VII. The Department of Justice Assets Forfeiture Fund
A. Administration of the Fund
- The Attorney General delegates the administration of the Fund to the Director, U.S. Marshals Service under the supervision of the Deputy Attorney General.
- The U.S. Marshals Service shall prepare reports on the Fund in accordance with 28 U.S.C. § 524(c) (6).
- Pursuant to these Guidelines, federal agencies reimbursed by or contributing to the Fund, shall provide information necessary to prepare these reports as requested by the U.S. Marshals Service.
- The U.S. Marshals Service shall submit a monthly financial statement reflecting the current of the Fund to the Director, Executive Office for Asset Forfeiture.
- The U.S. Marshals Service shall prepare annual budget estimates for the Fund based on information submitted by the requesting agencies.
B. Payments and Reimbursements
Payments and reimbursements are permitted in six (6) general categories. In any fiscal year, reimbursement for program management expenses and investigative expenses expressly identified in 28 U.S.C. § 524(c)(1) shall not exceed the amount specified in the annual appropriation limitation on the Fund. The categories listed in order of priority are as follows:
- Asset management expenses. Asset management expenses are those expenses that are incurred in connection with the seizure, inventory, appraisal, packaging, movement, storage, maintenance, security and disposition (including destruction) of the asset(s).
Asset management expenses include payments for contract services and the employment of outside contractors to operate and manage properties or provide other specialized services as necessary to dispose of such properties. If the asset is an ongoing business, the normal and customary expenses of operating the business are asset management expenses only to the extent they are not covered by the income of the business.
- Case-related expenses. Case-related expenses are those expenses that are incurred in connection with normal proceedings undertaken to perfect the United States' interest in seized property through forfeiture. This includes fees and other costs of advertising, translation, court and deposition reporting, expert witness, courtroom exhibit services, employment of attorneys or other specialists in state real estate law by the U.S. Marshals Service, travel and subsistence related to a specific proceeding, and other related items as approved by the Director, Executive Office for Asset Forfeiture.
The Director, Executive Office for Asset Forfeiture, may approve the expenses incurred in connection with retention of foreign counsel to gain access to information needed to conduct pre-seizure planning on identified assets, to effect a seizure of assets or to perfect title of forfeited property in a foreign country.
- Payment of qualified third party interests. Qualified third party interests are those expenses incurred in the payment of valid liens, secured mortgages and debts owed to qualified general creditors pursuant to court order or a ruling on a petition for remission or mitigation of the forfeiture. This includes the restoration of the proceeds of sale pursuant to a court order or an administrative determination. Nothing in this section shall preclude a departmental component from seeking reimbursement from the state or local agency that received the property that is the basis of the claim.
- Equitable sharing payments. Equitable sharing payments are those payments which represent amounts paid directly to foreign governments or agencies and state or local agencies. Pursuant to 21 U.S.C. § 881 (e)(3)(a), these amounts shall reflect the degree of participation 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.
- Program management expenses. Program management expenses are those expenses incurred in conducting program responsibilities that are not related to any specific asset or to any one specific seizure or forfeiture. Expenses included under this heading are:
- Automatic Data Processing
- Expenses for the purchase or lease of automatic data processing equipment which is utilized the majority of the time for asset forfeiture program related work;
- Expenses for the development of computer software that will enhance the capability of the Department of Justice to identify, track, manage, process and dispose of forfeitable property may be approved by the Director, Executive Office for Asset Forfeiture.
- Each investigative bureau and Department component receiving monies from the Fund for automatic data processing purposes shall develop internal guidelines consistent with these Guidelines governing the use of and accountability for automatic data processing resources acquired with monies from the Fund. Copies of such internal guidelines shall be filed with the Director, Executive Office for Asset Forfeiture.
- The design of all systems to be developed in whole or in part with Fund monies shall be submitted to the Director, Executive Office for Asset Forfeiture, for approval. The design of such software shall be consistent with and advance the overall objective of the Department to implement and maintain an integrated asset seizure and forfeiture information system.
- Contracting for services directly related to the processing, data entry and accounting for forfeiture cases.
- Printing and graphic services reasonably necessary to effectuate program goals.
- The Executive Office for Asset Forfeiture shall have responsibility for oversight of forfeiture training and will assist Department components in coordinating asset seizure and forfeiture training conferences. Goals of the Department's training program shall be to provide consistent treatment of identical topics, to take advantage of opportunities joint training, and to foster cooperation and appreciation of the needs of all components.
- Any agency that anticipates requesting reimbursement for training personnel shall submit a justification indicating numbers of persons to be trained, the purpose and scope of training, the location and approximate cost of such training, an outline of topics in need of coverage, and the priority of training needs, as requested by the Director, Executive Office for Asset Forfeiture.
- A consolidated training calendar shall be maintained by the Executive Office for Asset Forfeiture for asset seizure and forfeiture training for Department components.
- The Assets Forfeiture Fund may be used to finance necessary training expenses directly related to the asset forfeiture program. Generally, this will include:
- any required training for employees or contractors dedicated to the asset forfeiture program (e.g., trial advocacy for asset forfeiture attorneys, training on agency computers for contract employees);
- any exclusively asset forfeiture training program that is conducted for other personnel, for whom asset forfeiture is an ancillary duty, to enable them to be more effective in performing asset forfeiture program functions; and
- that portion of a broader law enforcement training program that directly related to the identification, tracking, evaluation, seizing, processing, accounting for, management or disposition of property subject to forfeiture (e.g., 25 percent of the expenses of a money laundering conference or a drug investigation conference if 25 percent of the conference program deals directly with the asset forfeiture program).
Exceptions may be granted on a case-by-case basis by the Director, Executive Office for Asset Forfeiture.
- Other types of general program management and operational costs as approved by the Director, Executive Office for Asset Forfeiture.
- Investigative expenses. Investigative expenses are those expenses normally incurred in the identification, location and seizure of property subject to forfeiture. Investigative expenses statutorily eligible to be paid from the Fund include such items as:
- Awards for information concerning violations of the criminal drug laws;
- Awards for information leading to the forfeiture of property under the Comprehensive Drug Abuse Prevention and Control Act of 1970 or the Racketeer Influenced and Corrupt Organizations (RICO) statute;
- Awards for information concerning the killing or kidnapping of a Federal drug law enforcement agent;
- Purchase of evidence of any violation of the Controlled Substances Act, the Controlled Substances Import and Export Act, RICO or 18 U.S.C. §§ 1956 and 1957;
- Contracting for services directly related to the identification of potentially forfeitable assets;
- Equipping of conveyances for drug law enforcement functions; and,
- The storage, protection and destruction of controlled substances
C. Liens and Mortgages
- Liens or mortgages on real property placed into federal official use or transferred to state or local agencies are not payable from the Fund unless expressly approved by the Director, Executive Office for Asset Forfeiture.
- Liens and mortgages shall be satisfied after the sale of forfeited property pursuant to a determination to remit or mitigate the forfeiture or an order of the court, except under the following conditions where payments may be made from the Fund:
- Where the payment prior to sale will improve the United States' ability to convey title to the property;
- Where the United States has substantial equity in forfeited real property and payment prior to sale will not result in a net loss to United States; or
- Where the property is approved for placement into official use by an investigative bureau or the U.S. Marshals Service and all necessary approvals have been obtained.
D. Limitations on Use of the Fund
- Items not payable from the Fund include:
- Personnel expenses (e.g., salaries, overtime and benefits) for employees of the United States;
- Expenses in connection with the seizure, detention and forfeiture of property where the seizure was effected by a U.S. Postal Inspection Service or a U.S. Customs Service officer and the proceeds of forfeiture, if any, are to be deposited into the Postal Fund or the Customs Forfeiture Fund, respectively;
- Purchase of real property or any interest therein except to acquire full title to or to satisfy liens or mortgages on forfeited property;
- Payments to equip property transferred to federal agencies (other than investigative bureaus or the U.S. Marshals Service) or state or local agencies;
- Expenses in connection with the seizure, detention and disposition of property where the seizure was effected for debt collection or other non-forfeiture purposes; and
- Reception and representation expenses (e.g., refreshments, meals, gifts or entertainment).
- Claims of unsecured creditors generally may not be paid from the Fund, particularly if such payment may jeopardize the legitimate claims of existing lienholders.
Pursuant to 28 C.F.R. § 9.6(b), claims of unsecured creditors for debts incurred within one hundred and twenty (120) days before seizure may be paid by the U.S. Marshals Service in order to preserve the continued operation of a seized business. Such payable expenses include the following:
- Payment of reasonable salaries and benefits of employees not believed to have been involved in the unlawful activities giving rise to forfeiture and not having an ownership interest in the business entity;
- Payments to third party contractors for goods or services essential to carry on the business and who continue to provide those goods or services as in the regular course of business; and
- Payment of Expenses
- Asset management expenses incurred by the U.S. Marshals Service, qualified third party interests and equitable sharing payments set forth above will be obligated against and paid directly from the Fund in accordance with standard Departmental financial management and accounting policies and procedures.
- Pursuant to a properly executed Reimbursement Agreement Between Agencies (DOJ-216), all other obligations incurred under these Guidelines will be paid by the agency incurring the obligation and will be reimbursed from the Fund on a monthly basis where practicable by means of an Inter-Agency Fund Transfer (SF-1081).
- It is the responsibility of the agency incurring the obligation to prepare the DOJ-216 and SF-1081 forms and obtain the proper authorization from the Director, U.S. Marshals Service. Each DOJ-216 and SF-1081 shall identify the appropriation to be reimbursed from the Fund.
- Approved DOJ-216's and SF-1081's will be registered upon receipt by the U.S. Marshals Service. Properly authorized requests (SF 1081's) will be processed for payment in order of receipt. If sufficient funds are available, the U.S. Marshals Service shall approve the transfer of funds to the appropriation identified.
- All transfers from the Fund shall be based upon certification of actual expenditures by the requesting agency. Transfers shall not be made based upon estimated obligations.
- If a payment requested is in excess of funds available, the U.S. Marshals Service shall not process the request and shall advise the requesting agency of the reason.
- If the U.S. Marshals Service and the requesting agency cannot agree on deferral or cancellation of the request, the parties shall seek in writing a determination from the Deputy Attorney General or his designee. U.S. Marshals Service shall provide notice of the decision to the agency submitting the SF-1081.
E. Preparation of Estimates of Anticipated Expenses and Reimbursement Agreements
- By June prior to the fiscal year in which the expenses are anticipated and as necessary during the fiscal year, any agency that anticipates requesting reimbursement for expenses from the Fund hall submit requests to the Director, Executive Office for Asset Forfeiture, based upon estimates of anticipated expenditures. Prior to submission to the Director, Executive Office for Asset Forfeiture, these requests shall be reviewed and approved in accordance with the agency's internal procedures for budget submissions.
- Requests for anticipated reimbursements with accompanying justification shall be submitted in the format required by the Director, Executive Office for Asset Forfeiture. Information regarding appropriated resource levels shall be provided as part of the justification.
These requests shall include information regarding the effect that any reprogramming of appropriated resources had on the need for additional resources from the Fund.
- In evaluating the requests and approving allocations, the Deputy Attorney General or his designee shall ensure that:
- Overall amounts recommended for authorization in a budget for any fiscal year do not exceed appropriation limitations for that year; and
- Overall amounts recommended for authorization in a budget for any fiscal year do not exceed an agreed upon estimate of amounts available for obligation, to include current year income plus any carry-over from the prior year.
- To the extent possible, the Deputy Attorney General or his designee shall approve a budget of expenses prior to the beginning of the fiscal year. This budget will form the basis for the establishment of reimbursement agreements between the U.S. Marshals Service as the administrator of the Fund and the participating agencies.
- An agency may change the distribution of its allocation among particular categories of reimbursable expenses during a fiscal year without approval of the Deputy Attorney General or his designee, subject to the following conditions:
- A redistribution cannot increase the total amount allocated for expenses subject to appropriation (i.e., program management and investigative expenses).
- A proposal for any redistribution shall be submitted with supporting justification to the Director, Executive Office for Asset Forfeiture, thirty (30) days in advance of the proposed effective date of the proposal. A copy of the proposed redistribution shall also be provided to the U.S. Marshals Service.
The Director, Executive Office for Asset Forfeiture, may deny such proposed redistribution with notice to the agency and U.S. Marshals Service.
- Forfeiture funds allocated for specific purposes shall supplement and not supplant appropriated funds provided explicitly or implicitly for those purposes. The calculation of appropriated funds available for specific purposes shall take into account any completed reprogrammings.
F. Payment of Awards
Monies from the Fund may be used to pay awards for specific information or instances of assistance. These monies are not to be used to pay retainers or to pay cooperating informants in the expectation of future specific information or assistance.
- Applications for awards will be accepted on behalf of any individual. (The term "individual" encompasses corporations and associations.)
- Applications for awards shall be submitted in a format developed and approved by the Director, Executive Office for Asset Forfeiture.
- Awards pursuant to 28 U.S.C. § 524(c)(1)(C) shall be paid only after disposition of the forfeited property.
- Awards will not be paid to individuals who are representatives of state or local agencies. Any information or assistance provided by an individual who represents a state or local agency will be compensated under rules governing transfers of forfeited property.
- Any awards pursuant to 28 U.S.C. § 524(c)(1)(B) shall not exceed $250,000. Any award pursuant to 28 U.S.C. § 524(c)(1)(B) or (C) shall preclude the recipient of such award from any additional award based on a forfeiture resulting in any way from the same information or assistance.
Any award pursuant to 28 U.S.C. § 524(c)(1)(C) shall not exceed the lesser of $250,000 or one- fourth the amount realized by the United from the property forfeited.
- If forfeited property is sold, then the "amount realized by the United States from the property forfeited" is the net proceeds.
- If forfeited property is retained for official use, the "amount realized by the United States from the property forfeited" is the value of the property at the time of seizure minus expenses paid from the Fund under Section VII.B (1, 2 and 3).
- All applications for awards shall be directed to the field office of the investigative bureau responsible for processing the forfeiture. Non-Department of Justice agencies (e.g., Organized Crime Drug Enforcement Task Force members such Internal Revenue Service) should be instructed to direct any inquiries concerning these awards to the investigative bureau responsible for processing the forfeiture.
- The investigative bureau field unit receiving or initiating an application for an award will prepare a written report that will evaluate the value of the information or assistance provided by the applicant and recommend an amount to be paid.
- If more than one application for an award pursuant to 28 U.S.C. § 524(c)(1)(C) is received in a single action for forfeiture, the applications should be handled in a consolidated manner.
Decisions on all applications should be made at the same time, and should consider the comparative value of information or assistance provided by each applicant and the aggregate amount of award(s) to be made. In these cases, the limits discussed in paragraph VII.F.3-4 apply to the aggregate amount of the awards to be made.
- Recommendations for payment of awards pursuant to 28 U.S.C. § 524(c)(1)(B) shall:
- Identify the investigation, including agency and/or federal district court case numbers;
- Identify the recommended dollar amount of the award; and
- Include the recommendation of the amount of the award, the seriousness and scope of the criminal activity involved, the degree to which the information or assistance aided the investigation, and whether the information or assistance provided was unique or indispensable.
- Recommendations for payment of awards pursuant to 28 U.S.C. § 524(c)(1)(C) shall:
- Identify the property or properties regarding which information or assistance was provided, including agency and/or federal district court case numbers;
- Identify which of those properties were forfeited and when;
- Identify the recommended dollar amount of the award, the degree to which the information or assistance aided in the forfeiture and whether the information or assistance provided was unique or indispensable; and
- Identify costs incurred under Section VII.B.1-3 with respect to the property forfeited. A report on those costs shall be obtained from the U.S. Marshals Service.
- Approval of awards will be in accordance with 28 U.S.C. § 524(c) (2) and any subsequent delegations of authority.
G. Purchase of Evidence
- Pursuant to 28 U.S.C. § 524(c)(1)(G) the Attorney General is authorized to utilize monies from the Fund for purchase of evidence of any violation of the Controlled Substances Act, the controlled Substances Import and Export Act, 18 U.S.C. Ch. 96 or 18 U.S.C. §§ 1956 and 1957.
- Approval of amounts for the purchase of evidence will be in accordance with 28 U.S.C. § 524(1)(G) and any subsequent delegations of authority.
- Each investigative agency shall develop internal guidelines covering the use of monies from the Fund for the purchase of evidence. Such guidelines shall be filed with the Executive Off ice for Forfeiture.
- If a participating agency recovers part or all of the monies that are used to purchase evidence for which it has obtained reimbursement from the Fund, the recovered monies shall be returned to the Fund.
H. Payments to Equip Conveyances for Drug Law Enforcement Functions
- Decisions to equip a government-owned or leased conveyance (vehicle, vessel, or aircraft) for drug law enforcement functions shall be made by the organizational component within the agency which is responsible for management of the conveyance.
- Reimbursable payments may be bade to equip conveyances which are used the majority of the time for activity relating to the investigation or apprehension of violators of the federal drug laws and the seizure and forfeiture of their assets.
Monies from the Fund may not be used for recurring expenses such as fuel, spare or replacement parts, maintenance, or replacement of equipment due to wear and tear by the agency using the conveyance.
- Equipping should generally occur before the conveyance is placed into official use and only if it is intended to be in service for at least two (2) years.
Exceptions may be made to this guidance only under extraordinary circumstances and shall be documented.
- Unreasonable amounts shall not be spent on equipping Government-owned or leased conveyances for-drug law enforcement purposes. Purchased equipment must be affixed to the conveyance and used integrally with the conveyance.
- Each agency shall establish internal guidelines which shall ensure the effective utilization of monies from the Fund budgeted for equipping forfeited, leased or owned conveyances for drug law enforcement purposes. These guidelines should consider the estimated useful life of the conveyance and the availability of similarly equipped conveyances. Such guidelines, and any Subsequent revisions, are to be filed with the Executive Office for Asset Forfeiture. Agencies shall maintain records, by conveyance, of amounts from the Fund spent on equipping.
I. Cash Management
Seized cash, except where it is to be used as evidence, is to be deposited promptly in the Seized Asset Deposit Fund pending forfeiture. The Director, Executive Office for Asset Forfeiture, may grant exceptions to this policy in extraordinary circumstances. Transfer of cash to the United States Marshal should occur within sixty (60) days of seizure or ten (10) days of indictment.