H. R. 1658—5
‘‘(2) the Government may use evidence gathered after the
filing of a complaint for forfeiture to establish, by a preponder-
ance of the evidence, that property is subject to forfeiture;
and
‘‘(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 that there
was a substantial connection between the property and the
offense.
‘‘(d) INNOCENT OWNER DEFENSE.—
‘‘(1) An innocent owner’s interest in property shall not
be forfeited under any civil forfeiture statute. The claimant
shall have the burden of proving that the claimant is an
innocent owner by a preponderance of the evidence.
‘‘(2)(A) With respect to a property interest in existence
at the time the illegal conduct giving rise to forfeiture took
place, the term ‘innocent owner’ means an owner who—
‘‘(i) did not know of the conduct giving rise to forfeiture;
or
‘‘(ii) upon learning of the conduct giving rise to the
forfeiture, did all that reasonably could be expected under
the circumstances to terminate such use of the property.
‘‘(B)(i) For the purposes of this paragraph, ways in which
a person may show that such person did all that reasonably
could be expected may include demonstrating that such person,
to the extent permitted by law—
‘‘(I) gave timely notice to an appropriate law enforce-
ment agency of information that led the person to know
the conduct giving rise to a forfeiture would occur or has
occurred; and
‘‘(II) in a timely fashion revoked or made a good faith
attempt to revoke permission for those engaging in such
conduct to use the property or took reasonable actions
in consultation with a law enforcement agency to discour-
age or prevent the illegal use of the property.
‘‘(ii) A person is not required by this subparagraph to
take steps that the person reasonably believes would be likely
to subject any person (other than the person whose conduct
gave rise to the forfeiture) to physical danger.
‘‘(3)(A) With respect to a property interest acquired after
the conduct giving rise to the forfeiture has taken place, the
term ‘innocent owner’ means a person who, at the time that
person acquired the interest in the property—
‘‘(i) was a bona fide purchaser or seller for value
(including a purchaser or seller of goods or services for
value); and
‘‘(ii) did not know and was reasonably without cause
to believe that the property was subject to forfeiture.
‘‘(B) An otherwise valid claim under subparagraph (A) shall
not be denied on the ground that the claimant gave nothing
of value in exchange for the property if—
‘‘(i) the property is the primary residence of the claim-
ant;
‘‘(ii) depriving the claimant of the property would
deprive the claimant of the means to maintain reasonable
H. R. 1658—6
shelter in the community for the claimant and all depend-
ents residing with the claimant;
‘‘(iii) the property is not, and is not traceable to, the
proceeds of any criminal offense; and
‘‘(iv) the claimant acquired his or her interest in the
property through marriage, divorce, or legal separation,
or the claimant was the spouse or legal dependent of a
person whose death resulted in the transfer of the property
to the claimant through inheritance or probate,
except that the court shall limit the value of any real property
interest for which innocent ownership is recognized under this
subparagraph to the value necessary to maintain reasonable
shelter in the community for such claimant and all dependents
residing with the claimant.
‘‘(4) Notwithstanding any provision of this subsection, no
person may assert an ownership interest under this subsection
in contraband or other property that it is illegal to possess.
‘‘(5) If the court determines, in accordance with this section,
that an innocent owner has a partial interest in property other-
wise subject to forfeiture, or a joint tenancy or tenancy by
the entirety in such property, the court may enter an appro-
priate order—
‘‘(A) severing the property;
‘‘(B) transferring the property to the Government with
a provision that the Government compensate the innocent
owner to the extent of his or her ownership interest once
a final order of forfeiture has been entered and the property
has been reduced to liquid assets; or
‘‘(C) permitting the innocent owner to retain the prop-
erty subject to a lien in favor of the Government to the
extent of the forfeitable interest in the property.
‘‘(6) In this subsection, the term ‘owner’—
‘‘(A) means a person with an ownership interest in
the specific property sought to be forfeited, including a
leasehold, lien, mortgage, recorded security interest, or
valid assignment of an ownership interest; and
‘‘(B) does not include—
‘‘(i) a person with only a general unsecured interest
in, or claim against, the property or estate of another;
‘‘(ii) a bailee unless the bailor is identified and
the bailee shows a colorable legitimate interest in the
property seized; or
‘‘(iii) a nominee who exercises no dominion or
control over the property.
‘‘(e) MOTION TO SET ASIDE FORFEITURE.—
‘‘(1) Any person entitled to written notice in any nonjudicial
civil forfeiture proceeding under a civil forfeiture statute who
does not receive such notice may file a motion to set aside
a declaration of forfeiture with respect to that person’s interest
in the property, which motion shall be granted if—
‘‘(A) the Government knew, or reasonably should have
known, of the moving party’s interest and failed to take
reasonable steps to provide such party with notice; and
‘‘(B) the moving party did not know or have reason
to know of the seizure within sufficient time to file a
timely claim.
H. R. 1658—7
‘‘(2)(A) Notwithstanding the expiration of any applicable
statute of limitations, if the court grants a motion under para-
graph (1), the court shall set aside the declaration of forfeiture
as to the interest of the moving party without prejudice to
the right of the Government to commence a subsequent for-
feiture proceeding as to the interest of the moving party.
‘‘(B) Any proceeding described in subparagraph (A) shall
be commenced—
‘‘(i) if nonjudicial, within 60 days of the entry of the
order granting the motion; or
‘‘(ii) if judicial, within 6 months of the entry of the
order granting the motion.
‘‘(3) A motion under paragraph (1) may be filed not later
than 5 years after the date of final publication of notice of
seizure of the property.
‘‘(4) If, at the time a motion made under paragraph (1)
is granted, the forfeited property has been disposed of by the
Government in accordance with law, the Government may
institute proceedings against a substitute sum of money equal
to the value of the moving party’s interest in the property
at the time the property was disposed of.
‘‘(5) A motion filed under this subsection shall be the exclu-
sive remedy for seeking to set aside a declaration of forfeiture
under a civil forfeiture statute.
‘‘(f ) RELEASE OF SEIZED PROPERTY.—
‘‘(1) A claimant under subsection (a) is entitled to imme-
diate release of seized property if—
‘‘(A) the claimant has a possessory interest in the
property;
‘‘(B) the claimant has sufficient ties to the community
to provide assurance that the property will be available
at the time of the trial;
‘‘(C) the continued possession by the Government
pending the final disposition of forfeiture proceedings will
cause substantial hardship to the claimant, such as pre-
venting the functioning of a business, preventing an indi-
vidual from working, or leaving an individual homeless;
‘‘(D) the claimant’s likely hardship from the continued
possession by the Government of the seized property out-
weighs the risk that the property will be destroyed, dam-
aged, lost, concealed, or transferred if it is returned to
the claimant during the pendency of the proceeding; and
‘‘(E) none of the conditions set forth in paragraph (8)
applies.
‘‘(2) A claimant seeking release of property under this
subsection must request possession of the property from the
appropriate official, and the request must set forth the basis
on which the requirements of paragraph (1) are met.
‘‘(3)(A) If not later than 15 days after the date of a request
under paragraph (2) the property has not been released, the
claimant may file a petition in the district court in which
the complaint has been filed or, if no complaint has been
filed, in the district court in which the seizure warrant was
issued or in the district court for the district in which the
property was seized.
‘‘(B) The petition described in subparagraph (A) shall set
forth—
H. R. 1658—8
‘‘(i) the basis on which the requirements of paragraph
(1) are met; and
‘‘(ii) the steps the claimant has taken to secure release
of the property from the appropriate official.
‘‘(4) If the Government establishes that the claimant’s claim
is frivolous, the court shall deny the petition. In responding
to a petition under this subsection on other grounds, the
Government may in appropriate cases submit evidence ex parte
in order to avoid disclosing any matter that may adversely
affect an ongoing criminal investigation or pending criminal
trial.
‘‘(5) The court shall render a decision on a petition filed
under paragraph (3) not later than 30 days after the date
of the filing, unless such 30-day limitation is extended by
consent of the parties or by the court for good cause shown.
‘‘(6) If—
‘‘(A) a petition is filed under paragraph (3); and
‘‘(B) the claimant demonstrates that the requirements
of paragraph (1) have been met,
the district court shall order that the property be returned
to the claimant, pending completion of proceedings by the
Government to obtain forfeiture of the property.
‘‘(7) If the court grants a petition under paragraph (3)—
‘‘(A) the court may enter any order necessary to ensure
that the value of the property is maintained while the
forfeiture action is pending, including—
‘‘(i) permitting the inspection, photographing, and
inventory of the property;
‘‘(ii) fixing a bond in accordance with rule E(5)
of the Supplemental Rules for Certain Admiralty and
Maritime Claims; and
‘‘(iii) requiring the claimant to obtain or maintain
insurance on the subject property; and
‘‘(B) the Government may place a lien against the
property or file a lis pendens to ensure that the property
is not transferred to another person.
‘‘(8) This subsection shall not apply if the seized property—
‘‘(A) is contraband, currency, or other monetary
instrument, or electronic funds unless such currency or
other monetary instrument or electronic funds constitutes
the assets of a legitimate business which has been seized;
‘‘(B) is to be used as evidence of a violation of the
law;
‘‘(C) by reason of design or other characteristic, is
particularly suited for use in illegal activities; or
‘‘(D) is likely to be used to commit additional criminal
acts if returned to the claimant.
‘‘(g) PROPORTIONALITY.—
‘‘(1) The claimant under subsection (a)(4) may petition the
court to determine whether the forfeiture was constitutionally
excessive.
‘‘(2) In making this determination, the court shall compare
the forfeiture to the gravity of the offense giving rise to the
forfeiture.
‘‘(3) The claimant shall have the burden of establishing
that the forfeiture is grossly disproportional by a preponderance