Civil Asset Forfeiture Elimination Act

I 116TH CONGRESS 2D SESSION H. R. 8997 To eliminate civil asset forfeiture, and for other purposes. IN THE HOUSE OF REPRESENTATIVES DECEMBER 17, 2020 Mr. AMASH introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Energy and Com- merce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdic- tion of the committee concerned A BILL To eliminate civil asset forfeiture, 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 ‘‘Civil Asset Forfeiture 4 Elimination Act’’. 5 TITLE I—FEDERAL FORFEITURE 6 SEC. 101. CONFORMING AMENDMENTS TO TITLE 18. 7 (a) GENERAL RULES FOR CIVIL FORFEITURE PRO- 8 CEEDINGS.—Section 983 of title 18, United States Code, 9 is amended to read as follows: 10 VerDate Sep 11 2014 00:05 Jan 11, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8997.IH H8997 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 8997 IH ‘‘§ 983. Prohibiting civil forfeiture 1 ‘‘No person shall be required, under the laws of the 2 United States, to forfeit to the United States any prop- 3 erty, real or personal, pursuant to a civil forfeiture pro- 4 ceeding, including a nonjudicial civil forfeiture pro- 5 ceeding.’’. 6 (b) FOREIGN FORFEITURE.—Section 981 of title 18, 7 United States Code, is amended to read as follows: 8 ‘‘§ 981. Forfeiture involving foreign countries 9 ‘‘(a) ARREST OR CHARGE IN A FOREIGN COUNTRY.— 10 ‘‘(1) IN GENERAL.—If any person is arrested or 11 charged in a foreign country in connection with an 12 offense that would give rise to the forfeiture of prop- 13 erty in the United States under the Controlled Sub- 14 stances Act, the Attorney General may apply to any 15 Federal judge or magistrate judge in the district in 16 which the property is located for an ex parte order 17 restraining the property subject to forfeiture for not 18 more than 30 days, except that the time may be ex- 19 tended for good cause shown at a hearing conducted 20 in the manner provided in rule 43(e) of the Federal 21 Rules of Civil Procedure. 22 ‘‘(2) APPLICATION.—The application for the re- 23 straining order shall set forth the nature and cir- 24 cumstances of the foreign charges and the basis for 25 belief that the person arrested or charged has prop- 26 VerDate Sep 11 2014 00:05 Jan 11, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8997.IH H8997 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 8997 IH erty in the United States that would be subject to 1 forfeiture, and shall contain a statement that the re- 2 straining order is needed to preserve the availability 3 of property for such time as is necessary to receive 4 evidence from the foreign country or elsewhere in 5 support of probable cause for the seizure of the 6 property under this subsection. 7 ‘‘(b) TRANSFER.— 8 ‘‘(1) IN GENERAL.—Whenever property is 9 criminally forfeited under this chapter, the Attorney 10 General or the Secretary of the Treasury, as the 11 case may be, may transfer the forfeited personal 12 property or the proceeds of the sale of any forfeited 13 personal or real property to any foreign country 14 which participated directly or indirectly in the sei- 15 zure or forfeiture of the property, if such a trans- 16 fer— 17 ‘‘(A) has been agreed to by the Secretary 18 of State; 19 ‘‘(B) is authorized in an international 20 agreement between the United States and the 21 foreign country; and 22 ‘‘(C) is made to a country which, if appli- 23 cable, has been certified under section 490(b) of 24 the Foreign Assistance Act of 1961. 25 VerDate Sep 11 2014 00:05 Jan 11, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8997.IH H8997 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 8997 IH A decision by the Attorney General or the Secretary 1 of the Treasury pursuant to this subsection shall not 2 be subject to review. The foreign country shall, in 3 the event of a transfer of property or proceeds of 4 sale of property under this subsection, bear all ex- 5 penses incurred by the United States in the seizure, 6 maintenance, inventory, storage, forfeiture, and dis- 7 position of the property, and all transfer costs. The 8 payment of all such expenses, and the transfer of as- 9 sets pursuant to this paragraph, shall be upon such 10 terms and conditions as the Attorney General or the 11 Secretary of the Treasury may, in his discretion, set. 12 ‘‘(2) RULE OF CONSTRUCTION.—The provisions 13 of this section shall not be construed as limiting or 14 superseding any other authority of the United States 15 to provide assistance to a foreign country in obtain- 16 ing property related to a crime committed in the for- 17 eign country, including property which is sought as 18 evidence of a crime committed in the foreign coun- 19 try. 20 ‘‘(c) DEFINITIONS.—For purposes of this section— 21 ‘‘(1) the term ‘Attorney General’ means the At- 22 torney General or his delegate; and 23 VerDate Sep 11 2014 00:05 Jan 11, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8997.IH H8997 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 8997 IH ‘‘(2) the term ‘Secretary of the Treasury’ 1 means the Secretary of the Treasury or his dele- 2 gate.’’. 3 (c) CIVIL FORFEITURE OF FUNGIBLE PROPERTY.— 4 Section 984 of title 18, United States Code, is repealed. 5 (d) CIVIL FORFEITURE OF REAL PROPERTY.—Sec- 6 tion 985 of title 18, United States Code, is repealed. 7 (e) ACCESS TO RECORDS.—Section 986 of title 18, 8 United States Code, is amended to read as follows: 9 ‘‘§ 986. Access to records in bank secrecy jurisdic- 10 tions 11 ‘‘(a) IN GENERAL.—In any ancillary proceeding in 12 any criminal forfeiture case governed by section 413(n) 13 of the Controlled Substances Act (21 U.S.C. 853(n)), in 14 which— 15 ‘‘(1) financial records located in a foreign coun- 16 try may be material to any claim or to the ability 17 of the Government to respond to such claim; and 18 ‘‘(2) it is within the capacity of the claimant to 19 waive the claimant’s rights under applicable finan- 20 cial secrecy laws, or to obtain the records so that 21 such records can be made available notwithstanding 22 such secrecy laws, 23 the refusal of the claimant to provide the records in re- 24 sponse to a discovery request or to take the action nec- 25 VerDate Sep 11 2014 00:05 Jan 11, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8997.IH H8997 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 8997 IH essary otherwise to make the records available shall be 1 grounds for judicial sanctions, up to and including dis- 2 missal of the claim with prejudice. 3 ‘‘(b) PRIVILEGE.—This section shall not affect the 4 right of the claimant to refuse production on the basis of 5 any privilege guaranteed by the Constitution of the United 6 States or any other provision of Federal law.’’. 7 (f) ANTI-TERRORIST FORFEITURE PROTECTION.— 8 Section 987 of title 18, United States Code, is repealed. 9 (g) CONFORMING AMENDMENTS.—The table of sec- 10 tions for chapter 46 of title 18, United States Code, is 11 amended— 12 (1) by amending the item related to section 981 13 to read as follows: 14 ‘‘981. Forfeiture involving foreign countries.’’; (2) by amending the item related to section 983 15 to read as follows: 16 ‘‘983. Prohibiting civil forfeiture.’’; (3) by striking the items related to sections 984 17 and 985; 18 (4) by amending the item related to section 986 19 to read as follows: 20 ‘‘986. Access to records in bank secrecy jurisdictions.’’; and (5) by striking the item related to section 987. 21 VerDate Sep 11 2014 00:05 Jan 11, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8997.IH H8997 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 8997 IH SEC. 102. CONFORMING AMENDMENTS TO THE CON- 1 TROLLED SUBSTANCES ACT. 2 (a) CRIMINAL FORFEITURES.—Section 413 of the 3 Controlled Substances Act (21 U.S.C. 853) is amended— 4 (1) in subsection (i)(4), by striking ‘‘provisions 5 of section 511(e) of this title (21 U.S.C. 881(e))’’ 6 and inserting ‘‘provisions of section 511(a)’’; and 7 (2) in subsection (j)— 8 (A) by amending the heading to read as 9 follows: ‘‘APPLICABILITY OF FORFEITURE PRO- 10 VISIONS’’; 11 (B) by striking ‘‘Except’’ and inserting 12 ‘‘(1) Except’’; 13 (C) by striking ‘‘section 511(d) of this title 14 (21 U.S.C. 881(d))’’ and inserting ‘‘paragraph 15 (2)’’; and 16 (D) by adding at the end the following: 17 ‘‘(2) The provisions of law relating to the sei- 18 zure, summary and judicial forfeiture, and con- 19 demnation of property for violation of the customs 20 laws; the disposition of such property or the pro- 21 ceeds from the sale thereof; the remission or mitiga- 22 tion of such forfeitures; and the compromise of 23 claims shall apply to seizures and forfeitures in- 24 curred, or alleged to have been incurred, under any 25 of the provisions of this title, insofar as applicable 26 VerDate Sep 11 2014 00:05 Jan 11, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8997.IH H8997 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 8997 IH and not inconsistent with the provisions hereof; ex- 1 cept that such duties as are imposed upon the cus- 2 toms officer or any other person with respect to the 3 seizure and forfeiture of property under the customs 4 laws shall be performed with respect to seizures and 5 forfeitures of property under this title by such offi- 6 cers, agents, or other persons as may be authorized 7 or designated for that purpose by the Attorney Gen- 8 eral, except to the extent that such duties arise from 9 seizures and forfeitures effected by any customs offi- 10 cer.’’; and 11 (3) in subsection (n)— 12 (A) in paragraph (2)— 13 (i) by striking ‘‘pursuant to this sec- 14 tion may, within thirty days of the final 15 publication of notice or his receipt of notice 16 under paragraph (1), whichever is earlier,’’ 17 and inserting ‘‘may’’; and 18 (ii) by striking ‘‘The hearing shall be 19 held before the court alone, without a 20 jury.’’; 21 (B) in paragraph (5), by striking ‘‘the pe- 22 titioner may testify and present evidence and 23 witnesses on his own behalf, and cross-examine 24 witnesses who appear at the hearing.’’ and in- 25 VerDate Sep 11 2014 00:05 Jan 11, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8997.IH H8997 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 8997 IH serting ‘‘the petitioner or counsel for the peti- 1 tioner may testify and present evidence and wit- 2 nesses, and cross-examine witnesses who appear 3 at the hearing. Upon any showing by the peti- 4 tioner or counsel for the petitioner that he has 5 legal interest in property which has been or- 6 dered forfeited to the United States, there shall 7 be established a rebuttable presumption that 8 the order of forfeiture is invalid with respect to 9 the petitioner’s interest in property.’’; 10 (C) in paragraph (6)— 11 (i) in the matter preceding paragraph 12 (A), by striking ‘‘If, after the hearing, the 13 court determines that the petitioner has es- 14 tablished’’ and inserting ‘‘In the case that 15 there has been established a rebuttable 16 presumption that the order of forfeiture is 17 invalid with respect to the petitioner’s in- 18 terest in property, the Government may 19 overcome such presumption if the Govern- 20 ment establishes’’; 21 (ii) by amending subparagraph (A) to 22 read as follows: 23 ‘‘(A) the defendant has a legal right, title, 24 or interest in the property, and such right, title, 25 VerDate Sep 11 2014 00:05 Jan 11, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8997.IH H8997 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 8997 IH or interest renders the order of forfeiture valid 1 in whole or in part because the right, title, or 2 interest was vested in the defendant rather than 3 the petitioner or was superior to any right, title, 4 or interest of the petitioner at the time of the 5 commission of the acts which gave rise to the 6 forfeiture of the property under this section; 7 or’’; 8 (iii) by amending subparagraph (B) to 9 read as follows: 10 ‘‘(B) the petitioner is not a bona fide pur- 11 chaser for value of the right, title, or interest 12 in the property or, at the time of purchase, had 13 cause to believe that the property was subject 14 to forfeiture under this section.’’; and 15 (iv) in the matter following subpara- 16 graph (B)— 17 (I) by striking ‘‘the court’’ and 18 inserting ‘‘After the hearing, the 19 court’’; and 20 (II) by inserting before the pe- 21 riod at the end the following: ‘‘, or, if 22 the forfeited property has already 23 been disposed of by the Government 24 in accordance with law, order the Gov- 25 VerDate Sep 11 2014 00:05 Jan 11, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8997.IH H8997 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 8997 IH ernment to compensate the petitioner 1 for an amount equal to the value of 2 the petitioner’s interest in the prop- 3 erty at the time the property was for- 4 feited’’; 5 (D) in paragraph (7), by striking ‘‘Fol- 6 lowing the court’s disposition of all petitions 7 filed under this subsection, or if no such peti- 8 tions are filed following the expiration of the 9 period provided in paragraph (2) for the filing 10 of such petitions’’ and inserting ‘‘180 days after 11 final publication or receipt of notice under para- 12 graph (1)’’; and 13 (E) by adding at the end the following: 14 ‘‘(8)(A) If a person with standing to contest the 15 forfeiture of property under this subsection is finan- 16 cially unable to obtain representation by counsel, 17 and the property subject to forfeiture is real prop- 18 erty that is being used by the person as a primary 19 residence, the court, at the request of the person, 20 shall ensure that the person is represented by an at- 21 torney for the Legal Services Corporation with re- 22 spect to the claim. 23 ‘‘(B)(i) At appropriate times during a represen- 24 tation under subparagraph (A), the Legal Services 25 VerDate Sep 11 2014 00:05 Jan 11, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H8997.IH H8997 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 8997 IH Corporation shall submit a statement of reasonable 1 attorney fees and costs to the court. 2 ‘‘(ii) The court shall enter a judgment in favor of the 3 Legal Services Corporation for reasonable attorney fees 4 and costs submitted pursuant to clause (i) and treat such 5 judgment as payable under section 2465 of title 28, 6 United States Code, regardless of the outcome of the case. 7 ‘‘(C) The court shall set the compensation 8 for representation under this subsection, which 9 [Text truncated for display. 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