18 U.S.C. § 983 : US Code - Section 983: General rules for civil forfeiture proceedings

Search 18 U.S.C. § 983 : US Code - Section 983: General rules for civil forfeiture proceedings

(a) Notice; Claim; Complaint. -
(1)(A)(i) Except as provided in clauses (ii) through (v), in
any nonjudicial civil forfeiture proceeding under a civil
forfeiture statute, with respect to which the Government is
required to send written notice to interested parties, such
notice shall be sent in a manner to achieve proper notice as soon
as practicable, and in no case more than 60 days after the date
of the seizure.
(ii) No notice is required if, before the 60-day period
expires, the Government files a civil judicial forfeiture action
against the property and provides notice of that action as
required by law.
(iii) If, before the 60-day period expires, the Government does
not file a civil judicial forfeiture action, but does obtain a
criminal indictment containing an allegation that the property is
subject to forfeiture, the Government shall either -
(I) send notice within the 60 days and continue the
nonjudicial civil forfeiture proceeding under this section; or
(II) terminate the nonjudicial civil forfeiture proceeding,
and take the steps necessary to preserve its right to maintain
custody of the property as provided in the applicable criminal
forfeiture statute.
(iv) In a case in which the property is seized by a State or
local law enforcement agency and turned over to a Federal law
enforcement agency for the purpose of forfeiture under Federal
law, notice shall be sent not more than 90 days after the date of
seizure by the State or local law enforcement agency.
(v) If the identity or interest of a party is not determined
until after the seizure or turnover but is determined before a
declaration of forfeiture is entered, notice shall be sent to
such interested party not later than 60 days after the
determination by the Government of the identity of the party or
the party's interest.
(B) A supervisory official in the headquarters office of the
seizing agency may extend the period for sending notice under
subparagraph (A) for a period not to exceed 30 days (which period
may not be further extended except by a court), if the official
determines that the conditions in subparagraph (D) are present.
(C) Upon motion by the Government, a court may extend the
period for sending notice under subparagraph (A) for a period not
to exceed 60 days, which period may be further extended by the
court for 60-day periods, as necessary, if the court determines,
based on a written certification of a supervisory official in the
headquarters office of the seizing agency, that the conditions in
subparagraph (D) are present.
(D) The period for sending notice under this paragraph may be
extended only if there is reason to believe that notice may have
an adverse result, including -
(i) endangering the life or physical safety of an individual;
(ii) flight from prosecution;
(iii) destruction of or tampering with evidence;
(iv) intimidation of potential witnesses; or
(v) otherwise seriously jeopardizing an investigation or
unduly delaying a trial.
(E) Each of the Federal seizing agencies conducting nonjudicial
forfeitures under this section shall report periodically to the
Committees on the Judiciary of the House of Representatives and
the Senate the number of occasions when an extension of time is
granted under subparagraph (B).
(F) If the Government does not send notice of a seizure of
property in accordance with subparagraph (A) to the person from
whom the property was seized, and no extension of time is
granted, the Government shall return the property to that person
without prejudice to the right of the Government to commence a
forfeiture proceeding at a later time. The Government shall not
be required to return contraband or other property that the
person from whom the property was seized may not legally possess.
(2)(A) Any person claiming property seized in a nonjudicial
civil forfeiture proceeding under a civil forfeiture statute may
file a claim with the appropriate official after the seizure.
(B) A claim under subparagraph (A) may be filed not later than
the deadline set forth in a personal notice letter (which
deadline may be not earlier than 35 days after the date the
letter is mailed), except that if that letter is not received,
then a claim may be filed not later than 30 days after the date
of final publication of notice of seizure.
(C) A claim shall -
(i) identify the specific property being claimed;
(ii) state the claimant's interest in such property; and
(iii) be made under oath, subject to penalty of perjury.
(D) A claim need not be made in any particular form. Each
Federal agency conducting nonjudicial forfeitures under this
section shall make claim forms generally available on request,
which forms shall be written in easily understandable language.
(E) Any person may make a claim under subparagraph (A) without
posting bond with respect to the property which is the subject of
the claim.
(3)(A) Not later than 90 days after a claim has been filed, the
Government shall file a complaint for forfeiture in the manner
set forth in the Supplemental Rules for Certain Admiralty and
Maritime Claims or return the property pending the filing of a
complaint, except that a court in the district in which the
complaint will be filed may extend the period for filing a
complaint for good cause shown or upon agreement of the parties.
(B) If the Government does not -
(i) file a complaint for forfeiture or return the property,
in accordance with subparagraph (A); or
(ii) before the time for filing a complaint has expired -
(I) obtain a criminal indictment containing an allegation
that the property is subject to forfeiture; and
(II) take the steps necessary to preserve its right to
maintain custody of the property as provided in the
applicable criminal forfeiture statute,
the Government shall promptly release the property pursuant to
regulations promulgated by the Attorney General, and may not take
any further action to effect the civil forfeiture of such
property in connection with the underlying offense.
(C) In lieu of, or in addition to, filing a civil forfeiture
complaint, the Government may include a forfeiture allegation in
a criminal indictment. If criminal forfeiture is the only
forfeiture proceeding commenced by the Government, the
Government's right to continued possession of the property shall
be governed by the applicable criminal forfeiture statute.
(D) No complaint may be dismissed on the ground that the
Government did not have adequate evidence at the time the
complaint was filed to establish the forfeitability of the
property.
(4)(A) In any case in which the Government files in the
appropriate United States district court a complaint for
forfeiture of property, any person claiming an interest in the
seized property may file a claim asserting such person's interest
in the property in the manner set forth in the Supplemental Rules
for Certain Admiralty and Maritime Claims, except that such claim
may be filed not later than 30 days after the date of service of
the Government's complaint or, as applicable, not later than 30
days after the date of final publication of notice of the filing
of the complaint.
(B) A person asserting an interest in seized property, in
accordance with subparagraph (A), shall file an answer to the
Government's complaint for forfeiture not later than 20 days
after the date of the filing of the claim.
(b) Representation. -
(1)(A) If a person with standing to contest the forfeiture of
property in a judicial civil forfeiture proceeding under a civil
forfeiture statute is financially unable to obtain representation
by counsel, and the person is represented by counsel appointed
under section 3006A of this title in connection with a related
criminal case, the court may authorize counsel to represent that
person with respect to the claim.
(B) In determining whether to authorize counsel to represent a
person under subparagraph (A), the court shall take into account
such factors as -
(i) the person's standing to contest the forfeiture; and
(ii) whether the claim appears to be made in good faith.
(2)(A) If a person with standing to contest the forfeiture of
property in a judicial civil forfeiture proceeding under a civil
forfeiture statute is financially unable to obtain representation
by counsel, and the property subject to forfeiture is real
property that is being used by the person as a primary residence,
the court, at the request of the person, shall insure that the
person is represented by an attorney for the Legal Services
Corporation with respect to the claim.
(B)(i) At appropriate times during a representation under
subparagraph (A), the Legal Services Corporation shall submit a
statement of reasonable attorney fees and costs to the court.
(ii) The court shall enter a judgment in favor of the Legal
Services Corporation for reasonable attorney fees and costs
submitted pursuant to clause (i) and treat such judgment as
payable under section 2465 of title 28, United States Code,
regardless of the outcome of the case.
(3) The court shall set the compensation for representation
under this subsection, which shall be equivalent to that provided
for court-appointed representation under section 3006A of this
title.
(c) Burden of Proof. - In a suit or action brought under any
civil forfeiture statute for the civil forfeiture of any property -

(1) the burden of proof is on the Government to establish, by a
preponderance of the evidence, that the property is subject to
forfeiture;
(2) the Government may use evidence gathered after the filing
of a complaint for forfeiture to establish, by a preponderance of
the evidence, that property is subject to forfeiture; and
(3) if the Government's theory of forfeiture is that the
property was used to commit or facilitate the commission of a
criminal offense, or was involved in the commission of a criminal
offense, the Government shall establish that there was a
substantial connection between the property and the offense.
(d) Innocent Owner Defense. -
(1) An innocent owner's interest in property shall not be
forfeited under any civil forfeiture statute. The claimant shall
have the burden of proving that the claimant is an innocent owner
by a preponderance of the evidence.
(2)(A) With respect to a property interest in existence at the
time the illegal conduct giving rise to forfeiture took place,
the term "innocent owner" means an owner who -
(i) did not know of the conduct giving rise to forfeiture; or
(ii) upon learning of the conduct giving rise to the
forfeiture, did all that reasonably could be expected under the
circumstances to terminate such use of the property.
(B)(i) For the purposes of this paragraph, ways in which a
person may show that such person did all that reasonably could be
expected may include demonstrating that such person, to the
extent permitted by law -
(I) gave timely notice to an appropriate law enforcement
agency of information that led the person to know the conduct
giving rise to a forfeiture would occur or has occurred; and
(II) in a timely fashion revoked or made a good faith attempt
to revoke permission for those engaging in such conduct to use
the property or took reasonable actions in consultation with a
law enforcement agency to discourage or prevent the illegal use
of the property.
(ii) A person is not required by this subparagraph to take
steps that the person reasonably believes would be likely to
subject any person (other than the person whose conduct gave rise
to the forfeiture) to physical danger.
(3)(A) With respect to a property interest acquired after the
conduct giving rise to the forfeiture has taken place, the term
"innocent owner" means a person who, at the time that person
acquired the interest in the property -
(i) was a bona fide purchaser or seller for value (including
a purchaser or seller of goods or services for value); and
(ii) did not know and was reasonably without cause to believe
that the property was subject to forfeiture.
(B) An otherwise valid claim under subparagraph (A) shall not
be denied on the ground that the claimant gave nothing of value
in exchange for the property if -
(i) the property is the primary residence of the claimant;
(ii) depriving the claimant of the property would deprive the
claimant of the means to maintain reasonable shelter in the
community for the claimant and all dependents residing with the
claimant;
(iii) the property is not, and is not traceable to, the
proceeds of any criminal offense; and
(iv) the claimant acquired his or her interest in the
property through marriage, divorce, or legal separation, or the
claimant was the spouse or legal dependent of a person whose
death resulted in the transfer of the property to the claimant
through inheritance or probate,
except that the court shall limit the value of any real property
interest for which innocent ownership is recognized under this
subparagraph to the value necessary to maintain reasonable
shelter in the community for such claimant and all dependents
residing with the claimant.
(4) Notwithstanding any provision of this subsection, no person
may assert an ownership interest under this subsection in
contraband or other property that it is illegal to possess.
(5) If the court determines, in accordance with this section,
that an innocent owner has a partial interest in property
otherwise subject to forfeiture, or a joint tenancy or tenancy by
the entirety in such property, the court may enter an appropriate
order -
(A) severing the property;
(B) transferring the property to the Government with a
provision that the Government compensate the innocent owner to
the extent of his or her ownership interest once a final order
of forfeiture has been entered and the property has been
reduced to liquid assets; or
(C) permitting the innocent owner to retain the property
subject to a lien in favor of the Government to the extent of
the forfeitable interest in the property.
(6) In this subsection, the term "owner" -
(A) means a person with an ownership interest in the specific
property sought to be forfeited, including a leasehold, lien,
mortgage, recorded security interest, or valid assignment of an
ownership interest; and
(B) does not include -
(i) a person with only a general unsecured interest in, or
claim against, the property or estate of another;
(ii) a bailee unless the bailor is identified and the
bailee shows a colorable legitimate interest in the property
seized; or
(iii) a nominee who exercises no dominion or control over
the property.
(e) Motion To Set Aside Forfeiture. -
(1) Any person entitled to written notice in any nonjudicial
civil forfeiture proceeding under a civil forfeiture statute who
does not receive such notice may file a motion to set aside a
declaration of forfeiture with respect to that person's interest
in the property, which motion shall be granted if -
(A) the Government knew, or reasonably should have known, of
the moving party's interest and failed to take reasonable steps
to provide such party with notice; and
(B) the moving party did not know or have reason to know of
the seizure within sufficient time to file a timely claim.
(2)(A) Notwithstanding the expiration of any applicable statute
of limitations, if the court grants a motion under paragraph (1),
the court shall set aside the declaration of forfeiture as to the
interest of the moving party without prejudice to the right of
the Government to commence a subsequent forfeiture proceeding as
to the interest of the moving party.
(B) Any proceeding described in subparagraph (A) shall be
commenced -
(i) if nonjudicial, within 60 days of the entry of the order
granting the motion; or
(ii) if judicial, within 6 months of the entry of the order
granting the motion.
(3) A motion under paragraph (1) may be filed not later than 5
years after the date of final publication of notice of seizure of
the property.
(4) If, at the time a motion made under paragraph (1) is
granted, the forfeited property has been disposed of by the
Government in accordance with law, the Government may institute
proceedings against a substitute sum of money equal to the value
of the moving party's interest in the property at the time the
property was disposed of.
(5) A motion filed under this subsection shall be the exclusive
remedy for seeking to set aside a declaration of forfeiture under
a civil forfeiture statute.
(f) Release Of Seized Property. -
(1) A claimant under subsection (a) is entitled to immediate
release of seized property if -
(A) the claimant has a possessory interest in the property;
(B) the claimant has sufficient ties to the community to
provide assurance that the property will be available at the
time of the trial;
(C) the continued possession by the Government pending the
final disposition of forfeiture proceedings will cause
substantial hardship to the claimant, such as preventing the
functioning of a business, preventing an individual from
working, or leaving an individual homeless;
(D) the claimant's likely hardship from the continued
possession by the Government of the seized property outweighs
the risk that the property will be destroyed, damaged, lost,
concealed, or transferred if it is returned to the claimant
during the pendency of the proceeding; and
(E) none of the conditions set forth in paragraph (8)
applies.
(2) A claimant seeking release of property under this
subsection must request possession of the property from the
appropriate official, and the request must set forth the basis on
which the requirements of paragraph (1) are met.
(3)(A) If not later than 15 days after the date of a request
under paragraph (2) the property has not been released, the
claimant may file a petition in the district court in which the
complaint has been filed or, if no complaint has been 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.
(B) The petition described in subparagraph (A) shall set forth -

(i) the basis on which the requirements of paragraph (1) are
met; and
(ii) the steps the claimant has taken to secure release of
the property from the appropriate official.
(4) If the Government establishes that the claimant's claim is
frivolous, the court shall deny the petition. In responding to a
petition under this subsection on other grounds, 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.
(5) The court shall render a decision on a petition filed under
paragraph (3) not later than 30 days after the date of the
filing, unless such 30-day limitation is extended by consent of
the parties or by the court for good cause shown.
(6) If -
(A) a petition is filed under paragraph (3); and
(B) the claimant demonstrates that the requirements of
paragraph (1) have been met,
the district court shall order that the property be returned to
the claimant, pending completion of proceedings by the Government
to obtain forfeiture of the property.
(7) If the court grants a petition under paragraph (3) -
(A) the court may enter any order necessary to ensure that
the value of the property is maintained while the forfeiture
action is pending, including -
(i) permitting the inspection, photographing, and inventory
of the property;
(ii) fixing a bond in accordance with rule E(5) of the
Supplemental Rules for Certain Admiralty and Maritime Claims;
and
(iii) requiring the claimant to obtain or maintain
insurance on the subject property; and
(B) the Government may place a lien against the property or
file a lis pendens to ensure that the property is not
transferred to another person.
(8) This subsection shall not apply if the seized property -
(A) is contraband, currency, or other monetary instrument, or
electronic funds unless such currency or other monetary
instrument or electronic funds constitutes the assets of a
legitimate business which has been seized;
(B) is to be used as evidence of a violation of the law;
(C) by reason of design or other characteristic, is
particularly suited for use in illegal activities; or
(D) is likely to be used to commit additional criminal acts
if returned to the claimant.
(g) Proportionality. -
(1) The claimant under subsection (a)(4) may petition the court
to determine whether the forfeiture was constitutionally
excessive.
(2) In making this determination, the court shall compare the
forfeiture to the gravity of the offense giving rise to the
forfeiture.
(3) The claimant shall have the burden of establishing that the
forfeiture is grossly disproportional by a preponderance of the
evidence at a hearing conducted by the court without a jury.
(4) If the court finds that the forfeiture is grossly
disproportional to the offense it shall reduce or eliminate the
forfeiture as necessary to avoid a violation of the Excessive
Fines Clause of the Eighth Amendment of the Constitution.
(h) Civil Fine. -
(1) In any civil forfeiture proceeding under a civil forfeiture
statute in which the Government prevails, if the court finds that
the claimant's assertion of an interest in the property was
frivolous, the court may impose a civil fine on the claimant of
an amount equal to 10 percent of the value of the forfeited
property, but in no event shall the fine be less than $250 or
greater than $5,000.
(2) Any civil fine imposed under this subsection shall not
preclude the court from imposing sanctions under rule 11 of the
Federal Rules of Civil Procedure.
(3) In addition to the limitations of section 1915 of title 28,
United States Code, in no event shall a prisoner file a claim
under a civil forfeiture statute or appeal a judgment in a civil
action or proceeding based on a civil forfeiture statute if the
prisoner has, on three or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the
grounds that it is frivolous or malicious, unless the prisoner
shows extraordinary and exceptional circumstances.
(i) Civil Forfeiture Statute Defined. - In this section, the term
"civil forfeiture statute" -
(1) means any provision of Federal law providing for the
forfeiture of property other than as a sentence imposed upon
conviction of a criminal offense; and
(2) does not include -
(A) the Tariff Act of 1930 or any other provision of law
codified in title 19;
(B) the Internal Revenue Code of 1986;
(C) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301
et seq.);
(D) the Trading with the Enemy Act (50 U.S.C. App. 1 et seq.)
or the International Emergency Economic Powers Act (IEEPA) (50
U.S.C. 1701 et seq.); or
(E) section 1 of title VI of the Act of June 15, 1917 (40
Stat. 233; 22 U.S.C. 401).
(j) Restraining Orders; Protective Orders. -
(1) Upon application of the United States, the court may enter
a restraining order or injunction, require the execution of
satisfactory performance bonds, create receiverships, appoint
conservators, custodians, appraisers, accountants, or trustees,
or take any other action to seize, secure, maintain, or preserve
the availability of property subject to civil forfeiture -
(A) upon the filing of a civil forfeiture complaint alleging
that the property with respect to which the order is sought is
subject to civil forfeiture; or
(B) prior to the filing of such a complaint, if, after notice
to persons appearing to have an interest in the property and
opportunity for a hearing, the court determines that -
(i) there is a substantial probability that the United
States will prevail on the issue of forfeiture and that
failure to enter the order will result in the property being
destroyed, removed from the jurisdiction of the court, or
otherwise made unavailable for forfeiture; and
(ii) the need to preserve the availability of the property
through the entry of the requested order outweighs the
hardship on any party against whom the order is to be
entered.
(2) An order entered pursuant to paragraph (1)(B) shall be
effective for not more than 90 days, unless extended by the court
for good cause shown, or unless a complaint described in
paragraph (1)(A) has been filed.
(3) A temporary restraining order under this subsection may be
entered upon application of the United States without notice or
opportunity for a hearing when a complaint has not yet been filed
with respect to the property, if the United States demonstrates
that there is probable cause to believe that the property with
respect to which the order is sought is subject to civil
forfeiture and that provision of notice will jeopardize the
availability of the property for forfeiture. Such a temporary
order shall expire not more than 10 days after the date on which
it is entered, unless extended for good cause shown or unless the
party against whom it is entered consents to an extension for a
longer period. A hearing requested concerning an order entered
under this paragraph shall be held at the earliest possible time
and prior to the expiration of the temporary order.
(4) The court may receive and consider, at a hearing held
pursuant to this subsection, evidence and information that would
be inadmissible under the Federal Rules of Evidence.