As a general rule, if property is seized as part of an ongoing federal criminal investigation and the criminal defendants are being prosecuted in federal court—or it is anticipated that a federal prosecution will be pursued—the forfeiture action should be commenced administratively by a federal agency or pursued in federal court regardless of whether a local, state, or federal agency made the seizure. Forfeitures should follow the prosecution for both legal and practical reasons. Parallel state forfeitures can jeopardize the pending federal criminal investigation or prosecution and create unnecessary confusion. Where federal resources are expended on an investigation and state and local law enforcement are assisting in a federal prosecution, federal forfeiture, administrative or judicial, should be pursued absent extraordinary circumstances. The efforts of state and local law enforcement should be recognized through formal equitable sharing rather than a division of assets between state and federal forfeiture.

However, certain circumstances may make state forfeiture appropriate. These circumstances include but are not limited to the following:

(1) a state forfeiture is commenced on the seized asset before the federal agency joins the investigation and has either been concluded or substantial litigation has been conducted;

(2) an existing memorandum of understanding sets forth a different procedure for the handling of the seizures and forfeitures;

(3) the asset was seized by a state or local agency and state law requires a turnover order. A decision not to seek the turnover order must be coordinated with agency counsel and the federal prosecuting official; if an adverse order is entered by the state court, agency counsel, the federal prosecuting official, and the local prosecuting attorney must participate in deciding how to proceed;

(4) the seized asset does not meet the Department of Justice's minimum monetary thresholds; or

(5) the pertinent federal prosecuting official has reviewed the case, declined to initiate forfeiture proceedings, and approved a referral for state forfeiture.

When a federal agency believes a state forfeiture is appropriate, the referral of an asset for state forfeiture must be discussed with agency counsel and the federal prosecuting official responsible for asset forfeiture.

A federal prosecuting official may decline a prosecution if significant assets have been referred for state prosecution after a determination to seek federal prosecution was made and without the prior consultation discussed above.

If there is a state forfeiture related to a federal criminal prosecution, federal equitable sharing requests and decisions must take into account the entire case, and seizures should be reviewed before equitable sharing recommendations or decisions are made. See Chapter 2 of the Asset Forfeiture Policy Manual ("Preference for Federal Forfeiture").

[new May 2010]