FAIR Act

II 116TH CONGRESS 1ST SESSION S. 4074 To restore the integrity of the Fifth Amendment to the Constitution of the United States, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 25, 2020 Mr. PAUL (for himself, Mr. KING, Mr. CRAPO, and Mr. LEE) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 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 (1) in subsection (b)(2)(A)— 9 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 2 •S 4074 IS (A) by striking ‘‘, and the property subject 1 to forfeiture is real property that is being used 2 by the person as a primary residence,’’; and 3 (B) by striking ‘‘, at the request of the 4 person, shall insure’’ and inserting ‘‘shall en- 5 sure’’; 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 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 3 •S 4074 IS ‘‘(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 (3) in subsection (d)(2)(A), by striking ‘‘an 6 owner who’’ and all that follows through ‘‘upon 7 learning’’ and inserting ‘‘an owner who, upon learn- 8 ing’’; 9 (4) in subsection (f)(6), in the matter preceding 10 paragraph (7), by inserting ‘‘, and shall award to 11 the claimant an amount equal to 3 times the value 12 of the property seized and a reasonable attorney’s 13 fee’’ before the period at the end; and 14 (5) in subsection (i)— 15 (A) by striking subparagraphs (A) and 16 (B); and 17 (B) by redesignating subparagraphs (C) 18 through (E) as subparagraphs (A) through (C), 19 respectively. 20 SEC. 3. DISPOSITION OF FORFEITED PROPERTY. 21 (a) REVISIONS TO CONTROLLED SUBSTANCES 22 ACT.—Section 511(e) of the Controlled Substances Act 23 (21 U.S.C. 881(e)) is amended— 24 (1) in paragraph (1)— 25 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 4 •S 4074 IS (A) in the matter preceding subparagraph 1 (A), by striking ‘‘civilly or’’; 2 (B) by striking subparagraph (A); and 3 (C) by redesignating subparagraphs (B) 4 through (E) as subparagraphs (A) through (D), 5 respectively; 6 (2) in paragraph (2)— 7 (A) in subparagraph (A), in the matter 8 preceding clause (i), by striking ‘‘subparagraph 9 (B) of paragraph (1)’’ and inserting ‘‘para- 10 graph (1)(A)’’; and 11 (B) in subparagraph (B), by striking ‘‘ac- 12 cordance with section 524(c) of title 28,’’ and 13 inserting ‘‘the General Fund of the Treasury of 14 the United States’’; 15 (3) by striking paragraph (3); 16 (4) by redesignating paragraph (4) as para- 17 graph (3); and 18 (5) in paragraph (3), as redesignated— 19 (A) in subparagraph (A), by striking 20 ‘‘paragraph (1)(B)’’ and inserting ‘‘paragraph 21 (1)(A)’’; and 22 (B) in subparagraph (B), in the matter 23 preceding clause (i), by striking ‘‘paragraph 24 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 5 •S 4074 IS (1)(B) that is civilly or’’ and inserting para- 1 graph ‘‘(1)(A) that is’’. 2 (b) REVISIONS TO TITLE 18.—Chapter 46 of title 18, 3 United States Code, is amended— 4 (1) in section 981(e)— 5 (A) by striking ‘‘is authorized’’ and all that 6 follows through ‘‘or forfeiture of the property;’’ 7 and inserting ‘‘shall forward to the Treasurer of 8 the United States any proceeds of property for- 9 feited pursuant to this section for deposit in the 10 General Fund of the Treasury or transfer such 11 property on such terms and conditions as such 12 officer may determine—’’; 13 (B) by redesignating paragraphs (3), (4), 14 (5), (6), and (7) as paragraphs (1), (2), (3), 15 (4), and (5), respectively; and 16 (C) in the matter following paragraph (5), 17 as so redesignated— 18 (i) by striking the first, second, third, 19 sixth, and eighth sentences; and 20 (ii) by striking ‘‘paragraphs (3), (4), 21 and (5)’’ and inserting ‘‘paragraphs (1), 22 (2), and (3)’’; and 23 (2) in section 983(g)— 24 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 6 •S 4074 IS (A) in paragraph (3), by striking ‘‘gross- 1 ly’’; and 2 (B) in paragraph (4), by striking ‘‘gross- 3 ly’’. 4 (c) TARIFF ACT OF 1930.—The Tariff Act of 1930 5 (19 U.S.C. 1304 et seq.) is amended— 6 (1) in section 613A(a) (19 U.S.C. 1613b(a))— 7 (A) in paragraph (1)— 8 (i) in subparagraph (D), by inserting 9 ‘‘and’’ after the semicolon; 10 (ii) in subparagraph (E), by striking 11 ‘‘; and’’ and inserting a period; and 12 (iii) by striking subparagraph (F); 13 and 14 (B) in paragraph (2)— 15 (i) by striking ‘‘(A) Any payment’’ 16 and inserting ‘‘Any payment’’; and 17 (ii) by striking subparagraph (B); and 18 (2) in section 616 (19 U.S.C. 1616a)— 19 (A) in the section heading, by striking 20 ‘‘TRANSFER OF FORFEITED PROPERTY’’ 21 and inserting ‘‘DISMISSAL IN FAVOR OF 22 FORFEITURE UNDER STATE LAW’’; 23 (B) in subsection (a), by striking ‘‘(a) The 24 Secretary’’ and inserting ‘‘The Secretary’’; and 25 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 7 •S 4074 IS (C) by striking subsections (b) through 1 (d). 2 (d) TITLE 31.—Section 9705 of title 31, United 3 States Code, is amended— 4 (1) in subsection (a)(1)— 5 (A) by striking subparagraph (G); and 6 (B) by redesignating subparagraphs (H) 7 through (J) as subparagraphs (G) through (I), 8 respectively; and 9 (2) in subsection (b)— 10 (A) by striking paragraphs (2) and (4); 11 and 12 (B) by redesignating paragraphs (3) and 13 (5) as paragraphs (2) and (3), respectively. 14 SEC. 4. DEPARTMENT OF JUSTICE ASSETS FORFEITURE 15 FUND DEPOSITS. 16 Section 524(c)(4) of title 28, United States Code, is 17 amended— 18 (1) by striking subparagraphs (A) and (B); and 19 (2) by redesignating subparagraphs (C) and 20 (D) as subparagraphs (A) and (B), respectively. 21 SEC. 5. STRUCTURING TRANSACTIONS TO EVADE REPORT- 22 ING REQUIREMENT PROHIBITED. 23 (a) AMENDMENTS TO TITLE 31.—Section 5324 of 24 title 31, United States Code, is amended— 25 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 8 •S 4074 IS (1) in subsection (a)— 1 (A) in the matter preceding paragraph (1), 2 by inserting ‘‘knowingly’’ after ‘‘Public Law 3 91–508’’; and 4 (B) in paragraph (3), by inserting ‘‘of 5 funds not derived from a legitimate source’’ 6 after ‘‘any transaction’’; 7 (2) in subsection (b), in the matter preceding 8 paragraph (1), by inserting ‘‘knowingly’’ after ‘‘such 9 section’’; and 10 (3) in subsection (c), in the matter preceding 11 paragraph (1), by inserting ‘‘knowingly’’ after ‘‘sec- 12 tion 5316’’. 13 (b) PROBABLE CAUSE HEARING IN CONNECTION 14 WITH PROPERTY SEIZURES RELATING TO CERTAIN MON- 15 ETARY INSTRUMENTS TRANSACTIONS.— 16 (1) AMENDMENT.—Section 5317 of title 31, 17 United States Code, is amended by adding at the 18 end the following: 19 ‘‘(d) PROBABLE CAUSE HEARING IN CONNECTION 20 WITH PROPERTY SEIZURES RELATING TO CERTAIN MON- 21 ETARY INSTRUMENTS TRANSACTIONS.— 22 ‘‘(1) IN GENERAL.—Not later than 14 days 23 after the date on which notice is provided under 24 paragraph (2)— 25 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 9 •S 4074 IS ‘‘(A) a court of competent jurisdiction shall 1 conduct a hearing on any property seized or re- 2 strained under subsection (c)(2) with respect to 3 an alleged violation of section 5324; and 4 ‘‘(B) any property described in subpara- 5 graph (A) shall be returned unless the court 6 finds that there is probable cause to believe that 7 there is a violation of section 5324 involving the 8 property. 9 ‘‘(2) NOTICE.—Each person from whom prop- 10 erty is seized or restrained under subsection (c)(2) 11 with respect to an alleged violation of section 5324 12 shall be notified of the right of the person to a hear- 13 ing under paragraph (1).’’. 14 (2) APPLICABILITY.—The amendment made by 15 paragraph (1) shall apply to property seized or re- 16 strained after the date of enactment of this Act. 17 SEC. 6. PROPORTIONALITY. 18 Section 983(g)(2) of title 18, United States Code, is 19 amended to read as follows: 20 ‘‘(2) In making this determination, the court 21 shall consider such factors as— 22 ‘‘(A) the seriousness of the offense; 23 ‘‘(B) the extent of the nexus of the prop- 24 erty to the offense; 25 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 10 •S 4074 IS ‘‘(C) the range of sentences available for 1 the offense giving rise to forfeiture; 2 ‘‘(D) the fair market value of the property; 3 and 4 ‘‘(E) the hardship to the property owner 5 and dependents.’’. 6 SEC. 7. REPORTING REQUIREMENTS. 7 Section 524(c)(6)(i) of title 28, United States Code, 8 is amended by inserting ‘‘from each type of forfeiture, and 9 specifically identifying which funds were obtained from in- 10 cluding criminal forfeitures and which were obtained from 11 civil forfeitures,’’ after ‘‘deposits’’. 12 SEC. 8. NONJUDICIAL FORFEITURE. 13 Section 983 of title 18, United States Code, is 14 amended— 15 (1) in subsection (a)— 16 (A) in the subsection heading, by striking 17 ‘‘CLAIM;’’; 18 (B) in paragraph (1)— 19 (i) in subparagraph (A)— 20 (I) in clause (i)— 21 (aa) by striking ‘‘clauses (ii) 22 through (v), in any nonjudicial’’ 23 and inserting ‘‘clause (ii), in 24 any’’; and 25 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 11 •S 4074 IS (bb) by striking ‘‘60’’ and 1 inserting ‘‘7’’; 2 (II) by striking clauses (ii) 3 through (iv); 4 (III) by redesignating clause (v) 5 as clause (ii); and 6 (IV) by striking clause (ii), as so 7 redesginated, and inserting the fol- 8 lowing: 9 ‘‘(ii) If the identity or interest of a 10 party is not determined until after the sei- 11 zure or turnover but is determined before 12 a declaration of forfeiture is entered, the 13 Government shall determine the identity 14 and address of the party or interest within 15 7 days after the seizure or turnover, and 16 notice shall be sent to such interested 17 party not later than 7 days after the deter- 18 mination by the Government of the identity 19 and address of the party or the party’s in- 20 terest.’’; 21 (ii) by striking subparagraphs (B) 22 through (D); 23 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 12 •S 4074 IS (iii) by redesignating subparagraphs 1 (D) through (F) as subparagraphs (B) 2 through (D), respectively; and 3 (iv) in subparagraph (C), as so redes- 4 ignated, by striking ‘‘nonjudicial’’; 5 (C) by striking paragraph (2); 6 (D) by redesignating paragraphs (3) and 7 (4) as paragraphs (2) and (3), respectively; and 8 (E) in paragraph (2)(A), as so redesig- 9 nated— 10 (i) by striking ‘‘90’’ and inserting 11 ‘‘30’’; and 12 (ii) by striking ‘‘after a claim has 13 been filed’’ and inserting ‘‘the date of the 14 seizure’’; 15 (2) in subsection (b)— 16 (A) by striking paragraph (1)(A) and in- 17 serting the following: 18 ‘‘(1)(A) If a person with standing to contest the 19 forfeiture of property in a judicial civil forfeiture 20 proceeding under a civil forfeiture statute is— 21 ‘‘(i) financially unable to obtain represen- 22 tation by counsel; or 23 ‘‘(ii) the cost of obtaining representation 24 would exceed the value of the seized property, 25 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 13 •S 4074 IS the court may authorize or appoint counsel to 1 represent that person with respect to the 2 claim.’’; 3 (B) in subparagraph (1)(B), by inserting 4 ‘‘or appoint’’ after ‘‘authorize’’; and 5 (C) in paragraph (2)(A), by inserting 6 ‘‘under paragraph (1)’’ after ‘‘counsel’’; 7 (3) in subsection (d)(1), by striking the second 8 sentence; 9 (4) in subsection (e)— 10 (A) in paragraph (1), in the matter pre- 11 ceding subparagraph (A)— 12 (i) by striking ‘‘nonjudicial’’; and 13 (ii) by striking ‘‘a declaration’’ and in- 14 serting ‘‘an order’’; 15 (B) in paragraph (2)— 16 (i) in subparagraph (A), by striking 17 ‘‘declaration’’ and inserting ‘‘order’’; and 18 (ii) by striking subparagraph (B) and 19 inserting the following: 20 ‘‘(B) Any proceeding described in subparagraph 21 (A) shall be commenced within 6 months of the 22 entry of the order granting the motion.’’; and 23 (C) by striking paragraph (5); 24 VerDate Sep 11 2014 00:26 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S4074.IS S4074 kjohnson on DSK79L0C42PROD with BILLS 14 •S 4074 IS (5) in subsection (f)(1), in the matter preceding 1 subparagraph (A), by striking ‘‘(a)’’ and inserting 2 ‘‘(a)(3)(A)’’; 3 (6) in subsection (g)(1), by striking ‘‘(a)(4)’’ 4 and inserting ‘‘(a)(3)’’; and [Text truncated for display. 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