- 9.7.10 International Seizures and Forfeitures
- 188.8.131.52 Overview
- 184.108.40.206 Obtaining International Cooperation
- 220.127.116.11.1 Bilateral Treaties
- 18.104.22.168.2 Multilateral Treaties
- 22.214.171.124.3 Executive Agreements
- 126.96.36.199.4 Letters Rogatory
- 188.8.131.52.5 Cooperation by Defendant
- 184.108.40.206 Procedures to Effect Seizure
- 220.127.116.11.1 Identification of Assets/Pre-Seizure Planning
- 18.104.22.168.2 Determine the Extent of International Cooperation
- 22.214.171.124.3 Select the Method to Initiate Seizure
- 126.96.36.199.4 Immobilization of Assets Located Abroad
- 188.8.131.52.4.1 Sovereignty Rights
- 184.108.40.206.4.2 Submit Request to Foreign Country
- 220.127.116.11.4.3 Voluntary Cooperation by Defendant
- 18.104.22.168.4.4 Coordination with the Department Of Justice, Office Of International Affairs and the Asset Forfeiture Money Laundering Section
- 22.214.171.124.5 Reimbursement for Travel Abroad
- 126.96.36.199 Methods to Effect Forfeiture
- 188.8.131.52.1 Forfeiture Actions Initiated by the United States
- 184.108.40.206.1.1 Actions Taken on Foreign Assets Located Outside the United States
- 220.127.116.11.1.2 Actions Taken on Foreign Assets Located Within the United States
- 18.104.22.168.2 Forfeiture Actions Initiated by Another Country on Behalf of the United States
- 22.214.171.124.2.1 Coordinating the Forfeiture
- 126.96.36.199.2.2 Transfers to the United States Treasury Suspense Account
- 188.8.131.52.3 Forfeiture Assistance Provided to Another Country
- 184.108.40.206 International Sharing
- 220.127.116.11.1 Reasons for Sharing
- 18.104.22.168.2 Sharing Given to Other Countries
- 22.214.171.124.2.1 Sharing Requests
- 126.96.36.199.2.2 The Approval Process
- 188.8.131.52.2.3 Use of Proceeds by Other Countries
- 184.108.40.206.2.4 Presentation of Shared Funds
- 220.127.116.11.3 Sharing Received from Other Countries
- 18.104.22.168.3.1 Receipt of Shared Funds
Part 9. Criminal Investigation
Chapter 7. Asset Seizure and Forfeiture
Section 10. International Seizures and Forfeitures
October 23, 2013
(1) This transmits revised IRM 9.7.10, International Seizure and Forfeiture.
(1) Subsections 22.214.171.124.2 and 126.96.36.199.1.1 are revised to update procedures due to the October 2010 stand-up of the Office of International Operations. Raising CI International from the level of "section" to "office" .
(2) Subsection 188.8.131.52.2.2, Transfers to the United States Customs Suspense Account is retitled as "Transfers to the United States Treasury Suspense Account" .
(3) Additional revisions, deletions, and grammatical changes were made throughout the section, which did not result in substantive changes but contributed to procedural clarity of the subject matter.
Daniel W. Auer for Richard Weber
International seizure and forfeiture is an important and integral aspect of our forfeiture program. The means by which we effect cooperation with other countries, the procedures we use to effect seizure and forfeiture, and the benefits of accomplishing these tasks will be discussed in-depth in this section.
Oftentimes major drug traffickers and other organized criminals hide the illicitly gained proceeds outside of their own country. Accordingly, if those assets are to be seized and eventually forfeited, it will require cooperation and coordination between the countries involved.
It is the policy and the practice of the United States government to aggressively pursue the seizure and forfeiture of assets that are moved to, or hidden in, other countries. If successful, the result will be to achieve our primary goal of taking the profit out of crime.
For forfeiture laws to work effectively, the United States and its international partners must work together to enforce both their domestic and their international enforcement efforts. The United States can, and should, pursue the forfeiture of assets found abroad, as well as assist other countries whose assets are hidden in this country.
Our domestic forfeiture program has shown us that the forfeited wealth that results from our efforts has effectively enhanced both our own law enforcement efforts, as well as those of the other agencies who cooperated in our investigations. At the same time, when the proceeds from our international forfeitures are equitably shared with our international counterparts, interagency cooperation is enhanced and the resources needed to continue our efforts to combat crime are replenished.
The United States stands ready to both pursue the forfeiture of assets abroad, as well as cooperate with the forfeiture efforts of other nations who have traced ill-gotten gains into our country. Regardless of whether our efforts result in asset sharing, international forfeiture cooperation between countries still helps us to achieve our primary objective of removing assets from criminals and taking the profit out of crime.
Currently there are four basic means by which international cooperation can be initiated:
All of these tools have helped to regularize international forfeiture cooperation and are discussed below. A fifth option exists, that is obtaining the cooperation of the defendant, and that too will be discussed in this section.
A Bilateral Treaty is an agreement between two countries that specifies the mutual forfeiture assistance that the countries will provide to each other. The terms of the agreement are included in a document known as a Mutual Legal Assistance Treaty (MLAT). The United States has ratified MLATs with many jurisdictions. A current list of MLAT countries can be located on the CI Web, International Section.
Bilateral Treaties, in simple terms, are laws that require cooperation between two countries. All of the existing treaties contain provisions for providing records and for "freezing" and/or seizing assets. They have also helped to regularize the international forfeiture cooperation between treaty partners.
A Multilateral Treaty is identical in nature to the Bilateral Treaty, with the exception that more than two countries are involved. The same procedures are followed and the same benefits are obtained.
Executive Agreements are also legal agreements between countries. However, they supplement an existing MLAT between the countries where additional terms are needed to provide a basis for forfeiture cooperation and/or asset sharing.
Letters Rogatory are more time consuming, but they are the more traditional means of obtaining assistance from a foreign court. They remain available for use in cases where the United States and the foreign jurisdiction are not parties to a forfeiture related Bilateral Treaty, Multilateral Treaty, or Executive Agreement.
In many cases, arrangements can be made with the government for the defendant to cooperate by agreeing to repatriate the assets. This agreement is normally made part of a plea agreement. In many cases, this method will substantially reduce the time it takes to complete the forfeiture process. Voluntary cooperation by a defendant is discussed in length in subsection 184.108.40.206.4.3 below.
As with any seizure, pre-seizure planning is the first step in securing a sound forfeiture action. Once an asset has been identified, then most of the normal seizure related steps also need to be followed. In addition, there are other steps, unique to international situations, that also must be considered.
The first step in any seizure action is to identify the asset(s) to be seized and to properly plan the seizure. Pre-seizure planning is one of the most important steps in the seizure process. As with any other seizure action, it is vitally important to determine both the benefits and the detriments of a potential seizure before it is effected.
Once a determination has been made that the potential exists to seize an asset, contact the Asset Forfeiture Coordinator (AFC) from your field office and discuss the matter.
The AFC will begin the pre-seizure planning stage, ensure that the criteria for a successful seizure are met, and assist you with the other steps that need to be taken.
With international seizures, there are also other considerations, including the laws of the country where the property is located. For example, some governments have specific laws that state that it is illegal for any other sovereignty to own property in their country.
Taking an action, without the proper planning and steps being followed, could violate an existing treaty and/or another country's laws. Detailed information regarding pre-seizure planning that should be reviewed prior to making a seizure is contained in IRM 9.7.4, Pre-Seizure Planning.
Before making an international seizure, you will have to determine the extent of the cooperation that can be expected from the country where the subject assets are located. An agent should submit a request for information or assistance from a foreign country per IRM 9.4.4, Requests for Information. The Assistant United States Attorney (AUSA) assigned to the investigation should also contact the Department of Justice, Office of International Affairs (OIA) and the Department of Justice, Asset Forfeiture Money Laundering Section (AFMLS).
All international seizure and/or forfeiture actions must be first approved, and then coordinated, by OIA. The exception to this would be situations where the defendant cooperates with the government and voluntarily repatriates the asset that is located abroad.
The method you choose to effect a seizure will depend a great deal on the cooperation, if any, that is being provided by the defendant.
If a plea agreement or other circumstances exist that provide for the defendant to repatriate the asset(s), without the need to involve the foreign government, then those arrangements can, and should, be made. For example, if property in another country is in the name of the defendant, or possibly a nominee or a trustee, the defendant can elect to appoint another person to act on his/her behalf. That trustee can then take the necessary actions to liquidate the asset. If, on the other hand, coordination with the other country is necessary, then one of the four methods described in subsection 220.127.116.11 above will have to be employed. The proper legal tool to use will depend on the type of agreement that exists between the United States and that particular country. This activity must be arranged through OIA.
Once you have determined the means by which you will be able to secure the assets located abroad, actions should take place as soon as possible to "freeze or seize" the property. In most circumstances, you will work with your local Assistant United States Attorney (AUSA), who will coordinate the preparation of an MLAT request with OIA.
Following submission of the MLAT request, OIA will continue to monitor the progress of the request with the foreign government. If the need exists for any supplemental information, you will be contacted by either OIA or the United States Attorney's Office.
As mentioned in subsection 18.104.22.168.1 above, some countries have specific and strict laws regarding ownership of land in their country. Although a court in the United States can issue a valid court order for an asset located in another country, it is invalid without the proper assistance from that country. Similarly, a foreign court could issue an order for property located in the United States, but it too would be ineffective without cooperation from the United States Government.
An MLAT or other type of agreement between countries would normally specify the level of cooperation that will be exchanged.
After contacting OIA, they will either assist you in the preparation of an MLAT or advise you of which method is best to obtain the assistance that is needed.
Once assets forfeitable under United States laws have been traced overseas, the United States must consider how to advance the forfeiture process, while, at the same time, addressing the legal requirements of the country where the assets are located.
Pursuant to 28 USC §1355(b)(2), the United States courts are vested with extraterritorial jurisdiction and venue over assets located abroad that are subject to civil forfeiture. This section is particularly useful in situations where the foreign country in question cannot forfeit the property under its own laws, but may be able to take other steps that could assist the United States in its forfeiture effort. In this type of case, once the asset has been forfeited in the United States, the final civil forfeiture judgment would be transmitted to the foreign country for enforcement or repatriation of the assets.
Under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 18 USC §981(b)(3) was amended to authorize Federal courts to issue seizure warrants and enter restraining orders against foreign based property, should the requested country require such orders entered by a United States court to facilitate the restraint. The request would then be transmitted to the central authority of the foreign government for service in accordance with the treaty or agreement in effect. The Office of International Affairs and AFMLS will determine whether the foreign country where the assets are located can assist in the US action.
In both civil and criminal forfeiture cases, the United States will often seek repatriation of the property for forfeiture. In fact, 21 USC §853(e)(4) expressly authorizes courts to direct a defendant to return any property that may be seized and forfeited, and to deposit that property pending trial, in the court's registry, or with the United States Marshal Service, or the Secretary of the Treasury pending a determination of its forfeitability. This can be accomplished through the cooperation of the defendant who agrees to forfeit the property as part of a plea agreement.
In some situations, the defendant can appoint someone to represent him/her with the repatriation of the assets and bring them into the United States jurisdiction.
In other situations, the United States might need to request the foreign jurisdiction to sell the property or repatriate it for forfeiture. If repatriation is not possible, the United States might be able to assist the foreign government in forfeiting the property under their laws by structuring the plea agreement so that the defendant is required to cooperate with the foreign authorities in their own law enforcement efforts.
Similarly, where an explicit admission regarding the illicit source of the property will enable the foreign government to obtain a forfeiture order, the plea agreement might also contain an admission by the defendant that the foreign based property constitutes proceeds of the illegal conduct that is alleged.
The Department of Justice, Criminal Division, Office of International Affairs, is the Competent Authority for the United States for all legal assistance agreements. They will be the primary focal point for providing assistance in writing and submitting a request with another country. They ensure that the treaty process is followed.
The Department of Justice, Criminal Division, Asset Forfeiture Money Laundering Section will be involved in any MLAT or other agreement that includes provisions for seizure, forfeiture, and/or sharing with another government. The Asset Forfeiture Money Laundering Section not only works closely with OIA and with the State Department in situations where an agreement exists, but they will also work directly with a foreign country where an MLAT or agreement is not in effect.
If your travel is related to the seizure or forfeiture of one or more assets, then your field office will likely be able to seek reimbursement for the travel expenses incurred. Contact a senior analyst in the Warrants and Forfeitures Section prior to initiating your travel request. See IRM 9.11.2, Domestic and Foreign Travel for procedures on traveling abroad.
When dealing with assets that are located abroad, the United States can initiate a forfeiture action in this country against the foreign asset, or an action can be taken against the asset by the government of the country where it is located on behalf of the United States.
There are also situations where an asset forfeited by another country is located in the United States and the foreign government requests the assistance of the United States in their forfeiture action.
There are two basic types of forfeiture actions that can be initiated by the United States against foreign assets. One would be against assets that are located in a foreign country; the other would be against foreign assets located within this country. Both types involve the United States taking legal action pursuant to the laws of the United States.
Once you have identified and located a forfeitable asset that is in a foreign country, a request for assistance must be submitted. Typically, this will be made under an existing treaty, convention, Executive Agreement, or Letter Rogatory. Communication with OIA will usually begin with the AUSA that is in charge of the investigation. The Asset Forfeiture Money Laundering Section will also be involved early in the process. Within CI, you should first contact your field office AFC, who will begin the process of pre-seizure planning. A PI or SCI with approved seizure investigative activity should also be opened, as soon as it is apparent that a seizure action might take place. You should also contact International Operations using the procedures outlined in IRM 9.4.4. International Operations will place you in contact with the Attache' responsible for the country where the asset is located. The request to a foreign country will be made in accordance with the statutes cited in subsection 22.214.171.124.4.2 above.
The other option that exists is to obtain the voluntary cooperation of the defendant, as is discussed in subsection 126.96.36.199.4.3 above. Having the asset brought back into the country without having to involve the foreign government is often times the quickest method. For example, if a bank account is involved, the defendant can arrange for the funds to be transferred back into an account in the United States. If real property is involved, the defendant can appoint someone designated by the government to act as trustee on his/her behalf. The property could be sold and then those proceeds would be subject to forfeiture. Your AFC will be able to assist in making those arrangements. Also, whenever soliciting the cooperation of a defendant, be sure to require the defendant to identify all of the foreign assets and their origin, admit that the assets are criminal proceeds/instrumentalities, etc., commit to assisting in the repatriation, and to not contest the forfeiture action in the United States or abroad.
Defendants should be sure to comply if a court orders the defendant to voluntarily repatriate any property under 21 USC §853(e)(4). Failure to comply with the court order under that section, as well as 21 USC §853(p), shall be punishable as a civil or criminal contempt of court, and may result as an enhancement of the sentence under the obstruction of justice provision of the Federal Sentencing Guidelines.
Caution should be taken when dealing with a cooperating defendant. Despite an apparent willingness to cooperate, they do not always provide the full truth. Relying on the defendant to provide the location to all foreign investments and repatriating them to the United States might eliminate the need to involve the foreign government, however, be certain that the defendant is being truthful and making a full disclosure. Official requests to other countries, sometimes reveal additional accounts/assets that were not disclosed by the defendant.
In consultation with the United States Attorney Office, consideration should be given to the use of a polygraph to confirm the validity of the cooperative defendant.
Rule 4(f) of the Federal Rules of Civil Procedures (Fed. R. Civ. P. 4(f)) requires that an individual who is subject to notice must be properly served even if they are located in a foreign country. If this occurs, then the United States, through OIA, will submit a request to the foreign country that the individual be properly served of the impending forfeiture. Once service has been accomplished, then a Proof of International Service will be provided to the United States so that the forfeiture action can be completed.
When Congress enacted Section 319 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), it gave extraordinary powers to the United States government in obtaining bank records and seeking property subject to forfeiture that is on deposit in foreign banks where the foreign bank maintains a correspondent bank account in the United States. Such foreign banks now have to appoint a representative to accept government subpoenas for their bank records, irrespective of foreign secrecy laws and the formal international assistance process.
Section 319(b) of the USA PATRIOT Act is codified at 31 USC §5318(k) and it authorizes the Attorney General and the Secretary of the Treasury to issue subpoenas and summonses to foreign banks that maintain accounts with correspondent accounts in the United States. If the foreign bank fails to either provide the requested records or initiate proceedings to contest it, then the domestic financial institution must terminate its correspondent relationship with that foreign bank not later than ten business days after receipt of written notice from the Secretary or the Attorney General. Failure to terminate the correspondent relationship shall render the financial institution liable for a civil penalty of up to $10,000 per day until the relationship is terminated.
Title 18 USC §981(k) was amended by Section 319(a) of the USA PATRIOT Act to permit the forfeiture of funds that are being held in a correspondent account in the United States on behalf of a foreign bank. Funds on deposit in a bank account in the United States can now be substituted for the funds in a targeted foreign account. In other words, if the government can show that forfeitable property was deposited into an account at the foreign bank, a civil forfeiture action can now be filed against an equivalent amount of money that is in a foreign bank's correspondent account located in the United States. This is now possible because the law redefined the " owner" of the funds to be the account holder at the foreign bank and not the bank itself. Due to the controversial nature of this change and the consequences it could have with the affected foreign government, it will not be pursued as a first resort in every case.
In some situations, a foreign government will seize assets located in their country and initiate a forfeiture action under their laws. This method was adopted by the United States in complying with the Vienna Convention of 1990. In general, if an MLAT is in effect, the United States could submit a request to the foreign government requesting their assistance. The request could ask for records and that the government " freeze" , or restrain, an already identified asset and then initiate forfeiture against it with their laws. The United States would then cooperate with their forfeiture actions by providing whatever documentation, or assistance they require. The forfeiture would be completed in that country and eventually the proceeds would be provided to the United States. Sharing the proceeds with the other government might, or might not, apply.
As with the other actions explained above, coordination with OIA will be required. Depending on the circumstances, assistance from AFMLS might also be involved. In some cases, testimony from the case agent might be required in the foreign country that is taking the forfeiture action. The Office of International Affairs will arrange for the testimony, but arrangements for the travel will have to be coordinated with International Operations. If the asset is forfeited in the foreign country, they will likely arrange for the disposition or sale of the asset and the net proceeds will be forwarded to the United States.
In most cases, the funds that result from the forfeiture will be wire transferred to the United States under the order of the foreign government involved. This matter will need coordination with both OIA, who will transmit the necessary information for you, and the Treasury Executive Office of Asset Forfeiture (TEOAF), who will be receiving the funds. The field office AFC will arrange for the receipt of the funds and assist in coordinating the transfer of the funds into the United States.
In some situations, a foreign government will request the assistance of the United States in locating and restraining assets where there has been no violation of a United States domestic law. In those cases, forfeiture assistance to the foreign country can be provided in connection with a broad range of foreign offenses that constitute "specified unlawful activities" under the United States money laundering statute, 18 USC §1956(c)(7)(B). In addition, new authority resulting from the USA PATRIOT Act allows the United States to now restrain assets located in the United States that are subject to forfeiture under a foreign law. Criminal Investigation involvement in these types of cases will be limited.
The procedure for obtaining a restraining order is set forth in 18 USC §983(j), which provides for a contested hearing with notice to persons having an interest in the property. The restraining order may remain in effect until the conclusion of the foreign proceedings and the receipt of the final order judgment.
Pursuant to 28 USC §2467, the United States, on behalf of a foreign nation, can seek the registration and enforcement of foreign forfeiture judgments that are rendered in connection with any violation of foreign law. This is done in situations where the foreign violation would constitute a violation of an offense for which property could be forfeited under Federal law, had the offense been committed in the United States. A foreign country might also request assistance in identifying and locating forfeitable assets or in assisting in their investigation. These requests would come to the United States Attorney's Office through the office of OIA. Criminal Investigation involvement in this type of situation would likely be minimal.
Statutory authority, permits the United States to share the proceeds of successful forfeiture actions with other countries who either made possible, or who substantially facilitated the forfeiture of assets under United States laws. Title 18 USC §981(i), 18 USC §9703(h), and 19 USC §1616(c) authorize the Attorney General and/or the Secretary of the Treasury to transfer forfeited property to a foreign country.
Asset sharing among nations enhances international forfeiture cooperation, much like dividing forfeited property in the United States increases cooperation among law enforcement agencies.
Sharing the proceeds of forfeiture creates an incentive for countries to work together, regardless of where the assets are located, or which jurisdiction will enforce the forfeiture order.
Through asset forfeiture, governments attack the economic structure of crime and not only take the profit out of crime but disrupt the criminal activity by forfeiting property that makes the crimes possible.
Following a successful international forfeiture, the appropriate amount to transfer is determined. International sharing is based on the principle that the shared amount reflects the contribution of the foreign government in the forfeiture action.
The procedures for obtaining a request for sharing from a foreign government differ from the normal procedures for domestic sharing. Foreign governments are not required to complete Form TD F 92–22.46, Request for Transfer of Property Seized/Forfeited by a Treasury Agency, and in fact, should not be asked to submit a form; instead, foreign countries may request a share of the property by contacting the United States Ambassador via a letter of request. For practical purposes, the arrangements for sharing will likely be discussed, and possibly agreed upon, during the early stages of the request for information that is submitted by OIA. In many cases, the foreign government will forward their request to OIA at the time the funds are to be repatriated, or shortly thereafter. There is also no time limit imposed on foreign governments for submitting their request.
If a foreign government requests an item to be shared, instead of a share of the proceeds, the costs involved with the asset and the Federal share are to be recovered before the item is transferred to them. If the costs and the equitable share cannot be recovered, then the property should be sold and the proceeds equitably distributed as with any other asset.
Before sharing can be authorized, there must be direct or indirect participation by a foreign government in the seizure and/or forfeiture of the property that is subsequently forfeited under United States law. Additionally, there must be an authorization in an international agreement between the United States and the foreign government to which the property would be transferred. By statute, authorization to share must be granted by either the Attorney General or the Secretary of the Treasury and then approved by the Secretary of State. Unless otherwise directed by the provisions of an MLAT, sharing resulting from all Treasury forfeitures will first be determined by the Director,TEOAF, and then forwarded to the Secretary of Treasury so that it can be forwarded to the Secretary of State for approval.
Unlike domestic sharing, there is no authority for the United States to insist that a foreign country use shared funds or property in any particular manner.
Because of the importance and impact of the United States sharing with another country, there will likely be a ceremony and a press release that accompanies the sharing of funds. All of the agencies that participated in the investigation should be invited to participate in any equitable sharing ceremony or press release where credit for investigative/prosecutorial effort will be recognized.
In some situations, the foreign government involved in the investigation will perfect the forfeiture and then share the proceeds of the forfeiture with the United States. The foreign government will have the option of sending the entire amount to the United States and in turn have the shared portion returned to them, or more likely, they will withhold their portion of the funds and forward the balance to the United States. In either event, the transfer will have to be coordinated through OIA.
Although OIA will assist in the process of having the funds transferred from the foreign country, the actual transfer will likely be a wire transfer from a bank in the foreign country to a correspondent bank in the United States. The process of wiring the money into this country should be coordinated by the field office AFC. The AFC will have to provide specific instructions to OIA that will be forwarded through channels to their counterpart in the foreign government. Those instructions will include the routing number, coding, etc. so that the funds can be deposited to the correct account. Since the shared funds would have already been forfeited, they will be deposited directly to the Treasury Forfeiture Fund.