- 9.7.12 Evidence Seizures
- 22.214.171.124 Overview
- 126.96.36.199 Tracking Property Seized As Evidence
- 188.8.131.52.1 Reconciliation And Inventory Of Property Seized As Evidence
- 184.108.40.206.2 Return Of Property Seized As Evidence
- 220.127.116.11 Custody And Storage Of Property Seized As Evidence
- 18.104.22.168 Currency Seized As Evidence
- 22.214.171.124.1 Required Approvals To Hold Seized Currency
- 126.96.36.199.2 Storage Of Currency Seized As Evidence
- 188.8.131.52 Seizure Of Firearms
- 184.108.40.206 Converting Assets Seized As Evidence To Forfeiture
- 220.127.116.11 Expenses Incurred For Property Seized As Evidence
Part 9. Criminal Investigation
Chapter 7. Asset Seizure and Forfeiture
Section 12. Evidence Seizures
April 12, 2013
(1) This transmits revised IRM 9.7.12, Evidence Seizures.
(1) Subsection 18.104.22.168(2) is revised to change the incorrect reference from Treasury Directive to Treasury Order.
(2) Subsection 22.214.171.124(4) is updated to reflect that a Seizure Investigative Activity (SIA) is required for all assets seized as evidence.
(3) Subsection 126.96.36.199.1(4) is corrected to change Executive Office for Asset Forfeiture (EOAF) to Treasury Executive Office for Asset Forfeiture (TEOAF).
(4) Subsection 188.8.131.52.2(2) and (3) are updated to reflect that the US Customs Suspense Account is now called the Treasury Suspense Account.
(5) Subsection 184.108.40.206(5) is added to include the requirement to trace firearms that are recovered in the course of criminal investigations and taken into Federal custody.
(6) 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.
Patricia J. Haynes for Richard Weber
Chief, Criminal Investigation
Special agents may make seizures for evidence in the course of an investigation. This section covers the policies and procedures relating to the seizure of assets and property as evidence.
Gathering information necessary for the enforcement and administration of tax laws is granted to the Commissioner of Internal Revenue through Treasury Order 150-10. It is further clarified in Policy Statement 1-1.
)The authority for seizing evidence with a search warrant arises from the Fourth Amendment, 26 USC § 7608, et al.
The Asset Forfeiture Coordinator (AFC) is responsible for tracking all seized currency and firearms, regardless of value, and individual property items seized as evidence valued at $500 or more, on the Asset Forfeiture Tracking and Retrieval System (AFTRAK). The AFC must track individual property items seized as evidence that are valued at less than $500 on a field office database. Refer to the Asset Forfeiture Process Guide for the procedures for tracking seized evidence on AFTRAK.
In addition to currency and firearms, examples of individual property items seized as evidence that are subject to tracking by the AFC include computer equipment, jewelry, precious metals, and other valuables. Seized records and documentary evidence are not subject to tracking by the AFC.
A copy of the inventory of all search warrants executed by Criminal Investigation (CI) must be provided to the AFC by the responsible case agent or Supervisory Special Agent (SSA) to ensure that any property seized as evidence is properly tracked on AFTRAK or a field office database.
A seizure Investigative Activity (SIA) is required for all assets seized as evidence that the AFC is required to track on AFTRAK (see subsection 220.127.116.11(1) above).
At least quarterly, the AFC should provide each SSA with an AFTRAK report (for all currency and firearms, and evidence valued at $500 or more) and field office database report (for evidence valued at below $500) for reconciliation and validation. The SSA will ensure the correctness of the reports and notify the AFC of any discrepancies.
The AFC will conduct a mid-year and fiscal year end inventory of property seized as evidence in accordance with instructions from the Warrants and Forfeiture Section to ensure the accuracy and reliability of the AFTRAK system.
When property seized as evidence is no longer needed as evidence, it should be returned, unless a determination has been made to pursue forfeiture of the property as manifested by the institution of a forfeiture proceeding.
The case agent is responsible for notifying the AFC when any property seized as evidence is returned.
When property seized as evidence is returned, a Release of Claim and Form 5914, Release and Receipt of Property should be obtained from the person to whom the property is returned. Check the CI Web for a copy of these forms.
Special agents and AFCs are to ensure that all property seized as evidence is securely stored in an area with limited access such as a safe or locked evidence room to preserve the chain of custody. An entry log to the storage area will be maintained reflecting:
the dates of entry
persons entering and
a brief description of the purpose for entry
The seized property contractor cannot take custody of property seized solely as evidence. If property seized as evidence is determined to be subject to forfeiture, the property may be transferred to the seized property contractor.
Safe deposit boxes should be used to securely store small items of property seized as evidence that have significant value. To preserve the chain of custody, strict procedures will be followed in using a safe deposit box for storage:
The signature of two CI employees, one of who is in management, is required for entry to the safe deposit box. Other CI employees with authorized entry should be the case agent(s) and AFC.
A log shall be maintained reflecting the dates of entry to the safe deposit box, persons entering, and a brief description of the purpose for entry.
When one safe deposit box is used to store evidence from multiple seizures, the items must not be commingled in order to maintain their integrity. Evidence from each seizure should be placed in separate sealed envelopes, bags, or containers and be properly identified.
When a computer is seized as evidence, the Computer Investigative Specialist (CIS) should retrieve the stored data for evidentiary purposes. Once the evidence has been retrieved, the seized computer may be returned to the owner. If the computer hardware has evidentiary value or may be subject to forfeiture, it shall remain in the custody of the CIS until it no longer has evidentiary value.
In some instances, currency has a significant, independent, tangible, evidentiary purpose. This may be due to the presence of fingerprints, packaging in an incriminating manner, or presence of notations or other writings.
Generally, because of the security and internal control problems associated with the retention of large amounts of currency, it should not be held as evidence when photographs and/or videotape of the currency would be sufficient for use as evidence in court.
Approval must be obtained to hold currency seized as evidence for Title 18 and Title 26 violations.
If the amount of seized currency to be held as evidence is less than $5,000, written approval to hold the currency must be granted at a supervisory level within the US Attorney's Office (USAO). Such approval must be provided to CI within 60 days of seizure or within 10 days of indictment, whichever comes first.
In a Title 18 investigation, if the amount of seized currency to be held as evidence is $5,000 or more, approval to hold the currency as evidence must be obtained by the local USAO from the Department of Justice (DOJ), Asset Forfeiture and Money Laundering Section (AFMLS), who has authority to approve exceptions to the DOJ Seized Cash Management Policy. The case agent or AFC may need to inform the Assistant US Attorney (AUSA) responsible for the investigation of this policy.
Criminal Investigation shall promptly submit a copy of the approval document issued by AFMLS to the Director, Treasury Executive Office for Asset Forfeiture (TEOAF), through the Director, Operations Policy and Support .
In a Title 26 investigation, if the amount of seized currency to be held as evidence is $5,000 or more, written approval to hold the currency as evidence must be obtained from the Director, Operations Policy and Support.
After the initial written approval is obtained, the case agent or AFC will verify and document during the mid year and fiscal year end inventory whether the AUSA wants CI to continue to hold the seized currency as evidence.
A safe deposit box is the preferred method of storage for currency seized as evidence. In the event that a seizure of currency is made during hours when access to a safe deposit box is not possible, currency may be stored temporarily in a CI safe, provided access to the safe is limited and a log containing the information described in subsection 18.104.22.168.2 is maintained.
Currency seized as evidence shall not be deposited to the Treasury Suspense Account (TSA) or the IRS Suspense Account unless and until it is determined to be subject to forfeiture and no longer has evidentiary value.
Any currency deposited to the TSA or IRS Suspense Account is presumed to be subject to forfeiture for purposes of the time limits for sending written notice to interested parties. Approval for any exceptions to this policy must be requested by memorandum from the Special Agent in Charge (SAC) to the Director, Warrants and Forfeiture, justifying the reason and legal basis to deposit seized currency held as evidence.
Criminal Investigation may seize firearms during a lawful arrest, search, seizure, or where an exception to the Fourth Amendment applies.
Special agents may seize firearms for forfeiture only when they are part of a collection of firearms and only with concurrence of the SAC.
Other occasions where firearms may be seized include the following:
Incident to arrest.
Incident to execution of a search warrant for officer safety.
Incident to an enforcement activity where there is a reasonable belief that the firearm is prohibited or contraband. Consultation should occur at the time of seizure with Alcohol, Tobacco , Firearms and Explosives (ATF), Federal Bureau of Investigations (FBI) or local law enforcement.
Incident to an enforcement activity where possession of the firearm is a crime. At the time of seizure, where it is suspected that possession may be illegal, the matter should be referred to and the weapons should be released to the appropriate law enforcement agency such as ATF, FBI or local law enforcement.
Illegal possession is designated in 18 USC §922(d) to include the following:
where the person is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year
is a fugitive from justice
is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 USC §802))
has been adjudicated as a mental defective or has been committed to any mental institution
who, being an alien (A) is illegally or unlawfully in the United States; or (B) except as provided in 18 USC §922(y)(2), has been admitted to the United States under a non-immigrant visa (as that term is defined in 8 USC §1101(a)(26) of the Immigration and Nationality Act
who has been discharged from the Armed Forces under dishonorable conditions
who, having been a citizen of the United States, has renounced his citizenship
is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that (A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and (B)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury
has been convicted in any court of a misdemeanor crime of domestic violence
Whenever IRS CI seizes a firearm in the course of a criminal investigation and takes it into Federal custody, a tracing request should be submitted to ATF’s National Tracking Center (NTC) via eTrace, an electronic firearms trace submission system, at the earliest time practicable. When submitting trace requests, IRS CI should keep in mind that firearms tracing will not always be successful. To help minimize the risk of an unsuccessful trace, consult ATF’s Firearms Tracing Guide available at http://www.atf.gov/publications/download/p/atf-p-3312-13.pdf, which provides comprehensive instructions on submitting trace requests. The earliest practicable time for tracing a recovered firearm may differ from case to case. While in most cases a trace request should be submitted shortly after the seizure of a firearm, there will be occasions where operational concerns justify delaying a trace request. In such instances, the trace should be conducted immediately upon resolution of the operational concerns.
If seized firearms are not illegal, their possession is not in violation of Federal law, will not be needed as evidence, and are not subject to forfeiture, they may be returned.
If seized firearms are illegal, or are legal but their possession is in violation of Federal law, ATF, FBI or local law enforcement should be contacted immediately regarding the adoption of the seizure.
Handling of seized firearms when the lawful owner is indicted and convicted of a felony can result in unique disposal problems for CI. It is unlawful for any person who has been convicted of a felony to possess a firearm, and it is unlawful for any person to sell or otherwise dispose of a weapon to any person knowing or having reasonable cause to believe that such person is under indictment for, or has been convicted of a felony. IRM 9.7.8, Disposition of Seized and Forfeited Property, provides guidance for disposing of seized firearms in these situations.
A weapon seized after August 23, 2000, from a person not legally entitled to possess it may be summarily forfeited without compensation to the possessor because it is considered contraband. If the weapon is seized for evidence and during the pendency of any proceeding (i.e., the time it is in the possession of the IRS), the owner is convicted of a felony, the weapon may be summarily forfeited as well.
When an asset no longer has evidentiary value, it may then be disposed of by returning the asset or by converting to a forfeiture action. In most cases, conversion of evidence will be to an administrative forfeiture. However, it may convert to a civil or criminal judicial forfeiture. If a decision is made to forfeit property seized for evidence, close coordination between CI and the forfeiture and criminal AUSA is essential.
Authorization of Seizure Investigative Activity (SIA) for an investigation must be approved on CIMIS when property seized as evidence is converted to forfeiture.
If the evidentiary seizure is converted to an administrative seizure for forfeiture, personal notice, in the form of a letter of Notice of Intent to Forfeit must be mailed, via Certified Mail-Return Receipt Requested, to all known interested parties to the action. The mailing must take place within 60 days of conversion to forfeiture. Notice will be prepared and mailed by the AFC.
If forfeiture will not be sought after seizure, then transferring the property to another law enforcement agency is an option. In some cases the agency to whom the property is to be transferred may serve a seizure warrant in order to obtain the property. A Form 5914, Release and Receipt of Property, must be signed by the AFC authorizing the release and the receiving agency signs as accepting the transfer.
Some forfeiture AUSAs may recommend or require a seizure warrant to re-seize property previously seized as evidence for forfeiture. Other AUSAs may feel it is not necessary to get a seizure warrant and re-seize property seized as evidence if there was probable cause to believe property was subject to forfeiture before, and the property was seized during a lawful search or arrest or where an exception to the Fourth Amendment would apply. It is the recommendation of the Treasury Office of Asset Forfeiture and IRS Criminal Tax Counsel that a seizure warrant be obtained to re-seize property for forfeiture which was previously seized as evidence.
If property is seized solely as evidence i.e., there is no intent of forfeiting, the 60–day notice provisions required by 18 USC §983(a) do not apply because there is, nor will there be, a forfeiture proceeding.
If there is a remote chance that the property seized will be forfeited in a non-judicial civil forfeiture proceeding, notice should be sent no more than 60 days after the date of seizure. The IRM 9.7.2, Civil Seizure and Forfeiture, provides additional guidance on notice issues relating to non-judicial forfeiture investigations.
If a forfeiture action is initiated against property needed for evidence and the property is subsequently forfeited, the disposition of the property can be delayed until the property is no longer needed for evidence.
Thorough documentation is required to show that the property was held as evidence in good faith, not for purposes of delaying notice of the forfeiture action.
When property is seized solely as evidence, expenses incurred for transportation, storage, etc., are not reimbursable from the Treasury Forfeiture Fund.
Expenses incurred in connection with property seized as evidence that is later converted to forfeiture, are reimbursable once forfeiture is initiated. The expenses must be incurred in the same fiscal year that the evidence was converted to forfeiture.