Title: FAIR Act
Policy area: Crime and Law Enforcement

Summary:
Fifth Amendment Integrity Restoration Act of 2019 or the FAIR Act
This bill revises the procedure for and the structure of civil forfeiture.
First, the bill revises the general rules for civil forfeiture proceedings. Specifically, it (1) requires the government to provide written notice within seven days of seizure, (2) requires the right to counsel in all civil forfeiture proceedings, (3) raises the evidentiary standard to clear and convincing evidence for the civil forfeiture of property, (4) requires the government to establish by clear and convincing evidence that the owner of the seized property used the property with the intent to facilitate the offense or knowingly consented or was willfully blind to its use in connection with the offense, and (5) expands the proportionality criteria used by a court to determine whether a civil forfeiture was constitutionally excessive.
Next, it requires the 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.
Additionally, the bill eliminates equitable sharing payments (which allow the federal government to share federally forfeited property with participating states and local law enforcement agencies).
It also adds a mens rea requirement (i.e., a knowing violation) to the prohibition against structuring financial transactions to evade reporting requirements. Further, it requires a probable cause hearing to be held within 14 days to determine if there is a violation for structuring financial transactions to evade reporting requirements, and requires the return of a monetary instrument if probable cause is not established.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4074 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  1st Session
                                S. 4074

To restore the integrity of the Fifth Amendment to the Constitution of 
               the United States, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 25, 2020

Mr. Paul (for himself, Mr. King, Mr. Crapo, and Mr. Lee) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
To restore the integrity of the Fifth Amendment to the Constitution of 
               the United States, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fifth Amendment Integrity 
Restoration Act of 2019'' or the ``FAIR Act''.

SEC. 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,''; and
                    (B) by striking ``, at the request of the person, 
                shall insure'' and inserting ``shall ensure'';
            (2) in subsection (c)--
                    (A) in paragraph (1), by striking ``a preponderance 
                of the evidence'' and inserting ``clear and convincing 
                evidence'';
                    (B) in paragraph (2), by striking ``a preponderance 
                of the evidence'' and inserting ``clear and convincing 
                evidence''; and
                    (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.'';
            (3) in subsection (d)(2)(A), by striking ``an owner who'' 
        and all that follows through ``upon learning'' and inserting 
        ``an owner who, upon learning'';
            (4) in subsection (f)(6), in the matter preceding paragraph 
        (7), by inserting ``, and shall award to the claimant an amount 
        equal to 3 times the value of the property seized and a 
        reasonable attorney's fee'' before the period at the end; and
            (5) in subsection (i)--
                    (A) by striking subparagraphs (A) and (B); and
                    (B) by redesignating subparagraphs (C) through (E) 
                as subparagraphs (A) through (C), respectively.

SEC. 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)) is amended--
            (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)'' and inserting ``paragraph (1)(A)''; and
                    (B) in subparagraph (B), by striking ``accordance 
                with section 524(c) of title 28,'' and inserting ``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)'' and inserting ``paragraph (1)(A)''; and
                    (B) in subparagraph (B), in the matter preceding 
                clause (i), by striking ``paragraph (1)(B) that is 
                civilly or'' and inserting paragraph ``(1)(A) that 
                is''.
    (b) Revisions to Title 18.--Chapter 46 of title 18, United States 
Code, is amended--
            (1) in section 981(e)--
                    (A) by striking ``is authorized'' and all that 
                follows through ``or forfeiture of the property;'' and 
                inserting ``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 ``paragraphs (3), (4), and 
                        (5)'' and inserting ``paragraphs (1), (2), and 
                        (3)''; and
            (2) in section 983(g)--
                    (A) in paragraph (3), by striking ``grossly''; and
                    (B) in paragraph (4), by striking ``grossly''.
    (c) Tariff Act of 1930.--The Tariff Act of 1930 (19 U.S.C. 1304 et 
seq.) is amended--
            (1) in section 613A(a) (19 U.S.C. 1613b(a))--
                    (A) in paragraph (1)--
                            (i) in subparagraph (D), by inserting 
                        ``and'' after the semicolon;
                            (ii) in subparagraph (E), by striking ``; 
                        and'' and inserting a period; and
                            (iii) by striking subparagraph (F); and
                    (B) in paragraph (2)--
                            (i) by striking ``(A) Any payment'' and 
                        inserting ``Any payment''; and
                            (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'' and inserting ``dismissal in 
                favor of forfeiture under state law'';
                    (B) in subsection (a), by striking ``(a) The 
                Secretary'' and inserting ``The Secretary''; and
                    (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.

SEC. 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.

SEC. 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'' after ``Public Law 91-508''; 
                and
                    (B) in paragraph (3), by inserting ``of funds not 
                derived from a legitimate source'' after ``any 
                transaction'';
            (2) in subsection (b), in the matter preceding paragraph 
        (1), by inserting ``knowingly'' after ``such section''; and
            (3) in subsection (c), in the matter preceding paragraph 
        (1), by inserting ``knowingly'' after ``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.

SEC. 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.''.

SEC. 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,'' after ``deposits''.

SEC. 8. 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'' and inserting 
                                        ``clause (ii), in any''; and
                                            (bb) by striking ``60'' and 
                                        inserting ``7'';
                                    (II) by striking clauses (ii) 
                                through (iv);
                                    (III) by redesignating clause (v) 
                                as clause (ii); and
                                    (IV) by striking clause (ii), as so 
                                redesginated, and inserting 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) through 
                        (D);
                            (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'' and inserting 
                        ``30''; and
                            (ii) by striking ``after a claim has been 
                        filed'' and inserting ``the date of the 
                        seizure'';
            (2) in subsection (b)--
                    (A) by striking paragraph (1)(A) and inserting the 
                following:
            ``(1)(A) If a person with standing to contest the 
        forfeiture of property in a judicial 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 (1)(B), by inserting ``or 
                appoint'' after ``authorize''; and
                    (C) in paragraph (2)(A), by inserting ``under 
                paragraph (1)'' after ``counsel'';
            (3) in subsection (d)(1), by striking the second sentence;
            (4) in subsection (e)--
                    (A) in paragraph (1), in the matter preceding 
                subparagraph (A)--
                            (i) by striking ``nonjudicial''; and
                            (ii) by striking ``a declaration'' and 
                        inserting ``an order'';
                    (B) in paragraph (2)--
                            (i) in subparagraph (A), by striking 
                        ``declaration'' and inserting ``order''; and
                            (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);
            (5) in subsection (f)(1), in the matter preceding 
        subparagraph (A), by striking ``(a)'' and inserting 
        ``(a)(3)(A)'';
            (6) in subsection (g)(1), by striking ``(a)(4)'' and 
        inserting ``(a)(3)''; and
            (7) 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' means 
an in rem action that permits the Federal seizing agency to start a 
forfeiture without judicial involvement.''.

SEC. 9. 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.
                                 <all>