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Alternatives to Seizure

The primary goal of the Asset Forfeiture Program is to deprive criminals of property used or acquired through illegal activities. Depriving an individual of an asset derived from or used in a crime can be achieved by means other than federal forfeiture. Alternatives include: In negative or minimal net proceeds cases, allow the mortgage holder to foreclose on the mortgage, targeting the defendant's equity, if any, for seizure from the escrow account. (This alternative is available only when the relevant statute authorizes the forfeiture of "proceeds" traceable to the property originally subject to forfeiture). In certain high crime areas, low value real estate (e.g., "crack houses") may be removed from the violator by working with the local authorities to have the building condemned based on health and sanitation code violations, or as a public nuisance. In instances where a violator may be behind on local or federal taxes, work with the local or federal taxing authorities to have the property seized for back taxes. Where warranted, allow the violator to post a substitute res bond in lieu of seizure of the asset. In instances where the property is being marketed for sale, allow the sale to continue and seize the net proceeds. (This alternative is available only when the relevant statute authorizes the forfeiture of "proceeds" traceable to the property originally subject to forfeiture). In certain instances, costs and problems can be minimized without necessarily foregoing the forfeiture. Short of deciding to seize a particular asset immediately for forfeiture, there are other possibilities to be considered: In certain circumstances, it may be advisable not to seize and take actual possession of the property, but only to "arrest" it for forfeiture by execution of a Warrant of Arrest under Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims. In some cases, use of court-ordered restraints on property subject to criminal forfeiture (18 U.S.C. § 982(b)(1), 18 U.S.C. § 1963(e), 21 U.S.C. § 853(e)) pending the outcome of a criminal forfeiture case may obviate the need for a parallel civil forfeiture case in which the United States must take custody of the property. An interlocutory sale (19 U.S.C. § 1612) or a stipulated sale may be appropriate, particularly when the projected management costs of the property are disproportionate to the potential sale value at the time of forfeiture. The United States Marshals Service should be consulted to assess the economic feasibility of using an interlocutory or stipulated sale. It may be possible to proceed with the criminal forfeiture of substitute assets where, for example, the defendant has transferred forfeitable property to a third party or commingled the property subject to forfeiture with other property that cannot be divided without difficulty. See 18 U.S.C. §  982(b)(1); 18 U.S.C. § 1963(m); 21 U.S.C.§ 853(p). It may be decided that the forfeiture of a particular asset is not desirable or practical after consideration of the potential problems, the available solutions, the projected costs, and the law enforcement purpose that would be served by the forfeiture should it occur. [cited in Criminal Resource Manual 2203; USAM 9-111.123]