[Federal Register Volume 62, Number 2 (Friday, January 3, 1997)]
[Rules and Regulations]
[Pages 314-322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-117]
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DEPARTMENT OF JUSTICE
28 CFR Part 9
[AG ORDER No. 2064-96]
RIN 1105-AA23
Revision of Regulations Governing the Remission or Mitigation of
Civil and Criminal Forfeitures
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This order amends and adopts rules that govern the processing
of petitions for remission and mitigation of forfeitures by the
Criminal Division, the Drug Enforcement Administration, the Federal
Bureau of Investigation, the Immigration and Naturalization Service,
and the United States Marshals Service of the Department of Justice.
The amendments are made in an effort to ameliorate the harsh results in
individual forfeiture cases and to provide relief to innocent persons
whose property is used by others for criminal purposes.
EFFECTIVE DATE: February 3, 1997.
FOR FURTHER INFORMATION CONTACT:
Nancy L. Rider, Deputy Chief, Asset Forfeiture and Money Laundering
Section, Criminal Division, Department of Justice, Washington, DC
20530, telephone (202) 514-1263. This is not a toll-free number.
SUPPLEMENTARY INFORMATION:
Background
This order amends 28 CFR part 9 primarily so the Department can
transfer forfeited assets to victims of the offense or related offenses
underlying particular forfeiture actions. Under the current
regulations, standing to seek remission or mitigation is limited to
parties having a present legally cognizable interest in the forfeited
property (e.g., owners, lienholders), and unless a particular victim
has such an interest, forfeited assets cannot be used to restore
property to those victimized by the criminal conduct. The amendments
permit the Department to transfer certain forfeited assets to victims
of certain fraud-type offenses who lack a present ownership interest in
particular forfeited assets but who are victims of the offense
underlying the forfeiture or related offense where the applicable
statutes allow such a transfer. These regulations also clarify certain
ambiguities in the present regulations pertaining to who has standing
to file petitions for remission. The notice of proposed rulemaking for
these regulations was published in the Federal Register on June 29,
1994 (59 FR 33457).
Comments
The Department received five comments during the comment period
that ended July 29, 1994. Three of the comments pertained to issues
relating to the use of remission to transfer seized and forfeited
property to victims of the criminal or criminal conduct. Two of the
comments concerned the manner in which victims' interests are treated
under the new regulations. The purpose of remission is not to effect
restitution to all victims of crime, but rather to ameliorate the
hardship that may result from forfeiture to those who (i) have an
ownership interest in the property, and (ii) others who, even though
they do not have a cognizable interest in the property, have incurred a
monetary loss as a result of the same underlying or related criminal
offense and who are uninvolved in or unaware of the underlying criminal
activity that resulted in the forfeiture. Restitution, on the other
hand, a remedy that is often confused with remission, is available as
an equitable remedy designed to make parties whole and to prevent
unjust enrichment.
The Department believes the definition of victim for purposes of
the relevant statutes is included in the definition of an owner as
found at section 9.2(1), where the victim has a legally cognizable
interest in the forfeited property. Victims who do not
[[Page 315]]
have a legally cognizable interest in the property that has been seized
and forfeited, but have been victimized by the criminal from whom the
property was seized are non-owners and are, to the extent the
Department may recognize those interests, covered by section 9.8.
One of the two comments concerning victims suggested the
regulation's definition of the word victim be expanded to include an
owner-victim, whose ownership interest is based on the fact that the
forfeited property was acquired with property wrongfully taken from
him, but where the forfeiture was not based on an offense underlying
the victim's loss. The example cited was that of a thief who steals
money and buys a car that is subsequently forfeited for an offense
unrelated to the theft. The concern is that the person from whom the
thief stole the money would not be a victim covered under the
regulations if the forfeiture was based on an offense unrelated to the
theft. The commenter is mistaking remission for restitution. If the
government seized and forfeited the stolen money for a reason
unconnected to the theft, and the money was clearly taken in the theft,
the money would be restored to the individual from whom it had been
stolen as the rightful owner. If the thief used stolen money to
purchase a vehicle that was subsequently forfeited for a reason
unconnected to the theft, the government would not be able to restore
the stolen money, nor the vehicle purchased with stolen money, for many
practicable and evidentiary reasons, unless the victim clearly
established a legally cognizable interest in the forfeited property and
thus demonstrated his interest as that of an ``owner'' under section
9.2(1).
Another commenter stated that sections 9.2(v) and 9.8 are
inconsistent, in that section 9.2(v) only applies to victims of the
offense underlying a forfeiture and excludes or of [a] related offense,
which appears in section 9.8. The commenter was correct and the
distinction is purposeful. As noted, there is a difference between
section 9.2(v) and section 9.8 victims: section 9.2(v) covers owners,
who have been victimized by the criminal conduct that was the basis of
the forfeiture, while section 9.8 covers non-owners who have been
victimized by the criminal conduct that was the basis of the forfeiture
or related to the forfeiture. For example, section 9.8 would address
victims of a mail fraud scheme where the forfeiture is brought pursuant
to the RICO statute--18 U.S.C. Sec. 1963, where such a person would not
be covered by section 9.2(v).
Because the sections were drafted to address different types of
victims for the reasons previously given, the suggestion to align the
two definitions of ``victim'' would be inconsistent with the purpose
and intent of these regulations.
The third comment concerning victims issues maintained that the
regulations do not appear to have been drafted with an emphasis on
forfeiture cases that arise out of financial crimes, i.e., schemes to
defraud banks and individuals. The regulations implement federal laws,
and relate to the remission of forfeitures conducted pursuant to
statutes such as sections 981 and 982 of title 18, United States Code,
which permit the forfeiture of the proceeds of certain bank fraud
violations, as well as the criminal proceeds of other violations of
federal law predicated on schemes to defraud.
Another comment suggested that the regulations ignored forfeitures
under title 26, for failure to file Currency Transaction Reports
(CTRs), and title 31, for failure to file Currency and Monetary
Instrument Reports (CMIRs). It stated that since these statutes do not
contain innocent owner provisions, there is no avenue for remission or
mitigation for individuals who are affected by title 26 or title 31
forfeitures. The Department of Justice responds by pointing out that
section 9.5(a)(1)(ii) specifically provides that ``[i]f the applicable
civil forfeiture statute contains no innocent owner defense, the
innocent owner provisions applicable to 21 United States Code
Sec. 881(a)(4) shall apply.''
The last comment suggested that section 9.6(f)(1)(iii) be amended
to allow a judgment creditor to be recognized if he or she had no
knowledge of the acts giving rise to the forfeiture at the time of the
transaction upon which the judgment was based instead of requiring the
creditor to have no knowledge ``at the time the judgment became a lien
on the forfeited property.'' The Department responds that section
9.6(f)(1)(iii) is necessarily consistent with the time-of-knowledge
standard applicable to all petitioners pursuant to section 9.5. The
suggested amendment must be rejected as it would provide judgment
creditors with an unfair advantage over other petitioners in the
petition for remission process.
Recent changes in the Immigration and Naturalization Service
organizational structure have modified internal decision-making
authority. Accordingly, under section 9.1(b)(1), authority to grant
remission and mitigation is now delegated to the INS Regional
Directors.
The Department has deleted the last sentence of the definition of
the term ``owner'' in section 9.2(l), which provided that ``[t]he mere
existence of a community property interest without proof of financial
contribution to the purchase of the property will not be deemed
sufficient to support a petition.'' This provision was included to
guard against spouses of drug dealers and other criminals obtaining a
windfall from the proceeds of illegal activities where the petitioning
spouse made no financial contribution to the purchase of the property
at issue. Though this rationale remains a concern, the sweep of the
provision was unduly broad, possibly precluding meritorious petitions
by innocent spouses claiming an ownership interest under state
community property laws. Accordingly, the Department will review
petitions predicated upon state community property laws on a case-by-
case basis and may deny such petitions where the petitioning spouse
would be unjustly enriched by the proceeds of the offending spouse's
criminal wrongdoing.
The Department has made other technical changes in section 9.8
which do not require an additional notice and comment period.
Other Matters
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the Attorney General certifies that this rule does not have a
significant adverse economic impact on a substantial number of small
entities. This regulation will not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment. This regulation has been drafted and reviewed in accordance
with Executive Order 12866, Sec. 1(b), Principles of Regulation. The
Department of Justice has determined that this rule is a ``significant
regulatory action'' under Executive Order 12866, Sec. 3(f), Regulatory
Planning and Review; accordingly, it has been reviewed by the Office of
Management and Budget.
List of Subjects in 28 CFR Part 9
Administrative practice and procedure, Crime, Seizures and
forfeitures.
By virtue of the authority vested in me as Attorney General by 28
U.S.C. 509 and 510, 28 CFR part 9 is revised to read as follows:
[[Page 316]]
PART 9--REGULATIONS GOVERNING THE REMISSION OR MITIGATION OF CIVIL
AND CRIMINAL FORFEITURES
Sec.
9.1 Authority, purpose, and scope.
9.2 Definitions.
9.3 Petitions in administrative forfeiture cases.
9.4 Petitions in judicial forfeiture cases.
9.5 Criteria governing administrative and judicial remission and
mitigation.
9.6 Special rules for specific petitioners.
9.7 Terms and conditions of remission and mitigation.
9.8 Provisions applicable to victims.
9.9 Miscellaneous provisions.
Authority: 28 U.S.C. 509, 510, 515-518, 524; 8 U.S.C. 1324; 15
U.S.C. 1177; 17 U.S.C. 509; 18 U.S.C. 512, 981, 982, 1467, 1955,
1963, 2253, 2254, 2513; 19 U.S.C. 1613, 1618; 21 U.S.C. 853, 881; 22
U.S.C. 401.
Sec. 9.1 Authority, purpose, and scope.
(a) Purpose. This part sets forth the procedures for agency
officials to follow when considering remission or mitigation of
administrative forfeitures under the jurisdiction of the agency, and
civil judicial and criminal judicial forfeitures under the jurisdiction
of the Criminal Division. The purpose of the regulations in this part
is to provide a basis for ameliorating the effects of forfeiture
through the partial or total remission of forfeiture for individuals
who have an interest in the forfeited property but who did not
participate in, or have knowledge of, the conduct that resulted in the
property being subject to forfeiture and, where required, took all
reasonable steps under the circumstances to ensure that such property
would not be used, acquired, or disposed of contrary to law.
Additionally, the regulations provide for partial or total mitigation
of the forfeiture and imposition of alternative conditions in
appropriate circumstances.
(b) Authority to grant remission and mitigation. (1) Remission and
mitigation functions in administrative forfeitures are performed by the
agency seizing the property. Within the Federal Bureau of
Investigation, authority to grant remission and mitigation is delegated
to the Forfeiture Counsel, who is the Unit Chief, Legal Forfeiture
Unit, Office of the General Counsel; within the Drug Enforcement
Administration, authority to grant remission and mitigation is
delegated to the Forfeiture Counsel, Office of Chief Counsel; and
within the Immigration and Naturalization Service, authority to grant
remission and mitigation is delegated to the INS Regional Directors.
(2) Remission and mitigation functions in judicial cases are
performed by the Criminal Division of the Department of Justice. Within
the Criminal Division, authority to grant remission and mitigation is
delegated to the Chief, Asset Forfeiture and Money Laundering Section,
Criminal Division.
(3) The powers and responsibilities delegated by these regulations
in this part may be redelegated to attorneys or managers working under
the supervision of the designated officials.
(c) The time periods and internal requirements established in this
part are designed to guide the orderly administration of the remission
and mitigation process and are not intended to create rights or
entitlements in favor of individuals seeking remission or mitigation.
The regulations will apply to all decisions on petitions for remission
or mitigation made on or after February 3, 1997. The regulations will
apply to decisions on requests for reconsideration of a denial of a
petition under Secs. 9.3(j) and 9.4(k) only if the initial decision on
the petition was made under the provisions of this part effective on
February 3, 1997.
(d) This part governs any petition for remission filed with the
Attorney General and supersedes any Department of Justice regulation
governing petitions for remission, to the extent such regulation is
inconsistent with this part. In particular, this part supersedes the
provisions of 21 CFR 1316.79 and 1316.80, which contain remission and
mitigation procedures for property seized for narcotics violations. The
provisions of 8 CFR 274.13 through 274.19 and 28 CFR 8.10, which
concern non-drug related forfeitures, are also superseded by this part
where those regulations relate to remission and mitigation.
Sec. 9.2 Definitions.
As used in this part:
(a) The term administrative forfeiture means the process by which
property may be forfeited by an investigative agency rather than
through judicial proceedings.
(b) The term appraised value means the estimated market value of an
asset at the time and place of seizure if such or similar property was
freely offered for sale between a willing seller and a willing buyer.
(c) The term Assets Forfeiture Fund means the Department of Justice
Assets Forfeiture Fund or Department of the Treasury Asset Forfeiture
Fund, depending upon the identity of the seizing agency.
(d) The term Attorney General means the Attorney General of the
United States or his or her designee.
(e) The term beneficial owner means a person with actual use of, as
well as an interest in, the property subject to forfeiture.
(f) The terms Chief, Asset Forfeiture and Money Laundering Section,
and Chief, refer to the Chief of the Asset Forfeiture and Money
Laundering Section, Criminal Division, United States Department of
Justice.
(g) The term general creditor means one whose claim or debt is not
secured by a specific right to obtain satisfaction against the
particular property subject to forfeiture.
(h) The term judgment creditor means one who has obtained a
judgment against the debtor but has not yet received full satisfaction
of the judgment.
(i) The term judicial forfeiture means either a civil or a criminal
proceeding in a United States District Court that may result in a final
judgment and order of forfeiture.
(j) The term lienholder means a creditor whose claim or debt is
secured by a specific right to obtain satisfaction against the
particular property subject to forfeiture. A lien creditor qualifies as
a lienholder if the lien:
(1) Was established by operation of law or contract;
(2) Was created as a result of an exchange of money, goods, or
services; and
(3) Is perfected against the specific property forfeited for which
remission or mitigation is sought (e.g., a real estate mortgage; a
mechanic's lien).
(k) The term net equity means the amount of a lienholder's monetary
interest in property subject to forfeiture. Net equity shall be
computed by determining the amount of unpaid principal and unpaid
interest at the time of seizure, and by adding to that sum unpaid
interest calculated from the date of seizure through the last full
month prior to the date of the decision on the petition. Where a rate
of interest is set forth in a security agreement, the rate of interest
to be used in this computation will be the annual percentage rate so
specified in the security agreement that is the basis of the
lienholder's interest. In this computation, however, there shall be no
allowances for attorneys' fees, accelerated or enhanced interest
charges, amounts set by contract as damages, unearned extended warranty
fees, insurance, service contract charges incurred after the date of
seizure, allowances for dealer's reserve, or any other similar charges.
(l) The term owner means the person in whom primary title is vested
or whose interest is manifested by the actual and beneficial use of the
property, even though the title is vested in another. A victim of an
offense, as
[[Page 317]]
defined in paragraph (v) of this section, may also be an owner if he or
she has a present legally cognizable ownership interest in the property
forfeited. A nominal owner of property will not be treated as its true
owner if he or she is not its beneficial owner.
(m) The term person means an individual, partnership, corporation,
joint business enterprise, estate, or other legal entity capable of
owning property.
(n) The term petition means a petition for remission or mitigation
of forfeiture under the regulations in this part. This definition
includes a petition for restoration of the proceeds of sale of
forfeited property and a petition for the value of forfeited property
placed into official use.
(o) The term petitioner means the person applying for remission,
mitigation, restoration of the proceeds of sale, or for the appraised
value of forfeited property, under the regulations in this part. A
petitioner may be an owner as defined in Sec. 9.2(l), a lienholder as
defined in Sec. 9.2(j), or a victim as defined in Sec. 9.2(v), subject
to the limitations of Sec. 9.8.
(p) The term property means real or personal property of any kind
capable of being owned or possessed.
(q) The term record means a series of arrests for related crimes,
unless the arrestee was acquitted or the charges were dismissed for
lack of evidence; a conviction for a related crime or completion of
sentence within ten years of the acquisition of the property subject to
forfeiture; or two convictions for a related crime at any time in the
past.
(r) The term related crime as used in Sec. 9.2(q) and Sec. 9.6(e)
means any crime similar in nature to that which gives rise to the
seizure of property for forfeiture. For example, where property is
seized for a violation of the federal laws relating to drugs, a related
crime would be any offense involving a violation of the federal laws
relating to drugs or the laws of any state or political subdivision
thereof relating to drugs.
(s) The term related offense as used in Sec. 9.8 means:
(1) Any predicate offense charged in a Federal Racketeer Influenced
and Corrupt Organizations Act (RICO) count for which forfeiture was
ordered; or
(2) An offense committed as part of the same scheme or design, or
pursuant to the same conspiracy, as was involved in the offense for
which forfeiture was ordered.
(t) The term Ruling Official means any official to whom decision
making authority has been delegated pursuant to Sec. 9.1(b).
(u) The term seizing agency means the federal agency that seized
the property or adopted the seizure of another agency for federal
forfeiture.
(v) The term victim means a person who has incurred a pecuniary
loss as a direct result of the commission of the offense underlying a
forfeiture. A drug user is not considered a victim of a drug
trafficking offense under this definition. A victim does not include
one who acquires a right to sue the perpetrator of the criminal offense
for any loss by assignment, subrogation inheritance, or otherwise form
the actual victim, unless that person has acquired an actual ownership
interest in the forfeited property.
(w) The term violator means the person whose use or acquisition of
the property in violation of the law subjected such property to seizure
for forfeiture.
Sec. 9.3 Petitions in administrative forfeiture cases.
(a) Notice of seizure. The notice of seizure and intent to forfeit
the property shall advise any persons who may have a present ownership
interest in the property to submit their petitions for remission or
mitigation within thirty (30) days of the date they receive the notice
in order to facilitate processing. Petitions shall be considered any
time after notice until the forfeited property is placed into official
use, sold, or otherwise disposed of according to law, except in cases
involving petitions to restore the proceeds from the sale of forfeited
property. A notice of seizure shall include the title of the seizing
agency, the Ruling Official, the mailing and street address of the
official to whom petitions should be sent, and an asset identifier
number.
(b) Persons who may file. A petition for remission or mitigation
must be filed by a petitioner as defined in Sec. 9.2(o) or as
prescribed in Secs. 9.9(g) and (h).
(c) Contents of petition. (1) All petitions must include the
following information in clear and concise terms:
(i) The name, address, and social security or other taxpayer
identification number of the person claiming an interest in the seized
property who is seeking remission or mitigation;
(ii) The name of the seizing agency, the asset identifier number,
and the date and place of seizure;
(iii) A complete description of the property, including make,
model, and serial numbers, if any; and
(iv) A description of the petitioner's interest in the property as
owner, lienholder, or otherwise, supported by original or certified
bills of sale, contracts, deeds, mortgages, or other documentary
evidence.
(2) Any factual recitation or documentation of any type in a
petition must be supported by a sworn affidavit.
(d) Releases. In addition to the contents of the petition for
remission or mitigation set forth in paragraph (c) of this section,
upon request, the petitioner shall also furnish the agency with an
instrument executed by the titled or registered owner and any other
known claimant of an interest in the property releasing interest in
such property.
(e) Filing petition with agency. (1) A petition for remission or
mitigation subject to administrative forfeiture shall be addressed to
the appropriate federal agency as follows:
(i) Drug Enforcement Administration, Office of Chief Counsel,
Street Address: 700 Army Navy Drive, Arlington, VA 22202
Mailing Address: P.O. Box 28356, Washington, D.C. 20038.
(ii) Federal Bureau of Investigation, Special Agent in Charge,
Field Office that seized the property.
(iii) Immigration and Naturalization Service District Director,
Chief Patrol Agent, or Regional Asset Forfeiture Office at location
with jurisdiction over the forfeiture proceeding.
(2) The petition is to be sent to the official address provided in
the notice of seizure and shall be sworn to by the petitioner or by the
petitioner's attorney upon information and belief, supported by the
client's sworn notice of representation pursuant to 28 U.S.C. 1746, as
set out in Sec. 9.9(g). The Chief of the Asset Forfeiture and Money
Laundering Section is delegated authority to amend the address of the
official to whom petitions may be sent from time to time, as necessary,
by publishing notice of the change of address in the Federal Register.
Failure to publish a notice of change of address in the Federal
Register shall not alter the authority of the Ruling Official to
determine petitions for remission or mitigation nor the obligation of a
petitioner to file a petition at the address provided in the notice of
seizure. Failure to publish a notice of change of address in the
Federal Register shall not be grounds for expanding the time for filing
a petition for remission or mitigation under the regulations in this
part.
(f) Agency investigation. Upon receipt of a petition, the seizing
agency shall investigate the merits of the petition and prepare a
written report containing the results of that investigation. This
report shall be submitted to the Ruling Official for review and
consideration.
(g) Ruling. Upon receipt of the petition and the agency report, the
Ruling Official for the seizing agency
[[Page 318]]
shall review the petition and the report, and shall rule on the merits
of the petition. No hearing shall be held.
(h) Petitions granted. If the Ruling Official grants a remission or
mitigation of the forfeiture, a copy of the decision shall be mailed to
the petitioner or, if represented by an attorney, to the petitioner's
attorney. A copy shall also be sent to the United States Marshals
Service or other property custodian. The written decision shall include
the terms and conditions, if any, upon which the remission or
mitigation is granted and the procedures the petitioner must follow to
obtain release of the property or the monetary interest therein.
(i) Petitions denied. If the Ruling Official denies a petition, a
copy of the decision shall be mailed to the petitioner or, if
represented by an attorney, to the petitioner's attorney of record. A
copy of the decision shall also be sent to the United States Marshals
Service or other property custodian. The decision shall specify the
reason that the petition was denied. The decision shall advise the
petitioner that a request for reconsideration of the denial of the
petition may be submitted to the Ruling Official in accordance with
paragraph (j) of this section.
(j) Request for reconsideration. (1) A request for reconsideration
of the denial of the petition shall be considered if:
(i) It is postmarked or received by the office of the Ruling
Official within ten (10) days from the receipt of the notice of denial
of the petition by the petitioner; and
(ii) The request is based on information or evidence not previously
considered that is material to the basis for the denial or presents a
basis clearly demonstrating that the denial was erroneous.
(2) In no event shall a request for reconsideration be decided by
the same Ruling Official who ruled on the original petition.
(3) Only one request for reconsideration of a denial of a petition
shall be considered.
(k) Restoration of proceeds from sale. (1) A petition for
restoration of the proceeds from the sale of forfeited property, or for
the appraised value of forfeited property when the forfeited property
has been retained by or delivered to a government agency for official
use, may be submitted by an owner or leinholder in cases in which the
petitioner:
(i) Did not know of the seizure prior to the entry of a declaration
of forfeiture; and
(ii) Could not reasonably have known of the seizure prior to the
entry of a declaration of forfeiture.
(2) Such a petition shall be submitted pursuant to paragraphs (b)
through (e) of this section within ninety (90) days of the date the
property is sold or otherwise disposed of.
Sec. 9.4 Petitions in judicial forfeiture cases.
(a) Notice of seizure. The notice of seizure and intent to forfeit
the property shall advise any persons who may have a present ownership
interest in the property to submit their petitions for remission or
mitigation within thirty (30) days of the date they receive the notice
in order to facilitate processing. Petitions shall be considered any
time after notice until such time as the forfeited property is placed
in official use, sold, or otherwise disposed of according to law,
except in cases involving petitions to restore property. A notice of
seizure shall include the title of the Ruling Official and the mailing
and street address of the official to whom petitions should be sent,
the name of the agency seizing the property, an asset identifier
number, and the district court docket number.
(b) Persons who may file. A petition for remission or mitigation
must be filed by a petitioner as defined in Sec. 9.2(o) or as
prescribed in Sec. Sec. 9.9 (g) and (h).
(c) Contents of petition. (1) All petitions must include the
following information in clear and concise terms:
(i) The name, address, and social security or other taxpayer
identification number of the person claiming an interest in the seized
property who is seeking remission or mitigation;
(ii) The name of the seizing agency, the asset identifier number,
and the date and place of seizure;
(iii) The district court docket number;
(iv) A complete description of the property, including the address
or legal description of real property, and make, model, and serial
numbers of personal property, if any; and
(v) A description of the petitioner's interest in the property as
owner, lienholder, or otherwise, supported by original or certified
bills of sale, contracts, mortgages, deeds, or other documentary
evidence.
(2) Any factual recitation or documentation of any type in a
petition must be supported by a sworn affidavit.
(d) Releases. In addition to the content of the petition for
remission or mitigation set forth in paragraph (c) of this section, the
petitioner, upon request, also shall furnish the agency with an
instrument executed by the titled or registered owner and any other
known claimant of an interest in the property releasing the interest in
such property.
(e) Filing petition with Department of Justice. A petition for
remission or mitigation of a judicial forfeiture shall be addressed to
the Attorney General; shall be sworn to by the petitioner or by the
petitioner's attorney upon information and belief, supported by the
client's sworn notice of representation pursuant to 28 U.S.C. 1746, as
set forth in Sec. 9.9(g); and shall be submitted to the United States
Attorney for the district in which the judicial forfeiture proceedings
are brought. A petitioner also shall submit a copy of the petition to
the seizing agency in the judicial district in which the seizure
occurred as specified in the notice of seizure, except in Drug
Enforcement Administration cases, where the copy shall be submitted to
Drug Enforcement Administration Headquarters, Office of Chief Counsel,
P.O. Box 28356, Washington, D.C. 20038, or 700 Army Navy Drive,
Arlington, VA 22202.
(f) Agency investigation and recommendation; United States
Attorney's recommendation. Upon receipt of a petition, the United
States Attorney shall direct the seizing agency to investigate the
merits of the petition based on the information provided by the
petitioner and the totality of the agency's investigation of the
underlying basis for forfeiture. The agency shall submit to the United
States Attorney a report of its investigation and its recommendation on
whether the petition should be granted or denied. Upon receipt of the
agency's report and recommendation, the United States Attorney shall
forward to the Chief, Asset Forfeiture and Money Laundering Section,
the petition, the seizing agency's report and recommendation, and the
United States Attorney's recommendation on whether the petition should
be granted or denied.
(g) Ruling. The Chief shall rule on the petition. No hearing shall
be held. The Chief shall not rule on any petition in any case in which
similar petition has been administratively denied by the seizing agency
prior to the referral of the case to the United States Attorney for the
institution of forfeiture proceedings.
(h) Petitons under Internal Revenue Service liquor laws. The Chief
shall accept and consider petitions submitted in judicial forfeiture
proceedings under the Internal Revenue Service liquor laws only prior
to the time a decree of forfeiture is entered. Thereafter, district
courts have exclusive jurisdiction.
(i) Petitions granted. If the Chief grants a remission or mitigates
the forfeiture, the Chief shall mail a copy of the decision to the
petitioner or, if represented by an attorney, to the petitioner's
attorney, the appropriate
[[Page 319]]
United States Attorney, the United States Marshals Service or other
property custodian, and the appropriate seizing agency. The written
decision shall include the terms and conditions, if any, upon which the
remission or mitigation is granted and the procedures the petitioner
must follow to obtain release of the property or the monetary interest
therein. The Chief shall advise the petitioner or the petitioner's
attorney to consult with the United States Attorney as to such terms
and conditions. The United States Attorney shall confer with the
seizing agency regarding the release and shall coordinate disposition
of the property with that office and the United States Marshals Service
or other property custodian.
(j) Petitions denied. If the Chief denies a petition, a copy of
that decision shall be mailed to the petitioner, or if represented by
an attorney, to the petitioner's attorney of record, to the appropriate
United States Attorney, the United States Marshals Service or other
property custodian, and to the appropriate seizing agency. The decision
shall specify the reason that the petition was denied. The decision
shall advise the petitioner that a request for reconsideration of the
denial of the petition may be submitted to the Chief at the address
provided in the decision, in accordance with paragraph (k) of this
section.
(k) Request for reconsideration. (1) A request for reconsideration
of the denial shall be considered if:
(i) It is postmarked or received by the Asset Forfeiture and Money
Laundering Section at the address contained in the decision denying the
petition within ten (10) days from the receipt of the notice of denial
of the petition by the petitioner; and
(ii) The request is based on information or evidence not previously
considered that is material to the basis for the denial or presents a
basis clearly demonstrating that the denial was erroneous. A copy of
the request must be received by the appropriate United States Attorney
within ten (10) days of the receipt of the denial by the petitioner.
(2) In no event shall a request for reconsideration be decided by
the Ruling Official who ruled on the original petition.
(3) Only one request for reconsideration of a denial of a petition
shall be considered.
(4) Upon receipt of the request for reconsideration of the denial
of a petition, disposition of the property will be delayed pending
notice of the decision at the request of the Chief. If the United
States Attorney does not receive a copy of the request for
reconsideration within the prescribed period, the deposition of the
property may proceed.
(1) Restoration of Proceeds from sale. (1) A petition for
restoration of the proceeds from the sale of forfeited property, or for
the appraised value of forfeited property when the forfeited property
has been retained by or delivered to a government agency for official
use, may be submitted by an owner or lienholder in cases in which the
petitioner:
(i) Did not know of the seizure prior to the entry of a final order
of forfeiture; and
(ii) Could not reasonably have known of the seizure prior to the
entry of a final order of forfeiture.
(2) Such a petition must be submitted pursuant to paragraphs (b)
through (e) of this section within ninety (90) days of the date the
property was sold or otherwise disposed of.
Sec. 9.5 Criteria governing administrative and judicial remission and
mitigation.
(a) Remission. (1) The Ruling Official shall not grant remission of
a forfeiture unless the petitioner establishes that:
(i) The petitioner has a valid, good faith, and legally cognizable
interest in the seized property as owner or lienholder as defined in
this part; and
(ii) The petitioner is innocent within the meaning of the innocent
owner provisions of the applicable civil forfeiture statute, is a bona
fide purchaser for value without cause to believe that the property was
subject to forfeiture at the time of the purchase, or is one who held a
legally cognizable interest in the seized property at the time of the
violation underlying the forfeiture superior to that of the defendant
within the meaning of the applicable criminal forfeiture statute, and
is thereby entitled to recover his or her interest in the forfeited
property by statute. (If the applicable civil forfeiture statute
contains no innocent owner defense, the innocent owner provisions
applicable to 21 U.S.C. 881(a)(4) shall apply.) Unless otherwise
provided by statute, in the case of petitioners who acquired their
interest in the property after the time of the violation underlying the
forfeiture, the question of whether the petitioner had knowledge of the
violation shall be determined as of the point in time when the interest
in the property was acquired.
(2) The knowledge and responsibilities of petitioner's
representative, agent, or employee in paragraph (a)(1)(ii) of this
section are imputed to the petitioner where the representative, agent,
or employee was acting in the course of his or her employment and in
furtherance of the petitioner's business.
(3) The petitioner has the burden of establishing the basis for
granting a petition for remission or mitigation of forfeited property,
a restoration of proceeds of sale or appraised value of forfeited
property, or a reconsideration of a denial of such a petition. Failure
to provide information or documents and to submit to interviews, as
requested, may result in a denial of the petition.
(4) The Ruling Official shall presume a valid forfeiture and shall
not consider whether the evidence is sufficient to support the
forfeiture.
(5) Willful, materially-false statements or information, made or
furnished by the petitioner in support of a petition for remission or
mitigation of forfeited property, the restoration of proceeds or
appraised value of forfeited property, or the reconsideration of a
denial of any such petition, shall be grounds for denial of such
petition and possible prosecution for the filing of false statements.
(b) Mitigation. (1) The Ruling Official may grant mitigation to a
party not involved in the commission of the offense underlying
forfeiture:
(i) Where the petitioner has not met the minimum conditions for
remission, but the Ruling Official finds that some relief should be
granted to avoid extreme hardship, and that return of the property
combined with imposition of monetary and/or other conditions of
mitigation in lieu of a complete forfeiture will promote the interest
of justice and will not diminish the deterrent effect of the law.
Extenuating circumstances justifying such a finding include those
circumstances that reduce the responsibility of the petitioner for
knowledge of the illegal activity, knowledge of the criminal record of
a user of the property, or failure to take reasonable steps to prevent
the illegal use or acquisition by another for some reason, such as a
reasonable fear of reprisal; or
(ii) Where the minimum standards for remission have been satisfied
but the overall circumstances are such that, in the opinion of the
Ruling Official, complete relief is not warranted.
(2) The Ruling Officials may in his or her discretion grant
mitigation to a party involved in the commission of the offense
underlying the forfeiture where certain mitigating factors exist,
including, but not limited to: the lack of a prior record or evidence
of similar criminal conduct; if the violation does not include drug
distribution,
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manufacturing, or importation, the fact that the violator has taken
steps, such as drug treatment, to prevent further criminal conduct; the
fact that the violation was minimal and was not part of a larger
criminal scheme; the fact that the violator has cooperated with
federal, state, or local investigations relating to the criminal
conduct underlying the forfeiture; or the fact that complete forfeiture
of an asset is not necessary to achieve the legitimate purposes of
forfeiture.
(3) Mitigation may take the form of a monetary condition or the
imposition of other conditions relating to the continued use of the
property, and the return of the property, in addition to the imposition
of any other costs that would be chargeable as a condition to
remission. This monetary condition is considered as an item of cost
payable by the petitioner, and shall be deposited into the Assets
Forfeiture Fund as an amount realized from forfeiture in accordance
with the applicable statute. If the petitioner fails to accept the
Ruling Official's mitigation decision or any of its conditions, or
fails to pay the monetary amount within twenty (20) days of the receipt
of the decision, the property shall be sold, and the monetary amount
imposed and other costs chargeable as a condition to mitigation shall
be subtracted from the proceeds of the sale before transmitting the
remainder to the petitioner.
Sec. 9.6 Special rules for specific petitioners.
(a) General creditors. A general creditor may not be granted
remission or mitigation of forfeiture unless he or she otherwise
qualifies as petitioner under this part.
(b) Rival claimants. If the beneficial owner of the forfeited
property and the owner of a security interest in the same property each
files a petition, and if both petitions are found to be meritorious,
the claims of the beneficial owner shall take precedence.
(c) Voluntary bailments. A petitioner who allows another to use his
or her property without cost, and who is not in the business of lending
money secured by property or of leasing or renting property for profit,
shall be granted remission or mitigation of forfeiture in accordance
with the provisions of Sec. 9.5.
(d) Lessors. A person engaged in the business of leasing or renting
real or personal property on a long-term basis with the right to
sublease shall not be entitled to remission or mitigation of a
forfeiture of such property unless the lessor can demonstrate
compliance with all the requirements of Sec. 9.5.
(e) Straw owners. A petition by any person who has acquired a
property interest recognizable under this part, and who knew or had
reason to believe that the interest was conveyed by the previous owner
for the purpose of circumventing seizure, forfeiture, or the
regulations in this part, shall be denied. A petition by a person who
purchases or owns property for another who has a record for related
crimes as defined in Sec. 9.2(r), or a petition by a lienholder who
knows or has reason to believe that the purchaser or owner of record is
not the real purchaser or owner, shall be denied unless both the
purchaser of record and the real purchaser or owner meet the
requirements of Sec. 9.5.
(f) Judgment creditors. (1) A judgment creditor will be recognized
as a lienholder if:
(i) The judgment was duly recorded before the seizure of the
property for forfeiture;
(ii) Under applicable state or other local law, the judgment
constitutes a valid lien on the property that attached to it before the
seizure of the property for forfeiture; and
(iii) The petitioner had no knowledge of the commission of any act
or acts giving rise to the forfeiture at the time the judgment became a
lien on the forfeited property.
(2) A judgment creditor will not be recognized as a lienholder if
the property in question is not property of which the judgment debtor
is entitled to claim ownership under applicable state or other local
law (e.g., stolen property). A judgment creditor is entitled under this
part to no more than the amount of the judgment, exclusive of any
interest, costs, or other fees including attorney's fees associated
with the action that led to the judgment or its collection.
(3) A judgment creditor's lien must be registered in the district
where the property is located if the judgment was obtained outside the
district.
Sec. 9.7 Terms and conditions of remission and mitigation.
(a) Owners. (1) An owner's interest in property that has been
forfeited is represented by the property itself or by a monetary
interest equivalent to that interest at the time of seizure. Whether
the property or a monetary equivalent will be remitted to an owner
shall be determined at the discretion of the Ruling Official.
(2) If a civil judicial forfeiture action against the property is
pending, release of the property must await an appropriate court order.
(3) Where the government sells or disposes of the property prior to
the grant of the remission, the owner shall receive the proceeds of
that sale, less any costs incurred by the government in the sale. The
Ruling Official, at his or her discretion, may waive the deduction of
costs and expenses incident to the forfeiture.
(4) Where the owner does not comply with the conditions imposed
upon release of the property by the Ruling Official, the property shall
be sold. Following the sale, the proceeds shall be used to pay all
costs of the forfeiture and disposition of the property, in addition to
any monetary conditions imposed. The remaining balance shall be paid to
the owner.
(b) Lienholders. (1) When the forfeited property is to be retained
for official use or transferred to a state or local law enforcement
agency or foreign government pursuant to law, and remission or
mitigation has been granted to a lienholder, the recipient of the
property shall assure that:
(i) In the case of remission, the lien is satisfied as determined
through the petition process; or
(ii) In the case of mitigation, an amount equal to the net equity,
less any monetary conditions imposed, is paid to the lienholder prior
to the release of the property to the recipient agency of foreign
government.
(2) When the forfeited property is not retained for official use or
transferred to another agency or foreign government pursuant to law,
the lienholder shall be notified by the Ruling Official of the right to
select either of the following alternatives:
(i) Return of property. The lienholder may obtain possession of the
property after paying the United States, through the Ruling Official,
the costs and expenses incident to the forfeiture, the amount, if any,
by which the appraised value of the property exceeds the lienholder's
net equity in the property, and any amount specified in the Ruling
Official's decision as a condition to remit the property. The Ruling
Official, at his or her discretion, may waive costs and expenses
incident to the forfeiture. The Ruling Official shall forward a copy of
the decision, a memorandum of disposition, and the original releases to
the United States Marshals Service or other property custodian who
shall thereafter release the property to the lienholder; or
(ii) Sale of Property and Payment to Lienholder. Subject to the
provisions of Sec. 9.9(a), upon sale of the property, the lienholder
may receive the payment of a monetary amount up to the sum of the
lienholder's net equity, less the expenses and costs incident to the
forfeiture and sale of the property, and any other monetary conditions
imposed. The Ruling Official, at his or her
[[Page 321]]
discretion, may waive costs and expenses incident to the forfeiture.
(3) If the lienholder does not notify the Ruling Official of the
selection of one of the two options set forth in paragraph (b)(2) of
this section within twenty (20) days of the receipt of notification,
the Ruling Official shall direct the United States Marshal or other
property custodian to sell the property and pay the lienholder an
amount up to the net equity, less the costs and expenses incurred
incident to the forfeiture and sale, and any monetary conditions
imposed. In the event a lienholder subsequently receives a payment of
any kind on the debt owed for which he or she received payment as a
result of the granting of remission or mitigation, the lienholder shall
reimburse the Assets Forfeiture Fund to the extent of the payment
received.
(4) Where the lienholder does not comply with the conditions
imposed upon the release of the property, the property shall be sold
after forfeiture. From the proceeds of the sale, all costs incident to
the forfeiture and sale shall first be deducted, and the balance up to
the net equity, less any monetary conditions, shall be paid to the
lienholder.
Sec. 9.8 Provisions applicable to victims.
The provisions of this section apply to victims of an offense
underlying the forfeiture of property, or of a related offense, who do
not have a present ownership interest in the forfeited property (or, in
the case of multiple victims of an offense, who do not have a present
ownership interest in the forfeited property that is clearly superior
to that of other petitioner victims). The provisions of this section
apply only with respect to property forfeited pursuant to statutes that
explicitly authorize restoration or remission of forfeited property to
victims. Victims who have a superior present legally cognizable
ownership interest in forfeited property may file petitions, as other
owners, subject to the regulations set forth in Sec. 9.7(a). The claims
of such owner victims, like those of any other owners, shall have
priority over the claims of any non-owner victims whose claims are
recognized pursuant to this section.
(a) Qualification to file. A victim, as defined in Sec. 9.2(v), of
an offense that was the underlying basis for the criminal, civil, or
administrative forfeiture of specific property, or a victim of a
related offense, may be granted remission of the forfeiture of that
property, if in addition to complying with the other applicable
provisions of Sec. 9.8, the victim satisfactorily demonstrates that:
(1) A pecuniary loss of a specific amount has been directly caused
by the criminal offense, or related offense, that was the underlying
basis for the forfeiture, and that the loss is supported by documentary
evidence including invoices and receipts;
(2) The pecuniary loss is the direct result of the illegal acts and
is not the result of otherwise lawful acts that were committed in the
course of a criminal offense;
(3) The victim did not knowingly contribute to, participate in,
benefit from, or act in a willfully blind manner towards the commission
of the offense, or related offense, that was the underlying basis of
the forfeiture;
(4) The victim has not in fact been compensated for the wrongful
loss of the property by the perpetrator or others; and
(5) The victim does not have recourse reasonably available to other
assets from which to obtain compensation for the wrongful loss of the
property.
(b) Pecuniary loss. The amount of the pecuniary loss suffered by a
victim for which remission may be granted is limited to the fair market
value of the property of which the victim was deprived as of the date
of the occurrence of the loss. No allowance shall be made for interest
foregone or for collateral expenses incurred to recover lost property
or to seek other recompense.
(c) Torts. A tort associated with illegal activity that formed the
basis for the forfeiture shall not be a basis for remission, unless it
constitutes the illegal activity itself, nor shall remission be granted
for physical injuries to a petitioner or for damage to a petitioner's
property.
(d) Denial of petition. In the exercise of his or her discretion,
the Ruling Official may decline to grant remission where:
(1) There is substantial difficulty in calculating the pecuniary
loss incurred by the victim or victims;
(2) The amount of the remission, if granted, would be small
compared with the amount of expenses incurred by the government in
determining whether to grant remission; or
(3) The total number of victims is large and the monetary amount of
the remission so small as to make its granting impractical.
(e) Pro rata basis. In granting remission to multiple victims
pursuant to this section, the Ruling Official should generally grant
remission on a pro rata basis to recognized victims when petitions
cannot be granted in full due to the limited value of the forfeited
property. However, the Ruling Official may consider, among others, the
following factors in establishing appropriate priorities in individual
cases:
(1) The specificity and reliability of the evidence establishing a
loss;
(2) The fact that a particular victim is suffering an extreme
financial hardship;
(3) The fact that a particular victim has cooperated with the
government in the investigation related to the forfeiture or to a
related persecution or civil action; and
(4) In the case of petitions filed by multiple victims of related
offenses, the fact that a particular victim is a victim of the offense
underlying the forfeiture.
(f) Reimbursement. Any petitioner granted remission pursuant to
this part shall reimburse the Assets Forfeiture Fund for the amount
received to the extent the individual later receives compensation for
the loss of the property from any other source. The petitioner shall
surrender the reimbursement upon payment from any secondary source.
(g) Claims of financial institution regulatory agencies. In cases
involving property forfeitable under 18 U.S.C. 981(a)(1)(C) or
(a)(1)(D), the Ruling Official may decline to grant a petition filed by
a petitioner in whole or in part due to the lack of sufficient
forfeitable funds to satisfy both the petition and claims of the
financial institution regulatory agencies pursuant to 18 U.S.C.
981(e)(3) or (7). Generally, claims of financial institution regulatory
agencies pursuant to 18 U.S.C. 981(e)(3) or (7) shall take priority
over claims of victims.
Sec. 9.9 Miscellaneous Provisions.
(a) Priority of payment. Except where otherwise provided in this
part, costs incurred by the United States Marshals Service and other
agencies participating in the forfeiture that were incident to the
forfeiture, sale, or other disposition of the property shall be
deducted from the amount available for remission or mitigation. Such
costs include, but are not limited to, court costs, storage costs,
brokerage and other sales-related costs, the amount of any liens and
associated costs paid by the government on the property, costs incurred
in paying the ordinary and necessary expenses of a business seized for
forfeiture, awards for information as authorized by statute, expenses
of trustees or other assistants pursuant to paragraph (c) of this
section, investigative or prosecutive costs specially incurred incident
to the particular forfeiture, and costs incurred incident to the
processing of the petition(s) for remission or mitigation.
[[Page 322]]
The remaining balance shall be available for remission or mitigation.
The Ruling Official shall direct the distribution of the remaining
balance in the following order or priority, except that the Ruling
Official may exercise discretion in determining the priority between
petitioners belonging to classes described in paragraphs (a)(3) and (4)
of this section in exceptional circumstances:
(1) Owners;
(2) Lienholders;
(3) Federal financial institution regulatory agencies (pursuant to
paragraph (e) of this section), not constituting owners or lienholders;
and
(4) Victims not constituting owners or lienholders (pursuant to
Sec. 9.8).
(b) Sale or disposition of property prior to ruling. If forfeited
property has been sold or otherwise disposed of prior to a ruling, the
Ruling Official may grant relief in the form of a monetary amount. The
amount realized by the sale of the property is presumed to be the value
of the property. Monetary relief shall not be greater than the
appraised value of the property at the time of seizure and shall not
exceed the amount realized from the sale or other disposition. The
proceeds of the sale shall be distributed as follows:
(1) Payment of the government's expenses incurred incident to the
forfeiture and sale, including court costs and storage charges, if any;
(2) Payment to the petitioner of an amount up to his or her
interest in the property;
(3) Payment to the Assets Forfeiture Fund of all other costs and
expenses incident to the forfeiture;
(4) In the case of victims, payment of any amount up to the amount
of his or her loss; and
(5) Payment of the balance remaining, if any, to the Assets
Forfeiture Fund.
(c) Trustees and other assistants. In the exercise of his or her
discretion, the Ruling Official, with the approval of the Asset
Forfeiture and Money Laundering Section, may use the services of a
trustee, other government official, or appointed contractors to notify
potential petitioners, process petitions, and make recommendations to
the Ruling Official on the distribution of property to petitioners. The
expense for such assistance shall be paid out of the forfeited funds.
(d) Other agencies of the United States. Where another agency of
the United States is entitled to remission or mitigation of forfeited
assets because of an interest that is recognizable under this part or
is eligible for such transfer pursuant to 18 U.S.C. 981(e)(6), such
agency shall request the transfer in writing, in addition to complying
with any applicable provisions of Secs. 9.3 through 9.5. The decision
to make such transfer shall be made in writing by the Ruling Official.
(e) Financial institution regulatory agencies. A Ruling Official
may direct the transfer of property under 18 U.S.C. 981(e) to certain
federal financial institution regulatory agencies or an entity acting
in their behalf, upon receipt of a written request, in lieu of ruling
on a petition for remission or mitigation.
(f) Transfers to foreign governments. A Ruling Official may decline
to grant remission to any petitioner other than an owner or lienholder
so that forfeited assets may be transferred to a foreign government
pursuant to 18 U.S.C. 981(i)(1), 19 U.S.C. 1616a(c)(2), or 21 U.S.C.
881(e)(1)(E).
(g) Filing by attorneys. (1) A petition for remission or mitigation
may be filed by a petitioner or by his or her attorney or legal
guardian. If an attorney files on behalf of the petitioner, the
petition must include a signed and sworn statement by the client-
petitioner stating that:
(i) The attorney has the authority to represent the petitioner in
this proceeding;
(ii) The petitioner has fully reviewed the petition; and
(iii) The petition is truthful and accurate in every respect.
(2) Verbal notification of representation is not acceptable.
Responses and notification of rulings shall not be sent to an attorney
claiming to represent a petitioner unless a written notice of
representation is filed. No extensions of time shall be granted due to
delays in submission of the notice of representation.
(h) Consolidated petitions. At the discretion of the Ruling
Official in individual cases, a petition may be filed by one petitioner
on behalf of other petitioners, provided the petitions are based on
similar underlying facts, and the petitioner who files the petition has
written authority to do so on behalf of the other petitioners. This
authority must be either expressed in documents giving the petitioner
the authority to file petitions for remission, or reasonably implied
from documents giving the petitioner express authority to file claims
or lawsuits related to the course of conduct in question on behalf of
these petitioners. An insurer or an administrator of an employee
benefit plan, for example, which itself has standing to file a petition
as a ``victim'' within the meaning of Sec. 9.2(v), may also file a
petition on behalf of its insured or plan beneficiaries for any claims
they may have based on co-payments made to the perpetrator of the
offense underlying the forfeiture or the perpetrator of a ``related
offense'' within the meaning of Sec. 9.2(s), if the authority to file
claims or lawsuits is contained in the document or documents
establishing the plan. Where such a petition is filed, any amounts
granted as a remission must be transferred to the other petitioners,
not the party filing the petition; although, in his or her discretion,
the Ruling Official may use the actual petitioner as an intermediary
for transferring the amounts authorized as a remission to the other
petitioners.
Dated: December 19, 1996.
Janet Reno,
Attorney General.
[FR Doc. 97-117 Filed 1-2-97; 8:45 am]
BILLING CODE 4410-14-M
