US (United States) Code. Title 28. Part VI. Chapter 163: Fines, penalties and forfeitures

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Judiciary and judicial procedure

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-CITE-

28 USC CHAPTER 163 - FINES, PENALTIES AND FORFEITURES 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 163 - FINES, PENALTIES AND FORFEITURES

-HEAD-

CHAPTER 163 - FINES, PENALTIES AND FORFEITURES

-MISC1-

Sec.

2461. Mode of recovery.

2462. Time for commencing proceedings.

2463. Property taken under revenue law not repleviable.

2464. Security; special bond.

2465. Return of property to claimant; liability for wrongful

seizure; attorney fees, costs, and interest.

2466. Fugitive disentitlement.

2467. Enforcement of foreign judgment.

AMENDMENTS

2000 - Pub. L. 106-185, Secs. 4(b), 14(b), 15(b), Apr. 25, 2000,

114 Stat. 213, 219, 221, substituted "Return of property to

claimant; liability for wrongful seizure; attorney fees, costs, and

interest" for "Return of property to claimant; certificate of

reasonable cause; liability for wrongful seizure" in item 2465 and

added items 2466 and 2467.

-End-

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28 USC Sec. 2461 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 163 - FINES, PENALTIES AND FORFEITURES

-HEAD-

Sec. 2461. Mode of recovery

-STATUTE-

(a) Whenever a civil fine, penalty or pecuniary forfeiture is

prescribed for the violation of an Act of Congress without

specifying the mode of recovery or enforcement thereof, it may be

recovered in a civil action.

(b) Unless otherwise provided by Act of Congress, whenever a

forfeiture of property is prescribed as a penalty for violation of

an Act of Congress and the seizure takes place on the high seas or

on navigable waters within the admiralty and maritime jurisdiction

of the United States, such forfeiture may be enforced by libel in

admiralty but in cases of seizures on land the forfeiture may be

enforced by a proceeding by libel which shall conform as near as

may be to proceedings in admiralty.

(c) If a forfeiture of property is authorized in connection with

a violation of an Act of Congress, and any person is charged in an

indictment or information with such violation but no specific

statutory provision is made for criminal forfeiture upon

conviction, the Government may include the forfeiture in the

indictment or information in accordance with the Federal Rules of

Criminal Procedure, and upon conviction, the court shall order the

forfeiture of the property in accordance with the procedures set

forth in section 413 of the Controlled Substances Act (21 U.S.C.

853), other than subsection (d) of that section.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 974; Pub. L. 106-185, Sec. 16,

Apr. 25, 2000, 114 Stat. 221.)

-MISC1-

HISTORICAL AND REVISION NOTES

Subsection (a) was drafted to clarify a serious ambiguity in

existing law and is based upon rulings of the Supreme Court.

Numerous sections in the United States Code prescribe civil fines,

penalties, and pecuniary forfeitures for violation of certain

sections without specifying the mode of recovery or enforcement

thereof. See, for example, section 567 of title 12, U.S.C., 1940

ed., Banks and Banking, section 64 of title 14, U.S.C., 1940 ed.,

Coast Guard, and section 180 of title 25, U.S.C., 1940 ed.,

Indians. Compare section 1 (21) of title 49, U.S.C., 1940 ed.,

Transportation.

A civil fine, penalty, or pecuniary forfeiture is recoverable in

a civil action. United States ex rel. Marcus v. Hess et al., 1943,

63 S.Ct. 379, 317 U.S. 537, 87 L.Ed. 433, rehearing denied 63 S.Ct.

756, 318 U.S. 799, 87 L.Ed. 1163; Hepner v. United States, 1909, 29

S.Ct. 474, 213 U.S. 103, 53 L.Ed. 720, and cases cited therein.

Forfeiture of bail bonds in criminal cases are enforceable by

procedure set out in Rule 46 of the Federal Rules of Criminal

Procedure.

If the statute contemplates a criminal fine, it can only be

recovered in a criminal proceeding under the Federal Rules of

Criminal Procedure, after a conviction. The collection of civil

fines and penalties, however, may not be had under the Federal

Rules of Criminal Procedure, Rule 54(b)(5), but enforcement of a

criminal fine imposed in a criminal case may be had by execution on

the judgment rendered in such case, as in civil actions. (See

section 569 of title 18, U.S.C., 1940 ed., Crimes and Criminal

Procedure, incorporated in section 3565 of H.R. 1600, 80th

Congress, for revision of the Criminal Code. See also Rule 69 of

Federal Rules of Civil Procedure and Advisory Committee Note

thereunder, as to execution in civil actions.)

Subsection (b) was drafted to cover the subject of forfeiture of

property generally. Sections in the United States Code specifically

providing a mode of enforcement of forfeiture of property for their

violation and other procedural matters will, of course, govern and

subsection (b) will not affect them. It will only cover cases where

no mode of recovery is prescribed.

Words "Unless otherwise provided by enactment of Congress" were

inserted at the beginning of subsection (b) to exclude from its

application instances where a libel in admiralty is not required.

For example, under sections 1607, 1609, and 1610 of title 19,

U.S.C., 1940 ed., Customs Duties, the collector of customs may, by

summary procedure, sell at public auction, without previous

declaration of forfeiture or libel proceedings, any vessel, etc.,

under $1,000 in value in cases where no claim for the same is filed

or bond given as required by customs laws.

Rule 81 of the Federal Rules of Civil Procedure makes such rules

applicable to the appeals in cases of seizures on land. (See also

443 Cans of Frozen Egg Product v. United States, 1912, 33 S.Ct. 50,

226 U.S. 172, 57 L.Ed. 174, and Eureka Productions v. Mulligan,

C.C.A. 1940, 108 F.2d 760.) The proceeding, which resembles a suit

in admiralty in that it is begun by a libel, is, strictly speaking,

an "action at law" (The Sarah, 1823, 8 Wheat. 391, 21 U.S. 391, 5

L.Ed. 644; Morris's Cotton, 1869, 8 Wall. 507, 75 U.S. 507, 19

L.Ed. 481; Confiscation cases, 1873, 20 Wall. 92, 87 U.S. 92, 22

L.Ed. 320; Eureka Productions v. Mulligan, supra), even though the

statute may direct that the proceedings conform to admiralty as

near as may be. In re Graham, 1870, 10 Wall. 541, 19 L.Ed. 981, and

443 Cans of Frozen Egg Product v. United States, supra.

Subsection (b) is in conformity with Rule 21 of the Supreme Court

Admiralty Rules, which recognizes that a libel may be filed upon

seizure for any breach of any enactment of Congress, whether on

land or on the high seas or on navigable waters within the

admiralty and maritime jurisdiction of the United States. Such rule

also permits an information to be filed, but is rarely, if ever,

used at present. Consequently, "information" has been omitted from

the text and only "libel" is incorporated.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Criminal Procedure, referred to in subsec.

(c), are set out in the Appendix to Title 18, Crimes and Criminal

Procedure.

-MISC2-

AMENDMENTS

2000 - Subsec. (c). Pub. L. 106-185 added subsec. (c).

EFFECTIVE DATE OF 2000 AMENDMENT

Amendment by Pub. L. 106-185 applicable to any forfeiture

proceeding commenced on or after the date that is 120 days after

Apr. 25, 2000, see section 21 of Pub. L. 106-185, set out as a note

under section 1324 of Title 8, Aliens and Nationality.

FEDERAL CIVIL PENALTIES INFLATION ADJUSTMENT

Pub. L. 101-410, Oct. 5, 1990, 104 Stat. 890, as amended by Pub.

L. 104-134, title III, Sec. 31001(s)(1), Apr. 26, 1996, 110 Stat.

1321-373; Pub. L. 105-362, title XIII, Sec. 1301(a), Nov. 10, 1998,

112 Stat. 3293, provided that:

"SHORT TITLE

"Section 1. This Act may be cited as the 'Federal Civil Penalties

Inflation Adjustment Act of 1990'.

"FINDINGS AND PURPOSE

"Sec. 2. (a) Findings. - The Congress finds that -

"(1) the power of Federal agencies to impose civil monetary

penalties for violations of Federal law and regulations plays an

important role in deterring violations and furthering the policy

goals embodied in such laws and regulations;

"(2) the impact of many civil monetary penalties has been and

is diminished due to the effect of inflation;

"(3) by reducing the impact of civil monetary penalties,

inflation has weakened the deterrent effect of such penalties;

and

"(4) the Federal Government does not maintain comprehensive,

detailed accounting of the efforts of Federal agencies to assess

and collect civil monetary penalties.

"(b) Purpose. - The purpose of this Act is to establish a

mechanism that shall -

"(1) allow for regular adjustment for inflation of civil

monetary penalties;

"(2) maintain the deterrent effect of civil monetary penalties

and promote compliance with the law; and

"(3) improve the collection by the Federal Government of civil

monetary penalties.

"DEFINITIONS

"Sec. 3. For purposes of this Act, the term -

"(1) 'agency' means an Executive agency as defined under

section 105 of title 5, United States Code, and includes the

United States Postal Service;

"(2) 'civil monetary penalty' means any penalty, fine, or other

sanction that -

"(A)(i) is for a specific monetary amount as provided by

Federal law; or

"(ii) has a maximum amount provided for by Federal law; and

"(B) is assessed or enforced by an agency pursuant to Federal

law; and

"(C) is assessed or enforced pursuant to an administrative

proceeding or a civil action in the Federal courts; and

"(3) 'Consumer Price Index' means the Consumer Price Index for

all-urban consumers published by the Department of Labor.

"CIVIL MONETARY PENALTY INFLATION ADJUSTMENT REPORTS

"Sec. 4. The head of each agency shall, not later than 180 days

after the date of enactment of the Debt Collection Improvement Act

of 1996 [Apr. 26, 1996], and at least once every 4 years thereafter

-

"(1) by regulation adjust each civil monetary penalty provided

by law within the jurisdiction of the Federal agency, except for

any penalty (including any addition to tax and additional amount)

under the Internal Revenue Code of 1986 [26 U.S.C. 1 et seq.],

the Tariff Act of 1930 [19 U.S.C. 1202 et seq.], the Occupational

Safety and Health Act of 1970 [29 U.S.C. 651 et seq.], or the

Social Security Act [42 U.S.C. 301 et seq.], by the inflation

adjustment described under section 5 of this Act; and

"(2) publish each such regulation in the Federal Register.

"COST-OF-LIVING ADJUSTMENTS OF CIVIL MONETARY PENALTIES

"Sec. 5. (a) Adjustment. - The inflation adjustment under section

4 shall be determined by increasing the maximum civil monetary

penalty or the range of minimum and maximum civil monetary

penalties, as applicable, for each civil monetary penalty by the

cost-of-living adjustment. Any increase determined under this

subsection shall be rounded to the nearest -

"(1) multiple of $10 in the case of penalties less than or

equal to $100;

"(2) multiple of $100 in the case of penalties greater than

$100 but less than or equal to $1,000;

"(3) multiple of $1,000 in the case of penalties greater than

$1,000 but less than or equal to $10,000;

"(4) multiple of $5,000 in the case of penalties greater than

$10,000 but less than or equal to $100,000;

"(5) multiple of $10,000 in the case of penalties greater than

$100,000 but less than or equal to $200,000; and

"(6) multiple of $25,000 in the case of penalties greater than

$200,000.

"(b) Definition. - For purposes of subsection (a), the term

'cost-of-living adjustment' means the percentage (if any) for each

civil monetary penalty by which -

"(1) the Consumer Price Index for the month of June of the

calendar year preceding the adjustment, exceeds

"(2) the Consumer Price Index for the month of June of the

calendar year in which the amount of such civil monetary penalty

was last set or adjusted pursuant to law.

"Sec. 6. Any increase under this Act in a civil monetary penalty

shall apply only to violations which occur after the date the

increase takes effect."

[Pub. L. 104-134, title III, Sec. 31001(s)(2), Apr. 26, 1996, 110

Stat. 1321-373, provided that: "The first adjustment of a civil

monetary penalty made pursuant to the amendment made by paragraph

(1) [amending Pub. L. 101-410, set out above] may not exceed 10

percent of such penalty."]

[For authority of the Director of the Office of Management and

Budget to consolidate reports required under the Federal Civil

Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410, set

out above, to be submitted between Jan. 1, 1995, and Sept. 30,

1997, or to adjust their frequency and due dates, see section 404

of Pub. L. 103-356, set out as a note under section 501 of Title

31, Money and Finance.]

-End-

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28 USC Sec. 2462 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 163 - FINES, PENALTIES AND FORFEITURES

-HEAD-

Sec. 2462. Time for commencing proceedings

-STATUTE-

Except as otherwise provided by Act of Congress, an action, suit

or proceeding for the enforcement of any civil fine, penalty, or

forfeiture, pecuniary or otherwise, shall not be entertained unless

commenced within five years from the date when the claim first

accrued if, within the same period, the offender or the property is

found within the United States in order that proper service may be

made thereon.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 974.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 791 (R.S. Sec. 1047).

Changes were made in phraseology.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 26 section 6533; title 30

section 1724; title 42 section 7413; title 49 section 21303.

-End-

-CITE-

28 USC Sec. 2463 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 163 - FINES, PENALTIES AND FORFEITURES

-HEAD-

Sec. 2463. Property taken under revenue law not repleviable

-STATUTE-

All property taken or detained under any revenue law of the

United States shall not be repleviable, but shall be deemed to be

in the custody of the law and subject only to the orders and

decrees of the courts of the United States having jurisdiction

thereof.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 974.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 747 (R.S. Sec. 934).

Changes were made in phraseology.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 26 section 7437.

-End-

-CITE-

28 USC Sec. 2464 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 163 - FINES, PENALTIES AND FORFEITURES

-HEAD-

Sec. 2464. Security; special bond

-STATUTE-

(a) Except in cases of seizures for forfeiture under any law of

the United States, whenever a warrant of arrest or other process in

rem is issued in any admiralty case, the United States marshal

shall stay the execution of such process, or discharge the property

arrested if the process has been levied, on receiving from the

respondent or claimant of the property a bond or stipulation in

double the amount claimed by the libellant, with sufficient surety,

to be approved by the judge of the district court where the case is

pending, or, in his absence, by the collector of the port,

conditioned to answer the decree of the court in such case. Such

bond or stipulation shall be returned to the court, and judgment or

decree thereon, against both the principal and sureties, may be

secured at the time of rendering the decree in the original case.

The owner of any vessel may deliver to the marshal a bond or

stipulation, with sufficient surety, to be approved by the judge of

the district court, conditioned to answer the decree of such court

in all or any cases that are brought thereafter in such court

against the vessel. Thereupon the execution of all such process

against such vessel shall be stayed so long as the amount secured

by such bond or stipulation is at least double the aggregate amount

claimed by libellants in such suits which are begun and pending

against such vessel. Similar judgments or decrees and remedies may

be had on such bond or stipulation as if a special bond or

stipulation had been filed in each of such suits.

(b) The court may make necessary orders to carry this section

into effect, particularly in giving proper notice of any such suit.

Such bond or stipulation shall be indorsed by the clerk with a

minute of the suits wherein process is so stayed. Further security

may be required by the court at any time.

(c) If a special bond or stipulation in the particular case is

given under this section, the liability as to said case on the

general bond or stipulation shall cease. The parties may stipulate

the amount of the bond or stipulation for the release of a vessel

or other property to be not more than the amount claimed in the

libel, with interest, plus an allowance for libellant's costs. In

the event of the inability or refusal of the parties to so

stipulate, the court shall fix the amount, but if not so fixed then

a bond shall be required in the amount prescribed in this section.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 974.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 754 (R.S. Sec. 941;

Mar. 3, 1899, ch. 441, 30 Stat. 1354; Aug. 3, 1935, ch. 431, Sec.

3, 49 Stat. 513).

Changes were made in phraseology.

-TRANS-

TRANSFER OF FUNCTIONS

All offices of collector of customs, comptroller of customs,

surveyor of customs, and appraiser of merchandise of Bureau of

Customs of Department of the Treasury to which appointments were

required to be made by the President with the advice and consent of

the Senate were ordered abolished, with such offices to be

terminated not later than Dec. 31, 1966, by Reorg. Plan No. 1, of

1965, eff. May 25, 1965, 30 F.R. 7035, 79 Stat. 1317, set out in

the Appendix to Title 5, Government Organization and Employees. All

functions of the offices eliminated were already vested in the

Secretary of the Treasury by Reorg. Plan No. 26 of 1950, eff. July

31, 1950, 15 F.R. 4935, 64 Stat. 1280, set out in the Appendix to

Title 5.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 16 sections 916g, 958, 959,

971f, 972g.

-End-

-CITE-

28 USC Sec. 2465 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 163 - FINES, PENALTIES AND FORFEITURES

-HEAD-

Sec. 2465. Return of property to claimant; liability for wrongful

seizure; attorney fees, costs, and interest

-STATUTE-

(a) Upon the entry of a judgment for the claimant in any

proceeding to condemn or forfeit property seized or arrested under

any provision of Federal law -

(1) such property shall be returned forthwith to the claimant

or his agent; and

(2) if it appears that there was reasonable cause for the

seizure or arrest, the court shall cause a proper certificate

thereof to be entered and, in such case, neither the person who

made the seizure or arrest nor the prosecutor shall be liable to

suit or judgment on account of such suit or prosecution, nor

shall the claimant be entitled to costs, except as provided in

subsection (b).

(b)(1) Except as provided in paragraph (2), in any civil

proceeding to forfeit property under any provision of Federal law

in which the claimant substantially prevails, the United States

shall be liable for -

(A) reasonable attorney fees and other litigation costs

reasonably incurred by the claimant;

(B) post-judgment interest, as set forth in section 1961 of

this title; and

(C) in cases involving currency, other negotiable instruments,

or the proceeds of an interlocutory sale -

(i) interest actually paid to the United States from the date

of seizure or arrest of the property that resulted from the

investment of the property in an interest-bearing account or

instrument; and

(ii) an imputed amount of interest that such currency,

instruments, or proceeds would have earned at the rate

applicable to the 30-day Treasury Bill, for any period during

which no interest was paid (not including any period when the

property reasonably was in use as evidence in an official

proceeding or in conducting scientific tests for the purpose of

collecting evidence), commencing 15 days after the property was

seized by a Federal law enforcement agency, or was turned over

to a Federal law enforcement agency by a State or local law

enforcement agency.

(2)(A) The United States shall not be required to disgorge the

value of any intangible benefits nor make any other payments to the

claimant not specifically authorized by this subsection.

(B) The provisions of paragraph (1) shall not apply if the

claimant is convicted of a crime for which the interest of the

claimant in the property was subject to forfeiture under a Federal

criminal forfeiture law.

(C) If there are multiple claims to the same property, the United

States shall not be liable for costs and attorneys fees associated

with any such claim if the United States -

(i) promptly recognizes such claim;

(ii) promptly returns the interest of the claimant in the

property to the claimant, if the property can be divided without

difficulty and there are no competing claims to that portion of

the property;

(iii) does not cause the claimant to incur additional,

reasonable costs or fees; and

(iv) prevails in obtaining forfeiture with respect to one or

more of the other claims.

(D) If the court enters judgment in part for the claimant and in

part for the Government, the court shall reduce the award of costs

and attorney fees accordingly.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 975; Pub. L. 106-185, Sec. 4(a),

Apr. 25, 2000, 114 Stat. 211.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Secs. 818, 827 (R.S. Secs.

970, 979).

Section consolidates sections 818 and 827 of title 28, U.S.C.,

1940 ed., with changes of phraseology necessary to effect the

consolidation.

The words "in any proceeding to condemn or forfeit property" were

inserted in conformity with the uniform course of judicial

decisions. See Hammel v. Little, App.D.C. 1936, 87 F.2d 907, and

cases there cited.

The qualifying language of section 827 of title 28, U.S.C., 1940

ed., requiring the claimant to pay his own costs before the return

of his property was omitted as unnecessary and involving a matter

more properly for regulation by rule of court. (See sections 1913,

1914, and 1925 of this title.)

(See also section 2006 of this title with respect to actions

against internal revenue officers and their liability for acts in

the performance of official duties.)

AMENDMENTS

2000 - Pub. L. 106-185 amended section catchline and text

generally. Prior to amendment, text read as follows: "Upon the

entry of judgment for the claimant in any proceeding to condemn or

forfeit property seized under any Act of Congress, such property

shall be returned forthwith to the claimant or his agent; but if it

appears that there was reasonable cause for the seizure, the court

shall cause a proper certificate thereof to be entered and the

claimant shall not, in such case, be entitled to costs, nor shall

the person who made the seizure, nor the prosecutor, be liable to

suit or judgment on account of such suit or prosecution."

EFFECTIVE DATE OF 2000 AMENDMENT

Amendment by Pub. L. 106-185 applicable to any forfeiture

proceeding commenced on or after the date that is 120 days after

Apr. 25, 2000, see section 21 of Pub. L. 106-185, set out as a note

under section 1324 of Title 8, Aliens and Nationality.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 18 section 983; title 26

section 7328.

-End-

-CITE-

28 USC Sec. 2466 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 163 - FINES, PENALTIES AND FORFEITURES

-HEAD-

Sec. 2466. Fugitive disentitlement

-STATUTE-

(a) A judicial officer may disallow a person from using the

resources of the courts of the United States in furtherance of a

claim in any related civil forfeiture action or a claim in third

party proceedings in any related criminal forfeiture action upon a

finding that such person -

(1) after notice or knowledge of the fact that a warrant or

process has been issued for his apprehension, in order to avoid

criminal prosecution -

(A) purposely leaves the jurisdiction of the United States;

(B) declines to enter or reenter the United States to submit

to its jurisdiction; or

(C) otherwise evades the jurisdiction of the court in which a

criminal case is pending against the person; and

(2) is not confined or held in custody in any other

jurisdiction for commission of criminal conduct in that

jurisdiction.

(b) Subsection (a) may be applied to a claim filed by a

corporation if any majority shareholder, or individual filing the

claim on behalf of the corporation is a person to whom subsection

(a) applies.

-SOURCE-

(Added Pub. L. 106-185, Sec. 14(a), Apr. 25, 2000, 114 Stat. 219;

amended Pub. L. 107-56, title III, Sec. 322, Oct. 26, 2001, 115

Stat. 315.)

-MISC1-

AMENDMENTS

2001 - Pub. L. 107-56, which directed amendment of section 2466

of title 18 by designating existing provisions as subsec. (a) and

adding subsec. (b), was executed to this section to reflect the

probable intent of Congress because title 18 does not contain a

section 2466.

TERMINATION DATE OF 2001 AMENDMENT

Amendments by title III of Pub. L. 107-56 to terminate effective

on and after the first day of fiscal year 2005 if Congress enacts a

joint resolution that such amendments no longer have the force of

law, see section 303 of Pub. L. 107-56, set out as a Four-Year

Congressional Review; Expedited Consideration note under section

5311 of Title 31, Money and Finance.

EFFECTIVE DATE

Pub. L. 106-185, Sec. 14(c), Apr. 25, 2000, 114 Stat. 219,

provided that: "The amendments made by this section [enacting this

section] shall apply to any case pending on or after the date of

the enactment of this Act [Apr. 25, 2000]."

-End-

-CITE-

28 USC Sec. 2467 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 163 - FINES, PENALTIES AND FORFEITURES

-HEAD-

Sec. 2467. Enforcement of foreign judgment

-STATUTE-

(a) Definitions. - In this section -

(1) the term "foreign nation" means a country that has become a

party to the United Nations Convention Against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances (referred to in this

section as the "United Nations Convention") or a foreign

jurisdiction with which the United States has a treaty or other

formal international agreement in effect providing for mutual

forfeiture assistance; and

(2) the term "forfeiture or confiscation judgment" means a

final order of a foreign nation compelling a person or entity -

(A) to pay a sum of money representing the proceeds of an

offense described in Article 3, Paragraph 1, of the United

Nations Convention, any violation of foreign law that would

constitute a violation or an offense for which property could

be forfeited under Federal law if the offense were committed in

the United States, or any foreign offense described in section

1956(c)(7)(B) of title 18, or property the value of which

corresponds to such proceeds; or

(B) to forfeit property involved in or traceable to the

commission of such offense.

(b) Review by Attorney General. -

(1) In general. - A foreign nation seeking to have a forfeiture

or confiscation judgment registered and enforced by a district

court of the United States under this section shall first submit

a request to the Attorney General or the designee of the Attorney

General, which request shall include -

(A) a summary of the facts of the case and a description of

the proceedings that resulted in the forfeiture or confiscation

judgment;

(B) certified (!1) copy of the forfeiture or confiscation

judgment;

(C) an affidavit or sworn declaration establishing that the

foreign nation took steps, in accordance with the principles of

due process, to give notice of the proceedings to all persons

with an interest in the property in sufficient time to enable

such persons to defend against the charges and that the

judgment rendered is in force and is not subject to appeal; and

(D) such additional information and evidence as may be

required by the Attorney General or the designee of the

Attorney General.

(2) Certification of request. - The Attorney General or the

designee of the Attorney General shall determine whether, in the

interest of justice, to certify the request, and such decision

shall be final and not subject to either judicial review or

review under subchapter II of chapter 5, or chapter 7, of title 5

(commonly known as the "Administrative Procedure Act").

(c) Jurisdiction and Venue. -

(1) In general. - If the Attorney General or the designee of

the Attorney General certifies a request under subsection (b),

the United States may file an application on behalf of a foreign

nation in district court of the United States seeking to enforce

the foreign forfeiture or confiscation judgment as if the

judgment had been entered by a court in the United States.

(2) Proceedings. - In a proceeding filed under paragraph (1) -

(A) the United States shall be the applicant and the

defendant or another person or entity affected by the

forfeiture or confiscation judgment shall be the respondent;

(B) venue shall lie in the district court for the District of

Columbia or in any other district in which the defendant or the

property that may be the basis for satisfaction of a judgment

under this section may be found; and

(C) the district court shall have personal jurisdiction over

a defendant residing outside of the United States if the

defendant is served with process in accordance with rule 4 of

the Federal Rules of Civil Procedure.

(d) Entry and Enforcement of Judgment. -

(1) In general. - The district court shall enter such orders as

may be necessary to enforce the judgment on behalf of the foreign

nation unless the court finds that -

(A) the judgment was rendered under a system that provides

tribunals or procedures incompatible with the requirements of

due process of law;

(B) the foreign court lacked personal jurisdiction over the

defendant;

(C) the foreign court lacked jurisdiction over the subject

matter;

(D) the foreign nation did not take steps, in accordance with

the principles of due process, to give notice of the

proceedings to a person with an interest in the property of the

proceedings (!2) in sufficient time to enable him or her to

defend; or

(E) the judgment was obtained by fraud.

(2) Process. - Process to enforce a judgment under this section

shall be in accordance with rule 69(a) of the Federal Rules of

Civil Procedure.

(3) Preservation of property. -

(A) In general. - To preserve the availability of property

subject to a foreign forfeiture or confiscation judgment, the

Government may apply for, and the court may issue, a

restraining order pursuant to section 983(j) of title 18, at

any time before or after an application is filed pursuant to

subsection (c)(1) of this section.

(B) Evidence. - The court, in issuing a restraining order

under subparagraph (A) -

(i) may rely on information set forth in an affidavit

describing the nature of the proceeding or investigation

underway in the foreign country, and setting forth a

reasonable basis to believe that the property to be

restrained will be named in a judgment of forfeiture at the

conclusion of such proceeding; or

(ii) may register and enforce a restraining order that has

been issued by a court of competent jurisdiction in the

foreign country and certified by the Attorney General

pursuant to subsection (b)(2).

(C) Limit on grounds for objection. - No person may object to

a restraining order under subparagraph (A) on any ground that

is the subject of parallel litigation involving the same

property that is pending in a foreign court.

(e) Finality of Foreign Findings. - In entering orders to enforce

the judgment, the court shall be bound by the findings of fact to

the extent that they are stated in the foreign forfeiture or

confiscation judgment.

(f) Currency Conversion. - The rate of exchange in effect at the

time the suit to enforce is filed by the foreign nation shall be

used in calculating the amount stated in any forfeiture or

confiscation judgment requiring the payment of a sum of money

submitted for registration.

-SOURCE-

(Added Pub. L. 106-185, Sec. 15(a), Apr. 25, 2000, 114 Stat. 219;

amended Pub. L. 107-56, title III, Sec. 323, Oct. 26, 2001, 115

Stat. 315.)

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Civil Procedure, referred to in subsecs.

(c)(2)(C) and (d)(2), are set out in the Appendix to this title.

-MISC1-

AMENDMENTS

2001 - Subsec. (a)(2)(A). Pub. L. 107-56, Sec. 323(4), inserted

", any violation of foreign law that would constitute a violation

or an offense for which property could be forfeited under Federal

law if the offense were committed in the United States" after

"United Nations Convention".

Subsec. (b)(1)(C). Pub. L. 107-56, Sec. 323(2), substituted

"establishing that the foreign nation took steps, in accordance

with the principles of due process, to give notice of the

proceedings to all persons with an interest in the property in

sufficient time to enable such persons" for "establishing that the

defendant received notice of the proceedings in sufficient time to

enable the defendant".

Subsec. (d)(1)(D). Pub. L. 107-56, Sec. 323(3), substituted "the

foreign nation did not take steps, in accordance with the

principles of due process, to give notice of the proceedings to a

person with an interest in the property" for "the defendant in the

proceedings in the foreign court did not receive notice".

Subsec. (d)(3). Pub. L. 107-56, Sec. 323(1), added par. (3).

TERMINATION DATE OF 2001 AMENDMENT

Amendments by title III of Pub. L. 107-56 to terminate effective

on and after the first day of fiscal year 2005 if Congress enacts a

joint resolution that such amendments no longer have the force of

law, see section 303 of Pub. L. 107-56, set out as a Four-Year

Congressional Review; Expedited Consideration note under section

5311 of Title 31, Money and Finance.

EFFECTIVE DATE

Section applicable to any forfeiture proceeding commenced on or

after the date that is 120 days after Apr. 25, 2000, see section 21

of Pub. L. 106-185, set out as an Effective Date of 2000 Amendment

note under section 1324 of Title 8, Aliens and Nationality.

-FOOTNOTE-

(!1) So in original. Probably should be preceded by "a".

(!2) So in original. The words "of the proceedings" probably

should not appear.

-End-