Notes on 21 U.S.C. § 881 : US Code - Notes

Search Notes on 21 U.S.C. § 881 : US Code - Notes

    (Pub. L. 91-513, title II, Sec. 511, Oct. 27, 1970, 84 Stat. 1276;
    Pub. L. 95-633, title III, Sec. 301(a), Nov. 10, 1978, 92 Stat.
    3777; Pub. L. 96-132, Sec. 14, Nov. 30, 1979, 93 Stat. 1048; Pub.
    L. 98-473, title II, Secs. 306, 309, 518, Oct. 12, 1984, 98 Stat.
    2050, 2051, 2075; Pub. L. 99-570, title I, Secs. 1006(c), 1865,
    1992, Oct. 27, 1986, 100 Stat. 3207-7, 3207-54, 3207-59; Pub. L. 99-
    646, Sec. 74, Nov. 10, 1986, 100 Stat. 3618; Pub. L. 100-690,
    title V, Sec. 5105, title VI, Secs. 6059, 6074, 6075, 6077(a), (b),
    6253, Nov. 18, 1988, 102 Stat. 4301, 4319, 4323-4325, 4363; Pub. L.
    101-189, div. A, title XII, Sec. 1215(a), Nov. 29, 1989, 103 Stat.
    1569; Pub. L. 101-647, title XX, Secs. 2003, 2004, 2007, 2008, Nov.
    29, 1990, 104 Stat. 4855, 4856; Pub. L. 102-239, Sec. 2, Dec. 17,
    1991, 105 Stat. 1912; Pub. L. 103-447, title I, Sec. 102(d), Nov.
    2, 1994, 108 Stat. 4693; Pub. L. 104-237, title II, Sec. 201(b),
    Oct. 3, 1996, 110 Stat. 3101; Pub. L. 106-185, Secs. 2(c)(2), 5(b),
    8(b), Apr. 25, 2000, 114 Stat. 210, 214, 216; Pub. L. 107-273, div.
    B, title IV, Sec. 4002(e)(3), Nov. 2, 2002, 116 Stat. 1810.)


                            REFERENCES IN TEXT                        
      Subchapter II of this chapter, referred to in subsec. (a)(9), was
    in the original "title III", meaning title III of Pub. L. 91-513,
    Oct. 27, 1970, 84 Stat. 1285. Part A of title III comprises
    subchapter II of this chapter. For classification of Part B,
    consisting of sections 1101 to 1105 of title III, see Tables.
      Schedules I and II, referred to in subsecs. (f) and (g), are set
    out in section 812(c) of this title.



                                AMENDMENTS                            
      2002 - Subsec. (a)(10). Pub. L. 107-273 substituted "section 863
    of this title" for "section 1822 of the Mail Order Drug
    Paraphernalia Control Act".
      2000 - Subsec. (a)(4). Pub. L. 106-185, Sec. 2(c)(2), struck out
    before period at end ", except that - 
        "(A) no conveyance used by any person as a common carrier in
      the transaction of business as a common carrier shall be
      forfeited under the provisions of this section unless it shall
      appear that the owner or other person in charge of such
      conveyance was a consenting party or privy to a violation of this
      subchapter or subchapter II of this chapter;
        "(B) no conveyance shall be forfeited under the provisions of
      this section by reason of any act or omission established by the
      owner thereof to have been committed or omitted by any person
      other than such owner while such conveyance was unlawfully in the
      possession of a person other than the owner in violation of the
      criminal laws of the United States, or of any State; and
        "(C) no conveyance shall be forfeited under this paragraph to
      the extent of an interest of an owner, by reason of any act or
      omission established by that owner to have been committed or
      omitted without the knowledge, consent, or willful blindness of
      the owner".
      Subsec. (a)(6). Pub. L. 106-185, Sec. 2(c)(2), struck out before
    period at end ", except that no property shall be forfeited under
    this paragraph, to the extent of the interest of an owner, by
    reason of any act or omission established by that owner to have
    been committed or omitted without the knowledge or consent of that
    owner".
      Subsec. (a)(7). Pub. L. 106-185, Sec. 2(c)(2), struck out before
    period at end ", except that no property shall be forfeited under
    this paragraph, to the extent of an interest of an owner, by reason
    of any act or omission established by that owner to have been
    committed or omitted without the knowledge or consent of that
    owner".
      Subsec. (b). Pub. L. 106-185, Sec. 5(b), inserted heading and
    amended text of subsec. (b) generally. Prior to amendment, subsec.
    (b) authorized the Attorney General to seize property under this
    subchapter upon process issued pursuant to the Supplemental Rules
    for Certain Admirality and Maritime claims and to seize it without
    process in certain described circumstances.
      Subsec. (i). Pub. L. 106-185, Sec. 8(b), inserted heading and
    amended text of subsec. (i) generally. Prior to amendment, text
    read as follows: "The filing of an indictment or information
    alleging a violation of this subchapter or subchapter II of this
    chapter, or a violation of State or local law that could have been
    charged under this subchapter or subchapter II of this chapter,
    which is also related to a civil forfeiture proceeding under this
    section shall, upon motion of the United States and for good cause
    shown, stay the civil forfeiture proceeding."
      1996 - Subsec. (a)(2), (6). Pub. L. 104-237, Sec. 201(b)(1),
    inserted "or listed chemical" after "controlled substance".
      Subsec. (a)(9). Pub. L. 104-237, Sec. 201(b)(2), substituted
    "possessed, distributed, dispensed, acquired, or intended to be
    distributed, dispensed, acquired," for "possessed, distributed, or
    intended to be distributed," and struck out "a felony provision of"
    after "in violation of".
      1994 - Subsec. (e)(1)(E)(iii). Pub. L. 103-447 substituted
    "section 2291j(b) of title 22" for "section 2291(h) of title 22".
      1991 - Subsec. (e)(1)(B). Pub. L. 102-239, Sec. 2(1), substituted
    "except as provided in paragraph (4), sell" for "sell".
      Subsec. (e)(4). Pub. L. 102-239, Sec. 2(2), added par. (4).
      1990 - Subsec. (a)(10). Pub. L. 101-647, Sec. 2007, added par.
    (10).
      Subsec. (a)(11). Pub. L. 101-647, Sec. 2008, added par. (11).
      Subsec. (e)(1)(B). Pub. L. 101-647, Sec. 2003, inserted ", by
    public sale or any other commercially feasible means," after
    "sell".
      Subsec. (f). Pub. L. 101-647, Sec. 2004, inserted "; all
    dangerous, toxic, or hazardous raw materials or products subject to
    forfeiture under subsection (a)(2) of this section; and any
    equipment or container subject to forfeiture under subsection
    (a)(2) or (3) of this section which cannot be separated safely from
    such raw materials or products" after "this subchapter" in pars.
    (1) and (2).
      1989 - Subsec. (e)(3)(B). Pub. L. 101-189 amended subpar. (B)
    generally. Prior to amendment, subpar. (B) read as follows: "is not
    so transferred to circumvent any requirement of State law that
    prohibits forfeiture or limits use or disposition of property
    forfeited to State or local agencies."
      1988 - Subsec. (a)(3). Pub. L. 100-690, Sec. 6059(b), inserted
    reference to par. (9).
      Subsec. (a)(4). Pub. L. 100-690, Secs. 6059(b), 6075, inserted in
    introductory provisions reference to par. (9) and added subpar.
    (C).
      Subsec. (a)(7). Pub. L. 100-690, Sec. 5105, inserted "(including
    any leasehold interest)" after "interest".
      Subsec. (a)(9). Pub. L. 100-690, Sec. 6059(a), added par. (9).
      Subsec. (e)(1)(A). Pub. L. 100-690, Sec. 6077(b), amended subpar.
    (A) generally. Prior to amendment, subpar. (A) read as follows:
    "retain the property for official use or transfer the custody or
    ownership of any forfeited property to any Federal, State, or local
    agency pursuant to section 1616a of title 19;".
      Subsec. (e)(1)(E). Pub. L. 100-690, Sec. 6074, added subpar. (E).
      Subsec. (e)(2)(B). Pub. L. 100-690, Sec. 6253(b), provided for
    deposit of moneys and proceeds in Postal Service Fund in cases of
    forfeitures conducted by Postal Service.
      Subsec. (e)(3). Pub. L. 100-690, Sec. 6077(a), added par. (3).
      Subsec. (l). Pub. L. 100-690, Sec. 6253(a), added subsec. (l).
      1986 - Subsec. (b). Pub. L. 99-570, Sec. 1865(1)-(3), and Pub. L.
    99-646, Sec. 74(1)-(3), in making identical amendments in
    introductory provision and par. (4), struck out "or criminal" after
    "subject to civil" and inserted paragraph permitting the Government
    to request issuance of a warrant authorizing seizure of property
    subject to forfeiture under this section in the same manner as
    provided for a search warrant under the Federal Rules of Criminal
    Procedure.
      Subsec. (e). Pub. L. 99-570, Sec. 1992, designated existing
    provisions as par. (1) and former pars. (1) to (4) as subpars. (A)
    to (D), respectively, and added par. (2) in lieu of former
    concluding provisions which read as follows: "The Attorney General
    shall ensure the equitable transfer pursuant to paragraph (1) 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 pursuant to paragraph (1) shall not be subject to
    review. The proceeds from any sale under paragraph (2) and any
    moneys forfeited under this subchapter shall be used to pay all
    proper expenses of the proceedings for forfeiture and sale
    including expenses of seizure, maintenance of custody, advertising,
    and court costs. The Attorney General shall forward to the
    Treasurer of the United States for deposit in accordance with
    section 524(c) of title 28 any amounts of such moneys and proceeds
    remaining after payment of such expenses."
      Subsec. (f). Pub. L. 99-570, Sec. 1006(c), which directed the
    amendment of section 511 of the "Comprehensive Drug Abuse
    Prevention Act of 1978" was executed to this section which is
    section 511 of the Comprehensive Drug Abuse Prevention Act of 1970,
    as the probable intent of Congress, by designating existing
    provisions as par. (1), inserting "or II" in two places, and adding
    par. (2).
      Subsec. (i). Pub. L. 99-570, Sec. 1865(b) and Pub. L. 99-646,
    Sec. 74(b), made identical amendments, inserting ", or a violation
    of State or local law that could have been charged under this
    subchapter or subchapter II of this chapter,".
      1984 - Subsec. (a)(7). Pub. L. 98-473, Sec. 306(a), added par.
    (7).
      Subsec. (a)(8). Pub. L. 98-473, Sec. 518, added par. (8).
      Subsec. (b). Pub. L. 98-473, Sec. 306(b)(1), inserted "civil or
    criminal" after "property subject to".
      Subsec. (b)(4). Pub. L. 98-473, Sec. 306(b)(2), substituted "is
    subject to civil or criminal forfeiture under" for "has been used
    or is intended to be used in violation of".
      Subsec. (c). Pub. L. 98-473, Sec. 306(c)(1), in provisions
    preceding par. (1), inserted "any of" after "seized under".
      Subsec. (c)(3). Pub. L. 98-473, Sec. 306(c)(2), inserted ", if
    practicable," after "remove it".
      Subsec. (d). Pub. L. 98-473, Sec. 306(d), inserted "any of" after
    "incurred, under".
      Subsec. (e). Pub. L. 98-473, Secs. 306(e), 309, inserted "civilly
    or criminally" after "Whenever property is" and in provisions
    preceding par. (1), inserted provisions relating to transfer of
    custody or ownership of forfeited property in par. (1), substituted
    "and dispose of it" for "and remove it for disposition" in par.
    (3), and, in provisions following par. (4), inserted sentence
    requiring the Attorney General to ensure equitable transfer of any
    forfeited property, and substituted "accordance with section 524(c)
    of title 28" for "the general fund of the United States Treasury".
      Subsecs. (h) to (j). Pub. L. 98-473, Sec. 306(f), added subsecs.
    (h) to (j).
      1979 - Subsec. (d). Pub. L. 96-132 substituted "The provisions"
    for "All provisions" and struck out "and the award of compensation
    to informers in respect of such forfeitures" after "compromise of
    claims".
      1978 - Subsec. (a)(6). Pub. L. 95-633, Sec. 301(1), added par.
    (6).
      Subsec. (e). Pub. L. 95-633, Sec. 301(a)(2), (3), struck out of
    cl. (2) provisions relating to use of proceeds of sale and inserted
    last sentence relating to the forwarding by the Attorney General of
    money and proceeds remaining after payment of expenses.

                     EFFECTIVE DATE OF 2000 AMENDMENT                 
      Amendment by Pub. L. 106-185 applicable to any forfeiture
    proceeding commenced on or after the date that is 120 days after
    Apr. 25, 2000, see section 21 of Pub. L. 106-185, set out as a note
    under section 1324 of Title 8, Aliens and Nationality.

                     EFFECTIVE DATE OF 1989 AMENDMENT                 
      Section 1215(b) of Pub. L. 101-189 provided that: "The amendment
    made by subsection (a) [amending this section] shall take effect as
    of October 1, 1989."

                     EFFECTIVE DATE OF 1988 AMENDMENT                 
      Amendment by section 6059 of Pub. L. 100-690 effective 120 days
    after Nov. 18, 1988, see section 6061 of Pub. L. 100-690, set out
    as a note under section 802 of this title.
      Section 6077(c) of Pub. L. 100-690, as amended by Pub. L. 101-
    162, title II, Sec. 208, Nov. 21, 1989, 103 Stat. 1005, provided
    that: "Section 551(e)(3)(B) of the Controlled Substances Act
    [probably means section 511(e)(3)(B) of the Controlled Substances
    Act, 21 U.S.C. 881(e)(3)(B)], as enacted by subsection (a), shall
    apply with respect to fiscal years beginning after September 30,
    1991."



                           TRANSFER OF FUNCTIONS                       
      Bureau of Narcotics and Dangerous Drugs, including office of
    Director thereof, in Department of Justice abolished by Reorg. Plan
    No. 2 of 1973, eff. July 1, 1973, 38 F.R. 15932, 87 Stat. 1091, set
    out in the Appendix to Title 5, Government Organization and
    Employees. Reorg. Plan No. 2 of 1973 also created in Department of
    Justice a single, comprehensive agency for enforcement of drug laws
    to be known as Drug Enforcement Administration, empowered Attorney
    General to authorize performance by officers, employees, and
    agencies of Department of functions transferred to him, and
    directed Attorney General to coordinate all drug law enforcement
    functions to assure maximum cooperation between Drug Enforcement
    Administration, Federal Bureau of Investigation, and other units of
    Department of Justice involved in drug law enforcement.



                      CONSTRUCTIVE SEIZURE PROCEDURES                  
      Pub. L. 101-225, title II, Sec. 210, Dec. 12, 1989, 103 Stat.
    1913, provided that: "Not later than 6 months after the date of
    enactment of this Act [Dec. 12, 1989], the Secretary of
    Transportation and the Secretary of the Treasury, in order to avoid
    the devastating economic effects on innocent owners of seizures of
    their vessels, shall develop a procedure for constructive seizure
    of vessels of the United States engaged in commercial service as
    defined in section 2101 of title 46, United States Code, that are
    suspected of being used for committing violations of law involving
    personal use quantities of controlled substances."

      REGULATIONS FOR EXPEDITED ADMINISTRATIVE FORFEITURE PROCEDURES  
      Section 6079 of Pub. L. 100-690 provided that:
      "(a) In General. - Not later than 90 days after the date of
    enactment of this Act [Nov. 18, 1988], the Attorney General and the
    Secretary of the Treasury shall consult, and after providing a 30-
    day public comment period, shall prescribe regulations for
    expedited administrative procedures for seizures under section
    511(a)(4), (6), and (7) of the Controlled Substances Act (21 U.S.C.
    881(a)(4), (6), and (7)); section 596 of the Tariff Act of 1930 (19
    U.S.C. 1595a(a)); and section 2 of the Act of August 9, 1939 (53
    Stat. 1291; 49 U.S.C. App. 782 [now 49 U.S.C. 80303]) for
    violations involving the possession of personal use quantities of a
    controlled substance.
      "(b) Specifications. - The regulations prescribed pursuant to
    subsection (a) shall - 
        "(1) minimize the adverse impact caused by prolonged detention,
      and
        "(2) provide for a final administrative determination of the
      case within 21 days of seizure, or provide a procedure by which
      the defendant can obtain release of the property pending a final
      determination of the case. Such regulations shall provide that
      the appropriate agency official rendering a final determination
      shall immediately return the property if the following conditions
      are established:
          "(A) the owner or interested party did not know of or consent
        to the violation;
          "(B) the owner establishes a valid, good faith interest in
        the seized property as owner or otherwise; and
          "(C)(1) the owner establishes that the owner at no time had
        any knowledge or reason to believe that the property in which
        the owner claims an interest was being or would be used in a
        violation of the law; and
          "(2) if the owner at any time had, or should have had,
        knowledge or reason to believe that the property in which the
        owner claims an interest was being or would be used in a
        violation of the law, that the owner did what reasonably could
        be expected to prevent the violation.
    An owner shall not have the seized property returned under this
    subsection if the owner had not acted in a normal and customary
    manner to ascertain how the property would be used.
      "(c) Notice. - At the time of seizure or upon issuance of a
    summons to appear under subsection (d), the officer making the
    seizure shall furnish to any person in possession of the conveyance
    a written notice specifying the procedures under this section. At
    the earliest practicable opportunity after determining ownership of
    the seized conveyance, the head of the department or agency that
    seizes the conveyance shall furnish a written notice to the owner
    and other interested parties (including lienholders) of the legal
    and factual basis of the seizure.
      "(d) Summons in Lieu of Seizure of Commercial Fishing Industry
    Vessels. - Not later than 90 days after the enactment of this Act
    [Nov. 18, 1988], the Attorney General, the Secretary of the
    Treasury, and the Secretary of Transportation shall prescribe joint
    regulations, after a public comment period of at least 30 days,
    providing for issuance of a summons to appear in lieu of seizure of
    a commercial fishing industry vessel as defined in section
    2101(11a), (11b), and (11c) of title 46, United States Code, for
    violations involving the possession of personal use quantities of a
    controlled substance. These regulations shall apply when the
    violation is committed on a commercial fishing industry vessel that
    is proceeding to or from a fishing area or intermediate port of
    call, or is actively engaged in fishing operations. The authority
    provided under this section shall not affect existing authority to
    arrest an individual for drug-related offenses or to release that
    individual into the custody of the vessel's master. Upon answering
    a summons to appear, the procedures set forth in subsections (a),
    (b), and (c) of this section shall apply. The jurisdiction of the
    district court for any forfeiture incurred shall not be affected by
    the use of a summons under this section.
      "(e) Personal Use Quantities of a Controlled Substance. - For the
    purposes of this section, personal use quantities of a controlled
    substance shall not include sweepings or other evidence of non-
    personal use amounts."


    (footnote 1) So in original. No subsec. (k) has been enacted.