[106th Congress Public Law 185]
[From the U.S. Government Printing Office]
<DOC>
[DOCID: f:publ185.106]
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CIVIL ASSET FORFEITURE REFORM
ACT OF 2000
[[Page 114 STAT. 202]]
Public Law 106-185
106th Congress
An Act
To provide <<NOTE: Apr. 25, 2000 - [H.R. 1658]>> a more just and
uniform procedure for Federal civil forfeitures, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <<NOTE: Civil Asset Forfeiture
Reform Act of 2000.>> assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) <<NOTE: 18 USC 981 note.>> Short Title.--This Act may be cited
as the ``Civil Asset Forfeiture Reform Act of 2000''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Creation of general rules relating to civil forfeiture
proceedings.
Sec. 3. Compensation for damage to seized property.
Sec. 4. Attorney fees, costs, and interest.
Sec. 5. Seizure warrant requirement.
Sec. 6. Use of forfeited funds to pay restitution to crime victims.
Sec. 7. Civil forfeiture of real property.
Sec. 8. Stay of civil forfeiture case.
Sec. 9. Civil restraining orders.
Sec. 10. Cooperation among Federal prosecutors.
Sec. 11. Statute of limitations for civil forfeiture actions.
Sec. 12. Destruction or removal of property to prevent seizure.
Sec. 13. Fungible property in bank accounts.
Sec. 14. Fugitive disentitlement.
Sec. 15. Enforcement of foreign forfeiture judgment.
Sec. 16. Encouraging use of criminal forfeiture as an alternative to
civil forfeiture.
Sec. 17. Access to records in bank secrecy jurisdictions.
Sec. 18. Application to alien smuggling offenses.
Sec. 19. Enhanced visibility of the asset forfeiture program.
Sec. 20. Proceeds.
Sec. 21. Effective date.
SEC. 2. CREATION OF GENERAL RULES RELATING TO CIVIL FORFEITURE
PROCEEDINGS.
(a) In General.--Chapter 46 of title 18, United States Code, is
amended by inserting after section 982 the following:
``Sec. 983. General rules for civil forfeiture proceedings
``(a) <<NOTE: Deadlines.>> Notice; Claim; Complaint.--
``(1)(A)(i) Except as provided in clauses (ii) through (v),
in any nonjudicial civil forfeiture proceeding under a civil
forfeiture statute, with respect to which the Government is
required to send written notice to interested parties, such
notice shall be sent in a manner to achieve proper notice as
soon as practicable, and in no case more than 60 days after the
date of the seizure.
``(ii) No notice is required if, before the 60-day period
expires, the Government files a civil judicial forfeiture action
[[Page 114 STAT. 203]]
against the property and provides notice of that action as
required by law.
``(iii) If, before the 60-day period expires, the Government
does not file a civil judicial forfeiture action, but does
obtain a criminal indictment containing an allegation that the
property is subject to forfeiture, the Government shall either--
``(I) send notice within the 60 days and continue
the nonjudicial civil forfeiture proceeding under this
section; or
``(II) terminate the nonjudicial civil forfeiture
proceeding, and take the steps necessary to preserve its
right to maintain custody of the property as provided in
the applicable criminal forfeiture statute.
``(iv) In a case in which the property is seized by a State
or local law enforcement agency and turned over to a Federal law
enforcement agency for the purpose of forfeiture under Federal
law, notice shall be sent not more than 90 days after the date
of seizure by the State or local law enforcement agency.
``(v) If the identity or interest of a party is not
determined until after the seizure or turnover but is determined
before a declaration of forfeiture is entered, notice shall be
sent to such interested party not later than 60 days after the
determination by the Government of the identity of the party or
the party's interest.
``(B) A supervisory official in the headquarters office of
the seizing agency may extend the period for sending notice
under subparagraph (A) for a period not to exceed 30 days (which
period may not be further extended except by a court), if the
official determines that the conditions in subparagraph (D) are
present.
``(C) Upon motion by the Government, a court may extend the
period for sending notice under subparagraph (A) for a period
not to exceed 60 days, which period may be further extended by
the court for 60-day periods, as necessary, if the court
determines, based on a written certification of a supervisory
official in the headquarters office of the seizing agency, that
the conditions in subparagraph (D) are present.
``(D) The period for sending notice under this paragraph may
be extended only if there is reason to believe that notice may
have an adverse result, including--
``(i) endangering the life or physical safety of an
individual;
``(ii) flight from prosecution;
``(iii) destruction of or tampering with evidence;
``(iv) intimidation of potential witnesses; or
``(v) otherwise seriously jeopardizing an
investigation or unduly delaying a trial.
``(E) Each of the Federal seizing agencies conducting
nonjudicial forfeitures under this section shall report
periodically to the Committees on the Judiciary of the House of
Representatives and the Senate the number of occasions when an
extension of time is granted under subparagraph (B).
``(F) If the Government does not send notice of a seizure of
property in accordance with subparagraph (A) to the person from
whom the property was seized, and no extension of time is
granted, the Government shall return the property to that person
without prejudice to the right of the Government to
[[Page 114 STAT. 204]]
commence a forfeiture proceeding at a later time. The Government
shall not be required to return contraband or other property
that the person from whom the property was seized may not
legally possess.
``(2)(A) Any person claiming property seized in a
nonjudicial civil forfeiture proceeding under a civil forfeiture
statute may file a claim with the appropriate official after the
seizure.
``(B) A claim under subparagraph (A) may be filed not later
than the deadline set forth in a personal notice letter (which
deadline may be not earlier than 35 days after the date the
letter is mailed), except that if that letter is not received,
then a claim may be filed not later than 30 days after the date
of final publication of notice of seizure.
``(C) A claim shall--
``(i) identify the specific property being claimed;
``(ii) state the claimant's interest in such
property (and provide customary documentary evidence of
such interest if available) and state that the claim is
not frivolous; and
``(iii) be made under oath, subject to penalty of
perjury.
``(D) A claim need not be made in any particular form. Each
Federal agency conducting nonjudicial forfeitures under this
section shall make claim forms generally available on request,
which forms shall be written in easily understandable language.
``(E) Any person may make a claim under subparagraph (A)
without posting bond with respect to the property which is the
subject of the claim.
``(3)(A) Not later than 90 days after a claim has been
filed, the Government shall file a complaint for forfeiture in
the manner set forth in the Supplemental Rules for Certain
Admiralty and Maritime Claims or return the property pending the
filing of a complaint, except that a court in the district in
which the complaint will be filed may extend the period for
filing a complaint for good cause shown or upon agreement of the
parties.
``(B) <<NOTE: Regulations.>> 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
[[Page 114 STAT. 205]]
the complaint was filed to establish the forfeitability of the
property.
``(4)(A) In any case in which the Government files in the
appropriate United States district court a complaint for
forfeiture of property, any person claiming an interest in the
seized property may file a claim asserting such person's
interest in the property in the manner set forth in the
Supplemental Rules for Certain Admiralty and Maritime Claims,
except that such claim may be filed not later than 30 days after
the date of service of the Government's complaint or, as
applicable, not later than 30 days after the date of final
publication of notice of the filing of the complaint.
``(B) A person asserting an interest in seized property, in
accordance with subparagraph (A), shall file an answer to the
Government's complaint for forfeiture not later than 20 days
after the date of the filing of the claim.
``(b) <<NOTE: Courts.>> Representation.--
``(1)(A) If a person with standing to contest the forfeiture
of property in a judicial civil forfeiture proceeding under a
civil forfeiture statute is financially unable to obtain
representation by counsel, and the person is represented by
counsel appointed under section 3006A of this title in
connection with a related criminal case, the court may authorize
counsel to represent that person with respect to the claim.
``(B) In determining whether to authorize counsel to
represent a person under subparagraph (A), the court shall take
into account such factors as--
``(i) the person's standing to contest the
forfeiture; and
``(ii) whether the claim appears to be made in good
faith.
``(2)(A) If a person with standing to contest the forfeiture
of property in a judicial civil forfeiture proceeding under a
civil forfeiture statute is financially unable to obtain
representation by counsel, and the property subject to
forfeiture is real property that is being used by the person as
a primary residence, the court, at the request of the person,
shall insure that the person is represented by an attorney for
the Legal Services Corporation with respect to the claim.
``(B)(i) At appropriate times during a representation under
subparagraph (A), the Legal Services Corporation shall submit a
statement of reasonable attorney fees and costs to the court.
``(ii) The court shall enter a judgment in favor of the
Legal Services Corporation for reasonable attorney fees and
costs submitted pursuant to clause (i) and treat such judgment
as payable under section 2465 of title 28, United States Code,
regardless of the outcome of the case.
``(3) The court shall set the compensation for
representation under this subsection, which shall be equivalent
to that provided for court-appointed representation under
section 3006A of this title.
``(c) Burden of Proof.--In a suit or action brought under any civil
forfeiture statute for the civil forfeiture of any property--
``(1) the burden of proof is on the Government to establish,
by a preponderance of the evidence, that the property is subject
to forfeiture;
[[Page 114 STAT. 206]]
``(2) the Government may use evidence gathered after the
filing of a complaint for forfeiture to establish, by a
preponderance of the evidence, that property is subject to
forfeiture; and
``(3) if the Government's theory of forfeiture is that the
property was used to commit or facilitate the commission of a
criminal offense, or was involved in the commission of a
criminal offense, the Government shall establish that there was
a substantial connection between the property and the offense.
``(d) Innocent Owner Defense.--
``(1) An innocent owner's interest in property shall not be
forfeited under any civil forfeiture statute. The claimant shall
have the burden of proving that the claimant is an innocent
owner by a preponderance of the evidence.
``(2)(A) With respect to a property interest in existence at
the time the illegal conduct giving rise to forfeiture took
place, the term `innocent owner' means an owner who--
``(i) did not know of the conduct giving rise to
forfeiture; or
``(ii) upon learning of the conduct giving rise to
the forfeiture, did all that reasonably could be
expected under the circumstances to terminate such use
of the property.
``(B)(i) For the purposes of this paragraph, ways in which a
person may show that such person did all that reasonably could
be expected may include demonstrating that such person, to the
extent permitted by law--
``(I) gave timely notice to an appropriate law
enforcement agency of information that led the person to
know the conduct giving rise to a forfeiture would occur
or has occurred; and
``(II) in a timely fashion revoked or made a good
faith attempt to revoke permission for those engaging in
such conduct to use the property or took reasonable
actions in consultation with a law enforcement agency to
discourage or prevent the illegal use of the property.
``(ii) A person is not required by this subparagraph to take
steps that the person reasonably believes would be likely to
subject any person (other than the person whose conduct gave
rise to the forfeiture) to physical danger.
``(3)(A) With respect to a property interest acquired after
the conduct giving rise to the forfeiture has taken place, the
term `innocent owner' means a person who, at the time that
person acquired the interest in the property--
``(i) was a bona fide purchaser or seller for value
(including a purchaser or seller of goods or services
for value); and
``(ii) did not know and was reasonably without cause
to believe that the property was subject to forfeiture.
``(B) <<NOTE: Courts.>> 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
[[Page 114 STAT. 207]]
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) <<NOTE: Courts.>> 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.
[[Page 114 STAT. 208]]
``(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) <<NOTE: Deadlines.>> 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--
[[Page 114 STAT. 209]]
``(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) <<NOTE: Courts. Deadline.>> The court shall render a
decision on a petition filed under paragraph (3) not later than
30 days after the date of the filing, unless such 30-day
limitation is extended by consent of the parties or by the court
for good cause shown.
``(6) If--
``(A) a petition is filed under paragraph (3); and
``(B) the claimant demonstrates that the
requirements of paragraph (1) have been met,
the district court shall order that the property be returned to
the claimant, pending completion of proceedings by the
Government to obtain forfeiture of the property.
``(7) If the court grants a petition under paragraph (3)--
``(A) the court may enter any order necessary to
ensure that the value of the property is maintained
while the forfeiture action is pending, including--
``(i) permitting the inspection,
photographing, and inventory of the property;
``(ii) fixing a bond in accordance with rule
E(5) of the Supplemental Rules for Certain
Admiralty and Maritime Claims; and
``(iii) requiring the claimant to obtain or
maintain insurance on the subject property; and
``(B) the Government may place a lien against the
property or file a lis pendens to ensure that the
property is not transferred to another person.
``(8) This subsection shall not apply if the seized
property--
``(A) is contraband, currency, or other monetary
instrument, or electronic funds unless such currency or
other monetary instrument or electronic funds
constitutes the assets of a legitimate business which
has been seized;
``(B) is to be used as evidence of a violation of
the law;
``(C) by reason of design or other characteristic,
is particularly suited for use in illegal activities; or
``(D) is likely to be used to commit additional
criminal acts if returned to the claimant.
``(g) Proportionality.--
``(1) The claimant under subsection (a)(4) may petition the
court to determine whether the forfeiture was constitutionally
excessive.
``(2) In making this determination, the court shall compare
the forfeiture to the gravity of the offense giving rise to the
forfeiture.
``(3) The claimant shall have the burden of establishing
that the forfeiture is grossly disproportional by a
preponderance
[[Page 114 STAT. 210]]
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. App.
1 et seq.); or
``(E) section 1 of title VI of the Act of June 15,
1917 (40 Stat. 233; 22 U.S.C. 401).''.
(b) Technical and Conforming Amendment.--The analysis for chapter 46
of title 18, United States Code, is amended by inserting after the item
relating to section 982 the following:
``983. General rules for civil forfeiture proceedings.''.
(c) Striking Superseded Provisions.--
(1) Civil forfeiture.--Section 981(a) of title 18, United
States Code, is amended--
(A) in paragraph (1), by striking ``Except as
provided in paragraph (2), the'' and inserting ``The'';
and
(B) by striking paragraph (2).
(2) Drug forfeitures.--Paragraphs (4), (6), and (7) of
section 511(a) of the Controlled Substances Act (21 U.S.C.
881(a)(4), (6), and (7)) are each amended by striking ``, except
that'' and all that follows before the period at the end.
(3) Automobiles.--Section 518 of the Controlled Substances
Act (21 U.S.C. 888) is repealed.
[[Page 114 STAT. 211]]
(4) Forfeitures in connection with sexual exploitation of
children.--Paragraphs (2) and (3) of section 2254(a) of title
18, United States Code, are each amended by striking ``, except
that'' and all that follows before the period at the end.
(d) Legal Services Corporation Representation.--Section 1007(a) of
the Legal Services Corporation Act (42 U.S.C. 2996f(a)) is amended--
(1) in paragraph (9), by striking ``and'' after the
semicolon;
(2) in paragraph (10), by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(11) ensure that an indigent individual whose primary
residence is subject to civil forfeiture is represented by an
attorney for the Corporation in such civil action.''.
SEC. 3. COMPENSATION FOR DAMAGE TO SEIZED PROPERTY.
(a) Tort Claims Act.--Section 2680(c) of title 28, United States
Code, is amended--
(1) by striking ``any goods or merchandise'' and inserting
``any goods, merchandise, or other property'';
(2) by striking ``law-enforcement'' and inserting ``law
enforcement''; and
(3) by inserting before the period at the end the following:
``, except that the provisions of this chapter and section
1346(b) of this title apply to any claim based on injury or loss
of goods, merchandise, or other property, while in the
possession of any officer of customs or excise or any other law
enforcement officer, if--
``(1) the property was seized for the purpose of forfeiture
under any provision of Federal law providing for the forfeiture
of property other than as a sentence imposed upon conviction of
a criminal offense;
``(2) the interest of the claimant was not forfeited;
``(3) the interest of the claimant was not remitted or
mitigated (if the property was subject to forfeiture); and
``(4) the claimant was not convicted of a crime for which
the interest of the claimant in the property was subject to
forfeiture under a Federal criminal forfeiture law.''.
(b) <<NOTE: 31 USC 3724 note.>> Department of Justice.--
(1) In general.--With respect to a claim that cannot be
settled under chapter 171 of title 28, United States Code, the
Attorney General may settle, for not more than $50,000 in any
case, a claim for damage to, or loss of, privately owned
property caused by an investigative or law enforcement officer
(as defined in section 2680(h) of title 28, United States Code)
who is employed by the Department of Justice acting within the
scope of his or her employment.
(2) Limitations.--The Attorney General may not pay a claim
under paragraph (1) that--
(A) is presented to the Attorney General more than 1
year after it accrues; or
(B) is presented by an officer or employee of the
Federal Government and arose within the scope of
employment.
SEC. 4. ATTORNEY FEES, COSTS, AND INTEREST.
(a) In general.--Section 2465 of title 28, United States Code, is
amended to read as follows:
[[Page 114 STAT. 212]]
``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
[[Page 114 STAT. 213]]
``(iv) prevails in obtaining forfeiture with respect
to one or more of the other claims.
``(D) If the court enters judgment in part for the claimant
and in part for the Government, the court shall reduce the award
of costs and attorney fees accordingly.''.
(b) Technical and Conforming Amendment.--The analysis for chapter
163 of title 28, United States Code, is amended by striking the item
relating to section 2465 and inserting the following:
``2465. Return of property to claimant; liability for wrongful seizure;
attorney fees, costs, and interest.''.
SEC. 5. SEIZURE WARRANT REQUIREMENT.
(a) In General.--Section 981(b) of title 18, United States Code, is
amended to read as follows:
``(b)(1) Except as provided in section 985, any property subject to
forfeiture to the United States under subsection (a) may be seized by
the Attorney General and, in the case of property involved in a
violation investigated by the Secretary of the Treasury or the United
States Postal Service, the property may also be seized by the Secretary
of the Treasury or the Postal Service, respectively.
``(2) Seizures pursuant to this section shall be made pursuant to a
warrant obtained in the same manner as provided for a search warrant
under the Federal Rules of Criminal Procedure, except that a seizure may
be made without a warrant if--
``(A) a complaint for forfeiture has been filed in the
United States district court and the court issued an arrest
warrant in rem pursuant to the Supplemental Rules for Certain
Admiralty and Maritime Claims;
``(B) there is probable cause to believe that the property
is subject to forfeiture and--
``(i) the seizure is made pursuant to a lawful
arrest or search; or
``(ii) another exception to the Fourth Amendment
warrant requirement would apply; or
``(C) the property was lawfully seized by a State or local
law enforcement agency and transferred to a Federal agency.
``(3) Notwithstanding the provisions of rule 41(a) of the Federal
Rules of Criminal Procedure, a seizure warrant may be issued pursuant to
this subsection by a judicial officer in any district in which a
forfeiture action against the property may be filed under section
1355(b) of title 28, and may be executed in any district in which the
property is found, or transmitted to the central authority of any
foreign state for service in accordance with any treaty or other
international agreement. Any motion for the return of property seized
under this section shall be filed in the district court in which the
seizure warrant was issued or in the district court for the district in
which the property was seized.
``(4)(A) If any person is arrested or charged in a foreign country
in connection with an offense that would give rise to the forfeiture of
property in the United States under this section or under the Controlled
Substances Act, the Attorney General may apply to any Federal judge or
magistrate judge in the district in which the property is located for an
ex parte order restraining the property subject to forfeiture for not
more than 30 days, except that the time may be extended for good cause
shown at a hearing conducted
[[Page 114 STAT. 214]]
in the manner provided in rule 43(e) of the Federal Rules of Civil
Procedure.
``(B) The application for the restraining order shall set forth the
nature and circumstances of the foreign charges and the basis for belief
that the person arrested or charged has property in the United States
that would be subject to forfeiture, and shall contain a statement that
the restraining order is needed to preserve the availability of property
for such time as is necessary to receive evidence from the foreign
country or elsewhere in support of probable cause for the seizure of the
property under this subsection.''.
(b) Drug Forfeitures.--Section 511(b) of the Controlled Substances
Act (21 U.S.C. 881(b)) is amended to read as follows:
``(b) Seizure Procedures.--Any property subject to forfeiture to the
United States under this section may be seized by the Attorney General
in the manner set forth in section 981(b) of title 18, United States
Code.''.
SEC. 6. USE OF FORFEITED FUNDS TO PAY RESTITUTION TO CRIME VICTIMS.
Section 981(e) of title 18, United States Code, is amended by
striking paragraph (6) and inserting the following:
``(6) as restoration to any victim of the offense giving
rise to the forfeiture, including, in the case of a money
laundering offense, any offense constituting the underlying
specified unlawful activity; or''.
SEC. 7. CIVIL FORFEITURE OF REAL PROPERTY.
(a) In General.--Chapter 46 of title 18, United States Code, is
amended by inserting after section 984 the following:
``Sec. 985. Civil forfeiture of real property
``(a) Notwithstanding any other provision of law, all civil
forfeitures of real property and interests in real property shall
proceed as judicial forfeitures.
``(b)(1) Except as provided in this section--
``(A) real property that is the subject of a civil
forfeiture action shall not be seized before entry of an
order of forfeiture; and
``(B) the owners or occupants of the real property
shall not be evicted from, or otherwise deprived of the
use and enjoyment of, real property that is the subject
of a pending forfeiture action.
``(2) The filing of a lis pendens and the execution of a
writ of entry for the purpose of conducting an inspection and
inventory of the property shall not be considered a seizure
under this subsection.
``(c)(1) The Government shall initiate a civil forfeiture action
against real property by--
``(A) filing a complaint for forfeiture;
``(B) posting a notice of the complaint on the property; and
``(C) serving notice on the property owner, along with a
copy of the complaint.
``(2) If the property owner cannot be served with the notice under
paragraph (1) because the owner--
``(A) is a fugitive;
[[Page 114 STAT. 215]]
``(B) resides outside the United States and efforts at
service pursuant to rule 4 of the Federal Rules of Civil
Procedure are unavailing; or
``(C) cannot be located despite the exercise of due
diligence,
constructive service may be made in accordance with the laws of the
State in which the property is located.
``(3) If real property has been posted in accordance with this
subsection, it shall not be necessary for the court to issue an arrest
warrant in rem, or to take any other action to establish in rem
jurisdiction over the property.
``(d)(1) Real property may be seized prior to the entry of an order
of forfeiture if--
``(A) the Government notifies the court that it intends to
seize the property before trial; and
``(B) the court--
``(i) issues a notice of application for warrant,
causes the notice to be served on the property owner and
posted on the property, and conducts a hearing in which
the property owner has a meaningful opportunity to be
heard; or
``(ii) makes an ex parte determination that there is
probable cause for the forfeiture and that there are
exigent circumstances that permit the Government to
seize the property without prior notice and an
opportunity for the property owner to be heard.
``(2) For purposes of paragraph (1)(B)(ii), to establish exigent
circumstances, the Government shall show that less restrictive measures
such as a lis pendens, restraining order, or bond would not suffice to
protect the Government's interests in preventing the sale, destruction,
or continued unlawful use of the real property.
``(e) If the court authorizes a seizure of real property under
subsection (d)(1)(B)(ii), it shall conduct a prompt post-seizure hearing
during which the property owner shall have an opportunity to contest the
basis for the seizure.
``(f ) This section--
``(1) <<NOTE: Applicability.>> applies only to civil
forfeitures of real property and interests in real property;
``(2) does not apply to forfeitures of the proceeds of the
sale of such property or interests, or of money or other assets
intended to be used to acquire such property or interests; and
``(3) shall not affect the authority of the court to enter a
restraining order relating to real property.''.
(b) Technical and Conforming Amendment.--The analysis for chapter 46
of title 18, United States Code, is amended by inserting after the item
relating to section 984 the following:
``985. Civil forfeiture of real property.''.
SEC. 8. STAY OF CIVIL FORFEITURE CASE.
(a) In General.--Section 981(g) of title 18, United States Code, is
amended to read as follows:
``(g)(1) <<NOTE: Courts.>> Upon the motion of the United States,
the court shall stay the civil forfeiture proceeding if the court
determines that civil discovery will adversely affect the ability of the
Government to conduct a related criminal investigation or the
prosecution of a related criminal case.
[[Page 114 STAT. 216]]
``(2) Upon the motion of a claimant, the court shall stay the civil
forfeiture proceeding with respect to that claimant if the court
determines that--
``(A) the claimant is the subject of a related criminal
investigation or case;
``(B) the claimant has standing to assert a claim in the
civil forfeiture proceeding; and
``(C) continuation of the forfeiture proceeding will burden
the right of the claimant against self-incrimination in the
related investigation or case.
``(3) With respect to the impact of civil discovery described in
paragraphs (1) and (2), the court may determine that a stay is
unnecessary if a protective order limiting discovery would protect the
interest of one party without unfairly limiting the ability of the
opposing party to pursue the civil case. In no case, however, shall the
court impose a protective order as an alternative to a stay if the
effect of such protective order would be to allow one party to pursue
discovery while the other party is substantially unable to do so.
``(4) In this subsection, the terms `related criminal case' and
`related criminal investigation' mean an actual prosecution or
investigation in progress at the time at which the request for the stay,
or any subsequent motion to lift the stay is made. In determining
whether a criminal case or investigation is `related' to a civil
forfeiture proceeding, the court shall consider the degree of similarity
between the parties, witnesses, facts, and circumstances involved in the
two proceedings, without requiring an identity with respect to any one
or more factors.
``(5) In requesting a stay under paragraph (1), the Government may,
in appropriate cases, submit evidence ex parte in order to avoid
disclosing any matter that may adversely affect an ongoing criminal
investigation or pending criminal trial.
``(6) Whenever a civil forfeiture proceeding is stayed pursuant to
this subsection, the court shall enter any order necessary to preserve
the value of the property or to protect the rights of lienholders or
other persons with an interest in the property while the stay is in
effect.
``(7) <<NOTE: Applicability.>> A determination by the court that
the claimant has standing to request a stay pursuant to paragraph (2)
shall apply only to this subsection and shall not preclude the
Government from objecting to the standing of the claimant by dispositive
motion or at the time of trial.''.
(b) Drug Forfeitures.--Section 511(i) of the Controlled Substances
Act (21 U.S.C. 881(i)) is amended to read as follows:
``(i) <<NOTE: Applicability.>> The provisions of section 981(g) of
title 18, United States Code, regarding the stay of a civil forfeiture
proceeding shall apply to forfeitures under this section.''.
SEC. 9. CIVIL RESTRAINING ORDERS.
Section 983 of title 18, United States Code, as added by this Act,
is amended by adding at the end the following:
``( j) Restraining Orders; Protective Orders.--
``(1) Upon application of the United States, the court may
enter a restraining order or injunction, require the execution
of satisfactory performance bonds, create receiverships, appoint
conservators, custodians, appraisers, accountants, or trustees,
[[Page 114 STAT. 217]]
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. <<NOTE: Expiration date.>> Such a temporary order
shall expire not more than 10 days after the date on which it is
entered, unless extended for good cause shown or unless the
party against whom it is entered consents to an extension for a
longer period. A hearing requested concerning an order entered
under this paragraph shall be held at the earliest possible time
and prior to the expiration of the temporary order.
``(4) The court may receive and consider, at a hearing held
pursuant to this subsection, evidence and information that would
be inadmissible under the Federal Rules of Evidence.''.
SEC. 10. COOPERATION AMONG FEDERAL PROSECUTORS.
Section 3322(a) of title 18, United States Code, is amended--
(1) by striking ``civil forfeiture under section 981 of
title 18, United States Code, of property described in section
981(a)(1)(C) of such title'' and inserting ``any civil
forfeiture provision of Federal law''; and
(2) by striking ``concerning a banking law violation''.
SEC. 11. STATUTE OF LIMITATIONS FOR CIVIL FORFEITURE ACTIONS.
Section 621 of the Tariff Act of 1930 (19 U.S.C. 1621) is amended by
inserting ``, or in the case of forfeiture, within 2 years after the
time when the involvement of the property in the alleged offense was
discovered, whichever was later'' after ``within five years after the
time when the alleged offense was discovered''.
[[Page 114 STAT. 218]]
SEC. 12. DESTRUCTION OR REMOVAL OF PROPERTY TO PREVENT
SEIZURE.
Section 2232 of title 18, United States Code, is amended--
(1) by striking subsections (a) and (b);
(2) by inserting ``(e) Foreign Intelligence Surveillance.--
'' before ``Whoever, having knowledge that a Federal officer'';
(3) by redesignating subsection (c) as subsection (d); and
(4) by inserting before subsection (d), as redesignated, the
following:
``(a) Destruction or Removal of Property To Prevent Seizure.--
Whoever, before, during, or after any search for or seizure of property
by any person authorized to make such search or seizure, knowingly
destroys, damages, wastes, disposes of, transfers, or otherwise takes
any action, or knowingly attempts to destroy, damage, waste, dispose of,
transfer, or otherwise take any action, for the purpose of preventing or
impairing the Government's lawful authority to take such property into
its custody or control or to continue holding such property under its
lawful custody and control, shall be fined under this title or
imprisoned not more than 5 years, or both.
``(b) Impairment of In Rem Jurisdiction.--Whoever, knowing that
property is subject to the in rem jurisdiction of a United States court
for purposes of civil forfeiture under Federal law, knowingly and
without authority from that court, destroys, damages, wastes, disposes
of, transfers, or otherwise takes any action, or knowingly attempts to
destroy, damage, waste, dispose of, transfer, or otherwise take any
action, for the purpose of impairing or defeating the court's continuing
in rem jurisdiction over the property, shall be fined under this title
or imprisoned not more than 5 years, or both.
``(c) Notice of Search or Execution of Seizure Warrant or Warrant of
Arrest In Rem.--Whoever, having knowledge that any person authorized to
make searches and seizures, or to execute a seizure warrant or warrant
of arrest in rem, in order to prevent the authorized seizing or securing
of any person or property, gives notice or attempts to give notice in
advance of the search, seizure, or execution of a seizure warrant or
warrant of arrest in rem, to any person shall be fined under this title
or imprisoned not more than 5 years, or both.''.
SEC. 13. FUNGIBLE PROPERTY IN BANK ACCOUNTS.
(a) In General.--Section 984 of title 18, United States Code, is
amended--
(1) by striking subsection (a) and redesignating subsections
(b), (c), and (d) as subsections (a), (b), and (c),
respectively;
(2) in subsection (a), as redesignated--
(A) by striking ``or other fungible property'' and
inserting ``or precious metals''; and
(B) in paragraph (2), by striking ``subsection (c)''
and inserting ``subsection (b)'';
(3) in subsection (c), as redesignated--
(A) by striking paragraph (1) and inserting the
following: ``(1) Subsection (a) does not apply to an
action against funds held by a financial institution in
an interbank account unless the account holder knowingly
engaged in the offense that is the basis for the
forfeiture.''; and
[[Page 114 STAT. 219]]
(B) in paragraph (2), by striking ``(2) As used in
this section, the term'' and inserting the following:
``(2) In this subsection--
``(A) the term `financial institution' includes a foreign
bank (as defined in section 1(b)(7) of the International Banking
Act of 1978 (12 U.S.C. 3101(b)(7))); and
``(B) the term''; and
(4) by adding at the end the following:
``(d) Nothing in this section may be construed to limit the ability
of the Government to forfeit property under any provision of law if the
property involved in the offense giving rise to the forfeiture or
property traceable thereto is available for forfeiture.''.
SEC. 14. FUGITIVE DISENTITLEMENT.
(a) In General.--Chapter 163 of title 28, United States Code, is
amended by adding at the end the following:
``Sec. 2466. Fugitive disentitlement
``A judicial officer may disallow a person from using the resources
of the courts of the United States in furtherance of a claim in any
related civil forfeiture action or a claim in third party proceedings in
any related criminal forfeiture action upon a finding that such person--
``(1) after notice or knowledge of the fact that a warrant
or process has been issued for his apprehension, in order to
avoid criminal prosecution--
``(A) purposely leaves the jurisdiction of the
United States;
``(B) declines to enter or reenter the United States
to submit to its jurisdiction; or
``(C) otherwise evades the jurisdiction of the court
in which a criminal case is pending against the person;
and
``(2) is not confined or held in custody in any other
jurisdiction for commission of criminal conduct in that
jurisdiction.''.
(b) Conforming Amendment.--The analysis for chapter 163 of title 28,
United States Code, is amended by adding at the end the following:
``2466. Fugitive disentitlement.''.
(c) <<NOTE: Applicability. 28 USC 2466 note.>> Effective Date.--The
amendments made by this section shall apply to any case pending on or
after the date of the enactment of this Act.
SEC. 15. ENFORCEMENT OF FOREIGN FORFEITURE JUDGMENT.
(a) In General.--Chapter 163 of title 28, United States Code, is
amended by adding at the end the following:
``Sec. 2467. Enforcement of foreign judgment
``(a) Definitions.--In this section--
``(1) the term `foreign nation' means a country that has
become a party to the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (referred
to in this section as the `United Nations Convention') or a
foreign jurisdiction with which the United States has a treaty
or other formal international agreement in effect providing for
mutual forfeiture assistance; and
``(2) the term `forfeiture or confiscation judgment' means a
final order of a foreign nation compelling a person or entity--
[[Page 114 STAT. 220]]
``(A) to pay a sum of money representing the
proceeds of an offense described in Article 3, Paragraph
1, of the United Nations Convention, or any foreign
offense described in section 1956(c)(7)(B) of title 18,
or property the value of which corresponds to such
proceeds; or
``(B) to forfeit property involved in or traceable
to the commission of such offense.
``(b) Review by Attorney General.--
``(1) In general.--A foreign nation seeking to have a
forfeiture or confiscation judgment registered and enforced by a
district court of the United States under this section shall
first submit a request to the Attorney General or the designee
of the Attorney General, which request shall include--
``(A) a summary of the facts of the case and a
description of the proceedings that resulted in the
forfeiture or confiscation judgment;
``(B) certified copy of the forfeiture or
confiscation judgment;
``(C) an affidavit or sworn declaration establishing
that the defendant received notice of the proceedings in
sufficient time to enable the defendant to defend
against the charges and that the judgment rendered is in
force and is not subject to appeal; and
``(D) such additional information and evidence as
may be required by the Attorney General or the designee
of the Attorney General.
``(2) Certification of request.--The Attorney General or the
designee of the Attorney General shall determine whether, in the
interest of justice, to certify the request, and such decision
shall be final and not subject to either judicial review or
review under subchapter II of chapter 5, or chapter 7, of title
5 (commonly known as the `Administrative Procedure Act').
``(c) Jurisdiction and Venue.--
``(1) In general.--If the Attorney General or the designee
of the Attorney General certifies a request under subsection
(b), the United States may file an application on behalf of a
foreign nation in district court of the United States seeking to
enforce the foreign forfeiture or confiscation judgment as if
the judgment had been entered by a court in the United States.
``(2) Proceedings.--In a proceeding filed under paragraph
(1)--
``(A) the United States shall be the applicant and
the defendant or another person or entity affected by
the forfeiture or confiscation judgment shall be the
respondent;
``(B) venue shall lie in the district court for the
District of Columbia or in any other district in which
the defendant or the property that may be the basis for
satisfaction of a judgment under this section may be
found; and
``(C) the district court shall have personal
jurisdiction over a defendant residing outside of the
United States if the defendant is served with process in
accordance with rule 4 of the Federal Rules of Civil
Procedure.
``(d) Entry and Enforcement of Judgment.--
[[Page 114 STAT. 221]]
``(1) <<NOTE: Courts.>> In general.--The district court
shall enter such orders as may be necessary to enforce the
judgment on behalf of the foreign nation unless the court finds
that--
``(A) the judgment was rendered under a system that
provides tribunals or procedures incompatible with the
requirements of due process of law;
``(B) the foreign court lacked personal jurisdiction
over the defendant;
``(C) the foreign court lacked jurisdiction over the
subject matter;
``(D) the defendant in the proceedings in the
foreign court did not receive notice of the proceedings
in sufficient time to enable him or her to defend; or
``(E) the judgment was obtained by fraud.
``(2) Process.--Process to enforce a judgment under this
section shall be in accordance with rule 69(a) of the Federal
Rules of Civil Procedure.
``(e) <<NOTE: Courts.>> Finality of Foreign Findings.--In entering
orders to enforce the judgment, the court shall be bound by the findings
of fact to the extent that they are stated in the foreign forfeiture or
confiscation judgment.
``(f ) Currency Conversion.--The rate of exchange in effect at the
time the suit to enforce is filed by the foreign nation shall be used in
calculating the amount stated in any forfeiture or confiscation judgment
requiring the payment of a sum of money submitted for registration.''.
(b) Conforming Amendment.--The analysis for chapter 163 of title 28,
United States Code, is amended by adding at the end the following:
``2467. Enforcement of foreign judgment.''.
SEC. 16. ENCOURAGING USE OF CRIMINAL FORFEITURE AS AN ALTERNATIVE TO
CIVIL FORFEITURE.
Section 2461 of title 28, United States Code, is amended by adding
at the end the following:
``(c) <<NOTE: Courts.>> If a forfeiture of property is authorized in
connection with a violation of an Act of Congress, and any person is
charged in an indictment or information with such violation but no
specific statutory provision is made for criminal forfeiture upon
conviction, the Government may include the forfeiture in the indictment
or information in accordance with the Federal Rules of Criminal
Procedure, and upon conviction, the court shall order the forfeiture of
the property in accordance with the procedures set forth in section 413
of the Controlled Substances Act (21 U.S.C. 853), other than subsection
(d) of that section.''.
SEC. 17. ACCESS TO RECORDS IN BANK SECRECY JURISDICTIONS.
Section 986 of title 18, United States Code, is amended by adding at
the end the following:
``(d) Access to Records in Bank Secrecy Jurisdictions.--
``(1) In general.--In any civil forfeiture case, or in any
ancillary proceeding in any criminal forfeiture case governed by
section 413(n) of the Controlled Substances Act (21 U.S.C.
853(n)), in which--
``(A) financial records located in a foreign country
may be material--
[[Page 114 STAT. 222]]
``(i) to any claim or to the ability of the
Government to respond to such claim; or
``(ii) in a civil forfeiture case, to the
ability of the Government to establish the
forfeitability of the property; and
``(B) it is within the capacity of the claimant to
waive the claimant's rights under applicable financial
secrecy laws, or to obtain the records so that such
records can be made available notwithstanding such
secrecy laws,
the refusal of the claimant to provide the records in response
to a discovery request or to take the action necessary otherwise
to make the records available shall be grounds for judicial
sanctions, up to and including dismissal of the claim with
prejudice.
``(2) Privilege.--This subsection shall not affect the right
of the claimant to refuse production on the basis of any
privilege guaranteed by the Constitution of the United States or
any other provision of Federal law.''.
SEC. 18. APPLICATION TO ALIEN SMUGGLING OFFENSES.
(a) Amendment of the Immigration and Nationality Act.--Section
274(b) of the Immigration and Nationality Act (8 U.S.C. 1324(b)) is
amended to read as follows:
``(b) Seizure and Forfeiture.--
``(1) In general.--Any conveyance, including any vessel,
vehicle, or aircraft, that has been or is being used in the
commission of a violation of subsection (a), the gross proceeds
of such violation, and any property traceable to such conveyance
or proceeds, shall be seized and subject to forfeiture.
``(2) Applicable procedures.--Seizures and forfeitures under
this subsection shall be governed by the provisions of chapter
46 of title 18, United States Code, relating to civil
forfeitures, including section 981(d) of such title, except that
such duties as are imposed upon the Secretary of the Treasury
under the customs laws described in that section shall be
performed by such officers, agents, and other persons as may be
designated for that purpose by the Attorney General.
``(3) Prima facie evidence in determinations of
violations.--In determining whether a violation of subsection
(a) has occurred, any of the following shall be prima facie
evidence that an alien involved in the alleged violation had not
received prior official authorization to come to, enter, or
reside in the United States or that such alien had come to,
entered, or remained in the United States in violation of law:
``(A) Records of any judicial or administrative
proceeding in which that alien's status was an issue and
in which it was determined that the alien had not
received prior official authorization to come to, enter,
or reside in the United States or that such alien had
come to, entered, or remained in the United States in
violation of law.
``(B) Official records of the Service or of the
Department of State showing that the alien had not
received prior official authorization to come to, enter,
or reside in the United States or that such alien had
come to, entered, or remained in the United States in
violation of law.
``(C) Testimony, by an immigration officer having
personal knowledge of the facts concerning that alien's
status,
[[Page 114 STAT. 223]]
that the alien had not received prior official
authorization to come to, enter, or reside in the United
States or that such alien had come to, entered, or
remained in the United States in violation of law.''.
(b) Technical Corrections to Existing Criminal Forfeiture
Authority.--Section 982(a)(6) of title 18, United States Code, is
amended--
(1) in subparagraph (A)--
(A) by inserting ``section 274(a), 274A(a)(1), or
274A(a)(2) of the Immigration and Nationality Act or''
before ``section 1425'' the first place it appears;
(B) in clause (i), by striking ``a violation of, or
a conspiracy to violate, subsection (a)'' and inserting
``the offense of which the person is convicted''; and
(C) in subclauses (I) and (II) of clause (ii), by
striking ``a violation of, or a conspiracy to violate,
subsection (a)'' and all that follows through ``of this
title'' each place it appears and inserting ``the
offense of which the person is convicted'';
(2) by striking subparagraph (B); and
(3) in the second sentence--
(A) by striking ``The court, in imposing sentence on
such person'' and inserting the following:
``(B) The court, in imposing sentence on a person described
in subparagraph (A)''; and
(B) by striking ``this subparagraph'' and inserting
``that subparagraph''.
SEC. 19. ENHANCED VISIBILITY OF THE ASSET FORFEITURE PROGRAM.
Section 524(c)(6) of title 28, United States Code, is amended to
read as follows:
``(6)(A) <<NOTE: Public information. Deadlines. Reports.>> The
Attorney General shall transmit to Congress and make available to the
public, not later than 4 months after the end of each fiscal year,
detailed reports for the prior fiscal year as follows:
``(i) A report on total deposits to the Fund by State of
deposit.
``(ii) A report on total expenses paid from the Fund, by
category of expense and recipient agency, including equitable
sharing payments.
``(iii) A report describing the number, value, and types of
properties placed into official use by Federal agencies, by
recipient agency.
``(iv) A report describing the number, value, and types of
properties transferred to State and local law enforcement
agencies, by recipient agency.
``(v) A report, by type of disposition, describing the
number, value, and types of forfeited property disposed of
during the year.
``(vi) A report on the year-end inventory of property under
seizure, but not yet forfeited, that reflects the type of
property, its estimated value, and the estimated value of liens
and mortgages outstanding on the property.
``(vii) A report listing each property in the year-end
inventory, not yet forfeited, with an outstanding equity of not
less than $1,000,000.
[[Page 114 STAT. 224]]
``(B) The Attorney General shall transmit to Congress and make
available to the public, not later than 2 months after final issuance,
the audited financial statements for each fiscal year for the Fund.
``(C) Reports under subparagraph (A) shall include information with
respect to all forfeitures under any law enforced or administered by the
Department of Justice.
``(D) The transmittal and publication requirements in subparagraphs
(A) and (B) may be satisfied by--
``(i) posting the reports on an Internet website maintained
by the Department of Justice for a period of not less than 2
years; and
``(ii) notifying the Committees on the Judiciary of the
House of Representatives and the Senate when the reports are
available electronically.''.
SEC. 20. PROCEEDS.
(a) Forfeiture of Proceeds.--Section 981(a)(1)(C) of title 18,
United States Code, is amended by striking ``or a violation of section
1341'' and all that follows and inserting ``or any offense constituting
`specified unlawful activity' (as defined in section 1956(c)(7) of this
title), or a conspiracy to commit such offense.''.
(b) Definition of Proceeds.--Section 981(a) of title 18, United
States Code, is amended by adding at the end the following:
``(2) For purposes of paragraph (1), the term `proceeds' is defined
as follows:
``(A) In cases involving illegal goods, illegal services,
unlawful activities, and telemarketing and health care fraud
schemes, the term `proceeds' means property of any kind obtained
directly or indirectly, as the result of the commission of the
offense giving rise to forfeiture, and any property traceable
thereto, and is not limited to the net gain or profit realized
from the offense.
``(B) In cases involving lawful goods or lawful services
that are sold or provided in an illegal manner, the term
`proceeds' means the amount of money acquired through the
illegal transactions resulting in the forfeiture, less the
direct costs incurred in providing the goods or services. The
claimant shall have the burden of proof with respect to the
issue of direct costs. The direct costs shall not include any
part of the overhead expenses of the entity providing the goods
or services, or any part of the income taxes paid by the entity.
``(C) In cases involving fraud in the process of obtaining a
loan or extension of credit, the court shall allow the claimant
a deduction from the forfeiture to the extent that the loan was
repaid, or the debt was satisfied, without any financial loss to
the victim.''.
[[Page 114 STAT. 225]]
SEC. 21. EFFECTIVE <<NOTE: Applicability. 8 USC 1324 note.>> DATE.
Except as provided in section 14(c), this Act and the amendments
made by this Act shall apply to any forfeiture proceeding commenced on
or after the date that is 120 days after the date of the enactment of
this Act.
Approved April 25, 2000.
LEGISLATIVE HISTORY--H.R. 1658:
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HOUSE REPORTS: No. 106-192 (Comm. on the Judiciary).
CONGRESSIONAL RECORD:
Vol. 145 (1999):
June 24, considered and passed
House.
Vol. 146 (2000):
Mar. 27, considered and passed
Senate, amended.
Apr. 11, House concurred in Senate
amendment.
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