JUSTICE MANUAL 9-111.000 – Forfeiture/Seizure

9-111.110 – Seizure—General Pre-Seizure Planning Policy Guidelines
What follows are broad pre-seizure planning policy guidelines for all agencies participating in the Asset Forfeiture Program. Variations to these guidelines are permitted only after consultation with the Money Laundering and Asset Recovery Section (MLARS).

The United States Attorney, or in administrative forfeiture cases, the agent in charge of a field office, is responsible for establishing specific procedures to be followed to ensure that proper and timely pre-seizure planning occurs prior to seizing or restraining real property, commercial enterprises, or other types of property that may pose potential problems of maintenance and/or disposition (e.g. animals and aircraft) within that federal judicial district. All pre-seizure planning meetings will include, at a minimum, as applicable, the Assistant United States Attorney or investigative agent in charge of the forfeiture matter (and, if applicable, the Assistant United States Attorney in charge of the related criminal matter), investigative agents, and the appropriate United States Marshals Service representative (which should include a representative from the district where the property is to be seized if different than the district where the action is to be filed). A federal regulatory agency representative may also attend in forfeiture cases involving federal regulatory matters as appropriate. Assets in cases where a Department of Justice investigative agency is not the lead agency may be handled by independent contractors employed by non-Department of Justice agencies rather than the USMS (e.g., the Department of the Treasury or the Department of Homeland Security), and those independent contractors should participate in preseizure planning as appropriate.

For asset forfeiture cases involving more than one federal judicial district, the United States Attorney instituting the forfeiture action has the primary responsibility to ensure that all Asset Forfeiture Program participants are notified, and that proper and timely pre-seizure planning occurs in those districts where assets will be seized as a result of that asset forfeiture matter.

Further information on this topic is available in Chapter 1 of the Asset Forfeiture Policy Manual

[updated January 2020] [cited in JM 9-119.010]

9-111.120 – Net Equity Values
Whether a property should be seized must be documented during the pre-seizure process. The following guidelines set minimum net equity levels that generally must be met before federal forfeiture actions are instituted. The net equity values are intended to decrease the number of federal seizures, thereby enhancing efforts to improve case quality and to expedite processing of the cases we do initiate. The thresholds are also intended to encourage state and local law enforcement agencies to use state forfeiture laws. These thresholds are to be applied in direct and adoptive cases. In general, the minimum net equity requirements are:

Residential Property and vacant land —minimum net equity must be at least 20 percent of the appraised value, or $20,000, whichever is greater. As a general rule, the Department of Justice does not seize or adopt contaminated real properties. See Contaminated Real Property Policy, at JM 9-111.400.

Vehicles—minimum net equity must be at least $5,000. The value of multiple vehicles seized at the same time may be aggregated for purposes of meeting the minimum net equity. If the person from whom the vehicle was taken was or is being criminally prosecuted by state or federal authorities for criminal activities related to the property and there is justification for a low value seizure (such as the vehicle being used to facilitate criminal activities), the minimum net equity is $2,000. The arrest of the person from whom the property is taken, for an offense related to the illegal use or acquisition of the property for which a forfeiture action may be brought, satisfies the condition of criminal prosecution. This restriction does not apply in the case of seizures by the United States Immigration and Customs Enforcement of vehicles used in the smuggling of aliens or in the case of vehicles modified or customized to facilitate illegal activity.

Cash – minimum amount must be at least $5,000, unless the person from whom the cash was taken was criminally prosecuted or is being 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 $10,000. Note that failure to obtain the log books for the aircraft will reduce the aircraft’s value significantly.

Vessels—minimum net equity must be at least $10,000.

All Other Personal Property—minimum net equity must be at least $1,000 in the aggregate. Exceptions from the minimum net equity requirement should not be made for any individual item if it has a value of less than $1,000. Such exceptions can be made 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).
Heads of investigative agencies may continue to establish higher thresholds for seizures made by their agencies. If an investigative agency head establishes higher monetary thresholds than those set out in the directive, the Asset Forfeiture and Money Laundering Section must be advised in writing of the change.

Each United States Attorney may institute higher district-wide thresholds for judicial forfeiture cases. In doing so, United States Attorneys should confer with the seizing agencies affected by the change and develop, in concert with those agencies, written district-wide guidelines for implementation. Written notice of such higher thresholds must be provided to MLARS. Any threshold higher than those identified in the directive shall not be the basis for failing to assist in seizing property when requested to do so by another district with lower monetary thresholds where the requesting district intends to file the judicial action.

It is understood that in some circumstances the overriding law enforcement benefit will require the seizure of an asset that does not meet these criteria. In individual cases, these thresholds may be waived where forfeiture will serve a compelling law enforcement interest (e.g., forfeiture of a “crack house,” a conveyance with hidden compartments, a computer or Internet domain name seized to disrupt a major fraud scheme, or assets connected to a child pornography ring or a terrorist organization). Any downward variations from the above thresholds must be approved in writing by a supervisory-level official and an explanation of the reason for the departure noted in the case file. A copy of this approval, in either a written memorandum or an e-mail, must be provided to the United States Marshals Service district office that will take custody of the assets(s). See Chapter 1 of the Asset Forfeiture Policy Manual (“Asset-Specific Net Equity Thresholds”).

9-111.123 – Avoiding Liability Seizures
When residential and commercial real property and businesses are targeted for asset forfeiture, the potential net equity must be calculated. See Chapter 1 of the Asset Forfeiture Policy Manual. If the financial analysis 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 financial loss and document the circumstances that warrant the seizure and institution of the forfeiture action.

In rare instances where preseizure planning is not possible, the seizing agency may be responsible for custody and maintenance of the property until the USMS has had an opportunity to conduct an analysis of the assets. The USMS must complete a preseizure planning questionnaire within 5 business days after the seizure or as soon as practicable given the nature of the information required. If the financial assessment indicates that the aggregate of all liens, mortgages, and management and disposal costs approaches or exceeds the anticipated proceeds from the sale of the property, the USAO must either (1) take action to dismiss the forfeiture action and to void any expedited settlement agreements (if any have been entered into), or (2) acknowledge the potential loss and document the circumstances that warrant the continuation of the forfeiture action.

In deciding how to proceed with the seizure and forfeiture of potential liability seizures during the preseizure phase in judicial forfeitures, the USAO in consultation with the seizing agency and the USMS (and in administrative forfeitures, the agent in charge of the field office responsible for the administrative forfeiture, or designee, in consultation with the USMS) must evaluate and consider the forfeitable net equity and the law enforcement purposes to be served in light of the potential liability issues and estimated costs of post-seizure management and disposition. See Chapter 1 of the Asset Forfeiture Policy Manual (“Net Equity Worksheet”).

9-111.124 – Business Seizures
Due to the complexities of seizing an ongoing business and the potential for substantial losses from such a seizure, a United States Attorney’s Office must consult with MLARS prior to initiating a forfeiture action against, or seeking the seizure of, or moving to restrain an ongoing business. For additional information on this topic see Chapter 1 of the Asset Forfeiture Policy Manual (“Business Seizures”).

The AUSA (or the agent in charge of the field office responsible…

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