- 9.7.1 Roles, Responsibilities, and Authorities
- 22.214.171.124 Overview
- 126.96.36.199 Roles and Responsibilities
- 188.8.131.52.1 Department of the Treasury, Executive Office for Asset Forfeiture
- 184.108.40.206.2 Warrants and Forfeiture Section
- 220.127.116.11.3 United States Attorney's Office
- 18.104.22.168.4 Criminal Tax Attorney
- 22.214.171.124.5 Special Agent in Charge
- 126.96.36.199.6 Supervisory Special Agent
- 188.8.131.52.7 Asset Forfeiture Coordinator
- 184.108.40.206.8 Special Agent
- 220.127.116.11.9 Seized Property Contractor
- 18.104.22.168.10 Asset Forfeiture Support Services Contractor
- 22.214.171.124.11 Statements of Work
- 126.96.36.199 Assets Forfeiture Authorities
- 188.8.131.52.1 United States Code and Code of Federal Regulations
- 184.108.40.206.2 Supplemental Rules for Certain Admiralty and Maritime Claims
- 220.127.116.11.3 Treasury Orders, Treasury Directives, Delegation Orders, Memoranda of Understanding
- 18.104.22.168.4 Executive Office for Asset Forfeiture Policy Directives and Guides
- 22.214.171.124.5 Asset Forfeiture and Money Laundering Section Publications
- Exhibit 9.7.1-1 National Code of Professional Conduct for Asset Forfeiture
Part 9. Criminal Investigation
Chapter 7. Asset Seizure and Forfeiture
Section 1. Roles, Responsibilities, and Authorities
March 03, 2015
(1) This transmits a revised 9.7.1, Roles, Responsibilities, and Authorities.
(1) Subsection 126.96.36.199.1 (6) and (7) have been added to reflect structuring investigation policy changes. Subsequent paragraphs have been re-numbered. Criminal Investigation will not pursue the seizure and forfeiture of funds associated solely with “legal source” structuring cases unless there are exceptional circumstances justifying the seizure and forfeiture and the case has been approved at the Director of Field Operations (DFO) level.
Domenic A. McClinton for Richard Weber
Chief, Criminal Investigation
The Criminal Investigation (CI) Asset Seizure and Forfeiture program utilizes CI's seizure and forfeiture authority as an investigative tool and/or to disrupt and dismantle criminal enterprises. The program seeks to deprive criminals of property used in, or acquired through, illegal activities by directing CI's financial expertise and resources towards significant seizure and forfeiture investigations in which CI can take a leading or key role.
The Asset Seizure and Forfeiture chapter of IRM 9.7 contains thirteen sections. Sections 9.7.2 through 9.7.10 cover Title 18 seizure and forfeiture. Title 26 forfeiture, known as "Code" forfeiture, is covered separately in section 9.7.13. Sections 9.7.11 and 9.7.12 cover seizures for abandonment and evidence.
There are numerous departments, agencies, sections, offices, and individuals that often have to coordinate their activities and work together to accomplish the goals of the asset forfeiture program. This section of the IRM will introduce and define the roles and responsibilities of key participants in the asset forfeiture process.
All personnel involved in asset forfeiture have a responsibility to follow the National Code of Professional Conduct for Asset Forfeiture (Exhibit 9.7.1–1).
The Secretary of the Treasury, through the Under Secretary for Enforcement, has delegated responsibility for the operation and administration of the Treasury Forfeiture Fund to the Director of the Executive Office for Asset Forfeiture (EOAF). Treasury Directive 27-03, describes the functions that EOAF is responsible for, some of which are listed below:
develop and implement an overall plan with respect to the seizure and forfeiture policy for the Department of the Treasury and the law enforcement agencies that participate in the Treasury Forfeiture Fund (TFF)
issue guidelines and procedures to be followed by the Department of the Treasury and participating law enforcement agencies in the implementation of the Treasury Forfeiture Fund's seizure and forfeiture policy
enter into agreements and undertake program initiatives to implement seizure and forfeiture policy
coordinate seizure and forfeiture programs with the Department of Justice (DOJ)
The Department of the Treasury Forfeiture Fund was created by Section 638 of Public Law 102-393 (1992), codified at 31 USC §9703, to provide a Treasury wide forfeiture fund into which forfeited cash and proceeds from the sale of forfeited property could be deposited. The law enforcement agencies participating in the Treasury Forfeiture Fund are: US Immigration and Customs Enforcement; US Customs and Border Protection; IRS- CI; US Secret Service; and the US Coast Guard.
The mission of the Treasury Forfeiture Fund is to promote the consistent and strategic use of asset forfeiture by participating law enforcement agencies to disrupt and dismantle criminal enterprises. Within this mission are four primary goals:
deprive criminals of property used in, or acquired through, illegal activities
encourage joint operations among Federal, state, and local law enforcement agencies, as well as with foreign countries
strengthen law enforcement
protect the rights of individuals from whom property is seized or forfeited
The Warrants and Forfeiture Section of CI reports to the Director, Operations Policy and Support, in the CI organizational structure. The Warrants and Forfeiture Section provides policy, direction, oversight, and support to the field offices relating to warrants and the asset forfeiture program. Areas covered by the section include training, real property, petitions, equitable sharing, budget, and reimbursable expenditures.
The Warrants and Forfeiture Section is responsible for the Asset Forfeiture Tracking and Retrieval System (AFTRAK). The AFTRAK is the CI information system designed to track assets held for potential forfeiture or evidence from seizure to disposition.
The Warrants and Forfeiture Section provides a liaison between the field offices and EOAF to (among other things):
ensure that the field offices are aware of, and are complying with, policies established by the Department of the Treasury
advise EOAF of any high profile seizure and forfeiture actions
assist field offices in resolving seized property management issues
provide EOAF with AFTRAK information for Congressionally mandated budgetary and expenditure reports
Most, if not all, US Attorney's Offices have one or more Assistant US Attorneys (AUSA) specifically assigned to handle forfeiture cases. The forfeiture AUSA may work in the civil or criminal division of the US Attorney's Office, and serves as the expert in forfeiture law and procedure.
The forfeiture AUSA can provide valuable assistance in assessing the advisability and legality of potential seizures and should become involved in any potential forfeiture action before the seizure or indictment of property. The forfeiture AUSA should maintain close contact with the case agent and the Asset Forfeiture Coordinator (AFC) throughout the processing of the entire forfeiture action.
The duty to undertake a careful review of the underlying facts and circumstances supporting forfeiture before proceeding against the property is specifically imposed on an AUSA by law. The AUSA must fully evaluate the merits of an investigation and the justification for forfeiture prior to institution of forfeiture proceedings. Otherwise, the AUSA and seizing agent could be liable if the court determines that there was no reasonable cause for the seizure and forfeiture action. In addition, if a claimant substantially prevails, the United States will be liable for reasonable attorney fees and other litigation costs, and post-judgment interest.
A Criminal Tax (CT) Attorney's early involvement in investigations with seizure and forfeiture potential is recommended especially when an administrative forfeiture action is contemplated. A CT Attorney can provide legal assistance, identify weaknesses up front, and ensure evidence is legally sufficient to support the required burdens of proof to seize and proceed against property. A CT Attorney can also assist in the preparation of an affidavit for a seizure warrant.
One of the CT Attorney's primary responsibilities is the preparation of the Law and Fact Memorandum after a seizure in an administrative forfeiture action. The Law and Fact Memorandum is the means that the CT Attorney uses to provide an opinion to the Special Agent in Charge (SAC) on the legal basis of a potential forfeiture action.
The SAC is delegated seizure and forfeiture authority under Delegation Order 9-2, Authority to Initiate Investigations and to Seize and Forfeit Property under the Money Laundering Control Act and the Bank Secrecy Acts (formerly DO 158). The specific authority of the SAC can be found in the Delegation Orders, which are available on the CI Web and in IRM 1.2.48, Delegation of Authorities for Criminal Investigation Activities.
The SAC should ensure that field office management actively promotes and supports the asset forfeiture program, and that local policies or procedures are in place to identify investigations with seizure and forfeiture potential. The SAC is responsible and accountable for the overall effectiveness of the field office's asset forfeiture program.
The SAC should strive to maintain an efficient and effective program that properly utilizes the asset forfeiture statutes. The field office's program should ensure the proper management and disposition of seized property and the protection of the constitutional rights of all persons involved in the asset forfeiture process. The SAC should institute procedures to ensure the seized asset database is accurately maintained on a timely basis.
The SAC is responsible for selecting a qualified special agent to serve as the field office's AFC. Dependent upon the field office's forfeiture activity, the AFC position can either be full or part time. The SAC can also assign a backup AFC, if necessary.
The SAC is responsible for either directly supervising the AFC, or for assigning supervisory responsibility of the AFC to an Assistant Special Agent in Charge (ASAC) or a Supervisory Special Agent (SSA). The SAC should ensure that the AFC is provided appropriate training, time, resources, and field assistance necessary to perform his/her duties.
The SAC should liaison with other Federal, state, and local law enforcement agencies and the US Attorney's Office for the purpose of supporting the field office's asset forfeiture program, addressing issues in multi-agency investigations, and preventing any false expectations or ill will in the equitable and reverse sharing processes.
The SSA is responsible for directing, coordinating, and overseeing work of special agents to ensure the goals and objectives the SAC has established for the asset forfeiture program are met. In order to support these goals, the SSA should:
work with the AFC to provide asset forfeiture and seizure presentations and training to his/her group
involve the AFC in periodic reviews to provide guidance in existing seizure and forfeiture investigations and to assist in identifying investigations with seizure and forfeiture potential
ensure special agents contact the AFC, as soon as seizure and forfeiture actions are anticipated
liaison with other Federal, state, and local law enforcement, as well as the US Attorney's Office
The AFC is responsible for ensuring the goals and objectives that the SAC has established for the field office's asset forfeiture program are met. The AFC's roles and responsibilities are to:
act as the field office's expert in the seizure and forfeiture process, providing advice, performing analysis, and giving guidance to special agents and managers
promote the field office's asset forfeiture program
use CIMIS and other managerial reports to monitor seizure investigation activity (SIA) and to identify investigations with forfeiture potential
ensure that proper and timely pre-seizure planning is conducted
process and document assets seized for forfeiture and evidence
regularly review AFTRAK reports and ensure that AFTRAK is accurately and completely updated on a timely basis
assign asset seizure and forfeiture related work; direct and review, but not supervise, the support services contract employee(s) assigned to the field office
work closely with, and provide timely responses to, the Warrants and Forfeiture Section
The AFC has the responsibility to ensure that the field office is in compliance with all seizure and forfeiture statutes, processes, policies and guidelines issued by EOAF, the Department of Justice, and the US Attorney's Office. The AFC should ensure that the field office is in compliance with all policies, procedures and guidelines contained in IRM Chapter 9.7, Asset Seizure and Forfeiture.
The AFC will attend basic asset forfeiture training sponsored by the Warrants and Forfeitures Section, as well as contract management training for Contracting Officer's Technical Representatives (COTR). The COTR training is required for the AFC to sign Disposition Orders, which instruct or task the seized property contractor to perform seized property management services.
The AFC should also attend training, continuing professional education, and conferences sponsored by the Warrants and Forfeitures Section, EOAF, and the Department of Justice, Asset Forfeiture and Money Laundering Section (AFMLS), to ensure he/she is informed of the latest laws, court cases, policies, and trends in asset forfeiture and money laundering.
It is the responsibility of the special agent to:
explore and recognize opportunities in investigations where asset forfeiture can be used to deprive criminals of property used in, or acquired through, illegal activities
inform the AFC of any potential seizure or forfeiture action as early as possible so the AFC can ensure that timely and proper pre-seizure planning occurs
seek assistance from, and work closely with, the AFC throughout the entire seizure and forfeiture process
The special agent should ensure that the AFC is included in any seizure and forfeiture related meetings with the US Attorney's Office or other law enforcement agencies.
Special agents are delegated specific authorities under Delegation Order 9-1 and Delegation Order 9-2; however, these duties are usually performed by the AFC.
An important component of the asset forfeiture program is the management and protection of seized and forfeited property. The program should attempt to achieve efficiencies in the storage and maintenance of seized and forfeited property while ensuring that the property is protected from harm or damage.
Under the authority of 31 USC §9703(a)(1), the TFF is available for contracting services related to the seizure and forfeiture of property under the provisions of Titles 18 and 31.
The duties of the seized property contractor in fulfilling the requirements of this contract are covered in IRM 9.7.4, Pre-Seizure Planning; IRM 9.7.6, Custody and Storage of Seized Assets; and IRM 9.7.8, Disposition of Seized and Forfeited Property.
Under the authority of 31 USC §9703(a)(1), the TFF is available for contracting services related to the seizure and forfeiture of property under the provisions of Titles 18 and 31. Contract services support may also be reimbursed from the TFF for the approved seizure and/or forfeiture activities of the law enforcement agencies participating in the TFF.
The IRS secures the services of personnel through a national contract to support the CI asset forfeiture program. Each field office will generally be assigned one full or part time support service contract employee to assist the AFC with administrative duties as outlined in the contract. The assignment of full or part time support service contract employees is dependent upon the volume of seizure and forfeiture activity conducted by each field office.
The principal management of the support services program and contract employees is provided by the Project Manager, who is an employee of the support services contractor. The Project Manager is responsible for the overall management and coordination of the contract, and acts as the central point of contact with CI. The authorized CI representative responsible for communicating with the Project Manager is the COTR assigned to the Warrants and Forfeitures Section.
The EOAF Directive Number 10, Points to Remember Regarding Work with Contract Employees, advises TFF law enforcement agencies of important policies to abide by when working with contract employees, including:
recruiting, hiring, day-to-day supervision, and termination of contract employees is the responsibility of the contractor
contract employees may only perform tasks within the terms of the categories enumerated in the contract
maintaining the distinction between government employees and contract employees is the responsibility of both organizations
Other important points to remember in working with the support services contract employee are that:
Direct public contact by the contract employee should generally be avoided as it gives the appearance or belief that the contract employee is representing CI.
The support services contract employee is not authorized to obligate the government for any services or expenses.
All the duties of the support services contract employee should be seizure or forfeiture related, and not tasks reserved for CI employees.
The appearance that the support services contract employee is exercising more authority over the asset forfeiture program than the AFC should be avoided.
The following duties are generally authorized for contract employees under the asset forfeiture support services contract:
preparation and review of forms, memoranda, and correspondence
data entry and update
file maintenance and documentation
conducting and reconciling inventories
telephone and written contact with other Federal, state, and local law enforcement agencies
A Statement of Work (SOW) is the part of a Federal contract that describes the contractor's work requirements.
The objective of the seized property management contract SOW and its appendices is to describe the work requirements for contractors of TFF law enforcement agencies related to the receipt, custody, management, and disposition of seized and forfeited property. The appendices in the SOW describe unique requirements for each TFF law enforcement agency including IRS-CI.
The seized property contractor is required to maintain the contract's SOW in an automated word processing system. Whenever an addition, deletion, or modification to the SOW is approved, the seized property contractor will update the SOW and highlight (bold) and underline all the new changes made to the SOW. A copy of the revised contract should be forwarded to the Contracting Officer and the Director, EOAF, within the time period specified in the SOW. Each AFC should have the most recent revision of the SOW, which may be obtained by contacting the Warrants and Forfeiture Section, or from the local point of contact for the property contractor.
The SOW for the support services contract describes the support services requirements for CI and the EOAF. Each field office should have a copy of the SOW, which may be obtained from the COTR for the support services contract in the Warrants and Forfeiture Section. The field office support services contract employee should be provided with a copy of the SOW by his/her employer.
There are numerous sources of statutory and delegated authorities and policies for the CI asset forfeiture program. In addition, CI has established its own internal policies and guidelines. The AFC should establish an asset forfeiture reference library for the use of the field office that include some or all of the following references.
The office of the Law Revision Counsel (LRC) of the US House of Representatives prepares and publishes the United States Code. The LRC Internet site http://uscode.house.gov/ contains search and download options for search of the United States Code. The Code of Federal Regulations (CFR) can be researched at http://www.gpoaccess.gov/cfr/index.html
The Federal Criminal Code and Rules (FRCrP), which is published annually, includes Title 18, Crimes and Criminal Procedure; Title 26, §7201 to §7217; and Title 31. The FRCrP also contains Rules of Criminal Procedure, such as Rule 32.2-Criminal Forfeiture; and Rule 41-Search and Seizure. Current editions of the FRCrP should be available in all field offices and posts-of-duty. The FRCrP can also be researched athttp://uscode.house.gov/.
The following sections in Title 18 relate to civil and criminal forfeitures for violations of 18 USC §1956 and §1957, and 31 USC §5313 and §5324:
18 USC §981 - Civil Forfeiture
18 USC §982 - Criminal Forfeiture
18 USC §983 - General Rules for Civil Forfeiture Proceedings
18 USC §984 - Civil Forfeiture of Fungible Property
18 USC §985 - Civil Forfeiture of Real Property
18 USC §986 - Subpoenas for Bank Records
The following sections relate to civil forfeitures for Title 26 violations:
26 USC §7301 - Property Subject to Tax
26 USC §7302 - Property Used in Violation of Internal Revenue Laws
31 USC §5317(c) provides for civil and criminal forfeiture for violations of 31 USC §5313 and §5324.
Regarding violations of 31 USC §5324, CI will not pursue the seizure and forfeiture of funds associated solely with “legal source” structuring cases unless there are exceptional circumstances justifying the seizure and forfeiture and the case has been approved at the Director, Field Operations (Criminal Investigation) level.
In cases where legal source income is involved in alleged structuring activity, consideration should be given to initiating a Title 26 criminal tax investigation. In certain circumstances, the structuring activity can be treated as an affirmative act of evasion under 26 USC §7201, evidence of willfulness, an overt act of conspiracy under 18 USC §371, or it may support Title 31 violations.
The provisions of the Customs laws 19 USC §§1602–1621 (relating to seizure, administrative and judicial forfeiture, disposition of property or proceeds from the sale, and remission or mitigation of administrative forfeitures) insofar as they are applicable and not inconsistent with the provisions of 18 USC §981, apply to civil seizures and forfeitures under 18 USC §981 and 31 USC §5317(c).
Proceedings under the criminal forfeiture statutes 18 USC §982 and 31 USC §5317(c)(1) are governed by the provisions of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USC §853).
The Supplemental Rules for Certain Admiralty and Maritime Claims are found at the end of the FRCrP in Title 28 of the United States Code, and are commonly referred to as the Supplemental Rules. The Supplemental Rules and the FRCrP can be researched on the LRC Internet site http://uscode.house.gov/ . Civil judicial forfeiture actions proceed under the Supplemental Rules and the FRCrP. The Supplemental Rules set forth requirements and procedures, such as the filing a civil forfeiture complaint and the issuance and execution of warrants of arrest in rem.
The authority for CI and CI personnel to seize and forfeit property originates with the Secretary of the Treasury in the United States Code, and is delegated through Treasury Orders, Treasury Directives, and Delegation Orders.
Treasury Orders relevant to asset forfeiture include Treasury Order 101-05, which delegates certain authorities vested in the Secretary of the Treasury to various officials, offices, and bureaus. Another pertinent Treasury Order, 102-14, delegates authority with respect to the Treasury Forfeiture Fund.
Treasury Directives relevant to asset forfeiture include Treasury Directive 15-42, which delegates authorities to the IRS Commissioner investigate violations of 18 USC §1956 and §1957. Another pertinent Treasury Directive, 27-03, describes the responsibilities of EOAF. The United States Treasury web site http://www.treasury.gov/about/role-of-treasury/orders-directives/Pages/default.aspx contains the Treasury Orders and Treasury Directives indexed numerically and by subject.
The Commissioner also delegated seizure and forfeiture authority to CI personnel through Delegation Order Number 9-2, Authority to Initiate Investigations and to Seize and Forfeit Property under the Money Laundering Control Act of 1986 and the Bank Secrecy Act, for seizures and forfeitures pursuant to Titles 18 and 31. Delegation Order 9-2 is available on the CI Web and in IRM Chapter 1.2.48. The CI personnel delegated varying levels of seizure and forfeiture authority through Delegation Order 9-2 include:
Special Agents in Charge
Lead Development Center Supervisory Special Agent(s)
Directors, Field Operations
Associate Director, Warrants and Forfeitures
Director, Operations Policy and Support
The Department of the Treasury and IRS also enter into Memoranda of Understanding (MOU) with other departments and agencies relating to seizures and forfeitures. The most significant of these is the MOU between the Secretary of the Treasury, the Attorney General, and the Postmaster General Regarding Money Laundering Investigations dated August 31, 1990. This memorandum allocates jurisdiction to investigate violations of 18 USC §1956 and §1957, and related seizure and forfeiture authority.
The EOAF sets policy for Treasury law enforcement agencies in the areas of asset seizure and forfeiture through the issuance of Policy Directives that contain guidelines under which TFF law enforcement agencies must operate. Treasury Forfeiture Fund law enforcement agencies may, however, establish policies or issue guidelines for their respective agencies that are more restrictive than the Policy Directives issued by EOAF. The EOAF Policy Directives are periodically revised due to changes in the law or to improve the efficiency and effectiveness of Treasury Forfeiture Fund operations. The EOAF Policy Directives are available on the CI Web.
The most global statement of Department of the Treasury policy may be found in the Department of the Treasury Guidelines for Seized and Forfeited Property.
The Department of the Treasury Guide to Equitable Sharing for Foreign Countries and Federal, state, and Local Law Enforcement Agencies is a necessary reference for the AFC and should be provided to Federal, state, and local law enforcement agencies, and foreign countries that submit equitable sharing requests to CI.
The Guidelines for Seized and Forfeited Property and the Guide to Equitable Sharing for Foreign Countries and Federal, State, and Local Law Enforcement Agencies, and a complete set of Policy Directives, are available by contacting the Warrants and Forfeiture Section, or can be ordered directly from EOAF at (202) 622-9600.
The Asset Forfeiture and Money Laundering Section (AFMLS) in the Criminal Division of the Department of Justice is an important resource for the dissemination of forfeiture and money laundering information. The AFMLS publishes newsletters, pamphlets, and manuals, which provide technical assistance and legal advice. The AFMLS publications are available at no cost to the Federal, state, and local government communities.
To obtain a catalog of AFMLS publications or order the items described below, contact AFMLS at (202) 616-9327 or (202) 305-3049.
Some of the newsletters available from AFMLS include:
Quick Release, a monthly publication containing summaries of the most recent Federal forfeiture cases.
Asset Forfeiture News, a bimonthly publication dedicated to Federal forfeiture news.
Money Laundering Monitor, a semi annual publication containing articles written by money laundering professionals on the latest domestic and international developments, case law, policy decisions, congressional issues, changes in statutes, and other items of interest relative to seizure and forfeiture law.
The Asset Forfeiture Law and Practice manual contains a comprehensive discussion of all the major aspects of forfeiture law and practice with an emphasis on the government's perspective. Much of the information in IRM 9.7 is derived from the Asset Forfeiture Law and Practice Manual.
|National Code of Professional Conduct for Asset Forfeiture|
|I.||Law enforcement is the principal objective of forfeiture. Potential revenue must not be allowed to jeopardize the effective investigation and prosecution of criminal offenses, officer safety, the integrity of ongoing investigations, or the due process rights of citizens.|
|II.||No prosecutors or sworn law enforcement officer's employment or salary shall be made to depend upon the level of seizures or forfeitures he/she achieves.|
|III.||Whenever practicable, and in all cases involving real property, a judicial finding of probable cause shall be secured when property is seized for forfeiture. Seizing agencies shall strictly comply with all applicable legal requirements governing seizure practice and procedure.|
|IV.||If no judicial finding of probable cause is secured, the seizure shall be approved in writing by a prosecuting agency or by a supervisory-level official.|
|V.||Seizing entities shall have a manual detailing the statutory grounds for forfeiture and all-applicable policies and procedures.|
|VI.||The manual shall include procedures for prompt notice to interest holders, the expeditious release of seized property where appropriate, and the prompt resolution of claims of innocent ownership.|
|VII.||Seizing entities retaining forfeited property for official law enforcement use shall ensure that the property is subject to internal controls consistent with those applicable to property acquired through the normal appropriations of that entity.|
|VIII.||Unless otherwise provided by law, forfeiture proceeds shall be maintained in a separate fund or account subject to appropriate accounting controls and annual financial audits of all deposits and expenditures.|
|IX.||Seizing agencies shall strive to ensure that seized property is protected and its value preserved.|
|X.||Seizing entities shall avoid any appearance of impropriety inquisition in the sale or acquisition of forfeited property.|