JUSTICE MANUAL 9-112.000 – Administrative And Judicial Forfeiture

9-112.110 – Administrative Forfeiture Policy
Properties subject to administrative forfeiture must be forfeited administratively, unless one of the following exceptions applies:

Where several items of personal property (other than monetary instruments) are subject to civil forfeiture under the same statutory authority, and on the same factual basis, and they have a common owner, and have a combined appraised value in excess of $500,000, the property should be forfeited judicially in a single action.

Where the items subject to forfeiture include some that can be forfeited administratively and others that must be forfeited judicially, the forfeitures may be combined in a single judicial action.

When pursuing administrative forfeiture might create the appearance that the Government is circumventing the time limits on administrative forfeiture set forth in 18 U.S.C. § 983(a), the forfeiture should be done judicially.

When the United States Attorney and the seizing agency agree that the forfeiture should proceed judicially in the first instance.

When the United States Attorney requests that the seizing agency suspend the administrative forfeiture to allow the forfeiture to be handled criminally, and the seizing agency agrees to do so, the forfeiture may be pursued exclusively as part of the criminal case.
See Chapter 2 of the Asset Forfeiture Policy Manual (“Interplay of Administrative Forfeiture and Civil Forfeiture”).

9-112.120 – Interplay of Administrative Forfeiture and Criminal Forfeiture
The seizing agency should commence administrative forfeiture proceedings against seized property by sending notice to potential claimants. Simultaneously, the U.S. Attorney should ask the grand jury to include a forfeiture allegation against the same property in a criminal indictment. This is the proper procedure. If there is no claim in the administrative forfeiture proceeding, the property will automatically be forfeited. In cases where no claim is filed and the property is forfeited administratively, however, it is necessary to strike the forfeiture allegation from the indictment to avoid a situation in which the court, the defendant, or the jury is confused by the procedure and mistakenly believes that the Government abandoned the administrative forfeiture once the indictment was returned, and intended to proceed with the criminal forfeiture alone. Accordingly, in cases where administrative and criminal forfeiture proceedings are instituted simultaneously, and no one files a claim in the administrative proceeding, the agency should complete the administrative forfeiture, and the AUSA handling the criminal case should file a motion reporting the completed forfeiture and therefore striking the forfeiture from the indictment. See Chapter 2 of the Asset Forfeiture Policy Manual (“Interplay of Administrative Forfeiture and Criminal Forfeiture”).

9-112.130 – Requesting the Seizing Agency to Suspend the Administrative Forfeiture
In an extraordinary case, the U.S. Attorney may have a reason why the case should not be handled administratively and may ask the seizing agency to suspend the administrative forfeiture in favor of criminal forfeiture. Seizing agencies will generally comply with that request, but the U.S. Attorney may then have to take steps to ensure that the 60-day deadline for commencing an administrative forfeiture proceeding under section 983(a)(1)(A) is not violated. See section 983(a)(1)(A)(iii) (no notice of administrative forfeiture is required if, before the 60-day period expires, a grand jury returns an indictment naming the property, and the Government takes steps to preserve its right to maintain custody of the property under the criminal forfeiture laws). See Chapter 2 of the Asset Forfeiture Policy Manual (“Requesting the Seizing Agency to Suspend the Administrative Forfeiture”).

9-112.140 – Conversion of Administrative Forfeitures Covered by the Customs Carve-Out in CAFRA to Judicial Forfeitures
There are times when an administrative forfeiture is commenced under Title 19, but the ensuing judicial forfeiture is brought under another statute. Title 19 forfeitures are exempt from the provisions of CAFRA, whereas most other forfeitures are not. The reforms enacted by CAFRA are applicable to all civil forfeitures taken under any provision of federal law except for those specifically exempted by 18 U.S.C. § 983(i). Forfeitures to which the provisions of CAFRA are not applicable include, inter alia, forfeitures under Title 19 that are enforced by Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) (formerly components of the U.S. Customs Service). In instances where CBP (on its own, or on behalf of ICE) commences an administrative forfeiture action under Title 19 and the U.S. Attorney subsequently files a civil judicial forfeiture action under a non-Title 19 statute, the U.S. Attorney should comply with all CAFRA deadlines, including the 90-day filing deadline under section 983(a)(3), and CBP should return the cost bond. For additional information on this topic see Chapter 2 of the Asset Forfeiture Policy Manual (“Conversion of administrative forfeitures covered by the Customs carve-out to judicial forfeitures covered by CAFRA”).

9-112.150 – Seizure Pursuant to a Criminal Warrant: Availability of Administrative Forfeiture
A seizing agency may commence a forfeiture proceeding as a criminal forfeiture (i.e., by seizing the property with a criminal seizure warrant under section 853(f)) and subsequently convert the proceeding to an administrative one without reseizing the property or taking some other action under the civil forfeiture statutes. Except in extraordinary circumstances, if the Government desires to commence administrative forfeiture proceedings against property seized pursuant to a criminal seizure warrant, it should do so within 60 days of the seizure. If the 60-day deadline has passed, and the Government still desires to pursue the forfeiture civilly instead of criminally, the case should be referred to the U.S. Attorney to commence a civil judicial proceeding. For additional information on this topic see Chapter 2 of the Asset Forfeiture Policy Manual (“Seizure Pursuant to a Criminal Warrant: Availability of Administrative Forfeiture”).

9-112.160 – Motions for Reconsideration in Criminal Forfeiture Cases
When the order of forfeiture in a criminal case contains a legal or factual error, the Government may file a motion for reconsideration. If the order was entered prior to sentencing, as contemplated by Rule 32.2(b)(2), Federal Rules of Criminal Procedure, the filing of the motion for reconsideration is straightforward. If the order is not entered until sentencing, however, the opportunity to move to correct the order may be quite limited. That is because the filing of a motion for reconsideration in a criminal case may not suspend the time for filing an appeal under Appellate Rule 4(b), and because, in any event, the only vehicle for correcting an order of forfeiture once it becomes part of the sentence may be Rule 35(a), which requires that the motion be made, and the relief be granted, within 7 days of the sentence.

Accordingly, prosecutors should always ask the court to issue a preliminary order of forfeiture as soon as possible in accordance with Rule 32.2(b)(2) so that there is ample opportunity to correct the order before it becomes final at sentencing. Prosecutors should not assume that a motion for reconsideration filed after the sentence will suspend the time for appeal.

The Department’s policy is to assume that Rule 35(a) applies. Accordingly, until this issue is resolved by the courts or by Congress, in a criminal case in which the order of forfeiture is not entered until sentencing, a prosecutor who files a motion for reconsideration of the order should file the motion, and urge the court to rule on it, within 7 days of the sentence. In addition, the AUSA should not assume that the filing of the motion will extend the time for filing an appeal, but should instead file the notice of appeal before the 30th day under App. 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 the Government’s policy on this matter so that the court understands the reasons why the Government may feel compelled to file its notice of appeal—which divests the district court of jurisdiction—even though the court may have scheduled a hearing on the Government’s motion.

In all cases, however, the interests of justice would be better served if the court were to enter a preliminary order of forfeiture as soon as possible after the entry of a verdict or the acceptance of a guilty plea so that the court would have a full opportunity prior to sentencing to correct any legal or factual error. A motion for reconsideration would always be appropriate if filed after the order is entered but prior to sentencing. If that practice is followed, much unnecessary litigation over the scope of Rule 35(a), and many unnecessary appeals, may be avoided.

Because the law regarding the application of Rule 35(a) and App. Rule 4(b)(5) to motions to reconsider orders of forfeiture in criminal cases is unclear, AUSAs should act conservatively to protect the Government’s right to appeal from the forfeiture portion of a criminal sentence. Until the law on this issue becomes more clear, prosecutors should assume that any motion for reconsideration of a criminal forfeiture order should be filed and ruled upon within 7 days of sentencing in accordance with Rule 35(a), and that the filing of the motion will not suspend the time for filing an appeal under Ap…

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