,i #aafth ,,congress #ast ,session ,h4 ,r4 #bhce ,,in ,,the ,,house ,,of ,,representatives ,may #ag1 #bjai,mr4 ,sensenbrenner 7for himself1 ,mr4 ,collins of ,georgia1 ,mr4 ,scott of ,virginia1 ,mr4 ,katko1 ,mr4 ,cohen1 ,mr4 ,chabot1 ,mr4 ,david ,p4 ,roe of ,tennessee1 and ,ms4 ,norton7 introduced the following bill2 which was referred to the ,committee on the ,judiciary1 and in addition to the ,committees on ,financial ,services1 and ,energy and ,commerce1 for a period to be subsequently determined by the ,speaker1 in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned ,a ,,bill ,to amend title #ah1 ,united ,states ,code1 to reform certain forfeiture procedures1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,,due ,,process ,act of #bjai or the ,deterring ,undue ,enforcement by ,protecting ,rights ,of ,citizens from ,excessive ,searches and ,seizures ,act of #bjai4 #b4 ,general rules for civil forfeiture proceedings ,section #ihc7;a7 of title #ah1 ,united ,states ,code1 is amended-- 7#a7 in the subsection heading1 by striking complaint and inserting complaint2 initial hearing2 7#b7 in paragraph 7#a7-- 7,a7 in subparagraph 7,a7-- 7i7 in clause 7i71 by striking #fj days and inserting #cj days2 7ii7 by striking clause 7ii72 7iii7 in clause 7iii7-- 7,i7 in the matter preceding subclause 7,i7-- 7aa7 by striking #fj-;day and inserting #cj-;day2 and 7bb7 by striking does not file and all that follows through obtain and inserting obtains2 and 7,,ii7 in subclause 7,i71 by striking #fj days and inserting #cj days2 7iv7 in clause 7iv71 by striking #ij days and inserting #fj days2 7v7 in clause 7v71 by striking #fj days and inserting #cj days2 and 7vi7 by adding at the end the following3 7vi7 ,the notice under this subparagraph shall include an address1 which shall also be widely published1 at which the seizing agency can receive until #e p4m4 on any business day an interested party's claim contesting a seizure or forfeiture4 ,the interested party may send such a claim to that address by courier or overnight mail4 ,for the purpose of determining compliance with any deadlines in filing such a claim1 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 mail4 ,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 cases4 7vii7 ,the seizing agency shall make publicly available for each nonjudicial forfeiture1 with respect to which a request for mitigation or remission is made1 a statement of the agency's disposition of that request1 redacted if necessary1 including the reasons for the decision4 2 7,b7 in subparagraph 7,c7-- 7i7 by striking #fj and inserting #cj2 and 7ii7 by striking which period may and all that follows through as necessary12 7,c7 by adding at the end the following3 7,g7 ,any notice described in subparagraph 7,a7 that is provided to a party shall include notice of-- 7i7 the right of the party to request an initial hearing in accordance with paragraph 7#e72 7ii7 the right of the party to be represented by counsel at the initial hearing described in clause 7i7 and any civil forfeiture proceeding under a civil forfeiture statute2 and 7iii7 the right of the party to request that the party be represented by counsel at the initial hearing described in clause 7i7 and any civil forfeiture proceeding under a civil forfeiture statute if the party meets the requirements described in subsection 7b74 2 and 7,d7 by striking nonjudicial each place it appears2 7#c7 in paragraph 7#b77;,a71 by striking nonjudicial2 7#d7 in paragraph 7#b77;,b7-- 7,a7 by striking #ce days and inserting #fe days2 and 7,b7 by striking #cj days and inserting #fj days2 7#e7 so that subparagraph 7,a7 of paragraph 7#c7 reads as follows3 7,a7 ,not later than #ij days after a claim has been filed1 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 complaint1 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 parties4 2 and 7#f7 by adding at the end the following3 7#e7 7,a7 ,a party claiming property seized in a civil forfeiture proceeding under a civil forfeiture statute may request1 not later than #cj days after the date on which a notice described in paragraph 7#a77;,a7 is received or if notice is not received1 not later than #cj days after the date of final publication of notice of seizure1 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 commences4 7,b7 ,if a party makes a request under subparagraph 7,a71 a magistrate judge shall conduct an initial hearing not later than #aj days after the date on which the request is made4 7,c7 ,at the initial hearing-- 7i7 the magistrate judge shall-- 7,i7 inform the party in easily understood terms of-- 7aa7 the right of the party to be represented by counsel at the initial hearing and any civil forfeiture proceeding under a civil forfeiture statute2 7bb7 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 7b72 7cc7 sufficiently detailed facts regarding the seizure of the property if the property was seized pursuant to a warrant described in the matter preceding subparagraph 7,a7 of section #iha7;b77#b72 and 7dd7 the right of the party to challenge the lawfulness of the seizure of the property1 including on the grounds that at the time the property was seized-- 7,,aa7 if the property was seized pursuant to a warrant described in the matter preceding subparagraph 7,a7 of section #iha7;b77#b71 the warrant was not supported by probable cause2 or 7,,bb7 if the property was seized without a warrant described in subitem 7,,aa71 none of the exceptions described in subparagraphs 7,a7 and 7,b7 of section #iha7;b77#b7 apply to the seizure of the property2 and 7,,ii7 if the party meets the requirements described in subsection 7b71 authorize counsel to represent the party or insure that the party is represented by an attorney for the ,legal ,services ,corporation1 as applicable1 in accordance with that subsection2 and 7ii7 the burden of proof is on the ,government to establish that at the time the property was seized-- 7,i7 if the property was seized pursuant to a warrant described in the matter preceding subparagraph 7,a7 of section #iha7;b77#b71 the warrant was supported by probable cause2 or 7,,ii7 if the property was seized without a warrant described in subclause 7,i7-- 7aa7 sufficiently detailed facts regarding the seizure of the property2 and 7bb7 an exception described in subparagraphs 7,a7 and 7,b7 of section #iha7;b77#b7 applies to the seizure of the property4 7,d7 ,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-- 7i7 the requirements described in subparagraphs 7,a7 through 7,e7 of subsection 7f77#a7 are met2 and 7ii7 the ,government did not meet the burden of proof described in subparagraph 7,c77ii74 4 #c4 ,representation ,section #ihc7;b7 of title #ah1 ,united ,states ,code1 is amended-- 7#a7 in paragraph 7#a77;,a71 by striking judicial2 and 7#b7 in paragraph 7#b77;,a71 by striking judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel1 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 counsel4 #d4 ,burden of proof ,section #ihc7;c7 of title #ah1 ,united ,states ,code1 is amended-- 7#a7 in paragraph 7#a71 by striking a preponderance of the evidence and inserting clear and convincing evidence2 and 7#b7 in paragraph 7#b71 by striking a preponderance of the evidence and inserting clear and convincing evidence4 #e4 ,right to request hearing on pretrial restraint of property to retain counsel of choice 7a7 ,title #ah ,section #aifc7;d7 of title #ah1 ,united ,states ,code1 is amended-- 7#a7 by striking paragraph 7#a7 and inserting the following3 7#a7 7,a7 ,upon application of the ,united ,states1 the court may enter a restraining order or injunction1 require the execution of a satisfactory performance bond1 or take any other action to preserve the availability of property described in subsection 7a7 for forfeiture under this section-- 7i7 upon the filing of an indictment or information charging a violation of section #aifb and alleging that the property with respect to which the order is sought would1 in the event of conviction1 be subject to forfeiture under this section2 or 7ii7 prior to the filing of such an indictment or information1 if1 after notice to persons appearing to have an interest in the property and opportunity for a hearing1 the court determines that-- 7,i7 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 destroyed1 removed from the jurisdiction of the court1 or otherwise made unavailable for forfeiture2 and 7,,ii7 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 entered4 7,b7 7i7 ,upon motion of a defendant charged with a violation of section #aifb for which criminal forfeiture is ordered under this section and against whom the order is entered1 supported by an affidavit1 the court shall hold a hearing to determine whether to modify or rescind1 in whole or in part1 an order entered under subparagraph 7,a7 to allow the defendant to use the property subject to the order to retain counsel of choice4 7ii7 ,at the hearing1 the court shall consider-- 7,i7 the weight of the evidence against the defendant with respect to the violation of section #aifb for which criminal forfeiture is ordered under this section2 7,,ii7 the weight of the evidence with respect to whether the property will be subject to forfeiture under this section2 7,,iii7 the history and characteristics of the defendant2 and 7,,iv7 the nature and circumstances of the case4 7,c7 ,an order entered pursuant to subparagraph 7,a77ii7 shall be effective for not more than #ij days1 unless-- 7i7 extended by the court for good cause shown2 or 7ii7 an indictment or information described in subparagraph 7,a77i7 has been filed4 2 and 7#b7 in paragraph 7#b71 by inserting that the defendant committed a violation of section #aifb for which criminal forfeiture may be ordered under this section and probable cause to believe after believe4 7b7 ,controlled ,substances ,act ,section #dac7;e7 of the ,controlled ,substances ,act 7#ba ,u4,s4,c4 #hec7;e77 is amended-- 7#a7 by striking paragraph 7#a7 and inserting the following3 7#a7 7,a7 ,upon application of the ,united ,states1 the court may enter a restraining order or injunction1 require the execution of a satisfactory performance bond1 or take any other action to preserve the availability of property described in subsection 7a7 for forfeiture under this section-- 7i7 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 would1 in the event of conviction1 be subject to forfeiture under this section2 or 7ii7 prior to the filing of such an indictment or information1 if1 after notice to persons appearing to have an interest in the property and opportunity for a hearing1 the court determines that-- 7,i7 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 destroyed1 removed from the jurisdiction of the court1 or otherwise made unavailable for forfeiture2 and 7,,ii7 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 entered4 7,b7 7i7 ,upon motion of a defendant charged with a violation of section #aifb for which criminal forfeiture is ordered under this section and against whom the order is entered1 supported by an affidavit sufficient to demonstrate a genuine need for the defendant to use the property subject to an order entered under subparagraph 7,a7 to retain counsel of choice1 the court shall hold a hearing to determine whether to modify or rescind1 in whole or in part1 the order to allow the defendant to use the property to retain counsel of choice4 7ii7 ,at the hearing1 the court shall consider-- 7,i7 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 section2 7,,ii7 the weight of the evidence with respect to whether the property will be subject to forfeiture under this section2 7,,iii7 the history and characteristics of the defendant2 and 7,,iv7 the nature and circumstances of the case4 7,c7 ,an order entered pursuant to subparagraph 7,a77ii7 shall be effective for not more than #ij days1 unless-- 7i7 extended by the court for good cause shown2 or 7ii7 an indictment or information described in subparagraph 7,a77i7 has been filed4 2 and 7#b7 in paragraph 7#b71 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 believe4 #f4 ,recovery of attorneys fees ,section #bdfe7;b7 of title #bh1 ,united ,states ,code1 is amended-- 7#a7 in paragraph 7#a71 by striking substantially2 and 7#b7 by adding at the end the following3 7#c7 ,if the claim is resolved by a settlement in which the claimant prevails1 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 settlement4 ,the payment of attorneys fees under this subsection may not be waived as a part of any settlement with the claimant4 ,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 claimant4 7#d7 ,for the purposes of this subsection1 a claimant prevails if the claimant recovers more than #ej percent1 by value1 of the money or other property that is claimed4 4 #g4 ,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 #ihc7;i7 of title #ah1 ,united ,states ,code1 to ensure those forfeitures are constitutionally sound and consistent with the letter and spirit of the law4 ,the ,department of ,justice ,inspector ,general shall report the results of the audit to the ,attorney ,general and to ,congress4 ,such report shall also include the fiscal status of the ,asset ,forfeiture ,fund and ,treasury ,forfeiture ,fund1 including any projected growth or shrinking of the ,funds in future years1 and the viability of the ,funds4 #h4 ,publicly available databases 7a7 ,quarterly updated database on details of forfeitures ,the ,attorney ,general shall establish and maintain1 with updates on a quarterly basis1 a publicly available database that describes with respect to seizures for all ,federal civil forfeiture containing the following3 7#a7 ,for each such seizure3 7,a7 ,unit of an agency responsible for the seizure1 and the location1 including at a minimum the ,state1 city1 and judicial district where and date when the seizure took place4 7,b7 ,the type of initial seizure 7such as during a stop based on probable cause1 or pursuant to a ,federal warrant74 7,c7 ,the nature and value of the seized property4 7,d7 ,in what manner forfeiture of seized property was conducted 7whether by a civil or administrative proceeding1 through settlement1 or otherwise74 7,e7 ,whether a forfeiture of the seized property was of the entire property1 or only a part1 and if partial1 the proportion of the whole that was forfeited4 7,f7 ,the disposition of the seized property1 the date of forfeiture1 if any1 and the date the disposition took place4 7,g7 ,what type of criminal activity any forfeited property relates to4 7,h7 ,whether any forfeited money was returned to the victim of a crime in connection with which the forfeiture occurred1 and the amount returned4 7,i7 ,the status of any concurrent or related criminal proceeding against the owner of the property1 any pending case under title #aa in which the owner of record of the property is the debtor1 and any pending civil case in which a receiver has been ordered to take control of the property4 7,j7 ,whether the forfeiture was contested4 7,k7 ,whether the innocent owner made a claim on the property4 7,l7 ,the total expenses associated with the forfeiture4 7,m7 ,the total net proceeds of the forfeiture4 7,n7 ,demographic information on the person or persons subject to the seizure4 7#b7 ,a statistical breakdown for each agency of the cases of remission and mitigation1 including-- 7,a7 the numbers of requests for remission and mitigation that were-- 7i7 fully granted2 7ii7 partially granted2 or 7iii7 returned2 and 7,b7 with respect to requests that were partially granted-- 7i7 the average percentage of the value of seized property that was returned to the owner2 and 7ii7 what percentage of requests resulted in returned property in each of the following categories3 7,i7 ,more than zero but less than #be percent of the property was returned4 7,,ii7 #be percent or more of the property was returned1 but less than #ej percent4 7,,iii7 #ej percent or more of the property was returned1 but less than #ge percent4 7,,iv7 #ge percent or more of the property was returned1 but less than #ajj percent4 7#c7 ,any money given from the ,asset ,forfeiture ,fund or ,treasury ,forfeiture ,fund to ,state or local law enforcement for ,joint ,law ,enforcement ,operations 7commonly referred to as ,,jleo7 funding1 or for any other purpose1 and the name of the ,state or local entity receiving that funding4 7b7 ,real-,time database ,to assist persons whose property is seized 7#a7 ,establishment ,the ,attorney ,general shall establish and maintain1 with updates on a real-time basis1 a database1 organized by ,state and county1 with respect to each ,federal seizure of real and personal property for ,federal civil forfeiture under statutes described in section #ihc7;i7 of title #ah1 ,united ,states ,code4 7#b7 ,design ,the ,attorney ,general shall design the database to allow any interested party1 including any owner1 creditor1 or lienholder1 to determine whether that party has an interest in any such property and to inform that party1 and the general public1 on the specifics of how to contest each seizure before the forfeiture4 7c7 ,heads of agencies ,to submit information for databases ,not less frequently than quarterly1 on a schedule determined by the ,attorney ,general1 the head of each ,federal agency shall submit to the ,attorney ,general a report that provides1 in such form as the ,attorney ,general may prescribe1 the information the ,attorney ,general is required to include in the databases established under this section4 #i4 ,standard of proof relating to possibly innocent owners 7a7 ,burden of proof ,paragraph 7#c7 of section #ihc7;c7 of title #ah1 ,united ,states ,code1 is amended to read as follows3 7#c7 if the ,government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense1 or was involved in the commission of a criminal offense1 the ,government shall establish by clear and convincing evidence that-- 7,a7 there was a substantial connection between the property and the offense2 and 7,b7 the owner of any interest in the seized property-- 7i7 intentionally used the property in connection with the offense2 7ii7 knowingly consented to the use of the property by another in connection with the offense2 or 7iii7 knew that the property was being used in connection with the offense4 4 7b7 ,innocent owner defense 7#a7 ,section #ihc7;d77#a7 ,paragraph 7#a7 of section #ihc7;d7 of title #ah1 ,united ,states ,code1 is amended to read as follows3 7#a7 ,an innocent owner's interest in property shall not be forfeited under any civil forfeiture statute4 ,the ,government shall have the burden of proving that the claimant is not an innocent owner by clear and convincing evidence4 4 7#b7 ,section #ihc7;d77#b77;,a77i7 ,paragraph 7#b77;,a77i7 of section #ihc7;d7 of title #ah1 ,united ,states ,code1 is amended by inserting or consent to after did not know of4 #aj4 ,proportionality ,section #ihc7;g7 of title #ah1 ,united ,states ,code1 is amended-- 7#a7 in paragraph 7#a71 by inserting or otherwise disproportional to the gravity of the offense before the period at the end2 and 7#b7 by amending paragraph 7#b7 to read as follows3 7#b7 ,in making this determination1 the court shall consider1 in addition to the analysis as to whether the forfeiture is constitutionally excessive1 the value of the property1 the seriousness of the offense1 the level of the claimant's culpability in the offense giving rise to forfeiture1 the claimant's prior record1 the claimant's financial condition1 and whether the forfeiture statute is intended to address the type of conduct alleged as the basis for forfeiture4 4 #aa4 ,search and forfeiture of monetary instruments ,section #ecag7;c7 of title #ca1 ,united ,states ,code1 is amended by striking paragraph 7#b7 and inserting the following3 7#b7 ,civil forfeiture 7,a7 ,in general ,any property involved in a violation of section #ecac or #ecaf1 or any conspiracy to commit any such violation1 and any property traceable to any such violation or conspiracy1 may be seized and forfeited to the ,united ,states in accordance with the procedures governing civil forfeitures in money laundering cases pursuant to section #iha7;a77#a77;,a7 of title #ah4 7,b7 ,structuring ,any property involved in a violation of section #ecbd1 or any conspiracy to commit any such violation1 and any property traceable to any such violation or conspiracy1 may be seized and forfeited to the ,united ,states in accordance with the procedures governing civil forfeitures in money laundering cases pursuant to section #iha7;a77#a77;,a7 of title #ah 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 laws4 4 #ab4 ,the ,,heart ,act 7a7 ,amendment to ,section #ihc7;a7 of title #ah ,section #ihc7;a77#a7 of title #ah1 ,united ,states ,code1 as amended by this ,act1 is amended-- 7#a7 in subparagraph 7,b71 by inserting and with respect to an animal seized under section #bf of the ,animal ,welfare ,act or section #aiee of this title1 that the delay is warranted in light of the criteria in subparagraph 7,g7 after if the official determines that the conditions in subparagraph 7,d7 are present12 7#b7 in subparagraph 7,c71 by inserting and with respect to an animal seized under section #bf of the ,animal ,welfare ,act or section #aiee of this title1 that the delay is warranted in light of the criteria in subparagraph 7,g7 after that the conditions in subparagraph 7,d7 are present12 and 7#c7 by adding after subparagraph 7,f7 the following3 7,g7 ,with respect to animals seized under section #bf of the ,animal ,welfare ,act or section #aiee of this title1 the period for sending notice under this paragraph may be extended only after consideration of the following3 7i7 ,the cost to the government of caring and providing shelter for the animal4 7ii7 ,the psychological and physical health of the animal and the effect the delay will have on its rehabilitation4 7iii7 ,any increased risk that the delay could necessitate the euthanasia of the animal4 4 7b7 ,amendment to section #ebd of title #bh ,section #ebd7;c77#a7 of title #bh1 ,united ,states ,code1 is amended by adding after subparagraph 7,i7 the following3 7,j7 payment for the transportation1 shelter1 care1 veterinary services1 and where appropriate1 humane euthanasia of an animal seized under section #bf of the ,animal ,welfare ,act or under section #aiee of title #ah4 4 7c7 ,amendment to ,section #ihc7;h7 of title #ah ,section #ihc7;h7 of title #ah1 ,united ,states ,code1 is amended by adding at the end1 the following3 7#d7 ,in any civil forfeiture proceeding in which the ,government prevails1 the court shall require the claimant to reimburse the ,united ,states for any actual and reasonable costs to the ,government for the transportation1 shelter1 care1 veterinary services1 or where appropriate1 humane euthanasia of an animal that was the subject of the proceeding1 unless the court determines that the factors in subsection 7g7 warrant reduction or elimination of the reimbursement4 ,the reimbursement shall be credited to the agency or fund that was used to pay the costs being reimbursed4 4 #ac4 ,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 date4 ,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 ,act4