H. R. 1658—21
‘‘(i) to any claim or to the ability of the Government
to respond to such claim; or
‘‘(ii) in a civil forfeiture case, to the ability of
the Government to establish the forfeitability of the
property; and
‘‘(B) it is within the capacity of the claimant to waive
the claimant’s rights under applicable financial secrecy
laws, or to obtain the records so that such records can
be made available notwithstanding such secrecy laws,
the refusal of the claimant to provide the records in response
to a discovery request or to take the action necessary otherwise
to make the records available shall be grounds for judicial
sanctions, up to and including dismissal of the claim with
prejudice.
‘‘(2) PRIVILEGE.—This subsection shall not affect the right
of the claimant to refuse production on the basis of any privilege
guaranteed by the Constitution of the United States or any
other provision of Federal law.’’.
SEC. 18. APPLICATION TO ALIEN SMUGGLING OFFENSES.
(a) AMENDMENT OF THE IMMIGRATION AND NATIONALITY ACT.—
Section 274(b) of the Immigration and Nationality Act (8 U.S.C.
1324(b)) is amended to read as follows:
‘‘(b) SEIZURE AND FORFEITURE.—
‘‘(1) IN GENERAL.—Any conveyance, including any vessel,
vehicle, or aircraft, that has been or is being used in the
commission of a violation of subsection (a), the gross proceeds
of such violation, and any property traceable to such conveyance
or proceeds, shall be seized and subject to forfeiture.
‘‘(2) APPLICABLE
PROCEDURES.—Seizures and forfeitures
under this subsection shall be governed by the provisions of
chapter 46 of title 18, United States Code, relating to civil
forfeitures, including section 981(d) of such title, except that
such duties as are imposed upon the Secretary of the Treasury
under the customs laws described in that section shall be
performed by such officers, agents, and other persons as may
be designated for that purpose by the Attorney General.
‘‘(3) PRIMA FACIE EVIDENCE IN DETERMINATIONS OF VIOLA-
TIONS.—In determining whether a violation of subsection (a)
has occurred, any of the following shall be prima facie evidence
that an alien involved in the alleged violation had not received
prior official authorization to come to, enter, or reside in the
United States or that such alien had come to, entered, or
remained in the United States in violation of law:
‘‘(A) Records of any judicial or administrative pro-
ceeding in which that alien’s status was an issue and
in which it was determined that the alien had not received
prior official authorization to come to, enter, or reside in
the United States or that such alien had come to, entered,
or remained in the United States in violation of law.
‘‘(B) Official records of the Service or of the Department
of State showing that the alien had not received prior
official authorization to come to, enter, or reside in the
United States or that such alien had come to, entered,
or remained in the United States in violation of law.
‘‘(C) Testimony, by an immigration officer having per-
sonal knowledge of the facts concerning that alien’s status,
H. R. 1658—22
that the alien had not received prior official authorization
to come to, enter, or reside in the United States or that
such alien had come to, entered, or remained in the United
States in violation of law.’’.
(b) TECHNICAL
CORRECTIONS
TO
EXISTING
CRIMINAL
FOR-
FEITURE AUTHORITY.—Section 982(a)(6) of title 18, United States
Code, is amended—
(1) in subparagraph (A)—
(A) by inserting ‘‘section 274(a), 274A(a)(1), or
274A(a)(2) of the Immigration and Nationality Act or’’
before ‘‘section 1425’’ the first place it appears;
(B) in clause (i), by striking ‘‘a violation of, or a con-
spiracy to violate, subsection (a)’’ and inserting ‘‘the offense
of which the person is convicted’’; and
(C) in subclauses (I) and (II) of clause (ii), by striking
‘‘a violation of, or a conspiracy to violate, subsection (a)’’
and all that follows through ‘‘of this title’’ each place it
appears and inserting ‘‘the offense of which the person
is convicted’’;
(2) by striking subparagraph (B); and
(3) in the second sentence—
(A) by striking ‘‘The court, in imposing sentence on
such person’’ and inserting the following:
‘‘(B) The court, in imposing sentence on a person described
in subparagraph (A)’’; and
(B) by striking ‘‘this subparagraph’’ and inserting ‘‘that
subparagraph’’.
SEC. 19. ENHANCED VISIBILITY OF THE ASSET FORFEITURE PROGRAM.
Section 524(c)(6) of title 28, United States Code, is amended
to read as follows:
‘‘(6)(A) The Attorney General shall transmit to Congress and
make available to the public, not later than 4 months after the
end of each fiscal year, detailed reports for the prior fiscal year
as follows:
‘‘(i) A report on total deposits to the Fund by State of
deposit.
‘‘(ii) A report on total expenses paid from the Fund, by
category of expense and recipient agency, including equitable
sharing payments.
‘‘(iii) A report describing the number, value, and types
of properties placed into official use by Federal agencies, by
recipient agency.
‘‘(iv) A report describing the number, value, and types
of properties transferred to State and local law enforcement
agencies, by recipient agency.
‘‘(v) A report, by type of disposition, describing the number,
value, and types of forfeited property disposed of during the
year.
‘‘(vi) A report on the year-end inventory of property under
seizure, but not yet forfeited, that reflects the type of property,
its estimated value, and the estimated value of liens and mort-
gages outstanding on the property.
‘‘(vii) A report listing each property in the year-end inven-
tory, not yet forfeited, with an outstanding equity of not less
than $1,000,000.
H. R. 1658—23
‘‘(B) The Attorney General shall transmit to Congress and
make available to the public, not later than 2 months after final
issuance, the audited financial statements for each fiscal year for
the Fund.
‘‘(C) Reports under subparagraph (A) shall include information
with respect to all forfeitures under any law enforced or adminis-
tered by the Department of Justice.
‘‘(D) The transmittal and publication requirements in subpara-
graphs (A) and (B) may be satisfied by—
‘‘(i) posting the reports on an Internet website maintained
by the Department of Justice for a period of not less than
2 years; and
‘‘(ii) notifying the Committees on the Judiciary of the House
of Representatives and the Senate when the reports are avail-
able electronically.’’.
SEC. 20. PROCEEDS.
(a) FORFEITURE OF PROCEEDS.—Section 981(a)(1)(C) of title 18,
United States Code, is amended by striking ‘‘or a violation of
section 1341’’ and all that follows and inserting ‘‘or any offense
constituting ‘specified unlawful activity’ (as defined in section
1956(c)(7) of this title), or a conspiracy to commit such offense.’’.
(b) DEFINITION OF PROCEEDS.—Section 981(a) of title 18, United
States Code, is amended by adding at the end the following:
‘‘(2) For purposes of paragraph (1), the term ‘proceeds’ is defined
as follows:
‘‘(A) In cases involving illegal goods, illegal services, unlaw-
ful activities, and telemarketing and health care fraud schemes,
the term ‘proceeds’ means property of any kind obtained directly
or indirectly, as the result of the commission of the offense
giving rise to forfeiture, and any property traceable thereto,
and is not limited to the net gain or profit realized from
the offense.
‘‘(B) In cases involving lawful goods or lawful services that
are sold or provided in an illegal manner, the term ‘proceeds’
means the amount of money acquired through the illegal trans-
actions resulting in the forfeiture, less the direct costs incurred
in providing the goods or services. The claimant shall have
the burden of proof with respect to the issue of direct costs.
The direct costs shall not include any part of the overhead
expenses of the entity providing the goods or services, or any
part of the income taxes paid by the entity.
‘‘(C) In cases involving fraud in the process of obtaining
a loan or extension of credit, the court shall allow the claimant
a deduction from the forfeiture to the extent that the loan
was repaid, or the debt was satisfied, without any financial
loss to the victim.’’.
H. R. 1658—24
SEC. 21. EFFECTIVE DATE.
Except as provided in section 14(c), this Act and the amend-
ments made by this Act shall apply to any forfeiture proceeding
commenced on or after the date that is 120 days after the date
of the enactment of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.