DUE PROCESS Act of 2019 or the Deterring Undue Enforcement by Protecting Rights Of Citizens from Excessive Searches and Seizures Act of 2019
This bill makes various changes to procedures governing federal civil forfeiture cases, including by raising the evidentiary standard that applies to them. It also requires the Department of Justice to create a database of and annually audit federal civil forfeiture cases.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2835 Introduced in House (IH)]
<DOC>
116th CONGRESS
1st Session
H. R. 2835
To amend title 18, United States Code, to reform certain forfeiture
procedures, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 17, 2019
Mr. Sensenbrenner (for himself, Mr. Collins of Georgia, Mr. Scott of
Virginia, Mr. Katko, Mr. Cohen, Mr. Chabot, Mr. David P. Roe of
Tennessee, and Ms. Norton) introduced the following bill; which was
referred to the Committee on the Judiciary, and in addition to the
Committees on Financial Services, and Energy and Commerce, for a period
to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to reform certain forfeiture
procedures, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``DUE PROCESS Act of 2019'' or the
``Deterring Undue Enforcement by Protecting Rights Of Citizens from
Excessive Searches and Seizures Act of 2019''.
SEC. 2. GENERAL RULES FOR CIVIL FORFEITURE PROCEEDINGS.
Section 983(a) of title 18, United States Code, is amended--
(1) in the subsection heading, by striking ``Complaint''
and inserting ``Complaint; Initial Hearing'';
(2) in paragraph (1)--
(A) in subparagraph (A)--
(i) in clause (i), by striking ``60 days''
and inserting ``30 days'';
(ii) by striking clause (ii);
(iii) in clause (iii)--
(I) in the matter preceding
subclause (I)--
(aa) by striking ``60-day''
and inserting ``30-day''; and
(bb) by striking ``does not
file'' and all that follows
through ``obtain'' and
inserting ``obtains''; and
(II) in subclause (I), by striking
``60 days'' and inserting ``30 days'';
(iv) in clause (iv), by striking ``90
days'' and inserting ``60 days'';
(v) in clause (v), by striking ``60 days''
and inserting ``30 days''; and
(vi) by adding at the end the following:
``(vi) The notice under this subparagraph shall include an
address, which shall also be widely published, at which the
seizing agency can receive until 5 p.m. on any business day an
interested party's claim contesting a seizure or forfeiture.
The interested party may send such a claim to that address by
courier or overnight mail. For the purpose of determining
compliance with any deadlines in filing such a claim, an
interested party completes the filing by placing the
communication making the claim in the control of an independent
third party delivery service such as a courier company or the
United States mail. In determining whether any legal deadline
for the filing of such a claim has been met a court shall allow
for the equitable tolling of the deadline in appropriate cases.
``(vii) The seizing agency shall make publicly available
for each nonjudicial forfeiture, with respect to which a
request for mitigation or remission is made, a statement of the
agency's disposition of that request, redacted if necessary,
including the reasons for the decision.'';
(B) in subparagraph (C)--
(i) by striking ``60'' and inserting
``30''; and
(ii) by striking ``which period may'' and
all that follows through ``as necessary,'';
(C) by adding at the end the following:
``(G) Any notice described in subparagraph (A) that is
provided to a party shall include notice of--
``(i) the right of the party to request an initial
hearing in accordance with paragraph (5);
``(ii) the right of the party to be represented by
counsel at the initial hearing described in clause (i)
and any civil forfeiture proceeding under a civil
forfeiture statute; and
``(iii) the right of the party to request that the
party be represented by counsel at the initial hearing
described in clause (i) and any civil forfeiture
proceeding under a civil forfeiture statute if the
party meets the requirements described in subsection
(b).''; and
(D) by striking ``nonjudicial'' each place it
appears;
(3) in paragraph (2)(A), by striking ``nonjudicial'';
(4) in paragraph (2)(B)--
(A) by striking ``35 days'' and inserting ``65
days''; and
(B) by striking ``30 days'' and inserting ``60
days'';
(5) so that subparagraph (A) of paragraph (3) reads as
follows:
``(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 has been filed may extend the period for
filing a complaint upon agreement of the parties.''; and
(6) by adding at the end the following:
``(5)(A) A party claiming property seized in a civil
forfeiture proceeding under a civil forfeiture statute may
request, not later than 30 days after the date on which a
notice described in paragraph (1)(A) is received or if notice
is not received, not later than 30 days after the date of final
publication of notice of seizure, an initial hearing to take
place before a magistrate judge in the appropriate United
States district court not later than the date on which a civil
forfeiture proceeding under a civil forfeiture statute relating
to the seized property commences.
``(B) If a party makes a request under subparagraph (A), a
magistrate judge shall conduct an initial hearing not later
than 10 days after the date on which the request is made.
``(C) At the initial hearing--
``(i) the magistrate judge shall--
``(I) inform the party in easily understood
terms of--
``(aa) the right of the party to be
represented by counsel at the initial
hearing and any civil forfeiture
proceeding under a civil forfeiture
statute;
``(bb) the right of the party to
request that the party be represented
by counsel at the initial hearing and
any civil forfeiture proceeding under a
civil forfeiture statute if the
magistrate judge finds that the party
meets the requirements described in
subsection (b);
``(cc) sufficiently detailed facts
regarding the seizure of the property
if the property was seized pursuant to
a warrant described in the matter
preceding subparagraph (A) of section
981(b)(2); and
``(dd) the right of the party to
challenge the lawfulness of the seizure
of the property, including on the
grounds that at the time the property
was seized--
``(AA) if the property was
seized pursuant to a warrant
described in the matter
preceding subparagraph (A) of
section 981(b)(2), the warrant
was not supported by probable
cause; or
``(BB) if the property was
seized without a warrant
described in subitem (AA), none
of the exceptions described in
subparagraphs (A) and (B) of
section 981(b)(2) apply to the
seizure of the property; and
``(II) if the party meets the requirements
described in subsection (b), authorize counsel
to represent the party or insure that the party
is represented by an attorney for the Legal
Services Corporation, as applicable, in
accordance with that subsection; and
``(ii) the burden of proof is on the Government to
establish that at the time the property was seized--
``(I) if the property was seized pursuant
to a warrant described in the matter preceding
subparagraph (A) of section 981(b)(2), the
warrant was supported by probable cause; or
``(II) if the property was seized without a
warrant described in subclause (I)--
``(aa) sufficiently detailed facts
regarding the seizure of the property;
and
``(bb) an exception described in
subparagraphs (A) and (B) of section
981(b)(2) applies to the seizure of the
property.
``(D) The magistrate judge shall enter an order for the
immediate release of the seized property with prejudice to the
right of the Government to commence a civil forfeiture
proceeding at a later time if the magistrate judge finds that--
``(i) the requirements described in subparagraphs
(A) through (E) of subsection (f)(1) are met; and
``(ii) the Government did not meet the burden of
proof described in subparagraph (C)(ii).''.
SEC. 3. REPRESENTATION.
Section 983(b) of title 18, United States Code, is amended--
(1) in paragraph (1)(A), by striking ``judicial''; and
(2) in paragraph (2)(A), by striking ``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'' and inserting
``civil forfeiture proceeding under a civil forfeiture statute
is financially unable to obtain representation by counsel''.
SEC. 4. BURDEN OF PROOF.
Section 983(c) of title 18, United States Code, is amended--
(1) in paragraph (1), by striking ``a preponderance of the
evidence'' and inserting ``clear and convincing evidence''; and
(2) in paragraph (2), by striking ``a preponderance of the
evidence'' and inserting ``clear and convincing evidence''.
SEC. 5. RIGHT TO REQUEST HEARING ON PRETRIAL RESTRAINT OF PROPERTY TO
RETAIN COUNSEL OF CHOICE.
(a) Title 18.--Section 1963(d) of title 18, United States Code, is
amended--
(1) by striking paragraph (1) and inserting the following:
``(1)(A) 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) for forfeiture
under this section--
``(i) upon the filing of an indictment or information
charging a violation of section 1962 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
``(ii) 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.
``(B)(i) Upon motion of a defendant charged with a violation of
section 1962 for which criminal forfeiture is ordered under this
section and against whom the order is entered, supported by an
affidavit, the court shall hold a hearing to determine whether to
modify or rescind, in whole or in part, an order entered under
subparagraph (A) to allow the defendant to use the property subject to
the order to retain counsel of choice.
``(ii) At the hearing, the court shall consider--
``(I) the weight of the evidence against the defendant with
respect to the violation of section 1962 for which criminal
forfeiture is ordered under this section;
``(II) the weight of the evidence with respect to whether
the property will be subject to forfeiture under this section;
``(III) the history and characteristics of the defendant;
and
``(IV) the nature and circumstances of the case.
``(C) An order entered pursuant to subparagraph (A)(ii) shall be
effective for not more than 90 days, unless--
``(i) extended by the court for good cause shown; or
``(ii) an indictment or information described in
subparagraph (A)(i) has been filed.''; and
(2) in paragraph (2), by inserting ``that the defendant
committed a violation of section 1962 for which criminal
forfeiture may be ordered under this section and probable cause
to believe'' after ``believe''.
(b) Controlled Substances Act.--Section 413(e) of the Controlled
Substances Act (21 U.S.C. 853(e)) is amended--
(1) by striking paragraph (1) and inserting the following:
``(1)(A) 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) for forfeiture
under this section--
``(i) upon the filing of an indictment or information
charging a violation of this title or title III 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
``(ii) 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.
``(B)(i) Upon motion of a defendant charged with a violation of
section 1962 for which criminal forfeiture is ordered under this
section and against whom the order is entered, supported by an
affidavit sufficient to demonstrate a genuine need for the defendant to
use the property subject to an order entered under subparagraph (A) to
retain counsel of choice, the court shall hold a hearing to determine
whether to modify or rescind, in whole or in part, the order to allow
the defendant to use the property to retain counsel of choice.
``(ii) At the hearing, the court shall consider--
``(I) the weight of the evidence against the defendant with
respect to the violation of this title or title III for which
criminal forfeiture is be ordered under this section;
``(II) the weight of the evidence with respect to whether
the property will be subject to forfeiture under this section;
``(III) the history and characteristics of the defendant;
and
``(IV) the nature and circumstances of the case.
``(C) An order entered pursuant to subparagraph (A)(ii) shall be
effective for not more than 90 days, unless--
``(i) extended by the court for good cause shown; or
``(ii) an indictment or information described in
subparagraph (A)(i) has been filed.''; and
(2) in paragraph (2), by inserting ``that the defendant
committed a violation of this title or title III for which
criminal forfeiture may be ordered under this section and
probable cause to believe'' after ``believe''.
SEC. 6. RECOVERY OF ATTORNEYS FEES.
Section 2465(b) of title 28, United States Code, is amended--
(1) in paragraph (1), by striking ``substantially''; and
(2) by adding at the end the following:
``(3) If the claim is resolved by a settlement in which the
claimant prevails, the claimant is entitled to attorneys fees under
this subsection to the same extent that the claimant would be if a
judgment were issued in the proceeding for the property recovered under
the settlement. The payment of attorneys fees under this subsection may
not be waived as a part of any settlement with the claimant. That
payment is not subject to any offset or deduction by the United States
in connection with any claim the United States may have against the
claimant.
``(4) For the purposes of this subsection, a claimant prevails if
the claimant recovers more than 50 percent, by value, of the money or
other property that is claimed.''.
SEC. 7. ANNUAL AUDIT OF CIVIL FORFEITURES.
The Inspector General shall annually conduct an audit of a
representative sample of Federal civil forfeitures under statutes
described in section 983(i) of title 18, United States Code, to ensure
those forfeitures are constitutionally sound and consistent with the
letter and spirit of the law. The Department of Justice Inspector
General shall report the results of the audit to the Attorney General
and to Congress. Such report shall also include the fiscal status of
the Asset Forfeiture Fund and Treasury Forfeiture Fund, including any
projected growth or shrinking of the Funds in future years, and the
viability of the Funds.
SEC. 8. PUBLICLY AVAILABLE DATABASES.
(a) Quarterly Updated Database on Details of Forfeitures.--The
Attorney General shall establish and maintain, with updates on a
quarterly basis, a publicly available database that describes with
respect to seizures for all Federal civil forfeiture containing the
following:
(1) For each such seizure:
(A) Unit of an agency responsible for the seizure,
and the location, including at a minimum the State,
city, and judicial district where and date when the
seizure took place.
(B) The type of initial seizure (such as during a
stop based on probable cause, or pursuant to a Federal
warrant).
(C) The nature and value of the seized property.
(D) In what manner forfeiture of seized property
was conducted (whether by a civil or administrative
proceeding, through settlement, or otherwise).
(E) Whether a forfeiture of the seized property was
of the entire property, or only a part, and if partial,
the proportion of the whole that was forfeited.
(F) The disposition of the seized property, the
date of forfeiture, if any, and the date the
disposition took place.
(G) What type of criminal activity any forfeited
property relates to.
(H) Whether any forfeited money was returned to the
victim of a crime in connection with which the
forfeiture occurred, and the amount returned.
(I) The status of any concurrent or related
criminal proceeding against the owner of the property,
any pending case under title 11 in which the owner of
record of the property is the debtor, and any pending
civil case in which a receiver has been ordered to take
control of the property.
(J) Whether the forfeiture was contested.
(K) Whether the innocent owner made a claim on the
property.
(L) The total expenses associated with the
forfeiture.
(M) The total net proceeds of the forfeiture.
(N) Demographic information on the person or
persons subject to the seizure.
(2) A statistical breakdown for each agency of the cases of
remission and mitigation, including--
(A) the numbers of requests for remission and
mitigation that were--
(i) fully granted;
(ii) partially granted; or
(iii) returned; and
(B) with respect to requests that were partially
granted--
(i) the average percentage of the value of
seized property that was returned to the owner;
and
(ii) what percentage of requests resulted
in returned property in each of the following
categories:
(I) More than zero but less than 25
percent of the property was returned.
(II) 25 percent or more of the
property was returned, but less than 50
percent.
(III) 50 percent or more of the
property was returned, but less than 75
percent.
(IV) 75 percent or more of the
property was returned, but less than
100 percent.
(3) Any money given from the Asset Forfeiture Fund or
Treasury Forfeiture Fund to State or local law enforcement for
Joint Law Enforcement Operations (commonly referred to as
``JLEO'') funding, or for any other purpose, and the name of
the State or local entity receiving that funding.
(b) Real-Time Database To Assist Persons Whose Property Is
Seized.--
(1) Establishment.--The Attorney General shall establish
and maintain, with updates on a real-time basis, a database,
organized by State and county, with respect to each Federal
seizure of real and personal property for Federal civil
forfeiture under statutes described in section 983(i) of title
18, United States Code.
(2) Design.--The Attorney General shall design the database
to allow any interested party, including any owner, creditor,
or lienholder, to determine whether that party has an interest
in any such property and to inform that party, and the general
public, on the specifics of how to contest each seizure before
the forfeiture.
(c) Heads of Agencies To Submit Information for Databases.--Not
less frequently than quarterly, on a schedule determined by the
Attorney General, the head of each Federal agency shall submit to the
Attorney General a report that provides, in such form as the Attorney
General may prescribe, the information the Attorney General is required
to include in the databases established under this section.
SEC. 9. STANDARD OF PROOF RELATING TO POSSIBLY INNOCENT OWNERS.
(a) Burden of Proof.--Paragraph (3) of section 983(c) of title 18,
United States Code, is amended to read as follows:
``(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 by clear and
convincing evidence that--
``(A) there was a substantial connection between
the property and the offense; and
``(B) the owner of any interest in the seized
property--
``(i) intentionally used the property in
connection with the offense;
``(ii) knowingly consented to the use of
the property by another in connection with the
offense; or
``(iii) knew that the property was being
used in connection with the offense.''.
(b) Innocent Owner Defense.--
(1) Section 983(d)(1).--Paragraph (1) of section 983(d) of
title 18, United States Code, is amended to read as follows:
``(1) An innocent owner's interest in property shall not be
forfeited under any civil forfeiture statute. The Government
shall have the burden of proving that the claimant is not an
innocent owner by clear and convincing evidence.''.
(2) Section 983(d)(2)(A)(i).--Paragraph (2)(A)(i) of
section 983(d) of title 18, United States Code, is amended by
inserting ``or consent to'' after ``did not know of''.
SEC. 10. PROPORTIONALITY.
Section 983(g) of title 18, United States Code, is amended--
(1) in paragraph (1), by inserting ``or otherwise
disproportional to the gravity of the offense'' before the
period at the end; and
(2) by amending paragraph (2) to read as follows:
``(2) In making this determination, the court shall
consider, in addition to the analysis as to whether the
forfeiture is constitutionally excessive, the value of the
property, the seriousness of the offense, the level of the
claimant's culpability in the offense giving rise to
forfeiture, the claimant's prior record, the claimant's
financial condition, and whether the forfeiture statute is
intended to address the type of conduct alleged as the basis
for forfeiture.''.
SEC. 11. SEARCH AND FORFEITURE OF MONETARY INSTRUMENTS.
Section 5317(c) of title 31, United States Code, is amended by
striking paragraph (2) and inserting the following:
``(2) Civil forfeiture.--
``(A) In general.--Any property involved in a
violation of section 5313 or 5316, or any conspiracy to
commit any such violation, and any property traceable
to any such violation or conspiracy, may be seized and
forfeited to the United States in accordance with the
procedures governing civil forfeitures in money
laundering cases pursuant to section 981(a)(1)(A) of
title 18.
``(B) Structuring.--Any property involved in a
violation of section 5324, or any conspiracy to commit
any such violation, and any property traceable to any
such violation or conspiracy, may be seized and
forfeited to the United States in accordance with the
procedures governing civil forfeitures in money
laundering cases pursuant to section 981(a)(1)(A) of
title 18 only if the property to be seized and
forfeited is derived from an illegal source or if the
structuring offense was used to conceal violations of
other criminal laws.''.
SEC. 12. THE HEART ACT.
(a) Amendment to Section 983(a) of Title 18.--Section 983(a)(1) of
title 18, United States Code, as amended by this Act, is amended--
(1) in subparagraph (B), by inserting ``and with respect to
an animal seized under section 26 of the Animal Welfare Act or
section 1955 of this title, that the delay is warranted in
light of the criteria in subparagraph (G)'' after ``if the
official determines that the conditions in subparagraph (D) are
present,'';
(2) in subparagraph (C), by inserting ``and with respect to
an animal seized under section 26 of the Animal Welfare Act or
section 1955 of this title, that the delay is warranted in
light of the criteria in subparagraph (G)'' after ``that the
conditions in subparagraph (D) are present,''; and
(3) by adding after subparagraph (F) the following:
``(G) With respect to animals seized under section 26 of
the Animal Welfare Act or section 1955 of this title, the
period for sending notice under this paragraph may be extended
only after consideration of the following:
``(i) The cost to the government of caring and
providing shelter for the animal.
``(ii) The psychological and physical health of the
animal and the effect the delay will have on its
rehabilitation.
``(iii) Any increased risk that the delay could
necessitate the euthanasia of the animal.''.
(b) Amendment to Section 524 of Title 28.--Section 524(c)(1) of
title 28, United States Code, is amended by adding after subparagraph
(I) the following:
``(J) payment for the transportation, shelter, care,
veterinary services, and where appropriate, humane euthanasia
of an animal seized under section 26 of the Animal Welfare Act
or under section 1955 of title 18.''.
(c) Amendment to Section 983(h) of Title 18.--Section 983(h) of
title 18, United States Code, is amended by adding at the end, the
following:
``(4) In any civil forfeiture proceeding in which the
Government prevails, the court shall require the claimant to
reimburse the United States for any actual and reasonable costs
to the Government for the transportation, shelter, care,
veterinary services, or where appropriate, humane euthanasia of
an animal that was the subject of the proceeding, unless the
court determines that the factors in subsection (g) warrant
reduction or elimination of the reimbursement. The
reimbursement shall be credited to the agency or fund that was
used to pay the costs being reimbursed.''.
SEC. 13. EFFECTIVE DATE AND APPLICABILITY.
This Act and the amendments made by this Act shall take effect on
the date of the enactment of this Act and apply only with respect to
seizures made on or after that date. Seizures made before that date
shall continue to be governed by the law as it existed without regard
to this Act or the amendments made by this Act.
<all>
Introduced in House
Introduced in House
Referred to the Committee on the Judiciary, and in addition to the Committees on Financial Services, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committees on Financial Services, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committees on Financial Services, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Consumer Protection and Commerce.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security.
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