FAIR Act of 2023

To restore the integrity of the Fifth Amendment to the Constitution of the United States, and for other purposes. 1. Short title This Act may be cited as the Fifth Amendment Integrity Restoration Act of 2023 FAIR Act of 2023 2. Civil forfeiture and nonjudicial forfeiture Section 983 of title 18, United States Code, is amended— (1) in subsection (a)— (A) in the subsection heading, by striking claim; (B) in paragraph (1)— (i) in subparagraph (A)— (I) in clause (i)— (aa) by striking clauses (ii) through (v), in any nonjudicial clause (ii), in any (bb) by striking 60 7 (II) by striking clauses (ii) through (v); (III) by inserting after clause (i) the following: (ii) If the identity or interest of a party is not determined until after the seizure or turnover but is determined before a declaration of forfeiture is entered, the Government shall determine the identity and address of the party or interest within 7 days after the seizure or turnover, and notice shall be sent to such interested party not later than 7 days after the determination by the Government of the identity and address of the party or the party's interest. ; (ii) by striking subparagraphs (B) and (C); (iii) by redesignating subparagraphs (D) through (F) as subparagraphs (B) through (D), respectively; and (iv) in subparagraph (C), as so redesignated, by striking nonjudicial (C) by striking paragraph (2); (D) by redesignating paragraphs (3) and (4) as paragraphs (2) and (3), respectively; and (E) in paragraph (2)(A), as so redesignated— (i) by striking 90 30 (ii) by striking after a claim has been filed after the date of the seizure (2) in subsection (b)— (A) in paragraph (1)— (i) by amending subparagraph (A) to read as follows: (A) If a person with standing to contest the forfeiture of property in a civil forfeiture proceeding under a civil forfeiture statute is— (i) financially unable to obtain representation by counsel; or (ii) the cost of obtaining representation would exceed the value of the seized property, the court may authorize or appoint counsel to represent that person with respect to the claim. ; (B) in subparagraph (B), by inserting or appoint authorize (C) in paragraph (2)(A)— (i) by striking in a judicial civil forfeiture proceeding in a civil forfeiture proceeding (ii) by inserting under paragraph (1) counsel (iii) by striking , and the property subject to forfeiture is real property that is being used by the person as a primary residence, (iv) by striking , at the request of the person, shall insure shall ensure (3) in subsection (c)— (A) in paragraph (1), by striking a preponderance of the evidence clear and convincing evidence (B) in paragraph (2), by striking a preponderance of the evidence clear and convincing evidence (C) by striking paragraph (3) and inserting the following: (3) if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish, by clear and convincing evidence, that— (A) there was a substantial connection between the property and the offense; and (B) the owner of any interest in the seized property— (i) used the property with intent to facilitate the offense; or (ii) knowingly consented or was willfully blind to the use of the property by another in connection with the offense. ; (4) in subsection (d)— (A) in paragraph (1), by striking the second sentence and inserting the following: The Government shall have the burden of proving that the claimant is not an innocent owner by a preponderance of the evidence. (B) in paragraph (2)— (i) in subparagraph (A), by striking an owner who upon learning an owner who, upon learning (ii) in subparagraph (B)(i), by inserting before For purposes of this paragraph If the Government satisfies its burden under paragraph (1), the claimant may rebut the Government’s evidence related to his innocent ownership, including by showing that he did all that could reasonably be expected under the law. (5) in subsection (e)— (A) in paragraph (1), in the matter preceding subparagraph (A)— (i) by striking nonjudicial (ii) by striking a declaration an order (B) in paragraph (2)— (i) in subparagraph (A), by striking declaration order (ii) by striking subparagraph (B) and inserting the following: (B) Any proceeding described in subparagraph (A) shall be commenced within 6 months of the entry of the order granting the motion. ; and (C) by striking paragraph (5); (6) in subsection (f)(1), in the matter preceding subparagraph (A), by striking (a) (a)(3)(A) (7) in subsection (g)— (A) in paragraph (1), by striking (a)(4) (a)(3) (B) by amending paragraph (2) to read as follows: (2) In making this determination, the court shall consider such factors as— (A) the seriousness of the offense; (B) the extent of the nexus of the property to the offense; (C) the range of sentences available for the offense giving rise to forfeiture; (D) the fair market value of the property; and (E) the hardship to the property owner and dependents. ; and (8) by adding at the end the following: (k) (1) Notwithstanding any other provision of law— (A) no Federal seizing agency may conduct nonjudicial forfeitures; (B) no property may be subject to forfeiture except through judicial process; and (C) no order of forfeiture may be entered except by a United States district court. (2) In this subsection, the term nonjudicial forfeiture . 3. Disposition of forfeited property (a) Revisions to Controlled Substances Act Section 511(e) of the Controlled Substances Act ( 21 U.S.C. 881(e) (1) in paragraph (1)— (A) in the matter preceding subparagraph (A), by striking civilly or (B) by striking subparagraph (A); and (C) by redesignating subparagraphs (B) through (E) as subparagraphs (A) through (D), respectively; (2) in paragraph (2)— (A) in subparagraph (A), in the matter preceding clause (i), by striking subparagraph (B) of paragraph (1) paragraph (1)(A) (B) in subparagraph (B), by striking accordance with section 524(c) of title 28, the General Fund of the Treasury of the United States (3) by striking paragraph (3); (4) by redesignating paragraph (4) as paragraph (3); and (5) in paragraph (3), as redesignated— (A) in subparagraph (A), by striking paragraph (1)(B) paragraph (1)(A) (B) in subparagraph (B), in the matter preceding clause (i), by striking paragraph (1)(B) that is civilly or paragraph (1)(A) that is (b) Revisions to title 18 Chapter 46 (1) in section 981(e)— (A) by striking is authorized or forfeiture of the property; shall forward to the Treasurer of the United States any proceeds of property forfeited pursuant to this section for deposit in the General Fund of the Treasury or transfer such property on such terms and conditions as such officer may determine— (B) by redesignating paragraphs (3), (4), (5), (6), and (7) as paragraphs (1), (2), (3), (4), and (5), respectively; and (C) in the matter following paragraph (5), as so redesignated— (i) by striking the first, second, third, sixth, and eighth sentences; and (ii) by striking paragraph (3), (4), or (5) paragraph (1), (2), or (3) (2) in section 983(g)— (A) in paragraph (3), by striking grossly (B) in paragraph (4), by striking grossly (c) Tariff Act of 1930 The Tariff Act of 1930 ( 19 U.S.C. 1304 et seq. (1) in section 613A(a) ( 19 U.S.C. 1613b(a) (A) in paragraph (1)— (i) in subparagraph (D), by inserting and (ii) in subparagraph (E), by striking ; and (iii) by striking subparagraph (F); and (B) in paragraph (2)— (i) by striking (A) Any payment Any payment (ii) by striking subparagraph (B); and (2) in section 616 ( 19 U.S.C. 1616a (A) in the section heading, by striking Transfer of forfeited property Dismissal in favor of forfeiture under State law (B) in subsection (a), by striking (a) The Secretary The Secretary (C) by striking subsections (b) through (d). (d) Title 31 Section 9705 of title 31, United States Code, is amended— (1) in subsection (a)(1)— (A) by striking subparagraph (G); and (B) by redesignating subparagraphs (H) through (J) as subparagraphs (G) through (I), respectively; and (2) in subsection (b)— (A) by striking paragraphs (2) and (4); and (B) by redesignating paragraphs (3) and (5) as paragraphs (2) and (3), respectively. 4. Department of Justice Assets Forfeiture Fund deposits Section 524(c)(4) of title 28, United States Code, is amended— (1) by striking subparagraphs (A) and (B); and (2) by redesignating subparagraphs (C) and (D) as subparagraphs (A) and (B), respectively. 5. Structuring transactions to evade reporting requirement prohibited (a) Amendments to Title 31 Section 5324 of title 31, United States Code, is amended— (1) in subsection (a)— (A) in the matter preceding paragraph (1), by inserting knowingly Public Law 91–508 (B) in paragraph (3), by inserting of funds not derived from a legitimate source any transaction (2) in subsection (b), in the matter preceding paragraph (1), by inserting knowingly such section (3) in subsection (c), in the matter preceding paragraph (1), by inserting knowingly section 5316 (b) Probable cause hearing in connection with property seizures relating to certain monetary instruments transactions (1) Amendment Section 5317 of title 31, United States Code, is amended by adding at the end the following: (d) Probable cause hearing in connection with property seizures relating to certain monetary instruments transactions (1) In general Not later than 14 days after the date on which notice is provided under paragraph (2)— (A) a court of competent jurisdiction shall conduct a hearing on any property seized or restrained under subsection (c)(2) with respect to an alleged violation of section 5324; and (B) any property described in subparagraph (A) shall be returned unless the court finds that there is probable cause to believe that there is a violation of section 5324 involving the property. (2) Notice Each person from whom property is seized or restrained under subsection (c)(2) with respect to an alleged violation of section 5324 shall be notified of the right of the person to a hearing under paragraph (1). . (2) Applicability The amendment made by paragraph (1) shall apply to property seized or restrained after the date of enactment of this Act. 6. Reporting requirements Section 524(c)(6)(A)(i) of title 28, United States Code, is amended by inserting from each type of forfeiture, and specifically identifying which funds were obtained from including criminal forfeitures and which were obtained from civil forfeitures, deposits 7. Applicability The amendments made by this Act shall apply to— (1) any civil forfeiture proceeding pending on or filed on or after the date of enactment of this Act; and (2) any amounts received from the forfeiture of property on or after the date of enactment of this Act.

Summary: Fifth Amendment Integrity Restoration Act of 2023 or the FAIR Act of 2023 This bill revises federal laws governing civil asset forfeiture. Specifically, the bill makes various changes to the general rules governing civil forfeiture proceedings. Among the changes, the bill requires counsel for an indigent property owner whose primary residence is the subject of a civil forfeiture hearing regardless of whether the owner requests counsel, raises the evidentiary standard from preponderance of the evidence to clear and convincing evidence, and sets forth factors courts must consider in determining whether a forfeiture of property used to facilitate the commission of an offense is excessive. Additionally, the bill eliminates statutory authority for equitable sharing and directs forfeiture proceeds to be deposited into the general fund of the Treasury instead of the Department of Justice (DOJ) Assets Forfeiture Fund. The bill also makes changes with respect to the civil forfeiture of money involved in structuring offenses (i.e., structuring currency transactions to evade currency reporting requirements). Among the changes, the bill specifies an evidentiary standard of knowingly for structuring offenses, and requires a prompt probable cause hearing following the seizure of money involved in a structuring offense. Finally, the bill requires the annual report on deposits into the DOJ Asset Forfeiture Fund to specify deposits from each type of forfeiture and specify which funds were obtained from criminal forfeitures and which were obtained from civil forfeitures.