US Codex
Bill
Notes

H.R. 5283 — what changed

DUE PROCESS Act of 2016

From Introduced in House to Reported in House. 4 sections amended between Introduced in House and Reported in House.

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:

changed “(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);

changed “(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;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).”

(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.”

(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.

changed “(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. 7 Annual audit of civil forfeitures

changed 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 Fund Funds in future years, and the viability of the fund.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)
added 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

changed “(iii) should have reasonably known knew that the property was being used in connection with the offense.”

(b)
added Innocent owner defense—
(1)
added Section 983(d)(1)— Paragraph (1) of section 983(d) of title 18, United States Code, is amended to read as follows:
(b)
removed Innocent owner defense— 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)
added 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”.