28 C.F.R. § 9.5

Criteria governing administrative and judicial remission and mitigation

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(a) Remission. (1) The ruling official shall not grant remission of a forfeiture unless the petitioner establishes that the petitioner has a valid, good faith, and legally cognizable interest in the seized property as owner or lienholder as defined in this part and is an innocent owner within the meaning of 18 U.S.C. 983(d)(2)(A) or 983(d)(3)(A).

(2) For purposes of paragraph (a)(1) of this section, the knowledge and responsibilities of a petitioner's representative, agent, or employee are imputed to the petitioner where the representative, agent, or employee was acting in the course of his or her employment and in furtherance of the petitioner's business.

(3) The petitioner has the burden of establishing the basis for granting a petition for remission or mitigation of forfeited property, a restoration of proceeds of sale or appraised value of forfeited property, or a reconsideration of a denial of such a petition. Failure to provide information or documents and to submit to interviews, as requested, may result in a denial of the petition.

(4) The ruling official shall presume a valid forfeiture and shall not consider whether the evidence is sufficient to support the forfeiture.

(5) Willful, materially false statements or information made or furnished by the petitioner in support of a petition for remission or mitigation of forfeited property, the restoration of proceeds or appraised value of forfeited property, or the reconsideration of a denial of any such petition, shall be grounds for denial of such petition and possible prosecution for the filing of false statements.

(b) Mitigation. (1) The ruling official may grant mitigation to a party not involved in the commission of the offense underlying forfeiture:

(i) Where the petitioner has not met the minimum conditions for remission, but the ruling official finds that some relief should be granted to avoid extreme hardship, and that return of the property combined with imposition of monetary or other conditions of mitigation in lieu of a complete forfeiture will promote the interest of justice and will not diminish the deterrent effect of the law. Extenuating circumstances justifying such a finding include those circumstances that reduce the responsibility of the petitioner for knowledge of the illegal activity, knowledge of the criminal record of a user of the property, or failure to take reasonable steps to prevent the illegal use or acquisition by another for some reason, such as a reasonable fear of reprisal; or

(ii) Where the minimum standards for remission have been satisfied but the overall circumstances are such that, in the opinion of the ruling official, complete relief is not warranted.

(2) The ruling official may in his or her discretion grant mitigation to a party involved in the commission of the offense underlying the forfeiture where certain mitigating factors exist, including, but not limited to: the lack of a prior record or evidence of similar criminal conduct; if the violation does not include drug distribution, manufacturing, or importation, the fact that the violator has taken steps, such as drug treatment, to prevent further criminal conduct; the fact that the violation was minimal and was not part of a larger criminal scheme; the fact that the violator has cooperated with federal, state, or local investigations relating to the criminal conduct underlying the forfeiture; or the fact that complete forfeiture of an asset is not necessary to achieve the legitimate purposes of forfeiture.

(3) Mitigation may take the form of a monetary condition or the imposition of other conditions relating to the continued use of the property, and the return of the property, in addition to the imposition of any other costs that would be chargeable as a condition to remission. This monetary condition is considered as an item of cost payable by the petitioner, and shall be deposited into the Assets Forfeiture Fund as an amount realized from forfeiture in accordance with the applicable statute. If the petitioner fails to accept the ruling official's mitigation decision or any of its conditions, or fails to pay the monetary amount within 20 days of the receipt of the decision, the property shall be sold, and the monetary amount imposed and other costs chargeable as a condition to mitigation shall be subtracted from the proceeds of the sale before transmitting the remainder to the petitioner.

Notes of Decisions

Cited in 34 cases (2 in the last 5 years), 1974–2023 · leading case: Martin Onwubiko v. United States, 969 F.2d 1392 (2d Cir. 1992).

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Martin Onwubiko v. United States, 969 F.2d 1392 (2d Cir. 1992). · cites it 4× “” The DEA responded to Onwubiko’s petition on April 12, 1991, stating: The referenced regulations [ 28 C.F.R. § 9.5 (b) & (c)] explicitly prohibit remission of a forfeiture unless the petitioner establishes: a valid, good faith interest in the seized property as owner or…”

Starwood Mgmt., LLC by & Through Norma Gonzalez v. Don Swaim & Rose Walker, L.L.P., 530 S.W.3d 673 (Tex. 2017). “See 28 C.F.R. § 9.5 . But even if a petitioner such as Starwood establishes both, the DEA has complete discretion to return or retain the aircraft.”

United States v. One 1972 Chevrolet Blazer Veh., S/n Cke182f185579, 563 F.2d 1386 (9th Cir. 1977). · cites it 2× “28 C.F.R. § 9.5 (c)(1), (2). The appellant in his affidavit-claim of owner stated facts which partially justified his claim of an interest in the Blazer.”

Infante v. Drug Enf't Admin., 938 F. Supp. 1149 (E.D.N.Y 1996). · cites it 4× “On September 6, 1990, the DEA denied the petition for remission, finding that the petition did not meet the requirements set forth in 28 C.F.R. § 9.5 (b) and (c). 6 The denial indicated that the plaintiff could file a request for reconsideration within 10 days, but that only one…”

Jeffrey M. Scarabin v. Drug Enf't Admin., 966 F.2d 989 (5th Cir. 1992). “7 We rechar-acterized Scarabin’s petition for expedited release as a petition for remission or mitigation under 28 C.F.R. § 9.5 . We then invoked a narrow exception to the general rule that federal courts do not have jurisdiction to review the merits of a forfeiture decision,…”

United States v. $2,350,000.00 in Lieu of One Parcel of Prop. Located at 895 Lake Avenue Greenwich, 718 F. Supp. 2d 215 (D. Conn. 2010). “These entities determined, pursuant to 28 C.F.R. § 9.5 , that the Receiver-Claimants were justly entitled to the Defendant Property and that the Insurance Companies did not knowingly contribute to, participate in, benefit from or act in a willfully blind manner towards the…”

UNITED STATES of Am., Plaintiff-Appellee, v. Jackson WONG, Defendant-Appellant, 62 F.3d 1212 (9th Cir. 1995). “The remission or mitigation process under § 1618 is not a formal proceeding seeking to punish the petitioner.”

Burman v. United States, 472 F. Supp. 2d 665 (D. Maryland 2007). · cites it 2× “28 C.F.R. § 9.5 (a). Claimants who are not entitled to remission but who can show that they were not involved in the underlying offense' and that the forfeiture would cause them extreme hardship may be entitled to mitigation.”

United States v. Eleven Vehs., 836 F. Supp. 1147 (E.D. Pa. 1993). “§ 1618 (authorizing remission; incorporated into § 981(d) by reference); 28 C.F.R. § 9.5 (outlining the criteria governing remission).”

United States v. Chan, 22 F. Supp. 2d 1123 (D. Haw. 1998). · cites it 2× “DOJ regulations provide for remission of forfeited proceeds when a person “has a val *1126 id, good faith, and legally cognizable interest in the seized property as owner or lienholder” 28 C.F.R. § 9.5 (a). If a person who was not involved in the offense underlying the…”

United States v. Branham, 97 F.3d 835 (6th Cir. 1996). “” See 28 C.F.R. § 9.5 ; United States v. Von Neumann, 474 U.”

Torres v. $36,256.80 U.S. Currency, 827 F. Supp. 197 (S.D.N.Y. 1993). · cites it 2× “Pursuant to DEA regulations, to request "remission" (the DEA calls this a "pardon”) of the forfeiture [the claimant must submit] a petition to the DEA’s Asset Forfeiture Section within 30 days of receipt of notice.”

Show all 34 citing cases →

— 28 C.F.R. § 9.5(a) — 1 case

Martin Onwubiko v. United States, 969 F.2d 1392 (2d Cir. 1992). “” The DEA responded to Onwubiko’s petition on April 12, 1991, stating: The referenced regulations [ 28 C.F.R. § 9.5 (b) & (c)] explicitly prohibit remission of a forfeiture unless the petitioner establishes: a valid, good faith interest in the seized property as owner or…”

— 28 C.F.R. § 9.5(b) — 1 case

United States v. 8.4 Acres of Land, 648 F. Supp. 79 (D.S.C. 1986).

— 28 C.F.R. § 9.5(c) — 1 case

FORD MOTOR CR. CO. v. Alachua Trading Co., Inc., 531 So. 2d 982 (Fla. 1st DCA 1988).

— 28 C.F.R. § 9.5(c)(1) — 2 cases

United States v. One 1972 Mercedes-Benz 250, 545 F.2d 1233 (9th Cir. 1976).

No. 75-1845, 545 F.2d 1233 (9th Cir. 1977).

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