Forfeiture Act of 1997

TABLE OF CONTENTS:

Title I: Administrative Forfeitures

Title II: Judicial Forfeitures

Title III: Property Subject to Forfeiture

Title IV: Miscellaneous Forfeiture Amendments

Title V: Criminal Forfeiture

Forfeiture Act of 1997 - Title I: Administrative Forfeitures - Rewrites provisions regarding seizures, claims, and judicial condemnation under the Tariff Act of 1930 (the Act). Allows any person claiming seized property to file a claim with the appropriate customs officer at any time after the seizure if filed within 30 days after the final publication of notice of seizure. Directs that the claim be signed by the claimant under penalty of perjury and contain a statement of the nature and extent of the claimant's ownership interest in the property and how and when it was acquired.

Specifies that no bond shall be required if the property is seized by the Attorney General and consists of monetary instruments, or if the claim is filed in forma pauperis with the required supporting information. Authorizes the Attorney General and the Secretary of the Treasury to waive or reduce the bond requirement under specified circumstances.

Provides for condemnation in the manner prescribed in the Supplemental Rules for Certain Admiralty and Maritime Claims (Rules).

(Sec. 102) Modifies a provision regarding summary forfeiture and sale to require the appropriate customs officer, if any vessel, vehicle, aircraft, merchandise, or baggage is not subject to seizure provisions of the Act, to transmit specified information to the United States attorney for a district in which a forfeiture action could be filed under the Federal judicial code.

(Sec. 103) Amends the Act to provide that where no timely claim to seized property is filed and a declaration of forfeiture is entered pursuant to the Act by the seizing agency, the declaration shall be final and not subject to judicial review, with an exception where a claimant establishes that: (1) the seizing agency failed to take reasonable steps to provide the claimant with notice of the forfeiture; and (2) the claimant had no actual notice of the forfeiture proceeding within the period for filing a claim. Directs the district court, in such case, to order that the declaration of forfeiture be set aside pending forfeiture proceedings in accordance with the Act.

Sets guidelines for what constitute "reasonable steps." Requires that an action to set aside a forfeiture declaration be filed within two years of the last date of publication of notice of the forfeiture of the property.

(Sec. 104) Requires that all forfeitures of real property and interests therein proceed as judicial forfeitures.

(Sec. 105) Amends: (1) the Rules to provide for the preservation of attached or arrested real property; and (2) the Federal Tort Claims Act to make an exception to such Act applicable to claims arising out of the assessment or collection of any tax or customs duty, or the detention of any property by any law enforcement officer performing any official law enforcement function, and certain cases based on the loss of, or negligent destruction or injury to, tangible property in the possession, custody, or control of a law enforcement agency.

(Sec. 107) Makes the United States liable for post-judgment interest upon entry of judgment for the claimant in any proceeding to condemn or forfeit property seized or arrested under any Act of Congress. Specifies that the United States shall not be liable for pre-judgment interest, with exceptions.

(Sec. 108) Modifies civil forfeiture provisions under the Federal criminal code (the code) to direct that seizures be made pursuant to a warrant obtained in the same manner as provided for a search warrant under the Federal Rules of Criminal Procedure (FRCrP), except that a seizure may be made without a warrant if: (1) a complaint for forfeiture has been filed in the district court and the court has issued an arrest warrant in rem pursuant to the Rules; (2) the seizure is made pursuant to a lawful arrest or search, or if there is probable cause to believe that the property is subject to forfeiture and another exception to the Fourth Amendment warrant requirement would apply; or (3) the property was lawfully seized by a State or local law enforcement agency and has been transferred to a Federal agency in accordance with State law. Sets forth additional procedures.

Amends the Controlled Substances Act (CSA) to conform drug forfeiture procedures under that Act with forfeiture procedures under the code.

Title II: Judicial Forfeitures - Amends the code to authorize the Attorney General to file a civil forfeiture complaint in the manner set forth in the Rules. Grants the Attorney General discretion, in cases where the applicable law authorizes the institution of civil and criminal forfeiture proceedings in connection with an offense, to determine whether to file a civil complaint, a criminal complaint, indictment or information including a forfeiture count in accordance with the applicable criminal forfeiture statute, or both civil and criminal actions.

Sets forth provisions with respect to civil forfeiture complaints regarding: (1) time for filing; (2) filing a claim and answer; (3) standing; (4) affirmative defenses; (5) a motion to suppress seized evidence; (6) use of hearsay at pretrial hearings; (7) adverse inferences; (8) stipulations; (9) preservation of property subject to forfeiture; (10) release of property to pay criminal defense costs; (11) excessive fines; (12) applicability of this Act to judicial forfeiture under other Federal laws; (13) non-abatement of civil forfeiture actions or judgments because of the death of any person; and (14) rebuttable presumptions.

(Sec. 202) Provides that an innocent owner's interest in property shall not be forfeited in any judicial action under any civil forfeiture provision of the code, the CSA, or the Immigration and Naturalization Act of 1952. Sets forth guidelines for determining if a person is an innocent owner and for handling situations involving an innocent owner with a partial interest in property subject to forfeiture.

(Sec. 203) Modifies code provisions to direct the court, upon motion of the United States, to stay a civil forfeiture proceeding if it determines that civil discovery or trial could adversely affect the Government's ability to conduct a related criminal investigation or the prosecution of a related criminal case.

Directs the Attorney General and the Secretary to jointly promulgate guidelines governing the preservation of the value of property subject to forfeiture in a case that has been stayed.

(Sec. 204) Specifies procedures that apply when a statute under the code provides for civil or criminal forfeiture without designating the procedures governing the forfeitures.

(Sec. 205) Grants the Attorney General authority, for the purpose of conducting an investigation in contemplation of civil forfeiture proceedings, to administer oaths, take evidence, and subpoena witnesses and require the production of records deemed relevant or material to the inquiry. Makes provisions regarding civil investigative demands under the code applicable to this Act.

(Sec. 206) Directs that a claimant's refusal to provide records in response to a discovery request or to take action necessary to make the records available in a civil forfeiture case, or in certain ancillary proceedings in a criminal forfeiture case under the CSA, result in the dismissal of the claim with prejudice where: (1) financial records located in a foreign country may be material to any claim or the ability of the Government to respond to such claim or, in a civil forfeiture case, to the Government's ability to establish the forfeitability of the property; and (2) it is within the claimant's capacity to waive his or her rights under such secrecy laws or to obtain the records him or herself so that the records can be made available.

(Sec. 207) Amends: (1) the Internal Revenue Code (IRC) to provide for the disclosure of returns and information related to civil forfeitures; and (2) the code to expand the circumstances under which grand jury information may be disclosed to Federal prosecutors.

(Sec. 209) Amends the CSA to create a presumption that property subject to forfeiture is the proceeds of a CSA violation if, at trial, the Government establishes that the property is currency or other monetary instruments: (1) that was found in close proximity to a measurable quantity of a controlled substance; or (2) in excess of $10,000 that was being transported at a port of entry, on an interstate, or on U.S. coastal waters and the person in possession disclaims knowledge or ownership of the property or offers an explanation of possession that is false.

Title III: Property Subject to Forfeiture - Expands the categories of offenses for which property which constitutes or is derived from proceeds traceable to the violation may be subject to civil or criminal forfeiture.

(Sec. 302) Revises civil and criminal forfeiture provisions of the code, the CSA, and the Racketeer Influenced and Corrupt Organizations Act (RICO) to provide for a uniform definition of "proceeds."

(Sec. 303) Provides for the forfeiture of firearms used to commit or facilitate the commission of a Federal felony or crime of violence. Authorizes the Secretary to seize and forfeit property otherwise forfeitable under Federal law that was involved in or derived from the crime of violence or drug trafficking crime in which the forfeited firearm was used or carried.

(Sec. 304) Amends the CSA to provide for the forfeiture of proceeds traceable to facilitating specified violations involving property in drug cases.

(Sec. 305) Modifies or establishes provisions regarding forfeiture: (1) for alien smuggling; (2) of proceeds of certain foreign crimes; (3) of property used to facilitate foreign drug crimes; (4) for specified IRC violations; (5) for money laundering conspiracies; (6) under the Archaeological Resources Protection Act of 1979; (7) of instrumentalities of terrorism, telemarketing fraud, and other offenses; (8) of vehicles used for gun running; (9) of criminal proceeds transported in interstate commerce; (10) of proceeds of Federal Food, Drug, and Cosmetic Act violations; (11) for food stamp fraud; and (12) for odometer tampering offenses.

Title IV: Miscellaneous Forfeiture Amendments - Revises civil forfeiture provisions under the code to provide for the use of forfeited funds to pay restitution to crime victims and regulatory agencies.

(Sec. 402) Establishes procedures whereby certain foreign nations may submit a request to the Attorney General to have a final order of such nation compelling a defendant, as a consequence of his or her criminal conviction for a specified offense under the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to pay a sum of money or property representing the proceeds of such offense registered and enforced by a United States district court.

(Sec. 403) Revises provisions regarding civil forfeiture of fungible property to make such provisions applicable only if the forfeiture action was commenced by a seizure or an arrest in rem within two years of the offense that is the basis for the forfeiture. Makes such provisions inapplicable 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. Includes a foreign bank within the definition of "financial institution."

(Sec. 404) Provides for the civil forfeiture of coins and currency in confiscated gambling devices.

(Sec. 406) Modifies code provisions to authorize: (1) the sharing of forfeited property with cooperating foreign governments; and (2) the forfeiture of counterfeit paraphernalia, subject to specified requirements.

(Sec. 408) Amends the CSA to provide for criminal forfeiture irrespective of any bankruptcy proceeding instituted after or in contemplation of a prosecution of the violation.

(Sec. 409) Sets statutes of limitations of five years and ten years, respectively, from discovery for civil forfeiture actions under the Act and under code provisions pertaining to financial institutions.

(Sec. 410) Revises Federal judicial code provisions to authorize the Attorney General, following the completion of procedures for the forfeiture of property pursuant to any law enforced or administered by the Department of Justice and subject to such terms and conditions as the Attorney General shall specify, to take specified actions, such as to destroy the property if it is unsuitable for public use or sale, or uneconomical to market. Requires the Attorney General to provide for the property rights of innocent persons in disposing of forfeited property.

(Sec. 411) Makes judicial review provisions under the CSA inapplicable to certain findings, conclusions, rulings, decisions, or declarations of the Attorney General relating to the seizure, forfeiture, or disposition of forfeited property.

(Sec. 412) Authorizes deposits or credits to the Department of the Treasury Forfeiture Fund in lieu of forfeiture. Amends the Federal judicial code to make certain amounts transferred by the Secretary pursuant to such provision, or by the Postmaster General, available to the Attorney General for Federal law enforcement and criminal prosecution purposes.

(Sec. 414) Amends the Act to authorize the Secretary, whenever property is civilly or criminally forfeited by or for the United States Customs Service, including administrative forfeiture, to dispose of the property in accordance with law.

(Sec. 416) Amends the Federal judicial code to: (1) prohibit any person who, in order to avoid criminal prosecution, purposely leaves the jurisdiction of the United States, declines to enter or reenter the United States to submit to its jurisdiction, or otherwise evades the jurisdiction of the court where a criminal case is pending against the person, from using the resources of the U.S. courts in furtherance of a claim in any related civil forfeiture action or a claim in third-party proceedings in any related criminal forfeiture action; and (2) provide for the admissibility of foreign business records.

(Sec. 418) Amends the code to include seizures for forfeiture within provisions regarding destruction or removal of property to prevent seizure.

(Sec. 419) Makes all amendments in this Act applicable to forfeiture proceedings commenced on or after its effective date, unless otherwise specified in this Act. Specifies effective dates for administrative, civil judicial, and criminal forfeitures, and for changes in substantive forfeiture law.

Title V: Criminal Forfeiture - Modifies provisions under the code (including regarding obscenity, child pornography, espionage, firearms, and immigration provisions), RICO, and the Food Stamp Act of 1977 to establish uniform procedures for criminal forfeiture.

(Sec. 502) Amends the Federal judicial code to provide that, whenever 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 FRCrP and, upon conviction, the court shall order the forfeiture of the property in accordance with procedures established in this title.

(Sec. 503) Establishes a new FRCrP (32.2) which sets forth provisions regarding: (1) indictment and information; (2) hearing and entry of preliminary order of forfeiture after verdict; (3) authority of the Attorney General to seize property and finality of the order; (4) ancillary proceedings; (5) stays of forfeiture pending appeal; and (6) substitute property.

(Sec. 504) Modifies or establishes provisions regarding: (1) pretrial restraint of substitute assets; (2) repatriation of property placed beyond the court's jurisdiction; (3) hearings on pretrial restraining orders; (4) criminal seizure warrants; (5) the standard of proof for criminal forfeiture; (6) discovery procedure for locating forfeited assets; (7) collection of criminal forfeiture judgments; (8) appeals in criminal forfeiture cases; (9) nonabatement of forfeiture when a defendant dies pending appeal; (10) standing of third parties to contest criminal forfeiture orders; (11) motion and discovery procedures for ancillary hearings; (12) intervention by the defendant in an ancillary proceeding; (13) in personam judgments; (14) rights of third parties to contest forfeiture of substitute assets; (15) forfeitable property transferred to third parties; (16) forfeiture of third party interests in criminal cases; (17) severance of jointly held property; (18) victim restitution; and (19) delivery of property to the Marshals Service.