[Congressional Record Volume 146, Number 35 (Monday, March 27, 2000)]
[Senate]
[Pages S1753-S1762]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CIVIL ASSET FORFEITURE REFORM ACT OF 2000
Mr. SESSIONS. Mr. President, I ask unanimous consent that the Senate
now proceed to the consideration of H.R. 1658, reported today by the
Judiciary Committee.
The PRESIDING OFFICER. The clerk will report the bill by title.
The legislative clerk read as follows:
A bill (H.R. 1658) to provide a more just and uniform
procedure for Federal civil forfeitures, and for other
purposes.
There being no objection, the Senate proceeded to consider the bill,
which had been reported by the Committee on the Judiciary with an
amendment to strike out all after the enacting clause and insert the
part printed in italic, as follows:
H.R. 1658
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Civil
Asset Forfeiture Reform Act of 2000''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Creation of general rules relating to civil forfeiture
proceedings.
Sec. 3. Compensation for damage to seized property.
Sec. 4. Attorney fees, costs, and interest.
Sec. 5. Seizure warrant requirement.
Sec. 6. Use of forfeited funds to pay restitution to crime victims.
Sec. 7. Civil forfeiture of real property.
Sec. 8. Stay of civil forfeiture case.
Sec. 9. Civil restraining orders.
Sec. 10. Cooperation among Federal prosecutors.
Sec. 11. Statute of limitations for civil forfeiture actions.
Sec. 12. Destruction or removal of property to prevent seizure.
Sec. 13. Fungible property in bank accounts.
Sec. 14. Fugitive disentitlement.
Sec. 15. Enforcement of foreign forfeiture judgment.
Sec. 16. Encouraging use of criminal forfeiture as an alternative to
civil forfeiture.
Sec. 17. Access to records in bank secrecy jurisdictions
Sec. 18. Application to alien smuggling offenses.
Sec. 19. Enhanced visibility of the asset forfeiture program.
Sec. 20. Proceeds.
Sec. 21. Effective date.
SEC. 2. CREATION OF GENERAL RULES RELATING TO CIVIL
FORFEITURE PROCEEDINGS.
(a) In General.--Chapter 46 of title 18, United States
Code, is amended by inserting after section 982 the
following:
``Sec. 983. General rules for civil forfeiture proceedings
``(a) Notice; Claim; Complaint.--
``(1)(A)(i) Except as provided in clauses (ii) through (v),
in any nonjudicial civil forfeiture proceeding under a civil
forfeiture statute, with respect to which the Government is
required to send written notice to interested parties, such
notice shall be sent in a manner to achieve proper notice as
soon as practicable, and in no case more than 60 days after
the date of the seizure.
``(ii) No notice is required if, before the 60-day period
expires, the Government files a civil judicial forfeiture
action against the property and provides notice of that
action as required by law.
``(iii) If, before the 60-day period expires, the
Government does not file a civil judicial forfeiture action,
but does obtain a criminal indictment containing an
allegation that the property is subject to forfeiture, the
government shall either--
``(I) send notice within the 60 days and continue the
nonjudicial civil forfeiture proceeding under this section;
or
``(II) terminate the nonjudicial civil forfeiture
proceeding, and take the steps necessary to preserve its
right to maintain custody of the property as provided in the
applicable criminal forfeiture statute.
``(iv) In a case in which the property is seized by a State
or local law enforcement agency and turned over to a Federal
law enforcement agency for the purpose of forfeiture under
Federal law, notice shall be sent not more than 90 days after
the date of seizure by the State or local law enforcement
agency.
``(v) If the identity or interest of a party is not
determined until after the seizure or turnover but is
determined before a declaration of forfeiture is entered,
notice shall be sent to such interested party not later than
60 days after the determination by the Government of the
identity of the party or the party's interest.
``(B) A supervisory official in the headquarters office of
the seizing agency may extend the period for sending notice
under subparagraph (A) for a period not to exceed 30 days
(which period may not be further extended except by a court),
if the official determines that the conditions in
subparagraph (D) are present.
``(C) Upon motion by the Government, a court may extend the
period for sending notice under subparagraph (A) for a period
not to exceed 60 days, which period may be further extended
by the court for 60-day periods, as necessary, if the court
determines, based on a written certification of a supervisory
official in the headquarters office of the seizing agency,
that the conditions in subparagraph (D) are present.
``(D) The period for sending notice under this paragraph
may be extended only if there is reason to believe that
notice may have an adverse result, including--
``(i) endangering the life or physical safety of an
individual;
``(ii) flight from prosecution;
``(iii) destruction of or tampering with evidence;
``(iv) intimidation of potential witnesses; or
``(v) otherwise seriously jeopardizing an investigation or
unduly delaying a trial.
``(E) Each of the Federal seizing agencies conducting
nonjudicial forfeitures under this section shall report
periodically to the Committees on the Judiciary of the House
of Representatives and the Senate the number of occasions
when an extension of time is granted under subparagraph (B).
``(F) If the Government does not send notice of a seizure
of property in accordance with subparagraph (A) to the person
from whom the property was seized, and no extension of time
is granted, the Government shall return the property to that
person without prejudice to the right of the Government to
commence a forfeiture proceeding at a later time. The
Government shall not be required to return contraband or
other property that the person from whom the property was
seized may not legally possess.
``(2)(A) Any person claiming property seized in a
nonjudicial civil forfeiture proceeding under a civil
forfeiture statute may file a claim with the appropriate
official after the seizure.
``(B) A claim under subparagraph (A) may be filed not later
than the deadline set forth in a personal notice letter
(which deadline may be not earlier than 35 days after the
date the letter is mailed), except that if that letter is not
received, then a claim may be filed not later than 30 days
after the date of final publication of notice of seizure.
``(C) A claim shall--
``(i) identify the specific property being claimed;
[[Page S1754]]
``(ii) state the claimant's interest in such property (and
provide customary documentary evidence of such interest if
available) and state that the claim is not frivolous; and
``(iii) be made under oath, subject to penalty of perjury.
``(D) A claim need not be made in any particular form. Each
Federal agency conducting nonjudicial forfeitures under this
section shall make claim forms generally available on
request, which forms shall be written in easily
understandable language.
``(E) Any person may make a claim under subparagraph (A)
without posting bond with respect to the property which is
the subject of the claim.
``(3)(A) Not later than 90 days after a claim has been
filed, the Government shall file a complaint for forfeiture
in the manner set forth in the Supplemental Rules for Certain
Admiralty and Maritime Claims or return the property pending
the filing of a complaint, except that a court in the
district in which the complaint will be filed may extend the
period for filing a complaint for good cause shown or upon
agreement of the parties.
``(B) If the Government does not--
``(i) file a complaint for forfeiture or return the
property, in accordance with subparagraph (A); or
``(ii) before the time for filing a complaint has expired--
``(I) obtain a criminal indictment containing an allegation
that the property is subject to forfeiture; and
``(II) take the steps necessary to preserve its right to
maintain custody of the property as provided in the
applicable criminal forfeiture statute,
the Government shall promptly release the property pursuant
to regulations promulgated by the Attorney General, and may
not take any further action to effect the civil forfeiture of
such property in connection with the underlying offense.
``(C) In lieu of, or in addition to, filing a civil
forfeiture complaint, the Government may include a forfeiture
allegation in a criminal indictment. If criminal forfeiture
is the only forfeiture proceeding commenced by the
Government, the Government's right to continued possession of
the property shall be governed by the applicable criminal
forfeiture statute.
``(D) No complaint may be dismissed on the ground that the
Government did not have adequate evidence at the time the
complaint was filed to establish the forfeitability of the
property.
``(4)(A) In any case in which the Government files in the
appropriate United States district court a complaint for
forfeiture of property, any person claiming an interest in
the seized property may file a claim asserting such person's
interest in the property in the manner set forth in the
Supplemental Rules for Certain Admiralty and Maritime Claims,
except that such claim may be filed not later than 30 days
after the date of service of the Government's complaint or,
as applicable, not later than 30 days after the date of final
publication of notice of the filing of the complaint.
``(B) A person asserting an interest in seized property, in
accordance with subparagraph (A), shall file an answer to the
Government's complaint for forfeiture not later than 20 days
after the date of the filing of the claim.
``(b) Representation.--
``(1)(A) If a person with standing to contest the
forfeiture of property in a judicial civil forfeiture
proceeding under a civil forfeiture statute is financially
unable to obtain representation by counsel, and the person is
represented by counsel appointed under section 3006A of this
title in connection with a related criminal case, the court
may authorize counsel to represent that person with respect
to the claim.
``(B) In determining whether to authorize counsel to
represent a person under subparagraph (A), the court shall
take into account such factors as--
``(i) the person's standing to contest the forfeiture; and
``(ii) whether the claim appears to be made in good faith.
``(2)(A) If a person with standing to contest the
forfeiture of property in a judicial civil forfeiture
proceeding under a civil forfeiture statute is financially
unable to obtain representation by counsel, and the property
subject to forfeiture is real property that is being used by
the person as a primary residence, the court, at the request
of the person, shall insure that the person is represented by
an attorney for the Legal Services Corporation with respect
to the claim.
``(B)(i) At appropriate times during a representation under
subparagraph (A), the Legal Services Corporation shall submit
a statement of reasonable attorney fees and costs to the
court.
``(ii) The court shall enter a judgment in favor of the
Legal Services Corporation for reasonable attorney fees and
costs submitted pursuant to clause (i) and treat such
judgment as payable under section 2465 of title 28, United
States Code, regardless of the outcome of the case.
``(3) The court shall set the compensation for
representation under this subsection, which shall be
equivalent to that provided for court-appointed
representation under section 3006A of this title.
``(c) Burden of Proof.--In a suit or action brought under
any civil forfeiture statute for the civil forfeiture of any
property--
``(1) the burden of proof is on the Government to
establish, by a preponderance of the evidence, that the
property is subject to forfeiture;
``(2) the Government may use evidence gathered after the
filing of a complaint for forfeiture to establish, by a
preponderance of the evidence, that property is subject to
forfeiture; and
``(3) if the Government's theory of forfeiture is that the
property was used to commit or facilitate the commission of a
criminal offense, or was involved in the commission of a
criminal offense, the Government shall establish that there
was a substantial connection between the property and the
offense.
``(d) Innocent Owner Defense.--
``(1) An innocent owner's interest in property shall not be
forfeited under any civil forfeiture statute. The claimant
shall have the burden of proving that the claimant is an
innocent owner by a preponderance of the evidence.
``(2)(A) With respect to a property interest in existence
at the time the illegal conduct giving rise to forfeiture
took place, the term `innocent owner' means an owner who--
``(i) did not know of the conduct giving rise to
forfeiture; or
``(ii) upon learning of the conduct giving rise to the
forfeiture, did all that reasonably could be expected under
the circumstances to terminate such use of the property.
``(B)(i) For the purposes of this paragraph, ways in which
a person may show that such person did all that reasonably
could be expected may include demonstrating that such person,
to the extent permitted by law--
``(I) gave timely notice to an appropriate law enforcement
agency of information that led the person to know the conduct
giving rise to a forfeiture would occur or has occurred; and
``(II) in a timely fashion revoked or made a good faith
attempt to revoke permission for those engaging in such
conduct to use the property or took reasonable actions in
consultation with a law enforcement agency to discourage or
prevent the illegal use of the property.
``(ii) A person is not required by this subparagraph to
take steps that the person reasonably believes would be
likely to subject any person (other than the person whose
conduct gave rise to the forfeiture) to physical danger.
``(3)(A) With respect to a property interest acquired after
the conduct giving rise to the forfeiture has taken place,
the term `innocent owner' means a person who, at the time
that person acquired the interest in the property--
``(i) was a bona fide purchaser or seller for value
(including a purchaser or seller of goods or services for
value); and
``(ii) did not know and was reasonably without cause to
believe that the property was subject to forfeiture.
``(B) An otherwise valid claim under subparagraph (A) shall
not be denied on the ground that the claimant gave nothing of
value in exchange for the property if--
``(i) the property is the primary residence of the
claimant;
``(ii) depriving the claimant of the property would deprive
the claimant of the means to maintain reasonable shelter in
the community for the claimant and all dependents residing
with the claimant;
``(iii) the property is not, and is not traceable to, the
proceeds of any criminal offense; and
``(iv) the claimant acquired his or her interest in the
property through marriage, divorce, or legal separation, or
the claimant was the spouse or legal dependent of a person
whose death resulted in the transfer of the property to the
claimant through inheritance or probate;
except that the court shall limit the value of any real
property interest for which innocent ownership is recognized
under this subparagraph to the value necessary to maintain
reasonable shelter in the community for such claimant and all
dependents residing with the claimant.
``(4) Notwithstanding any provision of this subsection, no
person may assert an ownership interest under this subsection
in contraband or other property that it is illegal to
possess.
``(5) If the court determines, in accordance with this
section, that an innocent owner has a partial interest in
property otherwise subject to forfeiture, or a joint tenancy
or tenancy by the entirety in such property, the court may
enter an appropriate order--
``(A) severing the property;
``(B) transferring the property to the Government with a
provision that the Government compensate the innocent owner
to the extent of his or her ownership interest once a final
order of forfeiture has been entered and the property has
been reduced to liquid assets; or
``(C) permitting the innocent owner to retain the property
subject to a lien in favor of the Government to the extent of
the forfeitable interest in the property.
``(6) In this subsection, the term `owner'--
``(A) means a person with an ownership interest in the
specific property sought to be forfeited, including a
leasehold, lien, mortgage, recorded security interest, or
valid assignment of an ownership interest; and
``(B) does not include--
``(i) a person with only a general unsecured interest in,
or claim against, the property or estate of another;
``(ii) a bailee unless the bailor is identified and the
bailee shows a colorable legitimate interest in the property
seized; or
``(iii) a nominee who exercises no dominion or control over
the property.
``(e) Motion To Set Aside Forfeiture.--
``(1) Any person entitled to written notice in any
nonjudicial civil forfeiture proceeding under a civil
forfeiture statute who does not receive such notice may file
a motion to set aside a declaration of forfeiture with
respect to that person's interest in the property, which
motion shall be granted if--
``(A) the Government knew, or reasonably should have known,
of the moving party's interest and failed to take reasonable
steps to provide such party with notice; and
``(B) the moving party did not know or have reason to know
of the seizure within sufficient time to file a timely claim.
``(2)(A) Notwithstanding the expiration of any applicable
statute of limitations, if the court grants a motion under
paragraph (1), the court shall set aside the declaration of
forfeiture as to the interest of the moving party without
prejudice to the right of the Government to commence
[[Page S1755]]
a subsequent forfeiture proceeding as to the interest of the
moving party.
``(B) Any proceeding described in subparagraph (A) shall be
commenced--
``(i) if nonjudicial, within 60 days of the entry of the
order granting the motion; or
``(ii) if judicial, within 6 months of the entry of the
order granting the motion.
``(3) A motion under paragraph (1) may be filed not later
than 5 years after the date of final publication of notice of
seizure of the property.
``(4) If, at the time a motion made under paragraph (1) is
granted, the forfeited property has been disposed of by the
Government in accordance with law, the Government may
institute proceedings against a substitute sum of money equal
to the value of the moving party's interest in the property
at the time the property was disposed of.
``(5) A motion filed under this subsection shall be the
exclusive remedy for seeking to set aside a declaration of
forfeiture under a civil forfeiture statute.
``(f) Release Of Seized Property.--
``(1) A claimant under subsection (a) is entitled to
immediate release of seized property if--
``(A) the claimant has a possessory interest in the
property;
``(B) the claimant has sufficient ties to the community to
provide assurance that the property will be available at the
time of the trial;
``(C) the continued possession by the Government pending
the final disposition of forfeiture proceedings will cause
substantial hardship to the claimant, such as preventing the
functioning of a business, preventing an individual from
working, or leaving an individual homeless;
``(D) the claimant's likely hardship from the continued
possession by the Government of the seized property outweighs
the risk that the property will be destroyed, damaged, lost,
concealed, or transferred if it is returned to the claimant
during the pendency of the proceeding; and
``(E) none of the conditions set forth in paragraph (8)
applies.
``(2) A claimant seeking release of property under this
subsection must request possession of the property from the
appropriate official, and the request must set forth the
basis on which the requirements of paragraph (1) are met.
``(3)(A) If not later than 15 days after the date of a
request under paragraph (2) the property has not been
released, the claimant may file a petition in the district
court in which the complaint has been filed or, if no
complaint has been filed, in the district court in which the
seizure warrant was issued or in the district court for the
district in which the property was seized.
``(B) The petition described in subparagraph (A) shall set
forth--
``(i) the basis on which the requirements of paragraph (1)
are met; and
``(ii) the steps the claimant has taken to secure release
of the property from the appropriate official.
``(4) If the Government establishes that the claimant's
claim is frivolous, the court shall deny the petition. In
responding to a petition under this subsection on other
grounds, the Government may in appropriate cases submit
evidence ex parte in order to avoid disclosing any matter
that may adversely affect an ongoing criminal investigation
or pending criminal trial.
``(5) The court shall render a decision on a petition filed
under paragraph (3) not later than 30 days after the date of
the filing, unless such 30-day limitation is extended by
consent of the parties or by the court for good cause shown.
``(6) If--
``(A) a petition is filed under paragraph (3); and
``(B) the claimant demonstrates that the requirements of
paragraph (1) have been met;
the district court shall order that the property be returned
to the claimant, pending completion of proceedings by the
Government to obtain forfeiture of the property.
``(7) If the court grants a petition under paragraph (3)--
``(A) the court may enter any order necessary to ensure
that the value of the property is maintained while the
forfeiture action is pending, including--
``(i) permitting the inspection, photographing, and
inventory of the property;
``(ii) fixing a bond in accordance with rule E(5) of the
Supplemental Rules for Certain Admiralty and Maritime Claims;
and
``(iii) requiring the claimant to obtain or maintain
insurance on the subject property; and
``(B) the Government may place a lien against the property
or file a lis pendens to ensure that the property is not
transferred to another person.
``(8) This subsection shall not apply if the seized
property--
``(A) is contraband, currency, or other monetary
instrument, or electronic funds unless such currency or other
monetary instrument or electronic funds constitutes the
assets of a legitimate business which has been seized;
``(B) is to be used as evidence of a violation of the law;
``(C) by reason of design or other characteristic, is
particularly suited for use in illegal activities; or
``(D) is likely to be used to commit additional criminal
acts if returned to the claimant.
``(g) Proportionality.--
``(1) The claimant under subsection (a)(4) may petition the
court to determine whether the forfeiture was
constitutionally excessive.
``(2) In making this determination, the court shall compare
the forfeiture to the gravity of the offense giving rise to
the forfeiture.
``(3) The claimant shall have the burden of establishing
that the forfeiture is grossly disproportional by a
preponderance of the evidence at a hearing conducted by the
court without a jury.
``(4) If the court finds that the forfeiture is grossly
disproportional to the offense it shall reduce or eliminate
the forfeiture as necessary to avoid a violation of the
Excessive Fines Clause of the Eighth Amendment of the
Constitution.
``(h) Civil Fine.--
``(1) In any civil forfeiture proceeding under a civil
forfeiture statute in which the Government prevails, if the
court finds that the claimant's assertion of an interest in
the property was frivolous, the court may impose a civil fine
on the claimant of an amount equal to 10 percent of the value
of the forfeited property, but in no event shall the fine be
less than $250 or greater than $5,000.
``(2) Any civil fine imposed under this subsection shall
not preclude the court from imposing sanctions under rule 11
of the Federal Rules of Civil Procedure.
``(3) In addition to the limitations of section 1915 of
title 28, United States Code, in no event shall a prisoner
file a claim under a civil forfeiture statute or appeal a
judgment in a civil action or proceeding based on a civil
forfeiture statute if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous or
malicious, unless the prisoner shows extraordinary and
exceptional circumstances.
``(i) Civil Forfeiture Statute Defined.--In this section,
the term `civil forfeiture statute'--
``(1) means any provision of Federal law providing for the
forfeiture of property other than as a sentence imposed upon
conviction of a criminal offense; and
``(2) does not include--
``(A) the Tariff Act of 1930 or any other provision of law
codified in title 19;
``(B) the Internal Revenue Code of 1986;
``(C) the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
301 et seq.);
``(D) the Trading with the Enemy Act (50 U.S.C. App. 1 et
seq.); or
``(E) section 1 of title VI of the Act of June 15, 1917 (40
Stat. 233; 22 U.S.C. 401).''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 46 of title 18, United States Code, is amended by
inserting after the item relating to section 982 the
following:
``983. General rules for civil forfeiture proceedings.''.
(c) Striking Superseded Provisions.--
(1) Civil forfeiture.--Section 981(a) of title 18, United
States Code, is amended--
(A) in paragraph (1), by striking ``Except as provided in
paragraph (2), the'' and inserting ``The''; and
(B) by striking paragraph (2).
(2) Drug forfeitures.--Paragraphs (4), (6) and (7) of
section 511(a) of the Controlled Substances Act (21 U.S.C.
881(a) (4), (6) and (7)) are each amended by striking ``,
except that'' and all that follows before the period at the
end.
(3) Automobiles.--Section 518 of the Controlled Substances
Act (21 U.S.C. 888) is repealed.
(4) Forfeitures in connection with sexual exploitation of
children.--Paragraphs (2) and (3) of section 2254(a) of title
18, United States Code, are each amended by striking ``,
except that'' and all that follows before the period at the
end.
(d) Legal Services Corporation Representation.--Section
1007(a) of the Legal Services Corporation Act (42 U.S.C.
2996f(a)) is amended--
(1) in paragraph (9), by striking ``and'' after the
semicolon;
(2) In paragraph (10), by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(11) ensure that an indigent individual whose primary
residence is subject to civil forfeiture is represented by an
attorney for the Corporation in such civil action.''
SEC. 3. COMPENSATION FOR DAMAGE TO SEIZED PROPERTY.
(a) Tort Claims Act.--Section 2680(c) of title 28, United
States Code, is amended--
(1) by striking ``any goods or merchandise'' and inserting
``any goods, merchandise, or other property'';
(2) by striking ``law-enforcement'' and inserting ``law
enforcement''; and
(3) by inserting before the period at the end the
following: ``, except that the provisions of this chapter and
section 1346(b) of this title apply to any claim based on
injury or loss of goods, merchandise, or other property,
while in the possession of any officer of customs or excise
or any other law enforcement officer, if--
``(1) the property was seized for the purpose of forfeiture
under any provision of Federal law providing for the
forfeiture of property other than as a sentence imposed upon
conviction of a criminal offense;
``(2) the interest of the claimant was not forfeited;
``(3) the interest of the claimant was not remitted or
mitigated (if the property was subject to forfeiture); and
``(4) the claimant was not convicted of a crime for which
the interest of the claimant in the property was subject to
forfeiture under a Federal criminal forfeiture law.''.
(b) Department of Justice.--
(1) In general.--With respect to a claim that cannot be
settled under chapter 171 of title 28, United States Code,
the Attorney General may settle, for not more than $50,000 in
any case, a claim for damage to, or loss of, privately owned
property caused by an investigative or law enforcement
officer (as defined in section 2680(h) of title 28, United
States Code) who is employed by the Department of Justice
acting within the scope of his or her employment.
(2) Limitations.--The Attorney General may not pay a claim
under paragraph (1) that--
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(A) is presented to the Attorney General more than 1 year
after it accrues; or
(B) is presented by an officer or employee of the Federal
Government and arose within the scope of employment.
SEC. 4. ATTORNEY FEES, COSTS, AND INTEREST.
(a) In general.--Section 2465 of title 28, United States
Code, is amended to read as follows:
``Sec. 2465. Return of property to claimant; liability for
wrongful seizure; attorney fees, costs, and interest
``(a) Upon the entry of a judgment for the claimant in any
proceeding to condemn or forfeit property seized or arrested
under any provision of Federal law--
``(1) such property shall be returned forthwith to the
claimant or his agent; and
``(2) if it appears that there was reasonable cause for the
seizure or arrest, the court shall cause a proper certificate
thereof to be entered and, in such case, neither the person
who made the seizure or arrest nor the prosecutor shall be
liable to suit or judgment on account of such suit or
prosecution, nor shall the claimant be entitled to costs,
except as provided in subsection (b).
``(b)(1) Except as provided in paragraph (2), in any civil
proceeding to forfeit property under any provision of Federal
law in which the claimant substantially prevails, the United
States shall be liable for--
``(A) reasonable attorney fees and other litigation costs
reasonably incurred by the claimant;
``(B) post-judgment interest, as set forth in section 1961
of this title; and
``(C) in cases involving currency, other negotiable
instruments, or the proceeds of an interlocutory sale--
``(i) interest actually paid to the United States from the
date of seizure or arrest of the property that resulted from
the investment of the property in an interest-bearing account
or instrument; and
``(ii) an imputed amount of interest that such currency,
instruments, or proceeds would have earned at the rate
applicable to the 30-day Treasury Bill, for any period during
which no interest was paid (not including any period when the
property reasonably was in use as evidence in an official
proceeding or in conducting scientific tests for the purpose
of collecting evidence), commencing 15 days after the
property was seized by a Federal law enforcement agency, or
was turned over to a Federal law enforcement agency by a
State or local law enforcement agency.
``(2)(A) The United States shall not be required to
disgorge the value of any intangible benefits nor make any
other payments to the claimant not specifically authorized by
this subsection.
``(B) The provisions of paragraph (1) shall not apply if
the claimant is convicted of a crime for which the interest
of the claimant in the property was subject to forfeiture
under a Federal criminal forfeiture law.
``(C) If there are multiple claims to the same property,
the United States shall not be liable for costs and attorneys
fees associated with any such claim if the United States--
``(i) promptly recognizes such claim;
``(ii) promptly returns the interest of the claimant in the
property to the claimant, if the property can be divided
without difficulty and there are no competing claims to that
portion of the property;
``(iii) does not cause the claimant to incur additional,
reasonable costs or fees; and
``(iv) prevails in obtaining forfeiture with respect to one
or more of the other claims.
``(D) If the court enters judgment in part for the claimant
and in part for the Government, the court shall reduce the
award of costs and attorney fees accordingly.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 163 of title 28, United States Code, is amended by
striking the item relating to section 2465 and inserting
following:
``2465. Return of property to claimant; liability for wrongful seizure;
attorney fees, costs, and interest.''.
SEC. 5. SEIZURE WARRANT REQUIREMENT.
(a) In General.--Section 981(b) of title 18, United States
Code, is amended to read as follows:
``(b)(1) Except as provided in section 985, any property
subject to forfeiture to the United States under subsection
(a) may be seized by the Attorney General and, in the case of
property involved in a violation investigated by the
Secretary of the Treasury or the United States Postal
Service, the property may also be seized by the Secretary of
the Treasury or the Postal Service, respectively.
``(2) Seizures pursuant to this section shall be made
pursuant to a warrant obtained in the same manner as provided
for a search warrant under the Federal Rules of Criminal
Procedure, except that a seizure may be made without a
warrant if--
``(A) a complaint for forfeiture has been filed in the
United States district court and the court issued an arrest
warrant in rem pursuant to the Supplemental Rules for Certain
Admiralty and Maritime Claims;
``(B) there is probable cause to believe that the property
is subject to forfeiture and--
``(i) the seizure is made pursuant to a lawful arrest or
search; or
``(ii) another exception to the Fourth Amendment warrant
requirement would apply; or
``(C) the property was lawfully seized by a State or local
law enforcement agency and transferred to a Federal agency.
``(3) Notwithstanding the provisions of rule 41(a) of the
Federal Rules of Criminal Procedure, a seizure warrant may be
issued pursuant to this subsection by a judicial officer in
any district in which a forfeiture action against the
property may be filed under section 1355(b) of title 28, and
may be executed in any district in which the property is
found, or transmitted to the central authority of any foreign
state for service in accordance with any treaty or other
international agreement. Any motion for the return of
property seized under this section shall be filed in the
district court in which the seizure warrant was issued or in
the district court for the district in which the property was
seized.
``(4)(A) If any person is arrested or charged in a foreign
country in connection with an offense that would give rise to
the forfeiture of property in the United States under this
section or under the Controlled Substances Act, the Attorney
General may apply to any Federal judge or magistrate judge in
the district in which the property is located for an ex parte
order restraining the property subject to forfeiture for not
more than 30 days, except that the time may be extended for
good cause shown at a hearing conducted in the manner
provided in rule 43(e) of the Federal Rules of Civil
Procedure.
``(B) The application for the restraining order shall set
forth the nature and circumstances of the foreign charges and
the basis for belief that the person arrested or charged has
property in the United States that would be subject to
forfeiture, and shall contain a statement that the
restraining order is needed to preserve the availability of
property for such time as is necessary to receive evidence
from the foreign country or elsewhere in support of probable
cause for the seizure of the property under this
subsection.''.
(b) Drug Forfeitures.--Section 511(b) of the Controlled
Substances Act (21 U.S.C. 881(b)) is amended to read as
follows:
``(b) Seizure Procedures.--Any property subject to
forfeiture to the United States under this section may be
seized by the Attorney General in the manner set forth in
section 981(b) of title 18, United States Code.''.
SEC. 6. USE OF FORFEITED FUNDS TO PAY RESTITUTION TO CRIME
VICTIMS.
Section 981(e) of title 18, United States Code, is amended
by striking paragraph (6) and inserting the following:
``(6) as restoration to any victim of the offense giving
rise to the forfeiture, including, in the case of a money
laundering offense, any offense constituting the underlying
specified unlawful activity; or''.
SEC. 7. CIVIL FORFEITURE OF REAL PROPERTY.
(a) In General.--Chapter 46 of title 18, United States
Code, is amended by inserting after section 984 the
following:
``Sec. 985. Civil forfeiture of real property
``(a) Notwithstanding any other provision of law, all civil
forfeitures of real property and interests in real property
shall proceed as judicial forfeitures.
``(b)(1) Except as provided in this section--
``(A) real property that is the subject of a civil
forfeiture action shall not be seized before entry of an
order of forfeiture; and
``(B) the owners or occupants of the real property shall
not be evicted from, or otherwise deprived of the use and
enjoyment of, real property that is the subject of a pending
forfeiture action.
``(2) The filing of a lis pendens and the execution of a
writ of entry for the purpose of conducting an inspection and
inventory of the property shall not be considered a seizure
under this subsection.
``(c)(1) The Government shall initiate a civil forfeiture
action against real property by--
``(A) filing a complaint for forfeiture;
``(B) posting a notice of the complaint on the property;
and
``(C) serving notice on the property owner, along with a
copy of the complaint.
``(2) If the property owner cannot be served with the
notice under paragraph (1) because the owner--
``(A) is a fugitive;
``(B) resides outside the United States and efforts at
service pursuant to rule 4 of the Federal Rules of Civil
Procedure are unavailing; or
``(C) cannot be located despite the exercise of due
diligence,
constructive service may be made in accordance with the laws
of the State in which the property is located.
``(3) If real property has been posted in accordance with
this subsection, it shall not be necessary for the court to
issue an arrest warrant in rem, or to take any other action
to establish in rem jurisdiction over the property.
``(d)(1) Real property may be seized prior to the entry of
an order of forfeiture if--
``(A) the Government notifies the court that it intends to
seize the property before trial; and
``(B) the court--
``(i) issues a notice of application for warrant, causes
the notice to be served on the property owner and posted on
the property, and conducts a hearing in which the property
owner has a meaningful opportunity to be heard; or
``(ii) makes an ex parte determination that there is
probable cause for the forfeiture and that there are exigent
circumstances that permit the Government to seize the
property without prior notice and an opportunity for the
property owner to be heard.
``(2) For purposes of paragraph (1)(B)(ii), to establish
exigent circumstances, the Government shall show that less
restrictive measures such as a lis pendens, restraining
order, or bond would not suffice to protect the Government's
interests in preventing the sale, destruction, or continued
unlawful use of the real property.
``(e) If the court authorizes a seizure of real property
under subsection (d)(1)(B)(ii), it shall conduct a prompt
post-seizure hearing during which the property owner shall
have an opportunity to contest the basis for the seizure.
``(f) This section--
``(1) applies only to civil forfeitures of real property
and interests in real property;
[[Page S1757]]
``(2) does not apply to forfeitures of the proceeds of the
sale of such property or interests, or of money or other
assets intended to be used to acquire such property or
interests; and
``(3) shall not affect the authority of the court to enter
a restraining order relating to real property.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 46 of title 18, United States Code, is amended by
inserting after the item relating to section 984 the
following:
``985. Civil forfeiture of real property.''.
SEC. 8. STAY OF CIVIL FORFEITURE CASE.
(a) In General.--Section 981(g) of title 18, United States
Code, is amended to read as follows:
``(g)(1) Upon the motion of the United States, the court
shall stay the civil forfeiture proceeding if the court
determines that civil discovery will adversely affect the
ability of the Government to conduct a related criminal
investigation or the prosecution of a related criminal case.
``(2) Upon the motion of a claimant, the court shall stay
the civil forfeiture proceeding with respect to that claimant
if the court determines that--
``(A) the claimant is the subject of a related criminal
investigation or case;
``(B) the claimant has standing to assert a claim in the
civil forfeiture proceeding; and
``(C) continuation of the forfeiture proceeding will burden
the right of the claimant against self-incrimination in the
related investigation or case.
``(3) With respect to the impact of civil discovery
described in paragraphs (1) and (2), the court may determine
that a stay is unnecessary if a protective order limiting
discovery would protect the interest of 1 party without
unfairly limiting the ability of the opposing party to pursue
the civil case. In no case, however, shall the court impose a
protective order as an alternative to a stay if the effect of
such protective order would be to allow 1 party to pursue
discovery while the other party is substantially unable to do
so.
``(4) In this subsection, the terms `related criminal case'
and `related criminal investigation' mean an actual
prosecution or investigation in progress at the time at which
the request for the stay, or any subsequent motion to lift
the stay is made. In determining whether a criminal case or
investigation is `related' to a civil forfeiture proceeding,
the court shall consider the degree of similarity between the
parties, witnesses, facts, and circumstances involved in the
2 proceedings, without requiring an identity with respect to
any 1 or more factors.
``(5) In requesting a stay under paragraph (1), the
Government may, in appropriate cases, submit evidence ex
parte in order to avoid disclosing any matter that may
adversely affect an ongoing criminal investigation or pending
criminal trial.
``(6) Whenever a civil forfeiture proceeding is stayed
pursuant to this subsection, the court shall enter any order
necessary to preserve the value of the property or to protect
the rights of lienholders or other persons with an interest
in the property while the stay is in effect.
``(7) A determination by the court that the claimant has
standing to request a stay pursuant to paragraph (2) shall
apply only to this subsection and shall not preclude the
Government from objecting to the standing of the claimant by
dispositive motion or at the time of trial.''.
(b) Drug Forfeitures.--Section 511(i) of the Controlled
Substances Act (21 U.S.C. 881(i)) is amended to read as
follows:
``(i) The provisions of section 981(g) of title 18, United
States Code, regarding the stay of a civil forfeiture
proceeding shall apply to forfeitures under this section.''.
SEC. 9. CIVIL RESTRAINING ORDERS.
Section 983 of title 18, United States Code, as added by
this Act, is amended by adding at the end the following:
``(j) Restraining Orders; Protective Orders.--
``(1) Upon application of the United States, the court may
enter a restraining order or injunction, require the
execution of satisfactory performance bonds, create
receiverships, appoint conservators, custodians, appraisers,
accountants, or trustees, or take any other action to seize,
secure, maintain, or preserve the availability of property
subject to civil forfeiture--
``(A) upon the filing of a civil forfeiture complaint
alleging that the property with respect to which the order is
sought is subject to civil forfeiture; or
``(B) prior to the filing of such a complaint, if, after
notice to persons appearing to have an interest in the
property and opportunity for a hearing, the court determines
that--
``(i) there is a substantial probability that the United
States will prevail on the issue of forfeiture and that
failure to enter the order will result in the property being
destroyed, removed from the jurisdiction of the court, or
otherwise made unavailable for forfeiture; and
``(ii) the need to preserve the availability of the
property through the entry of the requested order outweighs
the hardship on any party against whom the order is to be
entered.
``(2) An order entered pursuant to paragraph (1)(B) shall
be effective for not more than 90 days, unless extended by
the court for good cause shown, or unless a complaint
described in paragraph (1)(A) has been filed.
``(3) A temporary restraining order under this subsection
may be entered upon application of the United States without
notice or opportunity for a hearing when a complaint has not
yet been filed with respect to the property, if the United
States demonstrates that there is probable cause to believe
that the property with respect to which the order is sought
is subject to civil forfeiture and that provision of notice
will jeopardize the availability of the property for
forfeiture. Such a temporary order shall expire not more than
10 days after the date on which it is entered, unless
extended for good cause shown or unless the party against
whom it is entered consents to an extension for a longer
period. A hearing requested concerning an order entered under
this paragraph shall be held at the earliest possible time
and prior to the expiration of the temporary order.
``(4) The court may receive and consider, at a hearing held
pursuant to this subsection, evidence and information that
would be inadmissible under the Federal Rules of Evidence.''.
SEC. 10. COOPERATION AMONG FEDERAL PROSECUTORS.
Section 3322(a) of title 18, United States Code, is
amended--
(1) by striking ``civil forfeiture under section 981 of
title 18, United States Code, of property described in
section 981(a)(1)(C) of such title'' and inserting ``any
civil forfeiture provision of Federal law''; and
(2) by striking ``concerning a banking law violation''.
SEC. 11. STATUTE OF LIMITATIONS FOR CIVIL FORFEITURE
ACTIONS.
Section 621 of the Tariff Act of 1930 (19 U.S.C. 1621) is
amended by inserting ``, or in the case of forfeiture, within
2 years after the time when the involvement of the property
in the alleged offense was discovered, whichever was later''
after ``within five years after the time when the alleged
offense was discovered''.
SEC. 12. DESTRUCTION OR REMOVAL OF PROPERTY TO PREVENT
SEIZURE.
Section 2232 of title 18, United States Code, is amended--
(1) by striking subsections (a) and (b);
(2) by inserting ``(e) Foreign Intelligence Surveillance.--
'' before ``Whoever, having knowledge that a Federal
officer'';
(3) by redesignating subsection (c) as subsection (d); and
(4) by inserting before subsection (d), as redesignated,
the following:
``(a) Destruction or Removal of Property To Prevent
Seizure.--Whoever, before, during, or after any search for or
seizure of property by any person authorized to make such
search or seizure, knowingly destroys, damages, wastes,
disposes of, transfers, or otherwise takes any action, or
knowingly attempts to destroy, damage, waste, dispose of,
transfer, or otherwise take any action, for the purpose of
preventing or impairing the Government's lawful authority to
take such property into its custody or control or to continue
holding such property under its lawful custody and control,
shall be fined under this title or imprisoned not more than 5
years, or both.
``(b) Impairment of In Rem Jurisdiction.--Whoever, knowing
that property is subject to the in rem jurisdiction of a
United States court for purposes of civil forfeiture under
Federal law, knowingly and without authority from that court,
destroys, damages, wastes, disposes of, transfers, or
otherwise takes any action, or knowingly attempts to destroy,
damage, waste, dispose of, transfer, or otherwise take any
action, for the purpose of impairing or defeating the court's
continuing in rem jurisdiction over the property, shall be
fined under this title or imprisoned not more than 5 years,
or both.
``(c) Notice of Search or Execution of Seizure Warrant or
Warrant of Arrest In Rem.--Whoever, having knowledge that any
person authorized to make searches and seizures, or to
execute a seizure warrant or warrant of arrest in rem, in
order to prevent the authorized seizing or securing of any
person or property, gives notice or attempts to give notice
in advance of the search, seizure, or execution of a seizure
warrant or warrant of arrest in rem, to any person shall be
fined under this title or imprisoned not more than 5 years,
or both.''.
SEC. 13. FUNGIBLE PROPERTY IN BANK ACCOUNTS.
(a) In General.--Section 984 of title 18, United States
Code, is amended--
(1) by striking subsection (a) and redesignating
subsections (b), (c), and (d) as subsections (a), (b), and
(c), respectively;
(2) in subsection (a), as redesignated--
(A) by striking ``or other fungible property'' and
inserting ``or precious metals''; and
(B) in paragraph (2), by striking ``subsection (c)'' and
inserting ``subsection (b)'';
(3) in subsection (c), as redesignated--
(A) by striking paragraph (1) and inserting the following:
``(1) Subsection (a) does not apply to an action against
funds held by a financial institution in an interbank account
unless the account holder knowingly engaged in the offense
that is the basis for the forfeiture.''; and
(B) in paragraph (2), by striking ``(2) As used in this
section, the term'' and inserting the following:
``(2) In this subsection--
``(A) the term `financial institution' includes a foreign
bank (as defined in section 1(b)(7) of the International
Banking Act of 1978 (12 U.S.C. 3101(b)(7))); and
``(B) the term''; and
(4) by adding at the end the following:
``(d) Nothing in this section may be construed to limit the
ability of the Government to forfeit property under any
provision of law if the property involved in the offense
giving rise to the forfeiture or property traceable thereto
is available for forfeiture.''.
SEC. 14. FUGITIVE DISENTITLEMENT.
(a) In General.--Chapter 163 of title 28, United States
Code, is amended by adding at the end the following:
``Sec. 2466. Fugitive disentitlement
``A judicial officer may disallow a person from using the
resources of the courts of the United States in furtherance
of a claim in any related
[[Page S1758]]
civil forfeiture action or a claim in third party proceedings
in any related criminal forfeiture action upon a finding that
such person--
``(1) after notice or knowledge of the fact that a warrant
or process has been issued for his apprehension, in order to
avoid criminal prosecution--
``(A) purposely leaves the jurisdiction of the United
States;
``(B) declines to enter or reenter the United States to
submit to its jurisdiction; or
``(C) otherwise evades the jurisdiction of the court in
which a criminal case is pending against the person; and
``(2) is not confined or held in custody in any other
jurisdiction for commission of criminal conduct in that
jurisdiction.''.
(b) Conforming Amendment.--The analysis for chapter 163 of
title 28, United States Code, is amended by adding at the end
the following:
``2466. Fugitive disentitlement.''.
(c) Effective Date.--The amendments made by this section
shall apply to any case pending on or after the date of
enactment of this Act.
SEC. 15. ENFORCEMENT OF FOREIGN FORFEITURE JUDGMENT.
(a) In General.--Chapter 163 of title 28, United States
Code, is amended by adding at the end the following:
``Sec. 2467. Enforcement of foreign judgment
``(a) Definitions.--In this section--
``(1) the term `foreign nation' means a country that has
become a party to the United Nations Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(referred to in this section as the `United Nations
Convention') or a foreign jurisdiction with which the United
States has a treaty or other formal international agreement
in effect providing for mutual forfeiture assistance; and
``(2) the term `forfeiture or confiscation judgment' means
a final order of a foreign nation compelling a person or
entity--
``(A) to pay a sum of money representing the proceeds of an
offense described in Article 3, Paragraph 1, of the United
Nations Convention, or any foreign offense described in
section 1956(c)(7)(B) of title 18, or property the value of
which corresponds to such proceeds; or
``(B) to forfeit property involved in or traceable to the
commission of such offense.
``(b) Review by Attorney General.--
``(1) In general.--A foreign nation seeking to have a
forfeiture or confiscation judgment registered and enforced
by a district court of the United States under this section
shall first submit a request to the Attorney General or the
designee of the Attorney General, which request shall
include--
``(A) a summary of the facts of the case and a description
of the proceedings that resulted in the forfeiture or
confiscation judgment;
``(B) certified copy of the forfeiture or confiscation
judgment;
``(C) an affidavit or sworn declaration establishing that
the defendant received notice of the proceedings in
sufficient time to enable the defendant to defend against the
charges and that the judgment rendered is in force and is not
subject to appeal; and
``(D) such additional information and evidence as may be
required by the Attorney General or the designee of the
Attorney General.
``(2) Certification of request.--The Attorney General or
the designee of the Attorney General shall determine whether,
in the interest of justice, to certify the request, and such
decision shall be final and not subject to either judicial
review or review under subchapter II of chapter 5, or chapter
7, of title 5 (commonly known as the `Administrative
Procedure Act').
``(c) Jurisdiction and Venue.--
``(1) In general.--If the Attorney General or the designee
of the Attorney General certifies a request under subsection
(b), the United States may file an application on behalf of a
foreign nation in district court of the United States seeking
to enforce the foreign forfeiture or confiscation judgment as
if the judgment had been entered by a court in the United
States.
``(2) Proceedings.--In a proceeding filed under paragraph
(1)--
``(A) the United States shall be the applicant and the
defendant or another person or entity affected by the
forfeiture or confiscation judgment shall be the respondent;
``(B) venue shall lie in the district court for the
District of Columbia or in any other district in which the
defendant or the property that may be the basis for
satisfaction of a judgment under this section may be found;
and
``(C) the district court shall have personal jurisdiction
over a defendant residing outside of the United States if the
defendant is served with process in accordance with rule 4 of
the Federal Rules of Civil Procedure.
``(d) Entry and Enforcement of Judgment.--
``(1) In general.--The district court shall enter such
orders as may be necessary to enforce the judgment on behalf
of the foreign nation unless the court finds that--
``(A) the judgment was rendered under a system that
provides tribunals or procedures incompatible with the
requirements of due process of law;
``(B) the foreign court lacked personal jurisdiction over
the defendant;
``(C) the foreign court lacked jurisdiction over the
subject matter;
``(D) the defendant in the proceedings in the foreign court
did not receive notice of the proceedings in sufficient time
to enable him or her to defend; or
``(E) the judgment was obtained by fraud.
``(2) Process.--Process to enforce a judgment under this
section shall be in accordance with rule 69(a) of the Federal
Rules of Civil Procedure.
``(e) Finality of Foreign Findings.--In entering orders to
enforce the judgment, the court shall be bound by the
findings of fact to the extent that they are stated in the
foreign forfeiture or confiscation judgment.
``(f) Currency Conversion.--The rate of exchange in effect
at the time the suit to enforce is filed by the foreign
nation shall be used in calculating the amount stated in any
forfeiture or confiscation judgment requiring the payment of
a sum of money submitted for registration.''.
(b) Conforming Amendment.--The analysis for chapter 163 of
title 28, United States Code, is amended by adding at the end
the following:
``2467. Enforcement of foreign judgment.''.
SEC. 16. ENCOURAGING USE OF CRIMINAL FORFEITURE AS AN
ALTERNATIVE TO CIVIL FORFEITURE.
Section 2461 of title 28, United States Code, is amended by
adding at the end the following:
``(c) If a forfeiture of property is authorized in
connection with a violation of an Act of Congress, and any
person is charged in an indictment or information with such
violation but no specific statutory provision is made for
criminal forfeiture upon conviction, the Government may
include the forfeiture in the indictment or information in
accordance with the Federal Rules of Criminal Procedure, and
upon conviction, the court shall order the forfeiture of the
property in accordance with the procedures set forth in
section 413 of the Controlled Substances Act (21 U.S.C. 853),
other than subsection (d) of that section.''.
SEC. 17. ACCESS TO RECORDS IN BANK SECRECY JURISDICTIONS.
Section 986 of title 18, United States Code, is amended by
adding at the end the following:
``(d) Access to Records in Bank Secrecy Jurisdictions.--
``(1) In general.--In any civil forfeiture case, or in any
ancillary proceeding in any criminal forfeiture case governed
by section 413(n) of the Controlled Substances Act (21 U.S.C.
853(n)), in which--
``(A) financial records located in a foreign country may be
material--
``(i) to any claim or to the ability of the Government to
respond to such claim; or
``(ii) in a civil forfeiture case, to the ability of the
Government to establish the forfeitability of the property;
and
``(B) it is within the capacity of the claimant to waive
the claimant's rights under applicable financial secrecy
laws, or to obtain the records so that such records can be
made available notwithstanding such secrecy laws;
the refusal of the claimant to provide the records in
response to a discovery request or to take the action
necessary otherwise to make the records available shall be
grounds for judicial sanctions, up to and including dismissal
of the claim with prejudice.
``(2) Privilege.--This subsection shall not affect the
right of the claimant to refuse production on the basis of
any privilege guaranteed by the Constitution of the United
States or any other provision of Federal law.''.
SEC. 18. APPLICATION TO ALIEN SMUGGLING OFFENSES.
(a) Amendment of the Immigration and Nationality Act.--
Section 274(b) of the Immigration and Nationality Act (8
U.S.C. 1324(b)) is amended to read as follows:
``(b) Seizure and Forfeiture.--
``(1) In general.--Any conveyance, including any vessel,
vehicle, or aircraft, that has been or is being used in the
commission of a violation of subsection (a), the gross
proceeds of such violation, and any property traceable to
such conveyance or proceeds, shall be seized and subject to
forfeiture.
``(2) Applicable procedures.--Seizures and forfeitures
under this subsection shall be governed by the provisions of
chapter 46 of title 18, United States Code, relating to civil
forfeitures, including section 981(d) of such title, except
that such duties as are imposed upon the Secretary of the
Treasury under the customs laws described in that section
shall be performed by such officers, agents, and other
persons as may be designated for that purpose by the Attorney
General.
``(3) Prima facie evidence in determinations of
violations.--In determining whether a violation of subsection
(a) has occurred, any of the following shall be prima facie
evidence that an alien involved in the alleged violation had
not received prior official authorization to come to, enter,
or reside in the United States or that such alien had come
to, entered, or remained in the United States in violation of
law:
``(A) Records of any judicial or administrative proceeding
in which that alien's status was an issue and in which it was
determined that the alien had not received prior official
authorization to come to, enter, or reside in the United
States or that such alien had come to, entered, or remained
in the United States in violation of law.
``(B) Official records of the Service or of the Department
of State showing that the alien had not received prior
official authorization to come to, enter, or reside in the
United States or that such alien had come to, entered, or
remained in the United States in violation of law.
``(C) Testimony, by an immigration officer having personal
knowledge of the facts concerning that alien's status, that
the alien had not received prior official authorization to
come to, enter, or reside in the United States or that such
alien had come to, entered, or remained in the United States
in violation of law.''.
(b) Technical Corrections to Existing Criminal Forfeiture
Authority.--Section 982(a)(6) of title 18, United States
Code, is amended--
(1) in subparagraph (A)--
(A) by inserting ``section 274(a), 274A(a)(1), or
274A(a)(2) of the Immigration and Nationality Act or'' before
``section 1425'' the first place it appears;
[[Page S1759]]
(B) in clause (i), by striking ``a violation of, or a
conspiracy to violate, subsection (a)'' and inserting ``the
offense of which the person is convicted''; and
(C) in subclauses (I) and (II) of clause (ii), by striking
``a violation of, or a conspiracy to violate, subsection
(a)'' and all that follows through ``of this title'' each
place it appears and inserting ``the offense of which the
person is convicted'';
(2) by striking subparagraph (B); and
(3) in the second sentence--
(A) by striking ``The court, in imposing sentence on such
person'' and inserting the following:
``(B) The court, in imposing sentence on a person described
in subparagraph (A)''; and
(B) by striking ``this subparagraph'' and inserting ``that
subparagraph''.
SEC. 19. ENHANCED VISIBILITY OF THE ASSET FORFEITURE
PROGRAM.
Section 524(c)(6) of title 28, United States Code, is
amended to read as follows:
``(6)(A) The Attorney General shall transmit to Congress
and make available to the public, not later than 4 months
after the end of each fiscal year, detailed reports for the
prior fiscal year as follows:
``(i) A report on total deposits to the Fund by State of
deposit.
``(ii) A report on total expenses paid from the Fund, by
category of expense and recipient agency, including equitable
sharing payments.
``(iii) A report describing the number, value, and types of
properties placed into official use by Federal agencies, by
recipient agency.
``(iv) A report describing the number, value, and types of
properties transferred to State and local law enforcement
agencies, by recipient agency.
``(v) A report, by type of disposition, describing the
number, value, and types of forfeited property disposed of
during the year.
``(vi) A report on the year-end inventory of property under
seizure, but not yet forfeited, that reflects the type of
property, its estimated value, and the estimated value of
liens and mortgages outstanding on the property.
``(vii) A report listing each property in the year-end
inventory, not yet forfeited, with an outstanding equity of
not less than $1,000,000.
``(B) The Attorney General shall transmit to Congress and
make available to the public, not later than 2 months after
final issuance, the audited financial statements for each
fiscal year for the Fund.
``(C) Reports under subparagraph (A) shall include
information with respect to all forfeitures under any law
enforced or administered by the Department of Justice.
``(D) The transmittal and publication requirements in
subparagraphs (A) and (B) may be satisfied by--
``(i) posting the reports on an Internet website maintained
by the Department of Justice for a period of not less than 2
years; and
``(ii) notifying the Committees on the Judiciary of the
House of Representatives and the Senate when the reports are
available electronically.''.
SEC. 20. PROCEEDS.
(a) Forfeiture of Proceeds.--Section 981(a)(1)(C) of title
18, United States Code, is amended by striking ``or a
violation of section 1341'' and all that follows and
inserting ``or any offense constituting `specified unlawful
activity' (as defined in section 1956(c)(7) of this title),
or a conspiracy to commit such offense.''.
(b) Definition of Proceeds.--Section 981(a) of title 18,
United States Code, is amended by adding at the end the
following:
``(2) For purposes of paragraph (1), the term `proceeds' is
defined as follows:
``(A) In cases involving illegal goods, illegal services,
unlawful activities, and telemarketing and health care fraud
schemes, the term `proceeds' means property of any kind
obtained directly or indirectly, as the result of the
commission of the offense giving rise to forfeiture, and any
property traceable thereto, and is not limited to the net
gain or profit realized from the offense.
``(B) In cases involving lawful goods or lawful services
that are sold or provided in an illegal manner, the term
`proceeds' means the amount of money acquired through the
illegal transactions resulting in the forfeiture, less the
direct costs incurred in providing the goods or services. The
claimant shall have the burden of proof with respect to the
issue of direct costs. The direct costs shall not include any
part of the overhead expenses of the entity providing the
goods or services, or any part of the income taxes paid by
the entity.
``(C) In cases involving fraud in the process of obtaining
a loan or extension of credit, the court shall allow the
claimant a deduction from the forfeiture to the extent that
the loan was repaid, or the debt was satisfied, without any
financial loss to the victim.''.
SEC. 21. EFFECTIVE DATE.
Except as provided in section 14(c), this Act and the
amendments made by this Act shall apply to any forfeiture
proceeding commenced on or after the date that is 120 days
after the date of enactment of this Act.
Mr. HATCH. Mr. President, I am pleased to announce that Chairman
Hyde, Senator Leahy and I reached an agreement with the Department of
Justice and Senators Sessions and Schumer yesterday on civil forfeiture
reform legislation. This is an important issue, and I am proud to
support this legislation. While civil forfeiture is a valuable law
enforcement tool, it has become increasingly clear that some reform of
civil forfeiture law is necessary given the numerous controversial
seizures of property in the last decade.
Federal civil forfeiture procedures, which are based largely on 19th
century admiralty law, provide inadequate protections for private
property. For example, under current Federal law, once the government
seizes property, the burden of proof is on the property owner to prove
that the property is not subject to forfeiture. After property is
seized, the property owner must post a cost bond in order to contest
the forfeiture. This bond requirement does not entitle the property
owner to the return of the property, but merely allows the claimant to
contest the forfeiture. If the property owner files a claim to the
property, the government has up to five years to file a complaint for
forfeiture.
The legislation agreed to today increases protections for property
owners, while respecting the interests of law enforcement. Among other
provisions, the bill places the burden of proof in civil forfeiture
cases on the government throughout the proceeding; places reasonable
time limits on the government in civil forfeiture actions; awards
attorney fees and costs to property owners who prevail against the
government in civil forfeiture cases; authorizes the court to release
property pending trial in appropriate circumstances; eliminates the
cost bond; and provides a uniform innocent owner defense to all federal
civil forfeitures affected by the bill.
All of us here are committed to depriving criminals of the proceeds
of crime. To further this goal, the bill increases the ability of the
Justice Department to target criminal proceeds. The bill also extends
criminal forfeiture authority to any Federal statute in which civil
forfeiture authority exists in order to encourage the use of criminal
forfeiture. In addition, the bill contains several mechanisms to deter
and punish frivolous claims to seized property. Senator Sessions will
describe these provisions in detail.
A broad coalition of organizations support this bill, including the
Chamber of Commerce, the American Bankers Association, the National
Association of Homebuilders, the National Association of Relators, the
Institute for Justice, Americans for Tax Reform, the National Rifle
Association, the American Bar Association, and the Fraternal Order of
Police. In addition, six former Attorneys General--William Barr,
Richard Thornburg, Edwin Meese, Benjamin Civiletti, Griffin Bell, and
Nicholas Katzenbach--have endorsed the bill.
In closing, I would like to thank Senators Sessions and Schumer for
their patience and cooperation. This agreement would not be possible
without their hard work and dedication. Senator Sessions is to be
especially commended. As a former United States Attorney and state
Attorney General, he has more experience in civil forfeiture actions
that any member of Congress. Senator Sessions has been an outstanding
representative of the law enforcement community, and I am proud to have
his support.
Finally, I would like to thank House Judiciary Chairman Henry Hyde.
No one has done more to advance the cause of civil forfeiture reform
than Chairman Hyde. His 1995 book on civil forfeiture helped draw
national attention to the need for reform. Last June, the House
overwhelmingly passed the Hyde-Conyers civil forfeiture reform bill.
This victory for forfeiture reform was due in large measure to Henry
Hyde's stature and commitment.
Thank you for your attention to this important reform legislation.
Mr. LEAHY. Mr. President, at long last, after years of effort and
several weeks of intensive, tedious and seemingly endless negotiations,
we have reached agreement on civil asset forfeiture reform legislation.
This is a significant improvement over the current system and should go
a long way toward stemming the abuses that have so offended Americans
across the country and the political spectrum. It is not often that we
see the U.S. Chamber of Commerce, ACLU, NRA, National Association of
Criminal Defense Lawyers, American Bankers Association, the Institute
of Justice, Americans for Tax Reform, and the American Bar Association
joining together on the same side of a legislative effort. Working with
Chairman Hatch, Chairman Hyde, Mr. Conyers, Senator Sessions and
Senator Schumer, we have crafted a good
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bill, a balanced bill and a reform package that should move forward as
consensus legislation and be enacted without further delay this year. I
want to thank all who have worked with us in this process. In
particular, I want to thank Janet Reno, our Attorney General, for
working with us, meeting with us and lending her support to this effort
and joining our coalition by agreeing to the consensus civil asset
forfeiture reform legislation that the Senate is passing today.
Asset forfeiture is a powerful crime-fighting tool. It has been a
particularly potent weapon in the war on drugs, allowing the government
to take the cars and boats and stash houses amassed by drug dealers and
put them to honest use. Last year alone, the government was able to
seize nearly half a billion dollars worth of assets, cutting a big
chunk out of criminals' profit stream and returning it to the law-
abiding community.
Unfortunately, our nation's asset forfeiture is not fail-safe; it can
be and has been abused. In hearings on this issue, the Judiciary
Committee has heard examples of what happens when prosecutorial zeal
skirts the boundaries of due process, leading to the taking of private
property regardless of whether the owner is innocent of, or even
cognizant of, the property's use in an illegal act, or whether the
seizure is entirely out of proportion to the criminal conduct alleged.
I am well aware from incidents in Vermont about how aggressive use by
Federal and State law enforcement official of civil asset forfeiture
laws can appear unfair and excessive, and thereby fuel public distrust
of the government in general and law enforcement in particular. For
example, in 1989, federal prosecutors seized a Vermont homestead that a
family had built and lived in for over a decade. The husband had
pleaded guilty in State court to growing six marijuana plants, without
his wife's knowledge, and was sentenced to 50 hours of community
service, which he fulfilled by building bookshelves for the local
public library.
Yet, one year after his arrest, Vermont State police brought his
arrest to the attention of the federal authorities and Federal marshals
seized the family's home and 49 surrounding acres. Hundreds of
Vermonters rallied to the family's defense, including former
prosecutors, until the case was settled with no seizure of the
property.
In another civil asset forfeiture case, federal prosecutors again
seized the home and 10 acres of a Vermont woman in Richmond, Vermont,
after two hidden patches of marijuana plants were discovered on her
property. Criminal charges against the woman were dismissed when she
established she was unaware that her daughter and daughter's boyfriend
were cultivating the plants. Three years after the seizure, in 1990, a
federal judge ordered the government to return the property to the
woman, but by that time it had been destroyed by fire.
By contrast to the obligation under Vermont law that law enforcement
agencies must ``ensure that the property is properly maintained,'' 18
V.S.A. Sec. 4246, the federal authorities who made the seizure of this
property had no such obligation and did not take good care of the
property.
In yet another civil asset forfeiture case, federal prosecutors in
1990, seized the home and 10.7 acres of a family in Craftsbury Common,
Vermont, after the homeowners were convicted in State court of
cultivating marijuana and given suspended sentences three years earlier
in 1987.
Given the fact that in each of these cases, the underlying criminal
charges were prosecuted by the State but the forfeiture action was
taken federally, one might ask why these related proceedings were
divided between the State and Federal authorities? The answer is
simple: Vermont law does not allow the forfeiture of real property
``which is occupied as the primary residence of a person involved in
the violation and a member or members of that person's family.'' 18
V.S.A. Sec. 4241(a)(5).
Moreover, under Vermont law, state law enforcement authorities carry
a heavier burden ``of proving all material facts by clear and
convincing evidence.'' 18 V.S.A. Sec. 4244(c). By contrast, federal
forfeiture procedures provide more latitude on the property subject to
seizure and more lenient requirements for federal law enforcement
authorities to meet.
While federal authorities in Vermont have in recent years avoided
such egregious asset forfeiture abuses, that is not the situation in
other jurisdictions, prompting increasing and exceedingly sharp
criticism from scholars and commentators of the federal asset
forfeiture system, which in general requires far less from the
government than any State forfeiture law.
Federal judges have also added their voices to the growing chorus of
concern. In 1992, the Second Circuit Court of Appeals stated: ``We
continue to be enormously troubled by the government's increasing and
virtually unchecked use of the civil forfeiture statutes and the
disregard for due process that is buried in those statutes.'' Four
years later, the Eighth Circuit rebuked the government for capitalizing
on the claimants' confusion to forfeit over $70,000 of their currency,
and expressed alarm that:
[T]he war on drugs has brought us to the point where the
government may seize . . . a citizen's property without any
initial showing of cause, and put the onus on the citizen to
perfectly navigate the bureaucratic labyrinth in order to
liberate what is presumptively his or hers in the first
place. . . . Should the citizen prove inept, the government
may keep the property, without ever having to justify or
explain its actions.
Similarly, the Seventh Circuit recently expressed its belief that
``the government's conduct in forfeiture cases leaves much to be
desired,'' and ordered the return of over $500,000 in currency that had
been improperly seized from a Chicago pizzeria.
Under current law, the property owner--not the government--bears the
burden of proof. All the government must do is make an initial showing
of probable cause that the property is ``guilty'' and subject to
forfeiture. The property owner must then prove a negative--that the
property was not involved in any wrongdoing. It is time to bring this
law in line with our modern principles of due process and fair play,
and reform forfeiture procedures to ensure that innocent property
owners are adequately protected.
The Hyde-Conyers civil asset forfeiture reform bill, H.R. 1658,
passed the House by an overwhelming bipartisan majority (375-48) last
June. After lengthy negotiations with the Department of Justice,
Chairman Hatch and I introduced a Senate civil asset forfeiture reform
bill, S.1931. Our bill addressed every major concern that the
Department had raised in our hearings and in the Statement of
Administration Policy regarding the Hyde-Conyers bill, and struck a
fair compromise on those issues.
For example, the Hyde-Conyers bill put the burden of proof on the
Government by clear and convincing evidence. We put the burden of proof
on the Government by a preponderance of the evidence. The preponderance
standard is used in virtually all other civil cases, and we believe it
is sufficient to protect the interests of property owners.
The Hyde-Conyers bill authorized courts to appoint counsel for any
indigent person who asserted an interest in seized property. Although I
am sympathetic to that proposal--justice should not be only for the
wealthy--the Administration strongly opposed it. We provided for
appointment of counsel only in the rare case where the property subject
to forfeiture was the claimant's primary residence. In other cases, a
claimant could recoup attorney fees only if she substantially prevailed
in challenging the forfeiture.
We are grateful for the support of so many members of the Committee
and others over the last year. The Hatch-Leahy bill was endorsed by the
last six Attorneys General of the United States from both parties,
William Barr, Richard Thornburgh, Edwin Meese, Benjamin Civiletti,
Griffin Bell, and Nicholas Katzenbach, and a wide range of
organizations.
Although I knew that we had met the Department more than half way in
our bill, we did not stop there. We have met with and worked with
Senators Sessions and Schumer, who had introduced a different type of
bill, to see whether we might find common ground. After weeks of
intensive efforts, we succeeded in coming together. For our part,
Chairman Hatch and I accepted more than 30 substantive changes to the
provisions in the Hatch-Leahy bill, plus about a dozen new sections to
the bill that give law enforcement new, but measured, authority. In
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essence we combined the Hatch-Leahy Civil Asset Forfeiture Reform Act,
S. 1931, with suggestions from the Sessions-Schumer bill to form a
civil asset forfeiture legislative package that we can all agree to
support.
Among the important reforms made by the Hatch-Leahy-Sessions-Schumer
substitute amendment to H.R. 1658, which the Senate passes today, are
the following:
Burden of proof. The substitute amendment puts the burden of proof on
the government by a preponderance of the evidence.
Cost bond. Another core reform of the substitute amendment is the
elimination of the so-called ``cost bond.'' Under current law, a
property owner who seeks to recover his property after it has been
seized by the government must pay for the privilege by posting a bond
with the court. No other federal statute requires a cost bond, and no
State requires a cost bond in civil forfeiture cases.
The government has defended the cost bond, not as a device for
ensuring that its court costs are covered, but as a way of deterring
frivolous claims. Of course, we are all in favor of deterring frivolous
claims, but there are ways to deter frivolous claims without offending
the fundamental principle of equal and open access to the courts, a
bedrock of our American system of justice.
The substitute amendment provides that a person who challenges a
forfeiture must file his claim on oath, under penalty of perjury. It
also provides for imposition of a civil fine, in cases where the
claimant's assertion of an interest in the property was frivolous. In
addition, claimants will continue to bear the substantial costs of
litigating their claims in court, and they and their attorneys will
remain subject to the general sanctions for bad faith in instituting or
conducting litigation. Frivolous prisoner claimants will be barred from
repeated filings on proper court findings. The added burden of the
``cost bond'' serves no legitimate purpose.
Legal assistance and attorney fees. The substitute amendment permits
courts to authorize counsel to represent an indigent claimant only if
the claimant is already represented by a court-appointed attorney in
connection with a related federal criminal case. This is both fair and
efficient, and eliminates any appearance that the government chose to
pursue the forfeiture in a civil proceeding rather than as part of the
criminal case in order to deprive the claimant of his right to counsel.
Beyond this, the substitute amendment ensures that when the
government seeks to forfeit an indigent person's primary residence,
that person will be afforded representation by the Legal Services
Corporation. When a forfeiture action can result in a claimant's
eviction and homelessness, there is more at stake than just a property
interest, and it is fair and just that the claimant be provided with an
attorney if he cannot otherwise afford one. The Legal Services
Corporation will be paid by the government for providing representation
in these cases.
For claimants who are not provided with counsel, the substitute
allows for the recovery of reasonable attorney fees and costs if they
substantially prevail on their claim. The bill also makes the
government liable for post-judgment interest on any money judgment, and
imputed interest in certain cases involving currency or negotiable
instruments.
Filing deadlines. Under current law, a property owner has only 20
days from the date of first publication of the notice of seizure to
file a claim challenging an administrative forfeiture, and only 10 days
to file a claim challenging a judicial forfeiture. It is therefore
unlikely that anyone who misses the first of three published notices
will be able to file a timely claim. The substitute extends the
property owner's time to file a claim following the commencement of an
administrative or judicial forfeiture action to 30 days. The bill also
codifies current Department of Justice policy with respect to the time
period for sending notice of seizure, and establishes a 90-day period
for filing a complaint.
Release of property for hardship. The substitute will allow a
property owner to hold on to his property pending the final disposition
of the case, if he can show that continued possession by the government
will cause the owner substantial hardship, such as preventing him from
working, and that this hardship outweighs the risk that the property
will be destroyed or concealed if returned to the owner during the
pendency of the case. Unlike H.R. 1658, the substitute adopts the
primary safeguards that the Justice Department wanted added to the
provision--that property owners must have sufficient ties to the
community to provide assurance that the property will not disappear,
and that certain property, such as currency and property particularly
outfitted for use in illegal activities, shall not be returned.
Government cannot obtain a grand jury subpoena to obtain such
documents.
Criminal proceeds. The substitute also brings clarity and fairness to
the confused body of case law concerning the definition of criminal
proceeds. Specifically, in cases involving lawful goods or lawful
services that are sold or provided in an illegal manner, the term
``proceeds'' is defined to mean the amount of money acquired through
the illegal transactions resulting in the forfeiture, less the direct
costs incurred in providing the goods or services. An exception is made
for cases involving certain health care fraud schemes, since it would
make no sense to allow those who provide unnecessary services to deduct
the cost of those unnecessary services. Having resolved this important
matter, the substitute amendment broadly extends the government's
authority to forfeit criminal proceeds under the civil asset forfeiture
laws.
Fugitive disentitlement. The Supreme Court in 1996 disallowed the
judge-made doctrine that a fugitive avoiding the jurisdiction of the
U.S. courts in a criminal case may not contest a civil forfeiture;
however, the Court left open the possibility that Congress could
establish such doctrine by statute. The Court was responding, in part,
to the government's record of seeking forfeiture of property even
though the property is not subject to forfeiture (e.g., because the
statute of limitations has expired), when the government believes that
the fugitive owner will not be permitted to contest the forfeiture.
Opponents of the fugitive disentitlement doctrine say that the
prosecutors have gone so far as to indict people whom they know will
never return to this country, so that they can invoke the doctrine in
civil forfeiture proceedings against such persons' U.S. assets. The
substitute provides a statutory basis for a judge to disallow a civil
asset forfeiture claim by a fugitive, while leaving judges discretion
to allow such a claim in the interests of justice.
Senator Hatch and I share a longstanding and deeply-held appreciation
for law enforcement and the officers who work on the front lines to
protect our families and communities, and we have worked together on a
number of crime-related issues in the past. Recently, for example, we
have led the Senate in passing a number of legislative initiatives of
importance to State and local law enforcement, including the
Bulletproof Vests Partnership Act of 1998, Crime Identification
Technology Act of 1998, Care for Police Survivors Act of 1998, the
Railroad Police Officers Training Act of 1999, and the Methamphetamine
Anti-Proliferation Act of 1999. I want to commend him for his
commitment, not just to law enforcement, but to the rights of all
Americans. It has been my pleasure to work with him on this issue, to
bring balance back in the relationship between our police forces and
the citizens of this country.
It has been a privilege to work with Representatives Hyde and Conyers
on this important legislation. And we greatly appreciate the
contributions made by Senators Sessions and Schumer, both knowledgeable
and experienced legislators in this area.
I would also like to thank the Senate and House staff who worked so
hard to bring this matter to closure: On my staff, Julie Katzman and
Beryl Howell; in addition, George Fishman, who has been dedicated to
this project for so many years, Manus Cooney, Rhett DeHart, Ed Haden,
Ben Lawsky, Tom Mooney, John Dudas, Julian Epstein, Perry Apelbaum, and
Cori Flam--their efforts made this day possible. Thanks are also due to
Bill Jensen and the other hardworking members of the Senate's Office of
Legislative Counsel.
[[Page S1762]]
Finally, I would like to express my gratitude to David Smith, a
leading expert on civil asset forfeiture, who gave tirelessly of his
time over the past few months. His expertise and good counsel were
invaluable in producing the legislation that the Senate passes today.
It is time for Congress to catch up with the American people and the
courts and do the right thing on this important issue of fairness. I am
glad that the Senate is acting without delay to pass this long overdue
reform legislation.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the
committee substitute be agreed to, the bill be read a third time and
passed, the motion to reconsider be laid upon the table, and that any
statements relating to the bill be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The committee substitute was agreed to.
The bill (H.R. 1658), as amended, was read a third time and passed.
Mr. SESSIONS. Mr. President, the bill we have just considered is a
very important piece of legislation that has been the subject of
considerable effort for over a year now in the Judiciary Committee in
the House.
Great efforts have been expended by all parties interested in this
legislation to achieve a piece of legislation that would provide
enhanced protections to private property owners and at the same time
would not undermine, in a real and significant and unnecessary way, the
ability of law enforcement agencies to seize and forfeit to the
interest of the Government assets from illegal drug dealers and other
criminal assets that are forfeited.
In the early 1980s, this Congress passed one of its most historic
pieces of legislation that attacked crime in America. It was the asset
forfeiture law. At that time, I was a U.S. attorney in Mobile, AL. This
Federal law became a daily part of the work of my office.
We instructed our assistant U.S. attorneys that whenever they were
prosecuting a drug case, it was not just enough to sentence and punish
the criminal, they ought to be sure the ill-gotten gains, the profits
they made from selling illegal substances in this country, would be
seized and forfeited to the United States.
On a regular basis that was done all over this country. It was a
major, important, historic step against crime, particularly against
drug crime in America. Hundreds of millions, perhaps billions of
dollars, have been forfeited from illegal enterprises since that day.
The forfeitures are conducted under this Federal law, although States
have the ability to forfeit assets, too.
In Federal court, the Government had to prove its case, seize the
asset; a cost bond would be posted by the defendant if he wished to
contest the seizure, and a court would hear the case and make a ruling
in that fashion.
A number of people believed strongly that requiring a person to post
a cost bond was not a healthy thing under our legal system. They wanted
to change that. Chairman Henry Hyde in the House Judiciary Committee
felt that way; so did Senator Orrin Hatch, chairman of the Senate
Judiciary Committee. We began to analyze and study what we could do to
deal with this problem of asset forfeiture.
At the time, Senators Schumer, Thurmond, Biden, and myself introduced
asset forfeiture reform legislation in the Senate. Senators Hatch and
Leahy introduced another piece of legislation that was closer to the
Hyde bill.
For some months now, we have worked together to see what we could do
to protect legitimate constitutional rights of American citizens, while
at the same time protecting this tremendous asset to law enforcement of
the seizing and forfeiting of assets.
It is wrong, in my opinion, for a person who has made his money and
his livelihood for years selling dope in America to go to jail and
leave a mansion out there that he can come back to and the Federal
taxpayers having to pay for his time in jail, or to have bank accounts
with hundreds of thousands of dollars in them and not have that seized
by the Government but, in fact, serving his time in jail and getting
out and living high off the ill-gotten gains he achieved as a drug
trafficker.
I would say, 98 percent of forfeitures in America today in Federal
court are as a result of drug cases.
In my relatively small office in Alabama, when I was a U.S. attorney,
we seized probably $8 million to $10 million that we actually turned
into the Federal Treasury, after expenses and other items were paid.
In one case, we seized a Corvette automobile that was rumored to be
worth hundreds of thousands of dollars because it was a unique
Corvette. In fact, the drug dealer's car eventually was sold for
$170,000, as I remember. We seized mansions in Florida on the Gulf
Coast. We seized bank accounts in foreign countries--big freighters,
small boats, expensive sail boats, automobiles of all kinds, and bank
accounts into the millions of dollars.
These are effective tools against the drug trafficking industry. In
fact, many countries now recognize that, and they are at this time
attempting to pass similar laws in their countries. It certainly is
important to America.
I believed very strongly that when we set about amending this law, we
do not need to place any unnecessary burdens on law enforcement and the
prosecutors who will have to handle these cases. In fact, a large
percentage, perhaps 90 percent or more, of these cases are confessed by
the defendant because he has to establish where he got this money. Not
many people can explain why they have $50,000 in cash in the trunk of
their car along with maybe a few kilograms of cocaine. Normally, there
is evidence in addition that they have been a drug dealer and that they
haven't had employment; that their house note is being paid in cash.
Oftentimes they paid for their Mercedes automobile in cash, those kinds
of things. So the proof turns out to be pretty good, as a normal rule.
I believe the negotiation over this legislation was a fine example of
the Senate at work; the Senate and House, as a matter of fact. We
believe the agreement that has been reached today will both satisfy the
House Judiciary Committee leadership and the Senate Judiciary Committee
leadership. Now it has already passed the Senate. If the identical bill
passes in the House, it will become law. We will have done what we set
out to do, to pass legislation that will strengthen protections and
civil liberties in America without undermining the rule of law in this
country.
I was proud to be a part of that. We worked very hard on it. I
express particular appreciation to my staff on the Judiciary Committee:
Kristi Lee, who is now U.S. Magistrate in Mobile, AL, and Ed Haden, who
is with me today, who both worked with extraordinary skill to make this
legislation become a reality.
In recent weeks, I am particularly proud of the work Ed Haden has
done to be firm and strong for good, solid legislation that could have
the support of law enforcement in America.
I also express my appreciation for the leadership of Senator Hatch
who chairs the Judiciary Committee. His skill and knowledge on these
issues is unsurpassed, and his dedication to American law is
unsurpassed.
I also was extraordinarily impressed with the commitment and
knowledge and ability of Chairman Henry Hyde of the House Judiciary
Committee. His insight and commitment to making this law better was
remarkable, and I think the result has been something of which we can
all be proud.
____________________