Use of Asset Forfeiture in Structuring Offenses Restricted by New DOJ Policy

Policy Limits Seizing Cash Deposited in a Way to Avoid Triggering Bank Reports to Most Serious Cases

As part of the Department of Justice’s comprehensive, ongoing review of the asset forfeiture program, Attorney General Eric Holder today issued a policy focusing the use of asset forfeiture authorities on the most serious illegal banking transactions, restricting civil or criminal forfeiture seizures for structuring until after a defendant has been criminally charged or has been found to have engaged in additional criminal activity, in most cases.

Structuring generally occurs when, instead of conducting a single transaction in currency in an amount that would require a report to be filed or record made by a domestic financial institution, the violator conducts a series of currency transactions, willfully keeping each individual transaction at an amount below applicable thresholds to evade reporting or recording.  In addition to being a stand-alone offense, structuring is a crime that often occurs in connection with other criminal activity.

Under the new policy, in the absence of criminal charges, judicially authorized warrants to seize bank accounts involved in structuring can only be obtained if the prosecutor first develops probable cause of additional federal criminal activity and that determination is approved by a supervisor.  Otherwise, a prosecutor may ask a judge to issue a seizure warrant only if either the U.S. Attorney or the Chief of the Criminal Division’s Asset Forfeiture and Money Laundering Section personally determines that seizure would serve a compelling law enforcement interest.

In addition, the new policy imposes important protections after a seizure has taken place.  The policy requires a prosecutor to promptly direct a seizing agency to return funds if the prosecutor determines that there is insufficient admissible evidence to prevail in a criminal or civil trial.  The policy also imposes a 150-day deadline to file a criminal indictment or civil complaint against the seized funds, or otherwise directs a return of the full amount of the seized funds.  Finally, the policy requires a formal, written settlement agreement vetted by a federal prosecutor for settlements of structuring offenses.

This new policy is the most recent result of the department’s ongoing review of the Asset Forfeiture Program to ensure that asset forfeiture – a critical law enforcement tool – can continue to be used to appropriately take the profits out of crime and return assets to victims, all while safeguarding civil liberties. 

The policy was developed by the Asset Forfeiture and Money Laundering Section of the Criminal Division and the Attorney General’s Advisory Committee of U.S. Attorneys.  The policy applies to all Department of Justice attorneys.

Attorney General's Memorandum and the Structuring Policy Directive