,i #aafth ,,congress #b;d ,session ,h4 ,r4 #hiig ,,in ,,the ,,house ,,of ,,representatives ,december #ag1 #bjbj ,mr4 ,amash introduced the following bill2 which was referred to the ,committee on the ,judiciary1 and in addition to the ,committee on ,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 eliminate civil asset forfeiture1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,civil ,asset ,forfeiture ,elimination ,act4 ,i ,federal ,forfeiture #aja4 ,conforming amendments to title #ah 7a7 ,general rules for civil forfeiture proceedings ,section #ihc of title #ah1 ,united ,states ,code1 is amended to read as follows3 #ihc4 ,prohibiting civil forfeiture ,no person shall be required1 under the laws of the ,united ,states1 to forfeit to the ,united ,states any property1 real or personal1 pursuant to a civil forfeiture proceeding1 including a nonjudicial civil forfeiture proceeding4 4 7b7 ,foreign forfeiture ,section #iha of title #ah1 ,united ,states ,code1 is amended to read as follows3 #iha4 ,forfeiture involving foreign countries 7a7 ,arrest or charge in a foreign country 7#a7 ,in general ,if any person is arrested or charged in a foreign country in connection with an offense that would give rise to the forfeiture of property in the ,united ,states under the ,controlled ,substances ,act1 the ,attorney ,general may apply to any ,federal judge or magistrate judge in the district in which the property is located for an ex parte order restraining the property subject to forfeiture for not more than #cj days1 except that the time may be extended for good cause shown at a hearing conducted in the manner provided in rule #dc7;e7 of the ,federal ,rules of ,civil ,procedure4 7#b7 ,application ,the application for the restraining order shall set forth the nature and circumstances of the foreign charges and the basis for belief that the person arrested or charged has property in the ,united ,states that would be subject to forfeiture1 and shall contain a statement that the restraining order is needed to preserve the availability of property for such time as is necessary to receive evidence from the foreign country or elsewhere in support of probable cause for the seizure of the property under this subsection4 7b7 ,transfer 7#a7 ,in general ,whenever property is criminally forfeited under this chapter1 the ,attorney ,general or the ,secretary of the ,treasury1 as the case may be1 may transfer the forfeited personal property or the proceeds of the sale of any forfeited personal or real property to any foreign country which participated directly or indirectly in the seizure or forfeiture of the property1 if such a transfer-- 7,a7 has been agreed to by the ,secretary of ,state2 7,b7 is authorized in an international agreement between the ,united ,states and the foreign country2 and 7,c7 is made to a country which1 if applicable1 has been certified under section #dij7;b7 of the ,foreign ,assistance ,act of #aifa4 ,a decision by the ,attorney ,general or the ,secretary of the ,treasury pursuant to this subsection shall not be subject to review4 ,the foreign country shall1 in the event of a transfer of property or proceeds of sale of property under this subsection1 bear all expenses incurred by the ,united ,states in the seizure1 maintenance1 inventory1 storage1 forfeiture1 and disposition of the property1 and all transfer costs4 ,the payment of all such expenses1 and the transfer of assets pursuant to this paragraph1 shall be upon such terms and conditions as the ,attorney ,general or the ,secretary of the ,treasury may1 in his discretion1 set4 7#b7 ,rule of construction ,the provisions of this section shall not be construed as limiting or superseding any other authority of the ,united ,states to provide assistance to a foreign country in obtaining property related to a crime committed in the foreign country1 including property which is sought as evidence of a crime committed in the foreign country4 7c7 ,definitions ,for purposes of this section-- 7#a7 the term ,attorney ,general means the ,attorney ,general or his delegate2 and 7#b7 the term ,secretary of the ,treasury means the ,secretary of the ,treasury or his delegate4 4 7c7 ,civil forfeiture of fungible property ,section #ihd of title #ah1 ,united ,states ,code1 is repealed4 7d7 ,civil forfeiture of real property ,section #ihe of title #ah1 ,united ,states ,code1 is repealed4 7e7 ,access to records ,section #ihf of title #ah1 ,united ,states ,code1 is amended to read as follows3 #ihf4 ,access to records in bank secrecy jurisdictions 7a7 ,in general ,in any ancillary proceeding in any criminal forfeiture case governed by section #dac7n7 of the ,controlled ,substances ,act 7#ba ,u4,s4,c4 #hec7n771 in which-- 7#a7 financial records located in a foreign country may be material to any claim or to the ability of the ,government to respond to such claim2 and 7#b7 it is within the capacity of the claimant to waive the claimant's rights under applicable financial secrecy laws1 or to obtain the records so that such records can be made available notwithstanding such secrecy laws1 the refusal of the claimant to provide the records in response to a discovery request or to take the action necessary otherwise to make the records available shall be grounds for judicial sanctions1 up to and including dismissal of the claim with prejudice4 7b7 ,privilege ,this section shall not affect the right of the claimant to refuse production on the basis of any privilege guaranteed by the ,constitution of the ,united ,states or any other provision of ,federal law4 4 7f7 ,anti-,terrorist forfeiture protection ,section #ihg of title #ah1 ,united ,states ,code1 is repealed4 7g7 ,conforming amendments ,the table of sections for chapter #df of title #ah1 ,united ,states ,code1 is amended-- 7#a7 by amending the item related to section #iha to read as follows3 #iha4 ,forfeiture involving foreign countries4 2 7#b7 by amending the item related to section #ihc to read as follows3 #ihc4 ,prohibiting civil forfeiture4 2 7#c7 by striking the items related to sections #ihd and #ihe2 7#d7 by amending the item related to section #ihf to read as follows3 #ihf4 ,access to records in bank secrecy jurisdictions4 2 and 7#e7 by striking the item related to section #ihg4 #ajb4 ,conforming amendments to the ,controlled ,substances ,act 7a7 ,criminal forfeitures ,section #dac of the ,controlled ,substances ,act 7#ba ,u4,s4,c4 #hec7 is amended-- 7#a7 in subsection 7i77#d71 by striking provisions of section #eaa7;e7 of this title 7#ba ,u4,s4,c4 #hha7;e77 and inserting provisions of section #eaa7;a72 and 7#b7 in subsection 7j7-- 7,a7 by amending the heading to read as follows3 ,applicability of forfeiture provisions2 7,b7 by striking ,except and inserting 7#a7 ,except2 7,c7 by striking section #eaa7;d7 of this title 7#ba ,u4,s4,c4 #hha7;d77 and inserting paragraph 7#b72 and 7,d7 by adding at the end the following3 7#b7 ,the provisions of law relating to the seizure1 summary and judicial forfeiture1 and condemnation of property for violation of the customs laws2 the disposition of such property or the proceeds from the sale thereof2 the remission or mitigation of such forfeitures2 and the compromise of claims shall apply to seizures and forfeitures incurred1 or alleged to have been incurred1 under any of the provisions of this title1 insofar as applicable and not inconsistent with the provisions hereof2 except that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws shall be performed with respect to seizures and forfeitures of property under this title by such officers1 agents1 or other persons as may be authorized or designated for that purpose by the ,attorney ,general1 except to the extent that such duties arise from seizures and forfeitures effected by any customs officer4 2 and 7#c7 in subsection 7n7-- 7,a7 in paragraph 7#b7-- 7i7 by striking pursuant to this section may1 within thirty days of the final publication of notice or his receipt of notice under paragraph 7#a71 whichever is earlier1 and inserting may2 and 7ii7 by striking ,the hearing shall be held before the court alone1 without a jury42 7,b7 in paragraph 7#e71 by striking the petitioner may testify and present evidence and witnesses on his own behalf1 and cross-examine witnesses who appear at the hearing4 and inserting the petitioner or counsel for the petitioner may testify and present evidence and witnesses1 and cross-examine witnesses who appear at the hearing4 ,upon any showing by the petitioner or counsel for the petitioner that he has legal interest in property which has been ordered forfeited to the ,united ,states1 there shall be established a rebuttable presumption that the order of forfeiture is invalid with respect to the petitioner's interest in property42 7,c7 in paragraph 7#f7-- 7i7 in the matter preceding paragraph 7,a71 by striking ,if1 after the hearing1 the court determines that the petitioner has established and inserting ,in the case that there has been established a rebuttable presumption that the order of forfeiture is invalid with respect to the petitioner's interest in property1 the ,government may overcome such presumption if the ,government establishes2 7ii7 by amending subparagraph 7,a7 to read as follows3 7,a7 the defendant has a legal right1 title1 or interest in the property1 and such right1 title1 or interest renders the order of forfeiture valid in whole or in part because the right1 title1 or interest was vested in the defendant rather than the petitioner or was superior to any right1 title1 or interest of the petitioner at the time of the commission of the acts which gave rise to the forfeiture of the property under this section2 or 2 7iii7 by amending subparagraph 7,b7 to read as follows3 7,b7 the petitioner is not a bona fide purchaser for value of the right1 title1 or interest in the property or1 at the time of purchase1 had cause to believe that the property was subject to forfeiture under this section4 2 and 7iv7 in the matter following subparagraph 7,b7-- 7,i7 by striking the court and inserting ,after the hearing1 the court2 and 7,,ii7 by inserting before the period at the end the following3 1 or1 if the forfeited property has already been disposed of by the ,government in accordance with law1 order the ,government to compensate the petitioner for an amount equal to the value of the petitioner's interest in the property at the time the property was forfeited2 7,d7 in paragraph 7#g71 by striking ,following the court's disposition of all petitions filed under this subsection1 or if no such petitions are filed following the expiration of the period provided in paragraph 7#b7 for the filing of such petitions and inserting #ahj days after final publication or receipt of notice under paragraph 7#a72 and 7,e7 by adding at the end the following3 7#h7 7,a7 ,if a person with standing to contest the forfeiture of property under this subsection 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 residence1 the court1 at the request of the person1 shall ensure that the person is represented by an attorney for the ,legal ,services ,corporation with respect to the claim4 7,b7 7i7 ,at appropriate times during a representation under subparagraph 7,a71 the ,legal ,services ,corporation shall submit a statement of reasonable attorney fees and costs to the court4 7ii7 ,the court shall enter a judgment in favor of the ,legal ,services ,corporation for reasonable attorney fees and costs submitted pursuant to clause 7i7 and treat such judgment as payable under section #bdfe of title #bh1 ,united ,states ,code1 regardless of the outcome of the case4 7,c7 ,the court shall set the compensation for representation under this subsection1 which shall be equivalent to that provided for court-appointed representation under section #cjjf;,a of this title4 4 7b7 ,forfeitures ,section #eaa of the ,controlled ,substances ,act 7#ba ,u4,s4,c4 #hha7 is amended-- 7#a7 by striking subsections 7a71 7b71 7c71 and 7d72 7#b7 by redesignating subsection 7e7 as subsection 7a72 7#c7 in subsection 7a77#a71 as redesignated1 by striking civilly or2 7#d7 by striking subsections 7f71 7g71 7h71 7i71 and 7j72 and 7#e7 by redesignating subsection 7l7 as subsection 7b74 ,,ii ,state ,forfeiture #bja4 ,findings2 ,sense of ,congress 7a7 ,findings ,congress finds the following3 7#a7 ,the ,constitution authorizes and obligates each branch of the ,federal ,government to protect individual rights4 7#b7 ,congress is specifically authorized by the ,fourteenth ,amendment to provide remedies for ,states' violations of individual rights secured by the ,constitution4 7#c7 ,the ,constitution secures the rights of individuals whom the ,government seeks to punish for violating its laws4 7#d7 ,the ,government's use of in rem proceedings to forfeit property to punish legal violations without affording property owners the rights of criminal defendants plainly violates their constitutionally secured rights4 7#e7 ,the ,government's use of a legal tool at the time of the founding does not preclude its being incompatible with constitutionally secured rights4 7#f7 ,the long-term failure of ,congress1 presidents1 and the judiciary to recognize the illegitimacy of the ,government's civil forfeiture practices does not divest them of the authority to do so4 7#g7 ,the ,government cannot lawfully jettison the rights of the accused for the sake of convenience and profit4 7#h7 ,the early use of civil forfeiture in the ,united ,states was limited to admiralty and revenue contexts1 in which the existence of a legal violation and the identity of the property used to effect it were often self-evident1 and the owner of the property to be seized was often unobtainable4 7#i7 ,although the limitations on early civil forfeiture practices do not prevent those practices from being constitutionally infirm1 they do materially distinguish the early practices from modern civil forfeiture4 7#aj7 ,the modern use of civil forfeiture by ,states is not limited to admiralty or revenue contexts1 its reach extends far beyond property used to commit an offense1 and it is used often to supplement1 rather than recover1 the ,government's revenues4 7#aa7 ,civil forfeiture statutes and precedents incorporate certain protections for property owners that1 although limited1 erode the nature of the proceedings as truly in rem and betray the punitive character of civil forfeiture4 7#ab7 ,the tortured status of civil forfeiture in current law1 in which the fiction of the property as the defendant is sustained1 yet the interests of property owners are1 to a limited extent1 nonetheless recognized1 is the inevitable result of grandfathering civil forfeiture into a constitutional system that otherwise secures the rights of the accused4 7b7 ,sense of ,congress ,it is the sense of ,congress that the ,constitution authorizes and obligates ,congress to prohibit the use of civil asset forfeiture by the ,states4 #bjb4 ,state civil asset forfeiture 7a7 ,in general ,property owned by a person may be forfeited to a ,state pursuant to a civil proceeding only after-- 7#a7 criminal conviction of such person for violation of ,state criminal law2 or 7#b7 a civil proceeding in which-- 7,a7 the ,state proves that the person who owns the property has committed the offense giving rise to forfeiture2 and 7,b7 the person who owns such property is entitled to all rights applicable to criminal defendants under the ,constitution1 including the right to be represented by counsel and the right to trial by jury4 7b7 ,federal cause of action ,a person aggrieved by a violation of subsection 7a7 may bring a civil action against the ,state in the appropriate ,federal district court for relief1 including return of forfeited property and enforcement of the procedures described in subsection 7a74 #bjc4 ,effective date ,this ,act and the amendments made by this ,act shall apply with respect to-- 7#a7 forfeiture proceedings occurring on or after the date of enactment of this ,act2 and 7#b7 forfeiture proceedings pending on or after such date4