FAIR Act

Bill: 116-s-4074
Sponsor: full_name: Sen. Paul, Rand [R-KY]
Introduced: 2020-06-25
Policy area: Crime and Law Enforcement
Subjects: Civil actions and liability

Congressional oversight

Criminal investigation, prosecution, interrogation

Criminal procedure and sentencing

Customs enforcement

Drug trafficking and controlled substances

Evidence and witnesses

Fraud offenses and financial crimes

Government trust funds
Latest action: action_date: 2020-06-25
text: Read twice and referred to the Committee on the Judiciary.

Summaries:
action_date: 2020-06-25
action_desc: Introduced in Senate
text: <p><strong>Fifth Amendment Integrity Restoration Act of 2019 or the FAIR Act</strong></p> <p>This bill revises the procedure for and the structure of civil forfeiture.</p> <p>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. </p> <p>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.</p> <p>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). </p> <p>It also adds a <i>mens rea </i>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.</p>

tv_txt: II 116th CONGRESS 1st Session S. 4074 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.

1. Short title This Act may be cited as the Fifth Amendment Integrity Restoration Act of 2019 or the 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, ; 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. 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. 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 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. 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, after deposits . 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. . 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.