DUE PROCESS Act of 2020

II 116TH CONGRESS 2D SESSION S. 4861 To amend title 18, United States Code, to reform certain forfeiture procedures, and for other purposes. IN THE SENATE OF THE UNITED STATES OCTOBER 26 (legislative day, OCTOBER 19), 2020 Mr. GRASSLEY (for himself, Mr. LEAHY, Mr. CRAPO, and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 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 ‘‘Deterring Undue En- 4 forcement by Protecting Rights Of Citizens from Exces- 5 sive Searches and Seizures Act of 2020’’ or the ‘‘DUE 6 PROCESS Act of 2020’’. 7 VerDate Sep 11 2014 20:49 Nov 02, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 2 •S 4861 IS 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)— 10 (I) by striking ‘‘60 days’’ and in- 11 serting ‘‘30 days’’; and 12 (II) by striking ‘‘clauses (ii) 13 through (v)’’ and inserting ‘‘clauses 14 (iii) and (iv)’’; 15 (ii) by striking clause (ii); 16 (iii) by redesignating clauses (iii) 17 through (v) as clauses (ii) through (iv), re- 18 spectively; 19 (iv) in clause (ii), as so redesig- 20 nated— 21 (I) in the matter preceding sub- 22 clause (I)— 23 (aa) by striking ‘‘60-day’’ 24 and inserting ‘‘30-day’’; and 25 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 3 •S 4861 IS (bb) by striking ‘‘does not 1 file’’ and all that follows through 2 ‘‘obtain’’ and inserting ‘‘obtains’’; 3 and 4 (II) in subclause (I), by striking 5 ‘‘60 days’’ and inserting ‘‘30 days’’; 6 (v) in clause (iii), as so redesignated, 7 by striking ‘‘90 days’’ and inserting ‘‘60 8 days’’; 9 (vi) in clause (iv), as so redesignated, 10 by striking ‘‘60 days’’ and inserting ‘‘30 11 days’’; and 12 (vii) by adding at the end the fol- 13 lowing: 14 ‘‘(v) The notice under this subparagraph shall 15 include an address, which shall also be widely pub- 16 lished, at which the seizing agency can receive until 17 5 p.m. on any business day an interested party’s 18 claim contesting a seizure or forfeiture. The inter- 19 ested party may send such a claim to that address 20 by courier or overnight mail. For the purpose of de- 21 termining compliance with any deadlines in filing 22 such a claim, an interested party completes the filing 23 by placing the communication making the claim in 24 the control of an independent third-party delivery 25 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 4 •S 4861 IS service such as a courier company or the United 1 States mail. In determining whether any legal dead- 2 line for the filing of such a claim has been met, a 3 court shall allow for the equitable tolling of the 4 deadline in appropriate cases. 5 ‘‘(vi) The seizing agency shall make publicly 6 available for each nonjudicial forfeiture, with respect 7 to which a request for mitigation or remission is 8 made, a statement of the agency’s disposition of that 9 request, redacted if necessary, including the reasons 10 for the decision.’’; 11 (B) in subparagraph (C)— 12 (i) by striking ‘‘60’’ and inserting 13 ‘‘30’’; and 14 (ii) by striking ‘‘which period may’’ 15 and all that follows through ‘‘as nec- 16 essary,’’; 17 (C) by adding at the end the following: 18 ‘‘(G) Any notice described in subparagraph (A) 19 that is provided to a party shall include notice of— 20 ‘‘(i) the right of the party to request an 21 initial hearing in accordance with paragraph 22 (5); 23 ‘‘(ii) the right of the party to be rep- 24 resented by counsel at the initial hearing de- 25 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 5 •S 4861 IS scribed in clause (i) and any civil forfeiture pro- 1 ceeding under a civil forfeiture statute; and 2 ‘‘(iii) the right of the party to request that 3 the party be represented by counsel at the ini- 4 tial hearing described in clause (i) and any civil 5 forfeiture proceeding under a civil forfeiture 6 statute if the party meets the requirements de- 7 scribed in subsection (b).’’; and 8 (D) by striking ‘‘nonjudicial’’ each place 9 the term appears; 10 (3) in paragraph (2)— 11 (A) in subparagraph (A), by striking ‘‘non- 12 judicial’’; and 13 (B) in subparagraph (B)— 14 (i) by striking ‘‘35 days’’ and insert- 15 ing ‘‘65 days’’; and 16 (ii) by striking ‘‘30 days’’ and insert- 17 ing ‘‘60 days’’; 18 (4) by striking paragraph (3)(A), by striking 19 subparagraph (A) and inserting the following: 20 ‘‘(3)(A) Not later than 90 days after a claim has been 21 filed, the Government shall file a complaint for forfeiture 22 in the manner set forth in the Supplemental Rules for Cer- 23 tain Admiralty and Maritime Claims or return the prop- 24 erty pending the filing of a complaint, except that a court 25 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 6 •S 4861 IS in the district in which the complaint has been filed may 1 extend the period for filing a complaint upon agreement 2 of the parties.’’; and 3 (5) by adding at the end the following: 4 ‘‘(5)(A) A party claiming property seized in a 5 civil forfeiture proceeding under a civil forfeiture 6 statute may request, not later than 30 days after the 7 date on which a notice described in paragraph 8 (1)(A) is received or if notice is not received, not 9 later than 30 days after the date of final publication 10 of notice of seizure, an initial hearing to take place 11 before a magistrate judge in the appropriate United 12 States district court not later than the date on 13 which a civil forfeiture proceeding under a civil for- 14 feiture statute relating to the seized property com- 15 mences. 16 ‘‘(B) If a party makes a request under subpara- 17 graph (A), a magistrate judge shall conduct an ini- 18 tial hearing not later than 10 days after the date on 19 which the request is made. 20 ‘‘(C) At the initial hearing— 21 ‘‘(i) the magistrate judge shall— 22 ‘‘(I) inform the party in easily under- 23 stood terms of— 24 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 7 •S 4861 IS ‘‘(aa) the right of the party to be 1 represented by counsel at the initial 2 hearing and any civil forfeiture pro- 3 ceeding under a civil forfeiture stat- 4 ute; 5 ‘‘(bb) the right of the party to re- 6 quest that the party be represented by 7 counsel at the initial hearing and any 8 civil forfeiture proceeding under a civil 9 forfeiture statute if the magistrate 10 judge finds that the party meets the 11 requirements described in subsection 12 (b); 13 ‘‘(cc) sufficiently detailed facts 14 regarding the seizure of the property 15 if the property was seized pursuant to 16 a warrant described in the matter pre- 17 ceding subparagraph (A) of section 18 981(b)(2); and 19 ‘‘(dd) the right of the party to 20 challenge the lawfulness of the seizure 21 of the property, including on the 22 grounds that at the time the property 23 was seized— 24 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 8 •S 4861 IS ‘‘(AA) if the property was 1 seized pursuant to a warrant de- 2 scribed in the matter preceding 3 subparagraph (A) of section 4 981(b)(2), the warrant was not 5 supported by probable cause; or 6 ‘‘(BB) if the property was 7 seized without a warrant de- 8 scribed in subitem (AA), none of 9 the exceptions described in sub- 10 paragraphs (A) and (B) of sec- 11 tion 981(b)(2) apply to the sei- 12 zure of the property; and 13 ‘‘(II) if the party meets the require- 14 ments described in subsection (b), author- 15 ize counsel to represent the party or insure 16 that the party is represented by an attor- 17 ney for the Legal Services Corporation, as 18 applicable, in accordance with that sub- 19 section; and 20 ‘‘(ii) the burden of proof is on the Govern- 21 ment to establish that at the time the property 22 was seized— 23 ‘‘(I) if the property was seized pursu- 24 ant to a warrant described in the matter 25 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 9 •S 4861 IS preceding subparagraph (A) of section 1 981(b)(2), the warrant was supported by 2 probable cause; or 3 ‘‘(II) if the property was seized with- 4 out a warrant described in subclause (I)— 5 ‘‘(aa) sufficiently detailed facts 6 regarding the seizure of the property; 7 and 8 ‘‘(bb) an exception described in 9 subparagraph (A) or (B) of section 10 981(b)(2) applies to the seizure of the 11 property. 12 ‘‘(D) The magistrate judge shall enter an order 13 for the immediate release of the seized property with 14 prejudice to the right of the Government to com- 15 mence a civil forfeiture proceeding at a later time if 16 the magistrate judge finds that— 17 ‘‘(i) the requirements described in subpara- 18 graphs (A) through (E) of subsection (f)(1) are 19 met; and 20 ‘‘(ii) the Government did not meet the bur- 21 den of proof described in subparagraph 22 (C)(ii).’’. 23 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 10 •S 4861 IS SEC. 3. REPRESENTATION. 1 Section 983(b) of title 18, United States Code, is 2 amended— 3 (1) in paragraph (1)(A), by striking ‘‘judicial’’; 4 and 5 (2) in paragraph (2)(A), by striking ‘‘judicial 6 civil forfeiture proceeding under a civil forfeiture 7 statute is financially unable to obtain representation 8 by counsel, and the property subject to forfeiture is 9 real property that is being used by the person as a 10 primary residence’’ and inserting ‘‘civil forfeiture 11 proceeding under a civil forfeiture statute is finan- 12 cially unable to obtain representation by counsel’’. 13 SEC. 4. BURDEN OF PROOF. 14 Section 983(c) of title 18, United States Code, is 15 amended— 16 (1) in paragraph (1), by striking ‘‘a preponder- 17 ance of the evidence’’ and inserting ‘‘clear and con- 18 vincing evidence’’; and 19 (2) in paragraph (2), by striking ‘‘a preponder- 20 ance of the evidence’’ and inserting ‘‘clear and con- 21 vincing evidence’’. 22 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 11 •S 4861 IS SEC. 5. RIGHT TO REQUEST HEARING ON PRETRIAL RE- 1 STRAINT OF PROPERTY TO RETAIN COUNSEL 2 OF CHOICE. 3 (a) TITLE 18.—Section 1963 of title 18, United 4 States Code, is amended— 5 (1) by striking subsection (d)(1) and inserting 6 the following: 7 ‘‘(d)(1)(A) Upon application of the United States, the 8 court may enter a restraining order or injunction, require 9 the execution of a satisfactory performance bond, or take 10 any other action to preserve the availability of property 11 described in subsection (a) for forfeiture under this sec- 12 tion— 13 ‘‘(i) upon the filing of an indictment or infor- 14 mation charging a violation of section 1962 and al- 15 leging that the property with respect to which the 16 order is sought would, in the event of conviction, be 17 subject to forfeiture under this section; or 18 ‘‘(ii) prior to the filing of such an indictment or 19 information, if, after notice to persons appearing to 20 have an interest in the property and opportunity for 21 a hearing, the court determines that— 22 ‘‘(I) there is a substantial probability that 23 the United States will prevail on the issue of 24 forfeiture and that failure to enter the order 25 will result in the property being destroyed, re- 26 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 12 •S 4861 IS moved from the jurisdiction of the court, or 1 otherwise made unavailable for forfeiture; and 2 ‘‘(II) the need to preserve the availability 3 of the property through the entry of the re- 4 quested order outweighs the hardship on any 5 party against whom the order is to be entered. 6 ‘‘(B)(i) Upon motion of a defendant charged with a 7 violation of section 1962 for which criminal forfeiture may 8 be ordered under this section, supported by an affidavit, 9 the court shall hold a hearing to determine whether to 10 modify or rescind, in whole or in part, an order entered 11 under subparagraph (A) to allow the defendant to use the 12 property subject to the order to retain counsel of choice. 13 ‘‘(ii) At the hearing, the court shall consider— 14 ‘‘(I) the weight of the evidence against the de- 15 fendant with respect to the violation of section 1962 16 for which criminal forfeiture may be ordered under 17 this section; 18 ‘‘(II) the weight of the evidence with respect to 19 whether the property will be subject to forfeiture 20 under this section; 21 ‘‘(III) the history and characteristics of the de- 22 fendant; and 23 ‘‘(IV) the nature and circumstances of the case. 24 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 13 •S 4861 IS ‘‘(C) An order entered pursuant to subparagraph 1 (A)(ii) shall be effective for not more than 90 days, un- 2 less— 3 ‘‘(i) extended by the court for good cause 4 shown; or 5 ‘‘(ii) an indictment or information described in 6 subparagraph (A)(i) has been filed.’’; and 7 (2) in subsection (d)(2), by inserting ‘‘that the 8 defendant committed a violation of section 1962 for 9 which criminal forfeiture may be ordered under this 10 section and probable cause to believe’’ after ‘‘be- 11 lieve’’. 12 (b) CONTROLLED SUBSTANCES ACT.—Section 413 of 13 the Controlled Substances Act (21 U.S.C. 853) is amend- 14 ed— 15 (1) by striking subsection (e)(1) and inserting 16 the following: 17 ‘‘(e)(1)(A) Upon application of the United States, the 18 court may enter a restraining order or injunction, require 19 the execution of a satisfactory performance bond, or take 20 any other action to preserve the availability of property 21 described in subsection (a) for forfeiture under this sec- 22 tion— 23 ‘‘(i) upon the filing of an indictment or infor- 24 mation charging a violation of this title or title III 25 VerDate Sep 11 2014 20:20 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S4861.IS S4861 14 •S 4861 IS for which criminal forfeiture may [Text truncated for display. 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