Legislación
US (United States) Code. Title 18. Chapter 46: Forfeiture
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18 USC CHAPTER 46 - FORFEITURE 01/06/03
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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 46 - FORFEITURE
.
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CHAPTER 46 - FORFEITURE
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Sec.
981. Civil forfeiture.
982. Criminal forfeiture.
983. General rules for civil forfeiture proceedings.
984. Civil forfeiture of fungible property.
985. Civil forfeiture of real property.
986. Subpoenas for bank records.
AMENDMENTS
2000 - Pub. L. 106-185, Sec. 2(b), 7(b), Apr. 25, 2000, 114 Stat.
210, 215, added items 983 and 985.
1992 - Pub. L. 102-550, title XV, Sec. 1522(b), 1523(b), Oct. 28,
1992, 106 Stat. 4063, 4064, added items 984 and 986.
1988 - Pub. L. 100-690, title VII, Sec. 7069, Nov. 18, 1988, 102
Stat. 4405, substituted ''forfeiture'' for ''Forfeiture'' in items
981 and 982.
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CHAPTER REFERRED TO IN OTHER SECTIONS
This chapter is referred to in sections 1594, 3663 of this title;
title 8 section 1324; title 31 section 5352.
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18 USC Sec. 981 01/06/03
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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 46 - FORFEITURE
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Sec. 981. Civil forfeiture
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(a)(1) The following property is subject to forfeiture to the
United States:
(A) Any property, real or personal, involved in a transaction
or attempted transaction in violation of section 1956, 1957 or
1960 of this title, or any property traceable to such property.
(B) Any property, real or personal, within the jurisdiction of
the United States, constituting, derived from, or traceable to,
any proceeds obtained directly or indirectly from an offense
against a foreign nation, or any property used to facilitate such
an offense, if the offense -
(i) involves the manufacture, importation, sale, or
distribution of a controlled substance (as that term is defined
for purposes of the Controlled Substances Act), or any other
conduct described in section 1956(c)(7)(B);
(ii) would be punishable within the jurisdiction of the
foreign nation by death or imprisonment for a term exceeding 1
year; and
(iii) would be punishable under the laws of the United States
by imprisonment for a term exceeding 1 year, if the act or
activity constituting the offense had occurred within the
jurisdiction of the United States.
(C) Any property, real or personal, which constitutes or is
derived from proceeds traceable to a violation of section 215,
471, 472, 473, 474, 476, 477, 478, 479, 480, 481, 485, 486, 487,
488, 501, 502, 510, 542, 545, 656, 657, 842, 844, 1005, 1006,
1007, 1014, 1028, 1029, 1030, 1032, or 1344 of this title or any
offense constituting ''specified unlawful activity'' (as defined
in section 1956(c)(7) of this title), or a conspiracy to commit
such offense.
(D) Any property, real or personal, which represents or is
traceable to the gross receipts obtained, directly or indirectly,
from a violation of -
(i) section 666(a)(1) (relating to Federal program fraud);
(ii) section 1001 (relating to fraud and false statements);
(iii) section 1031 (relating to major fraud against the
United States);
(iv) section 1032 (relating to concealment of assets from
conservator or receiver of insured financial institution);
(v) section 1341 (relating to mail fraud); or
(vi) section 1343 (relating to wire fraud),
if such violation relates to the sale of assets acquired or held
by the Resolution Trust Corporation, the Federal Deposit
Insurance Corporation, as conservator or receiver for a financial
institution, or any other conservator for a financial institution
appointed by the Office of the Comptroller of the Currency or the
Office of Thrift Supervision or the National Credit Union
Administration, as conservator or liquidating agent for a
financial institution.
(E) With respect to an offense listed in subsection (a)(1)(D)
committed for the purpose of executing or attempting to execute
any scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent statements, pretenses,
representations or promises, the gross receipts of such an
offense shall include all property, real or personal, tangible or
intangible, which thereby is obtained, directly or indirectly.
(F) Any property, real or personal, which represents or is
traceable to the gross proceeds obtained, directly or indirectly,
from a violation of -
(i) section 511 (altering or removing motor vehicle
identification numbers);
(ii) section 553 (importing or exporting stolen motor
vehicles);
(iii) section 2119 (armed robbery of automobiles);
(iv) section 2312 (transporting stolen motor vehicles in
interstate commerce); or
(v) section 2313 (possessing or selling a stolen motor
vehicle that has moved in interstate commerce).
(G) All assets, foreign or domestic -
(i) of any individual, entity, or organization engaged in
planning or perpetrating any act of domestic or international
terrorism (as defined in section 2331) against the United
States, citizens or residents of the United States, or their
property, and all assets, foreign or domestic, affording any
person a source of influence over any such entity or
organization;
(ii) acquired or maintained by any person with the intent and
for the purpose of supporting, planning, conducting, or
concealing an act of domestic or international terrorism (as
defined in section 2331) against the United States, citizens or
residents of the United States, or their property; or
(iii) derived from, involved in, or used or intended to be
used to commit any act of domestic or international terrorism
(as defined in section 2331) against the United States,
citizens or residents of the United States, or their property.
(H) Any property, real or personal, involved in a violation or
attempted violation, or which constitutes or is derived from
proceeds traceable to a violation, of section 2339C of this
title.
(2) For purposes of paragraph (1), the term ''proceeds'' is
defined as follows:
(A) In cases involving illegal goods, illegal services,
unlawful 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
transactions 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.
(b)(1) Except as provided in section 985, any property subject to
forfeiture to the United States under subsection (a) may be seized
by the Attorney General and, in the case of property involved in a
violation investigated by the Secretary of the Treasury or the
United States Postal Service, the property may also be seized by
the Secretary of the Treasury or the Postal Service, respectively.
(2) Seizures pursuant to this section shall be made pursuant to a
warrant obtained in the same manner as provided for a search
warrant under the Federal Rules of Criminal Procedure, except that
a seizure may be made without a warrant if -
(A) a complaint for forfeiture has been filed in the United
States district court and the court issued an arrest warrant in
rem pursuant to the Supplemental Rules for Certain Admiralty and
Maritime Claims;
(B) there is probable cause to believe that the property is
subject to forfeiture and -
(i) the seizure is made pursuant to a lawful arrest or
search; or
(ii) another exception to the Fourth Amendment warrant
requirement would apply; or
(C) the property was lawfully seized by a State or local law
enforcement agency and transferred to a Federal agency.
(3) Notwithstanding the provisions of rule 41(a) of the Federal
Rules of Criminal Procedure, a seizure warrant may be issued
pursuant to this subsection by a judicial officer in any district
in which a forfeiture action against the property may be filed
under section 1355(b) of title 28, and may be executed in any
district in which the property is found, or transmitted to the
central authority of any foreign state for service in accordance
with any treaty or other international agreement. Any motion for
the return of property seized under this section shall be 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.
(4)(A) If any person is arrested or charged in a foreign country
in connection with an offense that would give rise to the
forfeiture of property in the United States under this section or
under the Controlled Substances Act, the Attorney General may apply
to any Federal judge or magistrate judge in the district in which
the property is located for an ex parte order restraining the
property subject to forfeiture for not more than 30 days, except
that the time may be extended for good cause shown at a hearing
conducted in the manner provided in rule 43(e) of the Federal Rules
of Civil Procedure.
(B) The application for the restraining order shall set forth the
nature and circumstances of the foreign charges and the basis for
belief that the person arrested or charged has property in the
United States that would be subject to forfeiture, and shall
contain a statement that the restraining order is needed to
preserve the availability of property for such time as is necessary
to receive evidence from the foreign country or elsewhere in
support of probable cause for the seizure of the property under
this subsection.
(c) Property taken or detained under this section shall not be
repleviable, but shall be deemed to be in the custody of the
Attorney General, the Secretary of the Treasury, or the Postal
Service, as the case may be, subject only to the orders and decrees
of the court or the official having jurisdiction thereof. Whenever
property is seized under this subsection, the Attorney General, the
Secretary of the Treasury, or the Postal Service, as the case may
be, may -
(1) place the property under seal;
(2) remove the property to a place designated by him; or
(3) require that the General Services Administration take
custody of the property and remove it, if practicable, to an
appropriate location for disposition in accordance with law.
(d) For purposes of this section, the provisions of the customs
laws relating to the seizure, summary and judicial forfeiture,
condemnation of property for violation of the customs laws, the
disposition of such property or the proceeds from the sale of such
property under this section, the remission or mitigation of such
forfeitures, and the compromise of claims (19 U.S.C. 1602 et seq.),
insofar as they are applicable and not inconsistent with the
provisions of this section, shall apply to seizures and forfeitures
incurred, or alleged to have been incurred, under this section,
except that such duties as are imposed upon the customs officer or
any other person with respect to the seizure and forfeiture of
property under the customs laws shall be performed with respect to
seizures and forfeitures of property under this section by such
officers, agents, or other persons as may be authorized or
designated for that purpose by the Attorney General, the Secretary
of the Treasury, or the Postal Service, as the case may be. The
Attorney General shall have sole responsibility for disposing of
petitions for remission or mitigation with respect to property
involved in a judicial forfeiture proceeding.
(e) Notwithstanding any other provision of the law, except
section 3 of the Anti Drug Abuse Act of 1986, the Attorney General,
the Secretary of the Treasury, or the Postal Service, as the case
may be, is authorized to retain property forfeited pursuant to this
section, or to transfer such property on such terms and conditions
as he may determine -
(1) to any other Federal agency;
(2) to any State or local law enforcement agency which
participated directly in any of the acts which led to the seizure
or forfeiture of the property;
(3) in the case of property referred to in subsection
(a)(1)(C), to any Federal financial institution regulatory agency
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(A) to reimburse the agency for payments to claimants or
creditors of the institution; and
(B) to reimburse the insurance fund of the agency for losses
suffered by the fund as a result of the receivership or
liquidation;
(4) in the case of property referred to in subsection
(a)(1)(C), upon the order of the appropriate Federal financial
institution regulatory agency, to the financial institution as
restitution, with the value of the property so transferred to be
set off against any amount later recovered by the financial
institution as compensatory damages in any State or Federal
proceeding;
(5) in the case of property referred to in subsection
(a)(1)(C), to any Federal financial institution regulatory
agency, to the extent of the agency's contribution of resources
to, or expenses involved in, the seizure and forfeiture, and the
investigation leading directly to the seizure and forfeiture, of
such property;
(6) as restoration to any victim of the offense giving rise to
the forfeiture, including, in the case of a money laundering
offense, any offense constituting the underlying specified
unlawful activity; or
(7) In (FOOTNOTE 1) the case of property referred to in
subsection (a)(1)(D), to the Resolution Trust Corporation, the
Federal Deposit Insurance Corporation, or any other Federal
financial institution regulatory agency (as defined in section
8(e)(7)(D) of the Federal Deposit Insurance Act).
(FOOTNOTE 1) So in original. Probably should not be
capitalized.
The Attorney General, the Secretary of the Treasury, or the Postal
Service, as the case may be, shall ensure the equitable transfer
pursuant to paragraph (2) of any forfeited property to the
appropriate State or local law enforcement agency so as to reflect
generally the contribution of any such agency participating
directly in any of the acts which led to the seizure or forfeiture
of such property. A decision by the Attorney General, the
Secretary of the Treasury, or the Postal Service pursuant to
paragraph (2) shall not be subject to review. The United States
shall not be liable in any action arising out of the use of any
property the custody of which was transferred pursuant to this
section to any non-Federal agency. The Attorney General, the
Secretary of the Treasury, or the Postal Service may order the
discontinuance of any forfeiture proceedings under this section in
favor of the institution of forfeiture proceedings by State or
local authorities under an appropriate State or local statute.
After the filing of a complaint for forfeiture under this section,
the Attorney General may seek dismissal of the complaint in favor
of forfeiture proceedings under State or local law. Whenever
forfeiture proceedings are discontinued by the United States in
favor of State or local proceedings, the United States may transfer
custody and possession of the seized property to the appropriate
State or local official immediately upon the initiation of the
proper actions by such officials. Whenever forfeiture proceedings
are discontinued by the United States in favor of State or local
proceedings, notice shall be sent to all known interested parties
advising them of the discontinuance or dismissal. The United
States shall not be liable in any action arising out of the
seizure, detention, and transfer of seized property to State or
local officials. The United States shall not be liable in any
action arising out of a transfer under paragraph (3), (4), or (5)
of this subsection.
(f) All right, title, and interest in property described in
subsection (a) of this section shall vest in the United States upon
commission of the act giving rise to forfeiture under this section.
(g)(1) Upon the motion of the United States, the court shall stay
the civil forfeiture proceeding if the court determines that civil
discovery will adversely affect the ability of the Government to
conduct a related criminal investigation or the prosecution of a
related criminal case.
(2) Upon the motion of a claimant, the court shall stay the civil
forfeiture proceeding with respect to that claimant if the court
determines that -
(A) the claimant is the subject of a related criminal
investigation or case;
(B) the claimant has standing to assert a claim in the civil
forfeiture proceeding; and
(C) continuation of the forfeiture proceeding will burden the
right of the claimant against self-incrimination in the related
investigation or case.
(3) With respect to the impact of civil discovery described in
paragraphs (1) and (2), the court may determine that a stay is
unnecessary if a protective order limiting discovery would protect
the interest of one party without unfairly limiting the ability of
the opposing party to pursue the civil case. In no case, however,
shall the court impose a protective order as an alternative to a
stay if the effect of such protective order would be to allow one
party to pursue discovery while the other party is substantially
unable to do so.
(4) In this subsection, the terms ''related criminal case'' and
''related criminal investigation'' mean an actual prosecution or
investigation in progress at the time at which the request for the
stay, or any subsequent motion to lift the stay is made. In
determining whether a criminal case or investigation is ''related''
to a civil forfeiture proceeding, the court shall consider the
degree of similarity between the parties, witnesses, facts, and
circumstances involved in the two proceedings, without requiring an
identity with respect to any one or more factors.
(5) In requesting a stay under paragraph (1), 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.
(6) Whenever a civil forfeiture proceeding is stayed pursuant to
this subsection, the court shall enter any order necessary to
preserve the value of the property or to protect the rights of
lienholders or other persons with an interest in the property while
the stay is in effect.
(7) A determination by the court that the claimant has standing
to request a stay pursuant to paragraph (2) shall apply only to
this subsection and shall not preclude the Government from
objecting to the standing of the claimant by dispositive motion or
at the time of trial.
(h) In addition to the venue provided for in section 1395 of
title 28 or any other provision of law, in the case of property of
a defendant charged with a violation that is the basis for
forfeiture of the property under this section, a proceeding for
forfeiture under this section may be brought in the judicial
district in which the defendant owning such property is found or in
the judicial district in which the criminal prosecution is brought.
(i)(1) Whenever property is civilly or criminally forfeited under
this chapter, the Attorney General or the Secretary of the
Treasury, as the case may be, may transfer the forfeited personal
property or the proceeds of the sale of any forfeited personal or
real property to any foreign country which participated directly or
indirectly in the seizure or forfeiture of the property, if such a
transfer -
(A) has been agreed to by the Secretary of State;
(B) is authorized in an international agreement between the
United States and the foreign country; and
(C) is made to a country which, if applicable, has been
certified under section 481(h) (FOOTNOTE 2) of the Foreign
Assistance Act of 1961.
(FOOTNOTE 2) See References in Text below.
A decision by the Attorney General or the Secretary of the Treasury
pursuant to this paragraph shall not be subject to review. The
foreign country shall, in the event of a transfer of property or
proceeds of sale of property under this subsection, bear all
expenses incurred by the United States in the seizure, maintenance,
inventory, storage, forfeiture, and disposition of the property,
and all transfer costs. The payment of all such expenses, and the
transfer of assets pursuant to this paragraph, shall be upon such
terms and conditions as the Attorney General or the Secretary of
the Treasury may, in his discretion, set.
(2) The provisions of this section shall not be construed as
limiting or superseding any other authority of the United States to
provide assistance to a foreign country in obtaining property
related to a crime committed in the foreign country, including
property which is sought as evidence of a crime committed in the
foreign country.
(3) A certified order or judgment of forfeiture by a court of
competent jurisdiction of a foreign country concerning property
which is the subject of forfeiture under this section and was
determined by such court to be the type of property described in
subsection (a)(1)(B) of this section, and any certified recordings
or transcripts of testimony taken in a foreign judicial proceeding
concerning such order or judgment of forfeiture, shall be
admissible in evidence in a proceeding brought pursuant to this
section. Such certified order or judgment of forfeiture, when
admitted into evidence, shall constitute probable cause that the
property forfeited by such order or judgment of forfeiture is
subject to forfeiture under this section and creates a rebuttable
presumption of the forfeitability of such property under this
section.
(4) A certified order or judgment of conviction by a court of
competent jurisdiction of a foreign country concerning an unlawful
drug activity which gives rise to forfeiture under this section and
any certified recordings or transcripts of testimony taken in a
foreign judicial proceeding concerning such order or judgment of
conviction shall be admissible in evidence in a proceeding brought
pursuant to this section. Such certified order or judgment of
conviction, when admitted into evidence, creates a rebuttable
presumption that the unlawful drug activity giving rise to
forfeiture under this section has occurred.
(5) The provisions of paragraphs (3) and (4) of this subsection
shall not be construed as limiting the admissibility of any
evidence otherwise admissible, nor shall they limit the ability of
the United States to establish probable cause that property is
subject to forfeiture by any evidence otherwise admissible.
(j) For purposes of this section -
(1) the term ''Attorney General'' means the Attorney General or
his delegate; and
(2) the term ''Secretary of the Treasury'' means the Secretary
of the Treasury or his delegate.
(k) Interbank Accounts. -
(1) In general. -
(A) In general. - For the purpose of a forfeiture under this
section or under the Controlled Substances Act (21 U.S.C. 801
et seq.), if funds are deposited into an account at a foreign
bank, and that foreign bank has an interbank account in the
United States with a covered financial institution (as defined
in section 5318(j)(1) of title 31), the funds shall be deemed
to have been deposited into the interbank account in the United
States, and any restraining order, seizure warrant, or arrest
warrant in rem regarding the funds may be served on the covered
financial institution, and funds in the interbank account, up
to the value of the funds deposited into the account at the
foreign bank, may be restrained, seized, or arrested.
(B) Authority to suspend. - The Attorney General, in
consultation with the Secretary of the Treasury, may suspend or
terminate a forfeiture under this section if the Attorney
General determines that a conflict of law exists between the
laws of the jurisdiction in which the foreign bank is located
and the laws of the United States with respect to liabilities
arising from the restraint, seizure, or arrest of such funds,
and that such suspension or termination would be in the
interest of justice and would not harm the national interests
of the United States.
(2) No requirement for government to trace funds. - If a
forfeiture action is brought against funds that are restrained,
seized, or arrested under paragraph (1), it shall not be
necessary for the Government to establish that the funds are
directly traceable to the funds that were deposited into the
foreign bank, nor shall it be necessary for the Government to
rely on the application of section 984.
(3) Claims brought by owner of the funds. - If a forfeiture
action is instituted against funds restrained, seized, or
arrested under paragraph (1), the owner of the funds deposited
into the account at the foreign bank may contest the forfeiture
by filing a claim under section 983.
(4) Definitions. - For purposes of this subsection, the
following definitions shall apply:
(A) Interbank account. - The term ''interbank account'' has
the same meaning as in section 984(c)(2)(B).
(B) Owner. -
(i) In general. - Except as provided in clause (ii), the
term ''owner'' -
(I) means the person who was the owner, as that term is
defined in section 983(d)(6), of the funds that were
deposited into the foreign bank at the time such funds were
deposited; and
(II) does not include either the foreign bank or any
financial institution acting as an intermediary in the
transfer of the funds into the interbank account.
(ii) Exception. - The foreign bank may be considered the
''owner'' of the funds (and no other person shall qualify as
the owner of such funds) only if -
(I) the basis for the forfeiture action is wrongdoing
committed by the foreign bank; or
(II) the foreign bank establishes, by a preponderance of
the evidence, that prior to the restraint, seizure, or
arrest of the funds, the foreign bank had discharged all or
part of its obligation to the prior owner of the funds, in
which case the foreign bank shall be deemed the owner of
the funds to the extent of such discharged obligation.
-SOURCE-
(Added Pub. L. 99-570, title I, Sec. 1366(a), Oct. 27, 1986, 100
Stat. 3207-35; amended Pub. L. 100-690, title VI, Sec. 6463(a),
(b), 6469(b), 6470(b), (e), (f), 6471(c), Nov. 18, 1988, 102 Stat.
4374, 4377, 4378; Pub. L. 101-73, title IX, Sec. 963(a), (b), Aug.
9, 1989, 103 Stat. 504; Pub. L. 101-647, title I, Sec. 103, title
XXV, Sec. 2508, 2524, 2525(a), title XXXV, Sec. 3531, Nov. 29,
1990, 104 Stat. 4791, 4862, 4873, 4874, 4924; Pub. L. 102-393,
title VI, Sec. 638(d), Oct. 6, 1992, 106 Stat. 1788; Pub. L.
102-519, title I, Sec. 104(a), Oct. 25, 1992, 106 Stat. 3385; Pub.
L. 102-550, title XV, Sec. 1525(c)(1), 1533, Oct. 28, 1992, 106
Stat. 4065, 4066; Pub. L. 103-322, title XXXIII, Sec. 330011(s)(2),
Sept. 13, 1994, 108 Stat. 2146; Pub. L. 103-447, title I, Sec.
102(b), Nov. 2, 1994, 108 Stat. 4693; Pub. L. 106-185, Sec.
2(c)(1), 5(a), 6, 8(a), 20, Apr. 25, 2000, 114 Stat. 210, 213-215,
224; Pub. L. 107-56, title III, Sec. 319(a), 320, 372(b)(1),
373(b), title VIII, Sec. 806, Oct. 26, 2001, 115 Stat. 311, 315,
339, 340, 378; Pub. L. 107-197, title III, Sec. 301(d), June 25,
2002, 116 Stat. 728; Pub. L. 107-273, div. B, title IV, Sec.
4002(a)(2), Nov. 2, 2002, 116 Stat. 1806.)
-REFTEXT-
REFERENCES IN TEXT
The Controlled Substances Act, referred to in subsecs.
(a)(1)(B)(i), (b)(4)(A), and (k)(1)(A), is title II of Pub. L.
91-513, Oct. 27, 1970, 84 Stat. 1242, as amended, which is
classified principally to subchapter I (Sec. 801 et seq.) of
chapter 13 of Title 21, Food and Drugs. For complete classification
of this Act to the Code, see Short Title note set out under section
801 of Title 21 and Tables.
The Federal Rules of Criminal Procedure, referred to in subsec.
(b)(2), (3), are set out in the Appendix to this title.
The Supplemental Rules for Certain Admiralty and Maritime Claims,
referred to in subsec. (b)(2)(A), are set out as part of the
Federal Rules of Civil Procedure in the Appendix to Title 28,
Judiciary and Judicial Procedure.
The Federal Rules of Civil Procedure, referred to in subsec.
(b)(4)(A), are set out in the Appendix to Title 28, Judiciary and
Judicial Procedure.
The customs laws, referred to in subsec. (d), are classified
generally to Title 19, Customs Duties. See, particularly, sections
1902 to 1919 of Title 19.
Section 3 of the Anti Drug Abuse Act of 1986, referred to in
subsec. (e), is section 3 of Pub. L. 99-570, which is set out as a
note under section 801 of Title 21, Food and Drugs.
Section 8(e)(7)(D) of the Federal Deposit Insurance Act, referred
to in subsec. (e)(7), is classified to section 1818(e)(7)(D) of
Title 12, Banks and Banking.
Section 481(h) of the Foreign Assistance Act of 1961, referred to
in subsec. (i)(1)(C), was classified to section 2291(h) of Title
22, Foreign Relations and Intercourse, prior to repeal of subsec.
(h) by Pub. L. 102-583, Sec. 6(b)(2), Nov. 2, 1992, 106 Stat. 4932.
Reference to section 481(h) of the Foreign Assistance Act of 1961
probably should be to section 490(a)(1) of the Act, which is
classified to section 2291j(a)(1) of Title 22.
-MISC2-
AMENDMENTS
2002 - Subsec. (a)(1)(H). Pub. L. 107-197 added subpar. (H).
Subsec. (d). Pub. L. 107-273 substituted ''proceeds from the sale
of such property under this section'' for ''proceeds from the sale
of this section''.
2001 - Subsec. (a)(1)(A). Pub. L. 107-56, Sec. 372(b)(1), 373(b),
struck out ''of section 5313(a) or 5324(a) of title 31, or'' after
''transaction or attempted transaction in violation'', substituted
'', 1957 or 1960'' for ''or 1957'', and struck out at end
''However, no property shall be seized or forfeited in the case of
a violation of section 5313(a) of title 31 by a domestic financial
institution examined by a Federal bank supervisory agency or a
financial institution regulated by the Securities and Exchange
Commission or a partner, director, or employee thereof.''
Subsec. (a)(1)(B). Pub. L. 107-56, Sec. 320, amended subpar. (B)
generally. Prior to amendment, subpar. (B) read as follows: ''Any
property, real or personal, within the jurisdiction of the United
States, constituting, derived from, or traceable to, any proceeds
obtained directly or indirectly from an offense against a foreign
nation involving the manufacture, importation, sale, or
distribution of a controlled substance (as such term is defined for
the purposes of the Controlled Substances Act), within whose
jurisdiction such offense would be punishable by death or
imprisonment for a term exceeding one year and which would be
punishable under the laws of the United States by imprisonment for
a term exceeding one year if such act or activity constituting the
offense against the foreign nation had occurred within the
jurisdiction of the United States.''
Subsec. (a)(1)(G). Pub. L. 107-56, Sec. 806, added subpar. (G).
Subsec. (k). Pub. L. 107-56, Sec. 319(a), added subsec. (k).
2000 - Subsec. (a)(1). Pub. L. 106-185, Sec. 2(c)(1)(A),
substituted ''The'' for ''Except as provided in paragraph (2),
the'' in introductory provisions.
Subsec. (a)(1)(C). Pub. L. 106-185, Sec. 20(a), substituted ''or
any offense constituting 'specified unlawful activity' (as defined
in section 1956(c)(7) of this title), or a conspiracy to commit
such offense.'' for ''or a violation of section 1341 or 1343 of
such title affecting a financial institution.''
Subsec. (a)(2). Pub. L. 106-185, Sec. 2(c)(1)(B), 20(b), added
par. (2) and struck out former par. (2) which read as follows: ''No
property shall be forfeited under this section to the extent of the
interest of an owner or lienholder by reason of any act or omission
established by that owner or lienholder to have been committed
without the knowledge of that owner or lienholder.''
Subsec. (b). Pub. L. 106-185, Sec. 5(a), amended subsec. (b)
generally. Prior to amendment, subsec. (b) read as follows:
''(b)(1) Any property -
''(A) subject to forfeiture to the United States under
subparagraph (A) or (B) of subsection (a)(1) of this section -
''(i) may be seized by the Attorney General; or
''(ii) in the case of property involved in a violation of
section 5313(a) or 5324 of title 31, United States Code, or
section 1956 or 1957 of this title investigated by the
Secretary of the Treasury or the United States Postal Service,
may be seized by the Secretary of the Treasury or the Postal
Service; and
''(B) subject to forfeiture to the United States under
subparagraph (C) of subsection (a)(1) of this section may be
seized by the Attorney General, the Secretary of the Treasury, or
the Postal Service.
''(2) Property shall be seized under paragraph (1) of this
subsection upon process issued pursuant to the Supplemental Rules
for certain Admiralty and Maritime Claims by any district court of
the United States having jurisdiction over the property, except
that seizure without such process may be made when -
''(A) the seizure is pursuant to a lawful arrest or search; or
''(B) the Attorney General, the Secretary of the Treasury, or
the Postal Service, as the case may be, has obtained a warrant
for such seizure pursuant to the Federal Rules of Criminal
Procedure, in which event proceedings under subsection (d) of
this section shall be instituted promptly.''
Subsec. (e)(6). Pub. L. 106-185, Sec. 6, added par. (6) and
struck out former par. (6) which read as follows: ''in the case of
property referred to in subsection (a)(1)(C), restore forfeited
property to any victim of an offense described in subsection
(a)(1)(C); or''.
Subsec. (g). Pub. L. 106-185, Sec. 8(a), amended subsec. (g)
generally. Prior to amendment, subsec. (g) read as follows: ''The
filing of an indictment or information alleging a violation of law,
Federal, State, or local, which is also related to a forfeiture
proceeding under this section shall, upon motion of the United
States and for good cause shown, stay the forfeiture proceeding.''
1994 - Subsec. (e)(7). Pub. L. 103-322, Sec. 330011(s)(2),
amended directory language of Pub. L. 101-647, Sec. 2525(a)(2). See
1990 Amendment note below.
Subsec. (i)(1)(C). Pub. L. 103-447, which directed substitution
of ''section 490(a)(1) of the Foreign Assistance Act of 1961'' for
''paragraph (1)(A) of section 481(h) of the Foreign Assistance Act
of 1961'', could not be executed because the words ''paragraph
(1)(A) of'' do not appear in text.
1992 - Subsec. (a)(1)(A). Pub. L. 102-550, Sec. 1525(c)(1),
substituted ''5324(a)'' for ''5324''.
Subsec. (a)(1)(C). Pub. L. 102-393 inserted provisions relating
to sections 471, 472, 473, 474, 476, 477, 478, 479, 480, 481, 485,
486, 487, 488, 501, 502, 510, 542, 545, 842, 844, 1028, 1029, and
1030 of this title.
Subsec. (a)(1)(F). Pub. L. 102-519 added subpar. (F).
Subsec. (e). Pub. L. 102-550, Sec. 1533, struck out penultimate
sentence of concluding provisions which read as follows: ''The
authority granted to the Secretary of the Treasury and the Postal
Service pursuant to this subsection shall apply only to property
that has been administratively forfeited.''
1990 - Subsec. (a)(1)(C). Pub. L. 101-647, Sec. 2524(1), inserted
''1032,'' after ''1014,'' and ''or a violation of section 1341 or
1343 of such title affecting a financial institution'' before
period at end.
Subsec. (a)(1)(D), (E). Pub. L. 101-647, Sec. 2525(a)(1), added
subpars. (D) and (E).
Subsec. (b). Pub. L. 101-647, Sec. 2524(2), added par. (1) and
par. (2) introductory provisions, redesignated former pars. (1) and
(2) as subpars. (A) and (B) of par. (2), and struck out former
introductory provisions which read as follows: ''Any property
subject to forfeiture to the United States under subsection
(a)(1)(A) or (a)(1)(B) of this section may be seized by the
Attorney General or, with respect to property involved in a
violation of section 5313(a) or 5324 of title 31 or of section 1956
or 1957 of this title investigated by the Secretary of the Treasury
or the Postal Service may be seized by the Secretary of the
Treasury or the Postal Service, in each case upon process issued
pursuant to the Supplemental Rules for certain Admiralty and
Maritime Claims by any district court of the United States having
jurisdiction over the property, except that seizure without such
process may be made when - ''.
Subsec. (d). Pub. L. 101-647, Sec. 3531, inserted a period at
end.
Subsec. (e)(3), (4). Pub. L. 101-647, Sec. 2524(3), (4), struck
out ''(if the affected financial institution is in receivership or
liquidation)'' after ''subsection (a)(1)(C)''.
Subsec. (e)(6). Pub. L. 101-647, Sec. 2508, added par. (6).
Subsec. (e)(7). Pub. L. 101-647, Sec. 2525(a)(2), as amended by
Pub. L. 103-322, Sec. 330011(s)(2), added par. (7).
Subsec. (i). Pub. L. 101-647, Sec. 103(1), struck out
introductory provisions which read as follows: ''In the case of
property subject to forfeiture under subsection (a)(1)(B), the
following additional provisions shall, to the extent provided by
treaty, apply:''.
Subsec. (i)(1). Pub. L. 101-647, Sec. 103(3), substituted first
sentence for ''Notwithstanding any other provision of law, except
section 3 of the Anti Drug Abuse Act of 1986, whenever property is
civilly or criminally forfeited under the Controlled Substances
Act, the Attorney General may, with the concurrence of the
Secretary of State, equitably transfer any conveyance, currency,
and any other type of personal property which the Attorney General
may designate by regulation for equitable transfer, or any amounts
realized by the United States from the sale of any real or personal
property forfeited under the Controlled Substances Act to an
appropriate foreign country to reflect generally the contribution
of any such foreign country participating directly or indirectly in
any acts which led to the seizure or forfeiture of such property.
Such property when forfeited pursuant to subsection (a)(1)(B) of
this section may also be transferred to a foreign country pursuant
to a treaty providing for the transfer of forfeited property to
such foreign country.''
Pub. L. 101-647, Sec. 103(2), (4), (5), inserted ''or the
Secretary of the Treasury'' after ''Attorney General'' in two
places, realigned margin, and struck out at end ''Transfers may be
made under this subsection during a fiscal year to a country that
is subject to paragraph (1)(A) of section 481(h) of the Foreign
Assistance Act of 1961 (relating to restrictions on United States
assistance) only if there is a certification in effect with respect
to that country for that fiscal year under paragraph (2) of that
section.''
Subsec. (i)(2) to (5). Pub. L. 101-647, Sec. 103(2), realigned
margins.
1989 - Subsec. (a)(1)(C). Pub. L. 101-73, Sec. 963(a), added
subpar. (C).
Subsec. (e). Pub. L. 101-73, Sec. 963(b), substituted ''determine
- '' for ''determine to - '' in introductory provisions, inserted
''The United States shall not be liable in any action arising out
of a transfer under paragraph (3), (4), or (5) of this
subsection.'' in closing provisions, added pars. (1) to (5), and
struck out former pars. (1) and (2) which read as follows:
''(1) any other Federal agency; or
''(2) any State or local law enforcement agency which
participated directly in any of the acts which led to the seizure
or forfeiture of the property.''
1988 - Subsec. (a)(1)(A). Pub. L. 100-690, Sec. 6463(a)(1), added
subpar. (A) and struck out former subpar. (A) which read as
follows: ''Any property, real or personal, which represents the
gross receipts a person obtains, directly or indirectly, as a
result of a violation of section 1956 or 1957 of this title, or
which is traceable to such gross receipts.''
Subsec. (a)(1)(B). Pub. L. 100-690, Sec. 6470(b), inserted '',
real or personal,'' after ''property'', substituted ''constituting,
derived from, or traceable to, any proceeds obtained directly or
indirectly from'' for ''which represents the proceeds of'', ''such
offense would'' for ''such offense or activity would'', and
''punishable under the laws of the United States by imprisonment''
for ''punishable by imprisonment'', and inserted ''constituting the
offense against the foreign nation'' after ''such act or
activity''.
Subsec. (a)(1)(C). Pub. L. 100-690, Sec. 6463(a)(2), struck out
subpar. (C) which read as follows: ''Any coin and currency (or
other monetary instrument as the Secretary of the Treasury may
prescribe) or any interest in other property, including any deposit
in a financial institution, traceable to such coin or currency
involved in a transaction or attempted transaction in violation of
section 5313(a) or 5324 of title 31 may be seized and forfeited to
the United States Government. No property or interest in property
shall be seized or forfeited if the violation is by a domestic
financial institution examined by a Federal bank supervisory agency
or a financial institution regulated by the Securities and Exchange
Commission or a partner, director, officer, or employee thereof.''
Subsec. (a)(2). Pub. L. 100-690, Sec. 6470(e), substituted
''omission'' for ''emission''.
Subsec. (b). Pub. L. 100-690, Sec. 6463(b), which directed
amendment of subsec. (b) by substituting ''involved in a violation
of section 5313(a) or 5324 of title 31 or of section 1956 or 1957
of this title investigated by the Secretary of the Treasury'' for
''involved in a violation of section 1956 or 1957 of this title
investigated by the Secretary of the Treasury, and any property
subject to forfeiture under subsection (a)(1)(C) of this section''
was executed by substituting the new language for ''involved in a
violation of section 1956 or 1957 of this title investigated by the
Secretary of the Treasury, may be seized by the Secretary of the
Treasury, and any property subject to forfeiture under subsection
(a)(1)(C) of this section'' in introductory provisions, to reflect
the probable intent of Congress.
Pub. L. 100-690, Sec. 6469(b)(1), inserted ''or the Postal
Service'' after ''Secretary of the Treasury'' in two places in
introductory provisions.
Subsec. (b)(2). Pub. L. 100-690, Sec. 6469(b)(2), substituted
''the Attorney General, the Secretary of the Treasury, or the
Postal Service'' for ''the Attorney General or the Secretary of the
Treasury''.
Subsec. (c). Pub. L. 100-690, Sec. 6469(b)(2), substituted ''the
Attorney General, the Secretary of the Treasury, or the Postal
Service'' for ''the Attorney General or the Secretary of the
Treasury'' in two places.
Subsec. (d). Pub. L. 100-690, Sec. 6469(b)(2), (3), substituted
''the Attorney General, the Secretary of the Treasury, or the
Postal Service'' for ''the Attorney General or the Secretary of the
Treasury'' and inserted provision that Attorney General have sole
responsibility for disposing of petitions for remission or
mitigation with respect to property involved in a judicial
forfeiture proceeding.
Subsec. (e). Pub. L. 100-690, Sec. 6469(b)(2), which directed the
substitution of ''the Attorney General, the Secretary of the
Treasury, or the Postal Service'' for ''the Attorney General or the
Secretary of the Treasury'' was executed to reflect the probable
intent of Congress by making the substitution in four places
without regard as to whether or not the initial article ''the'' was
capitalized.
Pub. L. 100-690, Sec. 6469(b)(4), inserted provision that the
authority granted to the Secretary of the Treasury and the Postal
Service apply only to property that has been administratively
forfeited.
Subsec. (g). Pub. L. 100-690, Sec. 6471(c), inserted '', Federal,
State or local,'' after ''law''.
Subsec. (i)(1). Pub. L. 100-690, Sec. 6470(f), substituted
''subsection'' for ''subchapter'' in fourth sentence.
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 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.
EFFECTIVE DATE OF 1994 AMENDMENT
Section 330011(s)(2) of Pub. L. 103-322 provided that the
amendment made by that section is effective as of the date on which
section 2525(a)(2) of Pub. L. 101-647 took effect.
SHORT TITLE OF 2000 AMENDMENT
Pub. L. 106-185, Sec. 1(a), Apr. 25, 2000, 114 Stat. 202,
provided that: ''This Act (enacting sections 983 and 985 of this
title and sections 2466 and 2467 of Title 28, Judiciary and
Judicial Procedure, amending this section, sections 982 to 984,
986, 2232, 2254, and 3322 of this title, section 1324 of Title 8,
Aliens and Nationality, section 1621 of Title 19, Customs Duties,
section 881 of Title 21, Food and Drugs, sections 524, 2461, 2465,
and 2680 of Title 28, and section 2996f of Title 42, The Public
Health and Welfare, repealing section 888 of Title 21, and enacting
provisions set out as notes under section 1324 of Title 8, section
2466 of Title 28, and section 3724 of Title 31, Money and Finance)
may be cited as the 'Civil Asset Forfeiture Reform Act of 2000'.''
SHORT TITLE OF 1988 AMENDMENT
Section 6181 of Pub. L. 100-690 provided that: ''This subtitle
(subtitle E (Sec. 6181-6187) of title VI of Pub. L. 100-690,
enacting sections 5325 and 5326 of Title 31, Money and Finance,
amending sections 1956 and 1957 of this title, sections 1730d,
1829b, 1953, 1955, 3403, 3412, 3413, 3417, and 3420 of Title 12,
Banks and Banking, and sections 5312, 5318, and 5321 of Title 31)
may be cited as the 'Money Laundering Prosecution Improvements Act
of 1988'.''
SHORT TITLE OF 1986 AMENDMENT
Section 1351 of Pub. L. 99-570 provided that: ''This subtitle
(subtitle H (Sec.1351-1367) of title I of Pub. L. 99-570, enacting
this section, sections 982, 1956, and 1957 of this title and
section 5324 of Title 31, Money and Finance, amending sections
1952, 1961, and 2516 of this title, sections 1464, 1730, 1786,
1817, 1818, 3403, and 3413 of Title 12, Banks and Banking, and
sections 5312, 5316 to 5318, 5321, and 5322 of Title 31, and
enacting provisions set out as notes under this section, sections
1464 and 1730 of Title 12, and sections 5315 to 5317, 5321, and
5324 of Title 31) may be cited as the 'Money Laundering Control Act
of 1986'.''
SEVERABILITY
Section 1367 of Pub. L. 99-570 provided that: ''If any provision
of this subtitle (see Short Title of 1986 Amendment note above) or
any amendment made by this Act (see Short Title of 1986 Amendment
note set out under section 801 of Title 21, Food and Drugs), or the
application thereof to any person or circumstances is held invalid,
the provisions of every other part, and their application, shall
not be affected thereby.''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1956 of this title; title
8 section 1324; title 12 sections 1831k, 3412; title 19 section
1613b; title 21 section 881; title 31 sections 5317, 5332, 9703.
-CITE-
18 USC Sec. 982 01/06/03
-EXPCITE-
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 46 - FORFEITURE
-HEAD-
Sec. 982. Criminal forfeiture
-STATUTE-
(a)(1) The court, in imposing sentence on a person convicted of
an offense in violation of section 1956, 1957, or 1960 of this
title, shall order that the person forfeit to the United States any
property, real or personal, involved in such offense, or any
property traceable to such property.
(2) The court, in imposing sentence on a person convicted of a
violation of, or a conspiracy to violate -
(A) section 215, 656, 657, 1005, 1006, 1007, 1014, 1341, 1343,
or 1344 of this title, affecting a financial institution, or
(B) section 471, 472, 473, 474, 476, 477, 478, 479, 480, 481,
485, 486, 487, 488, 501, 502, 510, 542, 545, 842, 844, 1028,
1029, or 1030 of this title,
shall order that the person forfeit to the United States any
property constituting, or derived from, proceeds the person
obtained directly or indirectly, as the result of such violation.
(3) The court, in imposing a sentence on a person convicted of an
offense under -
(A) section 666(a)(1) (relating to Federal program fraud);
(B) section 1001 (relating to fraud and false statements);
(C) section 1031 (relating to major fraud against the United
States);
(D) section 1032 (relating to concealment of assets from
conservator, receiver, or liquidating agent of insured financial
institution);
(E) section 1341 (relating to mail fraud); or
(F) section 1343 (relating to wire fraud),
involving the sale of assets acquired or held by the Resolution
Trust Corporation, the Federal Deposit Insurance Corporation, as
conservator or receiver for a financial institution or any other
conservator for a financial institution appointed by the Office of
the Comptroller of the Currency or the Office of Thrift
Supervision, or the National Credit Union Administration, as
conservator or liquidating agent for a financial institution, shall
order that the person forfeit to the United States any property,
real or personal, which represents or is traceable to the gross
receipts obtained, directly or indirectly, as a result of such
violation.
(4) With respect to an offense listed in subsection (a)(3)
committed for the purpose of executing or attempting to execute any
scheme or artifice to defraud, or for obtaining money or property
by means of false or fraudulent statements, pretenses,
representations, or promises, the gross receipts of such an offense
shall include any property, real or personal, tangible or
intangible, which is obtained, directly or indirectly, as a result
of such offense.
(5) The court, in imposing sentence on a person convicted of a
violation or conspiracy to violate -
(A) section 511 (altering or removing motor vehicle
identification numbers);
(B) section 553 (importing or exporting stolen motor vehicles);
(C) section 2119 (armed robbery of automobiles);
(D) section 2312 (transporting stolen motor vehicles in
interstate commerce); or
(E) section 2313 (possessing or selling a stolen motor vehicle
that has moved in interstate commerce);
shall order that the person forfeit to the United States any
property, real or personal, which represents or is traceable to the
gross proceeds obtained, directly or indirectly, as a result of
such violation.
(6)(A) The court, in imposing sentence on a person convicted of a
violation of, or conspiracy to violate, section 274(a), 274A(a)(1),
or 274A(a)(2) of the Immigration and Nationality Act or section
1425, 1426, 1427, 1541, 1542, 1543, 1544, or 1546 of this title, or
a violation of, or conspiracy to violate, section 1028 of this
title if committed in connection with passport or visa issuance or
use, shall order that the person forfeit to the United States,
regardless of any provision of State law -
(i) any conveyance, including any vessel, vehicle, or aircraft
used in the commission of the offense of which the person is
convicted; and
(ii) any property real or personal -
(I) that constitutes, or is derived from or is traceable to
the proceeds obtained directly or indirectly from the
commission of the offense of which the person is convicted; or
(II) that is used to facilitate, or is intended to be used to
facilitate, the commission of the offense of which the person
is convicted.
(B) The court, in imposing sentence on a person described in
subparagraph (A), shall order that the person forfeit to the United
States all property described in that subparagraph.
(7) The court, in imposing sentence on a person convicted of a
Federal health care offense, shall order the person to forfeit
property, real or personal, that constitutes or is derived,
directly or indirectly, from gross proceeds traceable to the
commission of the offense.
(8) The court, in sentencing a defendant convicted of an offense
under section 1028, 1029, 1341, 1342, 1343, or 1344, or of a
conspiracy to commit such an offense, if the offense involves
telemarketing (as that term is defined in section 2325), shall
order that the defendant forfeit to the United States any real or
personal property -
(A) used or intended to be used to commit, to facilitate, or to
promote the commission of such offense; and
(B) constituting, derived from, or traceable to the gross
proceeds that the defendant obtained directly or indirectly as a
result of the offense.
(b)(1) The forfeiture of property under this section, including
any seizure and disposition of the property and any related
judicial or administrative proceeding, shall be governed by the
provisions of section 413 (other than subsection (d) of that
section) of the Comprehensive Drug Abuse Prevention and Control Act
of 1970 (21 U.S.C. 853).
(2) The substitution of assets provisions of subsection 413(p)
shall not be used to order a defendant to forfeit assets in place
of the actual property laundered where such defendant acted merely
as an intermediary who handled but did not retain the property in
the course of the money laundering offense unless the defendant, in
committing the offense or offenses giving rise to the forfeiture,
conducted three or more separate transactions involving a total of
$100,000 or more in any twelve month period.
-SOURCE-
(Added Pub. L. 99-570, title I, Sec. 1366(a), Oct. 27, 1986, 100
Stat. 3207-39; amended Pub. L. 100-690, title VI, Sec. 6463(c),
6464, Nov. 18, 1988, 102 Stat. 4374, 4375; Pub. L. 101-73, title
IX, Sec. 963(c), Aug. 9, 1989, 103 Stat. 504; Pub. L. 101-647,
title XIV, Sec. 1401, 1403, title XXV, Sec. 2525(b), Nov. 29, 1990,
104 Stat. 4835, 4874; Pub. L. 102-393, title VI, Sec. 638(e), Oct.
6, 1992, 106 Stat. 1788; Pub. L. 102-519, title I, Sec. 104(b),
Oct. 25, 1992, 106 Stat. 3385; Pub. L. 102-550, title XV, Sec.
1512(c), Oct. 28, 1992, 106 Stat. 4058; Pub. L. 103-322, title
XXXIII, Sec. 330011(s)(1), Sept. 13, 1994, 108 Stat. 2145; Pub. L.
104-191, title II, Sec. 249(a), (b), Aug. 21, 1996, 110 Stat. 2020;
Pub. L. 104-208, div. C, title II, Sec. 217, Sept. 30, 1996, 110
Stat. 3009-573; Pub. L. 105-184, Sec. 2, June 23, 1998, 112 Stat.
520; Pub. L. 105-318, Sec. 6(a), Oct. 30, 1998, 112 Stat. 3010;
Pub. L. 106-185, Sec. 18(b), Apr. 25, 2000, 114 Stat. 223; Pub. L.
107-56, title III, Sec. 372(b)(2), Oct. 26, 2001, 115 Stat. 339;
Pub. L. 107-273, div. B, title IV, Sec. 4002(b)(10), Nov. 2, 2002,
116 Stat. 1808.)
-REFTEXT-
REFERENCES IN TEXT
Sections 274 and 274A of the Immigration and Nationality Act,
referred to in subsec. (a)(6)(A), are classified to sections 1324
and 1324a, respectively, of Title 8, Aliens and Nationality.
-MISC2-
AMENDMENTS
2002 - Subsec. (a)(8). Pub. L. 107-273 substituted ''court'' for
''Court''.
2001 - Subsec. (a)(1). Pub. L. 107-56 struck out ''of section
5313(a), 5316, or 5324 of title 31, or'' before ''of section 1956,
1957, or 1960 of this title'' and struck out at end ''However, no
property shall be seized or forfeited in the case of a violation of
section 5313(a) of title 31 by a domestic financial institution
examined by a Federal bank supervisory agency or a financial
institution regulated by the Securities and Exchange Commission or
a partner, director, or employee thereof.''
2000 - Subsec. (a)(6). Pub. L. 106-185, Sec. 18(b)(2), (3),
designated concluding provisions of subpar. (A) as subpar. (B),
substituted ''The court, in imposing sentence on a person described
in subparagraph (A)'' for ''The court, in imposing sentence on such
person'' and ''that subparagraph'' for ''this subparagraph'', and
struck out former subpar. (B), which read as follows: ''The
criminal forfeiture of property under subparagraph (A), including
any seizure and disposition of the property and any related
administrative or judicial proceeding, shall be governed by the
provisions of section 413 of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. 853), other than
subsections (a) and (d) of such section 413.''
Subsec. (a)(6)(A). Pub. L. 106-185, Sec. 18(b)(1)(A), inserted
''section 274(a), 274A(a)(1), or 274A(a)(2) of the Immigration and
Nationality Act or'' after ''a person convicted of a violation of,
or conspiracy to violate,'' in introductory provisions.
Subsec. (a)(6)(A)(i). Pub. L. 106-185, Sec. 18(b)(1)(B),
substituted ''the offense of which the person is convicted'' for
''a violation of, or a conspiracy to violate, subsection (a)''.
Subsec. (a)(6)(A)(ii)(I), (II). Pub. L. 106-185, Sec.
18(b)(1)(C), substituted ''the offense of which the person is
convicted'' for ''a violation of, or a conspiracy to violate,
subsection (a), section 274A(a)(1) or 274A(a)(2) of the Immigration
and Nationality Act, or section 1028, 1425, 1426, 1427, 1541, 1542,
1543, 1544, or 1546 of this title''.
1998 - Subsec. (a)(6), (7). Pub. L. 105-184, Sec. 2(1)(A), which
directed the amendment of subsec. (a) ''by redesignating the second
paragraph designated as paragraph (6) as paragraph (7)'', was
executed by redesignating par. (6), relating to forfeitures for
Federal health care offenses, as (7), to reflect the probable
intent of Congress.
Subsec. (a)(8). Pub. L. 105-184, Sec. 2(1)(B), added par. (8).
Subsec. (b)(1). Pub. L. 105-318 amended par. (1) generally.
Prior to amendment, par. (1) read as follows: ''Property subject to
forfeiture under this section, any seizure and disposition thereof,
and any administrative or judicial proceeding in relation thereto,
shall be governed -
''(A) in the case of a forfeiture under subsection (a)(1),
(a)(6), or (a)(8) of this section, by subsections (c) and (e)
through (p) of section 413 of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. 853); and
''(B) in the case of a forfeiture under subsection (a)(2) of
this section, by subsections (b), (c), (e), and (g) through (p)
of section 413 of such Act.''
Subsec. (b)(1)(A). Pub. L. 105-184, Sec. 2(2), substituted
''(a)(1), (a)(6), or (a)(8)'' for ''(a)(1) or (a)(6)''.
1996 - Subsec. (a)(6). Pub. L. 104-208 added par. (6) relating to
criminal forfeiture for passport and visa related offenses.
Pub. L. 104-191, Sec. 249(a), added par. (6) relating to
forfeitures for Federal health care offenses.
Subsec. (b)(1)(A). Pub. L. 104-191, Sec. 249(b), inserted ''or
(a)(6)'' after ''(a)(1)''.
1994 - Subsec. (a)(1). Pub. L. 103-322, Sec. 330011(s)(1),
amended directory language of Pub. L. 101-647, Sec. 1401. See 1990
Amendment note below.
1992 - Subsec. (a)(1). Pub. L. 102-550 substituted '', 1957, or
1960'' for ''or 1957''.
Subsec. (a)(2). Pub. L. 102-393 amended par. (2) generally.
Prior to amendment, par. (2) read as follows: ''The court, in
imposing sentence on a person convicted of a violation of, or a
conspiracy to violate, section 215, 656, 657, 1005, 1006, 1007,
1014, 1341, 1343, or 1344 of this title, affecting a financial
institution, shall order that the person forfeit to the United
States any property constituting, or derived from, proceeds the
person obtained directly or indirectly, as the result of such
violation.''
Subsec. (a)(5). Pub. L. 102-519 added par. (5).
1990 - Subsec. (a)(1). Pub. L. 101-647, Sec. 1401, as amended by
Pub. L. 103-322, Sec. 330011(s)(1), inserted '', 5316,'' after
''5313(a)'', the first place appearing.
Subsec. (a)(3), (4). Pub. L. 101-647, Sec. 2525(b), added pars.
(3) and (4).
Subsec. (b)(2). Pub. L. 101-647, Sec. 1403, inserted before
period at end ''unless the defendant, in committing the offense or
offenses giving rise to the forfeiture, conducted three or more
separate transactions involving a total of $100,000 or more in any
twelve month period''.
1989 - Subsec. (a). Pub. L. 101-73, Sec. 963(c)(1), designated
existing provisions as par. (1) and added par. (2).
Subsec. (b). Pub. L. 101-73, Sec. 963(c)(2), struck out ''The
provisions of subsections 413(c) and (e) through (p) of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 853(c) and (e)-(p)) shall apply to property subject to
forfeiture under this section, to any seizure or disposition
thereof, and to any administrative or judicial proceeding in
relation thereto, if not inconsistent with this section. However,
the'', added par. (1), and inserted ''(2) The'' before
''substitution of assets''.
1988 - Subsec. (a). Pub. L. 100-690, Sec. 6463(c), amended
subsec. (a) generally. Prior to amendment, subsec. (a) read as
follows: ''The court, in imposing sentence on a person convicted of
an offense under section 1956 or 1957 of this title shall order
that the person forfeit to the United States any property, real or
personal, which represents the gross receipts the person obtained,
directly or indirectly, as a result of such offense, or which is
traceable to such gross receipts.''
Subsec. (b). Pub. L. 100-690, Sec. 6464, substituted ''(p)'' for
''(o)'' in two places and inserted at end ''However, the
substitution of assets provisions of subsection 413(p) not be used
to order a defendant to forfeit assets in place of the actual
property laundered where such defendant acted merely as an
intermediary who handled but did not retain the property in the
course of the money laundering offense.''
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 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.
EFFECTIVE DATE OF 1994 AMENDMENT
Section 330011(s)(1) of Pub. L. 103-322 provided that the
amendment made by that section is effective as of the date on which
section 1401 of Pub. L. 101-647 took effect.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1956 of this title; title
12 sections 1831k, 3412; title 31 section 9703.
-CITE-
18 USC Sec. 983 01/06/03
-EXPCITE-
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 46 - FORFEITURE
-HEAD-
Sec. 983. General rules for civil forfeiture proceedings
-STATUTE-
(a) Notice; Claim; Complaint. -
(1)(A)(i) Except as provided in clauses (ii) through (v), in
any nonjudicial civil forfeiture proceeding under a civil
forfeiture statute, with respect to which the Government is
required to send written notice to interested parties, such
notice shall be sent in a manner to achieve proper notice as soon
as practicable, and in no case more than 60 days after the date
of the seizure.
(ii) No notice is required if, before the 60-day period
expires, the Government files a civil judicial forfeiture action
against the property and provides notice of that action as
required by law.
(iii) If, before the 60-day period expires, the Government does
not file a civil judicial forfeiture action, but does obtain a
criminal indictment containing an allegation that the property is
subject to forfeiture, the Government shall either -
(I) send notice within the 60 days and continue the
nonjudicial civil forfeiture proceeding under this section; or
(II) terminate the nonjudicial civil forfeiture proceeding,
and take the steps necessary to preserve its right to maintain
custody of the property as provided in the applicable criminal
forfeiture statute.
(iv) In a case in which the property is seized by a State or
local law enforcement agency and turned over to a Federal law
enforcement agency for the purpose of forfeiture under Federal
law, notice shall be sent not more than 90 days after the date of
seizure by the State or local law enforcement agency.
(v) 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, notice shall be sent to
such interested party not later than 60 days after the
determination by the Government of the identity of the party or
the party's interest.
(B) A supervisory official in the headquarters office of the
seizing agency may extend the period for sending notice under
subparagraph (A) for a period not to exceed 30 days (which period
may not be further extended except by a court), if the official
determines that the conditions in subparagraph (D) are present.
(C) Upon motion by the Government, a court may extend the
period for sending notice under subparagraph (A) for a period not
to exceed 60 days, which period may be further extended by the
court for 60-day periods, as necessary, if the court determines,
based on a written certification of a supervisory official in the
headquarters office of the seizing agency, that the conditions in
subparagraph (D) are present.
(D) The period for sending notice under this paragraph may be
extended only if there is reason to believe that notice may have
an adverse result, including -
(i) endangering the life or physical safety of an individual;
(ii) flight from prosecution;
(iii) destruction of or tampering with evidence;
(iv) intimidation of potential witnesses; or
(v) otherwise seriously jeopardizing an investigation or
unduly delaying a trial.
(E) Each of the Federal seizing agencies conducting nonjudicial
forfeitures under this section shall report periodically to the
Committees on the Judiciary of the House of Representatives and
the Senate the number of occasions when an extension of time is
granted under subparagraph (B).
(F) If the Government does not send notice of a seizure of
property in accordance with subparagraph (A) to the person from
whom the property was seized, and no extension of time is
granted, the Government shall return the property to that person
without prejudice to the right of the Government to commence a
forfeiture proceeding at a later time. The Government shall not
be required to return contraband or other property that the
person from whom the property was seized may not legally possess.
(2)(A) Any person claiming property seized in a nonjudicial
civil forfeiture proceeding under a civil forfeiture statute may
file a claim with the appropriate official after the seizure.
(B) A claim under subparagraph (A) may be filed not later than
the deadline set forth in a personal notice letter (which
deadline may be not earlier than 35 days after the date the
letter is mailed), except that if that letter is not received,
then a claim may be filed not later than 30 days after the date
of final publication of notice of seizure.
(C) A claim shall -
(i) identify the specific property being claimed;
(ii) state the claimant's interest in such property; and
(iii) be made under oath, subject to penalty of perjury.
(D) A claim need not be made in any particular form. Each
Federal agency conducting nonjudicial forfeitures under this
section shall make claim forms generally available on request,
which forms shall be written in easily understandable language.
(E) Any person may make a claim under subparagraph (A) without
posting bond with respect to the property which is the subject of
the claim.
(3)(A) Not later than 90 days after a claim has been filed, the
Government shall file a complaint for forfeiture in the manner
set forth in the Supplemental Rules for Certain Admiralty and
Maritime Claims or return the property pending the filing of a
complaint, except that a court in the district in which the
complaint will be filed may extend the period for filing a
complaint for good cause shown or upon agreement of the parties.
(B) If the Government does not -
(i) file a complaint for forfeiture or return the property,
in accordance with subparagraph (A); or
(ii) before the time for filing a complaint has expired -
(I) obtain a criminal indictment containing an allegation
that the property is subject to forfeiture; and
(II) take the steps necessary to preserve its right to
maintain custody of the property as provided in the
applicable criminal forfeiture statute,
the Government shall promptly release the property pursuant to
regulations promulgated by the Attorney General, and may not take
any further action to effect the civil forfeiture of such
property in connection with the underlying offense.
(C) In lieu of, or in addition to, filing a civil forfeiture
complaint, the Government may include a forfeiture allegation in
a criminal indictment. If criminal forfeiture is the only
forfeiture proceeding commenced by the Government, the
Government's right to continued possession of the property shall
be governed by the applicable criminal forfeiture statute.
(D) No complaint may be dismissed on the ground that the
Government did not have adequate evidence at the time the
complaint was filed to establish the forfeitability of the
property.
(4)(A) In any case in which the Government files in the
appropriate United States district court a complaint for
forfeiture of property, any person claiming an interest in the
seized property may file a claim asserting such person's interest
in the property in the manner set forth in the Supplemental Rules
for Certain Admiralty and Maritime Claims, except that such claim
may be filed not later than 30 days after the date of service of
the Government's complaint or, as applicable, not later than 30
days after the date of final publication of notice of the filing
of the complaint.
(B) A person asserting an interest in seized property, in
accordance with subparagraph (A), shall file an answer to the
Government's complaint for forfeiture not later than 20 days
after the date of the filing of the claim.
(b) Representation. -
(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 financially unable to obtain representation
by counsel, and the person is represented by counsel appointed
under section 3006A of this title in connection with a related
criminal case, the court may authorize counsel to represent that
person with respect to the claim.
(B) In determining whether to authorize counsel to represent a
person under subparagraph (A), the court shall take into account
such factors as -
(i) the person's standing to contest the forfeiture; and
(ii) whether the claim appears to be made in good faith.
(2)(A) If a person with standing to contest the forfeiture of
property in a judicial civil forfeiture proceeding under a civil
forfeiture statute is financially unable to obtain representation
by counsel, and the property subject to forfeiture is real
property that is being used by the person as a primary residence,
the court, at the request of the person, shall insure that the
person is represented by an attorney for the Legal Services
Corporation with respect to the claim.
(B)(i) At appropriate times during a representation under
subparagraph (A), the Legal Services Corporation shall submit a
statement of reasonable attorney fees and costs to the court.
(ii) The court shall enter a judgment in favor of the Legal
Services Corporation for reasonable attorney fees and costs
submitted pursuant to clause (i) and treat such judgment as
payable under section 2465 of title 28, United States Code,
regardless of the outcome of the case.
(3) The court shall set the compensation for representation
under this subsection, which shall be equivalent to that provided
for court-appointed representation under section 3006A of this
title.
(c) Burden of Proof. - In a suit or action brought under any
civil forfeiture statute for the civil forfeiture of any property -
(1) the burden of proof is on the Government to establish, by a
preponderance of the evidence, that the property is subject to
forfeiture;
(2) the Government may use evidence gathered after the filing
of a complaint for forfeiture to establish, by a preponderance 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 enforcement
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 discourage 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 claimant;
(ii) depriving the claimant of the property would deprive the
claimant of the means to maintain reasonable shelter in the
community for the claimant and all dependents 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
otherwise subject to forfeiture, or a joint tenancy or tenancy by
the entirety in such property, the court may enter an appropriate
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 property
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.
(2)(A) Notwithstanding the expiration of any applicable statute
of limitations, if the court grants a motion under paragraph (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 forfeiture 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 exclusive
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 immediate
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 preventing the
functioning of a business, preventing an individual from
working, or leaving an individual homeless;
(D) the claimant's likely hardship from the continued
possession by the Government of the seized property outweighs
the risk that the property will be destroyed, damaged, 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
-
(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 of the
evidence at a hearing conducted by the court without a jury.
(4) If the court finds that the forfeiture is grossly
disproportional to the offense it shall reduce or eliminate the
forfeiture as necessary to avoid a violation of the Excessive
Fines Clause of the Eighth Amendment of the Constitution.
(h) Civil Fine. -
(1) In any civil forfeiture proceeding under a civil forfeiture
statute in which the Government prevails, if the court finds that
the claimant's assertion of an interest in the property was
frivolous, the court may impose a civil fine on the claimant of
an amount equal to 10 percent of the value of the forfeited
property, but in no event shall the fine be less than $250 or
greater than $5,000.
(2) Any civil fine imposed under this subsection shall not
preclude the court from imposing sanctions under rule 11 of the
Federal Rules of Civil Procedure.
(3) In addition to the limitations of section 1915 of title 28,
United States Code, in no event shall a prisoner file a claim
under a civil forfeiture statute or appeal a judgment in a civil
action or proceeding based on a civil forfeiture statute if the
prisoner has, on three or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the
grounds that it is frivolous or malicious, unless the prisoner
shows extraordinary and exceptional circumstances.
(i) Civil Forfeiture Statute Defined. - In this section, the term
''civil forfeiture statute'' -
(1) means any provision of Federal law providing for the
forfeiture of property other than as a sentence imposed upon
conviction of a criminal offense; and
(2) does not include -
(A) the Tariff Act of 1930 or any other provision of law
codified in title 19;
(B) the Internal Revenue Code of 1986;
(C) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301
et seq.);
(D) the Trading with the Enemy Act (50 U.S.C. App. 1 et seq.)
or the International Emergency Economic Powers Act (IEEPA) (50
U.S.C. 1701 et seq.); or
(E) section 1 of title VI of the Act of June 15, 1917 (40
Stat. 233; 22 U.S.C. 401).
(j) Restraining Orders; Protective Orders. -
(1) Upon application of the United States, the court may enter
a restraining order or injunction, require the execution of
satisfactory performance bonds, create receiverships, appoint
conservators, custodians, appraisers, accountants, or trustees,
or take any other action to seize, secure, maintain, or preserve
the availability of property subject to civil forfeiture -
(A) upon the filing of a civil forfeiture complaint alleging
that the property with respect to which the order is sought is
subject to civil forfeiture; or
(B) prior to the filing of such a complaint, if, after notice
to persons appearing to have an interest in the property and
opportunity for a hearing, the court determines that -
(i) there is a substantial probability that the United
States will prevail on the issue of forfeiture and that
failure to enter the order will result in the property being
destroyed, removed from the jurisdiction of the court, or
otherwise made unavailable for forfeiture; and
(ii) the need to preserve the availability of the property
through the entry of the requested order outweighs the
hardship on any party against whom the order is to be
entered.
(2) An order entered pursuant to paragraph (1)(B) shall be
effective for not more than 90 days, unless extended by the court
for good cause shown, or unless a complaint described in
paragraph (1)(A) has been filed.
(3) A temporary restraining order under this subsection may be
entered upon application of the United States without notice or
opportunity for a hearing when a complaint has not yet been filed
with respect to the property, if the United States demonstrates
that there is probable cause to believe that the property with
respect to which the order is sought is subject to civil
forfeiture and that provision of notice will jeopardize the
availability of the property for forfeiture. Such a temporary
order shall expire not more than 10 days after the date on which
it is entered, unless extended for good cause shown or unless the
party against whom it is entered consents to an extension for a
longer period. A hearing requested concerning an order entered
under this paragraph shall be held at the earliest possible time
and prior to the expiration of the temporary order.
(4) The court may receive and consider, at a hearing held
pursuant to this subsection, evidence and information that would
be inadmissible under the Federal Rules of Evidence.
-SOURCE-
(Added and amended Pub. L. 106-185, Sec. 2(a), 9, Apr. 25, 2000,
114 Stat. 202, 216; Pub. L. 106-561, Sec. 3(a), Dec. 21, 2000, 114
Stat. 2791; Pub. L. 107-56, title III, Sec. 316(d), Oct. 26, 2001,
115 Stat. 310.)
-REFTEXT-
REFERENCES IN TEXT
The Supplemental Rules for Certain Admiralty and Maritime Claims,
referred to in subsecs. (a)(3)(A), (4)(A) and (f)(7)(A)(ii), are
set out as part of the Federal Rules of Civil Procedure in the
Appendix to Title 28, Judiciary and Judicial Procedure.
The Federal Rules of Civil Procedure, referred to in subsec.
(h)(2), are set out in the Appendix to Title 28, Judiciary and
Judicial Procedure.
The Tariff Act of 1930, referred to in subsec. (i)(2)(A), is act
June 17, 1930, ch. 497, 46 Stat. 590, as amended, which is
classified generally to chapter 4 (Sec. 1202 et seq.) of Title 19,
Customs Duties. For complete classification of this Act to the
Code, see section 1654 of Title 19 and Tables.
The Internal Revenue Code of 1986, referred to in subsec.
(i)(2)(B), is classified generally to Title 26, Internal Revenue
Code.
The Federal Food, Drug, and Cosmetic Act, referred to in subsec.
(i)(2)(C), is act June 25, 1938, ch. 675, 52 Stat. 1040, as
amended, which is classified generally to chapter 9 (Sec. 301 et
seq.) of Title 21, Food and Drugs. For complete classification of
this Act to the Code, see section 301 of Title 21 and Tables.
The Trading with the Enemy Act, referred to in subsec. (i)(2)(D),
is act Oct. 6, 1917, ch. 106, 40 Stat. 411, as amended, which is
classified to sections 1 to 6, 7 to 39 and 41 to 44 of Title 50,
Appendix, War and National Defense. For complete classification of
this Act to the Code, see Tables.
The International Emergency Economic Powers Act, referred to in
(i)(2)(D), is title II of Pub. L. 95-223, Dec. 28, 1977, 91 Stat.
1626, as amended, which is classified generally to chapter 35 (Sec.
1701 et seq.) of Title 50, War and National Defense. For complete
classification of this Act to the Code, see Short Title note set
out under section 1701 of Title 50 and Tables.
The Federal Rules of Evidence, referred to in subsec. (j)(4), are
set out in the Appendix to Title 28, Judiciary and Judicial
Procedure.
-MISC2-
AMENDMENTS
2001 - Subsec. (i)(2)(D). Pub. L. 107-56 inserted ''or the
International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701
et seq.)'' before semicolon.
2000 - Subsec. (a)(2)(C)(ii). Pub. L. 106-561 struck out ''(and
provide customary documentary evidence of such interest if
available) and state that the claim is not frivolous'' after ''such
property''.
Subsec. (j). Pub. L. 106-185, Sec. 9, added subsec. (j).
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 OF 2000 AMENDMENT
Pub. L. 106-561, Sec. 3(b), Dec. 21, 2000, 114 Stat. 2791,
provided that: ''The amendment made by this section (amending this
section) shall take effect as if included in the amendment made by
section 2(a) of Public Law 106-185.''
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.
ANTI-TERRORIST FORFEITURE PROTECTION
Pub. L. 107-56, title III, Sec. 316(a)-(c), Oct. 26, 2001, 115
Stat. 309, provided that:
''(a) Right to Contest. - An owner of property that is
confiscated under any provision of law relating to the confiscation
of assets of suspected international terrorists, may contest that
confiscation by filing a claim in the manner set forth in the
Federal Rules of Civil Procedure (Supplemental Rules for Certain
Admiralty and Maritime Claims) (28 App. U.S.C.), and asserting as
an affirmative defense that -
''(1) the property is not subject to confiscation under such
provision of law; or
''(2) the innocent owner provisions of section 983(d) of title
18, United States Code, apply to the case.
''(b) Evidence. - In considering a claim filed under this
section, a court may admit evidence that is otherwise inadmissible
under the Federal Rules of Evidence (28 App. U.S.C.), if the court
determines that the evidence is reliable, and that compliance with
the Federal Rules of Evidence may jeopardize the national security
interests of the United States.
''(c) Clarifications. -
''(1) Protection of rights. - The exclusion of certain
provisions of Federal law from the definition of the term 'civil
forfeiture statute' in section 983(i) of title 18, United States
Code, shall not be construed to deny an owner of property the
right to contest the confiscation of assets of suspected
international terrorists under -
''(A) subsection (a) of this section;
''(B) the Constitution; or
''(C) subchapter II of chapter 5 of title 5, United States
Code (commonly known as the 'Administrative Procedure Act').
''(2) Savings clause. - Nothing in this section shall limit or
otherwise affect any other remedies that may be available to an
owner of property under section 983 of title 18, United States
Code, or any other provision of law.''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 981, 3051 of this title;
title 28 section 2467.
-CITE-
18 USC Sec. 984 01/06/03
-EXPCITE-
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 46 - FORFEITURE
-HEAD-
Sec. 984. Civil forfeiture of fungible property
-STATUTE-
(a)(1) In any forfeiture action in rem in which the subject
property is cash, monetary instruments in bearer form, funds
deposited in an account in a financial institution (as defined in
section 20 of this title), or precious metals -
(A) it shall not be necessary for the Government to identify
the specific property involved in the offense that is the basis
for the forfeiture; and
(B) it shall not be a defense that the property involved in
such an offense has been removed and replaced by identical
property.
(2) Except as provided in subsection (b), any identical property
found in the same place or account as the property involved in the
offense that is the basis for the forfeiture shall be subject to
forfeiture under this section.
(b) No action pursuant to this section to forfeit property not
traceable directly to the offense that is the basis for the
forfeiture may be commenced more than 1 year from the date of the
offense.
(c)(1) Subsection (a) does not apply to an action against funds
held by a financial institution in an interbank account unless the
account holder knowingly engaged in the offense that is the basis
for the forfeiture.
(2) In this subsection -
(A) the term ''financial institution'' includes a foreign bank
(as defined in section 1(b)(7) of the International Banking Act
of 1978 (12 U.S.C. 3101(b)(7))); (FOOTNOTE 1) and
(FOOTNOTE 1) See References in Text note below.
(B) the term ''interbank account'' means an account held by one
financial institution at another financial institution primarily
for the purpose of facilitating customer transactions.
(d) Nothing in this section may be construed to limit the ability
of the Government to forfeit property under any provision of law if
the property involved in the offense giving rise to the forfeiture
or property traceable thereto is available for forfeiture.
-SOURCE-
(Added Pub. L. 102-550, title XV, Sec. 1522(a), Oct. 28, 1992, 106
Stat. 4063; amended Pub. L. 103-325, title IV, Sec. 411(c)(2)(E),
Sept. 23, 1994, 108 Stat. 2253; Pub. L. 106-185, Sec. 13(a), Apr.
25, 2000, 114 Stat. 218.)
-REFTEXT-
REFERENCES IN TEXT
Section 1(b)(7) of the International Banking Act of 1978,
referred to in subsec. (c)(2)(A), is classified to section 3101(7)
of Title 12, Banks and Banking.
-MISC2-
AMENDMENTS
2000 - Subsec. (a). Pub. L. 106-185, Sec. 13(a)(1), (2),
redesignated subsec. (b) as (a), substituted ''or precious metals''
for ''or other fungible property'' in introductory provisions of
par. (1) and ''subsection (b)'' for ''subsection (c)'' in par. (2),
and struck out former subsec. (a) which read as follows: ''This
section shall apply to any action for forfeiture brought by the
Government in connection with any offense under section 1956, 1957,
or 1960 of this title or section 5322 or 5324 of title 31, United
States Code.''
Subsec. (b). Pub. L. 106-185, Sec. 13(a)(1), redesignated subsec.
(c) as (b). Former subsec. (b) redesignated (a).
Subsec. (c). Pub. L. 106-185, Sec. 13(a)(1), redesignated subsec.
(d) as (c). Former subsec. (c) redesignated (b).
Subsec. (c)(1). Pub. L. 106-185, Sec. 13(a)(3)(A), added par. (1)
and struck out former par. (1) which read as follows: ''No action
pursuant to this section to forfeit property not traceable directly
to the offense that is the basis for the forfeiture may be taken
against funds held by a financial institution in an interbank
account, unless the financial institution holding the account
knowingly engaged in the offense.''
Subsec. (c)(2). Pub. L. 106-185, Sec. 13(a)(3)(B), substituted
''In this subsection - '' for ''As used in this section, the
term'', added subpar. (A), and inserted ''(B) the term'' before
'''interbank account' means''.
Subsec. (d). Pub. L. 106-185, Sec. 13(a)(4), added subsec. (d).
Former subsec. (d) redesignated (c).
1994 - Subsec. (a). Pub. L. 103-325 substituted ''section 5322 or
5324 of title 31'' for ''section 5322 of title 31''.
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 section 981 of this title.
-CITE-
18 USC Sec. 985 01/06/03
-EXPCITE-
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 46 - FORFEITURE
-HEAD-
Sec. 985. Civil forfeiture of real property
-STATUTE-
(a) Notwithstanding any other provision of law, all civil
forfeitures of real property and interests in real property shall
proceed as judicial forfeitures.
(b)(1) Except as provided in this section -
(A) real property that is the subject of a civil forfeiture
action shall not be seized before entry of an order of
forfeiture; and
(B) the owners or occupants of the real property shall not be
evicted from, or otherwise deprived of the use and enjoyment of,
real property that is the subject of a pending forfeiture action.
(2) The filing of a lis pendens and the execution of a writ of
entry for the purpose of conducting an inspection and inventory of
the property shall not be considered a seizure under this
subsection.
(c)(1) The Government shall initiate a civil forfeiture action
against real property by -
(A) filing a complaint for forfeiture;
(B) posting a notice of the complaint on the property; and
(C) serving notice on the property owner, along with a copy of
the complaint.
(2) If the property owner cannot be served with the notice under
paragraph (1) because the owner -
(A) is a fugitive;
(B) resides outside the United States and efforts at service
pursuant to rule 4 of the Federal Rules of Civil Procedure are
unavailing; or
(C) cannot be located despite the exercise of due diligence,
constructive service may be made in accordance with the laws of the
State in which the property is located.
(3) If real property has been posted in accordance with this
subsection, it shall not be necessary for the court to issue an
arrest warrant in rem, or to take any other action to establish in
rem jurisdiction over the property.
(d)(1) Real property may be seized prior to the entry of an order
of forfeiture if -
(A) the Government notifies the court that it intends to seize
the property before trial; and
(B) the court -
(i) issues a notice of application for warrant, causes the
notice to be served on the property owner and posted on the
property, and conducts a hearing in which the property owner
has a meaningful opportunity to be heard; or
(ii) makes an ex parte determination that there is probable
cause for the forfeiture and that there are exigent
circumstances that permit the Government to seize the property
without prior notice and an opportunity for the property owner
to be heard.
(2) For purposes of paragraph (1)(B)(ii), to establish exigent
circumstances, the Government shall show that less restrictive
measures such as a lis pendens, restraining order, or bond would
not suffice to protect the Government's interests in preventing the
sale, destruction, or continued unlawful use of the real property.
(e) If the court authorizes a seizure of real property under
subsection (d)(1)(B)(ii), it shall conduct a prompt post-seizure
hearing during which the property owner shall have an opportunity
to contest the basis for the seizure.
(f) This section -
(1) applies only to civil forfeitures of real property and
interests in real property;
(2) does not apply to forfeitures of the proceeds of the sale
of such property or interests, or of money or other assets
intended to be used to acquire such property or interests; and
(3) shall not affect the authority of the court to enter a
restraining order relating to real property.
-SOURCE-
(Added Pub. L. 106-185, Sec. 7(a), Apr. 25, 2000, 114 Stat. 214.)
-REFTEXT-
REFERENCES IN TEXT
The Federal Rules of Civil Procedure, referred to in subsec.
(c)(2)(B), are set out in the Appendix to Title 28, Judiciary and
Judicial Procedure.
-MISC2-
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.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 981 of this title.
-CITE-
18 USC Sec. 986 01/06/03
-EXPCITE-
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 46 - FORFEITURE
-HEAD-
Sec. 986. Subpoenas for bank records
-STATUTE-
(a) At any time after the commencement of any action for
forfeiture in rem brought by the United States under section 1956,
1957, or 1960 of this title, section 5322 or 5324 of title 31,
United States Code, or the Controlled Substances Act, any party may
request the Clerk of the Court in the district in which the
proceeding is pending to issue a subpoena duces tecum to any
financial institution, as defined in section 5312(a) of title 31,
United States Code, to produce books, records and any other
documents at any place designated by the requesting party. All
parties to the proceeding shall be notified of the issuance of any
such subpoena. The procedures and limitations set forth in section
985 (FOOTNOTE 1) of this title shall apply to subpoenas issued
under this section.
(FOOTNOTE 1) See References in Text note below.
(b) Service of a subpoena issued pursuant to this section shall
be by certified mail. Records produced in response to such a
subpoena may be produced in person or by mail, common carrier, or
such other method as may be agreed upon by the party requesting the
subpoena and the custodian of records. The party requesting the
subpoena may require the custodian of records to submit an
affidavit certifying the authenticity and completeness of the
records and explaining the omission of any record called for in the
subpoena.
(c) Nothing in this section shall preclude any party from
pursuing any form of discovery pursuant to the Federal Rules of
Civil Procedure.
(d) Access to Records in Bank Secrecy Jurisdictions. -
(1) In general. - In any civil forfeiture case, or in any
ancillary proceeding in any criminal forfeiture case governed by
section 413(n) of the Controlled Substances Act (21 U.S.C.
853(n)), in which -
(A) financial records located in a foreign country may be
material -
(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.
-SOURCE-
(Added Pub. L. 102-550, title XV, Sec. 1523(a), Oct. 28, 1992, 106
Stat. 4063; amended Pub. L. 103-325, title IV, Sec. 411(c)(2)(E),
Sept. 23, 1994, 108 Stat. 2253; Pub. L. 106-185, Sec. 17, Apr. 25,
2000, 114 Stat. 221.)
-REFTEXT-
REFERENCES IN TEXT
The Controlled Substances Act, referred to in subsec. (a), is
title II of Pub. L. 91-513, Oct. 27, 1970, 84 Stat. 1242, as
amended, which is classified principally to subchapter I (Sec. 801
et seq.) of chapter 13 of Title 21, Food and Drugs. For complete
classification of this Act to the Code, see Short Title note set
out under section 801 of Title 21 and Tables.
Section 985 of this title, referred to in subsec. (a), was
enacted by Pub. L. 106-185, and relates to civil forfeitures of
real property and not to procedures and limitations for subpoenas.
The reference to section 985 was included in this section when it
was enacted by Pub. L. 102-550, but at that time there was no
section 985 of this title.
The Federal Rules of Civil Procedure, referred to in subsec. (c),
are set out in Title 28, Appendix, Judiciary and Judicial
Procedure.
-MISC2-
AMENDMENTS
2000 - Subsec. (d). Pub. L. 106-185 added subsec. (d).
1994 - Subsec. (a). Pub. L. 103-325 substituted ''section 5322 or
5324 of title 31'' for ''section 5322 of title 31''.
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.
-CITE-
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Enviado por: | El remitente no desea revelar su nombre |
Idioma: | inglés |
País: | Estados Unidos |