[House Report 114-892]
[From the U.S. Government Publishing Office]
114th Congress } { Rept. 114-892
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
DUE PROCESS ACT OF 2016
_______
December 23, 2016.--Committed to the Committee of the Full House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 5283]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 5283) to amend title 18, United States Code, to
reform certain forfeiture procedures, and for other purposes,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 7
Background and Need for the Legislation.......................... 7
Hearings......................................................... 8
Committee Consideration.......................................... 8
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Duplication of Federal Programs.................................. 9
Disclosure of Directed Rule Makings.............................. 9
Performance Goals and Objectives................................. 9
Advisory on Earmarks............................................. 9
Section-by-Section Analysis...................................... 9
Changes in Existing Law Made by the Bill, as Reported............ 12
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``DUE PROCESS Act of 2016'' or the
``Deterring Undue Enforcement by Protecting Rights of Citizens from
Excessive Searches and Seizures Act of 2016''.
SEC. 2. GENERAL RULES FOR CIVIL FORFEITURE PROCEEDINGS.
Section 983(a) of title 18, United States Code, is amended--
(1) in the subsection heading, by striking ``Complaint'' and
inserting ``Complaint; Initial Hearing'';
(2) in paragraph (1)--
(A) in subparagraph (A)--
(i) in clause (i), by striking ``60 days''
and inserting ``30 days'';
(ii) by striking clause (ii);
(iii) in clause (iii)--
(I) in the matter preceding subclause
(I)--
(aa) by striking ``60-day''
and inserting ``30-day''; and
(bb) by striking ``does not
file'' and all that follows
through ``obtain'' and
inserting ``obtains''; and
(II) in subclause (I), by striking
``60 days'' and inserting ``30 days'';
(iv) in clause (iv), by striking ``90 days''
and inserting ``60 days'';
(v) in clause (v), by striking ``60 days''
and inserting ``30 days''; and
(vi) by adding at the end the following:
``(vi) The notice under this subparagraph shall include an
address, which shall also be widely published, at which the
seizing agency can receive until 5 p.m. on any business day an
interested party's claim contesting a seizure or forfeiture.
The interested party may send such a claim to that address by
courier or overnight mail. For the purpose of determining
compliance with any deadlines in filing such a claim, an
interested party completes the filing by placing the
communication making the claim in the control of an independent
third party delivery service such as a courier company or the
United States mail. In determining whether any legal deadline
for the filing of such a claim has been met a court shall allow
for the equitable tolling of the deadline in appropriate cases.
``(vii) The seizing agency shall make publicly available for
each nonjudicial forfeiture, with respect to which a request
for mitigation or remission is made, a statement of the
agency's disposition of that request, redacted if necessary,
including the reasons for the decision.'';
(B) in subparagraph (C)--
(i) by striking ``60'' and inserting ``30'';
and
(ii) by striking ``which period may'' and all
that follows through ``as necessary,'';
(C) by adding at the end the following:
``(G) Any notice described in subparagraph (A) that is
provided to a party shall include notice of--
``(i) the right of the party to request an initial
hearing in accordance with paragraph (5);
``(ii) the right of the party to be represented by
counsel at the initial hearing described in clause (i)
and any civil forfeiture proceeding under a civil
forfeiture statute; and
``(iii) the right of the party to request that the
party be represented by counsel at the initial hearing
described in clause (i) and any civil forfeiture
proceeding under a civil forfeiture statute if the
party meets the requirements described in subsection
(b).''; and
(D) by striking ``nonjudicial'' each place it
appears;
(3) in paragraph (2)(A), by striking ``nonjudicial'';
(4) in paragraph (2)(B)--
(A) by striking ``35 days'' and inserting ``65
days''; and
(B) by striking ``30 days'' and inserting ``60
days'';
(5) so that subparagraph (A) of paragraph (3) reads as
follows:
``(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 has been filed may extend the period for
filing a complaint upon agreement of the parties.''; and
(6) by adding at the end the following:
``(5)(A) A party claiming property seized in a civil
forfeiture proceeding under a civil forfeiture statute may
request, not later than 30 days after the date on which a
notice described in paragraph (1)(A) is received or if notice
is not received, not later than 30 days after the date of final
publication of notice of seizure, an initial hearing to take
place before a magistrate judge in the appropriate United
States district court not later than the date on which a civil
forfeiture proceeding under a civil forfeiture statute relating
to the seized property commences.
``(B) If a party makes a request under subparagraph (A), a
magistrate judge shall conduct an initial hearing not later
than 10 days after the date on which the request is made.
``(C) At the initial hearing--
``(i) the magistrate judge shall--
``(I) inform the party in easily understood
terms of--
``(aa) the right of the party to be
represented by counsel at the initial
hearing and any civil forfeiture
proceeding under a civil forfeiture
statute;
``(bb) the right of the party to
request that the party be represented
by counsel at the initial hearing and
any civil forfeiture proceeding under a
civil forfeiture statute if the
magistrate judge finds that the party
meets the requirements described in
subsection (b);
``(cc) sufficiently detailed facts
regarding the seizure of the property
if the property was seized pursuant to
a warrant described in the matter
preceding subparagraph (A) of section
981(b)(2); and
``(dd) the right of the party to
challenge the lawfulness of the seizure
of the property, including on the
grounds that at the time the property
was seized--
``(AA) if the property was
seized pursuant to a warrant
described in the matter
preceding subparagraph (A) of
section 981(b)(2), the warrant
was not supported by probable
cause; or
``(BB) if the property was
seized without a warrant
described in subitem (AA), none
of the exceptions described in
subparagraphs (A) and (B) of
section 981(b)(2) apply to the
seizure of the property; and
``(II) if the party meets the requirements
described in subsection (b), authorize counsel
to represent the party or insure that the party
is represented by an attorney for the Legal
Services Corporation, as applicable, in
accordance with that subsection; and
``(ii) the burden of proof is on the Government to
establish that at the time the property was seized--
``(I) if the property was seized pursuant to
a warrant described in the matter preceding
subparagraph (A) of section 981(b)(2), the
warrant was supported by probable cause; or
``(II) if the property was seized without a
warrant described in subclause (I)--
``(aa) sufficiently detailed facts
regarding the seizure of the property;
and
``(bb) an exception described in
subparagraphs (A) and (B) of section
981(b)(2) applies to the seizure of the
property.
``(D) The magistrate judge shall enter an order for the
immediate release of the seized property with prejudice to the
right of the Government to commence a civil forfeiture
proceeding at a later time if the magistrate judge finds that--
``(i) the requirements described in subparagraphs (A)
through (E) of subsection (f)(1) are met; and
``(ii) the Government did not meet the burden of
proof described in subparagraph (C)(ii).''.
SEC. 3. REPRESENTATION.
Section 983(b) of title 18, United States Code, is amended--
(1) in paragraph (1)(A), by striking ``judicial''; and
(2) in paragraph (2)(A), by striking ``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'' and inserting
``civil forfeiture proceeding under a civil forfeiture statute
is financially unable to obtain representation by counsel''.
SEC. 4. BURDEN OF PROOF.
Section 983(c) of title 18, United States Code, is amended--
(1) in paragraph (1), by striking ``a preponderance of the
evidence'' and inserting ``clear and convincing evidence''; and
(2) in paragraph (2), by striking ``a preponderance of the
evidence'' and inserting ``clear and convincing evidence''.
SEC. 5. RIGHT TO REQUEST HEARING ON PRETRIAL RESTRAINT OF PROPERTY TO
RETAIN COUNSEL OF CHOICE.
(a) Title 18.--Section 1963(d) of title 18, United States Code, is
amended--
(1) by striking paragraph (1) and inserting the following:
``(1)(A) Upon application of the United States, the court may enter a
restraining order or injunction, require the execution of a
satisfactory performance bond, or take any other action to preserve the
availability of property described in subsection (a) for forfeiture
under this section--
``(i) upon the filing of an indictment or information
charging a violation of section 1962 and alleging that the
property with respect to which the order is sought would, in
the event of conviction, be subject to forfeiture under this
section; or
``(ii) prior to the filing of such an indictment or
information, 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.
``(B)(i) Upon motion of a defendant charged with a violation of
section 1962 for which criminal forfeiture is ordered under this
section and against whom the order is entered, supported by an
affidavit, the court shall hold a hearing to determine whether to
modify or rescind, in whole or in part, an order entered under
subparagraph (A) to allow the defendant to use the property subject to
the order to retain counsel of choice.
``(ii) At the hearing, the court shall consider--
``(I) the weight of the evidence against the defendant with
respect to the violation of section 1962 for which criminal
forfeiture is ordered under this section;
``(II) the weight of the evidence with respect to whether the
property will be subject to forfeiture under this section;
``(III) the history and characteristics of the defendant; and
``(IV) the nature and circumstances of the case.
``(C) An order entered pursuant to subparagraph (A)(ii) shall be
effective for not more than 90 days, unless--
``(i) extended by the court for good cause shown; or
``(ii) an indictment or information described in subparagraph
(A)(i) has been filed.''; and
(2) in paragraph (2), by inserting ``that the defendant
committed a violation of section 1962 for which criminal
forfeiture may be ordered under this section and probable cause
to believe'' after ``believe''.
(b) Controlled Substances Act.--Section 413(e) of the Controlled
Substances Act (21 U.S.C. 853(e)) is amended--
(1) by striking paragraph (1) and inserting the following:
``(1)(A) Upon application of the United States, the court may enter a
restraining order or injunction, require the execution of a
satisfactory performance bond, or take any other action to preserve the
availability of property described in subsection (a) for forfeiture
under this section--
``(i) upon the filing of an indictment or information
charging a violation of this title or title III for which
criminal forfeiture may be ordered under this section and
alleging that the property with respect to which the order is
sought would, in the event of conviction, be subject to
forfeiture under this section; or
``(ii) prior to the filing of such an indictment or
information, 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.
``(B)(i) Upon motion of a defendant charged with a violation of
section 1962 for which criminal forfeiture is ordered under this
section and against whom the order is entered, supported by an
affidavit sufficient to demonstrate a genuine need for the defendant to
use the property subject to an order entered under subparagraph (A) to
retain counsel of choice, the court shall hold a hearing to determine
whether to modify or rescind, in whole or in part, the order to allow
the defendant to use the property to retain counsel of choice.
``(ii) At the hearing, the court shall consider--
``(I) the weight of the evidence against the defendant with
respect to the violation of this title or title III for which
criminal forfeiture is be ordered under this section;
``(II) the weight of the evidence with respect to whether the
property will be subject to forfeiture under this section;
``(III) the history and characteristics of the defendant; and
``(IV) the nature and circumstances of the case.
``(C) An order entered pursuant to subparagraph (A)(ii) shall be
effective for not more than 90 days, unless--
``(i) extended by the court for good cause shown; or
``(ii) an indictment or information described in subparagraph
(A)(i) has been filed.''; and
(2) in paragraph (2), by inserting ``that the defendant
committed a violation of this title or title III for which
criminal forfeiture may be ordered under this section and
probable cause to believe'' after ``believe''.
SEC. 6. RECOVERY OF ATTORNEYS FEES.
Section 2465(b) of title 28, United States Code, is amended--
(1) in paragraph (1), by striking ``substantially''; and
(2) by adding at the end the following:
``(3) If the claim is resolved by a settlement in which the claimant
prevails, the claimant is entitled to attorneys fees under this
subsection to the same extent that the claimant would be if a judgment
were issued in the proceeding for the property recovered under the
settlement. The payment of attorneys fees under this subsection may not
be waived as a part of any settlement with the claimant. That payment
is not subject to any offset or deduction by the United States in
connection with any claim the United States may have against the
claimant.
``(4) For the purposes of this subsection, a claimant prevails if the
claimant recovers more than 50 percent, by value, of the money or other
property that is claimed.''.
SEC. 7. ANNUAL AUDIT OF CIVIL FORFEITURES.
The Inspector General shall annually conduct an audit of a
representative sample of Federal civil forfeitures under statutes
described in section 983(i) of title 18, United States Code, to ensure
those forfeitures are constitutionally sound and consistent with the
letter and spirit of the law. The Department of Justice Inspector
General shall report the results of the audit to the Attorney General
and to Congress. Such report shall also include the fiscal status of
the Asset Forfeiture Fund and Treasury Forfeiture Fund, including any
projected growth or shrinking of the Funds in future years, and the
viability of the Funds.
SEC. 8. PUBLICLY AVAILABLE DATABASES.
(a) Quarterly Updated Database on Details of Forfeitures.--The
Attorney General shall establish and maintain, with updates on a
quarterly basis, a publicly available database that describes with
respect to seizures for all Federal civil forfeiture containing the
following:
(1) For each such seizure:
(A) Unit of an agency responsible for the seizure,
and the location, including at a minimum the State,
city, and judicial district where and date when the
seizure took place.
(B) The type of initial seizure (such as during a
stop based on probable cause, or pursuant to a Federal
warrant).
(C) The nature and value of the seized property.
(D) In what manner forfeiture of seized property was
conducted (whether by a civil or administrative
proceeding, through settlement, or otherwise).
(E) Whether a forfeiture of the seized property was
of the entire property, or only a part, and if partial,
the proportion of the whole that was forfeited.
(F) The disposition of the seized property, the date
of forfeiture, if any, and the date the disposition
took place.
(G) What type of criminal activity any forfeited
property relates to.
(H) Whether any forfeited money was returned to the
victim of a crime in connection with which the
forfeiture occurred, and the amount returned.
(I) The status of any concurrent or related criminal
proceeding against the owner of the property, any
pending case under title 11 in which the owner of
record of the property is the debtor, and any pending
civil case in which a receiver has been ordered to take
control of the property.
(J) Whether the forfeiture was contested.
(K) Whether the innocent owner made a claim on the
property.
(L) The total expenses associated with the
forfeiture.
(M) The total net proceeds of the forfeiture.
(N) Demographic information on the person or persons
subject to the seizure.
(2) A statistical breakdown for each agency of the cases of
remission and mitigation, including--
(A) the numbers of requests for remission and
mitigation that were--
(i) fully granted;
(ii) partially granted; or
(iii) returned; and
(B) with respect to requests that were partially
granted--
(i) the average percentage of the value of
seized property that was returned to the owner;
and
(ii) what percentage of requests resulted in
returned property in each of the following
categories:
(I) More than zero but less than 25
percent of the property was returned.
(II) 25 percent or more of the
property was returned, but less than 50
percent.
(III) 50 percent or more of the
property was returned, but less than 75
percent.
(IV) 75 percent or more of the
property was returned, but less than
100 percent.
(3) Any money given from the Asset Forfeiture Fund or
Treasury Forfeiture Fund to State or local law enforcement for
Joint Law Enforcement Operations (commonly referred to as
``JLEO'') funding, or for any other purpose, and the name of
the State or local entity receiving that funding.
(b) Real-Time Database To Assist Persons Whose Property Is Seized.--
(1) Establishment.--The Attorney General shall establish and
maintain, with updates on a real-time basis, a database,
organized by State and county, with respect to each Federal
seizure of real and personal property for Federal civil
forfeiture under statutes described in section 983(i) of title
18, United States Code.
(2) Design.--The Attorney General shall design the database
to allow any interested party, including any owner, creditor,
or lienholder, to determine whether that party has an interest
in any such property and to inform that party, and the general
public, on the specifics of how to contest each seizure before
the forfeiture.
(c) Heads of Agencies To Submit Information for Databases.--Not less
frequently than quarterly, on a schedule determined by the Attorney
General, the head of each Federal agency shall submit to the Attorney
General a report that provides, in such form as the Attorney General
may prescribe, the information the Attorney General is required to
include in the databases established under this section.
SEC. 9. STANDARD OF PROOF RELATING TO POSSIBLY INNOCENT OWNERS.
(a) Burden of Proof.--Paragraph (3) of section 983(c) of title 18,
United States Code, is amended to read as follows:
``(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 by clear and
convincing evidence that--
``(A) there was a substantial connection between the
property and the offense; and
``(B) the owner of any interest in the seized
property--
``(i) intentionally used the property in
connection with the offense;
``(ii) knowingly consented to the use of the
property by another in connection with the
offense; or
``(iii) knew that the property was being used
in connection with the offense.''.
(b) Innocent Owner Defense.--
(1) Section 983(d)(1).--Paragraph (1) of section 983(d) of
title 18, United States Code, is amended to read as follows:
``(1) An innocent owner's interest in property shall not be
forfeited under any civil forfeiture statute. The Government
shall have the burden of proving that the claimant is not an
innocent owner by clear and convincing evidence.''.
(2) Section 983(d)(2)(a)(i).--Paragraph (2)(A)(i) of section
983(d) of title 18, United States Code, is amended by inserting
``or consent to'' after ``did not know of''.
SEC. 10. PROPORTIONALITY.
Section 983(g) of title 18, United States Code, is amended--
(1) in paragraph (1), by inserting ``or otherwise
disproportional to the gravity of the offense'' before the
period at the end; and
(2) by amending paragraph (2) to read as follows:
``(2) In making this determination, the court shall consider,
in addition to the analysis as to whether the forfeiture is
constitutionally excessive, the value of the property, the
seriousness of the offense, the level of the claimant's
culpability in the offense giving rise to forfeiture, the
claimant's prior record, the claimant's financial condition,
and whether the forfeiture statute is intended to address the
type of conduct alleged as the basis for forfeiture.''.
SEC. 11. SEARCH AND FORFEITURE OF MONETARY INSTRUMENTS.
Section 5317(c) of title 31, United States Code, is amended by
striking paragraph (2) and inserting the following:
``(2) Civil forfeiture.--
``(A) In general.--Any property involved in a
violation of section 5313 or 5316, or any conspiracy to
commit any such violation, and any property traceable
to any such violation or conspiracy, may be seized and
forfeited to the United States in accordance with the
procedures governing civil forfeitures in money
laundering cases pursuant to section 981(a)(1)(A) of
title 18.
``(B) Structuring.--Any property involved in a
violation of section 5324, or any conspiracy to commit
any such violation, and any property traceable to any
such violation or conspiracy, may be seized and
forfeited to the United States in accordance with the
procedures governing civil forfeitures in money
laundering cases pursuant to section 981(a)(1)(A) of
title 18 only if the property to be seized and
forfeited is derived from an illegal source or if the
structuring offense was used to conceal violations of
other criminal laws.''.
SEC. 12. EFFECTIVE DATE AND APPLICABILITY.
This Act and the amendments made by this Act shall take effect on the
date of the enactment of this Act and apply only with respect to
seizures made on or after that date. Seizures made before that date
shall continue to be governed by the law as it existed without regard
to this Act or the amendments made by this Act.
Purpose and Summary
H.R. 5283, the ``Deterring Undue Enforcement by Protecting
Rights of Citizens from Excessive Searches and Seizures Act of
2016,'' or ``DUE PROCESS Act,'' implements procedural reforms
to ensure fairness and continued effectiveness of Federal
forfeiture and adoptions. The bill seeks to build on changes
and incorporate lessons learned from the Civil Action
Forfeiture Reform Act (CAFRA) in 2000.
Background and Need for the Legislation
In early 2015, Chairman Goodlatte and Ranking Member
Conyers created a Criminal Justice Reform Initiative at the
Judiciary Committee to address the significant Congressional
interest in criminal justice reform from Members who do and do
not serve on the Judiciary Committee. The purpose of the
Initiative was to develop bipartisan legislation to address
several facets of the federal criminal justice system,
including over-criminalization, sentencing reform, prison and
reentry reform, protecting citizens through improved criminal
procedures and policing strategies, and civil asset forfeiture
reform. In addressing these issues, the Committee has relied on
the work of the Over-Criminalization Task Force, which held
nine hearings on a variety of criminal justice topics during
the 113th Congress, as well as the information provided to the
Committee by interested Members during the Committee's public
listening session in June 2015.
In recent years, there have been many reported incidents in
which innocent Americans have had their property or money
improperly seized by law enforcement. While asset forfeiture is
a useful law enforcement tool, abuses of it clearly show that
reform is needed to better protect innocent Americans' property
swept up by forfeiture.
In order to strengthen protections for Americans' property,
the DUE PROCESS Act provides much needed reforms to Federal
civil asset forfeiture programs, increases accountability and
oversight of seizures and forfeitures, and strengthens
protections for Americans whose property has been seized by law
enforcement agencies.
Hearings
The Committee on the Judiciary held no hearings on H.R.
5283. However, on February 11, 2015, the Subcommittee on Crime,
Terrorism, Homeland Security, and Investigations held a hearing
to examine asset forfeiture procedures and practices, entitled
``Federal Asset Forfeiture: Uses and Reforms.''
Committee Consideration
On May 23, 2016, the Committee met in open session and
ordered the bill H.R. 5283 favorably reported, with an
amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 5283.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
With respect to clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives, an estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974 was
not submitted to the Committee before the of filing of the
report.
Duplication of Federal Programs
No provision of H.R. 5283 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 5283 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
5283 will protect innocent citizens from unwittingly being
ensnared in civil asset forfeiture, while at the same time
protecting civil asset forfeiture as a tool for law enforcement
to use against criminals and criminal organizations.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5283 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
Section 1. Short Title.
This section cites the short title of the bill as the ``DUE
PROCESS Act (DPA) of 2016.''
Section 2. General Rules for Civil Forfeiture Proceedings.
One of the most important changes in CAFRA was the creation
of a timeline governing the process from seizure to forfeiture.
The ability to force timely adjudication mitigates the hardship
to innocent owners and expedites title transfer to the
government in the event of a valid forfeiture.
To that end, the DPA broadens the applicability of the
CAFRA timelines, adjusts the timeframes in light of the past
sixteen years of real world experience, and implements new
protections to ensure property owners have the opportunity to
contest seizures.
Expanding the CAFRA Timelines. The CAFRA timelines
currently apply only in nonjudicial (administrative)
forfeitures. This was likely a typographical error, but the
result is that property owners lose the benefits of CAFRA in
some of the highest value forfeiture proceedings. The DPA
ensures that the statutory timelines apply equally in all types
of forfeiture proceedings.
Deadline for Notice from the Government. Under current law,
the government has 60 days to provide notice of a seizure to a
property owner. The DPA reduces this to 30 days. When the
Federal Government adopts a state seizure, the notice period is
60 days. The Department of Justice (DOJ) can extend this period
for an additional 30 days for good cause. A court can extend
the period for an additional 30 days based on specified
factors.
Required Notice. DPA creates new notice requirements, which
include an address where a property owner can contest a seizure
and a duty to inform property owners of their rights--created
in the DPA--to request an initial hearing, to be represented by
counsel at that hearing, and to have counsel provided if the
property owner is indigent.
For purposes of deadlines, a property owner's notice is
considered received when it is mailed and the law expressly
allows for equitable tolling of deadlines when appropriate.
Property Owner's Response. The DPA extends the period that
property owners have to respond to a seizure. In the case of
personal notice, the property owner has 65 days (increased from
35 days), and in the case of publicized notice, 60 days
(increased from 30).
Filing of a Claim. The government has 90 days after an
objection is filed to commence forfeiture proceedings. Under
current law, a court can extend this time period upon motion of
the government. Under the DPA, the period can be extended only
upon agreement of both parties.
Initial Hearing. Upon request, a property owner is entitled
to an initial hearing. At the hearing, a magistrate judge shall
inform the property owner of his right to be represented by
counsel and the right to be provided counsel under specified
circumstances for indigent property owners. The judge shall
order the immediate release of property if the seizure was not
made according to law or if the property owner meets the
requirements of section 983(f)(1).
Transparency on Administrative Forfeitures. A seizing
agency must publicize its disposition of remission and
mitigation requests.
Section 3. Representation.
The right of indigent property owners to have counsel
provided to them is extended to all civil forfeiture
proceedings. Under current law, indigent property owners are
only entitled to counsel at judicial proceedings despite the
fact that a majority of forfeitures are resolved
administratively.
Section 4. Burden of Proof.
Recognizing the punitive nature of civil forfeiture
proceedings, the DPA raises the government's burden of proof
from ``preponderance of the evidence'' to ``clear and
convincing evidence.'' This is still lower than the criminal
standard of ``beyond a reasonable doubt.''
Section 5. The Right to Retain Counsel of Choice.
Section 5 is the bill's only reform of criminal forfeiture.
In Kaley v. United States, the Supreme Court ruled that a
criminal defendant is not constitutionally entitled to an
evidentiary hearing to contest the factual predicate of a
pretrial restraint on assets even when that money is necessary
to pay for his defense.
The DPA reverses the Kaley decision and bolsters the Sixth
Amendment right to counsel. If the government restrains assets
pretrial, a defendant can move for a hearing to determine
whether the seizure should be modified or rescinded to preserve
the defendant's right to counsel. At the hearing, the court
must consider (1) the weight of the evidence against the
defendant, (2) the weight of the evidence with respect to the
forfeiture, (3) the history and characteristics of the
defendant, and (4) the nature and circumstances of the case.
Section 6. Recovery of Attorney's Fees.
Allows for recovery of attorney's fees when civil
forfeiture cases are resolved through settlement assuming the
settlement amount is greater than 50% of the seized property's
value.
Section 7. Annual Audit of Civil Forfeitures.
The DPA requires the DOJ Inspector General to conduct an
annual audit of a sample of Federal civil forfeitures to ensure
that they are consistent with the Constitution and the law. The
IG's report shall also include an assessment of the fiscal
health of the Asset Forfeiture Fund, as well as a projection on
any expected growth or reduction.
Section 8. Publicly Available Databases.
The DPA requires the Attorney General to establish and
maintain two forfeiture-related databases. One database is a
real-time catalogue of Federal forfeitures to assist persons
whose property has been seized.
The second database provides broad details on forfeiture to
inform Congress and the public of the types of forfeiture, the
agencies involved, and the conduct that leads to forfeiture of
property.
Section 9. Monetary Instruments and Structuring.
This section codifies already implemented DOJ/IRS policy
related to structuring and forfeiture. Structuring is a crime
only if cash deposits or withdrawals are done with the intent
of avoiding government reporting requirements.
The IRS, however, had frequently used civil forfeiture to
seize property when it identified patterns of deposits or
withdrawals that were consistent with structuring even when it
lacked sufficient evidence to file criminal charges or identify
other criminal activity.
Last year, DOJ and IRS announced that they would only
charge people with structuring if the funds that were being
structured were from illegal sources (e.g., drug trafficking)
or the structuring was done to further or hide criminal
activity (e.g., tax evasion).
This section codifies that policy and only allows civil
forfeiture in structuring cases when the property to be seized
is derived from an illegal source or otherwise used to conceal
illegal activity.
Section 10. Standard of Proof Relating to Innocent Owners.
The DPA provides additional protection to innocent owners.
If the government is attempting to forfeit property under a
civil forfeiture statute because the property was used in the
commission of a crime, the government must prove that (1) there
was a substantial connection between the property and the
offense; and (2) the owner of the seized property intentionally
used the property in the offense, knowingly consented to its
criminal use, or reasonably should have known that the property
might be used in connection with the offense.
Section 11. Proportionality.
Under current law, a judge may reduce the value of a
forfeiture only when the forfeiture is so grossly
disproportionate to the underlying wrongdoing that it rises to
the level of a constitutional violation under the Eighth
Amendment. The DPA gives judges greater latitude to reduce the
size of a forfeiture penalty based on the following factors:
the value of the property, the seriousness of the offense, the
culpability of the claimant, the claimant's prior record, the
claimant's financial condition and need to support a family,
and the intent of the forfeiture statute in question.
Section 12. Effective Date.
The DPA will be effective when adopted. Seizures made prior
to enactment will be forfeited under current law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 46--FORFEITURE
* * * * * * *
Sec. 983. General rules for civil forfeiture proceedings
(a) Notice; Claim; Complaint; Initial Hearing.--
(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] 30 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] 30-day period expires,
the Government [does not file a civil judicial
forfeiture action, but does obtain] obtains a criminal
indictment containing an allegation that the property
is subject to forfeiture, the Government shall either--
(I) send notice within the [60 days] 30 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] 60 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] 30 days after the
determination by the Government of the identity of the
party or the party's interest.
(vi) The notice under this subparagraph shall include
an address, which shall also be widely published, at
which the seizing agency can receive until 5 p.m. on
any business day an interested party's claim contesting
a seizure or forfeiture. The interested party may send
such a claim to that address by courier or overnight
mail. For the purpose of determining compliance with
any deadlines in filing such a claim, an interested
party completes the filing by placing the communication
making the claim in the control of an independent third
party delivery service such as a courier company or the
United States mail. In determining whether any legal
deadline for the filing of such a claim has been met a
court shall allow for the equitable tolling of the
deadline in appropriate cases.
(vii) The seizing agency shall make publicly
available for each nonjudicial forfeiture, with respect
to which a request for mitigation or remission is made,
a statement of the agency's disposition of that
request, redacted if necessary, including the reasons
for the decision.
(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] 30 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.
(G) Any notice described in subparagraph (A) that is
provided to a party shall include notice of--
(i) the right of the party to request an
initial hearing in accordance with paragraph
(5);
(ii) the right of the party to be represented
by counsel at the initial hearing described in
clause (i) and any civil forfeiture proceeding
under a civil forfeiture statute; and
(iii) the right of the party to request that
the party be represented by counsel at the
initial hearing described in clause (i) and any
civil forfeiture proceeding under a civil
forfeiture statute if the party meets the
requirements described in subsection (b).
(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] 65 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] 60 days
after the date of final publication of notice of
seizure.
(C) A claim shall--
(i) identify the specific property being
claimed;
(ii) state the claimant's interest in such
property; 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.] (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 has been filed may
extend the period for filing a complaint 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.
(5)(A) A party claiming property seized in a civil
forfeiture proceeding under a civil forfeiture statute
may request, not later than 30 days after the date on
which a notice described in paragraph (1)(A) is
received or if notice is not received, not later than
30 days after the date of final publication of notice
of seizure, an initial hearing to take place before a
magistrate judge in the appropriate United States
district court not later than the date on which a civil
forfeiture proceeding under a civil forfeiture statute
relating to the seized property commences.
(B) If a party makes a request under subparagraph
(A), a magistrate judge shall conduct an initial
hearing not later than 10 days after the date on which
the request is made.
(C) At the initial hearing--
(i) the magistrate judge shall--
(I) inform the party in easily
understood terms of--
(aa) the right of the party
to be represented by counsel at
the initial hearing and any
civil forfeiture proceeding
under a civil forfeiture
statute;
(bb) the right of the party
to request that the party be
represented by counsel at the
initial hearing and any civil
forfeiture proceeding under a
civil forfeiture statute if the
magistrate judge finds that the
party meets the requirements
described in subsection (b);
(cc) sufficiently detailed
facts regarding the seizure of
the property if the property
was seized pursuant to a
warrant described in the matter
preceding subparagraph (A) of
section 981(b)(2); and
(dd) the right of the party
to challenge the lawfulness of
the seizure of the property,
including on the grounds that
at the time the property was
seized--
(AA) if the property
was seized pursuant to
a warrant described in
the matter preceding
subparagraph (A) of
section 981(b)(2), the
warrant was not
supported by probable
cause; or
(BB) if the property
was seized without a
warrant described in
subitem (AA), none of
the exceptions
described in
subparagraphs (A) and
(B) of section
981(b)(2) apply to the
seizure of the
property; and
(II) if the party meets the
requirements described in subsection
(b), authorize counsel to represent the
party or insure that the party is
represented by an attorney for the
Legal Services Corporation, as
applicable, in accordance with that
subsection; and
(ii) the burden of proof is on the Government
to establish that at the time the property was
seized--
(I) if the property was seized
pursuant to a warrant described in the
matter preceding subparagraph (A) of
section 981(b)(2), the warrant was
supported by probable cause; or
(II) if the property was seized
without a warrant described in
subclause (I)--
(aa) sufficiently detailed
facts regarding the seizure of
the property; and
(bb) an exception described
in subparagraphs (A) and (B) of
section 981(b)(2) applies to
the seizure of the property.
(D) The magistrate judge shall enter an order for the
immediate release of the seized property with prejudice
to the right of the Government to commence a civil
forfeiture proceeding at a later time if the magistrate
judge finds that--
(i) the requirements described in
subparagraphs (A) through (E) of subsection
(f)(1) are met; and
(ii) the Government did not meet the burden
of proof described in subparagraph (C)(ii).
(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] civil forfeiture proceeding under a civil
forfeiture statute is financially unable to obtain
representation by counsel, 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] clear
and convincing 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] clear and
convincing 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.]
(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 by clear and convincing evidence that--
(A) there was a substantial connection
between the property and the offense; and
(B) the owner of any interest in the seized
property--
(i) intentionally used the property
in connection with the offense;
(ii) knowingly consented to the use
of the property by another in
connection with the offense; or
(iii) knew that the property was
being used in connection with 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.]
(1) An innocent owner's interest in property shall
not be forfeited under any civil forfeiture statute.
The Government shall have the burden of proving that
the claimant is not an innocent owner by clear and
convincing 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 or consent to 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 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 or otherwise disproportional
to the gravity of the offense.
[(2) In making this determination, the court shall
compare the forfeiture to the gravity of the offense
giving rise to the forfeiture.]
(2) In making this determination, the court shall
consider, in addition to the analysis as to whether the
forfeiture is constitutionally excessive, the value of
the property, the seriousness of the offense, the level
of the claimant's culpability in the offense giving
rise to forfeiture, the claimant's prior record, the
claimant's financial condition, and whether the
forfeiture statute is intended to address the type of
conduct alleged as the basis for 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 three 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.
4301 et seq.), the International Emergency
Economic Powers Act (50 U.S.C. 1701 et seq.),
or the North Korea Sanctions Enforcement Act of
2016; or
(E) section 1 of title VI of the Act of June
15, 1917 (40 Stat. 233; 22 U.S.C. 401).
(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 14 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.
* * * * * * *
CHAPTER 96--RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
* * * * * * *
Sec. 1963. Criminal penalties
(a) Whoever violates any provision of section 1962 of this
chapter shall be fined under this title or imprisoned not more
than 20 years (or for life if the violation is based on a
racketeering activity for which the maximum penalty includes
life imprisonment), or both, and shall forfeit to the United
States, irrespective of any provision of State law--
(1) any interest the person has acquired or
maintained in violation of section 1962;
(2) any--
(A) interest in;
(B) security of;
(C) claim against; or
(D) property or contractual right of any kind
affording a source of influence over;
any enterprise which the person has established,
operated, controlled, conducted, or participated in the
conduct of, in violation of section 1962; and
(3) any property constituting, or derived from, any
proceeds which the person obtained, directly or
indirectly, from racketeering activity or unlawful debt
collection in violation of section 1962.
The court, in imposing sentence on such person shall order, in
addition to any other sentence imposed pursuant to this
section, that the person forfeit to the United States all
property described in this subsection. In lieu of a fine
otherwise authorized by this section, a defendant who derives
profits or other proceeds from an offense may be fined not more
than twice the gross profits or other proceeds.
(b) Property subject to criminal forfeiture under this
section includes--
(1) real property, including things growing on,
affixed to, and found in land; and
(2) tangible and intangible personal property,
including rights, privileges, interests, claims, and
securities.
(c) All right, title, and interest in property described in
subsection (a) vests in the United States upon the commission
of the act giving rise to forfeiture under this section. Any
such property that is subsequently transferred to a person
other than the defendant may be the subject of a special
verdict of forfeiture and thereafter shall be ordered forfeited
to the United States, unless the transferee establishes in a
hearing pursuant to subsection (l) that he is a bona fide
purchaser for value of such property who at the time of
purchase was reasonably without cause to believe that the
property was subject to forfeiture under this section.
(d)[(1) Upon application of the United States, the court may
enter a restraining order or injunction, require the execution
of a satisfactory performance bond, or take any other action to
preserve the availability of property described in subsection
(a) for forfeiture under this section--
[(A) upon the filing of an indictment or information
charging a violation of section 1962 of this chapter
and alleging that the property with respect to which
the order is sought would, in the event of conviction,
be subject to forfeiture under this section; or
[(B) prior to the filing of such an indictment or
information, 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:
Provided, however, That an order entered pursuant to
subparagraph (B) shall be effective for not more than ninety
days, unless extended by the court for good cause shown or
unless an indictment or information described in subparagraph
(A) has been filed.]
(1)(A) Upon application of the United States, the court may
enter a restraining order or injunction, require the execution
of a satisfactory performance bond, or take any other action to
preserve the availability of property described in subsection
(a) for forfeiture under this section--
(i) upon the filing of an indictment or information
charging a violation of section 1962 and alleging that
the property with respect to which the order is sought
would, in the event of conviction, be subject to
forfeiture under this section; or
(ii) prior to the filing of such an indictment or
information, 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.
(B)(i) Upon motion of a defendant charged with a violation of
section 1962 for which criminal forfeiture is ordered under
this section and against whom the order is entered, supported
by an affidavit, the court shall hold a hearing to determine
whether to modify or rescind, in whole or in part, an order
entered under subparagraph (A) to allow the defendant to use
the property subject to the order to retain counsel of choice.
(ii) At the hearing, the court shall consider--
(I) the weight of the evidence against the defendant
with respect to the violation of section 1962 for which
criminal forfeiture is ordered under this section;
(II) the weight of the evidence with respect to
whether the property will be subject to forfeiture
under this section;
(III) the history and characteristics of the
defendant; and
(IV) the nature and circumstances of the case.
(C) An order entered pursuant to subparagraph (A)(ii) shall
be effective for not more than 90 days, unless--
(i) extended by the court for good cause shown; or
(ii) an indictment or information described in
subparagraph (A)(i) has been filed.
(2) A temporary restraining order under this subsection may
be entered upon application of the United States without notice
or opportunity for a hearing when an information or indictment
has not yet been filed with respect to the property, if the
United States demonstrates that there is probable cause to
believe that the defendant committed a violation of section
1962 for which criminal forfeiture may be ordered under this
section and probable cause to believe that the property with
respect to which the order is sought would, in the event of
conviction, be subject to forfeiture under this section and
that provision of notice will jeopardize the availability of
the property for forfeiture. Such a temporary order shall
expire not more than fourteen 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.
(3) 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.
(e) Upon conviction of a person under this section, the court
shall enter a judgment of forfeiture of the property to the
United States and shall also authorize the Attorney General to
seize all property ordered forfeited upon such terms and
conditions as the court shall deem proper. Following the entry
of an order declaring the property forfeited, the court may,
upon application of the United States, enter such appropriate
restraining orders or injunctions, require the execution of
satisfactory performance bonds, appoint receivers,
conservators, appraisers, accountants, or trustees, or take any
other action to protect the interest of the United States in
the property ordered forfeited. Any income accruing to, or
derived from, an enterprise or an interest in an enterprise
which has been ordered forfeited under this section may be used
to offset ordinary and necessary expenses to the enterprise
which are required by law, or which are necessary to protect
the interests of the United States or third parties.
(f) Following the seizure of property ordered forfeited under
this section, the Attorney General shall direct the disposition
of the property by sale or any other commercially feasible
means, making due provision for the rights of any innocent
persons. Any property right or interest not exercisable by, or
transferable for value to, the United States shall expire and
shall not revert to the defendant, nor shall the defendant or
any person acting in concert with or on behalf of the defendant
be eligible to purchase forfeited property at any sale held by
the United States. Upon application of a person, other than the
defendant or a person acting in concert with or on behalf of
the defendant, the court may restrain or stay the sale or
disposition of the property pending the conclusion of any
appeal of the criminal case giving rise to the forfeiture, if
the applicant demonstrates that proceeding with the sale or
disposition of the property will result in irreparable injury,
harm or loss to him. Notwithstanding 31 U.S.C. 3302(b), the
proceeds of any sale or other disposition of property forfeited
under this section and any moneys forfeited shall be used to
pay all proper expenses for the forfeiture and the sale,
including expenses of seizure, maintenance and custody of the
property pending its disposition, advertising and court costs.
The Attorney General shall deposit in the Treasury any amounts
of such proceeds or moneys remaining after the payment of such
expenses.
(g) With respect to property ordered forfeited under this
section, the Attorney General is authorized to--
(1) grant petitions for mitigation or remission of
forfeiture, restore forfeited property to victims of a
violation of this chapter, or take any other action to
protect the rights of innocent persons which is in the
interest of justice and which is not inconsistent with
the provisions of this chapter;
(2) compromise claims arising under this section;
(3) award compensation to persons providing
information resulting in a forfeiture under this
section;
(4) direct the disposition by the United States of
all property ordered forfeited under this section by
public sale or any other commercially feasible means,
making due provision for the rights of innocent
persons; and
(5) take appropriate measures necessary to safeguard
and maintain property ordered forfeited under this
section pending its disposition.
(h) The Attorney General may promulgate regulations with
respect to--
(1) making reasonable efforts to provide notice to
persons who may have an interest in property ordered
forfeited under this section;
(2) granting petitions for remission or mitigation of
forfeiture;
(3) the restitution of property to victims of an
offense petitioning for remission or mitigation of
forfeiture under this chapter;
(4) the disposition by the United States of forfeited
property by public sale or other commercially feasible
means;
(5) the maintenance and safekeeping of any property
forfeited under this section pending its disposition;
and
(6) the compromise of claims arising under this
chapter.
Pending the promulgation of such regulations, all provisions of
law relating to the disposition of property, or the proceeds
from the sale thereof, or the remission or mitigation of
forfeitures for violation of the customs laws, and the
compromise of claims and the award of compensation to informers
in respect of such forfeitures shall apply to forfeitures
incurred, or alleged to have been incurred, under the
provisions of this section, insofar as applicable and not
inconsistent with the provisions hereof. Such duties as are
imposed upon the Customs Service or any person with respect to
the disposition of property under the customs law shall be
performed under this chapter by the Attorney General.
(i) Except as provided in subsection (l), no party claiming
an interest in property subject to forfeiture under this
section may--
(1) intervene in a trial or appeal of a criminal case
involving the forfeiture of such property under this
section; or
(2) commence an action at law or equity against the
United States concerning the validity of his alleged
interest in the property subsequent to the filing of an
indictment or information alleging that the property is
subject to forfeiture under this section.
(j) The district courts of the United States shall have
jurisdiction to enter orders as provided in this section
without regard to the location of any property which may be
subject to forfeiture under this section or which has been
ordered forfeited under this section.
(k) In order to facilitate the identification or location of
property declared forfeited and to facilitate the disposition
of petitions for remission or mitigation of forfeiture, after
the entry of an order declaring property forfeited to the
United States the court may, upon application of the United
States, order that the testimony of any witness relating to the
property forfeited be taken by deposition and that any
designated book, paper, document, record, recording, or other
material not privileged be produced at the same time and place,
in the same manner as provided for the taking of depositions
under Rule 15 of the Federal Rules of Criminal Procedure.
(l)(1) Following the entry of an order of forfeiture under
this section, the United States shall publish notice of the
order and of its intent to dispose of the property in such
manner as the Attorney General may direct. The Government may
also, to the extent practicable, provide direct written notice
to any person known to have alleged an interest in the property
that is the subject of the order of forfeiture as a substitute
for published notice as to those persons so notified.
(2) Any person, other than the defendant, asserting a legal
interest in property which has been ordered forfeited to the
United States pursuant to this section may, within thirty days
of the final publication of notice or his receipt of notice
under paragraph (1), whichever is earlier, petition the court
for a hearing to adjudicate the validity of his alleged
interest in the property. The hearing shall be held before the
court alone, without a jury.
(3) The petition shall be signed by the petitioner under
penalty of perjury and shall set forth the nature and extent of
the petitioner's right, title, or interest in the property, the
time and circumstances of the petitioner's acquisition of the
right, title, or interest in the property, any additional facts
supporting the petitioner's claim, and the relief sought.
(4) The hearing on the petition shall, to the extent
practicable and consistent with the interests of justice, be
held within thirty days of the filing of the petition. The
court may consolidate the hearing on the petition with a
hearing on any other petition filed by a person other than the
defendant under this subsection.
(5) At the hearing, the petitioner may testify and present
evidence and witnesses on his own behalf, and cross-examine
witnesses who appear at the hearing. The United States may
present evidence and witnesses in rebuttal and in defense of
its claim to the property and cross-examine witnesses who
appear at the hearing. In addition to testimony and evidence
presented at the hearing, the court shall consider the relevant
portions of the record of the criminal case which resulted in
the order of forfeiture.
(6) If, after the hearing, the court determines that the
petitioner has established by a preponderance of the evidence
that--
(A) the petitioner has a legal right, title, or
interest in the property, and such right, title, or
interest renders the order of forfeiture invalid in
whole or in part because the right, title, or interest
was vested in the petitioner rather than the defendant
or was superior to any right, title, or interest of the
defendant at the time of the commission of the acts
which gave rise to the forfeiture of the property under
this section; or
(B) the petitioner is a bona fide purchaser for value
of the right, title, or interest in the property and
was at the time of purchase reasonably without cause to
believe that the property was subject to forfeiture
under this section;
the court shall amend the order of forfeiture in accordance
with its determination.
(7) Following the court's disposition of all petitions filed
under this subsection, or if no such petitions are filed
following the expiration of the period provided in paragraph
(2) for the filing of such petitions, the United States shall
have clear title to property that is the subject of the order
of forfeiture and may warrant good title to any subsequent
purchaser or transferee.
(m) If any of the property described in subsection (a), as a
result of any act or omission of the defendant--
(1) cannot be located upon the exercise of due
diligence;
(2) has been transferred or sold to, or deposited
with, a third party;
(3) has been placed beyond the jurisdiction of the
court;
(4) has been substantially diminished in value; or
(5) has been commingled with other property which
cannot be divided without difficulty;
the court shall order the forfeiture of any other property of
the defendant up to the value of any property described in
paragraphs (1) through (5).
* * * * * * *
----------
CONTROLLED SUBSTANCES ACT
TITLE II--CONTROL AND ENFORCEMENT
* * * * * * *
Part D--Offenses and Penalties
* * * * * * *
Criminal Forfeitures
property subject to criminal forfeiture
Sec. 413. (a) Any person convicted of a violation of this
title or title III punishable by imprisonment for more than one
year shall forfeit to the United States, irrespective of any
provision of State law--
(1) any property constituting, or derived from, any
proceeds the person obtained, directly or indirectly,
as the result of such violation;
(2) any of the person's property used, or intended to
be used, in any manner or part, to commit, or to
facilitate the commission of, such violation; and
(3) in the case of a person convicted of engaging in
a continuing criminal enterprise in violation of
section 408 of this title (21 U.S.C. 848), the person
shall forfeit, in addition to any property described in
paragraph (1) or (2), any of his interest in, claims
against, and property or contractual rights affording a
source of control over, the continuing criminal
enterprise.
The court, in imposing sentence on such person, shall order, in
addition to any other sentence imposed pursuant to this title
or title III, that the person forfeit to the United States all
property described in this subsection. In lieu of a fine
otherwise authorized by this part, a defendant who derives
profits or other proceeds from an offense may be fined not more
than twice the gross profits or other proceeds.
MEANING OF TERM ``PROPERTY''
(b) Property subject to criminal forfeiture under this
section includes--
(1) real property, including things growing on,
affixed to, and found in land; and
(2) tangible and intangible personal property,
including rights, privileges, interests, claims, and
securities.
THIRD PARTY TRANSFERS
(c) All right, title, and interest in property described in
subsection (a) vests in the United States upon the commission
of the act giving rise to forfeiture under this section. Any
such property that is subsequently transferred to a person
other than the defendant may be the subject of a special
verdict of forfeiture and thereafter shall be ordered forfeited
to the United States, unless the transferee establishes in a
hearing pursuant to subsection (n) that he is a bona fide
purchaser for value of such property who at the time of
purchase was reasonably without cause to believe that the
property was subject to forfeiture under this section.
REBUTTABLE PRESUMPTION
(d) There is a rebuttable presumption at trial that any
property of a person convicted of a felony under this title or
title III is subject to forfeiture under this section if the
United States establishes by a preponderance of the evidence
that--
(1) such property was acquired by such person during
the period of the violation of this title or title III
or within a reasonable time after such period; and
(2) there was no likely source for such property
other than the violation of this title or title III.
PROTECTIVE ORDERS
(e)[(1) Upon application of the United States, the court may
enter a restraining order or injunction, require the execution
of a satisfactory performance bond, or take any other action to
preserve the availability of property described in subsection
(a) for forfeiture under this section--
[(A) upon the filing of an indictment or information
charging a violation of this title or title III for
which criminal forfeiture may be ordered under this
section and alleging that the property with respect to
which the order is sought would, in the event of
conviction, be subject to forfeiture under this
section; or
[(B) prior to the filing of such an indictment or
information, 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:
Provided, however, That an order entered pursuant to
subparagraph (B) shall be effective for not more than ninety
days, unless extended by the court for good cause shown or
unless an indictment or information described in subparagraph
(A) has been filed.]
(1)(A) Upon application of the United States, the court may
enter a restraining order or injunction, require the execution
of a satisfactory performance bond, or take any other action to
preserve the availability of property described in subsection
(a) for forfeiture under this section--
(i) upon the filing of an indictment or information
charging a violation of this title or title III for
which criminal forfeiture may be ordered under this
section and alleging that the property with respect to
which the order is sought would, in the event of
conviction, be subject to forfeiture under this
section; or
(ii) prior to the filing of such an indictment or
information, 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.
(B)(i) Upon motion of a defendant charged with a violation of
section 1962 for which criminal forfeiture is ordered under
this section and against whom the order is entered, supported
by an affidavit sufficient to demonstrate a genuine need for
the defendant to use the property subject to an order entered
under subparagraph (A) to retain counsel of choice, the court
shall hold a hearing to determine whether to modify or rescind,
in whole or in part, the order to allow the defendant to use
the property to retain counsel of choice.
(ii) At the hearing, the court shall consider--
(I) the weight of the evidence against the defendant
with respect to the violation of this title or title
III for which criminal forfeiture is be ordered under
this section;
(II) the weight of the evidence with respect to
whether the property will be subject to forfeiture
under this section;
(III) the history and characteristics of the
defendant; and
(IV) the nature and circumstances of the case.
(C) An order entered pursuant to subparagraph (A)(ii) shall
be effective for not more than 90 days, unless--
(i) extended by the court for good cause shown; or
(ii) an indictment or information described in
subparagraph (A)(i) has been filed.
(2) A temporary restraining order under this subsection may
be entered upon application of the United States without notice
or opportunity for a hearing when an information or indictment
has not yet been filed with respect to the property, if the
United States demonstrates that there is probable cause to
believe that the defendant committed a violation of this title
or title III for which criminal forfeiture may be ordered under
this section and probable cause to believe that the property
with respect to which the order is sought would, in the event
of conviction, be subject to forfeiture under this section and
that provision of notice will jeopardize the availability of
the property for forfeiture. Such a temporary order shall
expire not more than fourteen 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.
(3) 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.
(4) Order to repatriate and deposit.--
(A) In general.--Pursuant to its authority to
enter a pretrial restraining order under this
section, the court may order a defendant to
repatriate any property that may be seized and
forfeited, and to deposit that property pending
trial in the registry of the court, or with the
United States Marshals Service or the Secretary
of the Treasury, in an interest-bearing
account, if appropriate.
(B) Failure to comply.--Failure to comply
with an order under this subsection, or an
order to repatriate property under subsection
(p), shall be punishable as a civil or criminal
contempt of court, and may also result in an
enhancement of the sentence of the defendant
under the obstruction of justice provision of
the Federal Sentencing Guidelines.
WARRANT OF SEIZURE
(f) The Government may request the issuance of a warrant
authorizing the seizure of property subject to forfeiture under
this section in the same manner as provided for a search
warrant. If the court determines that there is probable cause
to believe that the property to be seized would, in the event
of conviction, be subject to forfeiture and that an order under
subsection (e) may not be sufficient to assure the availability
of the property for forfeiture, the court shall issue a warrant
authorizing the seizure of such property.
EXECUTION
(g) Upon entry of an order of forfeiture under this section,
the court shall authorize the Attorney General to seize all
property ordered forfeited upon such terms and conditions as
the court shall deem proper. Following entry of an order
declaring the property forfeited, the court may, upon
application of the United States, enter such appropriate
restraining orders or injunctions, require the execution of
satisfactory performance bonds, appoint receivers,
conservators, appraisers, accountants, or trustees, or take any
other action to protect the interest of the United States in
the property ordered forfeited. Any income accuring to or
derived from property ordered forfeited under this section may
be used to offset ordinary and necessary expenses to the
property which are required by law, or which are necessary to
protect the interests of the United States or third parties.
DISPOSITION OF PROPERTY
(h) Following the seizure of property ordered forfeited under
this section, the Attorney General shall direct the disposition
of the property by sale of any other any other commercially
feasible means, making due provision for the rights of any
innocent persons. Any property right or interest not
exercisable by, or transferable for value to, the United States
shall expire and shall not revert to the defendant, nor shall
the defendant or any person acting in concert with him or on
his behalf be eligible to purchase forfeited property at any
sale held by the United States. Upon application of a person,
other than the defendant or a person acting in concert with him
or on his behalf, the court may restrain or stay the sale or
disposition of the property pending the conclusion of any
appeal of the criminal case giving rise to the forefeiture, if
the applicant demonstrates that proceeding with the sale or
disposition of the property will result in irreparable injury,
harm, or loss to him.
AUTHORITY OF THE ATTORNEY GENERAL
(i) With respect to property ordered forfeited under this
section, the Attorney General is authorized to--
(1) grant petitions for mitigation or remission of
forfeiture, restore forfeited property to victims of a
violation of this title, or take any other action to
protect the rights of innocent persons which is in the
interest of justice and which is not inconsistent with
the provisions of this section;
(2) compromise claims arising under this section;
(3) award compensation to persons providing
information resulting in a forfeiture under this
section;
(4) direct the disposition by the United States, in
accordance with the provisions of section 511(e) of
this title (21 U.S.C. 881(e)), of all property ordered
forfeited under this section by public sale or any
other commerically feasible means, making due provision
for the rights of innocent persons; and
(5) take appropriate measures necessary to safeguard
and maintain property ordered forfeited under this
section pending its disposition.
APPLICABILITY OF CIVIL FORFEITURE PROVISIONS
(j) Except to the extent that they are inconsistent with the
provisions of this section, the provisions of section 511(d) of
this title (21 U.S.C. 881(d)) shall apply to a criminal
forfeiture under this section.
BAR ON INTERVENTION
(k) Except as provided in subsection (n), no party claiming
an interest in property subject to forfeiture under this
section may--
(1) intervene in a trial or appeal of a criminal case
involving the forfeiture of such property under this
section; or
(2) commence an action at law or equity against the
United States concerning the validity of his alleged
interest in the property subsequent to the filing of an
indictment or information alleging that the property in
subject to forfeiture under this section.
JURISDICTION TO ENTER ORDERS
(l) The district courts of the United States shall have
jurisdiction to enter orders as provided in this section
without regard to the location of any property which may be
subject to forfeiture under this section or which has been
ordered forfeited under this section.
DEPOSITIONS
(m) In order to facilitate the identification and location of
property declared forfeited and to facilitate the disposition
of petitions for remission or mitigation of forfeiture, after
the entry of an order declaring property forfeited to the
United States, the court may, upon application of the United
States, order that the testimony of any witness relating to the
property forfeited be taken by deposition and that any
designated book, paper, document, record, recording, or other
material not privileged be produced at the same time any place,
in the same manner as provided for the taking of depositions
under Rule 15 of the Federal Rules of Criminal Procedure.
THIRD PARTY INTERESTS
(n)(1) Following the entry of an order of forfeiture under
this section, the United States shall publish notice of the
order and of its intent to dispose of the property in such
manner as the Attorney General may direct. The Government may
also, to the extent practicable, provide direct written notice
to any person known to have alleged an interest in the property
that is the subject of the order of forfeiture as a substitute
for published notice as to those persons so notified.
(2) Any person, other than the defendant, asserting a legal
interest in property which has been ordered forfeited to the
United States pursuant to this section may, within thirty days
of the final publication of notice or his receipt of notice
under paragraph (1), whichever is earlier, petition the court
for a hearing to adjudicate the validity of his alleged
interest in the property. The hearing shall be held before the
court alone, without a jury.
(3) The petition shall be signed by the petitioner under
penalty of perjury and shall set forth the nature and extent of
the petitioner's right, title, or interest in the property, the
time and circumstances of the petitioner's acquisition of the
right, title, or interest in the property, and additional facts
supporting the petitioner's claim, and the relief sought.
(4) The hearing on the petition shall, to the extent
practicable and consistent with the interests of justice, be
held within thirty days of the filing of the petition. The
court may consolidate the hearing on the petition with a
hearing on any other petition filed by a person other than the
defendant under this subsection.
(5) At the hearing, the petitioner may testify and present
evidence and witnesses on his own behalf, and cross-examine
witnesses who appear at the hearing. The United States may
present evidence and witnesses in rebuttal and in defense of
this claim to the property and cross-examine witnesses who
appear at the hearing, the court shall consider the relevant
portions of the record of the criminal case which resulted in
the order of forfeiture.
(6) If, after the hearing, the court determines that the
petitioner has established by a preponderance of the evidence
that--
(A) the petitioner has a legal right, title, or
interest in the property, and such right, title, or
interest renders the order of forfeiture invalid in
whole or in part because the right, title, or interest
was vested in the petitioner rather than the defendant
or was superior to any right, title, or interest of the
defendant at the time of the commission of the acts
which gave rise to the forfeiture of the property under
the section; or
(B) the petitioner is a bona fide purchaser for value
of the right, title, or interest in the property and
was at the time of purchase reasonably without cause to
believe that the property was subject to forfeiture
under this section;
the court shall amend the order of forfeiture in accordance
with its determination.
(7) Following the court's disposition of all petitions filed
under this subsection, or if no such petitions are filed
following the expiration of the period provided in paragraph
(2) for the filing of such petitions, the United States shall
have clear title to property that is the subject of the order
of forfeiture and may warrant good title to any subsequent
purchaser or transferee.
(o) The provisions of this section shall be liberally
construed to effectuate its remedial purposes.
(p) Forfeiture of Substitute Property.--
(1) In general.--Paragraph (2) of this subsection
shall apply, if any property described in subsection
(a), as a result of any act or omission of the
defendant--
(A) cannot be located upon the exercise of
due diligence;
(B) has been transferred or sold to, or
deposited with, a third party;
(C) has been placed beyond the jurisdiction
of the court;
(D) has been substantially diminished in
value; or
(E) has been commingled with other property
which cannot be divided without difficulty.
(2) Substitute property.--In any case described in
any of subparagraphs (A) through (E) of paragraph (1),
the court shall order the forfeiture of any other
property of the defendant, up to the value of any
property described in subparagraphs (A) through (E) of
paragraph (1), as applicable.
(3) Return of property to jurisdiction.--In the case
of property described in paragraph (1)(C), the court
may, in addition to any other action authorized by this
subsection, order the defendant to return the property
to the jurisdiction of the court so that the property
may be seized and forfeited.
(q) The court, when sentencing a defendant convicted of an
offense under this title or title III involving the
manufacture, the possession, or the possession with intent to
distribute, of amphetamine or methamphetamine, shall--
(1) order restitution as provided in sections 3612
and 3664 of title 18, United States Code;
(2) order the defendant to reimburse the United
States, the State or local government concerned, or
both the United States and the State or local
government concerned for the costs incurred by the
United States or the State or local government
concerned, as the case may be, for the cleanup
associated with the manufacture of amphetamine or
methamphetamine by the defendant, or on premises or in
property that the defendant owns, resides, or does
business in; and
(3) order restitution to any person injured as a
result of the offense as provided in section 3663A of
title 18, United States Code.
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TITLE 28, UNITED STATES CODE
* * * * * * *
PART VI--PARTICULAR PROCEEDINGS
* * * * * * *
CHAPTER 163--FINES, PENALTIES AND FORFEITURES
* * * * * * *
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.
(3) If the claim is resolved by a settlement in which the
claimant prevails, the claimant is entitled to attorneys fees
under this subsection to the same extent that the claimant
would be if a judgment were issued in the proceeding for the
property recovered under the settlement. The payment of
attorneys fees under this subsection may not be waived as a
part of any settlement with the claimant. That payment is not
subject to any offset or deduction by the United States in
connection with any claim the United States may have against
the claimant.
(4) For the purposes of this subsection, a claimant prevails
if the claimant recovers more than 50 percent, by value, of the
money or other property that is claimed.
* * * * * * *
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TITLE 31, UNITED STATES CODE
* * * * * * *
SUBTITLE IV--MONEY
* * * * * * *
CHAPTER 53--MONETARY TRANSACTIONS
* * * * * * *
SUBCHAPTER II--RECORDS AND REPORTS ON MONETARY INSTRUMENTS TRANSACTIONS
* * * * * * *
Sec. 5317. Search and forfeiture of monetary instruments
(a) The Secretary of the Treasury may apply to a court of
competent jurisdiction for a search warrant when the Secretary
reasonably believes a monetary instrument is being transported
and a report on the instrument under section 5316 of this title
has not been filed or contains a material omission or
misstatement. The Secretary shall include a statement of
information in support of the warrant. On a showing of probable
cause, the court may issue a search warrant for a designated
person or a designated or described place or physical object.
This subsection does not affect the authority of the Secretary
under another law.
(b) Searches at Border.--For purposes of ensuring compliance
with the requirements of section 5316, a customs officer may
stop and search, at the border and without a search warrant,
any vehicle, vessel, aircraft, or other conveyance, any
envelope or other container, and any person entering or
departing from the United States.
(c) Forfeiture.--
(1) Criminal forfeiture.--
(A) In general.--The court in imposing
sentence for any violation of section 5313,
5316, or 5324 of this title, or any conspiracy
to commit such violation, shall order the
defendant to forfeit all property, real or
personal, involved in the offense and any
property traceable thereto.
(B) Procedure.--Forfeitures under this
paragraph shall be governed by the procedures
established in section 413 of the Controlled
Substances Act.
[(2) Civil forfeiture.--Any property involved in a
violation of section 5313, 5316, or 5324 of this title,
or any conspiracy to commit any such violation, and any
property traceable to any such violation or conspiracy,
may be seized and forfeited to the United States in
accordance with the procedures governing civil
forfeitures in money laundering cases pursuant to
section 981(a)(1)(A) of title 18, United States Code.]
(2) Civil forfeiture.--
(A) In general.--Any property involved in a
violation of section 5313 or 5316, or any
conspiracy to commit any such violation, and
any property traceable to any such violation or
conspiracy, may be seized and forfeited to the
United States in accordance with the procedures
governing civil forfeitures in money laundering
cases pursuant to section 981(a)(1)(A) of title
18.
(B) Structuring.--Any property involved in a
violation of section 5324, or any conspiracy to
commit any such violation, and any property
traceable to any such violation or conspiracy,
may be seized and forfeited to the United
States in accordance with the procedures
governing civil forfeitures in money laundering
cases pursuant to section 981(a)(1)(A) of title
18 only if the property to be seized and
forfeited is derived from an illegal source or
if the structuring offense was used to conceal
violations of other criminal laws.
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