PART 9—REGULATIONS GOVERNING THE REMISSION OR MITIGATION OF ADMINISTRATIVE, CIVIL, AND CRIMINAL FORFEITURES Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1324(b); 18 U.S.C. 981, 983, 3051; 19 U.S.C. 1606, 1607, 1608, 1610, 1612(b), 1613, 1618; 21 U.S.C. 822, 871, 872, 880, 881, 883, 958, 965; 28 U.S.C. 509, 510; Pub. L. 100-690, sec. 6079. Source: 77 FR 56108, Sept. 12, 2012, unless otherwise noted. § 9.1 Purpose, authority, and scope. (a) Purpose. (b) Authority to grant remission and mitigation. (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. (3) The powers and responsibilities delegated by this part may be redelegated to attorneys or managers working under the supervision of the designated officials. (c) Scope. (d) 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. This part applies to all forfeiture actions commenced on or after October 12, 2012. § 9.2 Definitions. As used in this part: Administrative forfeiture Administrative forfeiture Appraised value Assets Forfeiture Fund Attorney General Beneficial owner Chief, Asset Forfeiture and Money Laundering Section, Chief, General creditor Judgment creditor Judicial forfeiture Lienholder (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., Net equity Nonjudicial forfeiture Owner Person Petition Petitioner Property Record Related crime Related offense (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. Ruling official Seizing agency Victim Violator § 9.3 Petitions in administrative forfeiture cases. (a) Notice of seizure. (b) Persons who may file. (i) Purposely leaves the jurisdiction of the United States; (ii) Declines to enter or reenter the United States to submit to its jurisdiction; or (iii) Otherwise evades the jurisdiction of the court in which a criminal matter is pending against the person. (2) Paragraph (b)(1) of this section applies to a petition filed by a corporation if any majority shareholder, or individual filing the claim on behalf of the corporation: (i) Purposely leaves the jurisdiction of the United States; (ii) Declines to enter or reenter the United States to submit to its jurisdiction; or (iii) Otherwise evades the jurisdiction of the court in which a criminal matter is pending against the person. (c) Contents of petition. (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. Such documentation includes evidence establishing the source of funds for seized currency or the source of funds used to purchase the seized asset. (2) Any factual recitation or documentation of any type in a petition must be supported by a declaration under penalty of perjury that meets the requirements of 28 U.S.C. 1746. (d) Releases. (e) Filing petition with agency. (2) If the notice of seizure does not provide an official address, the petition shall be addressed to the appropriate federal agency as follows: (i)(A) DEA: All submissions must be filed with the Forfeiture Counsel, Asset Forfeiture Section, Office of Chief Counsel, Drug Enforcement Administration, HQS Forfeiture Response, P.O. Box 1475, Quantico, Virginia 22134-1475. (B) Correspondence via private delivery must be filed with The Forfeiture Counsel, Asset Forfeiture Section (CCF), Office of Chief Counsel, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, Virginia 22152. (C) Submission by facsimile or other electronic means will not be accepted. (ii)(A) FBI: All submissions must be filed with the FBI Special Agent in Charge at the Field Office that seized the property. (B) Submission by facsimile or other electronic means will not be accepted. (iii)(A) ATF: All submissions must be filed with the Office of Chief Counsel, Attention: Forfeiture Counsel, 99 New York Avenue NE., Washington, DC 20226. (B) Submission by facsimile or other electronic means will not be accepted. (f) Agency investigation. (g) Ruling. (h) Petitions granted. (i) Petitions denied. (j) Request for reconsideration. (i) It is postmarked or received by the office of the ruling official within 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. (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 90 days of the date the property is sold or otherwise disposed of. § 9.4 Petitions in judicial forfeiture cases. (a) Notice of seizure. (b) Persons who may file. (c) Contents of petition. (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 declaration under penalty of perjury that meets the requirements of 28 U.S.C. 1746. (d) Releases. (e) Filing petition with Department of Justice. (f) Agency investigation and recommendation; U.S. Attorney's recommendation. (g) Ruling. (h) Petitions under Internal Revenue Service liquor laws. (i) Petitions granted. (j) Petitions denied. (k) Request for reconsideration. (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 10 days from the receipt of the notice of denial of the petition by the petitioner; (ii) A copy of the request is also received by the appropriate U.S. Attorney within 10 days of the receipt of the denial by the petitioner; and (iii) 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 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 request for reconsideration is not received within the prescribed period, the USMS or other property custodian may dispose of the property. (l) Restoration of proceeds from sale. (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 90 days of the date the property was sold or otherwise disposed of. § 9.5 Criteria governing administrative and judicial remission and mitigation. (a) Remission. (2) For purposes of paragraph (a)(1) of this section, the knowledge and responsibilities of a petitioner's representative, agent, or employee 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. (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 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 official 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, 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 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. § 9.6 Special rules for specific petitioners. (a) General creditors. (b) Rival claimants. (c) Voluntary bailments. (d) Lessors. (e) Straw owners. (f) Judgment creditors. (i) The judgment was duly recorded before the seizure of the property for forfeiture; (ii) Under applicable state or 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 local law ( e.g., (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. § 9.7 Terms and conditions of remission and mitigation. (a) Owners. (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. (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 or 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. (ii) Sale of property and payment to lienholder. (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 20 days of the receipt of notification, the ruling official shall direct the USMS 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. § 9.8 Remission procedures for victims. This section applies 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). This section applies only with respect to property forfeited pursuant to statutes that explicitly authorize restoration or remission of forfeited property to victims. A victim requesting remission under this section may concurrently request remission as an owner, pursuant to the regulations set forth in §§ 9.3, 9.4, and 9.7. The claims of victims granted remission as both an owner and victim shall, like claims of other owners, have priority over the claims of any non-owner victims whose claims are recognized under this section. (a) Remission procedure for victims. Where to file. (2) Time of decision. (3) Request for reconsideration. (b) Qualification to file. (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. (c) Pecuniary loss. (d) Torts. (e) Denial of petition. (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. (f) Pro rata basis. (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 prosecution 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. (g) Reimbursement. (h) Claims of financial institution regulatory agencies. (i) Amount of remission. § 9.9 Miscellaneous provisions. (a) Priority of payment. (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 § 9.8). (b) Sale or disposition of property prior to ruling. (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. (d) Other agencies of the United States. (e) Financial institution regulatory agencies. (f) Transfers to foreign governments. (g) Filing by attorneys. (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.