21 U.S.C. § 853 : US Code - Section 853: Criminal forfeitures

Search 21 U.S.C. § 853 : US Code - Section 853: Criminal forfeitures

    (a) Property subject to criminal forfeiture
      Any person convicted of a violation of this subchapter or
    subchapter II of this chapter punishable by imprisonment for more
    than one year shall forfeit to the United States, irrespective of
    any provision of State law - 
        (1) any property constituting, or derived from, any proceeds
      the person obtained, directly or indirectly, as the result of
      such violation;
        (2) any of the person's property used, or intended to be used,
      in any manner or part, to commit, or to facilitate the commission
      of, such violation; and
        (3) in the case of a person convicted of engaging in a
      continuing criminal enterprise in violation of section 848 of
      this title, the person shall forfeit, in addition to any property
      described in paragraph (1) or (2), any of his interest in, claims
      against, and property or contractual rights affording a source of
      control over, the continuing criminal enterprise.

    The court, in imposing sentence on such person, shall order, in
    addition to any other sentence imposed pursuant to this subchapter
    or subchapter II of this chapter, that the person forfeit to the
    United States all property described in this subsection. In lieu of
    a fine otherwise authorized by this part, a defendant who derives
    profits or other proceeds from an offense may be fined not more
    than twice the gross profits or other proceeds.
    (b) Meaning of term "property"
      Property subject to criminal forfeiture under this section
    includes - 
        (1) real property, including things growing on, affixed to, and
      found in land; and
        (2) tangible and intangible personal property, including
      rights, privileges, interests, claims, and securities.
    (c) Third party transfers
      All right, title, and interest in property described in
    subsection (a) of this section vests in the United States upon the
    commission of the act giving rise to forfeiture under this section.
    Any such property that is subsequently transferred to a person
    other than the defendant may be the subject of a special verdict of
    forfeiture and thereafter shall be ordered forfeited to the United
    States, unless the transferee establishes in a hearing pursuant to
    subsection (n) of this section that he is a bona fide purchaser for
    value of such property who at the time of purchase was reasonably
    without cause to believe that the property was subject to
    forfeiture under this section.
    (d) Rebuttable presumption
      There is a rebuttable presumption at trial that any property of a
    person convicted of a felony under this subchapter or subchapter II
    of this chapter is subject to forfeiture under this section if the
    United States establishes by a preponderance of the evidence that -
    
        (1) such property was acquired by such person during the period
      of the violation of this subchapter or subchapter II of this
      chapter or within a reasonable time after such period; and
        (2) there was no likely source for such property other than the
      violation of this subchapter or subchapter II of this chapter.
    (e) Protective orders
      (1) Upon application of the United States, the court may enter a
    restraining order or injunction, require the execution of a
    satisfactory performance bond, or take any other action to preserve
    the availability of property described in subsection (a) of this
    section for forfeiture under this section - 
        (A) upon the filing of an indictment or information charging a
      violation of this subchapter or subchapter II of this chapter for
      which criminal forfeiture may be ordered under this section and
      alleging that the property with respect to which the order is
      sought would, in the event of conviction, be subject to
      forfeiture under this section; or
        (B) prior to the filing of such an indictment or information,
      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:

    Provided, however, That an order entered pursuant to subparagraph
    (B) shall be effective for not more than ninety days, unless
    extended by the court for good cause shown or unless an indictment
    or information described in subparagraph (A) has been filed.
      (2) A temporary restraining order under this subsection may be
    entered upon application of the United States without notice or
    opportunity for a hearing when an information or indictment 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 would, in the
    event of conviction, be subject to forfeiture under this section
    and that provision of notice will jeopardize the availability of
    the property for forfeiture. Such a temporary order shall expire
    not more than fourteen 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.
      (3) 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.
      (4) Order to repatriate and deposit. - 
        (A) In general. - Pursuant to its authority to enter a pretrial
      restraining order under this section, the court may order a
      defendant to repatriate any property that may be seized and
      forfeited, and to deposit that property pending trial in the
      registry of the court, or with the United States Marshals Service
      or the Secretary of the Treasury, in an interest-bearing account,
      if appropriate.
        (B) Failure to comply. - Failure to comply with an order under
      this subsection, or an order to repatriate property under
      subsection (p) of this section, shall be punishable as a civil or
      criminal contempt of court, and may also result in an enhancement
      of the sentence of the defendant under the obstruction of justice
      provision of the Federal Sentencing Guidelines.
    (f) Warrant of seizure
      The Government may request the issuance of a warrant authorizing
    the seizure of property subject to forfeiture under this section in
    the same manner as provided for a search warrant. If the court
    determines that there is probable cause to believe that the
    property to be seized would, in the event of conviction, be subject
    to forfeiture and that an order under subsection (e) of this
    section may not be sufficient to assure the availability of the
    property for forfeiture, the court shall issue a warrant
    authorizing the seizure of such property.
    (g) Execution
      Upon entry of an order of forfeiture under this section, the
    court shall authorize the Attorney General to seize all property
    ordered forfeited upon such terms and conditions as the court shall
    deem proper. Following entry of an order declaring the property
    forfeited, the court may, upon application of the United States,
    enter such appropriate restraining orders or injunctions, require
    the execution of satisfactory performance bonds, appoint receivers,
    conservators, appraisers, accountants, or trustees, or take any
    other action to protect the interest of the United States in the
    property ordered forfeited. Any income accruing to or derived from
    property ordered forfeited under this section may be used to offset
    ordinary and necessary expenses to the property which are required
    by law, or which are necessary to protect the interests of the
    United States or third parties.
    (h) Disposition of property
      Following the seizure of property ordered forfeited under this
    section, the Attorney General shall direct the disposition of the
    property by sale or any other commercially feasible means, making
    due provision for the rights of any innocent persons. Any property
    right or interest not exercisable by, or transferable for value to,
    the United States shall expire and shall not revert to the
    defendant, nor shall the defendant or any person acting in concert
    with him or on his behalf be eligible to purchase forfeited
    property at any sale held by the United States. Upon application of
    a person, other than the defendant or a person acting in concert
    with him or on his behalf, the court may restrain or stay the sale
    or disposition of the property pending the conclusion of any appeal
    of the criminal case giving rise to the forfeiture, if the
    applicant demonstrates that proceeding with the sale or disposition
    of the property will result in irreparable injury, harm, or loss to
    him.
    (i) Authority of the Attorney General
      With respect to property ordered forfeited under this section,
    the Attorney General is authorized to - 
        (1) grant petitions for mitigation or remission of forfeiture,
      restore forfeited property to victims of a violation of this
      subchapter, or take any other action to protect the rights of
      innocent persons which is in the interest of justice and which is
      not inconsistent with the provisions of this section;
        (2) compromise claims arising under this section;
        (3) award compensation to persons providing information
      resulting in a forfeiture under this section;
        (4) direct the disposition by the United States, in accordance
      with the provisions of section 881(e) of this title, of all
      property ordered forfeited under this section by public sale or
      any other commercially feasible means, making due provision for
      the rights of innocent persons; and
        (5) take appropriate measures necessary to safeguard and
      maintain property ordered forfeited under this section pending
      its disposition.
    (j) Applicability of civil forfeiture provisions
      Except to the extent that they are inconsistent with the
    provisions of this section, the provisions of section 881(d) of
    this title shall apply to a criminal forfeiture under this section.
    (k) Bar on intervention
      Except as provided in subsection (n) of this section, no party
    claiming an interest in property subject to forfeiture under this
    section may - 
        (1) intervene in a trial or appeal of a criminal case involving
      the forfeiture of such property under this section; or
        (2) commence an action at law or equity against the United
      States concerning the validity of his alleged interest in the
      property subsequent to the filing of an indictment or information
      alleging that the property is subject to forfeiture under this
      section.
    (l) Jurisdiction to enter orders
      The district courts of the United States shall have jurisdiction
    to enter orders as provided in this section without regard to the
    location of any property which may be subject to forfeiture under
    this section or which has been ordered forfeited under this
    section.
    (m) Depositions
      In order to facilitate the identification and location of
    property declared forfeited and to facilitate the disposition of
    petitions for remission or mitigation of forfeiture, after the
    entry of an order declaring property forfeited to the United
    States, the court may, upon application of the United States, order
    that the testimony of any witness relating to the property
    forfeited be taken by deposition and that any designated book,
    paper, document, record, recording, or other material not
    privileged be produced at the same time and place, in the same
    manner as provided for the taking of depositions under Rule 15 of
    the Federal Rules of Criminal Procedure.
    (n) Third party interests
      (1) Following the entry of an order of forfeiture under this
    section, the United States shall publish notice of the order and of
    its intent to dispose of the property in such manner as the
    Attorney General may direct. The Government may also, to the extent
    practicable, provide direct written notice to any person known to
    have alleged an interest in the property that is the subject of the
    order of forfeiture as a substitute for published notice as to
    those persons so notified.
      (2) Any person, other than the defendant, asserting a legal
    interest in property which has been ordered forfeited to the United
    States pursuant to this section may, within thirty days of the
    final publication of notice or his receipt of notice under
    paragraph (1), whichever is earlier, petition the court for a
    hearing to adjudicate the validity of his alleged interest in the
    property. The hearing shall be held before the court alone, without
    a jury.
      (3) The petition shall be signed by the petitioner under penalty
    of perjury and shall set forth the nature and extent of the
    petitioner's right, title, or interest in the property, the time
    and circumstances of the petitioner's acquisition of the right,
    title, or interest in the property, any additional facts supporting
    the petitioner's claim, and the relief sought.
      (4) The hearing on the petition shall, to the extent practicable
    and consistent with the interests of justice, be held within thirty
    days of the filing of the petition. The court may consolidate the
    hearing on the petition with a hearing on any other petition filed
    by a person other than the defendant under this subsection.
      (5) At the hearing, the petitioner may testify and present
    evidence and witnesses on his own behalf, and cross-examine
    witnesses who appear at the hearing. The United States may present
    evidence and witnesses in rebuttal and in defense of its claim to
    the property and cross-examine witnesses who appear at the hearing.
    In addition to testimony and evidence presented at the hearing, the
    court shall consider the relevant portions of the record of the
    criminal case which resulted in the order of forfeiture.
      (6) If, after the hearing, the court determines that the
    petitioner has established by a preponderance of the evidence that -
     
        (A) the petitioner has a legal right, title, or interest in the
      property, and such right, title, or interest renders the order of
      forfeiture invalid in whole or in part because the right, title,
      or interest was vested in the petitioner rather than the
      defendant or was superior to any right, title, or interest of the
      defendant at the time of the commission of the acts which gave
      rise to the forfeiture of the property under this section; or
        (B) the petitioner is a bona fide purchaser for value of the
      right, title, or interest in the property and was at the time of
      purchase reasonably without cause to believe that the property
      was subject to forfeiture under this section;

    the court shall amend the order of forfeiture in accordance with
    its determination.
      (7) Following the court's disposition of all petitions filed
    under this subsection, or if no such petitions are filed following
    the expiration of the period provided in paragraph (2) for the
    filing of such petitions, the United States shall have clear title
    to property that is the subject of the order of forfeiture and may
    warrant good title to any subsequent purchaser or transferee.
    (o) Construction
      The provisions of this section shall be liberally construed to
    effectuate its remedial purposes.
    (p) Forfeiture of substitute property
      (1) In general
        Paragraph (2) of this subsection shall apply, if any property
      described in subsection (a) of this section, as a result of any
      act or omission of the defendant - 
          (A) cannot be located upon the exercise of due diligence;
          (B) has been transferred or sold to, or deposited with, a
        third party;
          (C) has been placed beyond the jurisdiction of the court;
          (D) has been substantially diminished in value; or
          (E) has been commingled with other property which cannot be
        divided without difficulty.
      (2) Substitute property
        In any case described in any of subparagraphs (A) through (E)
      of paragraph (1), the court shall order the forfeiture of any
      other property of the defendant, up to the value of any property
      described in subparagraphs (A) through (E) of paragraph (1), as
      applicable.
      (3) Return of property to jurisdiction
        In the case of property described in paragraph (1)(C), the
      court may, in addition to any other action authorized by this
      subsection, order the defendant to return the property to the
      jurisdiction of the court so that the property may be seized and
      forfeited.
    (q) Restitution for cleanup of clandestine laboratory sites
      The court, when sentencing a defendant convicted of an offense
    under this subchapter or subchapter II of this chapter involving
    the manufacture, the possession, or the possession with intent to
    distribute, of amphetamine or methamphetamine, shall - 
        (1) order restitution as provided in sections 3612 and 3664 of
      title 18;
        (2) order the defendant to reimburse the United States, the
      State or local government concerned, or both the United States
      and the State or local government concerned for the costs
      incurred by the United States or the State or local government
      concerned, as the case may be, for the cleanup associated with
      the manufacture of amphetamine or methamphetamine by the
      defendant, or on premises or in property that the defendant owns,
      resides, or does business in; and
        (3) order restitution to any person injured as a result of the
      offense as provided in section 3663A of title 18.