FAIR Act

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 2017 FAIR Act 2. Civil forfeiture proceedings Section 983 of title 18, United States Code, is amended— (1) in subsection (b)(2)(A)— (A) by striking , and the property subject to forfeiture is real property that is being used by the person as a primary residence, (B) by striking , at the request of the person, shall insure shall ensure (2) 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. ; and (3) in subsection (d)(2)(A), by striking an owner who upon learning an owner who, upon learning 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 (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 (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. Proportionality Section 983(g)(2) of title 18, United States Code, is amended 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. . 7. Reporting requirements Section 524(c)(6)(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 8. 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 2017 or the FAIR Act This bill modifies general rules governing civil forfeiture proceedings to: (1) ensure that a person contesting a civil forfeiture has legal representation without regard to whether the property subject to forfeiture is being used by such person as a primary residence; (2) increase the federal government's burden of proof in civil forfeiture proceedings to clear and convincing evidence; (3) require the government, in addition to showing a substantial connection between the seized property and an offense, to establish by clear and convincing evidence that the owner of any interest in the seized property used the property with intent to facilitate the offense or knowingly consented or was willfully blind to the use of the property by another in connection with the offense; and (4) expand the proportionality criteria used by a court to determine whether a civil forfeiture was constitutionally excessive. To remove incentives for carrying out civil forfeitures, the bill requires proceeds from the disposition of seized property to be deposited into the General Fund of the Treasury, rather than to Department of Justice accounts for law enforcement activities. The bill adds a mens rea requirement (i.e., a knowing violation) to the prohibition against structuring financial transactions to evade reporting requirements. A court shall conduct a probable cause hearing to determine if there is a violation of the prohibition against structuring transactions to evade reporting requirements involving a monetary instrument and to return such instrument if probable cause is not established.