Asset Forfeiture Policy Manual 2023

Asset Forfeiture

Policy Manual

2023

U.S. Department of Justice

Criminal Division

Money Laundering and Asset Recovery Section

Asset Forfeiture Policy Manual 2023  iii

Table of Contents: Asset Forfeiture Policy Manual

Foreword ...................................................................................................................x

Chapter 1: Planning for Seizure and Restraint

.................................................. 1-1

I. Guidelines for Seizure and Restraint Planning ...........................................................1-1

A. Background .........................................................................................................1-1

B. Scope of assets covered by guidelines ................................................................1-2

C. General seizure planning policy guidelines ........................................................ 1-4

D. Seizure planning analysis and documentation .................................................... 1-8

E. Quick release ..................................................................................................... 1-11

II. Pre-Seizure Judicial Review ..................................................................................... 1-13

Chapter 2: Seizure and Restraint

........................................................................ 2-1

I. Overview .....................................................................................................................2-1

II. General Policies and Procedures for Seizing Property ............................................... 2-2

A. Responsibility for execution of process ..............................................................2-2

B. Noticationbyseizingagency ............................................................................2-2

C. Forms of process .................................................................................................2-2

D. Judicial authority issuing process .......................................................................2-4

III. Seizures for Criminal Forfeiture .................................................................................2-4

A. What process must the government seek to retain custody of an asset for

potential criminal forfeiture?

..............................................................................2-4

B. If civil forfeiture is being pursued parallel to criminal forfeiture, no additional

criminal restraint process is needed ....................................................................2-5

C. Property seized without a warrant .......................................................................2-7

D. Property seized for evidence ...............................................................................2-8

IV. Proper Use of Writs of Entry in Civil and Criminal Forfeiture Proceedings ..............2-8

V. Seizure of Financial Instruments and Cryptocurrency ................................................2-9

A. Certicatesofdeposit .........................................................................................2-9

B. Cryptocurrency .................................................................................................2-10

C. Employee Retirement Income Security Act (ERISA) accounts .......................2-12

D. Interest On Lawyer Trust Accounts (IOLTA) ................................................... 2-12

E. Life insurance ....................................................................................................2-13

F. Money orders .................................................................................................... 2-14

G. Personal,certied,andcashier’schecks ...........................................................2-16

H. Prepaid access devices ......................................................................................2-17

I. Securities ...........................................................................................................2-19

J. Travelers’checks ............................................................................................... 2-20

K. U.S. savings bonds ............................................................................................2-21

iv  Asset Forfeiture Policy Manual 2023

VI. Seizure of Operating Businesses ...............................................................................2-21

VII. Seized Cash Management .........................................................................................2-23

VIII. UsingAssetForfeitureAuthoritiesinConnectionwithStructuringOenses .......... 2-23

A. Link to prior or anticipated criminal activity ....................................................2-24

B. No intent to structure ........................................................................................2-24

C. 150-day deadline ...............................................................................................2-25

D. Settlement .........................................................................................................2-25

E. Internal Revenue Service (IRS) structuring cases ............................................2-25

Chapter 3: Seizures by State, Local, and Tribal Law Enforcement.................. 3-1

I. Forfeitures Follow the Prosecution .............................................................................3-1

II. General Adoption Policy .............................................................................................3-1

III. Custody ....................................................................................................................... 3-2

A. Concurrent jurisdiction .......................................................................................3-2

B. Use of anticipatory seizure warrants to obtain federal in rem jurisdiction ......... 3-4

C. Retention of custody by federal, state, local, or tribal agency during federal

forfeiture proceedings .........................................................................................3-4

IV. Federal Adoption Procedure .......................................................................................3-4

A. Federal adoption request .....................................................................................3-4

B. Federal law enforcement agency review .............................................................3-6

C. Timing ................................................................................................................. 3-7

V. Cases Initiated by a U.S. Attorney Directly with State, Local, and Tribal Law

Enforcement without Federal Agency Involvement ...................................................3-7

A. Direct adoption by the U.S. Attorney ..................................................................3-7

B. Direct referral by the U.S. Attorney ....................................................................3-8

Chapter 4: Real Property

..................................................................................... 4-1

I. Pre-Forfeiture Considerations .....................................................................................4-1

A. General policy .....................................................................................................4-1

B. Real property valuation .......................................................................................4-2

C. Commencing the civil or criminal forfeiture proceeding ...................................4-3

D. Title conveyance ................................................................................................. 4-5

E. Contamination liability .......................................................................................4-6

II. Ownership and Notice .................................................................................................4-7

A. Title search .......................................................................................................... 4-7

B. Lis pendens .........................................................................................................4-7

C. Noticing the Mortgage Electronic Registration System (MERS) .......................4-8

III. Third-Party Interests ...................................................................................................4-8

A. Tenancy interests ................................................................................................. 4-8

B. Occupancy agreements for tenants .....................................................................4-9

C. Business or corporate owners .............................................................................4-9

Asset Forfeiture Policy Manual 2023  v

D. Lienholders .........................................................................................................4-9

IV. Taxes and Penalties ..................................................................................................... 4-9

A. Payment of state and local real property taxes ....................................................4-9

B. Some taxes become a lien on the property before they are due ........................4-10

C. Payment of interest and penalties on real property taxes ..................................4-10

V. Real Property Transfers .............................................................................................4-10

A. Weed and Seed Initiative ................................................................................... 4-11

B. Operation Goodwill .......................................................................................... 4-11

C. Federal component transfers .............................................................................4-12

D. Governor’srequestforhistoric,recreationalorpreservationpurposes ............4-12

Chapter 5: Administrative and Judicial Forfeiture

............................................ 5-1

I. Overview .....................................................................................................................5-1

A. Seized property eligible for forfeiture should be forfeited .................................5-1

B. Forfeiture should follow the prosecution ............................................................5-1

II. Administrative Forfeiture Guidelines ......................................................................... 5-2

A. Scope of property subject to administrative forfeiture .......................................5-2

B. Administrative forfeiture notice deadlines ..........................................................5-3

C. Timeliness and content of claims in administrative proceedings ....................... 5-7

D. Plea and settlement negotiations involving property subject to administrative

forfeiture .............................................................................................................5-8

III. Judicial Forfeiture Guidelines .....................................................................................5-8

A. Parallel administrative, civil, and criminal forfeiture proceedings .....................5-8

B. Deadlines for instituting civil judicial forfeiture proceedings ............................ 5-8

C. Providing notice of judicial forfeiture actions .................................................... 5-9

D. Issuesspecictociviljudicialproceedings ......................................................5-12

E. Issuesspecictocriminaljudicialproceedings ................................................5-19

IV. Firearms Forfeiture Policy ........................................................................................5-22

A. Preference for forfeiture ....................................................................................5-22

B. Administrativeandciviljudicialforfeitureofrearmsdeadlineissues ...........5-23

C. Firearmsaretreateddierently .........................................................................5-24

Chapter 6: Grand Jury.......................................................................................... 6-1

I. Using the Grand Jury Properly to Achieve Asset Forfeiture Policy Objectives ......... 6-1

II. When Assistant U.S. Attorneys May Disclose Matters Occurring before the Grand

Jury in Connection with Asset Forfeiture Matters and Cases under 18 U.S.C.

§ 3322(a) and Federal Rule of Criminal Procedure 6(e)(3)

........................................6-2

A. Criminal Assistant U.S. Attorneys may disclose grand jury information to

Assistant U.S. Attorneys for use in civil forfeiture matters and cases under

18 U.S.C. § 3322

.................................................................................................6-2

vi  Asset Forfeiture Policy Manual 2023

B. Although Assistant U.S. Attorneys may not disclose grand jury information to

seizing agency counsel under 18 U.S.C. § 3322, they may under Federal Rule

of Criminal Procedure 6(e)(3)(A)(ii)

.................................................................. 6-3

C. Assistant U.S. Attorneys should disclose grand jury material to government

contractors working on civil or criminal asset forfeiture matters in a manner

consistent with applicable Department of Justice guidance on disclosing grand

jury materials to contractors

................................................................................6-4

III. Presenting Forfeiture to the Grand Jury ......................................................................6-4

A. Charging document must include notice of forfeiture ........................................ 6-4

B. Governmentmayaskthegrandjurytomakeaprobablecausendingastothe

nexus between particular charges and assets ......................................................6-5

Chapter 7: Civil Forfeiture Litigation Issues

...................................................... 7-1

I. Preservation Policy for Civil Forfeiture ......................................................................7-1

A. Legal obligation .................................................................................................. 7-1

B. Litigation holds ...................................................................................................7-1

C. Documents and other relevant information subject to preservation ...................7-2

D. Litigation hold notice ..........................................................................................7-3

II. Fifth Amendment Advisements in Civil Forfeiture Proceedings ................................ 7-5

III. Negotiating with Fugitives in Civil Forfeiture Matters ..............................................7-7

Chapter 8: International Forfeiture

..................................................................... 8-1

I. International Forfeiture Overview ..............................................................................8-1

A. Department of Justice consultation and coordination policy ..............................8-1

B. Forfeiture and recovery of assets located abroad under U.S. law .......................8-2

C. Forfeiture of assets located in the United States under foreign law ...................8-2

II. Foreign Property Management Considerations ..........................................................8-2

III. Probable Cause Finding to Seize or Restrain Assets Abroad ...................................... 8-3

A. Criminal forfeiture cases .....................................................................................8-4

B. Civil (in rem) forfeiture cases ............................................................................. 8-5

C. Parallel civil and criminal cases ..........................................................................8-7

IV. Securing Notice Abroad ..............................................................................................8-7

V. Consultation with MLARS and OIA when Seeking Repatriation of Forfeitable Assets

Located Abroad ...........................................................................................................8-8

VI. Approval Process for 18 U.S.C. § 981(k) Seizure from Correspondent Bank

Account .......................................................................................................................8-8

VII. Lack of Administrative Forfeiture Authority for Overseas Property .......................... 8-9

VIII. Settlements,PleaAgreements,andAttorneys’Fees ................................................. 8-10

IX. Enforcement of Judgments .......................................................................................8-10

A. Foreign enforcement of U.S. judgments ...........................................................8-10

B. U.S. enforcement of foreign judgments and restraining orders ........................ 8-11

X. International Sharing ................................................................................................. 8-11

Asset Forfeiture Policy Manual 2023  vii

Chapter 9: Third-Party Experts in Forfeiture Cases .......................................... 9-1

I. Introduction .................................................................................................................9-1

II. Prerequisites to Selecting a Third-Party Expert ..........................................................9-2

A. Consider alternatives to a third-party expert .......................................................9-2

B. ConsultationamongtheU.S.Attorney’sOce,MoneyLaunderingandAsset

RecoverySection,AssetForfeitureManagementSta,andU.S.MarshalsService

before seeking the appointment of a third-party expert ......................................9-2

III. QualicationsofTrustees,Monitors,Managers,andCustodians ..............................9-3

IV. Trustee, Monitor, Manager, and Custodian Expenses ................................................. 9-3

Chapter 10: Use and Disposition of Seized and Forfeited Property

.............. 10-1

I. Management and Disposal of Seized Assets .............................................................10-1

A. Assets seized by Department of Justice law enforcement agencies .................10-1

B. Assets seized by Department of the Treasury and Department of Homeland

Security law enforcement agencies ...................................................................10-1

C. Coordination for seizure planning, custody, and disposition decisions ............ 10-1

II. Use of Seized Property ..............................................................................................10-2

A. Use of seized property is prohibited .................................................................10-2

B. Pre-forfeiture sale of certain seized property ....................................................10-2

III. Disposition of Forfeited Property and Funds ............................................................10-3

A. Forfeiture orders ................................................................................................10-3

B. Disposition of forfeited property in civil and criminal cases ............................10-3

C. Sale of forfeited property ..................................................................................10-4

D. Disposition of forfeited funds ...........................................................................10-4

IV. Purchase or Personal Use of Forfeited Property by Department of Justice

Employees .................................................................................................................10-5

Chapter 11: Settlements......................................................................................11-1

I. General Policy ........................................................................................................... 11-1

A. Scope ................................................................................................................. 11-1

B. General settlement principles ............................................................................ 11-3

II. Settlement Approval Authorities ............................................................................... 11-6

A. Authorizingocials ......................................................................................... 11-6

B. Approval authority examples ............................................................................ 11-6

III. Using Administrative Forfeiture to Achieve a Settlement ........................................ 11-7

A. Settlementofforfeitureasanadministrativeforfeitureafteraclaimisledinan

administrativeforfeitureproceedingbutbeforeajudicialcomplaintisled ... 11-7

B. Using administrative forfeiture to settle civil forfeiture proceedings where no

prior administrative forfeiture proceeding has begun ....................................... 11-8

C. Using administrative forfeiture to settle criminal forfeiture proceedings ......... 11-9

IV. References to Remission or Restoration in Settlements ........................................... 11-9

viii  Asset Forfeiture Policy Manual 2023

V. Settlements in Civil Judicial Forfeiture Cases ........................................................ 11-10

VI. Plea Agreements Incorporating Criminal Forfeiture ............................................... 11-10

VII. SettlementofAttorneys’FeesLiabilities ................................................................ 11-11

VIII. Global Settlements and Dealing with Claimants and Witnesses ............................ 11-11

A. Ethical considerations ..................................................................................... 11-11

B. Global settlements ........................................................................................... 11-11

C. Claimants and witnesses ................................................................................. 11-12

IX. Cash in Lieu of Forfeiture of Other Property .......................................................... 11-14

A. Department of Justice policy .......................................................................... 11-14

B. Policy limitations ............................................................................................ 11-14

C. “Cash in lieu” vs. “substitute asset” ................................................................ 11-15

D. Interlocutory sales ........................................................................................... 11-15

Chapter 12: Attorneys’ Fees

.............................................................................. 12-1

I. PaymentofAttorneys’FeesinCivilForfeitureProceedings ....................................12-1

II. PaymentofAttorneys’FeesinCriminalForfeitureCases ........................................12-2

A. Defendant’sattorneys’fees ...............................................................................12-2

B. Third-partypetitioner’sattorneys’fees ............................................................. 12-3

III. PaymentofAttorneys’FeesinForfeitureCasesChart .............................................12-5

IV. ForfeitureofAttorneys’Fees .................................................................................... 12-5

Chapter 13: Post-Forfeiture Third-Party Interests

........................................... 13-1

I. Petitions for Remission and Mitigation ....................................................................13-1

A. Owners in remission .........................................................................................13-1

B. Lienholders in remission ...................................................................................13-2

C. Mitigation ..........................................................................................................13-2

D. Procedure for notice and processing petitions .................................................. 13-3

E. Priority of payments ..........................................................................................13-3

F. Cultural property ...............................................................................................13-4

II. Qui TamActions:PaymentofRelator’sShare ......................................................... 13-4

A. Overview of the False Claims Act (FCA) ......................................................... 13-4

B. Forfeiture proceedings as alternate remedies ....................................................13-5

C. Sourceofrelator’srighttorecover ................................................................... 13-5

D. Relator’sshareisapercentageofthenetforfeiturerecovery ........................... 13-6

E. Procedureforpayingrelator’sshare ................................................................. 13-7

Asset Forfeiture Policy Manual 2023  ix

Chapter 14: Forfeiture and Compensation for Victims of Crime ................... 14-1

I. Overview ...................................................................................................................14-1

II. Returning Forfeited Assets to Victims ...................................................................... 14-2

A. Remission ..........................................................................................................14-2

B. Restoration ........................................................................................................14-6

C. Preservation of assets for victims .....................................................................14-9

D. Special considerations for federal government victims ....................................14-9

E. Specialconsiderationsforvictimsofhumantrackingcrimes .....................14-10

F. Hybrid remission and restoration review ........................................................14-10

G. Termination of forfeiture and direct payment of assets to victims ................. 14-10

H. Comparison of judicial remission and restoration chart ................................. 14-11

III. Constructive Trusts in Multiple-Victim Fraud Cases .............................................. 14-12



................................ 15-1

I. FederalOcialUse .................................................................................................. 15-1

A. Overview ...........................................................................................................15-1

B. Federalocialusedesignationsbythefederalseizingagency .......................15-1

C. Federalocialuserequestsbyotherfederalagencies .....................................15-2

D. Internal guidelines .............................................................................................15-2

E. Paymentofliensonpersonalpropertyplacedintofederalocialuse ............15-3

II. Equitable Sharing ......................................................................................................15-3

III. Processing Applications for Equitable Sharing ......................................................... 15-4

A. Eligible participants .......................................................................................... 15-4

B. Compliance ....................................................................................................... 15-4

C. Equitable sharing allocations ............................................................................15-5

D. Submission of requests for equitable sharing ...................................................15-5

E. Final approval authority ....................................................................................15-6

IV. Equitable Sharing Payments ..................................................................................... 15-7

V. Federal Contribution Form (FCF) .............................................................................15-7

VI. Reverse Sharing ........................................................................................................ 15-9

VII. International Sharing of Forfeited Assets ................................................................. 15-9



Chart

.............................................................................................................A-1

x  Asset Forfeiture Policy Manual 2023

Foreword

The Money Laundering and Asset Recovery Section (MLARS) is pleased to release the 2023 edition

of the Asset Forfeiture Policy Manual, a publicly available compilation of policies governing the

Department of Justice Asset Forfeiture Program (Program). The purpose of the Policy Manual is

to provide Department of Justice (Department) prosecutors, agents, and other professionals with a

referencemanualinsupportoftheProgram’sgoals.

TheProgram’smissionistouseassetforfeitureasatooltodeter,disrupt,anddismantlecriminal

enterprises,denyingthemtheinstrumentsandtheproceedsofcriminalactivity.Theeectiveuse

ofbothcriminalandcivilassetforfeitureisanessentialcomponentoftheDepartment’seorts

tocombatthemostsophisticatedcriminalactorsandorganizationsincludingterroristnanciers,

fraudsters,humantrackers,transnationaldrugcartels,andcybercriminals.

TheProgram’sprimarygoals,setforthinThe Attorney General’s Guidelines on the Asset Forfeiture

Program (July 2018) (AG Guidelines), are:

(1) To punish and deter criminal activity by depriving criminals of property used in or acquired

through illegal activities.

(2) To promote and enhance cooperation among federal state, local, tribal, and foreign law

enforcement agencies.

(3) To recover assets that may be used to compensate victims when authorized under federal law.

(4) To ensure the Program is administered professionally, lawfully, and in a manner consistent with

sound public policy.

For 2023, the updates to the Policy Manual include policy guidance related to operational aspects

of the judicial and administrative forfeiture processes; revisions to the form of equitable sharing

forstate,local,andtriballawenforcementthroughtheDepartment’sEquitableSharingProgram,

namely, the elimination of the transfer of real property or tangible items through equitable sharing;

newguidanceonthenalityofcriminalforfeitures;newdelegationstotheU.S.Attorney’sOces

(USAOs)toapprovedirectadoptionsofcertainassets;andclaricationstothepoliciesgoverning

settlements and disclosures of grand jury information.

This Policy Manual replaces and supersedes all previous versions of the Policy Manual and all Policy

Directives issued by MLARS unless otherwise noted. The Policy Manual is available online at

MLARS Publications.

The Policy Manual

setsforththeDepartment’spolicies.Itdoesnot,however,createorconferany

legalrights,privileges,orbenetsthatmaybeenforcedinanywaybyprivateparties.See United

States v. Caceres, 440 U.S. 741 (1979).

We recommend using this format when citing the Policy Manual:

Asset Forfeiture Policy Manual (2023), Chap. , Sec. . . (e.g., Chap. 1, Sec. I.A).

Brent Wible

Chief

Money Laundering and

Asset Recovery Section

Asset Forfeiture Policy Manual 2023  1-1

Chapter 1:

Planning for Seizure and Restraint

I. Guidelines for Seizure and Restraint Planning

A. Background

The Department of Justice (Department) Asset Forfeiture Program (Program) encompasses the

seizure, forfeiture, and disposition of assets that represent the proceeds of, or were used to facilitate,

federal crimes. The Program has four primary goals:

(1) Punish and deter criminal activity by depriving criminals of property used in or acquired

through illegal activities.

(2) Promote and enhance cooperation among federal, state, local, tribal, and foreign law

enforcement agencies.

(3) Recover assets that may be used to compensate victims when authorized under federal law.

(4) Ensure that the Program is administered professionally, lawfully, and in a manner consistent

with sound public policy.

TheDepartmentmustadministerthePrograminascallyresponsiblemannertominimizecosts

whilemaximizingtheProgram’sabilitytocarryoutthesegoals.Theseguidelinesencourage

practicesthatminimizeoravoidthepossibilitythatthegovernmentmayinadvertentlyleforfeiture

proceedings against properties that lead to net losses to the Assets Forfeiture Fund (AFF) or that

present unique management and disposition challenges.

In particular, these guidelines ensure consultation with the U.S. Marshals Service (USMS), including

itsdistrictocesandheadquartersAssetForfeitureDivision(AFD),becausetheUSMSservesas

theprimarycustodianofseizedandforfeitedproperty,otherthanrearmsandammunition,

for

the Program, and with other agencies in the Program with responsibility for seizing, restraining,

managing, and disposing of assets, before the government commences legal action against forfeitable

property.

Investigatorsshouldbeginseizureplanningassoonastheyhaveidentiedassetsforseizure

orforfeiture.Seizureplanningaordsagenciesanopportunitytoconductnancialanalysesto

determinenetequitiesofidentiedassetsandtoreviewinadvancetitleorownershipissuesthatmay

delay or prevent the government from disposing of an asset in a timely manner following forfeiture.

Inaddition,seizureplanninggivestheUSMSsucienttimetoplanforthecareoftheassets,assess

The Attorney General’s Guidelines on the Asset Forfeiture Program (July 2018) (AG Guidelines).

References to seizure in this chapter include criminal or civil restraint unless plainly not applicable or appropriate.

TheBureauofAlcohol,Tobacco,FirearmsandExplosives(ATF)servesastheprimarycustodianofrearmsand

ammunition seized for forfeiture. SeetheDepartment’sAbout the Asset Forfeiture Program-Asset Forfeiture Program

Participants and Roles page for additional information on Program participants. For seizure planning, management, and

disposal of assets seized by agencies operating under Department of the Treasury (Treasury) guidelines, see Chap. 10,

Sec. I.B in this Manual.

References to the USMS throughout this Manual include other departments responsible for managing restrained and

seized assets like the Department of the Treasury (Treasury) and the Department of Homeland Security (DHS).

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1-2  Asset Forfeiture Policy Manual 2023

thelevelofdicultyinhandlingtheassets,andidentifyanyspecialrequirementsneededtopreserve

the assets.

TheseguidelinesdirecteachU.S.Attorney’sOce(USAO)

(or in administrative forfeitures, the

agentsinchargeofeacheldoce)toestablishspecicproceduresfortheirrespectiveocesor

districtstoidentifyandaddresscriticalnancialandpropertymanagementissuesbeforeseizingor

restraining real property, commercial enterprises, or other types of property that may pose problems

of maintenance or disposition (e.g

.,animalsandaircraft).Theseguidelinesaresucientlyexibleto

enableeachUSAO(orinadministrativematters,theagentinchargeofaseizingagency’seldoce)

toestablishanduselocalproceduresthatclearlydeneandassignlocalseizureandrestraint-planning

responsibilities.

The USAO or seizing agency should advise the USMS

promptly before the seizure or restraint,

orbeforethelingofanycivilforfeiturecomplaintorthereturnofanyindictmentcontaining

forfeiture allegations, as to any assets that are best managed with advance seizure planning (e.g., real

orcommercialproperty,virtualcurrency,animals).ThisconsultationaordstheUSMSsucient

time to conduct ownership or title and valuation analyses, and to identify all resources necessary to

ecientlymanageseizedassetsanddisposeofforfeitedassets.

B. Scope of assets covered by guidelines

These guidelines cover all assets considered for federal forfeiture.

The degree and nature of planning

for seizure or restraint will vary depending upon the circumstances and complexity of each case.

FortheUSMStobestassistUSAOsandseizingagenciesinathorough,ecient,andeective

manner, the USAO or seizing agency must involve the USMS in the investigation as soon as

itidentiesassetsthatlikelywillbeseizedforforfeiture.

Seizure planning should occur well

beforethelingofacivilforfeiturecomplaintorthereturnofanindictmentcontainingforfeiture

allegations.Specically,seizureplanningrequiresadetaileddiscussionofallpotentialissues

aectingtheseizure,custody,maintenance,anddisposalarrangementsspecictoeachassetidentied

for forfeiture. This discussion may occur in person, by telephone, or electronically, and may be

References to USAOs throughout this Manual generally include Criminal Division trial attorneys or other litigating

Department components not partnering with a USAO.

ReferencestotheUSMSincludeUSMSdistrictocerepresentatives.

See Chap. 3 in this Manual for a full discussion of the policies and procedures involving assets seized by state and local

law enforcement agencies.

Assets in cases where a Department agency is not the lead agency may be handled by the independent contractors

employed by non-Department agencies rather than the USMS (like Treasury or DHS) and those independent contractors

should participate in seizure planning as appropriate. See Chap. 10, Sec. I.B in this Manual; see also Sec. I.C.1 in this

chapter for a discussion of lead agency responsibility.

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Asset Forfeiture Policy Manual 2023  1-3

ongoing depending on the nature of the asset and stage of the forfeiture proceeding. These seizure

planning discussions are mandatory for certain assets:

• residential or commercial real property and vacant land;

• businesses and other complex assets;

• large quantities of assets involving potential inventory, storage, or security problems (e.g.,

multiple vehicles from several locales or districts, personal property assets that will be seized

from multiple locations on the same day, or the inventory of operating businesses, such as

jewelry stores);

• assetsthatcreatedicultorunusualproblems(e.g., animals, perishable items, chemicals and

pharmaceuticals, leasehold agreements, intellectual property, cryptocurrencies, and valuable art

and antiques); and

• assets located in foreign countries.

Depending upon the complexity and scope of the case, formal seizure planning may continue after

this initial discussion as required by the USAO, the seizing agency, or the USMS. In many instances,

the USMS will need to procure the professional assistance of commercial vendors during the covert

stage of an investigation so that services such as inventories, appraisals, transportation, and storage

will coincide with a scheduled takedown date. The USMS will take appropriate measures to protect

sensitive law enforcement information while consultation occurs with the involved components.

The USMS must consult with the USAO or the seizing agency in advance of the release of any

information to third-party contractors.

The information provided to contractors can be limited to

that necessary to procure required contractor services and facilities (e.g., towing services and storage

space for 50 vehicles required in a particular location by a certain date). At all times, those engaged

in the seizure planning process must be sensitive to operational security, and never do anything that

might jeopardize operational security or compromise ongoing covert investigations. In addition, the

USAO or seizing agency must conduct real property lien and title searches as covertly as possible,

such as through use of public property websites, if available.

Examples of the types of services the USMS may provide upon the request of a USAO or seizing

agency (as well as the usual time it takes to obtain the requested service) include lien search and

appraisal information, animal care, logistics services, and business recommended action plans.

For the purposes of this Manual,commercialrealpropertymeansresidentialrealpropertycomprisingveormoreunits

and any other real property held for commercial purposes.

See Sec. I.D.2 in this chapter for a discussion of seizure or restraint of operating businesses. Commercial vessels, or any

vesselsworthmorethan$1million,areconsideredcomplexassetsthatrequirepriornoticationandconsultationwiththe

Money Laundering and Asset Recovery Section (MLARS). See Sec. I.C.3 in this chapter.

Federal prosecutors must adhere to established procedures for international contacts and should not contact foreign

ocialsdirectlyoncase-relatedmattersunlesssuchcontactshavebeenapprovedby,andareunderthesupervisionof,or

areinconsultationwiththeOceofInternationalAairs(OIA).See Chap. 8, Sec. I.A in this Manual.

See Chap. 6 in this Manual for a discussion of disclosure of grand jury information.

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1-4  Asset Forfeiture Policy Manual 2023

Service Estimated Completion Time Description

Lien search

and appraisal

information

3–4 weeks from date of

request to return information

(additional time necessary

for full, non-“drive-by”

appraisals)

USMSoerstheseservicestoprovideUSAOs

and investigative agencies information during

the pre-indictment, seizure planning stage of a

criminal or civil investigation.

Animal care

1–2 months prior to seizure Proper arrangements must be made to ensure health

and daily care of the animals. USAOs should contact

USMS for further guidance involving the care of

animals.

Logistics

services

3–6 months prior to takedown

date for unusual or complex

assets

Federal contracting regulations and the time

necessary to coordinate with commercial vendors

make it imperative to involve USMS as soon as such

services are anticipated.

Business

recommended

action plan

2–4 months, or longer in more

complex cases

USAOs and seizing agencies should make forfeiture

decisions only after USMS conducts a documentary

reviewofthebusinessassetsidentiedforforfeiture

andtheirnancialstatus.

C. General seizure planning policy guidelines

Section C provides broad seizure planning policy guidelines for all agencies participating in the

Program. In some circumstances, variations to these guidelines may be made in consultation with the

Money Laundering and Asset Recovery Section (MLARS).

C.1 Lead agency responsibility

The U.S. Attorney

(or in administrative forfeiture proceedings, the agent in charge of the forfeiture

matterintheeldoce

) is responsible for ensuring that proper and timely seizure planning occurs

in asset forfeiture proceedings within each federal judicial district. All seizure planning meetings

must include, at a minimum:

• the Assistant U.S. Attorney (AUSA) or investigative agent in charge of the administrative

forfeiture matter (and, if applicable, the AUSA in charge of the related criminal matter);

• investigative agents; and

• appropriate USMS representatives.

In forfeiture proceedings involving federal regulatory matters, seizure planning meetings must also

include a federal regulatory agency representative.

As a general rule, one lead agency should process all the seized assets for forfeiture. The lead agency

is the agency that processes the assets for forfeiture. Assets shall not be divided among multiple

Unless otherwise noted, references to the U.S. Attorney in this Manualincludeotherauthorizingocialsresponsiblefor

oversight of Criminal Division trial attorneys or Department components.

Dependingontheagency,agencystamayberesponsibleforensuringthatproperandtimelyseizureplanningoccurs.

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Asset Forfeiture Policy Manual 2023  1-5

agencies to process for forfeiture.

For instance, a cash seizure of $800,000 may not be divided into

two $400,000 seizures to be separately credited to two agencies. Similarly, a seizure of two vehicles

maynotbedividedintotwoseizuresofonevehicleeachtobecreditedtotwodierentagencies.

Further, forfeiture amounts paid pursuant to an agreement to pay a particular amount in the future to

satisfy a money judgment, a deferred prosecution agreement (DPA), or a non-prosecution agreement

(NPA) may not be divided into separate payments to multiple agencies.

Theleadprosecutingocemay,inextraordinarycircumstances,permitindividualseizurestobe

allocatedtodierentagencies.Theseallocationsrequiretheexpressconsentoftheleadprosecuting

oce.

In asset forfeiture proceedings involving more than one federal judicial district, the USAO instituting

the forfeiture proceeding shall have primary responsibility, in coordination with the lead investigative

agency, to ensure that proper and timely seizure planning occurs in all districts in which assets will be

seized.

C.2 Seizure planning overview

Seizure planning ensures that the various components of the Department work together so that asset

forfeitureisusedasanecientandcost-eectivelawenforcementtoolconsistentwiththeProgram’s

goals. To that end, seizure planning provides the government with the opportunity to make informed

decisionsonmattersregardingthenancialeectsofseizing,restraining,forfeiting,andmanaging

assets,andonallmattersaectingthegovernment’sabilitytoecientlydisposeofassetsfollowing

forfeiture.Specically,seizureplanningconsistsofanticipatingissuesandmakingfullyinformed

decisions concerning what property should be seized or restrained, how and when it should be seized

or restrained, and, most importantly, whether the property should be forfeited at all. Depending on

asset type and circumstance, seizure planning discussions should address:

• What is being seized, who owns it, and what are the liabilities against it? Determine

the full scope of the seizure to the extent possible. For example, if a house is being seized,

will the contents also be seized? If a business is being seized, are the buildings in which it

operates, the property upon which it is located, the inventory of the business, and its operating

or other bank accounts, accounts receivable, or accounts payable also to be seized? All

ownershipinterestsandanyexistingorpotentialliabilitiesineachassetmustbeidentiedto

the extent possible.

• If the asset has a negative

or marginal net equity at the time of seizure, should it be seized and forfeited? Over time,

what is the likelihood that the asset will depreciate to a negative or marginal value? What

lawenforcementbenetsaretoberealizedfromseizureandforfeiture?Isarestraining

or protective order an adequate alternative to seizure, given the circumstances? Can any

anticipated losses be avoided or mitigated through careful planning? Will custody, forfeiture,

ordisposaloftheassetimposeundulysignicantdemandsonUSMSorUSAOresources

or require a considerable infusion of funds from the AFF? For complex assets, what is the

long-termmarketabilityoftheassets?Forexample,astoabusiness,whatisthenancial

MultipleassetidenticationnumbersshouldnotbecreatedforanindividualassetintheConsolidatedAssetTracking

System (CATS) database.

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1-6  Asset Forfeiture Policy Manual 2023

viability of the business? Determine whether the continued operation, or even a takeover, of

thebusinessisinthegovernment’sbestinterest.

• How and when is the asset going to be seized and forfeited? Determine whether

immediateseizureisnecessaryorifrestraintoftheassetissucienttopreserveandprotect

thegovernment’sinterest.Thetypeandcontentoftheseizinginstrumentandauthorityfor

both the investigative agency and the USMS to enter or cross private property, such as in a

writofentry,mustbeidentiedandprocuredbeforeseizureorrestrainttoensurethateach

agency has the necessary information and legal authority for its seizure and post-seizure

responsibilities.

• What management and disposition problems are anticipated, and how will they be

resolved? Any expected logistical issues involving the maintenance, management, or

disposition of assets should be discussed and resolved as early as possible.

• 

problems, what are the alternatives to forfeiture? For example, is it possible to instead

release the property to a lienholder and seek a lien in favor of the government pursuant to

18U.S.C.§983(d)(5),orallowtaxforeclosureandidentifyanyproceedsofit,orlean

interpleader action?

• Is any negative publicity anticipated? If publicity or public relations concerns are

anticipated,appropriatepublicaairspersonnelshouldbeadvisedandconsulted.Consider

preparing a press release announcing any information from the public record on the basis and

purpose of the seizure, restraint, and forfeiture.

 

These guidelines set minimum net equity levels that generally must be met, preferably before seizing

property and certainly before instituting federal forfeiture proceedings. The net equity values are

intended to enhance case quality and expedite processing of the cases that are initiated. In general, the

minimum net equity requirements are:

• Real property and vacant land—minimum net equity must be at least $30,000 or 20% of the

appraised value, whichever amount is greater, at the time of case initiation. No real property

withanetequitylessthan$30,000shouldbeidentiedforforfeiturebutindividualdistricts

may set higher thresholds to account for local real estate markets. See also Chapter 4,

Section I.B.2 in this Manual. As a general rule, the Department exercises extreme caution in

seizing contaminated real properties for forfeiture.

• Vehicles—minimum net equity must be at least $10,000 (based on the J.D. Power, formerly

known as National Automobile Dealers Association, “trade-in value”). The value of multiple

See Chap. 4, Sec. I.E in this Manual.

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Asset Forfeiture Policy Manual 2023  1-7

vehicles seized at the same time may not be aggregated for purposes of meeting the minimum

net equity.

• Cash—minimum amount must be at least $5,000, unless the person from whom the cash

was seized either was, or is, being criminally prosecuted by state or federal authorities

for

criminal activities related to the property, in which case the amount must be at least $1,000.

• Aircraft—minimum net equity must be at least $30,000. Note that failure to obtain the

logbooksfortheaircraftwillsignicantlyreducetheaircraft’svalue.

• Vessels—for personal or recreational vessels, the minimum net equity must be at least

$15,000. Commercial vessels, or any vessels worth more than $1 million, are considered

complex assets that require the USAO or the seizing agency to notify and closely consult

with MLARS prior to seizing, restraining, or otherwise seeking forfeiture of the asset. See

Section I.B in this chapter.

• All other personal property—minimum net equity must be at least $2,000 in the aggregate.

• Firearms, ammunition, explosives, devices used in child exploitation, and vehicles

with after-market hidden compartments—Minimum value and net equity thresholds do not

applytorearms,

ammunition, explosives, devices used in child exploitation, or vehicles

with after-market hidden compartments because there is a compelling law enforcement

interest in forfeiting these items.

• Businesses—see Section I.D.2 in this chapter.

Exceptions from the minimum net equity requirements are not allowed for any individual item if it

has a value of less than $1,000. Exceptions may be allowed if practical considerations support the

seizure (e.g., 20 items of jewelry, each valued at $500, might be seized, as the total value of the items

is $10,000 and the cost of storing 20 small items of jewelry is not excessive).

The USAO, in consultation with local federal law enforcement agencies, may institute higher district-

wide thresholds for judicial forfeiture cases as law enforcement or management needs require.

Similarly, a federal law enforcement agency may institute higher thresholds for administrative

forfeiture cases. Districts shall not use their own higher thresholds as a basis to deny a request for

seizureassistancefromanotherdistrictwithalowerthresholdiftherequestingdistrictintendstole

the judicial proceeding. Prosecutors should consult with their respective districts and the federal law

enforcementagencyregardingdistrict-oragency-specicforfeiturethresholds.

In some circumstances, an overriding law enforcement interest may require the seizure and forfeiture

of an asset that does not meet the net equity thresholds. In individual cases, these thresholds may be

waived when forfeiture of a particular asset will serve a compelling law enforcement interest, e.g.,

a drug house; a conveyance with after-market hidden compartments; a computer or internet domain

name involved in a major fraud scheme; equipment connected to child exploitation and pornography,

humantracking,orterrorism;vesselsusedinaliensmugglingormodiedorcustomizedto

facilitate illegal activity; or a vehicle used in alien smuggling seized at an international border. When

Written communication from state or federal authorities of the intent to seek criminal prosecution in the future is also

appropriate to trigger the $1,000 threshold.

See Chap. 5, Sec. IV in this Manual.

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1-8  Asset Forfeiture Policy Manual 2023

feasible,priortoseizure,asupervisory-levelocialattheUSAO(forjudicialforfeitures)orseizing

agency (for administrative forfeitures) must approve in writing the seizure or restraint and forfeiture

of any asset that does not meet the thresholds, and ensure that the reason for the decision be noted in

thecasele.TheUSMSmayrequestthisapprovalduringseizureplanningifsucientequitydoes

notexistoritisanticipatedtodissipateduringtheasset’stimeincustody.

If the restraint, seizure, or forfeiture of real property could create a net loss to the AFF for that

property, the USAO and the seizing agency must consult MLARS, the Asset Forfeiture Management

Sta(AFMS),andtheUSMS.See Section I.D.1.b.1 in this chapter; see also Chapter 4, Section I.B.2

in this Manual. If the restraint, seizure, or forfeiture of an operating business could create a net loss

to the AFF for that business, the USAO and the seizing agency must obtain prior approval from

MLARS, in coordination with AFMS and the USMS. See also Section I.D.2 in this chapter.

C.4 Seizure of proceeds from violations involving a state sponsor of terrorism

The statute governing the U.S. Victims of State Sponsored Terrorism Fund (USVSST Fund) mandates

thatcertainforfeitureproceeds,penalties,andnesbedepositedintotheUSVSST Fund if forfeited or

paidtotheUnitedStatesafterthedateoftheAct’senactment(December18,2015).

This includes

cases related to countries designated by the Department of State as state sponsors of terrorism,

involving violations of the International Emergency Economic Powers Act (IEEPA)

or the Trading

with the Enemy Act

orrelatedconspiracies,schemesorotherfederaloenses.

Prosecutors must

consult MLARS as early as possible in any case that involves a state sponsor of terrorism and may

require deposits to the USVSST Fund. See Chapter 10, Section III.D in this Manual.

D. Seizure planning analysis and documentation

The USMS has various seizure planning resources to assist stakeholders in making informed

decisions when identifying assets for forfeiture. USMS resources include net equity worksheets,

ownershipanalysisdocuments,andnancialanalysisdocuments.TheUSAOandseizingagency

mustconsultwithUSMStodeterminewhichanalysestoperformforanyassetsidentiedfor

forfeiture. This consultation, and obtaining the information required to complete these analyses, will

identify the issues that must be addressed during the seizure planning phase of a case, which reduces

thechancethatforfeituremaycausetheAFFtoincuraloss,preservesthegovernment’sabilityto

disposeoftheassetsinanecientandcost-eectivemannerfollowingforfeiture,andensuresthat

the costs of storage and maintenance of particular assets, as well as the potential liabilities involving

theassets,maybeassessedwellinadvanceofforfeiture.Individualocesmaysupplementthese

analysesastheyseet.However,theUSMSrequiresthebasicinformationdescribedbelowfor

adequate planning.

 

Whencertainassets,especiallyresidential,commercial,andvacantrealproperties,areidentiedfor

forfeiture,thepotentialnetequitymustbecalculatedaspartofseizureplanning.Awrittennancial

See Sec. I.D.1.b in this chapter.

For more information about the USVSST Fund,visitMLARS’USVSST page

50 U.S.C. § 1701 et seq.

50 U.S.C. § 4301 et seq.

See 34 U.S.C. § 20144(e)(2)(A).

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Asset Forfeiture Policy Manual 2023  1-9

analysis facilitates, documents, and informs seizure planning decisions. In cases where information

relatingtotitlesandlienscannotbeacquiredwithoutcompromisingtheinvestigation,thenancial

analysis may be completed following restraint or seizure of the property.

The USMS net equity worksheets provide step-by-step formulas for computing net equity—the

estimated total amount of money the government expects to recoup from the asset once the aggregate

of all liens, mortgages, and management and disposal costs have been subtracted from the expected

proceeds of the sale of the asset—and documents the results of this analysis. The USAO or the

seizing agency is strongly encouraged to adopt the USMS net equity forms, as they provide the most

updated estimates for the management and disposal of properties based on current contract prices.

D.1.a Ownership and encumbrances

The investigative agency is responsible for compiling current and accurate information on the

ownershipof,andanyencumbrancesagainst,personalpropertyidentiedforforfeiture,and

providing that information to the USMS and the USAO before seizure, whenever practicable. When

not practicable before the seizure, the investigative agency must compile and make the information

available to the USAO and USMS as soon as possible following the seizure. When real property

andbusinessesareidentiedforseizure,theUSMShasprimaryresponsibilityforconductingatitle

search before seizure unless otherwise agreed in individual cases. The USMS often cannot conduct

a complete ownership analysis for a business unless the USAO obtains, by subpoena or otherwise,

appropriate ownership documents (e.g.

,stockrecordbooks,stockcerticates,LLCoperating

agreements, etc.). A subpoena may be required to obtain accurate mortgage balances to accurately

calculate net equity.

D.1.b Financial analysis: avoiding liability seizures

D.1.b.1 Planning before seizure and restraint

Before seizing an asset with a potential liability in a judicial forfeiture, the USAO must consult with

the seizing agency and the USMS to evaluate and consider the forfeitable net equity and the law

enforcement purposes in light of the potential liability issues and estimated costs of post-seizure

management and disposition. In an administrative forfeiture of an asset with a potential liability, the

seizing agency must consult with the USMS.

Ifthenancialanalysis,atthetimeofcaseinitiation,indicatesthattheaggregateofallliens

(including judgment liens), mortgages, and management and disposal costs approaches or exceeds the

anticipated proceeds from the sale of the property, the USAO, or in administrative forfeiture actions

the seizing agency, must either (1) determine not to go forward with the seizure

or (2) acknowledge

thepotentialnanciallossanddocumentthecircumstancesthatwarranttheseizureandinstitutionof

theforfeitureaction.Forrealproperty,theUSAOmustobtainapprovalbyasupervisory-levelocial

attheUSAOinwritingwithanexplanationofthereasonnotedinthecasele.

See Sec. I.D.1.b.2 in this chapter.

The USAO may consider alternatives to seizure such as restraint of certain assets or a lis pendens for real property.

See Chap. 4, Sec. I.B.2 in this Manual.

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1-10  Asset Forfeiture Policy Manual 2023

D.1.b.2 Planning after seizure and restraint

In instances where seizure planning is not possible or is not completed before seizure, the seizing

agency may be responsible for custody and maintenance of the property until the USMS has had

the opportunity to conduct an analysis of the assets. The USMS will complete its seizure planning

analysis as soon as practicable given the nature of the information required. Upon completion and

reporting of the USMS seizure analysis, a seizure meeting with the appropriate agencies as described

in Section I.C.1

inthischaptershouldtakeplacetoaddressallissuesidentied.Forpropertythat

hasmettherequirednetequitythreshold,ifthenancialassessmentindicatesthattheaggregateof

all liens and management and disposal costs approaches or exceeds the anticipated proceeds from

the sale of the property, then the seizing agency in administrative forfeiture proceedings must either

(1) take immediate action to terminate forfeiture of the asset (if any forfeiture proceeding has been

commenced)or(2)acknowledgethepotentiallossanddocumentthejusticationforcontinued

pursuitoftheforfeiturenotwithstandingthenancialassessment.Injudicialforfeiturecases,the

USAO must either (1) take action to dismiss the asset from the forfeiture action and to void any

expedited settlement agreements involving the asset (if any have been entered into) or

(2)acknowledgethepotentiallossanddocumentthejusticationforthecontinuationoftheforfeiture

action notwithstanding the loss.

D.2 Seizure or restraint of operating businesses

Seizing an operating business poses complex issues and risks substantial losses and liabilities.

Accordingly, the USAO must notify and closely consult with MLARS and the USMS before seizing,

restraining, or otherwise seeking forfeiture of an operating business.

The USAO or seizing agency must seek approval from MLARS if the restraint, seizure, or forfeiture

of a business could create a net loss to the AFF. MLARS, in coordination with the USAO, AFMS, and

the USMS, will determine whether to grant approval. Further, prior approval from the U.S. Attorney

isrequiredbeforeseizingorlingacivilforfeiturecomplaintagainstanoperatingbusinessbasedon

a facilitation theory.

Before any seizure or restraint of an operating business, the USAO, investigative agency, and USMS

shouldformulateanactionplanoutliningeachagencyoroce’srequirements,responsibilities,and

objectives. Although there are many complex issues to consider in evaluating an operating business,

thegovernmentmustrstdeterminewhatitintendstorestrain,andultimatelyseizeandforfeit.

This determination requires analysis of the business entity itself (e.g., corporation, limited liability

company, partnership, sole proprietorship), the ownership structure of the business (e.g., the existence

of other owners or partners), and whether the entity itself or its owners have been or will be indicted.

See Chap. 5, Sec. III.D.1.b in this Manual.

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Asset Forfeiture Policy Manual 2023  1-11

A pre-seizure review of a business will help a USAO answer the following questions:

• Who owns the building in which the business operates?

• Who owns the land?

• Whatisthecashowofthebusiness?Whatisthecashowifincomefromtheillegal

activity ceases?

• What are the monetary values of accounts receivable and payable?

• What other valuable assets does the business own?

• Aretheresignicantliabilities?

• What is the net equity of the business?

• Are there environmental concerns?

• Is the business highly regulated? Is the business currently in compliance with its regulatory

obligations?

• Will the business require capital contributions to remain viable?

• Whatlawenforcementorregulatorymethodsoralternativestoforfeituremaybeeective

(e.g., revocation of a license essential to operation of the business by state or local

authorities)?

• Is the business being seized as facilitating property or as proceeds of crime? Once the source

ofillegalfundingandtheillicitcustomersaregone,thebusinessmaynolongerbeprotable.

If the business is facilitating illegal activity and also engaging in legal but unseemly activity,

is the government in a position to prevent or monitor the activity (e.g., government operation

of a strip club that attracts illegal drugs and prostitution)? The public may have an expectation

that if the government is operating the business, it will be able to prevent all illegal activity.

• Whatwoulditcosttohireeitherabusinessmonitorortrusteeandnecessarysta,orother

third-party experts, if needed?

• Canthebusinessbedisposedofecientlyandcost-eectivelyuponforfeiture,andhowlong

will the forfeiture and post-forfeiture disposition process take?

Please refer to Chapter 2, Section VI in this Manual for more detailed guidance addressing the seizure

and forfeiture of businesses.

E. Quick release

 

Certain non-contraband property may be released following federal seizure for forfeiture but prior

tothelingofanyclaimpursuantto28C.F.R.§8.7.Thisisknownas“quickrelease.”This

mayincludepropertythatdoesnotmeetasset-specicnetequitythresholds(see Section I.D.1

See Chap. 9, Sec. III in this Manual for a discussion of security measures.

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1-12  Asset Forfeiture Policy Manual 2023

in this chapter), property the seizing agency decides not to forfeit after post-seizure analysis (see

Sections I.D.1.b.1 and I.D.1.b.2 in this chapter), property belonging to an innocent owner having

an immediate right to possession, or other property the release of which serves to promote the best

interests of justice or the government (28 C.F.R. § 8.7(b)). While these issues ideally should be

resolved in seizure planning,

agencies may use post-seizure quick release whenever warranted.

When a seizing agency elects to use quick release, determining the appropriate party to whom the

property should be released will depend on the nature of the seized property and the particular

circumstances. If there is no registered owner of the property to be released, e.g., currency, it

usually should be returned to the person from whom it was seized.

If there is a registered owner

of the property, such as in the case of an automobile, the property should usually be returned to

that party, regardless of whether there is a lienholder or other third party with ownership rights to

the property. However, if a third party, such as a lienholder, has asserted its contractual rights in a

judicialproceeding,obtainedanaljudgment,andprovidedsatisfactoryproofofthejudgmentandits

ownership interest and right to immediate possession of the property, the seizing agency may return

the property to that third party instead of the registered owner. Similarly, if a state court authorizes

a state or local law enforcement agency to take possession of the seized property, the seizing agency

mayreleasethepropertyinaccordancewiththatstatecourt’sorder.Iftheseizingagencyisaware

of a third party with an ownership interest in the property, regardless of whether the third party has

asserted any contractual rights to immediate possession, the seizing agency may notify the third party

of the release in advance of releasing the asset to the registered owner.

E.2 Declination

There may be instances in which a prosecutor declines to proceed with a judicial forfeiture after a

claimhasbeenledinanadministrativeforfeitureproceeding.Oncethatdecisionismadeandthe

federal government no longer has a legal basis for holding the seized property (e.g., it is not evidence

of a violation of law), within 30 days of the decision the agency that seized the property must return

it to the appropriate party, initiate abandonment proceedings pursuant to

28 C.F.R. § 8.10(e), or

otherwise dispose of it in accordance with law. In determining the appropriate party to whom to

return the seized property, the seizing agency should follow the same guidance for the return of

propertypursuanttoquickrelease,includingprovidingpromptnoticationtotheappropriateparty.

See Secs. I.C.2 and I.D in this chapter for more about seizure planning.

Inmostcases,however,releaseoffundswillbesubjecttotheTreasuryOsetProgram(TOP).See Chap. 11, Sec. I.B.9 in

this Manual.

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Asset Forfeiture Policy Manual 2023  1-13

II. Pre-Seizure Judicial Review

Pre-seizure judicial authorization of property seizures serves multiple purposes, including:

• allowingneutralanddetachedjudicialocerstoreviewthebasisforseizuresbeforetheyoccur;

• enhancingprotectionforDepartmentocersagainstpotentialcivilsuitsclaimingwrongful

seizures; and

• reducing the potential that the public will perceive property seizures to be arbitrary and

capricious.

Wheneverpracticable,Departmentocialsshouldobtainex parte judicial approval by, for example,

obtaining a seizure warrant, before seizing personal property.

Asset Forfeiture Policy Manual 2023  2-1

Chapter 2:

Seizure and Restraint

I. Overview

Seizure and restraint of assets is a critical step in any civil or criminal investigation. Seizure involves

the physical restraint of an asset or its transfer from the owner or possessor to the custody or control

of the government, primarily through a law enforcement agency. Seizure generally occurs:

• incident to an arrest,

• pursuant to a search,

• pursuanttoacivilorcriminalseizurewarrantforspecicitemssubjecttoforfeiture,

• pursuant to arrest warrant in rem, or

• pursuant to a preliminary order of forfeiture.

A restraining order is an order that the government may obtain from a district court judge before or

afterlingacivilforfeiturecomplaintoranindictmentseekingforfeitureofanasset.Arestraining

order directs a person or entity who owns or has custody of an asset subject to forfeiture to preserve

the asset for potential forfeiture. The government typically does not take physical possession of the

asset pursuant to a restraining order. But a restraining order may require the execution of satisfactory

performance bonds; create receiverships; appoint conservators, custodians, appraisers, accountants,

or trustees; or require the person on whom it is served to take other actions to secure, maintain, or

preserve the availability or value of property subject to forfeiture.

Law enforcement often obtains authority for seizures through a search warrant or seizure warrant

issuedbyafederalmagistrateandbaseduponaswornadavitthatdescribesindetailtheproperty

to be seized and the evidence demonstrating probable cause that the property is subject to seizure

and forfeiture. Federal Rule of Criminal Procedure 41 governs the authorization for search warrants,

and the seizure of evidence, contraband or items illegally possessed, and the instrumentalities to a

crime. 18 U.S.C. § 981(b), 21 U.S.C. § 881, and 21 U.S.C. § 853 govern the authorization of seizure

warrants of assets for forfeiture.

Under certain circumstances, warrantless seizures may be necessary and appropriate. A warrantless

seizure may be appropriate if the seizing agent had probable cause at the time of seizure to believe

that the asset is subject to forfeiture, an exception to the warrant requirement applies, and the seizing

agentislawfullyinapositiontoeecttheseizure.See 18 U.S.C. § 981(b)(2)(B).

See 18 U.S.C. § 983(j), which provides for issuance of civil restraining orders; 21 U.S.C. § 853(e), which provides for

issuance of criminal restraining orders.

Chapter 2: Seizure and Restraint

2-2  Asset Forfeiture Policy Manual 2023

II. General Policies and Procedures for Seizing Property

A. Responsibility for execution of process

In addition to seizure planning,

investigators should also formulate a plan for executing the warrant.

Generally, the U.S. Marshals Service (USMS) has primary responsibility for execution of warrants

of arrest in rem, while the pertinent Department of Justice (Department) investigative agency has

primary responsibility for execution of seizure warrants. The USMS and investigative agencies

should coordinate execution of process.

Eectivewarrantexecutionplanningincludes,forexample,

• identifying who will be the seizing agents;

• planningforunusualassetsthatwouldbediculttosecure,transport,maintain,orstore;

• identifying and inventorying assets;

• planning for safeguarding the value of assets upon seizure; and

• caring for any animals to be seized.

 

U.S.Attorney’sOces(USAOs)andinvestigativeagenciesparticipatingintheDepartment’sAsset

Forfeiture Program (Program) must enter all assets seized for forfeiture in the Consolidated Asset

Tracking System (CATS) database.

Inmanyinstances,USAOsworkwithagenciestoobtainprocesstoeectuateseizuresandrestraints.

Thus, USAOs often have direct access to information about certain seizures. However, when USAOs

are not involved in restraints, USAOs can still access reports of seizures by agencies participating

in the Program in their districts in CATS. All non-Department agencies that do not report seizures

in CATS must forward copies of seizure forms or a report of seizures to the pertinent USAO within

25 days of seizure unless an individual USAO chooses to not receive seizure notices.

C. Forms of process

C.1 Warrant of arrest in rem

In most civil judicial cases, the court exercises its in rem jurisdiction over property by issuing

warrants of arrest in rem, which the seizing agency then executes. Rule G(3) of the Supplemental

Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (Supplemental Rules) governs

the procedure for issuing an arrest warrant in rem. Under the Supplemental Rules, no arrest warrant is

needed if the defendant property is real property

or is already subject to a pretrial restraining order.

In all other cases, however, the government must obtain an arrest warrant in rem and serve it on the

See Chap. 3, Sec. III in this Manual for a full discussion of the policies and procedures involving custody and concurrent

jurisdiction.

See Chap. 1 in this Manual for a full discussion of seizure planning.

See 18 U.S.C. § 985(c)(3); Supplemental Rule G(3)(a).

See Supplemental Rule G(3)(b)(iii).

Chapter 2: Seizure and Restraint

Asset Forfeiture Policy Manual 2023  2-3

property, generally by actual or constructive seizure of the property, so that the court obtains in rem

jurisdiction.

The procedure for issuing the warrant of arrest in rem

diersdependingonthecustodyoftheproperty

atthetimethecomplaintisled.Ifthepropertyisalreadyinthegovernment’scustodyatthetime

thecomplaintisled,theclerkofthecourtmayissuethewarrantwithoutanyndingofprobable

causebyajudgeormagistratejudge.Butiftheeectofthewarrantwillbetotakethepropertyout

ofthehandsofanon-governmententity,thecourtmustissuethewarrantuponandingofprobable

cause. See Supplemental Rule G(3)(b). Once the warrant is issued, it must be delivered “to a person

or organization authorized to execute it.” See Supplemental Rule G(3)(c).

C.2 Seizure warrant

A seizure warrant authorized by 21 U.S.C. § 881(b), 21 U.S.C. § 853(f), and 18 U.S.C. § 981(b)(2)

also serves as a form of process for seizing forfeitable property. A seizure warrant issues upon a

judicialndingofprobablecauseinasimilarmannertoasearchwarrantobtainedunderFederalRule

of Criminal Procedure 41. In the case of a criminal forfeiture seizure warrant obtained under § 853, in

additiontoprobablecauseforseizure,thejudgemustalsondthatarestrainingorderisinsucient.

While a seizure warrant may be issued pursuant to either the applicable criminal or civil forfeiture

statute, it may be prudent to obtain a warrant under both the civil and criminal statutes. This is

often referred to as a “dual-purpose” or “hybrid” warrant. Such a dual-purpose warrant eliminates

the need for the government to obtain any additional order authorizing the government to continue

holding property for criminal forfeiture where the government had originally seized the property via

a civil warrant or for civil (including administrative) forfeiture. See 18 U.S.C. § 983(a)(3); see also

Section III.B in this chapter.

If agents intend to enter a private structure for the purpose of searching for and seizing, or

inventorying, personal property subject to forfeiture, they should consult with their local USAO on

whether the circumstances or law also require a separate search warrant.

C.3 Seizure of real property

The government ordinarily does not physically seize real property prior to forfeiture. Indeed, in a

civil forfeiture case, 18 U.S.C. § 985 bars the government from seizing real property before judgment

exceptuponthegovernment’s(1)makingapre-seizureex parte showing of probable cause and

exigent circumstances or (2) serving notice of the motion for a seizure warrant on the property owner

and giving the property owner a meaningful opportunity to be heard. See Chapter 4, Section I.C in

this Manual

foradiscussionoftheDepartment’spolicyonhowtoobtainin rem jurisdiction over

real property and the limited circumstances under which it may be appropriate to seek pre-judgment

seizure of real property.

See 18 U.S.C. § 982(b)(1); 21 U.S.C. § 853(e); In re Pre-Indictment Restraining Ord. (Hailey), 816 F. Supp. 2d 240,

244–45 (D. Md. 2011) (noting that under § 853(e), a court may enter orders directing a person to refrain from dissipating

assets,toaccountforexpendituresoffundssubjecttoforfeiture;andtotakearmativestepstopreserveproperty

subjecttoforfeiture;enteringpre-indictmentrestrainingorder,followingcourt’searlierissuanceofnon-dissipationand

accounting orders that froze two bank accounts of target of criminal investigation and required target to surrender property

he acquired in violation of prior non-dissipation order to the custody of the court pending indictment and trial).

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C.4 Seizure by state or local law enforcement

An adoptive forfeiture occurs when a state or local law enforcement agency seizes property and

requests that a federal seizing agency adopt the seizure and proceed with federal forfeiture. See

Chapter 3 in this Manual for a discussion of the policies and procedures involving seizures by state

and local law enforcement agencies.

D. Judicial authority issuing process

While seizure warrants, search warrants, and forfeiture restraining orders are similar in many respects,

theydiergreatlyinoneimportantcharacteristic.Whileasearchwarranttypicallymustissuefrom

a judge in the district in which the property to be searched is located, forfeiture process, such as a

seizure warrant or restraining order, may issue from a judge in which the property to be seized is

located or in the district that has venue for the prosecution of the criminal or civil judicial forfeiture

proceeding.

III. Seizures for Criminal Forfeiture

A. What process must the government seek to retain custody of an asset for

potential criminal forfeiture?

Thegovernmentisnotrequiredtohaveanassetsubjecttocriminalforfeitureinthegovernment’s

possession during the pendency of a criminal forfeiture proceeding. That is because criminal

forfeiture proceedings are in personam—so the court does not need to have in rem jurisdiction over

the asset (which type of jurisdiction typically requires the government to have possession of the

asset) to make the asset subject to criminal forfeiture. The criminal forfeiture statutes accordingly

contemplatethatassetssubjecttocriminalforfeituremightremaininthedefendant’scustodyuntil

the court enters a preliminary order of forfeiture. See 21 U.S.C. § 853(g) (“Upon entry of an order

of forfeiture under this section, the court shall authorize the Attorney General to seize all property

ordered forfeited”).

That said, to avoid the dissipation of forfeitable assets, the government often does have physical

possession of the asset subject to criminal forfeiture before entry of a preliminary order of forfeiture

in the criminal case. For example, the government could have obtained custody of the asset via a

criminal seizure warrant under § 853(f) or a criminal restraining order under § 853(e) that required

thedefendanttotransfertheassettothegovernment’scustody.Orthegovernmentcouldhaveseized

the asset as evidence in a criminal investigation. The government also could have seized the asset

for civil forfeiture via a civil seizure warrant issued under 18 U.S.C. § 981(b), a warrant of arrest in

rem issued under Rule G(3)(b)(ii) of the Supplemental Rules for Admiralty or Maritime Claims and

AssetForfeitureActions(SupplementalRules)afterthegovernmentledacivilforfeitureaction,ora

lawful warrantless seizure for forfeiture purposes.

However, if “criminal forfeiture is the only forfeiture proceeding commenced by the government,

thegovernment’srighttocontinuedpossessionofthepropertyshallbegovernedbytheapplicable

criminal forfeiture statute.” See 18 U.S.C. § 983(a)(3)(C). Accordingly, where the government seeks

As noted in footnote 9 in Sec. III.B in this chapter, the question of whether a criminal seizure warrant or restraining order

is required to retain custody of an asset for criminal forfeiture does not arise where the asset was originally seized via

a criminal seizure warrant under 21 U.S.C. § 853(f) and 18 U.S.C. § 982(b)(1) or a dual-purpose criminal-civil seizure

warrant under those statutes and 18 U.S.C. § 981(b).

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Asset Forfeiture Policy Manual 2023  2-5

to criminally forfeit an asset that was originally obtained through some process other than a criminal

or dual-purpose seizure warrant and (1) civil, judicial, or administrative forfeiture proceedings against

theassetwerenevercommencedorhaveterminatedand(2)theassetlackssucientevidentiary

value to justify its continued retention as evidence, then to be entitled to retain custody of the asset for

criminal forfeiture pending the outcome of the criminal case under § 983(a)(3)(C), the government

must obtain:

• a criminal or dual-purpose seizure warrant,

• a restraining order under 21 U.S.C. § 853(e), or

• a “housekeeping order” under § 853(e) authorizing retention of the asset for criminal forfeiture

purposes.

B. If civil forfeiture is being pursued parallel to criminal forfeiture, no additional

criminal restraint process is needed

Assistant U.S. Attorneys (AUSAs) should consider preserving the option of pursuing civil forfeiture

of assets—particularly high-value assets or unique assets that require special care, such as live

animals—even while pursuing criminal forfeiture of those assets to mitigate risk in the event the

defendantisacquitted,ees,ordiesbeforethecriminalcaseisnalized.

The government may retain an asset pending the outcome of a civil forfeiture proceeding as long as

(a) an administrative forfeiture proceeding or a civil judicial forfeiture action is pending against the

asset or (b) a court has issued either (or both) a civil seizure warrant authorizing its seizure under

18 U.S.C. § 981(b) or a warrant of arrest in rem under Rule G(3)(b)(ii) of the Supplemental Rules

for Admiralty or Maritime Claims and Asset Forfeiture Actions (Supplemental Rules). This remains

See United States v. Zazueta-Hernandez, No. 1:19-cr-00130-MWM-1, 2020 WL 5016940 (S.D. Ohio Aug. 25, 2020)

(holdingthatforassetsalreadyinthegovernment’scustody,thegovernmentmaysatisfy18U.S.C.§983(a)(3)(B)(ii)(II)’s

requirement that the government take steps to assure the availability of the property for criminal forfeiture by requesting

only a “housekeeping” order, and noting that because a housekeeping order is not a restraining order as the property is

alreadyinthegovernment’scustody,orderrequiresnondingofprobablecause);In Re 2000 White Mercedes ML320

Five Door SUV, 220 F. Supp. 2d 1322, 1325 (M.D. Fla. 2001) (holding that as to property already in government

custody, the government may satisfy 18 U.S.C. § 983(a)(3)(B)(ii)(II) by requesting only a “housekeeping” order under

21 U.S.C. § 853(e)); but see United States v. Escobedo-Coronado, No. 4:21-cr-00325-GKF-4, 2022 WL 873615,*2–3 n.3

(N.D.Okla.Mar.23,2022)(holdingthatwhereanassetisalreadyinthegovernment’scustodybutthegovernmenthas

notpreviouslyobtainedandingofprobablecausethattheassetissubjecttocriminalforfeiture,andthegovernment

seekstoretaincustodyofthepropertybysatisfying§983(a)(3)(B)(ii)(II)’srequirementthatthegovernmenttakestepsto

assuretheasset’savailabilityforcriminalforfeiture,thegovernmentmustbothallegethattheassetissubjecttocriminal

forfeiture in the indictment or a bill of particulars and also obtain a restraining order under 21 U.S.C § 853(e) upon a

showing of probable cause that the asset is subject to criminal forfeiture; rejecting United States v. Zazueta-Hernandez

andothercasesholdingthatthegovernmentmaysatisfy§983(a)(3)(B)(ii)(II)’scustodypreservationrequirementwithout

ashowingofprobablecauseastoforfeiturenexuswheretherehasbeensuchnopriorndingofprobablecauseasto

nexus).

The question of whether a criminal seizure warrant or restraining order is required in a criminal case for the government

to preserve the option of civil forfeiture does not arise where the asset was originally seized via a criminal seizure warrant

under 21 U.S.C. § 853(f) and 18 U.S.C. § 982(b)(1) or a dual-purpose criminal-civil seizure warrant under those statutes

and 18 U.S.C. § 981(b).

See United States v. Ajrawat,738F.App'x.136,139–40(4thCir.2018)(ifdefendant’sconvictionisextinguishedbecause

of death while appealing conviction and sentence, the forfeiture and restitution orders must be abated); United States

v. Lay, 456 F. Supp. 2d 869, 874 (S.D. Tex. 2006) (noting that a conviction typically abates if defendant dies after he is

sentencedbutbeforehisappealisnalandthatthisabatementruleappliesequallytocaseswheredefendantdiesbefore

he has been sentenced and judgment entered against him; vacating conviction and restitution order).

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the case even if the civil forfeiture case against the asset is stayed pending resolution of a parallel

criminal case.

When an asset is the subject of an administrative forfeiture proceeding and someone made a claim

to the asset in that proceeding, to preserve the government’s ability to pursue civil forfeiture of the

asset

,within90daysfromthedatetheclaimwasledwiththeseizingagencyintheadministrative

proceeding the government must:

(1) commence a civil forfeiture action against the asset;

(2) obtainacriminalindictmentorleacriminalinformation“containinganallegationthatthe

propertyissubjecttoforfeiture”and“takethestepsnecessarytopreserve[thegovernment’s]

right to maintain custody of the property as provided in the applicable criminal forfeiture

statute”; or

(3) return the property.

See 18 U.S.C. § 983(a)(3)(B).

Ifthegovernmentlesacivilforfeitureproceedingagainsttheassetwithinthat90-dayperiod

followingthelingoftheclaimintheadministrativeforfeitureproceeding(orwithinthetimeofany

court-authorized extension), the government obviously preserves its option to pursue civil forfeiture

of the asset. The arrest warrant in rem (as well as any civil seizure warrant) would authorize the

government’scontinuedpossessionofthepropertywhilethecivilforfeiturecaseispending.

If, however, the government seeks to satisfy § 983(a)(3)(A) solely by pursuing criminal forfeiture of

anasset—byobtaininganindictment(orlinganinformation)thatincludesaforfeiturenoticelisting

the asset as subject to forfeiture within the 90-day period—it must also “take the steps necessary to

preserve[thegovernment’s]righttomaintaincustodyofthepropertyasprovidedintheapplicable

criminal forfeiture statute.” See 18 U.S.C. § 983(a)(3)(B)(ii)(II).

If the government has already

obtained a pre-indictment criminal or a dual-purpose seizure warrant or a criminal restraining order

as to the asset, then the government need not take any further steps. If the government has not

already obtained a criminal or dual-purpose seizure warrant or restraining order upon obtaining the

See United States v. Stokes, No. 1:14-CR-290-1-TWT-JKL-1, 2017 WL 5986231, *5 (N.D. Ga. Oct. 23, 2017), r. & r.

adopted, 2017 WL 5971986 (N.D. Ga. Dec. 1, 2017) (holding that government may lawfully retain possession of funds

subjecttocriminalforfeiture“byvirtueof[a]timelyledparallelcivilforfeitureaction”wherefundswereseizedvia

civilseizurewarrantandafterclaimwasmadeinadministrativeproceeding,governmentledparallelcivilforfeiturecase

against funds within the 90-day period prescribed in 18 U.S.C. § 983(a)(3); stay of civil forfeiture case pending resolution

ofcriminalcasedidnotaectgovernment’sauthoritytoretaintheseizedfundsbyvirtueoftimelylingofparallelcivil

forfeiture case).

Thegovernmentmayalsoobtain,fromacourtinthedistrictwherethecivilforfeiturecomplaintwillbeled,an

extensionofthecomplaint-lingdeadline“forgoodcauseoruponagreementoftheparties.”See § 983(a)(3)(A).

Becauseitisnotalwaysclearwhowillbethe“parties,”thatis,whowillbetheclaimants,inanot-yet-ledcivilforfeiture

case, even upon reaching extension stipulations with all the anticipated claimants, an AUSA seeking an extension of the

complaint-lingdeadlineshouldnonethelessaskthecourttomakeagood-causendingfortheextension.

See United States v. Lindell, No. 13-00512 DKW, 2016 WL 4707976, *8 (D. Haw. Sept. 8, 2016) (because government

had initially seized funds via a pre-indictment dual-purpose warrant issued under both civil and criminal forfeiture

statutes,whenthegovernmentthenobtainedanindictmentseekingforfeitureofthosefundswithinthetimespecied

in18U.S.C.§983(a)(3)(A),thegovernmentwasalreadyincompliancewith§983(a)(3)(B)(ii)’srequirementthat

the government also “take steps necessary to preserve its right to maintain custody of the property as provided in the

applicable criminal forfeiture statute”).

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Asset Forfeiture Policy Manual 2023  2-7

indictment, then to satisfy § 983(a)(3)(B)(ii)(II), the government must also obtain within the 90-day

period:

• a criminal or dual-purpose seizure warrant,

• a restraining order under 21 U.S.C. § 853(e), or

• a “housekeeping order” under § 853(e) authorizing retention of the asset for criminal forfeiture

purposes.

Finally, if within that 90-day period (or any extension), the government fails either (1) to commence

a civil forfeiture proceeding against the asset or (2) to both commence a criminal action seeking

forfeiture of the asset and obtain a criminal seizure warrant, restraining order, or housekeeping order

topreservethegovernment’srighttoretaintheassetforcriminalforfeiture,thenthegovernmentmay

not seek civil forfeiture of the asset. In that circumstance, the statute requires that the government

“promptly release the property pursuant to regulations promulgated by the Attorney General, and

maynottakeanyfurtheractiontoeectthecivilforfeitureofsuchpropertyinconnectionwiththe

underlyingoense.”See 18 U.S.C. § 983(a)(3)(B).

To summarize, where (1) the government has seized an asset in some way other than a criminal

seizure warrant or criminal restraining order, (2) the asset is the subject of an administrative

forfeiture proceeding, (3) someone made a claim to the asset in that administrative forfeiture

proceeding, and (4) the government elects to pursue only criminal forfeiture of the asset, then to

preservethegovernment’soptiontopursuecivilforfeiture,thegovernmentmust,within90days

after the claim was made in the administrative proceeding, both (1) include the asset in the forfeiture

notice of an indictment or in a bill of particulars and (2) obtain a seizure warrant, restraining order,

or a housekeeping order allowing the government to maintain custody of the asset for potential

criminal forfeiture pending the conclusion of the criminal case. Thus, under these very common

circumstances, a timely order authorizing the government to continue retaining the asset for criminal

forfeitureisessentialtopreservethegovernment’spowertoforfeittheassetcivilly.

The 90-day deadline provision in § 983(a)(3) applies only where an asset was the subject of an

administrative forfeiture proceeding in which a claim was made. See 18 U.S.C. § 981(a)(1)(A). If

the seizing agency did not commence an administrative forfeiture proceeding against the asset, then

the 90-day deadline and the other requirements of § 983(a)(3) do not apply. Still, even in such cases,

if the government pursues only criminal forfeiture of an asset, the government may not lawfully

maintain possession of that asset by relying solely on a civil seizure warrant. Rather, in that case, and

as noted in Section III.A in this chapter, the government must obtain either a criminal seizure warrant,

restraining order, or housekeeping order to be entitled to retain the asset for criminal forfeiture.

C. Property seized without a warrant

Under 18 U.S.C. § 981(b), property may be seized for civil judicial or administrative forfeiture

without a warrant if probable cause exists for the seizure and an exception to the warrant requirement

applies.Iftheseizuresatisesthoseconditions,thegovernmentmaymaintainphysicalpossession

of the property pursuant to the § 981(b) seizure during the pendency of parallel criminal and civil

See footnote 8 in Sec. III.A in this chapter for cases holding that as to property already in government custody, the

government may satisfy 18 U.S.C. § 983(a)(3)(B)(ii)(II) by requesting only a “housekeeping” order under 21 U.S.C.

§ 853.

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judicial or administrative forfeiture proceedings to the same extent it could if the property had been

seized with a warrant. However, as described above, if the related civil judicial or administrative

forfeitureisterminatedornotledwithinthestatutorydeadline,thegovernmentwillhavetomaintain

physical possession pursuant to a criminal seizure warrant, pretrial restraining order, housekeeping

order, or as evidence.

D. Property seized for evidence

The seizure of property for evidence in a criminal case provides an independent basis for the

continued physical possession of property during the pendency of a criminal forfeiture proceeding

while the evidentiary value of the property persists.

Thus, if property is seized for evidence, it may

be named in a criminal forfeiture proceeding and held by the government without the need to obtain a

criminal seizure warrant or pretrial restraining order.

Once the property loses its evidentiary value,

however, the government must obtain a seizure warrant or restraining order to maintain custody

of the property for forfeiture. If a court has entered a preliminary order of forfeiture, however, the

government can rely on the preliminary order of forfeiture to continue to hold the property, without

obtaining a seizure warrant or restraining order.

The USMS does not store property held as evidence, even when it is subject to forfeiture. The seizing

agency retains custody until the property is no longer needed for evidence.

IV. Proper Use of Writs of Entry in Civil and Criminal Forfeiture Proceedings

A district court has the authority pursuant to 18 U.S.C. § 983(j)(1)

and 21 U.S.C. § 853(e)(1)

take any action necessary to preserve the availability of property subject to forfeiture. Accordingly,

the government may apply for a writ of entry in any civil or criminal forfeiture proceeding to preserve

the availability of property subject to forfeiture, and the district court has the authority to issue such a

writ for that purpose.

However,awarrantlessseizurejustiedonthegroundofexigentcircumstancesmaynotremainvalidoncetheexigency

has passed. See United States v. Cosme, 796 F.3d 226, 235 (2d Cir. 2015) (“the exigent circumstances exception only

permits a seizure to continue for as long as reasonably necessary to secure a warrant”; invalidating under the Fourth

Amendment the continued government custody of funds without a warrant two years after the funds were seized from

bank accounts without a warrant on the grounds of exigent circumstances).

For a discussion of policies and procedures relating to seized cash management and cash retained for evidence, see

Sec. VII in this chapter.

18 U.S.C. § 983(j)(1) provides that, “Upon application of the United States, the court may enter a restraining order

or injunction, require the execution of satisfactory performance bonds, create receiverships, appoint conservators,

custodians, appraisers, accountants, or trustees, or take any other action to seize, secure, maintain, or preserve the

availability of property subject to civil forfeiture.”

21 U.S.C. § 853(e)(1), a criminal forfeiture statute located in the drug code, provides that, “Upon application of the

United States, the court may enter a restraining order or injunction, require the execution of a satisfactory performance

bond,ortakeanyotheractiontopreservetheavailabilityofproperty[subjecttocriminalforfeiture]underthissection.”

Section 853 applies to the general criminal forfeiture statute found in Title 18 pursuant to 18 U.S.C. § 982(b)(2).

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Asset Forfeiture Policy Manual 2023  2-9

Inbothcivilandcriminalproceedinginwhichanalorderhasnotbeenobtained,thegovernment

mayusewritsofentryissuedbythecourtandbaseduponandingofprobablecausetoenter:

• onto the curtilage of private real property to inventory structures located thereon without

entering those structures;

• onto private real property for the purpose of seizing personal property located thereon (such as

an automobile) in plain view; or

• the interior of a private struct ure subject to forfeiture to conduct an inventory limited to

documenting the condition of the interior and inspecting for damage, and to conduct an

appraisal.

See 18 U.S.C. § 985(b)(2). When seeking a writ of entry, the application should include a detailed

agentadavitsettingforththefactssupportingaconclusionthatthegovernmenthasprobablecause

to believe that (1) the property being searched for, seized, or inventoried is subject to forfeiture and

(2) the property is located at or in the place to be searched.

The“lingofalis pendens and the execution of a writ of entry for the purpose of conducting an

inspection and inventory of the property” does not constitute a seizure under the statute authorizing

civil forfeiture of real property. See 18 U.S.C. § 985(b)(2).

V. Seizure of Financial Instruments and Cryptocurrency

 

ACerticateofDeposit(CD)isasavingsdepositcerticatewithaxedmaturitydateandaspecied

xedinterestrate.Essentially,aCDisapromissorynotefromtheissuertorepaythedepositedfunds

plus interest at a future maturity date. CDs are usually issued by commercial banks, mature in as little

as a month or as long as 10 years or more, and range in denominations from $1,000 to “jumbo” CDs

over$100,000.IfaCDisissuedbyaqualifyingnancialinstitution,theprincipalamountisinsured

by the Federal Deposit Insurance Corporation (FDIC) and the National Credit Union Administration

(NCUA) for up to $250,000 per person per account. Interest may be paid at regular intervals or all at

once at maturity. Higher interest is available for larger deposits or longer maturity dates. A penalty

usually applies for early withdrawal of the funds, but no-penalty CDs are available at an extremely

lowinterestrate.Becausetherearenolicensingorregistrationrequirements,brokeragermsand

independent salespersons may issue CDs, which may or may not be FDIC or NCUA-insured.

Particularly because CDs are so variable, the seizing agency should immediately notify the issuer

of the CD that it has been seized or restrained for forfeiture. The agency should instruct the issuer

to take the steps necessary to freeze the principal and accrued interest covered by the CD so it will

be negotiable by the USMS after forfeiture. Most CDs issued today are not evidenced by a paper

certicate;theyaresimplyanelectronicbookkeepingentry.

The USMS will take appropriate action, in accordance with established procedures, to liquidate the

CDs after forfeiture.

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B. Cryptocurrency

Cryptocurrency is a form of virtual currency that uses cryptography to secure and authenticate

transactions and to manage and control the creation of new currency units. Generally, cryptocurrency

is not issued by any government, bank, or company but instead generated and controlled through

computer software operating on a decentralized peer-to-peer network. Most cryptocurrencies have

a blockchain, a decentralized (typically public) transaction ledger containing an immutable and

historical record of every transaction involving the cryptocurrency. Using open source or subscription

analytical tools, cryptocurrency transactions can often be traced in their blockchains. However, some

cryptocurrencies known as anonymity-enhanced cryptocurrencies (AECs) operate on blockchains that

are not transparent or have built in privacy protocols designed to conceal transactional information,

makingitdiculttotraceorattributetransactions.AECsarealsocommonlyreferredtoasprivacy

coins.

Financial Crimes Enforcement Network (FinCEN) Guidance issued on March 18, 2013 (FIN-2013-

G001),

and May 9, 2019 (FIN-2019-G001),

states that convertible virtual currency administrators

and exchangers, including kiosk operators and individual exchangers operating as a business, are

regulated as money services businesses (MSBs).

Cryptocurrency is associated with a type of storage account called a wallet. A wallet is a software

program that interfaces with the blockchain and generates and stores public and private keys used to

send and receive cryptocurrency.

Each seizing agency must have an agency-controlled, unhosted wallet for temporary storage of seized

cryptocurrency prior to the transfer of custody to the USMS or USMS contractor. Depending on the

types of cryptocurrency seized, law enforcement agencies typically set up one or more wallets for

each seizure. After seizing cryptocurrency, processing the seized cryptocurrency through the seizing

agency’sassetforfeituredepartment,andassigningaCATSidenticationnumber,theseizingagency

may then transfer the cryptocurrency for pre-forfeiture storage according to current USMS Complex

Assets Unit (CAU) procedures.

As there are thousands of types of cryptocurrencies, prior to seizing cryptocurrency assets,

prosecutors and agents should consult with the USMS to determine if targeted cryptocurrency can

be stored and liquidated by the USMS or USMS contractor. If a cryptocurrency type has been seized

but cannot be stored or liquidated by the USMS, USMS may not be able to process the asset. After

seizingAECs,lawenforcementshouldstorethemintheagency’sunhostedwalletsuntilfurthernotice

from the USMS.

Unless a seizing agency has obtained authorization through a search warrant or consent by the owner,

the seizing agency should obtain a seizure warrant for the seizure of cryptocurrency.

In the case of

cryptocurrency held in a locally stored wallet in the United States, the seizing agency should obtain a

FIN-2013-G001: ApplicationofFinCEN’sRegulationstoPersonAdministering,Exchanging,orUsingVirtualCurrencies

(Mar. 18, 2013).

FIN-2019-G001: ApplicationofFinCEN’sRegulationstoCertainBusinessModelsInvolvingConvertibleVirtual

Currencies (May 9, 2019).

See FIN-2013-G001 and FIN-2019-G001.

In many cases, the seizure of cryptocurrency associated with a locally stored wallet may be authorized by a Federal Rule

of Criminal Procedure 41 search and seizure warrant issued for a premises or electronic device where a wallet and private

keys are located.

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Asset Forfeiture Policy Manual 2023  2-11

seizure warrant for that cryptocurrency possessed and controlled by the owner and serve the warrant

ontheownerortheowner’scounsel.Inthecaseofcryptocurrencyheldinanaccountorwallet

hosted by a U.S.-based service provider, such as an institutional exchange, the seizing agency should

obtain and serve a seizure warrant on the service provider, similar to executing a seizure warrant on a

bank account.

Many cryptocurrency service providers are located outside the United States. Prosecutors should

consulttheOceofInternationalAairs(OIA)regardingseizureofcryptocurrencyfromforeign

service providers, such as institutional exchanges, even in cases where a wallet company does not

itself have access to or control of the private key. Generally, seizures from foreign-located service

providers will require use of a mutual legal assistance (MLA) treaty request or other similar authority.

See Chapter 8 in this Manual for a discussion of policies relating to international seizures and

forfeitures.SomeexchangeslocatedoutsidetheUnitedStatesmighthaveU.S.ocesorpointsof

contact and will accept service of U.S. seizure warrants; however, prosecutors and agents should

seek the voluntary restraint of foreign-located assets only through U.S. points of contact. Prosecutors

should not agree to accept any cryptocurrency from a foreign-located company without an MLA

requestorpermissionfromOIA,evenifthecompanyoerstotransfertheassetsvoluntarily.Doing

so without an MLA request or permission from OIA could violate the sovereignty of another country.

Contact the Money Laundering and Asset Recovery Section (MLARS) for examples of warrants for

cryptocurrency.

Prosecutors and agents should be aware that there may be multiple copies of a private key for

a particular cryptocurrency asset. Thus, once the government obtains authorization to seize

cryptocurrency, the seizing agency should immediately transfer it to an agency-controlled, unhosted

wallet so that others who have copies of the private key cannot transfer the asset. This will not only

preserve the cryptocurrency for forfeiture but also will preserve the jurisdiction of the court in a civil

forfeiture case because in rem

jurisdictionispremiseduponthecourt’scontroloftheasset.Seizing

agencies should hold all seized cryptocurrency in cold storage (i.e.,inasecureoinedevice)untilthe

agencies transfer it to a USMS or USMS contractor-controlled wallet, per current USMS procedures.

Iftheseizingagencyhasdicultyaccessingthecryptocurrencyforseizure,itshouldworkwiththe

owner or contact the Computer Crime and Intellectual Property Section (CCIPS) for assistance.

Cryptocurrency should be kept in the form it was seized and not liquidated (i.e

.,convertedtoat

currencyorothercryptocurrency)untilanalorderofforfeitureisenteredoranadministrative

forfeitureisnal.Prematureconversionposescertainrisks,includinguctuationinthevalueofthe

cryptocurrency, and the government would be responsible for making the owner whole (including any

priceuctuation),shouldtheseizedcryptocurrencyultimatelybereturnedtotheowner.

In the limited situations where an interlocutory sale or pretrial conversion may be appropriate,

prosecutors and agents must consult with MLARS before seeking an order for interlocutory sale. An

order for the interlocutory sale of cryptocurrency must be sought at the request of, or with the consent

of, all parties with an ownership interest in the asset, or in certain cases involving victims who

sueredpecuniarylosses.

Prosecutors should contact MLARS or USMS headquarters Asset Forfeiture Division (AFD) for

guidance regarding disposition of AECs. MLARS must approve any request to sell AECs or to place

themintoocialuse.

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Any liquidation of cryptocurrency should be executed according to established written policies of

the seizing agency and the USMS. Prosecutors or agencies may contact MLARS or USMS AFD for

guidance regarding disposition of any cryptocurrencies.

C. Employee Retirement Income Security Act (ERISA) accounts

Defendants frequently hold retirement accounts that may be subject to forfeiture, either directly or

as substitute assets. However, prosecutors should be aware that there may be legal limitations on the

forfeitureofretirementaccounts.Certainemployeepensionbenetordeferredcompensationplans

are governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001–

1461 et seq. The statute limits the assignment or sale of certain pension plans. See 29 U.S.C.

§1056(d)(1).SomecourtshaveheldthatERISA’santi-alienationprovisionprecludesforfeitureof

funds in ERISA-protected retirement plans. See United States v. Funds ex rel. Weiss, 345 F.3d 49,

56–57 (2d Cir. 2003) (ERISA anti-alienation provision bars forfeiture of funds while they are held in

a valid ERISA-protected pension plan). Prosecutors should be familiar with the caselaw in their own

districts and circuits.

Although in certain circuits there exists a limitation on forfeiting funds in ERISA-protected pension

plans, ERISA does not bar the garnishment of funds in ERISA-protected retirement plans for

restitution. See United States v. Sheth, 759 F.3d 711 (7th Cir. 2014) (“We have recognized that the

Mandatory Victims Restitution Act (MVRA) supersedes anti-alienation provisions so that retirement

accounts may be used as a source of funds to provide restitution” (cleaned up)); United States v.

DeCay, 620 F.3d 534, 541 (5th Cir. 2010) (notwithstanding its anti-alienation provision, 29 U.S.C.

§ 1056(d)(1), ERISA retirement accounts are subject to MVRA restitution awards). Accordingly,

forfeitureprosecutorsshouldconsultcloselywiththeirnanciallitigationcounterpartswheneverthe

government is considering pursuing ERISA-protected assets.

D. Interest On Lawyer Trust Accounts (IOLTA)

Most states require attorneys to maintain client funds in a client trust account (CTA). CTAs

frequently hold funds clients pay up-front as an advance on fees and expenses before legal work

is commenced. These accounts also frequently contain other client funds, such as funds received

from legal settlements. All states have Interest On Lawyer Trust Accounts (IOLTA), a form of CTA,

programs. IOLTAs are mandatory in some states and voluntary in others. Whether mandatory or

voluntary, the IOLTA mechanism pools funds that could not otherwise earn interest for individual

clients, and the interest on the pooled funds is payable to a state-sponsored IOLTA program. IOLTA

programsinturnusethefundstonancecharitableandeducationalendeavors,improvementstothe

administration of justice, and to provide indigent and low-income persons with legal services.

CTA or IOLTA accounts may contain client funds that are subject to forfeiture, including funds

transferred by a client relating to legal services to be performed and other funds. Funds residing in a

CTAorIOLTAaccountarenotattorneys’feesbecausetheyhavenotbeenearnedbytheperformance

of legal work; they represent funds held in an account available to bill against for future legal

services. Therefore, funds residing in a CTA or IOLTA account may be seized without prior approval

fromMLARS.However,specicDepartmentpolicyappliestotheforfeitureofearnedattorneys’

fees.

This policy does not limit the seizure and forfeiture of client funds held in CTA or IOLTA

See Chap. 12, Sec. IV in this Manual; Justice Manual (JM) § 9-120.000 et seq.

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Asset Forfeiture Policy Manual 2023  2-13

accounts that are unrelated to the provision of legal services. However, CTA or IOLTA accounts often

contain commingled funds of numerous clients. Consequently, prosecutors should ensure that only

forfeitable funds in CTA or IOLTA accounts that are subject to forfeiture are seized or restrained, not

other untainted funds unrelated to the target that are commingled in the CTA or IOLTA account. To

avoid the seizure of untainted third party funds, prosecutors should not rely on the fungible property

statute, 18 U.S.C. § 984, when seizing funds from CTA or IOLTA accounts.

E. Life insurance

The value to be realized from the seizure or restraint of a life insurance policy depends on the type of

insurance policy at issue and its level of maturity. Thus, before seizing or restraining a life insurance

policy for forfeiture, prosecutors and seizing agencies must identify the type of insurance policy at

issue.

There are generally two types of life insurance—term life insurance and cash-value or permanent

life insurance. Term life insurance is referred to as basic life insurance. Term insurance provides

coverageforaspecicperiodoftimeandpaysalumpsumuponthedeathofthepolicyholder.Once

the term ends, coverage under this policy ends. It does not include a cash value that can be used in the

future. However, some term insurance policies include an option to convert to a cash-value policy.

Cash-value life insurance is considered a form of permanent life insurance that pays out upon the

policyholder’sdeathbutaccumulateswealthduringthepolicyholder’slifetime.Thepolicyholdercan

use the cash value as a tax-sheltered investment or as a fund from which to borrow and as a means

to pay policy premiums later in life, or the policyholder can pass it to their heirs. The cash-value

account earns a modest rate of interest that accumulates tax-free. Over time, the cash-value account

grows, which reduces the mortality risk of the life insurer. Upon the death of the insured, the insurer

isonlyobligatedtopaythedeathbenet,notthecashvalue,whichitretains.Wholelife,variable

life, and universal life are all types of cash-value life insurance. Coverage under these policies stays

ineectaslongasthepremiumsarepaid.

The cash value to be realized from the seizure or restraint of a life insurance policy depends upon the

type of insurance policy at issue and its level of maturity. The account value of a life insurance policy

that builds cash value is the amount that the investment portion of the policy is worth. The investment

portion of the policy is paid out of the premiums paid by the insured. Some cash-value life insurance

policies levy a surrender charge if cashed in before a certain length of time. Surrender charges

generally become lower the longer the insured owns the life insurance policy. With most policies

the surrender charges eventually disappear, and the account value and surrender value of the policy

become the same.

Thefacevalueofthepolicyisthedeathbenetthatitprovidesupontheinsured’sdeath.Thisisthe

minimumthatthebeneciarywouldreceivefromthepolicy,aslongasthereisnotanoutstanding

loan against a cash-value policy. Some policies, typically universal life policies, pay more than the

face value if the insured dies and the investments have gained in value. The policy might pay the cash

value of the policy in addition to the face value.

Because there may be tax and other legal implications for early withdrawal, to preserve the value of

the policy, it may be more appropriate for prosecutors to seek a restraining order, rather than a seizure

warrant, for the funds.

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To maximize the value of the policy at issue, prosecutors should:

(1) identify the type of insurance policy at issue;

(2) identify the maturity date of the policy;

(3) identify the value of the policy to be seized or restrained. Prosecutors may be able to obtain

this information from various sources, including the attorney or fraud investigator for the

insurance company;

(4) if seeking a restraining order, make sure that the order directs the insurance company to:

(a) maintain investments as they were as of the date of restraint, in the case of a restraining

order; and

(b) changethebeneciaryofthepolicytothegovernment.

(5) if seeking a seizure warrant, make sure that the warrant directs the insurance company to pay

the requested value as set forth in the warrant;

(6) servetherestrainingorderorseizurewarrantontheinsurancecompanyorappropriatenancial

institution; and

(7) provide a copy of the restraining order or seizure warrant to the USMS at the time the funds are

transferred to government custody.

The USMS will take appropriate action, in accordance with established procedures, to liquidate the

life insurance policy after forfeiture.

F. Money orders

The U.S. Postal Service (USPS) is the largest issuer of money orders. Other non-USPS private MSBs

andnancialinstitutionsissuetheirownmoneyorderseitherthroughthousandsofagentsorthrough

their own branches.

The USPS sets a maximum purchase value of $1,000 for each domestic money order and $700

for most international money orders, except for El Salvador and Guyana, for which the maximum

purchase value is $500. Other issuers set maximum purchase values of $500 to $1,000 for their

moneyorders.Purchasersmayusecash,debitcards,ortravelers’checkstopurchasemostmoney

orders. Because purchasers frequently use cash to buy money orders, criminals often misuse money

orders as part of laundering schemes or to move illicit proceeds obtained from any number of criminal

activities.

Abuyerofamoneyorderusuallyreceivesareceiptthatincludesthemoneyorder’sserialnumber.

Tracking a money order generally requires the serial number; without a receipt or serial number,

trackingcanbedicult,ifnotimpossible.TheUSPSoersUSPS online Money Order Inquiry

System (MOIS), an online money order inquiry service that allows purchasers to input the money

order serial number and receive an update on its status. To track any other type of money order,

issuers usually require the inquirer to complete a tracking form and pay additional fees to determine

whether a money order already has been cashed.

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Seizing a money order as evidence or for forfeiture does not necessarily seize the funds held on

deposit by the issuer to satisfy payment of the money order. Because the purchaser may obtain

a refund of the purchase funds by reporting money orders stolen, lost, or accidentally destroyed,

physical possession of the money order is not required to dispose of the funds associated with it.

Therefore, in most instances, prosecutors should obtain a criminal or civil seizure warrant or criminal

restraining order that authorizes seizure or restraint of the money orders themselves, as well as an

order that authorizes seizure or restraint of the total amount of funds held by the issuer necessary to

satisfy the money orders.

For USPS money orders, investigating agents or prosecutors may verify or track a money order

several ways:

• by checking the USPS online MOIS by selecting the “6401 Inquiry” option and entering the

serial numbers to determine whether the payees already may have redeemed them;

• bycallingtheUSPSautomatedmoneyordervericationsystemat1-866-459-7822;or

• by emailing the USPS accounting help desk, making sure to include a contact name and

other contact information along with the money order amounts, serial numbers, and any other

information requested, such as payment date or whether the money order has been reported lost

or stolen.

Immediately following seizure, the seizing agency should send a request to hold the money orders

seized to the following address:

U.S. Postal Inspection Service

Criminal Investigations Group

National Money Order Coordinator

475L’EnfantPlazaSW,Room3800

Washington, DC 20260-3800

The request must be submitted on agency letterhead and include:

(1) the reason for the request;

(2) the case number and seizure number;

(3) statutory authority for seizure and possession; and

(4) amoneyorderlistbyserialnumber,issueoce,andmonetaryvalue.

Originals or copies of money orders are not required. Upon receipt of this information, the U.S.

PostalInspectionService(USPIS)willagtherespectivemoneyorderstoplacethem“onhold,”

pending further instructions. The timing of the issuance of a hold on the money orders is critical, as

they can be replaced very quickly by the purchaser. Accordingly, the seizing agency should submit its

written request as soon as possible. The seizing agency should also provide the USMS with a copy of

this letter at the time the money orders are transferred to the USMS for custody. If further assistance

isneeded,contactthelocaloceoftheUSPIS.

Immediately after seizing non-USPS-issued money orders, the seizing agency should send

correspondence to the money order issuer that includes the same information as for USPS money

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orders and advise the issuer to place a hold on payment of the money orders pending further

instructions.

When seeking a judicial order of forfeiture

for money orders and the funds held on deposit to satisfy

them, prosecutors should:

• forfeit the seized money orders as well as the funds held by the issuer on deposit for payment of

the money orders; and

• authorize the USMS to take possession of the funds held by the issuer on deposit to satisfy the

money orders.

The USMS will take appropriate action, in accordance with established procedures, to liquidate the

money orders after forfeiture.

 

A personal check is a check drawn on the personal account of the originator, which could be an

individualorentity.Acertiedcheckisacheckonwhichthebankhascertiedthattheaccount

holderhassucientfundstocoverthecheckandthecheckisdrawnagainstthatpersonalaccount

holder’sfunds.Acashier’scheckisacheckissuedbythebankitselfandsoldtoapurchaser.While

apersonalcheckorcertiedcheckisanobligationoftheaccountholder,acashier’scheckisadirect

obligation of a bank.

Following the seizure of any check, the agency should immediately identify the source of funding

for the check, investigate that source, and determine whether seizure of funds is appropriate.

Dierentprocessesforseizureandrestraintoffundsapplydependingonwhetheragentshaveseizeda

personal,certied,orcashier’scheck.

Ifthesourceoffundingforapersonalorcertiedcheckisanaccountthatcontainspropertysubjectto

forfeiture, then the seizing agency, working with the prosecutor, should immediately obtain a seizure

warrant, under the applicable criminal or civil forfeiture statute, for the funds in the account; serve the

seizurewarrantonthenancialinstitution;andadvisetheUSMSofthewarrantandseizureoffunds,

as well as the amounts held in the account that are subject to forfeiture.

For administrative forfeiture, please contact agency counsel for further guidance.

Agencies should also note the date the check was drawn to avoid a stale dated personal check (see U.C.C. § 4-404) or a

certiedcheckthatmaybeconsideredabandonedpropertyunderstatelaw.

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Ifacashier’scheckwaspurchasedwithfundssubjecttoforfeiture,andiftheseizingagencyand

prosecutor determine that the funds that support the check are subject to forfeiture, then the seizing

agency, in conjunction with the prosecutor, should immediately:

(1) obtain a judicial restraining order or seizure warrant, under the applicable criminal or civil

forfeiturestatute,directingthenancialinstitutionuponwhichthecheckisdrawntoeither:

(a)takenecessarystepstomaintainfundssucienttocoverthecheckorplaceaholdonor

revoke the check, in the case of a restraining order; or

(b) release funds in the amount of the check, in the case of a seizure warrant;

(2) servetherestrainingorderorseizurewarrantonthenancialinstitution;and

(3) provide a copy of the restraining order or seizure warrant to the USMS at the time the check is

transferred for custody.

The USMS will accept custody of all checks for which the investigative agency has contacted the

bankfromwhichtheyweredrawn.TheagencyandUSAOshouldensurethatanynalorderof

forfeiture provides the USMS with authority to take or maintain custody of, deposit, and dispose of

the funds that were restrained or seized to cover the check.

H. Prepaid access devices

A prepaid access device is a card-based alternative to cash. It is a stored value card linked to an

externalaccountmaintainedbyanancialinstitutionratherthantoanaccountheldbythecardholder.

The funds are in a pooled account. A prepaid access device acts as a debit card linked to that pooled

account, and the program manager or processor allows the card to access only the amount of funds

“loaded”onthedevice.Thevaluestoredonthedevicecanbeaccessedeitherbyusingthedevice’s

magnetic stripe or chip or by entering the device number.

Twocategoriesofprepaidaccessdevicesexist.Closed-loopdevicesmaybeusedonlyfortheissuer’s

productsorotherlimitedpurposes(forexample,adevicethatcanbeusedataspecicretailer,

restaurant,orutilityprovider).Mostclosed-loopdevicesareissuedforaxedamountandcannot

be redeemed for cash.

Open-loop devices, in contrast, are more general-purpose cards that can be

used to obtain cash, make purchases, or transfer funds. Open-loop devices are backed by an online

electronic system for authorization, and often can be reloaded in person or online and used again.

All open-loop devices are branded cards (e.g., Visa, MasterCard, Discover, American Express, JCB,

and Union Pay) that allow the user to make purchases or conduct transactions anywhere the brand

is accepted. However, there are also network-branded devices (e.g.

,publicbenetscardsorbank

Automated Teller Machine (ATM) cards) that are linked to point-of-sale and ATM networks using

PIN-based technologies for sales and withdrawals.

AnissuingbankisthenancialinstitutionthatacquiresaBankIdenticationNumber(BIN),or

IssuerIdenticationNumber(IIN),onbehalfofaprepaidaccessdeviceprogrammanager,andthen

Branded, closed-loop cards also exist. Examples include cards that can only be used at a particular place, such as a

specicmalloruniversity.

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“rents” the BIN to the program manager.

OnlyanancialinstitutioncanregisteraBIN,andit

retains ultimate responsibility for use of the BIN. The issuing bank is a member of a card network

for which it has an agreement to issue network branded cards. The issuing bank maintains cardholder

funds that have been added, or loaded, onto the prepaid access device through the use of a “pooled

account.” These funds are held on deposit by the issuing bank until the cardholder uses the prepaid

access device to make purchases or to transfer or withdraw funds.

A program manager is the company that oversees a prepaid access device program and is responsible

forcardactivation,cardholderverication,accountservicing,recordsprocessing,establishing

relationships with retail partners, and maintaining the relationship with the issuing bank, among other

duties. The program manager, in most cases, also produces and distributes the prepaid access devices.

Prepaid access device processors (issuing processors) are hired by a program manager, issuing bank,

retail partner, or merchant to handle all or some program operation components as provided for in

theprocessingcontract.Toeectivelyhandlethepayment-processingcomponentofanytransaction

involving a prepaid access device, a processor records transaction information (purchase, transfer,

fees, and all other credits or debits to the card), tracks the card balance, and oversees all aspects

of card usage, including chargebacks, returns, or payment disputes. Some processors also take

responsibility for managing the card (card issuance, enrollment options, and loading), providing

cardholder care (call centers, online account management, statement generation, balance inquiry

capabilities, fraud mitigation monitoring, risk mitigation, security, and compliance), and other

platform management functions.

Theissuingprocessordiersfromthemerchantprocessor.Merchantprocessorsworkonbehalfof

the merchants accepting branded cards, providing the network to process the transaction through the

card association.

A seizure of a prepaid access device does not constitute a seizure of the funds associated with or

loaded onto the card because disposition of funds does not require physical possession of the card.

For example, funds associated with a prepaid access device easily can be spent or transferred while

law enforcement holds the card as evidence. Thus, to prevent criminals from spending or transferring

funds associated with a particular card, law enforcement must take additional action.

Theseizingagencyshouldrstexaminethecardtodeterminetheissuingbankandprogrammanager

or processing company. The seizing agency should then contact the issuing bank to determine the

identity of the program manager. In some instances, the issuing bank is also the program manager,

and will be able to provide all necessary balance and card information. If the card has been re-

encoded with other account information, however, the seizing agency will want to contact the issuing

bank associated with the re-encoded information.

The seizing agency must determine whether the issuer, program manager, or processor can put a hold

on the funds associated with the prepaid access device so that the funds are not spent or transferred

while the seizing agency obtains and serves a warrant or restraining order. The issuer, program

manager, or processor may do this automatically as a risk management function upon contact by law

enforcementandmayrequestwrittendocumentationforitsle.

TheBINorIIN,istherst6digitsofabankcardnumberorpaymentcardnumberandispartofISO/IEC7812,a

standardized global numbering scheme used for the purpose of identifying institutions who assign unique account

numbers to their customers, including for the issuance of payment cards. The Registration Authority for banks and other

issuersistheAmericanBankingAssociation(ABA),whichmaintainsacompletelistingofIINs/BINs.

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Asset Forfeiture Policy Manual 2023  2-19

Unless the owner consents, the government should obtain a seizure warrant or restraining order for the

seizureofallfundsassociatedwithseizedprepaidaccessdevicestoensurethefunds’availabilityfor

forfeiture. Seizure of the card itself neither deprives the owner of control over the funds associated

with the seized prepaid access device nor authorizes the government to take possession of the funds.

The government should issue a grand jury or a Federal Rule of Civil Procedure 45 subpoena to the

program manager or processor for all customer account records, any customer interactive voice

response account records, customer web log information reports, customer deposit information for

account reports, customer account history reports, and any internal customer, anti-money laundering,

or Bank Secrecy Act (BSA) compliance documentation related to the customer or account activity.

The USMS will take appropriate action, in accordance with established procedures, to liquidate the

prepaid access device after forfeiture.

I. Securities

Asecurityisanegotiablenancialinstrumentthatrepresentssometypeofnancialvalue,suchasan

equity interest in a publicly traded corporation (stock), a debt security used by a governmental body

or a corporation to borrow money (bond), or rights to ownership as represented by an option. The

company or entity that issues the security is known as the issuer.

As a general rule, the USMS will accept custody of all stocks and bonds for which the seizing agency

candocumentasignicantworth.TheseizingagencyshouldconsultwiththeUSMSCAUbefore

seizing any stocks or bonds with questionable value. As a best practice, the USMS will coordinate

with the USAO to try to liquidate stocks and bonds through interlocutory sale whenever possible.

Forpubliclytradedsecurities,theseizingagencyshouldcontactastate-andnational-certied

stockbroker immediately following seizure or restraint to establish the fair market value of the asset

andthemanneroftrading.Iftheinstrumenthasaninsignicantorminimalvalue,itshouldnotbe

seized or restrained.

For non-publicly traded securities, including stock of a privately held company, the seizing agency

should contact the USMS CAU.

The stocks and bonds of closely held corporations can present

uniqueissuescausedbyilliquidityandlackofinformation.Closelyheldnancialinstrumentsthat

havebeendeterminedtohaveaninsignicantorminimalvalueshouldnotbeseizedorretained

because the USMS will not take custody of them. If law enforcement seizes closely held securities

withsignicantworth,theseizingagencymustexpeditiouslyseekaviableplanforliquidationin

consultation with the AUSA and the USMS.

Securities that are held in a brokerage account usually will be seized or restrained in place. Any

restraining order may provide that the assets in the account will continue to be invested as they were

onthedateofrestraint,unlessmodiedbycourtorder.Uponreceiptofaninterlocutoryorderornal

order of forfeiture, or a declaration of administrative forfeiture, the USMS will instruct the broker to

liquidate the account. The net proceeds after commission are deposited in the Seized Asset Deposit

Fund (SADF) or the Assets Forfeiture Fund (AFF). Pursuant to court order, brokerage accounts may

beheldinadierentmannertopreservethevalueoftheaccount.

Totheextentpossible,theseizingagencyshouldestablishthevalueofallcloselyheldnancialinstrumentspriorto

seizure. If the determination cannot be made prior to seizure, it should be made as expeditiously as possible subsequent to

seizure.

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Whether the forfeited securities were held in a brokerage account or not, upon entry of an

interlocutorysaleorderoranalorderofforfeiture,theseizingagencyortheprosecutormust

immediatelyconsulttheUSMStoeecttheliquidationofthesecurities,andthedepositofproceeds

(lessbrokerortransferagentcommission)intotheSADFortheAFF.Ifcloselyheldnancial

instruments were not liquidated prior to forfeiture, prosecutors must consult with the USMS CAU to

ensure expeditious liquidation.

J. Travelers’ checks

Becausetraveler’schecksmaybeusedtoconcealorconvertcriminalproceeds,agentsand

prosecutorsmayencounterthemduringinvestigations.Ifagentslocateoldertravelers’checksduring

aninvestigation,theymaystillberedeemableforforfeitureeveniftheoriginalissuernolongeroers

travelers’checksforsale.Certaincompanieswillhonortheirno-longer-issuedtravelers’checks.

Seizingatraveler’scheckasevidenceorforforfeituredoesnotnecessarilyseizethefundsheldon

depositbytheissuertosatisfypaymentofthetraveler’scheck.Becausethepurchasermayobtain

arefundofthepurchasefundsbyreportingatraveler’scheckoraseriesoftravelers’checksstolen,

lost,oraccidentallydestroyed,physicalpossessionofthetraveler’scheckisnotrequiredtodispose

of the funds associated with it. In most instances, prosecutors should obtain a criminal or civil seizure

warrantorcriminalrestrainingorderthatauthorizesseizureorrestraintofthetravelers’checks

themselves, as well as an order that authorizes seizure or restraint of the total amount of funds held by

theissuernecessarytosatisfythetravelers’checks.

Uponseizingtravelers’checks,theseizingagencyshouldimmediatelyidentifyandcontacttheissuer

responsiblefortheirpaymenttodeterminethechecks’authenticityandvalidity.Theseizingagency

should also notify the issuer that law enforcement has seized the checks for forfeiture and should

determine the required procedures for redemption. If the checks can be redeemed before resolution of

the forfeiture case, the seizing agency should ask the issuer to liquidate and redeem them to allow the

funds to be held by the USMS pending conclusion of the forfeiture case.

Ifthetravelers’checkscannotberedeemeduntilafterforfeiture,thechecksshouldbeturnedover

totheUSMSwithvericationthattheissuingcompanyhasbeennotiedoftheforfeitureaction.If

necessary, the prosecutor may need to seek a restraining order to prevent the issuer from dissipating

thefundsheldforredeemingthetravelers’checksduringthependencyoftheforfeitureaction.

In seeking a judicial order of forfeiture

oftravelers’checksandthefundsheldondeposittosatisfy

them, the prosecutor should request that the district court:

• forfeittheseizedtravelers’checksandthefundsheldbytheissuerondepositfortheir

redemption; and

• authorize the USMS to take possession of the funds held by the issuer on deposit to satisfy the

travelers’checks.

The USMS will take appropriate action, in accordance with established procedures, to liquidate the

travelers’checksafterforfeiture.

For administrative forfeiture, please contact agency counsel for further guidance.

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Asset Forfeiture Policy Manual 2023  2-21

K. U.S. savings bonds

U.S. savings bonds are debt securities issued by the Department of the Treasury (Treasury). Treasury

andvirtuallyallnancialinstitutionssoldpaperbondsuntil2012,whenpaperbondswereabolished,

andnancialinstitutionsstoppedsellingthem.Today,savingsbondsmaybeboughtandredeemed

only via TreasuryDirect accounts online,

and they are issued only in electronic, book-entry form.

Immediately following seizure of U.S. savings bonds, the seizing agency should notify Treasury by

certiedletter,listing

(1) serial numbers,

(2) bond denominations,

(3) to whom payable, and

(4) the reason for which they were seized.

The seizing agency should send this information to:

Treasury Retail Securities Site

P.O. Box 214

Minneapolis, MN 55480-0214

[email protected]

Phone: 1-844-284-2676 (toll free)

The seizing agency should provide the USMS with a copy of this letter at the time the savings bonds

are transferred for custody. If the seizing agency fails to provide this notice, it could result in the

bond(s) being valueless at the time of forfeiture.

The USMS will accept custody of all savings bonds, maintain them until forfeiture, and dispose of

them in accordance with established procedures.

VI. Seizure of Operating Businesses

Itistypicallydicultintheearlystagesofaninvestigationtocollectallinformationnecessaryto

make an informed decision about whether an operating business should be forfeited as part of the

underlying criminal investigation. Therefore, in almost all cases, MLARS and the USMS recommend

thattheUSAOlearestrainingorderorprotectiveorderthatallowsnormaloperationstocontinue

under the review and monitoring of the USMS, and concurrently allows the USMS on-site access to

thebusinesstoinspectthepremises,reviewnancialrecords,andinterviewemployees.

Protective orders and restraining orders should authorize the USMS to use internal resources

to monitor and oversee operations of the business for a period of time so as to best formulate a

recommendation on whether seizure and forfeiture of the business is advisable.

The authority

granted to the USMS under a restraining or protective order must not include—in fact, must expressly

exclude—taking over the management responsibilities for operation of the business, at least during

See TreasuryDirect.

In rare cases, a court-appointed trustee or monitor may be required. See Chap. 9 in this Manual.

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the assessment period. The USMS will consider this only as an action of last resort. Protective orders

should also seek to restrain the owners from further encumbering the business, dissipating its assets,

or selling the business except as authorized by court order.

The USAO should be mindful that the phrasing of the restraining order and subsequent forfeiture

ordermightaecttheadministration,management,andsaleofthebusiness.Forexample,theseizure

of an ownership interest may have legal (e.g., business law, labor law, securities law, tax law) and

regulatoryimplicationsthatneedtobeidentiedinadvanceandfullyconsidered.

Alternatively,

the seizure of all assets of a business might very well cause the operating business to fail, which may

aectthirdparties,evenifthebusinessitselfisnotseized.Forexample,prosecutorsshouldgive

thoughtfulconsiderationbeforeseizingabusiness’soperatingbankaccountthatmaybeusedtomeet

the next payroll for its employees, or pay independent entities that provide supplies, materials, or

essential services to the business.

The investigative agency should serve a restraining order or protective order over a business on

the business itself, the owners, key employees (e.g

.,executiveocers,accountingdepartment),

bankinginstitutionsholdingbusiness’accounts,andanyotherpersonorentitythathasaninterest

in the ongoing operations of the business. Ideally, this service should occur simultaneously and in

conjunction with execution of any arrest, search, or seizure warrants by the investigative agency

as part of the criminal investigation against the business, its principals, or any target conspiring in,

aiding, or abetting the criminal activity supporting forfeiture of the business.

TheUSMS’businessreviewisatime-consumingprocessthatmaytake30daysorlongerto

complete, depending on the availability of records and willingness of the business principals and

employees to cooperate in the process. The business review must identify and consider key historic

nancialdataforthebusiness,itscurrentoperatingenvironment(includingnancialactivity),and

nancialprojectionsforthenexttwoyears.Theseprojectionsshouldincludebothbest-andworst-

case scenarios for the business operations as well as “exit strategies” should conditions change for the

worse. If the business is likely to lose money or to be sold at a loss, the business plan should include

plans to mitigate such losses or liquidate all or parts of the business. Upon review and analysis of the

information obtained through the restraining or protective order, the USMS will make an informed

recommendation to the USAO as to whether seizure and forfeiture of the business is advisable. The

USAOshouldincludetheUSMS’recommendationinitsconsultationwithMLARS.

Duringthependencyofarestrainingorprotectiveorder,thebusiness’existingmanagementpersonnel

will generally remain in place unless a compelling reason warrants otherwise and the USMS is

authorized under the restraining order to remove and replace any personnel. In some instances, the

business may be forced to shut down temporarily (or even permanently) once key defendants are

arrested or indicted. In these instances, and particularly in dealing with a service-oriented industry

wherealargeportionofthebusiness’valueconsistsofgoodwillthedefendantgenerates,itmaybe

advisable to limit forfeiture to separable-but-forfeitable assets of the business only. However, if the

government fails to complete the forfeiture and the business asset must be returned to the owner,

prosecutors should be aware that the government may be subject to substantial liability and adverse

legalramicationsfordeprivingthebusinessoftheassetandforanyfailuretoreturntheassettothe

business owner in substantially the same condition in which it was seized. The practice of monitoring

an operating business pursuant to a restraining order should help to mitigate this risk.

Also, absent a veil piercing or straw-owner argument, the owners of a business entity that is legally distinct from the

owners do not own the assets of that entity.

Chapter 2: Seizure and Restraint

Asset Forfeiture Policy Manual 2023  2-23

VII. Seized Cash Management

Seized cash must be deposited promptly in the Seized Asset Deposit Fund (SADF) pending

forfeiture.

This policy applies to all cash seized for purposes of forfeiture.

Therefore, all seized currency

subject to criminal or civil forfeiture must be delivered to the USMS for deposit in the SADF either

within60daysafterseizureorwithin10daysafterindictment,whicheveroccursrst.

Photographs

or videotapes of the seized cash should be taken for use in court as evidence.

Exceptions to this policy, including extensions of applicable time limits for deposit in the SADF,

may be granted only in limited circumstances. Retention of currency will be permitted only when it

servesasignicantindependent,tangible,evidentiarypurposedueto,forexample,thepresenceof

ngerprints,packaginginanincriminatingfashion,oratraceableamountofnarcoticresidueonthe

bills.

If only a portion of the seized cash has evidentiary value, only that portion with evidentiary

value should be retained. The balance should be deposited in accordance with Department policy.

If the USAO seeks to retain less than $5,000 of seized cash for evidentiary purposes, then a

supervisoryocialwithintheUSAOmustapprovethecontinuedretentionofthecurrency.Ifthe

USAO seeks to retain $5,000 or more in seized cash, a supervisor within the USAO must send the

request to MLARS, and the Chief of MLARS must grant written approval of the request.

The

request should include a brief statement of the factors warranting its retention and the name, position,

and phone number of the individual to contact regarding the request. Contact MLARS for further

guidance on the form of submission.

VIII. Using Asset Forfeiture Authorities in Connection with Structuring



31 U.S.C. § 5324(a) prohibits evasion of certain currency transaction reporting and record-keeping

requirements, including structuring schemes. Structuring occurs when, instead of conducting a

singletransactionincurrencyinanamountthatwouldrequireareporttobeledorrecordmadeby

adomesticnancialinstitution,theviolatorconductsaseriesofcurrencytransactions,keepingeach

individual transaction at an amount below applicable thresholds to evade reporting or recording.

TheDepartmentmustappropriatelyandeectivelyallocateitslimitedinvestigativeresourcesto

addressthemostseriousstructuringoenses,consistentwithDepartmentalpriorities.Theguidance

28 C.F.R. § 8.5(b).

This policy does not apply to the recovery of buy money advanced from appropriated funds. Cash seizures made by

TreasuryForfeitureFund(TFF)memberagenciesaregovernedbysimilarpolicycontainedinTreasuryExecutiveOce

for Asset Forfeiture (TEOAF) Directive No. 4: Seized Cash Management.

To the extent practical, negotiable instruments and foreign currency should be converted and deposited.

When practicable and consistent with law and policy, law enforcement is encouraged to, before depositing the entirety of

the seized currency, test and retain samples of seized currency suspected to be proceeds of, or currency used to facilitate,

narcoticstracking,andretaindocumentationofalltestresults.

TheauthoritytoapproveexceptionstotheDepartment’scashmanagementpolicyrequiringthatallseizedcash,except

where it is to be used as evidence, is to be deposited promptly into the SADF was delegated by the Assistant Attorney

General, Criminal Division (AAG), to the Chief of MLARS on December 13, 1991. Requests for an exemption should

beledbytheUSAOorCriminalDivisionsectionresponsibleforprosecuting,orreviewingforprosecution,aparticular

case.

The criteria and procedure for obtaining exemptions remains the same for cash retained by other agencies participating in

the Program.

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2-24  Asset Forfeiture Policy Manual 2023

below applies to all federal seizures for civil or criminal forfeiture based on a violation of the

structuring statute, except those occurring after an indictment or other criminal charging instrument

hasbeenled.

A. Link to prior or anticipated criminal activity

Ifnocriminalchargehasbeenledandaprosecutorhasnotobtainedtheapprovalidentiedbelow,a

prosecutor shall not move to seize structured funds unless there is probable cause that the structured

funds were generated by unlawful activity or that the structured funds were intended for use in, or to

conceal or promote, ongoing or anticipated unlawful activity. For these purposes, “unlawful activity”

includes instances in which the investigation revealed no known legitimate source for the funds being

structured. Also, for these purposes, the term “anticipated unlawful activity” does not include future

Title26oenses.Thebasisforlinkingthestructuredfundstoadditionalunlawfulactivitymust

receiveappropriatesupervisoryapprovalandbememorializedintheprosecutor’srecords.

Wheretherequirementsoftheaboveparagrapharenotsatised,unlesscriminalchargesareled,

a warrant to seize structured funds may be sought from the court only upon approval from an

appropriateocial.

• AUSAs must obtain approval from their respective U.S. Attorney. The U.S. Attorney may not

delegate this approval authority.

• Criminal Division trial attorneys or other Department components not partnering with a USAO

must obtain approval from the Chief of MLARS. The Chief of MLARS may not delegate this

approval authority.

The U.S. Attorney or the Chief of MLARS may grant approval if there is a compelling law

enforcement reason to seek a warrant, such as: serial evasion of the reporting or record keeping

requirements;thecausingofdomesticnancialinstitutionstolefalseorincompletereports;

andviolationscommitted,oraidedandabetted,bypersonswhoareowners,ocers,directors,or

employeesofdomesticnancialinstitutions.

If the U.S. Attorney or the Chief of MLARS approves the warrant, the prosecutor must send a

completed“StructuringWarrantNoticationForm”toMLARS.ContactMLARSforadditional

guidance on submitting the form.

B. No intent to structure

There may be instances in which a prosecutor properly obtains a seizure warrant but subsequently

determinesthatthereisinsucientadmissibleevidencetoprevailateithercivilorcriminaltrialfor

These guidelines apply to all structuring activity whether it constitutes “imperfect structuring” chargeable under 31 U.S.C.

§ 5324(a)(1), or “perfect structuring” chargeable under § 5324(a)(3).

In order to avoid prematurely revealing the existence of the investigation of the additional unlawful activity to the

investigation’stargets,thereisnorequirementthattheevidencelinkingthestructuredfundstotheadditionalunlawful

activity be memorialized in the seizure warrant application.

TheserequirementsareeectiveasofMarch31,2015.Foranycaseinwhichseizurewaseectedpriortothisdate,the

forfeiture may continue so long as it otherwise comports with all other applicable law and Department policy.

Although this authority is ordinarily non-delegable, if the U.S. Attorney is recused from a matter or absent from the

oce,theU.S.AttorneymaydesignateanActingU.S.Attorneytoexercisethisauthority,inthemannerprescribedby

regulation. See 28 C.F.R. § 0.137.

Chapter 2: Seizure and Restraint

Asset Forfeiture Policy Manual 2023  2-25

violations of the structuring statute or another federal crime for which forfeiture of the seized assets

is authorized. In such cases, within seven (7) days of reaching this conclusion, the prosecutor must

direct the seizing agency to return the full amount of the seized money. Once directed, the seizing

agency will promptly initiate the process to return the seized funds.

C. 150-day deadline

Within 150 days of seizure solely based on structuring, if a prosecutor has not obtained the approval

discussedbelow,aprosecutormusteitherleacriminalindictmentoracivilcomplaintagainstthe

asset.

Thecriminalchargeorcivilcomplaintcanbebasedonanoenseotherthanstructuring.If

nocriminalchargeorcivilcomplaintisledwithin150daysofseizure,thentheprosecutormust

direct the seizing agency to return the full amount of the seized money to the person from whom it

was seized by no later than the close of the 150-day period. Once directed, the seizing agency will

promptly initiate the process to return the seized funds.

With the written consent of the claimant, the prosecutor can extend the 150-day deadline by 60 days.

Further extensions, even with consent of the claimant, are not allowed, except in the following

circumstances:

• AUSAs must obtain approval from their respective U.S. Attorney. The U.S. Attorney may not

delegate this approval authority, except as discussed in footnote 42 in Section VIII.A in this

chapter.

• Criminal Division trial attorneys or other Department components not partnering with a USAO

must obtain approval from the Chief of MLARS. The Chief of MLARS may not delegate this

approval authority.

If additional evidence becomes available after the seized money has been returned, prosecutors may

stillleanindictmentorcomplaint.

D. Settlement

Settlements to forfeit or return a portion of any funds involved in a structuring investigation, civil

action, or prosecution must comply with the requirements set forth in Chapter 11 in this Manual.

In addition, settlements must be in writing, include all material terms, and be signed by a federal

prosecutor. Informal settlements, including those negotiated between law enforcement and private

parties, are expressly prohibited.

E. Internal Revenue Service (IRS) structuring cases

On July 1, 2019, Congress passed the Taxpayer First Act.

Section 1201 of the Taxpayer First Act

amended 31 U.S.C. § 5317(c) to place conditions on Internal Revenue Service (IRS) seizures with

respecttostructuringtransactions.Specically,theIRSmayseizeassetsorrequirethetaxpayer

to forfeit assets only if the property to be seized came from an illegal source, or if the transactions

were structured to conceal illegal activities beyond structuring. See § 5317(c)(2)(B)(i). The IRS is

also required to provide notice within 30 days of the seizure to anyone with an ownership interest in

ThisdeadlinedoesnotapplytoadministrativecasesgovernedbytheindependenttimelimitsspeciedbytheCivilAsset

Forfeiture Reform Act of 2000 (CAFRA). See also Chap. 5, Sec. III.B.2.a in this Manual.

Pub. L. No. 116-25, 133 Stat. 981.

Chapter 2: Seizure and Restraint

2-26  Asset Forfeiture Policy Manual 2023

the property. See § 5317(c)(2)(B)(ii). If a person with an ownership interest in the property timely

requestsahearing,theseizedpropertymustbereturnedunlessthecourtndsprobablecauseofa

structuring violation and probable cause that the seized property was derived from an illegal source or

the funds were structured for the purpose of concealing the violation of a criminal law or regulation

other than 31 U.S.C. § 5324.

Asset Forfeiture Policy Manual 2023  3-1

Chapter 3:

Seizures by State, Local, and Tribal Law Enforcement

I. Forfeitures Follow the Prosecution

Generally, if a criminal prosecution and forfeiture is legally possible in the jurisdiction processing the

prosecution, the forfeiture action should follow the criminal prosecution, whether state or federal. See

Chapter 5, Section I.B in this Manual for a full discussion of this policy.

Under certain circumstances, however, a state, local, or tribal law enforcement agency may seize

property under state law, without federal oversight or involvement, and a federal agency later takes

the seized property into its custody and uses a federal forfeiture proceeding to forfeit the property.

This is known as an “adopted” forfeiture, or an adoption.

II. General Adoption Policy

Under Attorney General Order No. 3946-2017: Federal Forfeiture of Property Seized by State and

Local Law Enforcement Agencies (July 19, 2017), federal adoption of all types of assets seized

lawfully by state, local, or tribal law enforcement under their respective laws is authorized whenever

the conduct giving rise to the seizure violates federal law.

The net equity and value thresholds in

Chapter 1 in this Manual continue to apply.

Agencies and components should prioritize the adoption

ofassetsthatwilladvancetheDepartmentofJustice’s(Department)prosecutionpriorities.Please

consult the Department of the Treasury (Treasury) for procedures regarding adoptions by federal

agencies participating in the Treasury Forfeiture Fund (TFF).

The Department, through legal counsel for federal investigative agencies as well as through U.S.

Attorney’sOces(USAOs),willensurethatadoptionsareconductedincompliancewithlawand

Department policies.

Specically,theDepartmentshallmaintainandimplementthefollowing

See 18 U.S.C. § 981(b)(2)(C) (civil forfeiture statute includes an exemption to the warrant requirement if “the property

was lawfully seized by a State or local law enforcement agency and transferred to a Federal agency”); 18 U.S.C.

§ 983(a)(1)(A)(iv) (extending the general requirement in 18 U.S.C. § 983(a)(1)(A)(i) that notice to “interested parties” be

sent “in no case more than 60 days after the date of the seizure” to 90 days in the case of adoptions).

See Attorney General Order No. 3946-2017.

Chap. 1, Sec. I.C.3 in this Manual establishes minimum net equity thresholds of at least $10,000 for vehicles, and a

minimum amount of $5,000 for cash seizures, or at least $1,000 if the person from whom the cash was seized either was,

or is, being criminally prosecuted by state or federal authorities for criminal activities related to the property.

U.S.Attorney’sOces(USAOs),inconsultationwithfederallawenforcementagencies,maycontinuetoestablishhigher

thresholds for judicial forfeiture cases in order to best address the crime threat in individual judicial districts.

Departmentpolicydoesnotaecttheabilityofstateandlocalagenciestopursuetheforfeitureofassetspursuanttotheir

respective state laws. Moreover, when a state or local agency has seized property as part of an ongoing state criminal

investigation and the criminal defendants are being prosecuted in state court, any forfeiture action should generally be

pursued in state court assuming that state law authorizes the forfeiture. See Sec. I in this chapter.

Chapter 3: Seizures by State, Local, and Tribal Law Enforcement

3-2  Asset Forfeiture Policy Manual 2023

safeguards,amongotherstoensurethatthereissucientevidenceofcriminalactivityandthatthe

evidence is well documented:

• to ensure that adoptions involve lawfully seized property, legal counsel at the federal agency

adopting the seized property must review all seizures for compliance with law, especially

seizuresmadepursuanttoanexceptiontotheFourthAmendment’swarrantrequirement;and

• to assist federal legal counsel in this review process, state and local agencies seeking federal

adoption of seized assets must complete an online form to request federal adoption of any asset

and to provide additional information about the probable cause determination justifying the

seizure. The additional information in the adoption form better documents probable cause in

therstinstanceandprovidesfederallegalcounselwiththerelevantinformationrelatingto

probable cause for review. In addition, state and local agencies are required to certify on the

adoption form that they have obtained a turnover order, if necessary,

and that the adoption

request complies with state law.

Adoptions of cash in amounts equal to or less than $10,000 require additional safeguards. Those

adoptions are permissible where the seizure was conducted:

• pursuant to a state warrant,

• incidenttoarrestforanoenserelevanttotheforfeiture,

• at the same time as a seizure of contraband relevant to the forfeiture, or

• where the owner or person from whom the property is seized makes admissions regarding the

criminally derived nature of the property.

If a federal agency seeks to adopt cash equal to or less than $10,000, and none of these safeguards are

present,thentheagencymayproceedwiththeadoptiononlyiftheUSAOrstconcurs.

III. Custody

A. Concurrent jurisdiction

Federal prosecutors and agencies may not initiate a federal forfeiture proceeding in rem against

property seized by state, local, or tribal law enforcement while the property remains subject to the in

rem or quasi-in-rem

jurisdictionofastatecourt.Thecourtrstassumingin rem jurisdiction over the

property retains jurisdiction to the exclusion of all others.

In addition, the Rooker-Feldman doctrine,

whichactsasajurisdictionalbartoafederalcourtreconsideringmattersnallydecidedbyastate

court, may be applicable in certain circumstances.

Finally, considerations of comity may counsel

against a federal court asserting jurisdiction over an asset seized by the state even where there is no

direct legal obstacle to federal in rem jurisdiction.

See Sec. IV.B in this chapter.

United States v. Timley, 443 F.3rd 615, 627–628 (8th Cir. 2006).

Id. at 628 (Rooker-Feldman doctrine not applicable where the state court did not decide a turnover order proceeding on

the merits).

Chapter 3: Seizures by State, Local, and Tribal Law Enforcement

Asset Forfeiture Policy Manual 2023  3-3

Depending on state and circuit law, a state court may be deemed to acquire jurisdiction over property

seized by a state, local, or tribal agency in various circumstances, such as when:

• a state, local, or tribal agency seizes the property pursuant to a state search warrant or seizure

warrant;

• a state commences forfeiture proceedings against the seized property;

• the property is subject to a state turnover order requirement or another state-imposed limitation

on turnover of seized property for federal forfeiture;

• apartylesanactioninstatecourtseekingthereturnoftheproperty;or

• astate,local,ortriballawenforcementocersimplyseizesthepropertyintheabsenceofstate

process.

Simply put, if, under controlling law in the state at-issue, a state court has in rem jurisdiction over

property prior to the federal government taking possession of the property, then the state court must

relinquish jurisdiction before any initiation of federal in rem forfeiture.

Depending upon the applicable state law, assets seized pursuant to the authority of a state search or

seizure warrant may be deemed to be within the actual or constructive in rem jurisdiction of the state

court, thereby impeding federal adoption of those assets even in the absence of a formal turnover

statute.

Where federal adoption is sought for assets seized through state process, federal prosecutors

and agencies should be aware of applicable state law and state practice concerning such assets, and

may want to consider requesting assistance from the appropriate state, local, or tribal prosecutorial

oceinseekinganorderfromthestatecourteitherapprovingtheturnoveroftheassetforadoption

or formally releasing the asset from state jurisdiction.

Some states have enacted statutes that require formal state court approval for turnover of a state-

seized asset for federal forfeiture or impose other limitations on turnover. In these situations, the

agency requesting to initiate federal forfeiture, with the assistance of the appropriate state, local,

ortribalprosecutorialoce,mayberequiredtoobtainastatecourtturnoverorderrelinquishing

jurisdiction and authorizing the turnover of the property to a federal law enforcement agency for the

purpose of federal forfeiture.

The USAO should not seek such orders in state court but may assist its state counterparts in doing so.

It is imperative that federal prosecutors work in conjunction with state prosecutors and state agencies

tounderstandtheeectstatelawmayhaveonthefederalforfeitureprocess,asafailuretodosomay

result in a court-ordered return of seized assets, state court lawsuits against the seizing state agency or

ocers,andstateocersnotactingincompliancewithstatelaw.

Depending on state law, a turnover order may be required for the federal agency to assert in rem jurisdiction over the

asset.

In Little v. Gaston, 232 So.3rd 231, 236–37 (Ala. Civ. App. 2017), the state appellate court held that assets seized pursuant

to the authority of a state search warrant remained within the actual or constructive in rem jurisdiction of the court that

had issued the search warrant, such that their provision for federal adoption was improper.

Federalagentsandfederaltaskforceocers(TFOs)willoftenparticipateintheexecutionofastatesearchorseizure

warrant. Assets seized by agents and TFOs pursuant to the authority of state process should normally be returned to the

state court rather than taken in directly for federal forfeiture.

State and local agencies are required to certify that they have obtained a turnover order where necessary. See Secs. II and

IV.B in this chapter.

Chapter 3: Seizures by State, Local, and Tribal Law Enforcement

3-4  Asset Forfeiture Policy Manual 2023

B. Use of anticipatory seizure warrants to obtain federal in rem jurisdiction

If a state, local, or tribal law enforcement agency commences a forfeiture action under state law, no

federal forfeiture action may be commenced as long as the state court has in rem or quasi-in-rem

jurisdiction over the subject property. If, however, the state, local, or tribal authorities determine, for

whatever reason, that the state action will be terminated before it is completed, and that the property

will accordingly be released, or a federal seizing agency otherwise learns that the state court is about

to order the release of property that is federally forfeitable, the property may be federally seized by

obtaining an anticipatory seizure warrant from a federal judge or magistrate. The anticipatory seizure

warrant must provide that it will be executed only after the state court has relinquished control over

the property. For purposes of the notice requirements in 18 U.S.C. § 983(a)(1), property seized

pursuant to an anticipatory seizure warrant in these circumstances is considered the subject of a

federal seizure such that the period for sending notice of the forfeiture action is 60 days, commencing

on the date when the anticipatory seizure warrant is executed.

Given the rapidly changing landscape of state forfeiture laws, federal prosecutors should consider

whether an anticipatory federal seizure warrant will create obligations that are directly inconsistent

with applicable state law.

C. Retention of custody by federal, state, local, or tribal agency during federal

forfeiture proceedings

Where authorized by the U.S. Marshals Service (USMS) or Treasury, federal, state, local, or tribal

agencies may maintain custody of designated assets pending forfeiture under a written substitute

custodial agreement. Such agreements are contractual in nature and do not require district court

approval. Substitute custodial agreements shall detail requirements for proper storage and

maintenanceofspeciedassetsunderthecareofthecustodialagency.Inallsuchcases,securityof

the assets and the preservation of their condition and value pending forfeiture is of primary concern.

SubstitutecustodialagenciesmustprovideUSMS-approvedsecurestorageforthespeciedassets

and provide the USMS full access to the assets for inspection purposes on request. The USMS may

terminate substitute custodial agreements at any time at its sole discretion if the USMS determines

that a substitute custodian has failed to comply with any of the terms of the agreement.

IV. Federal Adoption Procedure

 

When seeking federal adoption, state, local, and tribal agencies are required to complete an online

federal adoption form within 15 calendar days following the date of the seizure. Seizures made as

part of joint federal-state investigations or pursuant to federal seizure warrants are not considered

adoptions. Agency participants must review the circumstances of a seizure by state, local, or tribal

law enforcement to determine whether it is a federal adoption.

All state, local, and tribal seizures that qualify for adoption

and are presented for adoption to either

a Department or Treasury federal agency must be reported on the adoption form. A federal agency

See also Chap. 10, Sec. II.A in this Manual.

See Attorney General Order No. 3946-2017.

Chapter 3: Seizures by State, Local, and Tribal Law Enforcement

Asset Forfeiture Policy Manual 2023  3-5

should not adopt a seizure while the property remains subject to the jurisdiction of a state court.

The

state,local,ortribalagencyalsomayberequiredtocompletethefederalagency’sstandardseizure

form as part of the adoption request. The state, local, or tribal agency must attach copies of any

investigativereportsandofanyadavitsinsupportofwarrantspertinenttotheseizureforreview.

When requesting adoption, state, local, and tribal agencies must certify that the request complies with

applicable state law, as some states prohibit the referral of certain categories of seizures for federal

forfeiture.

A federal forfeiture proceeding may appropriately arise in the following circumstances and is not

considered an adoption:

• seizuresbystate,local,ortribalauthoritieswhoarefederallydeputizedtaskforceocers

(TFOs) working with federal authorities on a joint task force (see Section IV.A.1 in this

chapter);

• seizures by state, local, or tribal authorities that are the result of a joint federal-state investigation

or were coordinated with federal authorities as part of an ongoing federal investigation (see

Section IV.A.2 in this chapter).

 

Thiscategoryofseizuregenerallyoccurswhenanassetisseizedbyaswornlawenforcementocer

employed by a state, local, or tribal law enforcement agency but assigned either part-time or full-time

to a federal law enforcement agency as a TFO. To qualify as a TFO seizure, the following criteria

must be met:

• theTFOmusthavebeenacredentialed,deputizedfederallawenforcementoceratthetime

of the seizure;

• the TFO must have been assigned to a task force operated by a federal law enforcement

agency at the time of seizure; and

• theTFO’sactionsandauthorizationsforthoseactionsatthetimeofseizurewererelatedto

task force duties and were not conducted solely pursuant to duties and authorizations as a

state or local law enforcement agent.

If the above criteria are not met, the forfeiture of an asset seized by a TFO may nonetheless meet the

criteria for a joint investigation seizure (see Section IV.A.2 in this chapter). There is no circumstance

that would warrant a blanket “federalization” of every seizure made by a state, local, or tribal law

enforcementagencysimplybecausethestate,local,ortribalagencyhasanocerassignedtoa

federaltaskforceorinitiativeliketheHighIntensityDrugTrackingArea(HIDTA)orOrganized

Crime Drug Enforcement Task Force (OCDETF).

See Sec. III.A in this chapter.

Stateorlocalagenciesmayredactfrominvestigativereportsinformationwhichmaydisclosetheidentityofacondential

informant. However, disclosures ultimately may be required if information provided by the informant is needed to

establish the forfeitability of the property in a subsequent judicial forfeiture proceeding.

In some states, state law may forbid or regulate the provision of state-seized assets for forfeiture. In Missouri, for

example,allseizuresbyTFOsaredeemedMissouristateseizuresiftheTFOisaMissouristateorlocalocer.

Chapter 3: Seizures by State, Local, and Tribal Law Enforcement

3-6  Asset Forfeiture Policy Manual 2023

However, as discussed in Section III.B in this chapter, federal forfeiture of assets seized by state,

local,ortriballawenforcementocers,includingTFOsactinginafederalrole,maybeforeclosed

or delayed where the state has preexisting in rem jurisdiction, or if state law forbids or regulates the

provision of state-seized assets for federal forfeiture.

 

investigation

This category of seizure occurs when an asset is seized under the following circumstances:

• seizure is made at the direction of, or in coordination with, a sworn federal law enforcement

ocerinconjunctionwithapre-existingfederalcriminalinvestigation;

• seizure is made as part of a preexisting joint federal-state or federal-local criminal

investigation in which a federal law enforcement agency is actively participating for the

purposeofpursuingfederalcriminalchargesagainstoneormorespecicpersonsorentities;

• seizure is made as part of a preexisting joint federal-state or federal-local criminal

investigation in which a federal law enforcement agency is actively participating and the

seizure arose from the joint investigation.

Itcanbeappropriatetousestateorlocallawenforcementocerstoconductseizuresbasedon

probable cause obtained during a federal investigation.

The following criteria generally must be met for a seizure to qualify as a joint-investigation seizure:

• the federal law enforcement agency had advance notice that the seizure would be made;

• the federal law enforcement agency concurred with the seizing state or local law enforcement

agency that the seizure was appropriate and in furtherance of the goals of the relevant federal

criminal investigation;

and

• there was an open federal criminal investigation in which federal agencies were participating

at the time of seizure.

B. Federal law enforcement agency review

The adopting federal agency must promptly consider adoption requests.

Absent exceptional

circumstances, the adopting federal agency must approve the request prior to the turnover of the

property to federal custody.

Only an attorney (e.g

.,theagency’soceofchiefcounselorotherlegalunit)outsidethechain-of-

commandofoperationalocialsmayapprovearequestforadoption.

Some laws may nullify this exception.

See also Sec. IV.C in this chapter.

Chapter 3: Seizures by State, Local, and Tribal Law Enforcement

Asset Forfeiture Policy Manual 2023  3-7

The attorney review shall verify that:

(1) the property is subject to federal forfeiture;

(2) thestate,local,ortriballawenforcementagencyhasprovidedsucientinformationaboutthe

probable cause determination justifying the seizure;

(3) the property is not subject to the jurisdiction of a state court;

(4) there is no other legal impediment to a successful forfeiture action; and

(5) thestate,local,ortriballawenforcementagencyhascertiedthattheadoptioncomplieswith

state law and that the appropriate state turnover order has been obtained, if applicable.

Federallawenforcementagencieswillnormallysecureattorneyreviewthroughtheirownoces

of chief counsel or other legal unit but—at their discretion—may request that a federal prosecutor

conduct this review. Any further review processes established in the future for federal seizures will

also apply to adoptive seizures.

C. Timing

Federal law requires agencies to commence administrative forfeiture proceedings by sending written

notice to interested parties “not more than 90 days after the date of seizure by the state or local law

enforcement agency.”

To give individual property owners an opportunity to challenge the seizure as

soonaspracticable,theDepartmentwillexpeditefederalagencies’decisionsregardingadoptionsand

their provision of notice to interested parties. State, local, and tribal law enforcement agencies must

request federal adoption within 15 calendar days following the date of seizure. The adopting federal

agency must send notice to interested parties within 45 days of the date of seizure.

The supervisory

forfeiturecounsel(orhigher-levelocial)oftheadoptingagencymayextendthesetimelimitations

for good cause, provided that counsel documents any extensions in writing and includes a description

of the circumstances justifying the extension. Any such extensions remain subject to statutory time

limits pursuant to 18 U.S.C. § 983(a)(1)(A)(iv).

V. Cases Initiated by a U.S. Attorney Directly with State, Local, and Tribal

Law Enforcement without Federal Agency Involvement

As a general rule, a lead federal agency for forfeiture is required to be involved in a federal

forfeiture case. However, there are occasions when a federal agency declines involvement or federal

prosecutors partner directly with state, local, or tribal law enforcement and no federal seizing law

enforcement agencies are involved.

A. Direct adoption by the U.S. Attorney

If a federal agency will not adopt property seized by a state, local, or tribal law enforcement agency,

and the USAO wants to include the property in a judicial forfeiture, the U.S. Attorney may approve

See 18 U.S.C. § 983(a)(1)(A)(iv); see also Chap. 5, Sec. II.B.1 in this Manual.

Although federal law gives agencies up to 90 days to send notice to interested parties in the case of adoptive forfeitures,

Attorney General Order No. 3946-2017, requires them to send notice not later than 45 days after seizure, unless a senior

ocialatthefederalagencyapprovessuchanextension.See also Chap. 5, Sec. I.B in this Manual.

On such occasions, the USMS is the custodial agency.

Chapter 3: Seizures by State, Local, and Tribal Law Enforcement

3-8  Asset Forfeiture Policy Manual 2023

direct adoption of assets permitted to be adopted, except for real property. The U.S. Attorney must

request and obtain approval from the Money Laundering and Asset Recovery Section (MLARS) for

direct adoption of seized real property.

For the U.S. Attorney or MLARS to approve a proposed direct adoption:

• a federal seizing agency must decline adoption of the seizure;

• the state, local, or tribal law enforcement agency that seized the property must complete the

adoption form and certify that the proposed direct adoption complies with state law, including

any turnover statutes;

• the USAO must independently verify that the proposed transfer complies with applicable state

law and all turnover orders, if required, are obtained before recommending approval of the direct

adoption;

• the USAO must coordinate with its district USMS Asset Forfeiture Coordinator to ensure that

the USMS can obtain custody of the asset or that the agency with custody of the property will

continue to retain custody in accordance with Section III.C in this chapter.

For direct adoptions requiring MLARS approval, the USAO must send a request to MLARS to

initiate the approval process. During the approval process, MLARS may obtain input from the

headquartersoceoftheseizingagencythatdeclinedtoadopttheseizure.MLARSshallnotifythe

USAO and the USMS in that district whether the direct adoption is approved.

Wherethepropertybeingadoptedforfederalforfeitureisaseizedrearm,thestate,local,ortribal

lawenforcementagencythatseizedorisholdingtherearmpendingfederalforfeitureisrequired

to submit a tracing request to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)

National Tracing Center (NTC) via eTrace, in accordance with the January 16, 2013, Presidential

Memorandum “Tracing of Firearms in Connection with Criminal Investigations.”

B. Direct referral by the U.S. Attorney

In some instances, the USAO will partner directly with a state, local, or tribal law enforcement agency

regarding an asset that cannot be adopted because no seizure has occurred (e.g., money judgment, real

property).

If the USAO wants to include the property in a judicial forfeiture, the USAO must not

accept a direct referral from a state, local, or tribal agency until a federal agency declines to process

the asset for federal forfeiture. Once that occurs, the USAO may approve direct referral of the asset,

other than real property. For real property, the USAO must request that MLARS approve the direct

referral. Prior MLARS approval is required for the direct referral of real property to ensure proper

communication and coordination among the USAO; state, local, or tribal agency; and the USMS to

process the asset, manage its liquidation, and deposit the proceeds into the Assets Forfeiture Fund

(AFF). The USAO must initiate the request to MLARS in the same manner as a direct adoption (see

Section V.A in this chapter). MLARS shall notify the USAO and USMS in that district whether the

direct referral is approved.

See Sec. III.A in this chapter.

Regardingrealproperty,DepartmentocialsshouldadheretotheDepartment’sapplicablenetequitythresholdsand

policy concerning the forfeiture of personal residences where title or ownership lies with persons not implicated in illegal

conduct. See Chap. 4, Sec. I.B.2 in this Manual; Chap. 5, Sec. III.D.1.c in this Manual.

Asset Forfeiture Policy Manual 2023  4-1

Chapter 4:

Real Property

I. Pre-Forfeiture Considerations

The pre-seizure procedures for real property subject to forfeiture rely on the accurate calculation

oftheproperty’svalueandtheidenticationofownershipinterests.WhileU.S.Attorneys’Oces

(USAOs) generally work closely with the U.S. Marshals Service (USMS) regarding pre-seizure

and pre-forfeiture considerations for all types of assets, the USAO should coordinate particularly

closely with the USMS to address the unique issues that arise before and during forfeiture of real

property.

Real property associated with an operating business,

for example, always presents

unique issues requiring advance planning and coordination with the USMS and consultation with the

Money Laundering and Asset Recovery Section (MLARS) and others at the Department of Justice

(Department).

A. General policy

The potential for substantial losses and other liabilities in forfeiting real property underscores the

need for heightened planning and monitoring. The USAO must conduct planning discussions with

theUSMSassoonasrealpropertyhasbeenidentiedforforfeiture.

The USMS must consider

factors such as existing liens and encumbrances, as well as the costs of future maintenance, sale,

environmental factors or contamination, and depreciation prior to forfeiture, among others. If the

USAO intends to forfeit real property that could create a net loss to the Assets Forfeiture Fund (AFF)

for that property,

the USAO must consult with MLARS before taking any action in furtherance

oftheforfeiture,beyondthelingofalis pendens

pursuant to state law to provide notice that a

property is involved in a pending civil or criminal proceeding. That consultation must occur once

the USAO obtains the net equity report–which estimates the net equity of the property, taking into

account its valuation, expenses, and other factors, as detailed in Section I.B.1 in this chapter–from the

USMS and prior to the entry of a preliminary order of forfeiture. Prosecutors must also obtain prior

writtenapprovalfromtheirU.S.Attorneybeforelingacivilforfeiturecomplaintagainstapersonal

residence based on a facilitation theory of forfeiture.

Statelawaswellasfederallawmayaectforfeitureactionsagainstrealproperty.WhenaUSAO

identiesrealpropertyforforfeiture,buttherealpropertyislocatedinadierentdistrictfromthe

investigatingorprosecutingUSAO,itshouldconsultwiththeUSMSdistrictoceortheUSAO

wherethepropertyislocatedtodiscussanystate-specicissuesrelatingtotheforfeiture.

AgeneralreferencetoUSMSindicatestheUSMSdistrictoce.ReferencetoUSMS’headquartersAssetForfeiture

Division (AFD) indicates that USMS headquarters should be contacted to obtain topical expertise or authority. For

seizure planning, management, and disposal of assets seized by agencies operating under Department of the Treasury

(Treasury) guidelines, see Chap. 10, Sec. I.B in this Manual.

See Chap. 1, Sec. I.D.2 in this Manual.

See Chap. 1, Sec. I.B in this Manual.

See Sec. I.B.2 in this chapter and Chap. 1, Sec. I.D.1 in this Manual.

See Sec. II.B in this chapter.

See Chap. 5, Sec. III.D.1.c in this Manual. For purposes of this policy, the term “personal residence” refers to a primary

residence occupied by the titled owner(s).

Chapter 4: Real Property

4-2  Asset Forfeiture Policy Manual 2023

B. Real property valuation

To properly evaluate real property, the federal seizing agency and the USAO must consult with the

USMS to discuss valuation products, lien information, legitimate third-party interests, occupancy

issues,environmentalconsiderations,andotherfactorsthatmayaectseizureandforfeiture

decisions. Participating agencies must provide the USMS with any information developed throughout

theinvestigation–includinginformationobtainedviasubpoenas,suchasmortgagepayoamounts,

andanynegotiatedsettlementagreementswithlienholders–thatmayinformtheUSMS’preparation

of an accurate estimate of valuation.

Ifmultiplerealpropertiesareidentiedforforfeiture,or

more than one district is involved in the forfeiture, the USAO should consult with each USMS

districtoceinvolvedtodevelopacommunicationstrategyamongocesandtoensureadequate

seizureplanningforpropertieslocatedoutsideoftheUSAO’sdistrict.Inadditiontoconsultingwith

MLARS, participating agencies must also consult with each other when seizing or forfeiting property

that could, as calculated by the USMS, create a net loss to the AFF.

 

To determine ownership and the amount and validity of liens recorded against the real property,

the USAO must order a pre-seizure package, which includes both a title report and a valuation

(appraisal),throughtheUSMSdistrictoceassoonaspracticable.Uponreceivingsucharequest,

the USMS will conduct an analysis and prepare a net equity worksheet that calculates a net equity

minimum value for each parcel of real property to determine whether the property is suitable for

forfeiture. This analysis considers all potential expenses that may accrue from the commencement

of the forfeiture proceeding or, where applicable, from seizure or restraint, through disposition. The

analysis also contemplates market conditions, liens, and other encumbrances that could cloud the title.

Upon completing the analysis and net equity worksheet, the USMS can recommend whether the real

property meets established net equity thresholds and is thus suitable for forfeiture.

The most current equity information resides with the mortgage lender and borrower and may be

obtained via the means permitted by the Financial Right to Privacy Act of 1978, 12 U.S.C. § 3401

et seq.

 

The established minimum net equity threshold for forfeiture of commercial or residential real property

and vacant land is at least 20% of the appraised value, or $30,000, whichever amount is greater.

Properties with a net equity of less than 20% of the appraised value, or $30,000, whichever amount

is greater, should not be considered for forfeiture absent compelling law enforcement interests.

Individual districts may set higher thresholds.

USMS will enter the information in the Consolidated Asset Tracking System (CATS) on a continuing basis during the

forfeiture process as expenses are incurred.

See Sec. I.B.2 in this chapter.

The USMS can recommend what type of appraisal is most appropriate, given the circumstances, including a satellite

appraisal,broker’spriceopinion,ordrive-byappraisal.Onlywhenthegovernmenthasthelegalrighttoenterproperty,

or the consent of the property owner, may a comprehensive appraisal be obtained. In special circumstances, such as with

high-valueordicult-to-appraiseproperty,theUSAOmaychoosetoengagetheservicesofanappraiserwithspecic

expertise.

See Chap. 1, Sec. I.C.3 in this Manual.

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Asset Forfeiture Policy Manual 2023  4-3

IftheUSMSnancialanalysisindicatesthattheminimumnetequityofrealpropertyisbelowthe

threshold at the initiation of a case, or if the aggregate of all liens, mortgages, management costs,

and disposal costs approaches or exceeds the anticipated proceeds of sale after the initiation of a case

against real property that had previously met the threshold, the USAO must either discontinue the

forfeiture process or consult with MLARS. To consult with MLARS, the USAO must acknowledge

thepotentialfornanciallossanddocumentthecompellinglawenforcementinterestthatwouldbe

servedbypursuingforfeitureoftherealproperty.MLARSwillrelyontheUSAO’sdocumentation

of the downward variation from the threshold, which must include a copy of the net equity worksheet,

the accompanying appraisal, the facts underlying the forfeiture case, and a detailed explanation

of the reason for variation from the threshold. MLARS will discuss the request with the USAO

and promptly provide its recommendation in writing. The USAO must also consult with the Asset

ForfeitureandManagementSta(AFMS)regardingthenetequityoftheproperty.

Following the consultations with MLARS and AFMS, the USAO may decide to waive the

Department’snetequitythresholdsforrealproperty.

If the USAO decides at this point to continue

theforfeitureprocess,theUSAOmustobtainapprovalfromasupervisory-levelocialattheir

respectiveoceandincludeanexplanationofthereasoninthecasele.

B.3 Use of a writ of entry

To document the current condition of a property and conduct a comprehensive appraisal during

seizure planning, the government may require entry into the interior of a structure. The USAO may

obtainawritofentrybasedonandingofprobablecausebythecourt.Thedistrictcourthasthe

authority to issue writs of entry in both civil and criminal forfeiture cases. See generally 18 U.S.C.

§ 983(j)(1) (in civil forfeiture cases, the government may move for a restraining order and ask the

court to “take any other action to seize, secure, maintain, or preserve the availability of property

subjecttocivilforfeiture”);21U.S.C.§853(e)(1)(incriminalcases,thegovernmentmayseek[a]

restraining[orprotective]orderandaskthecourtto“takeanyotheractiontopreservetheavailability

of property...for forfeiture”). For a general discussion of writs, see Chapter 2, Section IV in this

Manual.

C. Commencing the civil or criminal forfeiture proceeding

In contrast to personal property, real property cannot be forfeited administratively.

Likewise, real

property is generally not restrained or served with an arrest warrant in rem before being forfeited

civilly.

Generally, Congress has directed that the government must commence a civil forfeiture

actionagainstrealpropertybylingacomplaintforforfeiture,postingnoticeofthecomplainton

the property, publishing the complaint, and serving notice of the complaint along with a copy of

the complaint on the titled property owner or owners. Some courts have held that service on titled

See Chap. 1, Secs. I.C.3 and I.D.1.b in this Manual.

Chap. 1, Sec. I.D.1.b; see also Chap. 3, Sec. V.B in this Manual.

See 18 U.S.C. § 985(a) (“Notwithstanding any other provision of law, all civil forfeitures of real property and interests in

real property shall proceed as judicial forfeitures.”).

Thegovernmenttypically“seizes”realpropertybytakingphysicalcustodyofit.Neitherthelingofanoticeoflis

pendens nor the execution of a writ of entry for the purpose of conducting an inspection and inventory of real property

constitutes a “seizure” under 18 U.S.C. § 985. See 18 U.S.C. § 985(b)(2).

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4-4  Asset Forfeiture Policy Manual 2023

property owners must comply with Federal Rule of Civil Procedure 4.

The USAO should also send

notice of the action to any other potential claimants who might have an interest in the real property.

Potentialclaimantsincludepersonsorentitieshavinganownershipinterestinthespecicreal

property sought to be forfeited, such as persons or entities having a leasehold, lien, mortgage,

recorded security interest, or valid assignment of an ownership interest in the real property. Potential

lienholderclaimantsincludemortgagelienholders,taxlienholders,homeowners’associations

and condominium associations that have recorded liens for past-due assessments, and judgment

lienholders who may have perfected their judgment liens against the real property under state law.

Potential claimants exclude those having only a general unsecured interest in, or claim against, the

real property, as well as nominees who exercise no dominion or control over the real property.

Even before serving the property owner, in civil forfeiture cases the government must obtain in rem

jurisdictionoverthedefendantrealpropertybylingthecomplaintandthenpostingnoticeofthe

complaint on the property.

Thus, in a civil forfeiture case against real property, the government

typically takes physical custody of the real property only after obtaining judgment of forfeiture.

There are, however, two ways the government may seek to take physical custody of real property

before it is forfeited civilly: (1) after giving the property owner notice of the in rem complaint and

the opportunity for a pre-seizure hearing, or (2) via a seizure warrant issued ex parte where the

government demonstrates probable cause for the forfeiture and exigent circumstances justifying

seizure without prior notice.

To pursue criminal forfeiture of real property, the government lists the real property subject to

forfeiture in the forfeiture notice of the indictment or in a bill of particulars and records a notice of lis

pendens. Only after the court has entered a preliminary order of forfeiture against the real property

may the government take physical custody of the real property. The USAO should work closely with

the USMS to determine the proper timing for taking custody of the property.

For cases in which an operating business is targeted for seizure and the business entity owns

real property subject to forfeiture, the USAO should record a lis pendens on the real property in

conjunction with a restraining or protective order issued for other assets of the business.

This is the

See 18 U.S.C. § 985(c); United States v. 120 Teriwood St., Fern Park, FL, No. 16-cv-6101 (CBA) (RER), 2017 WL

8640911 (E.D.N.Y. June 22, 2017), r. & r. adopted, 2018 WL 1513641 (E.D.N.Y. Mar. 27, 2018) (under 18 U.S.C.

§ 985(c), government is required to serve property owners with notice and copy of complaint in compliance with Federal

Rule of Civil Procedure 4; service by mail under the Supplemental Rule G(4) “reasonably calculated” standard is

insucient).

See Sec. II.B in this chapter; see also Supplemental Rule G(4)(b) (“The government must send notice of the action

and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the

governmentbeforetheendofthetimeforlingaclaimunderRuleG(5)(a)(ii)(B).”).

As noted in Sec. II.A in this chapter, the USMS will identify potential claimants, including lienholders, in its preliminary

title report or commitment.

See18U.S.C.§983(d)(6)(dening“owner”forinnocentownershippurposes).

See 18 U.S.C. § 985(c)(1)(B) (“The Government shall initiate a civil forfeiture action against real property by. . .posting

a notice of the complaint on the property”); id. § 985(c)(3) (“If real property has been posted in accordance with this

subsection, it shall not be necessary for the court to issue an arrest warrant in rem, or to take any other action to establish

in rem jurisdiction over the property.”).

See 18 U.S.C. § 985(d)(1) & (2); Rule G(3) of the Supplemental Rules for Admiralty or Maritime Claims and Asset

Forfeiture Actions (Supplemental Rules).

See Chap. 1, Sec. I.D.2 and Chap. 2, Sec. VI in this Manual for a discussion of the seizure of operating businesses.

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Asset Forfeiture Policy Manual 2023  4-5

case for both civil and criminal forfeiture. The restraining or protective order should include language

intended to prevent illegal activities from occurring on the real property pending forfeiture.

D. Title conveyance

To sell or otherwise dispose of real property, the government must have clear title. Pursuant to

28 U.S.C. § 524(c)(9)(A), the Attorney General has the authority to warrant clear title upon transfer of

forfeited real property to the government.

The USMS is responsible for determining the preferred means to transfer forfeited real property.

The USMS and its headquarters Asset Forfeiture Division (AFD) will determine the form of deed by

which the government will transfer title to forfeited real property. USMS AFD will approve use of a

general warranty deed only in compelling circumstances.

Inadditiontothespecicrealpropertyat

issue, USMS AFD shall also consider the cumulative potential liability that will accrue over time as a

result of each successive use of a general warranty deed.

DespitetheAttorneyGeneral’sauthoritytowarrantcleartitle,theabilityoftheUSMStooer

forfeited properties at market value is often predicated on obtaining a title insurance policy. Title

companies may have more stringent noticing requirements, above those required by state or federal

law,forissuingthesetitlepolicies.Toavoiddicultiesinobtainingtitleinsuranceandselling

propertyforfeitedcivillyorcriminally,thefollowinglingsandproposedordersconcerningreal

property shall include the property address and a complete and accurate legal property description:

• notice of lis pendens

• civil forfeiture complaint

• civil judgment or decree of forfeiture

• the criminal information or indictment

• preliminary order of forfeiture

• nalorderofforfeiture,and

• allnoticeandpublicationdocumentsandlings.

Moreover,alldecreesandnalordersofforfeitureshallspecicallyforfeit“allright,title,andinterest

in”therealproperty—andnotmerelytheclaimantordefendant’sinterestinthatrealproperty—to

theUnitedStates.Inaddition,alldecreesandnalordersofforfeitureshouldspecicallyidentifythe

noticingeortsforallthirdparties,referenceanysettlementswiththirdparties,andorderdefaulted

the interests of all third parties not appearing, including titled owners, the defendant in a criminal

case,thedefendant’sspouse,andanycorporateentities,lienholders,homeownersassociations,and

taxing authorities. A failure to adhere to these common title requirements could lead to a delay in the

The USMS chooses the type of deed pursuant to existing contracts, regional preferences, and market indicators.

Ageneralwarrantydeedexpresslyguaranteesthegrantor’sgood,cleartitleandcontainscovenantsconcerningthequality

of title. Compelling circumstances for which USMS AFD may approve a general warranty deed may exist where the

nancialadvantageofoeringageneralwarrantydeedinaparticularcase,comparedtotheavailablealternatives,far

outweighsboththepotentialcostofhonoringthewarrantyandthepotentialeectofincreasedpurchaserdemandfor

general warranty deeds in future sales of other forfeited properties.

If a legal description does not exist or is unavailable for a parcel of real property, contact USMS AFD for assistance.

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4-6  Asset Forfeiture Policy Manual 2023

time it takes to sell the real property, a reduction in the net equity realized on the sale of the property,

or both.

The authority to warrant title conferred by § 524(c)(9)(A) does not extend to interlocutory sales,

whichare,bydenition,pre-forfeiture.Accordingly,thetransferofpropertypursuanttoan

interlocutory sale shall be by a USMS deed. The authority to execute deeds and transfer title has been

delegated to the USMS pursuant to 28 C.F.R. §§ 0.111(i) and 0.156.

E. Contamination liability

E.1 General policy

Certain federal and state statutory provisions may impose liability on the government regarding

ownership of contaminated real property.

Consequently, prosecutors must exercise extreme caution

in targeting real property for forfeiture if there are indications that it may be contaminated. The

USAO must consult with the seizing agency, the USMS, AFMS, and MLARS before determining

to forfeit real property that is contaminated or potentially contaminated with hazardous substances.

This policy is applicable to all forfeiture cases referred to the Department by any government agency,

regardless of the type or source of the hazardous substance(s), other than lead-based paint, which is

covered immediately below.

E.2 Lead-based paint contamination

Real property that is federally owned, and for which the proposed use is residential, is subject to the

regulations promulgated to implement the Lead-Based Paint Poisoning Prevention Act,

as well as

the Residential Lead-Based Paint Hazard Reduction Act of 1992.

Residential property for which

construction was completed on or after January 1, 1978 does not contain lead-based paint and is thus

exempt from these regulations.

The government may be required to undertake certain abatement

actions of lead-based paint contamination for forfeited residential property constructed prior to

1960.

Forfeited residential property constructed between January 1, 1960 and December 31, 1977

may be marketed and sold after conducting a lead-based paint risk assessment and lead-based paint

inspection without obligation to conduct abatement.

If the sale is completed within 270 days of

thenalorderofforfeiture,thegovernmentisexemptedfromtheseabatement,riskassessment,and

inspection requirements.

SpecicquestionsshouldbedirectedtoUSMSAFD.

The 28 C.F.R. § 0.156 delegation predates the Asset Forfeiture Program and applies to all court-ordered sales of property,

not solely to forfeited property sales.

Although federal law may allow for the transfer of contaminated real property without federal liability for cleanup,

applicable state law may continue to impose liability or render the real property unmarketable.

42 U.S.C. § 4821 et seq.

42 U.S.C. § 4851 et seq.; 24 C.F.R. § 35.100.

24 C.F.R. § 35.115(a)(1).

For pre-1960 construction, 24 C.F.R. § 35.210(b) allows the USMS to delegate the abatement but not the inspection.

The USMS must inspect residences constructed from 1960 to 1978, but no abatement is required. See 24 C.F.R. § 35.215.

“If a Federal law enforcement agency has seized a residential property and owns the property for less than 270 days,”

the regulations requiring the government to inspect, assess and abate contamination shall not apply. See 24 C.F.R.

§ 35.115(a)(10).

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Asset Forfeiture Policy Manual 2023  4-7

II. Ownership and Notice

To satisfy the notice requirements of 18 U.S.C. § 985 and Rule G(4) of the Supplemental Rules of

Admiralty or Maritime Claims and Asset Forfeiture Actions (Supplemental Rules), the USAO must

identify all parties holding an interest in the real property.

The USMS has a number of ways to

identify these parties. The USAO may consult with the USMS to determine the method best suited to

serve its needs.

A. Title search

Oncetheseizingagencyhasidentiedrealpropertyforforfeiture,theUSAOmustdetermine

the identity of any borrower, purchaser, note-holder, mortgagee, and all others holding valid

liens of record and the amount of each. To do so, the USAO must request that the USMS order a

preliminarytitlecommitment.Thispreliminarytitlecommitmentidentiestheoriginalmortgagee

and lienholders, provides the amount of debt recorded against the real property, and provides the

legal description of the property that should be used in the order of forfeiture. The preliminary

titlecommitmentalsoreectswhetherthemortgageisregisteredwiththeMortgageElectronic

RegistrationSystem(MERS).Additionalnoticationofaforfeitureactionshouldbeprovided

if a mortgage servicer is registered with MERS, as detailed in Section II.C in this chapter.

The

preliminary title commitment is prepared by a title company or an authorized title attorney on behalf

of a title company.

Titlereportsandappraisalsareconsideredcurrentifdatednotmorethansixmonthspriortotheling

date of a charging instrument. When needed, the USAO must request updated valuations and title

searches from the USMS. USAOs may wish to request an updated valuation and title searches when

itisreasonablyknownthatanalorderforrealpropertywillbeobtained,astheUSMSrequires

current valuation and title searches before proceeding with a sale.

B. Lis pendens

A lis pendens provides general notice that a property is involved in a pending civil or criminal legal

proceeding. A lis pendens typically is recorded in the real property records of the jurisdiction where

the property is located. While recording a notice of a lis pendens is not a seizure of the real property,

itconstitutesacloudonthetitlethateectivelypreventstheownerorclaimantfromsucceedingina

disposalaction,renancing,orobtainingasecondarymortgagetoreduceequityoravoidforfeiture.

Examples include owners (pursuant to state law), mortgagees, lienholders, lessees, taxing authorities, business entities,

trustees,tenantswitharightofrstrefusalandreferees.

See Sec. II.C in this chapter. Except in limited circumstances, mortgagees may not release private information

about a mortgagor without notifying the mortgagor. In a civil case, the investigative agency may be able to issue an

administrative subpoena to obtain detailed information from the mortgagee. In a criminal case, the USAO may use a

grand jury subpoena to obtain an accurate mortgage balance. When a civil or criminal restraining order is entered, the

USAOmayseektoincludelanguagethatdirectslienholderstoprovidecurrentpayoinformation.

See 18 U.S.C. § 985(b)(2).

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It is the responsibility of the USAO to ensure that a lis pendens is properly recorded in accordance

with state law.

The USAO determines whether the USAO, federal seizing agency, or USMS records

the lis pendens. If the property is not located in the district of the USAO prosecuting the case, the

USAO prosecuting the case should confer with USMS or USAO representatives in the district where

the property is located to determine state and local law and relevant recording practices.

Duration of the lis pendens varies by state and may require periodic renewal.

The USAO

is responsible for tracking all related recording deadlines and releasing the lis pendens when

appropriate, as governed by state law. If more than one USAO is involved, the district that initiates

the forfeiture action is responsible for tracking deadlines. When a parcel of real property is the

subject of both criminal and civil forfeiture proceedings, a separate lis pendens should be recorded in

each action. A lis pendens

shouldbereleaseduponissuanceofanalorderofforfeitureorwhena

forfeiture proceeding is dismissed.

C. Noticing the Mortgage Electronic Registration System (MERS)

MERS is a national electronic registration system that tracks the changes in servicing rights and

benecialownershipinterestsinresidentialmortgageloansonbehalfofbanksandothernancial

institutions

that service mortgages. While a title search may identify the original mortgage service

provider, MERS captures the most current assignment of a mortgage instrument. Accordingly,

providingnoticationofaforfeitureactioninvolvingrealpropertywithaMERS-registeredmortgage

constitutes notice reasonably calculated to apprise all parties holding an interest in the mortgage of the

impending litigation. The USAO should provide notice directly to MERS concerning any forfeiture

action involving MERS-registered real property, if unable to obtain good notice with lienholder

directly.

III. Third-Party Interests

A. Tenancy interests

Leasehold interests represent an interest in real property and are subject to forfeiture.

Therefore,

to the extent that the USAO seeks to forfeit a leasehold interest, the USAO must give notice to the

tenant, in addition to the fee holder.

When a lis pendensmaybeledonarealpropertynamedsolelyasasubstituteassetinacriminalcaseisdependent

onapplicablefederallawinthedistrictinwhichtheactionisledandstatelawinthestateinwhichthepropertyis

located. See e.g. United States v. Balsiger, 910 F.3d 942, 951 (7th Cir. 2018) (while noting that it “cannot foreclose a

circumstance where a lis pendensoperatestoinfringeonadefendant’srighttochoiceofcounsel,”courtfoundinthis

casethattherewasnoSixthAmendmentviolationfordistrictcourt’ssupposedrefusaltoliftlis pendensondefendant’s

untainted residence, where defendant actually sold that residence for $1.5 million eight months before trial and thereby

obtainedsucientfundstohirecounselofchoice);United States v. Jarvis, 499 F.3d 1196, 1203 (10th Cir. 2007) (under

New Mexico law, a lis pendensmayonlybeledonpropertyinvolvedinpendinglitigation;itmaynotbeusedmerely

to secure a future money judgment; substitute assets are not involved in the pending criminal case except to the extent

they may be used to satisfy a money judgment; therefore a lis pendenscannotbeledagainstsuchproperty).Prosecutors

shouldthereforeconrm,beforelingalis pendens on a real property sought to be forfeited solely as a substitute asset,

thatapplicablelawpermitsthelingofalis pendens under such circumstances.

In Florida, for example, a lis pendens automatically expires after one year unless renewed.

NotallnancialinstitutionsaremembersofMERS.

Forexample,alongtermcommercialleasemayhavesignicanteconomicvalue.

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Asset Forfeiture Policy Manual 2023  4-9

B. Occupancy agreements for tenants

The seizing agency is responsible for determining whether a real property subject to forfeiture is

occupied pursuant to a valid lease. The USMS may seek to enter into an occupancy agreement

with the current tenant, and this agreement may include provisions governing the collection of rent

until disposition of the property. The USMS may collect rent prior to entry of a preliminary order

of forfeiture or a civil forfeiture order pursuant to a restraining order

allowing the USMS to do so.

If the government collects rental proceeds prior to the entry of a preliminary order of forfeiture, it

shouldspecicallyforfeitthoserentalproceedsinthenalorderofforfeiture.TheUSMS,however,

prefers for property to be vacated to facilitate disposition, except in the case of commercial properties,

where paying tenants generally add value.

C. Business or corporate owners

Ifrealpropertyrepresentsasubstantialportionofanoperatingbusiness’assetsandthegovernment

seeks to forfeit the business, the government must follow all policies applicable to the seizure or

restraint of an operating business and those policies related to real property.

In particular, the USAO

must consult with MLARS prior to initiating the seizure, restraint, or forfeiture of an operating

business or commercial property where a business is operating.

When the government seeks forfeiture of real property that is owned by a business, but not forfeiture

of the business itself, all pre-forfeiture planning policies for real property as described in this chapter

must be followed. The charging instrument (civil complaint, criminal information, or indictment)

must identify the real property by address and

legaldescription,andthenalorderofforfeitureshall

extinguish any interest listed as the vested owner, including any corporate entity.

D. Lienholders

The USAO must obtain a copy of the recorded mortgage instrument and the note that the mortgage

secures. If the government is required to pay interest and penalties, the Department will recognize

claims consistent with the terms of the note for recorded debt. The USAO is encouraged to require

claimants to submit evidence of the payment history, including fees, penalties, and escrows.

IV. Taxes and Penalties

A. Payment of state and local real property taxes

It is Department policy that the Department pays state and local real property taxes that accrue up

tothedateoftheentryoforderofforfeitureor,incriminalcases,thenalorderofforfeiture,even

if the tax liabilities accrue after the events giving rise to forfeiture. The refusal to pay such taxes

The Second Circuit has held that the receipt of rental income generated by a commercial real property is a property

interest subject to the protections of the Due Process Clause, such that absent a showing of exigent circumstances, the

government must provide notice and an opportunity for the owner of the real property to be heard before obtaining an

order seizing or restraining such rental income. See In re 650 Fifth Ave. Co., 991 F.3d 74, 89–90 (2d Cir. 2021); see also

18 U.S.C. § 985(f)(1) (providing that § 985 “applies...to civil forfeitures of real property and interests in real property”).

See Chap. 1, Sec. I.D.2 and Chap. 2, Sec. VI in this Manual.

Failure to properly identify the parcel subject to forfeiture may prevent timely disposal or may lead to a dismissal of the

forfeiture.

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4-10  Asset Forfeiture Policy Manual 2023

woulddrawtheDepartmentintoconictwithstateandlocalauthoritiesandcouldcomplicatethe

interlocutory or post-judgment sale of real property. Prosecutors are encouraged to contact MLARS

for additional guidance regarding the payment of state and local taxes.

B. Some taxes become a lien on the property before they are due

In certain states, taxes become a lien on the property at some date before the taxes are assessed.

In such jurisdictions, if the tax lien date precedes the date of forfeiture, the taxing authorities have

frequently taken the position that the entire tax (whether assessed yet or not) must be paid by the

government. Federal prosecutors should be aware of the law on this issue in the state where the real

property is located.

C. Payment of interest and penalties on real property taxes

To ensure consistent Department treatment of the payment of interest and penalties on state and local

taxes that have accrued on forfeited real property, the Department will pay

• interestonoverduetaxesthathaveaccrueduptothedatethatthenalorderofforfeitureis

entered and not thereafter; and

• penaltiesonoverduetaxesuntilthedateofentryofthenalorderofforfeitureintheeventthat

thisdoesnotconictwithlocaltaxauthorityrequirements.Iftaxauthoritiesrequireagreater

period for penalties, the Department will comply.

AnalorderofforfeituremustbeproperlyrecordedintheConsolidatedAssetTrackingSystem

(CATS) before payment.

Outstanding real property taxes (and interest and penalties thereon) may only be paid up to the

amount realized from the sale of forfeited real property.

V. Real Property Transfers

The Attorney General may dispose of property “by sale or any other commercially feasible means.”

In certain circumstances, the Attorney General may transfer federally forfeited real property for

federalocialuse;tomeetotherfederalneeds;toservestaterecreational,preservation,orhistoric

purposes;ortoassistastate,local,ortribalgovernment,orpublicornon-protagency,incarrying

out educational, treatment, rehabilitation, housing, and other community-based initiatives.

For example, in California, taxes on real property become a lien on January 1. See CA Rev & Tax C. § 2192. However,

thetaxisnotassesseduntillateSeptember[CARev&TaxC.§2601(a)]andthersthalfofthetaxesarenotdueand

payable until November 1 (CA Rev & Tax C. § 2605). To further complicate matters, the second half of the taxes are not

dueuntilthefollowingFebruary,afterthenextyear’staxeshavebecomealien.See CA Rev & Tax C. § 2606.

With regard to interest and penalties on property taxes on real property forfeited by agencies operating under Treasury

guidelines,pleasecontacttheTreasuryExecutiveOceforAssetForfeiture(TEOAF).

21 U.S.C. § 853(h); see also 21 U.S.C. § 881(e).

See The Attorney General’s Guidelines on the Asset Forfeiture Program (July 2018) (AG Guidelines), Sec. V.H.

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Asset Forfeiture Policy Manual 2023  4-11

ApplicationsfortransfermustbeprovidedtoMLARSforreviewandrecommendationbeforenal

submission to the Attorney General (or a designee) for approval.

Certain requirements apply to all

transfers:

(1) theforfeituremustbenalandnolongersubjecttoappeal,cleartitlemustbevestedinthe

government, and the real property must be vacant;

(2) the requested use of the real property must comply with all applicable laws, including zoning

and land-use restrictions; and

(3) environmental issues and costs of remediation must be addressed.

Additional requirements apply to the non-sale transfers of forfeited real property:

A. Weed and Seed Initiative

Real property forfeited for drug violations pursuant to 21 U.S.C. §§ 853(i)(4) and 881(e)(1)(A) may

be eligible for transfer to the state, local, or tribal law enforcement agency

that participated in the

seizureorforfeitureoftherealpropertyforsubsequenttransfertopublicagenciesandnon-prot

organizations. The proposed use must

• support community-based drug treatment, crime prevention, and education;

• improve housing;

• enhance job skills; or

• perform other activities that will substantially further neighborhood rehabilitation and

rejuvenation.

The state, local, or tribal law enforcement agency must submit an equitable sharing request form

(Form DAG-71) accompanied by a request from the U.S. Attorney of the district in which the real

property is located. The real property must have an appraised value that is not greater than $50,000 or

an appraised value of not more than $200,000 if the net equity value of the real property is $50,000 or

less. The intended recipient must be vetted by the USAO, enter into a memorandum of understanding

(MOU) with all parties to the transfer, and agree to use the real property as proposed for a period

ofveormoreyears.AlltransferrequestsultimatelyrequiretheapprovaloftheDeputyAttorney

General (DAG) based on a recommendation provided by MLARS.

B. Operation Goodwill

Under the Operation Goodwill Program, the Attorney General is authorized to transfer real property

of limited or marginal value to a state or local government agency, or to its designated contractor

or transferee, for use in support of community-based revitalization programs. See Pub. L. 108-199,

Jan. 23, 2004, Div. B, Title I, § 108, 118 Stat. 61 (reprinted in the historical and statutory notes for

28 U.S.C. § 524). Programs include drug abuse treatment, drug and crime prevention, education,

housing, job skills training, and other community-based health and safety programs.

Applications for transfer of property forfeited by a TEOAF participating agency must be submitted to TEOAF.

See Sec. I.E in this chapter.

See 18 U.S.C. § 981(e)(1) and (2); 21 U.S.C. § 881(e)(1)(A).

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4-12  Asset Forfeiture Policy Manual 2023

To be eligible, the property must have an appraised value of $50,000 or less or an appraised value of

$200,000 or less if the net equity value of the real property is $50,000 or less.

The recipient must

be vetted by the USMS, meet Operation Goodwill Program guidelines, enter into an MOU with all

parties to the transfer, be approved by USMS AFD, and use the real property as proposed for a period

ofveormoreyears.ThesetransfersrequiretheapprovaloftheAttorneyGeneral,basedonthe

recommendation provided by MLARS. USAOs should contact USMS AFD with questions regarding

the Operation Goodwill Transfer Program.

C. Federal component transfers

Any federal agency component may request the transfer or retention of forfeited real property to

that component for certain purposes, pursuant to 18 U.S.C. § 981(e)(1)

and 21 U.S.C. §§ 853(i)(4)

and 881(e)(1)(A).

A Department agency may request the transfer to use the real property for a law

enforcement purpose. Non-Department agencies may request that real property be transferred to

serveasignicantandcontinuingfederalpurpose.Therearenovaluationlimitationsforeligibility.

However,nancialeectsontheAFFarefactoredintotheapprovaldecision.Alltransferrequests

ultimately require the approval of the DAG based on the recommendation provided by MLARS.

 

Pursuant to 21 U.S.C. § 881(e)(4)(B), the governor of a state in which forfeited real property is

located may request that the Attorney General transfer the real property to the state. Real property

is eligible for transfer only if the state uses it as a public area reserved for recreational or historic

purposes,ortopreservetherealproperty’snaturalcondition.Thestateocialseekingatransfer

must contact the USAO, which, in consultation with the USMS and the federal seizing agency, will

ensurethatallspecicprogramrequirementsaresatised.

The recipient state must enter into a MOU with all parties to the transfer and agree to use the real

property as agreed in perpetuity. All transfer requests ultimately require the approval of the DAG

based on the recommendation provided by MLARS.

The valuation limitation may be waived if the USMS and USAO determine that compelling law enforcement

circumstances exist to warrant the transfer.

Any federal agency component requesting the transfer or retention of forfeited real property must have statutory authority

to receive the real property.

The customs law provisions for disposition of forfeited property are incorporated by reference. See 19 U.S.C.

§ 1616a(c)(1)(B)(i).

Asset Forfeiture Policy Manual 2023  5-1

Chapter 5:

Administrative and Judicial Forfeiture

I. Overview

A. Seized property eligible for forfeiture should be forfeited

The Attorney General’s Guidelines on the Asset Forfeiture Program (July 2018) (AG Guidelines)

provide that “the Department of Justice should use asset forfeiture to the fullest extent possible to

investigate, identify, seize, and forfeit the assets of criminals and their organizations while ensuring

that due process rights of all property owners are protected.”

B. Forfeiture should follow the prosecution

For legal and practical reasons, it is Department of Justice (Department) policy that regardless of

whether a federal, state, local, or tribal law enforcement authority seizes property subject to forfeiture,

forfeiture proceedings against that property should follow the criminal prosecution.

A state forfeiture action that runs parallel to a pending federal criminal investigation or prosecution

notonlyrisksjeopardizingthefederalproceedingsbutmayalsocreatejurisdictionalconictsand

unnecessary confusion among potential claimants and law enforcement authorities. The federal

government should pursue federal administrative or judicial forfeiture where there is a pending

federal criminal investigation or prosecution.

Under limited circumstances, however, state forfeiture proceedings may be appropriate where the

investigation or prosecution is federal in nature. These limited circumstances include when:

• state authorities have commenced litigation against, conducted substantial litigation regarding,

or concluded forfeiture proceedings against an asset seized before the federal agency joined an

investigation;

• an existing memorandum of understanding (MOU) between state and federal authorities

providesfordierentproceduresforeectuatingseizuresandforfeitures;

• state or local authorities seized an asset, a turnover order is required by law to pursue federal

forfeitureofit,andagencycounselandthefederalprosecutingocialelectnottoseeksuchan

order;

• state or local authorities seized an asset, a turnover order is required by law to pursue federal

forfeiture of it, the state court issues an adverse order, and the local prosecuting attorney, agency

See AG Guidelines, Sec. II.

See Chap. 3 in this Manual for a full discussion of issues involving adoptive forfeitures.

Chapter 5: Administrative and Judicial Forfeiture

5-2  Asset Forfeiture Policy Manual 2023

counsel,andthefederalprosecutingocialconcludethatthepublicinterestsarebestservedby

pursuing the state forfeiture;

• theseizedassetdoesnotmeettheDepartment’sminimumnetequitythresholds;or

• thepertinentfederalprosecutingocialhasreviewedthecase,declinedtoinitiateforfeiture

proceedings, and approved a referral for state forfeiture.

When a federal agency believes a state forfeiture is appropriate, agency counsel and the federal

prosecutor responsible for asset forfeiture must discuss referring the asset for state forfeiture before

anyreferral.Ifafederalagencyreferssignicantassetsforstateforfeitureafteradeterminationto

seek federal prosecution has been made and without the required discussion, a federal prosecuting

ocialmaydeclinethefederalprosecution.

II. Administrative Forfeiture Guidelines

TheadministrativeforfeitureprocesspromotestheecientallocationofDepartmentresourcesand

discouragesundueburdensonthefederaljudicialsystemwhileaordinginterestedpartiesaprompt

resolution through the remission process. Accordingly, property subject to administrative forfeiture

should be forfeited administratively. Although policy favors parallel proceedings, as a matter of

discretion, the U.S. Attorney may ask the seizing agency to either forego or suspend administrative

proceedings in favor of civil or criminal judicial forfeiture.

A. Scope of property subject to administrative forfeiture

In general, property subject to administrative forfeiture includes:

• monetaryinstruments,asdenedbystatuteandimplementingregulations,

in any amount;

• personal property, including vehicles, vessels, aircraft, merchandise, baggage, jewelry, art,

furniture, and antiquities valued at less than or equal to $500,000;

• a vessel, vehicle, or aircraft used to import, export, transport, or store any controlled substance

See 31 U.S.C. § 5312(a)(3). Monetary instruments include U.S. coins and currency; coins and currency of a foreign

country,travelers’checks,bearernegotiableinstruments,bearerinvestmentsecurities,bearersecurities,stockonwhich

title is passed on delivery, and similar material outlined in 31 C.F.R. § 1010.100(dd), the applicable regulation; and

checks,drafts,notes,moneyorders,andothersimilarinstrumentsthataredrawnonorbyaforeignnancialinstitution

andarenotinbearerformasoutlinedinthatsameregulation(designatingcurrency;traveler’schecksinanyform;all

negotiableinstruments,includingpersonalchecks,businesschecks,ocialbankchecks,cashier’schecks,third-party

checks,promissorynotesasdenedintheUniformCommercialCode,andmoneyorders,inbearerform,endorsed

withoutrestriction,madeouttoactitiouspayee,orotherwiseinsuchformthattitletheretopassesupondelivery;

incompleteinstruments,includingpersonalchecks,businesschecks,ocialbankchecks,cashier’schecks,third-party

checks,promissorynotesasdenedintheUniformCommercialCode,andmoneyorders,signedbutwiththepayee’s

name omitted; and securities or stock in bearer form or otherwise in such form that title thereto passes upon delivery).

Monetary instruments do not include warehouse receipts or bills of lading. See 31 C.F.R. § 1010.100(dd)(2). Monetary

instrumentsalsodonotincludedigitalassets,althoughtheSecretaryoftheTreasurymay,byregulation,dene“monetary

instruments” to include “value that substitutes for any monetary instruments.” 31 U.S.C. § 5312(a)(3)(D).

Domestically seized cryptocurrency valued at less than or equal to $500,000 may be forfeited administratively.

Cryptocurrency valued at more than $500,000 must be forfeited judicially. The value of cryptocurrency is determined

at the date of seizure. Internationally seized cryptocurrency must be forfeited judicially. See Chap. 2, Sec. V.B in this

Manual for more guidance on the seizure and forfeiture of cryptocurrency.

Chapter 5: Administrative and Judicial Forfeiture

Asset Forfeiture Policy Manual 2023  5-3

or listed chemical; and

• merchandise the importation of which is prohibited.

Administrative forfeiture is not authorized for:

• real property;

• personal property valued at more than $500,000;

• funds seized from a bank account in an amount of more than $500,000;

• property subject to forfeiture pursuant to a statute that does not incorporate the customs laws.

An agency may pursue an administrative forfeiture of property seized pursuant to a criminal or civil

seizure warrant, or by a valid warrantless seizure.

B. Administrative forfeiture notice deadlines

Statutoryandregulatorydeadlinesgovernthegovernment’sdutytoprovideownersandotherinterest-

holders in seized property prompt notice of the right to contest a non-judicial forfeiture, including the

procedures for doing so. See 18 U.S.C. § 983(a); 28 C.F.R. § 8.9(c).

Even if pertinent authority authorizes delaying notice under limited circumstances, however, law

enforcement agencies should seek extensions of notice deadlines only when necessary and in the

manner described in the statute and regulations. See 18 U.S.C. § 983(a)(1)(B) & (C).

B.1 18 U.S.C. § 983(a)(1)—the default rules

18 U.S.C. § 983(a)(1) outlines the deadlines and other requirements for notifying potential claimants

of administrative forfeiture proceedings instituted against property seized for forfeiture. The

deadlines in § 983(a)(1) do not apply, however, to seizures of property to be used strictly for evidence

and as to which forfeiture is not sought, seizures pursuant to an exclusively criminal seizure warrant,

and seizures made pursuant to a statute that makes administrative forfeiture unavailable.

See 19 U.S.C. § 1595a; see also 19 U.S.C. § 1607(a)(2).

See 18 U.S.C. § 985.

See 19 U.S.C. § 1607(a)(1).

Neitherthatstatutorydenitionof“monetaryinstruments”northeparalleldenitionintheapplicableregulations

encompasses the funds in a bank account. See 31 U.S.C. § 5312(a)(3); 31 C.F.R. § 1010.100(dd). Consequently, funds

seized from a bank account do not qualify as monetary instruments for the purposes of the exception to the $500,000 cap

on administrative forfeitures.

Most civil forfeiture statutes authorize the seizing agency to forfeit property administratively in accordance with the

customs laws. See 18 U.S.C. § 981(d); 21 U.S.C. § 881(d) (incorporating the provisions of 19 U.S.C. § 1602 et seq. into

the civil forfeiture statutes). Nothing in the incorporated provisions of Title 19 limits administrative forfeiture to property

seized pursuant to a particular kind of seizure warrant. To the contrary, 19 U.S.C. § 1603(a) provides that property may

be seized for administrative forfeiture “upon process issued in the same manner as provided for a search warrant under

the Federal Rules of Criminal Procedure [i.e.,Rule41],”or“anyseizureauthorityotherwiseprovidedbylaw.”See also

18 U.S.C. § 981(b)(2) (allowing for seizures made pursuant to a warrant “obtained in the same manner as provided for a

search warrant under the Federal Rules of Criminal Procedure”). Thus, nothing in the customs laws themselves precludes

instituting administrative forfeiture proceedings when property is seized pursuant to a criminal seizure warrant issued

under 21 U.S.C. § 853(f).

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Pursuant to § 983(a)(1)(A)(i), a federal agency that seizes property for forfeiture must send “written”

notice to all known, interested parties “as soon as practicable” but no later than 60 days after the

seizure date.

Section 983(a)(1)(A)(iv) extends that deadline to 90 days in cases where the forfeiture

is adopted from a state or local law enforcement agency; however, Department policy requires notice

within45daysoftheseizureinadoptioncases,unlessaseniorocialatthefederalagencyapproves

an extension.

Incaseswhereanagencylearnsofaparty’sinterestoridentityafterthedateofthe

federal seizure or turnover from a state or local agency, but before the administrative forfeiture is

complete,theagencymustsendnoticetothenewlyidentiedinterest-holderwithin60daysofthe

discovery. See § 983(a)(1)(A)(v).

B.2 Administrative forfeiture proceedings arising from criminal seizure warrants

should ordinarily follow 18 U.S.C. § 983(a)(1)’s default rules

By their terms, the notice deadlines in 18 U.S.C. § 983(a)(1) apply only to “nonjudicial civil forfeiture

proceeding[s]underacivilforfeiturestatute.”See § 983(a)(1)(A)(i). Because the statutory provision

authorizingcriminalseizurewarrants,21U.S.C.§853(f),isinastatutespecicallydesignatedasa

criminal forfeiture statute, § 983(a)(1) does not apply.

Nonetheless, routinely commencing administrative forfeiture proceedings against property seized

with criminal process more than 60 days after seizure could create an appearance of misusing the

criminal forfeiture process to circumvent the applicable civil forfeiture deadlines.

Consequently,

agencies should send notice of administrative forfeiture proceedings against property seized pursuant

to an exclusively criminal seizure warrant within the deadlines that § 983(a)(1) would have imposed

had the seizure occurred pursuant to a civil seizure warrant. If an agency does not send timely notice,

itshouldreferthecasetotheU.S.Attorney’sOce(USAO)forcivilorcriminaljudicialproceedings

in the manner described in Section II.B.4 in this chapter.

Despitethestrongpreferenceforadheringtothecivilforfeiturestatute’sdeadlinesevenwhen

§ 983(a)(1) does not apply, rare circumstances could warrant instituting administrative forfeiture

proceedings against property seized with exclusively criminal process more than 60 days after seizure

(for example, a case where a defendant agrees to forfeit property administratively as part of a plea

agreement). Generally, decisions to pursue an administrative forfeiture of property seized with

criminal process outside the deadlines that would have applied had the property been seized civilly

should be extremely rare.

B.3 Exceptions to 18 U.S.C. § 983(a)(1)’s default rules

Fourexceptionscanproviderelieffrom18U.S.C.§983(a)(1)’snoticedeadlines.Therst,which

requiresexceptionalcircumstances,isanextensiongrantedbyadesignatedocialwithintheseizing

agency. The second exception, which also requires exceptional circumstances, is an extension granted

by a federal court. The third exception is known as the “customs carve-out.” The fourth occurs when

property is initially seized by a state or local law enforcement agency, then subsequently seized or

18 U.S.C. § 983(a)(1)(A)(i); see also 28 C.F.R. § 8.9(c)(1).

Although federal law gives agencies up to 90 days to send notice to interested parties in the case of adoptive forfeitures,

Attorney General Order No. 3946-2017: Federal Forfeiture of Property Seized by State and Local Law Enforcement

Agencies (July 19, 2017)requiresthemtosendnoticenotlaterthan45daysafterseizure,unlessaseniorocialatthe

federal agency approves such an extension. See Chap. 3, Sec. IV.C in this Manual.

See generally Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Pub. L. 106-185, Apr. 25, 2000, 114 Stat. 202.

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Asset Forfeiture Policy Manual 2023  5-5

restrained by a federal seizing agency pursuant to a federal seizure warrant or restraining order, or the

owner consents to the forfeiture.

B.3.a 30-day seizing agency extension

18U.S.C.§983(a)(1)(B)authorizesdesignatedocialswithinaseizingagencytoissuea

limited waiver of the 60-day notice deadline under exceptional circumstances. Those exceptional

circumstances are limited to situations where a reasonable belief exists that supplying notice may

haveanadverseresult,includingendangermentofthelifeorphysicalsafetyofanindividual,ight

from prosecution, destruction of or tampering with evidence, intimidation of potential witnesses,

or “otherwise seriously jeopardizing an investigation or unduly delaying a trial.” See 18 U.S.C.

§ 983(a)(1)(D)(i)–(iv).

Thedesignatedocialmustensurethatallextensionsissuedunder§983(a)(1)(B)beinwriting,

describe the exceptional circumstances warranting the waiver, and be included and maintained in the

administrativeforfeiturecasele.Moreover,anysuchwaiverisvalidfornomorethan30days,and

anyadditionalextensionrequiresajudicialocer’sapproval.See 18 U.S.C. § 983(a)(1)(C).

B.3.b 60-day federal court extension

Should a seizing agency conclude that continuing extraordinary circumstances warrant extending

the18U.S.C.§983(a)(1)noticedeadlinebeyondthe30daysthatitsdesignatedagencyocial(s)

may grant, a federal court order is required. See 18 U.S.C. § 981(a)(1)(C). A concurring government

prosecutormustleamotionsupportedbytheagency-designatedocial’swrittencerticationthat

extraordinary circumstances described in § 983(a)(1)(D) continue to warrant delaying notice. See

18 U.S.C. § 981(a)(1)(C).

If the court concurs, any order that it issues may extend the deadline for no more than 60 days.

Although the statute does not limit the number of extensions a court may grant, the government

should remain cognizant that successive motions for extensions are contrary to policies favoring

prompt notice to stakeholders and resolution of forfeiture proceedings.

B.3.c Customs carve-out

The majority of federal civil asset forfeiture proceedings carry strict deadlines and notice

requirements.However,Congressexpresslyexemptedfrom18U.S.C.§983(a)’snoticedeadlines

administrativeforfeitureproceedingscommencedpursuanttoveclassesofcivilforfeiturestatutes:

(1) theTariActof1930

andallothercivilforfeitureprovisionscodiedinTitle19

of the U.S. Code,

statutes that are ordinarily enforced by U.S. Customs and Border

19 U.S.C. § 1202 et seq.

The reference to forfeitures commenced under Title 19 is to cases in which Title 19 provides the substantive basis for

the forfeiture, not cases in which the procedures in Title 19 are incorporated into other forfeiture statutes. See 18 U.S.C.

§ 981(d).

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Protection (CBP) and U.S. Immigration and Customs Enforcement-Homeland

Security Investigations (ICE-HSI);

(2) the Internal Revenue Code of 1986;

(3) the Federal Food, Drug, and Cosmetic Act, found at 21 U.S.C. § 301 et seq.;

(4) Trading with the Enemy Act, found at 50 U.S.C. § 4301 et seq., the International

Emergency Economic Powers Act (IEEPA), found at 50 U.S.C. § 1701 et seq., and the

North Korea Sanctions Enforcement Act of 2016, found at 22 U.S.C. § 9201 et seq.;

and

(5) Section 1 of Title VI of the Act of June 15, 1917, 40 Stat. 233, pertaining to unlawful

exportation of war materials pursuant to 22 U.S.C. § 401.

See 18 U.S.C. § 983(i).

 

If property is seized by a state or local law enforcement agency, but personal written notice is not sent

to the person from whom the property was seized within the applicable time period, then an agency

may commence an administrative forfeiture proceeding against the property:

• if the property is subsequently seized or restrained by the federal seizing agency

pursuant to a federal seizure warrant or restraining order and the seizing agency sends

notice as soon as practicable, and in no case more than 60 days after the date of the

federal seizure, or

• if the owner of the property consents to the forfeiture of the property.

B.4 Forfeiture proceedings to rectify inadvertent violations of the deadlines in

18 U.S.C. § 983(a)

Failure to comply with 18 U.S.C. § 983(a)(1) deadlines implicates § 983(a)(1)(F):

If the Government does not send notice of a seizure of property in accordance with

subparagraph (A) to the person from whom the property was seized, and no extension of time is

granted, the Government shall return the property to that person without prejudice to the right of

the Government to commence a forfeiture proceeding at a later time. The Government shall not be

required to return contraband or other property that the person from whom the property was seized

may not legally possess.

(emphasis added).

Seizedpropertycannotremaininthegovernment’spossessionindenitelywithoutgivinginterest

holders an opportunity to contest the forfeiture in court. Consequently, absent extraordinary

circumstances,when§983(a)(1)(A)’sapplicablenoticedeadlinespasswithoutthegovernment

initiating a judicial forfeiture action of any kind, the property at issue must be returned to the person

from whom it was seized.

26 U.S.C. § 1 et seq.

28 C.F.R. § 8.9(c)(4).

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Asset Forfeiture Policy Manual 2023  5-7

Absentextraordinarycircumstances,oncethegovernmentmisses§983(a)(1)(A)’snoticedeadlinefor

an administrative forfeiture proceeding and has returned the property pursuant to § 983(a)(1)(F), no

new administrative forfeiture should be commenced against that same property based on the original

violation.

Thus, when an agency and a federal prosecutor agree that circumstances warrant pursuing forfeiture

of property despite a missed deadline for initiating administrative forfeiture, the forfeiture should be

immediately pursued judicially. If the government pursues a criminal judicial action, it must obtain a

criminal seizure warrant, a restraining order, or some other order under 21 U.S.C. § 853(e) to maintain

custody of the asset. If the government pursues a civil judicial action, it must obtain an arrest warrant

in rem or otherwise restrain the property pursuant to Rule G(3)(b) of the Supplemental Rules of

Admiralty or Maritime Claims and Asset Forfeiture Actions (Supplemental Rules), and execute that

warrant to ensure that it has a lawful basis for maintaining custody of the property pending resolution

of the case. Thereafter, pursuant to the newly executed civil or criminal process, the government

should be authorized to maintain custody and control over seized property pending resolution of any

claims. The government does not have to release the property and then re-seize it.

C. Timeliness and content of claims in administrative proceedings

C.1 General rules

18U.S.C.§983(a)(2)setsthedeadlinesforlingclaimstocontestadministrativeforfeitureactions

and outlines applicable content required for such claims. A person contesting an administrative

forfeitureproceedingmustleaclaim with the seizing agency or forfeiture.gov no later than the

deadline set forth in the notice letter or, if the potential claimant did not receive direct notice, no later

than30daysafterthenaldayofpublicationofnotice.See § 983(a)(2)(B). Section 983(a)(2)(C)

furtherrequiresthatclaimsidentifythespecicpropertyatissue,statetheclaimant’sinterestinthat

property, and be submitted “under oath” and “subject to penalty of perjury.” See § 983(a)(2)(C).

If an agency receives no claims that conform to the requirements, it may enter a declaration of

forfeiture pursuant to 19 U.S.C. § 1609. When an agency receives a timely claim that meets the

statutory content and form requirements, it must refer the case to the U.S. Attorney, who must either

commence a civil or criminal forfeiture action in the district court within 90 days after the agency

received the claim or return the property. See 18 U.S.C. § 983(a)(3)(A).

C.2 Resolving disputes as to form and content

Incaseswhereaclaim’scontentortimelinessisquestionable,theseizingagencyshouldconsult

promptly with the U.S. Attorney before deciding whether to issue a declaration of forfeiture or

refer the case. Consultation should occur well before the 90-day deadline in 18 U.S.C. § 983(a) for

commencing a civil judicial forfeiture action has expired, because § 983(a)(3)(B) will bar further civil

forfeiture proceedings against that property if the government fails to meet the deadline.

Sec. II.C’sdiscussioninthischapterappliesonlytoclaimsledinadministrativeforfeitureproceedingscommenced

under statutes subject to 18 U.S.C. § 983. While Sec. II.Cdoesnotapplytoclaimsledinadministrativeproceedings

exemptedunderthecustomscarve-outprovisionof§983(i),agenciesaddressingclaimsledinsuchproceedingsare

encouraged,ingeneralterms,toassessandresolveclaimshavingquestionabletimeliness,content,orvericationinthe

manner outlined here.

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D. Plea and settlement negotiations involving property subject to administrative

forfeiture

U.S. Attorneys should not agree to return property as part of a plea agreement or civil settlement if the

property is subject to ongoing administrative forfeiture proceedings. U.S. Attorneys may not agree to

return property as part of a plea agreement or civil settlement if the property is subject to completed

administrative forfeiture proceedings.

III. Judicial Forfeiture Guidelines

A. Parallel administrative, civil, and criminal forfeiture proceedings

It is well-settled that the government may pursue forfeiture of an asset in administrative, civil, and

criminal judicial proceedings. Instituting one type of proceeding does not necessarily prevent the

governmentfrompursuinganothertype.Moreover,18U.S.C.§983(a)(1)(A)(iii)(I)specically

contemplates that the government may pursue parallel administrative and criminal judicial forfeiture

actions.

B. Deadlines for instituting civil judicial forfeiture proceedings

B.1 Statutory deadline for civil judicial forfeiture actions following administrative

proceedings

18U.S.C.§983(a)(3)mandatesthat“notlaterthan90daysafteraclaimhasbeenled”inan

administrativeforfeitureproceeding,thegovernmentmustleacivilforfeiturecomplaint,include

the property in a criminal indictment, return the property, or obtain an extension of time from the

court.Since§983(a)(3)(A)statesthat“acourtinthedistrictinwhichthecomplaintwillbeledmay

extendtheperiodforlingacomplaint,”prosecutorsshouldobtainacourtorderextendingtheling

deadline even if the claimant has stipulated to the extension.

 

The 90-day deadline in 18 U.S.C. § 983(a) does not apply for two sets of circumstances:

(1) when an agency seized property that is eligible for administrative forfeiture but no administrative

forfeiture proceedings are instituted

and (2) when an agency seizes property that is ineligible for

administrative forfeiture.

Department policy provides recommended time limits for initiating a civil

judicial forfeiture action against property in both situations.

See also Chap. 11, Sec. I.B.4 in this Manual.

Sec. III.B in this chapter does not apply to criminal forfeitures, which have no statutory deadline.

This language has been interpreted by at least one court to permit an extension to be based solely on an agreement of the

parties. See United States v. Misc. Firearms, Nos. 03–CV–1920 RMW, 09–CV–80136 RMW, 2012 WL 3877797, * 3

(N.D. Cal. Sept. 6, 2012). No court order allowing for the extension is referenced in the Misc. Firearmscourt’sopinion.

See Sec. III.B.2.a in this chapter.

See Sec. III.B.2.b in this chapter; see also Sec. II.A discussing 19 U.S.C. § 1607, which provides that administrative

forfeiture is not available for personal property valued at $500,000 or more, including $500,000 or more seized from a

nancialaccountandotherclassesofproperty.

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Asset Forfeiture Policy Manual 2023  5-9

B.2.a Property for which the government elects not to pursue administrative

forfeiture

Given other statutory deadlines, when the government seizes property but elects not to pursue

administrative forfeiture as a remedy, Department policy recommends that prosecutors commence a

civil judicial forfeiture action against that property within 150 days after the seizure. This 150-day

guideline mirrors the total of the 60-day deadline applicable for commencing administrative

forfeiture proceedings, added to the 90-day period allowed for instituting a judicial forfeiture. This

150-day guideline not only conforms to other statutory provisions, but also avoids allegations that

the government elected to forego administrative forfeiture to circumvent statutory deadlines and the

policies that they embody.

B.2.b Property that is ineligible for administrative forfeiture

Where the seized property at issue is ineligible for administrative forfeiture pursuant to 19 U.S.C.

§ 1607, the Department recommends that prosecutors commence a civil judicial forfeiture action

within90daysafterreceivingapotentialclaimant’swrittenrequesttoreleasethatproperty.

Some

courts, reluctant to conclude that no deadline limits the period within which the government must

leajudicialforfeitureactionagainstpropertyineligibleforadministrativeforfeiture,maypress

the Department litigators to concede otherwise. Department employees should resist such pressure;

Congress set no such deadline. Moreover, it is not true that no legal deadline applies—courts

have applied the Due Process Clause to set limits on how long the government may retain seized

property absent the initiation of forfeiture proceedings. Accordingly, in a case where the agency

ortheDepartmentreceivesaputativeclaimant’swrittenrequesttoreturnpropertythatisineligible

for administrative forfeiture, the Department recommends that the prosecutor commence a judicial

forfeiture action within 90 days of receiving the request.

C. Providing notice of judicial forfeiture actions

Althoughdierentstatutesandrulesauthorizeandgoverncivilandcriminaljudicialforfeiture

proceedings,themechanicsofprovidingnoticeinbothcontextsaremoresimilarthandierent.

C.1 General rules governing notice by publication and direct notice in civil and

criminal judicial forfeiture proceedings

The charts in Sections III.C.1.a and III.C.1.b compare the general rules governing direct notice and

notice by publication in civil and criminal judicial forfeiture proceedings.

Prosecutors should

comply with the applicable provisions.

Nothing in this policy should be interpreted to allow a potential claimant to shorten the deadline for commencing an

administrative forfeiture in a case where administrative forfeiture is authorized. In all events, in such cases the seizing

agency will have 60 days (or 90 days in the case of adoptive forfeitures) to determine whether or not to proceed with the

forfeiture proceeding. Although federal law gives agencies up to 90 days to send notice to interested parties in the case

of adoptive forfeitures, Attorney General Order No. 3946-2017: Federal Forfeiture of Property Seized by State and Local

Law Enforcement Agencies (July 19, 2017) requires them to send notice not later than 45 days after seizure, unless a

seniorocialatthefederalagencyapprovessuchanextension.See Chap. 3, Sec. IV.C in this Manual.

See Rule G(4) of the Supplemental Rules of Admiralty or Maritime Claims and Asset Forfeiture Actions (Supplemental

Rules)andFederalRuleofCriminalProcedure32.2(b)(6)(eectiveDec.1,2009).

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 





Direct Notice Civil Criminal

Must be sent

Per Supp. R. G(4)(b)(i), to:

“any person who reasonably appears to be

a potential claimant on the facts known to

the government before the end of the time

forlingaclaimunderR.G(5)(a)(ii)(B).”

Per Fed. R. Crim. P. 32.2(b)(6)(A), to:

“any person who reasonably appears to

be a potential claimant with standing

to contest the forfeiture.”

Content

Per Supp. R. G(4)(b)(i) & (ii), must contain:

copy of the complaint, and

document outlining:

(1) “the date when the notice is sent;”

(2)thedeadlineforlingaclaimfallingat

least 35 days after the notice is sent, and that

an answer or Rule 12 motion is due no later

than21daysafterclaimisled;and

(3) the name of the government attorney upon

whom to serve the claim and answer.

Per Fed. R. Crim. P. 32.2(b)(6)(B),

must:

describe the forfeited property,

state the times when a petition

contestingtheforfeituremustbeled,

and

state the name and contact information

for the government attorney to be

served with the petition (same as

required for publication).

Means

Per Supp. R. G(4)(b)(iii), notice:

must be “sent by means reasonably calculated

to reach the potential claimant;”

may be sent to “the potential claimant,” or the

“attorney representing the potential claimant

with respect to the seizure of the property

or in a related investigation, administrative

forfeiture proceeding, or criminal case.”

must be sent to “the place of incarceration” if

potential claimant is incarcerated.

may be sent to “the address that person last

gave to the agency that arrested or released the

person,” if potential claimant was “arrested in

connectionwithanoensegivingrisetothe

forfeiture” but is no longer incarcerated when

notice is sent.

may be sent to “the last address that person

gave to the agency that seized the property,” if

a person from whom the property was seized

is not incarcerated when notice is sent.

Fed. R. Crim. P. 32.2(b)(6)(D)

incorporates and adopts means

ofdirectnoticespeciedin

Supp. R. G(4)(b)(iii)–(v).

For real property, the government must serve notice on the property owner. See 18 U.S.C. § 985(c)(1)(C); see also

Chap. 4 in this Manual.

Chapter 5: Administrative and Judicial Forfeiture

Asset Forfeiture Policy Manual 2023  5-11

 





Publication Civil Criminal

When

Per Supp. R. G(4)(a)(i):

“within a reasonable time after ling

the complaint or at a time the court orders.”

Per Fed. R. Crim. P. 32.2(b)(6)(A),

after

“thecourtordersforfeitureofspecic

property” under R. 32.2(b)(2).

Content

Per Supp. R. G(4)(a)(ii)(A)–(C), must:

describe the property with reasonable

particularity,

state the deadlines for claims and answers,

and

name the government attorney to be served

with the claim and answer.

Per Fed. R. Crim. P. 32.2(b)(6)(B),

must:

describe the forfeited property,

state the times when a petition

contesting

theforfeituremustbeled,and

state the name and contact information

for the government attorney to be

served with the petition.

Means

Per Supp. R. G(4)(a)(iv), must be:

“reasonably calculated to notify potential

claimants of the action”—

by posting on forfeiture.gov for

at least 30 consecutive days; OR

if the property is in the U.S., publication in

a generally circulated newspaper in the district

wheretheactionisled,wheretheproperty

was seized, or where property that was not

seized is located, OR

if the property is outside the U.S.,

publication in a generally circulated

newspaper in the district where the action is

led,inagenerallycirculatednewspaperin

the country where the property is located, or

in generally published legal notices in the

country where the property is located.

Fed. R. Crim. P. 32.2(b)(6)(C)

incorporates and adopts the procedures

outlined in Supp. R. G(4)(iii)(iv), with

certain exceptions.



Per Supp. R. G(4)(a)(iii), notice must appear:

Once a week for 3 consecutive weeks, OR

Once, if notice of administrative forfeiture

proceedings against the same property were

published at forfeiture.gov for 30 days, OR

Once, if notice of administrative forfeiture

proceedings against the same property were

published for 3 consecutive weeks in an

authorized district.

Fed. R. Crim. P. 32.2(b)(6)(C)

incorporates and adopts frequency

speciedinSupp.R.G(4)(a)(iii).

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5-12  Asset Forfeiture Policy Manual 2023

Publication Civil Criminal



Per Supp. R. G(4)(a)(i) if:

Property is worth less than $1,000, and

direct notice dispatched as required by

Supp. R. G(4)(b) to “every person the

government can reasonably identify as a

potential claimant,”

Courtndsthatpublicationcostexceeds

property’svalueand“othermeansofnotice

would satisfy due process.”

Per Fed. R. Crim. P. 32.2(b)(6)(C), if

a Rule G(4)(a)(i) exception applies;

and

Per Fed. R. Crim. P. 32.2(b)(6)(A) for:

generic forfeiture orders or

money judgments.

 

Rule G(4)(b)(i) of the Supplemental Rules of Admiralty or Maritime Claims and Asset Forfeiture

Actions (Supplemental Rules) requires that the government send direct notice and a copy of the

complaint to “any person who reasonably appears to be a potential claimant on the facts known to

thegovernmentbeforetheendofthetimeforlingaclaimunderRuleG(5)(a)(ii)(B).”Department

policyviewsanyonewhoappearslikelytobeabletoshowthattheyarean“owner”asdenedin

18 U.S.C. § 983(d)(6) as entitled to direct notice of a civil forfeiture action. In contrast, because

§ 983(d)(6) excludes persons with general unsecured interests in or claims against the property or

estateofanotherfromthedenitionof“owners,”Departmentpolicytreatsthesepersonsasoutside

the class of persons entitled to receive direct notice of a civil forfeiture proceeding.

 

Because Federal Rule of Criminal Procedure 32.2(b)(6) sets no deadlines for publishing notice of

a preliminary order of forfeiture or for supplying direct notice to potential petitioners that a court

hasenteredsuchanorder,thegovernmentshouldsimplyeectthenoticeassoonaspracticable.

Moreover, the government should send direct written notice to any person who reasonably appears

to be a potential petitioner with standing to contest the forfeiture of property at issue in the ancillary

proceeding.

 

D.1 Initiating and pursuing civil forfeiture proceedings against facilitating

property used or intended to be used to facilitate criminal activity

Property used to facilitate the commission of a crime—that is, property that makes a crime easier

to commit or harder to detect—or property that constitutes instrumentalities of a crime is generally

Because internet publication costs essentially nothing, litigators may decide to use this means in all judicial forfeiture

cases rather than run the risk of challenges based on whether the value of the asset is actually below the $1,000 threshold.

See FederalRuleofCriminalProcedure32.2(b)(6)(A),whichrequirespublicationonly“[if]thecourtorderstheforfeiture

ofspecicproperty.”

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Asset Forfeiture Policy Manual 2023  5-13

referred to as “facilitating property.”

Unlike the proceeds of crime, which are acquired by the

criminal wrongdoer as a direct result of the crime, facilitating property may be legally acquired but

nonetheless subject to forfeiture because of how it is used. Thus, property may be forfeited on a

theory of facilitation if it is used to commit or conceal illicit activity, even if the person who uses the

property is not the owner. However, precisely because persons unrelated to criminal activity may

lawfully own facilitating property, prosecutors must be mindful of the rights of property owners

beforelingacivilforfeiturecomplaintagainstfacilitatingproperty.

The policies in this section are intended to ensure that the compelling law enforcement interest in

civilly forfeiting facilitating property is appropriately balanced with the rights of property owners.

Thisguidanceapplieswithrespecttothelingofacivilforfeiturecomplaintthatincludesatheoryof

facilitation; it does not apply to the seizure or restraint of property (except the seizure of an operating

business),tothelingofacomplaintagainsttheproceedsofacrime,ortoacriminalforfeiture

proceeding involving facilitating property.

Although some of the guidance may be useful in determining whether to initiate a criminal

forfeitureproceedingagainstfacilitatingproperty,thispolicyislimitedspecicallytocivilforfeiture

proceedingsbecauseofimportantdistinctionsrelatingtothegovernment’sstandardofproofand

apropertyowner’sdefenses.Forexample,unlikecivilforfeitureproceedings,criminalforfeiture

proceedings are predicated on the conviction of a criminal defendant, on proof beyond a reasonable

doubt,foracriminaloensesupportingtheforfeiture.

D.1.a “Substantial connection” between the property subject to forfeiture and

the underlying criminal activity

In any case in which the government seeks to pursue a civil forfeiture proceeding against property

thateitherfacilitatedorwas“involvedin”thecommissionofanoense,thegovernmentmust

demonstrate a “substantial connection” between the property subject to forfeiture and the underlying

criminal activity. See

18U.S.C.§983(c)(3).Althoughthestatutedoesnotdenethephrase

“substantial connection,” at a minimum, the government must show that “use of the property made

theprohibitedconductlessdicultormoreorlessfreefromobstructionorhindrance.”See United

States v. Herder, 594 F.3d 352, 364 (4th Cir. 2010) (internal citation omitted).

Statutesthatprovideforforfeitureofproperty“involvedin”anoense—suchas18U.S.C.§981(a)(1)(A),whichpermits

forfeitureofproperty“involvedin”variousmoneylaunderingoenses—allowforforfeitureofpropertythatfacilitated

theoenseaswellas,forexample,proceedsofspeciedunlawfulactivitylaunderedthroughthemoneylaundering

oenseandcommissionsthatthemoneylaundererearnedasaresultoftheoense.Thisguidanceaddressesonlythe

facilitatingproperty“involvedin”thoseoenses;itdoesnotapplytoeitherthecriminalproceedslaunderedthrough,or

thecommissionsearnedasaresultof,themoneylaunderingoense.

The terms “property owner” and “owner” refer not only to title owners of property, but also to persons or entities having

a statutorily recognizable interest in all or a portion of the property subject to forfeiture, such as “a leasehold, lien,

mortgage, recorded security interest, or valid assignment of an ownership interest.” See 18 U.S.C. § 983(d)(6)(A).

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5-14  Asset Forfeiture Policy Manual 2023

Prosecutors must consider:

• whether the property had more than a negligible, inconsequential, incidental, tangential,

or merely fortuitous role in facilitating or concealing the criminal activity;

• whetherthepropertywasspecicallydesigned,adapted,ormodiedtofacilitateor

conceal the criminal activity, or the property otherwise possessed unique features or

characteristics making it particularly useful for facilitating or concealing the criminal

activity; and

• the amount of time that the property was used, the frequency of such use, and portion of

the property used in facilitating or concealing the underlying criminal activity.

No single factor is dispositive; collectively these factors provide a basic framework for prosecutors

to assess whether there exists a “substantial connection” between the property and the underlying

criminal activity.

To ensure that these factors are applied to address compelling law enforcement needs in a judicial

district, prosecutors must obtain written authorization from their respective U.S. Attorney, or a

designee,beforelinganycivilforfeiturecomplaintbasedonatheorythatthepropertyfacilitatedor

concealedunderlyingcriminalactivity.Theauthorizingocialmayapprovethelingofacomplaint

after determining that, based on a review of the case and the factors listed above, there is a substantial

connection between the property and the underlying criminal activity. That written authorization

mustberetainedintheforfeiturecasele.CriminalDivisiontrialattorneys,orotherDepartment

components not partnering with a USAO in the prosecution, must obtain approval from the Chief of

the Money Laundering and Asset Recovery Section (MLARS).

D.1.b Civil forfeiture proceedings against operating businesses

Because of the complexities of seizing and forfeiting an operating business,

and the potential

for substantial losses to the owner, other persons such as shareholders and employees, and the

government itself, as well as the potential exposure to liabilities arising from the business, prosecutors

mustobtainwrittenapprovalfromtheirrespectiveU.S.Attorneysbeforeseizingorlingacivil

forfeiture complaint against an operating business based on a facilitation theory. The U.S. Attorney

may not delegate this approval authority.

This policy and the prior approval requirement apply only when a prosecutor seeks to civilly forfeit

under a facilitation theory an operating business itself or all or most of the property necessary for an

operating business to continue operations. Therefore, it would not apply when a prosecutor seeks to

forfeit only an individual asset or some discrete property of an operating business, the forfeiture of

which would not cause a substantial or complete disruption or discontinuance of business operations

As an example, use of a large parcel of property merely as a shortcut for transporting contraband from a property outside

the parcel to another property outside the parcel generally would have only a fortuitous connection to the criminal activity.

See United States v. Two Tracts…in Carteret Cty., NC, 998 F.2d 204, 210–14 (4th Cir. 1993).

See Chap. 1, Sec. I.D.2 and Chap. 2, Sec. VI in this Manual for a full discussion of the policies and procedures involved

in the seizure or restraint of an operating business and its property.

Althoughthisauthorityisordinarilynon-delegable,iftheU.S.Attorneyisrecusedfromamatterorabsentfromtheoce,

this authority may be exercised by an acting U.S. Attorney selected in the manner prescribed by regulation. See 28 C.F.R.

§ 0.137.

Chapter 5: Administrative and Judicial Forfeiture

Asset Forfeiture Policy Manual 2023  5-15

(e.g., a car when the business has multiple vehicles; an individual parcel, among many, of real

property;orasinglenancialaccountamongseveral).

Whenevaluatingwhethertoseize,restrain,orleacivilforfeitureactionagainstanoperating

business based on a facilitation theory, prosecutors must consider:

• the nature, management structure, and ownership of the operating business;

• the nature and seriousness of the criminal activity, including the risk of harm to the

public;

• thenatureandextentoftheoperatingbusiness’sinvolvementinthefacilitationor

concealment of the underlying criminal activity;

• the pervasiveness of wrongdoing within the business, including the complicity in, or the

condoning of, the wrongdoing by its principals, including corporate management and

ownership;

• collateral consequences, including whether there is disproportionate harm to

shareholders, pension holders, employees, and others not proven personally culpable, as

wellaseectonthepublicarisingfromforfeitureoftheoperatingbusiness;and

• the adequacy of other remedies, such as a restraining order, protective order, or other

court-approved remedy in lieu of seizure and forfeiture of the business.

If a prosecutor obtains approval to seek an order authorizing seizure or restraint of an operating

businessbeforelingacivilforfeiturecomplaint,theprosecutormustlethecomplaintwithin

60 days of seizing or restraining that business. An exception to the 60-day requirement is permissible

only with the written consent of the owner, pursuant to which the prosecutor can extend the deadline

by60days,anduponapprovalfromanappropriateocial.Furtherextensions,evenwithconsentof

the owner, are not permitted unless the prosecutor has obtained the approval discussed below.

• Assistant U.S. Attorneys (AUSAs) must obtain approval from their respective U.S.

Attorney. The U.S. Attorney may not delegate this approval authority, except as

discussed in footnote 32 in this section.

• Criminal Division trial attorneys, or other Department components not partnering with

a USAO in the investigation or prosecution, must obtain approval from the Chief of

MLARS. The Chief of MLARS may not delegate this approval authority.

Ifadditionalevidencebecomesavailableaftertheaectedbusinesshasbeenreleasedfromseizureor

arestrainingorder,acivilforfeiturecomplaintmaystillbeledwithapplicableapprovalofthenew

action.

Beforeseizingorlingacomplaintagainstanoperatingbusinessunderanyavailableforfeituretheory,prosecutors

should consult MLARS on the seizure and restraint of an operating business and its property. See Chap. 1, Sec. I.D.2 and

Chap. 2, Sec. VI in this Manual.

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5-16  Asset Forfeiture Policy Manual 2023

D.1.c Civil forfeiture proceedings against personal residences

To reduce the potential risk of subjecting innocent third parties to litigation to protect their lawful

interests in their own homes, prosecutors must obtain written approval from their respective U.S.

Attorneysbeforelingacivilforfeiturecomplaintagainstpersonalresidencesbasedonafacilitation

theory. For purposes of this policy, the term “personal residence” refers to a primary residence

occupied by the title owner(s). The U.S. Attorney may not delegate this approval authority except as

discussed in Section III.D.1.b in this chapter. Criminal Division trial attorneys, or other Department

components not partnering with a USAO in the prosecution, must obtain approval from the Chief of

MLARS. The Chief of MLARS may not delegate this approval authority.

To determine whether the proposed forfeiture of a residence serves a compelling law enforcement

interest, prosecutors must consider:

• the nature of the underlying criminal activity being facilitated by the residence;

• the extent to which the property was used to facilitate or conceal the underlying criminal

activity, including factors such as the amount of time that the property was used, the

frequency of the use, and the portion of the property used in facilitating or concealing

the underlying criminal activity;

• whether the perpetrator or any other persons involved in the underlying criminal activity

have an ownership interest in or reside at the residence; and

• if the owners of the residence are neither the perpetrators nor otherwise involved in the

underlying criminal activity, whether they would likely prevail on an innocent owner

defense, as discussed in Section III.D.2.a in this chapter, or otherwise meet the criteria

in 18 U.S.C. § 983(d)(3)(B).

 

Even if the government meets its burden of establishing by a preponderance of the evidence a

“substantial connection” between the facilitating property and the underlying criminal activity,

propertyownerscanstillassertdefensestodefeatorreducetheforfeiture.Beforelingacomplaint,

prosecutors must take all reasonable steps to determine the likelihood of a potentially meritorious

defense. This analysis will depend in part upon whether the property subject to forfeiture is owned or

controlled by the person or persons involved in the criminal activity or owned or otherwise controlled

by a third party.

D.2.a Innocent owner

The law entitles any claimant with standing to assert a defense, after the government has sustained

itsinitialburdenofproofonforfeitability,thattheclaimantqualiesasaninnocentownerofthe

propertyasdenedin18U.S.C.§983(d).Therearetwodierentinnocentownerdefenses:one

applies to persons who held their property interests while the illegal activity was occurring; the other

applies to persons who acquired their interest in the property only after the illegal activity occurred.

See Chap. 4 in this Manual for a full discussion of the policies and procedures involving the unique issues that arise

before and during forfeiture of real property.

Chapter 5: Administrative and Judicial Forfeiture

Asset Forfeiture Policy Manual 2023  5-17

Persons who had an interest in the property at the time the illegal activity was occurring can defeat the

government’sforfeitureclaimbyestablishingthat:

(1) they did not know of the conduct giving rise to the forfeiture,

see § 983(d)(2)(A)(i), or

(2) upon learning of the conduct, they did all that reasonably could be expected, under the

circumstances, to terminate such use of the property, including

(i) giving timely notice to an appropriate law enforcement agency of information that led

the person to know the conduct giving rise to a forfeiture would occur or has occurred,

and

(ii) in a timely fashion, revoking or making a good faith attempt to revoke permission

for those engaging in such conduct to use the property or taking reasonable actions in

consultation with a law enforcement agency to discourage or prevent the illegal use of

the property. See 18 U.S.C. § 983(d)(2)(A)(ii) and (B)(i)(I)–(II).

Persons who acquired an interest in the property after the illegal activity occurred can also defeat

thegovernment’sforfeitureclaimbyestablishingthattheyqualifyasabonadepurchaserforvalue

of the interest, and at the time they acquired the interest, they did not know and were reasonably

without cause to believe that the property was subject to forfeiture. See § 983(d)(3). When evidence

availablebeforelingacivilforfeiturecomplaintdemonstratesthatthelikelyowneroftheproperty

used to facilitate or conceal the underlying criminal activity was either the perpetrator of or knowing

participantintheactivity,thatevidenceshouldbesucienttoovercomeany“innocentowner”

defense.

If, however, the likely owner is not the perpetrator of, or a knowing participant in, the

underlyingcriminalactivity,prosecutorsmusttakeallreasonablesteps,beforelingacivilforfeiture

complaint, to ascertain whether the likely owner may have a viable “innocent owner” defense.

In determining actual knowledge, some courts continue to subscribe to a concurrent willful blindness test. See United

States v. $822,694.81 in U.S. Currency, No. 3:13-cv- 00545-DFM, 2019 WL 4369936, *5–6 (D. Conn. Sept. 12, 2019);

United States v. 1988 Beachcraft Power Boat, No. 4:01-cv-10054-JJO, D.E. 86 (S.D. Fla. Nov. 21, 2002).

However, such persons are not required to take steps they reasonably believe would be likely to subject any person (other

than the person whose conduct gave rise to the forfeiture) to physical danger. See 18 U.S.C. § 983(d)(2)(B)(ii).

Beforeaforfeiturecomplaintisled,itisnotalwaysreadilyapparentwhomayhaveanownershipinterestinparticular

property.Nonetheless,thegovernmentmusttakereasonableeortsbeforelingthecomplainttoidentifyanypersonor

entity with a likely ownership interest.

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5-18  Asset Forfeiture Policy Manual 2023

In making this determination, prosecutors must consider whether the likely owner:

• has standing to maintain a claim in the forfeiture proceeding;

• is merely a nominee or straw owner for the perpetrator of the criminal activity;

• had knowledge of, consented to, or was otherwise willfully blind to illegal use of the

property at the time of the criminal activity;

• learned of the illegal use after the fact, but failed to take reasonable and timely steps to

properly notify law enforcement or to prevent further illegal use of the property;

• nanciallyorotherwisebenettedfromtheproperty’sinvolvementinthecriminal

activity; or

• wouldqualifyasabonadepurchaserforvaluewhowasreasonablywithoutcause

to believe that the property was subject to forfeiture, if the likely owner acquired

the property after the criminal activity subjecting the property to forfeiture had been

completed.

Ifapre-linginvestigationrevealsthatthesoleownerorallownerswithstandinghaveaviable

innocent owner defense, prosecutors should refrain from proceeding with a forfeiture action against

that property. In a case where there may be more than one potential owner of the same property, it

may be possible to proceed with the forfeiture but agree to mitigate the forfeiture to recognize the

interests of the owners who would likely qualify as innocent owners.

D.2.b Grossly disproportional

Civil forfeiture, regardless of the nature of the relationship between the property and the criminal

activity,shallnotbe“grosslydisproportionaltothegravityoftheoense.”See 18 U.S.C. § 983(g). A

property owner may challenge the forfeiture of facilitating property on this ground. Rule G(8)(e) of

the Supplemental Rules of Admiralty or Maritime Claims and Asset Forfeiture Actions (Supplemental

Rules) requires that a property owner who seeks to mitigate the forfeiture based on excessiveness do

so by pleading it in the answer to give the parties an opportunity to conduct discovery relating to the

defense.Inanticipationofthisdefense,prosecutorsmustmakereasonableeortstodevelopevidence

The relevance of each of the various factors will depend on whether the likely owner had an interest in the property when

it was used in the commission or concealment of underlying criminal activity or whether they acquired an interest after

theproperty’sinvolvementintheactivity.

Chapter 5: Administrative and Judicial Forfeiture

Asset Forfeiture Policy Manual 2023  5-19

and articulate reasons why forfeiture of facilitating property, or a portion of the property, would not be

grossly disproportionate to the underlying criminal activity. Relevant factors include:

• the seriousness of the underlying criminal activity;

• theextentoftheowner’sinvolvementinorknowledgeoftheuseofthepropertyinthe

commission or concealment of the criminal activity;

• the extent to which the property was involved in the criminal activity;

• theeectofthecriminalactivity,andtheproperty’suseintheactivity,onthe

communityoridentiablevictims;and

• the value of and equity in the property.

After consideration of these and any other relevant factors, if prosecutors determine that forfeiture

of the facilitating property would be grossly disproportionate to the criminal activity, then they must

attempt to mitigate the forfeiture. For example, a prosecutor may seek to forfeit only a divisible

portion of the property otherwise subject to civil forfeiture. When mitigation is not possible, it may

be appropriate to forego the forfeiture action altogether, unless doing so would potentially deprive

victims of recovery of their losses.

This policy addresses the exercise of investigative and prosecutorial discretion and does not alter

inanywaytheDepartment’sauthoritytoenforcefederallaw.Neitherthepoliciessetforthinthis

section nor any state or local law provides a legal defense to a violation of federal law, including any

civil or criminal violation.

D.3 Other civil forfeiture litigation issues

Civil forfeiture litigations may present other legal issues. For a discussion of the preservation policy

in civil forfeiture litigations, negotiations with fugitives, and Fifth Amendment advisements, consult

Chapter 7 in this Manual.

 

E.1 Finality of criminal forfeiture

Acriminalforfeitureisnotnalunlessthedefendanthasbeensentenced.Incaseswherespecic

property

isforfeited,thecriminalforfeitureisnotnalunlessthegovernmenthasprovidednotice

oftheforfeiture,andthecourthasresolvedanyancillarypetitionsledbythirdpartieswhohave

claimedinterestsinthespecicproperty.Enteringa“naljudicialorder”ofcriminalforfeitureinthe

Consolidated Asset Tracking System (CATS) prior to these events jeopardizes the overall operations

oftheDepartment’sAssetForfeitureProgram(Program).Accordingly,USAOsshallnotenterin

CATSasthe“naljudicialorder”inacriminalmatter:(1)anydatepriortothedateofthedefendant’s

sentencing,and(2)incaseswherespecicpropertyisforfeited,anydatepriortotheexpirationofthe

timeframetoleathird-partypetitionandtheconclusionofanyancillaryproceedings.

As used herein, the term specic propertymeanspropertyidentiedashavinganexustotheunderlyingoenseand

substitute assets; it does not include forfeiture money judgments.

Chapter 5: Administrative and Judicial Forfeiture

5-20  Asset Forfeiture Policy Manual 2023

 

Forfeited property is not available for any purpose—whether for victim compensation, for law

enforcementuse,orfordistributionasequitablesharing—untiltheforfeitureisnal,thetimeto

appeal the forfeiture has expired, and forfeited funds have been transferred from the Seized Asset

Deposit Fund (SADF) to the Assets Forfeiture Fund (AFF). Therefore, proper recordation of the

nalitydateiscriticaltotheProgram’soperations.

ProperrecordationofthedateofnalityprotectsthenancialstatusoftheAFF.Forexample,if

ProgramparticipantsimproperlyenterinCATSthedateofa“naljudicialorder”beforethecriminal

forfeiturebecomesnal,theAFFwillprematurelyrecognizetheforfeitureasrevenue.Alternately,

iftheforfeitureisnottimelyenteredinCATSafterbecomingnal,theAFFcannotproperlyaccount

forrevenue.BothscenarioscanleadtomisstatementsintheAFF’snancialstatementsandcanalso

aecttheaccuracyoftheforfeituredatatheDepartmentreportsannuallytoCongressandthepublic.

ProperrecordationofthedateofnalcriminalforfeiturealsoprotectstheDepartment’sabilityto

compensate victims through its remission authorities by ensuring that victims are not paid from the

AFFbeforeaforfeitureisnal,intheeventtheforfeitureislaterreversed,abated,orotherwise

vacated.Similarly,properentryofthedateofnalityeliminatestheriskthatforfeiturerecoverieswill

bedistributedprematurelyundertheDepartment’sEquitableSharingProgram.

 

ThefollowinglegalprinciplesguideUSAOs’nalitydeterminations:thesentencingrequirementsthat

apply to all criminal forfeitures and the notice and ancillary proceeding requirements that apply to the

criminalforfeitureofspecicproperty.



Criminalforfeitureisnalastothedefendantatsentencing.See, e.g., Libretti v. United States,

516 U.S. 29, 39 (1995) (stating that criminal forfeiture is “an aspect of punishment imposed following

convictionofasubstantivecriminaloense”);18U.S.C.§3554(orderofcriminalforfeiturepartof

sentence);28U.S.C.§2461(c)(“Ifthedefendantisconvictedoftheoensegivingrisetoforfeiture,

the court shall order the forfeiture of the property as part of the sentence in the criminal case”). At

sentencing, the court must “include the forfeiture when orally announcing the sentence” or “otherwise

ensure that the defendant knows of the forfeiture at sentencing.” See Federal Rule of Criminal

Procedure 32.2(b)(4)(B). The sentencing court must also include the forfeiture order in the judgment.

Id. Failure to comply with the notice and inclusion requirements of Rule 32.2 at sentencing may

resultinnoforfeiture,evenwherepreliminaryandnalordersofforfeiturehavebeenenteredinthe

case. See, e.g., United States v. Petix, 767 F. App'x. 119, 121–23 (2d Cir. 2019) (vacating monetary

forfeiture judgment because it was not orally announced at sentencing, despite prior entry of forfeiture

order).

Becausecriminalforfeituredoesnotbecomenalastothedefendantuntilthedefendantissentenced

in accordance with the notice and inclusion requirements of Rule 32.2(b)(4)(B), sentencing is the

earliestpossibledateofnality.Any“freestanding”ordersofforfeitureenteredafterconviction,

but prior to sentencing—e.g., preliminary orders of forfeiture, forfeiture money judgments, or

nalordersofforfeitureunderRule32.2(b)(4)(A)—donotperfecttheforfeiture.Thisistrueeven

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Asset Forfeiture Policy Manual 2023  5-21

if the defendant makes voluntary payments on a forfeiture money judgment prior to sentencing,

orifadefendantconsentstotheforfeitureandtotheearlyentryofanalorder,ascontemplated

by Rule 32.2(b)(4)(A). See United States v. Shakur, 691 F.3d 979, 986–87 (8th Cir. 2012) (a

nalorderofforfeiturethatisnotpartofthejudgment“hasnoeect”);United States v. Bennett,

423F.3d271,275–76(3dCir.2005)(“afreestandingnalorderofforfeiture”imposedsevenweeks

aftersentencing“hasnolegaleect”;“Exceptinancillaryforfeitureproceedings…analorderof

forfeiturethatisnotpartofthejudgmentofsentencehasnoeect”(internalcitationomitted)).





Incriminalcaseswherethegovernmentseekstoforfeitspecicproperty,thecourtmustconduct

an ancillary proceeding to address any potential third-party claims to the property. See 21 U.S.C.

§ 853(n); Federal Rule of Criminal Procedure 32.2(c). The ancillary proceeding must, at a minimum,

consist of publishing notice of the forfeiture. See

§ 853(n)(1); Rule 32.2(b)(6) (incorporating the

means of publication provided in Rule G(4)(a)(iii) of the Supplemental Rules for Admiralty or

Maritime Claims and Asset Forfeiture Actions). In addition, the government must send direct notice

of forfeiture “to any person who reasonably appears to be a potential claimant with standing to contest

the forfeiture in the ancillary proceeding.” See Rule 32.2(b)(6)(A).

Whileforfeitureofspecicpropertyisnalastothedefendantatsentencing,itisonlynalastothe

world when—and title does not pass to the government until—the ancillary proceeding concludes,

and the court has resolved all third-party petitions. See

§ 853(n)(7); Rule 32.2(c)(2) (requiring

thecourttoentera“nalorderofforfeiture”attheconclusionoftheancillaryproceeding).In

accordancewiththelegalprinciplesdiscussedaboveandtheneedtoprotectthenancialintegrity

oftheProgram,ProgramparticipantsshallnotenterintoCATSthedateofthe“naljudicialorder”

forfeitingspecicpropertyanydatepriorto(1)sentencingand (2) the conclusion of the ancillary

proceedingtoresolvethird-partypetitions,orifnopetitionsareled,theexpirationofthedeadline

forlingapetitioninresponsetodirectandpublishednoticeofforfeiture.Incircumstanceswhere

nothird-partypetitionisledinresponsetoapreliminaryorderforfeitingspecicproperty,thebest

practiceistorequestthatthecourtenteranalorderofforfeiture.

 

proceeding is forfeited administratively

In cases where the government institutes administrative and criminal forfeiture proceedings

simultaneouslyandnoonelesaclaimintheadministrativeproceeding,theagencyshouldcomplete

theadministrativeforfeiture.Thereafter,theprosecutorhandlingthecriminalcaseshouldlea

“notice” in the criminal proceeding that reports the completed forfeiture and serve the notice on the

defense.

Asanalternativetolinganalorderofforfeitureinanuncontestedancillaryproceeding,thegovernmentmayle

anadvisory“noticeofnality,”indicatingthedate(s)when,andmannerinwhich,noticeofthepreliminaryorderwas

providedandfactthatnopetitionwasled;however,a“noticeofnality”doesnotserveasthe“naljudicialorder”

of criminal forfeiture for purposes of CATS. Instead, USAOs should enter into CATS the claim deadline date or the

sentencing date, whichever is later.

Chapter 5: Administrative and Judicial Forfeiture

5-22  Asset Forfeiture Policy Manual 2023

E.3 Correcting errors of law in criminal judicial forfeiture proceedings

To try to identify errors before sentencing, prosecutors should recommend to the court that it

follow Federal Rule of Criminal Procedure 32.2(b)(2)(B) and issue preliminary orders of forfeiture

“sucientlyinadvanceofsentencingtoallowthepartiestosuggestrevisionsormodicationbefore

theorderbecomesnalastothedefendant”atsentencing“unlessdoingsoisimpractical.”

Due to varied law on correction of errors, when errors occur during sentencing, the period for

correcting such errors is potentially very short. Prosecutors should presume that courts may construe

their motions to correct errors of law as Federal Rule of Criminal Procedure 35(a) motions to correct

sentencethatdonottollAppellateRule4(b)’sdeadlines.Whenconfrontedwithaforfeitureerrorof

lawatsentencing,aprosecutorshouldleamotionforreconsiderationbuturgethecourttoruleon

it within 14 days of the sentence. In addition, no matter what title the motion bears, the prosecutor

shouldnotpresumethatlingitwilltollappellatedeadlines,butinstead,shouldleanoticeofappeal

before the 30th day under Appellate Rule 4(b)(1)(B), regardless of the status of a pending motion for

reconsideration. As a courtesy to the district court, the prosecutor may want to advise the court of this

policytoensurethatthecourtunderstandswhatcompelsthegovernmenttoleanoticeofappeal—

which divests the district court of jurisdiction—even though the court may have scheduled a hearing

onthegovernment’smotion.

E.4 Criminal forfeiture and Brady obligations

In criminal forfeiture matters, the government has not only an ethical but also a legal duty to disclose

information favorable to the defendant as to either guilt or punishment. See Brady v. Maryland,

373 U.S. 83 (1963) (“suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment irrespective of the

good faith or bad faith of the prosecution”).

Forfeiture is an element of the sentence, and thus forms

part of the punishment imposed on the defendant. See Libretti v. United States, 516 U.S. 29, 38–39

(1995). Accordingly, Brady requires the government, even without a request by the defendant, to

disclose evidence favorable to the defendant that relates to criminal forfeiture.

IV. Firearms Forfeiture Policy

ItisDepartmentpolicytoforfeitseizedrearmsandammunition.Firearmsareauniquetypeof

personalproperty,andtheforfeitureofrearmspresentschallengingissuesinvolvingcomplex

rearmsregulations,propertyownership,andconstitutionalrights.Forfurtherdetailsonrearms

forfeiture matters, prosecutors and law enforcement agencies should consult MLARS.

A. Preference for forfeiture

Asapracticalmatter,forfeitureisthebestwaytodisposeofcrime-relatedrearmsandammunition,

asreectedinthemanyspecicandgeneralforfeiturestatutesthatapplytorearms.Forfeiture

The government may move to correct a clerical error at any time pursuant to Federal Rule of Criminal Procedure 36. For

example,iftheerrorwassimplythedistrictcourt’sfailuretomaketheorderofforfeiturepartofthejudgmentasrequired

by Federal Rule of Criminal Procedure 32.2(b)(3), in most circuits the error could be corrected pursuant to Rule 36.

United States v. Agurs, 427 U.S. 97, 110–111 (1976) (extended the rule announced in Brady to apply to evidence that

“is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a

specicrequest”).

Chapter 5: Administrative and Judicial Forfeiture

Asset Forfeiture Policy Manual 2023  5-23

proceedingsprovidethebestandclearestprotectionsforthedueprocessrightsofrearms’owners,

includinginnocentthirdpartieswhomayhavealawfulinterestinrearmsthathavebeenstolen

orotherwiseusedwithouttheowners’knowledgeandconsent.Inanycasewhererearmsor

ammunitionhavebeenseizedforforfeiture,anypleaagreementshouldspecicallyaddressthe

forfeitureorotherdispositionofseizedrearmsorammunition.

Incriminalprosecutionswherethegovernmenthasincludedthenoticeofforfeitureofrearmsor

ammunitionaspartoftheindictment,anypleaagreementmustspecicallyaddresstheforfeitureor

otherdispositionofthoseitems.Failuretoaddresstheforfeitureorotherdispositionofrearmsin

thepleaagreementleavestheseizingagencyinthedicultsituationofdetermininghowtodispose

of personal property that cannot be returned to a possessor (typically, a prohibited person) and cannot

be destroyed because the government has not obtained title to that property via the forfeiture process.

This results in the unnecessary expenditure of government resources and delays the destruction of or

other disposition of the property.

 

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has jurisdiction to pursue

administrative forfeitures under the Gun Control Act, 18 U.S.C. § 921 et seq. The Federal Bureau of

Investigation (FBI) and Drug Enforcement Administration (DEA) have authority to administratively

forfeitrearmsusedindrugtrackingorrearmsasproceedsofdrugtracking.TheCBPhas

administrative forfeiture authority in limited circumstances (e.g.,rearmsseizedduringalien

smuggling) as well.

Firearmsandammunitionaresubjecttospecicdeadlinesforthecommencementofforfeiture

actions pursuant to the forfeiture authority in the Gun Control Act. Under 18 U.S.C. § 924(d)(1),

“[any]actionorproceedingfortheforfeitureofrearmsorammunitionshallbecommencedwithin

one hundred and twenty days of such a seizure.” The commencement of an administrative forfeiture

action within the 18 U.S.C. § 983(a) deadlines has been held to meet this deadline. However, courts

have not reconciled the statutory 120-day deadline in § 924(d)(1) for forfeiture under the Gun

Control Act with those situations where delay in sending notice of a forfeiture action is permitted

under § 983(a)(1)(D). As a precaution, the ATF should commence administrative forfeiture before

the 120-day deadline, or request that the USAO seek a criminal indictment that includes a notice of

criminalforfeiturefortherearmorammunitionifpossible.

The ATF also has jurisdiction to pursue administrative forfeitures under the National Firearms

Act. However, because the National Firearms Act is part of the Internal Revenue Code, Title 26,

UnitedStatesCode,forfeiturecasesbasedonTitle26oensesareexemptedfromthestatutorycivil

forfeiture deadlines by 18 U.S.C. § 983(i) (generally known as the “customs carve-out”). These

forfeitures are instead governed by the customs laws—19 U.S.C. §§ 1602–1619.

See Henderson v. United States, 575 U.S. 622, 629–631 (2015) (holding that although 18 U.S.C. § 922(g) bars courts

fromorderingrearmsreturnedtotheirfelon-owner,itpermitsthecourt-orderedtransferofrearmstoathirdpartyofthe

felon’schoosingsolongastherecipientwillnotgrantthefelonaccessto,oraccedetothefelon’sinstructionsabout,the

futureuseoftherearm).

Chapter 5: Administrative and Judicial Forfeiture

5-24  Asset Forfeiture Policy Manual 2023

 

Forfeitedrearmsandammunitionaretreateddierentlyfromothertypesofforfeitedproperty

in several respects. As explained below, they are not equitably shared with state and local law

enforcement; they are not sold; and most often, they are destroyed.

Firearms are neither equitably shared with non-federal law enforcement agencies nor sold.

Forfeited

rearmsmaybeplacedintofederalocialuse(e.g., by a federal investigative agency for federal law

enforcementuse,ballisticstesting,ordisplay).Forexample,inrarecases,rearmswithsignicant

educational,scientic,orhistoricvaluemaybeplacedintoocialusefordisplaypurposes,suchas

at The Smithsonian Institution or another federally funded museum, or at one of the U.S. military

academymuseums.TheATFortheU.S.MarshalsService(USMS)mayapprovethistypeofocial

useonlyafterthesubjectrearmshavebeenrenderedinoperable.

Minimumvalueandnetequitythresholdsdonotapplytorearms.AsexplainedinChapter1,

Section I.C.3 in this Manual, an exception to the net equity thresholds exists where a particular

forfeiture serves a compelling law enforcement interest. The Department has concluded that the

forfeitureofrearmsandammunitioninvolvedincrimeconstitutesacompellinglawenforcement

interest.Becausecheaprearmsusedcriminallycauseharmthesameasexpensiveones,there

is a strong law enforcement interest in removing both types from circulation. Moreover, the

federalgovernmentgenerallydestroysforfeitedrearmsandammunitionandneverresellsthem.

Accordingly, their potential resale value is irrelevant to the determination whether to forfeit them.

Therefore,unlikemostformsofpersonalproperty,forfeitablerearmsandammunitionshouldbe

forfeited regardless of their monetary value.

Unlikeothertypesofforfeitedproperty,federallyforfeitedrearmsandammunitionmaynotbe

sold,exceptasscrap.18U.S.C.§3051(c)(3)providesthat“[notwithstanding]anyotherprovision

oflaw,thedispositionofrearmsforfeitedbyreasonofaviolationofanylawoftheUnitedStates

shall be governed by the provisions of section 5872(b) of the Internal Revenue Code of 1986.”

26U.S.C.§5872(b)providesthatnonoticeofpublicsaleisrequiredastoforfeitedrearmsandthat

noforfeitedrearmmaybesoldatpublicsale.Although§5872(b)permitsforfeitedrearmstobe

retainedforfederalocialuse,forfeitedrearmsarenottransferredtostateorlocallawenforcement

agencies through equitable sharing or otherwise. Although § 5872(b) indicates that the General

ServicesAdministration(GSA)couldsellforfeitedrearmstostateorlocalgovernments,GSAhas

determined that it will not do so. See 41 C.F.R. § 102-41.200 & 102-40.175. As a result, seized and

forfeitedrearmscannotbesoldandaregenerallydestroyed.

BecauselawandDepartmentpolicyprohibitthesaleoffederallyforfeitedrearms,prosecutors

shouldnotenterintoanyagreementcallingforthesaleofforfeitedrearmsandthedistributionof

proceedsfromanysuchsale.Prosecutorsshouldbringthisprohibitiononsaleofforfeitedrearmsto

the attention of the court whenever necessary to avoid entry of an order calling for such a prohibited

sale. The overriding policy concern weighing against the sale or sharing of forfeited or abandoned

rearmsisthattheymaysubsequentlyberesoldandusedincrime.

See Chap. 15, Sec. I in this Manual.

Asset Forfeiture Policy Manual 2023  6-1

Chapter 6:

Grand Jury

I. Using the Grand Jury Properly to Achieve Asset Forfeiture Policy

Objectives

OneoftheprimarygoalsoftheDepartmentofJustice’sAssetForfeitureProgram(Program)isto

punish and deter criminal activity by depriving criminals of property used in or acquired through

illegal activities.

Therefore, Department of Justice (Department) policy requires prosecutors “to

use asset forfeiture to the fullest extent possible to investigate, identify, seize, and forfeit the assets

of criminals and their organizations while ensuring that due process rights of all property owners are

protected.”

In federal criminal investigations, Assistant U.S. Attorneys (AUSAs) and investigators

can best accomplish these policy objectives by making lawful and prudent use of the grand jury

both (1) to locate assets that might be subject to forfeiture, either criminally or civilly, in connection

with the criminal investigation and (2) to return indictments that permit the fullest extent of criminal

forfeiture possible under the charges, facts, and applicable law.

Before indictment, by virtue of their power to compel witnesses to provide testimony and to produce

records,grandjuriescanhelpAUSAsandinvestigatorsndandsecureevidenceastomorethan

simply where, when, how, and why a target committed suspected criminal conduct. AUSAs and

investigators can and should also use the grand jury and its subpoena powers—in connection with an

ongoing federal criminal investigation—to determine, where possible:

• How much in suspected criminal proceeds the target obtained;

• how the target disposed of those criminal proceeds, including what assets the target obtained

with those proceeds and whether the target transferred any such assets to third parties;

• whether the target engaged in money laundering transactions using proceeds;

• what property facilitated or, as to suspected money laundering conduct, was “involved in” the

target’ssuspectedcriminalconduct.

AUSAs and investigators may use information and evidence obtained by grand jury subpoena—

including, for example, records permitting tracing of criminal proceeds—to pursue criminal forfeiture

and, as discussed below, civil forfeiture as well.

At the time of indictment, as an incident of their power to approve, or return, an indictment charging

federalcriminaloensesuponndingsofprobablecause,agrandjurycanreturnanindictment

setting forth not only the proposed federal criminal charges but also a forfeiture notice informing

the defendant that the government will seek to forfeit property as part of any sentence imposed upon

convictionofcertainchargedoensesinaccordancewithapplicableforfeiturestatutes.Uponrequest,

agrandjurycanincludeintheindictmentprobablecausendingsthattherequisitenexusexists

betweenparticularchargedoensesandparticularpropertyallegedtobeforfeitable.

The Attorney General’s Guidelines on the Asset Forfeiture Program (July 2018) (AG Guidelines), Sec. 1.

Id.

See Sec. II in this chapter.

See Sec. III in this chapter.

Chapter 6: Grand Jury

6-2  Asset Forfeiture Policy Manual 2023

II. When Assistant U.S. Attorneys May Disclose Matters Occurring before the

Grand Jury in Connection with Asset Forfeiture Matters and Cases under

18 U.S.C. § 3322(a) and Federal Rule of Criminal Procedure 6(e)(3)

Subject to limited exceptions, Federal Rule of Criminal Procedure 6(e)(2)(B) precludes the disclosure

of “a matter occurring before the grand jury.”

The importance of the grand jury secrecy rules set

forthinRule6(e)isreectedinthepenaltyforviolatingthoserules:contempt.

AUSAs should

thereforedeveloparmunderstandingastowhatconstitutes“amatteroccurringbeforethegrand

jury” within the meaning of Rule 6(e) under the law of their circuit.

In addition, AUSAs must

familiarize themselves with the federal statute and rules that can permit AUSAs to lawfully disclose

grand jury information to AUSAs handling civil forfeiture cases and others in connection with

asset forfeiture matters and cases under certain circumstances. We discuss those authorities and

circumstances in Sections II.A–C in this chapter.

A. Criminal Assistant U.S. Attorneys may disclose grand jury information to

Assistant U.S. Attorneys for use in civil forfeiture matters and cases under

18 U.S.C. § 3322

18 U.S.C. § 3322(a) permits an AUSA who is privy to grand jury information to disclose that grand

jury information “to an attorney for the government . . . for use in connection with any civil forfeiture

provision of federal law.”

ButFederalRuleofCriminalProcedure1(b),inturn,denesthephrase

“attorney for the government” to include only the Attorney General, an authorized assistant of the

Attorney General, a U.S. Attorney, or an authorized assistant of a U.S. Attorney. Thus, the “term

‘attorneysforthegovernment’isrestrictiveinitsapplication.”In re Grand Jury Proceedings,

309 F.2d 440, 443 (3d Cir. 1962).

Section 3322 does not expressly address whether the civil AUSA to whom grand jury information

has been disclosed may use that information by publicly revealing it, without obtaining a further

court order, while litigating a civil forfeiture case. But the Money Laundering and Asset Recovery

Section (MLARS) has concluded—based on both basic principles of statutory construction as well as

Federal Rule of Criminal Procedure 6(e)(2)(B).

Federal Rule of Criminal Procedure 6(e)(7) (“A knowing violation of Rule 6 . . . may be punished as contempt of court.”).

For example, in at least some circuits, documents that exist independent of the grand jury may not necessarily constitute

“matters occurring before the grand jury.” See, e.g., In re Grand Jury Subpoena, 920 F.2d 235, 240–242 (4th Cir. 1990)

(materials obtained by two search warrants obtained in parallel criminal investigation were not “matters occurring

before a grand jury,” and therefore were not entitled to protection under Rule 6(e)(2)); In re Grand Jury Investigation,

630 F.2d 996, 1000 (3d Cir. 1980) (“The mere fact that a particular document is reviewed by a grand jury does not convert

itintoa‘matteroccurringbeforethegrandjury’withinthemeaningof6(e).”).

18 U.S.C. § 3322(a).

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Asset Forfeiture Policy Manual 2023  6-3

established practices regarding the use of grand jury information in civil forfeiture cases—that § 3322

permits AUSAs handling civil forfeiture cases to review and use grand jury information:

• in preparing papers to freeze and seize assets, such as applications for seizure warrants and

motions for restraining orders or for arrest warrants in rem

,beforeorafterlingacivilforfeiture

complaint;

• inpreparingcivilforfeiturecomplaintsandotherpapersandpleadingsledincivilforfeiture

cases, including motions for interlocutory sale, discovery requests, and motions for summary

judgment; and

• by disclosing that information in the ordinary course of litigating the civil forfeiture case, for

example, by producing it in discovery or using it as evidence at trial.

B. Although Assistant U.S. Attorneys may not disclose grand jury information to

seizing agency counsel under 18 U.S.C. § 3322, they may under Federal Rule

of Criminal Procedure 6(e)(3)(A)(ii)

18 U.S.C. § 3322 plainly does not itself authorize an AUSA privy to grand jury information to

disclose such grand jury information to seizing agency counsel for use in administrative forfeiture

proceedings because § 3322 permits an AUSA to disclose grand jury material for use in connection

with a federal civil forfeiture provision only to an “attorney for the government”—but that term, as

narrowlydenedinFederalRuleofCriminalProcedure1(b),doesnotincludeagencycounsel.

Therefore, to disclose grand jury information to agency counsel, criminal AUSAs ordinarily must rely

on an exception to the Federal Rule of Criminal Procedure 6(e) non-disclosure rule. That exception,

setforthinRule6(e)(3)(A)(ii),andoftenreferredtoinU.S.Attorney’sOces(USAOs)as“adding”

someone “to the 6(e) list,” permits disclosure of grand jury material to “any government personnel—

including those of a state, state subdivision, Indian tribe, or foreign government—that an attorney

forthegovernmentconsidersnecessarytoassistinperformingthatattorney’sdutytoenforcefederal

criminal law.”

To make such a disclosure, the AUSA must add the appropriate seizing agency asset

forfeitureattorneytotheRule6(e)list:“[a]nattorneyforthegovernmentmustpromptlyprovide

the court that impaneled the grand jury with the names of all persons to whom a disclosure has been

made, and must certify that the attorney has advised those persons of their obligation of secrecy under

this rule.”

Of course, a person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that

information“onlytoassistanattorneyforthegovernmentinperformingthatattorney’sdutyto

enforce federal criminal law.”

And in many cases, seizing agency counsel will not need to rely

on grand jury information to commence an administrative forfeiture proceeding as to a seized asset

because for a seizing agency to commence an administrative forfeiture proceeding for an asset,

theseizingagency’scounselneedonlyndprobablecausethattheassethastherequisitenexus

Generally, however, a civil forfeiture matter or case that is being investigated or litigated in parallel with a related criminal

matter or case should be stayed until that criminal matter or case is resolved to avoid prematurely disclosing grand jury

information and other discovery material in the civil forfeiture case in a way that might impair completion of the criminal

investigation or trial of the criminal case.

Federal Rule of Criminal Procedure 6(e)(3)(A)(ii).

Id.

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6-4  Asset Forfeiture Policy Manual 2023

to a crime giving rise to forfeiture and then provide required notice of the forfeiture proceeding.

Tondprobablecause,seizingagencycounselmayrelyoninformationthatinvestigativeagents

have obtained by various means other than grand jury subpoena or testimony—such as by witness

interviews and evidence obtained by search warrant. But in those cases where seizing agency counsel

seesaneedtorelyongrandjurymaterialtomaketherequisiteprobablecausendingastonexus

for the purpose of initiating an administrative forfeiture proceeding related to a criminal grand jury

investigation, seizing agency counsel should ask the criminal AUSA to be added to the Rule 6(e) list

for that grand jury matter so that the criminal AUSA may advise seizing agency counsel of their grand

jurysecrecyobligations,providethecourtwithseizingagencycounsel’sname,andcausethegrand

jury material to be shared with seizing agency counsel.

In such cases where seizing agency counsel and the criminal AUSA concur that seizing agency

counseldoesneedaccesstograndjurymaterialtomaketherequisiteprobablecausendingin

connection with the related administrative forfeiture matter, then it necessarily follows—as matters of

lawandpolicy—thattheUSAO’sdisclosureofgrandjuryinformationtoseizingagencycounselwill

bemade“toassistanattorneyforthegovernmentinperformingthatattorney’sdutytoenforcefederal

criminal law” because it is Department policy to punish and deter criminal activity by depriving

criminals of property used in or acquired through illegal activities. In short, as a matter of general

practice,law,andpolicy,seizingagencycounselmostdenitelyassistcriminalandcivilforfeiture

AUSAs as they perform their duties of enforcing federal criminal law when seizing agency counsel

initiates, conducts, and completes administrative forfeiture proceedings that are related to federal

criminal investigations being handled by such AUSAs.

One other (seldom used) way to disclose grand jury information to seizing agency counsel is to have

the seizing agency attorney appointed as a special AUSA (or as a special assistant to the Attorney

General) under 28 U.S.C. § 515.

C. Assistant U.S. Attorneys should disclose grand jury material to government

contractors working on civil or criminal asset forfeiture matters in a manner

consistent with applicable Department of Justice guidance on disclosing

grand jury materials to contractors

AUSAs should disclose grand jury material to government contractors working on civil or criminal

asset forfeiture matters only in a manner consistent with applicable Department guidance on

disclosing grand jury materials to contractors.

III. Presenting Forfeiture to the Grand Jury

A. Charging document must include notice of forfeiture

Federal Rule of Criminal Procedure 32.2(a) provides that the court may not enter a judgment

of forfeiture in a criminal proceeding “unless the indictment or information contains notice to

the defendant that the government will seek the forfeiture of property as part of any sentence in

See 18 U.S.C. § 983(a)(1)(A)(i).

See In re Perlin, 589 F.2d 260, 267 (7th Cir. 1978) (Commodity Futures Trading Commission); United States v. Bates,

627 F.2d 349 (D.C. Cir. 1980) (Federal Maritime Commission); Bradley v. Fairfax, 634 F.2d 1126, 1130–1132 (8th Cir.

1980)(ParoleCommissionhearingocer).

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Asset Forfeiture Policy Manual 2023  6-5

accordance with the applicable statute.”

Accordingly, in cases in which the government seeks

forfeiture, the indictment or information must include a forfeiture notice setting forth the counts under

which the government intends to seek forfeiture if the defendant is convicted and the forfeiture statute

or statutes applicable to each of those counts. The forfeiture notice should also set forth, as to each

count for which the government seeks forfeiture, the forfeiture nexus authorized by the applicable

forfeiturestatuteorstatutes.Inaddition,thenoticeshouldincludeanoticeofthegovernment’sintent

to forfeit substitute assets as permitted by applicable forfeiture law, typically 21 U.S.C. § 853(p), as

made applicable to non-drug cases by 28 U.S.C. § 2461.

Thegrandjuryneednotmakeanyprobablecausendingastothenexusbetweenachargedoense

and particular property items sought to be forfeited. Accordingly, the indictment may, but need not,

alsolistspecicassetssoughttobeforfeited.Simplyincludingageneralforfeiturenotice,without

listing particular assets subject to forfeiture, will preserve criminal forfeiture as an available option.

Inthatevent,thegovernmentmayfollowupidentifyingthespecicassetsitseekstodirectlyforfeit

inoneormorebillsofparticularsledareasonabletimebeforetrial.

But where an asset has been

thesubjectofaclaiminanadministrativeforfeitureproceeding,thentopreservethegovernment’s

abilities both to retain custody of the asset during the pendency of the criminal forfeiture proceedings

and to forfeit the asset civilly under 18 U.S.C. § 983(a)(3), the USAO should—within 90 days of

the date of the administrative claim—either (1) name the asset as a defendant in a civil forfeiture

complaint or (2) both list it as directly forfeitable in the forfeiture notice of the charging document

and also take steps to preserve its availability for criminal forfeiture.

The forfeiture notice may, but need not, make reference to a forfeiture money judgment or specify the

particular dollar amount that the government might seek in such a money judgment.

 

the nexus between particular charges and assets

Althoughthegrandjuryneednotmakeandingastoforfeiturenexusaspartofastandardnotice

offorfeitureinanindictment,thegovernmentmayrequestthegrandjurytondprobablecauseto

believethattherequisitenexusexistsbetweenachargedoenseoroensesandparticularassets

allegedtobeforfeitable.Seekingagrandjuryndingastonexuscanmakeparticularsensewhere

the government intends to seek a restraining order as to the asset.

Federal Rule of Criminal Procedure 32.2(a).

See United States v. Davis, 177 F. Supp. 2d 470, 484 (E.D. Va. 2001) (holding that government may identify property as

subject to forfeiture in a bill of particulars where indictment used general language tracking the forfeiture statute); a’d,

63F.App’x.76(4thCir.2003).

See 18 U.S.C. § 983(a)(3); see also Chap. 2, Sec. III in this Manual.

See United States v. Plaskett,355F.App’x.639,644(3dCir.2009)(indictmentneednotspecifythatthegovernment

willseekamoneyjudgment;noticethatthedefendantwillberequiredtoforfeittheproceedsofhisoenseandthat

governmentmayseeksubstituteassetsprovidessucientnotice).

See also Chap. 8, Sec. III.A in this Manual, requiring prosecutors seeking the seizure or restraint of property located

abroadtoobtainaprobablecausendingfromaU.S.courtregardingtheforfeitabilityofthepropertyinquestionbefore

pursuing a mutual legal assistance (MLA) request.

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B.1 Under certain circumstances, prosecutors should instruct the grand jury on



Although neither the Constitution nor applicable asset forfeiture statutes or rules require the grand

jurytondprobablecauseastoforfeiturenexus,askingthegrandjurytondprobablecauseasto

forfeiture nexus can serve several useful purposes.

First,suchaprobablecauseforfeiturenexusndingcanserveasabasisforrestrainingdirectly

forfeitableassetsidentiedintheindictment.21U.S.C.§853(e)(1)(A)providesforentryofapost-

indictmentrestrainingorder“uponthelingofanindictmentorinformationchargingaviolation…

forwhichcriminalforfeituremaybeordered…andallegingthatthepropertywithrespecttowhich

the order is sought would, in the event of conviction, be subject to forfeiture under this section.”

Thegrandjury’sndingofprobablecauseastoboththedefendant’scommissionoftheunderlying

oenseoroensesgivingrisetoforfeitureandastonexusbetweenthoseoensesandtheproperty

soughttobeforfeitedwouldprovidestrongsupportforthegovernment’sfollow-onmotionfora

post-indictment restraining order. Upon considering that motion, the district court would be bound to

acceptastruethegrandjury’sndingofprobablecauseastothecommissionoftheoense;itshould

acceptthegrandjury’sndingastonexusasatleastpersuasiveevidence.

That said, in seeking the

restrainingorder,anAUSAshouldsubmitanagentadavitsettingforththekeyfactsatleastasto

nexus.Providingthedistrictjudgewiththemostrobustndingsofprobablecausepossiblecanhelp

convince the district judge of the strength of the motion for a restraining order.

Second,agrandjuryndingofprobablecausetobelievecertainpropertyisforfeitablemightincrease

theeectoftheindictmentonthirdparties,includingattorneys,whodobusinesswith,andreceive

fundsfrom,thedefendant.Anindictmentcontainingaprobablecausendingastonexuswould

provideadditionalnoticetothirdpartiesastothenatureandextentofthedefendant’sallegedcriminal

activities—andmighttherebyaectthosethirdparties’abilitytocontinuetoreceivepotentially

forfeitablepropertyfromthedefendantas“bonadepurchaser[s]…reasonablywithoutcauseto

believethattheproperty[is]subjecttoforfeiture.”

Third,inparticularlychallengingcases,thegrandjury’sprobablecausendingmighthelpinsulate

case agents and prosecutors from subsequent liability under Bivens

or the Hyde Amendment.

21 U.S.C. § 853(e)(1)(A).

See Kaley v. United States, 570 U.S. 320, 331 n.9 (2014) (holding that when challenging the legality of funds restrained

pretrialunder21U.S.C§853(e),acriminaldefendantwhohasbeenindictedmaynotcontestagrandjury’sdetermination

of probable cause to believe that the defendant committed the crimes charged, but indicating that a defendant may contest

agrandjury’sndingofprobablecauseastonexus).

See 21 U.S.C. § 853(c) & (n)(6)(B); see also United States v. McCorkle, 321 F.3d 1292, 1294 n.2 (11th Cir. 2003)

(attorneymaylosebonadepurchaserstatusastoadvancefeereceivedfromclient“becausetheclientisindictedand

theattorneylearnsadditionalinformationabouthisclient’sguilt”);Caplin & Drysdale v. United States, 491 U.S. 617,

632–633n.10(1989)(“theonlywayalawyercouldbeabeneciaryof§853(n)(6)(B)[’sbonadepurchaserprovision]

would be to fail to read the indictment of his client”).

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Under Bivens,individualscanlelawsuitsfordamages

againstfederalocersactingundercoloroffederalauthoritywhoseactionsallegedlyviolatedtheindividuals’

constitutional rights.

Pub. L. 105-119, § 617, 111 Stat. 2440, 2519 (1997), reprinted in 18 U.S.C. § 3006A historical and statutory notes.

UndertheHydeAmendment,acourtmayawardanindividualattorney’sfeesandlitigationexpensesifthegovernment’s

litigation position was vexatious, frivolous, or in bad faith.

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Asset Forfeiture Policy Manual 2023  6-7

Inthesetypesofcircumstances,criminalAUSAs—withtheassistanceandguidanceoftheirUSAO’s

asset forfeiture AUSAs and MLARS attorneys when needed—should consider instructing the

grand jury on applicable asset forfeiture law, presenting evidence as to the forfeiture nexus between

pertinentoensesandassetssoughttobedirectlyforfeited,andaskingthegrandjurytomake

appropriateprobablecausendingsastonexusbetweentherelevantoensesandassets.Wherethe

governmentasksthegrandjurytomakesuchaforfeiturenexusnding,theindictmentshouldinclude

bothaforfeiturenotice—atleastageneralone—aswellasthespecicnexusndingsgiventhe

requirement in Federal Rule of Criminal Procedure 32.2 that an indictment seeking forfeiture include

a forfeiture notice.

B.2 It is not necessary to ask the grand jury to determine defendants’ interests in

forfeitable property

Althoughdefendants’interestsinforfeitablepropertymaybelitigatedatlaterphasesincriminal

forfeitureproceedings,prosecutorstypicallyneednotpresenttheissueofdefendants’interestsin

forfeitablepropertytothegrandjury.Unlikethenexusprobablecausending,whichservesthe

varioususefulpurposesoutlinedabove,andingofprobablecausetobelievethatthedefendanthas

an interest in particular property serves no comparable purpose in most cases.

Nonetheless, in cases where the defendant has attempted to conceal or hold, via a third party, an

interestinpropertysubjecttoforfeiture,itmaybeimportanttothegrandjury’sunderstandingof

thecase—anditsabilitytomakenecessaryndingsastoelementsofchargedmoneylaunderingor

otheroenses—topresentevidenceconcerningthedefendant’sactual,althoughhidden,interestin

forfeitable property.

B.3 Presenting forfeiture evidence to the grand jury

Just as trial evidence relating to forfeiture is often best presented as an integral part of the

government’scase-in-chief,mostgrandjuryevidencerelatingtoforfeitureisalsobestpresentedas

anintegralpartofthecaseestablishingprobablecausetochargetheunderlyingcriminaloenses.

Prosecutors should focus their forfeiture presentation to the grand jury on the facts that (1) identify

theassetswithparticularityand(2)establishtherequisitenexusbetweentheoenseoroenses

giving rise to forfeiture and the assets that the government seeks to have the grand jury make a nexus

ndingsunderallapplicabletheoriesofforfeiture—e.g., the facts indicating that the assets

(a)constitute,orwerederivedfrom,proceedsoftheoenses,(b)wereusedtofacilitatethe

commissionorattemptedcommissionofoensespermittingforfeitureoffacilitatingproperty,or

(c)constituteproperty“involvedin”moneylaunderingoenses.See 18 U.S.C. § 981(a)(1)(C);

18 U.S.C. § 982(a)(1); 21 U.S.C. § 853(a); 18 U.S.C. § 924; 28 U.S.C. § 2461(c).

See Sec. III.A in this chapter.

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B.4 Instructing the grand jury on forfeiture

In the typical case where the government is including only a forfeiture notice in the indictment, if it is

consistent with local practice to do so, prosecutors should explain to the grand jury that:

• forfeitureisnotasubstantiveoense,oranelementofanoense,butratherarequiredpartof

thepunishmentimposedafterconvictionforcertaincriminaloenses;

• the forfeiture notice section in the proposed indictment is intended to put the defendant on

notice that the government is seeking to forfeit certain property, or types of property, upon the

defendant’sconviction;and

• thegovernmentwillseektoforfeitthedefendant’ssubstituteassetsifsomeactoromissionof

the defendant makes the directly forfeitable property unavailable.

Whenpresentingaproposedindictmentthatasksthegrandjurytomakeaprobablecausendingas

to forfeiture nexus, the AUSA should instruct the grand jury as to the type of nexus that must be found

toexistbetweenthechargedoensesandtheassetsallegedtobeforfeitableandpresentevidenceas

to such nexus.

The prosecutor should also ask the grand jury, upon considering all of the evidence, to determine

whether there exists probable cause to believe that the listed assets have the requisite nexus to the

speciedchargedoenses.

 

As explained in Section III.B.1 in this chapter, in certain circumstances, it is prudent to have the

indictmentcontainnotonlyaforfeiturenoticebutanexplicitprobablecausendingastoforfeiture

nexus as well.

Tomakethegrandjury’sprobablecausenexusndingeasilyrecognizable—whichishelpfulif

thegovernmentseekstoreferencethatndingwhenseekinganddefendingapretrialrestraintas

described in Section III.B.3inthischapter—suchprobablecausenexusndingsshouldbesetforthin

a separate section of the indictment, following the forfeiture notice, titled “Findings as to Forfeiture

Nexus” or “Finding of Probable Cause.”

Some districts have found it useful to cover these points in an introductory presentation to the grand jury outlining

forfeiturelawandprocedures,aspartofthegrandjury’sorientationduringtherstfewweeksafteranewgrandjuryis

empaneled.Thiscanbedonebythedistrict’sforfeitureAUSA,whoisinthebestpositiontocovertheseissuesandto

addressthegrandjurors’questions.Theorientationsessionalsoprovidestheprosecutorwiththeopportunitytoexplainto

thegrandjurythatproceedingstoforfeitthedefendant’sinterestinanassetdonotendthematterbutratherthatafterany

preliminaryorderofforfeitureisenteredforfeitingthedefendant’sinterestintheasset,thecourtwillaordthirdparties

theopportunitytoassertaclaimthattheyeitherhaveasuperiorinterestintheassetorwerebonadepurchasersofthe

asset without reason to know that the asset was subject to forfeiture. Although such instruction about third party rights

isnotdirectlyrelevanttothegrandjury’sdeliberations,ithelpsthegrandjuryunderstandthatthecourtwillaordthird

partiesassertingsuchinterestsarighttobeheardbeforethecourtmakesanalforfeituredecisionastoanasset.

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Asset Forfeiture Policy Manual 2023  6-9

Thegrandjury’sprobablecausendingsastonexusshouldalsobestatedexplicitlyinthetextofthe

indictment:

Thegrandjuryfurtherndsprobablecausetobelievethatuponconvictionoftheoense(s)in

violation of set forth in Count(s) __ of this Indictment, the defendant(s) [NAME(s)]shallforfeitto

the United States of America as [describe nexus—for example, as property constituting, or were

derived from, proceeds of that oense],pursuantto__U.S.C.§___all[insert statutory language],

including, without limitation: $__.__ in United States currency seized from an account ending in

digits and held in the name of [NAME(s)];[other particular assets].

Usingthislanguageinwhichthegrandjuryexpresslyndsnexus,inaclearlycaptioned

portion of the indictment separate from the forfeiture notice required under Federal Rule of

CriminalProcedure32.2(a),willhelpestablishthatthegrandjurydidinfactmakethespecic

probablecausenexusndings.

Asset Forfeiture Policy Manual 2023  7-1

Chapter 7:

Civil Forfeiture Litigation Issues

This chapter covers issues that arise during civil forfeiture litigation, including preservation of

evidence in civil forfeiture proceedings, the propriety of Fifth Amendment advisements in civil

forfeiture proceedings, and handling negotiations with fugitives.

I. Preservation Policy for Civil Forfeiture

A. Legal obligation

The government has a legal duty to preserve potentially relevant documents and other information

onceapartyreasonablyanticipateslitigation,whetherthegovernmentistheplaintiordefendant.

See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003); Federal Rule of Civil

Procedure 37 Advisory Committee Note, 2006 Amendment Subdivision (f). Although a litigation

hold is the primary method of preservation, reasonableness and good faith are the ultimate standards

by which an alleged breach of the duty to preserve is judged. A breach of the duty to preserve may

be the basis for discovery sanctions if the government fails to produce relevant electronically stored

information (ESI) or tangible items.

Preservation is distinguished from production under the Federal Rules of Civil Procedure that govern

discovery and from admissibility under the Federal Rules of Evidence. The fact that information may

be work product, otherwise privileged, or inadmissible does not obviate the duty to preserve. The fact

that information is preserved does not necessarily mean it will be produced.

The guidance below applies to all Department of Justice (Department) attorneys, including Assistant

U.S. Attorneys (AUSAs). The guidance does not apply to investigative agency counsel or attorneys at

independent agencies.

Investigative agency counsel should consult and follow internal agency policy and procedure relating

to litigation holds. However, in the absence of an internal agency policy, agency counsel should

follow this guidance.

B. Litigation holds

When an event triggers the obligation to preserve documents and other relevant information for a

civil forfeiture litigation, the Department attorney assigned to a case should, consistent with district-

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specicpracticeandguidance,issuealitigationholdtotherelevantinvestigativeagencyoragencies

no later than:

(1) the time at which a seizure warrant is obtained for property that, by statute, may not be

administratively forfeited or for which the seizing agency lacks administrative forfeiture

authority;

(2) serviceoractualnotice,whicheverisearlier,ofthelingofacomplaintorotherpleadingbya

claimant; or, upon receipt of a motion for return of property or notice of other action regarding

seized or forfeited property;

(3) whentheattorneyhasreceivedareferraltoleajudicialforfeitureaction,thetimewhenitis

reasonablycertainthattheDepartmentwillindeedleacomplaintoramotionforextension

oftimetoleacomplaint(asopposedtodecliningthematterorpursuingcriminalforfeiture

instead); or

(4) when the attorney advises, if the attorney determines that special circumstances exist,

that circumstances warrant the immediate preservation of relevant documents and other

information.

C. Documents and other relevant information subject to preservation

C.1 Scope

Thescopeofthelitigationholddeneswhatdocumentsandotherrelevantinformationarerelevant

and the sources (physical locations) of those items. Relevant information is anything that the

government knows, or reasonably should know, relates to the foreseeable claims or defenses of any

party or is likely to lead to the discovery of relevant information. There is no duty to retain every

piece of paper. The Department attorney should determine relevance in consultation with agency

counsel and the custodians of information, who, in an asset forfeiture matter, include persons at

agenciesinpossessionoftherelevantcaseles.Scopeisafact-specicinquiry,theparametersof

which should be explained in detail by the Department attorney on a case-by-case basis. The initial

decisiontopreserveandthesubsequentmechanismschosentofullltheobligationshouldbeguided

by reasonableness and proportionality.

Relevant information should be preserved as it is kept in the usual course of business. Duplicates

do not need to be retained. ESI should be maintained in native format. Any agency advised to

implement a litigation hold should ensure that all materials designated by the Department attorney as

withinthescopeoftheholdare,infact,retained,andretainedintheformspecied.

C.2 Relevant time frame

All relevant information in existence at the time when the duty to preserve attaches should be

retained, as well as relevant information created thereafter, until the Department attorney or agency

counsel advises otherwise. The starting point for information that should be captured by the litigation

hold is no later than either the date the investigation began or the date of the relevant seizure.

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Asset Forfeiture Policy Manual 2023  7-3

The point at which information will no longer require preservation under the litigation hold is no

earlier than:

• thedatewhentheforfeituredecisionisnalandnon-appealable;

• thedateuponwhichthetimeforlinganappealorpetitionforawritofcertiorari expires; or,

• another date as the Department attorney advises.

D. Litigation hold notice

D.1 Who issues litigation hold

The Department attorney issues the litigation hold to the relevant investigative agency or agencies.

Agency counsel issues a litigation hold to relevant agency employees, consistent with agency policies

and procedures. The Department attorney is responsible for (1) preserving documents created or

receivedbythatattorney,(2)guidingothermembersoftheattorney’soceinimplementingthe

litigationhold,and(3)workingwithagencycounseltomonitorpreservationeortsattheagencyor

agencies.

D.2 Who receives litigation hold

Each relevant investigative agency is responsible for identifying key custodians subject to litigation

holds.

Thesecustodiansmayincludecounsel’soceattorneysassignedtothecase,caseagents,

and any other persons who may have produced or received information relevant to the case. The

list of key custodians may be amended, and the Department attorney or agency counsel should

sendthelitigationholdnoticetonewlyidentiedcustodiansasneeded.Agenciesshouldnotifythe

Department attorney of all key custodians and any changes the agency makes to the key custodian list.

Thepracticaldutyofpreservationrestswithagencysta.Properexecutionofthedutytopreserve

includes consulting with information technology (IT) personnel, guiding the individual custodians of

information, and following the instructions in the litigation hold notice as provided by the Department

attorney or agency counsel.

The Department attorney should coordinate with agency counsel to ensure that relevant documents

and other information are retained when key custodians leave their respective agencies or are

reassigned. The Department attorney should coordinate with agency counsel to ensure that new

investigative agency employees are apprised of existing litigation holds relevant to their assignments

when they assume their positions.

D.3 Multiple agency situations

When more than one investigative agency works on a particular case—whether in a task force setting,

through informal coordination, or under seizures from state and local agencies—the Department

attorney should consult with the lead federal seizing agency to ascertain all entities that participated

in the investigation. The Department attorney should inquire as to which other agencies may be

In a forfeiture proceeding in which U.S. Immigration and Customs Enforcement-Homeland Security Investigations

(ICE-HSI) is the seizing agency, and U.S. Customs and Border Protection (CBP) processes the forfeiture, the Department

recommends that the Department attorney send a litigation hold to both ICE-HSI and CBP.

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involved and communicate with agency counsel or other designated agency personnel at all additional

participating agencies. The lead federal seizing agency should provide the Department attorney with

the contact information of the relevant agency personnel at the other agencies involved so that the

Department attorney can determine the scope of the hold and send the litigation hold notice to all

participating agencies.

D.4 Litigation hold format

Best practice entails a written litigation hold (urgent email is the preferred method) to agency counsel

or other appropriate agency personnel. The Department attorney should attach a written, electronic

agreementtocomplyalongwiththelitigationholdnoticeandrequireanarmativeresponsefromall

recipients by a certain date.

D.5 Litigation hold content

Where feasible, and consistent with applicable court orders, the litigation hold notice should contain:

(1) names of any foreseeable parties in the anticipated litigation;

(2) time frame during which documents and other relevant information has been or will be

created;

(3) armativedirectionstopreservedocumentsandotherrelevantinformationand

prohibitions on destruction or deletion;

(4) instructions to initially separate information believed to be privileged from other

preserved information;

(5) expectations for compliance, consequences of non-compliance, and method of

monitoring compliance;

(6) instructions on how to proceed when the recipient believes the hold inadvertently

excludes documents and other relevant information, sources of data, or entities likely to

possess information;

(7) an agreement to comply with the hold, to be signed and returned by a certain date;

(8) a summary of the claims, defenses, or issues raised by the anticipated litigation;

(9) scope of the hold and any limitations on it;

(10) mechanisms for the collection of preserved ESI, tangible items, and documents;

(11) any technological aspects of IT systems that could help or hinder preservation;

(12) procedure for how the hold may be expanded, diminished, and terminated; and

(13) contact information of the Department attorney.

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Asset Forfeiture Policy Manual 2023  7-5

D.6 Ongoing duty

The Department attorney who issues a litigation hold should:

(1) keep a log of all steps taken to initiate and maintain a litigation hold, including a record

of communication with agency personnel and a concise statement of the reason any

signicantdecisiononpreservationwasmade;

(2) periodically review the litigation hold to determine whether to maintain, diminish, or

expand its scope in light of the evolving claims, defenses, and issues in the case;

(3) document changes made to the scope of the litigation hold or list of key custodians;

(4) periodically review compliance with the hold, in consultation with agency personnel;

(5) send a reminder notice, electronically, to all recipients of the litigation hold notice every

90–120 days unless other suitable arrangements have been made to ensure compliance;

(6) promptlynotify,electronically,allrecipientsofanymodicationstothescopeofthe

hold; and

(7) notify recipients when the hold may be lifted.

D.7 Removing a litigation hold

A Department attorney should not make the decision to lift a litigation hold until after the time

forlingdirectappealsinthecase(andrelatedorancillaryproceedings)orapetitionforawritof

certiorari has passed. If a Department attorney was never assigned to the case but agency counsel

issued a litigation hold independently, or in cases where agency counsel has issued a litigation hold

even when a Department attorney is assigned to the case, agency counsel may remove the hold when

thetimeforaclaimanttoleaclaimcontestingtheforfeiturehaspassed.TheDepartmentattorneyor

agency counsel should electronically notify all recipients of the litigation hold notice that the need for

the hold has ended and that they may cease preserving information related to the case.

II. Fifth Amendment Advisements in Civil Forfeiture Proceedings

The procedural safeguards established by the Supreme Court in Miranda v. Arizona, 384 U.S. 436

(1966),protectpersons’FifthAmendmentrightstonotbecompelledinacriminalcasetobeawitness

against themselves. In Miranda,theSupremeCourt’sprimaryconcernwasthecoerciveatmosphere

surrounding a person in custody who was subject to interrogation by the police. Id. at 457–458.

Because these conditions typically are not present in the context of a deposition of a witness or

claimant in a civil forfeiture proceeding, the Constitution does not require prosecutors to warn the

witness of the right against self-incrimination prior to questioning in a civil deposition. See United

States v. Solano-Godines, 120 F.3d 957 (9th Cir. 1997) (Miranda warnings are not required before

questioning in a civil deposition hearing). Consequently, statements, including those which might

be self-incriminating, made in the course of a deposition in a civil forfeiture case are admissible in

the proceeding even in the absence of Miranda warnings because deposition proceedings are civil in

nature.

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In civil forfeiture cases where the deponent is known to the government to be a target or subject of a

parallel criminal investigation or prosecution, government attorneys may defer the deposition until

resolution of the criminal proceedings. If, however, the government proceeds with a deposition of a

target in a civil forfeiture matter to which there is a parallel criminal investigation or prosecution, it

must give an advisement that includes elements of the standard Miranda warnings that prosecutors

routinely give targets and subjects in federal grand jury practice. In grand jury practice, Department

policy requires prosecutors to give criminal targets and subjects Fifth Amendment advisements in a

target letter and repeat those advisements on the record before the grand jury. See Justice Manual

(JM) § 9-11.151. In the case of targets, Department grand jury policy also requires prosecutors to

advise targets that they are a target of a criminal investigation.

Thus, in a civil forfeiture proceeding, government attorneys may advise a deponent in a civil

forfeiture proceeding to which there is a parallel criminal investigation or prosecution, whether

represented or unrepresented:

You are advised that you are a target of a parallel federal criminal investigation. You may refuse to

answer any question in this proceeding if a truthful answer to the question would tend to incriminate

you. Anything that you do or say may be used against you in this proceeding, in a criminal

proceeding, or in any other subsequent legal proceeding.

Government attorneys may also include, if applicable:

If you are represented by appointed counsel in a related criminal case, you have a right to ask the

court to appoint counsel for you in this proceeding.

Or:

If you are using the real property which this case seeks to forfeit as your primary residence, you

have a right to ask the court to appoint counsel for you in this proceeding provided you show that

youarenanciallyunabletoobtaincounsel.

In contrast, before taking the deposition of a target who is represented by counsel, the government

attorney’sadvisementmaysimplystate,“Youareadvisedthatyouareatargetofaparallelcriminal

investigation.”

Where the civil forfeiture is being litigated by an attorney other than the criminal prosecutor, the civil

forfeiture attorney may not be authorized to disclose the existence of the criminal investigation to the

deponent.Atthesametime,theattorney’sdutyofcandormayprecludetheattorneyfromdenying

theexistenceofanongoingcriminalinvestigationifaskedbythedeponentordeponent’scounsel.In

those instances, it is still the better course to advise the deponent of their Fifth Amendment rights but

todosowithoutconrmingordenyingtheexistenceofacriminalinvestigation.

Anadvisementenhancesthelikelihoodthatifthetestimonyisoeredinacriminalprosecution,it

willbeadmitted.Anadvisementalsohelpsrebutclaimants’subsequentargumentsthattheywerenot

aware of the Fifth Amendment right, or in the case of certain indigent claimants, that they were not

aware that they may have the right to counsel in the civil forfeiture case. See 18 U.S.C. § 983(b); see

also 18 U.S.C. § 981(g)(2)(C) (authorizing a claimant to move to stay a civil forfeiture proceeding

based on Fifth Amendment concerns).

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Asset Forfeiture Policy Manual 2023  7-7

While there is no constitutional right to an attorney in a civil forfeiture proceeding, certain indigent

claimants may have a statutory right to counsel where they are represented by court-appointed counsel

in a related criminal case. See 18 U.S.C. § 983(b)(1)(A). And, upon the request of an indigent party

inacivilforfeitureactionbroughtbythegovernmenttoforfeittheperson’sprimaryresidence,the

court shall ensure that the person is represented by an attorney. See § 983(b)(2)(A).

III. Negotiating with Fugitives in Civil Forfeiture Matters

Periodically, an individual defendant is indicted, becomes a fugitive, and then seeks to challenge or

negotiate with the government regarding a civil forfeiture proceeding.

The fugitive disentitlement

doctrine permits a court to “disallow a person from using the resources of the courts of the United

States in furtherance of a claim in any related civil forfeiture action or a claim in third party

proceedings in any related criminal forfeiture action,” if the person:

(1) after notice or knowledge of the fact that a warrant or process has been issued for his

apprehension, in order to avoid criminal prosecution—

(a) purposely leaves the jurisdiction of the United States;

(b) declines to enter or reenter the United States to submit to its jurisdiction; or

the person; and

(2) isnotconnedorheldincustodyinanyotherjurisdictionforcommissionofcriminalconduct

in that jurisdiction.

When a court declines to apply the fugitive disentitlement doctrine, the government should consider

other available pretrial motions.

For example, fugitives often will decline to appear for deposition

or otherwise participate in discovery. Federal Rule of Civil Procedure 37(b)(2) allows the court to

order a party to comply with a discovery request and if the party fails to comply, the court can impose

sanctions that include:

(1) an order that certain facts shall be taken as established;

(2) an order refusing to allow the noncompliant party to support or oppose designated claims or

defenses or introduce matters in evidence; and

(3) rendering judgment by default against the noncompliant party.

Where pretrial motions are not viable or are unsuccessful, prosecutors should pursue negotiations with

fugitivesonlyasalastresort.Asageneralmatter,itisrarelyinthegovernment’sinteresttonegotiate

withfugitives.ProsecutorsshouldnottakeanyactionsthatmayunderminetheDepartment’s

Intheeventadefendantmadeanappearanceinthecriminalcasepriortotakingight,theproceeding(including

sentencing and criminal forfeiture) may continue because the defendant has voluntarily chosen to be absent from an in

personam proceeding. See Federal Rule of Criminal Procedure 43(c).

28 U.S.C. § 2466.

United States v. 1988 Chevrolet Cheyenne Half-Ton Pickup Truck, 357 F. Supp. 2d 1321, 1326 (S.D. Ala. 2005) (section

2466“‘doesnotmandatethecourttodisallowtheclaimant,’butratherconfersupontheCourtdiscretiontodetermine

whether or not disentitlement is warranted.”).

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7-8  Asset Forfeiture Policy Manual 2023

settlement policies.

In most instances, the policy considerations for declining to negotiate with

fugitiveswilloutweighthepotentialbenettoanindividualcivilforfeitureproceeding.Onlyin

instances where other considerations (e.g., the cost of maintaining the asset subject to forfeiture,

victim compensation, public interest, or international comity) militate in favor of negotiating a

settlement should prosecutors begin to engage in such negotiations, in close consultation with the

prosecutor handling the parallel criminal case.

In the exceptional case where negotiations with a fugitive are appropriate, prosecutors should limit

thefactorsthatinuencetheconductofthenegotiations.Prosecutorsmayconsiderthegovernment’s

litigation risk at trial or the expenses that the government may incur in maintaining an asset if the case

wouldotherwisebedelayedindenitely.Forexample,iftheforfeitureinvolvestangiblepropertythat

is incurring storage expenses or property with a lien that is continuing to accrue interest and erode

theequity,itmaybeinthegovernment’snancialinteresttoresolvetheforfeiturematterquickly.

Prosecutors may also consider the ability to compensate victims through a negotiated forfeiture

settlement. If a court declined to invoke the fugitive disentitlement doctrine, negotiation may be

necessary to resolve the matter. But under no circumstances should a prosecutor agree to exchange

assetsforadefendant’sagreementtosurrenderandfacecriminalcharges.

See Chap. 11, Sec. I in this Manual; see also In re Grand Jury Subpoenas, 179 F. Supp. 2d 270, 277 (S.D.N.Y. 2001)

(notingtheSouthernDistrictofNewYorkUSAO’sresponseinarelatedcasethat“itisourrmpolicynottonegotiate

dispositionsofcriminalchargeswithfugitives.Suchnegotiationswouldgivedefendantsanincentivetoee,andfrom

theGovernment’sperspective,wouldprovidedefendantswiththeinappropriateleverageandluxuryofremainingabsent

unless and until the Government agrees to their terms.”).

See Chap. 11, Sec. I in this Manual.

Asset Forfeiture Policy Manual 2023  8-1

Chapter 8:

International Forfeiture

I. International Forfeiture Overview

Federal law enforcement should seek to pursue and recover forfeitable assets beyond the borders

oftheUnitedStatesand,consistentwithitsinternationalobligations,actarmativelyonincoming

requests by other countries for assistance in restraining, forfeiting, and repatriating assets found in

the United States that are forfeitable under foreign law.

International requests for legal assistance in

asset recovery, however, are subject to various treaty and other obligations, and may often implicate

issues of diplomatic sensitivity or require coordination with other related investigations, domestic or

foreign.TheyaccordinglyrequireconsultationwiththeDepartmentofJustice’s(Department)Money

LaunderingandAssetRecoverySection(MLARS)andOceofInternationalAairs(OIA).

OIA is the Central Authority of the United States for criminal matters under mutual legal assistance

(MLA) treaties and other multilateral law enforcement conventions. OIA transmits MLA and other

formal legal assistance requests to foreign countries on behalf of investigators and prosecutors in the

United States and executes MLA and other formal legal assistance requests from foreign authorities.

MLARS, in conjunction with OIA, also helps guide Assistant U.S. Attorneys (AUSAs) and agents

through this often-complicated process. MLARS and OIA can also provide informal assistance to

AUSAs upon request.

A. Department of Justice consultation and coordination policy

Informal cross-border exchanges of law enforcement and prosecutorial information often are needed

prior to, and in preparation for, the use of MLA mechanisms with other countries in asset forfeiture

cases. MLARS and OIA encourage these exchanges, provided that they occur via the appropriate

law enforcement liaisons, Department attachés stationed in the United States and abroad, and other

established informal asset recovery mechanisms, whenever this is operationally feasible. Prosecutors

and agents should use the limited and secure law enforcement networks to obtain or share information

relevanttoforfeitureeorts.Theprincipalinformalchannelforassetrecoverycasesisviathe

Department’srole,onbehalfoftheUnitedStates,asamemberoftheCamdenAssetsRecovery

Inter-AgencyNetwork(CARIN),andaCARINoshootnetwork,theAssetRecoveryInter-Agency

Network for the Caribbean (ARIN Carib). CARIN and ARIN Carib are informal international asset

forfeiturepractitioners’networkscomprisedofonelawenforcementrepresentativeandonejudicial

(prosecutor) representative from each participating country. MLARS is the U.S. prosecutor contact

and the U.S. Marshals Service (USMS) is the U.S. law enforcement contact for these networks. In

addition to CARIN and ARIN Carib, the Department has access to six other ARIN networks. The

various ARIN points of contact can provide investigatory assistance and legal advice to support

ongoingU.S.forfeitureeortsbeforestatutoryortreaty-basedassistanceisinvoked,oftenallowing

U.S.MLArequeststobebettertargetedandrened,andthereforemoreeectiveandexpeditious.

MLARS and the USMS Asset Forfeiture International Unit can process outgoing ARIN requests

for U.S. prosecutors and agents. Other channels for asset-related information sharing include the

See The Attorney General’s Guidelines on the Asset Forfeiture Program (July 2018) (AG Guidelines), Sec. 1 (“the

Department of Justice should use asset forfeiture to the fullest extent possible to investigate, identify, seize, and forfeit the

assets of criminals and their organizations”).

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8-2  Asset Forfeiture Policy Manual 2023

Egmont Group channel

via the Financial Crimes Enforcement Network (FinCEN), which permits

theexchangeofnancialintelligenceandinquiriesthroughEgmontGroup’srulesofengagement.

MLARS can assist in understanding what information is available through Egmont and in making

such requests.

In addition, under a longstanding policy, the Department requires the coordination of all incoming

and outgoing international contacts by or with AUSAs regarding criminal justice matters with OIA.

OIA is the designated entity through which the United States must make all formal requests for legal

assistance to foreign governments; it is also the designated entity for legal assistance from foreign

governments. Federal prosecutors must adhere to established procedures for international contacts

andshouldnotcontactforeignocialsdirectlyoncase-relatedmattersunlesssuchcontactshave

been approved by, are under the supervision of, or are in consultation with, OIA. This includes

contacting foreign citizens and entities to provide direct notice of forfeiture actions. Where foreign

lawandpracticepermit,OIAwillallowprosecutorstohavedirectcontactwithforeignocials,

provided that OIA is copied on, or informed about, all of the relevant communications. Federal

investigatorsandprosecutorsshouldconsultwithOIAformoredetailsontheocialpolicyon

contactwithforeignocials.

B. Forfeiture and recovery of assets located abroad under U.S. law

Theextentandspeedofforfeitureassistanceaordedbytheforeignnationinwhichtheassetsare

located may vary greatly depending upon the applicable treaty obligations and laws of the foreign

nation,aswellasthatcountry’sexpertiseandcapacitytomanageassetforfeituremattersgenerally.

As noted above, international requests for legal assistance may also implicate issues of diplomatic

sensitivity or require coordination with other related investigations, domestic or foreign. Once foreign

assetsareidentiedaspotentiallysubjecttorestraintforpurposesofforfeitureunderU.S.law,federal

investigators and prosecutors should contact and seek the advice of MLARS and OIA.

C. Forfeiture of assets located in the United States under foreign law

ItisimportantfortheUnitedStatestoactarmativelyonincomingrequestssothatitisnotwrongly

perceived as a safe haven for proceeds of foreign crime and other property forfeitable under foreign

law. Moreover, providing assistance to other countries helps foster cooperation more broadly and

advance U.S. investigations and prosecutions involving overseas assets when the United States needs

assistance. MLARS executes incoming requests for forfeiture assistance under 28 U.S.C. § 2467 in

consultation and coordination with OIA. In some circumstances, it may be necessary for MLARS to

leacivilforfeitureactionunder18U.S.C.§981(a)againstanassettoassistaforeigngovernment’s

forfeitureeorts.MLARSandOIAworkwiththeestablishedforfeiturecontact(s)ineachdistrict

where forfeitable assets are located to accommodate the legal assistance needs of the requesting

jurisdiction.

II. Foreign Property Management Considerations

Tangible assets located abroad may present unique property management issues. Federal prosecutors

and investigators should keep in mind that, although many countries are willing to restrain or seize

assetsinsupportofU.S.forfeitureeorts,someofthemlacktheresources,experience,technical

Contact MLARS for additional guidance.

See Justice Manual (JM), § 9-13.500.

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Asset Forfeiture Policy Manual 2023  8-3

expertise, or legal authority to adequately manage the seized or restrained property pending resolution

of the U.S. forfeiture proceeding. Thus, extensive seizure or restraint planning may be required for

certain property located abroad that is likely to require post-seizure or post-restraint preservation or

management. Foreign governments may be willing to assume responsibility for preserving assets, or

they may ask the United States to do so, and the United States or the foreign government may need

to hire or legally appoint guardians, monitors, trustees, or managers for certain assets. Prosecutors

should be aware that the costs of storing, maintaining, and disposing of certain assets located in a

foreign country—particularly depreciating assets such as vehicles, vessels, or aircraft—may, in many

instances, exceed the value of the asset itself.

When considering the seizure of tangible assets abroad that may require management, a federal

prosecutororinvestigatorshouldpromptlycontactMLARSandtheUSMS’AssetForfeiture

International Unit. In cases in which the lead law enforcement agency is a Department of the

Treasury (Treasury) or Department of Homeland Security (DHS) agency, the federal prosecutor or

investigatorshouldcontacttheTreasuryExecutiveOceforAssetForfeiture(TEOAF).Prosecutors

must consult MLARS before the United States asks a foreign government to restrain or seize an

ongoing business or its assets or to appoint or hire a guardian, monitor, trustee, or manager for the

same.

III. Probable Cause Finding to Seize or Restrain Assets Abroad

As a matter of policy, MLARS and OIA advise prosecutors seeking the seizure or restraint of property

locatedabroadtorstobtainaprobablecausendingfromaU.S.courtregardingtheforfeitability

of the property in question before asking OIA to make an MLA request. This comports with U.S.

law

and preserves our treaty-based forfeiture relationships with foreign counterparts by ensuring that

requests are well-developed factually and legally, and that U.S. authorities only ask foreign authorities

to take action against foreign-located assets that U.S. authorities could take if the assets were located

in the United States. As discussed below, there are a number of ways to obtain such a probable cause

nding.

For more information, see Chap. 1, Sec. I.D.2, which discusses the business consultation requirement for domestic

seizures, and Chap. 9, Secs. II.A and II.B, which discuss consultation for trustees or monitors, in this Manual.

At least one federal district court has held that the United States must demonstrate probable cause of forfeitability of the

subject assets located abroad before requesting another country to seize or restrain the assets. See Kim v. Dep’t of Justice,

No. 2:05-cv-03155-ABC-Mc, D.E. 26 (C.D. Cal. July 11, 2005). Under rare circumstances, OIA and MLARS may

authorizeaprosecutortomoveforwardwithatreatyrequesttoseizeorrestrainassetsabroadwithouttheprosecutorrst

obtainingandingofprobablecause.OIAmayconsidermakingaformalrequestwithoutaprobablecausedetermination

where the assets located in a foreign state are held by a person “with no voluntary attachment to the United States,”

rendering the Fourth Amendment inapplicable. See United States v. Verdugo-Urquidez, 494 U.S. 259, 274–275 (1990). If

the facts support this conclusion, the prosecutor should discuss this possibility with OIA and MLARS.

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8-4  Asset Forfeiture Policy Manual 2023

A. Criminal forfeiture cases

In a criminal forfeiture case, there are at least three options for obtaining a probable cause

determination regarding forfeitability:

(1) naming the foreign-based asset in the forfeiture allegation in the indictment and requesting the

grandjurytondprobablecauseforforfeiture;

(2) obtaining a restraining order; and

(3) obtaining a criminal seizure warrant.

A.1 Indictment

If a pending indictment contains a criminal forfeiture allegation relating to property located abroad,

andthegrandjuryhasmadeanexusndingofprobablecausetobelievethatthespecic property

located abroad is subject to forfeiture, the indictment itself will serve as the necessary probable cause

ndingforpurposesoftheMLArequest.

A.2 Restraining order

Once the indictment is returned, the United States may obtain a post-indictment ex parte restraining

order pursuant to 21 U.S.C. § 853(e).

Sucharestrainingorderrequiresandingofprobable

cause; therefore, the issuance of the restraining order will provide the necessary probable cause

determinationsolongastheassetlocatedabroadisspecicallyidentiedintherestrainingorder.

The statutory authority for a restraining order under 21 U.S.C. § 853(e) is broad and includes

authority to direct a defendant to repatriate property subject to forfeiture. See § 853(e)(4). As noted

in Section V in this chapter, MLARS and OIA should be consulted prior to seeking issuance of such

an order.

A.3 Criminal seizure warrant

Criminal seizure warrants may be less helpful in the foreign enforcement context than restraining

orders. The legal authority for the issuance of a criminal seizure warrant against foreign-based

property is not explicit: 21 U.S.C. § 853(f) authorizes an AUSA or other trial attorney to obtain

a seizure warrant from the court in the same manner as a search warrant under Federal Rule of

Criminal Procedure 41, and § 853(l) provides that a federal court has “jurisdiction to enter orders

as provided in this section without regard to the location of any property which may be subject to

forfeiture” (emphasis added). Also, § 853(f), which governs issuance of criminal seizure warrants,

is not as broad as the corresponding authority for civil seizure warrants under 18 U.S.C. § 981(b).

Section 853(f), for example, provides that criminal seizure warrants may be obtained only if it appears

that a restraining order would be inadequate to preserve the availability of the property for forfeiture.

A general or “generic” description of assets, such as “all property of the defendant located in Switzerland” will probably

not satisfy the particularity requirement for probable cause under the Fourth Amendment. Prosecutors should contact OIA

iftheyintendtorelyontheforfeitureallegationintheindictmentfortheirprobablecausending,assomecountries,such

asCanada,donotndthistobesucientforpurposesofseekingassetrestraintonbehalfoftheUnitedStates.

21 U.S.C. § 853(e) also provides for ex parte temporary restraining orders of short duration and pre-indictment restraining

orders upon notice and an opportunity for a hearing. Prosecutors may want to discuss these options with MLARS in the

context of the facts of their case.

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Asset Forfeiture Policy Manual 2023  8-5

Moreover, the use of a criminal restraining order rather than a criminal seizure warrant does not

raise the question of whether a U.S. district court has the authority to issue an extraterritorial seizure

warrant pursuant to Rule 41(b)—beyond the express authorization to issue warrants for foreign-based

property in domestic and international terrorism investigations under Rule 41(b)(3).

Alternatively, it may be advisable to obtain a criminal and civil seizure warrant in the same

applicationsothatthecourt’sextraterritorialjurisdictionisclearandunassailable,andbecauseone

may be more readily enforceable than the other.

In addition, in executing U.S. requests for assistance, foreign governments generally obtain orders

under foreign law rather than directly enforcing a seizure warrant or restraining order issued by a U.S.

court.Thus,aforeignnation’sdeterminationtosecurepropertyunderforeignlawseldomturnson

whether the United States obtained a seizure warrant versus a restraining order, and the United States

may be unable to meet the requirement for a seizure warrant under Rule 41 to show that a restraining

orderpursuantto§853(e)wouldnotbesucienttopreservethepropertypendingforfeiture.

B. Civil (in rem) forfeiture cases

According to Justice Manual (JM) § 9-13.526,

prosecutorsshallconsultwithOIAbeforelinganin

rem forfeiture action based on 28 U.S.C. § 1355(b)(2). A growing number of jurisdictions can enforce

civil forfeiture judgments (often referred to as non-conviction-based forfeiture judgments), due in

part to expanding international standards, particularly where a perpetrator is unavailable by reason of

death,ight,orabsence.However,criminalforfeitureismorebroadlyrecognizedandprosecutors

shouldrstpursuethecriminalforfeitureofassetslocatedabroadwherepossible.OIAandMLARS

can provide guidance regarding anticipated assistance from the foreign country where the assets are

located.

If civil forfeiture is pursued, there are at least three options for obtaining a probable cause

determination: (1) a warrant of arrest in rem, (2) a seizure warrant, and (3) a restraining order.

B.1 Warrant of arrest in rem

Prosecutors may obtain a warrant of arrest in rem from the district court after a civil forfeiture

complainthasbeenled.RuleG(3)(b)(ii)and(c)(iv)oftheSupplementalRulesforAdmiraltyor

MaritimeClaimsandAssetForfeitureActions(SupplementalRules)requireaprobablecausending

by a judge or magistrate judge before any warrant of arrest in rem is issued for property that is not

already in the custody of the United States. The Supplemental Rules also provide for sending the

warrant to a foreign country if the property is located abroad. Some countries do not recognize civil

forfeiture, however, and may not assist in a civil case.

B.2 Civil seizure warrant

Another option is to obtain a civil seizure warrant for the property pursuant to 18 U.S.C. § 981(b)(2)

in the same manner as provided for a search warrant under the Federal Rules of Criminal Procedure.

Suchawarrantrequiresandingofprobablecauseandmaybeobtainedonanex parte basis.

See the discussion in Sec. III.B.2 in this chapter and 18 U.S.C. § 981(b) (providing express authority for issuance of civil

seizure warrants for property located outside the United States).

See Justice Manual (JM).

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18 U.S.C. § 981(b) applies to all property subject to civil forfeiture under both § 981(a) (the forfeiture

statute applicable to most federal crimes) and any other forfeiture statute containing language

incorporating the procedures of Title 18, Chapter 46 of the United States Code, such as 18 U.S.C.

§1594(forfeitureprovisionsforhumantracking),21U.S.C.§881(a)(thecivilforfeiturestatutefor

drugoenses),and8U.S.C.§1324(b)(thecivilforfeiturestatuteforthesmugglingorharboringof

illegalaliens).Accordingly,§981(b)providesameansforobtainingaprobablecausendingunder

the vast majority of federal civil forfeiture statutes. However, where a given civil forfeiture statute

does not incorporate § 981(b), the prosecutor will have to identify an alternative statutory basis for

obtainingapre-complaintndingofprobablecauseofforfeitabilityastotheforeignpropertysought

to be forfeited.

In seeking a civil seizure warrant generally, it may be helpful to explain to the magistrate or judge

the statutory scheme authorizing federal courts to order the seizure of assets in a foreign country. A

court has the authority to issue seizure warrants for assets located in a foreign jurisdiction pursuant

to 18 U.S.C. § 981(b)(3). Section 981(b)(3) provides that a seizure warrant may be issued by a

“judicialocerinanydistrictinwhichaforfeitureactionagainstthepropertymaybeledunder

[28U.S.C.]section1355(b),andmaybeexecutedinanydistrictinwhichthepropertyisfound,or

transmitted to the central authority of any foreign state for service in accordance with any treaty or

other international agreement” (emphasis added). Pursuant to 28 U.S.C. § 1355(b), a forfeiture action

may be brought in any district court where any of the acts or omissions giving rise to the forfeiture

occurred, even as to property located in a foreign jurisdiction.

One concern about obtaining such a seizure warrant is that 18 U.S.C. § 981(b) could be interpreted

as incorporating all of the provisions of Federal Rule of Criminal Procedure 41, which, in turn,

might require that the warrant be executed within 14 days. However, § 981(b)(3) states that,

notwithstanding the provisions of Rule 41(a),

a seizure warrant may be “transmitted to the central

authority of any foreign state for service in accordance with any treaty or other international

agreement.”Thus,therequirementsofboth§981(b)(3)andRule41arecompletelysatisedonce

a seizure warrant issued under § 981(b) has been transmitted for service in a formal request to the

foreign country through OIA. Prosecutors attempting to obtain seizure warrants for these purposes

areencouragedtorstconsultwithMLARSandOIA.

B.3 Restraining order

Finally,whetherornotacomplainthasbeenled,theUnitedStatesmayaskthecourttoissuea

restraining order pursuant to 18 U.S.C. § 983(j). A restraining order may be issued on an ex parte

basis. Temporary restraining orders may only be issued upon a showing of probable cause—usually

Prior to the 2002 Amendments to Federal Rule of Criminal Procedure 41, section (a) addressed the jurisdictional reach

of Rule 41 search warrants, which, arguably, was limited to locations within the United States. The Rule 41 reference

in 18 U.S.C. § 981(b), added by the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Pub. L. 106-185, Apr. 25,

2000,114Stat.202,reectsexpressCongressionalintenttogiveU.S.courtsjurisdictiontoissueseizurewarrantswith

anextraterritorialreach.After2002,Rule41(a)containsscopeanddenitionsprovisionsnotrelevantforjurisdictional

reach,making§981’sreferencetoRule41confusing.

Inparticular,prosecutorsshouldconsidertheirdistrict’spolicyonwhetherexecutionofaseizurewarrantissatisedupon

transmission to OIA rather than a foreign authority. If transmission to a foreign authority is required, steps will need to

be taken to ensure that MLA and other requests are prepared (and sometimes translated) before the seizure warrant is

obtained.

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intheformofanadavitsubmittedalongwiththeapplicationfortheorder.

Thus, the issuance of

atemporaryrestrainingorderwillconstitutetheprobablecausendingrequiredtosupporttheMLA

request.

C. Parallel civil and criminal cases

Often prosecutors may preserve assets for forfeiture by initiating both civil and criminal forfeiture

actions against property located abroad and then staying the civil proceeding pursuant to 18 U.S.C.

§ 981(g)(1) until the conclusion of the parallel criminal proceedings. This approach will preserve a

choice of options for restraining assets abroad should the criminal forfeiture fail for any reason.

IV. Securing Notice Abroad

In both civil and criminal forfeiture proceedings involving assets overseas, the United States is

required to provide notice by publication; this may occur on forfeiture.gov

,thefederalgovernment’s

forfeiture site.

Publishingnoticeonlineprovidesmoreeective(andcost-ecient)noticethan

newspaper publication because the notice is available 24 hours a day, reachable worldwide by anyone

with internet access, and searchable by use of search terms. Therefore, in the absence of a compelling

reason to use print publication, online publication should be considered as the norm and print

publication as the exception for notices involving assets overseas.

Published notices on forfeiture.gov are limited to English at this time. Depending on the facts of the

case, it may be appropriate to publish notice in a newspaper of general circulation in the country in

which the assets are restrained or seized, or via legal notices, in the appropriate foreign language, in

the country in which known potential claimants are located. Publication abroad should be requested

in a manner and format that complies with the requirements of domestic publication in the United

States and, as much as is possible, in the manner requested by the foreign government providing

assistance with the publication. Some foreign governments will assist with publication, while other

governments require the United States to make its own arrangements. In some instances, U.S.

lawenforcementocersorDepartmentattachésstationedinforeigncountrieswillarrangefor

publication. Some foreign governments will not assist the United States with publication but still

require that the United States obtain governmental permission before publishing in their jurisdictions.

Other countries insist that there be no publication at all within their borders. Where foreign

publication does occur, the United States typically pays the costs of publication. Prosecutors and

investigatorsshouldconsultMLARStoascertaintheforeigngovernment’spreferencesregardingthe

publication of notice within its borders before attempting publication in the country.

Similarly, foreign countries handle direct forfeiture notice to individuals and entities within their

bordersdierently.SomecountriesrequirenoticebyMLArequest,someallownoticebyFedExor

mail,andsomerequireotherinformalnotication.ProsecutorsshouldcontactOIAbeforeproviding

forfeiture notice to individuals and entities abroad.

18 U.S.C. § 983(j)(3); see also United States v. Melrose E. Subdiv., 357 F.3d 493, 501 (5th Cir. 2004) (applying the

probable cause requirement in United States v. Monsanto, 491 U.S. 600 (1989), to 18 U.S.C. § 983(j)(1)(A)).

See Rule G(4) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (Supplemental

Rules) and Federal Rule of Criminal Procedure 32.2(b)(6). In some countries, prosecutors may be required to take

additionalstepstosecurenotice.ProsecutorsshouldconsultMLARSandOIAforcountry-specicguidance.

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V. Consultation with MLARS and OIA when Seeking Repatriation of

Forfeitable Assets Located Abroad

In cases where a foreign government has restrained or seized assets based on a formal U.S. request,

prosecutors and investigators must consult MLARS and the OIA attorney handling the case before

seeking repatriation of restrained or seized assets. MLARS, in consultation with OIA, is usually

aware of any foreign legal constraints on the repatriation of forfeitable assets as well as any sensitivity

about repatriation on the part of the foreign government. Repatriation of frozen assets also generally

requiresthatanyforeignrestraintorseizureorderbeliftedormodied,asneeded,whichcanonly

be done with the consent of, and action by, the appropriate foreign country. In some cases, resolution

oftheU.S.forfeitureactionalonemaynotbesucientcauseforliftingtheforeignrestraint;for

example, the seizure or restraint may remain in place pending the outcome of a related prosecution in

jurisdictions having mandatory prosecution laws. See Section VIII in this chapter.

Further,beforeseekinganordercompellingtherepatriationofspecicassetspursuantto21U.S.C.

§ 853(e)(4), federal prosecutors and investigators should always consult with MLARS and OIA

before negotiating or ratifying an agreement with a defendant to repatriate criminally derived

assets from abroad, even as to property that is not seized or restrained by the foreign government.

This consultation requirement exists for several reasons. First, the property in question may be

subject to domestic proceedings in the foreign jurisdiction. Second, certain countries deem another

government’seortstorepatriateassetslocatedintheirjurisdictions—eventhevoluntaryrepatriation

of assets by the defendant or owner—a violation of their sovereignty, and in rare instances, these

nationsmayconsideranypersonwhoinstigatesorisinvolvedintheeorttorepatriatetobeinvolved

incommittingacriminaloense,suchasmoneylaundering.Similarly,manycountriesmaynot

object to a negotiated voluntary repatriation of assets and may allow such transfers to occur pursuant

to a plea agreement or settlement, but object to court-ordered, non-voluntary repatriations because

theyregardtherepatriationorderasa“coercivemeasure”thatviolatesthepropertyowner’scivil

rights under their domestic law. Other countries take the position that a failure to inform them of

forfeitable assets located in their jurisdiction is a violation of applicable treaty obligations. Finally, in

matters in which the United States previously has asked a foreign government to restrain an asset, a

voluntaryrepatriationbythedefendantwillrequiretheliftingormodicationoftheforeignrestraint

of seizure, which, although legally permissible, may subject the foreign nation to unintended legal

liabilitiesunderitslaw,suchasattorneys’fees.

VI. Approval Process for 18 U.S.C. § 981(k) Seizure from Correspondent Bank

Account

18 U.S.C. § 981(k) authorizes the United States, in a civil forfeiture action, to constructively restrain,

seize, and forfeit funds on deposit in foreign bank accounts located abroad by restraining, seizing, and

forfeiting an equivalent amount of funds from a correspondent or interbank account held in the United

Statesbytheforeignnancialinstitutionwheretherelevantforeignbankaccountismaintained.Itis

irrelevant for purposes of § 981(k) whether the tainted funds on deposit in the foreign bank account

evertransitedthroughtheforeignbank’sU.S.correspondentaccountthatissubjecttothe§981(k)

forfeitureeort.Thus,§981(k)canbeusedtoconstructivelyrestrain,seize,andforfeitfundson

deposit abroad without resort to an MLA request, other treaty, or letter rogatory request.

Letters rogatory are the customary method of obtaining assistance from abroad in the absence of a treaty or executive

agreement. See the DepartmentofState’sPreparationofLettersRogatory page.

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Nonetheless, the potential use of § 981(k) raises important policy considerations, and various

U.S.ocialsshouldhaveanopportunitytocloselyreviewthe§981(k)requestandconsiderthe

ramicationsofgrantingtherequest.Approvalauthorityfortheuseof§981(k)restswiththeChief

ofMLARS,inconsultationwiththeappropriateOIA,Treasury,andDepartmentofStateocials.

MLARS is responsible for coordinating the approval process and must approve the use of this

provision in writing. MLARS will grant this approval only in extraordinary cases.

Thus, prosecutors should seek written approval to use § 981(k) well in advance of any attempt to

restrainorseizeassetsfromaforeignbank’scorrespondentaccountsintheUnitedStates.Sample

§ 981(k) approval requests may be obtained from MLARS. MLARS will approve requests for

authoritytouse§981(k)asthebasisforconstructivelyforfeitingfundsondepositinaforeignbank’s

correspondentaccountsonlyiftherearenootherviablealternativemeansofeectingforfeitureof

the tainted funds in the foreign bank account. Therefore, it should be considered only as a last resort.

MLARS will not approve an application simply because it is deemed more expedient than using an

MLA request, other treaty, or the letters rogatory mechanism. Accordingly, MLARS will approve

§ 981(k) requests only in limited cases, including where there is:

• no applicable treaty, agreement, or legal process in the foreign nation that would allow it to

restrain, seize, or forfeit the target assets for the United States;

• atreatyorotheragreementinforce,buttheforeignnationdoesnotrecognizetheU.S.oense

that gives rise to forfeiture;

• a treaty or other agreement in force, but in spite of its treaty obligation, the foreign nation

has previously failed to provide requested forfeiture assistance, or provided untimely or

unsatisfactory forfeiture assistance;

• a treaty or other agreement in force, but the foreign nation has no domestic legislation

authorizing it fully to execute U.S. forfeiture orders or judgments; or

• anothersignicantreasonthat,intheviewofthepolicystakeholders,justiesuseof§981(k)

(e.g., corruption within the foreign government may compromise the execution of a treaty

request, or the jurisdiction is unable to repatriate or return victim money to the United States

after forfeiture).

Once the Department grants prosecutors permission to seize funds from a U.S. correspondent account

pursuant to § 981(k), prosecutors should take special care to ensure that the restrained correspondent

account is limited to the amount of tainted funds traceable to, and on deposit in, the foreign bank

account.

VII. Lack of Administrative Forfeiture Authority for Overseas Property

Forfeiture of assets located abroad must be initiated as part of a judicial forfeiture action, either

civil or criminal. There is no authority under federal law to commence an administrative forfeiture

of property that is not physically located in the United States or its territories or possessions.

Administrative forfeiture can be pursued against property repatriated to the United States pursuant

to Section V in this chapter, however, assuming the property is otherwise eligible for administrative

forfeiture.

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VIII. Settlements, Plea Agreements, and Attorneys’ Fees

Federalprosecutorsshouldnotagreeto,orenterinto,anysettlementorpleaagreementaecting

assets located abroad, or make any representation concerning the availability of assets located abroad

topaythelegalfeesincurredbyacriminaldefendant,withoutrstspeakingtoMLARSabout

the consequences of such decisions.

In addition, prosecutors should be aware of limitations on

negotiatingwithfugitivesorpersonsghtingextradition.

The policy considerations that underlie

the consultation and approval requirements applicable to settlement and plea agreements, and to

agreementstouseforfeitablefundstopayforattorneys’fees,inpurelydomesticcasesapplywith

even greater force in the international context, particularly in light of the problems inherent in

releasing property held abroad. See Section V in this chapter.

In some cases, a U.S. request to restrain or seize foreign assets will prompt the initiation of a foreign

criminal investigation as many jurisdictions are required to prosecute all criminal matters brought

to their attention. Thus, it may not be possible to make any meaningful or binding commitments to

defendants or claimants regarding the disposition of funds restrained or seized abroad because the

property may remain restrained or seized, or even ordered forfeited, under foreign law following

conclusion of the U.S. forfeiture proceeding. Furthermore, the United States has no authority to bind

a foreign government regarding the disposition of assets ordered forfeited in any U.S. proceedings.

Inaddition,allpleaandsettlementagreementsshouldincludebroadwaiverandindemnication

languagethatprotectsboththeUnitedStatesandforeignocials,andtheirgovernments,fromany

liability arising from seizing, restraining, or forfeiting assets located abroad.

Finally, prosecutors should seek and, if possible, obtain from a defendant or claimant an agreement

tospecicallywaiveanyrighttoanawardofcostsorattorneys’feesunderforeignlaw.Prosecutors

should also seek from the defendant, and persons acting in concert with the defendant, an agreement

not to oppose enforcement of a U.S. forfeiture judgment abroad, any other legal action in any foreign

jurisdictionrelatingtoU.S.forfeitureeorts,oranyU.S.requesttoaforeigngovernmentforrelated

nancialrecords.

IX. Enforcement of Judgments

A. Foreign enforcement of U.S. judgments

SomenationsaordfullfaithandcredittoU.S.forfeiturejudgmentsaectingpropertywithintheir

borders. Before transmitting a U.S. forfeiture judgment via OIA to a foreign jurisdiction, prosecutors

shouldverifythatthejudgmentisnalunderU.S.law.Inotherwords,thejudgmentmustnolonger

be subject to direct appeal either because all opportunities for direct appeal have been taken and

exhaustedorthetimeforlingadirectappealhasexpired.Thesefactsshouldbenotedinthelegal

assistance request to the foreign authority for the jurisdiction in which the judgment is sought to be

enforced.

Prosecutors should be mindful that third parties who did not appear in the U.S. proceedings may

still be permitted to challenge enforcement of U.S. forfeiture orders under foreign law. Thus, when

transmitting a U.S. forfeiture judgment for execution by a foreign country, the request should

demonstrate to the foreign jurisdiction that third parties were provided or sent notice of the U.S.

See Chap. 11 in this Manual for a discussion of settlement considerations.

See Chap. 7, Sec. III in this Manual.

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forfeiture proceedings, had an opportunity to challenge the U.S. forfeiture, and either failed to avail

themselves of the right to contest the forfeiture or were unsuccessful in their challenges.

B. U.S. enforcement of foreign judgments and restraining orders

Pursuant to 28 U.S.C. § 2467, the United States can restrain and forfeit assets in connection with

foreign forfeiture matters. Requests for this type of this assistances come as MLA (or other legal

assistance) requests and are generally referred by OIA to MLARS for execution. The most common

mechanism under § 2467 for restraining or seizing assets is through the enforcement of a foreign

court-issued restraining order. Before a federal court may enforce a foreign restraining order or a

“foreignforfeitureorconscationjudgment”under§2467,the“AttorneyGeneralorthedesignee

of the Attorney General” must certify that enforcing the order is “in the interest of justice.” See

28 U.S.C. § 2467(b)(2) & (d)(3)(B)(ii). In 2006, the Attorney General delegated this authority to the

Assistant Attorney General for the Criminal Division (AAG).

That delegation order provides that

theAAGmaydelegatethecerticationauthorityto“anysubordinates.”

In October 2018, the AAG

delegatedtotheChiefofMLARSthecerticationauthorityfor(1)foreignforfeituresorconscation

judgments under § 2467(b)(2), where the amount involved is $5 million or less, and (2) all foreign

forfeiture restraining orders under § 2467(d)(3)(B)(ii).

Forforeignforfeituresorconscation

judgments under § 2467(b)(2) where the amount involved is more than $5 million, the AAG is the

certicationauthority.

X. International Sharing

The Attorney General (or a designee) may transfer any forfeited assets, as authorized by statute, to a

foreign country that participated directly or indirectly in the seizure or forfeiture of those assets.

is the policy of the United States in those forfeiture matters that do not involve victims to encourage

international asset sharing and to recognize all foreign assistance that facilitates U.S. forfeitures,

where consistent with U.S. law. International sharing is governed by 18 U.S.C. § 981(i), 21 U.S.C.

§ 881(e)(1)(E), and 31 U.S.C. § 9705(h)(2), and is often guided by standing international sharing

agreements.Itmayalsobethesubjectofbilateralcase-specicforfeituresharingarrangements

negotiated by MLARS and approved by the Department of State. The Attorney General or the

Secretary of the Treasury have the sole discretion to determine whether to share assets that have been

forfeited to the United States with a foreign government. The Secretary of State must also concur in

the decision, and Congress may, in certain circumstances, veto it. An April 1992 international sharing

memorandum of understanding (MOU) among the Department, Treasury, and Department of State

expresslyprohibitsinvestigatorsorprosecutorsfrommakingrepresentationstoforeignocials“that

assets will be transferred in a particular case, until an international agreement and commitment to

transfer assets have been approved by the Secretary of State and the Attorney General or the Secretary

of the Treasury.”

See Attorney General Order No. 2820-2006: Delegation to the Assistant Attorney General for the Criminal Division

Certain Authority Related to Foreign Forfeiture Judgments (May 9, 2006).

Id.

Theamountinvolvedforcerticationpurposesshouldbedeterminedbasedontheexpectedfair-marketvalueoftheassets

unless the amount of the forfeiture judgment itself (or expected judgment) is under $5 million. See Chap. 11, Sec. I.A.2 in

this Manual.

AG Guidelines, Sec. V.E.

Chapter 8: International Forfeiture

8-12  Asset Forfeiture Policy Manual 2023

In cases involving victims, prosecutors and federal law enforcement agencies should be mindful

that any international sharing can occur only after all victims are compensated. Domestic equitable

sharing can occur only after victims have been compensated in full, and after international sharing is

completed.

Moreover, in all cases, both international and domestic sharing come from the net sale proceeds of

forfeited property following the deduction of all case-related expenses. Thus, federal prosecutors and

investigators should refrain from making any representations, to representatives of either a foreign

government or a domestic law enforcement agency that provided assistance, regarding any sharing

tied to the forfeiture of assets located abroad or any domestic forfeiture accomplished with the

assistance of a foreign government.

Foreigngovernmentsarenotrequiredtofollowaspecicprocessforsubmittingasharingrequest

to the United States. This may be done pursuant to a treaty or sharing agreement, or, less formally,

through other diplomatic or law enforcement channels. Prosecutors and law enforcement agencies

should recommend international sharing to MLARS or their respective law enforcement agencies

whenever they have received foreign assistance that facilitated the forfeiture of an asset in a U.S.

case, particularly as to assets located in the United States. Upon completion of a forfeiture proceeding

andtheentryofanalorderofforfeitureachievedwiththeassistanceofaforeigngovernment,the

seizing agency shall submit a memorandum summarizing the sharing recommendation to the federal

prosecutor assigned to the case, who should subsequently send a formal sharing recommendation to

MLARS. For assets forfeited administratively, the seizing agency is responsible for submitting the

recommendation to MLARS.

TheDeputyAttorneyGeneral(DAG)delegatedauthoritytotheAAGtomakenaldeterminations

on uncontested international sharing proposals involving assets valued at more than $5 million. The

DAGalsodelegatedauthoritytotheChiefofMLARStomakenaldeterminationsonuncontested

international sharing proposals involving forfeited assets valued at $5 million or less. If the seizing

agency,U.S.Attorney’sOce(USAO),andMLARSdonotagreeonthesharingallocations,the

DAGmakesthenaldecision.

To avoid delays, it is advisable to make the international sharing recommendation as soon as

practicable,orataminimum,immediatelyafterthenalorderforfeitingtheforeignassetsis

obtained.Attheearliestpossibletimeanddenitelybeforetheassethasbeenliquidated,theseizing

agency should note in the Consolidated Asset Tracking System (CATS) that a particular asset might

be, is, or will be subject to an international sharing request or recommendation. In order to place

a “hold” on an asset intended for international sharing, the seizing agency must either (1) select

“international sharing anticipated” when creating the standard seizure form or (2) enter a sharing

recommendation in the international sharing module. Either of these actions will prevent the asset

from being shared domestically until MLARS enters a pre-approval or approval ruling.

In cases implicating the Treasury Forfeiture Fund (TFF), the seizing agency—for example, Internal

Revenue Service-Criminal Investigations (IRS-CI), U.S. Secret Service (USSS), U.S. Customs

and Border Protection (CBP), or U.S. Immigration and Customs Enforcement-Homeland Security

Investigations (ICE-HSI)—is responsible for submitting a sharing recommendation to TEOAF.

However,theseizingagencyshouldrstconsulttheAUSAorothertrialattorneyresponsiblefor

the case. In these cases, the Director of TEOAF approves the sharing recommendations. MLARS

and TEOAF also obtain concurrence from each other and the Department of State for each proposed

Chapter 8: International Forfeiture

Asset Forfeiture Policy Manual 2023  8-13

sharing transfer to a foreign government after it is approved by their respective designees. This

interagency approval and consultation process may be lengthy.

If forfeitable assets located overseas are forfeited under U.S. law, repatriated, and placed into

theDepartment’sAssetsForfeitureFund(AFF),theymaybeeligiblefordomesticsharingwith

participating state, local, and tribal agencies. However, funds shared with the United States by the

foreign government that have not been forfeited under U.S. law may not be eligible for domestic

equitable sharing.

Nevertheless, if U.S. prosecutors or investigators assisted in a foreign case that

resulted in a foreign forfeiture, they should contact MLARS to determine if it might be fruitful for

MLARS to submit a sharing request to that country, as these funds still may be deposited into the

AFF. MLARS, in coordination with OIA, submits all requests to foreign countries for asset sharing.

Similarly, funds shared with the United States by a foreign government that have not been forfeited

underU.S.lawmaynotbeeligibleforvictimremissionorrestoration,orforcondentialinformant

awards under 28 U.S.C. § 524(c)(1)(C). However, depending on the circumstances of the case, it

may be possible to employ other mechanisms for using such shared funds to make victims whole.

U.S. prosecutors or investigators assisted in a foreign case involving victims that resulted in a foreign

forfeiture,theyshouldalsocontactMLARS’InternationalUnitforguidanceonpotentialalternative

mechanisms and submission of a sharing request to that country.

See Chap. 15, Sec. VI in this Manual.

See footnote 2 in Chap. 14, Sec. I in this Manual.

Asset Forfeiture Policy Manual 2023  9-1

Chapter 9:

Third-Party Experts in Forfeiture Cases

I. Introduction

In the typical forfeiture case where assets have been restrained criminally or civilly, the U.S. Marshals

Service (USMS) is capable of managing and selling assets either with its own resources or under its

existing property management contracts without resort to appointment of third-party experts.

However, in certain federal forfeiture cases involving complex assets, business enterprises, or

international seizures, the Department of Justice (Department) may use trustees, business monitors,

property managers, custodians, or other third parties (together “third-party experts”).

Both

specicandgeneralstatutoryauthorityexistsfortheappointmentofathird-partyexpertinfederal

forfeiture cases. See 18 U.S.C. § 983(j), civil forfeiture; 18 U.S.C. §§ 1963(d)(1) & (e), criminal

forfeiture; 21 U.S.C. § 853(e) & (g), criminal forfeiture; see also 18 U.S.C. § 1956(b)(4); 18 U.S.C.

§§ 1964(a) & (b).

Becauseanexpert’srolemayvarybasedonthefactsofeachcaseandthenatureoftheassetor

business entity involved, there is no single method for selecting third-party experts in every case. Due

to the cost and labor intensive nature of monitoring and administering third-party expert assistance,

andthepotentialforlitigationextendingbeyondentryofanalorderofforfeiture,third-partyexperts

should be appointed only when absolutely necessary, after all other alternatives have been considered

andrejected,andwherethereisclearlysucientnetequityintheasset(s)tocoverthetotalestimated

costofusingthethird-partyexpertandanynecessarysta.

As a general rule, the government should avoid seizing or forfeiting operating businesses and

other complex assets that will require third-party expertise or supervision or continuing capital

investment from the Assets Forfeiture Fund (AFF) to remain viable, competitive, and marketable.

The government should also generally avoid the assumption of direct or contingent liabilities.

In extremely rare cases, compelling law enforcement or policy considerations may warrant the

appointmentofthird-partyexpertsdespiteinsucientequityinthebusinessenterpriseorcomplex

assets to cover the costs.

Chapter9doesnotapplytotheresponsibilityorauthorityofindependentbankruptcytrustees,nancialinstitution

receivers, and foreign liquidators not otherwise directly engaged in forfeiture case activities on behalf of the government.

U.S.Attorney’sOces(USAOs)andagenciesinterestedinusingtheservicesofatrusteeorclaimsadministratorto

support the remission and restoration processes should refer to Chap. 14, Sec. II.A.4 in this Manual.

In certain instances, procurement of the services not covered under existing contracts may require a new solicitation under

Federal Acquisition Regulations (FAR). See 48 C.F.R. Part 1.000 et seq.

In cases where the lead law enforcement agency is a Department of the Treasury (Treasury) or Department of Homeland

Security(DHS)agency,thefederalprosecutororinvestigatorshouldconsulttheTreasuryExecutiveOceforAsset

Forfeiture (TEOAF) for guidance.

Chapter 9: Third-Party Experts in Forfeiture Cases

9-2  Asset Forfeiture Policy Manual 2023

 

A. Consider alternatives to a third-party expert

Thegovernmentshouldgenerallyselecttheleastintrusiveandmostcost-eectivemeansof

protectingthegovernment’sinterestswhileachievingasuccessfulforfeiture.Alternativestothe

appointment of a third-party expert include:

• obtainingaprotectiveorrestrainingorder,perhapsprovidingforUSMSoversight,thatspecies

the consequences for violations of the order (such as the appointment of a third-party expert in

addition to a contempt citation);

• appointment of a business or property manager through an existing contract;

• restraintorseizureofspecicvaluableassets,equipment,orinventory(restraintispreferred)in

lieu of the entire business;

• oversight or management by state or local regulatory agencies;

• lingalis pendens;

• interlocutory sale;

• foreclosure by a lienholder;

• retention of a professional, upon the consent of the business and to be paid at its own cost,

tooverseebusinessoperationsandnanceswhileensuringagainstfuturecriminalviolations

during the pendency of the forfeiture action;

• enforcement of state or local nuisance or business regulatory laws;

• seizure of property by federal or state tax authorities to satisfy outstanding tax obligations; and

• securing a performance bond.

 



Service before seeking the appointment of a third-party expert

Beforeseekingappointmentofathird-partyexpert,theU.S.Attorney’sOce(USAO)mustconsult

with the Money Laundering and Asset Recovery Section (MLARS) and the USMS. The USAO must

alsoconsultwiththeAssetForfeitureManagementSta(AFMS)beforeseekingappointmentofa

third-party expert in a matter in which the USAO anticipates extensive costs.

Appointment of a third-party expert will occur only when clearly necessary and after all other

alternatives have been considered and rejected. In rare cases, compelling law enforcement or policy

considerations might warrant appointment of a third-party expert even though there is not or may not

besucientequityinthebusinessenterpriseorcomplexassettocoverthecostsofemployingthe

third-party expert. In such cases, the USAO must thoroughly document for MLARS the reasons for

rejecting all alternatives to the appointment of a third-party expert.

Chapter 9: Third-Party Experts in Forfeiture Cases

Asset Forfeiture Policy Manual 2023  9-3

 

As set forth above, prior to appointment, the government will determine the purpose of and need

for the assistance (i.e., to prevent either the dissipation of the asset or the enterprise from engaging

in illegal activity, or both) as well as its goals. The theory of forfeiture under which the property is

seized and the nature of the business itself will inform the duties and goals of the third-party expert.

For example, if the business subject to forfeiture was acquired with proceeds of illegal activity and is

self-supporting or is subject to forfeiture as a substitute asset, the goal of the government generally

is to prevent dissipation of the business and its assets. Monitorship or trusteeship of such an asset

usuallyrequireslessoversightandmoreoftenresultsinaprotableforfeiturethantheforfeitureofan

enterprise used to facilitate illegal activity. The restraining order or other order appointing a third-

partyexpertengagedbythegovernmentmustdenethedutiesandgoalsofthethird-partyexpert.

Thequalicationsrequiredofathird-partyexpertwillvarydependingonthenatureandpurposeof

the contemplated third-party expert assistance. For example, if the main purposes of the assistance

aretomanageabusinessandpreventdissipationofitsvalue,thequalicationswilllikelyinclude

a business management and accounting background as well as expertise in the particular industry

or specialized operational activity. It will often be necessary for the third-party expert to have

qualicationsforcomplyingwithvariousreportingandlegalrequirements(e.g., taxes, securities,

environmental) pertaining to the business.

The appointment order should require the third-party expert to contact and coordinate with the

designated prosecutor or supervisory case agent if the third-party expert detects or suspects ongoing

criminal activity or evidence of past criminal conduct.

IV. Trustee, Monitor, Manager, and Custodian Expenses

In general, the government should not enter into a contract to pay for the services of a third-party

expert from the AFF unless a determination is made that forfeiture is likely and the business revenues

or proceeds from the eventual sale justify those costs in addition to any assumed and contingent

liabilities and disposal costs.

Asset Forfeiture Policy Manual 2023  10-1

Chapter 10:

Use and Disposition of Seized and Forfeited Property

I. Management and Disposal of Seized Assets

A. Assets seized by Department of Justice law enforcement agencies

The U.S. Marshals Service (USMS) has primary authority over the management and disposal of

assets in its custody that have been seized for forfeiture or forfeited by the law enforcement agencies

of the Department of Justice (Department) and, by agreement, certain other federal law enforcement

agenciesthatparticipateintheDepartment’sAssetForfeitureProgram(Program).

The USMS

bears responsibility for arrangements for services or commitments pertaining to the management and

disposition of such property. The Attorney General has delegated the authority to dispose of forfeited

real property and to warrant title to the USMS Director. See 28 C.F.R. § 0.111(i); see also Chapter 4,

Section I.D

’sdiscussionoftitleconveyanceinthisManual.

B. Assets seized by Department of the Treasury and Department of Homeland

Security law enforcement agencies

Property custodians (generally contractors) operating under Department of the Treasury (Treasury)

guidelines handle management and disposal of assets seized by agencies within Treasury and other

agencies included by agreement in the Treasury Forfeiture Fund (TFF),

including certain agencies

moved from Treasury to the Department of Homeland Security (DHS).

However, the USMS serves

as the property custodian for virtual currency seized by TFF agencies (a role it also performs for

agenciesparticipatingintheDepartment’sAssetForfeitureProgram).TheTreasuryagencycase

agentortheassetforfeiturecoordinatorintheagency’seldocegenerallyservesastheinitialpoint

of contact for issues relating to custody, management, and disposal of seized property.

C. Coordination for seizure planning, custody, and disposition decisions

In a federal case involving Department seizing agencies, and as soon as possible after the

identicationofassetsotherthancashforseizureorforfeiture,theU.S.Attorney’sOce(USAO)or

agentinchargeoftheeldoceresponsibleforanadministrativeforfeiturecaseshouldcontactthe

USMS to discuss seizure planning. For such cases involving Treasury seizing cases, USAOs should

contact Treasury. See Chap. 1, Secs. I.A–D in this Manual.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has primary authority over the custody and

dispositionofrearmsandammunitionforfeitedbyDepartmentagencies.DepartmentProgramparticipantsare

ATF, the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the USMS, the Money

Laundering and Asset Recovery Section (MLARS), the Organized Crime Drug Enforcement Task Force (OCDETF),

U.S.Attorney’sOces(USAOs),andtheAssetForfeitureManagementSta(AFMS).Non-DepartmentProgram

participants are the Department of State, Bureau of Diplomatic Service (DSS), Department of Defense (DOD), Defense

CriminalInvestigativeService(DCIS),FoodandDrugAdministration’sOceofCriminalInvestigations(FDA-CI),

U.S.DepartmentofAgriculture’sOceoftheInspectorGeneral(USDA-OIG),andtheU.S.PostalInspectionService

(USPIS).

For a list of agencies participating in the TFF, see 31 U.S.C. § 9705(o).

DHS participating agencies are U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement-

Homeland Security Investigations (ICE-HSI), U.S. Secret Service (USSS), and U.S. Coast Guard.

Prosecutors should consult Treasury for procedures involving assets seized by Treasury agencies.

Chapter 10: Use and Disposition of Seized and Forfeited Property

10-2  Asset Forfeiture Policy Manual 2023

Before taking any property management or disposition action (e.g., making a commitment in a

settlement or plea agreement), the USAO or agency responsible for an administrative forfeiture

case should consult the USMS in cases involving Department seizing agencies (or Treasury, in

cases involving Treasury seizing agencies) to discuss any management or disposition issues. See

Chapter 11, Section I.B.2 in this Manual.

II. Use of Seized Property

A. Use of seized property is prohibited

Absentanorderofforfeitureordeclarationofanadministrativeforfeiturearmativelyvestingtitle

to seized property in the United States, the government does not have title to the property. Thus, any

use of property held pending forfeiture raises potential issues of liability and creates the appearance of

impropriety. Therefore, Department policy generally prohibits the use of property pending forfeiture.

Property under seizure and held pending forfeiture may not be used for any reason by government or

contractorpersonnel,includingforocialuse,untilanalorderofforfeitureisissued.Likewise,

government or contractor personnel may not make such property available for use by others,

including persons acting as substitute custodians, for any purpose, before completion of the forfeiture.

Any vehicles or other property being stored by a federal agency, or under an authorized substitute

custodial agreement with a state or local agency, must not be used by any party until the forfeiture is

completed and title of the asset has been transferred to that agency.

In limited circumstances, however, a prosecutor may seek court authority for the use of seized

property, after consultation with the USMS. This may be appropriate, for example, in situations

where the maintenance of the property requires use of equipment under seizure (e.g., to maintain a

ranch or business).

B. Pre-forfeiture sale of certain seized property

The Department favors pre-forfeiture sale of property (i.e., interlocutory sale) as a means of

preserving asset value and mitigating asset expenses for assets subject to volatility in valuation or

extreme management costs, assets requiring unique care or maintenance, assets that have unique

security or safety concerns, or assets that have other extenuating circumstances. Interlocutory sales

should be pursued upon agreement of the parties, including all known interested parties, or based

upon those conditions set forth in Rule G(7)(b) of the Supplemental Rules for Admiralty or Maritime

Claims and Asset Forfeiture Actions (Supplemental Rules).

The USAO shall consult with the seizing

agency and the USMS to determine the status of any petitions for remission before seeking a pre-

forfeiture sale of property pending judicial forfeiture. The USMS has primary authority over the

management and disposition of assets subject to interlocutory sale.

Proceedsfromanypre-forfeituresaleshallbepromptlydepositedintotheDepartment’sSeizedAssets

Deposit Fund (SADF).

In addition, prosecutors and agents must consult with MLARS before seeking an order for interlocutory sale of

cryptocurrency. See Chap. 2, Sec. V.B in this Manual for a discussion of the policy on interlocutory sale or pretrial

conversion of cryptocurrency.

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Asset Forfeiture Policy Manual 2023  10-3

III. Disposition of Forfeited Property and Funds

A. Forfeiture orders

The disposition of property forfeited to the government is an executive branch decision and not a

matterforthecourt.Consequently,preliminaryandnalordersofforfeitureshouldincludelanguage

directing forfeiture of the property to the government “for disposition in accordance with law.”

Inaddition,judicialordersofforfeitureshouldspecicallyaddressanythird-partyclaimsagainstthe

forfeitedpropertythatthegovernmentrecognizes.Iftheinterestsofclaimantswillbesatisedin

whole or in part by payments from the proceeds of a sale of property by the USMS (or Treasury), the

proposedforfeitureordershouldprovidespecicguidancefortheUSMS(orTreasury)concerning

these payments and, where possible, specify that these claims shall be paid only after the government

recovers its costs, and only up to the net amount realized from the proceeds of the forfeited property.

The proposed forfeiture order should also identify those persons or entities who received direct notice

of the forfeiture proceeding and expressly state that the interests of all persons who received notice

anddidnotleaclaimareextinguished.

The comptroller general has determined that judgments in excess of the proceeds of sale may be paid

fromTreasury’sJudgment Fund.

TheDepartment’sAssetsForfeitureFund(AFF)isavailableforthe

payment of valid liens and mortgages “subject to the discretion of the Attorney General to determine

the validity of any such lien or mortgage and the amount of payment to be made.” See 28 U.S.C.

§ 524(c)(1)(D). The USMS is authorized to pay a lien or mortgage in excess of the proceeds of sale

if the payment will facilitate the liquidation of the property and thus reduce the expenses of such

property’scontinuedcustody.USAOsandotherlitigatingunitsmustsubmitrequestsforapproval

of liens and mortgages in excess of the proceeds of sale to MLARS for approval. However, when

negotiating settlements with lienholders, USAOs should take care to limit recovery only to the

amount of net proceeds recovered from the real property, allowing the lienholder to preserve all

contractual rights to recovery against the contract-debtor.

B. Disposition of forfeited property in civil and criminal cases

The Attorney General has complete authority to dispose of forfeited property by “sale or any other

commercially feasible means,” without subsequent court approval. See 21 U.S.C. §§ 853(h) and

881(e)(1)(B); see also 18 U.S.C. §§ 1467(b), 1963(f), and 2253(b). This is generally called a

“forfeiture sale” of the property.

When a property or its owner is involved in criminal activity, forfeiture extinguishes all of the former

owner’srights,title,andinterestsinthatcriminallyderivedorcriminallyinvolvedasset,andvests

them with the government.

While the relation back doctrine in 21 U.S.C. § 853(c) provides that all

right, title, and interest in forfeitable property vests in the government upon the commission of the

criminalactgivingrisetotheforfeiture,thegovernment’sownershipinterestisnotconrmedtothe

worlduntilacourtentersanalorderofforfeiture.

Treasury’sBureauoftheFiscalService(BFS)managestheJudgment Fund.

The Department takes the position that 28 U.S.C. § 2001 does not apply to judicial forfeiture sales and no judicial

conrmationisrequired.

21 U.S.C. §§ 853(c) and 881(h); 18 U.S.C.§ 1963(c); see United States v. Grundy, 7 U.S. 337, 350–351 (1806); United

States v. 6124 Mary Lane Dr., San Diego, CA, No. 3:03-CV-00580, 2008 WL 3925074, *2 (W.D.N.C. Aug. 20, 2008).

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Because the forfeiture process vests title to the property in the government, when the government

conducts a forfeiture sale, it sells property it owns. The forfeiture statutes give the power to the

AttorneyGeneral,onbehalfoftheUnitedStatesasowner,todisposeoftheproperty.Afterthenal

order of forfeiture, the court has no involvement in the sale or disposal process.

C. Sale of forfeited property

Upon the successful completion of the forfeiture, the USMS shall promptly sell the property and

deposit the proceeds of the sale into the AFF. The property may not be sold and the proceeds of the

sale may not be deposited in the AFF if there is a pending owner or lienholder petition for remission

orapendingrequesttoplacethepropertyintoocialuse.

SeizingagenciesandtheUSAOshallpromptlynotifytheUSMSofallrelevantfactsaectingthe

forfeited property, including:

• outstanding bills, invoices, or pending requests for mitigation and remission;

• requests to transfer to federal, state, local, or tribal agencies;

• requestsforocialusebyDepartmentcomponents,ifknown;and

• appraisals not provided by the USMS.

Based on these and other relevant factors, the USMS shall promptly and appropriately dispose of the

property.

D. Disposition of forfeited funds

The USAO securing a forfeiture and the seizing agency are responsible for initiating the disposal of

funds forfeited to the government. In cases involving a Department seizing agency, the USAO and

theseizingagencyshouldprovidepromptnoticationtotheUSMSoftheevents,entertheforfeiture

decision and amount in the Consolidated Asset Tracking System (CATS), and provide the forfeiture

documentation to the USMS.

The USMS will promptly dispose of forfeited funds by transferring the

funds from the SADF to the AFF and entering disposal and collection data in CATS.

As discussed in Chap. 1, Sec. I.C.4 in this Manual, the Consolidated Appropriations Act of 2016

established—andtheU.S.VictimsofStateSponsoredTerrorismFundClaricationActof2019

amended—requirementsforthedispositionoftheproceedsofforfeitures,nes,andpenaltiesarising

from violations of the International Emergency Economic Powers Act (IEEPA)

or the Trading with

the Enemy Act (TWEA),

oranyrelatedcriminalconspiracies,schemes,orotherfederaloenses

that involve state sponsors of terrorism. For criminal matters, all funds and the net proceeds from

the sale of property from these violations must be deposited into the U.S. Victims of State Sponsored

Terrorism Fund (USVSST Fund

).Forcivilmatters,eectiveNovember21,2019,75%ofallfunds

and 75% of all proceeds from the sale of property must be deposited into the USVSST Fund.

ForcasesinvolvingassetsseizedbyaTreasuryagency,theUSAOshouldprovidepromptnoticationtotheTreasury

custodian for transfer to the TFF.

Pub. L. 114-113, Dec. 18, 2015, 129 Stat. 2242.

50 U.S.C. § 1701 et seq.

50 U.S.C. § 4301 et seq.

MLARS’USVSST Fund page has more information.

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Asset Forfeiture Policy Manual 2023  10-5

Prosecutors should consult MLARS as early as possible in any case that involves a state sponsor of

terrorism and may require deposits to the USVSST Fund.

IV. Purchase or Personal Use of Forfeited Property by Department of Justice

Employees

Regulations prohibit Department employees from using or purchasing, either directly or indirectly,

anypropertyifthepropertyhasbeenforfeitedtothegovernmentandoeredforsalebythe

Department or its agents, absent prior approval by an agency designee. See 5 C.F.R. § 3801.104. In

addition, Department employees are prohibited from using property forfeited to the government that

has been purchased, directly or indirectly, by a spouse or minor child. Id.

This policy serves a twofold purpose. First, it ensures that there is no actual or apparent use of

inside information by employees wishing to purchase forfeited property. Second, the policy protects

theintegrityoftheProgrambyprecludingeventheappearanceofaconictofinterestthatwould

otherwise arise should a Department employee purchase forfeited property.

A written waiver of these restrictions may be granted by the USMS, in consultation with the agency

designee, upon determination that, in the mind of a reasonable person with knowledge of the

circumstances, the purchase or use of the asset by the employee will not (1) raise a question as to

whethertheemployeehasusedtheirocialpositionornonpublicinformationtoobtainorassistinan

advantageous purchase, and (2) create an appearance of the loss of impartiality in the performance of

theemployee’sduties.TheagencydesigneemustleacopyofthiswaiverwiththeDeputyAttorney

General (DAG).

Asset Forfeiture Policy Manual 2023  11-1

Chapter 11:

Settlements

I. General Policy

The Department of Justice (Department) encourages settlements to forfeit property to serve justice

and to conserve the resources of both the government and claimants.

TheDepartment’sdecisionmakerconsidersseveralbasiccriteriaindeterminingwhetheraproposed

settlement is appropriate, including whether:

• the litigation risks or other circumstances justify the settlement;

• the settlement employs forfeiture best practices;

• the settlement is consistent with overall Department policy and goals;

• the settlement is made merely to induce a criminal plea, or conversely, gives the appearance that

a defendant is avoiding or receiving a reduction in criminal penalties in exchange for agreeing to

the proposed forfeiture; and

• the economic analysis is sound.

A. Scope

A.1 Settlement

For purposes of this chapter, settlement means:

(a) In a criminal forfeiture case, a plea agreement with a criminal defendant regarding the

forfeiture or return of seized or restrained property; property not seized or restrained but

listed in the forfeiture allegation of the indictment, information, or in a bill of particulars;

or real property listed in an indictment, information, or subject to lis pendens under

state law; or an agreement to resolve a third-party claim in the ancillary proceeding in a

criminal case;

(b) Resolution of a civil judicial case or an administrative claim that was referred to a U.S.

Attorney’sOce(USAO);

to release property seized or restrained for forfeiture, or real property listed in an

indictment, information, or subject to lis pendens under state law, where the agreement

includes a provision for the payment of a sum of money to the federal government or a

See Chap. 7, Sec. III (negotiating with fugitives), and Chap. 8, Sec. VIII in this Manual.

The applicable net equity thresholds may be waived where forfeiture of a particular asset serves a compelling law

enforcement interest. See Chap. 1, Sec. I.C.3 in this Manual.

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federalagencyas,forexample,ane,penalty,orrestitutioninlieuofforfeiture;or

(d) A deferred prosecution agreement (DPA) or non-prosecution agreement (NPA) that

contains

(i) an agreement regarding the forfeiture or return of seized or restrained property;

property not seized or restrained but listed in the forfeiture allegation of the

indictment, information, or in a bill of particulars; or real property listed in an

indictment or subject to lis pendens under state law;

(ii) anagreementtoresolveaclaimledbyanyclaimantinacivilforfeiturecase;or

(iii) an agreement to release property seized or restrained for forfeiture, or real property

subject to lis pendens under state law, where the agreement includes a provision for

the payment of a sum of money to the federal government or a federal agency as, for

example,ane,penalty,orforfeiture.

For purposes of the above provisions, a settlement does not include an agreement to pay the claim of

a secured creditor, such as a mortgage or lien on real property, when (1) the secured claim has been

properly perfected in accordance with state or other law and (2) there is no dispute as to the validity

of the claim or the amount owed on the claim. Unless there is an agreement to pay a sum of money to

the government in lieu of forfeiture, as provided in Section I.A.1 in this chapter, a settlement also does

not include: (1) a declination of an agency referral, (2) a dismissal of a civil forfeiture complaint or an

amendment to a civil forfeiture complaint to dismiss claims as to certain assets, or (3) a dismissal of

propertyidentiedforforfeitureinanindictment,information,orbillofparticulars.

A.2 Amount involved

For purposes of this chapter, the amount involved means:

• In a criminal forfeiture case, the amount involved is the fair market value at the time of

settlement of the aggregate value of any property that has been seized, restrained, subject to

lis pendens

understatelaw,orspecicallyidentiedaspropertysubjecttoforfeitureinany

forfeiture count, allegation, or bill of particulars, including substitute assets. But the amount

involved does not include the amount of a forfeiture money judgment, unless there are

assets currently available that may be forfeited to satisfy the judgment. For example, if the

government has seized several assets and restrained other assets for the purpose of forfeiture

in connection with a criminal prosecution, and has also alleged in the indictment that the

defendant is liable for a $2 million forfeiture money judgment, for purposes of negotiating a

plea agreement with the defendant, the amount involved is the aggregate value of the assets

that have actually been seized or restrained, but does not include the $2 million unless it

In Department of the Treasury Forfeiture Fund (TFF) agency cases, consult with the Department of the Treasury

ExecutiveOceofAssetForfeiture(TEOAF)counselandtheTFFseizingagencyforadditionalguidance.

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appears that there are assets currently available that may be forfeited in satisfaction of the

judgment.

• In the ancillary proceeding in a criminal case, the amount involved is the fair market value of

the interest in the forfeited property claimed by the third party with whom the government is

attempting to reach a settlement.

• In a civil forfeiture case, the amount involved is the fair market value of an interest claimed

by the person with whom the government is attempting to reach a settlement. If the claimant

asserts an interest in more than one asset, the amount involved is the aggregate of those

interests. For example, if the defendant property is a dwelling with a fair market value of

$1.2 million, and the claimant is a lienholder asserting a $400,000 lien, for purposes of

reaching a settlement with the lienholder, the amount involved is $400,000. In the same

case, if the claimant is the owner who acknowledges the validity of the lien but contests the

forfeiture of the equity in the property, for purposes of reaching a settlement with the owner

the amount involved is $800,000. But if the claimant is the owner who also contests the

forfeiture of three other assets with a combined value of $350,000, the amount involved is

$1.15 million.

A.3 Amount to be released

For purposes of this chapter, the amount to be released means the value of the property at the time of

settlement that a claimant, defendant, or third party in an ancillary proceeding would recover or would

be permitted to retain.

A.4 Fair market value

For purposes of this chapter, the fair market value means the appraised value of the property at the

time of settlement less the amount of any outstanding costs, such as storage costs, mortgages, liens,

and unpaid property taxes.

B. General settlement principles

Prosecutors must observe the following principles when negotiating and structuring forfeiture

settlements.

B.1 Factual basis

Theremustbeastatutorybasisfortheforfeitureofthepropertyandsucientfactsstatedinthe

settlement documents or any related pleadings to show a nexus between the property subject to

forfeitureandtheoenseuponwhichtheforfeitureisbased.Forexample,becauseasubjectused

arearmtofacilitatethetransportation,sale,receipt,possession,orconcealmentofacontrolled

substance,therearmissubjecttoforfeitureunder21U.S.C.§881(a)(11).

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B.2 Consultation

Prosecutors must negotiate all settlements in consultation with the seizing agency

and with the

U.S.MarshalsService(USMS),whereappropriate,andincompliancewiththeUSAO’sapproval

requirements.

Theseizingagency’sinputisessentialtoreachasettlementbasedonacommon

understanding of the facts and circumstances surrounding the seizure. Settlements occasionally

require that administrative action be taken by the agency to implement those settlements, including,

on occasion, accepting a referral of the case back to the agency for administrative forfeiture of all or

some of the seized property. When a settlement involves complex assets, complex terms, or risk of

loss to the government, prosecutors should seek input from the USMS or the relevant Department

of the Treasury (Treasury) Forfeiture Fund (TFF) agency to determine any current and prospective

expensestoensurethatthesettlementisscallysoundfromthegovernment’sperspective,thatthe

settlement agreement adequately addresses ownership interests and title issues, and that the USMS or

the relevant TFF agency may carry out the terms of the settlement.

B.3 Recovery of investigative and other costs

In general, the government should not attempt to use a settlement to recover the costs of its

investigation. It may be appropriate in certain limited circumstances, however, to recover

extraordinary expenditures, such as funds needed to clean up environmental damage to the forfeited

property.

B.4 Status of administrative forfeiture

As outlined in Chapter 5, Section II.D in this Manual, before discussing any settlement, the

prosecutor and the investigating agent must determine what property, if any, the seizing agency

is presently processing for administrative forfeiture or has previously declared administratively

forfeited. Prosecutors may not reach agreements regarding the return of property that is the subject of

a pending administrative forfeiture proceeding unless the prosecutor confers with the seizing agency

and the seizing agency concurs with a request to suspend administrative forfeiture proceedings.

Property that has been administratively forfeited belongs to the government and, therefore, cannot be

disposed of as part of a plea agreement.

B.5 Disagreements

IftheUSMSorseizingagencydisagreeswiththeUSAO’srecommendedsettlementproposal,either

agency may refer the matter to the Chief of the Money Laundering and Asset Recovery Section

(MLARS) for resolution.

The agency to be consulted regarding the terms of the settlement may not be the “seizing agency.” For example, U.S.

Customs and Border Protection (CBP) is responsible for processing all seizures made by either CBP or U.S. Immigration

and Customs Enforcement-Homeland Security Investigations (ICE-HSI). In those cases, a prosecutor must consult both

agencies.

In Treasury cases where the USMS is not the custodian of the property, an independent contractor will serve as the

property manager and the USMS need not be consulted. It is the responsibility of the seizing agency and authorized

designee (CBP in ICE-HSI seizures) to contact the independent contractor when appropriate and to inform it of any

settlement proposals.

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B.6 Property located in another district

To settle a forfeiture action involving property located in another judicial district, the USAO handling

the forfeiture must notify and coordinate with the USMS in the district where the property is located.

The USAO in the district that forfeits property located in another district must comply with the

requirements for forfeiture in the district where the property is located. Failure to comply with such

requirementsmayresultinacloudonthegovernment’stitlethatmayinterferewiththedisposalof

assets in accordance with settlement terms. Coordination will minimize this possibility.

B.7 Partial payments

Generally, settlements shall not provide for partial payments. However, the USAO may seek an

exception to this policy on the advice and approval of MLARS, in consultation with the USMS and

its headquarters Asset Forfeiture Division (AFD).

For purposes of this provision, the subsequent

forfeiture of assets to satisfy a money judgment does not constitute a partial payment.

 

The settlement should state that the claimant may not reacquire the forfeited property directly or

indirectly through family members or any other agent. Family members or other agents who already

own a partial interest in the forfeited property may, however, purchase the forfeited interest with

legitimate funds.

 

Settlementsdonotnegatethetaxobligations,nes,penalties,oranyothermonetaryobligationsthat

the claimant owes to the government outside of the forfeiture action. Settlement documents should

statethattheresolutiondoesnotsatisfyanyothernancialobligations.

When a proposed forfeiture settlement will release assets to a claimant who is known or likely to

have other outstanding obligations to the government (e.g., taxes), prosecutors should notify the

appropriate agency (e.g., the Internal Revenue Service) of the proposed settlement.

Additionally, the Debt Collection Improvement Act of 1996 (DCIA) requires Treasury and other

disbursingocialstoosetfederalpaymentstocollectdelinquentnon-taxdebtsowedtothe

governmentandtocollectdelinquentdebtsowedtostates.TheTreasuryOsetProgram(TOP)

osetspaymentsrelatedtotheDCIA.Accordingly,settlementsshouldalsoincludelanguageto

notifytheclaimantthatanyfundscurrentlyondepositintheDepartment’sSeizedAssetDepositFund

(SADF) or Assets Forfeiture Fund (AFF) will be processed through TOP before being returned to the

claimant,withthepossibilitythatanyoftheclaimant’soutstandinganddelinquentobligationstothe

federalorastategovernmentmightbeosetagainstthepayment.

Prosecutors should also seek the advice and approval of MLARS in Treasury and Department of Homeland Security

(DHS) cases.

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II. Settlement Approval Authorities

 

U.S. Attorneys, the Chief of MLARS, and the Deputy Attorney General (DAG) have authority to

settle civil or criminal forfeiture cases as outlined in the chart below.

 Amount Involved Amount to be Released

U.S. Attorney

Up to $1,000,000 Any dollar amount

U.S. Attorney

$1,000,001 to $5,000,000 Up to 15% of amount

involved

MLARS Chief

Any dollar amount Less than $2 million and more

than 15% of amount involved

Deputy Attorney General (DAG)

Any dollar amount More than $2 million and

more than 15% of amount

involved

B. Approval authority examples

• A criminal indictment alleges that the defendant must forfeit, upon conviction, various assets

where the amount involved totals $3 million. The assets are neither seized nor restrained, but

they are listed in the forfeiture allegation in the indictment and the real property is included

in an indictment or subject to lis pendens under state law. As part of a plea agreement, the

government agrees not to go forward with the forfeiture of most of the assets but instead agrees

to accept a lump sum payment of $750,000 in lieu of forfeiture. Because the agreement allows

the defendant to retain assets worth more than $2 million, and which represent more than 15%

of the total amount involved ($3 million in assets subject to forfeiture), the DAG must approve

the plea agreement.

• The government brings a civil forfeiture action against a piece of real property with a market

value of $1.5 million but in which the sole claimant has only claimed an interest in $250,000

of the equity in the real property. The government settles with the claimant by agreeing to pay

$125,000 out of the proceeds of the sale of the real property. Because the total value of the

equityinvolved—claimant’s$250,000claim—islessthan$1million,theU.S.Attorneyhas

authority to approve the settlement.

• Thegovernmentlesacivilforfeitureactionagainstseizedbankaccountsandcurrencyin

the amount of $1.8 million but agrees as part of a settlement to release 20% ($360,000) to the

claimant. Because the total value of the property exceeds $1 million and the amount to be

returned is above 15%, the U.S. Attorney does not have authority to settle the case without

approval from the Department; but because the amount to be returned does not exceed

$2 million, the Chief of MLARS has the authority to approve the settlement without having

See 28 C.F.R. §§ 0.160, 0.161 and 0.168; Attorney General Order No. 1598-92.

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Asset Forfeiture Policy Manual 2023  11-7

to consult with the DAG, even though the amount to be returned is more than 15% of the total

value.

III. Using Administrative Forfeiture to Achieve a Settlement

The following procedures apply to settlement agreements in civil judicial forfeiture proceedings,

criminal forfeiture plea agreements, and DPAs and NPAs where an administrative forfeiture is

necessarytoeectuatetheagreement.Insuchcases,theUSAOmustconsulttheheadquartersofthe

seizingagencyinvolvedpriortonalizinganagreementtoensurethattheagencycanaccommodate

the terms of the agreement.

 



Certainrequirementsapplywhenaclaimhasbeenledinresponsetoanoticeofadministrative

forfeiture and the case has been referred to the USAO, but a settlement is reached before the USAO

lesaciviljudicialcomplaint:

(1) The USAO must reduce the terms of the settlement to writing and include:

(a) aprovisioninwhichtheclaimantidentiestheirownershipinterestinthepropertytobe

forfeited;

(b) a provision in which the claimant gives up all of the right, title, and interest in the

propertysoidentied;

(c) aprovisioninwhichtheclaimantagreesnottocontestthegovernment’sadministrative

forfeiture action and waives all deadlines under 18 U.S.C. § 983(a);

(d) a provision in which the claimant agrees that the property is subject to forfeiture under

the applicable civil forfeiture statute;

(e) aprovisionrecitingthestatutorybasisfortheforfeitureofthepropertyandsucient

facts to justify the forfeiture of the property.

(f) specicreferencetothewithdrawaloftheclaim,andanypendingpetitionsfor

remission, see Chapter 13, Section I.A in this Manual;

(g) a “hold harmless” provision and a general waiver of Federal Tort Claims Act (FTCA)

rights and Bivens

actions as well as a waiver of all constitutional and statutory defenses

and claims;

(h) where funds are to be returned to the claimant as part of the settlement, a statement that

thereturnoffundsmaybesubjecttoosetforanyactivedebtstheclaimantmayhavein

TOP;

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

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(i) a provision in which the claimant agrees to not reacquire the property (see Section I.B.8

in this chapter); and

(j) aprovisioninwhichtheclaimantagreestobeartheirowncosts,attorneys’fees,and

expenses;

(2) The case promptly should be referred back to the seizing agency to reinstitute the

administrative process. The seizing agency shall reinstitute the administrative forfeiture

processtoeectuatetheagreementuponreceiptofareferralincompliancewiththispolicy,

consistent with its lawful authority; and

(3) Property to be administratively forfeited must be eligible for administrative forfeiture under

federal law, which in a settlement may include accepting “cash in lieu” of a named and existing

forfeitable asset, as discussed in Section IX.C in this chapter. Substitute assets are not subject

to administrative forfeiture.

Where the agreement provides that the claimant withdraw the claim to all property subject to

forfeiture, the entire case will be referred back to the agency for administrative forfeiture unless, of

course,otherclaimshavebeenledastothesameproperty.Theseizingagencywillstillhavetotake

steps to ensure compliance with noticing and administrative forfeiture eligibility.

Where the agreement provides that the claimant withdraw only a part of a claim, the case will be

referred back to the agency for administrative forfeiture of that portion of the forfeitable property

subjecttothewithdrawal.Theremainingpropertywillbehandledasspeciedintheagreement,

which may include release of the remaining property to the claimant. Republication of the notice or

of the administrative forfeiture action is not necessary, provided publication covering the property to

beforfeitedoccurredpriortothelingoftheclaim.

B. Using administrative forfeiture to settle civil forfeiture proceedings where no

prior administrative forfeiture proceeding has begun

If a prosecutor has commenced a judicial action without a prior administrative forfeiture action, then

to enter a settlement agreement involving a proposed administrative forfeiture of seized property:

• the headquarters of the seizing agency must concur in that part of the settlement that would

obligate the agency to commence administrative forfeiture proceedings;

• the prosecutor must dismiss or amend the complaint to strike the assets to be administratively

forfeited;

• the jurisdiction of the district court over the assets to be administratively forfeited must be

relinquished before the prosecutor can refer the case to a seizing agency; and

• the property to be administratively forfeited must be eligible for administrative forfeiture under

federal law, which in a settlement may include accepting “cash in lieu” of a named and existing

forfeitable asset, as discussed in Section IX.C in this chapter. Substitute assets are not subject to

administrative forfeiture.

Following the entry of a settlement agreement and completion of the above steps, the prosecutor will

refer the case to the seizing agency. The seizing agency shall initiate the administrative forfeiture

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Asset Forfeiture Policy Manual 2023  11-9

processtoeectuatetheagreementuponreceiptofareferralincompliancewiththispolicy,

consistent with its lawful authority.

C. Using administrative forfeiture to settle criminal forfeiture proceedings

Prosecutors may settle a criminal forfeiture proceeding through plea or agreement to the

administrative forfeiture of any asset if the asset is subject to administrative forfeiture. The

headquarters of the seizing agency must concur in that part of the settlement that would obligate

the agency to commence administrative forfeiture proceedings. The terms of any plea or agreement

should include a waiver of administrative forfeiture deadlines and notice requirements.

Following the entry of a settlement agreement, the prosecutor will refer the case to the seizing agency.

Theseizingagencyshallinitiatetheadministrativeforfeitureprocesstoeectuatesuchanagreement

upon receipt of a referral in compliance with this policy, consistent with its lawful authority.

Property to be administratively forfeited must be eligible for administrative forfeiture under federal

law, which in a settlement may include accepting “cash in lieu” of a named and existing forfeitable

asset, as discussed in Section IX.C in this chapter. Substitute assets are not subject to administrative

forfeiture.

IV. References to Remission or Restoration in Settlements

No agreement—whether a settlement in a civil judicial action, a plea agreement resolving both

criminal charges and the forfeiture of assets in a criminal case, settlement of a claim in an ancillary

proceeding, or a DPA or NPA—may contain any provision purporting to bind the Department

and the agencies to a particular decision on a petition for remission or request for restoration, or

otherwisecontaintermstheeectivenessofwhichiscontingentuponthemakingofsuchadecision.

The remission and restoration processes, like the pardon process in criminal cases, are completely

independent of the litigation and case settlement process.

However,whereanindividualhasleda

claim and a petition, the USAO may provide for the express withdrawal and extinguishment of any

petition when settling a claim.

In extremely limited circumstances and on request by the USAO, MLARS may adjudicate a properly

ledpetitionforremissionormitigationpriortothenegotiationofaforfeituresettlementorentryofa

nalorderofforfeiture.MLARSwillonlyadjudicateapetitionforremissionormitigationfollowing

consultation with the USAO and receipt of the USAO and agency report and recommendations.

Anysuchdecisionwillincludevariouscaveats,suchastheevaluationofanyotherledpetitions,

liquidation of the assets, and available net proceeds in the case. Upon approval by MLARS in those

speciccasesonly,asettlementagreementmayincludeaprovisionthatexpresslyleavesopenor

expresslyforeclosestherightofanypartytoleapetitionforremissionormitigation.

V. Settlements in Civil Judicial Forfeiture Cases

Any settlement that purports to forfeit property binds only the parties to it and forfeits only the

interest in the property that the settling claimant possesses. The USAO must follow these procedures

Although the USAO and seizing agency must provide their recommendations as to the allowance or denial of a judicial

petitionorrequestforrestoration,thenaldeterminationrestswithMLARS.See 28 C.F.R. § 9.1(b)(2). Prosecutors or

seizing agencies must take care not to make representations to the court, the defendant, or potential victims as to whether

remission or restoration may be granted. See Chap. 14, Secs. II.A and II.B.2 in this Manual.

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to ensure that a valid and complete civil judicial forfeiture of the interest occurs through the

settlement. The USAO must:

• leacivilveriedcomplaintforforfeitureofthepropertyintheU.S.districtcourttoestablish

thecourt’sjurisdiction.Filinganactionasa“miscellaneousdocket,”“consentcivildecree,”and

anyotherattemptstoavoidlingacomplaintviolatestheDepartment’spolicyrequiringthata

complaintbeledineachcivilforfeiturecase;

• provide written notice to all known parties with interest in the property and publish notice;

• ifnotimelyclaimhasbeenledpursuanttotheSupplementalRulesforAdmiraltyorMaritime

Claims and Asset Forfeiture Actions, seek a default judgment pursuant to Federal Rule of Civil

Procedure 55 as to all interests in the property other than the interest(s) subject to the settlement

agreement; and

• fully incorporate into proposed orders of forfeiture the terms of all settlement agreements, such

asanylienormortgageperdiemratesandpayosorspousalownershipinterests.

VI. Plea Agreements Incorporating Criminal Forfeiture

In any plea agreement, a defendant may consent to forfeiture of any asset for which the forfeiture is

factually supported by the counts of conviction. A plea agreement that purports to forfeit the property

may bind only the parties thereto and not third parties who purport to hold an interest in the property.

Property that has been transferred by a defendant to a third party may still be subject to forfeiture,

subjecttothethirdparty’srighttocontesttheforfeitureintheancillaryproceeding.TheUSAO

must follow the procedures below to ensure that a valid forfeiture results from a plea agreement. The

USAO must:

• include a forfeiture allegation in the indictment or information. To the extent property is known

to be subject to forfeiture, it should be listed in the indictment or information, or in a subsequent

bill of particulars. The USAO must ensure that its criminal pleadings comply with Federal Rule

of Criminal Procedure 32.2;

• comply with the requirements applicable to third-party interests (like 21 U.S.C. § 853(n)(1)–(7)

and the provisions of Federal Rule of Criminal Procedure 32.2), including notifying appropriate

third parties of the forfeiture and of their right to obtain a post-conviction adjudication of their

interests in the property;

• reduce the settlement to forfeit property to writing, and ensure the defendant expressly stipulates

to all facts supporting the forfeiture and waives all defenses to the forfeiture;

and

• ensure that the court issues a preliminary order of forfeiture that incorporates the settlement

or terms of the plea agreement and includes the forfeiture order in the oral pronouncement

of the sentence in the presence of the defendant and in the written judgment of conviction at

sentencing.

See Chap. 5, Sec. II.B in this Manual.

To the extent that the defendant preserves any rights, exceptions should be explicitly expressed and the rights observed

shouldbeidentied.

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VII. Settlement of Attorneys’ Fees Liabilities

Department prosecutors are encouraged to whenever possible obtain settlements wherein each party

bearsitsownattorneys’feesandcosts.ADepartmentprosecutorcannotagreetothepaymentofa

claimant’sattorneys’feesoutoftheTreasuryJudgment Fund without prior approval from MLARS

and the Judgment Fund.

Any agreement to exempt an asset from forfeiture so that it can be transferred to an attorney as fees

for representation in a criminal case must be approved by the Assistant Attorney General of the

Criminal Division (AAG). See Chapter 12, Section IV in this Manual; see also Justice Manual (JM)

§ 9-120.116.

Inlimitedcircumstances,thegovernmentmayberequiredtopayattorneys’feesundertheEqual

Access to Justice Act (EAJA) to a third-party petitioner who asserted a claim in the ancillary

proceeding of a criminal case. Proposed settlements of EAJA claims are subject to the procedures in

Chapter 12, Section II.B in this Manual.

VIII. Global Settlements and Dealing with Claimants and Witnesses

A. Ethical considerations

In situations where both a civil forfeiture proceeding and a related criminal investigation or

charges are pending, forfeiture attorneys may face ethical issues in the context of settlements, plea

agreements, and dealings with witnesses. The discussion in Section VIII addresses some of these

issues,withreferencestocertainpertinentauthority;however,inadditiontothematerialsidentied

here, prosecutors should consult the rules that apply in the state in which they are licensed as well as

the state and court(s) in which the proceedings are pending.

B. Global settlements

The term global settlement describes a situation whereby the government concludes a civil or

administrative forfeiture action in conjunction with the resolution of the criminal charges involving

the same activity that gave rise to the forfeiture of the property. Global settlements may also include

other types of proceeding, such as False Claims Act (FCA) treble-damage suits, and federal agency

injunctiveandcivilpenaltyactions.Whilesuchagreementsofteneectivelyandecientlyresolve

disputed matters, they may also raise ethical issues. Prosecutors must avoid any plea or settlement

agreement that risks undermining faith in the fairness of those who administer the criminal process,

such as an agreement that appears to reduce prison time in exchange for forfeiture, or vice versa.

Government attorneys should not introduce or suggest a global settlement disposition. If opposing

counsel raises the issue, however, prosecutors may respond, and subsequently pursue a global

settlement, in close consultation with supervisors and mindful of the relevant ethical issues. The

initiation of the global settlement by opposing counsel should be documented by email or other

means.

Department attorneys are “subject to State laws and rules, and local Federal court rules, governing attorneys in each State

wheresuchattorneyengagesinthatattorney’sduties,tothesameextentandinthesamemannerasotherattorneysinthat

State.” See 28 U.S.C. § 530B.

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Notwithstanding the above, this policy does not bar the introduction by the prosecutor of negotiations

regarding the criminal forfeiture aspects of a criminal prosecution, regardless of any related and

pending parallel civil forfeiture actions. A criminal plea agreement should properly address and

includethecriminalforfeitureofassetsrelatedtothecriminaloensestowhichthedefendantis

pleading guilty.

Prosecutors must observe several principles in negotiating a global settlement:

(1) No settlement agreement should be used to gain an improper advantage in a related civil

or criminal case. The government should not agree to release property subject to forfeiture

(civil or criminal) to coerce a guilty plea on the substantive charges or to dismiss criminal

charges to coerce a forfeiture settlement. To the maximum extent possible, the criminal plea

andforfeitureshouldconcludethedefendant’sbusinesswiththegovernment.Delaying

consideration of the forfeiture until after the conclusion of the criminal case unnecessarily

extendsthegovernment’sinvolvementwiththedefendantanddiminishestheeectivenessand

eciencyofforfeitureenforcement.

(2) If a plea agreement in a criminal case does not resolve the criminal forfeiture or a related

civilforfeitureproceeding,thenexpresslanguagetothiseectshouldbeincludedintheplea

agreement to remove any doubt or ambiguity on this point.

(3) Where a defendant who is also a claimant in a related civil forfeiture proceeding has negotiated

a plea agreement in the criminal case and concurrently wishes to forfeit the property in the

related civil forfeiture proceeding, the plea agreement should state that the defendant waives

any and all rights—constitutional, statutory, or otherwise—with respect to the civil forfeiture.

(4) The defendant, in the plea agreement or factual basis in support thereof, must admit to facts

sucienttosupporttheforfeiture.Thegovernmentshouldexpresslyreserveitsrighttoreopen

the civil forfeiture proceeding if it is later determined that the settlement was based on false

information, if the defendant violates the plea agreement, or if the agreement is invalidated for

any other reason.

C. Claimants and witnesses

The same ethical considerations of fairness and proper conduct that apply in global settlements

also apply in situations where the government attorney interacts with claimants and witnesses in

civil forfeiture litigation. These issues may arise where the potential exists for the appearance of

a consolidation of governmental power against individuals in a way that could become abusive,

orwhereconditioningthesubject’sstatusinaprosecutiononthatperson’scooperationhasthe

appearanceofseekingasubject’scooperationsolelyinconnectionwithacivilforfeiturematter.

For example, a claimant or witness may be required to take action in the civil forfeiture proceeding,

such as providing testimony in a deposition, while a related criminal investigation or charges are

pending. In that scenario, a claimant or witness may perceive a threat of criminal prosecution. In

these circumstances, prosecutors must not coerce cooperation or the provision of testimony in the

To the extent that the defendant preserves any rights, exceptions should be explicitly expressed and the rights observed

shouldbeidentied.

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Asset Forfeiture Policy Manual 2023  11-13

civil case by threats or promises relating to the criminal proceedings.

Government attorneys should

notusecivilforfeiturediscoveryorotherproceedingssolelytoobtaininformationorbenetforthe

criminal proceeding.

Similarly, an individual who is not currently charged with a crime but who was involved in the

oensemayhaverelevantinformationthatwouldaidthegovernmentinpursuingacivilforfeiture

case. In a criminal case, the prosecutor could properly advise the witness that if they do not tell the

truth about what they know, the witness could be charged for their own involvement in the crime,

assuming evidence existed to support a prosecution. Generally, the same should be true in a civil case

scenario. However, government attorneys must not threaten prosecution solely to gain an advantage

in the civil matter (i.e., to ensure that the criminal charges would be brought for some legitimate

purpose in addition to gaining an advantage in the civil action). The prosecution must be related to

the criminal case and well-founded.

In the context of settling civil forfeiture cases, the government attorney handling the civil case must

notharmthegovernment’scriminalprosecution,by,forexample,compromisingacivilforfeiture

casetothebenetofadefendantorwitnesswhohasalreadyenteredintoacooperationagreement

withthegovernment.Inthatcircumstance,thecivilforfeituresettlementmaybeviewedasabenet

to the cooperating witness that the government would have to disclose to the defense, and which

may be used to impeach the cooperating witness on cross-examination. Thus, prior to negotiating

a civil forfeiture settlement with a cooperating witness or defendant in a pending criminal case, the

government forfeiture attorney should consult with the government attorney prosecuting the criminal

case.

Ethical issues may also arise where government attorneys include cooperation provisions in civil

forfeiture settlements. Cooperation provisions that provide for assistance or cooperation by the

claimant in other civil forfeitures or in related criminal proceedings create no ethical problems, so

long as the settlement agreement itself stands on its merits and the provision calls for cooperation in

a criminal case, it does not run afoul of ethical considerations relating to the interplay of civil and

criminal cases noted above.

Again, ethics rules vary from state to state, and MLARS strongly recommends that each attorney

dealing with related civil forfeiture and criminal cases consult the rules that apply to the states in

which the attorney is licensed and in which the proceeding is pending. Prosecutors should also

consulttheethicsadvisorintheUSAOortheDepartment’sProfessionalResponsibilityOce.

A claimant or witness in a civil forfeiture proceeding who is also a defendant in a pending criminal case may want to

cooperate in the civil case in the hope that such cooperation may be a factor in supporting a motion by the government for

reduction of sentence pursuant to USSG §5K1.1; however, it is not clear whether or to what extent cooperation in a civil

forfeiture proceeding would constitute a factor under §5K1.1, though it is clear that the Sentencing Guidelines expressly

separateadefendant’ssentencefromforfeitureofdefendant’sproperty.See United States v. Hendrickson, 22 F.3d 170,

175 (7th Cir. 1994) (USSG §5E1.4’sexplicitlanguagethat“[f]orfeitureistobeimposeduponaconvicteddefendantas

provided by statute” makes it “readily apparent that forfeiture was considered by the Sentencing Commission and was

intended to be imposed in addition to, not in lieu of, incarceration”); cert. denied, 513 U.S. 878 (1994).

See In re Phillips, Beckwith & Hall,896F.Supp.553,558n.5(E.D.Va.1995)(lawrmmovedtostayforfeiture

proceedinginviewofpotentialcriminalchargesagainstrmpersonnel;courtdeniedstay,notingthatallegationof

“badfaithonthegovernment’spartby,forexample,pursuingacivillawsuitsolelyforthepurposeofaidingacriminal

investigation, or threatening or delaying bringing criminal charges in order to extract an advantage in the civil case by

keepingthecloudofcriminalprosecutionoverhead”wouldhaveproduceddierentoutcome).

The seizing agency or authorized designee must also be consulted in connection with settlement negotiations. See

Sec. I.B.2 in this chapter.

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11-14  Asset Forfeiture Policy Manual 2023

IX. Cash in Lieu of Forfeiture of Other Property

A. Department of Justice policy

OneoftheprimarygoalsoftheDepartment’sAssetForfeitureProgram(Program)isto“punish

and deter criminal activity by depriving criminals of property used in or acquired through illegal

activities.”

Forfeiting the “tainted” property itself accomplishes this goal more directly and clearly

than forfeiting an agreed sum of money, because accepting cash in lieu leaves the “tainted” property

itself in the hands of those whose acts or failures to act made it forfeitable.

Under limited circumstances, however, accepting and forfeiting an amount of money in lieu of the

propertydirectlylinkedtoanunderlyingoensebestservestheinterestsofjustice.Forexample,

the forfeiture of cash in lieu of other tangible property may be appropriate in cases where innocent

owners own all but a small portion of the property; where forfeiture of the particular property

will cause an undue hardship on innocent owners; or where, after balancing the costs and risks

of continued litigation, the government determines that settling for part of the value of allegedly

forfeitable property is just and appropriate.

Thus, Department policy requires the forfeiture of all available directly forfeitable property rather

than a replacement sum of money, unless the interests of justice clearly favor forfeiture of the

replacement sum of money. If the interests of justice clearly favor forfeiture of a replacement sum

of money, the government may accept and agree to replace directly forfeitable property with a

replacement sum of money, subject to the policy limitations outlined in Section IX.B in this chapter.

Forfeitureofcashinlieuofavailabledirectlyforfeitablepropertyisdierentfromtheforfeitureof

substitute assets. Substitute assets are not subject to administrative or civil judicial forfeiture.

B. Policy limitations

The following limitations apply to cases in which the directly forfeitable property is available for

forfeiture and forfeiting a replacement sum of money would leave the directly forfeitable property in

the hands of some or all of its present owners.

B.1 Administrative forfeitures

Federal seizing agencies may, as a form of relief from administrative forfeiture, accept and forfeit a

sum of money in lieu of directly forfeitable seized property. See 19 U.S.C. § 1613(c), as incorporated

by 18 U.S.C. § 981(d), 21 U.S.C. §§ 853(j) and 881(d); see also 18 U.S.C. § 2344(c) and 19 U.S.C.

§ 1614. As a matter of policy and discretion, however, the Drug Enforcement Administration

(DEA) and the Federal Bureau of Investigation (FBI) limit their use of this authority to cases where

such substitution is determined to be in the interests of justice and the agency has received a timely

claim for the forfeitable property pursuant to 18 U.S.C. § 983(a)(2) and referred it to the USAO

for initiation of judicial forfeiture proceedings. After consultation with the seizing agency (see

Section I.B.2 in this chapter), the government may accept a monetary amount in lieu of forfeiture of

theseizedpropertyandreferthematterbacktotheseizingagencytoeectthesettlement.

The Attorney General’s Guidelines on the Asset Forfeiture Program (July 2018) (AG Guidelines), Sec. II.

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Asset Forfeiture Policy Manual 2023  11-15

B.2 Judicial forfeitures

In a judicial forfeiture case, the government may accept and forfeit an agreed sum of money in lieu of

directly forfeitable property, although a court order approving the substitution should be sought and

obtained whenever possible. This is true regardless of whether the directly forfeitable property has

been seized if the directly forfeitable property is named in the lawsuit and in existence.

These policies do not apply when the government either (1) forfeits substitute assets in a criminal case

under 21 U.S.C. § 853(p), because directly forfeitable property is unavailable because of some act or

omission of a criminal defendant, or (2) sells property, either before or after forfeiture, to persons not

involved in or associated with the underlying criminal activity.

C. “Cash in lieu” vs. “substitute asset”

Liquidationofproperty,andreplacingitwithasumofmoney,isoftenaneectivemeansof

preserving forfeitable value in both civil and criminal forfeiture proceedings. However, prosecutors

must refer to the replacement sum of money as cash in lieu or substitute res, not as a substitute asset.

This linguistic distinction is important to avoid confusion.

Specically,incriminalforfeitures,substitutionofmoneyfortaintedpropertyisauthorizedunder

the substitute assets provision if the defendant has transferred or commingled interests in directly

forfeitablepropertyinawaythatmakesliquidationandforfeitureofthepropertyitselfdicult.

See 21 U.S.C. § 853(p). The phrase substitute asset is a term of art referring to substitute property

forfeitable under § 853(p) and 18 U.S.C. § 1963(m). Substitute assets are legitimate assets that

are subject to forfeiture in place of directly forfeitable property that has been made unavailable for

forfeiture solely because of some act or omission of the criminal defendant. As a matter of statutory

construction and Department policy, such substitute assets may not be restrained or seized under asset

forfeiture authority prior to the conviction of the criminal defendant.

By contrast, cash in lieu is a sum of clean money that replaces directly forfeitable property prior to

forfeiture, either by consent of the parties or by court order. It does not replace property that has

been made unavailable for forfeiture by some act or omission of the defendant. Rather, it replaces

directly forfeitable property that is currently available and does so by consent or court order; thus,

the replacement sum of money should be subject to restraint and seizure the same as the directly

forfeitable property it replaces.

D. Interlocutory sales

Inciviljudicialforfeiturecases,interlocutorysalesarespecicallyauthorizedbyRuleG(7)(b)ofthe

Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (Supplemental

Rules), which provides that the sale proceeds “are a substitute res subject to forfeiture in place of the

property that was sold.” See Supplemental Rule G(7)(b)(iv). Interlocutory sales may also be pursued

in criminal cases. See Federal Rule of Criminal Procedure 32.2(b)(7), incorporating the interlocutory

sale provisions in Supplemental Rule G(7).

In certain cases, assets that are not directly traceable to criminal activity can be restrained under other authority, including

18 U.S.C. § 1345.

Prosecutors must consult with MLARS prior to seeking an order for the interlocutory sale of cryptocurrency. See Chap. 2,

Sec. V.B in this Manual.

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11-16  Asset Forfeiture Policy Manual 2023

Under many forfeiture statutes, the proceeds from the sale of forfeitable property are directly

forfeitable without the need for formal “substitution” because the scope of direct forfeiture under such

statutes is “derived from” or “traceable to” the forfeitable property. See 18 U.S.C. § 981(a)(1)(A),

authorizing forfeiture of property traceable to property “involved in” money laundering, which

includes any property traceable to otherwise forfeitable property; 18 U.S.C. § 981(a)(1)(C), property

“whichconstitutesorisderivedfromproceedstraceableto”anyoenseconstituting“specied

unlawful activity”; 21 U.S.C. § 881(a)(6), property traceable to drug proceeds. “Substitution” of

untainted property for forfeitable property is only necessary in the interlocutory sale context where

the proceeds from sale of forfeitable property are not themselves directly subject to forfeiture. See

21 U.S.C. § 881(a)(7), authorizing forfeiture of facilitating real property, but not of property derived

from or traceable to such property.

In judicial forfeiture cases, the government should request that any interlocutory order substituting

money for a forfeitable asset direct the USMS, the appropriate Treasury agency, or other property

custodian to accept and hold the money, after paying any expenses incurred with respect to the seizure

and maintenance of the asset being liquidated or released, pending further orders of the court. Once a

substitute res has been forfeited, the USMS or the appropriate Treasury agency must dispose of it in

the same manner as other forfeited property.

Asset Forfeiture Policy Manual 2023  12-1

Chapter 12:

Attorneys’ Fees

I. Payment of Attorneys’ Fees in Civil Forfeiture Proceedings

Claimants who “substantially prevail” in a civil forfeiture proceeding are entitled to an award of

attorneys’fees,interest,andotherlitigationcosts,regardlessofwhetherthegovernmentwasjustied

in bringing the forfeiture action. See28U.S.C.§2465(b).Liabilityforattorneys’feesandother

litigation costs under § 2465(b) is, however, subject to certain limited exceptions, including cases

where the claimant was convicted of a crime for which the same property was subject to criminal

forfeiture,orwheremultipleclaimstothesamepropertyareledandthegovernmentactspromptly

to recognize and resolve claims.

Further,tobeeligibleforattorneys’fees,claimantsmustpursue

theclaimincourtandobtainajudgmentthatthegovernmentisliableforattorneys’feesunder

§ 2465.

Accordingly,thegovernmentisnotliableforattorneys’feesininstanceswhereitsettlesa

forfeiture proceeding (even on unfavorable terms) or agrees to voluntary dismissal; only a “judicially

sanctioned” loss on the merits, such as on summary judgment or at trial, can serve as the basis for an

award of fees or interest under § 2465.

Thegovernmentalsoisnotliableforattorneys’feesincases

where property was seized as evidence, or for some other law enforcement purpose, and not solely for

forfeiture.

TheseawardswillbepaidoutoftheDepartmentoftheTreasury’s(Treasury)Judgment Fund.

Thus,

whenthecourtentersajudgmentawardingattorneys’fees,interest,andcostsinacivilforfeiture

case,theU.S.Attorney’sOce(USAO)shouldsubmitarequestforpaymentoftheawardto

Treasury’sBureau of the Fiscal Service (BFS), which manages the Judgment Fund.

For questions

aboutattorneys’feesawardspayments,includingwhetherpartiesmayagreeupontheamountof

any award, please contact the Judgment Fund. The Money Laundering and Asset Recovery Section

(MLARS)doesnotreviewUSAOs’requestsforpaymentsofattorneys’feesawardsforclaimants

who substantially prevail in civil forfeiture proceedings.

See 28 U.S.C. § 2465(b)(2)(B) & (C).

Incivilforfeituresofrearmsandammunitionpursuantto18U.S.C.§924(d)whereaclaimantsubstantiallyprevails,

28U.S.C.§2465(b)appliesandthegovernmentisliableforreasonableattorneys’feesandotherlitigationcosts.

See Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001)

(rejecting “catalyst theory” for seeking fees under a fee-shifting statute where recovery was not the result of a “judicially

sanctioned change in the legal relationship of the parties”); United States v. Cap. Stack Fund, LLC,543F.App’x17,

19(2dCir.2013)(armingdistrictcourt’sdenialoffeesunder§2465toclaimantwhorecoveredpropertyfollowing

settlement in civil forfeiture proceeding, where the “outcome bore no judicial imprimatur”).

See 28 U.S.C. § 2680(c)(1) (CAFRA re-waiver applies where “the property was seized for the purpose of forfeiture under

any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of

acriminaloensesomeotherlawenforcementpurpose”);see also Smoke Shop, LLC v. United States, 761 F.3d 779, 783

(7thCir.2014)(CAFRAre-waivessovereignimmunityonlyifthegovernment’ssolepurposeforseizingthepropertywas

forfeiture; if property is seized as evidence in a criminal investigation, the waiver does not apply); Foster v. United States,

522 F.3d 1071, 1079 (9th Cir. 2008) (the waiver of sovereign immunity in CAFRA applies only when the property was

seized solely for the purpose of forfeiture but not where the property was seized for some law enforcement purpose, even

if the government later pursued forfeiture of the seized property).

Forms for requesting payments out of the Judgment Fund are available at FMS and should be submitted directly to the

ocethathandlesJudgment Fund matters. See alsoTreasuryExecutiveOceforAssetForfeiture(TEOAF)Directive

36: PaymentofAttorney’sFees.

BFS’sitehasgeneralinformationabouttheJudgment Fund as well as links to procedures for submitting a request for an

award of costs and fees and to the appropriate forms.

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12-2  Asset Forfeiture Policy Manual 2023

II. Payment of Attorneys’ Fees in Criminal Forfeiture Cases

A. Defendant’s attorneys’ fees

Thedefendantinacriminalforfeitureproceedingmayleforanawardofattorneys’feesonly

under the Hyde Amendment.

Amotionforfeesandcostsledinacivilforfeitureproceeding

under 28 U.S.C. § 2465(b) cannot include fees and costs incurred in even a directly related criminal

proceeding.

To prevail on a Hyde Amendment claim, the defendant must prove that: (1) the

defendantwastheprevailingpartyintheunderlyingaction;(2)thegovernment’spositionwas

vexatious, frivolous, or in bad faith; and (3) there are no special circumstances that would make the

award unjust.

This burden is higher than the one the party opposing forfeiture and seeking fees must

meet under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, for civil actions.

A request

forattorneys’feesundertheHydeAmendmentbasedonacriminalprosecutionmustbeapproved

bytheHydeAmendmentCommitteeandtheExecutiveOceforU.S.Attorneys(EOUSA).Ifthe

requestspecicallyaddressescriminalforfeiture,thedefendantshouldalsosubmitacopytotheChief

of MLARS. Hyde Amendment claim awards are paid from the Judgment Fund.

Despite arising from a criminal proceeding, most courts have found a Hyde Amendment action

to be a civil proceeding governed by the Federal Rules of Civil Procedure.

Moreover, the Hyde

Amendment provides that the procedures and limitations for granting an award shall be derived

from those set forth in EAJA.

Inparticular,EAJArequiresthepartiesseekinganawardtoletheir

claimswithin30daysofnaljudgmentoftheunderlyingcivilaction.

EAJA also provides for the

determinationofreasonableattorneys’feesandotherexpenses.

Hyde Amendment to the Department of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations

Actof1998,Pub.L.105-119,§617,111Stat.2440,2519(1997),codiedasanotefollowing18U.S.C.§3006A

(permittingawardofattorneys’fees“wherethecourtndsthatthepositionoftheUnitedStateswasvexatious,frivolous,

orinbadfaith,unlessthecourtndsthatspecialcircumstancesmakesuchanawardunjust”).

See United States v. 317 Nick Fitchard Rd. N.W. Huntsville, AL, 579 F.3d 1315, 1319 (11th Cir. 2009).

See Hyde Amendment to the Department of Commerce, Justice, and State, the Judiciary and Related Agencies

AppropriationsActof1998,Pub.L.105-119,§617,111Stat.2440,2519(1997),codiedasanotefollowing18U.S.C.

§ 3006A.

See United States v. Gilbert, 198 F.3d 1293, 1299–1302 (11th Cir. 1999) (discussing legislative history of the Hyde

Amendment). In its original form, the Hyde Amendment tracked EAJA in its burden and standard of proof but was

changedpriortoenactmentbyswitchingtheburdenfromthegovernmenttotheplaintiandheighteningthestandard

of misconduct that must be shown. Id. at 1302; see also United States v. Wade, 255 F.3d 833, 839 n.6 (D.D.C. 2001)

(discussing in footnote that the Hyde Amendment is a heavier burden for petitioner than the EAJA standard); and

Sec. II.B in this chapter.

United States v. Braunstein, 281 F.3d 982, 994 (9th Cir. 2002); United States v. Holland, 214 F.3d 523, 525–526 (4th Cir.

2000); United States v. Truesdale, 211 F.3d 898, 902–904 (5th Cir. 2000); United States v. Wade, 255 F.3d 833, 839

(D.D.C. 2001). But see United States v. Robbins,179F.3d1268,1270(10thCir.1999)(ndingaHydeAmendment

action was a criminal proceeding to which the appellate rule for criminal actions applies).

“Such awards shall be granted pursuant to the procedures and limitations (but not burden of proof) provided for an award

under Title 28, U.S.C. § 2412.” Hyde Amendment to the Department of Commerce, Justice, and State, the Judiciary and

RelatedAgenciesAppropriationsActof1998,Pub.L.No.105-119,§617,111Stat.2440,2519(1997),codiedasanote

following 18 U.S.C. § 3006A.

28 U.S.C. § 2412(d)(1)(B).

28 U.S.C. § 2412(d)(2)(A).

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Asset Forfeiture Policy Manual 2023  12-3

B. Third-party petitioner’s attorneys’ fees

B.1 Legal authority

A third-party petitioner in an ancillary proceeding to a criminal forfeiture may only assert payment

forattorneys’feesunderEAJA.

EAJAprovidesfortheawardofattorneys’feestoprevailingparties

inanycivilactionagainstthegovernmentinwhichthegovernment’spositionwasnotsubstantially

justied.

Athird-partyclaimant’sancillaryproceedingtoacriminalforfeitureisconsidereda“civil

action” under EAJA.

EAJArequiresthecourttoawardfeesuponndingthat(1)theapplicantsweretheprevailingparties,

(2)thegovernment’spositionwasnotsubstantiallyjustied,and(3)nocircumstancesexistthat

would make an award unjust.

Paymentofattorneys’feesawardedunderEAJAwillbepaid“from

any funds made available to the agency by appropriation or otherwise.” 28 U.S.C. § 2412(d)(4)

(emphasis added). Generally, the Assets Forfeiture Fund (AFF) is not available to pay judgments

arisingfromassetforfeiturecases,includingcostsandattorneys’fees.However,theDepartmentof

Justice (Department) has the legal authority under 28 U.S.C. § 524(c)(1)(A) to permit the use of the

AFF to pay EAJA awards arising from actions related to the seizure, attempted forfeiture, or forfeiture

of property. AFF allocations represent funds that are “otherwise” available to an agency. The Chief

of MLARS must expressly approve in writing any EAJA award before it may be charged against the

AFForanagency’sAFFallocation.

B.2 Procedure

MLARS may authorize payment of an EAJA award from the AFF when (1) federal participants

acted in a way that was clearly consistent with current law and Department policy

or (2) federal

participants acted in good faith, but it is not clear that their actions were consistent with existing

law and Department policy. The AFF will not be available, either directly or indirectly, to fund the

EAJAawardinanycaseinwhichthecourtndsbadfaithorintentionaldisregardforexistinglaw

or Department policy by the federal participants. If the Chief of MLARS denies authorization for

See United States v. Stanholtzer,492F.App’x.799,801(9thCir.2012)(section2465(b)appliesonlytocivilforfeiture,

not the ancillary proceeding); see also United States v. Moser, 586 F.3d 1089, 1092–1096 (8th Cir. 2009) (prevailing

thirdpartyinancillaryproceedingisnotentitledtorecoverattorneys’feesunderCAFRA);United States v. Nolasco,

354F.App’x.676,679–681(3dCir.2009).

“Exceptasotherwisespecicallyprovidedbystatute,acourtshallawardtoaprevailingpartyotherthantheUnited

States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in

any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought

byoragainsttheUnitedStatesinanycourthavingjurisdictionofthataction,unlessthecourtndsthatthepositionof

theUnitedStateswassubstantiallyjustiedorthatspecialcircumstancesmakeanawardunjust…(4)Feesandother

expenses awarded under this subsection to a party shall be paid by any agency over which the party prevails from any

funds made available to the agency by appropriation or otherwise.” 28 U.S.C. § 2412(d)(1)(A) & (d)(4).

United States v. Douglas, 55 F.3d 584, 587 (11th Cir. 1995); United States v. McAllister, No. 95–430–03, 1998 WL

855498, *3 (E.D. Pa. Dec. 9, 1998); United States v. Bachner, 877 F. Supp. 625, 627 (S.D. Fla. 1995).

Jean v. Nelson, 863 F.2d 759, 765 (11th Cir. 1988).

The AFF and AFF allocations are not available to fund EAJA awards in non-forfeiture cases. Therefore, the USAO

should not notify MLARS of actions in non-forfeiture cases.

Thisincludesthoseincasesinwhich:(1)MLARSisinvolvedinplanningaspeciccaseorprograminitiativeandthe

federal participants were executing the planned initiative in good faith; (2) 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; or (3) similar “no fault” cases.

Chapter 12: Attorneys’ Fees

12-4  Asset Forfeiture Policy Manual 2023

thepaymentfromtheAFF,theattorneys’feesawardedunderEAJAmaybepaidfromtheoperating

budget of the federal government participants in the case.

If the government has contested the case and received an adverse judgment,

the prosecutor should

immediately provide a copy of the court order to all involved agencies to permit their participation in

preparationoftheEAJArequest.TheUSAOshouldforwardtherequesttoMLARSwithinve(5)

business days of the court order. The request should include, as appropriate:

• acopyofthecourtorderawardingaclaimantattorneys’feesunder28U.S.C.§2412(d);

• 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; and

• adescriptionofanyextenuatingfactorsaectingthefederalparticipantsthatshouldbe

considered.

IftheUSAOisproposingtonegotiatetheamountofaclaimant’sattorneys’feesinanEAJAclaim,

the USAO should provide draft materials (minus the court order) to MLARS before agreeing to any

amount. This policy is in addition to other policies governing forfeiture settlements referenced in

Chapter 11 in this Manual.

The government should not include any reference to the source of funds for paying any award in any

proposedcourtordersdraftedbythegovernment.Theidentication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 case.

Onceapproved,MLARSwillnotifytheUSAO,EOUSA,andAssetForfeitureManagementSta

(AFMS). AFMS will instruct the U.S. Marshals Service (USMS) to charge the award directly against

theAFFfromthefederalparticipants’case-relatedexpensescategory.ResponsibilityforanEAJA

award will generally be allocated equally among the participants, including the USAO, but MLARS

maymodifythisallocation,dependingonspecicndingsmadebythecourtandextenuating

circumstances described by the participants.

See Justice Manual (JM) § 9-2.170 for adverse decision reporting and approval requirements.

Chapter 12: Attorneys’ Fees

Asset Forfeiture Policy Manual 2023  12-5

III. Payment of Attorneys’ Fees in Forfeiture Cases Chart

Forfeiture

Type

Funding

Source

Payment

Authority

Approval

Authority

Standard

Civil

Judgment

Fund

28 U.S.C.

§ 2465(b)

BFS Mandatoryawardofattorneys’feesand

other litigation costs to non-government

parties who substantially prevail in a

civil forfeiture proceeding.

Criminal

Judgment

Fund

Hyde

Amendment,

Pub. L.

No. 105-

119, § 617,

111 Stat. 2440,

2519 (1997),

codiedasa

note following

18 U.S.C.

§ 3006A

EOUSA

and Hyde

Amendment

committee

Awardofattorneys’feestodefendants

in criminal actions in which the

government’spositionwasvexatious,

frivolous, or in bad faith, unless the

courtndsthatspecialcircumstances

make such an award unjust.

Third-party

Petitioners

in Ancillary

Proceeding

to Criminal

Forfeiture

AFF EAJA,

28 U.S.C.

§ 2412(d)(4)

MLARS

Chief

Awardofattorneys’feestoprevailing

parties in any civil action against the

governmentinwhichthegovernment’s

positionwasnotsubstantiallyjustied,

and no circumstances exist that would

make an award unjust.

Athird-partyclaimant’sancillary

proceeding to a criminal forfeiture is

considered a “civil action” under EAJA.

IV. Forfeiture of Attorneys’ Fees

Thepolicyontheforfeitureofattorneys’feesissetforthintheJustice Manual (JM).

As set forth

in the Justice Manual

,anyactiontoforfeitattorneys’feesinacivilorcriminalcaseaswellasany

agreement nottoseekforfeitureofattorneys’feesinacaserequirestheapprovaloftheAssistant

Attorney General for the Criminal Division (AAG).

See JM § 9-120.000 et seq.

Asset Forfeiture Policy Manual 2023  13-1

Chapter 13:

Post-Forfeiture Third-Party Interests

I. Petitions for Remission and Mitigation

Once assets have been forfeited, the authority to distribute them to owners, lienholders, or victims

rests solely with the Attorney General. See 28 U.S.C. § 524(c)(1)(E)(i); 18 U.S.C. § 981(d) (civil

forfeitures); 21 U.S.C. § 853(i)(1) (pertaining to controlled substances violations) incorporated by

reference in 18 U.S.C. § 982(b)(1) (criminal forfeiture); 21 U.S.C. § 881 (controlled substances

violations); see also 28 C.F.R. Part 9. Congress granted complete discretion to the Attorney General

to remit or mitigate forfeitures as an “act of grace,” and no judicial review of remission or mitigation

decisions is available.

The federal regulations at 28 C.F.R. Part 9 govern the remission or mitigation of administrative,

civil judicial, or criminal forfeitures. In administrative forfeitures, the authority to decide petitions

for remission or mitigation rests with the seizing agency. See 19 C.F.R. §§ 171.11–171.14 and

172.11–172.14; 26 C.F.R. Part 403.35–403.45; 28 C.F.R. § 9.1(b)(1). The Attorney General delegated

the authority to decide petitions for remission or mitigation in judicial cases to the Chief of the Money

Laundering and Asset Recovery Section (MLARS). See 28 C.F.R. § 9.1(b)(2).

Questions regarding administrative forfeiture policies and procedures should be directed to the

forfeiting agency. See Chapter 14 in this Manual for a discussion of the policies and procedures

governing the remission and restoration of forfeited property to victims.

A. Owners in remission

Aninnocentowner’srighttoleapetitionforremission(ormitigation,asdiscussedinSectionI.C

inthischapter)isdistinctfromtherighttoleaclaiminanadministrativeorjudicialforfeiture

proceeding.

Consequently, the Department of Justice (Department) must rule on petitions for

remissionledbypetitionerswhoclaimthattheyhaveanownershiporlienholderinterestina

forfeitedasset,notwithstandingthefactthattheymayhavealreadyledanunsuccessfuljudicial

claim.Ifapetitionerconsentstoajudicialforfeiture,U.S.Attorney’sOces(USAOs)shouldinclude

petition withdrawal language in the plea agreements and forfeiture stipulations so that MLARS may

summarily extinguish any pending petitions that have been rendered moot by the consent to judicial

forfeiture.

Absentapetitioner’sexplicitpetitionwithdrawal,MLARSmaynotsummarilyextinguish

a pending petition and must issue a decision on the merits of the petition. Similarly, if a petitioner

agrees to withdraw a claim and consents to administrative forfeiture, the USAO should include

petition withdrawal language in the plea agreement and forfeiture stipulations so that the seizing

agency may extinguish any pending petitions.

See United States v. 1957 Buick Roadmaster, 167 F. Supp. 597, 601 (E.D. Mich. 1958).

Manyforfeiturecasesbeginadministrativelyandbecomejudicialafterapartylesaclaimchallengingtheagency’s

administrativeforfeitureandtheU.S.Attorney’sOce(USAO)beginsaciviljudicialorcriminalforfeitureproceeding.

Oftenthepartylesbothaclaimandpetition.MLARSmusteventuallyadjudicatethepetitionwhereajudicialforfeiture

case has commenced but only after the claim is resolved in the case. However, the petitioner need not submit a second

remission petition to MLARS. The seizing agency should forward the petition to the USAO, which will further submit to

MLARS. See Chap. 14, Sec. II.A in this Manual.

See Chap. 11, Sec. III.A in this Manual.

Chapter 13: Post-Forfeiture Third-Party Interests

13-2  Asset Forfeiture Policy Manual 2023

Remission may be granted if petitioners demonstrate that they have a valid, good faith, and legally

cognizable interest in the seized property as an owner. See 28 C.F.R. § 9.5(a)(1). Petitioners must

furtherdemonstratethattheyarean“innocentowner”asdenedby18U.S.C.§983(d)(2)(A)or

(3)(A).Therulingocialshallpresumethereisavalidforfeitureandshallnotconsiderwhether

sucientevidencesupportstheforfeiture.See 28 C.F.R. § 9.5(a)(4). The petitioner has the burden

of establishing the basis for granting a petition for remission or mitigation of forfeited property. See

28 C.F.R. § 9.5(a)(3).

Because owners typically petition for the forfeited property itself, property should not be sold before

a remission decision is issued if there is a pending owner petition. However, if the property is sold

before remission is granted, an owner shall receive the proceeds of the sale, less any costs incurred

bythegovernmentiftheowner’spetitionisgranted.Therulingocialmaywaivethesecosts.See

28 C.F.R. § 9.7(a)(3).

B. Lienholders in remission

Lienholders may qualify for remission only if they can also demonstrate that they are innocent as

denedby18U.S.C.§983(d)(2)(A)or(3)(A).See 28 C.F.R. § 9.5(a)(1). If remission is granted to

an innocent lienholder, the lienholder may receive (1) the property itself or (2) a payment up to the

lienholder’snetequity,lesstheexpensesandcostsincidenttotheforfeitureandsaleoftheproperty.

See 28 C.F.R. § 9.7(b)(2)(ii). If the lienholder opts to claim the property itself, the lienholder must

pay the government the costs and expenses incident to the forfeiture and any value of the property

exceedingthelienholder’snetequity.See 28 C.F.R. § 9.7(b)(2)(i). If the lienholder agrees to the

sale of the property, the lienholder may receive the amount up to their net equity, less the costs and

expenses incident to the forfeiture and sale of the property. See 28 C.F.R. § 9.7(b)(2)(ii). The ruling

ocial,attheirdiscretion,maywaivecostsandexpensesincidenttotheforfeiture.See 28 C.F.R.

§ 9.7(b)(2)(i) & (ii).

General creditors holding unsecured debts may not be granted remission or mitigation unless they

otherwise qualify as an owner, lienholder, or victim. See 28 C.F.R. § 9.6(a).

A creditor holding a judgment against the owner of the forfeited property will only be recognized as a

lienholder if

(1) the judgment was duly recorded before the seizure of the property for forfeiture;

(2) under applicable state or local law, the judgment constitutes a valid lien on the property to

which it was attached before the seizure of the property for forfeiture; and

(3) the petitioner had no knowledge of the commission of any act giving rise to the forfeiture at the

time that the judgment became a lien on the forfeited property.

See

28C.F.R.§9.6(f)(1).Ajudgmentcreditor’slienmustberegisteredinthedistrictwherethe

property is located if the judgment was obtained outside the district. See 28 C.F.R. § 9.6(f)(3).

C. Mitigation

Mitigation is an alternative remedy for owners and lienholders. See 28 C.F.R. § 9.5(b). The ruling

ocialmaymitigateaforfeiturewhereanownerorlienholderhasnotmettheminimumconditions

Chapter 13: Post-Forfeiture Third-Party Interests

Asset Forfeiture Policy Manual 2023  13-3

forremissionbuttheocialndsthatsomereliefshouldbegrantedtoavoidextremehardship,

mitigationwillpromotetheinterestsofjustice,andmitigationwillnotdiminishthedeterrenteect

of the law. See28C.F.R.§9.5(b)(1)(i).Therulingocialmayalsograntmitigationtoanowneror

lienholder who has met the minimum conditions of remission but where the overall circumstances do

not warrant complete relief. See 28 C.F.R. § 9.5(b)(1)(ii).

Non-innocent owners may qualify for mitigation in some cases. See 28 C.F.R. § 9.5(b)(2). The

rulingocialmaygrantmitigationtoanownerorlienholderinvolvedintheoenseunderlying

the forfeiture when certain mitigating factors exist, such as the lack of a prior record or evidence

of similar criminal conduct; the violation does not include drug distribution, manufacturing, or

importation; the violator has taken steps like drug treatment to prevent further criminal conduct; the

violation was minimal and not part of a larger criminal scheme; the violator cooperated with law

enforcement investigations relating to the criminal conduct underlying the forfeiture; or complete

forfeiture of an asset is not necessary to achieve the legitimate purposes of forfeiture.

D. Procedure for notice and processing petitions

In administrative forfeiture cases, the agency must notify potential owners and lienholders of the

opportunitytolepetitionsforremissionormitigationofforfeiture.

See 28 C.F.R. § 9.3(a). In

judicialcases,theUSAOmustnotifypotentialownersandlienholdersoftheopportunitytole

petitions for remission or mitigation of forfeiture. See28C.F.R.§9.4(a).Petitionerswhohaveled

apetitioninanadministrativeforfeiturecasearenotrequiredtoreleapetitionforremissionor

mitigation if the USAO institutes judicial forfeiture proceedings.

Once a seizing agency or the USAO receives a petition for remission or mitigation, the seizing agency

must conduct an investigation of the petition and issue either a decision for administrative forfeiture,

or a report and recommendation for judicial forfeiture. For judicial forfeiture, the USAO then must

prepareitsownrecommendationonthepetitionandsendthepetition,theseizingagency’sreport,and

the USAO and seizing agency recommendations to MLARS, along with any necessary supporting

documentation. Although the USAO and seizing agency must provide their recommendations on

thegrantordenialofapetitionforremissionforjudiciallyforfeitedassets,thenaldetermination

rests with MLARS. MLARS will notify the petitioner of its decision. Petitions are decided based

on written documentation. There is no right to a hearing on the petition. See 28 C.F.R. § 9.4(g).

Unsuccessful petitioners are entitled to one request for reconsideration, which is reviewed and

decidedbyadierentrulingocial.

E. Priority of payments

IftheseizingagencyandtheUSAOreceivemultiplepetitions,innocentownershaverstpriority,

followednextbylienholders,thenfederalnancialinstitutionregulatoryagenciesnotconstituting

owners or lienholders, and then victims. See 28 C.F.R. § 9.9(a). All pending petitions for remission

ormitigationmustberuledonbeforeanyocialuseorequitablesharingofforfeitedproceeds

occurs.

Foranyassetidentiedwithinthepublicnoticesofforfeiture,forfeiture.gov’spetition information page has updated

formsandpetitionlingFAQs.ForanyassetseizedbyBureauofAlcohol,Tobacco,FirearmsandExplosives(ATF),

Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), USAO, or U.S. Postal Inspection

Service(USPIS)thatisidentiedwithinthepublicnoticesofforfeiture,apetitionmayalsobeledonforfeiture.gov.

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F. Cultural property

When the U.S. government forfeits cultural property that has been removed from a foreign country

or tribal authorities, it often seeks to return the property to its country or tribe of origin. A foreign

government or tribal authority may submit a petition for remission for forfeited cultural property if

it can demonstrate a valid, good faith, legally cognizable ownership interest in the forfeited cultural

property. In many cases, cultural property is stolen from a government institution like a museum,

and a foreign government or tribal authority can easily demonstrate that it was the titled owner of the

property. In other cases, cultural property may be returned to its country or tribe of origin even if the

foreign government was not the titled owner. This is usually accomplished by recognizing foreign

or tribal laws that establish governmental ownership of cultural property. If agencies and USAOs

want to use this alternate theory of ownership, they should determine whether an appropriate cultural

patrimony law exists before planning to return forfeited cultural property to a foreign government or

tribe.

Agencies and USAOs should coordinate any communications about petitions for remission

withaforeigngovernmentalortribalauthorityrepresentativewitheithertheDepartment’sOceof

InternationalAairs(OIA)ortheseizingagencyattaché. See Justice Manual (JM) § 9-13.540.

In judicial cases involving forfeitures pursuant to 19 U.S.C. § 2609, Convention on Cultural Property

ImplementationAct(CPIA),thegovernmentmustrstoertoreturnforfeitedpropertytocountries

that are parties to CPIA. In these cases, MLARS will conduct a summary review of the case and issue

a concurrence letter. USAOs should submit CPIA requests to MLARS just as they would submit

typical remission petitions.

II. Qui Tam Actions: Payment of Relator’s Share

A. Overview of the False Claims Act (FCA)

The False Claims Act (FCA) imposes civil liability on any person who submits a false or fraudulent

claim to the government. See

31U.S.C.§§3729–3733.AnactionmaybeledbytheAttorney

General or a private person on behalf of the government. See§3730(a)–(b).Anactionledbya

private person is known as a qui tamsuit,andtheprivatepartylingtheactionisreferredtoasthe

relator. The government can intervene in and take over the litigation of a qui tam suit or permit the

relator to pursue the qui tam suit on their own. See § 3730(b)(4). If the qui tam suit is successful,

the government recovers the judgment and pays part of it to the relator. See

§3730(d).Therelator’s

share of any recovery depends in part on whether the government intervenes in the action. See

§ 3730(d)(1) & (2).

TheFCApermitstherelatortoobjecttoasettlementoftherelator’sclaim.See 31 U.S.C.

§3730(c)(2)(B).However,thegovernmentmaysettlenotwithstandingarelator’sobjectionifthe

court determines after a hearing that the settlement is “fair, adequate, and reasonable.” Id.

In addition, the FCA provides that in qui tam suits the government “may elect to pursue its claim

through any alternate remedy available to the Government, including any administrative proceeding

to determine a civil money penalty.” 31 U.S.C. § 3730(c)(5). The purpose of this “alternate

remedy”provisionistoprovidethegovernmentwithmaximumexibilitytochoosethebestforum

for pursuing its fraud claims against the defendant. See S. Rep. 99-345, 99th Cong., 2d Sess. 27,

reprinted in 1986 U.S.C.C.A.N 5266, 5292. Thus, the alternate remedy provision authorizes the

Information about applicable cultural patrimony laws can be found in the UNESCO Database of Cultural Heritage Laws.

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Asset Forfeiture Policy Manual 2023  13-5

governmenttostaytherelator’sFCAactionandchooseinsteadtopursueitsfraudclaimsagainst

thedefendantthroughanalternativeproceeding,inlieuoftherelator’sactionundertheFCA.Id.

(“While the Government will have the opportunity to elect its remedy, it will not have an opportunity

for dual recovery on the same claim or claims.”) To ensure that the relator is not prejudiced if the

government pursues an alternate remedy, the relator is granted the same rights in the alternative

proceeding that the relator would have had in the civil action under the FCA, including the right to

participate in the proceedings, to object to any settlement of the proceeding, and to receive a share of

any recovery as described in Section II.D in this chapter. See 31 U.S.C. § 3730(c)(5).

B. Forfeiture proceedings as alternate remedies

In general, a forfeiture proceeding does not qualify under the FCA as an alternate remedy giving rise

to a relator share because the alternate remedy provision encompasses only those proceedings that are

properlyviewedasasubstitutefortherelator’scivilclaimsundertheFCA.

However, some courts

maybeinclinedtondanalternateremedywhereacriminalproceedingwillrecovermostorallof

a qui tamdefendant’sassets,particularlyifthegovernmentalsostayedtherelator’squi tam suit in

favor of the criminal case.

Under such circumstances, a court may conclude that the government

deprived the relator of any meaningful opportunity to pursue the qui tam suit, and therefore the

criminalproceedingwaseectivelyasubstituteforthatsuit.Accordingly,insuchcircumstances(i.e.,

where the criminal proceeding will render the defendant without assets to satisfy an FCA judgment,

and particularly where the government has stayed the qui tam case to pursue the criminal case), it may

be appropriate to consider a negotiated resolution of the alternate remedy issue, provided that other

basestochallengetherelator’sentitlementtoasharedonotexist.

Ifarelatorseekstointerveneorleaclaiminanyforfeitureproceeding,theprosecutormust

immediatelyconsultgovernmentcounselontheFCAactionortheDirectoroftheDepartment’s

Commercial Litigation Branch, Fraud Section, Civil Division, and should also consult MLARS.

C. Source of relator’s right to recover

IfarelatorisawardedashareofanyforfeitureproceedsundertheFCA’salternateremedyprovision,

therelator’sentitlementtotheproceedsarisesstrictlyoutoftheFCAanddoesnotconstituteaclaim

ofownershiporinterestinthespecicpropertyforfeited.Consequently,aqui tam relator does

See United States ex rel. Babalola v. Sharma, 746 F.3d 157, 158–62 (5th Cir. 2014) (holding that because there was no

qui tam action pending at the time the government pursued criminal charges, the criminal charges could not be deemed

an alternate remedy under FCA); United States v. Lustman, No. 4:05-CR-40082, 2006 WL 1207145, *3 (S.D. Ill. May 4,

2006)(rejectingtherelators’motiontointervenein,andobtainashareoftheproceedsof,acriminalproceedinginstituted

against one of the defendants named in their qui tam action).

See United States v. Bisig, No. 1:00-CV-00335, 2005 WL 3532554, *4 (S.D. Ind. Dec. 21, 2005).

Thefollowingissuesmayconstituteabasistochallengetherelator’sentitlementtoashareofthejudgment:(1)the

validity of the qui tamaction;(2)therelator’sallegationsarebasedona“publicdisclosure”andtherelatordoesnot

qualify as an original source of those allegations; or (3) jurisdictional and non-jurisdictional reasons why a relator has

failedtoleavalidaction(forexample,wherearelatorisnotthersttoleorhasfailedadequatelytopleadaFCA

claim). See31U.S.C.§3730(e)(4);DepartmentbriefsledinUnited States ex rel. Hefner v. Hackensack Med. Ctr.,

495 F.3d 103 (3d Cir. 2007), and United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634 (6th Cir. 2003).

Moreover,evenwherearelator’sactionisproper,therelatormaybeentitledonlytoareducedshare.See 31 U.S.C.

§ 3730(d)(1) & (3).

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not qualify as a third party entitled to relief pursuant to 21 U.S.C. § 853(n) or 18 U.S.C. § 983(d).

Likewise, the qui tam relator is not a victim or third party generally entitled to recovery pursuant to

the regulations governing petitions for remission.

D. Relator’s share is a percentage of the net forfeiture recovery

If a court orders that the forfeiture constitutes an alternate proceeding and the relator is entitled to a

share of the recovery, the relator must be awarded a percentage of the net forfeiture recovery.

The

agreement of the parties or the adjudication should determine the exact percentage share the relator

will receive.

Whileitispreferableforthisdeterminationtobemadepriortothenaldisposition

of the forfeited assets, this may not always occur. In fact, where the FCA action will be litigated

aftertheforfeitureproceeding,itisunlikelythattherelator’ssharewillbedeterminedpriortothe

naldispositionoftheforfeitedassets.Insuchinstances,therelatormightrequestthatupto25%of

thetotalforfeiturerecoverybeescrowedincasesuchfundsarelaterneededtosatisfytherelator’s

share.

Because the proceeds of the forfeiture will be deposited into the Assets Forfeiture Fund

(AFF), an escrow is not necessary and prosecutors should oppose the request.

Determining the

dollarvalueoftherelator’sshareismorecomplicated.Inthecontextofaforfeiture,“theproceedsof

the action” would be the amount of money available for deposit into the AFF—i.e., the net recovery,

whichcanbedenedasthevalueoftheforfeitedpropertylessthevalueofanyvalidclaimsandthe

costs associated with the seizure, forfeiture, and disposal of the property. Consequently, the dollar

valueoftherelator’ssharecannotbedetermineduntilallclaimsandexpensesarepaidandthe

amountavailablefordepositintotheAFFisxed.

See United States v. Bisig,No.1:00-CV-00335,2005WL3532554,*6–7(S.D.Ind.Dec.21,2005)(grantingrelator’s

motionstointerveneandforadjudicationofrelator’sinterestinforfeitedproperty,despitethefactthatrelatordidnot

qualify for relief under 21 U.S.C. § 853(n), as relator had a valid claim under FCA).

See28C.F.R.§9.4(b),providingthatonlypetitionersasdenedin28C.F.R.§9.2(o)orattorneysandguardiansontheir

behalfmayleapetitionforremission;28C.F.R.§9.2,deningpetitioner to include an owner, a lienholder, or a victim

asdenedinothersubpartsof§9.2.

Under the FCA, the percentage of the proceeds that the relator is entitled to recover varies depending on whether the

governmentintervenesintherelator’sactionaswellasotherfactors.See 31 U.S.C. § 3730(d)(1) & (2). Assuming that

therelatorisnototherwisebarredfromclaimingashareoftheproceeds,determinationoftherelator’ssharewillinvolve

two related inquiries: (1) the “percentage” of the proceeds of the action to be awarded to the relator and (2) the value of

those “proceeds.” Section 3730(c)(5) makes these inquiries applicable to a proceeding qualifying as an alternate remedy.

The Commercial Litigation Branch has issued guidelines governing the determination of relator share percentages. The

Commercial Litigation Branch or government counsel in the FCA action—not forfeiture counsel—is responsible for

determiningorlitigatingtherelator’sshareissue.

Wheretherelator’sshareisaddressedmaydependontheforuminwhichtherelatorchoosestopursueit;however,the

government should advocate for the determination to be made in the FCA action whenever such litigation remains viable.

See31U.S.C.§3730(d)(1),whichlimitsrelator’srewardto25%oftheproceedsofanactionorsettlementinthosecases

where the government proceeds with an action. Relators have made similar requests regarding the escrow of funds paid

towardrestitutionandcriminalnes.Wheretherestitutionispayabletogovernmentalvictims,thegovernmentmay

consider such requests, particularly where the FCA action will not be completed. However, prosecutors should always

opposerequestsforanescrowoffundsduetoindividualvictimsorforcriminalnes.

Untiltherelator’sshareisdetermined,theDepartmentwillnotknowtheamountoffundsthatwillremaininthe

AFF.Therefore,analdecisiononanypetitionforremissionormitigationshouldbedeferreduntiltherelator’sshare

is determined, unless the total value of all petitions for remission or mitigation is less than 75% of the net forfeiture

recovery.

On request of the relator, the government may provide the total expenses incurred in connection with a forfeiture

proceeding.IntheDepartment’sview,relatorshavenorighttochallengeforfeitureexpensesorinterveneinproperty

management issues and thus are not entitled to a detailed itemization of forfeiture expenses, even if the forfeiture

proceeding is determined to be an alternate remedy.

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Asset Forfeiture Policy Manual 2023  13-7

Thedollarvalueoftherelator’sshareiscalculatedinthesamefashionwhentheforfeitureproceeding

isresolvedbysettlement.Wherepossible,thegovernmentshouldobtaintherelator’sagreementto

the forfeiture settlement. Pursuant to the FCA, however, the government may settle the action with

the defendant notwithstanding the objection of the relator “if the court determines, after a hearing, that

the proposed settlement is fair, adequate, and reasonable under all the circumstances.” See 31 U.S.C.

§ 3730(c)(2)(B).

E. Procedure for paying relator’s share

Becausetherelator’sshareismandatedbyCongress,itisanecessaryexpenseincidenttothe

forfeiture of the property as provided for in 28 U.S.C. § 524(c)(1)(A). The government should obtain

anorderintheFCAactionthatreectsthepercentageshareofthenetrecoverytobepaidtothe

relator and forward a copy of the order to the U.S. Marshals Service (USMS), directing the USMS to

paytherelator’sshare.

Similarly,theDepartmentoftheTreasury(Treasury)ForfeitureProgrammayauthorizearelator’s

share as a necessary expense incident to the forfeiture of the property pursuant to 31 U.S.C.

§ 9705(a)(1)(A). Payment is coordinated through the seizing agency and the Treasury Executive

OceforAssetForfeiture(TEOAF),anditisusuallyprocessedusingaForm7refundpackageifthe

funds are already in the Treasury Forfeiture Fund (TFF). Please contact the seizing agency counsel or

TEOAF legal counsel for assistance.

Asset Forfeiture Policy Manual 2023  14-1

Chapter 14:

Forfeiture and Compensation for Victims of Crime

I. Overview

Forfeitureisacriticaltoolintherecoveryofillicitgainsarisingfromnancialcrimessuchasfraud,

embezzlement, and theft. Returning forfeited assets to victims through the remission and restoration

processesisoneoftheprimarygoalsoftheDepartmentofJustice’s(Department)AssetForfeiture

Program (Program).

Remissionandrestorationauthorityexistsforvirtuallyalloensesforwhich

the government obtains a related administrative declaration of forfeiture, or civil or criminal forfeiture

order.

See 18 U.S.C. § 981(e)(6) (civil forfeiture), and 21 U.S.C. § 853(i)(1) (while § 853(i) governs

the procedures for disposing of property criminally forfeited under the drug abuse prevention and

control laws, those procedures are incorporated by reference in 18 U.S.C. § 982(b)(1), which extends

thoseprocedurestomostothercriminaloenses).

There are three primary means to pay victims—restitution, remission, and restoration. Restitution

refers to the process of determining victim losses for purposes of sentencing and paying victims in

criminal cases, often, but not always, through collections from defendants and via the Federal Debt

Collections Procedures Act.

Remission is a process whereby, in a civil or criminal forfeiture proceeding, the Department solicits,

considers, and rules on petitions for payment. The petitions can be submitted by, among other

petitioners, victims. The federal regulations governing the remission of civil or criminal forfeiture are

found at 28 C.F.R. Part 9.

Restoration is a hybrid process available in both civil and criminal forfeiture proceedings that are

closely related to a criminal prosecution in which a court has issued a restitution order identifying

victims and restitution losses for which a defendant is liable. The restoration procedure enables the

Attorney General to transfer forfeited funds to a court for satisfaction of a criminal restitution order,

provided that all victims named in the order otherwise qualify for remission under the applicable

regulations.

Remission, restoration, and criminal restitution all serve to compensate victims through related but

distinct mechanisms. Remission and restoration are discretionary procedures for victim recovery

fromforfeituresandareavailabletopersonswhohaveincurredpecuniarylossesfromtheoense

underlyingtheforfeitureorfromarelatedoense.Restitutionisacourt-orderedequitableremedy

intended to make crime victims whole and prevent unjust enrichment to the perpetrator. In many

cases, restoration—the use of forfeited funds to pay restitution—is desirable, because the defendant

may be left without assets to satisfy the restitution obligation following forfeiture.

See The Attorney General’s Guidelines on the Asset Forfeiture Program (July 2018) (AG Guidelines).

Funds shared with the United States by a foreign government that have not been forfeited under U.S. law may not be

eligible to be used for victim remission or restoration. However, depending upon the circumstances of the case, it may

be possible to employ other mechanisms for using such shared funds to make victims whole. If U.S. prosecutors or

investigators assisted in a foreign case involving victims that resulted in a foreign forfeiture, they should also contact

the Money Laundering and Asset Recovery Section (MLARS) for guidance on potential alternative mechanisms and

submission of a sharing request to that country. See also Chap. 8, Sec. X in this Manual.

Chapter 14: Forfeiture and Compensation for Victims of Crime

14-2  Asset Forfeiture Policy Manual 2023

The Money Laundering and Asset Recovery Section (MLARS) is the decision maker on petitions

for remission and restoration requests for all judicial forfeitures, including those conducted by the

Department of the Treasury (Treasury) Forfeiture Fund (TFF) member agencies.

The TFF has a

similar procedure for remission and restoration.

II. Returning Forfeited Assets to Victims

A. Remission

For administrative forfeitures, the seizing agency should provide notice to all parties believed to be

victims.Thenoticeshouldadvisevictimsoftherighttoleapetitionforremissionunder28C.F.R.

Part9.Forjudicialforfeitures,theU.S.Attorney’sOce(USAO)shouldsendnoticetoallpotential

victims who did not submit a petition for remission following any administrative notice or who will

not be included in a restitution order and related restoration request.

Once assets have been judicially forfeited, the authority to distribute them to owners, lienholders, and

victims rests solely with the Attorney General. See 28 U.S.C. § 524(c)(1)(E)(i); 18 U.S.C. § 981(d);

21 U.S.C. § 853(j)(1), incorporated by reference in 18 U.S.C. § 982(b)(1); 21 U.S.C. 881; 28 C.F.R.

§ 9. The Attorney General delegated the authority to decide petitions for remission in judicial cases

to the Chief of MLARS. See 28 C.F.R. § 9.1(b)(2). In administrative forfeitures, the authority to

decide petitions for remission or mitigation rests with the seizing agency.

Questions regarding

administrative forfeiture policies and procedures should be directed to the seizing agency.

The remission process for victims is governed by regulation. See 28 C.F.R. § 9.8. The deciding

ocialdecidespetitionsbasedonwrittendocumentation.Thereisnorighttoahearingon

the petition. See 28 C.F.R. § 9.4(g). Unsuccessful petitioners are entitled to one request for

reconsideration,whichisreviewedanddecidedbyadierentdecidingocial.See § 9.3(j)(2) & (3);

§ 9.4(k)(2) & (3). Judicial review of a denial of remission is not available.

Although the USAO and

seizing agency must provide recommendations as to the allowance or denial of a judicial petition

forremission,thenaldeterminationrestswithMLARS.Theseizingagencydecidingocialis

responsibleformakinganaldeterminationforpetitionsinadministrativeforfeitures.USAOsor

seizing agencies must take care not to make representations to the court or potential victims as to

whether remission will be granted.

TFF member agencies include the Internal Revenue Service-Criminal Investigation (IRS-CI), U.S. Immigration and

Customs Enforcement-Homeland Security Investigations (ICE-HSI), U.S. Customs and Border Protection (CBP),

U.S. Secret Service (USSS), and U.S. Coast Guard (USCG).

Please consult the Guidelines for Treasury Forfeiture Fund Agencies on Refunds Pursuant to Court Orders, Petitions for

Remission, or Restoration Requests (Treasury Blue Book). Download a copy of Treasury Blue Book from treasury.gov.

See 19 C.F.R. §§ 171.11-171.14 and 172.11-172.14; 26 C.F.R. § 403.35-403.45; 28 C.F.R. § 9.1(b)(1).

See LKQ Corp. & Keystone Auto. Indus., Inc. v. DHS, 369 F. Supp. 3d 577, 585 (D. Del. 2019) (court lacked subject

matter jurisdiction under Administrative Procedures Act to review decisions by CBP on petitions for remission because

remission statutes provide CBP with wide discretion to make a determination on remission or mitigation; such decisions

are unreviewable absent allegations of statutory or procedural violations); United States v. Betancourt-Vega, No. 3:12–

CR–314,2013WL6697811,*4(N.D.Tex.Dec.19,2013)(becausewhatclaimantledwasaremissionpetitionand

notaclaimunder18U.S.C.§983(a)(2),court’sreviewislimitedtoensuringthatDEAactedinaccordancewithproper

procedures in exercising its discretion); Laconia Sav. Bank v. United States, 116 F. Supp. 2d 248, 256 (D.N.H. 2000)

(whenclaimantchoosestoleremissionpetitioninsteadoflingclaim,courtiswithoutjurisdictiontoreviewthedenial

of the petition on the merits or consider any constitutional claims even if denial was an abuse of discretion).

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Asset Forfeiture Policy Manual 2023  14-3

Whenpetitionshavebeenledforbothadministrativelyandjudiciallyforfeitedassetsinthesame

case, the seizing agency must coordinate with MLARS and the forfeiture Assistant U.S. Attorney

(AUSA) assigned to the case to ensure consistency in rulings.

Manyforfeiturecasesbeginadministrativelyandbecomejudicialafterapartylesaclaim

challengingtheagency’sadministrativeforfeiture.Oftenthepartylesbothaclaimandpetition.

MLARS must eventually adjudicate the petition in a judicial forfeiture, but only after the claim is

resolved. However, the petitioner need not submit a second petition. The seizing agency should

forward the petition to the USAO, which will submit to MLARS.

A.1 Standards for victims—28 C.F.R. Part 9

Thefactualbasisandlegaltheoryunderlyingtheforfeiturewilldeterminewhoqualiesasavictim.

A victim for purposes of remission is “a person who has incurred a pecuniary loss as a direct

result of the commission of the oense underlying a forfeiture.” 28 C.F.R. § 9.2 (emphasis added).

Corporations, federal agencies, and other governmental entities, in addition to individuals, may

qualify as victims under the regulations. See 28 C.F.R. § 9.2.

Victimsmayalsorecoverlossescausedbyarelatedoense.See 28 C.F.R. § 9.8. Related oense

means:“(1)AnypredicateoensechargedinafederalRacketeerInuencedandCorrupt

OrganizationsAct(RICO)countforwhichforfeiturewasordered;or(2)Anoensecommittedas

partofthesameschemeordesign,orpursuanttothesameconspiracy,aswasinvolvedintheoense

for which forfeiture was ordered.” See28C.F.R.§9.2.Ingeneral,thedecidingocialwillconsider

allthecrimesdiscussedinthechargingdocumentsorcivilcomplaintas“relatedoenses”for

purposes of victim compensation.

 

A victim may be granted remission of the forfeiture of property if the victim satisfactorily

demonstrates that:

(1)Apecuniarylossofaspecicamounthasbeendirectlycausedbythecriminaloense,orrelated

oense,thatwastheunderlyingbasisfortheforfeiture,andthelossissupportedbydocumentary

evidence including invoices and receipts;

(2) The pecuniary loss is the direct result of the illegal acts and is not the result of otherwise lawful

actsthatwerecommittedinthecourseofacriminaloense;

(3)Thevictimdidnotknowinglycontributeto,participatein,benetfrom,oractinawillfully

blindmannertowardsthecommissionoftheoense,orrelatedoense,thatwastheunderlying

basis for the forfeiture;

(4) The victim has not in fact been compensated for the wrongful loss of the property by the

perpetrator or others; and

(5) The victim does not have recourse reasonably available to other assets from which to obtain

compensation for the wrongful loss of the property.

See 28 C.F.R. § 9.8(b).

See also footnote 2 in Chap. 13, Sec. I.A in this Manual.

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The regulations limit the amount of the pecuniary loss for which remission may be granted “to the fair

market value of the property of which the victim was deprived as of the date of the occurrence of the

loss.”28C.F.R.§9.8(c).However,theregulationsdonotdenetheterm“fairmarketvalue.”When

thelossispropertyotherthanmoney,thedecidingocialmustdecidethedateofthevictim’sloss

andthefairmarketvalueofthepropertyonthatdatetodeterminethevictim’srecoverableloss.

Avictim’specuniarylossmustbesupportedbydocumentaryevidence.Secondarylossestothe

principal loss, such as “interest foregone or for collateral expenses incurred to recover lost property

ortoseekotherrecompense,”orattorneys’feesorotherinvestigativeexpenses,arenoteligiblefor

remission. See 28 C.F.R. § 9.8(c).

Losses are also ineligible for remission if they result from property damage or physical injuries,

or from a tort associated with illegal activity that formed the basis for the forfeiture, unless the tort

constitutes the illegal activity itself. See

28C.F.R.§9.8(d).However,specic,documentedpecuniary

losses like medical and counseling bills in child exploitation cases may be eligible for remission.

Victimswho“knowinglycontributeto,participatein,benetfrom,oractinawillfullyblind

mannertowardsthecommissionoftheoense,orrelatedoensethatwastheunderlyingbasis

for the forfeiture” are also ineligible for remission. See 28 C.F.R. § 9.8(b)(3). However, forced or

unknowing participation in a crime will not preclude victims from compensation under this provision.

For example, in some cases in which elderly fraud victims lose money yet also unwittingly serve

as “money mules”—that is, persons who transfer money acquired illegally—those victims may be

eligible for remission.

Victimsneednotshowthattheirspecicfundsareamongthefundsthathavebeenforfeitedto

establish eligibility for remission.

Petitions should be made sworn under penalty of perjury. Petitioners should also submit any

supporting documentation that the government does not already have to support their petitions and

claims of qualifying pecuniary losses.

A.3 Priority in multiple-victim remission cases

The Department gives priority in the distribution of forfeited assets to valid owners, lienholders,

federalnancialregulatoryagencies,

and victims (in that order), who in turn have priority over

ocialuserequestsandequitablesharingrequests.Victimrecoveryislimitedtothenetproceedsof

allassetsinthecaseorrelatedcases.Incasesinvolvingmorethanonevictim,thedecidingocial

will generally grant remission on a pro rata basis where the amount to be distributed is less than

thevalueofthevictims’losses.Additionalexceptionsarepermittedonlyinraresituations,suchas

when a pro rata distribution would result in extreme hardship to a victim or when a victim has better

evidence of loss than other victims. See 28 C.F.R. § 9.8(f). However, the tracing of a particular

victim’sfundsintoaforfeitedaccountdoesnotgivethatvictimpriorityoverthevictimswhosefunds

cannot be traced.

Afederalnancialregulatoryagencyisgenerallyentitledtopriorityofdistributionovernon-ownervictimsforlosses

and expenses incurred in its capacity as receiver of a failed institution. See 28 C.F.R. § 9.8(h). This priority applies only

forreimbursementoftheFederalDepositInsuranceCorporation(FDIC)’spaymentstoclaimantsandcreditorsofthe

institution or reimbursement of insurance fund losses under 18 U.S.C § 981(e)(3), and for fraud losses associated with the

sale of assets held in receivership pursuant to § 981(e)(7).

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A.4 Claims administrators

MLARS may opt to hire a trustee or claims administrator in large, multiple-victim cases to assist in

notifying potential victims of the opportunity to seek remission, processing the petitions, and making

decision recommendations. See 28 C.F.R. § 9.9(c). MLARS will coordinate with the USAO and lead

seizing agency, as necessary, during the selection process. In addition, if a trustee has been appointed

in parallel regulatory or bankruptcy actions, MLARS may approve transferring funds for distribution

tothetrusteeforultimatepaymenttotheidentiedvictimpool.

USAOs and agencies interested in using the services of a trustee or claims administrator to support

the remission and restoration processes should consult early with MLARS. MLARS awarded a

nationalclaimsadministrationsupportcontractthatsimpliesprocurementactionsandstreamlines

petitionreviewandpaymentdistributioninvictimcaseswherehighlyexperiencedandexpertrms

are required to handle the volume of petitioners. Costs of an administration contract are deducted

from the forfeited funds prior to any distribution.

A.5 Additional grounds for denial of remission to victims

Remission to victims may be denied: (1) if determination of the pecuniary loss to be paid to individual

victimsistoodicult;(2)iftheamounttobepaidtovictimsissmallcomparedtotheexpense

incurredbythegovernmentindecidingthevictims’claims;or(3)ifthetotalnumberofvictimsis

large and the amount available for payment to victims is so small as to make granting payments to

victims impractical. See 28 C.F.R. § 9.8(e).

A.6 Timeliness

Victimsshouldlepetitionsforforfeitedassetswithinthetimeperioddetailedinthenotice.

However,whenavictimfailstosubmitatimelypetition,thedecidingocialmayallowexceptions

forgoodcausebasedontheparticularcircumstancesofthecase.Victimsmaylepetitionsinthe

Program’sOnline Claims & Petitions portal up to 60 days after the date of forfeiture; after that date,

they must submit paper forms.

A.7 Remission decisions

Decidingocialswillsendremissiondecisionstothevictimsalongwithinstructionsforobtaining

payment.VictimsmustprovidetheirownTaxIdentication(TID)number(e.g., Social Security

number(SSN))forpurposesoftheTreasuryOsetProgram(TOP),althoughtheymaychoosetouse

theirattorney’sbankaccountforpayment.MLARS,TreasuryExecutiveOceforAssetForfeiture

(TEOAF), the seizing agency, and the U.S. Marshals Service (USMS) do not have insight into

whetheranosetwilloccur.However,victimscancall(800)304-3107fortheTreasuryBureauof

theFiscalService’sTOPinteractivevoiceresponsesystemtodeterminewhetheranosetwilloccur.

BecauseofunknownTreasuryosetsandcaseexpenses,MLARSrefrainsfromquotingspecic

payment amounts to victims in their remission grant letters.

Ifthedecidingocialgrantsremission,theocialwillnotifyboththeforfeitureunitandthe

nanciallitigationunitattheUSAO.TheUSAOmustrecordpaymentinformationforpurposesof

If direct notice is provided, it can be sent by the USAO, seizing agency, or claims administrator, as appropriate.

Victims should visit forfeiture.gov’spetition information page for updated forms and FAQs.

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capturing any restitution “credit” to the defendant in remission cases and coordinate with the local

Financial Deputy Clerk of Court to ensure that the court is aware of the credit.

B. Restoration

Because forfeited assets are property of the government, courts and defendants lack authority to use

themtosatisfyadefendant’scriminaldebts,includingnesorrestitutionobligations.However,in

many cases, defendants are left with little or no property after the forfeiture is completed. Thus, under

the restoration procedures, the Department may forfeit property and transfer the proceeds to the court

insatisfactionofthedefendant’sorderofrestitution.

Restorationsimpliesandacceleratesthereturnofforfeitedpropertytovictims.Restorationis

an alternative to petitions for remission in cases where both forfeiture and restitution have been

ordered and is designed to accommodate victims and the courts to the furthest extent possible while

stillmeetingthestatutoryandregulatoryrequirementsforremission.Victimswillnotneedtole

petitions for remission, and the process of returning funds to victims typically will be faster. The

forfeiture will be completed so that costs can be recovered and third-party rights extinguished.

Proceeds from civil, criminal, and administrative

forfeitures can be handled together and applied

to restitution. Assets will be distributed primarily as they would have been under the remission

regulations. The restoration procedure permits victims to obtain compensation from the forfeited

assetsinaccordancewiththecourt’srestitutionorderwithouthavingtolepetitionsforremission

with the government and await decisions on them. These procedures apply where:

(1) both restitution to compensate victims and a related forfeiture (either civil, criminal, or

administrative) have been ordered;

(2) the victims and amounts listed in the restitution order essentially conform to the victims and

amounts that would have been paid through the remission process; and

(3) other property is not available to fully satisfy the order of restitution.

However, under no circumstances should the criminal AUSA make representations to a defendant

or the court that forfeited funds will be used to satisfy restitution through the restoration process.

TheAUSAmayrepresentinapleaagreementthattheUSAOwillseekMLARS’approvaltohave

forfeited funds applied to restitution, but AUSAs should qualify the representation by noting that they

will only seek such approval if appropriate under applicable regulations.

B.1 How the restoration process works

Restoration requires both a court order of restitution and an order or declaration of forfeiture.

Because restoration decisions must be approved by the Chief of MLARS (as delegated by the

Attorney General), the USAO or court may not unilaterally direct forfeited assets to be applied to

restitution, or decrease restitution orders by the value of forfeited assets.

However, when requested

In administrative forfeitures involving TFF member agencies, the USAO must obtain the written concurrence of the local

or headquarters TFF seizing agency before MLARS may approve restoration of forfeited funds for purposes of criminal

restitution. See Treasury Blue Book, Sec. VI.B.1.b. TEOAF policy does not permit the release of administratively

forfeited funds to crime victims without the prior approval of the TFF seizing agency. See Treasury Blue Book,

Sec. VI.B.1.b.ii.

TheAttorneyGeneral’srestorationauthorityhasbeendelegatedtotheChiefofMLARSpursuanttoAttorneyGeneral

Order No. 2088-97 (June 14, 1997).

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by the USAO, MLARS may undertake a preliminary review of the expected restitution and forfeiture,

sothatprosecutorsmayadvisethecourtofthegovernment’sintendeddistributionoftheproperty.

To request restoration, the USAO must send the Chief of MLARS a copy of the judgment in a

criminal case containing the order of restitution and a copy of the forfeiture order, along with a

written request signed by the U.S. Attorney, or a designee, that includes the representations outlined in

Section II.B.2 in this chapter. If the restitution order is sealed, the USAO must submit the underlying

list containing victim names and restitution amounts to MLARS. If the Chief of MLARS approves

therequestforrestoration,MLARSnotiesboththeUSAOandthecustodianoftheproperty.The

custodian then transfers the net proceeds of the forfeiture to the clerk of court for distribution pursuant

to the order of restitution. MLARS will not accept or approve restoration requests for assets that have

beendisposedofforoverveyearsunlessthereareuniquecircumstancessurroundingthedelay.

Restoration is appropriate only when the distribution pursuant to the restitution order is essentially the

same as the distribution that would be obtained through the remission process. Prosecutors who plan

torequestrestorationmustworkwiththeseizingagency,probationocer,andthecourttoensure

thatthecourt’srestitutionorderliststhenamesofallvictimsandtheamountofrestitutiondueto

each. Updated payment addresses must also be provided to the court so that the funds are paid out to

victims.

Restitutionisgenerallyavailableforamuchbroaderrangeofharmsthanmaybesatisedthrough

remission,whichisallowedonlyforpecuniarylossescausedbytheoenseunderlyingtheforfeiture

orarelatedoense.Thus,restorationmaynotbeusedwhereasignicantportionofthelosses

covered by the restitution order relate to bodily harm, property damage, future expenses, and

collateral expenses like legal, accounting, or security expenditures incurred in trying to correct the

harmcausedbythecrime.Moreover,28C.F.R.§9.8(c)limitsthevictim’slosstothefairmarket

value of the property of which the victim was deprived, as of the date of the loss. No allowance is

madeforinterestforgone,lostprots,orcollateralexpensesincurredtorecoverlostpropertyorto

seek other recompense.

If the restitution order is not amenable to the restoration process, MLARS will advise the USAO, and

the USAO may have to collect remission petitions to distribute forfeited funds to victims through

the remission process. In some instances, a USAO may be able to use an existing victim impact

statement as a substitute for a petition for remission, or a “hybrid” approach may be warranted. See

Section II.F in this chapter.

B.2 Representations

Restoration is designed to achieve results that are consistent with the results of the application of the

remission standards for forfeited assets at 28 C.F.R. § 9.8. Therefore, the U.S. Attorney, or a designee,

must inform MLARS, in writing and accompanied by a signature, as part of the request for restoration

that:

(1) 

are properly accounted for in the restitution order. This representation is intended to

ensure that no victims have been left out of the restitution order and that all are treated

Treasury has issued a similar policy to not accept or approve restoration requests for assets that have been disposed of for

overveyearsunlessthereareuniquecircumstancessurroundingthedelay.

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14-8  Asset Forfeiture Policy Manual 2023

fairlyintheorder.Thisisalsotoensurethattherestitutionorderreectstheproper

priority of payment to victims, if applicable.

(2) To the best of the U.S. Attorney’s, or designee’s, knowledge and belief after

consultation with the seizing agency, the losses described in the restitution





on investments, interest payments, insurance proceeds, refunds, settlement

payments, lawsuit awards, and any other sources of compensation for their

losses. This is to avoid double recovery by victims who may already have been

compensated for part of their losses.

(3) To the best of the U.S. Attorney’s, or designee’s, knowledge and belief after



assets establish that the victims do not have recourse reasonably available to

obtain compensation for their losses from other assets, including those owned

or controlled by the defendants. This is to ensure that restoration does not confer an

unduebenetonthedefendant.

(4) There is no evidence to suggest that any of the victims knowingly contributed to,



. This is to

prevent the return of forfeited property to those who essentially took part in the conduct

that led to the forfeiture.

TheUSAOmustalsoensurethatthetimeforlinganappealchallengingeithertherestitutionorder

or the forfeiture has passed or all relevant appeals have been adjudicated before submitting the

restoration request to MLARS.

Because restitution and forfeiture are mandatory and independent parts of a criminal sentence, the

forfeited assets may not be used to satisfy the restitution order if other assets are available for that

purpose. Typical examples of this situation might involve corporations that have extensive holdings

that are not subject to forfeiture, or individuals who have property that exceeds the amount subject to

forfeiture. The statutes governing restitution permit the government to enforce the restitution order as

analjudgmentagainstalmostallofthedefendant’sproperty,notjustfacilitatingpropertyorfraud

proceeds that may be subject to forfeiture. Asset forfeiture coordinators should coordinate with the

nanciallitigationcoordinatorsintheirocesonthebestapproachtoreturnallavailableassetsto

victims.

B.3 Payment

To restore assets to the victims listed in the restitution order, MLARS will notify the USAO and

property custodian. The custodian will then transfer the net forfeited proceeds of all assets in the

case or related cases to the clerk of court for distribution pursuant to the restitution order, which

shouldreectproperpriorityofpayment.Paymentswillbemadeonlyinaccordancewiththecourt’s

restitutionorder.Iftheforfeitedassetsarenotsucienttofullysatisfytheorder,paymentwillbe

made by the court as directed in the order. Federal government entities are compensated only after all

See Sec. II.B.3 in this chapter.

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Asset Forfeiture Policy Manual 2023  14-9

non-federal agencies are compensated in full. See 18 U.S.C. § 3664(i); see also Section II.D in this

chapter. Insurance companies must also be prioritized after direct victims. See 18 U.S.C. § 3664(j).

C. Preservation of assets for victims

To ensure that forfeited assets are made available for victims, the USAO and seizing agency must

enter remission petitions in the Consolidated Asset Tracking System (CATS) immediately upon

receipt. In addition, the USAO must place a restitution “hold” on the distribution of seized assets in

CATSwhenarestorationrequestisanticipated.Ifassetsaretransferredforocialuseorequitable

sharing prior to victim compensation, the transfer may be reversed at the discretion of the Chief of

MLARS or the Director of TEOAF (for seizures by TFF member agencies) to make the property

available for remission or restoration.

BecauseCATSisnottheTFF’ssystemofrecord,theUSAOmustrequestthattheTFFpreserveassets

in cases involving TFF agencies where restitution may be ordered or where remission or restoration

may occur. To ensure the preservation of the forfeited property in judicial cases involving TFF

agencies, the USAO must also timely notify and send a copy of the restoration request to the TFF

seizing agency.

D. Special considerations for federal government victims

A federal government agency may qualify as a victim entitled to receive compensation through the

restoration and remission procedures. A federal government agency victim, like any other type of

victim,mustdemonstratethatitsueredapecuniarylossofaspecicamountasadirectresultof

thecommissionoftheoense,orrelatedoense,underlyingtheforfeiture.See 28 C.F.R. §§ 9.2 and

9.8(b). Federal agencies are not required to submit detailed documentation of loss when an acceptable

estimation of loss is provided.

Federalgovernmentagenciesoftensuerpecuniarylossesasaresultofcrimesinvolvingtaxpayer-

funded programs like Medicare or Medicaid healthcare, Supplemental Nutrition Assistance Program

(SNAP)benets,andU.S.DepartmentofHousingandUrbanDevelopment-insuredloans.Insome

cases,thefederalinvestigatingagencyisalsoavictimoftheoensethatitisinvestigating.For

instance, the Internal Revenue Service-Criminal Investigations (IRS-CI) may investigate and seize

assets in a tax return scheme in which the IRS unknowingly paid tax refunds based on fraudulent tax

returns. In these cases, the agency must ensure that the division of the agency providing the petition

report and recommendation is separate from the petitioning division. For example, in an IRS-CI

investigation involving a tax return scheme, IRS-CI could provide the remission petition report and

recommendation,whileadierentIRSdivisionsubmitsthepetition.

The act of forfeiting the seized assets and depositing the proceeds into the Assets Forfeiture Fund

(AFF) or TFF does not mean that the seizing agency has received victim compensation. Rather, the

victimagencyshouldeither(1)beincludedintherestitutionorder,withaspeciedpecuniaryloss

amount, for restoration request purposes,

or(2)leapetitionforremissionrequestingcompensation

for its losses from the proceeds of the forfeited assets.

See Treasury Blue Book, Sec. VI.B.1. Download Treasury Blue Book from treasury.gov.

If restoration is used pursuant to 18 U.S.C. § 3664(i) federal agencies will not receive compensation until all non-federal

victims are compensated in full.

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14-10  Asset Forfeiture Policy Manual 2023

 

On May 29, 2015, the JusticeforVictimsofTrackingAct (JVTA) was enacted.

JVTA directs

the Attorney General to pay victim restitution orders in cases where a forfeiture occurs pursuant

to 18 U.S.C. § 1594. See § 1594(f)(1). Accordingly, MLARS processes requests from USAOs in

accordancewiththisstatutorylanguageregardlessofwhetherthevictims’lossesareconsidered

“pecuniary”asdenedbytherelevantremissionregulations.Ifnorestitutionorderexistsincases

where a forfeiture occurs pursuant to § 1594, MLARS will consider petitions for remission that

includeaclaimoflostwages(basedonminimumwage)asthevictim’specuniaryloss,alongwith

any other losses permitted by 28 C.F.R. Part 9.

However, 18 U.S.C. § 1594 does not allow for innocent owner or lienholder priority in remission

cases. See § 1594(f)(2). Therefore, the USAO must resolve all outstanding innocent owner and

lienholder claims through the judicial forfeiture process rather than the remission process.

F. Hybrid remission and restoration review

MLARS will process a restoration request together with petitions for remission in appropriate cases

whereahybriddecisionwouldbeanecientandjustmechanismforcompensatingthevictims.For

example, the USAO may discover after the entry of a restitution order that, despite its due diligence,

additional victims exist who were inadvertently omitted from the restitution order. In such a situation,

it may be burdensome to require the victims in the existing restitution order to seek remission.

MLARS may determine that a hybrid restoration and remission decision is appropriate in light of,

inter alia, the number of victims listed in the existing restitution order, the number of victims omitted

from the restitution order, the reasons why victims were omitted from the restitution order, and the

amount of net proceeds available for distribution from the forfeited assets. However, this hybrid

process is not suitable when a restitution order includes those who do not qualify as victims under the

remission regulations.

G. Termination of forfeiture and direct payment of assets to victims

If forfeiture tools and resources are used to seize an asset, the forfeiture process should be followed

to completion. Termination of forfeiture is appropriate only in extremely limited circumstances and

onlyifnonalorderofforfeiturehasbeenentered.Intheselimitedsituations,itmaybeappropriate

for the USAO to move to dismiss the forfeiture proceeding and request the court to direct the property

be turned over directly as restitution pursuant to 18 U.S.C. § 3663A(b)(1)(A), or be transferred to

the clerk of court to be paid to the victim. However, the USAO may not unilaterally direct a seizing

agency or property custodian to send funds that have been seized for forfeiture but not forfeited to

the clerk for restitution, absent a court order or agreement with the person from whom the funds were

seized.

Termination of forfeiture may be more appropriate than remission or restoration when the victim is

entitled to restitution for non-pecuniary harm or other collateral costs that are not compensable under

the remission regulations. In addition, termination of forfeiture may be appropriate in multiple-victim

fraud cases arising in jurisdictions with unfavorable caselaw concerning constructive trusts. See

Section III in this chapter. If forfeiture is to be terminated and payment is to be made to the victim

through the clerk of court, the property at issue must be liquid, as the clerk cannot liquidate real or

JusticeforVictimsofTrackingActof2015, Pub. L. 114-22, May 29, 2015, 129 Stat. 227.

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Asset Forfeiture Policy Manual 2023  14-11

personal property.

For example, the default method of sale to execute a restitution judgment is a sale

by the USMS at the courthouse. See 28 U.S.C. § 3203(g)(1)(A)(i).

H. Comparison of judicial remission and restoration chart

Remission Restoration

There is no need for a criminal conviction or

restitution order. Only a forfeiture of assets related

tothevictim’slossisrequired.

A criminal conviction, an order of restitution, and a

criminal, civil, or administrative forfeiture related

tothevictim’slossareallrequired.

The USAO, in cooperation with the investigative

agency or a claims administrator, may send notice

toallknownvictimsoftheoenseunderlyingthe

forfeiture.

The USAO works with the investigative agency

andprobationocetoidentifyvictimsand

determine their losses to ensure inclusion in the

restitution order.

Thevictimmustleapetitiontoreceive

compensation.

Thevictimisnotrequiredtoleapetitionbut

may be required to submit information to the

investigativeagencyorprobationocepriorto

sentencing.

For judicial forfeitures, the USAO requests

the investigative agency to prepare a report

and recommendation. The USAO makes a

recommendation and forwards the petition package

to MLARS.

The USAO submits a restoration request, including

the four required representations, to MLARS. See

Sec. II.B.2 in this chapter.

MLARS decides petitions for remission of

judicially forfeited assets. Seizing agencies decide

petitions for remission of administratively forfeited

assets.

The Attorney General, through MLARS, reviews

the restoration request and may restore forfeited

propertytovictimsidentiedintherestitution

order.

The custodian of the forfeited asset distributes the

net proceeds directly to victims.

The custodian of the forfeited asset transfers the

net proceeds directly to the Clerk of Court.

This is true also for TFF member agency cases. As a general rule, the TFF will not allow use of its property contracts to

liquidate non-seized or non-forfeited assets for purposes of restitution.

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III. Constructive Trusts in Multiple-Victim Fraud Cases

While courts generally agree that fraud victims do not retain legal title in money paid voluntarily

into a fraud scheme, some courts occasionally recognize constructive trusts in favor of victims.

Underthisequitableremedy,theperpetratorofthefraudholdstitletothevictim’sfundsintrustfor

thebenetofthevictim.Aconstructivetrustgenerallyrequiresavictimtotracetheirmoneytothe

seized funds, which may warrant extensive discovery and evidentiary hearings. This legal theory is

troublesome in forfeiture cases involving multiple victims because it can transform the forfeiture case

into a cumbersome and costly liquidation proceeding in which all victims compete against each other

and against the government for the seized funds. The government should generally oppose a claim of

constructive trust in multiple-victim fraud cases so that the Attorney General can return the funds to

the victims through the orderly remission or restoration process.

Some judicial circuits have recognized that the forfeiture statutes do not preclude, as a matter of law,

the imposition of a constructive trust.

Thus, government attorneys should consult the caselaw in

their circuit and state in responding to constructive trust claims in their districts.

In litigating forfeiture cases in circuits that recognize constructive trusts, government attorneys

mayelecttoopposevictims’individualclaimsofconstructivetrustonthemerits,andfurtherargue

that recognition of the trust would result in unfair priority to the claimant, contrary to the equitable

principles underlying the trust. The courts should also be advised that forfeiture will enable all

victims to have the opportunity to recover the funds on the pro rata basis through the Attorney

General’sremissionauthority.See 28 C.F.R. §§ 9.8(a)(1) and (f).

See United States v. $4,224,958.57 (Boylan), 392 F.3d 1002, 1003–1005 (9th Cir. 2004) (holding that victims of a large,

fraudulentinvestmentschemeestablishedasucientlegalinterestintheseizedproceedsthroughaconstructivetrustto

confer on them standing to contest the forfeiture); see also Willis Mgmt. (Vermont), Ltd. v. United States, 652 F.3d 236,

238 (2d Cir. 2011).

Asset Forfeiture Policy Manual 2023  15-1

Chapter 15:



 

A. Overview

Federalretention,or“federalocialuse,”meansalawenforcementagency’suseofforfeitedassets

in the direct performance of law enforcement activities, including operations, training, and other

functions such as administrative and other mission support activities. The transfer of “unique” assets,

suchaspropertyofculturalorhistoricalsignicance,tonon-componentfederalagenciesisalso

consideredfederalocialuse.TheAttorneyGeneralhastheauthoritytoretainortransferproperty

forocialusetoanyfederalagency.

According to The Attorney General’s Guidelines on the Asset

Forfeiture Program (July 2018) (AG Guidelines

),“Noseizedpropertyshallbeplacedintoocial

useuntilanaldeterminationofforfeiturehasbeenmadeandtherequesttoplacethepropertyinto

ocialusehasbeenapprovedbytheappropriateocial.”

Anyfederallawenforcementagencythatdirectlyparticipatesinalawenforcementeortthatresults

inafederalforfeituremayrequesttoputtangibleforfeitedpropertyintofederalocialuse.Agencies

mustrequestspecicassetsforfederalocialuse.

Federalocialuserequestswillbegrantedonly

ifspecicforfeitedpropertyremainsafterallapprovedclaims,petitionsforremission,andrestoration

requests have been processed and paid.

Federalagenciesmaynotputintofederalocialuseanycashorproceedsfromthesaleofforfeited

property.Therequestsneednotspecifytheexactintendeduseoftheassets,butallfederalocialuse

must be for law enforcement purposes.

 

Theheadofthefederalseizingagency,ordesignatedheadquartersocial,decideswhetherto

putassetsseizedbytheagencyintoitsownfederalocialuse.However,theMoneyLaundering

and Asset Recovery Section (MLARS) must approve requests to place anonymity-enhanced

cryptocurrenciesintofederalocialuse.

In any instance where the property requested for federal

ocialuseisvaluedatover$75,000,theseizingagencyandtheU.S.MarshalsService(USMS)must

provide MLARS with advance notice and an opportunity to review the request. MLARS must notify

theAssetForfeitureManagementSta(AFMS)ofapprovedrequeststoplaceassetsintoocialuse.

Onceanassetdesignatedbythefederalseizingagencyforfederalocialusehasbeen

administratively or judicially forfeited and all third-party interests, including victim compensation,

See The Attorney General’s Guidelines on the Asset Forfeiture Program (July 2018) (AG Guidelines), Sec. V.F.

Id.

Federallyforfeitedrearmsandammunitionareneitherequitablysharedwithnon-federallawenforcementnorsold.See

Chap. 5, Sec. IV.C in this Manual. Also, gift cards and other types of stored value cards seized by a Treasury member

agencycannotbeplacedintoocialuseortransferredtoanotherfederalagency.See Department of the Treasury

(Treasury)ExecutiveOceforAssetForfeiture(TEOAF)Directive6:Transfer of Forfeited Property and Retention for

OcialUse,July29,2016. See Chap. 4, Sec. V in this Manual regarding the authorities and guidelines for placing real

propertyintofederalocialuse.

See Chap. 2, Sec. V.B in this Manual.

Chapter 15: Federal Ocial Use and Equitable Sharing

15-2  Asset Forfeiture Policy Manual 2023

havebeenresolved,theseizingagencyhas30calendardaystoinformtheUSMSofitsnaldecision

toplaceordeclinetoplacetheassetintofederalocialuse.TheUSMShasthediscretiontogrant

a one-time extension of 15 calendar days. The seizing agency must request the extension in writing

to the USMS. Absent a response from the seizing agency within the initial 30 calendar days (or a

timeextensionthathasexpired),orfollowinganegativeresponsewithinthespeciedtimeperiod,

the USMS is authorized and directed to take the necessary steps to dispose of the asset in the usual

manner, according to law and regulations.

 

If the federal seizing agency responsible for a particular asset decides not to put the asset into its

ownfederalocialuse,thenanyotherDepartmentofJustice(Department)investigativeagency

that participated in the case, Department components, or non-seizing federal agencies, in that order,

mayrequesttoputtheassetintoitsownfederalocialuse.Theseagenciesmayseekthetransfer

ofpropertyforfederalocialuseonlyifthepropertyisnotrequiredforvictimcompensation,or

international sharing.

Whenonefederalagencyrequestsanassetforfederalocialusethatwasseizedbyanotherfederal

agency (e.g.iftheU.S.DepartmentofAgriculture(USDA)wantstoplaceavehicleintoocialuse

that was seized by the Federal Bureau of Investigation (FBI)), the requesting agency must follow

thefederalocialuserequestprocessoftheseizingagencyandtheUSMS.MLARSmustapprove

requeststoplaceintoocialuseanyamountofanonymity-enhancedcryptocurrencies.

MLARS

mustnotifyAFMSofapprovedrequeststoplaceassetsintoocialuse.IfmorethanoneDepartment

componentseekstoretainthesameforfeitedpropertyforfederalocialuse,MLARSwilldetermine

whichagencymayplacethepropertyintofederalocialuse.Allrequests,otherthanthosefor

retention by the lead federal seizing agency, must be submitted to the USMS. Agencies that are not

members of either the Department of Justice or the Department of the Treasury (Treasury) forfeiture

programsmustrequestitemsforfederalocialusethroughtheparticipatingagenciesandtheUSMS.

No federal contribution form (FCF)

is required, and the transfer decision follows via the federal

ocialuseapprovalprocess,nottheequitablesharingapprovalprocess.

D. Internal guidelines

Eachagencyisrequiredtomaintaininternalguidelinesgoverningfederalocialuserequests.The

internal guidelines shall:

• prohibittheplacementintofederalocialuseofanyseizedpropertybefore(1)theentryof

analdeterminationofforfeiture,(2)resolutionofallthird-partyinterests,includingvictim

Requests for an equitable share of forfeited funds or of sales proceeds from forfeited property from tribal, state, and local

law enforcement agencies are outlined in Sec. III.D in this chapter. Because these requests are part of equitable sharing,

state, local, and tribal agencies may requeeited assets only when they directly participated in the case leading to forfeiture.

See Guide to Equitable Sharing for State, Local, and Tribal Law Enforcement Agencies (July 2018), Sec. V.C

See Chap. 2, Sec. V.B in this Manual.

See Sec. V in this chapter for a discussion of the FCF.

For assets seized by a Treasury Forfeiture Fust forfnd (TFF) member agency, see TEOAF Directive 6: Transfer of

ForfeitedPropertyandRetentionforOcialUse,July29,2016.

Chapter 15: Federal Ocial Use and Equitable Sharing

Asset Forfeiture Policy Manual 2023  15-3

compensation, and (3) the appropriate approval of the request to place the property into federal

ocialuse;

• requireallseizedpropertyberecordedandtrackedinanocialinventoryofseizedproperty

without regard to its intended disposition;

• requireawrittenjusticationdetailingthereasonswhytheforfeitedpropertywasplacedinto

federalocialuse,andrequireretainingthesejusticationsforthreeyears;

• requireaspecicsupervisory-levelocialberesponsibleandaccountableforthedecisionto

placeeachitemofforfeitedpropertyintofederalocialuseandforensuringappropriatefederal

ocialuseofsuchpropertyfollowingitstransfer;

• requirethepropertyplacedintofederalocialusebeidentiedandtrackedinanaccountable

property system;

• 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; and

• stateanintentiontoplacethepropertyintofederalocialusefortwoyears.

 

LiensonpersonalpropertyplacedintofederalocialusebyDepartmentseizingagenciesandthe

USMS may be paid from the Assets Forfeiture Fund (AFF) provided that:

• thereremainssucientfundingfromtheagency’sAFFallocationforpaymentoftheliens;

• theagencyintendstoplacethepropertyintofederalocialuseforatleasttwoyears,except

when the property is a vehicle requested for use in an undercover capacity. In the case of a

vehicle requested for use in an undercover capacity, the head of the seizing agency may decide

to exchange the undercover vehicle for a similar vehicle(s) for use in an undercover capacity.

No cash or remuneration of any kind may be received as part of any such exchange. Agencies

shall report all such exchanges to the Chief of MLARS within 90 days after the end of each

scalyear;

• the total amount to be paid from the AFF amounts to less than one-third the appraised value of

the property; and

• the total amount to be paid from the AFF is less than $25,000.

Seizing agencies must submit requests for exceptions to this policy in writing to the Chief of MLARS.

 

Federal law authorizes the Attorney General to share federally forfeited property with participating

state, local, or tribal law enforcement agencies.

See 21 U.S.C. §§ 881(e)(1)(A) & (3); 18 U.S.C.

Formoredetailsandrelatedpublicationsonequitablesharing,pleaserefertoMLARS’Equitable Sharing Program

page. The Treasury Forfeiture Fund (TFF) administers a substantially similar equitable sharing program. See Treasury's

Equitable Sharing Program page.

Chapter 15: Federal Ocial Use and Equitable Sharing

15-4  Asset Forfeiture Policy Manual 2023

§ 981(e)(2); 31 U.S.C. § 9705(a)(1)(G) & (b)(4). Through equitable sharing, any state, local, or tribal

lawenforcementagencythatdirectlyparticipatesinalawenforcementeortthatresultsinafederal

forfeiture may request an equitable share of the net proceeds of the forfeiture. The exercise of this

authority is discretionary. The Attorney General is not required to share property in any case.

Equitable sharing requests will be granted only if forfeited property or net proceeds

from the sale of

forfeited property remain after all approved claims, petitions for remission, and restoration requests

have been processed and paid. In addition, international sharing must be reviewed and approved prior

to payment of domestic sharing.

 

A. Eligible participants

Anystate,local,ortriballawenforcementagencythatisaparticipantintheDepartment’sEquitable

Sharing Program (Equitable Sharing Program) and directly participates in an investigation or

prosecution resulting in a federal forfeiture may request an equitable share of the net proceeds of the

forfeiture. To receive shared funds, the agency must comply with the Equitable Sharing Program

guidelines and reporting requirements. See the Guide to Equitable Sharing for State, Local, and

Tribal Law Enforcement Agencies (July 2018) (Guide), Sec. II.

MLARS determines the eligibility of a state, local, or tribal law enforcement agency to participate

in the Equitable Sharing Program. MLARS will assess any request according to criteria outlined in

the Guide and any subsequent updates to the Guide. See Guide Secs. III and VII. No agency will be

accepted into the Equitable Sharing Program until MLARS completes its determination.

B. Compliance

To participate in the Equitable Sharing Program, state, local, and tribal law enforcement agencies

mustrstsubmit,andannuallyresubmit,anEquitableSharingAgreementandCerticationform

(ESAC form) signed by both the head of the law enforcement agency and the head of the governing

body with budgetary authority over the law enforcement agency. By signing the ESAC form, the

signatories agree to be bound by, and comply with, the federal statutes and Department policies—

including policies on the appropriate law enforcement purposes and functions of forfeiture—

governing the Equitable Sharing Program. See Guide Sec. VII.A.

Any breach of the ESAC form by a state, local, or tribal law enforcement agency may render it non-

compliant or ineligible to receive equitable sharing payments. Participation may be barred on either a

temporaryorpermanentbasis,andinsomecases,anagency’spendingequitablesharingdistributions

may be permanently extinguished where a requesting agency has failed timely to submit an ESAC

form or UFMS Vendor Request Form (ACH form) or has failed to meet any other requirements as

set forth in the Guide. See Guide

Sec.VII.WhilefederalinvestigativeagenciesandU.S.Attorney’s

Oces(USAOs)havenoarmativeobligationtomonitoranagency’seligibility,theyareobliged

promptlytoreporttoMLARSanyinformationthatmightaectanagency’seligibilitytoparticipate

in the Equitable Sharing Program.

In any case with underwater assets (i.e.,wheretheassetexpensesaregreaterthanincome),thedecidingocialmust

osetthenegativevalueoftheunderwaterassetsagainstanyassetswithanetincomepriortodistributionofany

approved sharing.

See Sec. VII in this chapter; Chap. 8, Sec. X in this Manual.

Chapter 15: Federal Ocial Use and Equitable Sharing

Asset Forfeiture Policy Manual 2023  15-5

 

Equitable shares allocated to a law enforcement agency must bear a reasonable relationship to

theagency’sdirectparticipationinthelawenforcementeortresultingintheforfeiture.Asa

general rule, the recommended equitable sharing allocation should be based on a comparison of

the workhours and qualitative contributions of each and every federal, tribal, state, and local law

enforcementagencythatparticipatedinthelawenforcementeortresultingintheforfeiture.

The decisionmaker may consider the qualitative factors outlined in Sec. IV.A. of the Guide when

determining a sharing percentage.

Equitablesharingpercentagesmayalsobeawardedbasedonanagency’sparticipationinataskforce

that has previously adopted a task force sharing arrangement consistent with Department policy. In

these cases, all agencies participating in the task force must sign a memorandum of understanding

(MOU)reectingthetaskforcesharingarrangementbeforeanyseizuresmaybemadepursuantto

theMOU.TheseMOUsshouldbeupdatedperiodicallytoreectmaterialchangesintheagencies

constitutingthetaskforceorinanyagency’scontributiontoforfeiturescreditedtothetaskforce.

However, an MOU only governs the total contribution of the task force agencies. It may not bind

Department agencies or non-task force agencies to a particular share. For further information

regarding the calculation of the sharing percentage, see Guide Sec. IV.B.

Funds collected to satisfy a forfeiture money judgment are ineligible for equitable sharing where no

collectioneortswereexpendedbytheparticipantsintheunderlyinginvestigation.Forexample,if

a Deputy U.S. Marshal, USAO employee, or other federal agency locates funds in satisfaction of a

money judgment, those funds cannot be shared unless the state, local, or tribal agency assisted in the

collectioneort.Fundslocatedandappliedtothemoneyjudgmentatthetimethemoneyjudgmentis

entered could be eligible for sharing.

 

A state, local, or tribal law enforcement agency participating in the Equitable Sharing Program

may request an equitable share of forfeited funds, or of sales proceeds from forfeited property, by

submitting an equitable sharing request form

(FormDAG-71)throughtheDepartment’sEquitable

Sharing Portal (eShare Portal). A separate Form DAG-71 must be completed by the requesting

agencyforeachassettobeshared.AnagencyshallnotleaForm DAG-71 on behalf of another

agency. For more information about the procedures for submitting a Form DAG-71, consult Sec. IV

of the Guide.

Federal agencies are not eligible to receive equitable sharing funds. Federal law enforcement

agencies that participated in the forfeiture must follow agency policy to submit a FCF to the lead or

processing federal agency to record participation or, where applicable, request a fund-to-fund transfer

(e.g., a transfer from the AFF to the Treasury Forfeiture Fund (TFF) or vice versa) for the assistance

they provided.

A federal investigative agency shall not complete a FCF for another federal agency.

When a state forfeiture relates to a federal criminal prosecution, federal equitable sharing decisions should account for

both state and federal forfeitures in the investigation. Consequently, federal agencies and USAOs should collectively

review state and federal forfeitures stemming from a single investigation before making federal equitable sharing

recommendations and decisions.

See Sec. V in this chapter for additional information on the FCF.

Chapter 15: Federal Ocial Use and Equitable Sharing

15-6  Asset Forfeiture Policy Manual 2023

E. Final approval authority

Untilthenaldecisionmakerhasrenderedadecision,federalpersonnelandcontractorsinvolved

in making, processing, or deciding an equitable sharing request must not represent the projected

outcome of sharing requests.

E.1 Investigative agency

If assets are administratively forfeited and the total appraised value of all items forfeited under a

single Declaration of Administrative Forfeiture is less than $1 million, the head of the investigative

agency,ordesignatedagencyheadquartersocial,decidestheappropriateequitableshareastoeach

asset and requesting agency.

E.2 U.S. Attorney

If the assets are judicially forfeited and the total appraised value of all of the assets forfeited in a

single judicial forfeiture order is less than $1 million, the U.S. Attorney, or a designee, decides the

appropriate equitable share as to each asset and requesting agency.

E.3 Deputy Attorney General (DAG)

Regardless of whether assets are administratively or judicially forfeited, the Deputy Attorney General

(DAG),oradesignee,decidesthenalequitableshareastoeachassetandrequestingagencyin:

(1) All cases in which the total appraised value of all of the assets forfeited under a single

declaration of administrative forfeiture or judicial forfeiture order is $1 million or

more. Assets forfeited under a single declaration of administrative forfeiture or judicial

forfeiture order cannot be separated so that only the individual assets having a value of

$1 million or more, and not other assets, are submitted to the decision maker for sharing

decisions;

(2) Cases involving the equitable transfer of real property to federal agencies; or

(3) Cases involving the transfer of tangible items to federal agencies.

The appropriate decision maker with delegated decision-making authority from the DAG is generally

determined by the value of the assets to be shared, as set forth below.

E.3.a Assets valued between $1 and $5 million

The DAG delegated to the Chief of MLARS the authority to decide equitable sharing requests for

judicially or administratively forfeited assets in which (1) the property to be shared is valued between

$1 million and $5 million and (2) MLARS, the seizing agency, and the USAO agree on the sharing

allocations. If the seizing agency, the USAO, and MLARS do not agree on the sharing allocations,

theDAGmustmakethenaldecision.

E.3.b Assets valued over $5 million

The DAG delegated to the Assistant Attorney General for the Criminal Division (AAG) authority to

decide equitable sharing requests for judicially or administratively forfeited assets in which: (1) the

Chapter 15: Federal Ocial Use and Equitable Sharing

Asset Forfeiture Policy Manual 2023  15-7

property is valued in excess of $5 million and (2) the seizing agency, the USAO, and MLARS agree

on the sharing allocations. If the seizing agency, the USAO, and MLARS do not agree on the sharing

allocations,theDAGmustmakethenaldecision.

E.3.c Prohibition on the transfer of tangible or real property

The transfer of forfeited tangible or real property to a state, local, or tribal law enforcement agency is

prohibited.

 

TheUSMSmakesequitablesharingpaymentsonlyafternalapprovalofthesharingappearsonthe

applicable reports generated by the Consolidated Asset Tracking System (CATS). Payments will not

occur unless the investigative agency, the USAO, and MLARS have entered in CATS all information

required to authorize the payment, and the recipient agency complies with all reporting requirements.

The USMS electronically transfers all equitable sharing payments to state, local, and tribal law

enforcement agencies. To electronically receive equitable sharing payments, a state, local, or tribal

law enforcement agency must submit a completed ACH form to the USMS at AFD.ACHFORMS@

usdoj.gov.

Approved sharing of less than $500 will not be processed.

AllequitablesharingpaymentsaresubjecttocertainosetsundertheDebtCollectionImprovement

Actof1996(DCIA),throughwhichTreasuryandotherdisbursingocialsmustosetfederal

payments to collect delinquent non-tax debts owed to the United States or state governments, and the

Taxpayer Relief Act of 1997, which provides for the continuous levy of federal non-tax payments

tocollectdelinquenttaxdebts.TheTreasuryOsetProgram(TOP)collectsTaxpayerIdentication

Numbers(TIN)andbankingaccountinformationforthepayeeonanysuchosetpayment.

V. Federal Contribution Form (FCF)

Each federal agency must complete the federal contribution form (FCF) to fully capture federal

participationinthelawenforcementeortleadingtoforfeiture,andwhenappropriate,mustrequest

a transfer of funds from one forfeiture fund (the AFF, TFF or U.S. Postal Inspection Service (USPIS)

Forfeiture Fund

) to the fund of the recipient agency. Any forfeited funds or proceeds from the sale

or other disposition of forfeited property may be transferred directly only to the appropriate forfeiture

fund of the requesting agency, not to the requesting agency itself.

When federal agencies from the same forfeiture program participate in a joint investigation, no fund-

to-fund monetary transfers occur. In these cases, the FCF documents the participation of each federal

agency and also provides necessary information to the sharing decision-maker, who must evaluate

the overall workhour and qualitative contributions of all participating federal, tribal, state, and local

agencies when determining sharing percentages.

The ACH formisavailableonMLARS’Equitable Sharing Program page. Contact TEOAF or the U.S. Postal Inspection

Service (USPIS) for information about payments from these agencies.

Onoccasion,adelinquentdebtgivingrisetoanosetmaybeattributabletoanotheragencyinthesamegovernmental

jurisdictionastherequestingagency.AgencieswhosefundshavebeenosetshouldreviewGuide Sec. V.E. for

information relevant to seeking repayment from the responsible city, county, or state agency.Treasury’sBureauofthe

Fiscal Service (BFS), which administers TOP, will not reimburse these payments.

The USPIS has the authority to directly receive asset forfeiture proceeds, expend funds, and manage its own asset

forfeiture fund. See 39 C.F.R. § 233.7.

Chapter 15: Federal Ocial Use and Equitable Sharing

15-8  Asset Forfeiture Policy Manual 2023

When an AFF investigative agency participates in an investigation resulting in the seizure of property

processed for forfeiture by another federal investigative agency, it can record the seizure in CATS by

creating a “referral asset.” A referral asset is another method for capturing statistics on seizures to

document participation in an investigation.

AnFCFmayonlybecompletedbythefederalagencieslistedintheNCIC/ORICodechartbelow.

NCIC/ORI CODE Agency

CBPAMO000

Customs and Border Protection- Air Operations (CBP-AO)

CBPOBP000

Customs and Border Protection- Border Patrol (CBP)

CBPOFO000

Customs and Border Protection- Field Operations (CBP-FO)

DCATF0000

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)

DCDOS0000

Department of State

DCICE0000

Immigration and Customs Enforcement (ICE)

DCIS

Defense Criminal Investigative Service (DCIS)

DEA

Drug Enforcement Administration (DEA)

FBI

Federal Bureau of Investigation (FBI)

IRS

Internal Revenue Service (IRS)

MDFDA03T0

Food and Drug Administration (FDA)

TTB

Tax and Trade Bureau (TTB)

USCG

U.S. Coast Guard (USCG)

USDAIG

U.S.DepartmentofAgriculture,OceofInspectorGeneral(USDA-OIG)

USMS

U.S. Marshals Service (USMS)

USPS00000

U.S. Postal Service (USPS)

USSS

U.S. Secret Service (USSS)

When a TFF agency becomes involved in an ongoing joint investigation involving an AFF agency

and state, local, and tribal law enforcement agencies, and an existing MOU governs sharing between

the AFF agency and the participating state, local, and tribal law enforcement agencies, the sharing

percentages agreed on in the MOU must be reduced to include a transfer to the TFF in recognition

oftheTreasuryagency’sparticipation.Whenafederalagencyisinvitedtojoinanongoing

investigation, the agency must immediately notify the lead agency and the USAO of its involvement.

Any issues that cannot be resolved through communication between case agents should be submitted

to the appropriate special agent-in-charge (SAC) for the involved agencies. Agency headquarters

will not participate in the resolution of issues unless the SAC from either of the participating agencies

requests assistance. Prompt and accurate communication about sharing matters is important and

shouldoccurintherstinstanceattheeldlevel.

The deadline for agencies to submit FCFs is 45 days after forfeiture. Agencies may submit FCFs for

intra-fund joint investigations (i.e., from one Department seizing agency to another) electronically

through the eShare Portal.

Agencies should continue to submit hard copies of the FCF to Treasury and Department of Homeland Security (DHS)

agencies.

Chapter 15: Federal Ocial Use and Equitable Sharing

Asset Forfeiture Policy Manual 2023  15-9

VI. Reverse Sharing

The Department investigative agencies participating in an investigation resulting in the seizure

of property that is processed for forfeiture by a state, local, or tribal law enforcement agency or

foreign jurisdiction should create a “referral asset” in CATS to document their participation in the

investigation. If any proceeds are received from the state, local, or tribal law enforcement agency or

foreignjurisdictionthrough“reversesharing,”theagency’ssharewillbedepositedintotheAFF.

Funds shared with the United States by a foreign government that have not been forfeited under U.S.

law are not eligible for domestic equitable sharing.

Nevertheless, if U.S. prosecutors or investigators

assisted in a foreign case that resulted in a foreign forfeiture, they are encouraged to contact MLARS

to determine if it might be appropriate to submit a sharing request to that country, as the funds still

may be deposited into the AFF and be applied for Asset Forfeiture Program purposes. All requests

to foreign governments for asset sharing must be submitted by MLARS in coordination with the

Department’sOceofInternationalAairs(OIA).

VII. International Sharing of Forfeited Assets

Chapter 8, Section X in this Manual sets forth Department policy applicable to international sharing,

as well as the forfeiture of assets located overseas. The Department encourages international asset

sharing with countries that facilitate the forfeiture of assets under U.S. law. International sharing,

whichrequiresbothDepartmentofJusticeandDepartmentofState’sapprovalandconcurrenceby

Department of the Treasury, must be either approved or pre-approved before any domestic equitable

sharing in that case can take place. The percentage granted to a foreign government often depends

uponinternationalsharingagreementsorfactorsthatdiersignicantlyfromthe“workhourand

qualitative contribution” standard used in determining domestic sharing.

See also Chap. 8, Sec. X in this Manual.

Asset Forfeiture Policy Manual 2023  A-1

AAG Assistant Attorney General JM Justice Manual

AFF Assets Forfeiture Fund MLARS Money Laundering and Asset Recovery Section

AFMS Justice Management Division, Asset Forfeiture Management Sta OIA Oce of International Aairs

AFPM Asset Forfeiture Policy Manual (2021) SADF Seized Assets Deposit Fund

AG Attorney General TFF Department of the Treasury Forfeiture Fund

DAG Deputy Attorney General Treasury Department of the Treasury

Department Department of Justice USAO U.S. Attorney’s Oce

EAJA Equal Access to Justice Act USMS U.S. Marshals Oce

EOUSA Executive Oce for U.S. Attorneys USVSST Fund United States Victims of State Sponsored Terrorism Fund

Appendix A:



Adoption (State/Local Seizures)

Direct Adoption Approval AFPM Chap. 3.V.A MLARS must approve direct adoption by U.S. Attorney

of real property.

U.S. Attorney may approve direct adoption of assets

permitted to be adopted except for real property.

Direct Referral

by U.S. Attorney

Approval

AFPM Chap. 3.V.B MLARS must approve direct referral by U.S. Attorney of

real property.

U.S. Attorney may authorize direct referral of any asset

other than real property.

Attorneys’ Fees

Defendant’s

Attorneys’ Fees

in Criminal

Forfeiture

Proceeding

Approval AFPM Chap. 12.II.A Hyde Amendment Committee and EOUSA must

approve a request for attorneys’ fees under the Hyde

Amendment based on a criminal prosecution.

Defendant’s

Attorneys’ Fees

in Criminal

Forfeiture

Proceeding

Notify

AFPM Chap. 12.II.A Defendant must notify MLARS if the request for

attorneys’ fees specically addresses criminal forfeiture.

EAJA Awards Approval

AFPM Chap. 12.II.B;

JM § 9-117.220

MLARS may authorize use of AFF funds to pay EAJA

awards to third-party petitioners in criminal forfeiture

actions.

Exempt Fees

from Forfeiture

Approval

AFPM Chap. 11.VII,

Chap. 12.IV;

JM §§ 9-113.600,

9-120.116

AAG must approve entering into any agreement to

exempt from forfeiture an asset transferred to an

attorney as fees for legal services, including those

restrained as substitute assets.

Proceedings

Against Fees

Approval

AFPM Chap. 12.IV;

JM § 9-120.112

AAG must approve any action to institute a criminal or

civil forfeiture proceeding against an asset transferred to

an attorney as a fee for legal services.

Appendix A: Business Entities

A-2  Asset Forfeiture Policy Manual 2023

AAG Assistant Attorney General JM Justice Manual

AFF Assets Forfeiture Fund MLARS Money Laundering and Asset Recovery Section

AFMS Justice Management Division, Asset Forfeiture Management Sta OIA Oce of International Aairs

AFPM Asset Forfeiture Policy Manual (2021) SADF Seized Assets Deposit Fund

AG Attorney General TFF Department of the Treasury Forfeiture Fund

DAG Deputy Attorney General Treasury Department of the Treasury

Department Department of Justice USAO U.S. Attorney’s Oce

EAJA Equal Access to Justice Act USMS U.S. Marshals Oce

EOUSA Executive Oce for U.S. Attorneys USVSST Fund United States Victims of State Sponsored Terrorism Fund

Business Entities

Facilitating

Property

Approval AFPM Chap. 1.I.D.2,

Chap. 5.III.D.1.b

U.S. Attorney must provide written approval before

the USAO: (1) seizes or les a civil forfeiture complaint

against an ongoing business based on a facilitation

theory or (2) extends 60-day deadline to le civil

forfeiture complaint against an ongoing business based

on a facilitation theory.

MLARS Chief must provide written approval before the

Criminal Division or other Department component not

partnering with the USAO may extend 60-day deadline

to le civil forfeiture complaint against an ongoing

business based on a facilitation theory.

Losses or

Liabilities;

Planning

for Seizure,

Restraint, or

Forfeiture

Approval

AFPM Chap. 1.I.D.2 MLARS must approve the restraint, seizure, or forfeiture

of a business that could create a net loss to the AFF.

MLARS will coordinate with USAO, AFMS, and USMS.

Prior to

Instituting

Forfeiture

Proceedings

Consult

AFPM Chap. 4.III.C;

JM §§ 9-105.330,

9-111.124

USAO must consult MLARS and USMS prior to ling

indictment, information, or complaint in any forfeiture

action against, seeking the seizure of, or moving to

restrain an ongoing business.

JM § 9-105.330 requires consultation with MLARS prior

to seeking forfeiture of a business on the theory that it

facilitated money laundering. JM § 9-111.124 says that

USAO must consult MLARS prior to initiating a forfeiture

action against, or seeing the seizure of, or moving to

restrain an operating business.

Civil Forfeiture Complaint

Facilitating

Property

Approval AFPM Chap. 5.III.D U.S. Attorney must provide written authorization

before USAO les any civil forfeiture complaint based

on a theory that the property facilitated or concealed

underlying criminal activity.

Facilitating

Property

Approval

AFPM Chap. 5.III.D MLARS Chief must provide written authorization before

the Criminal Division or other Department component

not partnering with the USAO les any civil forfeiture

complaint based on a theory that the property facilitated

or concealed underlying criminal activity.

Appendix A: Equitable Sharing

Asset Forfeiture Policy Manual 2023  A-3

AAG Assistant Attorney General JM Justice Manual

AFF Assets Forfeiture Fund MLARS Money Laundering and Asset Recovery Section

AFMS Justice Management Division, Asset Forfeiture Management Sta OIA Oce of International Aairs

AFPM Asset Forfeiture Policy Manual (2021) SADF Seized Assets Deposit Fund

AG Attorney General TFF Department of the Treasury Forfeiture Fund

DAG Deputy Attorney General Treasury Department of the Treasury

Department Department of Justice USAO U.S. Attorney’s Oce

EAJA Equal Access to Justice Act USMS U.S. Marshals Oce

EOUSA Executive Oce for U.S. Attorneys USVSST Fund United States Victims of State Sponsored Terrorism Fund

Correspondent Accounts

Restraining

Order or Warrant

Approval AFPM Chap. 8.VI;

18 U.S.C. § 981(k)

MLARS must give approval before serving a restraining

order, seizure warrant, or warrant of arrest on a

correspondent bank account under 18 U.S.C. § 981(k)

(MLARS Chief will get concurrence from OIA director

as well as the relevant Treasury and Department of

State ocials).

Subpoena Approval

31 U.S.C. § 5318(k);

JM § 9-13.525

OIA must give approval before AAG can issue

summonses or subpoenas to foreign banks that

maintain correspondent accounts in the United States to

get records.

Cryptocurrency

Seizure from

foreign-located

service providers

Consult AFPM Chap. 2.V.B Prosecutors should consult OIA regarding the seizure of

cryptocurrency from foreign-located service providers.

Interlocutory

sale or pretrial

conversion

Consult

AFPM Chap. 2.V.B Prosecutors must consult MLARS before seeking an

order for interlocutory sale.

Anonymity-

Enhanced

Cryptocurrencies

Disposition

Consult AFPM Chap. 2.V.B Prosecutors must consult MLARS or USMS for

guidance regarding disposition of anonymity-enhanced

cryptocurrencies.

Anonymity-

Enhanced

Cryptocurrencies

Disposition

Approval AFPM Chap. 2.V.B,

Chap. 15.I.B–C

MLARS must approve a request to sell anonymity-

enhanced cryptocurrencies or place them into ocial

use.



Assets Valued

$1 to $5 Million

Approval AFPM Chap.

15.III.E.3.a

MLARS Chief has authority to rule on equitable sharing

requests for judicially and administratively forfeited

assets in which: (1) the property to be shared is valued

between $1 and $5 million and (2) MLARS, seizing

agency, and USAO agree on the sharing.

Assets Valued

Over $5 Million

Approval

AFPM Chap.

15.III.E.3.b

AAG has the authority to rule on equitable sharing

requests if: (1) the property is over $5 million and (2)

MLARS, seizing agency, and USAO all agree on the

sharing.

Appendix A: Interlocutory Sales

A-4  Asset Forfeiture Policy Manual 2023

AAG Assistant Attorney General JM Justice Manual

AFF Assets Forfeiture Fund MLARS Money Laundering and Asset Recovery Section

AFMS Justice Management Division, Asset Forfeiture Management Sta OIA Oce of International Aairs

AFPM Asset Forfeiture Policy Manual (2021) SADF Seized Assets Deposit Fund

AG Attorney General TFF Department of the Treasury Forfeiture Fund

DAG Deputy Attorney General Treasury Department of the Treasury

Department Department of Justice USAO U.S. Attorney’s Oce

EAJA Equal Access to Justice Act USMS U.S. Marshals Oce

EOUSA Executive Oce for U.S. Attorneys USVSST Fund United States Victims of State Sponsored Terrorism Fund



International

Sharing

Approval AFPM Chap. 8.X,

Chap. 15.VII;

JM § 9-116.400

Secretary of State and AG approval required before

forfeited assets can be shared internationally. In cases

involving the AFF, (1) AAG approves uncontested

international sharing proposals over $5 million and

(2) MLARS Chief approves uncontested international

equitable sharing proposals for $5 million or less.

Multi-District /

Disagreement

Approval

AFPM Chap.

15.III.E.3.b;

JM § 9-116.210

DAG must approve equitable sharing in cases involving:

(1) multiple districts or (2) disagreement among USAO,

MLARS, and seizing agency on the sharing, regardless

of the property value.

JM § 9-116.210 says that DAG must approve equitable

sharing in cases involving: (1) $1 million or more in

forfeited assets, (2) multi-district cases, or (3) cases

involving real property transfers to a state or local

agency for law enforcement related use. MLARS is

coordinating with EOUSA to update JM.

Interlocutory Sales

Property pending

judicial forfeiture

Consult AFPM Chap. 10.II.B USAO must consult seizing agency and USMS to

determine the status of any petitions for remission

before seeking a pre-forfeiture sale of property pending

judicial forfeiture.

Cryptocurrency

interlocutory

sale or pretrial

conversion

Consult

AFPM Chap. 2.V.B Prosecutors must consult MLARS before seeking an

order for interlocutory sale.

International Forfeiture

Businesses

Located Abroad

Consult AFPM Chap. 8.II MLARS must be consulted before the United States

asks a foreign government to restrain or seize an

ongoing business or its assets, or appoint a guardian, or

similar duciary for the same.

Civil Forfeiture Notify

AFPM Chap. 8.III.B;

JM § 9-13.526

Prosecutors must notify OIA (which will consult with

MLARS) before ling an in rem forfeiture action based

on 28 U.S.C. § 1355(b)(2).

Enforcement/

Recognition

in Foreign

Jurisdiction

Consult

JM § 9-13.526 Prosecutors must consult OIA (which will consult with

MLARS) before taking steps to present to a foreign

government, for enforcement or recognition, any civil or

criminal forfeiture order entered in the United States for

property located within the foreign jurisdiction.

Appendix A: Ocial Use

Asset Forfeiture Policy Manual 2023  A-5

AAG Assistant Attorney General JM Justice Manual

AFF Assets Forfeiture Fund MLARS Money Laundering and Asset Recovery Section

AFMS Justice Management Division, Asset Forfeiture Management Sta OIA Oce of International Aairs

AFPM Asset Forfeiture Policy Manual (2021) SADF Seized Assets Deposit Fund

AG Attorney General TFF Department of the Treasury Forfeiture Fund

DAG Deputy Attorney General Treasury Department of the Treasury

Department Department of Justice USAO U.S. Attorney’s Oce

EAJA Equal Access to Justice Act USMS U.S. Marshals Oce

EOUSA Executive Oce for U.S. Attorneys USVSST Fund United States Victims of State Sponsored Terrorism Fund

International Forfeiture

Enforcement

of Foreign

Judgments and

Restraining

Orders

Approval AFPM Chap. 8.IX.B MLARS must authorize: (1) foreign forfeiture or

conscation judgments under 28 U.S.C. § 2467(b)(2)

where the amount is $5 million or less; and (2) all foreign

forfeiture restraining orders under § 2467(d)(3)(B)(ii).

International

Contacts

Consult

AFPM Chap. 8.I.A;

JM § 9-13.500

Prosecutors must consult OIA to coordinate all incoming

and outgoing international contacts regarding criminal

justice matters.

Notice Consult

AFPM Chap. 8.IV Prosecutors should consult OIA before providing

forfeiture notice to individuals and entities abroad.

Repatriation Consult

AFPM Chap. 8.V Prosecutors must consult MLARS and OIA when

seeking repatriation of forfeitable assets located abroad.



Decrease

Thresholds

Approval AFPM Chap. 1.I.C.3;

JM § 9-111.120

When feasible, prior to seizure, supervisory-level

approval, in writing, from the USAO (for judicial

forfeitures) or seizing agency (for administrative

forfeitures) required for any downward departure from

the seizing thresholds. Reason for waiver must be

explained in the case le.

Increase

Thresholds

Consult

AFPM Chap. 1.I.C.3,

Chap. 3.II footnote 3;

JM § 9-111.120

USAO (which will consult seizing agencies aected by

the change) may institute higher district-wide thresholds

for judicial forfeitures.



Property Value

$75,000 or More

Notify AFPM Chap. 15.I.B Seizing agency or USMS must notify MLARS where

property requested for ocial use is valued at over

$75,000.

Asset Seized

by Agency





Decision

AFPM Chap. 15.I.B Head of the seizing agency, or a designated

, decides whether to put assets

seized by the agency into its own ocial use. MLARS

will notify AFMS of approved requests to place assets

into ocial use.



Other Federal

Agencies

Approval

AFPM Chap. 15.I.C Lead federal seizing agency approves requests for

ocial use by other federal agencies. If more than

one Department component seeks to retain the same

forfeited property for ocial use, MLARS will determine

which agency may place the property into ocial use.

MLARS will notify AFMS of approved requests to place

assets into ocial use.

Appendix A: Plea Agreements or Settlements

A-6  Asset Forfeiture Policy Manual 2023

AAG Assistant Attorney General JM Justice Manual

AFF Assets Forfeiture Fund MLARS Money Laundering and Asset Recovery Section

AFMS Justice Management Division, Asset Forfeiture Management Sta OIA Oce of International Aairs

AFPM Asset Forfeiture Policy Manual (2021) SADF Seized Assets Deposit Fund

AG Attorney General TFF Department of the Treasury Forfeiture Fund

DAG Deputy Attorney General Treasury Department of the Treasury

Department Department of Justice USAO U.S. Attorney’s Oce

EAJA Equal Access to Justice Act USMS U.S. Marshals Oce

EOUSA Executive Oce for U.S. Attorneys USVSST Fund United States Victims of State Sponsored Terrorism Fund



Payment of Liens

on Personal

Property Placed



Approval AFPM Chap. 15.I.E MLARS Chief must approve requests for exceptions for

payment of liens on personal property placed into ocial

use from the AFF.

Anonymity-

Enhanced

Cryptocurrency,

Any Amount

Approval

AFPM

Chap. 15.I.B–C,

Chap. 2.V.B

MLARS must approve requests to place anonymity-

enhanced cryptocurrency into ocial use.

Plea Agreements or Settlements

Interlocutory

Sale of

Cryptocurrency

Consult AFPM Chap. 2.V.B,

Chap. 11.IX.D

footnote 19

Prosecutors must consult MLARS prior to seeking an

order for the interlocutory sale of cryptocurrency.

Administrative

Forfeiture,

Return of

Property

Consult

AFPM Chap. 5.II.D,

Chap. 11.I.B.4;

JM § 9-113.103

Prosecutors must consult seizing agency before

entering into plea agreements or settlements returning

property that is the subject of administrative forfeiture

proceedings. Prosecutors should not agree to return

property that is the subject of a pending administrative

forfeiture proceeding, unless seizing agency agrees to

suspend administrative forfeiture.

Administrative

Forfeiture,

Return of

Property

Approval

AFPM Chap. 5.II.D,

Chap. 11.I.B.4;

JM § 9-113.104

Prosecutors must consult seizing agency before

entering into plea agreements or settlements returning

property that is the subject of administrative forfeiture

proceedings. Prosecutors should not agree to return

property that is the subject of a pending administrative

forfeiture proceeding, unless seizing agency agrees to

suspend administrative forfeiture.

Administrative

Forfeiture Used



Agreement

Consult

AFPM Chap. 11.III;

JM § 9-113.300

Prosecutors must consult seizing agency

 where an administrative forfeiture is

necessary to eectuate an agreement.

JM § 9-113.300 et seq. requires consultation with

 where an administrative

forfeiture is necessary to eectuate a settlement.

MLARS will coordinate with EOUSA to update JM.

Management or

Disposition

Consult

AFPM Chap. 10.I.B,

Chap. 11.I.B.2

USAO or seizing agency (in administrative forfeitures)

should consult USMS in cases involving Department

seizing agencies, or Treasury in cases involving

Treasury seizing agencies, before taking any property

management or disposition actions.

Appendix A: Planning for Seizure and Restraint

Asset Forfeiture Policy Manual 2023  A-7

AAG Assistant Attorney General JM Justice Manual

AFF Assets Forfeiture Fund MLARS Money Laundering and Asset Recovery Section

AFMS Justice Management Division, Asset Forfeiture Management Sta OIA Oce of International Aairs

AFPM Asset Forfeiture Policy Manual (2021) SADF Seized Assets Deposit Fund

AG Attorney General TFF Department of the Treasury Forfeiture Fund

DAG Deputy Attorney General Treasury Department of the Treasury

Department Department of Justice USAO U.S. Attorney’s Oce

EAJA Equal Access to Justice Act USMS U.S. Marshals Oce

EOUSA Executive Oce for U.S. Attorneys USVSST Fund United States Victims of State Sponsored Terrorism Fund

Plea Agreements or Settlements

Negotiations Consult AFPM Chap. 11.I.B.2;

JM § 9-113.103

Prosecutors must negotiate all settlements in

consultation with seizing agency and USMS, where

appropriate, and in compliance with the USAO’s

approval requirements. When a settlement involves

complex assets, complex terms, or a risk of loss to the

government, prosecutors should consult USMS or the

relevant TFF agency.

Settlement Over

$2 Million and

15% of Amount

Involved

Approval

AFPM Chap. 11.II.A;

JM § 9-113.200

DAG must approve settlements where the amount to

be released exceeds $2 million and 15% of the amount

involved.

Settlement over

$1 Million but

under $2 Million

and 15% of

Amount Involved

Approval

AFPM Chap. 11.II.A;

JM § 9-113.200

MLARS Chief has authority to approve a forfeiture

settlement over $1 million, unless the amount to be

released exceeds 15% of the amount involved and is

greater than $2 million.

Settlement under

$1 Million or

between

$1 and $5 Million

if Released

Amount Under

15% of Original

Claim

Approval

AFPM Chap. 11.II.A;

JM § 9-113.200

U.S. Attorney may approve any settlement in a criminal

or civil forfeiture claim if (1) the amount involved is less

than $1 million, regardless of the amount to be released

or (2) the amount involved is between $1 and $5 million,

if the amount to be released does not exceed 15% of

the original claim.

Taxes Notify

AFPM Chap. 11.I.B.9 USAO should notify appropriate agency (e.g. IRS)

prior to any settlement that will release assets to

claimant known (or likely to have) other outstanding

obligations to the United States (e.g. taxes).

Unsecured

Partial Payment

Approval

AFPM Chap. 11.I.B.7; JM

§ 9-113.107

Generally, settlements shall not provide for partial

payments. USAO must obtain approval from MLARS

(which will consult USMS) for an exception to this policy.

Unsecured

Partial Payment

Consult

AFPM Chap. 11.I.B.7;

JM § 9-113.107

Generally, settlements shall not provide for partial

payments. USAO must obtain approval from MLARS

(which will consult USMS) for an exception to this policy.

Planning for Seizure and Restraint

Loss or

Liabilities

Consult AFPM Chap. 1.I.C.3

and 1.I.D.1.b;

JM § 9-111.123

USAO and seizing agency must consult MLARS,

AFMS, USMS and seizing agency (in judicial

forfeitures) before seizing assets with potential

liabilities.

Appendix A: Real Property

A-8  Asset Forfeiture Policy Manual 2023

AAG Assistant Attorney General JM Justice Manual

AFF Assets Forfeiture Fund MLARS Money Laundering and Asset Recovery Section

AFMS Justice Management Division, Asset Forfeiture Management Sta OIA Oce of International Aairs

AFPM Asset Forfeiture Policy Manual (2021) SADF Seized Assets Deposit Fund

AG Attorney General TFF Department of the Treasury Forfeiture Fund

DAG Deputy Attorney General Treasury Department of the Treasury

Department Department of Justice USAO U.S. Attorney’s Oce

EAJA Equal Access to Justice Act USMS U.S. Marshals Oce

EOUSA Executive Oce for U.S. Attorneys USVSST Fund United States Victims of State Sponsored Terrorism Fund

Planning for Seizure and Restraint

Management or

Disposition

Consult AFPM Chap. 10.I.B USAO should consult USMS before submitting or

ling any proposed court orders to restrain, seize, or

impose property or nancial management obligations on

property in USMS custody.

Planning

Discussions

Consult

AFPM Chap. 1.I.A–D;

JM § 9-111.110

USAO must consult USMS and MLARS as part of the

planning process prior to seizure, restraint, and forfeiture

of complex assets.

Third-Party

Contractors

Consult

AFPM Chap. 1.I.B USMS must consult with USAO or seizing agency prior

to the release of sensitive law enforcement information

to third-party contractors for the purpose of pre-seizure

planning.

Real Property

Contaminated

Real Property

Consult AFPM Chap. 4.I.E;

JM § 9-111.400

Seizing agency, USMS, MLARS, and AFMS must be

consulted prior to seizure of contaminated real property.

(JM says USAO should exercise its discretion.)

Liens or

Mortgages

Approval

AFPM Chap. 10.III.A;

JM § 9-113.800

MLARS must approve any requests for payment of liens

and mortgages in excess of sale proceeds.

Net Loss,

Planning for

Seizure and

Restraint

Consult

AFPM Chap. 1.I.C.3

and 1.I.D.1.b.1,

Chap. 4.I.A–B

Consultation between MLARS, AFMS, and

participating agencies (USAO, seizing agency,

USMS) is required if the restraint, seizure, or forfeiture

of real property could create a decit to the AFF for that

property.

Net Loss,

Pre-Seizure

Notify

AFPM Chap. 1.I.C.3,

Chap. 4.I.B.2

If USAO decides to continue with forfeiture, it must (1)

notify MLARS and AFMS and (2) obtain approval in

writing from supervisory-level ocial at USAO.

Net Loss,

Pre-Seizure

Approval

AFPM Chap. 1.I.C.3,

Chap. 4.I.B.2

If USAO decides to continue with forfeiture, it must (1)

notify MLARS and AFMS, and (2) obtain approval in

writing from supervisory-level ocial at USAO.

Transfer:

Federal Purpose

Approval

AFPM Chap. 4.V.C DAG must approve a real property transfer to a federal

agency for use in fullling a law enforcement need, or

for serving a signicant and continuing federal purpose.

Transfer:

Operation

Goodwill

Approval

AFPM Chap. 4.V.B AG must approve real property transfers to state or local

governmental agencies, or its transferees, for use in the

Operation Goodwill Program.

Transfer:

Recreational,

Historic

Preservation

purpose

Approval

AFPM Chap. 4.V.D DAG must approve real property transfers to a state

for use as a recreational or historic site, or for the

preservation of natural conditions.

Appendix A: Seized Cash Management

Asset Forfeiture Policy Manual 2023  A-9

AAG Assistant Attorney General JM Justice Manual

AFF Assets Forfeiture Fund MLARS Money Laundering and Asset Recovery Section

AFMS Justice Management Division, Asset Forfeiture Management Sta OIA Oce of International Aairs

AFPM Asset Forfeiture Policy Manual (2021) SADF Seized Assets Deposit Fund

AG Attorney General TFF Department of the Treasury Forfeiture Fund

DAG Deputy Attorney General Treasury Department of the Treasury

Department Department of Justice USAO U.S. Attorney’s Oce

EAJA Equal Access to Justice Act USMS U.S. Marshals Oce

EOUSA Executive Oce for U.S. Attorneys USVSST Fund United States Victims of State Sponsored Terrorism Fund

Real Property

Transfer:

Weed and Seed

Approval AFPM Chap. 4.V.A;

JM § 9-116.500

DAG must approve real property transfers to state or

local agencies for further transfer to other government

agencies or non-prot agencies for use in Weed and

Seed Program.

Facilitating

Property

Approval

AFPM

Chap. 5.III.D.1.c

U.S. Attorney must provide written authorization before

USAO les a civil forfeiture complaint against personal

residences based on a facilitation theory. MLARS Chief

must provide written authorization before the Criminal

Division or other Department component not partnering

with the USAO les a civil forfeiture complaint against

personal residences based on a facilitation theory.

Property Located

in Another

District

Consult

AFPM Chap. 4.I.A When USAO identies real property for forfeiture that is

located in a dierent district, the USAO should consult

with USMS or the USAO district where the property is

located to discuss any state-specic issues relating to

the forfeiture.

Property Located

in Another

District

Notify

AFPM Chap. 11.I.B.6 To settle a forfeiture action involving property located in

another district, the USAO handling the forfeiture must

notify and coordinate with USMS in the district where

the property is located.

Valuation Consult

AFPM Chap. 4.I.B Federal seizing agency and USAO are required to

consult USMS to discuss valuation products, lien

information, occupancy issues, and other factors that

may impact seizure and forfeiture decisions.

Remission or Restoration

Remission

or Mitigation

Petitions

Approval AFPM Chap. 13.I,

Chap. 14.II.A

MLARS must approve (in judicial forfeitures) petitions

for remission or mitigation.

Seizing agency must approve (in administrative

forfeitures) petitions for remission or mitigation.

Restoration



Approval

AFPM Chap. 14.II.B.1 MLARS must approve requests for restoration.

Seized Cash Management

Exceptions to

Prompt Deposit

Approval AFPM Chap. 2.VII;

JM § 9-111.600

MLARS must give approval for exceptions to the policy

requiring prompt deposit of any seized cash into the

SADF, unless the seized cash is less than $5,000.

Appendix A: Structuring

A-10  Asset Forfeiture Policy Manual 2023

AAG Assistant Attorney General JM Justice Manual

AFF Assets Forfeiture Fund MLARS Money Laundering and Asset Recovery Section

AFMS Justice Management Division, Asset Forfeiture Management Sta OIA Oce of International Aairs

AFPM Asset Forfeiture Policy Manual (2021) SADF Seized Assets Deposit Fund

AG Attorney General TFF Department of the Treasury Forfeiture Fund

DAG Deputy Attorney General Treasury Department of the Treasury

Department Department of Justice USAO U.S. Attorney’s Oce

EAJA Equal Access to Justice Act USMS U.S. Marshals Oce

EOUSA Executive Oce for U.S. Attorneys USVSST Fund United States Victims of State Sponsored Terrorism Fund

Structuring

Seizure Approval AFPM Chap. 2.VIII.A If no criminal charges have been led, U.S. Attorney

must provide written authorization before the USAO

seeks a warrant to seize structured funds where

no probable cause that the structured funds were

generated by unlawful activity or that the structured

funds were intended for use in, or to conceal or promote,

ongoing or anticipated unlawful activity.

Seizure Approval

AFPM Chap. 2.VIII.A If no criminal charges have been led, MLARS Chief

must provide written authorization before the Criminal

Division or other Department component not partnering

with the USAO seeks a warrant to seize structured

funds where no probable cause that the structured

funds were generated by unlawful activity or that the

structured funds were intended for use in, or to conceal

or promote, ongoing or anticipated unlawful activity.

Seizure Approval

AFPM Chap. 2.VIII.A The basis for linking the structured funds to additional

unlawful activity must receive appropriate supervisory

approval and be memorialized in the prosecutor’s

records.

150-day deadline Approval

AFPM Chap. 2.VIII.C U.S. Attorney must provide written authorization before

the USAO may extend the 150-day deadline by 60 days

to le criminal charges or a civil complaint against the

asset.

150-day deadline Approval

AFPM Chap. 2.VIII.C MLARS Chief must provide written authorization before

the Criminal Division or other Department component

not partnering with the USAO may extend the 150-day

deadline by 60 days to le criminal charges or a civil

complaint against the asset.

Terrorism

State Sponsor of

Terrorism

Consult AFPM Chap. 1.I.C.4,

Chap. 10.III.D

Consult with MLARS as early as possible in any

forfeiture case involving a state sponsor of terrorism that

may require deposits to USVSST Fund.

Third-Party Experts in Forfeiture Cases

Appointment Consult AFPM Chap. 9.II.B USAO must consult with MLARS, AFMS, and USMS

before seeking appointment of a third-party expert

in a forfeiture matter in which the USAO anticipates

extensive costs.