Specifies that no party shall be required to establish that it is able to meet its burden of proof until the time of trial, with an exception for summary judgment motions.
(Sec. 3) Requires the Government, whenever property other than real property is seized by a Federal law enforcement agency or is turned over to such an agency by a State or local law enforcement agency for the purpose of forfeiture under Federal law, to commence administrative forfeiture proceedings against the property pursuant to the customs laws within 60 days after the seizure or turnover unless the Attorney General has filed a civil forfeiture complaint, or included the property in a criminal indictment, before such period has expired.
Requires the seizing agency, upon commencing administrative forfeiture proceedings, to send notice of the proceedings, together with information on the applicable procedures for contesting the forfeiture, to each party known to the agency at the time of the seizure to have an ownership or possessory interest, including a lienholder's interest in the seized property. Directs that, if the identity or interest of a party is not determined until after the seizure but is determined before a declaration of forfeiture is entered, such written notice and information be sent to such interested party not later than 60 days after the determination of the seizing agency of the party's identity or interest.
Requires the Government, if it does not send notice of a seizure of property to the person from whom it was received and no extension of time is granted, to return the property to that person without prejudice to the Government's right to commence a forfeiture proceeding at a later time. Directs that if the property is returned herein, neither the seizing agency nor any individual agent shall be held liable for the failure to provide notice. Specifies that 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.
Authorizes the Attorney General, the Secretary of the Treasury, or the United States Postal Service, as applicable, to waive such notice requirements for good cause.
Allows any person entitled to such notice who does not receive such notice to file, within two years after the date of final publication of notice of seizure of the property, a motion to set aside a declaration of forfeiture under the Tariff Act of 1930, which motion shall be granted if the moving party: (1) had an ownership or possessory interest in the forfeited property and the Government knew, or reasonably should have known, of that party's interest and failed to take reasonable steps to provide such party with notice of the forfeiture; and (2) did not have actual notice of the seizure within sufficient time to file a claim within the time period provided by law.
Directs: (1) the court, upon granting such a motion, to set aside the declaration of forfeiture as to the interest of the moving party pending forfeiture proceedings in accordance with the Tariff Act, which proceedings shall be instituted within 60 days of the entry of the order granting the motion; and (2) the Government, if at the time such a motion is granted the forfeited property has been disposed of by the Government in accordance with law, to institute forfeiture proceedings against a substitute sum of money equal to the value of the forfeited property at the time the property was disposed of, plus interest.
Makes a motion under this Act the exclusive means of obtaining judicial review of a declaration of forfeiture entered by a seizing agency.
(Sec. 4) Rewrites provisions of the Tariff Act to authorize a person claiming a seized vessel, vehicle, aircraft, merchandise, or baggage (vessel) to file a claim with the Customs Service at any time after the seizure, provided that the claim is filed not later than the later of 30 days after the first publication of notice of seizure, or the deadline set forth in a personal notice letter received by such person. Requires the claim to be signed by the claimant under penalty of perjury and contain a brief statement of the nature and extent of the claimant's ownership interest in the property.
Requires a person filing a claim to post bond to the United States in the sum of $5,000 or ten percent of the value of the claimed property, whichever is less, but not less than $250, with sureties approved by the Customs Service. Specifies that no bond shall be required if the Secretary approves a claim filed in forma pauperis.
Directs the Customs Service to transmit any such claim filed, with a duplicate list and description of the articles seized, to the U.S. attorney for the district in which the property was seized, or any other district in which a forfeiture action may be filed. Allows the U.S. attorney, after reviewing the matter, to decide to return the property to the claimant or to reach an appropriate compromise agreement with the claimant (otherwise the U.S. attorney shall proceed to a condemnation of the merchandise or other property or proceed to include the merchandise or other property in an appropriate criminal indictment).
Directs the appropriate customs officer, if no claim is filed or bond given within 30 (currently, 20) days, to declare the vessel forfeited.
Specifies that a cost bond otherwise required by the Tariff Act shall not be required if the claimant: (1) pledges real or personal property having a value greater than or equal to that of the bond that would otherwise be required as security against the costs of the Government; (2) provides, in any case in which the pledged real or personal property is subject to a Federal or State recording, certificate of title, or registration statute, documentary proof evidencing the ownership of the property by the claimant or pledger; and (3) files an affidavit under penalty of perjury setting forth the value of the property and stating that the claimant is the owner of the property.
Allows the U.S. attorney, once the claim is referred to the U.S. attorney under the Tariff Act, to ask the court to review the facts set forth in the affidavit filed.
Authorizes the claimant, at the conclusion of the case, to move for return of the cost bond, or to rescind the property pledge, and the court to grant such motion if the court finds that the claim was substantially justified. Directs the Government, if the court denies such motion, or if no such motion is made, to retain the bond to the extent necessary to recover its costs and return the balance to the claimant. Allows the Government, in the case of a property pledge, to: (1) serve upon the claimant an assessment of its costs, which assessment shall be collectible as a debt owed to the Government; or (2) foreclose on the pledged property to recover its costs.
(Sec. 5) Directs the Attorney General, in any case in which property has been seized or restrained by the Government and a claim has been filed, to: (1) file a compliant for forfeiture within 90 days (with an exception) or include a forfeiture count in a criminal indictment or information, or both; or (2) return the property pending the filing of a complaint or indictment.
Authorizes the Government to apply to a Federal magistrate judge in any district in which venue for a forfeiture action would lie for an extension of time in which to comply, which shall be granted based on a showing of good cause. Allows such extension to be made ex parte where the filing would jeopardize an ongoing criminal investigation, prosecution, or court-authorized electronic surveillance.
Sets forth provisions regarding the filing of a claim and answer, and a motion to dismiss a complaint for forfeiture.
(Sec. 6) Amends the code to authorize a person with standing to challenge the forfeiture of seized property to file a motion for the return of the property. Directs the court, if such motion is filed, to conduct a hearing within 90 days and order the release of the property, pending trial on the forfeiture and entry of judgment, unless: (1) the Government establishes probable cause to believe that the property is subject to forfeiture, based on all information available to the Government at the time of hearing; (2) the Government has filed a civil forfeiture complaint against the property, and a magistrate judge has determined there is probable cause for the issuance of a warrant of arrest in rem; (3) a grand jury has returned an indictment that includes an allegation that the property is subject to criminal forfeiture; (4) the party filing the motion had notice of the intent of the Government to forfeit the property administratively, and failed to file a claim to the property within the specified time period; (5) the property is contraband or other property that the moving party may not legally possess; or (6) the property is needed as evidence in a criminal investigation or prosecution.
(Sec. 7) Directs the court, if the party filing a claim in a civil forfeiture case is not charged with any criminal offense in a related criminal case, and the court enters judgment for that party, to order the Government to pay costs and reasonable attorney's fees to the claimant, with exceptions. Provides for sanctions for frivolous claims.
(Sec. 8) Directs that all civil forfeitures of, and interests in, real property proceed as judicial forfeitures. Makes the administrative forfeiture provisions of the Tariff Act inapplicable to the forfeiture of real property.
Prohibits (with exceptions): (1) real property that is the subject of a forfeiture action from being seized before entry of an order of forfeiture; and (2) the owners or occupants of the real property from being evicted from, or otherwise deprived of the use and enjoyment of, real property that is the subject of a pending forfeiture action.
Directs the court in which a civil forfeiture action is pending, in lieu of issuing an arrest warrant in rem, to issue a notice of complaint for forfeiture, which shall be served on the property owner and posted on the property. Specifies that the posting of such notice shall be sufficient to give the court in rem jurisdiction over the property. Provides for constructive service if the property owner cannot be served because such owner is a fugitive or resides outside of the United States, and efforts at service are unavailing.
Sets forth provisions regarding seizure prior to entry of a forfeiture order, post- seizure hearings, actions not considered seizures, and scope of applicability of this section.
(Sec. 9) Amends the Federal Tort Claims Act to authorize compensation for damage to seized property if the claimant is not convicted of a crime for which the claimant's property interest would be subject to forfeiture and if other specified circumstances apply. Specifies that damage to property occurring in the course of carrying out a lawful law enforcement function may not be construed to be the result of negligence unless the function was carried out in an unreasonable manner.
(Sec. 10) Amends the code to prohibit the forfeiture of the interest of an innocent owner in property in any judicial action under any civil forfeiture provision of the code, the Controlled Substances Act (CSA), or the Immigration and Nationality Act (INA). Defines "innocent owner" with respect to: (1) a property interest in existence at the time the illegal act giving rise to forfeiture took place, as an owner who did not know that the property was being used or was likely to be used in the commission of such illegal act, or upon learning that the property was being used or was likely to be used in the commission of such act, did all that reasonably could be expected to terminate or prevent such use of the property; and (2) such an interest acquired after the act giving rise to the forfeiture took place, as a person who establishes, by a preponderance of the evidence that the person acquired the property as a bona fide purchaser for value who at the time of the purchase did not know and was reasonably without cause to believe that the property was subject to forfeiture. Makes an innocent owner defense under this section an affirmative defense.
(Sec. 11) Authorizes the release of seized property pending trial to avoid hardship under specified circumstances.
(Sec. 12) Directs the court, upon motion of the United States, to stay a civil forfeiture proceeding if the court 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 court, upon motion of a claimant, to stay the civil forfeiture proceeding with respect to that claimant if the court determines that: (1) the claimant is the subject of a related criminal investigation or case; (2) the claimant has standing to assert a claim in the civil forfeiture proceeding; and (3) continuation of the forfeiture proceeding may infringe upon the claimant's right against self- incrimination in the related investigation or case.
Authorizes the court to 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. Prohibits the court from imposing a protective order as an alternative to a stay if the effect of such order would be to allow one party to pursue discovery while the other party is substantially unable to do so.
Sets forth provisions regarding presentations ex parte and under seal, court orders to preserve the value of property, and applicability of standing determinations.
(Sec. 13) Amends the Federal judicial code to provide that, upon entry of judgment for the claimant in any proceeding to condemn or forfeit property seized or arrested under the Federal criminal code, the CSA, or the INA, the United States shall: (1) be liable for post-judgment interest; (2) not be liable for prejudgment interest, with an exception; and (3) not be required to disgorge the value of any intangible benefits nor to make any other payments of interest or other compensation to the claimant not specifically authorized.
(Sec. 14) Rewrites code provisions regarding search warrant requirements for civil forfeiture. Authorizes the seizure of property by the Secretary of the Treasury or the United States Postal Service in the case of property involved in a violation investigated by such Secretary or Service.
Requires that any such seizure be made pursuant to a warrant, which may be issued by a magistrate judge, 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 based upon a showing of probable cause; (2) there is probable cause to believe that the property is subject to forfeiture and the seizure is made pursuant to a lawful arrest or search, or 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.
Authorizes issuance of a seizure warrant by a judicial officer in any district in which a forfeiture action against the property may be filed under judicial code provisions, and 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. Directs the judicial officer to command the officer to seize, within a specified time period, the property specified in the warrant. Requires any motion for the return of property seized to be filed in the district in which the seizure warrant was issued.
Allows a party with standing to challenge a seizure and forfeiture to move to suppress the use of the property as evidence on the ground that the Government lacked probably cause at the time of the seizure. Specifies that suppression of the property as evidence shall not affect the Government's right to proceed with a forfeiture action based on independently derived evidence.
Authorizes the Attorney General, 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, to apply to a 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. Requires the application for the restraining order to 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 to contain a statement that the 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.
(Sec. 15) Authorizes the court, before or after filing a forfeiture complaint and on application of the Government, to: (1) enter any restraining order or injunction of the CSA; (2) require the execution of satisfactory performance bonds; (3) create receiverships; (4) appoint conservators, custodians, appraisers, accountants, or trustees; or (5) take any other action to seize, secure, maintain, or preserve the availability of property subject to forfeiture.
(Sec. 16) Provides that, at the conclusion of the trial and following the entry of a forfeiture verdict: (1) the claimant may petition the court to determine whether the excessive fines clause of the Eighth Amendment applies and, if so, whether the forfeiture is grossly disproportional to the gravity of the offense; (2) the claimant shall have the burden of establishing that the forfeiture is grossly disproportional by a preponderance of the evidence at a hearing by the court without a jury; and (3) if the court determines that the forfeiture is grossly disproportional to the gravity of the offense, the court shall adjust the forfeiture to the extent necessary to avoid the constitutional violation.
(Sec. 17) Authorizes the Attorney General, the Secretary of the Treasury, or their designee, in any investigation relating to the seizure or forfeiture of property, to issue in writing and cause to be served a subpoena for evidence. Makes provisions of the code (regarding obstruction of civil investigative demands), the Right to Financial Privacy Act, and the Fair Credit Reporting Act applicable to this section.
(Sec. 18) Dismisses with prejudice the claim of any claimant in a civil forfeiture case, or any related criminal forfeiture case under CSA, when the claimant refuses to provide certain financial records located in a foreign country when it is within the claimant's capacity to make such records available.
(Sec. 19) Modifies code provisions regarding disclosure of matters occurring before a grand jury to allow a person who is privy to grand jury information to disclose the information to a Government attorney for use in connection with any civil forfeiture provision of Federal law.
(Sec. 20) Amends the Internal Revenue Code to authorize a Federal district court judge or magistrate to open to inspection by, or disclosure to, Federal officers and employees who are personally and directly engaged in specified activities of tax return information available in connection with a civil forfeiture investigation or proceeding.
(Sec. 21) Amends the Tariff Act to provide that, in the case of forfeiture, the statute of limitations shall be within five years after the time when the existence of the property and the involvement of the property in the alleged offense were discovered (but retains the current standard of five years after the time when the alleged offense was discovered).
(Sec. 22) Amends the code to expand the scope of provisions regarding the destruction or removal of property to prevent seizure to cover seizure for forfeiture and to explicitly cover real property.
(Sec. 23) Revises code provisions regarding civil forfeiture of fungible property to permit invocation of such provisions only if the action for forfeiture was commenced by a seizure or 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.
(Sec. 24) Amends the CSA to provide that in any action with respect to the forfeiture of seized currency the finder of fact shall determine the nexus between the currency and the drug trafficking offense based on the totality of the circumstances. Lists factors which the finder of fact may consider in making such determination.
(Sec. 25) Amends the code to authorize the use of forfeited property to pay restitution 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 activity.
(Sec. 26) Amends the judicial code to provide that a person who, in order to avoid criminal prosecution, purposely leaves U.S. jurisdiction, declines to enter or reenter the United States to submit to its jurisdiction, or otherwise evades the jurisdiction of the court in which a criminal case is pending against the person, may not use 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.
(Sec. 27) Requires a foreign nation seeking to have its value-based confiscation judgment registered and enforced by a U.S. district court to first submit a request to the Attorney General or his or her designee (Attorney General) which shall include specified information, including a summary of the facts of the case and a description of the criminal proceeding that resulted in the value-based confiscation judgment. Directs the Attorney General to determine whether to certify the request, which decision shall be final.
Permits a foreign nation to file a civil proceeding in U.S. district court, if the Attorney General certifies a request, seeking to enforce the foreign value-based confiscation judgment as if the judgment had been entered by a U.S. court, subject to specified requirements.
(Sec. 28) Amends the judicial code to authorize the Government, 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, to include the forfeiture in the indictment or information. Directs the court, upon conviction, to order the forfeiture of the property in accordance with procedures set forth in the Comprehensive Drug Abuse Prevention and Control Act of 1970.
(Sec. 29) Amends the CSA and the code to provide for uniform civil forfeiture standards.
(Sec. 31) Rewrites INA provisions regarding the bringing in and harboring of aliens to authorize the seizure and forfeiture of the gross proceeds of a violation, and any property traceable to such conveyance or proceeds. Specifies that standards under the code shall apply to civil forfeitures under the INA, with an exception for duties imposed upon the Secretary of the Treasury under the customs laws. Sets forth 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 remained in violation of law.
Introduced in Senate
Sponsor introductory remarks on measure. (CR S12108-12109)
Read twice and referred to the Committee on Judiciary.
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