         Transfers of Forfeited Property to State and Local Law
                         Enforcement Agencies


 S ectio n 9 8 1 (e)(2 ) o f title 18 d o e s not prevent a state or local law enforcem ent agency from
     retran sferrin g to o th e r state o r local governm ent agencies property th at has b een transferred
     fro m th e fed eral governm ent pursuant to th at section. H ow ever, the A ttorney G eneral has
     a u th o rity u n d er section 981(e) to prevent such a further transfer by im posing a contrary term
     o f co n d itio n on the initial tran sfer from the federal governm ent.


 S ectio n 8 8 1 (e) o f title 21 does n o t prevent a state or local law enforcem ent agency from
     retran sferrin g to o th e r state or lo c a l governm ent agencies property th at has been transferred
     fro m th e fed eral governm ent p u rsu an t to that section. H ow ever, the A ttorney G eneral has
     au th o rity u n d er section 881(e) to forbid a furth er transfer if he determ ines that to do so
     w o u ld “serv e to encourage further cooperation betw een the recipient S tate o r local agency
     and F ed eral law enforcem ent ag en cies.”


                                                                                      January 23, 1992

     M   em orandum        O   p in io n f o r t h e   A c t in g D   eputy   A   ttorney   G   eneral



    This is in response to the request from your office for our advice whether
 federal law prevents a state or local law enforcement agency from transfer­
ring to other state or local agencies property that has been transferred from
the federal government pursuant to 18 U.S.C. § 981(e)(2), where the other
agency intends to use the property for purposes not directly related to law
enforcement, and to the subsequent request for our advice whether such
transfers are prohibited with respect to property that has been transferred
pursuant to 21 U.S.C. § 881(e)(1)(A).1 We conclude that section 981(e)(2)
of title 18 does not prevent a state or local law enforcement agency from
making such a further transfer, but that the Attorney General, pursuant to his
authority under 18 U.S.C. § 981(e), is authorized to prevent such a further
transfer by imposing a contrary term of condition on the initial transfer from
the federal government. We also conclude that section 881(e) o f title 21
does not prevent a state or local law enforcement agency from making such
a further transfer, but that the Attorney General is authorized to forbid a
further transfer if he determines that to do so would “serve to encourage
further cooperation between the recipient State or local agency and Federal
law enforcement agencies.” 21 U.S.C. § 881(e)(3)(B),
    Section 981 was enacted as part o f the Anti-Drug Abuse Act o f 1986,
Pub. L. No. 99-570, § 1366, 100 Stat. 3207, 3207-35. Though the statute
has been amended several times since enactment, the relevant features gov­
erning the transfer o f forfeited property to state and local law enforcement

  1 We do not address whether any particular state or local agency would have the authority, under local
law, to transfer property to other state agencies. T hat would not. o f course, be an issue of federal law
and would likely vary from jurisdiction to jurisdiction.

                                                       38
agencies have remained unchanged. Section 981(e) authorizes the Attorney
General “to transfer [property forfeited pursuant to this section] on such
terms and conditions as he may determine . . . to any State or local law
enforcement agency which participated directly in any of the acts which led
to the seizure or forfeiture of the property.” That section further requires the
Attorney General to ensure that the amount transferred to the state or local
law enforcement agency “reflect generally the contribution of any such agency
participating directly in any of the acts which led to the seizure or forfeiture
of such property.” Finally, the section provides that a decision o f the Attor­
ney General to transfer forfeited property to a state or local law enforcement
agency “shall not be subject to review.”
   Nothing in the text of section 981 requires that a state or local agency use
transferred property for law enforcement purposes or even that the agency
retain the property rather than transferring it to another agency.2 Section
981 does provide the Attorney General with the discretionary authority to
impose terms and conditions on the transfer of forfeited property and, pursu­
ant to this power, the Attorney General may impose either or both o f the
conditions that the state or local agency use the property for law enforce­
ment purposes and that it not transfer the property. The Attorney General
also may transfer the property with no conditions on its use, thereby allow­
ing the state or local agency to retransfer the property or to make any other
use of the property.
   With respect to property forfeited under the control and enforcement pro­
visions of the drug laws (21 U.S.C. §§ 801-904), 21 U.S.C. § 881(e)(1)(A)
provides that the Attorney General may:

          retain the property for official use or, in the manner provided
          with respect to transfers under section 1616a of title 19, trans­
          fer the property to any Federal agency or to any State or local
          law enforcement agency which participated directly in the sei­
          zure or forfeiture of the property.

In exercising his transfer authority under section 881(e)(1), the Attorney
General is required, pursuant to section 881(e)(3), to assure that the property
transferred to the state or local agency:

          (A) has a value that bears a reasonable relationship to the
          degree of direct participation of the State or local agency in the
          law enforcement effort resulting in the forfeiture, . . . ; and

  !There is little legislative history concerning the Attorney General’s power to transfer forfeited prop­
erty to state or local law enforcement agencies. The relevant Senate and House reports m ention the
power but offer no explanation or elaboration. See S. Rep. No. 433, 99th Cong., 2d Sess. 23, 24, 29-31
(1986); H.R. Rep. No. 855, 99th Cong., 2d Sess., pt. I, at 4, 18, 31-32 (1986). No conference report
was prepared for the final legislation. Nothing in this brief legislative history contradicts our conclu­
sions.

                                                   39
           (B) will serve to encourage further cooperation between the re­
           cipient state or local agency and Federal law enforcement agencies.
21 U.S.C. § 881(e)(3).
    As with section 981, nothing in the text o f section 881(e)(1)(A) requires
that the state or local agency use transferred property for law enforcement
purposes or that the agency retain the property rather than transfer it to
another agency. In fact, while section 881(e)(1)(E) requires that property
retained by the Attorney General must be retained “for official use,” no
sim ilar restriction appears with respect to the property transferred to state or
local agencies.3
    The text of section 881(e)(1)(A) does not expressly contain discretionary
authority for the Attorney General to impose terms and conditions on the
transferred property. Section 881(e)(3)(B) does, however, require the Attor­
ney General to assure that the transferred property serve to encourage further
state-federal cooperation. That requirement provides a basis for imposing
conditions restricting the use o f the forfeited property if the Attorney Gen­
eral determ ines that such conditions would be appropriate to further
cooperation. For example, the Attorney General might determine that re­
quiring the state or local agency to retain the property and to use it in future
law enforcement activities is an appropriate means of furthering state-fed-
eral cooperation. Alternatively, the Attorney General might determine that
transferring forfeited property with no restrictions or conditions simply as a
reward for the state or local agency’s efforts would be an appropriate means
o f assuring further cooperation. We emphasize that, while requiring the
Attorney General to assure further cooperation, section 881(e)(3) does not
require any particular means for doing so. The Attorney General may, there­
fore, choose any appropriate means to accomplish the statutory objective.

                                                               JOHN C. HARRISON
                                                       D eputy Assistant Attorney General
                                                            Office o f Legal Counsel


   3T he Attorney G eneral’s authority to transfer forfeited property to state and local law enforcem ent
agencies was added to section 881 by the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-
743, tit. II, § 309, 98 Stat. 1837, 2051-S2. The Senate report on that legislation explained the purpose
behind the am endm ent as follows:
       [The am endm ent] provides that the Attorney General may transfer drug-related property for­
       feited under title 21, U nited States C ode, to another Federal agency, or to an assisting State or
       local a g e n c y .. . . Often State and local law enforcement agencies give significant assistance
       in drug investigations that result in forfeitures to th e United States. However, there is pres­
       ently no m echanism whereby the forfeited property may be directly transferred to these agen­
       cies fo r their official use. This am endm ent. . . will permit such transfers and thereby should
       enhance im portant cooperation betw een Federal, State, and local law enforcem ent agencies
       in drug investigations.
S. Rep. No. 22S, 98th Cong., 2d Sess. 21 6 (1983) (em phasis added). Our interpretation of section
881(e)(1)(A ) is consistent with this passage from the legislative history. Section 8 8 1(e)(1)(A) does allow
forfeited property to be transferred to state and local law enforcement agencies for their official use, but
it does not prohibit those agencies from retransferring the property.

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