18 U.S.C. § 981 : US Code - Section 981: Civil forfeiture

Search 18 U.S.C. § 981 : US Code - Section 981: Civil forfeiture

(a)(1) The following property is subject to forfeiture to the
United States:
(A) Any property, real or personal, involved in a transaction
or attempted transaction in violation of section 1956, 1957 or
1960 of this title, or any property traceable to such property.
(B) Any property, real or personal, within the jurisdiction of
the United States, constituting, derived from, or traceable to,
any proceeds obtained directly or indirectly from an offense
against a foreign nation, or any property used to facilitate such
an offense, if the offense -
(i) involves the manufacture, importation, sale, or
distribution of a controlled substance (as that term is defined
for purposes of the Controlled Substances Act), or any other
conduct described in section 1956(c)(7)(B);
(ii) would be punishable within the jurisdiction of the
foreign nation by death or imprisonment for a term exceeding 1
year; and
(iii) would be punishable under the laws of the United States
by imprisonment for a term exceeding 1 year, if the act or
activity constituting the offense had occurred within the
jurisdiction of the United States.
(C) Any property, real or personal, which constitutes or is
derived from proceeds traceable to a violation of section 215,
471, 472, 473, 474, 476, 477, 478, 479, 480, 481, 485, 486, 487,
488, 501, 502, 510, 542, 545, 656, 657, 842, 844, 1005, 1006,
1007, 1014, 1028, 1029, 1030, 1032, or 1344 of this title or any
offense constituting "specified unlawful activity" (as defined in
section 1956(c)(7) of this title), or a conspiracy to commit such
offense.
(D) Any property, real or personal, which represents or is
traceable to the gross receipts obtained, directly or indirectly,
from a violation of -
(i) section 666(a)(1) (relating to Federal program fraud);
(ii) section 1001 (relating to fraud and false statements);
(iii) section 1031 (relating to major fraud against the
United States);
(iv) section 1032 (relating to concealment of assets from
conservator or receiver of insured financial institution);
(v) section 1341 (relating to mail fraud); or
(vi) section 1343 (relating to wire fraud),
if such violation relates to the sale of assets acquired or held
by the Resolution Trust Corporation, the Federal Deposit
Insurance Corporation, as conservator or receiver for a financial
institution, or any other conservator for a financial institution
appointed by the Office of the Comptroller of the Currency or the
Office of Thrift Supervision or the National Credit Union
Administration, as conservator or liquidating agent for a
financial institution.
(E) With respect to an offense listed in subsection (a)(1)(D)
committed for the purpose of executing or attempting to execute
any scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent statements, pretenses,
representations or promises, the gross receipts of such an
offense shall include all property, real or personal, tangible or
intangible, which thereby is obtained, directly or indirectly.
(F) Any property, real or personal, which represents or is
traceable to the gross proceeds obtained, directly or indirectly,
from a violation of -
(i) section 511 (altering or removing motor vehicle
identification numbers);
(ii) section 553 (importing or exporting stolen motor
vehicles);
(iii) section 2119 (armed robbery of automobiles);
(iv) section 2312 (transporting stolen motor vehicles in
interstate commerce); or
(v) section 2313 (possessing or selling a stolen motor
vehicle that has moved in interstate commerce).
(G) All assets, foreign or domestic -
(i) of any individual, entity, or organization engaged in
planning or perpetrating any act of domestic or international
terrorism (as defined in section 2331) against the United
States, citizens or residents of the United States, or their
property, and all assets, foreign or domestic, affording any
person a source of influence over any such entity or
organization;
(ii) acquired or maintained by any person with the intent and
for the purpose of supporting, planning, conducting, or
concealing an act of domestic or international terrorism (as
defined in section 2331) against the United States, citizens or
residents of the United States, or their property; or
(iii) derived from, involved in, or used or intended to be
used to commit any act of domestic or international terrorism
(as defined in section 2331) against the United States,
citizens or residents of the United States, or their property.
(H) Any property, real or personal, involved in a violation or
attempted violation, or which constitutes or is derived from
proceeds traceable to a violation, of section 2339C of this
title.
(2) For purposes of paragraph (1), the term "proceeds" is defined
as follows:
(A) In cases involving illegal goods, illegal services,
unlawful activities, and telemarketing and health care fraud
schemes, the term "proceeds" means property of any kind obtained
directly or indirectly, as the result of the commission of the
offense giving rise to forfeiture, and any property traceable
thereto, and is not limited to the net gain or profit realized
from the offense.
(B) In cases involving lawful goods or lawful services that are
sold or provided in an illegal manner, the term "proceeds" means
the amount of money acquired through the illegal transactions
resulting in the forfeiture, less the direct costs incurred in
providing the goods or services. The claimant shall have the
burden of proof with respect to the issue of direct costs. The
direct costs shall not include any part of the overhead expenses
of the entity providing the goods or services, or any part of the
income taxes paid by the entity.
(C) In cases involving fraud in the process of obtaining a loan
or extension of credit, the court shall allow the claimant a
deduction from the forfeiture to the extent that the loan was
repaid, or the debt was satisfied, without any financial loss to
the victim.
(b)(1) Except as provided in section 985, any property subject to
forfeiture to the United States under subsection (a) may be seized
by the Attorney General and, in the case of property involved in a
violation investigated by the Secretary of the Treasury or the
United States Postal Service, the property may also be seized by
the Secretary of the Treasury or the Postal Service, respectively.
(2) Seizures pursuant to this section shall be made pursuant to a
warrant obtained in the same manner as provided for a search
warrant under the Federal Rules of Criminal Procedure, except that
a seizure may be made without a warrant if -
(A) a complaint for forfeiture has been filed in the United
States district court and the court issued an arrest warrant in
rem pursuant to the Supplemental Rules for Certain Admiralty and
Maritime Claims;
(B) there is probable cause to believe that the property is
subject to forfeiture and -
(i) the seizure is made pursuant to a lawful arrest or
search; or
(ii) another exception to the Fourth Amendment warrant
requirement would apply; or
(C) the property was lawfully seized by a State or local law
enforcement agency and transferred to a Federal agency.
(3) Notwithstanding the provisions of rule 41(a) of the Federal
Rules of Criminal Procedure, a seizure warrant may be issued
pursuant to this subsection by a judicial officer in any district
in which a forfeiture action against the property may be filed
under section 1355(b) of title 28, and may be executed in any
district in which the property is found, or transmitted to the
central authority of any foreign state for service in accordance
with any treaty or other international agreement. Any motion for
the return of property seized under this section shall be filed in
the district court in which the seizure warrant was issued or in
the district court for the district in which the property was
seized.
(4)(A) If any person is arrested or charged in a foreign country
in connection with an offense that would give rise to the
forfeiture of property in the United States under this section or
under the Controlled Substances Act, the Attorney General may apply
to any Federal judge or magistrate judge in the district in which
the property is located for an ex parte order restraining the
property subject to forfeiture for not more than 30 days, except
that the time may be extended for good cause shown at a hearing
conducted in the manner provided in rule 43(e) of the Federal Rules
of Civil Procedure.
(B) The application for the restraining order shall set forth the
nature and circumstances of the foreign charges and the basis for
belief that the person arrested or charged has property in the
United States that would be subject to forfeiture, and shall
contain a statement that the restraining order is needed to
preserve the availability of property for such time as is necessary
to receive evidence from the foreign country or elsewhere in
support of probable cause for the seizure of the property under
this subsection.
(c) Property taken or detained under this section shall not be
repleviable, but shall be deemed to be in the custody of the
Attorney General, the Secretary of the Treasury, or the Postal
Service, as the case may be, subject only to the orders and decrees
of the court or the official having jurisdiction thereof. Whenever
property is seized under this subsection, the Attorney General, the
Secretary of the Treasury, or the Postal Service, as the case may
be, may -
(1) place the property under seal;
(2) remove the property to a place designated by him; or
(3) require that the General Services Administration take
custody of the property and remove it, if practicable, to an
appropriate location for disposition in accordance with law.
(d) For purposes of this section, the provisions of the customs
laws relating to the seizure, summary and judicial forfeiture,
condemnation of property for violation of the customs laws, the
disposition of such property or the proceeds from the sale of such
property under this section, the remission or mitigation of such
forfeitures, and the compromise of claims (19 U.S.C. 1602 et seq.),
insofar as they are applicable and not inconsistent with the
provisions of this section, shall apply to seizures and forfeitures
incurred, or alleged to have been incurred, under this section,
except that such duties as are imposed upon the customs officer or
any other person with respect to the seizure and forfeiture of
property under the customs laws shall be performed with respect to
seizures and forfeitures of property under this section by such
officers, agents, or other persons as may be authorized or
designated for that purpose by the Attorney General, the Secretary
of the Treasury, or the Postal Service, as the case may be. The
Attorney General shall have sole responsibility for disposing of
petitions for remission or mitigation with respect to property
involved in a judicial forfeiture proceeding.
(e) Notwithstanding any other provision of the law, except
section 3 of the Anti Drug Abuse Act of 1986, the Attorney General,
the Secretary of the Treasury, or the Postal Service, as the case
may be, is authorized to retain property forfeited pursuant to this
section, or to transfer such property on such terms and conditions
as he may determine -
(1) to any other Federal agency;
(2) to any State or local law enforcement agency which
participated directly in any of the acts which led to the seizure
or forfeiture of the property;
(3) in the case of property referred to in subsection
(a)(1)(C), to any Federal financial institution regulatory agency
-
(A) to reimburse the agency for payments to claimants or
creditors of the institution; and
(B) to reimburse the insurance fund of the agency for losses
suffered by the fund as a result of the receivership or
liquidation;
(4) in the case of property referred to in subsection
(a)(1)(C), upon the order of the appropriate Federal financial
institution regulatory agency, to the financial institution as
restitution, with the value of the property so transferred to be
set off against any amount later recovered by the financial
institution as compensatory damages in any State or Federal
proceeding;
(5) in the case of property referred to in subsection
(a)(1)(C), to any Federal financial institution regulatory
agency, to the extent of the agency's contribution of resources
to, or expenses involved in, the seizure and forfeiture, and the
investigation leading directly to the seizure and forfeiture, of
such property;
(6) as restoration to any victim of the offense giving rise to
the forfeiture, including, in the case of a money laundering
offense, any offense constituting the underlying specified
unlawful activity; or
(7) In (!1) the case of property referred to in subsection
(a)(1)(D), to the Resolution Trust Corporation, the Federal
Deposit Insurance Corporation, or any other Federal financial
institution regulatory agency (as defined in section 8(e)(7)(D)
of the Federal Deposit Insurance Act).
The Attorney General, the Secretary of the Treasury, or the Postal
Service, as the case may be, shall ensure the equitable transfer
pursuant to paragraph (2) of any forfeited property to the
appropriate State or local law enforcement agency so as to reflect
generally the contribution of any such agency participating
directly in any of the acts which led to the seizure or forfeiture
of such property. A decision by the Attorney General, the Secretary
of the Treasury, or the Postal Service pursuant to paragraph (2)
shall not be subject to review. The United States shall not be
liable in any action arising out of the use of any property the
custody of which was transferred pursuant to this section to any
non-Federal agency. The Attorney General, the Secretary of the
Treasury, or the Postal Service may order the discontinuance of any
forfeiture proceedings under this section in favor of the
institution of forfeiture proceedings by State or local authorities
under an appropriate State or local statute. After the filing of a
complaint for forfeiture under this section, the Attorney General
may seek dismissal of the complaint in favor of forfeiture
proceedings under State or local law. Whenever forfeiture
proceedings are discontinued by the United States in favor of State
or local proceedings, the United States may transfer custody and
possession of the seized property to the appropriate State or local
official immediately upon the initiation of the proper actions by
such officials. Whenever forfeiture proceedings are discontinued by
the United States in favor of State or local proceedings, notice
shall be sent to all known interested parties advising them of the
discontinuance or dismissal. The United States shall not be liable
in any action arising out of the seizure, detention, and transfer
of seized property to State or local officials. The United States
shall not be liable in any action arising out of a transfer under
paragraph (3), (4), or (5) of this subsection.
(f) All right, title, and interest in property described in
subsection (a) of this section shall vest in the United States upon
commission of the act giving rise to forfeiture under this section.
(g)(1) Upon the motion of the United States, the court shall stay
the civil forfeiture proceeding if the court determines that civil
discovery will adversely affect the ability of the Government to
conduct a related criminal investigation or the prosecution of a
related criminal case.
(2) Upon the motion of a claimant, the court shall stay the civil
forfeiture proceeding with respect to that claimant if the court
determines that -
(A) the claimant is the subject of a related criminal
investigation or case;
(B) the claimant has standing to assert a claim in the civil
forfeiture proceeding; and
(C) continuation of the forfeiture proceeding will burden the
right of the claimant against self-incrimination in the related
investigation or case.
(3) With respect to the impact of civil discovery described in
paragraphs (1) and (2), the court may determine that a stay is
unnecessary if a protective order limiting discovery would protect
the interest of one party without unfairly limiting the ability of
the opposing party to pursue the civil case. In no case, however,
shall the court impose a protective order as an alternative to a
stay if the effect of such protective order would be to allow one
party to pursue discovery while the other party is substantially
unable to do so.
(4) In this subsection, the terms "related criminal case" and
"related criminal investigation" mean an actual prosecution or
investigation in progress at the time at which the request for the
stay, or any subsequent motion to lift the stay is made. In
determining whether a criminal case or investigation is "related"
to a civil forfeiture proceeding, the court shall consider the
degree of similarity between the parties, witnesses, facts, and
circumstances involved in the two proceedings, without requiring an
identity with respect to any one or more factors.
(5) In requesting a stay under paragraph (1), the Government may,
in appropriate cases, submit evidence ex parte in order to avoid
disclosing any matter that may adversely affect an ongoing criminal
investigation or pending criminal trial.
(6) Whenever a civil forfeiture proceeding is stayed pursuant to
this subsection, the court shall enter any order necessary to
preserve the value of the property or to protect the rights of
lienholders or other persons with an interest in the property while
the stay is in effect.
(7) A determination by the court that the claimant has standing
to request a stay pursuant to paragraph (2) shall apply only to
this subsection and shall not preclude the Government from
objecting to the standing of the claimant by dispositive motion or
at the time of trial.
(h) In addition to the venue provided for in section 1395 of
title 28 or any other provision of law, in the case of property of
a defendant charged with a violation that is the basis for
forfeiture of the property under this section, a proceeding for
forfeiture under this section may be brought in the judicial
district in which the defendant owning such property is found or in
the judicial district in which the criminal prosecution is brought.
(i)(1) Whenever property is civilly or criminally forfeited under
this chapter, the Attorney General or the Secretary of the
Treasury, as the case may be, may transfer the forfeited personal
property or the proceeds of the sale of any forfeited personal or
real property to any foreign country which participated directly or
indirectly in the seizure or forfeiture of the property, if such a
transfer -
(A) has been agreed to by the Secretary of State;
(B) is authorized in an international agreement between the
United States and the foreign country; and
(C) is made to a country which, if applicable, has been
certified under section 481(h) (!2) of the Foreign Assistance Act
of 1961.
A decision by the Attorney General or the Secretary of the Treasury
pursuant to this paragraph shall not be subject to review. The
foreign country shall, in the event of a transfer of property or
proceeds of sale of property under this subsection, bear all
expenses incurred by the United States in the seizure, maintenance,
inventory, storage, forfeiture, and disposition of the property,
and all transfer costs. The payment of all such expenses, and the
transfer of assets pursuant to this paragraph, shall be upon such
terms and conditions as the Attorney General or the Secretary of
the Treasury may, in his discretion, set.
(2) The provisions of this section shall not be construed as
limiting or superseding any other authority of the United States to
provide assistance to a foreign country in obtaining property
related to a crime committed in the foreign country, including
property which is sought as evidence of a crime committed in the
foreign country.
(3) A certified order or judgment of forfeiture by a court of
competent jurisdiction of a foreign country concerning property
which is the subject of forfeiture under this section and was
determined by such court to be the type of property described in
subsection (a)(1)(B) of this section, and any certified recordings
or transcripts of testimony taken in a foreign judicial proceeding
concerning such order or judgment of forfeiture, shall be
admissible in evidence in a proceeding brought pursuant to this
section. Such certified order or judgment of forfeiture, when
admitted into evidence, shall constitute probable cause that the
property forfeited by such order or judgment of forfeiture is
subject to forfeiture under this section and creates a rebuttable
presumption of the forfeitability of such property under this
section.
(4) A certified order or judgment of conviction by a court of
competent jurisdiction of a foreign country concerning an unlawful
drug activity which gives rise to forfeiture under this section and
any certified recordings or transcripts of testimony taken in a
foreign judicial proceeding concerning such order or judgment of
conviction shall be admissible in evidence in a proceeding brought
pursuant to this section. Such certified order or judgment of
conviction, when admitted into evidence, creates a rebuttable
presumption that the unlawful drug activity giving rise to
forfeiture under this section has occurred.
(5) The provisions of paragraphs (3) and (4) of this subsection
shall not be construed as limiting the admissibility of any
evidence otherwise admissible, nor shall they limit the ability of
the United States to establish probable cause that property is
subject to forfeiture by any evidence otherwise admissible.
(j) For purposes of this section -
(1) the term "Attorney General" means the Attorney General or
his delegate; and
(2) the term "Secretary of the Treasury" means the Secretary of
the Treasury or his delegate.
(k) Interbank Accounts. -
(1) In general. -
(A) In general. - For the purpose of a forfeiture under this
section or under the Controlled Substances Act (21 U.S.C. 801
et seq.), if funds are deposited into an account at a foreign
bank, and that foreign bank has an interbank account in the
United States with a covered financial institution (as defined
in section 5318(j)(1) of title 31), the funds shall be deemed
to have been deposited into the interbank account in the United
States, and any restraining order, seizure warrant, or arrest
warrant in rem regarding the funds may be served on the covered
financial institution, and funds in the interbank account, up
to the value of the funds deposited into the account at the
foreign bank, may be restrained, seized, or arrested.
(B) Authority to suspend. - The Attorney General, in
consultation with the Secretary of the Treasury, may suspend or
terminate a forfeiture under this section if the Attorney
General determines that a conflict of law exists between the
laws of the jurisdiction in which the foreign bank is located
and the laws of the United States with respect to liabilities
arising from the restraint, seizure, or arrest of such funds,
and that such suspension or termination would be in the
interest of justice and would not harm the national interests
of the United States.
(2) No requirement for government to trace funds. - If a
forfeiture action is brought against funds that are restrained,
seized, or arrested under paragraph (1), it shall not be
necessary for the Government to establish that the funds are
directly traceable to the funds that were deposited into the
foreign bank, nor shall it be necessary for the Government to
rely on the application of section 984.
(3) Claims brought by owner of the funds. - If a forfeiture
action is instituted against funds restrained, seized, or
arrested under paragraph (1), the owner of the funds deposited
into the account at the foreign bank may contest the forfeiture
by filing a claim under section 983.
(4) Definitions. - For purposes of this subsection, the
following definitions shall apply:
(A) Interbank account. - The term "interbank account" has the
same meaning as in section 984(c)(2)(B).
(B) Owner. -
(i) In general. - Except as provided in clause (ii), the
term "owner" -
(I) means the person who was the owner, as that term is
defined in section 983(d)(6), of the funds that were
deposited into the foreign bank at the time such funds were
deposited; and
(II) does not include either the foreign bank or any
financial institution acting as an intermediary in the
transfer of the funds into the interbank account.
(ii) Exception. - The foreign bank may be considered the
"owner" of the funds (and no other person shall qualify as
the owner of such funds) only if -
(I) the basis for the forfeiture action is wrongdoing
committed by the foreign bank; or
(II) the foreign bank establishes, by a preponderance of
the evidence, that prior to the restraint, seizure, or
arrest of the funds, the foreign bank had discharged all or
part of its obligation to the prior owner of the funds, in
which case the foreign bank shall be deemed the owner of
the funds to the extent of such discharged obligation.