V. Equitable Transfer of Forfeited Property to Participating State and Local Agencies
Pursuant to 21 U.S.C. § 881(e)(1) and 19 U.S.C. § 1616a, as made applicable by 21 U.S.C. § 881(d) and other statutes, the Attorney General has the authority to equitably transfer forfeited property and cash to state and local agencies that directly participate in the law enforcement effort leading to the seizure and forfeiture of the property. Requests for equitable transfers shall be filed in the form prescribed by the Director, Executive Office for Asset Forfeiture.
A. Equitable Transfers Generally
- All equitable shares shall be based on the net proceeds of the forfeiture.
- State and local investigative and prosecutive agencies may share in forfeited cash and property and the proceeds from the sale of forfeited property.
- All property transferred to state and local agencies and any income generated by this property shall be used for the law enforcement purposes specified in the request.
- A state or local agency may file a request for an equitable share of cash or property where it can demonstrate that it participated directly in the law enforcement effort that resulted in the forfeiture.
- No request shall be considered if it is submitted after sixty (60) days following the seizure.
- Cash and property shall be equitably shared with state or local agency only where it will increase and not supplant law enforcement resources of the specific state or local agency that participated the forfeiture.
- The deciding official shall ensure that the share approved has a value that bears a reasonable relationship to the degree of direct participation of the state or local agency in the law enforcement effort resulting in the forfeiture, taking into account the total value of all property forfeited and the total law enforcement effort with respect to the violation of law on which the forfeiture is based.
B. Factors Governing the Amount of the Equitable Transfer
The amount of equitable transfer of proceeds from the sale of forfeited property shall be based upon the net proceeds realized from the sale of the property or liquidation of negotiable instruments. Equitable sharing amounts shall be calculated after the determination of any award based upon the value of the forfeiture. Asset management expenses may be calculated on a pro rata basis where expenses cannot reasonably be determined for a specific asset.
In determining the amount of the equitable transfer for each participating agency, the following factors shall be considered:
- Whether the seizure was adopted or was the result of a joint investigation;
- The degree of direct participation in the law enforcement effort by the state or local agency resulting in the forfeiture, taking into account the total value of all property forfeited and total law enforcement effort, including any related criminal prosecution with respect to the violation of law on which the forfeiture is based (21 U.S.C. § 881 (e)(3));
- Whether the state or local agency originated the information that led to the seizure and whether the agency obtained such information fortuitously or by use of its investigative resources;
- Whether the state or local agency provided unique or indispensable assistance;
- Whether the state or local agency initially identified the asset(s) for seizure;
- Whether the state or local agency seized other assets during the course of the same investigation and whether such seizures were made pursuant to state or local law; and
- Whether the state or local agency could have achieved forfeiture under state law, with favorable consideration given to an agency which could forfeited the asset(s) on its own but joined forces with the United States to make a more effective investigation.
C. Sharing Percentages
- In cases involving adoptive seizures that are forfeited administratively or in uncontested judicial proceedings, the determining official shall allocate to the United States fifteen (15) percent of the total net proceeds realized through the disposition of forfeited property.
In cases involving adoptive seizures that are forfeited in contested judicial proceedings, the determining official shall allocate to the United States twenty (20) percent of the total net proceeds realized through the disposition of the forfeited property. These amounts represent the federal equitable share based upon its effort in forfeiting the property.
These sharing percentages shall be applicable to property seized on or after September 1, 1990.
- In non-adoptive cases the determining official shall allocate to the United States at least the applicable percentages set forth in paragraph 1.
- The United States' equitable share will normally be satisfied by the allocation of one or more of the items forfeited (or a portion of the proceeds thereof) to the United States.
- In cases where only one asset or item is forfeited and a state or local agency requests that asset in lieu of proceeds from the disposition of the property, the determining official shall ensure that the United States receives its costs and equitable share to reflect total federal participation in the forfeiture effort. If the requesting agency is unable to pay the costs and federal share in such a one-asset forfeiture case, the property shall be sold by the U.S. Marshals Service and the proceeds distributed in accordance with these Guidelines.
Exceptions to this requirement may be granted by the deciding official upon assurances that (1) the requesting state or local agency lacks funds or authority to satisfy the United States' equitable share and costs; and (2) the forfeited item will fill a demonstrable need of the requesting agency. Such exceptions shall be liberally granted where the two abode showings are made.
- Nothing in this section shall alter the ability of the U.S. Marshals Service to pay appropriate expenses from the Fund or to recover costs directly from participating agencies.
D. Decision-Making Authority
Sharing decisions should be made during the period when forfeiture proceedings are being conducted. Decision-Making authority shall be as follows:
1. Administrative Forfeitures Valued at Less than $1,000,000
The head of the seizing investigative bureau shall determine the appropriate equitable transfer of assets forfeited in a single administrative proceeding where the appraised value of the asset(s) is less than $1,000,000.
2. Judicial Forfeitures Valued Less Than $1,000,000
The United States Attorney shall determine the appropriate equitable distribution of asset(s) forfeited in a single judicial proceeding in his or her district where the appraised value of the asset(s) is less than $1,000,000.
3. Administrative and Judicial Forfeitures Valued at $1,000,000 or Greater and Multi-District Cases
In the case of a single administrative or judicial proceeding where the appraised value of the asset(s) forfeited is $1,000,000 or more and in multi-district cases, the United States Attorney(s) shall, after consultation with the investigative bureau(s), forward his (their) evaluation(s) and recommendation(s) to the Deputy Attorney General or his designee for determination.
4. Real Property Forfeitures
The Deputy Attorney General or his designee shall approve any equitable transfer of real property. Where appropriate, any such transfer shall include a provision for reversion of title to the United States if the property is not used for the agreed upon purposes.