Securing the Border and Making Drug Cartels Pay for it Act

II 116TH CONGRESS 1ST SESSION S. 293 To enhance border security to reduce drug trafficking and related money laundering. IN THE SENATE OF THE UNITED STATES JANUARY 31, 2019 Mr. CASSIDY introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To enhance border security to reduce drug trafficking and related money laundering. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Securing the Border 4 and Making Drug Cartels Pay for it Act’’. 5 SEC. 2. PURPOSE. 6 The purpose of this Act is to authorize the use of 7 illicit drug trafficking proceeds to pay for physical bar- 8 riers, tactical infrastructure, and technology in the vicinity 9 of the United States border, which will— 10 VerDate Sep 11 2014 00:18 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293 pbinns on DSK79D2C42PROD with BILLS 2 •S 293 IS (1) achieve situational awareness and oper- 1 ational control of the border; 2 (2) increase the interdiction of illicit drugs en- 3 tering the United States; and 4 (3) reduce bulk cash smuggling and trade-based 5 money laundering along the border. 6 SEC. 3. SECURE AMERICA FINANCING CORPORATION. 7 (a) ESTABLISHMENT.—There is established, as a spe- 8 cial purpose, public corporate entity, the Secure America 9 Financing Corporation (referred to in this section as the 10 ‘‘Corporation’’), which shall operate as an independent in- 11 strumentality of the Federal Government. 12 (b) BOARD.— 13 (1) COMPOSITION.—The Corporation shall be 14 overseen by a Board, consisting of the Secretary of 15 Homeland Security and the Secretary of the Treas- 16 ury, or their respective designees, as appointed by 17 the President. 18 (2) TERMS.—Members of the Board shall serve, 19 at the pleasure of the President, for 4-year terms, 20 or until a successor is appointed by the President. 21 Members of the Board may be appointed to 1 addi- 22 tional 4-year term. 23 (3) COMPENSATION.—Members of the Board 24 shall serve without additional compensation. 25 VerDate Sep 11 2014 00:18 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293 pbinns on DSK79D2C42PROD with BILLS 3 •S 293 IS (4) CHAIRPERSON.—The Board shall annually 1 elect a Chairperson from among its members. 2 (5) MEETINGS.—The Board shall meet not less 3 frequently than annually. 4 (c) PURPOSES.—The purposes of the Corporation 5 shall be— 6 (1) to issue Secure America Bonds, in accord- 7 ance with subsection (d); 8 (2) to make the proceeds of such bonds avail- 9 able to Homeland Security Investigations of U.S. 10 Immigration and Customs Enforcement and to U.S. 11 Border Patrol to enhance technological capacity; and 12 (3) to use unobligated balances available under 13 the Department of Treasury Forfeiture Fund to re- 14 deem such bonds. 15 (d) BONDS.— 16 (1) ISSUANCE AUTHORIZED.—The Corporation 17 may issue bonds (referred to in this Act as ‘‘Secure 18 America Bonds’’) in such amounts and for such 19 terms as the Board shall authorize to provide the 20 necessary funding for the technological capacity and 21 security enhancements that the Homeland Security 22 Investigations directorate determines appropriate. 23 VerDate Sep 11 2014 00:18 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293 pbinns on DSK79D2C42PROD with BILLS 4 •S 293 IS (2) REDEMPTION.—Secure America Bonds may 1 only be paid from funds managed by the Corpora- 2 tion, including— 3 (A) unobligated balances available under 4 the Department of Treasury Forfeiture Fund; 5 (B) proceeds of the sales of any such 6 bonds; 7 (C) earnings on funds invested by the Cor- 8 poration or the indenture trustee; 9 (D) income generated by the activities of 10 the Corporation; and 11 (E) such other funds as may become avail- 12 able. 13 (3) BANKRUPTCY PROHIBITED.—The Corpora- 14 tion may not file for bankruptcy protection while any 15 Secure America Bonds remain outstanding. 16 (4) LIMITATION.—Secure America Bonds— 17 (A) are not a debt or obligation of the 18 Federal Government; and 19 (B) are not backed by the full faith and 20 credit of the Federal Government. 21 (e) STAFFING.— 22 (1) IN GENERAL.—Employees of the Depart- 23 ment of Homeland Security and employees of the 24 VerDate Sep 11 2014 00:18 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293 pbinns on DSK79D2C42PROD with BILLS 5 •S 293 IS Department of the Treasury may provide adminis- 1 trative support to the Corporation. 2 (2) PROFESSIONAL SERVICES.—The Attorney 3 General, or his or her designee, may serve as counsel 4 to the Corporation and may employee or retain such 5 other attorneys as necessary. The Corporation may 6 employ or retain any other professionals, consult- 7 ants, agents, financial advisors, and accountants as 8 may be necessary to carry out the purposes set forth 9 in subsection (c). The Board may determine the du- 10 ties and compensation of those employed or retained 11 under this paragraph. 12 (f) FINANCIAL MANAGEMENT.— 13 (1) AUTHORITY.—The Corporation is author- 14 ized to sell and convey any of the assets of the Cor- 15 poration, subject to the approval of the Board. 16 (2) EXEMPTION FROM TAXATION.—The Cor- 17 poration shall be exempt from any taxation, fees, as- 18 sessments, or similar charges based on the real 19 property or assets of the Corporation. 20 (g) EFFECT OF DISSOLUTION.—Upon the dissolution 21 of the Corporation, title to all assets and properties of the 22 Corporation shall vest in and become the property of the 23 United States Treasury and shall be deposited into and 24 credited to the Department of Treasury Forfeiture Fund. 25 VerDate Sep 11 2014 00:18 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293 pbinns on DSK79D2C42PROD with BILLS 6 •S 293 IS SEC. 4. USE OF CERTAIN FORFEITED CRIMINAL PROCEEDS 1 FOR BORDER SECURITY MEASURES. 2 Notwithstanding any other provision of law, any 3 funds that are criminally forfeited to the United States 4 pursuant to an order relating to a sentence of a felony 5 conviction by a district court of the United States of an 6 individual engaging in a continuing criminal enterprise in- 7 volving knowingly and intentionally distributing a con- 8 trolled substance, intending and knowing that such sub- 9 stance would be unlawfully imported into the United 10 States from a place outside of the United States shall be 11 used for security measures along the international border 12 between the United States and Mexico, including the con- 13 struction, installation, deployment, operation, and mainte- 14 nance of physical barriers, tactical infrastructure, and 15 technology in the vicinity of such border, for the purpose 16 of stemming the flow of illegal narcotics into the United 17 States and furthering the security of the United States. 18 SEC. 5. RESERVATION OF PORTION OF FORFEITS IN THE 19 DEPARTMENT OF TREASURY FORFEITURE 20 FUND FOR BUILDING A PHYSICAL BARRIER 21 OR ADVANCED TECHNOLOGY TO PREVENT IL- 22 LEGAL ENTRY ACROSS THE SOUTHERN BOR- 23 DER. 24 Section 9705 of title 31, United States Code, is 25 amended— 26 VerDate Sep 11 2014 00:18 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293 pbinns on DSK79D2C42PROD with BILLS 7 •S 293 IS (1) in subsection (a)(1), by adding at the end 1 the following: 2 ‘‘(K) Payments for border security enhance- 3 ments.’’; 4 (2) in subsection (f)— 5 (A) in the matter preceding paragraph (1), 6 by striking ‘‘, not later than February 1 of each 7 year’’; 8 (B) in paragraph (1)— 9 (i) in the matter preceding subpara- 10 graph (A), by inserting ‘‘not later than 11 February 1 of each year,’’ before ‘‘a re- 12 port’’; and 13 (ii) in subparagraph (B), by striking 14 ‘‘and’’ at the end; 15 (C) in paragraph (2)— 16 (i) in the matter preceding subpara- 17 graph (A), by inserting ‘‘not later than 18 February 1 of each year,’’ before ‘‘a re- 19 port’’; and 20 (ii) in subparagraph (I)(ii), by strik- 21 ing the period at the end and inserting a 22 semicolon; and 23 (D) by inserting before the undesignated 24 matter at the end the following: 25 VerDate Sep 11 2014 00:18 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293 pbinns on DSK79D2C42PROD with BILLS 8 •S 293 IS ‘‘(3) not later than December 1 of each year, a 1 report that identifies, as of October 1 of such year, 2 the total of amount in the Fund that was derived 3 from Mexican cartels; and 4 ‘‘(4) not later than 180 days after the date of 5 enactment of the Securing the Border and Making 6 Drug Cartels Pay for it Act, and occasionally there- 7 after, a report that identifies the amount in the 8 Fund that has historically been derived from Mexi- 9 can cartels.’’; and 10 (3) in subsection (g)— 11 (A) in paragraph (4)(B), by inserting ‘‘, 12 including the construction, installation, deploy- 13 ment, operation, and maintenance of physical 14 barriers, tactical infrastructure, and technology 15 in the vicinity of such border,’’ after ‘‘law en- 16 forcement activities’’ after ‘‘law enforcement ac- 17 tivities’’; and 18 (B) by adding at the end the following: 19 ‘‘(5) Of the amount identified pursuant to sub- 20 section (f)(3), 50 percent shall be made available 21 without fiscal year limitation to install additional 22 physical barriers and roads (including the removal of 23 obstacles to detection of illegal entrants) in the vi- 24 cinity of the United States border to deter illegal 25 VerDate Sep 11 2014 00:18 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293 pbinns on DSK79D2C42PROD with BILLS 9 •S 293 IS crossings in areas of high illegal entry into the 1 United States.’’. 2 SEC. 6. USE OF BOND PROCEEDS. 3 (a) IMPROVING DATA ANALYTICS.—The Secretary of 4 Homeland Security, in consultation with the Executive As- 5 sociate Director for Homeland Security Investigations and 6 the Chief, U.S. Border Patrol, may use proceeds from Se- 7 cure America Bonds— 8 (1) to improve the use of data and advanced 9 analytics to target drugs entering the United States, 10 bulk cash smugglers, and trade-based money laun- 11 dering; 12 (2) to prioritize the use of ‘‘big data’’ to en- 13 hance the analysis of information that may lead to 14 an increase in drug seizures near the border, the 15 interdiction of smuggled bulk cash, and the identi- 16 fication of invoice misrepresentation that leads to 17 trade-based money laundering; 18 (3) to increase the technological capacity to 19 gather and develop information about persons, 20 events, and cargo of interest; 21 (4) to integrate data with analytical tools capa- 22 ble of— 23 (A) detecting trends, patterns, and emerg- 24 ing threats; and 25 VerDate Sep 11 2014 00:18 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293 pbinns on DSK79D2C42PROD with BILLS 10 •S 293 IS (B) identifying non-obvious relationships 1 between persons, events, and cargo to generate 2 the necessary tools to increase seizures; and 3 (5) to procure technology for advanced analytics 4 to target drugs coming into the United States, bulk 5 cash smuggling, and trade-based money laundering. 6 (b) PHYSICAL BARRIERS.—The Secretary of Home- 7 land Security, in consultation with the Chief, U.S. Border 8 Patrol, may use proceeds from Secure America Bonds— 9 (1) to achieve situational awareness and oper- 10 ational control of the southwest border by using ter- 11 rain, barriers, and technological and human re- 12 sources to force smugglers to use certain routes and 13 border crossings; and 14 (2) to construct, install, deploy, operate, and 15 permanently maintain physical barriers, tactical in- 16 frastructure, and technology in the vicinity of the 17 southwest border. 18 (c) STAFFING.—The Secretary of Homeland Secu- 19 rity, in consultation with the Executive Associate Director 20 for Homeland Security Investigations, may use proceeds 21 from Secure America Bonds to employ the necessary ana- 22 lysts to carry out the data analytics described in sub- 23 section (a). 24 VerDate Sep 11 2014 00:18 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293 pbinns on DSK79D2C42PROD with BILLS 11 •S 293 IS SEC. 7. RULES OF CIVIL FORFEITURE. 1 (a) CIVIL FORFEITURE.—Section 983(a) of title 18, 2 United States Code, is amended by adding at the end the 3 following: 4 ‘‘(5) In any law enforcement action in which assets 5 may be seized under this subsection, the law enforcement 6 officer may not barter with or otherwise pressure the 7 owner of the assets to be seized to waive any rights relat- 8 ing to the recovery of such assets.’’. 9 (b) BURDEN OF PROOF IN CIVIL FORFEITURE PRO- 10 CEEDINGS.—Section 983(c) of title 18, United States 11 Code, is amended— 12 (1) in paragraph (1), by striking ‘‘a preponder- 13 ance of the evidence’’ and inserting ‘‘clear and con- 14 vincing evidence’’; 15 (2) in paragraph (2), by striking ‘‘a preponder- 16 ance of the evidence’’ and inserting ‘‘clear and con- 17 vincing evidence’’; and 18 (3) in paragraph (3), by inserting ‘‘, by clear 19 and convincing evidence,’’ after ‘‘establish’’. 20 (c) LIMITATION ON RELEASE OF PROPERTY.—Sec- 21 tion 983(f)(8) of title 18, United States Code, is amend- 22 ed— 23 (1) in subparagraph (C), by striking ‘‘or’’ at 24 the end; 25 VerDate Sep 11 2014 00:18 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293 pbinns on DSK79D2C42PROD with BILLS 12 •S 293 IS (2) in subparagraph (D), by striking the period 1 at the end and inserting ‘‘; or’’; and 2 (3) by adding at the end the following: 3 ‘‘(E) is currency or contraband likely to 4 belong to or used in support of a foreign, illegal 5 trafficking organization.’’. 6 (d) REPORTING REQUIREMENT.—The Attorney Gen- 7 eral shall submit an annual report to the Committee on 8 Homeland Security and Governmental Affairs of the Sen- 9 ate, the Committee on the Judiciary of the Senate, the 10 Committee on Homeland Security of the House of Rep- 11 resentatives, and the Committee on the Judiciary of the 12 House of Representatives that includes a detailed record, 13 for the reporting period, of all civil and criminal asset sei- 14 zures and forfeitures authorized under chapter 46 of title 15 18, United States Code, including— 16 (1) the specific assets seized, including the 17 quantity and value of such assets; 18 (2) the alleged criminal conduct giving rise to 19 the seizure or forfeiture; 20 (3) whether anyone was arrested or convicted of 21 the alleged criminal conduct; 22 (4) whether the forfeiture action was challenged 23 b [Text truncated for display. 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