As mentioned in subsection 9.7.10.3.1 above, some countries have specific and strict laws regarding ownership of land in their country. Although a court in the United States can issue a valid court order for an asset located in another country, it is invalid without the proper assistance from that country. Similarly, a foreign court could issue an order for property located in the United States, but it too would be ineffective without cooperation from the United States Government.

An MLAT or other type of agreement between countries would normally specify the level of cooperation that will be exchanged.

After contacting OIA, they will either assist you in the preparation of an MLAT or advise you of which method is best to obtain the assistance that is needed.

Once assets forfeitable under United States laws have been traced overseas, the United States must consider how to advance the forfeiture process, while, at the same time, addressing the legal requirements of the country where the assets are located.

Pursuant to 28 USC §1355(b)(2), the United States courts are vested with extraterritorial jurisdiction and venue over assets located abroad that are subject to civil forfeiture. This section is particularly useful in situations where the foreign country in question cannot forfeit the property under its own laws, but may be able to take other steps that could assist the United States in its forfeiture effort. In this type of case, once the asset has been forfeited in the United States, the final civil forfeiture judgment would be transmitted to the foreign country for enforcement or repatriation of the assets.

Under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 18 USC §981(b)(3) was amended to authorize Federal courts to issue seizure warrants and enter restraining orders against foreign based property, should the requested country require such orders entered by a United States court to facilitate the restraint. The request would then be transmitted to the central authority of the foreign government for service in accordance with the treaty or agreement in effect. The Office of International Affairs and AFMLS will determine whether the foreign country where the assets are located can assist in the US action.

In both civil and criminal forfeiture cases, the United States will often seek repatriation of the property for forfeiture. In fact, 21 USC §853(e)(4) expressly authorizes courts to direct a defendant to return any property that may be seized and forfeited, and to deposit that property pending trial, in the court's registry, or with the United States Marshal Service, or the Secretary of the Treasury pending a determination of its forfeitability. This can be accomplished through the cooperation of the defendant who agrees to forfeit the property as part of a plea agreement.

In some situations, the defendant can appoint someone to represent him/her with the repatriation of the assets and bring them into the United States jurisdiction.

In other situations, the United States might need to request the foreign jurisdiction to sell the property or repatriate it for forfeiture. If repatriation is not possible, the United States might be able to assist the foreign government in forfeiting the property under their laws by structuring the plea agreement so that the defendant is required to cooperate with the foreign authorities in their own law enforcement efforts.

Similarly, where an explicit admission regarding the illicit source of the property will enable the foreign government to obtain a forfeiture order, the plea agreement might also contain an admission by the defendant that the foreign based property constitutes proceeds of the illegal conduct that is alleged.

The Department of Justice, Criminal Division, Office of International Affairs, is the Competent Authority for the United States for all legal assistance agreements. They will be the primary focal point for providing assistance in writing and submitting a request with another country. They ensure that the treaty process is followed.

The Department of Justice, Criminal Division, Asset Forfeiture Money Laundering Section will be involved in any MLAT or other agreement that includes provisions for seizure, forfeiture, and/or sharing with another government. The Asset Forfeiture Money Laundering Section not only works closely with OIA and with the State Department in situations where an agreement exists, but they will also work directly with a foreign country where an MLAT or agreement is not in effect.

Once you have identified and located a forfeitable asset that is in a foreign country, a request for assistance must be submitted. Typically, this will be made under an existing treaty, convention, Executive Agreement, or Letter Rogatory. Communication with OIA will usually begin with the AUSA that is in charge of the investigation. The Asset Forfeiture Money Laundering Section will also be involved early in the process. Within CI, you should first contact your field office AFC, who will begin the process of pre-seizure planning. A PI or SCI with approved seizure investigative activity should also be opened, as soon as it is apparent that a seizure action might take place. You should also contact International Operations using the procedures outlined in IRM 9.4.4. International Operations will place you in contact with the Attache' responsible for the country where the asset is located. The request to a foreign country will be made in accordance with the statutes cited in subsection 9.7.10.3.4.2 above.

The other option that exists is to obtain the voluntary cooperation of the defendant, as is discussed in subsection 9.7.10.3.4.3 above. Having the asset brought back into the country without having to involve the foreign government is often times the quickest method. For example, if a bank account is involved, the defendant can arrange for the funds to be transferred back into an account in the United States. If real property is involved, the defendant can appoint someone designated by the government to act as trustee on his/her behalf. The property could be sold and then those proceeds would be subject to forfeiture. Your AFC will be able to assist in making those arrangements. Also, whenever soliciting the cooperation of a defendant, be sure to require the defendant to identify all of the foreign assets and their origin, admit that the assets are criminal proceeds/instrumentalities, etc., commit to assisting in the repatriation, and to not contest the forfeiture action in the United States or abroad.

When Congress enacted Section 319 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), it gave extraordinary powers to the United States government in obtaining bank records and seeking property subject to forfeiture that is on deposit in foreign banks where the foreign bank maintains a correspondent bank account in the United States. Such foreign banks now have to appoint a representative to accept government subpoenas for their bank records, irrespective of foreign secrecy laws and the formal international assistance process.

As with the other actions explained above, coordination with OIA will be required. Depending on the circumstances, assistance from AFMLS might also be involved. In some cases, testimony from the case agent might be required in the foreign country that is taking the forfeiture action. The Office of International Affairs will arrange for the testimony, but arrangements for the travel will have to be coordinated with International Operations. If the asset is forfeited in the foreign country, they will likely arrange for the disposition or sale of the asset and the net proceeds will be forwarded to the United States.

In most cases, the funds that result from the forfeiture will be wire transferred to the United States under the order of the foreign government involved. This matter will need coordination with both OIA, who will transmit the necessary information for you, and the Treasury Executive Office of Asset Forfeiture (TEOAF), who will be receiving the funds. The field office AFC will arrange for the receipt of the funds and assist in coordinating the transfer of the funds into the United States.

The procedure for obtaining a restraining order is set forth in 18 USC §983(j), which provides for a contested hearing with notice to persons having an interest in the property. The restraining order may remain in effect until the conclusion of the foreign proceedings and the receipt of the final order judgment.

Pursuant to 28 USC §2467, the United States, on behalf of a foreign nation, can seek the registration and enforcement of foreign forfeiture judgments that are rendered in connection with any violation of foreign law. This is done in situations where the foreign violation would constitute a violation of an offense for which property could be forfeited under Federal law, had the offense been committed in the United States. A foreign country might also request assistance in identifying and locating forfeitable assets or in assisting in their investigation. These requests would come to the United States Attorney's Office through the office of OIA. Criminal Investigation involvement in this type of situation would likely be minimal.

The procedures for obtaining a request for sharing from a foreign government differ from the normal procedures for domestic sharing. Foreign governments are not required to complete Form TD F 92–22.46, Request for Transfer of Property Seized/Forfeited by a Treasury Agency, and in fact, should not be asked to submit a form; instead, foreign countries may request a share of the property by contacting the United States Ambassador via a letter of request. For practical purposes, the arrangements for sharing will likely be discussed, and possibly agreed upon, during the early stages of the request for information that is submitted by OIA. In many cases, the foreign government will forward their request to OIA at the time the funds are to be repatriated, or shortly thereafter. There is also no time limit imposed on foreign governments for submitting their request.

If a foreign government requests an item to be shared, instead of a share of the proceeds, the costs involved with the asset and the Federal share are to be recovered before the item is transferred to them. If the costs and the equitable share cannot be recovered, then the property should be sold and the proceeds equitably distributed as with any other asset.

Before sharing can be authorized, there must be direct or indirect participation by a foreign government in the seizure and/or forfeiture of the property that is subsequently forfeited under United States law. Additionally, there must be an authorization in an international agreement between the United States and the foreign government to which the property would be transferred. By statute, authorization to share must be granted by either the Attorney General or the Secretary of the Treasury and then approved by the Secretary of State. Unless otherwise directed by the provisions of an MLAT, sharing resulting from all Treasury forfeitures will first be determined by the Director,TEOAF, and then forwarded to the Secretary of Treasury so that it can be forwarded to the Secretary of State for approval.

Unlike domestic sharing, there is no authority for the United States to insist that a foreign country use shared funds or property in any particular manner.

Because of the importance and impact of the United States sharing with another country, there will likely be a ceremony and a press release that accompanies the sharing of funds. All of the agencies that participated in the investigation should be invited to participate in any equitable sharing ceremony or press release where credit for investigative/prosecutorial effort will be recognized.

Although OIA will assist in the process of having the funds transferred from the foreign country, the actual transfer will likely be a wire transfer from a bank in the foreign country to a correspondent bank in the United States. The process of wiring the money into this country should be coordinated by the field office AFC. The AFC will have to provide specific instructions to OIA that will be forwarded through channels to their counterpart in the foreign government. Those instructions will include the routing number, coding, etc. so that the funds can be deposited to the correct account. Since the shared funds would have already been forfeited, they will be deposited directly to the Treasury Forfeiture Fund.