1. Short title
This Act may be cited as the “Fifth Amendment Integrity Restoration Act of 2019” or the “FAIR Act”.
Fifth Amendment Integrity Restoration Act of 2019
A BILL
To restore the integrity of the Fifth Amendment to the Constitution of the United States, and for other purposes.
2. Civil forfeiture proceedings
Section 983 of title 18, United States Code, is amended—
in subsection (b)(2)(A)—
by striking “, and the property subject to forfeiture is real property that is being used by the person as a primary residence,”; and
by striking “, at the request of the person, shall insure” and insert “shall ensure”;
in subsection (c)—
in paragraph (1), by striking “a preponderance of the evidence” and inserting “clear and convincing evidence”;
in paragraph (2), by striking “a preponderance of the evidence” and inserting “clear and convincing evidence”; and
by striking paragraph (3) and inserting the following:
“(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) used the property with intent to facilitate the offense; or
“(ii) knowingly consented or was willfully blind to the use of the property by another in connection with the offense.”
in subsection (d)(2)(A), by striking “an owner who” and all that follows through “upon learning” and inserting “an owner who, upon learning”.
3. Disposition of forfeited property
Revisions to Controlled Substances Act— Section 511(e) of the Controlled Substances Act (21 U.S.C. 881(e)) is amended—
in paragraph (1)—
in the matter preceding subparagraph (A), by striking “civilly or”;
by striking subparagraph (A); and
by redesignating subparagraphs (B) through (E) as subparagraphs (A) through (D), respectively;
in paragraph (2)—
in subparagraph (A), in the matter preceding clause (i), by striking “subparagraph (B) of paragraph (1)” and inserting “paragraph (1)(A)”; and
in subparagraph (B), by striking “accordance with section 524(c) of title 28,” and inserting “the General Fund of the Treasury of the United States”;
by striking paragraph (3);
by redesignating paragraph (4) as paragraph (3); and
in paragraph (3), as redesignated—
in subparagraph (A), by striking “paragraph (1)(B)” and inserting “paragraph (1)(A)”; and
in subparagraph (B), in the matter preceding clause (i), by striking “paragraph (1)(B) that is civilly or” and inserting paragraph “(1)(A) that is”.
Revisions to title 18— Chapter 46 of title 18, United States Code, is amended—
in section 981(e)—
by striking “is authorized” and all that follows through “or forfeiture of the property;” and inserting “shall forward to the Treasurer of the United States any proceeds of property forfeited pursuant to this section for deposit in the General Fund of the Treasury or transfer such property on such terms and conditions as such officer may determine—”;
by redesignating paragraphs (3), (4), (5), (6), and (7) as paragraphs (1), (2), (3), (4), and (5), respectively; and
in the matter following paragraph (5), as so redesignated—
by striking the first, second, third, sixth, and eighth sentences; and
by striking “paragraph (3), (4), or (5)” and inserting “paragraph (1), (2), or (3)”; and
in section 983(g)—
in paragraph (3), by striking “grossly”; and
in paragraph (4), by striking “grossly”.
in section 613A(a) (19 U.S.C. 1613b(a))—
in paragraph (1)—
in subparagraph (D), by inserting “and” after the semicolon;
in subparagraph (E), by striking “; and” and inserting a period; and
by striking subparagraph (F); and
in paragraph (2)—
by striking “(A) Any payment” and inserting “Any payment”; and
by striking subparagraph (B); and
in section 616 (19 U.S.C. 1616a)—
in the section heading, by striking “Transfer of forfeited property” and inserting “Dismissal in favor of forfeiture under State law”;
in subsection (a), by striking “(a) The Secretary” and inserting “The Secretary”; and
by striking subsections (b) through (d).
Title 31— Section 9705 of title 31, United States Code, is amended—
in subsection (a)(1)—
by striking subparagraph (G); and
by redesignating subparagraphs (H) through (J) as subparagraphs (G) through (I), respectively; and
in subsection (b)—
by striking paragraphs (2) and (4); and
by redesignating paragraphs (3) and (5) as paragraphs (2) and (3), respectively.
4. Department of Justice Assets Forfeiture Fund deposits
5. Structuring transactions to evade reporting requirement prohibited
Amendments to Title 31— Section 5324 of title 31, United States Code, is amended—
in subsection (a)—
in the matter preceding paragraph (1), by inserting “knowingly” after “Public Law 91–508”; and
in paragraph (3), by inserting “of funds not derived from a legitimate source” after “any transaction”;
in subsection (b), in the matter preceding paragraph (1), by inserting “knowingly” after “such section”; and
in subsection (c), in the matter preceding paragraph (1), by inserting “knowingly” after “section 5316”.
Probable cause hearing in connection with property seizures relating to certain monetary instruments transactions—
Amendment— Section 5317 of title 31, United States Code, is amended by adding at the end the following:
“(d) Probable cause hearing in connection with property seizures relating to certain monetary instruments transactions
“(1) In general—Not later than 14 days after the date on which notice is provided under paragraph (2)—
“(A) a court of competent jurisdiction shall conduct a hearing on any property seized or restrained under subsection (c)(2) with respect to an alleged violation of section 5324; and
“(B) any property described in subparagraph (A) shall be returned unless the court finds that there is probable cause to believe that there is a violation of section 5324 involving the property.
“(2) Notice—Each person from whom property is seized or restrained under subsection (c)(2) with respect to an alleged violation of section 5324 shall be notified of the right of the person to a hearing under paragraph (1).”
Applicability— The amendment made by paragraph (1) shall apply to property seized or restrained after the date of enactment of this Act.
6. Proportionality
Section 983(g)(2) of title 18, United States Code, is amended to read as follows:
“(2) In making this determination, the court shall consider such factors as—
“(A) the seriousness of the offense;
“(B) the extent of the nexus of the property to the offense;
“(C) the range of sentences available for the offense giving rise to forfeiture;
“(D) the fair market value of the property; and
“(E) the hardship to the property owner and dependents.”
7. Reporting requirements
Section 524(c)(6)(i) of title 28, United States Code, is amended by inserting “from each type of forfeiture, and specifically identifying which funds were obtained from including criminal forfeitures and which were obtained from civil forfeitures,” after “deposits”.