HAR §5-51-82. Recoupment

The attorney general may require recoupment from the prosecuting attorney or seizing agency for non-compliance with these rules, including but not limited to the following: (1) Payment to the forfeiture fund for the amount of currency that was forfeited but not deposited into or missing from the forfeiture fund; (2) Payment to the forfeiture fund for any costs related to the value of damaged or missing property; (3) Payment to the forfeiture fund as reimbursement for any unauthorized release or return of subject property, or any loss of forfeited property, in the amount of the total value of the released or lost property; and (4) Payment to the forfeiture fund for the reimbursement of shipping or transport costs of any property for which a petition has been filed and returned or released to any owner or interested party without the required approval of the attorney general. [Eff 1/17/2020] (Auth: HRS §712A-10) (Imp: HRS §§712A-1, 712A-10) 25 # DEPARTMENT OF THE ATTORNEY GENERAL Chapter 5-51. Hawaii Administrative Rules, on the summary page dated December 31, 2019, was adopted on December 31, 2019, pursuant to section 712A-10, Hawaii Revised Statutes. The adoption of chapter 5-51 shall take effect on January 17, 2020. Clare E. Connors Attorney General Date: December 31, 2019 APPROVED AS TO FORM: Deputy Attorney General 26 # Appendix A (National Code of Professional Conduct for Asset Forfeiture) # APPENDIX A: # National Code of Professional Conduct for Asset Forfeiture 1. Law enforcement is the principal objective of forfeiture. Potential revenue must not be allowed to jeopardize the effective investigation and prosecution of criminal offenses, officer safety, the integrity of ongoing investigations, or the due process rights of citizens. 2. The Constitution and Federal Statutes prohibit the improper use of personal characteristics such as race, color, national origin, gender, or religion to target individuals for law enforcement action. 3. No prosecutor's or sworn law enforcement officer's employment or salary shall be made to depend upon the level of seizures or forfeitures he or she achieves. 4. Whenever practicable, and in all cases involving real property, a judicial finding or probable cause shall be secured when property is seized for forfeiture. Seizing agencies shall strictly comply with all applicable legal requirements governing seizure practice and procedures. 5. If no judicial finding of probable cause is secured, the seizure shall be approved in writing by a prosecuting or agency attorney or by a supervisory-level official. 6. Seizing entities shall have a manual detailing the statutory grounds for forfeiture. This manual will include procedures for prompt notice to interest holders, the expeditious release of seized property where appropriate, and the prompt resolution of claims of innocent ownership. 7. Seizing entities retaining forfeited property for official law enforcement use shall ensure that the property is subject to internal controls consistent with those applicable to property acquired through the normal appropriations processes of that entity. 8. Unless otherwise provided by law, forfeiture proceeds shall be maintained in a separate fund or account subject to appropriate accounting controls and annual financial audits of all deposits and expenditures. 9. Seizing agencies shall strive to ensure that seized property is protected and its value preserved. 10. Seizing entities shall avoid any appearance of impropriety in the sale or acquisition of forfeited property. # Appendix B (Notice of Intention to Administratively Forfeit Property) # NOTICE OF INTENTION TO ADMINISTRATIVELY FORFEIT PROPERTY TO: (insert: interested parties) AND ANY AND ALL PERSONS WHO MAY HAVE INTERESTS IN THE DESCRIBED PROPERTY AND ALL KNOWN OR UNKNOWN INTERESTED PARTIES OF OR INTEREST HOLDERS IN THE DESCRIBED PORPERTY: YOU ARE HEREBY NOTIFIED that a Petition for Administrative Forfeiture has been filed with the Department of the Attorney General seeking forfeiture of the property described above pursuant to the Hawaii Omnibus Forfeiture Act, Title 37, (hereinafter referred to as “Forfeiture Act”), Chapter 712A of the Hawaii Revised Statutes, as amended. The property was seized for forfeiture on (insert: date), in the County of (insert: county), State of Hawaii, and is alleged to be subject to forfeiture because of its connection with the violation of (insert: violations) YOU ARE FURTHER NOTIFIED that you may respond to this notice by doing one, but only one of the following: 1. You may do nothing, in which case the property will be administratively forfeited; 2. You may file a Petition for Remission or Mitigation with the Department of the Attorney General. A Petition for Remission or Mitigation admits that the property is subject to forfeiture but asks the Attorney General to pardon the property, in whole or in part, due to extenuating circumstances. The Attorney General’s decision is final, not subject to appeal, and may be made without hearing: a. A Petition for Remission or Mitigation must be signed by the petitioner, and sworn on oath before a notary public (a suggested version of which is attached as Exhibit “1”) and shall contain the following: i. A reasonably complete description of the property; ii. A statement of the interest of the petitioner in the property, as owner or interest-holder which may be supported by bills of sale, contracts, or mortgages, or other documentary evidence; and iii. Facts and circumstances sufficient to show whether you: A. Own or hold an interest as defined by Section 712A-1, Hawaii Revised Statutes, in the seized property; B. Had any knowledge that the property was or would be involved in any violation of the law; C. Had any knowledge of the particular violation, which subjected the property to seizure and forfeiture; and D. Had any knowledge that the user of the property had any record, including arrests, except where the person was acquitted or the charges dismissed due to lack of evidence, for the violation that subjected the property to seizure and forfeiture or for any crime which is similar in nature. b. If the Attorney General, with sole discretion, determines that remission is not warranted, the Attorney General may, in his or her discretion, mitigate the forfeiture where the petitioner has met the minimum requirements for remission but where there are other extenuating circumstances indicating that some relief should be granted to avoid extreme hardship. Extenuating circumstances include: i. Language or cultural barrier; ii. Humanitarian factors such as youth or extreme age; iii. Presence of physical or mental disease, disorder or defect; iv. Limited or peripheral criminal culpability; v. Cooperation with the seizing agency or the prosecuting attorney; and vi. Any contributory error on the part of government officials. c. The Attorney General will inquire into the facts and circumstances alleged in the Petition for Remission or Mitigation and provide a written decision on the Petition within sixty (60) days. If the circumstances of the case require more time, the Petitioner will be notified in writing within the sixty (60)-day period, informed of the circumstances requiring more time, and further notified of the expected decision date; or 3. You may file a claim and a cost bond or a claim and an in forma pauperis bond with the Department of the Attorney General to seek judicial determination of the forfeiture: a. A claim must be signed by the claimant, be sworn on oath before a notary public, and comply with the requirements of Section 712A-12(5), Hawaii Revised Statutes, as amended, and shall be accompanied by one of the following: i. A cost bond in the amount of $2,500.00 or ten percent of the appraised or estimated value of the property, whichever is greater; or ii. An in forma pauperis bond consisting of a declaration in the form of and containing the elements specified in the Appendix to the Hawaii Rules of Penal Procedure, a suggested version of which is attached as Exhibit "2". b. Upon receipt of the claim and bond, the Attorney General will notify the Prosecuting Attorney who may either petition the Circuit Court for forfeiture of the property or may elect to honor the claim and forego further forfeiture proceedings. If the Prosecuting Attorney petitions the Circuit Court for forfeiture and prevails, all costs and expenses of the proceedings will be deducted from any cost bond filed. If the Prosecuting Attorney foregoes further proceedings, the seizing agency will be instructed to release the property, or some specified interest in it. One extension of thirty (30) days for filing said petition or claim may be granted upon a written request to the Department of the Attorney General, demonstrating good cause, provided the request is received within the thirty (30) day period provided for filing of a petition or claim. The Attorney General shall decide and provide a written decision on the request for extension. A Petition for Remission or Mitigation; a claim and bond; or a request for extension of thirty (30) days must be filed with the Department of the Attorney General, Civil Recoveries Division, 425 Queen Street, Honolulu, Hawaii, 96813, within thirty (30) days after you receive the Notice of Intention to Administratively Forfeit Property (Notice) or thirty (30) days after the date on which this Notice is published in a newspaper of general circulation in the county in which the seizure for forfeiture took place, whichever occurs first. IF YOU FAIL TO FILE A PETITION FOR REMISSION OR MITIGATION; A CLAIM AND COST; A CLAIM AND IN FORMA PAUPERIS BOND; OR AN EXTENSION REQUEST IN A TIMELEY MANNER AND IN SUBSTANTIAL COMPLIANCE WITH SECTION 712A-10 OF THE HAWAII REVISED STATUTES, AS AMENDED, THE PETITION FOR ADMINISTRATIVE FORFEITURE WILL BE GRANTED AND THE PROPERTY SHALL BE FORFEITED TO THE STATE OF HAWAII. DATED: Honolulu, Hawaii: ________________ (Insert: Name – PROSECUTING ATTORNEY) Prosecuting Attorney for the (insert: County Name) Petitioner (Insert: Name – DEPUTY PROSECUTING ATTORNEY) Deputy Prosecuting Attorney (insert: County Name) # Appendix C (Verified Petition for Remission or Mitigation Form) # DEPARTMENT OF THE ATTORNEY GENERAL # STATE OF HAWAII STATE OF HAWAII, Petitioner, vs. (Description of Property) Defendant. OWNER(S): (all interest holders' names) A. G. NO. VERIFIED PETITION FOR REMISSION OR MITIGATION # VERIFIED PETITION FOR REMISSION OR MITIGATION Comes now petitioner, [name] , and upon verified petition alleges and states: 1. [name] is a resident of the City and County of Honolulu, State of Hawaii whose residence is [address] 2. Petitioner does not challenge the sufficiency of the evidence to support the forfeiture or the actions of any governmental official but presumes a valid forfeiture and instead asks the Attorney General to invoke the executive power to pardon the property, in whole or in part, pursuant to §712A-10(5) of the Hawaii Revised Statutes. 3. Provide a reasonably complete description of the property claimed: 4. Specify interest in property, as owner or interest-holder, that can be supported by bills of sale, contracts, or mortgages, or other documentary evidence: 5. Petitioner owns or holds an interest in the seized property in the following manner: 6. Petitioner had no knowledge that the property was or would be involved in any violation of the law as indicated by the following facts and circumstances: 7. Petitioner had no knowledge of the particular violation that subjected the property to seizure and forfeiture, as indicated by the following facts and circumstances: 2 8. Petitioner had no knowledge that the user of the property had any record, including arrests, except when the user was acquitted or the charges against the user were dismissed for lack of evidence, for the violation that subjected the property to seizure and forfeiture or for any crime which is similar in nature, as indicated by the following facts and circumstances: 9. Should the Attorney General determine that remission is not warranted, Petitioner requests that the forfeiture be mitigated, by presenting other extenuating circumstances indicating that some relief should be granted to avoid extreme hardship as follows [specify in detail where applicable]: a. language or cultural barrier; b. humanitarian factors such as youth or extreme age; c. presence of physical or mental disease, disorder, or defect; d. limited or peripheral criminal culpability; e. cooperation with the seizing agency or the prosecuting attorney; and/or f. contributory error on the part of government officials. 10. In further support of the Petition, Petitioner alleges [state any other reason justifying mitigation or remission]: 3 **WHEREFORE**, Petitioner requests remission or mitigation by the return of the property claimed. Dated at Honolulu, Hawaii: ________________________. I swear on oath that the foregoing is true and correct. Executed on ____ of __________, 20__. (date) (month) (year) (signature) (type or print name) Subscribed and sworn to before me this day of __________, 20__. Signature Print Name Notary Public; State of Hawaii My commission expires: NOTARY PUBLIC CERTIFICATION ____________________ Judicial Circuit Doc. Description: ________________________ No. of pages _______ Date of Doc _______ Notary Signature Date _______ 4 # Appendix D (Declaration in Support of Request to Proceed In Forma Pauperis Form) # DEPARTMENT OF THE ATTORNEY GENERAL # STATE OF HAWAII STATE OF HAWAII, Petitioner, vs. (Description of Property) Defendant. OWNER(S): (All Interest Holders' Names) A. G. NO. ________________ DECLARATION IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS [NOTE: THIS IS NOT A CLAIM. IF YOU ARE SUBMITTING A CLAIM, YOU MUST SUBMIT A SEPARATE DOCUMENT WITH THE INFORMATION AS SET FORTH IN §712A-12(5), H.R.S.] I, [name] _________________________, declare that I am the claimant in the above-entitled case. I ask to proceed without posting a bond as required by Section 712A-10(9) of the Hawaii Revised Statutes. In support of my request, I state that because of my poverty, I am unable to pay the costs of said proceeding or to give security and that I believe I am entitled to relief. 1. Are you presently employed? Yes___ No___ a. If the answer is "yes," state the amount of your salary or wages per month, and give the name and address of your employer. b. If the answer is "no," state the date of last employment and the amount of the salary or wages per month that you received. 2. Have you received within the past twelve months any money from any of the following sources? a. Business, profession, or other employment: Yes___ No___ b. Rent payments, interest, or dividends? Yes___ No___ c. Pensions, annuities, or life insurance payments? Yes___ No___ d. Gifts or inheritances? Yes___ No___ e. Any other sources? Yes___ No___ If the answer to any of the above is "yes," describe each source of money and state the amount received from each during the past twelve months. 3. Do you own any cash, or do you have money in a checking or savings account? (Include any funds in prison accounts.) Yes___ No___ If the answer is "yes," state the total value of the items owned. 4. Do you own real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? Yes___ No___ If the answer is "yes," describe the property and state its approximate value. 5. List the persons who are dependent upon you for support, state your relationship to these persons, and indicate how much you contribute toward their support. I swear on oath that the foregoing is true and correct. Executed on ____ of ____, 20____. (date) (month) (year) (signature) (type or print name) Subscribed and sworn to before me this ____ day of ____ 20____. Signature Print Name Notary Public; State of Hawaii My commission expires: ____ NOTARY PUBLIC CERTIFICATION ____ Judicial Circuit Doc. Description: ____ No. of pages ____ Date of Doc ____ Notary Signature Date ____ # Appendix E (Deposit of Currency - Procedures) # DEPOSIT OF CURRENCY PROCEDURES # I. There are two different currency deposit designations: # 1. Seized Currency Seized currency is currency that has been seized for forfeiture (as opposed to being seized for evidence). A Notice of Seizure for Forfeiture should have been served upon all known parties by the police or other law enforcement agency (i.e. Narcotics Enforcement Division of the State Department of Public Safety). # 2. Forfeited Currency Forfeited currency is currency that has gone through the administrative forfeiture process and an Order was filed by the Attorney General granting the forfeiture of the currency or currency received/retained through a Settlement Stipulation. # II. Deposits with the Attorney General The Attorney General has one First Hawaiian Bank account, into which agencies may deposit currency. Within that bank account are three funds: 1. 906 Account is for seized currency. 2. 320 Account is for forfeited currency. 3. A third fund is used by the Attorney General to hold cost bond monies paid by persons seeking the return of their seized property through the judiciary. # III. Which fund should the currency go into? Is there an Order granting forfeiture of the currency (including any currency received/retained pursuant to a Settlement Stipulation)? 1. NO: Deposit currency into 906 Account 2. YES: Deposit currency into 320 Account #### IV. Preparing the Deposit 1. Deposits to the same account may be made individually or in bulk. Deposits made individually have a deposit slip for each case. Deposits made in bulk will have a number of cases made utilizing one deposit slip. 2. Keep 906 Account deposits (seized currency) separate from 320 Account deposits (forfeited currency). 3. Prepare two (2) deposit slips. NOTE: Original slip is for the bank. b. The second slip should be validated by the bank on the front of the slip and along with the bank deposit receipt (looks like a cash register receipt) should be sent to the Attorney General. See Part VI. below. NOTE: The State Department of Budget and Finance prefers the use of the pre-printed deposit slips. If you need to order more deposit slips, please contact the Legal Clerk of the Asset Forfeiture Unit to have more deposit slips ordered. Please have the number of slips needed, the branch you want to pick the slips up from, the contact person, and the contact phone number. The bank takes about 5-10 business days to have the slips completed and delivered. #### V. Making the Deposit Deposits can be made at any branch of First Hawaiian Bank. #### VI. Sending Deposit Receipts to the Attorney General 1. Send the validated deposit slips and bank deposit receipts to the Attorney General as soon as possible. NOTE: If a deposit receipt is received by the Attorney General and a Petition is not filed within one-year from date of deposit, the monies will be returned to the County Police Department. 2. Also complete and send the Deposit of Funds Form listing the following information (use separate forms for seized currency deposits (906) and for forfeited currency deposits (320)). Report No: Your report number A.G. No: Our A.G. or Court Case Number (For seized currency deposits (906), there may not be an A.G. Number assigned yet so unless you have an A.G. Number, this may be left blank.) Name(s): Provide at least one name of the interested part(ies) Amount: Amount of the deposit Deposit Date: Date of deposit 3. Send the Deposit of Funds form(s), validated deposit slip(s) and bank deposit receipt(s) to: Department of the Attorney General Civil Recoveries Division Asset Forfeiture Unit 425 Queen Street Honolulu, Hawaii 96813-2903 NOTE: The Attorney General no longer receives a reconciliation report from the State Department of Budget and Finance. Therefore, the failure to properly account for the currency could result in the currency being transferred to the State's General Fund (and loss to Asset Forfeiture program). The loss to the General Funds will be the burden of the County if the Attorney General failed to receive deposit receipts. ### VII. Contact Information Civil Recoveries Division Phone: (808) 586-1100 Fax: (808) 586-8116 # Appendix F (List of Deposits Form) DEPARTMENT: DATE: DEPOSIT OF ____________________ FUNDS | Rept. # | A.G. # | Name(s) | Amount | Deposit Date | | --- | --- | --- | --- | --- | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | CERTIFICATION SIGNATURE: (For seized (906) deposits only) I hereby certify the deposits have been made to the bank and a forfeiture request has been sent to the prosecuting attorney. # Appendix G (Preprinted Deposit Ticket) # APPENDIX G TAB CM 2101 (REV. 10/01/14) DIRECTOR OF FINANCE, STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL AG/CRD - ASSET FORFEITURE 425 QUEEN STREET HONOLULU, HI 96813 DATE DEPOSITS MAY NOT BE AVAILABLE FOR IMMEDIATE WITHDRAWAL SIGN HERE FOR CASH RECEIVED (IF REQUIRED) DEPOSIT TICKET PLEASE ENTER AMOUNT OF CASH AND CHECK IF SUCH DOING MACHINE TAPE OR DEPOSIT RECEIPT MAIN BANKING REGION First Hawaiian Bank. HONOLULU, HAWAII CURRENCY ▶ COIN ▶ CHECK ▶ TOTAL FROM BACK ▶ SUBTOTAL ▶ LESS CASH ▶ $ # Appendix H (Certificate of Service and Certificate of Attempt to Serve Forms) # CERTIFICATE OF SERVICE Certification is hereby made of service of copies of the Petition for Administrative Forfeiture and Notice of Intention to Administratively Forfeit Property in A.G. No. _____ on (INTERESTED PARTY) by: ☐ Certified Mail on (DATE) (Return Receipt attached) or if not attached fill out where addressed: (address where mailed - only if return receipt not included) ☐ Personal Service on (DATE) at (address where served) Received by: _________________________ Print Name: (Name) ☐ First-Class Mail on (DATE) because of the return of 'UNCLAIMED' Certified Mail: ☐ First-Class Mail not returned as of (DATE) ☐ Mail returned on (DATE) (Return Envelope attached) ## CERTIFICATE OF ATTEMPT TO SERVE For return of Certified Mail for reasons other than "Unclaimed" (REASON) (include copy(ies) of returned envelope) ☐ Additional information listed in comments below. Certification is hereby made of attempt(s) to serve copies of the Petition for Administrative Forfeiture and Notice of Intention to Administratively Forfeit Property in A.G. No. _____ on: (INTERESTED PARTY) at (LAST KNOWN ADDRESS) Further action taken: - ☐ Incarcerated (State or Federal) - ☐ CJIS - ☐ Probation - ☐ eCourt* Kokua - ☐ Driver's License - ☐ Vehicle Registration - ☐ Westlaw/Lexis - ☐ Other: _____ COMMENTS: _____ Signature Print Name Date # Appendix I (Request for Funds Form) Date: Clare E. Connors Attorney General Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 Requestor Name, Address, Phone No.: Attention: Michael S. Vincent Dear Ms. Connors: The _________________________ would like to purchase the following equipment: The approximate costs are: Justification/Reason for purchase (Please include how this purchase benefits law enforcement): Include any supporting documents you feel may assist in our decision-making. Should you have any questions, call _________________________ at _________________________. Sincerely, Department Head or Designee Signature Print Name: _________________________ APPROVAL/DISAPPROVAL RECOMMENDED: APPROVED/DISAPPROVED: MICHAEL S. VINCENT Supervising Deputy Attorney General CLARE E. CONNORS Attorney General DANA O. VIOLA First Deputy Attorney General # Reimbursement of Mailing Expenses Incurred in the Service of Asset ## Forfeiture Documents ONLY Submittals must be received by June 1 and/or December 1. Date: ____________________ Clare E. Connors Attorney General Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 Requestor Name, Address, Phone No.: Attention: Michael S. Vincent Dear Ms. Connors: Our office requests reimbursement for mailing expenses in the amount of: ____________________ incurred in the service of asset forfeiture documents for the period from ____________________ through ____________________ as required by §712A-8 of the Haw. Rev. Stat. Attached is a list summarizing the above referenced amount. We agree to keep and provide calculations and copies of receipts upon request. Should you have any questions, call ____________________ at ____________________. Sincerely, Department Head or Designee Signature Print Name: ____________________ Attachment(s) APPROVAL/DISAPPROVAL RECOMMENDED: APPROVED/DISAPPROVED: MICHAEL S. VINCENT Supervising Deputy Attorney General CLARE E. CONNORS Attorney General DANA O. VIOLA First Deputy Attorney General Date: ____________________ Requestor Name, Address, Phone No.: Clare E. Connors Attorney General Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 Attention: Michael S. Vincent Dear Ms. Connors: The ____________________ would like to send ____________________ ____________________ of the ____________________ to attend the ____________________ ____________________. The training/seminar will be held from ____________________, in ____________________ ____________________. Enclosed is a copy of the training/seminar announcement. The approximate costs are: Airfare Per diem Registration Ground Transportation Other TOTAL: ____________________ If you are requesting forfeiture funds for ground transportation, please write justification for funds: ____________________ ____________________________________________________________________________________ ____________________________________________________________________________________. Should you have any questions, call ____________________ at ____________________. Sincerely, Enclosure(s) Department Head or Designee Signature Print Name: ____________________ APPROVAL/DISAPPROVAL RECOMMENDED: APPROVED/DISAPPROVED: MICHAEL S. VINCENT Supervising Deputy Attorney General CLARE E. CONNORS Attorney General DANA O. VIOLA First Deputy Attorney General