II

106TH CONGRESS

1ST SESSION S. 1701

To reform civil asset forfeiture, and for other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 6, 1999

Mr. SESSIONS (for himself, Mr. SCHUMER, Mr. THURMOND, Mr. BIDEN, Mrs.

FEINSTEIN, Mr. HELMS, and Mr. CLELAND) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

A BILL

To reform civil asset forfeiture, 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; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Civil Asset Forfeiture Reform Act of 1999’’.

6 (b) TABLE OF CONTENTS.—The table of contents for

7 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Burden of proof.

Sec. 3. Notice of administrative forfeiture; limitations period for challenges.

Sec. 4. Time for filing claim; waiver of cost bond.

Sec. 5. Time for filing a complaint.

Sec. 6. Probable cause hearing.

Sec. 7. Award of attorneys’ fees to successful claimants.

Sec. 8. Special provisions for real property.

Sec. 9. Compensation for damage to seized property.
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Sec. 10. Uniform innocent owner defense.

Sec. 11. Release of property in hardship cases.

Sec. 12. Stay of civil forfeiture case.

Sec. 13. Prejudgment interest.

Sec. 14. Seizure warrant requirement.

Sec. 15. Civil restraining orders.

Sec. 16. Excessive fines.

Sec. 17. Civil investigative demands.

Sec. 18. Access to records in bank secrecy jurisdictions.

Sec. 19. Cooperation among Federal prosecutors.

Sec. 20. Access to other records.

Sec. 21. Statute of limitations for civil forfeiture actions.

Sec. 22. Destruction or removal of property to prevent seizure.

Sec. 23. Fungible property in bank accounts.

Sec. 24. Currency seized from drug couriers.

Sec. 25. Use of forfeited funds to pay restitution to crime victims.

Sec. 26. Fugitive disentitlement.

Sec. 27. Enforcement of foreign forfeiture judgment.

Sec. 28. Encouraging use of criminal forfeiture as an alternative to civil forfeiture.

Sec. 29. Application of procedures for drug cases.

Sec. 30. Application of procedures to other civil forfeitures.

Sec. 31. Application to alien smuggling offenses.

Sec. 32. Effective dates.

1 SEC. 2. BURDEN OF PROOF.

2 Section 981 of title 18, United States Code, is

3 amended by adding at the end the following:

4 ‘‘(k) BURDEN OF PROOF AT TRIAL.—

5 ‘‘(1) IN GENERAL.—At trial—

6 ‘‘(A) the Government shall have the bur7 den of proving that the property is subject to

8 forfeiture by a preponderance of the evidence;

9 and

10 ‘‘(B) the claimant shall have the burden of

11 proving any affirmative defense by a preponder12 ance of the evidence.

13 ‘‘(2) TIMING.—No party shall be required to es14 tablish that it is able to meet its burden of proof
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1 under paragraph (1) until the time of trial, except

2 that any party may file a motion for summary judg3 ment pursuant to rule 56 of the Federal Rules of

4 Civil Procedure at any time.’’.

5 SEC. 3. NOTICE OF ADMINISTRATIVE FORFEITURE; LIMITA6 TIONS PERIOD FOR CHALLENGES.

7 Section 981 of title 18, United States Code, is

8 amended by adding at the end the following:

9 ‘‘(l) ADMINISTRATIVE FORFEITURES.—

10 ‘‘(1) NOTICE.—

11 ‘‘(A) IN GENERAL.—Whenever property,

12 other than real property, is seized by a Federal

13 law enforcement agency pursuant to subsection

14 (b), or is turned over to a Federal law enforce15 ment agency by a State or local law enforce16 ment agency pursuant to subsection (b)(2)(C)

17 for the purpose of forfeiture under Federal law,

18 the Government shall commence administrative

19 forfeiture proceedings against the property pur20 suant to the customs laws (19 U.S.C. 1602 et

21 seq.) not later than 60 days after the seizure or

22 turnover, unless the Attorney General has filed

23 a civil forfeiture complaint, or included the

24 property in a criminal indictment, before such

25 60-day period has expired. Upon commencing
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1 administrative forfeiture proceedings, the seiz2 ing agency shall send notice of the proceedings,

3 together with information on the applicable pro4 cedures for contesting the forfeiture, to each

5 party known to the seizing agency at the time

6 of the seizure to have an ownership or

7 possessory interest, including a lienholder’s in8 terest in the seized property. If the identity or

9 interest of a party is not determined until after

10 the seizure but is determined before a declara11 tion of forfeiture is entered, such written notice

12 and information shall be sent to such interested

13 party not later than 60 days after the deter14 mination of the seizing agency of the identity of

15 the party or the party’s interest.

16 ‘‘(B) RETURN OF PROPERTY.—If the Gov17 ernment does not send notice of a seizure of

18 property to the person from whom it was re19 ceived in accordance with subparagraph (A),

20 and no extension of time is granted, the Gov21 ernment shall return the property to that per22 son without prejudice to the right of the Gov23 ernment to commence a forfeiture proceeding at

24 a later time. If the property is returned under

25 this paragraph, neither the seizing agency nor
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1 any individual agent shall be held liable for the

2 failure to provide notice. The Government shall

3 not be required to return contraband or other

4 property that the person from whom the prop5 erty was seized may not legally possess.

6 ‘‘(2) EXTENSION.—

7 ‘‘(A) IN GENERAL.—The Attorney General,

8 the Secretary of the Treasury, or the United

9 States Postal Service, as applicable, may waive

10 the requirements of paragraph (1)(A) for good

11 cause.

12 ‘‘(B) DELEGATION OF AUTHORITY.—The

13 power to grant a waiver may be delegated to a

14 person of supervisory rank (as defined in sec15 tion 7103(a)(10) of title 5) in the headquarters

16 office of the seizing agency.

17 ‘‘(3) MOTION TO SET ASIDE DECLARATION OF

18 FORFEITURE.—

19 ‘‘(A) IN GENERAL.—Any person entitled to

20 notice under paragraph (1)(A) who does not re21 ceive such notice may file, not later than 2

22 years after the date of final publication of no23 tice of seizure of the property, a motion to set

24 aside a declaration of forfeiture entered pursu25 ant to section 609 of the Tariff Act of 1930
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1 (19 U.S.C. 1609), which motion shall be grant2 ed if—

3 ‘‘(i) the moving party had an owner4 ship or possessory interest in the forfeited

5 property, and the Government knew, or

6 reasonably should have known, of that par7 ty’s interest and failed to take reasonable

8 steps to provide such party with notice of

9 the forfeiture; and

10 ‘‘(ii) the moving party did not have

11 actual notice of the seizure within suffi12 cient time to file a claim within the time

13 period provided by law.

14 ‘‘(B) SETTING ASIDE DECLARATION OF

15 FORFEITURE.—If the court grants a motion

16 made under subparagraph (A), the court shall

17 set aside the declaration of forfeiture as to the

18 interest of the moving party pending forfeiture

19 proceedings in accordance with the Tariff Act

20 of 1930 (19 U.S.C. 1602 et seq.), which pro21 ceedings shall be instituted within 60 days of

22 the entry of the order granting the motion.

23 ‘‘(C) DISPOSED PROPERTY.—If, at the

24 time a motion made under this subparagraph

25 (A) is granted, the forfeited property has been
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1 disposed of by the Government in accordance

2 with law, the Government shall institute for3 feiture proceedings under subparagraph (B)

4 against a substitute sum of money equal to the

5 value of the forfeited property at the time the

6 property was disposed of, plus interest.

7 ‘‘(D) JUDICIAL REVIEW.—A motion made

8 under this subsection shall be the exclusive

9 means of obtaining judicial review of a declara10 tion of forfeiture entered by a seizing agency.’’.

11 SEC. 4. TIME FOR FILING CLAIM; WAIVER OF COST BOND.

12 (a) IN GENERAL.—Section 608 of the Tariff Act of

13 1930 (19 U.S.C. 1608) is amended to read as follows:

14 ‘‘SEC. 608. SEIZURES; CLAIMS; JUDICIAL CONDEMNATION.

15 ‘‘(a) IN GENERAL.—Any person claiming such seized

16 vessel, vehicle, aircraft, merchandise, or baggage may file

17 a claim with the Customs Service at any time after the

18 seizure, provided that the claim is filed not later than 30

19 days after the first publication of notice of seizure, or the

20 deadline set forth in a personal notice letter received by

21 such person, whichever is later. The claim shall be signed

22 by the claimant under penalty of perjury and shall contain

23 a brief statement of the nature and extent of the claim24 ant’s ownership interest in the property.
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1 ‘‘(b) BOND.—Any person filing a claim pursuant to

2 subsection (a) shall post the bond to the United States

3 in the sum of $5,000 or 10 percent of the value of the

4 claimed property, whichever is less, but not less than

5 $250, with sureties approved by the Customs Service. No

6 bond shall be required if the Secretary approves a claim

7 filed in forma pauperis. A claim filed in forma pauperis

8 shall include the information required to complete form

9 4 in the appendix of forms following rule 48 of the Federal

10 Rules of Appellate Procedure.

11 ‘‘(c) TRANSMITTAL TO UNITED STATES ATTOR12 NEY.—Upon the filing of a claim pursuant to this section,

13 the Customs Service shall transmit the claim, with a dupli14 cate list and description of the articles seized, to the

15 United States attorney for the district in which the prop16 erty was seized, or any other district in which a forfeiture

17 action may be filed pursuant to section 1355(b) of title

18 28, United States Code. The United States attorney, after

19 reviewing the matter, may decide, in his or her discretion,

20 to return the property to the claimant or to reach an ap21 propriate compromise agreement with the claimant with

22 respect to the property. Otherwise, the United States at23 torney shall proceed to a condemnation of the merchandise

24 or other property in the manner prescribed in the Federal

25 Rules of Civil Procedure, Supplemental Rules for Certain
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1 Admiralty and Maritime Claims, or shall proceed to in2 clude the merchandise or other property in an appropriate

3 criminal indictment.’’.

4 (b) CONFORMING AMENDMENT.—Section 609 of the

5 Tariff Act of 1930 (19 U.S.C. 1609) is amended by strik6 ing ‘‘twenty’’ and inserting ‘‘30’’.

7 (c) EXEMPTION FROM COST BOND REQUIREMENT.—

8 Section 981(d) of title 18, United States Code, is

9 amended—

10 (1) by inserting ‘‘(1)’’ after ‘‘(d)’’; and

11 (2) by adding at the end the following:

12 ‘‘(2)(A) A cost bond otherwise required by section

13 608 of the Tariff Act of 1930 (19 U.S.C. 1608) shall not

14 be required if the claimant—

15 ‘‘(i) pledges real or personal property having a

16 value greater than or equal to the value of the bond

17 that would otherwise be required under section

18 608(b) as security against the costs of the Govern19 ment;

20 ‘‘(ii) provides, in any case in which the pledged

21 real or personal property is subject to a Federal or

22 State recording, certificate of title, or registration

23 statute, documentary proof evidencing the ownership

24 of the property by the claimant or pledger; and
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1 ‘‘(iii) files an affidavit under penalty of perjury

2 setting forth the value of the property and stating

3 that the claimant is the owner of the property.

4 ‘‘(B) Once the claim is referred to the United States

5 attorney in accordance with section 608(c) of the Tariff

6 Act of 1930 (19 U.S.C. 1608), the United States attorney

7 may ask the court to review the facts set forth in the affi8 davit filed under subparagraph (A)(ii).

9 ‘‘(C) At the conclusion of the case, the claimant may

10 move for return of the cost bond, or to rescind the prop11 erty pledge, and the court shall grant such motion if the

12 court finds that the claim was substantially justified. If

13 the court denies such motion, or if no such motion is

14 made, the Government shall retain the bond to the extent

15 necessary to recover its costs and return the balance to

16 the claimant. In the case of a property pledge, the Govern17 ment may—

18 ‘‘(i) serve upon the claimant an assessment of

19 its costs, which assessment shall be collectible as a

20 debt owed to the Government under chapter 176 of

21 title 28; or

22 ‘‘(ii) foreclose on the pledged property to re23 cover its costs.’’.
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1 SEC. 5. TIME FOR FILING A COMPLAINT.

2 Section 981 of title 18, United States Code, is

3 amended by adding at the end the following:

4 ‘‘(m) FILING A COMPLAINT.—

5 ‘‘(1) IN GENERAL.—In any case in which prop6 erty has been seized or restrained by the Govern7 ment and a claim has been filed, the Attorney Gen8 eral shall—

9 ‘‘(A) not later than 90 days after the date

10 on which the claim is filed (unless such require11 ment is waived by mutual agreement between

12 the Government and the claimants), file a com13 plaint for forfeiture in the manner set forth in

14 the Federal Rules of Civil Procedure, Supple15 mental Rules for Certain Admiralty and Mari16 time Claims, or include a forfeiture count in a

17 criminal indictment or information, or both; or

18 ‘‘(B) return the property pending the filing

19 of a complaint or indictment.

20 ‘‘(2) EXTENSION OF TIME.—

21 ‘‘(A) IN GENERAL.—The Government may

22 apply to a Federal magistrate judge (as defined

23 in the Federal Rules of Criminal Procedure) in

24 any district in which venue for a forfeiture ac25 tion would lie under section 1355(b) of title 28

26 for an extension of time in which to comply
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1 with paragraph (1), which extension shall be

2 granted based on a showing of good cause.

3 ‘‘(B) EX PARTE APPLICATIONS.—If an ex4 tension is sought under this paragraph on the

5 basis that the filing required by paragraph (1)

6 would jeopardize an ongoing criminal investiga7 tion or prosecution or court-authorized elec8 tronic surveillance, the application under sub9 paragraph (A) may be made ex parte.

10 ‘‘(3) FILING OF CLAIM AND ANSWER.—

11 ‘‘(A) IN GENERAL.—Subject to subpara12 graph (B), upon the filing of a civil complaint,

13 the claimant shall file a claim and answer in ac14 cordance with the Federal Rules of Civil Proce15 dure, Supplemental Rules for Certain Admiralty

16 and Maritime Claims.

17 ‘‘(B) MOTION TO DISMISS.—After filing a

18 timely claim under subparagraph (A), a party

19 with standing to challenge the forfeiture may,

20 within the time period provided for filing of an

21 answer under rule C(6) of the Federal Rules of

22 Civil Procedure, Supplemental Rules for Cer23 tain Admiralty and Maritime Claims, file, in

24 lieu of an answer, a motion to dismiss the com25 plaint for failure to comply with rule E(2)(a) of
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1 the Federal Rules of Civil Procedure, Supple2 mental Rules for Certain Admiralty and Mari3 time Claims, or on any other ground set for in

4 rule 12(b) of the Federal Rules of Civil Proce5 dure. If such motion is denied, the claimant

6 shall file an answer within the period provided

7 by rule 12(a)(4) of the Federal Rules of Civil

8 Procedure, or such other period as the court

9 may determine.

10 ‘‘(4) MOTION TO DISMISS COMPLAINT FOR FOR11 FEITURE.—

12 ‘‘(A) IN GENERAL.—If a complaint for for13 feiture is filed, a party with standing to chal14 lenge the forfeiture may move to dismiss the

15 complaint for failure to comply with rule E(2)

16 of the Federal Rules of Civil Procedure, Supple17 mental Rules for Certain Admiralty and Mari18 time Claims, or on any other ground set forth

19 in rule 12(b) of the Federal Rules of Civil Pro20 cedure.

21 ‘‘(B) INSUFFICIENCY OF EVIDENCE.—Notwith22 standing section 615 of the Tariff Act of 1930 (19

23 U.S.C. 1615), a party may not move to dismiss the

24 complaint on the ground that the evidence in the

25 possession of the Government at the time the Gov-
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1 ernment filed its complaint was insufficient to estab2 lish the forfeitability of the property.’’.

3 SEC. 6. PROBABLE CAUSE HEARING.

4 Section 981 of title 18, United States Code, is

5 amended by adding at the end the following:

6 ‘‘(n) PROBABLE CAUSE HEARING.—A person with

7 standing to challenge the forfeiture of property seized

8 under this section may file a motion for the return of the

9 property in the manner described in rule 41(e) of the Fed10 eral Rules of Criminal Procedure. If such motion is filed,

11 the court shall conduct a hearing within 90 days and shall

12 order the release of the property, pending trial on the for13 feiture and the entry of judgment, unless—

14 ‘‘(1) the Government establishes probable cause

15 to believe that the property is subject to forfeiture,

16 based on all information available to the Government

17 at the time of the hearing;

18 ‘‘(2) the Government has filed a civil forfeiture

19 complaint against the property, and a magistrate

20 judge has determined there is probable cause for the

21 issuance of a warrant of arrest in rem pursuant to

22 the Federal Rules of Civil Procedure, Supplemental

23 Rules for Certain Admiralty and Maritime Claims;
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1 ‘‘(3) a grand jury has returned an indictment

2 that includes an allegation that the property is sub3 ject to criminal forfeiture;

4 ‘‘(4) the party filing the motion had notice of

5 the intent of the Government to forfeit the property

6 administratively pursuant to section 607(c) of the

7 Tariff Act of 1930 (19 U.S.C. 1607(c)), and failed

8 to file a claim to the property within the specified

9 time period;

10 ‘‘(5) the property is contraband or other prop11 erty that the moving party may not legally possess;

12 or

13 ‘‘(6) the property is needed as evidence in a

14 criminal investigation or prosecution.

15 SEC. 7. AWARD OF ATTORNEYS’ FEES TO SUCCESSFUL

16 CLAIMANTS.

17 Section 981 of title 18, United States Code, is

18 amended by adding at the end the following:

19 ‘‘(o) ATTORNEY FEES, COSTS, SANCTIONS.—

20 ‘‘(1) IN GENERAL.—Except as provided in para21 graph (3), if the party filing a claim in a civil for22 feiture case is not charged with any criminal offense

23 in a related criminal case, and the court enters judg24 ment for that party on any ground other than a

25 ground set forth in subsection (r), the court shall
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1 order the Government to pay costs and reasonable

2 attorneys’ fees to the claimant. If the court enters

3 judgment in part for the claimant and in part for

4 the Government, the court shall reduce the award of

5 costs and attorneys’ fees accordingly.

6 ‘‘(2) SANCTIONS.—If the court enters judgment

7 for the Government, and the court determines that

8 the claim was frivolous, counsel representing the

9 claimant may be subject to sanctions pursuant to

10 rule 11 of the Federal Rules of Civil Procedure, and

11 the claimant may be ordered to reimburse the Gov12 ernment for costs.

13 ‘‘(3) EXCEPTION.—If the claimant is a

14 lienholder with a secured interest in the property

15 subject to forfeiture, and the Government agrees to

16 accept the claim and pay off the lienholder at the

17 conclusion of the case if the Government prevails as

18 to other claims, no costs or attorneys fees shall be

19 paid to the lienholder.’’.

20 SEC. 8. SPECIAL PROVISIONS FOR REAL PROPERTY.

21 Section 981 of title 18, United States Code, is

22 amended by adding at the end the following:

23 ‘‘(p) CIVIL FORFEITURE OF REAL PROPERTY.—

24 ‘‘(1) IN GENERAL.—Notwithstanding any other

25 provision of law, all civil forfeitures of real property
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1 and interests in real property shall proceed as judi2 cial forfeitures. The administrative forfeiture provi3 sions of the Tariff Act of 1930 (19 U.S.C. 1602 et

4 seq.) do not apply to the forfeiture of real property.

5 ‘‘(2) PROCEDURES.—

6 ‘‘(A) IN GENERAL.—Except as otherwise

7 provided in this subsection, real property that is

8 the subject of a civil forfeiture action shall not

9 be seized before entry of an order of forfeiture

10 nor shall the owners or occupants of the real

11 property be evicted from, or otherwise deprived

12 of the use and enjoyment of, real property that

13 is the subject of a pending forfeiture action. In

14 lieu of issuing an arrest warrant in rem as pre15 scribed by the Federal Rules of Civil Procedure,

16 Supplemental Rules for Certain Admiralty and

17 Maritime Claims, the court in which a civil for18 feiture action against real property is pending

19 shall issue a notice of complaint for forfeiture,

20 which notice shall be served on the property

21 owner and posted on the property. The posting

22 of such notice shall be sufficient to give the

23 court in rem jurisdiction over the property.

24 ‘‘(B) CONSTRUCTIVE SERVICE OF PROC25 ESS.—If the property owner cannot be served
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1 with the notice of complaint for forfeiture be2 cause such owner is a fugitive or resides outside

3 of the United States, and efforts at service pur4 suant to rule 4 of the Federal Rules of Civil

5 Procedure, are unavailing, or cannot be located

6 despite the exercise of due diligence, construc7 tive service may be made in accordance with the

8 laws of the State in which the property is lo9 cated.

10 ‘‘(3) SEIZURE PRIOR TO ENTRY OF ORDER OF

11 FORFEITURE.—Real property may be seized prior to

12 the entry of an order of forfeiture if the Government

13 notifies the court that the Government intends to

14 seize the property before trial, and the court, before

15 issuing any seizure warrant or arrest warrant in

16 rem—

17 ‘‘(A) issues a Notice of Application for

18 Warrant, 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.
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1 ‘‘(4) POST-SEIZURE HEARING.—If the court

2 issues a seizure warrant or arrest warrant in rem

3 pursuant to paragraph (3)(B), the court shall con4 duct a prompt post-seizure hearing during which the

5 property owner shall have an opportunity to contest

6 the basis for the seizure. If the real property is

7 seized before a complaint is filed, the Government

8 shall file a complaint, or institute criminal forfeiture

9 proceedings, within 90 days of the seizure in accord10 ance with subsection (m).

11 ‘‘(5) ACTIONS NOT CONSIDERED SEIZURES.—

12 For purposes of this section, the filing of a lis

13 pendens and the execution of a writ of entry for the

14 purpose of conducting an inspection and inventory of

15 the property shall not be considered a seizure.

16 ‘‘(6) APPLICABILITY.—This subsection applies

17 only to civil forfeitures of real property and interests

18 in real property and does not apply to forfeitures of

19 the proceeds of the sale of such property or inter20 ests, or of money or other assets intended to be used

21 to acquire such property or interests. Nothing in this

22 section may be construed to affect the authority of

23 the court to issue a restraining order affecting real

24 property.’’.
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1 SEC. 9. COMPENSATION FOR DAMAGE TO SEIZED

2 PROPERTY.

3 Section 2680(c) of title 28, United States Code, is

4 amended—

5 (1) by striking ‘‘law-enforcement’’ and inserting

6 ‘‘law enforcement’’; and

7 (2) by inserting before the period at the end the

8 following: ‘‘, except that—

9 ‘‘(1) this chapter and section 1346(b) do apply

10 to any claim based on negligence involving the de11 struction, injury, or loss of goods or merchandise

12 while in the possession of any officer of customs or

13 excise or any other Federal law enforcement officer,

14 if—

15 ‘‘(A) the property was seized solely for the

16 purpose of forfeiture;

17 ‘‘(B) the interest of the claimant is not

18 forfeited; and

19 ‘‘(C) the claimant is not convicted of a

20 crime for which the interest of the claimant in

21 the property would be subject to forfeiture

22 under Federal or State law; and

23 ‘‘(2) damage to property occurring in the

24 course of carrying out a lawful law enforcement

25 function, such as the disassembly of goods and mer26 chandise, may not be construed to be the result of
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1 negligence, unless the law enforcement function was

2 carried out in an unreasonable manner’’.

3 SEC. 10. UNIFORM INNOCENT OWNER DEFENSE.

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

5 States Code, is amended by inserting after section 982 the

6 following:

7 ‘‘§ 983. Innocent owners

8 ‘‘(a) The interest of an innocent owner in property

9 shall not be forfeited in any judicial action under any civil

10 forfeiture provision of this title, the Controlled Substances

11 Act, or the Immigration and Nationality Act.

12 ‘‘(b)(1) In this section, the term ‘innocent owner’

13 means, with respect to a property interest in existence at

14 the time the illegal act giving rise to forfeiture took place,

15 an owner who—

16 ‘‘(A) did not know that the property was being

17 used or was likely to be used in the commission of

18 such illegal act, or

19 ‘‘(B) upon learning that the property was being

20 used or was likely to be used in the commission of

21 such illegal act, did all that reasonably could be ex22 pected to terminate or to prevent such use of the

23 property.

24 ‘‘(2)(A) In this section, the term ‘innocent owner’

25 means, with respect to a property interest acquired after
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1 the act giving rise to the forfeiture took place, a person

2 who establishes, by a preponderance of the evidence, that

3 the person acquired the property as a bona fide purchaser

4 for value who at the time of the purchase did not know

5 and was reasonably without cause to believe that the prop6 erty was subject to forfeiture.

7 ‘‘(B) In this paragraph—

8 ‘‘(i) the term ‘purchaser’ means a person who

9 becomes an owner of property or an interest in spe10 cific property by giving money, goods, or services in

11 exchange for such property;

12 ‘‘(ii) a purchaser is ‘reasonably without cause to

13 believe that the property was subject to forfeiture’ if,

14 in light of the circumstances, the purchaser did all

15 that reasonably could be expected to ensure that he

16 or she was not acquiring property that was subject

17 to forfeiture.

18 ‘‘(C) An otherwise valid claim under subparagraph

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

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

21 ‘‘(i) the property is the principal residence of

22 the claimant;

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

24 would deprive the claimant of the claimant’s only

25 means of maintaining adequate shelter in the com-
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1 munity for the claimant and all dependents residing

2 with the claimant;

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

4 to, the proceeds of any criminal offense; and

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

6 in the property through marriage, divorce, or legal

7 separation, or the claimant was the spouse or legal

8 dependent of a person whose death resulted in the

9 transfer of the property to the claimant through in10 heritance or probate;

11 except that the court shall limit the value of any real prop12 erty interest for which innocent ownership is recognized

13 under this subparagraph to the value necessary to main14 tain adequate shelter in the community for such claimant

15 and all dependents residing with the claimant.

16 ‘‘(3) Notwithstanding any provision of this section,

17 no person may assert an ownership interest under this sec18 tion in contraband or other property that is illegal to pos19 sess. Except as provided in paragraph (2)(A), no person

20 may assert an ownership interest under this section in

21 property that is the proceeds of any criminal offense, or

22 is traceable to the proceeds of any criminal offense, irre23 spective of State property law.

24 ‘‘(4) An innocent owner defense under this section

25 is an affirmative defense.
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1 ‘‘(c) In this section—

2 ‘‘(1) the term ‘owner’—

3 ‘‘(A) means a person with an ownership in4 terest in the specific property sought to be for5 feited, including a lien, mortgage, recorded se6 curity device, or valid assignment of an owner7 ship interest; and

8 ‘‘(B) does not include—

9 ‘‘(i) a person with only a general un10 secured interest in, or claim against, the

11 property or estate of another person;

12 ‘‘(ii) a bailee, unless the bailor is iden13 tified, and the bailor has authorized the

14 bailee to claim in the forfeiture proceeding,

15 pursuant to the Federal Rules of Civil Pro16 cedure, Supplemental Rules for Certain

17 Admiralty and Maritime Claims;

18 ‘‘(iii) a nominee who exercises no do19 minion or control over the property; or

20 ‘‘(iv) a beneficiary of a constructive

21 trust; and

22 ‘‘(2) a person shall be considered to have known

23 that his or her property was being used or was likely

24 to be used in the commission of an illegal act, if the

25 Government establishes the existence of facts and
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1 circumstances that should have created a reasonable

2 suspicion that the property was being or would be

3 used for an illegal purpose.

4 ‘‘(d)(1) If the court determines, in accordance with

5 this section, that an innocent owner has a partial interest

6 in property otherwise subject to forfeiture, or a joint ten7 ancy or tenancy by the entirety in such property, the court

8 shall enter an appropriate order—

9 ‘‘(A) severing the property;

10 ‘‘(B) transferring the property to the Govern11 ment with a provision that the Government com12 pensate the innocent owner to the extent of his or

13 her ownership interest once a final order of for14 feiture has been entered and the property has been

15 reduced to liquid assets; or

16 ‘‘(C) if neither subparagraph (A) nor (B) is

17 reasonably practical under all of the circumstances,

18 permitting the innocent owner to retain the property

19 subject to a lien in favor of the Government to the

20 extent of the forfeitable interest in the property.

21 ‘‘(2) To effectuate the purposes of this subsection,

22 a joint tenancy or tenancy by the entireties shall be con23 verted to a tenancy in common by order of the court, irre24 spective of State law.’’.

25 (b) STRIKING SUPERSEDED PROVISIONS.—
26

•S 1701 IS

1 (1) CIVIL FORFEITURE.—Section 981(a) of title

2 18, United States Code, is amended—

3 (A) in paragraph (1), by striking ‘‘Except

4 as provided in paragraph (2), the’’ and insert5 ing ‘‘The’’; and

6 (B) by striking paragraph (2) and insert7 ing the following:

8 ‘‘(2) [Reserved].’’.

9 (2) DRUG FORFEITURES.—Paragraphs (4), (6),

10 and (7) of section 511(a) of the Controlled Sub11 stances Act (21 U.S.C. 881(a) (4), (6), and (7)) are

12 each amended by striking ‘‘, except that’’ and all

13 that follows before the period at the end.

14 (3) FORFEITURES IN CONNECTION WITH SEX15 UAL EXPLOITATION OF CHILDREN.—Paragraphs (2)

16 and (3) of section 2254(a) of title 18, United States

17 Code, are each amended by striking ‘‘, except that’’

18 and all that follows before the period at the end.

19 (c) CONFORMING AMENDMENT.—The analysis for

20 chapter 46 of title 18, United States Code, is amended

21 by inserting after the item relating to section 982 the fol22 lowing:

‘‘983. Innocent owners.’’.
27

•S 1701 IS

1 SEC. 11. RELEASE OF PROPERTY IN HARDSHIP CASES.

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

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

4 following:

5 ‘‘§ 985. Release of property to avoid hardship

6 ‘‘(a) IN GENERAL.—A person who has filed a claim

7 in a civil forfeiture action governed by the procedures set

8 forth in this chapter is entitled to release pursuant to sub9 section (b) of seized property pending trial if—

10 ‘‘(1) the claimant has a possessory interest in

11 the property sufficient to establish standing to con12 test forfeiture and has filed a nonfrivolous claim on

13 the merits of the forfeiture action;

14 ‘‘(2) the claimant has sufficient ties to the com15 munity to provide assurance that the property will

16 be available at the time of the trial;

17 ‘‘(3) the continued possession by the United

18 States pending the final disposition of forfeiture pro19 ceedings will cause substantial hardship to the

20 claimant, such as preventing the claimant from

21 working, leaving the claimant homeless, or pre22 venting the functioning of a business;

23 ‘‘(4) the hardship to the claimant outweighs the

24 risk that the property will be destroyed, damaged,

25 lost, concealed, diminished in value or transferred if
28

•S 1701 IS

1 the property is returned to the claimant during the

2 pendency of the proceeding; and

3 ‘‘(5) none of the conditions set forth in sub4 section (c) applies.

5 ‘‘(b) PROCEDURES.—

6 ‘‘(1) IN GENERAL.—The claimant may make a

7 request for the release of property under this sub8 section at any time after the claim is filed. If, at the

9 time the request is made, the seizing agency has not

10 yet referred the claim to a United States attorney

11 pursuant to section 608 of the Tariff Act of 1930

12 (19 U.S.C. 1608), the request may only be filed with

13 the seizing agency or the United States attorney to

14 whom the claim was referred. In either case, the re15 quest shall set forth the basis on which the require16 ments of subsection (a)(1) are met.

17 ‘‘(2) MOTION FOR RETURN OF SEIZED PROP18 ERTY.—If the seizing agency, or the United States

19 attorney, as the case may be, denies the request or

20 fails to act on the request by the deadline for filing

21 a complaint for forfeiture in response to the claim,

22 as required under this chapter, the claimant may file

23 the request as a motion for the return of seized

24 property in the district court for the district rep25 resented by the United States attorney to whom the
29

•S 1701 IS

1 claim was referred, or if the claim has not yet been

2 referred, in the district court that issued the seizure

3 warrant for the property, or if no warrant was

4 issued, in any district court that would have jurisdic5 tion to consider a motion for the return of seized

6 property under rule 41(e) of the Federal Rules of

7 Criminal Procedure. The motion shall set forth the

8 basis on which the requirements of subsection (a)

9 have been met and the steps the claimant has taken

10 to secure the release of the property from the appro11 priate official.

12 ‘‘(3) ACTION BY DISTRICT COURT.—The district

13 court shall act on a motion made pursuant to this

14 subsection within 30 days or as soon thereafter as

15 practicable, and shall grant the motion if the claim16 ant establishes that the requirements of subsection

17 (a) have been met. All factual evidence shall be sub18 mitted through affidavit. The Government, in re19 sponding to a motion under this subsection, may in

20 appropriate cases, submit evidence ex parte in order

21 to avoid disclosing any matter relating to an ongoing

22 criminal investigation or pending trial.

23 ‘‘(4) COURT ORDER TO MAINTAIN VALUE OF

24 PROPERTY.—If the court grants the motion, the

25 court shall enter any order necessary to ensure that
30

•S 1701 IS

1 the value of the property is maintained while the for2 feiture action is pending, including permitting the

3 inspection, photographing, and inventory of the

4 property, and the court may take action in accord5 ance with rule E of the Federal Rules of Civil Proce6 dure, Supplemental Rules for Certain Admiralty and

7 Maritime Claims. If the property to be returned is

8 an airplane, a vessel, or a motor vehicle with a value

9 of greater than $25,000, the claimant shall post a

10 bond equal to the value of the property, unless the

11 court waives the bond for good cause. The Govern12 ment may place a lien against the property or file

13 a lis pendens to ensure that the property is not

14 transferred to another person. The Government, in

15 responding to a motion under this subsection, may,

16 in appropriate cases, submit evidence ex parte in

17 order to avoid disclosing any matter relating to an

18 ongoing criminal investigation or pending trial.

19 ‘‘(5) REINSTATEMENT OF INSURANCE.—Any in20 surance on the subject property at the time of sei21 zure shall be kept in force, or shall be reinstated if

22 it has been discontinued since the time of seizure,

23 prior to return of the property pursuant to this sub24 section, and the court, in appropriate cases, may

25 also order that such insurance be obtained by the
31

•S 1701 IS

1 claimant as a condition of release of the property. If

2 property returned to the claimant under this section

3 is lost, stolen, or diminished in value, any insurance

4 proceeds shall be paid to the United States and such

5 proceeds shall be subject to forfeiture in place of the

6 property originally seized.

7 ‘‘(c) INAPPLICABILITY.—This section does not apply

8 if the seized property—

9 ‘‘(1) is contraband, currency, or other monetary

10 instrument, or electronic funds;

11 ‘‘(2) is evidence of a violation of the law;

12 ‘‘(3) by reason of design or other characteristic,

13 is particularly suited for use in illegal activities; or

14 ‘‘(4) is likely to be used to commit additional

15 criminal acts if returned to the claimant.

16 ‘‘(d) CHANGE OF VENUE.—Once a motion for the re17 lease of property under this section is filed, the party filing

18 the motion or the Government may request that the mo19 tion be transferred to another district in which venue for

20 the forfeiture action would lie under section 1355(b) of

21 title 28 pursuant to the change of venue provisions in sec22 tion 1404 of title 28.’’.

23 (b) CONFORMING AMENDMENT.—The analysis for

24 chapter 46 of title 18, United States Code, is amended
32

•S 1701 IS

1 by inserting after the item relating to section 984 the fol2 lowing:

‘‘985. Release of property to avoid hardship.’’.

3 SEC. 12. STAY OF CIVIL FORFEITURE CASE.

4 (a) IN GENERAL.—Section 981(g) of title 18, United

5 States Code, is amended to read as follows:

6 ‘‘(g) STAY OF CIVIL FORFEITURE CASE.—

7 ‘‘(1) IN GENERAL.—Upon the motion of the

8 United States, the court shall stay the civil for9 feiture proceeding if the court determines that civil

10 discovery or trial could adversely affect the ability of

11 the Government to conduct a related criminal inves12 tigation or the prosecution of a related criminal

13 case.

14 ‘‘(2) STAY OF PROCEEDINGS.—Upon the mo15 tion of a claimant, the court shall stay the civil for16 feiture proceeding with respect to that claimant if

17 the court determines that—

18 ‘‘(A) the claimant is the subject of a re19 lated criminal investigation or case;

20 ‘‘(B) the claimant has standing to assert a

21 claim in the civil forfeiture proceeding; and

22 ‘‘(C) continuation of the forfeiture pro23 ceeding may infringe upon the right of the

24 claimant against self-incrimination in the re25 lated investigation or case.
33

•S 1701 IS

1 ‘‘(3) PROTECTIVE ORDER LIMITING DIS2 COVERY.—With respect to the impact of civil dis3 covery described in paragraphs (1) and (2), the

4 court may determine that a stay is unnecessary if a

5 protective order limiting discovery would protect the

6 interest of 1 party without unfairly limiting the abil7 ity of the opposing party to pursue the civil case. In

8 no case, however, shall the court impose a protective

9 order as an alternative to a stay if the effect of such

10 protective order would be to allow 1 party to pursue

11 discovery while the other party is substantially un12 able to do so.

13 ‘‘(4) DEFINITIONS.—In this subsection, the

14 terms ‘related criminal case’ and ‘related criminal

15 investigation’ mean an actual prosecution or inves16 tigation in progress at the time the request for the

17 stay, or any subsequent motion to lift the stay is

18 made. In determining whether a criminal case or in19 vestigation is ‘related’ to a civil forfeiture pro20 ceeding, the court shall consider the degree of simi21 larity between the parties, witnesses, facts, and cir22 cumstances involved in the 2 proceedings without re23 quiring an identity with respect to any 1 or more

24 factors.
34

•S 1701 IS

1 ‘‘(5) PRESENTATIONS EX PARTE AND UNDER

2 SEAL.—Any presentation by the Government to the

3 court under this subsection that involves an ongoing

4 criminal investigation or prosecution shall be made

5 ex parte and under seal.

6 ‘‘(6) COURT ORDER TO PRESERVE VALUE OF

7 PROPERTY.—Whenever a civil forfeiture proceeding

8 is stayed pursuant to this subsection, the court shall

9 enter any order necessary to preserve the value of

10 the property or to protect the rights of lienholders

11 or other persons with an interest in the property

12 while the stay is in effect.

13 ‘‘(7) APPLICABILITY OF STANDING DETERMINA14 TION.—A determination by the court that the claim15 ant has standing to request a stay pursuant to para16 graph (2) shall apply only to this subsection and

17 shall not preclude the Government from objecting to

18 the standing of the claimant by dispositive motion or

19 at the time of trial.’’.

20 (b) DRUG FORFEITURES.—Section 511(i) of the Con21 trolled Substances Act (21 U.S.C. 881(i)) is amended to

22 read as follows:

23 ‘‘(i) The provisions of section 981(g) of title 18,

24 United States Code, regarding the stay of a civil forfeiture

25 proceeding shall apply to forfeitures under this section.’’.
35

•S 1701 IS

1 SEC. 13. PREJUDGMENT INTEREST.

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

3 States Code, is amended—

4 (1) by striking ‘‘Upon’’ and inserting the fol5 lowing:

6 ‘‘(a) IN GENERAL.—Upon’’; and

7 (2) by adding at the end the following:

8 ‘‘(b) INTEREST.—Upon entry of judgment for the

9 claimant in any proceeding to condemn or forfeit property

10 seized or arrested under provision of title 18, the Con11 trolled Substances Act, or the Immigration and Nation12 ality Act, the United States—

13 ‘‘(1) shall be liable for post-judgment interest

14 as set forth in section 1961;

15 ‘‘(2) shall not be liable for prejudgment inter16 est, except that in cases involving currency or other

17 negotiable instruments, the United States shall dis18 gorge to the claimant any funds representing inter19 est actually paid to the United States from the date

20 of seizure or arrest of the property, if such interest

21 resulted from the investment of the property in an

22 interest-bearing account or instrument; and

23 ‘‘(3) shall not be required to disgorge the value

24 of any intangible benefits nor to make any other

25 payments of interest or other compensation to the
36

•S 1701 IS

1 claimant not specifically authorized by this sub2 section.’’.

3 (b) EFFECTIVE DATE.—The amendment made by

4 subsection (a) shall apply to any judgment entered after

5 the date of enactment of this Act.

6 SEC. 14. SEIZURE WARRANT REQUIREMENT.

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

8 States Code, is amended to read as follows:

9 ‘‘(b) SEIZURE WARRANT REQUIREMENT.—

10 ‘‘(1) IN GENERAL.—Any property subject to

11 forfeiture to the United States under this section

12 may be seized by the Attorney General. In addition,

13 in the case of property involved in a violation inves14 tigated by the Secretary of the Treasury or the

15 United States Postal Service, the property may also

16 be seized by the Secretary of the Treasury or the

17 United States Postal Service, respectively.

18 ‘‘(2) WARRANT REQUIREMENT.—Any seizure

19 pursuant to this section shall be made pursuant to

20 a warrant, which may be issued by a magistrate

21 judge in the same manner as provided for a search

22 warrant under the Federal Rules of Criminal Proce23 dure, except that a seizure may be made without a

24 warrant if—
37

•S 1701 IS

1 ‘‘(A) a complaint for forfeiture has been

2 filed in the district court and the court has

3 issued an arrest warrant in rem pursuant to the

4 Federal Rules of Civil Procedure, Supplemental

5 Rules for Certain Admiralty and Maritime

6 Claims, based upon a showing of probable

7 cause;

8 ‘‘(B) there is probable cause to believe that

9 the property is subject to forfeiture and—

10 ‘‘(i) the seizure is made pursuant to a

11 lawful arrest or search; or

12 ‘‘(ii) another exception to the fourth

13 amendment warrant requirement would

14 apply; or

15 ‘‘(C) the property was lawfully seized by a

16 State or local law enforcement agency and has

17 been transferred to a Federal agency.

18 ‘‘(3) OUT-OF-DISTRICT WARRANTS.—Notwith19 standing rule 41(a) of the Federal Rules of Criminal

20 Procedure, a seizure warrant may be issued pursu21 ant to this subsection by a judicial officer in any dis22 trict in which a forfeiture action against the prop23 erty may be filed under section 1355(b) of title 28,

24 and executed in any district in which the property

25 is found, or transmitted to the central authority of
38

•S 1701 IS

1 any foreign state for service in accordance with any

2 treaty or other international agreement. The judicial

3 officer shall command the officer to seize, within a

4 specified period of time not to exceed 20 days, the

5 property specified in the warrant. Any motion for

6 the return of property seized under this section shall

7 be filed in the district in which the seizure warrant

8 was issued.

9 ‘‘(4) SUPPRESSION OF EVIDENCE.—A party

10 with standing to challenge a seizure and forfeiture

11 under this section may move to suppress the use of

12 the property as evidence on the ground that the

13 Government lacked probable cause at the time of the

14 seizure. Suppression of the property as evidence

15 shall not affect the right of the Government to pro16 ceed with a forfeiture action based on independently

17 derived evidence.

18 ‘‘(5) PERSONS ARRESTED ABROAD.—

19 ‘‘(A) If any person is arrested or charged

20 in a foreign country in connection with an of21 fense that would give rise to the forfeiture of

22 property in the United States under this section

23 or under the Controlled Substances Act, the At24 torney General may apply to any Federal judge

25 or magistrate judge in the district in which the
39

•S 1701 IS

1 property is located for an ex parte order re2 straining the property subject to forfeiture for

3 not more than 30 days, except that the time

4 may be extended for good cause shown at a

5 hearing conducted in the manner provided in

6 rule 43(e) of the Federal Rules of Civil Proce7 dure.

8 ‘‘(B) The application for the restraining

9 order shall set forth the nature and cir10 cumstances of the foreign charges and the basis

11 for belief that the person arrested or charged

12 has property in the United States that would be

13 subject to forfeiture, and shall contain a state14 ment that the restraining order is needed to

15 preserve the availability of property for such

16 time as is necessary to receive evidence from

17 the foreign country or elsewhere in support of

18 probable cause for the seizure of the property

19 under this subsection.’’.

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

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

22 to read as follows:

23 ‘‘(b) Any property subject to forfeiture to the United

24 States under this section may be seized by the Attorney
40

•S 1701 IS

1 General in the manner set forth in section 981(b) of title

2 18, United States Code.’’.

3 SEC. 15. CIVIL RESTRAINING ORDERS.

4 Section 981 of title 18, United States Code, is

5 amended by adding at the end the following:

6 ‘‘(q) RESTRAINING ORDERS.—The court, before or

7 after the filing of a forfeiture complaint and on the appli8 cation of the Government, may—

9 ‘‘(1) enter any restraining order or injunction

10 pursuant to section 413(e) of the Controlled Sub11 stances Act (21 U.S.C. 853(e));

12 ‘‘(2) require the execution of satisfactory per13 formance bonds;

14 ‘‘(3) create receiverships;

15 ‘‘(4) appoint conservators, custodians, apprais16 ers, accountants, or trustees; or

17 ‘‘(5) take any other action to seize, secure,

18 maintain, or preserve the availability of property

19 subject to forfeiture under this section.’’.

20 SEC. 16. EXCESSIVE FINES.

21 Section 981 of title 18, United States Code, is

22 amended by adding at the end the following:

23 ‘‘(r) EXCESSIVE FINES.—At the conclusion of the

24 trial and following the entry of a verdict of forfeiture—
41

•S 1701 IS

1 ‘‘(1) the claimant may petition the court to de2 termine whether the excessive fines clause of the

3 eighth amendment to the Constitution of the United

4 States applies, and if so, whether the forfeiture is

5 grossly disproportional to the gravity of the offense;

6 ‘‘(2) the claimant shall have the burden of es7 tablishing that the forfeiture is grossly dispropor8 tional by a preponderance of the evidence at a hear9 ing conducted in the manner provided in rule 43(e)

10 of the Federal Rules of Civil Procedure, by the court

11 without a jury; and

12 ‘‘(3) if the court determines that the forfeiture

13 is grossly disproportional to the gravity of the of14 fense, the court shall adjust the forfeiture to the ex15 tent necessary to avoid the constitutional violation.’’.

16 SEC. 17. CIVIL INVESTIGATIVE DEMANDS.

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

18 States Code, is amended by adding at the end the fol19 lowing:

20 ‘‘(s) CIVIL INVESTIGATIVE DEMAND.—In any inves21 tigation relating to the seizure or forfeiture of property

22 under this section, the Attorney General, the Secretary of

23 the Treasury, or their designee, may issue in writing, and

24 cause to be served, a subpoena for evidence of the nature,

25 and in the manner, described in section 3486.’’.
42

•S 1701 IS

1 (b) OBSTRUCTION OF CIVIL INVESTIGATIVE DE2 MAND.—Section 1505 of title 18, United States Code, is

3 amended by inserting ‘‘section 981(s) of this title or’’ be4 fore ‘‘the Anti-Trust Civil Process Act’’.

5 (c) RIGHT TO FINANCIAL PRIVACY ACT AMEND6 MENT.—Section 1120(b)(1) of the Right to Financial Pri7 vacy Act (12 U.S.C. 3420(b)(1)) is amended by inserting

8 ‘‘or civil investigative demand’’ after ‘‘a grand jury sub9 poena’’.

10 (d) FAIR CREDIT REPORTING ACT AMENDMENT.—

11 Section 604(a)(1) of the Fair Credit Reporting Act (15

12 U.S.C. 1681b(a)(1)) is amended by inserting ‘‘or a civil

13 investigative demand proceeding’’ before the period at the

14 end.

15 SEC. 18. ACCESS TO RECORDS IN BANK SECRECY JURISDIC16 TIONS.

17 Section 986 of title 18, United States Code, is

18 amended by adding at the end the following:

19 ‘‘(d) ACCESS TO RECORDS LOCATED ABROAD.—

20 ‘‘(1) IN GENERAL.—In any civil forfeiture case,

21 or in any ancillary proceeding in any criminal for22 feiture case governed by section 413(n) of the Con23 trolled Substances Act (21 U.S.C. 853(n)), in

24 which—
43

•S 1701 IS

1 ‘‘(A) financial records located in a foreign

2 country may be material—

3 ‘‘(i) to any claim or to the ability of

4 the Government to respond to such claim;

5 or

6 ‘‘(ii) in a civil forfeiture case, to the

7 ability of the Government to establish the

8 forfeitability of the property; and

9 ‘‘(B) it is within the capacity of the claim10 ant to waive his or her rights under applicable

11 financial secrecy laws, or to obtain the records

12 himself or herself, so that the records can be

13 made available, the refusal of the claimant to

14 provide the records in response to a discovery

15 request or take the action necessary otherwise

16 to make the records available shall result in the

17 dismissal of the claim with prejudice.

18 ‘‘(2) PRIVILEGE.—This subsection shall not af19 fect the right of the claimant to refuse production on

20 the basis of any privilege guaranteed by the Con21 stitution of the United States or any other provision

22 of Federal law.’’.

23 SEC. 19. COOPERATION AMONG FEDERAL PROSECUTORS.

24 Section 3322(a) of title 18, United States Code, is

25 amended—
44

•S 1701 IS

1 (1) by striking ‘‘civil forfeiture under section

2 981 of title 18, United States Code, of property de3 scribed in section 981(a)(1)(C) of such title’’ and in4 serting ‘‘any civil forfeiture provision of Federal

5 law’’; and

6 (2) by striking ‘‘concerning a banking law viola7 tion’’.

8 SEC. 20. ACCESS TO OTHER RECORDS.

9 Section 6103(i)(1) of the Internal Revenue Code of

10 1986 (26 U.S.C. 6103(i)(1)) is amended—

11 (1) in subparagraph (A)(i), by inserting ‘‘or re12 lated civil forfeiture’’ after ‘‘enforcement of a specifi13 cally designated Federal criminal statute’’; and

14 (2) in subparagraph (B)(iii), by inserting ‘‘or

15 civil forfeiture investigation or proceeding’’ after

16 ‘‘Federal criminal investigation or proceeding’’.

17 SEC. 21. STATUTE OF LIMITATIONS FOR CIVIL FORFEITURE

18 ACTIONS.

19 Section 621 of the Tariff Act of 1930 (19 U.S.C.

20 1621) is amended—

21 (1) by inserting ‘‘, or in the case of forfeiture,

22 within five years after the time when the existence

23 of the property and the involvement of the property

24 in the alleged offense were discovered’’ after ‘‘within
45

•S 1701 IS

1 five years after the time when the alleged offense

2 was discovered’’;

3 (2) in paragraph (1), by striking ‘‘and’’ at the

4 end;

5 (3) in paragraph (2), by striking the period at

6 the end and inserting ‘‘; and’’; and

7 (4) by adding at the end the following:

8 ‘‘(3) the provisions of section 2415(e) of title

9 28, United States Code, shall apply to this section.’’.

10 SEC. 22. DESTRUCTION OR REMOVAL OF PROPERTY TO

11 PREVENT SEIZURE.

12 Section 2232 of title 18, United States Code, is

13 amended—

14 (1) in subsection (a)—

15 (A) by inserting ‘‘or seizure’’ after ‘‘Phys16 ical interference with search’’;

17 (B) by inserting ‘‘, including seizure for

18 forfeiture,’’ after ‘‘after seizure’’;

19 (C) by striking ‘‘searches and seizures’’

20 after ‘‘authorized to make’’ and inserting

21 ‘‘searches or seizures’’;

22 (D) by striking ‘‘or’’ after ‘‘wares,’’; and

23 (E) by inserting ‘‘, or other property, real

24 or personal,’’ after ‘‘merchandise’’; and

25 (2) in subsection (b)—
46

•S 1701 IS

1 (A) by inserting ‘‘or seizure’’ after ‘‘Notice

2 of search’’;

3 (B) by striking ‘‘searches and seizures’’

4 after ‘‘authorized to make’’ and inserting

5 ‘‘searches or seizures’’;

6 (C) by inserting ‘‘, including seizure for

7 forfeiture,’’ after ‘‘likely to make a search or

8 seizure’’; and

9 (D) by inserting ‘‘real or personal,’’ after

10 ‘‘merchandise or other property,’’.

11 SEC. 23. FUNGIBLE PROPERTY IN BANK ACCOUNTS.

12 (a) IN GENERAL.—Section 984 of title 18, United

13 States Code, is amended—

14 (1) by striking subsection (a) and redesignating

15 subsections (b), (c), and (d) as subsections (a), (b),

16 and (c), respectively; and

17 (2) by striking subsection (b), as redesignated,

18 and inserting the following:

19 ‘‘(b) The provisions of this section may be invoked

20 only if the action for forfeiture was commenced by a sei21 zure or an arrest in rem within 2 years of the offense that

22 is the basis for the forfeiture.’’;

23 (3) in subsection (c), as redesignated—

24 (A) by striking paragraph (1) and insert25 ing the following:
47

•S 1701 IS

1 ‘‘(1) Subsection (a) does not apply to an action

2 against funds held by a financial institution in an

3 interbank account unless the account holder know4 ingly engaged in the offense that is the basis for the

5 forfeiture.’’; and

6 (B) by adding at the end the following:

7 ‘‘(3) In this subsection, the term ‘financial in8 stitution’ includes a foreign bank, as defined in sec9 tion 1(b)(7) of the International Banking Act of

10 1978 (12 U.S.C. 3101).’’; and

11 (4) by adding at the end the following:

12 ‘‘(d) Nothing in this section may be construed to limit

13 the ability of the Government to forfeit property under any

14 provision of law if the property involved in the offense giv15 ing rise to the forfeiture or property traceable thereto is

16 available for forfeiture.’’.

17 (b) EFFECTIVE DATE.—The amendments made by

18 this section shall apply to any transaction occurring on

19 or after October 28, 1992.

20 SEC. 24. CURRENCY SEIZED FROM DRUG COURIERS.

21 Section 511 of the Controlled Substances Act (21

22 U.S.C. 881) is amended by inserting after subsection (j)

23 the following:

24 ‘‘(k)(1) In any action with respect to the forfeiture

25 of seized currency pursuant to subsection (a)(6) of this
48

•S 1701 IS

1 section, or subparagraph (A) or (B) of section 981(a)(1)

2 of title 18, United States Code, the finder of fact shall

3 determine the nexus between the currency and the drug

4 trafficking offense based on the totality of the cir5 cumstances. The presence or absence of any 1 factor shall

6 not be dispositive.

7 ‘‘(2) In making a determination under paragraph (1),

8 the finder of fact may rely on any of the following factors

9 as probative of a connection between large quantities of

10 currency and drug trafficking:

11 ‘‘(A) The currency was in excess of the amount

12 normally carried by legitimate leisure and business

13 travelers, and was, at the time of seizure, being

14 transported through an airport, on a highway, or at

15 a port-of-entry.

16 ‘‘(B) The currency was packaged in bundles,

17 concealed in paper bags, wrapped in cellophane or

18 other plastic wrap, concealed under clothing, or oth19 erwise being transported in a highly unusual man20 ner.

21 ‘‘(C) The currency was packaged with, or found

22 in proximity to, products or chemicals intended to

23 conceal odors from a drug detection dog, or had re24 cently been washed or cleaned with water or chemi25 cals designed to remove such odors.
49

•S 1701 IS

1 ‘‘(D) The person transporting the property (or

2 any portion thereof) provided false information to

3 any law enforcement officer or inspector who law4 fully stopped the person for investigative purposes or

5 for purposes of a United States border inspection.

6 ‘‘(E) The currency was found in close proximity

7 to a measurable quantity of any controlled sub8 stance.

9 ‘‘(F) The currency was the subject of a positive

10 alert by a properly trained dog that did not alert to

11 a controlled sample of currency.

12 ‘‘(G) The currency at issue was acquired during

13 a period of time when the person who acquired the

14 property was engaged in a drug trafficking offense

15 or within a reasonable time after such period, and

16 there is no likely source for such property other than

17 that offense.

18 ‘‘(H) The person transporting the currency had

19 associated with, or was carrying telephone numbers,

20 pager numbers, or other information providing a

21 means of contacting, persons engaged in the illegal

22 sale and distribution of controlled substances.

23 ‘‘(I) The currency was, or was intended to be,

24 transported, transmitted, or transferred to or from

25 a major drug-transit country, a major illicit drug
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1 producing country, or a major money laundering

2 country, as determined pursuant to sections 481(e)

3 and 490(h) of the Foreign Assistance Act of 1961

4 (22 U.S.C. 2291(e) and 2291j(h)), as applicable.

5 ‘‘(J) Any person involved in the transportation

6 or intended delivery of the currency has been con7 victed in any Federal, State, or foreign jurisdiction

8 of a drug trafficking offense or a felony involving

9 money laundering, or is a fugitive from prosecution

10 for such offense.

11 ‘‘(3) The listing of probative factors in this subsection

12 shall not preclude the development of other judicially rec13 ognized factors, or the establishment of a basis for for14 feiture on criteria other than those set forth in this sub15 section.

16 ‘‘(4) In this subsection, the term ‘drug trafficking of17 fense’ means with respect to an action under—

18 ‘‘(A) subsection (a)(6), any illegal exchange in19 volving a controlled substance or other violation for

20 which forfeiture is authorized under that subsection;

21 ‘‘(B) section 981(a)(1)(B) of title 18, United

22 States Code, any offense against a foreign nation in23 volving the manufacture, importation, sale, or dis24 tribution of a controlled substance for which for25 feiture is authorized under that section; and
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1 ‘‘(C) section 981(a)(1)(A) of title 18, United

2 States Code, an offense involving the felonious man3 ufacture, importation, receiving, concealment, buy4 ing, selling, or otherwise dealing in a controlled sub5 stance, which constitutes a specified unlawful activ6 ity (as defined in section 1956(c) of title 18, United

7 States Code).’’.

8 SEC. 25. USE OF FORFEITED FUNDS TO PAY RESTITUTION

9 TO CRIME VICTIMS.

10 (a) IN GENERAL.—Section 981(e) of title 18, United

11 States Code, is amended by striking paragraph (6) and

12 inserting the following:

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

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

15 a money laundering offense, any offense constituting

16 the underlying specified unlawful activity; or’’.

17 (b) PROCEEDS OF CRIME.—Section 981(a)(1)(C) of

18 title 18, United States Code, is amended by striking ‘‘af19 fecting a financial institution’’.

20 SEC. 26. FUGITIVE DISENTITLEMENT.

21 (a) IN GENERAL.—Chapter 163 of title 28, United

22 States Code, is amended by adding at the end the fol23 lowing:
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1 ‘‘§ 2466. Fugitive disentitlement

2 ‘‘Any person who, in order to avoid criminal prosecu3 tion, purposely leaves the jurisdiction of the United States,

4 declines to enter or reenter the United States to submit

5 to its jurisdiction, or otherwise evades the jurisdiction of

6 the court in which a criminal case is pending against the

7 person, may not use the resources of the courts of the

8 United States in furtherance of a claim in any related civil

9 forfeiture action or a claim in third party proceedings in

10 any related criminal forfeiture action.’’.

11 (b) CONFORMING AMENDMENT.—The analysis for

12 chapter 163 of title 28, United States Code, is amended

13 by adding at the end the following:

‘‘2466. Fugitive disentitlement.’’.

14 (c) EFFECTIVE DATE.—The amendments made by

15 this section shall apply to any case pending on or after

16 the date of enactment this Act.

17 SEC. 27. ENFORCEMENT OF FOREIGN FORFEITURE

18 JUDGMENT.

19 (a) IN GENERAL.—Chapter 163 of title 28, United

20 States Code, is amended by adding at the end the fol21 lowing:

22 ‘‘§ 2467. Enforcement of foreign judgment

23 ‘‘(a) DEFINITIONS.—In this section—

24 ‘‘(1) the term ‘foreign nation’ means a country

25 that has become a party to the United Nations Con-
53

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1 vention Against Illicit Traffic in Narcotic Drugs and

2 Psychotropic Substances (referred to in this section

3 as the ‘United Nations Convention’) or a foreign ju4 risdiction with which the United States has a treaty

5 or other formal international agreement in effect

6 providing for mutual forfeiture assistance; and

7 ‘‘(2) the term ‘value-based confiscation judg8 ment’ means a final order of a foreign nation com9 pelling a defendant, as a consequence of his or her

10 criminal conviction for an offense described in Arti11 cle 3, Paragraph 1, of the United Nations Conven12 tion, or any foreign offense described in section

13 1956(c)(7)(B) of title 18, to pay a sum of money

14 representing the proceeds of such offense, or prop15 erty the value of which corresponds to such pro16 ceeds.

17 ‘‘(b) REVIEW BY ATTORNEY GENERAL.—

18 ‘‘(1) IN GENERAL.—A foreign nation seeking to

19 have its value-based confiscation judgment registered

20 and enforced by a district court of the United States

21 under this section shall first submit a request to the

22 Attorney General or the designee of the Attorney

23 General, which request shall include—

24 ‘‘(A) a summary of the facts of the case

25 and a description of the criminal proceeding
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1 that resulted in the value-based confiscation

2 judgment;

3 ‘‘(B) certified copies of the judgment of

4 conviction and value-based confiscation judg5 ment;

6 ‘‘(C) an affidavit or sworn declaration es7 tablishing that the defendant received notice of

8 the proceedings in sufficient time to enable the

9 defendant to defend against the charges and

10 that the value-based confiscation judgment ren11 dered is in force and is not subject to appeal;

12 ‘‘(D) an affidavit or sworn declaration that

13 all reasonable efforts have been undertaken to

14 enforce the value-based confiscation judgment

15 against the property of the defendant, if any, in

16 the foreign country; and

17 ‘‘(E) such additional information and evi18 dence as may be required by the Attorney Gen19 eral or the designee of the Attorney General.

20 ‘‘(2) CERTIFICATION OF REQUEST.—The Attor21 ney General or the designee of the Attorney General,

22 in consultation with the Secretary of State or the

23 designee of the Secretary, shall determine whether to

24 certify the request, and such decision shall be final

25 and not subject to either judicial review or review
55

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1 under subchapter II of chapter 5, or chapter 7, of

2 title 5 (commonly known as the ‘Administrative Pro3 cedure Act’).

4 ‘‘(c) JURISDICTION AND VENUE.—

5 ‘‘(1) IN GENERAL.—If the Attorney General or

6 the designee of the Attorney General certifies a re7 quest under subsection (b), the foreign nation may

8 file a civil proceeding in district court of the United

9 States seeking to enforce the foreign value-based

10 confiscation judgment as if the judgment had been

11 entered by a court in the United States.

12 ‘‘(2) PROCEEDINGS.—In a proceeding filed

13 under paragraph (1)—

14 ‘‘(A) the foreign nation shall be the plain15 tiff and the person against whom the value16 based confiscation judgment was entered shall

17 be the defendant;

18 ‘‘(B) venue shall lie in the district court

19 for the District of Columbia or in any other dis20 trict in which the defendant or the property

21 that may be the basis for satisfaction of a judg22 ment under this section may be found; and

23 ‘‘(C) the district court shall have personal

24 jurisdiction over a defendant residing outside of

25 the United States if the defendant is served
56

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1 with process in accordance with rule 4 of the

2 Federal Rules of Civil Procedure.

3 ‘‘(d) ENTRY AND ENFORCEMENT OF JUDGMENT.—

4 ‘‘(1) IN GENERAL.—Except as provided in para5 graph (2), the district court shall enter such orders

6 as may be necessary to enforce the value-based con7 fiscation judgment on behalf of the foreign nation if

8 the court finds that—

9 ‘‘(A) the value-based confiscation judgment

10 was rendered under a system that provides im11 partial tribunals or procedures compatible with

12 the requirements of due process of law;

13 ‘‘(B) the foreign court had personal juris14 diction over the defendant;

15 ‘‘(C) the foreign court had jurisdiction over

16 the subject matter;

17 ‘‘(D) the defendant in the proceedings in

18 the foreign court received notice of the pro19 ceedings in sufficient time to enable him or her

20 to defend; and

21 ‘‘(E) the judgment was not obtained by

22 fraud.

23 ‘‘(2) EXCEPTION.—Process to enforce a judg24 ment under this section shall be in accordance with

25 rule 69(a) of the Federal Rules of Civil Procedure.
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1 ‘‘(e) FINALITY OF FOREIGN FINDINGS.—Upon a

2 finding by the district court that the conditions set forth

3 in subsection (d) have been satisfied, the court shall be

4 bound by the findings of facts to the extent that they are

5 stated in the foreign judgment of conviction and value6 based confiscation judgment.

7 ‘‘(f) CURRENCY CONVERSION.—The rate of exchange

8 in effect at the time the suit to enforce is filed by the

9 foreign nation shall be used in calculating the amount

10 stated in any value-based confiscation judgment requiring

11 the payment of a sum of money submitted for registra12 tion.’’.

13 (b) CONFORMING AMENDMENT.—The analysis for

14 chapter 163 of title 28, United States Code, is amended

15 by adding at the end the following:

‘‘2467. Enforcement of foreign judgment.’’.

16 SEC. 28. ENCOURAGING USE OF CRIMINAL FORFEITURE AS

17 AN ALTERNATIVE TO CIVIL FORFEITURE.

18 Section 2461 of title 28, United States Code, is

19 amended by adding at the end the following:

20 ‘‘(c) If a forfeiture of property is authorized in con21 nection with a violation of an Act of Congress, and any

22 person is charged in an indictment or information with

23 such violation but no specific statutory provision is made

24 for criminal forfeiture upon conviction, the Government

25 may include the forfeiture in the indictment or informa-
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1 tion in accordance with the Federal Rules of Criminal Pro2 cedure, and upon conviction, the court shall order the for3 feiture of the property in accordance with the procedures

4 set forth in section 413 of the Comprehensive Drug Abuse

5 Prevention and Control Act of 1970 (21 U.S.C. 853).’’.

6 SEC. 29. APPLICATION OF PROCEDURES FOR DRUG CASES.

7 Section 511(d) of the Controlled Substances Act (21

8 U.S.C. 881(d)) is amended by adding at the end the fol9 lowing: ‘‘Chapter 46 of title 18, United States Code, ap10 plies to any seizure or forfeiture under this section, to the

11 extent applicable and not inconsistent with this section.’’.

12 SEC. 30. APPLICATION OF PROCEDURES TO OTHER CIVIL

13 FORFEITURES.

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

15 States Code, is amended by adding at the end the fol16 lowing:

17 ‘‘§ 987. Application of procedures

18 ‘‘The procedures set forth in this chapter relating to

19 civil forfeiture shall apply to all civil forfeitures under any

20 provision of this title.’’.

21 (b) CONFORMING AMENDMENT.—The analysis for

22 chapter 46 of title 18, United States Code, is amended

23 by adding at the end the following:

‘‘987. Application of procedures.’’.
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1 SEC. 31. APPLICATION TO ALIEN SMUGGLING OFFENSES.

2 (a) AMENDMENT OF THE IMMIGRATION AND NA3 TIONALITY ACT.— Section 274(b) of the Immigration and

4 Nationality Act (8 U.S.C. 1324(b)) is amended to read

5 as follows:

6 ‘‘(b) SEIZURE AND FORFEITURE.—

7 ‘‘(1) IN GENERAL.—Any conveyance, including

8 any vessel, vehicle, or aircraft, that has been or is

9 being used in the commission of a violation of sub10 section (a), the gross proceeds of such violation, and

11 any property traceable to such conveyance or pro12 ceeds, shall be seized and subject to forfeiture.

13 ‘‘(2) APPLICABLE PROCEDURES.—Seizures and

14 forfeitures under this subsection shall be governed

15 by the provisions of chapter 46 of title 18, United

16 States Code, relating to civil forfeitures, including

17 section 981(d) of such title, except that such duties

18 as are imposed upon the Secretary of the Treasury

19 under the customs laws described in that section

20 shall be performed by such officers, agents, and

21 other persons as may be designated for that purpose

22 by the Attorney General.

23 ‘‘(3) PRIMA FACIE EVIDENCE IN DETERMINA24 TIONS OF VIOLATIONS.—In determining whether a

25 violation of subsection (a) has occurred, any of the

26 following shall be prima facie evidence that an alien
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1 involved in the alleged violation had not received

2 prior official authorization to come to, enter, or re3 side in the United States or that such alien had

4 come to, entered, or remained in the United States

5 in violation of law:

6 ‘‘(A) Records of any judicial or administra7 tive proceeding in which that alien’s status was

8 an issue and in which it was determined that

9 the alien had not received prior official author10 ization to come to, enter, or reside in the

11 United States or that such alien had come to,

12 entered, or remained in the United States in

13 violation of law.

14 ‘‘(B) Official records of the Service or of

15 the Department of State showing that the alien

16 had not received prior official authorization to

17 come to, enter, or reside in the United States

18 or that such alien had come to, entered, or re19 mained in the United States in violation of law.

20 ‘‘(C) Testimony, by an immigration officer

21 having personal knowledge of the facts con22 cerning that alien’s status, that the alien had

23 not received prior official authorization to come

24 to, enter, or reside in the United States or that
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1 such alien had come to, entered, or remained in

2 the United States in violation of law.’’.

3 (b) TECHNICAL CORRECTIONS TO EXISTING CRIMI4 NAL FORFEITURE AUTHORITY.— Section 982(a)(7) of

5 title 18, United States Code, is amended—

6 (1) by striking ‘‘(A)’’;

7 (2) by striking subparagraph (B); and

8 (3) by redesignating clauses (i) and (ii) as sub9 paragraphs (A) and (B), respectively;

10 (4) by redesignating subclauses (I) and (II) as

11 clauses (i) and (ii), respectively;

12 (5) by inserting ‘‘section 274(a), 274A(a)(1), or

13 274A(a)(2) of the Immigration and Nationality Act

14 or’’ before ‘‘section 1425’’ the first place it appears;

15 (6) in subparagraph (A), as redesignated by

16 this subsection, by striking ‘‘a violation of, or a con17 spiracy to violate, subsection (a)’’ and inserting ‘‘the

18 offense of which the person is convicted’’; and

19 (7) in subparagraph (B)(i) and (ii), as redesig20 nated by this subsection, by striking ‘‘a violation of,

21 or a conspiracy to violate, subsection (a)’’ and all

22 that follows through ‘‘of this title’’ each place it ap23 pears and inserting ‘‘the offense of which the person

24 is convicted’’.
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1 SEC. 32. EFFECTIVE DATES.

2 (a) IN GENERAL.—Unless otherwise specified in this

3 Act, the amendments made by this Act apply to any for4 feiture proceeding commenced on or after the date of en5 actment of this Act.

6 (b) ADMINISTRATIVE FORFEITURES.—The amend7 ments made by this Act relating to seizures and adminis8 trative forfeitures shall apply to seizures occurring on or

9 after the 90th day after the date of enactment of this Act.

10 (c) CIVIL JUDICIAL FORFEITURES.—The amend11 ments made by this Act relating to judicial procedures ap12 plicable once a civil forfeiture complaint is filed by the

13 Government shall apply to any case in which the forfeiture

14 complaint is filed on or after the date of enactment of this

15 Act.

16 (d) SUBSTANTIVE LAW.—The amendments made by

17 this Act expanding substantive forfeiture law to make

18 property subject to civil or criminal forfeiture that was not

19 previously subject to civil or criminal forfeiture shall apply

20 to any offense occurring after the date of enactment of

21 this Act.

Æ