JUSTICE MANUAL 9-116.000 – Equitable Sharing And Federal Adoption

9-116.100 – General Equitable Sharing Policies and Procedures
Department of Justice policies and procedures governing the equitable sharing of federally forfeited property, including administration of and participation in the Department of Justice Equitable Sharing Program, application for transfer of federally forfeited property to State and local law enforcement agencies, determination of equitable sharing distributions, and permissible uses of transferred property by State and local law enforcement agencies, are set forth in Department of Justice publications, including A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies, The Attorney General’s Guidelines on Seized and Forfeited Property, and The Asset Forfeiture Policy Manual.

In accordance with the Crime Victims’ Rights Act (18 U.S.C. § 3771) and the Attorney General’s authority, the Department of Justice gives priority distribution of forfeited assets to valid owners, lienholders, federal financial regulatory agencies, and victims (in that order) through remission or restoration. After losses to the above parties have been satisfied, any remaining proceeds can be shared with state and local law enforcement agencies.

9-116.110 – Federal Adoption
The adoption policies and procedures are intended to ensure consistent review and handling of state and local seizures presented for federal adoption. See Chapter 1 of the Asset Forfeiture Policy Manual.

All state and local seizures presented for adoption must be reported on a form entitled “Request for Adoption of State or Local Seizure.” A copy of this form is in the Asset Forfeiture Policy Manual, Appendix H. The form must be completed by the requesting state or local agency, but Federal personnel may, in their discretion, complete the form for the requesting state or local agency. Depending on the jurisdiction, state or local agencies may also be required to submit a declination letter from the state court waiving the state’s authority to conduct forfeiture proceedings along with the Request for Adoption of State or Local Seizure form.

Information concerning any state forfeiture proceedings instituted against the property must be detailed in the request for adoption form. A federal agency must not adopt a seizure while the property remains subject to the jurisdiction of a state court. The state or local agency also may be required to complete the Federal agency’s standard federal asset seizure form as part of the adoption request. All information provided must be complete and accurate. An estimate of fair market value must be provided for each item of seized property presented for adoption and any liens and lienholders must be identified. Copies of any investigative reports and of any affidavits in support of warrants pertinent to the seizure must be attached for review. State or local agencies may redact from investigative reports information which may disclose the identity of a confidential informant. See Chapter 1 of the Asset Forfeiture Policy Manual.

9-116.120 – Federal Law Enforcement Agency Review of Adoption Requests
The adopting federal agency must consider adoption requests promptly. Property management issues must be addressed in consultation with the U.S. Marshals Service prior to an adoption. The request for adoption must be accepted prior to the transfer of the property to federal custody unless exceptional circumstances exist.

Only an attorney outside the chain-of-command of operational officials (e.g., the seizing agency’s office of chief counsel or other legal unit) may approve a request for adoption unless:

the seizure was based on a judicial seizure warrant; or

an arrest was made in connection with the seizure; or

drugs or other contraband were seized from the person from whom the property was seized.
Federal law enforcement agencies may expand the circumstances requiring attorney approval. Any attorney review shall verify that:

the property is subject to federal forfeiture;

there is probable cause to support the seizure;

the property is not within the custody of a state court; and

there is no other legal impediment to a successful forfeiture action.
For more information on this topic, see Chapter 1 of the Asset Forfeiture Policy Manual.

9-116.150 – Judicial Review Favored
Whenever practicable, Department of Justice officials should obtain ex parte judicial approval prior to seizing personal property. See Chapter 1 of the Asset Forfeiture Policy Manual.

9-116.160 – 30-Day Rule for Presentation for Federal Adoption
A federal law enforcement agency may be required to commence administrative forfeiture proceedings by sending written notice “not more than 90 days after the date of seizure by the state or local law enforcement agency.” In order to allow ample time for federal agencies to process adoptive seizures, state and local agencies must request federal adoption within 30 calendar days of seizure. Any waiver of the 30-day rule must be approved in writing by a supervisory-level official of the adopting agency where the state or local agency requesting adoption demonstrates the existence of circumstances justifying the delay. See Chapter 1 of the Asset Forfeiture Policy Manual.

9-116.170 – United States Attorney Recommendation For Adoption of Seizure
A United States Attorney may recommend in writing that a federal law enforcement agency adopt a particular state or local seizure or category of seizures for federal forfeiture. If the federal agency declines to adopt the seizure but has no objection to the direct adoption of the seizure by the United States Attorney for judicial forfeiture under federal law, the United States Attorney may adopt the seizure and pursue the forfeiture civilly or criminally. On the other hand, if the federal agency declines to adopt the seizure and believes that it should not be adopted for federal forfeiture and the United States Attorney disagrees, the United States Attorney may refer the matter to the Money Laundering and Asset Recovery Section (MLARS). After consulting with the headquarters office of the seizing agency, MLARS may authorize direct adoption of the seizure or category of seizures by the United States Attorney where a compelling law enforcement purpose justifies such action. See Chapter 1 of the Asset Forfeiture Policy Manual.

9-116.190 – Retention of Custody by State or Local Agency
To minimize storage and management costs to the Department of Justice, the state or local agency requesting adoption of a conveyance should serve as the substitute custodian of the property pending forfeiture. The United States Marshals Service (USMS) may authorize a state or local law enforcement agency requesting adoption of other personal property, except cash and other financial instruments, to serve as the substitute custodian where appropriate. Use or disposition of the property during this period by state or local law enforcement officials or others is prohibited. See Chapter 1 of the Asset Forfeiture Policy Manual.

9-116.195 – Use of Anticipatory Seizure Warrants
If a state or local law enforcement agency commences a forfeiture action under state law, no federal forfeiture action may be commenced as long as the state court has jurisdiction over the subject property. If, however, the state or local 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, a federal agency may arrange to seize the property 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 section 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. See Chapter 1 of the Asset Forfeiture Policy Manual.

9-116.210 – Equitable Sharing Decisions
If the total appraised value of all the assets forfeited in a single administrative forfeiture order is less than $1 million, the head of the investigative agency (or designated agency headquarters official), for each asset, determines the appropriate equitable share, completes section II of the DAG-72, and enters the decision in the Consolidated Asset Tracking System (CATS).

If the total appraised value of all the assets forfeited in a single judicial forfeiture order is less than $1 million, the head of the investigative agency (or designated agency headquarters official), for each asset, makes a recommendation as to the appropriate equitable share, completes section II of the DAG-72, enters the recommendation in CATS, and forwards the DAG- 71 and DAG-72 to the United States Attorney’s Office. For each asset, the United States Attorney (or designee) determines the appropriate equitable share, completes section III of the DAG-72, and enters the decision in CATS. Any authorization to determine equitable sharing on behalf of the United States Attorney must be reduced to writing and maintained with other delegations.

In multi-district cases, in cases involving the equitable transfer of real property, and where the total appraised value of all the assets forfeited in a single administrative or judicial forfeiture order is $1 million or more, the head of the investigative agency (or designated agency headquarters official), for each asset, makes a recommen…

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