DUE PROCESS Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 2835 To amend title 18, United States Code, to reform certain forfeiture procedures, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 17, 2019 Mr. SENSENBRENNER (for himself, Mr. COLLINS of Georgia, Mr. SCOTT of Virginia, Mr. KATKO, Mr. COHEN, Mr. CHABOT, Mr. DAVID P. ROE of Tennessee, and Ms. NORTON) introduced the following bill; which was re- ferred to the Committee on the Judiciary, and in addition to the Commit- tees on Financial Services, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consider- ation of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend title 18, United States Code, to reform certain forfeiture procedures, 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 ‘‘DUE PROCESS Act 4 of 2019’’ or the ‘‘Deterring Undue Enforcement by Pro- 5 tecting Rights Of Citizens from Excessive Searches and 6 Seizures Act of 2019’’. 7 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 2 •HR 2835 IH SEC. 2. GENERAL RULES FOR CIVIL FORFEITURE PRO- 1 CEEDINGS. 2 Section 983(a) of title 18, United States Code, is 3 amended— 4 (1) in the subsection heading, by striking 5 ‘‘COMPLAINT’’ and inserting ‘‘COMPLAINT; INITIAL 6 HEARING’’; 7 (2) in paragraph (1)— 8 (A) in subparagraph (A)— 9 (i) in clause (i), by striking ‘‘60 days’’ 10 and inserting ‘‘30 days’’; 11 (ii) by striking clause (ii); 12 (iii) in clause (iii)— 13 (I) in the matter preceding sub- 14 clause (I)— 15 (aa) by striking ‘‘60-day’’ 16 and inserting ‘‘30-day’’; and 17 (bb) by striking ‘‘does not 18 file’’ and all that follows through 19 ‘‘obtain’’ and inserting ‘‘obtains’’; 20 and 21 (II) in subclause (I), by striking 22 ‘‘60 days’’ and inserting ‘‘30 days’’; 23 (iv) in clause (iv), by striking ‘‘90 24 days’’ and inserting ‘‘60 days’’; 25 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 3 •HR 2835 IH (v) in clause (v), by striking ‘‘60 1 days’’ and inserting ‘‘30 days’’; and 2 (vi) by adding at the end the fol- 3 lowing: 4 ‘‘(vi) The notice under this subparagraph shall 5 include an address, which shall also be widely pub- 6 lished, at which the seizing agency can receive until 7 5 p.m. on any business day an interested party’s 8 claim contesting a seizure or forfeiture. The inter- 9 ested party may send such a claim to that address 10 by courier or overnight mail. For the purpose of de- 11 termining compliance with any deadlines in filing 12 such a claim, an interested party completes the filing 13 by placing the communication making the claim in 14 the control of an independent third party delivery 15 service such as a courier company or the United 16 States mail. In determining whether any legal dead- 17 line for the filing of such a claim has been met a 18 court shall allow for the equitable tolling of the 19 deadline in appropriate cases. 20 ‘‘(vii) The seizing agency shall make publicly 21 available for each nonjudicial forfeiture, with respect 22 to which a request for mitigation or remission is 23 made, a statement of the agency’s disposition of that 24 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 4 •HR 2835 IH request, redacted if necessary, including the reasons 1 for the decision.’’; 2 (B) in subparagraph (C)— 3 (i) by striking ‘‘60’’ and inserting 4 ‘‘30’’; and 5 (ii) by striking ‘‘which period may’’ 6 and all that follows through ‘‘as nec- 7 essary,’’; 8 (C) by adding at the end the following: 9 ‘‘(G) Any notice described in subparagraph (A) 10 that is provided to a party shall include notice of— 11 ‘‘(i) the right of the party to request an 12 initial hearing in accordance with paragraph 13 (5); 14 ‘‘(ii) the right of the party to be rep- 15 resented by counsel at the initial hearing de- 16 scribed in clause (i) and any civil forfeiture pro- 17 ceeding under a civil forfeiture statute; and 18 ‘‘(iii) the right of the party to request that 19 the party be represented by counsel at the ini- 20 tial hearing described in clause (i) and any civil 21 forfeiture proceeding under a civil forfeiture 22 statute if the party meets the requirements de- 23 scribed in subsection (b).’’; and 24 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 5 •HR 2835 IH (D) by striking ‘‘nonjudicial’’ each place it 1 appears; 2 (3) in paragraph (2)(A), by striking ‘‘non- 3 judicial’’; 4 (4) in paragraph (2)(B)— 5 (A) by striking ‘‘35 days’’ and inserting 6 ‘‘65 days’’; and 7 (B) by striking ‘‘30 days’’ and inserting 8 ‘‘60 days’’; 9 (5) so that subparagraph (A) of paragraph (3) 10 reads as follows: 11 ‘‘(A) Not later than 90 days after a claim has 12 been filed, the Government shall file a complaint for 13 forfeiture in the manner set forth in the Supple- 14 mental Rules for Certain Admiralty and Maritime 15 Claims or return the property pending the filing of 16 a complaint, except that a court in the district in 17 which the complaint has been filed may extend the 18 period for filing a complaint upon agreement of the 19 parties.’’; and 20 (6) by adding at the end the following: 21 ‘‘(5)(A) A party claiming property seized in a 22 civil forfeiture proceeding under a civil forfeiture 23 statute may request, not later than 30 days after the 24 date on which a notice described in paragraph 25 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 6 •HR 2835 IH (1)(A) is received or if notice is not received, not 1 later than 30 days after the date of final publication 2 of notice of seizure, an initial hearing to take place 3 before a magistrate judge in the appropriate United 4 States district court not later than the date on 5 which a civil forfeiture proceeding under a civil for- 6 feiture statute relating to the seized property com- 7 mences. 8 ‘‘(B) If a party makes a request under subpara- 9 graph (A), a magistrate judge shall conduct an ini- 10 tial hearing not later than 10 days after the date on 11 which the request is made. 12 ‘‘(C) At the initial hearing— 13 ‘‘(i) the magistrate judge shall— 14 ‘‘(I) inform the party in easily under- 15 stood terms of— 16 ‘‘(aa) the right of the party to be 17 represented by counsel at the initial 18 hearing and any civil forfeiture pro- 19 ceeding under a civil forfeiture stat- 20 ute; 21 ‘‘(bb) the right of the party to re- 22 quest that the party be represented by 23 counsel at the initial hearing and any 24 civil forfeiture proceeding under a civil 25 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 7 •HR 2835 IH forfeiture statute if the magistrate 1 judge finds that the party meets the 2 requirements described in subsection 3 (b); 4 ‘‘(cc) sufficiently detailed facts 5 regarding the seizure of the property 6 if the property was seized pursuant to 7 a warrant described in the matter pre- 8 ceding subparagraph (A) of section 9 981(b)(2); and 10 ‘‘(dd) the right of the party to 11 challenge the lawfulness of the seizure 12 of the property, including on the 13 grounds that at the time the property 14 was seized— 15 ‘‘(AA) if the property was 16 seized pursuant to a warrant de- 17 scribed in the matter preceding 18 subparagraph (A) of section 19 981(b)(2), the warrant was not 20 supported by probable cause; or 21 ‘‘(BB) if the property was 22 seized without a warrant de- 23 scribed in subitem (AA), none of 24 the exceptions described in sub- 25 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 8 •HR 2835 IH paragraphs (A) and (B) of sec- 1 tion 981(b)(2) apply to the sei- 2 zure of the property; and 3 ‘‘(II) if the party meets the require- 4 ments described in subsection (b), author- 5 ize counsel to represent the party or insure 6 that the party is represented by an attor- 7 ney for the Legal Services Corporation, as 8 applicable, in accordance with that sub- 9 section; and 10 ‘‘(ii) the burden of proof is on the Govern- 11 ment to establish that at the time the property 12 was seized— 13 ‘‘(I) if the property was seized pursu- 14 ant to a warrant described in the matter 15 preceding subparagraph (A) of section 16 981(b)(2), the warrant was supported by 17 probable cause; or 18 ‘‘(II) if the property was seized with- 19 out a warrant described in subclause (I)— 20 ‘‘(aa) sufficiently detailed facts 21 regarding the seizure of the property; 22 and 23 ‘‘(bb) an exception described in 24 subparagraphs (A) and (B) of section 25 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 9 •HR 2835 IH 981(b)(2) applies to the seizure of the 1 property. 2 ‘‘(D) The magistrate judge shall enter an order 3 for the immediate release of the seized property with 4 prejudice to the right of the Government to com- 5 mence a civil forfeiture proceeding at a later time if 6 the magistrate judge finds that— 7 ‘‘(i) the requirements described in subpara- 8 graphs (A) through (E) of subsection (f)(1) are 9 met; and 10 ‘‘(ii) the Government did not meet the bur- 11 den of proof described in subparagraph 12 (C)(ii).’’. 13 SEC. 3. REPRESENTATION. 14 Section 983(b) of title 18, United States Code, is 15 amended— 16 (1) in paragraph (1)(A), by striking ‘‘judicial’’; 17 and 18 (2) in paragraph (2)(A), by striking ‘‘judicial 19 civil forfeiture proceeding under a civil forfeiture 20 statute is financially unable to obtain representation 21 by counsel, and the property subject to forfeiture is 22 real property that is being used by the person as a 23 primary residence’’ and inserting ‘‘civil forfeiture 24 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 10 •HR 2835 IH proceeding under a civil forfeiture statute is finan- 1 cially unable to obtain representation by counsel’’. 2 SEC. 4. BURDEN OF PROOF. 3 Section 983(c) of title 18, United States Code, is 4 amended— 5 (1) in paragraph (1), by striking ‘‘a preponder- 6 ance of the evidence’’ and inserting ‘‘clear and con- 7 vincing evidence’’; and 8 (2) in paragraph (2), by striking ‘‘a preponder- 9 ance of the evidence’’ and inserting ‘‘clear and con- 10 vincing evidence’’. 11 SEC. 5. RIGHT TO REQUEST HEARING ON PRETRIAL RE- 12 STRAINT OF PROPERTY TO RETAIN COUNSEL 13 OF CHOICE. 14 (a) TITLE 18.—Section 1963(d) of title 18, United 15 States Code, is amended— 16 (1) by striking paragraph (1) and inserting the 17 following: 18 ‘‘(1)(A) Upon application of the United States, the 19 court may enter a restraining order or injunction, require 20 the execution of a satisfactory performance bond, or take 21 any other action to preserve the availability of property 22 described in subsection (a) for forfeiture under this sec- 23 tion— 24 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 11 •HR 2835 IH ‘‘(i) upon the filing of an indictment or infor- 1 mation charging a violation of section 1962 and al- 2 leging that the property with respect to which the 3 order is sought would, in the event of conviction, be 4 subject to forfeiture under this section; or 5 ‘‘(ii) prior to the filing of such an indictment or 6 information, if, after notice to persons appearing to 7 have an interest in the property and opportunity for 8 a hearing, the court determines that— 9 ‘‘(I) there is a substantial probability that 10 the United States will prevail on the issue of 11 forfeiture and that failure to enter the order 12 will result in the property being destroyed, re- 13 moved from the jurisdiction of the court, or 14 otherwise made unavailable for forfeiture; and 15 ‘‘(II) the need to preserve the availability 16 of the property through the entry of the re- 17 quested order outweighs the hardship on any 18 party against whom the order is to be entered. 19 ‘‘(B)(i) Upon motion of a defendant charged with a 20 violation of section 1962 for which criminal forfeiture is 21 ordered under this section and against whom the order 22 is entered, supported by an affidavit, the court shall hold 23 a hearing to determine whether to modify or rescind, in 24 whole or in part, an order entered under subparagraph 25 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 12 •HR 2835 IH (A) to allow the defendant to use the property subject to 1 the order to retain counsel of choice. 2 ‘‘(ii) At the hearing, the court shall consider— 3 ‘‘(I) the weight of the evidence against the de- 4 fendant with respect to the violation of section 1962 5 for which criminal forfeiture is ordered under this 6 section; 7 ‘‘(II) the weight of the evidence with respect to 8 whether the property will be subject to forfeiture 9 under this section; 10 ‘‘(III) the history and characteristics of the de- 11 fendant; and 12 ‘‘(IV) the nature and circumstances of the case. 13 ‘‘(C) An order entered pursuant to subparagraph 14 (A)(ii) shall be effective for not more than 90 days, un- 15 less— 16 ‘‘(i) extended by the court for good cause 17 shown; or 18 ‘‘(ii) an indictment or information described in 19 subparagraph (A)(i) has been filed.’’; and 20 (2) in paragraph (2), by inserting ‘‘that the de- 21 fendant committed a violation of section 1962 for 22 which criminal forfeiture may be ordered under this 23 section and probable cause to believe’’ after ‘‘be- 24 lieve’’. 25 VerDate Sep 11 2014 04:17 May 30, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H2835.IH H2835 kjohnson on DSK79L0C42 with BILLS 13 •HR 2835 IH (b) CONTROLLED SUBSTANCES ACT.—Section 413(e) 1 of the Controlled Substances Act (21 U.S.C. 853(e)) is 2 amended— 3 (1) by striking paragraph (1) and inserting the 4 following: 5 ‘‘(1)(A) Upon application of the United States, the 6 court may enter a restraining order or injunction, require 7 the execution of a satisfactory performance bond, or take 8 any other action t [Text truncated for display. Full text available on Congress.gov.]