United States. Congress. House. Committee on the J.

Civil Asset Forfeiture Reform Act : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 1916 ... July 22, 1996 online

. (page 17 of 37)
Online LibraryUnited States. Congress. House. Committee on the JCivil Asset Forfeiture Reform Act : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 1916 ... July 22, 1996 → online text (page 17 of 37)
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" (3) In this section, "proceeds" means any and all
property of any kind obtained, directly or indirectly, at
any time as the result of the commission of the offense
giving rise to forfeiture, and any property traceable
thereto. Where the offense involves as an element a scheme,
a conspiracy, or a pattern of criminal activity, "proceeds"
includes any and all property obtained from the entire
course of conduct constituting such scheme, conspiracy or

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pattern. "Proceeds" is not limi .:ed to the net gain or
profit realized from the commission of the offense."
(c) CONTROLLED SUBSTANCES. - (1) Section 511 of the Con-
trolled Substances Act (21 U.S.C. 881) is amended by adding the
following new subsection:

" (k) In this section, "proceeds" means any and all
property of any kind obtained, directly or indirectly, at
any time as the result of the commission of the offense
giving rise to forfeiture, and any property traceable
thereto. "Proceeds" is not limited to the net gain or
profit realized from the commission of the offense."

(2) Section 413 of the Controlled Substances Act (21
U.S.C. 853) is amended by adding the following new subsec-
tion:

"Definition of proceeds. ^~

" (s) In this section, "proceeds" means any and all
property of any kind obtained at any time, directly or
indirectly, as the result of the commission of the offense
giving rise to forfeiture, and any property traceable
thereto. Where the offense involves as an element a scheme,
a conspiracy, or a pattern of criminal activity, "proceeds"
includes any and all property obtained from the entire
course of conduct constituting such scheme, conspiracy or
pattern. "Proceeds" is not limited to the net gain or
profit realized from the commission of the offense."



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(d) RICO. - Subsection 1963(a) of title 18, United Sates
Code, is amended by adding the following at the end:

"In this section, "proceeds" means any and all property
obtained from the entire pattern of racketeering activity or
unlawful debt collection and is not limited to net profits."
SEC. 303. FORFEITURE OF FIREARMS USED IN CRIMES OF VIOLENCE AND
FELONIES

(a) CIVIL FORFEITURE. - Section 981(a)(1) of title 18, United
States Code, is amended by inserting after subparagraph (C) the
following :

"(D) Any firearm (as defined in Section 921(a) (3) of
this title) used or intended to be used to commit or to
facilitate the commission of any crime of violence (as
defined in Section 16 of this title) or any felony under ^
federal law."

(b) CRIMINAL FORFEITURE. - (1) Section 982(a) of title 18,
United States Code, is amended by inserting after subparagraph

(2) the following:

"(3) The court, in imposing a sentence on a person
convicted of any crime of violence (as defined in Section 16
of this title) or any felony under federal law, shall order
that the person forfeit to the United States any firearm (as
defined in Section 921(a) (3) of this title) used or intended
to be used to commit or to facilitate the commission of the
offense. "



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(2) Section 3665 jf title 18, United States Code, is amended
by adding the following new paragraph at the end:

"For the purposes of this section, the procedures
governing the forfeiture of a firearm under section
982(a)(3) of this title shall apply."

(c) DISPOSAL OF FORFEITED PROPERTY. - -Section 981(c) of title
18, United States Code, is amended by adding at the end the
following sentence:

"Any firearm forfeited pursuant to subsection (a) (1) (D) or
section 982(a) (3) of this title shall be disposed of by the
seizing agency in accordance with law."

(d) AUTHORITY TO FORFEIT PROPERTY UNDER SECTION 924(d) . -
Section 924(d) of title 18, United States Code, is amended by
adding the following new paragraph:

" (4-) Whenever any firearm is -subject to forfeiture
under this section because it was involved in or used in a
violation of subsection (c) , the Secretary of the Treasury
shall have the authority to seize and forfeit, in accordance
with the procedures of the applicable forfeiture statute,
any property otherwise forfeitable under the laws of the
United States that was involved in or derived from the crime

_ of violence or drug trafficking crime described in subsec-
tion (c) in which the forfeited firearm was used or car-
ried. "

SEC. 304. FORFEITURE OF PROCEEDS TRACEABLE TO FACILITATING PROP-
ERTY IN DRUG CASES.

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(a) CONVEYANCES. - Section 511(a)(4) .■>£ the Controlled
Substances Act (21 U.S.C. 881(a)(4)) is amended -

(1) by inserting ", and any property traceable to such
conveyances" after "property described in paragraph (1), (2), or

(9)";

(2) in subparagraph (A) by inserting ", and no property
traceable to such conveyance," before "shall be forfeited"; and

(3) in subparagraphs (B) and (C) by inserting "and no
property traceable to such conveyance" before "shall be for-
feited" .

(b) REAL PROPERTY. - Section 511(a)(7) of the Controlled
Substances Act (21 U.S.C. 881(a) (7)) is amended by inserting

", and any property traceable to such property" after "one year's
imprisonment" .

(c) NEGOTIABLE INSTRUMENTS AND SECUBITIES . - Section
511(a) (6) of the Controlled Substances Act (21 U.S.C. 881(a) (6))
is amended by inserting ", and any property traceable to such
property" after "this subchapter" the second time it appears.
SEC. 305. FORFEITURE FOR ALIEN SMUGGLING.

(a) CIVIL FORFEITURE. - Section 274(b) of the Immigration
and Nationality Act of 1952 (8 U.S.C. 1324(b)) is amended -

(1) by amending paragraphs (1) and (2) to read as follows:

" (b) SEIZURE AND FORFEITURE. (1) The following proper-
ty shall be subject to seizure and forfeiture:



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"(A) any conveyance, including any vessel, vehicle, or
aircraft, which has been or is being used in the commission
of a violation of subsection (a) ; and

"(B) any property, real or personal, (i) that consti-
tutes, or is derived from or is traceable to the proceeds
obtained directly or indirectly from the commission of a
violation of subsection (a) , or (ii) that is used to facili-
tate, or is intended to be used to facilitate, the commis-
sion of a violation of subparagraph (a) (1) (A) .

"(2) Any property subject to forfeiture to the United
States under this section may be seized by the Attorney
General in the manner set forth in Section 981(b) of title
18,, United States Code."; and

(2) in paragraphs (4) and (5) by striking "a convey-
ance" and "conveyance" each place the phrase or word appears
and inserting "property" .
(b) CRIMINAL FORFEITURE. - Section 274 of the Immigration

and Nationality Act of 1952 (8 U.S.C. 1324) is further amended by

redesignating subsection (c) to be subsection (d) and inserting

the following new subsection (c) -
" (c) Criminal forfeiture
" (1) Any person convicted of a violation of subsection (a)

shall forfeit to the United States, irrespective of any provision

of State law -



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"(A) any conveyance, including any vessel, vehicle, or
aircraft used in the commission of a violation of subsection
(a) ; and

" (B) any property real or personal, (i) that con-
stitutes, or is derived from or is traceable to the proceeds
obtained directly or indirectly from the commission of a
violation of subsection (a) , or (ii) that is used to facili-
tate, or is intended to be used to facilitate, the commis-
sion of a violation of subparagraph (a) (1) (A) .
"The court, in imposing sentence on such person, shall order that
the person forfeit to the United States all property described in
this subsection.

" (2) The criminal forfeiture of property under this subsec-
tion, including any seizure and disposition of the property and
any related administrative or judicial pro ceeding, shall be gov-
erned by the provisions of section 413 of the Comprehensive Drug
Abuse Prevention and Control Act of 1970 (21 U.S.C. 853),
except for subsection 413 (d) which shall not apply to forfeitures
vinder this subsection."
SEC. 306. FORFEITURE OF PROCEEDS OF CERTAIN FOREIGN CRIMES.

Section 981(a) (1) (B) of title 18, United States Code, is
amended by -

(1) inserting " (i) " after "against a foreign nation involv-
ing " ; and

(2) inserting " (ii) murder, kidnapping, robbery, or extor-
tion, (iii) fraud, or any scheme or attempt to defraud, by or

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against a foreign bank (as defined in paragraph 7 of section 1(b)
of the International Banking Act (12 U.S.C. 3101(7))); or (iv)
money laundering, tax evasion, public corruption, smuggling,
entry of goods falsely classified, entry of goods by means of
false statements, or export control violations" after "Controlled
Substances Act) " .

SEC. 307. FORFEITURE OF PROPERTY USED TO FACILITATE FOREIGN DRUG
CRIMES .
Section 981(a)(1)(B) of title 18, United States Code, is
amended by inserting ", ot any property used to facilitate an
offense described in subparagraph (i) " at the end before the
period.
SEC. 308. FORFEITURE FOR VIOLATIONS OF SECTION 60501 AND 1960

(a) Sections 981(a)(1)(A) and 982(a)(1) of title 18, United
States Code, are amended by inserting " , or of section 60501 of
the Internal Revenue Code of 1986 (26 U.S.C. 60501)" after "of
title 31".

(b) Section 981(a)(1)(A) of title 18, United States Code, is
amended by striking "or 1957" and inserting ", 1957 or 1960".
SEC. 3 09. CRIMINAL FORFEITURE FOR MONEY LAUNDERING CONSPIRACIES

Section 982(a)(1) of title 18, United States Code, is amend-
ed by inserting ", or a conspiracy to commit any such offense"
after "of this title".

SEC. 310. SEIZURE OF VEHICLES WITH CONCEALED COMPARTMENTS USED
FOR SMUGGLING.



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(a) IN CZNERAL. - Section 3 of the Ant i- Smuggling Act of
1935 (19 U.S.C. 1703) is amended -

(1) by amending the title of such section to read as fol-
lows :

"Sec. 1703. Seizure and forfeiture vessels, vehicles
and other conveyances";

(2) by amending the title of subsection (a) to read as
follows :

" (a) Vessels, vehicles and other conveyances subject to
seizure and forfeiture";

(3) by amending the title of subsection (b) to read as
follows :

"(b) Vessels, vehicles and other conveyances defined";

(4) by inserting ", vehicle and other conveyance" after the
word "vessel" ..everywhere it appears in the text of subsec-
tions (a) and (b) ; and

(5) by amending subsection (c) to read as follows:

"(c) Acts constituting prima facie evidence of vessel,
vehicle or other conveyance engaged in smuggling

"For the purposes of this section, prima facie
evidence that a conveyance is being, or has been, or is
attempted to be employed in smuggling or to defraud the
revenue of the United States shall be -

" (1) in the case of a vessel, the fact that a
vessel has become subject to pursuit as provided in
section 1581 of this title, or is a hovering vessel, or

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that a vessel fails, at any place within the customs
waters of the United States or with a customs-enforce-
ment area, to display lights as required by law.

"(2) in the case of a vehicle or other conveyance, I
the fact that a vehicle or other conveyance has any
compartment or equipment that is built or fitted out
for smuggling.",
(b) CONFORMING AMENDMENT. - The table of sections for
Chapter 5 of title 19, United States Code, is amended by striking
the items relating to section 1703 and inserting in lieu thereof
the following:

"1703. Seizure and forfeiture of vessels, vehicles and
other conveyances .

" (a) Vessels, vehicles and other conveyances
subject to seizure and forfeiture.

" (b) 'Vessels, vehicles and other convey-
ances' defined.

" (c) Acts constituting prima facie evidence
of vessel, vehicle or other conveyance engaged in
smuggling. " .
SEC. 311. FORFEITURE OF INSTRUMENTALITIES OF TERRORISM, TELEMAR-
KETING FRAUD, AND OTHER OFFENSES.
(a) CIVIL FORFEITURE. - Section 981(a)(1) of title 18, United
States Code, is amended by adding the following sub - paragraphs :

"(E) (i) Any computer, photostatic reproduction machine,
electronic communications device or other material, article,

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apparatus, device or thing made, possessed, fitted, ' sed or
intended to be used on a continuing basis to commit a
violation of sections 513, 1028 through 1032, and 1341, 1343
and 1344 of this title, or a conspiracy to commit such
offense, and any property traceable to such property.

" (ii) Any conveyance used on two or more occasions to
transport the instrumentalities used in the commission of a
violation of sections 1028 and 1029 of this title, or a
conspiracy to commit such offense, and any property trace-
able to such conveyance .

"(F) Any conveyance, chemicals, laboratory equipment,
or other material, article, apparatus, device or thing made,
possessed, fitted, used or intended to be used to commit an
offense punishable under Chapter 113B of this title (relat-
ing to terrorism) , or a violation of the Explosives Control
Act, 18 U.S.C. 841-48, or the National Firearms Act (26
U.S.C. Chapter 53), or a conspiracy to commit any such
offense, and any property traceable to such property."
(b) CRIMINAL FORFEITURE. - Section 982(a) of title 18, United
States Code, is amended by inserting the following new paragraph:

"(4) (A) The court, in imposing a sentence on a person
convicted of a violation of sections 513, 1028 through 1032,
and 1341, 1343 and 1344 of this title, or a conspiracy to
commit such offense, shall order the person to forfeit to
the United States any computer, photostatic reproduction ma-
chine, electronic communications device or other material,

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article, apparatus, device or thing made, possessed, fitted,
used or intended to be used to commit such offense, and any
property traceable to such property.

" (B) The court, in imposing a sentence on a person
convicted of a violation of sections 1028 or 1029 of this
title, or a conspiracy to commit such offense, shall order
the person to forfeit to the United States any conveyance
used on two or more occasions to transport the instrumental-
ities used to commit such offense, and any property trace-
able to such conveyance.

"(5) The court, in imposing a sentence on a person
convicted of an offense punishable under Chapter 113B of
this title (relating to terrorism) , or a violation of the
Explosives Control Act, 18 U.S.C. 841-48, or the National
Firearms Act (26 U.S.C. Chapter 5 3) , or a conspiracy to
commit any such offense, shall order the person to forfeit
to the United States any conveyance, chemicals, laboratory
equipment, or other material, article, apparatus, device or
thing made, possessed, fitted, used or intended to be used
to commit such offense, and any property traceable to such
property. "

SEC. 312. FORFEITURE OF VEHICLES USED FOR GUN RUNNING

(a) CIVIL FORFEITURE. - Section 981(a)(1) of title 18, United

States Code, is amended by adding the following sub-paragraph:



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"(G) (i) Any conveyance used or ir^ended to be used to
commit a gun running offense, or conspiracy to commit such
offense, and any property traceable to such property.

(ii) For the purposes of this section, a gun running
offense is a violation of any of the following sections of
this title involving five or more firearms: section
922(a) (1) (A) (engaging in a firearms business without a
license); section 922(a) (3) (transporting a firearm across
state lines); section 922(a)(5) (transferring a firearm to a
non-licensed person in another state); section 922(a)(6)
(making false statements in connection with the purchase of
a firearm); section 922 (j) (receiving stolen firearms);
section 922 (k) (receiving a firearm with obliterated serial
numbers); and section 922 (u) (stealing firearms from federal

firearms- licensees) . — -

(b) CRIMINAL FORFEITURE. - Section 982(a) of title 18, United
States Code, is amended by inserting the following new paragraph:
"(6) The court, in imposing a sentence on a person
convicted of a gun running offense, as defined in Section
981(a) (1) (G) , or a conspiracy to commit such offense, shall
order the person to forfeit to the United States any convey-
ance used or intended to be used to commit such offense, and
any property traceable to such conveyance."



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SEC. 3^3. FORFEITURE OF CRIMINAL PROCEEDS TRANSPORTED IN INTER-
STATE COMMERCE
Section 1952 of title 18, United States Code, is amended by

adding the following subsection:

" (d) (1) Any property involved in a violation of subsec-
tion (a) (1) or a conspiracy to commit such violation, or any
property traceable to such property, is subject to forfei-
ture to the United States in accordance with the procedures
set forth in section 981 of this title.

" (2) The court, in imposing sentence on a person con-
victed of an offense in violation of subsection (a) (1) or a
conspiracy to commit such offense, shall order that the
person forfeit to the United States any property involved in
such offense, or any property traceable to such property, in
accordance with the procedures set — forth in section 982 of
this title."

SEC. 314. FORFEITURES OF PROCEEDS OF FEDERAL FOOD, DRUG, AND
COSMETIC ACT VIOLATIONS
Chapter 9 of title 21, United States Code, is amended by

adding the following two new sections: -

"Sec. 311. CIVIL FORFEITURE OF PROCEEDS OF FEDERAL FOOD,
DRUG, AND COSMETIC ACT VIOLATIONS

"(a) Any property, real or personal, that constitutes,

or is derived from or is traceable to the proceeds obtained

directly or indirectly from a criminal violation of, or a

conspiracy to commit a criminal violation of, a provision of

the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301-

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1395) shall be subject to judicial forfeiture to the United
States.

"(b) The provisions of chapter 46 of title 18, United
States Code, relating to civil forfeitures shall extend to a
seizure or forfeiture under this section, insofar as ap-
plicable and not inconsistent with the provisions hereof,
except that such duties as are imposed upon the Secretary of
the Treasury under chapter 46 shall be performed with re-
spect to seizures and forfeitures under this section by such
officers, agents, or other persons as may be authorized or
designated for that purpose by the Secretary of Health and
Human Services .

"Sec. 312. OlIMINAL FORFEITURE OF PROCEEDS OF

FEDERAL FOOD, DRUG, AND COSMETIC ACT
VIOLATIONS

"(a) Any. person convicted of_a_violation of, or a
conspiracy to violate, a provision of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 301-395) shall forfeit
to the United States, irrespective of any provision of State
law, any property constituting, or derived from, any pro-
ceeds the person obtained, directly or indirectly, as the
result of such violation. The court, in imposing sentence
on such person, shall order that the person forfeit to the
United States all property described in this subsection.

" (b) Property subject to forfeiture under this section,
any seizure and disposition thereof, and any administrative
or judicial proceeding in relation thereto, shall be gov-

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jrned by the provisions of section 413 of the Comprehensive
Drug Abuse Prevention and Control Act of 1970 (21 U.S.C.

853), except for subsection 413(d) which shall not apply
to forfeitures under this section."
SEC. 315. SUMMARY DESTRUCTION OF EXPLOSIVES SUBJECT TO FORFEITURE
Section 844(c) of title 18, United States Code, is amended -

(1) by inserting "(1)" after "(c)"; and

(2) by adding at the end the following new paragraphs:

"(2) Notwithstanding paragraph (1), in the case of the
seizure of any explosive materials for any offense for which
the materials would be subject to forfeiture in which it
would be impracticable or unsafe to remove the materials to
a place of storage or would be unsafe to store them, the
seizing officer may destroy the explosive materials, forth-
with. Any destruction under this -paragraph shall be in the
presence of at least one credible witness. The seizing
officer shall ma)ce a report of the seizure and ta)ce samples
as the Secretary may by regulation prescribe.

"(3) Within 90 days after any destruction made pursuant
to paragraph (2), the owner of (including any person having
an interest in) the property so destroyed may make applica-
tion to the Secretary for reimbursement of the value of the
property. If the claimant establishes to the satisfaction
of the Secretary that the claimant was an innocent owner as
described in 18 U.S.C. 983, the Secretary shall make an
allowance to the claimant not exceeding the value of the

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property destroyed. The Secretary's determination of the

fair market value of the property shall be final."
SEC. 316. ARCHEOLOGICAL RESOURCES PROTECTION ACT

Section 8 (b) of the Archeological Resources Protection Act
of 1979 (16 U.S.C. 470gg(b)) is amended by -

(1) inserting "all proceeds derived directly or indirectly
from such violation or any property traceable thereto, " before
"and all vehicles" in the unnumbered paragraph;

2) inserting "proceeds," before "vehicles" in paragraph (3);
and

3) inserting the following at the end of the subsection:
"If a forfeiture count is included within an indictment in

accordance with the Federal Rules of Criminal Procedure, and the
defendant is convicted of the offense giving rise to the forfei-
ture, the forfeiture may be ordered as ^lart of the criminal
sentence in accordance with the procedures for criminal forfei-
tures in Chapter 46 of title 18, United States Code. Otherwise,
the forfeiture shall be civil in nature in accordance with the
procedures for civil forfeiture in said Chapter 46 of title 18."

TITLE IV - MISCELLANEOUS FORFEITURE AMENDMENTS
SEC. 4 01. USE OF FORFEITED FUNDS TO PAY RESTITUTION TO CRIME
VICTIMS AND REGULATORY AGENCIES
(a) CIVIL FORFEITURE. - Section 981(e) of title 18, United
States Code, is amended -



71



35-668 96-7



190



(1) by amending subsection (e) (G) to read as follows:

"(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" ;

(2) in subsections (e) (3), (4) and (5), by striking "in
the case of property referred to in subsection (a) (1) (C) "
and inserting "in the case of property forfeited in connec-
tion with an offense resulting in a pecuniary loss to a
financial institution or regulatory agency" ; and

(3) in subsection (e) (7) , by striking "in the case of
property referred to in subsection (a) (1) (D) " and inserting
"in the case of property forfeited in connection with an
offense relating to the sale of assets acquired or held by
any Federal financial institution or r egulatory agency, or
person appointed by such agency, as receiver, conservator or
liquidating agent for a financial institution".

(b) CRIMINAL FORFEITURE. - Section 982(b) of title 18,
United States Code, is amended by adding the following new parag-
raph:

"(4) The provision relating to restitution in section
413 (i) shall be construed to authorize the Attorney General
to restore forfeited property, on such terms and conditions
as he or she may determine, to any victim of an offense for
which forfeiture is ordered under this section, or any
victim of any offense that was part of the same scheme,

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consp racy, or pattern of criminal activity, including, in
the case of a money laundering offense, any offense consti-
tuting the underlying specified unlawful activity. The
Attorney General shall consider the restoration of forfeited
property to victims to be the first priority in the distri-
bution of forfeited property under this section after the
costs of the investigation and forfeiture have been satis-
fied."

SEC. 402. ENFORCEMENT OF FOREIGN FORFEITURE JUDGMENT

(a) IN GENERAL. - Chapter 163 of Title 28, United States

Code, is amended by inserting the following new section:
"2466. Enforcement of foreign forfeiture judgment.
"(a) Definitions. As used in this section -

" (1) "Foreign nation" shall mean a country that has
become a -party to the United Natioftc—Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substanc-
es (hereafter "the United Nations Convention") or a foreign
jurisdiction with which the United States has a treaty or
other formal international agreement in effect providing for
mutual forfeiture assistance.

"(2) "Value based confiscation judgment" shall mean a
final order of a foreign nation compelling a defendant, as a
consequence of his or her criminal conviction for an offense
described in Article 3, Paragraph 1, of the United Nations



Online LibraryUnited States. Congress. House. Committee on the JCivil Asset Forfeiture Reform Act : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 1916 ... July 22, 1996 → online text (page 17 of 37)