Order Code 97-139 A
CRS Report for Congress
Received through the CRS Web
Crime and Forfeiture
Updated December 14, 2004
Charles Doyle
Senior Specialist
American Law Division
Congressional Research Service ˜ The Library of Congress
Crime and Forfeiture
Summary
Forfeiture has long been an effective law enforcement tool. Congress and state
legislatures have authorized its use for over two hundred years. Every year it
redirects property worth hundreds of millions of dollars from criminal to lawful uses.
Forfeiture law has always been somewhat unique. Legislative bodies, commentators
and the courts, however, had begun to examine its eccentricities in greater detail
because under some circumstances it could be not only harsh but unfair. The Civil
Asset Forfeiture Reform Act, P.L. 106-185, 114 Stat. 202 (2000) is a product of that
reexamination.
Modern forfeiture follows one of two procedural routes. Although crime
triggers all forfeitures, they are classified as civil forfeitures or criminal forfeitures
according to the nature of the procedure which ends in confiscation. Civil forfeiture
is an in rem proceeding. The property is the defendant in the case. Unless the statute
provides otherwise, the innocence of the owner is irrelevant — it is enough that the
property was involved in a violation to which forfeiture attaches. As a matter of
expedience and judicial economy, Congress often allows administrative forfeiture in
uncontested civil confiscation cases. Criminal forfeiture is an in personam
proceeding, and confiscation is only possible upon the conviction of the owner of the
property.
The Supreme Court has held that authorities may seize moveable property
without prior notice or an opportunity for a hearing but that real property owners are
entitled as a matter of due process to preseizure notice and the chance for a hearing.
As a matter of due process, innocence may be irrelevant in the case an individual who
entrusts his or her property to someone who uses the property criminal purposes.
Although some civil forfeitures may be considered punitive for purposes of the
Eighth Amendment’s excessive fines clause, civil forfeitures do not implicate the
Fifth Amendment’s double jeopardy clause unless they are so utterly punitive as to
belie remedial classification.
The statutes governing the disposal of forfeited property may authorize
destruction of property, or transfer for governmental purposes, or deposit of the
property or the proceeds from its sale in a special fund. Intergovernmental transfers
and the use of special funds are hallmarks of federal forfeiture. Every year federal
agencies transfer hundreds of millions of dollars worth of property to state and local
law enforcement officials in compensation for their contribution to joint enforcement
efforts.
This report is available in an abridged form, without citations, footnotes, or
appendices, as Crime and Forfeiture: In Short, CRS Report RS22005.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Modern Forfeiture Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Property and Trigger Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Disposition of Forfeited Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Federal Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Department of Justice Asset Forfeiture Fund . . . . . . . . . . . . . . . . . . . . . . . 21
Department of the Treasury Forfeiture Fund . . . . . . . . . . . . . . . . . . . . . . . . 23
Special Forfeiture Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Crime Victims Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Constitutional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Eighth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Double Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18 U.S.C. 981. Civil forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18 U.S.C. 982. Criminal forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
18 U.S.C. 983. General rules for civil forfeiture proceedings . . . . . . 40
18 U.S.C. 984. Civil forfeiture of fungible property . . . . . . . . . . . . . . 44
18 U.S.C. 985. Civil forfeiture of real property . . . . . . . . . . . . . . . . . . 45
21 U.S.C. 881. Civil forfeitures (controlled substances) . . . . . . . . . . . 45
21 U.S.C. 853. Criminal forfeiture (controlled substances) . . . . . . . . 47
18 U.S.C. 1963. Criminal forfeiture (RICO) . . . . . . . . . . . . . . . . . . . . 50
F.R.Crim.P. 32.2. Criminal Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . 52
28 U.S.C. 524(c)
Department of Justice Asset Forfeiture Fund . . . . . . . . . . . . . . . 53
31 U.S.C. 9703
Department of the Treasury Forfeiture Fund . . . . . . . . . . . . . . . . 55
42 U.S.C. 10601
Crime Victims Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Federal Forfeiture Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
State Forfeiture Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Crime and Forfeiture
Introduction
This is an overview of forfeiture.1 It sketches the origins and general attributes
of forfeiture, describes the distribution of the hundreds of millions of dollars it
generates, and outlines some of the constitutional issues it raises.
Background
Congress and state legislatures have authorized the use of forfeiture for over two
hundred years. Forfeiture law has always been somewhat unique. Its increased use
has highlighted its eccentricities and attendant policy concerns.
Present forfeiture law has its roots in early English law. It is reminiscent of
three early English procedures: deodands, forfeiture of estate or common law
forfeiture, and statutory or commercial forfeiture.2
At early common law, the object that caused the death of a human being — the
ox that gored, the knife that stabbed, or the cart that crushed — was confiscated as
a deodand.3 Coroners’ inquests and grand juries, bound with the duty to determine
the cause of death, were obligated to identify the offending object and determine its
value as well.4 The Crown distributed the proceeds realized from the confiscation
1 Forfeiture is the loss of any right — ordinarily a property right — as a consequence of
a breach of some legal obligation, BLACK’S LAW DICTIONARY, 650 (6th ed. 1990).
Discussion in this report is limited to forfeitures, other than the forfeiture of bail, associated
with criminal conduct. Throughout this report “forfeiture†and “confiscation†will be used
interchangeably.
2 Austin v. United States, 509 U.S. 602, 611-13 (1993); Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U.S. 663, 680-82 (1974); Bane of American Forfeiture Law — Banished
at Last? 62 CORNELL LAW REVIEW 768, 770 (1977).
3 Goldsmith-Grant Co. v. United States, 254 U.S. 505 (1921); 1 HALE, HISTORY OF THE
PLEAS OF THE CROWN 419 (1778); 2 POLLOCK & MAITLAND, THE HISTORY OF ENGLISH
LAW 473 (2d ed. 1923); Finklestein, The Goring Ox: Some Historical Perspective on
Deodands, Forfeiture, Wrongful Death and the Western Notion of Sovereignty, 46 TEMPLE
LAW QUARTERLY 169 (1973).
4 1 HALE, HISTORY OF THE PLEAS OF THE CROWN, 419 (1778); 1 BLACKSTONE,
COMMENTARIES, 290 (1765-69). The value of the offending object or animal had to be
determined because the owner was permitted to recover his property as long as he paid the
Crown its value, id.
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of the animal or deadly object for religious and charitable purposes in the name of the
deceased.5
Although deodands were not unknown in the American colonies,6 they appear
to have fallen into disuse or been abolished by the time of the American Revolution
or shortly thereafter.7 In spite of their limited use in this country, deodands and the
practice of treating the offending animal or object as the defendant have frequently
been cited to illustrate the characteristics of modern civil forfeiture.8
Forfeiture of estate or common law forfeiture, unlike deodands, focused solely
on a human offender. At common law, anyone convicted and attained for treason or
a felony forfeited all his lands and personal property.9 Attainder, the judicial
declaration of civil death, occurred as a consequence of the pronouncement of final
sentence for treason or felony.10 In colonial America, common law forfeitures were
rare.11 After the Revolution, the Constitution restricted the use of common law
forfeiture in cases of treason, and Congress restricted its use, by statute, in the case
of other crimes.12
5 Id. Originally, the proceeds were used to pay for a Mass to be said for the repose of the
soul of the deceased, hence the name — giving (“dandâ€) to God (“deoâ€).
6 GOEBEL, LAW ENFORCEMENT IN COLONIAL NEW YORK 717 (1944); SEMMES, CRIME AND
PUNISHMENT IN EARLY MARYLAND 136 (1938); SCOTT, CRIMINAL LAW IN COLONIAL
VIRGINIA 52 (1930).
7 BISHOP, COMMENTARIES ON THE CRIMINAL LAW §827 (7th ed. 1882); N.J. Const.
Art.XVII (1776); Vt. Const. ch.2, §35 (1777); N.H. Const. pt.2, Art.89 (1783); Del. Const.
Art.I, §15 (1792).
8 United States v. United States Coin & Currency, 401 U.S. 715, 720-21 (1971); Calero-
Toledo v. Pearson Yacht Leasing Co., 416 U.S. at 680-81; Goldsmith-Grant Co. v. United
States, 254 U.S. at 510-11.
9 1 HALE, HISTORY OF THE PLEAS OF THE CROWN 354-67 (1778); 1 CHITTY, A PRACTICAL
TREATISE ON CRIMINAL LAW 727-39 (1816); 1 STEPHENS, A HISTORY OF THE CRIMINAL
LAW OF ENGLAND 468-88 (1883); 4 BLACKSTONE, COMMENTARIES 376-81 (1765-69).
10 Id. at 373-74. Attainder not only resulted in forfeiture but in corruption of the blood as
well, “so that an attained person can neither inherit lands or hereditaments from his
ancestors, nor retain those he is already in possession of, nor transmit them by descent to
any heir; but the same shall escheat to the lord of the fee, subject to the king’s superior right
of forfeiture; and the person attained shall also obstruct all descents of his posterity,
wherever they are obliged to derive a title through him to a remoter ancestor.†Id. at 381.
11 SEMMES, CRIME AND PUNISHMENT IN EARLY MARYLAND 107-10 (1938); GOEBEL, LAW
ENFORCEMENT IN COLONIAL NEW YORK 717 (1944). During the Revolution, some of the
states enacted provisions forfeiting the land and goods of those considered sympathetic to
the Crown, see e.g., 5 Mass.Acts & Resolves 1769-1780, 966-67 (1779); 9 Hening’s (Va.)
Stat. at Large 1775-1778, ch.9 (1777); 1 N.H. Laws 22 (1778).
12 “The Congress shall have power to declare the punishment of treason, but no attainder
to treason shall work corruption of blood, or forfeiture except during the life of the person
attainted.†U.S.Const. Art.III, §3.
“[N]o conviction or judgment for any of the offenses aforesaid, shall work corruption
of blood, or any forfeiture of estate.†1 Stat. 177 (1790). This provision and its successors
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The third antecedent of modern forfeiture, statutory or commercial forfeiture,
figured prominently in cases in admiralty and on the revenue side of the Exchequer
in pre-colonial England.13 It was used fairly extensively against smuggling and other
revenue evasion schemes in the American colonies and has been used ever since.14
In most instances, the statutes have called for in rem confiscation proceedings in
which, as with deodands, the offending object is the defendant; occasionally, they
have established in personam procedures where confiscation occurs as the result of
the conviction of the owner of the property.15
Although contemporary American forfeiture law owes much to the law of
deodands and the law of forfeiture of estate, it is clearly a descendant of English
statutory or commercial forfeiture.16
remained in force until 1984, Rev. Stat. §5326; 35 Stat. 1151 (1909); 62 Stat. 837 (1948);
18 U.S.C. 3563 (1982 ed.); 98 Stat. 1987 (1984).
13 1 MADDOX, HISTORY AND ANTIQUITIES OF THE EXCHEQUER 781-82 (1769); HARPER,
THE ENGLISH NAVIGATION LAWS 109-10 (1964); Currency, The Courts in the American
Colonies 11 AMERICAN JOURNAL OF LEGAL HISTORY 253, 357 (1967). Admiralty
jurisdiction extended to piracy, spoils of war, and ship registration offenses, all of which
called for confiscation, 1 HOLDSWORTH, HISTORY OF ENGLISH LAW 328 (1903 ed.); ii
SELDON SOCIETY, SELECT PLEAS OF THE COURT OF ADMIRALTY, A.D.1517-1602 (Vol.II)
xvi-xxii (Marsden ed. 1897). The Exchequer dealt with customs duties and other revenue
matters.
14 HARPER, THE ENGLISH NAVIGATION LAWS 109-11 (1964); Currency, The Courts in the
American Colonies, 11 AMERICAN JOURNAL OF LEGAL HISTORY 253, 357 (1967).
15 E.g., 18 Stat. 186, 188 (1874) (smuggling); 41 Stat. 305, 315 (1919) (prohibition); 18
U.S.C. 3665 (unlawful firearms possession).
16 The Supreme Court in Calero-Toledo summarized the relative contributions of the three
English procedures with the observation that:
Deodands did not become part of the common law tradition of this country.
Nor has forfeiture of estate as a consequence of a federal criminal conviction
been permitted. Forfeiture of estate resulting from a conviction for treason has
been constitutionally proscribed by Art.III, §3 though forfeitures of estate for the
lifetime of a traitor have been sanctioned. But “[l]ong before the adoption of the
Constitution the common law courts in the Colonies — and later in the states
during the period of Confederation — were exercising jurisdiction in rem in the
enforcement of [English and local] forfeiture statutes†which provided for the
forfeiture of commodities and vessels used in violation of the customs and
revenue laws. And almost immediately after adoption of the Constitution, ships
and cargoes involved in customs offenses were made subject to forfeiture under
federal law, as were vessels used to deliver slaves to foreign countries, and
somewhat later those used to deliver slaves to this country. The enactment of
forfeiture statutes has not abated; contemporary federal and state forfeiture
statutes reach virtually any type of property that might be used in the conduct of
a criminal enterprise. 416 U.S. at 682-83 (citations and footnotes omitted).
Calero-Toledo, however, was written prior to legislation apparently authorizing
forfeiture of the estates of certain terrorists, 18 U.S.C. 981(a)(1)(G)(i)(“The following
property is subject to forfeiture to the United States . . .(G) All assets, foreign or domestic
— (i) of any individual . . . engaged in planning or perpetrating any act of domestic or
international terrorism (as defined in section 2331) against the Untie States, citizens or
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Modern Forfeiture Law
Property and Trigger Crimes
Modern forfeiture is a creature of statute. While there are some common themes
and general patterns concerning the crimes that trigger forfeiture, the property subject
to confiscation, and the procedures associated with forfeiture, the federal forfeiture
statutes are matters of legislative choice and can vary greatly.17
Virtually every kind of property, real or personal, tangible or intangible, may be
subject to confiscation under the appropriate circumstances.18 The laws that call for
the confiscation of contraband per se, property whose very possession has been
outlawed, are the most prevalent.19 Property, particularly vehicles used to facilitate
the commission of a crime and without which violation would be less likely, is also
frequently subject to confiscation.20
In some instances, Congress has authorized the confiscation of the direct and
indirect proceeds of illegal activities,21 and it has also authorized the forfeiture of
substitute assets when the property normally subject to confiscation under a particular
statute has become unavailable.22
residents of the United States, or their property. . . “); see also, 50 U.S.C. 1702(a)(1)(C).
At least to date, this authority has rarely, if ever, been used.
17 A list of federal forfeiture laws, along with the type of property whose confiscation they
permit or require, is appended, as are the citations to state RICO and drug forfeiture statutes.
18 E.g., 21 U.S.C. 853(b); 18 U.S.C. 1963(b)(“[p]roperty subject to criminal forfeiture
under this section includes — (1) real property, including things growing on, affixed to, and
found in land; and (2) tangible and intangible personal property, including rights, privileges,
interests, claims and securitiesâ€);United States v. Dicter, 198 F.3d 1284, 1290 (11th Cir.
1999) (a physician’s license to practice medicine is forfeitable under section 853); the full
text of 18 U.S.C. 1963 is appended.
19 E.g., 18 U.S.C. 2513 (wiretapping equipment), 18 U.S.C. 844 (unlawful explosives); 19
U.S.C. 467 (distilled spirits without a tax stamp).
20 E.g., 19 U.S.C. 1595a (conveyances used for smuggling); 18 U.S.C. 492 (counterfeiting
paraphernalia); 16 U.S.C. 128 (guns and traps used in violation of hunting and trapping
restrictions); 18 U.S.C. 229B(“any person convicted under section 229A(a)[relating to
chemical weapons] shall forfeit to the United States . . . any of the property used in any
manner or part, to commit, or to facilitate the commission of such violationâ€).
21 E.g., 18 U.S.C. 1963(a)(3) (racketeer influenced and corrupt organizations (RICO)); 21
U.S.C. 881(a)(6) (drug trafficking).
22 “If the property described in subsection (a) [listing the types of property forfeitable], as
a result of any act or omission of the defendant — (1) cannot be located upon the exercise
of due diligence; (2) has been transferred or sold to, or deposited with, a third party; (3) has
been placed beyond the jurisdiction of the court; (4) has been substantially diminished in
value; or (5) has been commingled with other property which cannot be divided without
difficulty; the court shall order the forfeiture of any other property of the defendant up to
the value of any property described in paragraphs (1) through (5).†18 U.S.C. 1963(m); 21
U.S.C. 853(p); see also, 18 U.S.C. 984(a)(1)(“In any forfeiture action in rem in which the
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Traditionally, the crimes that triggered forfeiture were those which threatened
the government’s revenue interest, e.g., smuggling, tax evasion, hunting or fishing
without a license, or those crimes which because of their perceived threat to public
health or morals might historically have been considered public nuisances subject to
abatement, e.g., gambling, or dealing in obscene material or illicit drug use.
Beginning with the racketeering statutes, a number of jurisdictions have created
a third category, adding some of the kinds of crimes which involve substantial
economic gain for the defendant even if not at the expense of government revenues,
but which may greatly enhance government revenues, e.g., racketeering and money
laundering.23 The trend is most obvious in the Civil Asset Forfeiture Reform Act
(CAFRA),24 which made forfeitable the proceeds from any of the crimes upon which
a money laundering or RICO prosecution might be based.25
Following the terrorists attacks on September 11, 2001, Congress authorized the
confiscation of another type of crime-related property — property owned by certain
terrorists regardless of whether property is traceable, used to facilitate, or connected
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 propertyâ€).
23 18 U.S.C. 981, 982 (money laundering); 18 U.S.C. 1963 (RICO).
24 Pub. L. 106-185, 114 Stat. 202 (2000).
25 18 U.S.C. 981(a)(1)(C)(“the following property is subject to forfeiture to the United
States . . . (C) Any property , real or personal, which constitutes or is derived from proceeds
traceable to . . . any offense constituting ‘specified unlawful activity’ (as defined in section
1956(c)(7) of this title)[i.e., the list of predicate offenses form money laundering (18 U.S.C.
1956) which list includes by cross reference all the predicate offenses for a RICO
prosecution)], or a conspiracy to commit such offenseâ€).
As one court noted, this trend could have unfortunate consequences, United States v.
Funds Held in the Name or for the Benefit of Wetterer, 210 F.3d 96, 110 (2d Cir. 2000)(“We
have previously observed the government’s virtually unchecked use of the civil forfeiture
statutes and the disregard for due process that is buried in those statutes. Another source of
potential abuse is that the forfeited funds are kept by the Department of Justice as a
supplement to its budget. Thus the agency that conceives the jurisdiction and ground for
seizures, and executes them, also absorbs their proceeds. This arrangement creates
incentives that evidently require a more-than-human judgment and restraint. The Supreme
Court has politely remarked on the Department of Justice’s direct pecuniary interest in
maximizing drug forfeitures to meet the Department’s budget target. See United States v.
James Daniel Good Real Property, 510 U.S. 43, 56 n.2 (1993)(quoting 1990 memo of the
Attorney General: ‘We must significantly increase production to reach our budget target. . . .
Every effort must be made to increase forfeiture income during the remaining three months
of fiscal year 1990.’). The bare financial facts of this case shine a light on the corrupting
incentives of this arrangement: we see aggressive but marginal claims asserted on dubious
jurisdiction to seize charitable funds raised for the relief of abject orphans in an
impoverished country, so that the money can be diverted for expenditure by the Department
of Justiceâ€). Sensitive to such criticism, CAFRA sought to balance increased procedural
efficiency with additional procedural safeguards.
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in any other way to any practical crime.26
Civil Procedure
Forfeiture follows one of two procedural routes. Although crime triggers all
forfeitures, they are classified as civil forfeitures or criminal forfeitures according to
the nature of the procedure which ends in confiscation.
Civil forfeiture is ordinarily the product of a civil, in rem proceeding in which
the property is treated as the offender.27 Within the confines of due process and the
language of the applicable statutes, the guilt or innocence of the property owner is
irrelevant; it is enough that the property was involved in a violation to which
forfeiture attaches in the manner in which statute demands.28 Criminal forfeiture
proceedings, on the other hand, are in personam proceedings, and confiscation is only
possible upon the conviction of the owner of the property and only to the extent of
defendant’s interest in the property.29
Historically, most forfeiture statutes called for civil forfeiture. The procedure for
forfeiture varies according to the statute which authorizes confiscation. Although
each usually contains a few procedural features, the drug, money laundering, and
several other civil forfeiture statutes fill in their procedural gaps by cross-reference to
the regime established under the customs laws.30 CAFRA, in the cases to which it
applies, reduces the extent to which civil forfeiture procedural matters that are
resolved by reference solely to the customs laws.31
26 50 U.S.C. 1702(a)(1)(C)(“. . .the President may. . . when the United States is engaged
in armed hostilities or has been attacked by a foreign country or foreign nationals, confiscate
any property, subject tot he jurisdiction of the United States, of any foreign person, foreign
organization, or foreign country that he determines has planned, authorized, aided, or
engaged in such hostilities or attacks against the United States . . .â€); see also, 18 U.S.C.
981(a)(1)(G)(i)(text at note 16, supra). At first glance, the two seem to resemble common
law forfeiture of estate.
27 “This [civil] ‘forfeiture proceeding . . . is in rem. It is the property which is proceeded
against, and by resort to a legal fiction, held guilty and condemned as though it were
conscious instead of inanimate and insentient,’†United States v. Ursery, 518 U.S. 267, 275
(1996), quoting Various Items of Personal Property v. United States, 282 U.S. 577, 284
(1931); see also, United States v. 10380 S.W. 28th Street (Borroto), 214 F.3d 1291, 1294
(11th Cir. 2000); United States v. Cherry, 330 F.3d 658, 669 n.16 (4th Cir. 2003); United
States v. All Funds Distributed to Weiss, 345 F.3d 49, 55 (2d Cir. 2003).
28 Bennis v. Michigan, 516 U.S. 442, 453 (1996); United States v. One “Piper†Aztec “Fâ€
DeLuxe Model 250 PA 23 Aircraft, 321 F.3d 355, 360 (3d Cir. 2003).
29 E.g., 21 U.S.C. 853(a); 18 U.S.C. 982, 1963(a); United States v. Totaro, 345 F.3d 989,
993 (8th Cir. 2003); cf., United States v. Ferrario-Pozzi, 368 F.3d 5, 8 (1st Cir. 2004).
30 18 U.S.C. 981(d); 21 U.S.C. 881(d).
31 18 U.S.C. 983; the new procedural framework, however, does not apply to forfeitures
that originate under the customs laws, the tax laws, and several others, 18 U.S.C. 983(i)(“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
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As a general rule, since the proceedings are in rem, actual or constructive
possession of the property by the court is a necessary first step in any confiscation
proceeding.32 The arrest of the property may be accomplished either by warrant under
the Federal Rules of Criminal Procedure or; if judicial proceedings have been filed,
by a warrant under the Supplemental Rules of Certain Admiralty and Maritime
Claims; or without warrant, if there is probable cause and other grounds under which
the Fourth Amendment permits a warrantless arrest; or pursuant to equivalent
authority under state law.33 Because realty cannot ordinarily be seized until after the
property owner has been given an opportunity for a hearing,34 the procedure differs
slightly in the case of real property.35 Where the seizure of the property causes an
undue hardship, CAFRA affords an owner the opportunity to petition the court for
release of the property pending the completion of forfeiture proceedings.36
provision of law codified in title 19 [(the customs laws)]; (B) the Internal Revenue Code of
1986 [(federal tax laws)]; (C) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et
seq.)[(relating to misbranded, adulterated and other unhealthy or unsafe food, drugs, or
cosmetics)]; (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)[relating to the
export of war materials in violation of the Neutrality Actâ€); see also, 18 U.S.C. 985 (civil
forfeiture of real property), 986 (subpoena of bank records) which contain additional
provisions applicable to “all civil forfeituresâ€and to “any civil forfeiture†respectively.
32 United States v. Ursery, 518 U.S. 267, 289 (1996)(“‘In contrast to the in personam nature
of criminal actions, [forfeiture] actions in rem have traditionally been viewed as civil
proceedings, with jurisdiction dependent upon seizure of a physical object’â€)(quoting United
States v. One Assortment of 89 Firearms, 465 U.S. 354, 363 (1984); Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U.S. 663, 684 (1974)); see also, Dobbin’s Distillery v.
United States, 96 U.S. 395, 396 (1877); United States v. $506,231 (Lombardo), 125 F.3d
442, 447-49 (7th Cir. 1997); United States v. All Funds Distributed to Weiss, 345 F.3d 49,
55 (2d Cir. 2003); United States v. All Funds in Account Banco Espanol de Credito, Spain,
295 F.3d 23, 27 n* (D.C. Cir. 2002); but see, Contents of Account Number 03001288 (Jalal)
v. United States, 344 F.3d 399, 404-405 (3d Cir. 2003).
In fact, until the Supreme Court’s decision in Republic National Bank v. United States,
506 U.S. 80 (1992), confirmed that initial rather than continued control was ordinarily
sufficient to support jurisdiction, some believed that a court’s continued jurisdiction
depended upon its continued control over the res, and that its power to proceed disappeared
if the property were released other than by accident, fraud or some other improper or
inequitable means, United States v. $1,322,242.58 (Road Atlanta, Inc.), 938 F.2d 433, 437
(3d Cir. 1991); United States v. $84,740.00 (Potter), 900 F.2d 1402, 1404 (9th Cir. 1990);
United States v. Four Parcels of Real Property, 941 F.2d 1428, 1435-436 (11th Cir. 1991);
Appellate Jurisdiction for Civil Forfeiture: The Case for the Continuation of Jurisdiction
Beyond the Release of the Res, 65 FORDHAM LAW REVIEW 679 (1991).
33 18 U.S.C. 981(b).
34 United States v. James Daniel Good Real Property, 510 U.S. 43 (1993).
35 18 U.S.C. 985.
36 18 U.S.C. 983(f); (“(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,
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Conversely, the government may be entitled to a restraining or protective order to
preserve the property pending the completion of forfeiture proceedings.37
In the interests of expediency and judicial economy, Congress has sometimes
authorized the use of administrative forfeiture as the first step after seizure in
uncontested cases.38 The procedure requires that those with an interest in the property
be notified and given an opportunity to request judicial forfeiture proceedings.39 If
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. . . .(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
claimantâ€); United States v. Undetermined Amount of U.S. Currency (Warren), 376 F.3d
260, 263-69 (4th Cir. 2004)(petition for release seized funds in order to pay attorneys’ fees
without incurring undue hardship denied on the grounds the funds would likely be dissipated
before the completion of forfeiture proceedings).
In a similar vein perhaps conscious of the fact that the seizure of vessel may cause
economic hardship greater than its market value, the customs laws authorize the release of
seized property upon the posting of an amount equal to its value, 19 U.S.C. 1614.
37 18 U.S.C. 983(j); United States v. Melrose East Subdivision, 357 F.3d 493, 498-500 (5th
Cir. 2004)(recognizing the government’s right to seek a restraining order, but
acknowledging that in such cases due process may require a post-restraint, pretrial hearing
on the forfeitability of the encumbered property).
38 Under CAFRA and the customs laws, administrative forfeiture may be used if the
property to be forfeited is cash; or if the property is worth less than $500,000; or is a boat,
plane or car used to carry or store drugs, 19 U.S.C. 1607; 21 U.S.C. 881(d); 18 U.S.C.
981(d). Under the tax laws, the procedure is available with respect to personal property
valued at $100,000 or less, 26 U.S.C. 7325. One commentator has estimated that each year
administrative forfeitures account for 80 to 85 percent of the 30,000 federal forfeitures,
Rabiej, Proposed Supplemental Rule G Governing Pretrial Procedures in Forfeiture in Rem
Actions, 51 FEDERAL LAWYER 41, 42 (Sept. 2004).
39 18 U.S.C. 983(a); 19 U.S.C. 1607, 1608. At any point after seizure, an owner or anyone
else with a property interest in the res may petition for remission or mitigation. Remission
is a petition for return of all of the property seized or its entire value; mitigation for return
of only a portion, see e.g., 28 C.F.R. pt. 9. The authority to grant remission or mitigation
is ordinarily a matter of discretion vested in the executive official whose agency is
responsible for enforcement of the law under which the property was confiscated and is
subject to only limited review. Courts will not review a decision to grant or withhold
remission or mitigation, although they will grant relief upon a showing of refusal to consider
a remission petition, In re $67,470.00 (Averhart), 901 F.2d 1540, 1543-545 (11th Cir. 1990);
Yskamp v. DEA, 163 F.3d 767, 770 (3d Cir. 1998); Vereda, Ltda v. United States, 271 F.3d
1367, 1371 (Fed. Cir. 2001); Congress, of course, may provide otherwise, e.g., 18 U.S.C.
3668 (permitting judicial remission or mitigation for forfeitures under federal liquor laws).
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they do not, the property is summarily declared forfeited.40
CAFRA establishes a timetable for administrative forfeitures under which the
government must notify those with a property interest of its intent to confiscate within
60 days of seizure.41 Thereafter, the property owner has at least 35 days within which
to file a claim and request judicial hearing.42 The government has 90 days within
which to initiate judicial proceedings after the receipt of a claim.43 In customs or tax
cases, due process dictates the speed within which the government must act.44
When administrative forfeiture is unavailable, or when a claimant has
successfully sought judicial proceedings, or when the government has elected not to
proceed administratively, the government may seek to secure a declaration of
forfeiture by filing either a complaint or a libel against the property.45 The property
owners have 30 days after the government’s filing to submit a claim,46 and 20 days
thereafter to tender their answer.47
The period within which a claimant must register his or her intent to contest may
be a fairly narrow window, and the courts may consider time of the essence, as long
40 19 U.S.C. 1609; 26 U.S.C. 7325. CAFRA creates a mechanism for the benefit of
owners whose property is summarily forfeited without adequate notice or opportunity to be
heard. 18 U.S.C. 983(e). Notwithstanding the expiration of an otherwise applicable statute
of limitations, the government is given 60 days to initiate judicial forfeiture proceedings
should the courts set aside an administrative forfeiture. This resolved a conflict among the
circuits over whether the statute of limitations barred further forfeiture proceedings in cases
where an administrative forfeiture was set aside after the period of limitations had run,
United States v. Dusenbery, 201 F.3d 763, 768 (6th Cir. 1999); cf., Boero v. Drug
Enforcement Administration, 111 F.3d 301, 306 (2d Cir. 1997); contra, United States v.
Marolf, 173 F.3d 1213, 1216-217 (9th Cir. 1999); Clymore v. United States, 164 F.3d 569,
572-74 (10th Cir. 1999); Kadonsky v. United States, 216 F.3d 499, 505-6 (5th Cir. 2000); cf.,
United States v. One Toshiba Color Television (McGlory), 213 F.3d 147, 158-59 (3d Cir.
2000).
41 18 U.S.C. 983(a)(1). The timetables of 18 U.S.C. 983 apply to the noncustoms forfeiture
statutes that once relied extensive upon customs procedure, e.g., 18 U.S.C. 981 (money
laundering) and 21 U.S.C. 881 (controlled substances), they do not apply to forfeitures
arising under the customs laws, 18 U.S.C. 983(i).
42 18 U.S.C. 983(a)(2)(the deadline is set in the notice but must give the claimant at least
35 days from the mailing of personal notice; 30 days from the final publication notice, if
personal notice is not received).
43 18 U.S.C. 983(a)(3).
44 See discussion infra,, at n.147 and accompanying text; Delay Between Seizure of
Personal Property by Federal Government and Institution of Proceedings for Forfeiture
Thereof as Violative of Fifth Amendment Due Process Requirements, 69 ALR Fed. 373.
45 18 U.S.C. 983(a)(3); 19 U.S.C. 1608.
46 18 U.S.C. 983(a)(4)(A); 20 days in customs cases, F.R.Civ.P.Supp.Rule C(6).
47 18 U.S.C. 983(a)(4)(B); F.R.Civ.P.Supp. Rule C(6).
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as the government has made reasonable efforts to notify interested parties.48 Even if
the government sustains no appreciable damage, a claim not promptly filed may be a
claim lost.49
In money laundering and other civil forfeitures governed by CAFRA, the
government must establish that the property is subject to confiscation by a
preponderance of the evidence.50 In cases such as those arising under the customs
laws and cases filed before the effective date of CAFRA amendments, the government
must establish probable cause to believe that the property is subject to forfeiture;51 if
the government overcomes this initial obstacle, the burden shifts to the claimant, who
48 United States v. Clark, 84 F.3d 378, 380 (10th Cir. 1996)(“Due process thus requires
‘notice reasonably calculated, under all the circumstances to apprise interested parties of the
pendency of the act and afford them an opportunity to present their objects’â€)(quoting
Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983)); Armendariz-Mata v. U.S.
Dept. of Justice, 82 F.3d 679, 683 (5th Cir. 1996); United States v. Marolf, 173 F.3d 1213,
1216 (9th Cir. 1999); Clymore v. United States, 164 F.3d 569, 572-74 (10th Cir. 1999);
Ikelionwu v. United States, 150 F.3d 233, 238-39 (2d Cir. 1998).
49 E.g., United States v. DEA, 92 F.3d 648, 654 (8th Cir. 1996)(“Should the citizen prove
inept, the government may keep the property, without having to explain its actionsâ€); United
States v. Lot 65 Pine Meadow, 976 F.2d 1155, 1156-157 (8th Cir. 1992)(upholding a decree
of forfeiture by default for filing a verified claim and answer on August 26, 1991 instead of
on August 13 when the claim should have been filed and on August 20 when the answer was
due); Sarit v. U.S. Drug Enforcement Administration, 987 F.2d 10, 15-7 (1st Cir. 1993);
United States v. Commodity Account No. 549 54930 (Lindstrom), 219 F.3d 595, 597-98 (7th
Cir. 2000).
50 18 U.S.C. 983(c); United States v. Dodge Caravan Grand SE/Sport Van, 387 F.3d 758,
761 (8th Cir. 2004); United States v. 5208 Los Franciscos Way, 385 F.3d 1187, 1191 (9th
Cir. 2004).
51 19 U.S.C. 1615; United States v. One Harrington and Richardson Rifle, Model M-14,
7.62 Caliber, 378 F.3d 533, 534 (6th Cir. 2004); United States v. Collado, 348 F.3d 323, 326-
327 (2d Cir. 2003); United States v. One “Piper†Aztec “F†DeLuxe Model 250 PA 23
Aircraft, 321 F.3d 355, 359-60 (3d Cir. 2003); Kadonsky v. United States, 216 F.3d 499, 503
(5th Cir. 2000); United States v. United States Currency Deposited for Active Trade Co., 176
F.3d 941, 944 (7th Cir. 1999); United States v. 22249 Dolorosa St., 167 F.3d 509, 513 (9th
Cir. 1999); United States v. $141,770 (Moreno-Pena), 157 F.3d 600, 603 (8th Cir. 1998).
“The standard for probable cause in forfeiture proceedings resembles that required to
support a search warrant. The determination of probable cause is based upon a totality of
the circumstances test, and the government’s evidence must be more than that which gives
rise to a mere suspicion, although it need not rise to the level of prima facie proof,†United
States v. One 1978 Piper Cherokee Aircraft 91 F.3d 1204, 1207 (9th Cir. 1996); United
States v. $39,873 (Armfield), 80 F.3d 317, 318 (8th Cir. 1996); United States v. United States
Currency Deposited for Active Trade Co., 176 F.3d at 944; United States v. $9,041,598.68
(Massieu), 163 F.3d at 246; United States v. $141,770 (Moreno-Pena), 157 F.3d at 603 (8th
Cir. 1998).
CAFRA does not apply retroactively; proceedings initiated prior to August 23, 2000
are governed by earlier law, United States v. $100,348 (Mayzel), 354 F.3d 1110, 1116 (9th
Cir. 2004); United States v. Collado, 348 F.3d at 326 (2d Cir. 2003); United States v. One
“Piper†Aztec “F†DeLuxe Model 250 PA 23 Aircraft, 321 F.3d at 357-58 (3d Cir. 2003);
United States v. $174,206 (Ricard), 320 F.3d 658, 661-62 (6th Cir. 2003); United States v.
Wagoner County Real Estate, 278 F.3d 1091, 1097 n.5 (10th Cir. 2002).
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must establish standing52 and, by a preponderance of the evidence, that his or her
interest in the property is not subject to a declaration of forfeiture.53
A claimant may successfully challenge confiscation on several grounds. He or
she may be able to show that the predicate criminal offense did not occur or that his
or her property lacks the statutorily required nexus to the crime.54 A claimant’s
innocence or even acquittal only bars civil forfeiture to the extent that a statute permits
or due process requires.55 For most civil forfeitures, other than those arising under the
tax or customs laws,56 CAFRA establishes two “innocent owner†defenses — one for
claimants with an interest in the property at the time the forfeiture-triggering offense
occurred and the other for claimants with an interest acquired after the forfeiture-
triggering offense occurred.57 The first is available to claimants either who were
52 The claimant must demonstrate some legal or equitable interest in the res, United States
v. Two Parcels Real Property Located in Russell County, 92 F.3d 1123, 1126 (11th Cir.
1996); United States v. Various Computers, 82 F.3d 582, 585 (3d Cir. 1996); United States
v. $9,041,598.68 (Massieu), 163 F.3d 238, 245 (5th Cir. 1999); United States v. One Parcel
of Property Located at RR2, 959 F.2d 101, 103-104 (8th Cir. 1992); United States v. 5208
Los Franciscos Way, 385 F.3d 1187, 1191 (9th Cir. 2004). Several courts have held that
possession or mere legal title may be insufficient to establish standing if the claimant is only
a nominal or straw owner who does not have dominion and control over the property, United
States v. Bridwell’s Grocery, 195 F.3d 819, 821-22 (6th Cir. 1999); United States v. Ford 250
Pickup, 980 F.2d 1242, 1246 (9th Cir. 1992); United States v. Cambio Exacto, S.A., 166 F.3d
522, 526-27 (2d Cir. 1999); United States v. Lot 111-B, 902 F.2d 1443, 1444 (9th Cir. 1990).
Standing is a threshold requirement for any claim, but at least one court, however, has
suggested that such a view constitutes a merger of the less demanding requirements for
standing with the more stringent “innocent owner†standards, United States v. One Lincoln
Navigator, 328 F.3d 1011, 1013-1014 (8th Cir. 2003); cf., United States v. $557,933.89 More
or Less (Mercado-Filpo), 287 F.3d 66, 77-79 (2d Cir. 2002)(explaining the absence of
conflict between the lower court’s finding of standing and the jury’s conclusion that the
claimant had no ownership interest in the res).
53 United States v. Funds Held in the Name or for the Benefit of Wetterer, 210 F.3d 96, 104
(2d Cir. 2000); United States v. United States Currency Deposited for Active Trade Co., 176
F.3d 941, 945 (7th Cir. 1999); United States v. $39,873 (Armfield), 80 F.3d 317, 318 (8th Cir.
1996); United States v. 5208 Los Franciscos Way, 385 F.3d 1187, 1193 (9th Cir. 2004).
54 United States v. $39,873, 80 F.3d 317, 318 (8th Cir. 1996); United States v. All Assets of
G.P.S. Automotive Corp., 66 F.3d 483, 487 (2d Cir. 1996); United States v. 22249 Dolorosa
St., 167 F.3d 509, 511 (9th Cir. 1999).
55 Austin v. United States, 509 U.S. at 617. The Supreme Court has observed that due
process precludes forfeiture either (1) where the property has “been taken from [its owner]
without his privity or consent†and used in a manner which would ordinarily give rise to
confiscation, or (2) where the owner was “not only. . . uninvolved in and unaware of the
wrongful activity, but also that he had done all that reasonably could be expected to prevent
the proscribed use of the property,†Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.
at 689. Although some argue that the splintered nature of the majority in Bennis v.
Michigan, 516 U.S. 442 (1996), erodes the support for this view, it remains the law until
modified or rejected by the Court.
56 Outside of CAFRA, statutory “innocent owner†defenses in civil forfeiture, more
generous than due process requires, are relative rare.
57 18 U.S.C. 983(d).
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unaware that their property was being criminally used or who did all that could be
reasonably expected of them to prevent criminal use of their property.58 The second
is for good faith purchasers who did not know of the taint on the property at the time
they acquired their interest.59
Where the court determines that the property is not subject to forfeiture, it must
be released to its owner, assuming the property can be lawfully possessed by its
owner.60 Regardless of the statutory procedure initially invoked, prevailing claimants
may be entitled to compensation for damages to the property incurred while in federal
custody,61 attorneys’ fees, post-judgment interest, and in some instances pre-judgment
interest.62 Where the property is declared forfeited, its disposal is a matter of statute.63
58 18 U.S.C. 983(d)(2)(A); United States v. One Lincoln Navigator, 328 F.3d 1011, 1014
(8th Cir. 2003); United States v. 16328 South 43rd East Avenue, 275 F.3d 1281, 1284 n.1 (10th
Cir. 2002).
59 18 U.S.C. 983(d)(3)(A). The defense may also be available to claimants who acquire an
interest in their primary residence through inheritance or divorce rather than by purchase,
18 U.S.C. 983(d)(3)(B); United States v. 221 Dana Avenue, 261 F.3d 65, 74 (1st Cir. 2001).
60 28 U.S.C. 2465 (text infra, note 62); Republic National Bank v. United States, 506 U.S.
80, 95 (1992); United States v. Seifuddin, 820 F.2d 1074, 1078-79 (9th Cir. 1987); cf., Lee
v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003)(“the government should not, by virtue
of its authority to seize, effect de facto forfeitures of property by retaining items indefinitely.
But we know that due process guarantees would prevent this. . .â€).
The property owner, however, is not entitled to the return of property that cannot be
lawfully possessed, Boggs v. Rubin, 161 F.3d 37, 40 (D.C. Cir. 1998); United States v.
Felici, 208 F.3d 667, 670 (8th Cir. 2000); United States v. Vanhorn, 296 F.3d 713, 719 (8th
Cir. 2002).
61 28 U.S.C. 2680(c)(“The provisions of this chapter and section 1346(b) of this title
[relating to federal tort claims] shall not apply to . . . (c) Any claim arising in respect of the
assessment or collection of any tax or customs duty, or the detention of any goods,
merchandise, or other property by any officer of customs or excise or any other law
enforcement officer, except that the provisions of this chapter and section 1346(b) of this
title apply to any claim based on injury or loss of goods, merchandise, or other property,
while in the possession of any officer of customs or excise or any other law enforcement
officer, if — (1) the property was seized for the purpose of forfeiture under any provision
of Federal law providing for the forfeiture of property other than as a sentence imposed
upon conviction of a criminal offense; (2) the interest of the claimant was not forfeited; (3)
the interest of the claimant was not remitted or mitigated (if the property was subject to
forfeiture); and (4) the claimant was not convicted of a crime for which the interest of the
claimant in the property was subject to forfeiture under a Federal criminal forfeiture lawâ€).
62 “(a) Upon the entry of a judgment for the claimant in any proceeding to condemn or
forfeit property seized or arrested under any provision of Federal law — (1) such property
shall be returned forthwith to the claimant or his agent; and (2) if it appears that there was
reasonable cause for the seizure or arrest, the court shall cause a proper certificate thereof
to be entered and, in such case, neither the person who made the seizure or arrest nor the
prosecutor shall be liable to suit or judgment on account of such suit or prosecution, nor
shall the claimant be entitled to costs, except as provided in subsection (b).
“(b)(1) Except as provided in paragraph (2), in any civil proceeding to forfeit property
under any provision of Federal law in which the claimant substantially prevails, the United
States shall be liable for — (A) reasonable attorney fees and other litigation costs reasonably
incurred by the claimant; (B) post-judgment interest, as set forth in section 1961 of this title;
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The Attorney General and the Secretary of the Treasury enjoy wide latitude to
transfer confiscated property to state, local, and foreign law enforcement agencies to
the extent of their participation of in the case,64 although both must be assured that the
transfers will encourage law enforcement cooperation.65
and (C) in cases involving currency, other negotiable instruments, or the proceeds of an
interlocutory sale — (i) interest actually paid to the United States from the date of seizure
or arrest of the property that resulted from the investment of the property in an
interest-bearing account or instrument; and (ii) an imputed amount of interest that such
currency, instruments, or proceeds would have earned at the rate applicable to the 30-day
Treasury Bill, for any period during which no interest was paid (not including any period
when the property reasonably was in use as evidence in an official proceeding or in
conducting scientific tests for the purpose of collecting evidence), commencing 15 days after
the property was seized by a Federal law enforcement agency, or was turned over to a
Federal law enforcement agency by a State or local law enforcement agency. (2)(A) The
United States shall not be required to disgorge the value of any intangible benefits nor make
any other payments to the claimant not specifically authorized by this subsection. (B) The
provisions of paragraph (1) shall not apply if the claimant is convicted of a crime for which
the interest of the claimant in the property was subject to forfeiture under a Federal criminal
forfeiture law. (C) If there are multiple claims to the same property, the United States shall
not be liable for costs and attorneys fees associated with any such claim if the United States
— (i) promptly recognizes such claim; (ii) promptly returns the interest of the claimant in
the property to the claimant, if the property can be divided without difficulty and there are
no competing claims to that portion of the property; (iii) does not cause the claimant to incur
additional, reasonable costs or fees; and (iv) prevails in obtaining forfeiture with respect to
one or more of the other claims. (D) If the court enters judgment in part for the claimant and
in part for the Government, the court shall reduce the award of costs and attorney fees
accordingly,†28 U.S.C. 2465.
63 18 U.S.C. 981(d), 881(d), 853(h)-(j).
64 “(1) The Secretary of the Treasury may apply property forfeited under this chapter in
accordance with subparagraph (A) or (B), or both: (A) Retain any of the property for official
use. (B) Transfer any of the property to — (i) any other Federal agency; (ii) any State or
local law enforcement agency that participated directly or indirectly in the seizure or
forfeiture of the property; or (iii) the Civil Air Patrol.
“(2) The Secretary may transfer any 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 2291j(b) of Title 22.
“(3) Aircraft may be transferred to the Civil Air Patrol under paragraph (1)(B)(iii) in
support of air search and rescue and other emergency services and, pursuant to a
memorandum of understanding entered into with a Federal agency, illegal drug traffic
surveillance. Jet-powered aircraft may not be transferred to the Civil Air Patrol under the
authority of paragraph (1)(B)(iii),†19 U.S.C. 1616a(c). The Attorney General enjoys
similar authority under 21 U.S.C. 881(e) and 18 U.S.C. 981(e), (i).
65 “The Attorney General shall assure that any property transferred to a State or local law
enforcement agency under [21 U.S.C. 881(e)(1)(A)] — (A) has a value that bears a
reasonable relationship to the degree of direct participation of the State or local agency in
the law enforcement effort resulting in the forfeiture, taking into account the total value of
all property forfeited and the total law enforcement effort with respect to the violation of law
on which the forfeiture is based; and (B) will serve to encourage further cooperation
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At one time, this “equitable sharing†transfer authority could not be used unless
the Attorney General was convinced that confiscated property “[was] not so
transferred to circumvent any requirement of State law that prohibits forfeiture or
limits use or disposition of property forfeited to State or local agencies,†21 U.S.C.
881(e)(3)(B)(1988 ed.). The restriction addressed sometimes controversial adoptive
forfeitures.66
Adoptive forfeiture occurs when property is forfeitable under federal law and the
Department of Justice “adopts,†for processing under federal law, a forfeiture case
brought to it by state or local law enforcement officials and in which the United States
is not otherwise involved. Federal adoption is sometimes attractive because of the
speed afforded by federal administrative forfeiture. It may also be attractive because
forfeiture would be impossible or more difficult under state law or because law
enforcement agencies would not share as extensively in the bounty of a successful
forfeiture under state law.
The circumvention restriction is no longer in effect, but the Treasury and Justice
Departments insist that state and local law enforcement agencies indicate the law
enforcement purposes to which the transferred property is to be devoted and that the
transfer will increase and not supplant law enforcement resources.67
between the recipient State or local agency and Federal law enforcement agencies,†21
U.S.C. 881(e)(3); see also, 31 U.S.C. 9703(b)(4).
66 In re U.S. Currency, $844,520 (Cole), 136 F.3d 581, 582 (8th Cir. 1998)(Loken, J.,
concurring) (“But the underlying facts of ths case should prompt Congress and the
Department of Justice to investigate whether federal law enforcement officials are using
their extensive forfeiture powers to frustrate the fiscal policy of States such as Missouriâ€);
United States v. Winston-Salem/Forsyth County Bd. of Education, 902 F.2d 267, 267(4th
Cir. 1990))(“Practice of local officials of allowing federal officials to adopt seizures made
by the local law enforcement official and to federally forfeit the property, with a portion
returned to the local law enforcement agency, does not violate federal law, even though the
practice assertedly allows state officials to avoid following [a] state constitutional provision
that all forfeited monies be used to maintain the public schoolsâ€).
67 Executive Office for Asset Forfeiture, United States Department of the Treasury, Guide
to Equitable Sharing for Foreign Countries and Federal, State, and Local Law Enforcement
Agencies, 11 (April 2004); United States Department of Justice, United States Attorneys’
Manual, §9-118.510, available on Dec. 6, 2004 at [http://www.usdoj.gov]. Recipients may,
however, use assets acquired through an equitable sharing program for matching purposes
with respect to any COPS (Community Policing) grants they receive, 42 U.S.C. 3796dd-
3(b)(1).
The Department of Justice has estimated that it will share close to $250 million with
state, local and foreign law enforcement agencies in fiscal year 2005, Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations for 2001:
Hearings Before a Subcomm. of the House Comm. on Appropriations (Pt.2), 108th Cong.,
2d Sess. 946 (2004). The Treasury Department made equitable sharing payments of $34.9
million in fiscal year 2003, United States Department of the Treasury, Treasury Forfeiture
Report: Fiscal Year 2003, 40 (2004).
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Criminal Procedure
Although less numerous than civil confiscation statutes and once less frequently
relied upon, by the decade of the 1990s criminal forfeiture statutes had became widely
used.68 CAFRA added to the federal crimes punishable by criminal forfeiture, various
offenses involving unlawful money transmission,69 counterfeiting,70 identify fraud,71
credit card fraud,72 computer fraud,73 theft related to motor vehicles,74 health care
68 Although traditionally the value of property confiscated under civil forfeiture provisions
has dwarfed that confiscated under criminal forfeiture statutes, the most recent Justice
Department statistics indicate that criminal forfeiture judgments have surpassed civil
forfeiture judgments every year since fiscal 1995, United States Department of Justice,
Executive Office for United States Attorneys, United States Attorneys Annual Statistical
Report: Fiscal Year 2003, AF Chart 1, 37 (2004), available on Dec. 2, 2004 at
[http://www.usdoj.gov].
69 18 U.S.C. 982(a)(1)(“The court, in imposing sentence on a person convicted of an
offense in violation of section . . . 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 propertyâ€).
70 18 U.S.C. 982(a)(2) (“The court, in imposing sentence on a person convicted of a
violation of, or a conspiracy to violate . .. (B) section 471, 472, 473, 474, 476, 477, 478, 479,
480, 481, 485, 486, 487, 488, 501, 502, 510, 542, 545, 842, 844. . . 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 violationâ€).
71 18 U.S.C. 982(a)(2)(“The court, in imposing sentence on a person convicted of a
violation of, or a conspiracy to violate . . . (B) section . . . 1028 . . . 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 violationâ€).
72 18 U.S.C. 982(a)(2)(“The court, in imposing sentence on a person convicted of a
violation of, or a conspiracy to violate . . . (B) section . . . 1029 . . . 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 violationâ€).
73 18 U.S.C. 982(a)(2)(“The court, in imposing sentence on a person convicted of a
violation of, or a conspiracy to violate . . . (B) section . . . 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 violationâ€).
74 18 U.S.C. 982(a)(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 violationâ€).
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fraud,75 telemarketing fraud,76 bank fraud,77 and immigration-related offenses.78
75 18 U.S.C. 982(a)(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 offenseâ€).
76 18 U.S.C. 982(a)(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 offenseâ€).
77 18 U.S.C. 982(a)(2), (3), (4)(“(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, . . .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
offenseâ€).
78 18 U.S.C. 982(a)(6)(“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
subparagraphâ€).
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Criminal forfeiture is a consequence of conviction.79 It is punishment, even though
it may also serve remedial purposes very effectively.80 While civil forfeiture treats the
property as the defendant, confiscating the interests of the innocent and guilty alike,
criminal forfeiture consumes only the property interests of the convicted defendant.81
The indictment or information upon which the conviction is based must list the
property which the government asserts is subject to confiscation,82 and the defendant
is entitled to a jury finding of the necessary connection between the crime of
conviction and the property to be confiscated.83 Since the court’s jurisdiction does
not depend upon initial control of the res, it need not be seized before forfeiture is
declared.84 The court, however, in some instances may restrain the use or transfer of
property the government contends is subject to confiscation.85
The defenses to criminal forfeiture differ somewhat from those available in cases
of civil forfeiture. For example, since conviction is a prerequisite to confiscation,
acquittal will bar forfeiture. Third party interests are less likely to be cut off by virtue
of the property’s proximity to criminal conduct simply because only the defendant’s
interest in the property is subject to confiscation and because bona fide purchaser
exceptions are more common. Bona fide purchaser exceptions protect a good faith
purchaser who acquired the property after commission of the offense — at which time
79 E.g., 18 U.S.C. 982 (money laundering); 18 U.S.C. 1963 (RICO); 21 U.S.C. 853 (drug
dealing).
80 The federal Racketeer Influenced and Corrupt Organization (RICO) forfeiture statute,
for example, is designed not only to sever the offender from the organization he or she has
corrupted but to confiscate any property right which affords a source of influence over the
enterprise, 18 U.S.C. 1963(a)(2)(D).
81 “[T]he government may reach only the defendant’s substitute assets and not those of a
third party,†United States v. Saccoccia, 354 F.3d 9, 15 (1st Cir. 2003).
82 Fed.R.Crim.P. 7(c), 32.2(a).
83 Fed.R.Crim.P. 32.2(b)(4).
84 Rule 32.2 permits the Attorney General to seize the property upon the court’s entry of
a preliminary forfeiture order, Fed.R.Crim.P. 32.2(b)(3).
85 E.g., 21 U.S.C. 853(e)(1),(2). A defendant may have a due process right to a pre-trial,
post-restraint hearing as to whether the government has probable cause to believe that the
restrained property is subject to confiscation, if the property is the only means available to
the defendant with which to retain private counsel or provide for the defendant and his or
her family, United States v. Jones, 160 F.3d 641, 647-48 (10th Cir. 1998).
Substitute assets may become subject to forfeiture if the tainted property as become
unavailable, but most courts have refused to permit pre-trial restraint orders on substitute
assets, United States v. Patelidis, 335 F.3d 226, 234 (3d Cir. 2003); United States v. Gotti,
155 F.3d 144, 147-49 (2d Cir. 1998); United States v. Riley, 78 F.3d 367, 371 (8th Cir. 1996);
In re Assets of Martin, 1 F.3d 1351, 1359 (3d Cir. 1993); United States v. Floyd, 992 F.2d
498, 502 (5th Cir. 1993); cf., United States v. Farmer, 274 F.3d 800, 802 (4th Cir.
2001)(emphasis added)(“Furthermore, in Caplin’s companion case, the Court held that the
pre-trial restraint of a criminal defendant’s assets does not violate the constitution as long
as the assets are restrained based upon a finding of probable cause that they are subject to
forfeiture. United States v. Monsanto, 491 U.S. 600, 615-16 (1989)†).
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title to the property vested in the United States — but before the declaration of
forfeiture.86
After conviction of the defendant, the court usually declares forfeited property
described in the indictment and found subject to confiscation by the jury or the trier
of fact.87 Those with claims to the property, other than the defendant, are then entitled
to notice and a judicial hearing on their claims.88 The disposal of property that
remains after claims have been resolved is a matter of statute discussed below.
Disposition of Forfeited Assets
Generally
As with everything else, once constitutional questions have been resolved,
disposal of forfeited property is a matter of statute. The pertinent statute may require
that the proceeds of a confiscation be devoted to a single purpose, such as the support
of education or deposit in the general fund. More often, however, the law will permit
disposal in a number of ways which may include destruction of property that may not
be lawfully possessed;89 the payment of rewards, settlement of claims against the
property, or granting remission or mitigation.90 Intergovernmental transfers and the
use of special funds, however, are the hallmarks of the more prominent federal
forfeiture statutes.
86 Perhaps the best known of these are found in the RICO and the drug trafficking criminal
forfeiture provisions, “. . . . [a]ny such property that is subsequently transferred to a person
other than the defendant may be the subject of a special verdict of forfeiture and thereafter
shall be ordered forfeited to the United States, unless the transferee establishes in a hearing
pursuant to subsection (l) that he is a bona fide purchaser for value of such property who at
the time of purchase was reasonably without cause to believe that the property was subject
to forfeiture under this section.†18 U.S.C. 1963(c); 21 U.S.C. 853(c).
87 E.g., 18 U.S.C. 1963(e); 21 U.S.C. 853(g). Other than the guilt of the property owner,
there is no right to a jury trial on disputed factual issues in criminal forfeiture, Libretti v.
United States, 516 U.S. 29 (1995). Even after the Supreme Court’s Apprendi decision,
discussed infra, the lower courts have generally found that issues of fact of forfeitability
may be resolved by a preponderance of the evidence rather than by proof beyond a
reasonable doubt, United States v. Messino, 382 F.3d 704, 713-14 (7th Cir. 2004); United
States v. Gaskin, 364 F.3d 438, 461 (2d Cir. 2004); United States v. Cuervo, 354 F.3d 969,
996 (8th Cir. 2004); United States v. Keene, 341 F.3d 78, 85-6 (1st Cir. 2003); United States
v. Najjar, 300 F.3d 466, 485-85 (4th Cir. 2002); contrary, United States v. Pelullo, 14 F.3d
881, 904 (3d Cir. 1994); of course either standard is more demanding than the probable
cause burden the government must shoulder in civil forfeiture cases.
Other than with the agreement of the government, the courts are not free to order the
confiscation of substitute assets in place of available tainted property, United States v. Hill,
167 F.3d 1055, 1073-74 (6th Cir. 1999).
88 E.g., 18 U.S.C. 1963(l); 21 U.S.C. 853(n).
89 E.g., 21 U.S.C. 881(f).
90 E.g., 21 U.S.C. 881(e).
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As noted earlier, the Attorney General and the Secretary of the Treasury enjoy
considerable discretion to transfer confiscated property to state, local, and foreign law
enforcement agencies,91 although both must be assured that the transfers will
encourage law enforcement cooperation.
Federal law requires that confiscated cash or the proceeds from the sale of
confiscated property which remain after any transfers or other statutorily authorized
disposition be deposited in a special fund. The Department of Justice Asset Forfeiture
Fund,92 and the Department of the Treasury Forfeiture Fund,93 first created in 1984,
constitute such statutory depositories.
Federal Funds
The Comprehensive Crime Control Act of 1984 changed the way the federal
government deals with revenues realized from the collection of fines and forfeitures.94
Prior to the Act, virtually all of the money realized from fines and forfeitures, like
most federal revenues, was deposited in the general fund of the United States
Treasury. Through the enactment of annual appropriation bills, Congress permitted
91 “(1) The Secretary of the Treasury may apply property forfeited under this chapter in
accordance with subparagraph (A) or (B), or both: (A) Retain any of the property for official
use. (B) Transfer any of the property to — (i) any other Federal agency; (ii) any State or
local law enforcement agency that participated directly or indirectly in the seizure or
forfeiture of the property; or (iii) the Civil Air Patrol.
“(2) The Secretary may transfer any 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 2291j(b) of Title 22.
“(3) Aircraft may be transferred to the Civil Air Patrol under paragraph (1)(B)(iii) in
support of air search and rescue and other emergency services and, pursuant to a
memorandum of understanding entered into with a Federal agency, illegal drug traffic
surveillance. Jet-powered aircraft may not be transferred to the Civil Air Patrol under the
authority of paragraph (1)(B)(iii),†19 U.S.C. 1616a(c). The Attorney General enjoys
similar authority under 21 U.S.C. 881(e) and 18 U.S.C. 981(e), (i).
92 28 U.S.C. 524(c).
93 31 U.S.C. 9703.
94 Creation of the forfeiture funds and other forfeiture adjustments can be traced to
criticisms, beginning in the 96th Congress, that the drug and racketeering forfeiture
provisions enacted in 1970 were being underutilized, were difficult to enforce, and that the
proceeds from such confiscations should be used more directly for law enforcement
purposes. E.g., Forfeiture of Narcotics Proceeds: Hearings Before the Subcomm. on
Criminal Justice of the Senate Comm. on the Judiciary, 96th Cong., 2d Sess. (1980);
Forfeiture in Drug Cases: Hearings Before the Subcomm. on Crime of the House Comm.
on the Judiciary, 97th Cong., 1st & 2d Sess. (1982); DEA Oversight and Budget Authority:
Hearing Before the Subcomm. on Security and Terrorism of the Senate Comm. on the
Judiciary, 97th Cong., 2d Sess. (1982); General Accounting Office, Asset Forfeiture — A
Seldom Used Tool in Combatting Drug Trafficking, GGD 81-5 (April 10, 1981).
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the money in the general fund to be spent to finance the activities it had authorized by
statute.95
The Crime Control legislation created three new funds to receive revenues
collected as part of the federal criminal law enforcement process, and Congress added
a fourth a few years later. The Customs Forfeiture Fund, which became the
Department of the Treasury Forfeiture Fund, and the Department of Justice Asset
Forfeiture Fund collect confiscated cash and the proceeds from other forfeitures which
are devoted to federal and state law enforcement purposes. The Treasury and Justice
Department Funds, together receive close to three quarters of a billion dollars per
year.96
95 The Constitution requires that “[n]o money shall be drawn from the Treasury, but in
consequence of appropriations made by law,†U.S.Const. Art.I, §9, cl.7, and so “no money
can be paid out of the Treasury unless it has been appropriated by an act of Congress,†OPM
v. Richmond, 496 U.S. 414, 424 (1990). Congress ordinarily authorizes an appropriation
before it makes an appropriation. An authorization of appropriation is little more than a
prediction of future appropriations; it is not an appropriation nor is Congress bound by it.
Most appropriations are made on an annual basis, but Congress may enact an appropriation
measure covering several years or making a “permanent†appropriation. Sometimes
Congress requires that money appropriated be spent within a particular time period such as
during a particular fiscal year; other times such as here it gives its permission “without fiscal
year limitation.†See generally, General Accounting Office [Government Accountability
Office], Principles of Federal Appropriations Law, 2-13 to 2-14, 2-40 to 2-42 (2004),
available on Dec. 6, 2004 at [http://www.gao.gov].
96 The Department of Justice estimates receipts of almost $460 million during fiscal year
2005, Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations for 2005: Hearings Before a Subcomm. of the House Comm. on
Appropriations (Pt.2), 108th Cong., 2d Sess. 940 (2004); while Treasury calculates
anticipated receipts of $251 million for FY’ 2005, Treasury, Postal Service, and General
Government Appropriations for Fiscal Year 2005: Hearings Before a Subcomm. of the
House Comm. on Appropriations (Pt.2), 108th Cong., 2d Sess. 160 (2004).
A third fund, the Special Forfeiture Fund at one time used to fund the drug czar’s
office, no longer receives forfeiture proceeds. A fourth, the Crime Victims Fund, which
technically is fed by federal “Son of Sam†and espionage forfeitures, in fact is supported
primarily by receipts from a source other than forfeiture — the proceeds from the collections
of criminal fines — which are used to support a grant program for the relief of victims of
crime.
References to the Postal Service Fund, 39 U.S.C. 2003, which might be considered a
fifth forfeiture fund, have been omitted as general matter for several reasons. Although it
receives the Postal Service share of equitably distributed forfeitures, it was not created
solely or even primarily for that purpose. It is instead a general operational fund into which
all or virtually all Postal Service receipts are deposited and which is available, not merely
for law enforcement or related purposes but for the general operational needs of the Postal
Service, 39 U.S.C. 2003(e)(1)(“The Fund shall be available for the payment of all expenses
incurred by the Postal Service in carrying out its functions as provided by law . . .â€). As a
practical matter it is much more closely analogous to the general fund than to any of the
forfeiture funds under discussion.
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Department of Justice Asset Forfeiture Fund
Congress created the Department of Justice Asset Forfeiture Fund97 as part of the
Comprehensive Crime Control Act of 1984.98 The Department of Justice administers
the Fund, which receives confiscated cash and the proceeds from forfeitures conducted
under the laws enforced or administered by the Department of Justice and the
Department of Justice’s equitable share of forfeitures conducted by other state,
federal, or foreign law enforcement agencies.99
Before confiscated cash or the proceeds from the sale of other confiscated
property is paid into the Fund, the Attorney General may often authorize it to be
transferred to or shared with other federal, state, local, or foreign law enforcement
agencies who have participated in the investigation or proceedings that resulted in
confiscation.100
After money has been paid into the Fund, the Attorney General may use it to
pay:
- forfeiture related expenses,
- rewards to informants in illicit drug cases,101
- rewards to informants in forfeiture cases,102
- liens and mortgages against forfeited property,
- remission and mitigation in forfeiture cases,
- to equip cars, boats and planes for law enforcement purposes,103
- to purchase evidence of money laundering or of federal drug crimes,
- to pay state and local real estate taxes on forfeited property;
- to pay overtime, travel, training and the like for assisting state and local law
enforcement personnel;
- federal correctional construction costs,
97 28 U.S.C. 524(c).
98 98 Stat. 2052, 2193.
99 28 U.S.C. 524(c)(4). The proceeds from three forfeiture provisions are expressly
excluded from the Fund, those pursuant to: (1) section 11(d) of the Endangered Species Act
(16 U.S.C. 1540(d)), (2) section 6(d) of the Lacey Act Amendments of 1981(16 U.S.C.
3375(d)), and (3) section 2003(b)(7) of title 39 of the United States Code dealing with the
Postal Service, id.
100 E.g., 21 U.S.C. 881(e); 19 U.S.C. 1616a; 21 U.S.C. 853(i); 18 U.S.C. 981(d),(e); 18
U.S.C. 982(b); 18 U.S.C. 1963(g).
101 Rewards may not exceed $500,000, 28 U.S.C. 524(c)((2).
102 Rewards may not exceed the lesser of $500,000 or 25% of the amount realized from the
confiscation without the personal approval of the Attorney General and notification of the
chairmen and ranking minority members of the Appropriations and Judiciary Committees,
id.
103 The amount paid here may not exceed $100,000 without the approval of the agency
head, 28 U.S.C. 524(c)(3).
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- the Special Forfeiture Fund,104
- to pay for joint state, local and federal cooperative law enforcement operations;
and
- for a number of short-term expenditures specifically appropriated in a particular
year,105 28 U.S.C. 524(c).106
Although once money has been appropriated it may be spent in any fiscal year,
access to the Fund is generally subject to annual appropriation. Congress has,
however, enacted a permanent appropriation for noncomputer-related expenses
associated with the forfeiture process, with satisfying liens and mortgages, and with
granting petitions of remission and mitigation, 28 U.S.C. 524(c)(1), (8).
Record-keeping functions are performed under contract paid out of the Fund, but
as a general rule the Department of Justice has not used the Fund to pay the salaries
and expenses of the United States Marshals Service personnel responsible for
management of the seized assets and the Fund. Except in the case of equitable sharing
where they are covered by the administrative fee, those costs have generally been
handled through the overall salaries and expenses appropriation for the Marshals
Service.107
104 The “drug czar’s†office was originally supported by the Special Forfeiture Fund, and
the Fund continued in existence even after the office secured a more regular, more reliable
source of support. Deposits in the Special Forfeiture Fund extended only through Fiscal
Year 1997, 28 U.S.C. 524(c)(8).
105 E.g., 28 U.S.C. 524(c)(1)(H) making the Fund available during fiscal year 1989 to pay
expenses related to prison construction; Anti-Drug Abuse Act, §9310, Pub. L. 100-690, 102
Stat. 4540 (1988) to pay U.S. Attorney salaries and expenses during fiscal year 1989 for
purposes authorized in the Omnibus Drug Initiative Act.
106 The Department of Justice anticipated that during fiscal year 2005 the Fund would be
used to pay:
$44.2 million to management seized assets;
$73.1 million to settle liens, mortgages, and petitions for remission and mitigation;
$60.6 million for automation-related contract costs;
$18.2 million for automation;
$9.4 million for training and printing;
$8.5 million for information leading to forfeiture;
$18.6 for audits, financial statements, management analysis and similar services;
$5.1 million for contract to identify assets;
$1 million to equip cars, boats and planes for law enforcement use;
$2.1 million for storage and destruction of controlled substances;
$37.771 million for joint state, local and federal cooperative law enforcement
operations; and
$250 million would be transferred to state, local and foreign governments.
Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations for 2005: Hearings Before a Subcomm. of the House Comm. on
Appropriations (Pt.2), 1086th Cong., 2d Sess. 945-47 (2004).
107 Criminal Division, United States Department of Justice, Asset Forfeiture: Law and
Practice Manual, 10-26 n.115 (June, 1998); Executive Office of Asset Forfeiture, United
States Department of Justice, The Attorney General’s Guidelines on Seized and Forfeited
Property, 19 (July, 1990); Department of Commerce, Justice, and State, the Judiciary, and
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Department of the Treasury Forfeiture Fund
The Department of the Treasury Forfeiture Fund began as the Customs Forfeiture
Fund and was also created by the Comprehensive Crime Control Act.108 It is
administered by the Secretary of the Treasury and receives deposits of forfeited
currency and proceeds from forfeitures under laws enforced or administered by the
Department of the Treasury or the Coast Guard, amounts received by the Department
of the Treasury or the Coast Guard as an equitable share of a forfeiture conducted by
other authorities, or income realized from investments on behalf of the Fund, 31
U.S.C. 9703(d).109 The Administration has indicated that it intends to merge the
Justice and Treasury Department Funds, but the 108th Congress ended without the
introduction of the necessary legislation.110
Before confiscated cash or the proceeds from the sale of other confiscated
property are paid into the Fund, the Secretary of the Treasury may also authorize
transfer of the property to other federal, state, local, or foreign law enforcement
agencies who assisted in its forfeiture, 19 U.S.C. 1616a.
After money has been paid into the Fund, the Secretary of the Treasury makes
one portion available to the Coast Guard in an amount reflecting its contributions.111
The moneys available for the Coast Guard may be used to equip cars, boats and planes
for law enforcement purposes, to pay overtime and similar expenses for state and local
Related Agencies Appropriations: Hearings Before a Subcomm. of the House Comm. on
Appropriations, 100th Cong., 2d Sess. 734-35 (1988) (Marshals Service response to
questions submitted for the record).
108 Pub. L. 98-473, §§317, 2304, 98 Stat. 2054, 2193 (1984). In fact in the hectic days at
the end of the Congress, the Fund was established twice, Pub. L. 98-573, §213(a)(11), 98
Stat. 2986 (1984), and continued its dual existence for a couple of years, see 19 U.S.C.
1613a, 1613b (Supp. II, 1984); (Supp. III. 1985). In 1986 and 1987, Congress repealed both
and then revived one of the sections, Pub.L. 99-514, § 1888 (7), 100 Stat. 2925 (1986);
Pub.L. 99-570, §1152(b)(1), 100 Stat. 3207-12 (1986); Pub. L.100-71, 101 Stat. 438 (1987).
109 Tax enforcement is exempted generally, 31 U.S.C. 9703(a), (d) and during fiscal year
1993, the transition period between the Customs Service and the Department of the Treasury
Funds, deposits are those from laws administered or enforced by the Customs Service and
equitable shares earned by the Customs Service rather than the entire Department, 31 U.S.C.
9703(d).
110 Budget of the U.S. Government, Fiscal Year 2004: Appendix, 770 (2004); Departments
of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations for
2005: Hearings Before a Subcomm. of the House Comm. on Appropriations (Pt.2), 108th
Cong. 2d Sess. 937 (2004).
111 “The Secretary shall make available to the United States Coast Guard, from funds
appropriated under subsection (g)(2)* in excess of $10,000,000 for a fiscal year, an amount
equal to the net proceeds in the Fund derived from seizures by the Coast Guard,†31 U.S.C.
9703(c).
*â€There are authorized to be appropriated from the Fund to carry out the purposes set
forth in subsections (a)(2) and (c) not to exceed — (A) $25,000,000 for fiscal year 1993;
and (B) $50,000,000 for each fiscal year after fiscal year 1993.†31 U.S.C. 9703(g)(2).
CRS-24
law enforcement officers in a joint operation, and to satisfy environmental
requirements before sinking hazards to navigation, 31 U.S.C. 9703(c).
The Fund is otherwise available to the Secretary of the Treasury for a number of
purposes, including paying:
- expenses associated with the forfeiture,
- claims against the property,
- liens and mortgages against forfeited property,112
- remission and mitigation,
- rewards for information concerning violations of the customs laws,113
- rewards for information or assistance resulting in a Department of Treasury
forfeiture,
- to equip cars, boats and planes for law enforcement purposes,
- to purchase evidence of various crimes traditionally within the jurisdiction of
the Department,114
-to reimburse the expenses of private individuals associated with Department law
enforcement activities,
- for equitable sharing, if not accomplished prior to deposit in the Fund,115
- for “overtime salaries, travel, fuel, training, equipment, and other similar costs
of State and local law enforcement officers that are incurred in joint law
enforcement operations;†and
- to train foreign law enforcement personnel in Department forfeiture related
matters, 31 U.S.C. 9703(a), (g)(3).
Congress has established a permanent appropriation to pay for forfeiture- related
expenses, for the settlement of claims, liens, and mortgages, for remission and
mitigation, rewards under the customs laws, and equitable sharing, 31 U.S.C.
9703(g)(1).
Special Forfeiture Fund
The Special Forfeiture Fund, initially a depository of forfeiture proceeds, was
created to fund the Office of National Drug Control Policy (the “drug czarâ€).116 The
Office is now funded by direct appropriations, and the Fund, through which various
112 Payments to settle liens or mortgages or in remission or mitigation may not exceed the
value of the property at the time of seizure, 31 U.S.C. 9703(b)(1).
113 The amount paid as a reward may not be more than 25% of the amount realized in the
forfeiture, 19 U.S.C. 1619(a)(2).
114 The offenses include money laundering, any of the money laundering predicate
offenses, drug smuggling, credit card or computer fraud, counterfeiting, various firearms and
explosives offenses, and fraud against certain financial institutions, 31 U.S.C.
9703(a)(2)(B).
115 Equitable sharing payments may not exceed the value of the property at the time of
disposal, 31 U.S.C. 9703(b)(2).
116 Congress established the Special Forfeiture Fund in the Anti-Drug Abuse Act of 1988,
Pub.L. 100-690, §6073, 102 Stat. 4323.
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drug-related programs are funded by directed appropriation, is no longer a recipient
of forfeiture proceeds.117
Crime Victims Fund
The Justice Department’s Office for Victims of Crime in the Office of Justice
Programs administers the Crime Victims Fund created by the Crime Control Act,
Pub. L. 98-473, §1402, 98 Stat. 2170 (1984).118 The Fund receives revenues collected
as fines for violations of federal criminal law, as special assessments against
misdemeanor offenders, as a consequence of jumping bail, 42 U.S.C. 10601,119 and
from the operation of the espionage provisions of 18 U.S.C. 794 and the “Son of Samâ€
forfeiture provisions of 18 U.S.C. 3681.120 The Fund is available for grants to the
States for crime victim compensation and assistance programs, for HHS child-abuse
prevention and treatment grants, and to reimburse the courts for administrative costs,
42 U.S.C. 10601 to 10603a.121
Constitutional Considerations
Until recently, it could safely be said that the Constitution afforded state and
federal governments extraordinary latitude to enact and enforce forfeiture statutes;
forfeiture often seemed unusual, sometimes severe, and occasionally unfair, yet with
117 E.g., P..L. 105-277, 112 Stat. 2681-496, 2681-497 (1998).
118 See generally, Wolf, Victims of Crime Compensation and Assistance: Background and
Funding, CRS Report RL32579 (Sept. 14, 2004).
119 It does not receive fines imposed under section 11(d) of the Endangered Species Act,
16 U.S.C. 1540(d); section 6(d) of the Lacey Act Amendments, 16 U.S.C. 3375(d); section
311 of the Federal Water Pollution Control Act, 33 U.S.C. 1321; or those deposited in the
Postal Service Fund, 39 U.S.C. 2601(a)(2), 2003; or in the railroad unemployment insurance
account, 45 U.S.C. 351 et seq., 42 U.S.C. 10601.
120 Section 3681 (special forfeiture of collateral profits of crime) establishes an escrow
account within the Crime Victims Forfeiture Fund to receive the proceeds paid to those
convicted of certain espionage or violent federal offenses for their literary efforts depicting
their crimes. The account is available for five years to satisfy judgements in favor of the
victims of such crimes, criminal fines, and, to a limited extent to pay for the defendant’s
attorneys’ fees. After five years, the court may order the residue paid out of escrow and into
the Fund.
The section is not likely to have accounted for any substantial contributions to the
Fund since the Fund could not have begun to receive unrestricted deposits under section
3681 until after the fifth anniversary of the section’s enactment in November, 1991 and
shortly thereafter the prospect of future receipts was clouded by the Supreme Court’s
opinion in Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105 (1991), holding
the New York State “Son of Sam†statute inconsistent with the First Amendment, Cohen,
Theâ€Son of Sam†Case: First Amendment Analysis and Legislative Implications, CRS Rep.
No. 92-56A (Feb. 27, 2002).
121 In fiscal year 2001, the Fund was expected to provide $550 million, Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations for 2001:
Hearings Before a Subcomm. of the House Comm. on Appropriations (Pt.2), 106th Cong.,
2d Sess. 2925 (2000).
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rare exceptions it was not unconstitutional. In 1993, the Court handed down a series
of decisions that seemed to signal its uneasiness with the trends in forfeiture law.122
Thereafter, it announced another series of opinions that seem to deny any inclination
to totally repudiate the government’s broad forfeiture authority,123 yet in terms that
incrementally began to define the constitutional borders of that authority.124
Eighth Amendment
The Eighth Amendment states in its entirety that “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.â€
The lower courts had on several occasions held that criminal forfeitures are subject
to Eighth Amendment analysis,125 but Eighth Amendment concerns were generally
considered irrelevant in civil forfeiture cases because the Amendment was thought to
be limited to criminal punishments while civil forfeitures were remedial and thus
neither criminal nor punishments.126
This changed in 1993 when the Supreme Court announced that the Eighth
Amendment’s excessive fines clause applies not only to criminal forfeitures but to
122 Austin v. United States, 509 U.S. 602 (1993); Alexander v. United States, 509 U.S. 544
(1993)(holding eighth amendment excessive fines standards applicable to civil and criminal
forfeitures respectively); United States v. 92 Buena Vista Avenue, 507 U.S. 111 (1993)(a
seemingly tortured statutory construction that could be read as driven by due process
concerns for the property rights of innocent owners); Republic National Bank v. United
States, 506 U.S. 80 (1992)(a case in which all nine members of the Court rejected
application of the strict in rem legal fiction that the government sought to employ and in
which one justice went so far as to observe that “I am surprised that the Government would
make such a transparently fallacious argument in support of its unconscionable position in
this case,†506 U.S. at 99 (Stevens, J., concurring in part and concurring in the judgment)).
123 United States v. Ursery, 518 U.S. 267 (1996)(rejecting the suggestion that the double
jeopardy clause preclude, consecutive forfeiture proceedings and criminal prosecutions);
Bennis v. Michigan, 516 U.S. 442 (1996)(refusing, at least under the facts before it, to find
that due process bars the confiscation of the property of an innocent owner); Libretti v.
United States, 516 U.S. 29 (1995)(holding that neither the promise of a jury trial found in
the Sixth Amendment nor that in the Federal Rules of Criminal Procedure extended to
questions of fact in criminal forfeiture proceedings).
124 United States v. James Daniel Good Real Property, 510 U.S. 43 (1993)(generally
requiring pre-seizure notice and hearing in cases of real property); United States v.
Bajakajian, 524 U.S. 321 (1998)(holding criminal forfeitures to a grossly disproportionate
standard under the excessive fines clause); see also, Degen v. United States, 517 U.S. 820
(1996)(declining the request to extend the common law doctrine of fugitive disentitlement
so as to bar fugitive claimants from contesting the forfeiture of their property)(CAFRA
subsequently extended the doctrine as a matter of statute, 28 U.S.C. 2466).
125 United States v. Sarbello, 985 F.2d 716, 722 (3d Cir. 1993); United States v. Bucuvalas,
970 F.2d 937, 945-46 (1st Cir. 1992); United States v. Smith, 966 F.2d 1045, 1056 (6th Cir.
1992)
126 E.g., United States v. Santoro, 866 F.2d 1538, 1544 (4th Cir. 1989); United States v. One
107.9 Acre Parcel of Land, 898 F.2d 396, 400-1 (3d Cir. 1990).
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some civil forfeitures as well.127 The full impact of those decisions remained
uncertain initially, because the Court declined to articulate a test by which to measure
particular forfeitures against the clause’s proscriptions.128 It subsequently selected the
standard used as the measure under the parallel cruel and unusual punishment clause
of the Eighth Amendment: “a punitive forfeiture violates the Excessive Fines Clause
if it is grossly disproportionate to the gravity of a defendant’s offense.â€129 Early
returns indicated that the lower federal courts may have some difficulty applying the
standard,130 but at least as a starting point, they now appear to consider the Bajakajian
127 Alexander v. United States, 509 U.S. 544 (1993); Austin v. United States, 509 U.S. 602
(1993).
128 Austin v. United States, 509 U.S. at 622; Alexander v. United States, 509 U.S. at 559.
129 United States v. Bajakajian, 524 U.S. 321, 334 (1998). Bajakajian had tried to leave the
United States with $357,144 in cash and pled guilty to willfully failing to accurately report
the fact (as required by 31 U.S.C. 5316 and made punishable under 18 U.S.C. 5322). The
cash was neither criminally acquired, used, nor destined. Bajakajian’s “crime was solely a
reporting offense,†524 U.S. at 337; one for which the applicable federal sentencing
guidelines made him liable to a maximum term of imprisonment of six months and a
maximum fine of $5,000. The harm . . . caused was also minimal. Failure to report this
currency affected only one party, the Government and in a relatively minor way. There was
no fraud on the United States, and [he] caused no loss to the public fisc. Had his crime gone
undetected, the Government would have been deprived only of the information that
$357,144 had left the country,†524 U.S. at 338-39.
The Court was unpersuaded by the government’s claim that early statutes which set
the fine for various customs evasion offenses at twice the value of the goods demonstrated
historic acceptance of proportional penalties. These “early monetary forfeitures . . . were
considered not as punishment for an offense, but rather as serving the remedial purpose of
reimbursing the government for the losses accruing from the evasion of customs duties,†524
U.S. at 342. Consistent with this observation, several lower federal courts have rejected
Excessive Fines Clause arguments because the statutes in question were purely remedial
rather than punitive, e.g., United States v. Land [in] Winston Country (Wood), 221 F.3d
1194, 1199 (11th Cir. 2000);(18 U.S.C. 1955(d)); United States v. $273,963.94 (Puzo), 164
F.3d 462, 466 (9th Cir. 1999)(19 U.S.C. 1497); United States v. An Antique Platter of Gold
(Stenhardt), 184 F.3d 131, 139-40 (2d Cir. 1999), and one did so because although arising
under the same statute as Austin the court was convinced that the purpose of confiscation
in the case before it was remedial and not punitive, United States v. 1948 South Martin
Luther King Drive (Locher), 270 F.3d 1102, 1114-115 (7th Cir. 2001).
130 E.g., United States v. $273,963.94 (Puzo), 164 F.3d 462 (9th Cir. 1999)(finding the
record below insufficiently “developed to permit a decision as to whether the forfeiture in
this case was excessive. For example, although it is clear that Puzo’s crime was solely a
reporting offense, the district court made no finding as to whether the currency was illegally
acquired or intended for illicit purposesâ€); United States v. Beras, 183 F.3d 22, 29 (1st Cir.
1999)(vacating criminal forfeiture of $138,794 following conviction for willful failure to
report currency being transported from the United States and remanding with instructions
to draft an inexcessive forfeiture order considering: “(1) that Beras’s violation was not
related to any other illegal activities; (2) other penalties that Congress has authorized for
Beras’s crimes as well as the maximum penalty provided by the Sentencing Guidelines; and;
(3) the extent of the harm caused by Beras’s actions); compare, Yskamp v. DEA, 163 F.3d
767, 773 (3d Cir. 1998)(“The DEA noted that CIGNA’s insurance policy reimbursed a
claimant even though the property seized was used in illegal drug trafficking, which
effectively insulated criminals from the loss consequences of their crimes. Consequently,
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standard cumulative. A punitive forfeiture will not be considered an excessive fine
if it is distinguishable on one or more of the grounds Bajakajian mentioned as
indicative of gross disproportionality, i.e., a single crime, unrelated to any other
criminality, causing relatively little harm, but resulting in a forfeiture greatly
disproportionate to the authorized fine.131
Double Jeopardy
Historically, the procedure used to accomplish forfeiture made a difference for
purposes of the Fifth Amendment’s double jeopardy clause.132 Where confiscation
was accomplished through civil, in rem proceedings against the property, a prior trial
of the property owner resulting in either acquittal or conviction was no bar to
the forfeiture of the jet does not violate the constitutional ban on excessive finesâ€), with,
United States v. Dicter, 198 F.3d 1284, 1292 (11th Cir. 1999)(“we do not taker into account
the personal impact of a forfeiture on the specific defendant in determining whether the
forefeiture violates the Eighth Amendmentâ€).
131 United States v. Dodge Caravan Grand SE/Sport Van (Clemons), 387 F.3d 758, 763 (8th
Cir. 2004)(“if the value of the property forfeited is within or near the permissible range of
fines using the sentencing guidelines, the forfeiture almost certainly is not excessiveâ€);
United States v. $100,348 (Mayzel), 354 F.3d 1110, 1122 (9th Cir. 2004)(applying
Bajakajian factors in a similar case and concluding that confiscation of the full $100,348
would constitute an excessive fine, but the reduced forfeiture of $10,000 did not); United
States v. Puche, 350 F.3d 1137, 1154 (11th Cir. 2003)(“defendant’s reliance on Bajakajian
is misplaced as the defendant in that case was not a money launderer and was convicted only
for a reporting offenseâ€); United States v. Collado, 348 F.3d 323, 328 (2d Cir.
2003)(owner’s conduct in allowing her property to be used for drug dealing constituted a
serious, harmful crime (21 U.S.C. 856) subject to a fine in excessive of the value of the
property); United States v. Bollin, 264 F.3d 391, 418-19 (4th Cir. 2001)(money laundering
over an extended period of time in connection with a harmful securities fraud scheme
contrasted with a single reporting violations). In some instances the courts will weigh over
factors as well, United States v. Dodge Caravan Grand SE/Sport Van (Clemons), 387 F.3d
at 763 (“â€In this circuit, we apply a two-pronged approach that first requires the claimant
to make a prima facie showing of gross disproportionality. . . . If the claimant can make this
showing, the court considers whether the disproportionality reaches such a level of
excessiveness that in justice the punishment is more criminal than the crime. To determine
whether the facts indicate gross disproportionality, the district court must consider multiple
factors, including the extent and duration of the criminal conduct, the gravity of the offense
weighed against the severity fo the criminal sanction, and the value of the property forfeited.
We have also identified other helpful inquiries such as an assessment of the personal benefit
reaped by the defendant, the defendant’s motive and culpability and, of course, the extent
that the defendant’s interest and the enterprise itself are tainted by criminal conduct. This
list is not exhaustive, and . . . we have criticized an excessive fines analysis that failed to
consider factors such as the monetary value of the property, the extent of the criminal
activity associated with the property, the fact that the property was a residence, the effect
of the forfeiture on innocent occupants of the residence, including children, or any other
factors that an excessive fine analysis might requireâ€).
132 The double jeopardy clause which declares that no one shall “be subject for the same
offence to be twice put in jeopardy of life or limb, U.S.Const. Amend.V, prohibits both
successive punishment and successive prosecutions of the same individual for the same
criminal offense,†United States v. Dixon, 509 U.S. 688, 696 (1993).
CRS-29
subsequent forfeiture proceedings.133 Where conviction was a prerequisite to
forfeiture, if double jeopardy precluded further trial and conviction, it likewise
precluded forfeiture.
The Supreme Court’s conclusion in Austin that certain civil forfeitures may be
considered punitive for purposes of the Eighth Amendment’s excessive fines clause
seemed to have obvious double jeopardy implications. In fact, the Court went so far
as to note that its past decisions declining to apply the double jeopardy clause to civil
forfeitures arose “only in cases where the forfeiture could properly be characterized
as remedial.â€134 Yet the Court in United States v. Ursery, 518 U.S. 267 (1996)
reaffirmed its faith in the traditional tests. Forfeitures that Congress has designated as
remedial civil sanctions do not implicate double jeopardy concerns unless “the
statutory scheme [is] so punitive either in purpose or effect as to negate Congress’
intention to establish a civil remedial mechanism,†518 U.S. at 278.135
Sixth Amendment
The Sixth Amendment assures the accused in criminal proceedings the right to
a jury trial and to the assistance of counsel. The right to the assistance of counsel in
criminal cases, however, does not prevent the government from confiscating fees paid
to counsel,136 or, upon a probable cause showing, from obtaining a restraining order
to freeze assets preventing the payment of attorneys’ fees.137 The Amendment is by
its terms only applicable “in all criminal prosecutions,†and consequently there is no
constitutionally required right to assistance of counsel in civil forfeiture cases.138
133 One Lot Emerald Cut Stones v. United States, 490 U.S. 232 (1972); United States v. One
Assortment of Firearms, 465 U.S. 354, 366 (1984) (“We accordingly conclude that the
forfeiture mechanism set forth in §924(d) is not an additional penalty for the commission
of a criminal act, but rather a separate civil sanction, remedial in nature. Because the
§924(d) forfeiture proceeding brought against Mulcahey’s firearms is not a criminal
proceeding, it is not barred by the Double Jeopardy Clause.â€).
134 Austin v. United States, 509 U.S. at 608 n.4.
135 United States v. Leyland, 277 F.3d 628, 633 (2d Cir. 2002)(criminal prosecution
following civil forfeiture does raise double jeopardy concerns); United States v. 817 N.E.
29th Drive, 175 F.3d 1304, 1311 (11th Cir. 1999) (civil forfeiture following conviction; “a
forfeiture action cannot serve as the basis for a claim under the Double Jeopardy Clauseâ€);
United States v. Candelaria-Silva, 166 F.3d 19, 43-4 (1st Cir. 1999) (criminal forfeiture
following initiation of civil forfeiture proceedings; “a completed civil forfeiture of property
does not constitute ‘jeopardy’ under the Double Jeopardy Clause, and does not bar the
subsequent criminal prosecution and punishment of the defendant whose property was
forfeitedâ€).
136 Caplin & Drysdale v. United States, 491 U.S. 617 (1989); United States v. Farmer, 274
F.3d 800, 802 (4th Cir. 2001).
137 United States v. Monsanto, 491 U.S. 600 (1989); United States v. Undetermined Amount
of U.S. Currency (Warren), 376 F.3d 260, 269 (4th Cir. 2004); United States v. Melrose East
Subdivision, 357 F.3d 493, 500 (5th Cir. 2004).
138 United States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1311 no.13 (11th Cir. 1999); United
States v. Michelle’s Lounge, 39 F.3d 684, 698 (7th Cir. 1994). CAFRA, however, permits
the appointment of counsel for an indigent civil forfeiture claimant for whom counsel has
CRS-30
The Court’s opinion in Libretti, to the effect that there is no right to a jury trial
on disputed factual issues in criminal forfeiture, rests on a somewhat battered
foundation. At the time, it was thought that “there [was] no Sixth Amendment right
to jury sentencing, even where the sentence turns on specific finding of fact.†516 U.S.
at 49, quoting McMillan v. Pennsylvania, 477 U.S. 79, 93 (1986). Thereafter, the
Court explained that McMillan impermissibly slighted the right to have certain
sentencing factors decided by the jury. “Any fact that increases the penalty for a crime
beyond the prescribed statutory maximum,†the Court declared in Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), “must be submitted to a jury, and proved beyond
a reasonable doubt.†The erosion of McMillan notwithstanding, the fact that criminal
forfeiture is a penalty within “the prescribed statutory maximum†and that Rule 32.2
of the Federal Rules of Criminal Procedure affords an expanded jury determination
right would seem to shield federal criminal forfeiture procedures from Apprendi-based
attacks. Although Apprendi’s implications for the preponderance standard might
appear slightly more ominous, the federal appellate courts have either explicitly or
implicitly declined to apply Apprendi to criminal forfeitures.139
Due Process
Due process objections can come in such a multitude of variations that general
statements are hazardous. More specifically, due process demands that those with an
interest in the property the government seeks to confiscate be given notice and
opportunity for a hearing to contest.140 In some instances, due process permits the
initiation of forfeiture proceedings by seizing the personal property in question
without first giving the property owner either notice or the prior opportunity of a
hearing to contest the seizure and confiscation.141 But absent exigent circumstances,
already been appointed in connection with a related criminal case, 18 U.S.C. 983(b).
139 United States v. Shryock, 342 F.3d 948, 991 (9th Cir. 2003)(refusing to apply Apprendi);
United States v. Keene, 341 F.3d 78, 85-6 (1st Cir. 2003)(same); United States v. Vera, 278
F.3d 672, 673 (7th Cir. 2002)(same); United States v. Gasanova, 332 F.3d 297, 302-303 (5th
Cir. 2003)(same); United States v. Cabez, 258 F.3d 1256, 1257 (11th Cir. 2001)(same);
United States v. Gaskin, 364 F.3d 438, 461 (2d Cir. 2004)(upholding use of the
preponderance standard); United States v. Cuervo, 354 F.3d 969, 996 (8th Cir. 2004)(same);
United States v. Cherry, 330 F.3d 658, 669-70 (4th Cir. 2003)(same).
140 United States v. James Daniel Good Real Property, 510 U.S. 43, 48 (1993); United
States v. Ritchie, 342 F.3d 903, 901-11 (9th Cir. 2003); Helton v. Hunt, 330 F.3d 242, 247
(4th Cir. 2003); Krimstock v. Kelly, 306 F.3d 40, 51 (2d Cir. 2002).
141 “Fuentes [v. Shevin, 407 U.S. 67 (1972)] reaffirmed, however, that, in limited
circumstances, immediate seizure of a property interest, without an opportunity for prior
hearing, is constitutionally permissible. Such circumstances are those in which the seizure
has been directly necessary to secure an important governmental or general public interest.
Second, there has been a special need for prompt action. Third, the State has kept strict
control over its monopoly of legitimate force: the person initiating the seizure has been a
government official responsible for determining, under standards of a narrowly drawn
statute, that it was necessary and justified in the particular instance.†[407 U.S.] at 91. . . .
The considerations that justified postponement of notice and hearing in those cases are
present here. First, seizure under the Puerto Rican statutes serves significant governmental
purposes: Seizure permits Puerto Rico to assert in rem jurisdiction over the property in order
CRS-31
the owner is entitled to the opportunity for a preseizure hearing in the case of real
property where there is no real danger that the property will be spirited away in order
to frustrate efforts to secure in rem jurisdiction over it.142 Due process at some point
will also require a pretrial hearing on the forfeitability of property made subject to a
postseizure, pretrial restraining order designed to prevent dissipation.143
While due process clearly limits at some point the circumstances under which the
property of an innocent owner may be confiscated,144 the Court has declined the
opportunity to broadly assert that due process uniformly precludes confiscation of the
property of an innocent owner, Bennis v. Michigan, 516 U.S. 442 (1996).145 Bennis,
however, is a 5-4 decision in which Justice Ginsburg joined the majority but filed a
concurring opinion in which she emphasized the importance of the case’s somewhat
individualistic facts.146
to conduct forfeiture proceedings, thereby fostering the public interest in preventing
continued illicit use of the property and in enforcing criminal sanctions. Second, preseizure
notice and hearing might frustrate the interests served by the statutes, since the property
seized — as here, a yacht — will often be of a sort that could be removed to another
jurisdiction, destroyed, or concealed, if advance warning of confiscation were given. And
finally, unlike the situation in Fuentes, seizure is not initiated by self-interested private
parties; rather Commonwealth officials determine whether seizure is appropriate under the
provisions of the Puerto Rico statutes.†Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. at 678-79; see also, United States v. Melrose East Subdivision, 357 F.3d 493, 502 (5th
Cir. 2004); United States v. Any and All Radio Station Transmission Equipment (Perez), 218
F.3d 543, 550-51 (6th Cir. 2000); Yskamp v. DEA, 163 F.3d 767, 774 (3d Cir. 1998); United
States v. Lot 41, Berryhill Farm Estates, 128 F.3d 1386, 1392 (10th Cir. 1997); United
States v. Down, 68 F.3d 1030, 1038-39 (8th Cir. 1995).
142 United States v. James Daniel Good Real Property, 510 U.S. 43 (1993).
143 United States v. Melrose East Subdivision, 357 F.3d 493, 499-500 (5th Cir. 2004), citing
inter alia, United States v. Jones, 160 F.3d 641, 645-48 (10th Cir. 1998); United States v.
Moya-Gomez, 860 F.2d 760, 729-30 (7th Cir. 1988); United States v. Farmer, 274 F.3d 800,
805 (4th Cir. 2001); United States v. Michelle’s Lounge, 39 F.3d 684, 700-01 (7th Cir. 1994).
144 Due process bars forfeiture either (1) where the property has “been taken from [its
owner] without his privity or consent†and used in a manner which would ordinarily give
rise to confiscation, or (2) where the owner was “not only. . . uninvolved in and unaware of
the wrongful activity, but also that he had done all that reasonably could be expected to
prevent the proscribed use of the property,†Calero-Toledo v. Pearson Yacht Leasing Co.,
416 U.S. at 689.
145 Bennis also reaffirmed that the takings clause stands as no impediment to an otherwise
valid forfeiture: “Petitioner also claims that the forfeiture in this case was a taking of private
property for public use in violation of the Takings Clause of the Fifth Amendment, made
applicable to the States by the Fourteenth Amendment. But if the forfeiture proceeding here
in question did not violate the Fourteenth Amendment, the property in the automobile was
transferred by virtue of that proceeding from petitioner to the State. The government may
not be required to compensate an owner for property which it has already lawfully acquired
under the exercise of governmental authority other than the power of eminent domain,â€
Bennis v. Michigan, 516 U.S. at 452; see also, United States v. $7,990 (Fiorentino), 170
F.3d 843, 845 (8th Cir. 1999).
146 Bennis v. Michigan, 516 U.S. at 457-58 (“I join the opinion of the Court and highlight
features of the case key to my judgment. . . . First, it bears emphasis that the car in question
CRS-32
Any delay between seizure and hearing offends due process only when it fails to
meet the test applied in speedy trial cases: is the delay unreasonable given the length
of delay, the reasons for the delay, the claimant’s assertion of his or her rights, and
prejudice to the claimant?147
In other challenges, the lower federal courts have found that due process permits:
the procedure of shifting the burden of proof to a forfeiture claimant after the
government has shown probable cause and allows use of a probable cause standard
in civil forfeitures;148 postponement of the determination of third-party interests in
criminal forfeiture cases until after trial in the main,149 and fugitive disentitlement
under 28 U.S.C. 2466.150
Whether in cases occasioned by delay, failure of notice, or want of
predeprivational hearing for real property, the lower courts at point became somewhat
ensnarled in the consequences that flow from a finding that the government has
violated due process demands in a forfeiture context. Some concluded that the lack
of due process voided the purported administrative or judicial forfeiture even if an
intervening statute of limitations barred relitigation of confiscation proceedings;151
others determined that the forfeiture need not be vacated152 although they sometimes
belonged to John Bennis as much as it did to Tina Bennis. . . . The sole question, then, is
whether Tina Bennis is entitled not to the car, but to a portion of the proceeds (if any there
be after deduction of police, prosecutorial, and court costs) as a matter of constitutional
right. Second, it was ‘critical’ to the judgment of the Michigan Supreme Court that the
nuisance abatement proceedings is an `equitable action.’. . . That means the State’s Supreme
Court stands ready to police exorbitant applications of the statute. . . . Nor it is fair to charge
the trial court with ‘blatant unfairness’ in the case at hand. . . . The court declined to order
a division of sale proceeds. . . for two practical reasons: the Bennises have ‘another
automobile’ and the age and value of the forfeited car . . . left practically nothing to divide
after subtraction of costs. Michigan in short has not embarked on an experiment to punish
innocent third parties. Nor do we conduct any such experiment. Michigan has decided to
deter johns from using cars they own (or co-own) to contribute to neighborhood blight, and
that abatement endeavor hardly warrants this Court’s disapprobationâ€).
147 United States v. $8,850 (Vasquez), 461 U.S. 555, 562-65 (1983); United States v. Ninety
Three Firearms, 330 F.3d 414, 424-26 (6th Cir. 2003); ( United States v. $12,248 (Johnson),
957 F.2d 1513, 1518-519 (9th Cir. 1991); United States v. Premises Located at Route 13, 946
F.2d 749, 754-56 (11th Cir. 1991).
148 United States v. Melrose East Subdivision, 357 F.3d 493, 501 (5th Cir. 2004); United
States v. Property, Parcel of Aguilar, 337 F.3d 225,229-33 (2d Cir. 2003); United States v.
One “Piper†Aztec “F†DeLuxe Model 250 PA 23 Aircraft, 321 F.3d 355, 360-61 (3d Cir.
2003); United States v. Land [in] Winston County (Woods), 163 F.3d 1295, 1303 (11th Cir.
1998); United States v. Santoro, 866 F.2d 1538, 1544 (4th Cir. 1989).
149 United States v. McHan, 345 F.3d 262, 269-70 (4th Cir. 2003).
150 Collazos v. United States, 368 F.3d 190, 202 (2d Cir. 2004).
151 United States v. Marolf, 173 F.3d 1213, 1216-218 (9th Cir. 1999); Clymore v. United
States, 164 F.3d 569, 574 (10th Cir. 1999); Small v. United States, 136 F.3d 1334, 1338
(D.C.Cir. 1998); United States v. Girealdo, 45 F.3d 509, 512 (1st Cir. 1995).
152 Adames v. United States, 171 F.3d 728, 732 (2d Cir. 1999).
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held that the property owner might be entitled to disgorgement or interest.153 CAFRA
resolved the conflict by establishing a timetable within which the government must
restart forfeiture proceedings following a claimant’s successful motion setting aside
an earlier confiscation declaration.154
Article III
Section 3 of Article III of the United States Constitution does not appear to
threaten most contemporary forfeiture statutes. It provides in part that “no attainder
of treason shall work corruption of blood, or forfeiture except during the life of the
persons attainted.†The section on its face seems to restrict forfeiture only in treason
cases, but at least one court has suggested a broader scope.155
Even if Article III when read in conjunction with the due process clause reaches
not only treason but all crimes, its prohibitions run only to forfeiture of estate. They
do not address statutory forfeitures of the type currently found in state and federal law.
The critical distinction between forfeiture of estate and statutory forfeiture is that in
the first all of the defendant’s property, related or unrelated to the offense and
acquired before, during, or after the crime, is confiscated. In the second, confiscation
is only possible if the property is related to the criminal conduct in the manner defined
by the statute. Some have suggested that Congress intended to revive forfeiture of
estate when it crafted the RICO criminal forfeiture provisions.156 The courts have
nevertheless upheld the RICO provisions in the face of Article III challenges.157
153 United States v. 1184 Drycreek Rd., 174 F.3d 720, 727-28 (6th Cir. 1999); United States
v. Land [in] Winston County (Woods), 163 F.3d 1295, 1301-302 (11th Cir. 1998); United
States v. Marsh, 105 F.3d 927, 931 (4th Cir. 1997); United States v. 51 Pieces of Real
Property (Nitsua Management), 17 F.3d 1306, 1319 (10th Cir. 1994).
Some circuits refuse to recognize the authority to permit such awards against the
government, United States v. $7,990 (Fiorentino), 170 F.3d 843, 844-46 (8th Cir. 1999);
Ikelionwu v. United States, 150 F.3d 233, 238-39 (2d Cir. 1998).
154 18 U.S.C. 983(e).
155 United States v. Grande, 620 F.2d 1026, 1038 (4th Cir. 1980) (“We would agree . . . that
if [18 U.S.C.] §1963 [RICO criminal forfeiture] revives forfeiture of estate as that concept
was expressed in the Constitution it is almost certainly invalid because of the irrationality
of a ruling that forfeiture of estate cannot be imposed for treason but can be imposed for a
pattern of lesser crimesâ€).
156 The confusion apparently stems from the Congressional decision to authorize the use
of criminal, in personam procedures rather than civil, in rem procedures to accomplish
confiscation in RICO cases, see S.Rept. 617, 91st Cong., 1st Sess. 79 (1969). The character
of the forfeiture, however, turns not upon the nature of the procedure selected but rather
whether there is any required nexus between the property and the misconduct which
provides the necessary predicate for confiscation.
157 United States v. Grande, 620 F.2d 1026, 1037-39 (4th Cir. 1980); United States v.
Thevis, 474 F.Supp. 134, 140-41 (N.D.Ga. 1979), aff’d, 665 F.2d 616 (5th Cir. 1982); United
States v. Anderson, 637 F.Supp. 632, 634 (N.D.Cal. 1986); United States v. Pryba, 674
F.Supp. 1504, 1517 (E.D.Va. 1987).
Under some interpretations, Article III or its due process shadow may limit the breadth
or availability of the chemical weapons criminal forfeiture provisions and some of the
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Fourth Amendment
Fourth Amendment questions may appear somewhat unsettled. Many statutes
reflect the traditional view that the seizure of forfeitable property may be
accomplished without observing the normal demands of the Amendment’s warrant
requirements.158 The present position of the Supreme Court is uncertain159 and the
lower courts are split as to whether purely domestic forfeiture seizures must comply
with the warrant requirements in the absence of some other applicable and recognized
exception, e.g., seizure of evidence incident to lawful arrest or vehicle seizures.160 The
terrorist civil forfeiture provisions, 18 U.S.C. 229B(“Any person convicted under section
229A(a) shall forfeit to the United States . . . (1) any property, real or personal, owned . . .
by a person involved in the offenseâ€) (note that like the forfeiture of estate condemned in
Article III the only apparent nexus between the property and the crime is the property
owner); 18 U.S.C. 981(a)(1)(G)(i); 50 U.S.C. 1702(a)(1)(C).
158 The Fourth Amendment guarantees that, “The right of the people to be secure in their
persons, houses, papers and effects, against unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.â€
159 “Warrantless searches [and seizures] are presumptively unreasonable, though the Court
has recognized a few limited exceptions to this general rule. E.g., United States v. Ross,
456 U.S. 798 (1982)(automobiles); Schneckloth v. Bustamonte, 412 U.S. 218 (1973)
(consent); Warden v. Hayden, 387 U.S. 294 (1967).†United States v. Karo, 468 U.S. 705,
717 (1984).
The Court noted some time ago that, “The seizure of stolen goods is authorized by the
common law; and the seizure of goods forfeited for a breach of the revenue laws, or
concealed to avoid the duties payable on them, has been authorized by English statutes for
at least two centuries past; and the like seizures have been authorized by our own revenue
acts from the commencement of the government. The first statute passed by Congress to
regulate the collection of duties, the act of July 31, 1789, 1 Stat. 19, 43, contains provisions
to this effect. “As this act was passed by the same Congress which proposed for adoption
the original amendments to the constitution, it is clear that the members of that body did not
regard searches and seizures of this kind as unreasonable,†and they are not embraced within
the prohibitions of the [fourth] amendment.†Boyd v. United States, 116 U.S. 616, 623
(1886), quoted in United States v. Ramsey, 431 U.S. 606, 617 (1977).
While the Court continues to recognize an exception to the warrant requirements in
customs and other border entry cases, United States v. Montoya de Hernandez, 473 U.S. 531
(1985), it is less clear that it would find that the exception embraced purely domestic
forfeiture seizures, Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989)(“. . . the
general rule under the Fourth Amendment is that any and all contraband, instrumentalities,
and evidence of crimes may be seized on probable cause and even without a warrant in
various circumstances. . . .â€).
160 Compare United States v. Salmon, 944 F.2d 1106, 1119 (3d Cir. 1991), with United
States v. Parcel of Land at 28 Emery Street, 914 F.2d 1, 5 (1st Cir. 1990); United States v.
TWP 17 R4, Certain Real Property in Maine, 970 F.2d 984, 987-89 (1st Cir. 1992); and
United States v. Any and All Radio Station Transmission Equipment (Perez), 218 F.3d 543,
550 (6th Cir. 2000) (forfeiture proceedings initiated under the Supplemental Rules do not
require proof of wrongdoing for issuance of a warrant to seize the property).
The Court did little to clarify the question when it recently affirmed the traditional
conveyance exception to the warrant requirement and held that police need not obtain a
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point may be academic. Unlawfully seized evidence may not be used in the forfeiture
proceedings,161 but unlawful seizure of the res does not doom the proceedings as long
as there is sufficient untainted evidence to support the confiscation.162
First Amendment
When confiscation involves material entitled to First Amendment protection,
more demanding standards must be met. In Fort Wayne Books, Inc. v. Indiana, 489
U.S. 46 (1989), the Court held while a single book or film might be seized upon an
ex parte probable cause showing, books or films could not be taken completely out of
circulation until after an adversary hearing on their obscenity. On the other hand, the
First Amendment stands as no bar to the use of criminal forfeiture to punish those
convicted of engaging in the commercial exploitation of obscenity,163 nor to civil
forfeiture of the equipment used by an unlicensed radio station.164
warrant before seizing a car from a public place when they have probable cause to believe
the car is forfeitable, Florida v. White, 526 U.S. 559 (1999).
161 One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 697-98 (1965); United States
v. 5800 SW 74th Avenue, 363 F.3d 1099, 1102 (11th Cir. 2004); United States v. Ninety-Two
Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents (Kim’s Warehouse),
307 F.3d 137, 142 (3d Cir. 2002); United States v. $557,933.80 More or Less (Mercado-
Filpo), 287 F.3d 66, 80 (2d Cir. 2002); United States v. 22249 Dolorosa St., 167 F.3d 509,
513 (9th Cir. 1999); United States v. $404,905 (Alexander), 182 F.3d 643, 646 (8th Cir.
1999); United States v. 9844 S.Titan Court, 75 F.3d 1470, 1492 (10th Cir. 1996).
162 United States v. $91,960.00 (Rosario), 897 F.2d 1457 (8th Cir. 1990); One 1958
Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965); INS v. Lopez-Mendoza, 468 U.S.
1032, 1039-40 (1984)( “[T]he body or identity of a defendant or respondent in a criminal
or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is
conceded that an unlawful arrest, search or interrogation occurred. Gerstine v. Pugh, 420
U.S. 103, 119 (1975); Frisbie v. Collins, 342 U.S. 519, 522 (1952). . . . [a] similar rule
applies in forfeiture proceedings directed against contraband or forfeitable property.â€);
United States v. 51 Pieces of Real Property, 17 F.3d 1306, 1315-316 (10th Cir. 1994); United
States v. $12,390.00 (Dorsey), 956 F.2d 801, 806 (8th Cir. 1992); United States v.
$277,000.00 (Montes), 941 F.2d 899, 902 (9th Cir. 1991); United States v. 415 East Mitchell
Ave., 149 F.3d 472, 476 (6th Cir. 1998); Krimstock v. Kelly, 306 F.3d 40, 50(2d Cir.
2002)(“[T]he seizure and forfeiture of property are two distinct events under the federal civil
forfeiture laws. While both events require the government to have probable cause, the
government is not required to demonstrate probable cause until the forfeiture trial unless a
claimant challenges the validity of the seizure before trial. If the government, once
challenged, cannot establish probable cause for the initial seizure or offer post-seizure
evidence to justify continued impoundment, retention of the seized property runs afoul of
the Fourth Amendmentâ€).
163 Alexander v. United States, 509 U.S. at 552.
164 United States v. Any and All Radio Station Transmission Equipment (Perez), 218 F.3d
543, 549-60 (6th Cir. 2000).
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Appendices
18 U.S.C. 981. Civil forfeiture.
(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.
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(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 —
(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 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).
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
CRS-38
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) of the Foreign Assistance Act of 1961.
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.
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(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.
18 U.S.C. 982. Criminal forfeiture.
(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),
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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 State
s 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.
18 U.S.C. 983. General rules for civil forfeiture proceedings .
(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.
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(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 —
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(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 —
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(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
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(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.
18 U.S.C. 984. Civil forfeiture of fungible property .
(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.
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(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))); and
(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.
18 U.S.C. 985. Civil forfeiture of real property.
(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.
21 U.S.C. 881. Civil forfeitures (controlled substances).
(a) Subject property
The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter.
(2) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing,
compounding, processing, delivering, importing, or exporting any controlled substance or listed chemical in violation of this
subchapter.
(3) All property which is used, or intended for use, as a container for property described in paragraph (1), (2), or (9).
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any
manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1), (2), or (9).
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(5) All books, records, and research, including formulas, microfilm, tapes, and data which are used, or intended for use, in
violation of this subchapter.
(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person
in exchange for a controlled substance or listed chemical in violation of this subchapter, all proceeds traceable to such an exchange,
and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter.
(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract
of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to
facilitate the commission of, a violation of this subchapter punishable by more than one year’s imprisonment.
(8) All controlled substances which have been possessed in violation of this subchapter.
(9) All listed chemicals, all drug manufacturing equipment, all tableting machines, all encapsulating machines, and all gelatin
capsules, which have been imported, exported, manufactured, possessed, distributed, dispensed, acquired, or intended to be
distributed, dispensed, acquired, imported, or exported, in violation of this subchapter or subchapter II of this chapter.
(10) Any drug paraphernalia (as defined in section 863 of this title).
(11) Any firearm (as defined in section 921 of Title 18) used or intended to be used to facilitate the transportation, sale, receipt,
possession, or concealment of property described in paragraph (1) or (2) and any proceeds traceable to such property.
(b) Seizure procedures
Any property subject to forfeiture to the United States under this section may be seized by the Attorney General in the manner
set forth in section 981(b) of Title 18.
(c) Custody of Attorney General
Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the Attorney
General, subject only to the orders and decrees of the court or the official having jurisdiction thereof. Whenever property is seized
under any of the provisions of this subchapter, the Attorney General 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) Other laws and proceedings applicable
The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of
the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such
forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under
any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof; 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 subchapter by such officers, agents, or other
persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from
seizures and forfeitures effected by any customs officer.
(e) Disposition of forfeited property
(1) Whenever property is civilly or criminally forfeited under this subchapter the Attorney General may —
(A) retain the property for official use or, in the manner provided with respect to transfers under section 1616a of Title
19, transfer the property to any Federal agency or to any State or local law enforcement agency which participated directly in
the seizure or forfeiture of the property;
(B) except as provided in paragraph (4), sell, by public sale or any other commercially feasible means, any forfeited
property which is not required to be destroyed by law and which is not harmful to the public;
(C) require that the General Services Administration take custody of the property and dispose of it in accordance with
law;
(D) forward it to the Drug Enforcement Administration for disposition (including delivery for medical or scientific use
to any Federal or State agency under regulations of the Attorney General); or
(E) 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 —
(i) has been agreed to by the Secretary of State;
(ii) is authorized in an international agreement between the United States and the foreign country; and
(iii) is made to a country which, if applicable, has been certified under section 2291j(b) of Title 22.
(2)(A) The proceeds from any sale under subparagraph (B) of paragraph (1) and any moneys forfeited under this title shall be
used to pay —
(i) all property expenses of the proceedings for forfeiture and sale including expenses of seizure, maintenance of
custody, advertising, and court costs; and
(ii) awards of up to $100,000 to any individual who provides original information which leads to the arrest and
conviction of a person who kills or kidnaps a Federal drug law enforcement agent.
Any award paid for information concerning the killing or kidnapping of a Federal drug law enforcement agent, as provided in clause
(ii), shall be paid at the discretion of the Attorney General.
(B) The Attorney General shall forward to the Treasurer of the United States for deposit in accordance with section 524(c) of
Title 28, any amounts of such moneys and proceeds remaining after payment of the expenses provided in subparagraph (A), except
that, with respect to forfeitures conducted by the Postal Service, the Postal Service shall deposit in the Postal Service Fund, under
section 2003(b)(7) of Title 39, such moneys and proceeds.
(3) The Attorney General shall assure that any property transferred to a State or local law enforcement agency under paragraph
(1)(A) —
(A) has a value that bears a reasonable relationship to the degree of direct participation of the State or local agency in
the law enforcement effort resulting in the forfeiture, taking into account the total value of all property forfeited and the total
law enforcement effort with respect to the violation of law on which the forfeiture is based; and
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(B) will serve to encourage further cooperation between the recipient State or local agency and Federal law enforcement
agencies.
(4)(A) With respect to real property described in subparagraph (B), if the chief executive officer of the State involved submits
to the Attorney General a request for purposes of such subparagraph, the authority established in such subparagraph is in lieu of the
authority established in paragraph (1)(B).
(B) In the case of property described in paragraph (1)(B) that is civilly or criminally forfeited under this subchapter, if the
property is real property that is appropriate for use as a public area reserved for recreational or historic purposes or for the
preservation of natural conditions, the Attorney General, upon the request of the chief executive officer of the State in which the
property is located, may transfer title to the property to the State, either without charge or for a nominal charge, through a legal
instrument providing that —
(i) such use will be the principal use of the property; and
(ii) title to the property reverts to the United States in the event that the property is used otherwise.
(f) Forfeiture and destruction of schedule I and II substances
(1) All controlled substances in schedule I or II that are possessed, transferred, sold, or offered for sale in violation of the
provisions of this subchapter; all dangerous, toxic, or hazardous raw materials or products subject to forfeiture under subsection
(a)(2) of this section; and any equipment or container subject to forfeiture under subsection (a)(2) or (3) of this section which cannot
be separated safely from such raw materials or products shall be deemed contraband and seized and summarily forfeited to the United
States. Similarly, all substances in schedule I or II, which are seized or come into the possession of the United States, the owners
of which are unknown, shall be deemed contraband and summarily forfeited to the United States.
(2) The Attorney General may direct the destruction of all controlled substances in schedule I or II seized for violation of this
subchapter; all dangerous, toxic, or hazardous raw materials or products subject to forfeiture under subsection (a)(2) of this section;
and any equipment or container subject to forfeiture under subsection (a)(2) or (3) of this section which cannot be separated safely
from such raw materials or products under such circumstances as the Attorney General may deem necessary.
(g) Plants
(1) All species of plants from which controlled substances in schedules I and II may be derived which have been planted or
cultivated in violation of this subchapter, or of which the owners or cultivators are unknown, or which are wild growths, may be
seized and summarily forfeited to the United States.
(2) The failure, upon demand by the Attorney General or his duly authorized agent, of the person in occupancy or in control
of land or premises upon which such species of plants are growing or being stored, to produce an appropriate registration, or proof
that he is the holder thereof, shall constitute authority for the seizure and forfeiture.
(3) The Attorney General, or his duly authorized agent, shall have authority to enter upon any lands, or into any dwelling
pursuant to a search warrant, to cut, harvest, carry off, or destroy such plants.
(h) Vesting of title in United States
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.
(i) Stay of civil forfeiture proceedings; applicability
The provisions of section 981(g) of title 18, United States Code, regarding the stay of a civil forfeiture proceeding shall apply
to forfeitures under this section.
(j) Venue
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.
(l) Agreement between Attorney General and Postal Service for performance of functions
The functions of the Attorney General under this section shall be carried out by the Postal Service pursuant to such agreement
as may be entered into between the Attorney General and the Postal Service.
21 U.S.C. 853. Criminal forfeiture (controlled substances).
(a) Property subject to criminal forfeiture
Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more
than one year shall forfeit to the United States, irrespective of any provision of State law —
(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such
violation;
(2) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission
of, such violation; and
(3) in the case of a person convicted of engaging in a continuing criminal enterprise in violation of section 848 of this title,
the person shall forfeit, in addition to any property described in paragraph (1) or (2), any of his interest in, claims against, and
property or contractual rights affording a source of control over, the continuing criminal enterprise.
The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to this
subchapter or subchapter II of this chapter, that the person forfeit to the United States all property described in this subsection. In
lieu of a fine otherwise authorized by this part, a defendant who derives profits or other proceeds from an offense may be fined not
more than twice the gross profits or other proceeds.
(b) Meaning of term “propertyâ€
Property subject to criminal forfeiture under this section includes —
(1) real property, including things growing on, affixed to, and found in land; and
(2) tangible and intangible personal property, including rights, privileges, interests, claims, and securities.
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(c) Third party transfers
All right, title, and interest in property described in subsection (a) of this section vests in the United States upon the
commission of the act giving rise to forfeiture under this section. Any such property that is subsequently transferred to a person other
than the defendant may be the subject of a special verdict of forfeiture and thereafter shall be ordered forfeited to the United States,
unless the transferee establishes in a hearing pursuant to subsection (n) of this section that he is a bona fide purchaser for value of
such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture under
this section.
(d) Rebuttable presumption
There is a rebuttable presumption at trial that any property of a person convicted of a felony under this subchapter or subchapter
II of this chapter is subject to forfeiture under this section if the United States establishes by a preponderance of the evidence that
—
(1) such property was acquired by such person during the period of the violation of this subchapter or subchapter II of this
chapter or within a reasonable time after such period; and
(2) there was no likely source for such property other than the violation of this subchapter or subchapter II of this chapter.
(e) Protective orders
(1) Upon application of the United States, the court may enter a restraining order or injunction, require the execution of a
satisfactory performance bond, or take any other action to preserve the availability of property described in subsection (a) of this
section for forfeiture under this section —
(A) upon the filing of an indictment or information charging a violation of this subchapter or subchapter II of this
chapter for which criminal forfeiture may be ordered under this section and alleging that the property with respect to which
the order is sought would, in the event of conviction, be subject to forfeiture under this section; or
(B) prior to the filing of such an indictment or information, 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:
Provided, however, That an order entered pursuant to subparagraph (B) shall be effective for not more than ninety days, unless
extended by the court for good cause shown or unless an indictment or information described in subparagraph (A) has been filed.
(2) A temporary restraining order under this subsection may be entered upon application of the United States without notice
or opportunity for a hearing when an information or indictment 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 would, in the event
of conviction, be subject to forfeiture under this section and that provision of notice will jeopardize the availability of the property
for forfeiture. Such a temporary order shall expire not more than ten 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.
(3) 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.
(f) Warrant of seizure
The Government may request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this
section in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the
property to be seized would, in the event of conviction, be subject to forfeiture and that an order under subsection (e) of this section
may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure
of such property.
(g) Execution
Upon entry of an order of forfeiture under this section, the court shall authorize the Attorney General to seize all property
ordered forfeited upon such terms and conditions as the court shall deem proper. Following entry of an order declaring the property
forfeited, the court may, upon application of the United States, enter such appropriate restraining orders or injunctions, require the
execution of satisfactory performance bonds, appoint receivers, conservators, appraisers, accountants, or trustees, or take any other
action to protect the interest of the United States in the property ordered forfeited. Any income accruing to or derived from property
ordered forfeited under this section may be used to offset ordinary and necessary expenses to the property which are required by law,
or which are necessary to protect the interests of the United States or third parties.
(h) Disposition of property
Following the seizure of property ordered forfeited under this section, the Attorney General shall direct the disposition of the
property by sale or any other commercially feasible means, making due provision for the rights of any innocent persons. Any property
right or interest not exercisable by, or transferable for value to, the United States shall expire and shall not revert to the defendant,
nor shall the defendant or any person acting in concert with him or on his behalf be eligible to purchase forfeited property at any sale
held by the United States. Upon application of a person, other than the defendant or a person acting in concert with him or on his
behalf, the court may restrain or stay the sale or disposition of the property pending the conclusion of any appeal of the criminal case
giving rise to the forfeiture, if the applicant demonstrates that proceeding with the sale or disposition of the property will result in
irreparable injury, harm, or loss to him.
(i) Authority of the Attorney General
With respect to property ordered forfeited under this section, the Attorney General is authorized to —
(1) grant petitions for mitigation or remission of forfeiture, restore forfeited property to victims of a violation of this subchapter,
or take any other action to protect the rights of innocent persons which is in the interest of justice and which is not inconsistent with
the provisions of this section;
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(2) compromise claims arising under this section;
(3) award compensation to persons providing information resulting in a forfeiture under this section;
(4) direct the disposition by the United States, in accordance with the provisions of section 881(e) of this title, of all property
ordered forfeited under this section by public sale or any other commercially feasible means, making due provision for the rights of
innocent persons; and
(5) take appropriate measures necessary to safeguard and maintain property ordered forfeited under this section pending its
disposition.
(j) Applicability of civil forfeiture provisions
Except to the extent that they are inconsistent with the provisions of this section, the provisions of section 881(d) of this title
shall apply to a criminal forfeiture under this section.
(k) Bar on intervention
Except as provided in subsection (n) of this section, no party claiming an interest in property subject to forfeiture under this
section may —
(1) intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this section; or
(2) commence an action at law or equity against the United States concerning the validity of his alleged interest in the property
subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture under this section.
(l) Jurisdiction to enter orders
The district courts of the United States shall have jurisdiction to enter orders as provided in this section without regard to the
location of any property which may be subject to forfeiture under this section or which has been ordered forfeited under this section.
(m) Depositions
In order to facilitate the identification and location of property declared forfeited and to facilitate the disposition of petitions
for remission or mitigation of forfeiture, after the entry of an order declaring property forfeited to the United States, the court may,
upon application of the United States, order that the testimony of any witness relating to the property forfeited be taken by deposition
and that any designated book, paper, document, record, recording, or other material not privileged be produced at the same time and
place, in the same manner as provided for the taking of depositions under Rule 15 of the Federal Rules of Criminal Procedure.
(n) Third party interests
(1) Following the entry of an order of forfeiture under this section, the United States shall publish notice of the order and of
its intent to dispose of the property in such manner as the Attorney General may direct. The Government may also, to the extent
practicable, provide direct written notice to any person known to have alleged an interest in the property that is the subject of the order
of forfeiture as a substitute for published notice as to those persons so notified.
(2) Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United
States pursuant to this section may, within thirty days of the final publication of notice or his receipt of notice under paragraph (1),
whichever is earlier, petition the court for a hearing to adjudicate the validity of his alleged interest in the property. The hearing shall
be held before the court alone, without a jury.
(3) The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the
petitioner’s right, title, or interest in the property, the time and circumstances of the petitioner’s acquisition of the right, title, or
interest in the property, any additional facts supporting the petitioner’s claim, and the relief sought.
(4) The hearing on the petition shall, to the extent practicable and consistent with the interests of justice, be held within thirty
days of the filing of the petition. The court may consolidate the hearing on the petition with a hearing on any other petition filed by
a person other than the defendant under this subsection.
(5) At the hearing, the petitioner may testify and present evidence and witnesses on his own behalf, and cross-examine
witnesses who appear at the hearing. The United States may present evidence and witnesses in rebuttal and in defense of its claim
to the property and cross-examine witnesses who appear at the hearing. In addition to testimony and evidence presented at the
hearing, the court shall consider the relevant portions of the record of the criminal case which resulted in the order of forfeiture.
(6) If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that —
(A) the petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order of
forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant
or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the
forfeiture of the property under this section; or
(B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of
purchase reasonably without cause to believe that the property was subject to forfeiture under this section;
the court shall amend the order of forfeiture in accordance with its determination.
(7) Following the court’s disposition of all petitions filed under this subsection, or if no such petitions are filed following the
expiration of the period provided in paragraph (2) for the filing of such petitions, the United States shall have clear title to property
that is the subject of the order of forfeiture and may warrant good title to any subsequent purchaser or transferee.
(o) Construction
The provisions of this section shall be liberally construed to effectuate its remedial purposes.
(p) Forfeiture of substitute property
(1) In general
Paragraph (2) of this subsection shall apply, if any property described in subsection (a), as a result of any act or omission of
the defendant —
(A) cannot be located upon the exercise of due diligence;
(B) has been transferred or sold to, or deposited with, a third party;
(C) has been placed beyond the jurisdiction of the court;
(D) has been substantially diminished in value; or
(E) has been commingled with other property which cannot be divided without difficulty.
(2) Substitute property
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In any case described in any of subparagraphs (A) through (E) of paragraph (1), the court shall order the forfeiture of any other
property of the defendant, up to the value of any property described in subparagraphs (A) through (E) of paragraph (1), as applicable.
(3) Return of property to jurisdiction
In the case of property described in paragraph (1)(C), the court may, in addition to any other action authorized by this
subsection, order the defendant to return the property to the jurisdiction of the court so that the property may be seized and forfeited.
(q) Restitution for cleanup of clandestine laboratory sites
The court, when sentencing a defendant convicted of an offense under this subchapter or subchapter II of this chapter involving
the manufacture of amphetamine or methamphetamine, shall —
(1) order restitution as provided in sections 3612 and 3664 of Title 18;
(2) order the defendant to reimburse the United States, the State or local government concerned, or both the United States and
the State or local government concerned for the costs incurred by the United States or the State or local government concerned, as
the case may be, for the cleanup associated with the manufacture of amphetamine or methamphetamine by the defendant; and
(3) order restitution to any person injured as a result of the offense as provided in section 3663A of Title 18.
18 U.S.C. 1963. Criminal forfeiture (RICO).
(a) Whoever violates any provision of section 1962 of this chapter shall be fined under this title or imprisoned not more than
20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment),
or both, and shall forfeit to the United States, irrespective of any provision of State law —
(1) any interest the person has acquired or maintained in violation of section 1962;
(2) any —
(A) interest in;
(B) security of;
(C) claim against; or
(D) property or contractual right of any kind affording a source of influence over; any enterprise which the person
has established, operated, controlled, conducted, or participated in the conduct of, in violation of section 1962; and
(3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from
racketeering activity or unlawful debt collection in violation of section 1962.
The court, in imposing sentence on such person shall order, in addition to any other sentence imposed pursuant to this section,
that the person forfeit to the United States all property described in this subsection. In lieu of a fine otherwise authorized by this
section, a defendant who derives profits or other proceeds from an offense may be fined not more than twice the gross profits or other
proceeds.
(b) Property subject to criminal forfeiture under this section includes —
(1) real property, including things growing on, affixed to, and found in land; and
(2) tangible and intangible personal property, including rights, privileges, interests, claims, and securities.
(c) All right, title, and interest in property described in subsection (a) vests in the United States upon the commission of the
act giving rise to forfeiture under this section. Any such property that is subsequently transferred to a person other than the defendant
may be the subject of a special verdict of forfeiture and thereafter shall be ordered forfeited to the United States, unless the transferee
establishes in a hearing pursuant to subsection (l) that he is a bona fide purchaser for value of such property who at the time of
purchase was reasonably without cause to believe that the property was subject to forfeiture under this section.
(d)(1) Upon application of the United States, the court may enter a restraining order or injunction, require the execution of
a satisfactory performance bond, or take any other action to preserve the availability of property described in subsection (a) for
forfeiture under this section —
(A) upon the filing of an indictment or information charging a violation of section 1962 of this chapter and alleging that
the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this
section; or
(B) prior to the filing of such an indictment or information, 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:
Provided, however, That an order entered pursuant to subparagraph (B) shall be effective for not more than ninety days, unless
extended by the court for good cause shown or unless an indictment or information described in subparagraph (A) has been filed.
(2) A temporary restraining order under this subsection may be entered upon application of the United States without notice
or opportunity for a hearing when an information or indictment 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 would, in the event
of conviction, be subject to forfeiture under this section and that provision of notice will jeopardize the availability of the property
for forfeiture. Such a temporary order shall expire not more than ten 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.
(3) 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.
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(e) Upon conviction of a person under this section, the court shall enter a judgment of forfeiture of the property to the United
States and shall also authorize the Attorney General to seize all property ordered forfeited upon such terms and conditions as the court
shall deem proper. Following the entry of an order declaring the property forfeited, the court may, upon application of the United
States, enter such appropriate restraining orders or injunctions, require the execution of satisfactory performance bonds, appoint
receivers, conservators, appraisers, accountants, or trustees, or take any other action to protect the interest of the United States in the
property ordered forfeited. Any income accruing to, or derived from, an enterprise or an interest in an enterprise which has been
ordered forfeited under this section may be used to offset ordinary and necessary expenses to the enterprise which are required by
law, or which are necessary to protect the interests of the United States or third parties.
(f) Following the seizure of property ordered forfeited under this section, the Attorney General shall direct the disposition of
the property by sale or any other commercially feasible means, making due provision for the rights of any innocent persons. Any
property right or interest not exercisable by, or transferable for value to, the United States shall expire and shall not revert to the
defendant, nor shall the defendant or any person acting in concert with or on behalf of the defendant be eligible to purchase forfeited
property at any sale held by the United States. Upon application of a person, other than the defendant or a person acting in concert
with or on behalf of the defendant, the court may restrain or stay the sale or disposition of the property pending the conclusion of any
appeal of the criminal case giving rise to the forfeiture, if the applicant demonstrates that proceeding with the sale or disposition of
the property will result in irreparable injury, harm or loss to him. Notwithstanding 31 U.S.C. 3302(b), the proceeds of any sale or
other disposition of property forfeited under this section and any moneys forfeited shall be used to pay all proper expenses for the
forfeiture and the sale, including expenses of seizure, maintenance and custody of the property pending its disposition, advertising
and court costs. The Attorney General shall deposit in the Treasury any amounts of such proceeds or moneys remaining after the
payment of such expenses.
(g) With respect to property ordered forfeited under this section, the Attorney General is authorized to —
(1) grant petitions for mitigation or remission of forfeiture, restore forfeited property to victims of a violation of this chapter,
or take any other action to protect the rights of innocent persons which is in the interest of justice and which is not inconsistent with
the provisions of this chapter;
(2) compromise claims arising under this section;
(3) award compensation to persons providing information resulting in a forfeiture under this section;
(4) direct the disposition by the United States of all property ordered forfeited under this section by public sale or any other
commercially feasible means, making due provision for the rights of innocent persons; and
(5) take appropriate measures necessary to safeguard and maintain property ordered forfeited under this section pending its
disposition.
(h) The Attorney General may promulgate regulations with respect to —
(1) making reasonable efforts to provide notice to persons who may have an interest in property ordered forfeited under this
section;
(2) granting petitions for remission or mitigation of forfeiture;
(3) the restitution of property to victims of an offense petitioning for remission or mitigation of forfeiture under this chapter;
(4) the disposition by the United States of forfeited property by public sale or other commercially feasible means;
(5) the maintenance and safekeeping of any property forfeited under this section pending its disposition; and
(6) the compromise of claims arising under this chapter.
Pending the promulgation of such regulations, all provisions of law relating to the disposition of property, or the proceeds from the
sale thereof, or the remission or mitigation of forfeitures for violation of the customs laws, and the compromise of claims and the
award of compensation to informers in respect of such forfeitures shall apply to forfeitures incurred, or alleged to have been incurred,
under the provisions of this section, insofar as applicable and not inconsistent with the provisions hereof. Such duties as are imposed
upon the Customs Service or any person with respect to the disposition of property under the customs law shall be performed under
this chapter by the Attorney General.
(i) Except as provided in subsection (l), no party claiming an interest in property subject to forfeiture under this section may
—
(1) intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this section; or
(2) commence an action at law or equity against the United States concerning the validity of his alleged interest in the property
subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture under this section.
(j) The district courts of the United States shall have jurisdiction to enter orders as provided in this section without regard to
the location of any property which may be subject to forfeiture under this section or which has been ordered forfeited under this
section.
(k) In order to facilitate the identification or location of property declared forfeited and to facilitate the disposition of petitions
for remission or mitigation of forfeiture, after the entry of an order declaring property forfeited to the United States the court may,
upon application of the United States, order that the testimony of any witness relating to the property forfeited be taken by deposition
and that any designated book, paper, document, record, recording, or other material not privileged be produced at the same time and
place, in the same manner as provided for the taking of depositions under Rule 15 of the Federal Rules of Criminal Procedure.
(l)(1) Following the entry of an order of forfeiture under this section, the United States shall publish notice of the order and
of its intent to dispose of the property in such manner as the Attorney General may direct. The Government may also, to the extent
practicable, provide direct written notice to any person known to have alleged an interest in the property that is the subject of the order
of forfeiture as a substitute for published notice as to those persons so notified.
(2) Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United
States pursuant to this section may, within thirty days of the final publication of notice or his receipt of notice under paragraph (1),
whichever is earlier, petition the court for a hearing to adjudicate the validity of his alleged interest in the property. The hearing shall
be held before the court alone, without a jury.
(3) The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the
petitioner’s right, title, or interest in the property, the time and circumstances of the petitioner’s acquisition of the right, title, or
interest in the property, any additional facts supporting the petitioner’s claim, and the relief sought.
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(4) The hearing on the petition shall, to the extent practicable and consistent with the interests of justice, be held within thirty
days of the filing of the petition. The court may consolidate the hearing on the petition with a hearing on any other petition filed by
a person other than the defendant under this subsection.
(5) At the hearing, the petitioner may testify and present evidence and witnesses on his own behalf, and cross-examine
witnesses who appear at the hearing. The United States may present evidence and witnesses in rebuttal and in defense of its claim
to the property and cross-examine witnesses who appear at the hearing. In addition to testimony and evidence presented at the
hearing, the court shall consider the relevant portions of the record of the criminal case which resulted in the order of forfeiture.
(6) If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that —
(A) the petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture
invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior
to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property
under this section; or
(B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase
reasonably without cause to believe that the property was subject to forfeiture under this section;
the court shall amend the order of forfeiture in accordance with its determination.
(7) Following the court’s disposition of all petitions filed under this subsection, or if no such petitions are filed following the
expiration of the period provided in paragraph (2) for the filing of such petitions, the United States shall have clear title to property
that is the subject of the order of forfeiture and may warrant good title to any subsequent purchaser or transferee.
(m) If any of the property described in subsection (a), as a result of any act or omission of the defendant —
(1) cannot be located upon the exercise of due diligence;
(2) has been transferred or sold to, or deposited with, a third party;
(3) has been placed beyond the jurisdiction of the court;
(4) has been substantially diminished in value; or
(5) has been commingled with other property which cannot be divided without difficulty;
the court shall order the forfeiture of any other property of the defendant up to the value of any property described in paragraphs (1)
through (5).
F.R.Crim.P. 32.2. Criminal Forfeiture.
(a) Notice to the Defendant. A court must not enter a judgment of forfeiture in a criminal proceeding unless the indictment
or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in
accordance with the applicable statute.
(b) Entering a Preliminary Order of Forfeiture.
(1) In General. As soon as practicable after a verdict or finding of guilty, or after a plea of guilty or nolo contendere is accepted,
on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property
is subject to forfeiture under the applicable statute. If the government seeks forfeiture of specific property, the court must determine
whether the government has established the requisite nexus between the property and the offense. If the government seeks a personal
money judgment, the court must determine the amount of money that the defendant will be ordered to pay. The court’s determination
may be based on evidence already in the record, including any written plea agreement or, if the forfeiture is contested, on evidence
or information presented by the parties at a hearing after the verdict or finding of guilt.
(2) Preliminary Order. If the court finds that property is subject to forfeiture, it must promptly enter a preliminary order of
forfeiture setting forth the amount of any money judgment or directing the forfeiture of specific property without regard to any third
party’s interest in
all or part of it. Determining whether a third party has such an interest must be deferred until any third party files a claim in an
ancillary proceeding under Rule 32.2(c).
(3) Seizing Property. The entry of a preliminary order of forfeiture authorizes the Attorney General (or a designee) to seize
the specific property subject to forfeiture; to conduct any discovery the court considers proper in identifying, locating, or disposing
of the property; and to comm
ence proceedings that comply with any statutes governing third-party rights. At sentencing — or at any time before sentencing if the
defendant consents — the order of forfeiture becomes final as to the defendant and must be made a part of the sentence and be
included in the judgment. The court may include in the order of forfeiture conditions reasonably necessary to preserve the property’s
value pending any appeal.
(4) Jury Determination. Upon a party’s request in a case in which a jury returns a verdict of guilty, the jury must determine
whether the government has established the requisite nexus between the property and the offense committed by the defendant.
(c) Ancillary Proceeding; Entering a Final Order of Forfeiture.
(1) In General. If, as prescribed by statute, a third party files a petition asserting an interest in the property to be forfeited, the
court must conduct an ancillary proceeding, but no ancillary proceeding is required to the extent that the forfeiture consists of a money
judgment.
(A) In the ancillary proceeding, the court may, on motion, dismiss the petition for lack of standing, for failure to state a claim,
or for any other lawful reason. For purposes of the motion, the facts set forth in the petition are assumed to be true.
(B) After disposing of any motion filed under Rule 32.2(c)(1)(A) and before conducting a hearing on the petition, the court
may permit the parties to conduct discovery in accordance with the Federal Rules of Civil Procedure if the court determines that
discovery is necessary or desirable to resolve factual issues. When discovery ends, a party may move for summary judgment under
Federal Rule of Civil Procedure 56.
(2) Entering a Final Order. When the ancillary proceeding ends, the court must enter a final order of forfeiture by amending
the preliminary order as necessary to account for any third-party rights. If no third party files a timely petition, the preliminary order
becomes the final order of forfeiture if the court finds that the defendant (or any combination of defendants convicted in the case)
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had an interest in the property that is forfeitable under the applicable statute. The defendant may not object to the entry of the final
order on the ground that the property belongs, in whole or in part, to a codefendant or third party; nor may a third party object to the
final order on the g
round that the third party had an interest in the property.
(3) Multiple Petitions. If multiple third-party petitions are filed in the same case, an order dismissing or granting one petition
is not appealable until rulings are made on all the petitions, unless the court determines that there is no just reason for delay.
(4) Ancillary Proceeding Not Part of Sentencing. An ancillary proceeding is not part of sentencing.
(d) Stay Pending Appeal. If a defendant appeals from a conviction or an order of forfeiture, the court may stay the order of
forfeiture on terms appropriate to ensure that the property remains available pending appellate review. A stay does not delay the
ancillary proceeding or the determ
ination of a third party’s rights or interests. If the court rules in favor of any third party while an appeal is pending, the court may
amend the order of forfeiture but must not transfer any property interest to a third party until the decision on appeal becomes final,
unless the defendant consents in writing or on the record.
(e) Subsequently Located Property; Substitute Property.
(1) In General. On the government’s motion, the court may at any time enter an order of forfeiture or amend an existing order
of forfeiture to include property that:
(A) is subject to forfeiture under an existing order of forfeiture but was located and identified after that order was entered; or
(B) is substitute property that qualifies for forfeiture under an applicable statute.
(2) Procedure. If the government shows that the property is subject to forfeiture under Rule 32.2(e)(1), the court must:
(A) enter an order forfeiting that property, or amend an existing preliminary or final order to include it; and
(B) if a third party files a petition claiming an interest in the property, conduct an ancillary proceeding under Rule 32.2(c).
(3) Jury Trial Limited. There is no right to a jury trial under Rule 32.2(e).
28 U.S.C. 524(c)
Department of Justice Asset Forfeiture Fund.
(c)(1) There is established in the United States Treasury a special fund to be known as the Department of Justice Assets
Forfeiture Fund (hereafter in this subsection referred to as the “Fundâ€) which shall be available to the Attorney General without fiscal
year limitation for the following law enforcement purposes —
(A) the payment, at the discretion of the Attorney General, of any expenses necessary to seize, detain, inventory,
safeguard, maintain, advertise, sell, or dispose of property under seizure, detention, or forfeited pursuant to any law enforced
or administered by the Department of Justice, or of any other necessary expense incident to the seizure, detention, forfeiture,
or disposal of such property including —
(i) payments for —
(I) contract services;
(II) the employment of outside contractors to operate and manage properties or provide other specialized
services necessary to dispose of such properties in an effort to maximize the return from such properties; and
(III) reimbursement of any Federal, State, or local agency for any expenditures made to perform the
functions described in this clause;
(ii) payments to reimburse any Federal agency participating in the Fund for investigative costs leading to seizures;
(iii) payments for contracting for the services of experts and consultants needed by the Department of Justice to
assist in carrying out duties related to asset seizure and forfeiture; and
(iv) payments made pursuant to guidelines promulgated by the Attorney General if such payments are necessary
and directly related to seizure and forfeiture program expenses for —
(I) the purchase or lease of automatic data processing systems (not less than a majority of which use will
be related to such program);
(II) training;
(III) printing;
(IV) the storage, protection, and destruction of controlled substances; and
(V) contracting for services directly related to the identification of forfeitable assets, and the processing
of and accounting for forfeitures;
(B) the payment of awards for information or assistance directly relating to violations of the criminal drug laws of the
United States or of sections 1956 and 1957 of title 18, sections 5313 and 5324 of title 31, and section 6050I of the Internal
Revenue Code of 1986;
(C) at the discretion of the Attorney General, the payment of awards for information or assistance leading to a civil or
criminal forfeiture involving any Federal agency participating in the Fund;
(D) the compromise and payment of valid liens and mortgages against property that has been forfeited pursuant to any
law enforced or administered by the Department of Justice, subject to the discretion of the Attorney General to determine the
validity of any such lien or mortgage and the amount of payment to be made, and the employment of attorneys and other
personnel skilled in State real estate law as necessary;
(E)(i) for disbursements authorized in connection with remission or mitigation procedures relating to property forfeited
under any law enforced or administered by the Department of Justice; and
(ii) for payment for —
(I) costs incurred by or on behalf of the Department of Justice in connection with the removal, for purposes
of Federal forfeiture and disposition, of any hazardous substance or pollutant or contaminant associated with the
illegal manufacture of amphetamine or methamphetamine; and
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(II) costs incurred by or on behalf of a State or local government in connection with such removal in any
case in which such State or local government has assisted in a Federal prosecution relating to amphetamine or
methamphetamine, to the extent such costs exceed equitable sharing payments made to such State or local
government in such case;
(F)(i) for equipping for law enforcement functions of any Government-owned or leased vessel, vehicle, or aircraft
available for official use by any Federal agency participating in the Fund;
(ii) for equipping any vessel, vehicle, or aircraft available for official use by a State or local law enforcement agency
to enable the vessel, vehicle, or aircraft to assist law enforcement functions if the vessel, vehicle, or aircraft will be used in a
joint law enforcement operation with a Federal agency participating in the Fund; and
(iii) payments for other equipment directly related to seizure or forfeiture, including laboratory equipment, protective
equipment, communications equipment, and the operation and maintenance costs of such equipment;
(G) for purchase of evidence of any violation of the Controlled Substances Act, the Controlled Substances Import and
Export Act, chapter 96 of title 18, or sections 1956 and 1957 of title 18;
(H) the payment of State and local property taxes on forfeited real property that accrued between the date of the violation
giving rise to the forfeiture and the date of the forfeiture order; and
(I) payment of overtime salaries, travel, fuel, training, equipment, and other similar costs of State or local law
enforcement officers that are incurred in a joint law enforcement operation with a Federal law enforcement agency participating
in the Fund.
Amounts for paying the expenses authorized by subparagraphs (B), (F), and (G) shall be specified in appropriations Acts and may
be used under authorities available to the organization receiving the funds. Amounts for other authorized expenditures and payments
from the Fund, including equitable sharing payments, are not required to be specified in appropriations acts. The Attorney General
may exempt the procurement of contract services under subparagraph (A) under the Fund from section 3709 of the Revised Statutes
of the United States (41 U.S.C. 5), title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 and
following), and other provisions of law as may be necessary to maintain the security and confidentiality of related criminal
investigations.
(2) Any award paid from the Fund, as provided in paragraph (1)(B) or (C), shall be paid at the discretion of the Attorney
General or his delegate, under existing departmental delegation policies for the payment of awards, except that the authority to pay
an award of $250,000 or more shall not be delegated to any person other than the Deputy Attorney General, the Associate Attorney
General, the Director of the Federal Bureau of Investigation, or the Administrator of the Drug Enforcement Administration. Any
award pursuant to paragraph (1)(B) shall not exceed $500,000. Any award pursuant to paragraph (1)(C) shall not exceed the lesser
of $500,000 or one-fourth of the amount realized by the United States from the property forfeited, without both the personal approval
of the Attorney General and written notice within 30 days thereof to the Chairmen and ranking minority members of the Committees
on Appropriations and the Judiciary of the Senate and of the House of Representatives.
(3) Any amount under subparagraph (G) of paragraph (1) shall be paid at the discretion of the Attorney General or his delegate,
except that the authority to pay $100,000 or more may be delegated only to the respective head of the agency involved.
(4) There shall be deposited in the Fund —
(A) all amounts from the forfeiture of property under any law enforced or administered by the Department of Justice,
except all proceeds of forfeitures available for use by the Secretary of the Treasury or the Secretary of the Interior pursuant
to section 11(d) of the Endangered Species Act (16 U.S.C. 1540(d)) or section 6(d) of the Lacey Act Amendments of 1981
(16 U.S.C. 3375(d)), or the Postmaster General of the United States pursuant to 39 U.S.C. 2003(b)(7);
(B) all amounts representing the Federal equitable share from the forfeiture of property under any Federal, State, local
or foreign law, for any Federal agency participating in the Fund;
(C) all amounts transferred by the Secretary of the Treasury pursuant to section 9703(g)(4)(A)(ii) of title 31; and
(D) all amounts collected —
(i) by the United States pursuant to a reimbursement order under paragraph (2) of section 413(q) of the
Controlled Substances Act (21 U.S.C. 853(q)); and
(ii) pursuant to a restitution order under paragraph (1) or (3) of section 413(q) of the Controlled Substances Act
[21 U.S.C. 853(q)] for injuries to the United States.
(5) Amounts in the Fund, and in any holding accounts associated with the Fund, that are not currently needed for the purpose
of this section shall be kept on deposit or invested in obligations of, or guaranteed by, the United States and all earnings on such
investments shall be deposited in the Fund.
(6)(A) The Attorney General shall transmit to Congress and make available to the public, not later than 4 months after the end
of each fiscal year, detailed reports for the prior fiscal year as follows:
(i) A report on total deposits to the Fund by State of deposit.
(ii) A report on total expenses paid from the Fund, by category of expense and recipient agency, including equitable
sharing payments.
(iii) A report describing the number, value, and types of properties placed into official use by Federal agencies, by
recipient agency.
(iv) A report describing the number, value, and types of properties transferred to State and local law enforcement
agencies, by recipient agency.
(v) A report, by type of disposition, describing the number, value, and types of forfeited property disposed of during
the year.
(vi) A report on the year-end inventory of property under seizure, but not yet forfeited, that reflects the type of property,
its estimated value, and the estimated value of liens and mortgages outstanding on the property.
(vii) A report listing each property in the year-end inventory, not yet forfeited, with an outstanding equity of not less
than $1,000,000.
(B) The Attorney General shall transmit to Congress and make available to the public, not later than 2 months after final
issuance, the audited financial statements for each fiscal year for the Fund.
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(C) Reports under subparagraph (A) shall include information with respect to all forfeitures under any law enforced or
administered by the Department of Justice.
(D) The transmittal and publication requirements in subparagraphs (A) and (B) may be satisfied by —
(i) posting the reports on an Internet website maintained by the Department of Justice for a period of not less than
2 years; and
(ii) notifying the Committees on the Judiciary of the House of Representatives and the Senate when the reports
are available electronically.
(7) The provisions of this subsection relating to deposits in the Fund shall apply to all property in the custody of the
Department of Justice on or after the effective date of the Comprehensive Forfeiture Act of 1983.
(8)(A) There are authorized to be appropriated such sums as necessary for the purposes described in subparagraphs (B), (F),
and (G) of paragraph (1).
(B) Subject to subparagraphs (C) and (D), at the end of each of fiscal years 1994, 1995, and 1996, the Attorney General shall
transfer from the Fund not more than $100,000,000 to the Special Forfeiture Fund established by section 6073 of the Anti-Drug
Abuse Act of 1988.
(C) Transfers under subparagraph (B) may be made only from the excess unobligated balance and may not exceed one-half
of the excess unobligated balance for any year. In addition, transfers under subparagraph (B) may be made only to the extent that
the sum of the transfers in a fiscal year and one-half of the unobligated balance at the beginning of that fiscal year for the Special
Forfeiture Fund does not exceed $100,000,000.
(D) For the purpose of determining amounts available for distribution at year end for any fiscal year, “excess unobligated
balance†means the unobligated balance of the Fund generated by that fiscal year’s operations, less any amounts that are required to
be retained in the Fund to ensure the availability of amounts in the subsequent fiscal year for purposes authorized under paragraph
(1).
(E) Subject to the notification procedures contained in section 605 of Public Law 103-121, and after satisfying the transfer
requirement in subparagraph (B) of this paragraph, any excess unobligated balance remaining in the Fund on September 30, 1997
and thereafter shall be available to the Attorney General, without fiscal year limitation, for any Federal law enforcement,
litigative/prosecutive, and correctional activities, or any other authorized purpose of the Department of Justice. Any amounts
provided pursuant to this subparagraph may be used under authorities available to the organization receiving the funds.
(9)(A) Following the completion of procedures for the forfeiture of property pursuant to any law enforced or administered by
the Department, the Attorney General is authorized, in her discretion, to warrant clear title to any subsequent purchaser or transferee
of such property.
(B) For fiscal years 2002 and 2003, the Attorney General is authorized to transfer, under such terms and conditions as the
Attorney General shall specify, real or personal property of limited or marginal value, to a State or local government agency, or its
designated contractor or transferee, for use to support drug abuse treatment, drug and crime prevention and education, housing, job
skills, and other community-based public health and safety programs. Each such transfer shall be subject to satisfaction by the
recipient involved of any outstanding lien against the property transferred, but no such transfer shall create or confer any private right
of action in any person against the United States.
(10) The Attorney General shall transfer from the Fund to the Secretary of the Treasury for deposit in the Department of the
Treasury Forfeiture Fund amounts appropriate to reflect the degree of participation of the Department of the Treasury law enforcement
organizations (described in section 9703(p) of title 31) in the law enforcement effort resulting in the forfeiture pursuant to laws
enforced or administered by the Department of Justice.
(11) For purposes of this subsection and notwithstanding section 9703 of title 31 or any other law, property is forfeited
pursuant to a law enforced or administered by the Department of Justice if it is forfeited pursuant to —
(A) a judicial forfeiture proceeding when the underlying seizure was made by an officer of a Federal law enforcement agency
participating in the Department of Justice Assets Forfeiture Fund or the property was maintained by the United States Marshals
Service; or
(B) a civil administrative forfeiture proceeding conducted by a Department of Justice law enforcement component or pursuant
to the authority of the Secretary of Commerce.
[(12) Redesignated (11)]
31 U.S.C. 9703
Department of the Treasury Forfeiture Fund.
(a) In general. — There is established in the Treasury of the United States a fund to be known as the “Department of the
Treasury Forfeiture Fund†(referred to in this section as the “Fundâ€). The Fund shall be available to the Secretary, without fiscal year
limitation, with respect to seizures and forfeitures made pursuant to any law (other than section 7301 or 7302 of the Internal Revenue
Code of 1986) enforced or administered by the Department of the Treasury or the United States Coast Guard for the following law
enforcement purposes:
(1)(A) Payment of all proper expenses of seizure (including investigative costs incurred by a Department of the Treasury law
enforcement organization leading to seizure) or the proceedings of forfeiture and sale, including the expenses of detention, inventory,
security, maintenance, advertisement, or disposal of the property, and if condemned by a court and a bond for such costs was not
given, the costs as taxed by the court.
(B) Payment for —
(i) contract services;
(ii) the employment of outside contractors to operate and manage properties or to provide other specialized services
necessary to dispose of such properties in an effort to maximize the return from such properties; and
(iii) reimbursing any Federal, State, or local agency for any expenditures made to perform the functions described in
this subparagraph.
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(C) Awards of compensation to informers under section 619 of the Tariff Act of 1930 (19 U.S.C. 1619).
(D) Satisfaction of —
(i) liens for freight, charges, and contributions in general average, notice of which has been filed with the appropriate
Customs officer according to law; and
(ii) subject to the discretion of the Secretary, other valid liens and mortgages against property that has been forfeited
pursuant to any law enforced or administered by a Department of the Treasury law enforcement organization. To determine
the validity of any such lien or mortgage, the amount of payment to be made, and to carry out the functions described in this
subparagraph, the Secretary may employ and compensate attorneys and other personnel skilled in State real estate law.
(E) Payment of amounts authorized by law with respect to remission and mitigation.
(F) Payment of claims of parties in interest to property disposed of under section 612(b) of the Tariff Act of 1930 (19 U.S.C.
1612(b)), in the amounts applicable to such claims at the time of seizure.
(G) Equitable sharing payments made to other Federal agencies, State and local law enforcement agencies, and foreign
countries pursuant to section 616(c) of the Tariff Act of 1930 (19 U.S.C. 1616a(c)), section 981 of title 18, or subsection (h) of this
section, and all costs related thereto.
(H) Payment for services of experts and consultants needed by a Department of the Treasury law enforcement organization
to carry out the organization’s duties relating to seizure and forfeiture.
(I) payment of overtime salaries, travel, fuel, training, equipment, and other similar costs of State or local law enforcement
officers that are incurred in joint law enforcement operations with a Department of the Treasury law enforcement organization;
(J) payment made pursuant to guidelines promulgated by the Secretary, if such payment is necessary and directly related to
seizure and forfeiture program expenses for —
(i) the purchase or lease of automatic data processing systems (not less than a majority of which use will be related to
such program);
(ii) training;
(iii) printing; and
(iv) contracting for services directly related to —
(I) the identification of forfeitable assets;
(II) the processing of and accounting for forfeitures; and
(III) the storage, maintenance, protection, and destruction of controlled substances.
(2) At the discretion of the Secretary —
(A) payment of awards for information or assistance leading to a civil or criminal forfeiture involving any Department of the
Treasury law enforcement organization participating in the Fund;
(B) purchases of evidence or information by —
(i) a Department of the Treasury law enforcement organization with respect to —
(I) a violation of section 1956 or 1957 of title 18 (relating to money laundering); or
(II) a law, the violation of which may subject property to forfeiture under section 981 or 982 of title 18;
(ii) the United States Customs Service with respect to drug smuggling or a violation of section 542 or 545 of title 18
(relating to fraudulent customs invoices or smuggling);
(iii) the United States Secret Service with respect to a violation of —
(I) section 1028, 1029, or 1030 or title 18;
(II) any law of the United States relating to coins, obligations, or securities of the United States or of a foreign
government; or
(III) any law of the United States which the United States Secret Service is authorized to enforce relating to fraud
or other criminal or unlawful activity in or against any federally insured financial institution, the Resolution Trust
Corporation, or the Federal Deposit Insurance Corporation; and
(iv) the United States Customs Service or the Internal Revenue Service with respect to a violation of chapter 53 of this
title (relating to the Bank Secrecy Act).
(C) payment of costs for publicizing awards available under section 619 of the Tariff Act of 1930 (19 U.S.C. 1619);
(D) payment for equipment for any vessel, vehicle, or aircraft available for official use by a Department of the Treasury law
enforcement organization to enable the vessel, vehicle, or aircraft to assist in law enforcement functions, and for other equipment
directly related to seizure or forfeiture, including laboratory equipment, protective equipment, communications equipment, and the
operation and maintenance costs of such equipment;
(E) the payment of claims against employees of the Customs Service settled by the Secretary under section 630 of the Tariff
Act of 1930;
(F) payment for equipment for any vessel, vehicle, or aircraft available for official use by a State or local law enforcement
agency to enable the vessel, vehicle, or aircraft to assist in law enforcement functions if the vessel, vehicle, or aircraft will be used
in joint law enforcement operations with a
Department of the Treasury law enforcement organization;
(G) reimbursement of private persons for expenses incurred by such persons in cooperating with a Department of the Treasury
law enforcement organization in investigations and undercover law enforcement operations;
(H) payment for training foreign law enforcement personnel with respect to seizure or forfeiture activities of the Department
of the Treasury; and
(b) Limitations
(1) Any payment made under subparagraph (D) or (E) of subsection (a)(1) with respect to a seizure or a forfeiture of property
shall not exceed the value of the property at the time of the seizure.
(2) Any payment made under subsection (a)(1)(G) with respect to a seizure or forfeiture of property shall not exceed the value
of the property at the time of disposition.
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(3) The Secretary may exempt the procurement of contract services under the Fund from section 3709 of the Revised Statutes
of the United States (41 U.S.C. 5), title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.),
and other provisions of law as may be necessary
to maintain the security and confidentiality of related criminal investigations.
(4) The Secretary shall assure that any equitable sharing payment made to a State or local law enforcement agency pursuant
to subsection (a)(1)(G) and any property transferred to a State or local law enforcement agency pursuant to subsection (h) —
(A) has a value that bears a reasonable relationship to the degree of participation of the State or local agency in the law
enforcement effort resulting in the forfeiture, taking into account the total value of all property forfeited and the total law
enforcement effort with respect to the violation of la
w on which the forfeiture is based; and
(B) will serve to encourage further cooperation between the recipient State or local agency and Federal law enforcement
agencies.
(5) Amounts transferred by the Attorney General pursuant to section 524(c)(1) of title 28, or by the Postmaster General
pursuant to section 2003 of title 39, and deposited into the Fund pursuant to subsection (d), shall be available for Federal law
enforcement related purposes of the Department of the Treasury law enforcement organizations.
(c) Funds available to United States Coast Guard
(1) The Secretary shall make available to the United States Coast Guard, from funds appropriated under subsection (g)(2) in
excess of $10,000,000 for a fiscal year, an amount equal to the net proceeds in the Fund derived from seizures by the Coast Guard.
(2) Funds made available under this subsection may be used to —
(A) pay for equipment for any vessel, vehicle, or aircraft available for official use by the United States Coast Guard to
enable the vessel, vehicle, or aircraft to assist in law enforcement functions;
(B) pay for equipment for any vessel, vehicle, equipment, or aircraft available for official use by a State or local law
enforcement agency to enable the vessel, vehicle, or aircraft to assist in law enforcement functions if the vessel, vehicle, or
aircraft will be used in joint law enforcement operations
with the United States Coast Guard;
(C) pay for overtime salaries, travel, fuel, training, equipment, and other similar costs of State and local law enforcement
officers that are incurred in joint law enforcement operations with the United States Coast Guard;
(D) pay for expenses incurred in bringing vessels into compliance with applicable environmental laws prior to disposal
by sinking.
(d) Deposits and credits
(1) With respect to fiscal year 1993, there shall be deposited into or credited to the Fund —
(A) all currency forfeited during fiscal year 1993, and all proceeds from forfeitures during fiscal year 1993, under any
law enforced or administered by the United States Customs Service or the United States Coast Guard;
(B) all income from investments made under subsection (e); and
(C) all amounts representing the equitable share of the United States Customs Service or the United States Coast Guard
from the forfeiture of property under any Federal, State, local, or foreign law.
(2) With respect to fiscal years beginning after fiscal year 1993, there shall be deposited into or credited to the Fund —
(A) all currency forfeited after fiscal year 1993, and all proceeds from forfeitures after fiscal year 1993, under any law
(other than sections 7301 and 7302 of the Internal Revenue Code of 1986) enforced or administered by a Department of the
Treasury law enforcement organization or the United States Coast Guard;
(B) all income from investments made under subsection (e); and
(C) all amounts representing the equitable share of a Department of the Treasury law enforcement organization or the
United States Coast Guard from the forfeiture of property under any Federal, State, local, or foreign law.
(e) Investments. — Amounts in the Fund, and in any holding accounts associated with the Fund, which are not currently needed
for the purposes of this section may be kept on deposit or invested in obligations of, or guaranteed by, the United States and all
earnings on such investments shall be deposited in
the Fund.
(f) Reports to Congress. — The Secretary shall transmit to the Congress, not later than February 1 of each year —
(1) a report on —
(A) the estimated total value of property forfeited with respect to which funds were not deposited in the Fund during
the preceding fiscal year —
(i) under any law enforced or administered by the United States Customs Service or the United States Coast
Guard, in the case of fiscal year 1993; and
(ii) under any law enforced or administered by the Department of the Treasury law enforcement organizations
or the United States Coast Guard, in the case of fiscal years beginning after 1993; and
(B) the estimated total value of all such property transferred to any State or local law enforcement agency; and
(2) a report on —
(A) the balance of the Fund at the beginning of the preceding fiscal year;
(B) liens and mortgages paid and the amount of money shared with Federal, State, local, and foreign law enforcement
agencies during the preceding fiscal year;
(C) the net amount realized from the operations of the Fund during the preceding fiscal year, the amount of seized cash
being held as evidence, and the amount of money that has been carried over into the current fiscal year;
(D) any defendant’s property, not forfeited at the end of the preceding fiscal year, if the equity in such property is valued
at $1,000,000 or more;
(E) the total dollar value of uncontested seizures of monetary instruments having a value of over $100,000 which, or
the proceeds of which, have not been deposited into the Fund pursuant to subsection (d) within 120 days after seizure, as of
the end of the preceding fiscal year;
(F) the balance of the Fund at the end of the preceding fiscal year;
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(G) the net amount, if any, of the excess unobligated amounts remaining in the Fund at the end of the preceding fiscal
year and available to the Secretary for Federal law enforcement related purposes;
(H) a complete set of audited financial statements (including a balance sheet, income statement, and cash flow analysis)
prepared in a manner consistent with the requirements of the Chief Financial Officers Act of 1990 (Public Law 101-576); and
(I) an analysis of income and expenses showing the revenue received or lost —
(i) by property category (such as general property, vehicles, vessels, aircraft, cash, and real property); and
(ii) by type of disposition (such as sale, remission, cancellation, placement into official use, sharing with State
and local agencies, and destruction).
The Fund shall be subject to annual financial audits as authorized in the Chief Financial Officers Act of 1990 (Public Law 101-576).
(g) Appropriations
(1) There are hereby appropriated from the Fund such sums as may be necessary to carry out the purposes described in
subsection (a)(1).
(2) There are authorized to be appropriated from the Fund to carry out the purposes set forth in subsections (a)(2) and (c) not
to exceed —
(A) $25,000,000 for fiscal year 1993; and
(B) $50,000,000 for each fiscal year after fiscal year 1993.
(3)(A) Subject to subparagraphs (B) and (C), at the end of each of fiscal years 1994, 1995, 1996, and 1997, the Secretary shall
transfer from the Fund not more than $100,000,000 to the Special Forfeiture Fund established by section 6073 of the Anti-Drug
Abuse Act of 1988.
(B) Transfers pursuant to subparagraph (A) shall be made only from excess unobligated amounts and only to the extent that,
as determined by the Secretary, such transfers will not impair the future availability of amounts for the purposes described in
subsection (a). Further, transfers under subparagraph
(A) may not exceed one-half of the excess unobligated balance for a year. In addition, transfers under subparagraph (A) may be made
only to the extent that the sum of the transfers in a fiscal year and one-half of the unobligated balance at the beginning of that fiscal
year for the Special Forfeiture Fund does not exceed $100,000,000.
(C) The Secretary of the Treasury shall reserve an amount not to exceed $30,000,000 from the unobligated balances remaining
in the Customs Forfeiture Fund on September 30, 1992, and such amount shall be transferred to the Fund on October 1, 1992, or,
if later, the date that is 15 days after the date of t
he enactment of this section. Such amount shall be available for any expenses or activities authorized under this section. At the end
of fiscal year 1993, 1994, 1995, and 1996, the Secretary shall reserve in the Fund an amount not to exceed $50,000,000 of the
unobligated balances in the Fund, or, if the Secretary determines that a greater amount is necessary for asset specific expenses, an
amount equal to not more than 10 percent of the total obligations from the Fund in the preceding fiscal year. At the end of fiscal
year 1997, and at the end of each fiscal year thereafter, the Secretary shall reserve any amounts that are required to be retained in the
Fund to ensure the availability of amounts in the subsequent fiscal year for purposes authorized under subsection (a). Unobligated
balances remaining pursuant to section 4(B) of 9703(g) shall also be carried forward.
(4)(A) After reserving any amount authorized by paragraph (3)(C), any unobligated balances remaining in the Fund on
September 30, 1993, shall be deposited into the general fund of the Treasury of the United States.
(B) After reserving any amount authorized by paragraph (3)(C) and after transferring any amount authorized by paragraph
(3)(A), any unobligated balances remaining in the Fund on September 30, 1994, and on September 30 of each fiscal year thereafter,
shall be available to the Secretary, without fiscal year limitation, for transfers pursuant to subparagraph (A)(ii) and for obligation or
expenditure in connection with the law enforcement activities of any Federal agency or of a Department of the Treasury law
enforcement organization.
(C) Any obligation or expenditure in excess of $500,000 with respect to an unobligated balance described in subparagraph
(B) may not be made by the Secretary unless the Appropriations Committees of both Houses of Congress are notified at least 15 days
in advance of such obligation or expenditure.
(h) Retention or transfer of property. —
(1) The Secretary may, with respect to any property forfeited under any law (other than section 7301 or 7302 of the Internal
Revenue Code of 1986) enforced or administered by the Department of the Treasury —
(A) retain any of the property for official use; or
(B) transfer any of the property to —
(i) any other Federal agency; or
(ii) any State or local law enforcement agency that participated directly or indirectly in the seizure or forfeiture
of the property.
(2) The Secretary may transfer any 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 of [FN5] forfeiture of the property, if such
a transfer —
(A) is one with which the Secretary of State has agreed;
(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) of the Foreign Assistance Act of
1961 (22 U.S.C. 2291(h)).
(3) Nothing in this section shall affect the authority of the Secretary under section 981 of title 18 or section 616 of the Tariff
Act of 1930 (19 U.S.C. 1616a).
(i) Regulations. — The Secretary may prescribe such rules and regulations as may be necessary to carry out this section.
(j) Customs forfeiture fund. — Notwithstanding any other provision of law —
(1) during any period when forfeited currency and proceeds from forfeitures under any law (other than section 7301 or 7302
of the Internal Revenue Code of 1986) enforced or administered by the Department of the Treasury or the United States Coast Guard,
are required to be deposited in the Fund pursuant to this section —
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(A) all moneys required to be deposited in the Customs Forfeiture Fund pursuant to section 613A of the Tariff Act of
1930 (19 U.S.C. 1613b) shall instead be deposited in the Fund; and
(B) no deposits or withdrawals may be made to or from the Customs Forfeiture Fund pursuant to section 613A of the
Tariff Act of 1930 (19 U.S.C. 1613b); and
(2) any funds in the Customs Forfeiture Fund and any obligations of the Customs Forfeiture Fund on the effective date of the
Treasury Forfeiture Act of 1992, shall be transferred to the Fund and all administrative costs of such transfer shall be paid for out
of the Fund.
(k) Limitation of liability. — The United States shall not be liable in any action relating to property transferred under this
section or under section 616 of the Tariff Act of 1930 (19 U.S.C. 1616a) if such action is based on an act or omission occurring after
the transfer.
(l) Authority to warrant title. — Following the completion of procedures for the forfeiture of property pursuant to any law
enforced or administered by the Department of the Treasury, the Secretary is authorized, at the Secretary’s discretion, to warrant clear
title to any subsequent purchaser or transferee of such forfeited property.
(m) Forfeited property. — For purposes of this section and notwithstanding section 524(c)(11) of title 28 or any other law
—
(1) during fiscal year 1993, property and currency shall be deemed to be forfeited pursuant to a law enforced or administered
by the United States Customs Service if it is forfeited pursuant to —
(A) a judicial forfeiture proceeding when the underlying seizure was made by an officer of the United States Customs
Service or the property was maintained by the United States Customs Service; or
(B) a civil administrative forfeiture proceeding conducted by the United States Customs Service; and
(2) after fiscal year 1993, property and currency shall be deemed to be forfeited pursuant to a law enforced or administered
by a Department of the Treasury law enforcement organization if it is forfeited pursuant to —
(A) a judicial forfeiture proceeding when the underlying seizure was made by an officer of a Department of the Treasury
law enforcement organization or the property was maintained by a Department of the Treasury law enforcement organization;
or
(B) a civil administrative forfeiture proceeding conducted by a Department of the Treasury law enforcement
organization.
(n) Transfers to Attorney General and Postmaster General
(1) The Secretary shall transfer from the Fund to the Attorney General for deposit in the Department of Justice Assets Forfeiture
Fund amounts appropriate to reflect the degree of participation of participating Federal agencies in the law enforcement effort
resulting in the forfeiture pursuant to laws enforced or administered by a Department of the Treasury law enforcement organization.
For purposes of the preceding sentence, a “participating Federal agency†is an agency that participates in the Department of Justice
Assets Forfeiture Fund.
(2) The Secretary shall transfer from the Fund to the Postmaster General for deposit in the Postal Service Fund amounts
appropriate to reflect the degree of participation of the United States Postal Service in the law enforcement effort resulting in the
forfeiture pursuant to laws enforced or administered by a Department of the Treasury law enforcement organization.
(o) Definitions. — For purposes of this section —
(1) Department of the Treasury law enforcement organization. — The term “Department of the Treasury law enforcement
organization†means the United States Customs Service, the United States Secret Service, the Tax and Trade Bureau, the Internal
Revenue Service, the Federal Law Enforcement Training Center, the Financial Crimes Enforcement Network, and any other law
enforcement component of the Department of the Treasury so designated by the Secretary.
(2) Secretary. — The term “Secretary†means the Secretary of the Treasury.
42 U.S.C. 10601
Crime Victims Fund.
(a) Establishment
There is created in the Treasury a separate account to be known as the Crime Victims Fund (hereinafter in this chapter referred
to as the “Fundâ€).
(b) Fines deposited in Fund; penalties; forfeited appearance bonds
Except as limited by subsection (c) of this section, there shall be deposited in the Fund —
(1) all fines that are collected from persons convicted of offenses against the United States except —
(A) fines available for use by the Secretary of the Treasury pursuant to —
(i) section 11(d) of the Endangered Species Act (16 U.S.C. 1540(d)); and
(ii) section 6(d) of the Lacey Act Amendments of 1981 (16 U.S.C. 3375(d)); and
(B) fines to be paid into —
(i) the railroad unemployment insurance account pursuant to the Railroad Unemployment Insurance Act (45
U.S.C. 351 et seq.);
(ii) the Postal Service Fund pursuant to sections 2601(a)(2) and 2003 of Title 39 and for the purposes set forth
in section 404(a)(8) of Title 39;
(iii) the navigable waters revolving fund pursuant to section 311 of the Federal Water Pollution Control Act (33
U.S.C. 1321); and
(iv) county public school funds pursuant to section 3613 of Title 18;
(2) penalty assessments collected under section 3013 of Title 18;
(3) the proceeds of forfeited appearance bonds, bail bonds, and collateral collected under section 3146 of Title 18;
(4) any money ordered to be paid into the Fund under section 3671(c)(2) of Title 18; and
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(5) any gifts, bequests, or donations to the Fund from private entities or individuals.
(c) Retention of sums in Fund; availability for expenditure without fiscal year limitation
Sums deposited in the Fund shall remain in the Fund and be available for expenditure under this chapter for grants under this
chapter without fiscal year limitation. Notwithstanding subsection (d)(5), all sums deposited in the Fund in any fiscal year that are
not made available for obligation by Congress in the subsequent fiscal year shall remain in the Fund for obligation in future fiscal
years, without fiscal year limitation.
(d) Availability for judicial branch administrative costs; grant program percentages
The Fund shall be available as follows:
(1) Repealed. Pub.L. 105-119, Title I, §109(a)(1), Nov. 26, 1997, 111 Stat. 2457
(2)(A) Except as provided in subparagraph (B), the first $10,000,000 deposited in the Fund shall be available for grants under
section 10603a of this title.
(B)(i) For any fiscal year for which the amount deposited in the Fund is greater than the amount deposited in the Fund for fiscal
year 1998, the $10,000,000 referred to in subparagraph (A) plus an amount equal to 50 percent of the increase in the amount from
fiscal year 1998 shall be available for grants
under section 10603a of this title.
(ii) Amounts available under this subparagraph for any fiscal year shall not exceed $20,000,000.
(3) Of the sums remaining in the Fund in any particular fiscal year after compliance with paragraph (2), such sums as may be
necessary shall be available for the United States Attorneys Offices and the Federal Bureau of Investigation to improve services for
the benefit of crime victims in the Federal criminal justice system, and for a Victim Notification System.
(4) Of the remaining amount to be distributed from the Fund in a particular fiscal year —
(A) 47.5 percent shall be available for grants under section 10602 of this title;
(B) 47.5 percent shall be available for grants under section 10603(a) of this title; and
(C) 5 percent shall be available for grants under section 10603(c) of this title.
(5)(A) In addition to the amounts distributed under paragraphs (2), (3), and (4), the Director may set aside up to $50,000,000
from the amounts transferred to the Fund in response to the airplane hijackings and terrorist acts that occurred on September 11, 2001,
as an antiterrorism emergency reserve. The Director may replenish any amounts expended from such reserve in subsequent fiscal
years by setting aside up to 5 percent of the amounts remaining in the Fund in any fiscal year after distributing amounts under
paragraphs (2), (3) and (4). Such reserve shall not exceed $50,000,000.
(B) The antiterrorism emergency reserve referred to in subparagraph (A) may be used for supplemental grants under section
10603b of this title and to provide compensation to victims of international terrorism under section 10603c of this title.
(C) Amounts in the antiterrorism emergency reserve established pursuant to subparagraph (A) may be carried over from fiscal
year to fiscal year. Notwithstanding subsection (c) and section 619 of the Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 2001 (and any similar limitation on Fund obligations in any future Act, unless the same
should expressly refer to this section), any such amounts carried over shall not be subject to any limitation on obligations from
amounts deposited to or available in the Fund.
(e) Amounts awarded and unspent
Any amount awarded as part of a grant under this chapter that remains unspent at the end of a fiscal year in which the grant
is made may be expended for the purpose for which the grant is made at any time during the 3 succeeding fiscal years, at the end of
which period, any remaining unobligated sums shall be available for deposit into the emergency reserve fund referred to in subsection
(d)(5) at the discretion of the Director. Any remaining unobligated sums shall be returned to the Fund.
(f) “Offenses against the United States†as excluding
As used in this section, the term “offenses against the United States†does not include —
(1) a criminal violation of the Uniform Code of Military Justice (10 U.S.C. 801 et seq.);
(2) an offense against the laws of the District of Columbia; and
(3) an offense triable by an Indian tribal court or Court of Indian Offenses.
(g) Grants for Indian tribes; child abuse cases
(1) The Attorney General, acting through the Director, shall use 15 percent of the funds available under subsection (d)(2) of
this section to make grants for the purpose of assisting Native American Indian tribes in developing, establishing, and operating
programs designed to improve —
(A) the handling of child abuse cases, particularly cases of child sexual abuse, in a manner which limits additional
trauma to the child victim; and
(B) the investigation and prosecution of cases of child abuse, particularly child sexual abuse.
(2) As used in this subsection, the term “tribe†has the meaning given that term in section 450b(b) of Title 25.
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Federal Forfeiture Statutes.165
7 U.S.C. 1595 violation of the Federal Seed Act (seed)
7 U.S.C. 2024(g), (h) misuse of food stamp coupons or authorization cards (nonfood items, money, negotiable instruments, securities,
things of value furnished in exchange of coupons)
7 U.S.C. 2024 Food Stamp Act felonies (property traceable to proceeds)*
7 U.S.C. 2156 animal fighting violations (animals)
8 U.S.C. 1324(b) bringing in or harboring aliens (conveyances)
8 U.S.C. 1324 bringing in and harboring aliens for profit (property traceable to proceeds)*
8 U.S.C. 1327 aiding or assisting aliens to enter the U.S. for profit (property traceable to proceeds)*
8 U.S.C. 1328 importing aliens for immoral purpose for profit (property traceable to proceeds)*
11 U.S.C. 1 et seq. bankruptcy fraud (except 11 U.S.C. 157 cases)(property traceable to proceeds)*
15 U.S.C. 6 restraint of interstate or foreign trade (property in transit and involved in restraint)
15 U.S.C. 11 restraint of trade (property in transit)
15 U.S.C. 77 unauthorized of departure of vessel detained in time of war in the interests of American neutrality (vessel)
15 U.S.C. 77q fraud in the sale of securities (property traceable to proceeds)*
15 U.S.C. 78dd-2 Foreign Corrupt Practices Act felonies (property traceable to proceeds)*
15 U.S.C. 292 falsely stamped gold or silver (gold, silver, gold goods, silver goods)
15 U.S.C. 715f hot oil (illegally transported contraband oil)
15 U.S.C. 1177 illegally transporting gambling devices (gambling devices)
15 U.S.C. 1195 making, moving or dealing in materials without complying with the Flammable Fabrics Act (material)
15 U.S.C. 1265 Federal Hazardous Substances Act violations (misbranded and banned substances)
15 U.S.C. 2071(b) consumer product safety violations (prohibited products and those which fail to comply with an applicable
consumer product safety rule)
15 U.S.C. 2104 political or numismatic items violations (imported products)
16 U.S.C. 26 hunting or fishing in Yellowstone National Park (guns, traps, beasts of burden, means of transportation)
16 U.S.C. 65 hunting or fishing in Sequoia or Yosemite National Parks (guns, teams, horses, means of transportation, and traps)
16 U.S.C. 99 hunting or fishing in Mt. Rainier National Park (guns, traps, beasts of burden, means of transportation)
16 U.S.C. 117d hunting or fishing in Mesa Verde National Park (guns, traps, beasts of burden, means of transportation)
16 U.S.C. 128 hunting or fishing in Crater Lake National Park (guns, traps, beasts of burden, means of transportation)
16 U.S.C. 171 hunting or fishing in Glacier National Park (guns, traps, beasts of burden, means of transportation)
16 U.S.C. 198d hunting or fishing in Rocky Mountain National Park (guns, traps, beasts of burden, means of transportation)
16 U.S.C. 204d hunting or fishing in Lassen Volcanic National Park (guns, traps, beasts of burden, means of transportation)
16 U.S.C. 256c hunting or fishing in Olympic Volcanic National Park (guns, bows, traps, nets, seines, fishing tackle, clothing, beasts
of burden, machinery, logging equipment, motor vehicles, aircraft, boats or means of transportation)
16 U.S.C. 395d hunting or fishing in Hawaii National Park (guns, traps, beasts of burden, means of transportation) 16 U.S.C. 403c-4
Hunting or fishing in Shenandoah National Park (guns, traps,nets, seines, beasts of burden, means of transportation)
16 U.S.C. 403c-4 hunting or fishing in the Shenandoah National Park (guns, traps, nets, seines, teams, horses, means of
transportation)
16 U.S.C. 403h-4 hunting or fishing in Great Smoky National Park (guns, traps, nets, seines, fishing tackle, beasts of burden, means
of transportation)
16 U.S.C. 404c-4 hunting or fishing in Mammoth Cave National Park (guns, traps, nets, seines, fishing tackle, beasts of burden,
means of transportation)
16 U.S.C. 408l hunting or fishing in Isle Royale National Park (guns, traps, nets, seines, fishing tackle, beasts of burden, means of
transportation)
16 U.S.C. 470gg(b) excavation of and dealing in archaeological resources (archaeological resources, vehicles and equipment used)
16 U.S.C. 668b Bald and Golden Eagle protection violations (products, guns, traps, nets, equipment, vessels, vehicles, aircraft, means
of transportation)
16 U.S.C. 668dd endangered species violations (species members)
16 U.S.C. 670j hunting or fishing on wetlands (guns, traps, nets, equipment, vessels, vehicles and other means of transportation)
165 This list does not include statutes which are probably more accurately considered fines
or penalties since they make no reference to specific property, i.e., “whoever violates this
chapter shall forfeit an amount equal to three times the value of the goods.†Nor does it
include statutes where the forfeiture is essentially a lien against payment of a fine or penalty,
e.g., 18 U.S.C. 3681. It does however include both criminal and civil forfeiture statutes. It
also includes statutes (marked an *) listed because CAFRA declared proceeds traceable to
violation of their provisions subject to confiscation either by identified them individually
or as predicate offenses for 18 U.S.C. 1956 (money laundering) or for 18 U.S.C. 1961
(RICO), 18 U.S.C. 981(a)(1).
CRS-62
16 U.S.C. 690e hunting in Bear River Migratory Bird Refuge (game)
16 U.S.C. 957 violations of the Tuna conventions (fish)
16 U.S.C. 707 migratory bird hunting violations (guns, traps, nets, equipment, vessels, vehicles, means of transportation)
16 U.S.C. 727 hunting and fishing in Upper Mississippi River Wild Life and Fish Refuge (guns, fishing equipment, boats, other
paraphernalia)
16 U.S.C. 742j-1 hunting or harassing game from a plane (game, guns, plane, equipment)
16 U.S.C. 773h Northern Pacific Halibut Act violations (vessel, fishing gear, furniture, appurtenances, stores, cargo, fish of fishing
boat)
16 U.S.C. 916f Whaling Convention violations (whales, whale products)
16 U.S.C. 959 Tuna Convention violations (fish)
16 U.S.C. 971e Atlantic Tuna Convention violations (fish)
16 U.S.C. 972f Eastern Pacific Tuna Convention violations (fish)
16 U.S.C. 1171 North Pacific Fur Seal violations (vessel, gear, furniture, appurtenances, stores, cargo, furs)
16 U.S.C. 1376 marine mammal violations (vessel and cargo)
16 U.S.C. 1417 sell or transport tuna not taken in compliance with a International Dolphin Conservation program (vessel, equipment
and fish)
16 U.S.C. 1418(c) global moratorium on certain tuna harvesting practices (vessels (including fishing gear, appurtenances stores, and
cargo) used and fish taken in violation)
16 U.S.C. 1437 marine sanctuary violations (vessel, equipment, stores, cargo, item used in violation, sanctuary resources)
16 U.S.C. 1540 endangered species violations (species, guns, traps, nets, equipment, vessels, vehicles, aircraft, means of
transportation)
16 U.S.C. 1860 Fishery Conservation and Management Act violations (fishing vessels, their gear, furniture, appurtenances, stores,
cargo, and fish)
16 U.S.C. 2409 Antarctic conservation violations (game, guns, traps, nets, equipment, vessels, vehicles, aircraft, other means of
transportation)
16 U.S.C. 2439 Antarctic Marine Living Resources Convention violations (guns, traps, nets, other equipment, vessels, their gear,
furniture, appurtenances, stoves, and cargo, vessels, vehicles, aircraft, and other means of transportation)
16 U.S.C. 3374 transporting fish, wildlife or plants contrary to law (fish, wildlife, plants, vessels, vehicles, aircraft, and other means
of transportation)
16 U.S.C. 3606 North Atlantic salmon violations (vessels and fish)
16 U.S.C. 3637 Pacific salmon violations (fish and vessels, their gear, furniture, appurtenances, stores, and cargo)
16 U.S.C. 5010 North Pacific anaromous fish violations (fish and vessels including fishing gear, furniture, appurtenances, stores and
cargo)
16 U.S.C. 5106 Atlantic coastal fisheries moratorium violations (fish, vessels, gear, equipment, appurtenances, stores and cargo)
16 U.S.C. 5305a rhinoceros and tiger conservation violations (derivative products)
16 U.S.C. 5154 violations of Atlantic striped bass moratorium (vessel, equipment, cargo, fish)
16 U.S.C. 5158 violations relating to striped base in the exclusive economic zone (vessel, equipment, cargo, fish)
16 U.S.C. 5509 high seas fish conservation offenses (fish, vessels, gear, equipment, furniture, appurtenances, stores, and cargo)
16 U.S.C. 5606 Northwest Atlantic Fisheries Convention offenses (fishing vessels, their gear, furniture, appurtenances, stores, cargo,
and fish)
17 U.S.C. 506 copyright infringement (copies, and copying implements, devices, and equipment)
17 U.S.C. 509 copyright infringement of phonorecords (copies, copying implements, devices, and equipment)
17 U.S.C. 603 importation of items infringing on copyright (copies)
17 U.S.C. 1328 infringement on copyrighted original design (articles imported)
18 U.S.C. 32 destruction of aircraft (property traceable to proceeds)*
18 U.S.C. 37 violence at international airports (property traceable to proceeds)*
18 U.S.C. 38 fraud involving aircraft or spacecraft parts (proceeds and property used to facilitate offenses)
18 U.S.C. 81 arson within U.S special maritime and territorial jurisdiction (property traceable to proceeds)*
18 U.S.C. 115 influencing, impeding, or retaliating against a Federal official by threatening or injuring a family member (property
traceable to proceeds)*
18 U.S.C. 152 concealment of assets; false oaths and claims; bribery (property traceable to proceeds)*
18 U.S.C. 175 biological weapons offenses (property traceable to proceeds)*
18 U.S.C. 175b unlawful possession of biological materials (property traceable to proceeds)*
18 U.S.C. 175c unlawful possession of smallpox materials (property traceable to proceeds)*
18 U.S.C. 176 Biological Weapons Act violations (biological agent, toxin and delivery system)
18 U.S.C. 201 bribery of U.S. officials (property traceable to proceeds)*
18 U.S.C. 215 commissions or gifts for procuring loans (property traceable to proceeds)*
18 U.S.C. 224 sports bribery (property traceable to proceeds)*
18 U.S.C. 229 chemical weapons offenses (property traceable to proceeds)*
18 U.S.C. 229B Chemical Weapons Act offenses (property used in, constituting the proceeds from, or facilitating offenses)
18 U.S.C. 287 false claims involving health care benefits (property traceable to proceeds)*
18 U.S.C. 351 congressional or Cabinet officer assassination (property traceable to proceeds)*
18 U.S.C. 371 conspiracy to defraud health care programs (property traceable to proceeds)*
CRS-63
18 U.S.C. 438 unlawful Indian contracts for services (proceeds)
18 U.S.C. 471 counterfeiting obligations or securities of the United States (property traceable to proceeds)*
18 U.S.C. 472 uttering counterfeit obligations or securities (property traceable to proceeds)*
18 U.S.C. 473 dealing in counterfeit obligations or securities (property traceable to proceeds)*
18 U.S.C. 474 possession of plates or stones for counterfeit obligations or securities (property traceable to proceeds)*
18 U.S.C. 476 taking impressions of tools used for obligations or securities (property traceable to proceeds)*
18 U.S.C. 477 sale or possession of impressions of tools used for obligations or securities (property traceable to proceeds)*
18 U.S.C. 478 counterfeiting foreign obligations or securities (property traceable to proceeds)*
18 U.S.C. 479 uttering counterfeit foreign obligations or securities (property traceable to proceeds)*
18 U.S.C. 480 possessing counterfeit foreign obligations or securities (property traceable to proceeds)*
18 U.S.C. 481 possession of plates or stones for counterfeit foreign obligations or securities (property traceable to proceeds)*
18 U.S.C. 485 counterfeiting U.S. coins (property traceable to proceeds)*
18 U.S.C. 486 uttering counterfeit coins (property traceable to proceeds)*
18 U.S.C. 487 possession of counterfeit dies for U.S. coins (property traceable to proceeds)*
18 U.S.C. 488 possession of counterfeit dies for foreign coins (property traceable to proceeds)*
18 U.S.C. 492 counterfeiting U.S. or foreign government coins, obligations or securities (counterfeits, and any articles, devices, and
things used to counterfeit)
18 U.S.C. 500 counterfeiting U.S. postal money orders (property traceable to proceeds)*
18 U.S.C. 501 counterfeiting U.S. postage stamps (property traceable to proceeds)*
18 U.S.C. 502 counterfeiting foreign postage stamps (property traceable to proceeds)*
18 U.S.C. 503 counterfeiting U.S. postmarking stamps (property traceable to proceeds)*
18 U.S.C. 510 forging U.S. checks, bonds or securities (property traceable to proceeds)*
18 U.S.C. 511 altering motor vehicle identification numbers (property traceable to proceeds)*
18 U.S.C. 512 removing or changing motor vehicle identifications numbers (vehicle or part with altered or removed id. number)
18 U.S.C. 513 counterfeiting securities of States and private entities (property traceable to proceeds)*
18 U.S.C. 541 entry of falsely classified goods (property traceable to proceeds)*
18 U.S.C. 542 entry of goods by means of false statements (property traceable to proceeds)*
18 U.S.C. 544 relanding goods(goods)
18 U.S.C. 545 smuggling (goods smuggled)
18 U.S.C. 545 smuggling goods into the United States (property traceable to proceeds)*
18 U.S.C. 548 removing or repacking goods stored in customs warehouses (goods)
18 U.S.C. 549 removing goods from Customs custody (property traceable to proceeds)*
18 U.S.C. 550 false claims for refund of duties (merchandise)
18 U.S.C. 553 (importing/exporting stolen motor vehicles (property traceable to proceeds)*
18 U.S.C. 641 theft of public money, property, or records (property traceable to proceeds)*
18 U.S.C. 656 theft, embezzlement, or misapplication by bank officer or employee (property traceable to proceeds)*
18 U.S.C. 657 theft from lending, credit, and insurance institutions (property traceable to proceeds)*
18 U.S.C. 658 property mortgaged or pledged to farm credit agencies (property traceable to proceeds)*
18 U.S.C. 659 felonious theft from interstate shipments (property traceable to proceeds)*
18 U.S.C. 664 pension fund embezzlement (property traceable to proceeds)*
18 U.S.C. 666 theft or bribery concerning programs receiving Federal funds (property traceable to proceeds)*
18 U.S.C. 669 health care theft or embezzlement (property traceable to proceeds)*
18 U.S.C. 793 espionage (property derived from payments from foreign sources)
18 U.S.C. 793 espionage (property traceable to proceeds)*
18 U.S.C. 794 serious espionage (property derived from or used in commission of violation)
18 U.S.C. 794 serious espionage (property traceable to proceeds)*
18 U.S.C. 798 disclosure of classified information (property derived from or used in violation)*
18 U.S.C. 798 disclosure of classified information (property traceable to proceeds)*
18 U.S.C. 831 transactions involving nuclear materials (property traceable to proceeds)*
18 U.S.C. 842 explosives offenses (property traceable to proceeds)*
18 U.S.C. 844 explosives offenses (property traceable to proceeds)*
18 U.S.C. 844 explosives violations (explosives)
18 U.S.C. 875 threats in interstate communications (property traceable to proceeds)*
18 U.S.C. 892 loansharking (property traceable to proceeds)*
18 U.S.C. 893 financing a loansharking operation (property traceable to proceeds)*
18 U.S.C. 894 collecting extortionate loans (property traceable to proceeds)*
18 U.S.C. 922(l) unlawfully importing firearms (property traceable to proceeds)*
18 U.S.C. 924(n) gun running (property traceable to proceeds)*
18 U.S.C. 924 firearms violations (guns and ammunition)
18 U.S.C. 930(c) armed violence at federal facility (property traceable to proceeds)*
18 U.S.C. 956 conspiracy to kill, kidnap, maim, or injure certain property in a foreign country (property traceable to proceeds)*
18 U.S.C. 962 arming vessel against friendly nation (vessel, its tackle, apparel, furniture, arms, materials, ammunition and stores)
18 U.S.C. 963 departure of detained vessel in violation of neutrality (vessel, its tackle, apparel, furniture, equipment and cargo)
CRS-64
18 U.S.C. 964 delivery of armed vessel to belligerent (vessel, its tackle, apparel, furniture, equipment and cargo)
18 U.S.C. 965 departure without filing verification statements (vessel, its tackle, apparel, furniture, equipment and cargo)
18 U.S.C. 966 departure after filing falsified statements (vessel, its tackle, apparel, furniture, equipment and cargo)
18 U.S.C. 967 departure without clearance (vessel, its tackle, apparel, furniture, equipment and cargo)
18 U.S.C. 981 money laundering, civil forfeiture (all property, real or personal, constituting, derived from, or traceable to a violation)
18 U.S.C. 982 money laundering, criminal forfeiture (all property, real or personal involved in or traceable to a violation)
18 U.S.C. 984 fungible property involved in money laundering (fungible property)
18 U.S.C. 1001 false statements in a matter with the jurisdiction of a federal agency with respect to health care benefits (property
traceable to proceeds)*
18 U.S.C. 1005 fraudulent bank entries (property traceable to proceeds)*
18 U.S.C. 1006 fraudulent Federal credit institution entries (property traceable to proceeds)*
18 U.S.C. 1007 fraudulent Federal Deposit Insurance transactions) (property traceable to proceeds)*
18 U.S.C. 1014 fraudulent loan or credit applications (property traceable to proceeds)*
18 U.S.C. 1027 ERISA fraud involving health care benefits (property traceable to proceeds)*
18 U.S.C. 1028 identification fraud (property traceable to proceeds)*
18 U.S.C. 1028 fraud with respect to identification documents (property used)
18 U.S.C. 1029 access device fraud (property traceable to proceeds)*
18 U.S.C. 1029 fraud with respect to access devices (property used)
18 U.S.C. 1030 computer fraud and abuse (property traceable to proceeds)*
18 U.S.C. 1031 major fraud against the U.S. involving the assets of a financial institution (property traceable to proceeds)*
18 U.S.C. 1032 concealment of assets from conservator, receiver, or liquidating agent of financial institution) (property traceable to
proceeds)*
18 U.S.C. 1035 false statements in health care matters (property traceable to proceeds)*
18 U.S.C. 1037 fraud relating to electronic mail (property traceable to or used facilitate the offense)
18 U.S.C. 1082 gambling ships (vessel, its tackle, apparel, and furniture)
18 U.S.C. 1084 interstate transmission of gambling information (property traceable to proceeds)*
18 U.S.C. 1111 murder in the special maritime and territorial jurisdiction of the United States (property traceable to proceeds)*
18 U.S.C. 1114 federal officers or employees (property traceable to proceeds)*
18 U.S.C. 1116 murder of foreign officials, official guests, or internationally protected persons (property traceable to proceeds)*
18 U.S.C. 1165 hunting, trapping or fishing on Indian land (game, pelts, and fish)
18 U.S.C. 1201 kidnapping (property traceable to proceeds)*
18 U.S.C. 1203 hostage taking (property traceable to proceeds)*
18 U.S.C. 1341 mail fraud (property traceable to proceeds)*
18 U.S.C. 1343 wire fraud (property traceable to proceeds)*
18 U.S.C. 1344 bank fraud (property traceable to proceeds)*
18 U.S.C. 1347 health care fraud (property traceable to proceeds)*
18 U.S.C. 1361 willful injury of Government property (property traceable to proceeds)*
18 U.S.C. 1362 destruction of communications facilities (property traceable to proceeds)*
18 U.S.C. 1363 destruction of property within U.S. special maritime and territorial jurisdiction (property traceable to proceeds)*
18 U.S.C. 1336 destruction of energy facilities (property traceable to proceeds)*
18 U.S.C. 1425 procuring citizenship unlawfully (property traceable to proceeds)*
18 U.S.C. 1426 reproducing of citizenship papers (property traceable to proceeds)*
18 U.S.C. 1427 sale of citizenship papers (property traceable to proceeds)*
18 U.S.C. 1461 mailing obscene material (property traceable to proceeds)*
18 U.S.C. 1462 importing/exporting obscene material (property traceable to proceeds)*
18 U.S.C. 1463 mailing indecent material (property traceable to proceeds)*
18 U.S.C. 1464 broadcasting obscene language (property traceable to proceeds)*
18 U.S.C. 1465 transporting obscene material for sale (property traceable to proceeds)*
18 U.S.C. 1467 obscene material (material, real and personal property derived from, traceable to, or used to commit a violation)
18 U.S.C. 1503 obstruction of justice (property traceable to proceeds)*
18 U.S.C. 1510 obstructing criminal investigations (property traceable to proceeds)*
18 U.S.C. 1511 obstructing state law enforcement (property traceable to proceeds)*
18 U.S.C. 1512 tampering with federal witnesses (property traceable to proceeds)*
18 U.S.C. 1513 retaliating against federal witnesses (property traceable to proceeds)*
18 U.S.C. 1518 obstruction of health care crime investigations (property traceable to proceeds)*
18 U.S.C. 1542 false statement in a passport application (property traceable to proceeds)*
18 U.S.C. 1543 passport forgery (property traceable to proceeds)*
18 U.S.C. 1544 passport misuse (property traceable to proceeds)*
18 U.S.C. 1546 visa fraud (property traceable to proceeds)*
18 U.S.C. 1581 peonage (property traceable to proceeds)*
18 U.S.C. 1582 vessels in the slave trade (property traceable to proceeds)*
18 U.S.C. 1583 enticing another into slavery (property traceable to proceeds)*
18 U.S.C. 1584 selling another into slavery (property traceable to proceeds)*
18 U.S.C. 1585 slave trading (property traceable to proceeds)*
CRS-65
18 U.S.C. 1586 service on a slave ship (property traceable to proceeds)*
18 U.S.C. 1587 possession of slaves aboard ship (property traceable to proceeds)*
18 U.S.C. 1588 transportation of slaves to the United States (property traceable to proceeds)*
18 U.S.C. 1589 forced labor (property traceable to proceeds)*
18 U.S.C. 1590 trafficking relating to peonage, slavery, involuntary servitude or forced labor (property traceable to proceeds)*
18 U.S.C. 1591 sex trafficking in children (property traceable to proceeds)*
18 U.S.C. 1594 peonage, slavery, and forced labor violations (property derived from or used to facilitate the offense)
18 U.S.C. 1708 theft from the mail (property traceable to proceeds)*
18 U.S.C. 1751 Presidential assassination (property traceable to proceeds)*
18 U.S.C. 1762 illicit transportation of prisoner-made goods (goods)
18 U.S.C. 1834 trade secret offenses (proceeds and property used to facilitate offenses)
18 U.S.C. 1951 robbery or violence affecting interstate commerce (Hobbs Act) (property traceable to proceeds)*
18 U.S.C. 1952 use of interstate commerce to facilitate unlawful activity (Travel Act) (property traceable to proceeds)*
18 U.S.C. 1953 interstate transportation of wagering paraphernalia (property traceable to proceeds)*
18 U.S.C. 1954 corruption of employee benefit plans (property traceable to proceeds)*
18 U.S.C. 1955 illegal gambling business (property traceable to proceeds)*
18 U.S.C. 1955 illegal gambling business (any property including money used in violation)
18 U.S.C. 1956 money laundering (property traceable to proceeds)*
18 U.S.C. 1957 unlawful monetary transactions (property traceable to proceeds)*
18 U.S.C. 1958 interstate murder for hire (property traceable to proceeds)*
18 U.S.C. 1960 unlawful money transmission business (property involved or traceable to proceeds)*
18 U.S.C. 1963 Racketeer Influenced and Corrupt Organizations (RICO) (property derived from and interest acquired and maintained
in violation)
18 U.S.C. 1992 train wrecking (property traceable to proceeds)*
18 U.S.C. 1993 terrorist attacks on mass transit (property traceable to proceeds)*
18 U.S.C. 2113 bank robbery (property traceable to proceeds)*
18 U.S.C. 2114 postal robbery and theft (property traceable to proceeds)*
18 U.S.C. 2119 carjacking (property traceable to proceeds)*
18 U.S.C. 2155 destruction of national defense material (property traceable to proceeds)*
18 U.S.C. 2251 sexual exploitation of children (property traceable to proceeds)*
18 U.S.C. 2251A selling children (property traceable to proceeds)*
18 U.S.C. 2252 material involving sexual exploitation of children (property traceable to proceeds)*
18 U.S.C. 2253 sexual exploitation of children, criminal forfeiture (product, real and personal property derived from, traceable to,
and used in violation)
18 U.S.C. 2254 sexual exploitation of children, civil forfeiture (product, real and personal property derived from, traceable to, and
used in violation)
18 U.S.C. 2260 production of sexual exploitative material for importation (property traceable to proceeds)*
18 U.S.C. 2274 destruction or misuse of vessel by owner (vessel, its tackle, apparel, furniture and equipment)
18 U.S.C. 2280 violence against maritime navigation (property traceable to proceeds)*
18 U.S.C. 2281 violence against maritime fixed platforms (property traceable to proceeds)*
18 U.S.C. 2312 interstate transportation of stolen motor vehicles (property traceable to proceeds)*
18 U.S.C. 2313 receipt of a stolen motor vehicle transported interstate (property traceable to proceeds)*
18 U.S.C. 2314 interstate transportation of stolen property (property traceable to proceeds)*
18 U.S.C. 2315 receipt of a stolen property transported interstate (property traceable to proceeds)*
18 U.S.C. 2318 trafficking in counterfeit labels affixed or to be affixed to phonograph records, motion pictures or other audiovisual
works (counterfeit labels and articles to which they are affixed)
18 U.S.C. 2318 same (property traceable to proceeds)*
18 U.S.C. 2319 copyright infringement (property traceable to proceeds)*
18 U.S.C. 2319A unauthorized commercial exploitation of sound recordings (property traceable to proceeds)*
18 U.S.C. 2319A same (recordings and phonorecords)
18 U.S.C. 2320 trafficking in counterfeit goods and services (property traceable to proceeds)*
18 U.S.C. 2321 chop shop offenses (property traceable to proceeds)*
18 U.S.C. 2332 terrorist acts abroad against United States nationals (property traceable to proceeds)*
18 U.S.C. 2332a weapons of mass destruction (property traceable to proceeds)*
18 U.S.C. 2332b international terrorist acts transcending national boundaries (property traceable to proceeds)*
18 U.S.C. 2332f bombing public places and facilities (property traceable to proceeds)*
18 U.S.C. 2332g anti-aircraft missile offenses (property traceable to proceeds)*
18 U.S.C. 2332h radiological dispersal device offenses (property traceable to proceeds)*
18 U.S.C. 2339A providing material support to terrorists (property traceable to proceeds)*
18 U.S.C. 2339B providing material support to terrorist organizations (property traceable to proceeds)*
18 U.S.C. 2339C financing terrorism (property traceable to proceeds)*
18 U.S.C. 2340A torture (property traceable to proceeds)*
CRS-66
18 U.S.C. 2342 trafficking in untaxed cigarettes (property traceable to proceeds)*
18 U.S.C. 2344 same (cigarettes)
18 U.S.C. 2421 interstate transportation for sexual purposes (property traceable to proceeds)*
18 U.S.C. 2422 coercing or enticing another travel interstate for sexual purposes (property traceable to proceeds)*
18 U.S.C. 2423 interstate transportation of minors for sexual purposes (property traceable to proceeds)*
18 U.S.C. 2424 keeping a house of alien prostitution without registering with immigration officials (property traceable to proceeds)*
18 U.S.C. 2513 interception of wire, oral or electronic communications (wiretapping and bugging devices)
18 U.S.C. 3113 liquor violations in Indian country (unlawful liquor and the conveyances and packages in which it is found)
18 U.S.C. 3665 firearms possessed by convicted felons (firearms and ammunition unlawfully possessed)
18 U.S.C. 3667 liquors involved in violations of 18 U.S.C. 1261-1265 relating to tax and transportation of liquor (liquor and
conveyances)
18 U.S.C. 3669 using conveyances to unlawful transport liquor into Indian country (conveyances)
18 U.S.C. 4012 prison contraband (contraband)
19 U.S.C. 130 importing goods in certain foreign owned ships (goods, vessels, and their cargo, tackle, apparel, and furniture)
19 U.S.C. 467 unstamped imported distilled spirits (spirits)
19 U.S.C. 469 dealing in empty stamped imported liquor containers (containers)
19 U.S.C. 1305 importation of immoral materials (contents of packages in which immoral materials are found)
19 U.S.C. 1322 rescue and relief equipment imported contrary to regulations for admission pursuant to treaty with Mexico
(equipment)
19 U.S.C. 1338 foreign discrimination against American commerce (articles imported in violation)
19 U.S.C. 1436 failure to comply with Customs entry requirements (conveyance and goods)
19 U.S.C. 1453 unloading without meeting Customs requirements (goods and, if their value exceeds $500, the importing vessel)
19 U.S.C. 1462 refusal to allow customs inspection of container or vehicle (container or vehicle and its contents)
19 U.S.C. 1464 failure to comply with Customs requirements for sealed conveyances (conveyances and contents)
19 U.S.C. 1466 avoiding duty on repairs made overseas (vessel)
19 U.S.C. 1497 failure to declare goods upon entry (goods)
19 U.S.C. 1526 import of foreign made goods with American labels (goods)
19 U.S.C. 1527 import of animals and birds contrary to foreign law (animals and birds)
19 U.S.C. 1584 failure to describe goods in a manifest (goods)
19 U.S.C. 1586 unlawful unloading or shipment (vessel and cargo)
19 U.S.C. 1587 smuggled goods discovered on inspection (vessel and cargo)
19 U.S.C. 1588 transportation of goods between U.S. ports via foreign ports (goods)
19 U.S.C. 1590 aviation smuggling (plane or vessel)
19 U.S.C. 1590 same (property traceable to proceeds)*
19 U.S.C. 1592 false or incomplete statements to customs (goods)
19 U.S.C. 1594 smuggling (conveyances)
19 U.S.C. 1595a use of conveyances for smuggling (conveyances and merchandise)
19 U.S.C. 1627a importing or exporting stolen conveyances (conveyances)
19 U.S.C. 1703 smuggling (vessel and cargo)
19 U.S.C. 1706 importation in unlicensed planes and small boats (planes, small boats and goods)
19 U.S.C. 1707 importing liquor without vessel certificate (liquor)
19 U.S.C. 2093 unlawfully imported pre-Columbian art (art)
19 U.S.C. 2609 theft or unlawfully importing archaeological or ethnological material or articles (material or articles)
21 U.S.C. 134a Livestock and Poultry threatening the introduction or dissemination of communicable diseases (livestock and poultry)
21 U.S.C. 334 misbranded or adulterated foods, drugs and cosmetics (products, counterfeit drugs, their containers, manufacturing
equipment)
21 U.S.C. 467b processing, transporting or distributing diseased poultry and poultry products (poultry and poultry products)
21 U.S.C. 673 processing, transporting or distributing diseased meat (meat)
21 U.S.C. 841 controlled substance trafficking (property traceable to proceeds)*
21 U.S.C. 842 controlled substance regulatory offenses (property traceable to proceeds)*
21 U.S.C. 843 unlawful conduct relating to controlled substance (property traceable to proceeds)*
21 U.S.C. 846 attempt or conspiracy to a commit controlled substance offense (property traceable to proceeds)*
21 U.S.C. 848 drug kingpin offenses (property traceable to proceeds)*
21 U.S.C. 853 controlled substance violations, criminal forfeiture (property derived from, traceable to, used to facilitate violation)
21 U.S.C. 854 investment of controlled substance offense proceeds (property traceable to proceeds)*
21 U.S.C. 856 maintaining drug-involved premises (property traceable to proceeds)*
21 U.S.C. 858 endangerment in the illicit production of controlled substances (property traceable to proceeds)*
21 U.S.C. 859 drug trafficking to minors (property traceable to proceeds)*
21 U.S.C. 860 drug trafficking near schools and similar facilities (property traceable to proceeds)*
21 U.S.C. 861 drug trafficking using minors (property traceable to proceeds)*
21 U.S.C. 863 transportation of drug paraphernalia (property traceable to proceeds)*
21 U.S.C. 863 same (property traceable to proceeds)*
CRS-67
21 U.S.C. 881 controlled substance violations, civil forfeiture (substance, raw materials, precursor chemicals, records, containers,
conveyances, property including real property traceable to, derived from or used to facilitate violations)
21 U.S.C. 952 unlawfully importing controlled substances (property traceable to proceeds)*
21 U.S.C. 953 unlawfully exporting controlled substances (property traceable to proceeds)*
21 U.S.C. 957 unlicensed exporting or importing controlled substances (property traceable to proceeds)*
21 U.S.C. 959 overseas controlled substance offenses (property traceable to proceeds)*
21 U.S.C. 960 violations of 21 U.S.C. 952, 953, 957, 959 (property traceable to proceeds)*
21 U.S.C. 961 regulatory import/export offenses (property traceable to proceeds)*
21 U.S.C. 963 attempt or conspiracy to commit controlled substance import/export offenses (property traceable to proceeds)*
21 U.S.C. 970 controlled substance importing and exporting violations (property derived from, traceable to, used to facilitate
violation)
21 U.S.C. 1049 processing, transporting or distributing contaminated eggs (eggs)
22 U.S.C. 287c violation of import restrictions on Rhodesian chromium (property, funds, securities, papers, vessel (with tackle,
apparel, furniture and equipment, vehicle, aircraft concerned in violation)
22 U.S.C. 401 illegal exportation of war materials (arms, munitions of war and other articles, vessels, vehicles, and aircraft)
22 U.S.C. 611 et seq. felonious violations of the Foreign Agents Registration Act (property traceable to proceeds)*
22 U.S.C. 1978 importing fish and wildlife from countries threatening endangered species (fish and wildlife)
22 U.S.C. 2778 Arms Export Control Act offenses (property traceable to proceeds)*
22 U.S.C. 6744 disclosure trade secrets acquired through Chemical Weapons Convention implementation (property used in,
constituting the proceeds from, or facilitating offenses)
25 U.S.C. 264 trading in Indian country without a license (merchandise)
26 U.S.C. 5607 unlawful use, recovery or concealment of denatured distilled spirits (all personal property used, buildings and grounds
constituting business premises on which violations occurred)
26 U.S.C. 5608 smuggling liquor (liquor, vessels, vehicles and planes)
26 U.S.C. 5612 mingling taxed and untaxed liquor in distilling plants (liquor)
26 U.S.C. 5613 improperly marked liquor (liquor)
26 U.S.C. 5615 bootlegging (unregistered stills, distilling apparatus, products, land used or facilitating, personal property proximate)
26 U.S.C. 5661 wine tax evasion (property used)
26 U.S.C. 5671 beer tax evasion (beer, vessels, utensils, and apparatus)
26 U.S.C. 5673 evading beer tax (lands and buildings holding brewery)
26 U.S.C. 5681 transporting liquor or raw materials to plants or warehouses with insufficient signs (vehicles, planes, and vessels used)
26 U.S.C. 5683 transporting liquor under improper brands (liquor)
26 U.S.C. 5685 possession of illegal firearms (firearms)
26 U.S.C. 5763 tobacco tax violations (all property, real and personal, used in violation, property of illicit operators used to defraud,
tobacco and tobacco products)
26 U.S.C. 5872 firearms tax violations (firearms)
26 U.S.C. 7301 tax avoidance (property subject to taxation, and associated raw material, equipment, containers, conveyances)
26 U.S.C. 7302 possession of property to be used to violate the tax laws (property intended to such use)
26 U.S.C. 7303 use of counterfeit tax stamps and documents (counterfeit stamps, falsely stamped containers and their contents,
fraudulent permits and like documents)
27 U.S.C. 206 violation of bulk intoxicating liquor sales regulations (liquor)
29 U.S.C. 186 restrictions on payments and loans to labor organizations (property traceable to proceeds)*
29 U.S.C. 501(c) embezzlement from union funds (property traceable to proceeds)*
30 U.S.C. 1466 Deep Seabed Hard Mineral Resource Act violations (minerals, vessel and its gear, furniture, appurtenances, stores
and cargo)
31 U.S.C. 5111 U.S. coins exported, melted or treated contrary to regulation (coins)
31 U.S.C. 5137 crossing a U.S. border with more than $10,000 in unreported cash (cash)
33 U.S.C. 384 piracy (vessels)
33 U.S.C. 1251 et seq. Federal Water Pollution Control Act felonies (property traceable to proceeds)*
33 U.S.C. 1401 et seq. Ocean Dumping Act felonies (property traceable to proceeds)*
33 U.S.C. 1415 ocean dumping (proceeds of, property used in, property facilitate violation)
33 U.S.C. 1901 et seq. Act to Prevent Pollution from Ships felonies (property traceable to proceeds)*
33 U.S.C. 2236 failure pay harbor dues (cargo)
33 U.S.C. 2716 oil tankers failure to maintain evidence of financial responsibility (vessel)
42 U.S.C. 300f et seq. Safe Drinking Water Act felonies (property traceable to proceeds)*
42 U.S.C. 1490s equity skimming (property traceable to proceeds)*
42 U.S.C. 2122 atom weapons offenses (property traceable to proceeds)*
42 U.S.C. 2284 sabotage of nuclear facilities (property traceable to proceeds)*
42 U.S.C. 6901 et seq. Resources Conservation and Recovery Act felonies (property traceable to proceeds)*
46 U.S.C. 12122 vessel documentation offenses (vessel and its equipment)
46 U.S.C. 12507 vessel identification offenses (vessel and its equipment)
46 U.S.C. 31330 violation of restrictions on sale of mortgaged vessels (vessel)
46 U.S.C.App.14 false statements to obtain registration of wrecked vessel (vessel and its tackle, apparel and furniture)
CRS-68
46 U.S.C.App.142 retaliatory suspension of commercial privileges to foreign vessels (vessel and goods)
46 U.S.C.App. 292 use of unlicensed foreign built dredges (dredge)
46 U.S.C.App. 316 unlawful salvage operations by foreign vessels (vessel)
46 U.S.C.App. 326 undocumented vessels trading in domestic commerce (vessel, equipment and cargo)
46 U.S.C.App. 723 carrying property from ship wrecks to foreign ports (vessel, its tackle, apparel and furniture)
46 U.S.C.App. 808 improper transfer of a U.S. registered vessel to foreign registry (vessel)
46 U.S.C.App. 835 violation of restrictions on transfer of shipping facilities (vessel, shipyard, drydock, ship building or repairing
facilities, or interest therein)
46 U.S.C.App. 883-1 unlawful foreign shipping in domestic commerce (vessel)
46 U.S.C.App. 883a failure to report foreign rebuilding (vessel, tackle, apparel, equipment and furniture)
46 U.S.C.App. 1904 manufacture, distribution or possession of controlled substances in violation of the Maritime Drug Enforcement
Act (controlled substances and other property used or intended for use in violation of Act)
47 U.S.C. 510 broadcasting without a license (radio equipment)
49 U.S.C. 46306 aircraft registration violations (plane)
49 U.S.C. 46502 chemical trafficking offenses (property traceable to proceeds)*
49 U.S.C. 46504 assault of aircraft flight crew with a dangerous weapons (property traceable to proceeds)*
49 U.S.C. 46505 placing explosives aboard an aircraft (property traceable to proceeds)*
49 U.S.C. 46506 homicide or attempted homicide aboard an aircraft (property traceable to proceeds)*
49 U.S.C. 80303 contraband in the Guam and the North Marianas (conveyances)
49 U.S.C. 60123 destruction of interstate gas pipeline facilities (property traceable to proceeds)*
50 U.S.C. 192 failure to comply with regulations during a national emergency (vessel, tackle, apparel, furniture and equipment)
50 U.S.C. 205 suspension of commercial intercourse with State in insurrection (goods, vessels or vehicles entering or departing after
suspension)
50 U.S.C. 212 property employed in aid of insurrection (property used)
50 U.S.C. 216 transportation of goods in aid of insurrection (goods)
50 U.S.C. 221 entering ports of entry closed due to insurrection (vessel and its tackle, apparel, furniture and cargo)
50 U.S.C. 223 states in insurrection (vessels)
50 U.S.C. 224 unauthorized departure during time of insurrection (vessel and its tackle, apparel, furniture and cargo)
50 U.S.C. 783 unlawful communication of classified information (proceeds from, property used, or property facilitating offense)
50 U.S.C. 1705 International Emergency Economic Powers Act offenses (property traceable to proceeds)*
50 U.S.C.App. 16 Trading With the Enemy Act violations (property and vessels that is the subject of a violation)
50 U.S.C. App. 16 Trading With the Enemy Act offenses (property traceable to proceeds)*
50 U.S.C.App. 2410 export regulation violations (resulting property interests and proceeds)
CRS-69
State Forfeiture Statutes.
State Drug Forfeiture Acts
Alabama: Ala.Code §20-2-93;
Nebraska: Neb.Rev.Stat. §28-431;
Alaska: Alaska Stat. §§17.30.100 to 17.30.126;
Nevada: Nev.Rev.Stat. §§453.301 to 453. 311;
Arizona: Ariz.Rev.Stat.Ann. §§13-4301 to 13-4315;
New Hampshire: N.H.Rev.Stat.Ann. §§318-B:17 to 318-
Arkansas: Ark.Code §§5-64-505 to 5-64-509;
B:17-f;
California: Cal.Health & Safety Code §§ 11469 to 11495;
New Jersey: N.J.Stat.Ann. §§2C:64-1 to 2C:64-9;
New Mexico: N.M.Stat.Ann. §§30-31-34 to 30-31-36;
Colorado: Colo.Rev.Stat. §§16-13-501 to 16-13-702;
New York: N.Y.Pub.Health Law §§3387, 3388; N.Y.Civil
Connecticut: Conn.Gen.Stat.Ann. §§54-36a to 54-36n;
Practice Law §§1310 to 1352;
Delaware: Del.Code tit.16 §4784;
North Carolina: N.C.Gen.Stat. §§90-112, 112.1;
Florida: Fla.Stat.Ann. §§893.12, 932.701 to 932.707;
North Dakota: N.D.Cent.Code §§19-03.1-36 to 19-03.1-
36.7;
Georgia: Ga.Code Ann. §16-13-49;
Ohio: Ohio Rev.Code §§2925.41 to 2925.45;
Hawaii: Hawaii Rev.Stat. §329-55;
Oklahoma: Okla.Stat.Ann. tit.63 §§2-501 to 2-508;
Idaho: Idaho Code §§37-2744 to 37-2744B, 37-2801 to 37-
Oregon: Ore.Rev.Stat. §§475A.005 to 475A.160;
2815;
Pennsylvania: Pa.Stat.Ann. tit.42 §§6801, 6802;
Illinois: Ill.Stat.Ann. ch.720 §§550/12, 570/505, ch.725
Rhode Island: R.I.Gen.Laws §§21-28-5.0 to 21-28-5.07.5;
§§175/1 to 175/5.2;
South Carolina: S.C.Code §§44-53-520 to 44-53-590;
Indiana: Ind.Code Ann. §§34-24-1-1 to 34-24-1-8;
South Dakota: S.D.Comp.Laws §§34-20B-70 to 34-20B-
Iowa: Iowa Code Ann. §§809A.1 to 809A.25;
101;
Kansas: Kan.Stat.Ann. §§60-4101 to 60-4126;
Tennessee: Tenn.Code Ann. §§53-11-201 to 53-11-204; 53-
Kentucky: Ky.Rev.Stat. §§218A.405 to 218A.460;
11-451, 53-11-452;
Louisiana: La.Rev.Stat.Ann. §§40:2601 to 40:2622;
Maine: Me.Rev.Stat.Ann. ch.15 §§5821 to 5827;
Texas: Tex.Code of Crim.Pro. §§59.01 to 59.14;
Maryland: Md.Crim.Pro.Code §§12-101 to 13-206;
Utah: Utah Code Ann. §§58-37-13 to 58-37-20;
Massachusetts: Mass.Gen.Laws Ann. ch. 94C §§47, 47A;
Vermont: Vt.Stat.Ann. tit.18 §§4241 to 4248;
Michigan: Mich.Comp.Laws Ann. §§333.7521 to
Virginia: Va.Code §19.2-386.1 to 19.2-386. 14;
333.7524a;
Washington: Wash.Rev.Code Ann. §§69.50.505 to 69.50.
Minnesota: Minn.Stat.Ann. 609.531 to 609.5319;
509, 69.50.520;
Mississippi: Miss.Code §41-29-176 to 41-29-185;
West Virginia: W.Va.Code §§60A-7-701 to 60A-7-707;
Missouri: Mo.Ann.Stat. §§195.130 to 195.146;
Wisconsin: Wis.Stat.Ann. §§961.55, 961.555;
Montana: Mont.Code Ann. §§44-12-101 to 44-12-206;
Wyoming: Wyo.Stat. §35-7-1049
State RICO Forfeiture Acts
Arizona: Ariz.Rev.Stat.Ann. §§13-2314 to 13-2314.04;
New Mexico: N.M.Stat.Ann. §§30-42-1 to 30-42-6;
California: Cal.Penal Code §§186 to 186.8;
New York: N.Y.Penal Law §§460.00 to 460.80;
Colorado: Colo.Rev.Stat. §§18-17-101 to 18-17-109;
North Carolina: N.C.Gen.Stat. §§75D-1 to 75D-14;
Connecticut: Conn.Gen.Stat.Ann. §§53-393 to 53-403;
North Dakota: N.D.Cent.Code §§12.1-06.1-01 to 12.1-06.1-
Delaware: Del.Code tit.11 §§1501 to 1511;
08;
Florida: Fla.Stat.Ann. §§895.01 to 895.09;
Ohio: Ohio Rev.Code §§2923.31 to 2923.36;
Georgia: Ga.Code Ann. §§16-14-1 to 16-14-15;
Oklahoma: Okla.Stat.Ann. tit.22 §§1401 to 1419;
Hawaii: Haw.Rev.Stat. §§842-1 to 842-12;
Oregon: Ore.Rev.Stat. §§166.715 to 166.735;
Idaho: Idaho Code §§18-7801 to 18-7805;
Pennsylvania: Pa.Stat.Ann. tit.18 §911;
Indiana: Ind.Code Ann. §§34-24-2-1 to 34-24-2-8;
Rhode Island: R.I.Gen.Laws §§7-15-1 to 7-15-11;
Iowa: Iowa Code Ann. §706A.3;
Tennessee: Tenn.Code Ann. §§39-12-201 to 39-12-210;
Louisiana: La.Rev.Stat.Ann. §§15:1351 to 15:1356;
Texas: Tex.Penal Code §§71.01 to 71.05;
Michigan: Mich.Comp.Laws Ann. §§750.159f to 750.159x;
Utah: Utah Code Ann. §§76-10-1601 to 76-10-1610;
Minnesota: Minn.Stat.Ann. §§609.901 to 609.912;
Virginia: Va.Code §§18.2-512 to 18.2-517;
Mississippi: Miss.Code §§97-43-1 to 97-43-11;
Washington: Wash.Rev.Code Ann. §§9A. 82.010 to
Missouri: Mo.Ann.Stat. §§513.600 to 513.653;
9A.82.170;
Nevada: Nev.Rev.Stat. §§207.350 to 207.520;
Wisconsin: Wis.Stat.Ann. §§946.80 to 946.88.
New Jersey: N.J.Stat.Ann. §§2C:41-1 to 2C:41-6.2;