II

106TH CONGRESS

1ST SESSION S. 1931

To provide a more just and uniform procedure for Federal civil forfeitures,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 16, 1999

Mr. HATCH (for himself and Mr. LEAHY) introduced the following bill; which

was read twice and referred to the Committee on the Judiciary

A BILL

To provide a more just and uniform procedure for Federal

civil forfeitures, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Civil Asset Forfeiture

5 Reform Act’’.

6 SEC. 2. CREATION OF GENERAL RULES RELATING TO CIVIL

7 FORFEITURE PROCEEDINGS.

8 (a) IN GENERAL.—Chapter 46 of title 18, United

9 States Code, is amended by inserting after section 981 the

10 following:
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1 ‘‘§ 981A. General rules for civil forfeiture proceedings

2 ‘‘(a) NOTICE; CLAIM; COMPLAINT.—(1)(A)(i) Except

3 as provided in clauses (ii) and (iii), in any nonjudicial civil

4 forfeiture proceeding under a civil forfeiture statute, with

5 respect to which the Government must send written notice

6 to interested parties, such notice shall be sent in a manner

7 to achieve proper service as soon as practicable, and in

8 no case more than 60 days after the date of the seizure.

9 ‘‘(ii) In a case in which the property is seized by a

10 State or local law enforcement agency and turned over to

11 a Federal law enforcement agency for the purpose of for12 feiture under Federal law, notice shall be sent no more

13 than 90 days after the date of seizure by the State or

14 local law enforcement agency.

15 ‘‘(iii) If the identity or interest of a party is not deter16 mined until after the seizure or turnover but is determined

17 before a declaration of forfeiture is entered, notice shall

18 be sent to such interested party not later than 60 days

19 after the determination by the Government of the identity

20 of the party or the party’s interest.

21 ‘‘(B) A court shall extend the period for sending no22 tice under subparagraph (A) for a period not to exceed

23 60 days (which period may be further extended), if the

24 court determines, based on a written ex parte certification

25 of a supervisory official of the seizing agency, that there
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1 is reason to believe that notice may have an adverse result,

2 including—

3 ‘‘(i) endangering the life or physical safety of

4 an individual;

5 ‘‘(ii) flight from prosecution;

6 ‘‘(iii) destruction of or tampering with evidence;

7 ‘‘(iv) intimidation of potential witnesses; or

8 ‘‘(v) otherwise seriously jeopardizing an inves9 tigation or unduly delaying a trial.

10 ‘‘(C) If the Government does not send notice of a sei11 zure of property in accordance with subparagraph (A) to

12 the person from whom the property was seized, and no

13 extension of time is granted, the Government shall return

14 the property to that person without prejudice to the right

15 of the Government to commence a forfeiture proceeding

16 at a later time.

17 ‘‘(2)(A) Any person claiming property seized in a

18 nonjudicial forfeiture proceeding may file a claim with the

19 appropriate official after the seizure.

20 ‘‘(B) A claim under subparagraph (A) may be filed

21 not later than the deadline set forth in a personal notice

22 letter, except that if that letter is not received, then a

23 claim may be filed not later than 30 days after the date

24 of final publication of notice of seizure.
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1 ‘‘(C) The claim shall state the claimant’s interest in

2 the property and be made under oath, subject to penalty

3 of perjury. The seizing agency shall make claim forms gen4 erally available on request.

5 ‘‘(D) Any person may make a claim under subpara6 graph (A) without posting bond with respect to the prop7 erty which is the subject of the claim.

8 ‘‘(3)(A) Not later than 90 days after a claim has been

9 filed, the Government shall file a complaint for forfeiture

10 in the manner set forth in the Supplemental Rules for Cer11 tain Admiralty and Maritime Claims or return the prop12 erty pending the filing of a complaint, except that a court

13 in the district in which the complaint will be filed may

14 extend the period for filing a complaint for good cause

15 shown or upon agreement of the parties.

16 ‘‘(B) If the Government does not file a complaint for

17 forfeiture or return the property, in accordance with sub18 paragraph (A), it shall return the property and may not

19 take any further action to effect the civil forfeiture of such

20 property.

21 ‘‘(C) In lieu of, or in addition to, filing a civil for22 feiture complaint, the Government may include a for23 feiture allegation in a criminal indictment. In such case,

24 the Government’s right to continued possession of the
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1 property shall be governed by the applicable criminal for2 feiture statute.

3 ‘‘(D) No complaint may be dismissed on the ground

4 that the Government did not have adequate evidence at

5 the time the complaint was filed to establish the forfeit6 ability of the property by a preponderance of the evidence.

7 ‘‘(4)(A) In any case in which the Government files

8 in the appropriate United States district court a complaint

9 for forfeiture of property, any person claiming an interest

10 in the seized property may file a claim asserting such per11 son’s interest in the property in the manner set forth in

12 the Supplemental Rules for Certain Admiralty and Mari13 time Claims, except that such claim may be filed not later

14 than 30 days after the date of service of the Government’s

15 complaint or, as applicable, not later than 30 days after

16 the date of final publication of notice of the filing of the

17 complaint.

18 ‘‘(B) A person asserting an interest in seized prop19 erty, in accordance with subparagraph (A), shall file an

20 answer to the Government’s complaint for forfeiture not

21 later than 20 days after the date of the filing of the claim.

22 ‘‘(b) APPOINTMENT OF COUNSEL.—(1) If—

23 ‘‘(A) a person in a judicial civil forfeiture pro24 ceeding under a civil forfeiture statute is financially

25 unable to obtain representation by counsel; and
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1 ‘‘(B)(i) the property subject to forfeiture is real

2 property that is being used by the person as a pri3 mary residence; or

4 ‘‘(ii) the person is represented by counsel ap5 pointed under section 3006A of this title in connec6 tion with a related criminal case;

7 the court may appoint or authorize counsel to represent

8 that person with respect to the claim, as appropriate.

9 ‘‘(2) In determining whether to appoint or authorize

10 counsel to represent a person asserting a claim under this

11 subsection, the court shall take into account such factors

12 as—

13 ‘‘(A) the person’s standing to contest the for14 feiture; and

15 ‘‘(B) whether the claim appears to be made in

16 good faith.

17 ‘‘(3) The court shall set the compensation for rep18 resentation under this subsection, which shall be equiva19 lent to that provided for court-appointed representation

20 under section 3006A of this title.

21 ‘‘(c) BURDEN OF PROOF.—In all suits or actions

22 brought under any civil forfeiture statute for the civil for23 feiture of any property, the burden of proof is on the Gov24 ernment to establish, by a preponderance of the evidence,

25 that the property is subject to forfeiture. The Government
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1 may use evidence gathered after the filing of a complaint

2 for forfeiture to establish, by a preponderance of the evi3 dence, that property is subject to forfeiture.

4 ‘‘(d) INNOCENT OWNER DEFENSE.—(1) An innocent

5 owner’s interest in property shall not be forfeited under

6 any civil forfeiture statute. The claimant shall have the

7 burden of proving that he is an innocent owner by a pre8 ponderance of the evidence.

9 ‘‘(2)(A) With respect to a property interest in exist10 ence at the time the illegal conduct giving rise to forfeiture

11 took place, the term ‘innocent owner’ means an owner

12 who—

13 ‘‘(i) did not know of the conduct giving rise to

14 forfeiture; or

15 ‘‘(ii) upon learning of the conduct giving rise to

16 the forfeiture, did all that reasonably could be ex17 pected under the circumstances to terminate such

18 use of the property.

19 ‘‘(B)(i) For the purposes of this paragraph, ways in

20 which a person may show that such person did all that

21 reasonably could be expected may include demonstrating

22 that such person, to the extent permitted by law—

23 ‘‘(I) gave timely notice to an appropriate law

24 enforcement agency of information that led the per-
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1 son to know the conduct giving rise to a forfeiture

2 would occur or has occurred; and

3 ‘‘(II) in a timely fashion revoked or attempted

4 to revoke permission for those engaging in such con5 duct to use the property or took reasonable actions

6 in consultation with a law enforcement agency to

7 discourage or prevent the illegal use of the property.

8 ‘‘(ii) A person is not required by this subparagraph

9 to take steps that the person reasonably believes would

10 be likely to subject any person (other than the person

11 whose conduct gave rise to the forfeiture) to physical dan12 ger.

13 ‘‘(3)(A) With respect to a property interest acquired

14 after the conduct giving rise to the forfeiture has taken

15 place, the term ‘innocent owner’ means a person who, at

16 the time that person acquired the interest in the

17 property—

18 ‘‘(i) was a bona fide purchaser or seller for

19 value (including a purchaser or seller of goods or

20 services for value); and

21 ‘‘(ii) did not know and was reasonably without

22 cause to believe that the property was subject to for23 feiture.
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1 ‘‘(B) An otherwise valid claim under subparagraph

2 (A) shall not be denied on the ground that the claimant

3 gave nothing of value in exchange for the property if—

4 ‘‘(i) the property is the primary residence of the

5 claimant;

6 ‘‘(ii) depriving the claimant of the property

7 would deprive the claimant of the claimant’s only

8 means of maintaining adequate shelter in the com9 munity for the claimant and all dependents residing

10 with the claimant;

11 ‘‘(iii) the property is not, and is not traceable

12 to, the proceeds of any criminal offense; and

13 ‘‘(iv) the claimant acquired his or her interest

14 in the property through marriage, divorce, or legal

15 separation, or the claimant was the spouse or legal

16 dependent of a person whose death resulted in the

17 transfer of the property to the claimant through in18 heritance or probate;

19 except that the court shall limit the value of any real prop20 erty interest for which innocent ownership is recognized

21 under this subparagraph to the value necessary to main22 tain adequate shelter in the community for such claimant

23 and all dependents residing with the claimant.

24 ‘‘(4) Notwithstanding any provision of this sub25 section, no person may assert an ownership interest under
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1 this subsection in contraband or other property that it is

2 illegal to possess.

3 ‘‘(e) MOTION TO SET ASIDE FORFEITURE.—(1) Any

4 person entitled to written notice in any nonjudicial civil

5 forfeiture proceeding under a civil forfeiture statute who

6 does not receive such notice may file a motion to set aside

7 a declaration of forfeiture with respect to that person’s

8 interest in the property, which motion shall be granted

9 if—

10 ‘‘(A) the Government knew, or reasonably

11 should have known, of the moving party’s interest

12 and failed to take reasonable steps to provide such

13 party with notice; and

14 ‘‘(B) the moving party did not know or have

15 reason to know of the seizure within sufficient time

16 to file a timely claim.

17 ‘‘(2) If the court grants a motion under paragraph

18 (1), the court shall set aside the declaration of forfeiture

19 as to the interest of the moving party without prejudice

20 to the right of the Government to commence a subsequent

21 forfeiture proceeding as to the interest of the moving

22 party, which proceeding shall be instituted within 60 days

23 of the entry of the order granting the motion.

24 ‘‘(3) A motion under paragraph (1) may be filed not

25 later than 6 years after the date that the claimant discov-
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1 ered or had reason to discover that the property was for2 feited, subject to the doctrine of laches, except that no

3 motion may be filed more than 11 years after the date

4 that the Government’s forfeiture cause of action accrued.

5 ‘‘(f) RELEASE OF SEIZED PROPERTY.—(1) A claim6 ant under subsection (a) is entitled to immediate release

7 of seized property if—

8 ‘‘(A) the claimant has a possessory interest in

9 the property;

10 ‘‘(B) the claimant has sufficient ties to the

11 community to provide assurance that the property

12 will be available at the time of the trial;

13 ‘‘(C) the continued possession by the Govern14 ment pending the final disposition of forfeiture pro15 ceedings will cause substantial hardship to the

16 claimant, such as preventing the functioning of a

17 business, preventing an individual from working, or

18 leaving an individual homeless;

19 ‘‘(D) the claimant’s likely hardship from the

20 continued possession by the Government of the

21 seized property outweighs the risk that the property

22 will be destroyed, damaged, lost, concealed, or trans23 ferred if it is returned to the claimant during the

24 pendency of the proceeding; and
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1 ‘‘(E) none of the conditions set forth in para2 graph (7) applies.

3 ‘‘(2) A claimant seeking release of property under

4 this subsection must request possession of the property

5 from the appropriate official, and the request must set

6 forth the basis on which the requirements of paragraph

7 (1) are met.

8 ‘‘(3) If not later than 10 days after the date of a

9 request under paragraph (2) the property has not been

10 released, the claimant may file a motion or complaint in

11 the district court in which the complaint has been filed

12 or, if no complaint has been filed, any district court that

13 would have jurisdiction of forfeiture proceedings relating

14 to the property, setting forth—

15 ‘‘(A) the basis on which the requirements of

16 paragraph (1) are met; and

17 ‘‘(B) the steps the claimant has taken to secure

18 release of the property from the appropriate official.

19 ‘‘(4) The court shall render a decision on a motion

20 or complaint filed under paragraph (3) no later than 30

21 days after the date of the filing, unless such 30-day limita22 tion is extended by consent of the parties or by the court

23 for good cause shown.

24 ‘‘(5) If—
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1 ‘‘(A) a motion or complaint is filed under para2 graph (3); and

3 ‘‘(B) the claimant demonstrates that the re4 quirements of paragraph (1) have been met;

5 the district court shall order that the property be returned

6 to the claimant, pending completion of proceedings by the

7 Government to obtain forfeiture of the property.

8 ‘‘(6) If the court grants a motion or complaint under

9 paragraph (3)—

10 ‘‘(A) the court may enter any order necessary

11 to ensure that the value of the property is main12 tained while the forfeiture action is pending,

13 including—

14 ‘‘(i) permitting the inspection,

15 photographing, and inventory of the property;

16 ‘‘(ii) fixing a bond in accordance with rule

17 E(5) of the Supplemental Rules for Certain Ad18 miralty and Maritime Claims; and

19 ‘‘(iii) requiring the claimant to obtain or

20 maintain insurance on the subject property; and

21 ‘‘(B) the Government may place a lien against

22 the property or file a lis pendens to ensure that the

23 property is not transferred to another person.

24 ‘‘(7) This subsection shall not apply if the seized

25 property—
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1 ‘‘(A) is contraband, currency or other monetary

2 instrument, or electronic funds unless such currency

3 or other monetary instrument or electronic funds

4 constitutes the assets of a legitimate business which

5 has been seized;

6 ‘‘(B) is to be used as evidence of a violation of

7 the law;

8 ‘‘(C) by reason of design or other characteristic,

9 is particularly suited for use in illegal activities; or

10 ‘‘(D) is likely to be used to commit additional

11 criminal acts if returned to the claimant.

12 ‘‘(g) PROPORTIONALITY.—The claimant may petition

13 the court to determine whether the forfeiture was constitu14 tionally excessive. In making this determination, the court

15 shall compare the forfeiture to the gravity of the offense

16 giving rise to the forfeiture. If the court finds that the

17 forfeiture is grossly disproportional to the offense it shall

18 reduce or eliminate the forfeiture as necessary. The claim19 ant shall have the burden of establishing that the for20 feiture is grossly disproportional by a preponderance of

21 the evidence at a hearing conducted by the court without

22 a jury.

23 ‘‘(h) DEFINITIONS.—In this section:

24 ‘‘(1)(A) Except as provided in subparagraph

25 (B), the term ‘civil forfeiture statute’ means any
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1 provision of Federal law providing for the forfeiture

2 of property other than as a sentence imposed upon

3 conviction of a criminal offense.

4 ‘‘(B) The term ‘civil forfeiture statute’ does not

5 include—

6 ‘‘(i) the Tariff Act of 1930 or any other

7 provision of law codified in title 19;

8 ‘‘(ii) the Internal Revenue Code of 1986;

9 ‘‘(iii) the Federal Food, Drug, and Cos10 metic Act (21 U.S.C. 301 et seq.);

11 ‘‘(iv) the Trading with the Enemy Act (50

12 U.S.C. App. 1 et seq.); or

13 ‘‘(v) section 1 of title VI of the Act of

14 June 15, 1917 (40 Stat. 233; 22 U.S.C. 401).

15 ‘‘(2)(A) The term ‘owner’ means a person with

16 an ownership interest in the specific property sought

17 to be forfeited, including a leasehold, lien, mortgage,

18 recorded security interest, or valid assignment of an

19 ownership interest.

20 ‘‘(B) The term ‘owner’ does not include—

21 ‘‘(i) a person with only a general unse22 cured interest in, or claim against, the property

23 or estate of another;
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1 ‘‘(ii) a bailee unless the bailor is identified

2 and the bailee shows a colorable legitimate in3 terest in the property seized; or

4 ‘‘(iii) a nominee who exercises no dominion

5 or control over the property.’’.

6 (b) TECHNICAL AND CONFORMING AMENDMENT.—

7 The analysis for chapter 46 of title 18, United States

8 Code, is amended by inserting after the item relating to

9 section 981 the following:

‘‘981A. General rules for civil forfeiture proceedings.’’.

10 SEC. 3. COMPENSATION FOR DAMAGE TO SEIZED PROP11 ERTY.

12 (a) TORT CLAIMS ACT.—Section 2680(c) of title 28,

13 United States Code, is amended—

14 (1) by striking ‘‘any goods or merchandise’’ and

15 inserting ‘‘any goods, merchandise, or other prop16 erty’’;

17 (2) by striking ‘‘law-enforcement’’ and inserting

18 ‘‘law enforcement’’; and

19 (3) by inserting before the period at the end the

20 following: ‘‘, except that the provisions of this chap21 ter and section 1346(b) of this title apply to any

22 claim based on injury or loss of goods, merchandise,

23 or other property, while in the possession of any offi24 cer of customs or excise or any other law enforce25 ment officer, if—
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1 ‘‘(1) the property was seized for the purpose of

2 forfeiture under any provision of Federal law pro3 viding for the forfeiture of property other than as a

4 sentence imposed upon conviction of a criminal of5 fense;

6 ‘‘(2) the interest of the claimant is not for7 feited; and

8 ‘‘(3) the claimant is not convicted of a crime for

9 which the interest of the claimant in the property

10 would be subject to forfeiture under a Federal crimi11 nal forfeiture law.’’.

12 (b) DEPARTMENT OF JUSTICE.—

13 (1) IN GENERAL.—With respect to a claim that

14 cannot be settled under chapter 171 of title 28,

15 United States Code, the Attorney General may set16 tle, for not more than $50,000 in any case, a claim

17 for damage to, or loss of, privately owned property

18 caused by an investigative or law enforcement officer

19 (as defined in section 2680(h) of title 28, United

20 States Code) who is employed by the Department of

21 Justice acting within the scope of his or her employ22 ment.

23 (2) LIMITATIONS.—The Attorney General may

24 not pay a claim under paragraph (1) that—
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1 (A) is presented to the Attorney General

2 more than 1 year after it occurs; or

3 (B) is presented by an officer or employee

4 of the Federal Government and arose within the

5 scope of employment.

6 SEC. 4. ATTORNEY FEES, COSTS, AND INTEREST.

7 (a) IN GENERAL.—Section 2465 of title 28, United

8 States Code, is amended to read as follows:

9 ‘‘§ 2465. Return of property to claimant; liability for

10 wrongful seizure; attorney fees, costs,

11 and interest

12 ‘‘(a) Upon the entry of a judgment for the claimant

13 in any proceeding to condemn or forfeit property seized

14 or arrested under any provision of Federal law—

15 ‘‘(1) such property shall be returned forthwith

16 to the claimant or his agent; and

17 ‘‘(2) if it appears that there was reasonable

18 cause for the seizure or arrest, the court shall cause

19 a proper certificate thereof to be entered and, in

20 such case, neither the person who made the seizure

21 or arrest nor the prosecutor shall be liable to suit or

22 judgment on account of such suit or prosecution, nor

23 shall the claimant be entitled to costs, except as pro24 vided in subsection (b).
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1 ‘‘(b)(1) Except as provided in paragraph (2), in any

2 civil proceeding to forfeit property under any provision of

3 Federal law in which the claimant substantially prevails,

4 the United States shall be liable for—

5 ‘‘(A) reasonable attorney fees and other litiga6 tion costs reasonably incurred by the claimant;

7 ‘‘(B) post-judgment interest, as set forth in sec8 tion 1961 of this title; and

9 ‘‘(C) in cases involving currency, other nego10 tiable instruments, or the proceeds of an interlocu11 tory sale—

12 ‘‘(i) interest actually paid to the United

13 States from the date of seizure or arrest of the

14 property that resulted from the investment of

15 the property in an interest-bearing account or

16 instrument; and

17 ‘‘(ii) an imputed amount of interest that

18 such currency, instruments, or proceeds would

19 have earned at the rate described in section

20 1961, for any period during which no interest

21 was paid (not including any period when the

22 property reasonably was in use as evidence in

23 an official proceeding or in conducting scientific

24 tests for the purpose of collecting evidence).
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1 ‘‘(2)(A) The United States shall not be required to

2 disgorge the value of any intangible benefits nor make any

3 other payments to the claimant not specifically authorized

4 by this subsection.

5 ‘‘(B) The provisions of paragraph (1) shall not apply

6 if the claimant is convicted of a crime for which the inter7 est of the claimant in the property would be subject to

8 forfeiture under a Federal criminal forfeiture law.’’.

9 (b) TECHNICAL AND CONFORMING AMENDMENT.—

10 The analysis for chapter 163 of title 28, United States

11 Code, is amended by striking the item relating to section

12 2465 and inserting following:

‘‘2465. Return of property to claimant; liability for wrongful seizure; attorney

fees, costs, and interest.’’.

13 SEC. 5. SEIZURE WARRANT REQUIREMENT.

14 (a) IN GENERAL.—Section 981(b) of title 18, United

15 States Code, is amended to read as follows:

16 ‘‘(b)(1) Except as provided in section 985, any prop17 erty subject to forfeiture to the United States under sub18 section (a) may be seized by the Attorney General and,

19 in the case of property involved in a violation investigated

20 by the Secretary of the Treasury or the United States

21 Postal Service, the property may also be seized by the Sec22 retary of the Treasury or the Postal Service, respectively.

23 ‘‘(2) Seizures pursuant to this section shall be made

24 pursuant to a warrant obtained in the same manner as
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1 provided for a search warrant under the Federal Rules

2 of Criminal Procedure, except that a seizure may be made

3 without a warrant if—

4 ‘‘(A) a complaint for forfeiture based on prob5 able cause has been filed in the United States dis6 trict court and the court has issued an arrest war7 rant in rem pursuant to the Supplemental Rules for

8 Certain Admiralty and Maritime Claims;

9 ‘‘(B) there is probable cause to believe that the

10 property is subject to forfeiture and—

11 ‘‘(i) the seizure is made pursuant to a law12 ful arrest or search; or

13 ‘‘(ii) another exception to the Fourth

14 Amendment warrant requirement would apply;

15 or

16 ‘‘(C) the property was lawfully seized by a State

17 or local law enforcement agency and has been trans18 ferred to a Federal agency in accordance with State

19 law.

20 ‘‘(3) Notwithstanding the provisions of rule 41(a) of

21 the Federal Rules of Criminal Procedure, a seizure war22 rant may be issued pursuant to this subsection by a judi23 cial officer in any district in which a forfeiture action

24 against the property may be filed under section 1355(b)
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1 of title 28, and executed in any district in which the prop2 erty is found.’’.

3 (b) DRUG FORFEITURES.—Section 511(b) of the

4 Controlled Substances Act (21 U.S.C. 881(b)) is amended

5 to read as follows:

6 ‘‘(b) SEIZURE PROCEDURES.—Any property subject

7 to forfeiture to the United States under this section may

8 be seized by the Attorney General in the manner set forth

9 in section 981(b) of title 18, United States Code.’’.

10 SEC. 6. USE OF FORFEITED FUNDS TO PAY RESTITUTION

11 TO CRIME VICTIMS.

12 Section 981(e) of title 18, United States Code, is

13 amended by striking paragraph (6) and inserting the fol14 lowing:

15 ‘‘(6) as restoration to any victim of the offense

16 giving rise to the forfeiture, including, in the case of

17 a money laundering offense, any offense constituting

18 the underlying specified unlawful activity; or’’.

19 SEC. 7. CIVIL FORFEITURE OF REAL PROPERTY.

20 (a) IN GENERAL.—Chapter 46 of title 18, United

21 States Code, is amended by inserting after section 984 the

22 following:
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1 ‘‘§ 985. Civil forfeiture of real property

2 ‘‘(a) Notwithstanding any other provision of law, all

3 civil forfeitures of real property and interests in real prop4 erty shall proceed as judicial forfeitures.

5 ‘‘(b)(1) Except as provided in this section—

6 ‘‘(A) real property that is the subject of a civil

7 forfeiture action shall not be seized before entry of

8 an order of forfeiture; and

9 ‘‘(B) the owners or occupants of the real prop10 erty shall not be evicted from, or otherwise deprived

11 of the use and enjoyment of, real property that is

12 the subject of a pending forfeiture action.

13 ‘‘(2) The filing of a lis pendens and the execution

14 of a writ of entry for the purpose of conducting an inspec15 tion and inventory of the property shall not be considered

16 a seizure under this subsection.

17 ‘‘(c)(1) The Government shall initiate a civil for18 feiture action against real property by—

19 ‘‘(A) filing a complaint for forfeiture;

20 ‘‘(B) posting a notice of the complaint on the

21 property; and

22 ‘‘(C) serving notice on the property owner,

23 along with a copy of the complaint.

24 ‘‘(2) If the property owner cannot be served with the

25 notice under paragraph (1) because the owner—

26 ‘‘(A) is a fugitive;
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1 ‘‘(B) resides outside the United States and ef2 forts at service pursuant to Rule 4 of the Federal

3 Rules of Civil Procedure are unavailing; or

4 ‘‘(C) cannot be located despite the exercise of

5 due diligence,

6 constructive service may be made in accordance with the

7 laws of the State in which the property is located.

8 ‘‘(3) If real property has been posted in accordance

9 with this subsection, it shall not be necessary for the court

10 to issue an arrest warrant in rem, or to take any other

11 action to establish in rem jurisdiction over the property.

12 ‘‘(d) Real property may be seized prior to the entry

13 of an order of forfeiture if—

14 ‘‘(1) the Government notifies the court that it

15 intends to seize the property before trial; and

16 ‘‘(2) the court—

17 ‘‘(A) issues a notice of application for war18 rant, causes the notice to be served on the

19 property owner and posted on the property, and

20 conducts a hearing to determine if there is

21 probable cause for the forfeiture; or

22 ‘‘(B) makes an ex parte determination that

23 there is probable cause for the forfeiture and

24 that there are exigent circumstances that per25 mit the government to seize the property with-
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1 out prior notice and an opportunity for the

2 property owner to be heard.

3 For purposes of paragraph (2)(B), to establish exigent cir4 cumstances, the Government shall show that less restric5 tive measures such as a lis pendens, restraining order, or

6 bond would not suffice to protect the Government’s inter7 ests in preventing the sale, destruction, or continued un8 lawful use of the real property.

9 ‘‘(e) If the court authorizes a seizure of real property

10 under subsection (d)(2), it shall conduct a prompt post11 seizure hearing during which the property owner shall

12 have an opportunity to contest the basis for the seizure.

13 ‘‘(f) This section—

14 ‘‘(1) applies only to civil forfeitures of real

15 property and interests in real property;

16 ‘‘(2) does not apply to forfeitures of the pro17 ceeds of the sale of such property or interests, or of

18 money or other assets intended to be used to acquire

19 such property or interests; and

20 ‘‘(3) shall not affect the authority of the court

21 to enter a restraining order relating to real prop22 erty.’’.

23 (b) TECHNICAL AND CONFORMING AMENDMENT.—

24 The analysis for chapter 46 of title 18, United States
26

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1 Code, is amended by inserting after the item relating to

2 section 984 the following:

‘‘985. Civil forfeiture of real property.’’.

3 SEC. 8. APPLICABILITY.

4 This Act and the amendments made by this Act shall

5 apply to any forfeiture proceeding commenced on or after

6 the date of enactment of this Act.

Æ