FAIR Act

I 116TH CONGRESS 1ST SESSION H. R. 1895 To restore the integrity of the Fifth Amendment to the Constitution of the United States, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MARCH 27, 2019 Mr. WALBERG (for himself, Mr. RASKIN, Mr. MASSIE, Mr. CA´RDENAS, Mr. MCCLINTOCK, and Mr. RUSH) introduced the following bill; which was re- ferred to the Committee on the Judiciary, and in addition to the Commit- tees on Energy and Commerce, Ways and Means, and Financial Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To restore the integrity of the Fifth Amendment to the Constitution of the United States, and for other purposes. 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 ‘‘Fifth Amendment In- 4 tegrity Restoration Act of 2019’’ or the ‘‘FAIR Act’’. 5 SEC. 2. CIVIL FORFEITURE PROCEEDINGS. 6 Section 983 of title 18, United States Code, is 7 amended— 8 VerDate Sep 11 2014 22:38 Apr 08, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1895.IH H1895 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 1895 IH (1) in subsection (b)(2)(A)— 1 (A) by striking ‘‘, and the property subject 2 to forfeiture is real property that is being used 3 by the person as a primary residence,’’; and 4 (B) by striking ‘‘, at the request of the 5 person, shall insure’’ and insert ‘‘shall ensure’’; 6 (2) in subsection (c)— 7 (A) in paragraph (1), by striking ‘‘a pre- 8 ponderance of the evidence’’ and inserting 9 ‘‘clear and convincing evidence’’; 10 (B) in paragraph (2), by striking ‘‘a pre- 11 ponderance of the evidence’’ and inserting 12 ‘‘clear and convincing evidence’’; and 13 (C) by striking paragraph (3) and insert- 14 ing the following: 15 ‘‘(3) if the Government’s theory of forfeiture is 16 that the property was used to commit or facilitate 17 the commission of a criminal offense, or was in- 18 volved in the commission of a criminal offense, the 19 Government shall establish, by clear and convincing 20 evidence, that— 21 ‘‘(A) there was a substantial connection 22 between the property and the offense; and 23 ‘‘(B) the owner of any interest in the 24 seized property— 25 VerDate Sep 11 2014 22:38 Apr 08, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1895.IH H1895 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 1895 IH ‘‘(i) used the property with intent to 1 facilitate the offense; or 2 ‘‘(ii) knowingly consented or was will- 3 fully blind to the use of the property by 4 another in connection with the offense.’’; 5 and 6 (3) in subsection (d)(2)(A), by striking ‘‘an 7 owner who’’ and all that follows through ‘‘upon 8 learning’’ and inserting ‘‘an owner who, upon learn- 9 ing’’. 10 SEC. 3. DISPOSITION OF FORFEITED PROPERTY. 11 (a) REVISIONS TO CONTROLLED SUBSTANCES 12 ACT.—Section 511(e) of the Controlled Substances Act 13 (21 U.S.C. 881(e)) is amended— 14 (1) in paragraph (1)— 15 (A) in the matter preceding subparagraph 16 (A), by striking ‘‘civilly or’’; 17 (B) by striking subparagraph (A); and 18 (C) by redesignating subparagraphs (B) 19 through (E) as subparagraphs (A) through (D), 20 respectively; 21 (2) in paragraph (2)— 22 (A) in subparagraph (A), in the matter 23 preceding clause (i), by striking ‘‘subparagraph 24 VerDate Sep 11 2014 22:38 Apr 08, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1895.IH H1895 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 1895 IH (B) of paragraph (1)’’ and inserting ‘‘para- 1 graph (1)(A)’’; and 2 (B) in subparagraph (B), by striking ‘‘ac- 3 cordance with section 524(c) of title 28,’’ and 4 inserting ‘‘the General Fund of the Treasury of 5 the United States’’; 6 (3) by striking paragraph (3); 7 (4) by redesignating paragraph (4) as para- 8 graph (3); and 9 (5) in paragraph (3), as redesignated— 10 (A) in subparagraph (A), by striking 11 ‘‘paragraph (1)(B)’’ and inserting ‘‘paragraph 12 (1)(A)’’; and 13 (B) in subparagraph (B), in the matter 14 preceding clause (i), by striking ‘‘paragraph 15 (1)(B) that is civilly or’’ and inserting para- 16 graph ‘‘(1)(A) that is’’. 17 (b) REVISIONS TO TITLE 18.—Chapter 46 of title 18, 18 United States Code, is amended— 19 (1) in section 981(e)— 20 (A) by striking ‘‘is authorized’’ and all that 21 follows through ‘‘or forfeiture of the property;’’ 22 and inserting ‘‘shall forward to the Treasurer of 23 the United States any proceeds of property for- 24 feited pursuant to this section for deposit in the 25 VerDate Sep 11 2014 22:38 Apr 08, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1895.IH H1895 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 1895 IH General Fund of the Treasury or transfer such 1 property on such terms and conditions as such 2 officer may determine—’’; 3 (B) by redesignating paragraphs (3), (4), 4 (5), (6), and (7) as paragraphs (1), (2), (3), 5 (4), and (5), respectively; and 6 (C) in the matter following paragraph (5), 7 as so redesignated— 8 (i) by striking the first, second, third, 9 sixth, and eighth sentences; and 10 (ii) by striking ‘‘paragraph (3), (4), or 11 (5)’’ and inserting ‘‘paragraph (1), (2), or 12 (3)’’; and 13 (2) in section 983(g)— 14 (A) in paragraph (3), by striking ‘‘gross- 15 ly’’; and 16 (B) in paragraph (4), by striking ‘‘gross- 17 ly’’. 18 (c) TARIFF ACT OF 1930.—The Tariff Act of 1930 19 (19 U.S.C. 1304 et seq.) is amended— 20 (1) in section 613A(a) (19 U.S.C. 1613b(a))— 21 (A) in paragraph (1)— 22 (i) in subparagraph (D), by inserting 23 ‘‘and’’ after the semicolon; 24 VerDate Sep 11 2014 22:38 Apr 08, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1895.IH H1895 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 1895 IH (ii) in subparagraph (E), by striking 1 ‘‘; and’’ and inserting a period; and 2 (iii) by striking subparagraph (F); 3 and 4 (B) in paragraph (2)— 5 (i) by striking ‘‘(A) Any payment’’ 6 and inserting ‘‘Any payment’’; and 7 (ii) by striking subparagraph (B); and 8 (2) in section 616 (19 U.S.C. 1616a)— 9 (A) in the section heading, by striking 10 ‘‘TRANSFER OF FORFEITED PROPERTY’’ 11 and inserting ‘‘DISMISSAL IN FAVOR OF 12 FORFEITURE UNDER STATE LAW’’; 13 (B) in subsection (a), by striking ‘‘(a) The 14 Secretary’’ and inserting ‘‘The Secretary’’; and 15 (C) by striking subsections (b) through 16 (d). 17 (d) TITLE 31.—Section 9705 of title 31, United 18 States Code, is amended— 19 (1) in subsection (a)(1)— 20 (A) by striking subparagraph (G); and 21 (B) by redesignating subparagraphs (H) 22 through (J) as subparagraphs (G) through (I), 23 respectively; and 24 (2) in subsection (b)— 25 VerDate Sep 11 2014 22:38 Apr 08, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1895.IH H1895 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 1895 IH (A) by striking paragraphs (2) and (4); 1 and 2 (B) by redesignating paragraphs (3) and 3 (5) as paragraphs (2) and (3), respectively. 4 SEC. 4. DEPARTMENT OF JUSTICE ASSETS FORFEITURE 5 FUND DEPOSITS. 6 Section 524(c)(4) of title 28, United States Code, is 7 amended— 8 (1) by striking subparagraphs (A) and (B); and 9 (2) by redesignating subparagraphs (C) and 10 (D) as subparagraphs (A) and (B), respectively. 11 SEC. 5. STRUCTURING TRANSACTIONS TO EVADE REPORT- 12 ING REQUIREMENT PROHIBITED. 13 (a) AMENDMENTS TO TITLE 31.—Section 5324 of 14 title 31, United States Code, is amended— 15 (1) in subsection (a)— 16 (A) in the matter preceding paragraph (1), 17 by inserting ‘‘knowingly’’ after ‘‘Public Law 18 91–508’’; and 19 (B) in paragraph (3), by inserting ‘‘of 20 funds not derived from a legitimate source’’ 21 after ‘‘any transaction’’; 22 (2) in subsection (b), in the matter preceding 23 paragraph (1), by inserting ‘‘knowingly’’ after ‘‘such 24 section’’; and 25 VerDate Sep 11 2014 22:38 Apr 08, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1895.IH H1895 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 1895 IH (3) in subsection (c), in the matter preceding 1 paragraph (1), by inserting ‘‘knowingly’’ after ‘‘sec- 2 tion 5316’’. 3 (b) PROBABLE CAUSE HEARING IN CONNECTION 4 WITH PROPERTY SEIZURES RELATING TO CERTAIN MON- 5 ETARY INSTRUMENTS TRANSACTIONS.— 6 (1) AMENDMENT.—Section 5317 of title 31, 7 United States Code, is amended by adding at the 8 end the following: 9 ‘‘(d) PROBABLE CAUSE HEARING IN CONNECTION 10 WITH PROPERTY SEIZURES RELATING TO CERTAIN MON- 11 ETARY INSTRUMENTS TRANSACTIONS.— 12 ‘‘(1) IN GENERAL.—Not later than 14 days 13 after the date on which notice is provided under 14 paragraph (2)— 15 ‘‘(A) a court of competent jurisdiction shall 16 conduct a hearing on any property seized or re- 17 strained under subsection (c)(2) with respect to 18 an alleged violation of section 5324; and 19 ‘‘(B) any property described in subpara- 20 graph (A) shall be returned unless the court 21 finds that there is probable cause to believe that 22 there is a violation of section 5324 involving the 23 property. 24 VerDate Sep 11 2014 22:38 Apr 08, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1895.IH H1895 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 1895 IH ‘‘(2) NOTICE.—Each person from whom prop- 1 erty is seized or restrained under subsection (c)(2) 2 with respect to an alleged violation of section 5324 3 shall be notified of the right of the person to a hear- 4 ing under paragraph (1).’’. 5 (2) APPLICABILITY.—The amendment made by 6 paragraph (1) shall apply to property seized or re- 7 strained after the date of enactment of this Act. 8 SEC. 6. PROPORTIONALITY. 9 Section 983(g)(2) of title 18, United States Code, is 10 amended to read as follows: 11 ‘‘(2) In making this determination, the court 12 shall consider such factors as— 13 ‘‘(A) the seriousness of the offense; 14 ‘‘(B) the extent of the nexus of the prop- 15 erty to the offense; 16 ‘‘(C) the range of sentences available for 17 the offense giving rise to forfeiture; 18 ‘‘(D) the fair market value of the property; 19 and 20 ‘‘(E) the hardship to the property owner 21 and dependents.’’. 22 SEC. 7. REPORTING REQUIREMENTS. 23 Section 524(c)(6)(i) of title 28, United States Code, 24 is amended by inserting ‘‘from each type of forfeiture, and 25 VerDate Sep 11 2014 22:38 Apr 08, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1895.IH H1895 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 1895 IH specifically identifying which funds were obtained from in- 1 cluding criminal forfeitures and which were obtained from 2 civil forfeitures,’’ after ‘‘deposits’’. 3 SEC. 8. APPLICABILITY. 4 The amendments made by this Act shall apply to— 5 (1) any civil forfeiture proceeding pending on or 6 filed on or after the date of enactment of this Act; 7 and 8 (2) any amounts received from the forfeiture of 9 property on or after the date of enactment of this 10 Act. 11 Æ VerDate Sep 11 2014 22:38 Apr 08, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\H1895.IH H1895 pamtmann on DSKBFK8HB2PROD with BILLS