Justice Manual § 9-111.125

The purpose of the trustee and monitor policy is to provide guidance for the appointment of trustees and monitors in Department of Justice federal forfeiture cases involving complex assets or business enterprises. The key distinction between a monitor and a trustee is that only a trustee has the authority to manage an enterprise. A monitor observes and reports. A receiver is a fiduciary who is responsible only to the court, and a custodian takes actual custody of the assets and may be recommended where a number of assets are located in a foreign country.

A trustee or monitor should be appointed only when absolutely necessary, all other alternatives have been considered and rejected, and there is clearly sufficient net equity in the asset to cover the total estimated cost of the trustee or monitor and necessary staff. The Government generally should not seize or forfeit businesses which require such aggressive action, capital investment to remain competitive, or the assumption of considerable risk. In some cases, compelling law enforcement or policy considerations may warrant appointing a trustee or monitor even though there is not sufficient equity in the enterprise to cover the cost.

In cases involving the appointment of trustees and monitors, comprehensive preseizure planning with the USMS is mandatory; absent unusual circumstances, no less than 3 months before the services of a trustee or monitor are required. Trustees and monitors are subject to federal acquisition regulations. The procurement process to select and contract with a trustee or monitor may require a minimum of several months.

The selection and appointment of a trustee or monitor is a joint decision of the USAO and USMS, regardless of the stage of the case. Prior to entry of a final order of forfeiture, the USAO has final decisionmaking authority as to the selection and scope of appointment of a trustee or monitor. Following entry of a final order of forfeiture, the USMS has final decision making authority on these matters.

Prior to entry of a final order of forfeiture, the Department of Justice Assets Forfeiture Fund (AFF) is authorized under certain circumstances to pay trustee and monitor fees in cases where a Department of Justice agency is the lead law enforcement agency. See 28 U.S.C. § 524(c). After entry of an order of forfeiture, fees charged by a trustee or monitor ordinarily will be paid from the proceeds of the business unless compelling law enforcement or policy considerations warrant payment from the AFF. Charges to the AFF for trustees and monitors must be recovered, as a cost, from the proceeds of sale before payment of restitution and equitable sharing.

The USAO must consult with MNF before seeking the appointment of a trustee or monitor. The USMS field office must notify the USMS headquarters when it becomes aware that a trustee or monitor may be appointed. The USAO or the USMS must notify MNF when either learns that a business is losing money, has insufficient equity, or will be sold at a loss. For additional information on this topic see Chapter 11 of the Asset Forfeiture Policy Manual ("Appointment of Trustees and Monitors").