the award;
- a copy of any pleadings or answers or a description of any
litigative
position that was cited as a basis for the award;
- a description of any governmental action not referenced
above that was
cited as a basis for the award; a description of any extenuating
factors
affecting the seizing agency and the United States Attorney's
Office that should
be considered;
- a list of the agencies involved in the case; and
- a joint proposal for allocation of responsibility for the
EAJA award
among the involved agencies.
If the United States Attorney's Office is proposing to
settle an EAJA
claim, the materials cited in items (2) through (7) above should be
provided to
AFMLS in advance of agreeing to any settlement. This policy
is in
addition to any other policies governing settlements.
Proposed court orders drafted by the government should be
silent as to
the source of funds for paying any award. The identification of
appropriate
sources of funding to pay court judgments is an Executive Branch
function and may
vary from case to case depending on the facts of the particular
case. See
also the Criminal Resource Manual at
2275 and 2276.
ADP equipment purchased with Assets Forfeiture Fund monies
shall retain
any statutory conditions or limitations on its use until:
- The equipment fails or suffers serious performance
degradation and it is
economically impractical to invest in equipment repair; or
- The equipment is rendered functionally obsolete for
forfeiture program
purposes of the using office, and
- No other agency participating in the Assets Forfeiture Fund
within a
reasonable radius can use the equipment for forfeiture program
purposes,
and
- The Asset Forfeiture and Money Laundering Section is
provided 30 days
written notice of the intent to redirect the equipment out of the
asset
forfeiture program with a brief explanation of the attendant
circumstances.
| October 1997
| USAM Chapter 9-117
|