Fighting Title 31 Currency Seizures issued by CBP

This article is going to cover a specific subsection of Title 31 currency seizures. These seizures are typically initiated by U.S. Customs and Border Protection (CBP) to travelers who fail to declare currency they are traveling with in excess of $10,000. Additionally, CBP may seize currency when travelers conspire to defeat reporting requirements by structuring the carrying of funds to fall below the reporting threshold (for example, a group of five individuals carrying money for one person and each person holds $9,000 instead of the single owner of the funds carrying $45,000 total).

For those unfamiliar, CBP is a federal agency within the Department of Homeland Security that was formerly the U.S. Customs Service. CBP is charged with securing the country’s borders and preventing dangerous items and individuals from entering the country. CBP enforces a broad range of laws from agricultural laws, to product safety laws, foreign asset control laws, and classic trade laws and that involve collecting duty on foreign imported merchandise.

Title 31 currency-related violations

Title 31 of the United States Code includes various monetary, banking and financial rules. Covering the entirety of Title 31 far exceeds the scope of this article. Instead, we will focus on the two most common Title 31 violations enforced by CBP. Those violations include: 1) failing to report currency when you travel internationally (entering or leaving the United States) and are carrying more than $10,000, and; 2) structuring, wherein you purposefully structure the amount of money individual(s) are carrying to avoid currency reporting requirements.

31 U.S. Code § 5316 – Reports on exporting and importing monetary instruments

This section of Title 31 covers the first scenario discussed above, wherein an international traveler, when leaving or entering the Unite States, fails to declare that they are carrying currency in excess of $10,000 U.S. Dollars. The core of section 5316 follows:

(a)Except as provided in subsection (c) of this section, a person or an agent or bailee of the person shall file a report under subsection (b) of this section when the person, agent, or bailee knowingly—

(1)transports, is about to transport, or has transported, monetary instruments of more than $10,000 at one time—

(A) from a place in the United States to or through a place outside the United States; or
(B) to a place in the United States from or through a place outside the United States;

31 U.S. Code § 5316(a)

The purpose of this statute is to prevent the transport of large amounts of currency without informing the government. It is important to note that carrying more than $10,000 in currency is not illegal. However, it is a violation of law if you fail to report when you are carrying large amounts of currency (> $10,000) internationally. The government has established these reporting requirements for a number of reasons, the most prominent being that it prevents money laundering. Moreover, it is common for illicit activity, like the drug trade, to be transacted in currency outside of the banking system. This reporting requirement attempts to regulate large currency transfers and prevent them from going undetected outside of regular banking institutions.

 

31 U.S. Code § 5324 – Structuring transactions to evade reporting requirement prohibited

This section of Title 31 relates to structuring banking transactions or the carrying of currency across U.S. border’s to avoid reporting requirements. The relevant part of section 5324, as it relates to section 5316, is reproduced below:

(c)International Monetary Instrument Transactions.—No person shall, for the purpose of evading the reporting requirements of section 5316—

(1) fail to file a report required by section 5316, or cause or attempt to cause a person to fail to file such a report;

(2) file or cause or attempt to cause a person to file a report required under section 5316 that contains a material omission or misstatement of fact; or

(3) structure or assist in structuring, or attempt to structure or assist in structuring, any importation or exportation of monetary instruments.

31 U.S. Code § 5324(c)

This section tries to minimize the circumstances in which parties may evade the reporting requirements of 31 U.S. Code § 5316(a). As mentioned before, a classic example is where multiple people carry a single entity’s currency so that none of them exceed the reporting requirement. Were a group of individuals to do this, they should expect that all of the group’s currency will be seized for violating 31 U.S. Code § 5324.

A less sophisticated example of structuring would be where an non-married couple transit through customs separately but the boyfriend is actually carrying $9,000 of the girlfriend’s money and she is carrying $9,000 of her own money as well. Technically neither of them trigger the reporting requirement, however, the fact that the money is the girlfriends and the fact that they distributed the currency to avoid the $10,000 reporting requirement suggests the money could be seized for structuring in violation of 31 U.S. Code § 5324(c).

What happens once my money is seized for a Title 31 violation?

So, what happens if CBP believes you have violated one of the above listed laws? Most likely they will ask you questions about why you were carrying the money, who you were carrying it for, where you got it, and how you planned to spend it. How you answer those questions could be critical to the determination CBP makes about the legality of your actions and whether you are entitled to any leniency later on if they pursue seizure and forfeiture.

If CBP ultimately determines that a violation has occurred, they will initiate a seizure action. Usually this will involve counting the total amount of currency then issuing a “Custody Receipt for Detained or Seized Property” (CBP Form 6051A). This form will include an accounting of the money seized and a chain of custody for the officers to complete. It is important that you provide accurate contact information to the officers because they will send an official seizure notice to the address you provide them that day. Sometimes the officers will not seize all the money you are transporting and will return some back to you for “humanitarian” reasons. The purpose of this money is to allow you to cover small costs and not leave you destitute if you were planning to fund your travels solely with the cash you were carrying. Usually the humanitarian release is a small percentage of the total money seized, so for a $50,000 currency seizure they may release $500 or $1,000 to the traveler for humanitarian reasons.

After you are released and the money is seized, it will be transferred to CBP’s Fines, Penalties & Forfeitures Office for further processing. This is the office that will issue the official seizure notice which is usually titled “NOTICE OF SEIZURE AND INFORMATION TO CLAIMANTS CAFRA FORM.” CAFRA, in this context, stands for the Civil Asset Forfeiture Reform Act of 2000 which governs the procedure for processing certain seizure and forfeiture actions. It is important that you respond promptly to the seizure notice. Generally, you only have 30 days to file a petition for relief in response to a seizure. See 19 C.F.R. § 171.2(b). The deadline for requesting judicial forfeiture is usually 35-days after mailing of the notice. 18 U.S. Code § 983(a)(2)(B). Every agency and office may vary these deadlines slightly, but the general guidance is that you need to act promptly. Sitting on a seizure notice could lead to you losing the right to challenge the forfeiture of the property, which would result in a total loss of all seized funds.

What is forfeiture?

Seizure is the taking of funds by the government when there is a cognizable theory (probable cause) as to how those funds are connected to some illegal activity. Forfeiture is the next step in the process after seizure, wherein the government initiates the formal process of taking legal title to those funds. This is an important distinction: seized funds, while they may be held by the government they are not legally owned by the government, but once a forfeiture action is completed successfully, title to the forfeited funds formally passes to the federal government. In short, forfeiture transfers title of property from an individual to the government.

31 U.S. Code § 5317 – Search and forfeiture of monetary instruments

The laws we discussed above explain what activity is prohibited and what constitutes a violation of law. This section specifies the actions the government can take to prevent such violations, and what it can do in response to discovered violations. The relevant section follows:

(b)Searches at Border.—
For purposes of ensuring compliance with the requirements of section 5316, a customs officer may stop and search, at the border and without a search warrant, any vehicle, vessel, aircraft, or other conveyance, any envelope or other container, and any person entering or departing from the United States.
(c) Forfeiture.—
(1) Criminal forfeiture.—
(A)In general.—
The court in imposing sentence for any violation of section 5313, 5316, or 5324 of this title, or any conspiracy to commit such violation, shall order the defendant to forfeit all property, real or personal, involved in the offense and any property traceable thereto.
(B)Procedure.—
Forfeitures under this paragraph shall be governed by the procedures established in section 413 of the Controlled Substances Act.
(2)Civil forfeiture.—
Any property involved in a violation of section 5313, 5316, or 5324 of this title, 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, United States Code.

31 U.S. Code § 5317 (emphasis added).

As you can see, this law gives CBP the right to search any person entering or departing from the United States. It also allows for the criminal or civil forfeiture of any assets that have been found to violate sections 5316, or 5324.

Conclusion

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

Related posts:

Huge change in federal policy related to asset seizure

Employment law is my main focus, but I have quite a bit of experience related to federal forfeiture law, specifically, C.A.F.R.A.  I like to keep up on the topic. Asset forfeiture is an interesting niche that has been the subject of abuse and is not well understand by many practitioners.

Today marks a fairly large shift in policy, and a tacit recognition that the federal forfeiture process was previously being misused.

Attorney General Eric Holder announced that Federal Agencies will no longer adopt assets seized by local law enforcement. This closes the door on what was a fairly common practice of local law enforcement agencies seizing assets then turning them over to their federal counterparts for forfeiture under laws that were much friendlier than the state laws that law enforcement would otherwise have been forced to comply with.

Click to read the press release from AG Holder.

I saved a copy of the formal order issued by the AG, you can download a copy here.

The policy does not prevent all adoptive forfeitures, and still allows for forfeitures of “public safety concerns, including firearms, ammunition, explosives and property associated with child pornography.”

Nonetheless, this ends the practice of local law enforcement seizing currency and vehicles under questionable circumstances, transferring the property to the feds, and then reaping the rewards of forfeiture under generous asset sharing arrangements.

Now, state and local officials will be accountable to their own state laws related to asset seizure and forfeiture. Many of which, are much more rigorous and demanding than their federal counterparts.

This could lead to a increase in the amount of forfeiture cases litigated on the state level, or it could lead to a decrease in the amount of seizures done by law enforcement, if they decide it just isn’t worth the effort anymore. Only time will tell…

Related posts:

Civil Forfeiture, explained in an entertaining way

I previously talked about the potential for abuse of the civil forfeiture process.  I tried to create a plausible, yet scary, scenario to show just how easy it is for your property to be taken, and how hard it can be to get it back.  This new video from John Oliver’s show, Last Week Tonight, had a great segment about civil forfeiture:

Essentially, the thrust of the segment, which is not without basis, is that civil forfeiture has become a tool of policing for profit.

While the laws are not favorable to those who have had their property seized, you are not without recourse. Even if you do not have the money to hire an attorney, in some instances an attorney will take your case on a contingent fee basis, where they will only collect a fee from you if they help you get your property back.

Related posts:

How you could lose your assets to Civil Forfeiture

Civil Asset Forfeiture Explained

Civil forfeiture… Many people have no idea what that phrase means.  So, lets break it down.

Civil forfeiture defined

First, the civil part.  Generally there are two broad types of court cases in the U.S., civil and criminal.  Criminal is when the state is prosecuting a person for committing a crime. When you watch Law & Order, those are criminal cases.  The burden of proof for criminal cases is beyond a reasonable doubt–quite a high burden.  Civil cases, by contrast are typically cases where one party is suing another.  Classic examples include, you suing someone when they rear-end you or a business suing another business for failing to meet the terms of a contact. The burden in civil cases is preponderant evidence, which in simple terms means was it more likely than not, or in numerical representation, its more than 50% likely that one side has proven their case.  Preponderant evidence is a much lower burden when compared to proving something beyond a reasonable doubt.

Forfeiture is when the state takes property from an individual, generally due to some sort of wrongdoing that is related to, or perpetrated with use of, the subject property.

Historically, law enforcement agencies would forfeit property subject to a criminal prosecution.  More recently, law enforcement agencies on the federal and state-level, across the country, have started pursuing civil forfeiture independently.

So, right now, you’re saying, “I get it, what’s so bad about civil forfeiture?”  Well, it all comes down to the burden of proof.

Lets work through a quick illustration.

You’re driving back from the dock where you just sold your boat for $12,000 dollars.  You’re happy you got what you were asking and in your after-sale exuberance you happen to run a light that is just turning from red to yellow.  Local law enforcement pulls you over.  They ask to search your car, you oblige; you’ve got nothing to hide. In your center console they find an envelope with $12,000 in it.  You’re driving a big black SUV because, well, it was good for towing the boat.  You happen to have two cell phones because you are self-employed.  Finally, in your center console there are some dried ground up green leaves from when you were bringing ferns back from Home Depot months ago.  Near them are some small ziplock bags you used for fishing gear and figure would be worth holding on to since the new boat owner doesn’t fish and didn’t want them.  OK whats the point?

But guess what?  Your $12,000?  Seized.  Your nice big black SUV?  Seized.  That means you cant use either until the government gives them back to you.  What for?  Well, you’re a suspected drug dealer…

The police report reads something like this ‘green leafy material consistent with marijuana found in center console near plastic baggies which is consistent with drug dealers who package drugs for individual sales in small quantities.  $12,000 cash found with questionable source, again consistent with drug dealer. Individual had two cell phones, consistent with drug dealer.’

You then spend months trying to get your car back.  No criminal case follows but you don’t have a car, you can’t work.  You are draining your savings and that $12,000 from your boat sale would really come in hadny, but guess what that is still subject to forfeiture to.  You never get prosecuted, the case is too weak, but the state proceeds with civil forfeiture.

The Burden of Proof

This is where the burden really matters.  Civil forfeiture, they only have to show that its more likely than not that you were using your SUV to further your drug dealing enterprise and that the $12,000 was proceeds or intended to be used to further your drug kingpin.  With a criminal case and forfeiture they have to prove all that beyond a reasonable doubt. Right now you should be seeing a light bulb.  Law enforcement sure has.  They know criminal cases are tough to win, but with civil forfeiture they can win more cases and bring in the money and resources to keep their operations going.

This scenario sounds pretty crazy right?  Well, sadly, its not.  Civil forfeiture is a huge money-maker for local law enforcement agencies. This is well documented.  It can cause great harm to families and individuals.

 

Related posts:

18 USC 981 (CAFRA)

§981. Civil forfeiture

(a)(1) The following property is subject to forfeiture to the United States:

(A) Any property, real or personal, involved in a transaction or attempted transaction in violation of section 1956, 1957 or 1960 of this title, or any property traceable to such property.

(B) Any property, real or personal, within the jurisdiction of the United States, constituting, derived from, or traceable to, any proceeds obtained directly or indirectly from an offense against a foreign nation, or any property used to facilitate such an offense, if the offense—

(i) involves trafficking in nuclear, chemical, biological, or radiological weapons technology or material, or the manufacture, importation, sale, or distribution of a controlled substance (as that term is defined for purposes of the Controlled Substances Act), or any other conduct described in section 1956(c)(7)(B);

(ii) would be punishable within the jurisdiction of the foreign nation by death or imprisonment for a term exceeding 1 year; and

(iii) would be punishable under the laws of the United States by imprisonment for a term exceeding 1 year, if the act or activity constituting the offense had occurred within the jurisdiction of the United States.

 

(C) Any property, real or personal, which constitutes or is derived from proceeds traceable to a violation of section 215, 471, 472, 473, 474, 476, 477, 478, 479, 480, 481, 485, 486, 487, 488, 501, 502, 510, 542, 545, 656, 657, 842, 844, 1005, 1006, 1007, 1014, 1028, 1029, 1030, 1032, or 1344 of this title or any offense constituting “specified unlawful activity” (as defined in section 1956(c)(7) of this title), or a conspiracy to commit such offense.

(D) Any property, real or personal, which represents or is traceable to the gross receipts obtained, directly or indirectly, from a violation of—

(i) section 666(a)(1) (relating to Federal program fraud);

(ii) section 1001 (relating to fraud and false statements);

(iii) section 1031 (relating to major fraud against the United States);

(iv) section 1032 (relating to concealment of assets from conservator or receiver of insured financial institution);

(v) section 1341 (relating to mail fraud); or

(vi) section 1343 (relating to wire fraud),

 

if such violation relates to the sale of assets acquired or held by the the 1 Federal Deposit Insurance Corporation, as conservator or receiver for a financial institution, or any other conservator for a financial institution appointed by the Office of the Comptroller of the Currency or the National Credit Union Administration, as conservator or liquidating agent for a financial institution.

(E) With respect to an offense listed in subsection (a)(1)(D) committed for the purpose of executing or attempting to execute any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent statements, pretenses, representations or promises, the gross receipts of such an offense shall include all property, real or personal, tangible or intangible, which thereby is obtained, directly or indirectly.

(F) Any property, real or personal, which represents or is traceable to the gross proceeds obtained, directly or indirectly, from a violation of—

(i) section 511 (altering or removing motor vehicle identification numbers);

(ii) section 553 (importing or exporting stolen motor vehicles);

(iii) section 2119 (armed robbery of automobiles);

(iv) section 2312 (transporting stolen motor vehicles in interstate commerce); or

(v) section 2313 (possessing or selling a stolen motor vehicle that has moved in interstate commerce).

 

(G) All assets, foreign or domestic—

(i) of any individual, entity, or organization engaged in planning or perpetrating any any 1Federal crime of terrorism (as defined in section 2332b(g)(5)) against the United States, citizens or residents of the United States, or their property, and all assets, foreign or domestic, affording any person a source of influence over any such entity or organization;

(ii) acquired or maintained by any person with the intent and for the purpose of supporting, planning, conducting, or concealing any Federal crime of terrorism (as defined in section 2332b(g)(5) 2 against the United States, citizens or residents of the United States, or their property;

(iii) derived from, involved in, or used or intended to be used to commit any Federal crime of terrorism (as defined in section 2332b(g)(5)) against the United States, citizens or residents of the United States, or their property; or

(iv) of any individual, entity, or organization engaged in planning or perpetrating any act of international terrorism (as defined in section 2331) against any international organization (as defined in section 209 of the State Department Basic Authorities Act of 1956 (22 U.S.C. 4309(b)) or against any foreign Government.3 Where the property sought for forfeiture is located beyond the territorial boundaries of the United States, an act in furtherance of such planning or perpetration must have occurred within the jurisdiction of the United States.

 

(H) Any property, real or personal, involved in a violation or attempted violation, or which constitutes or is derived from proceeds traceable to a violation, of section 2339C of this title.

 

(2) For purposes of paragraph (1), the term “proceeds” is defined as follows:

(A) In cases involving illegal goods, illegal services, unlawful activities, and telemarketing and health care fraud schemes, the term “proceeds” means property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to forfeiture, and any property traceable thereto, and is not limited to the net gain or profit realized from the offense.

(B) In cases involving lawful goods or lawful services that are sold or provided in an illegal manner, the term “proceeds” means the amount of money acquired through the illegal transactions resulting in the forfeiture, less the direct costs incurred in providing the goods or services. The claimant shall have the burden of proof with respect to the issue of direct costs. The direct costs shall not include any part of the overhead expenses of the entity providing the goods or services, or any part of the income taxes paid by the entity.

(C) In cases involving fraud in the process of obtaining a loan or extension of credit, the court shall allow the claimant a deduction from the forfeiture to the extent that the loan was repaid, or the debt was satisfied, without any financial loss to the victim.

 

(b)(1) Except as provided in section 985, any property subject to forfeiture to the United States under subsection (a) may be seized by the Attorney General and, in the case of property involved in a violation investigated by the Secretary of the Treasury or the United States Postal Service, the property may also be seized by the Secretary of the Treasury or the Postal Service, respectively.

(2) Seizures pursuant to this section shall be made pursuant to a warrant obtained in the same manner as provided for a search warrant under the Federal Rules of Criminal Procedure, except that a seizure may be made without a warrant if—

(A) a complaint for forfeiture has been filed in the United States district court and the court issued an arrest warrant in rem pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims;

(B) there is probable cause to believe that the property is subject to forfeiture and—

(i) the seizure is made pursuant to a lawful arrest or search; or

(ii) another exception to the Fourth Amendment warrant requirement would apply; or

 

(C) the property was lawfully seized by a State or local law enforcement agency and transferred to a Federal agency.

 

(3) Notwithstanding the provisions of rule 41(a) of the Federal Rules of Criminal Procedure, a seizure warrant may be issued pursuant to this subsection by a judicial officer in any district in which a forfeiture action against the property may be filed under section 1355(b) of title 28, and may be executed in any district in which the property is found, or transmitted to the central authority of any foreign state for service in accordance with any treaty or other international agreement. Any motion for the return of property seized under this section shall be filed in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized.

(4)(A) 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 this section or under the Controlled Substances Act, 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 30 days, except that the time may be extended for good cause shown at a hearing conducted in the manner provided in rule 43(e) of the Federal Rules of Civil Procedure.

(B) 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 forfeiture, 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 subsection.

(c) Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the Attorney General, the Secretary of the Treasury, or the Postal Service, as the case may be, subject only to the orders and decrees of the court or the official having jurisdiction thereof. Whenever property is seized under this subsection, the Attorney General, the Secretary of the Treasury, or the Postal Service, as the case may be, may—

(1) place the property under seal;

(2) remove the property to a place designated by him; or

(3) require that the General Services Administration take custody of the property and remove it, if practicable, to an appropriate location for disposition in accordance with law.

 

(d) For purposes of this section, the provisions of the customs laws relating to the seizure, summary and judicial forfeiture, condemnation of property for violation of the customs laws, the disposition of such property or the proceeds from the sale of such property under this section, the remission or mitigation of such forfeitures, and the compromise of claims (19 U.S.C. 1602 et seq.), insofar as they are applicable and not inconsistent with the provisions of this section, shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under this section, 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 section by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, the Secretary of the Treasury, or the Postal Service, as the case may be. The Attorney General shall have sole responsibility for disposing of petitions for remission or mitigation with respect to property involved in a judicial forfeiture proceeding.

(e) Notwithstanding any other provision of the law, except section 3 of the Anti Drug Abuse Act of 1986, the Attorney General, the Secretary of the Treasury, or the Postal Service, as the case may be, is authorized to retain property forfeited pursuant to this section, or to transfer such property on such terms and conditions as he may determine—

(1) to any other Federal agency;

(2) to any State or local law enforcement agency which participated directly in any of the acts which led to the seizure or forfeiture of the property;

(3) in the case of property referred to in subsection (a)(1)(C), to any Federal financial institution regulatory agency—

(A) to reimburse the agency for payments to claimants or creditors of the institution; and

(B) to reimburse the insurance fund of the agency for losses suffered by the fund as a result of the receivership or liquidation;

 

(4) in the case of property referred to in subsection (a)(1)(C), upon the order of the appropriate Federal financial institution regulatory agency, to the financial institution as restitution, with the value of the property so transferred to be set off against any amount later recovered by the financial institution as compensatory damages in any State or Federal proceeding;

(5) in the case of property referred to in subsection (a)(1)(C), to any Federal financial institution regulatory agency, to the extent of the agency’s contribution of resources to, or expenses involved in, the seizure and forfeiture, and the investigation leading directly to the seizure and forfeiture, of such property;

(6) as restoration to any victim of the offense giving rise to the forfeiture, including, in the case of a money laundering offense, any offense constituting the underlying specified unlawful activity; or

(7) In 3 the case of property referred to in subsection (a)(1)(D), to the Resolution Trust Corporation, the Federal Deposit Insurance Corporation, or any other Federal financial institution regulatory agency (as defined in section 8(e)(7)(D) of the Federal Deposit Insurance Act).

 

The Attorney General, the Secretary of the Treasury, or the Postal Service, as the case may be, shall ensure the equitable transfer pursuant to paragraph (2) of any forfeited property to the appropriate State or local law enforcement agency so as to reflect generally the contribution of any such agency participating directly in any of the acts which led to the seizure or forfeiture of such property. A decision by the Attorney General, the Secretary of the Treasury, or the Postal Service pursuant to paragraph (2) shall not be subject to review. The United States shall not be liable in any action arising out of the use of any property the custody of which was transferred pursuant to this section to any non-Federal agency. The Attorney General, the Secretary of the Treasury, or the Postal Service may order the discontinuance of any forfeiture proceedings under this section in favor of the institution of forfeiture proceedings by State or local authorities under an appropriate State or local statute. After the filing of a complaint for forfeiture under this section, the Attorney General may seek dismissal of the complaint in favor of forfeiture proceedings under State or local law. Whenever forfeiture proceedings are discontinued by the United States in favor of State or local proceedings, the United States may transfer custody and possession of the seized property to the appropriate State or local official immediately upon the initiation of the proper actions by such officials. Whenever forfeiture proceedings are discontinued by the United States in favor of State or local proceedings, notice shall be sent to all known interested parties advising them of the discontinuance or dismissal. The United States shall not be liable in any action arising out of the seizure, detention, and transfer of seized property to State or local officials. The United States shall not be liable in any action arising out of a transfer under paragraph (3), (4), or (5) of this subsection.

(f) All right, title, and interest in property described in subsection (a) of this section shall vest in the United States upon commission of the act giving rise to forfeiture under this section.

(g)(1) Upon the motion of the United States, the court shall stay the civil forfeiture proceeding if the court determines that civil discovery will adversely affect the ability of the Government to conduct a related criminal investigation or the prosecution of a related criminal case.

(2) Upon the motion of a claimant, the court shall stay the civil forfeiture proceeding with respect to that claimant if the court determines that—

(A) the claimant is the subject of a related criminal investigation or case;

(B) the claimant has standing to assert a claim in the civil forfeiture proceeding; and

(C) continuation of the forfeiture proceeding will burden the right of the claimant against self-incrimination in the related investigation or case.

 

(3) With respect to the impact of civil discovery described in paragraphs (1) and (2), the court may determine that a stay is unnecessary if a protective order limiting discovery would protect the interest of one party without unfairly limiting the ability of the opposing party to pursue the civil case. In no case, however, shall the court impose a protective order as an alternative to a stay if the effect of such protective order would be to allow one party to pursue discovery while the other party is substantially unable to do so.

(4) In this subsection, the terms “related criminal case” and “related criminal investigation” mean an actual prosecution or investigation in progress at the time at which the request for the stay, or any subsequent motion to lift the stay is made. In determining whether a criminal case or investigation is “related” to a civil forfeiture proceeding, the court shall consider the degree of similarity between the parties, witnesses, facts, and circumstances involved in the two proceedings, without requiring an identity with respect to any one or more factors.

(5) In requesting a stay under paragraph (1), the Government may, in appropriate cases, submit evidence ex parte in order to avoid disclosing any matter that may adversely affect an ongoing criminal investigation or pending criminal trial.

(6) Whenever a civil forfeiture proceeding is stayed pursuant to this subsection, the court shall enter any order necessary to preserve the value of the property or to protect the rights of lienholders or other persons with an interest in the property while the stay is in effect.

(7) A determination by the court that the claimant has standing to request a stay pursuant to paragraph (2) shall apply only to this subsection and shall not preclude the Government from objecting to the standing of the claimant by dispositive motion or at the time of trial.

(h) In addition to the venue provided for in section 1395 of title 28 or any other provision of law, in the case of property of a defendant charged with a violation that is the basis for forfeiture of the property under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought.

(i)(1) Whenever property is civilly or criminally forfeited under this chapter, the Attorney General or the Secretary of the Treasury, as the case may be, 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 property, if such a transfer—

(A) has been agreed to by the Secretary of State;

(B) is authorized in an international agreement between the United States and the foreign country; and

(C) is made to a country which, if applicable, has been certified under section 481(h) 4 of the Foreign Assistance Act of 1961.

 

A decision by the Attorney General or the Secretary of the Treasury pursuant to this paragraph shall not be subject to review. The foreign country shall, in the event of a transfer of property or proceeds of sale of property under this subsection, bear all expenses incurred by the United States in the seizure, maintenance, inventory, storage, forfeiture, and disposition of the property, and all transfer costs. The payment of all such expenses, and the transfer of assets pursuant to this paragraph, shall be upon such terms and conditions as the Attorney General or the Secretary of the Treasury may, in his discretion, set.

(2) 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 country, including property which is sought as evidence of a crime committed in the foreign country.

(3) A certified order or judgment of forfeiture by a court of competent jurisdiction of a foreign country concerning property which is the subject of forfeiture under this section and was determined by such court to be the type of property described in subsection (a)(1)(B) of this section, and any certified recordings or transcripts of testimony taken in a foreign judicial proceeding concerning such order or judgment of forfeiture, shall be admissible in evidence in a proceeding brought pursuant to this section. Such certified order or judgment of forfeiture, when admitted into evidence, shall constitute probable cause that the property forfeited by such order or judgment of forfeiture is subject to forfeiture under this section and creates a rebuttable presumption of the forfeitability of such property under this section.

(4) A certified order or judgment of conviction by a court of competent jurisdiction of a foreign country concerning an unlawful drug activity which gives rise to forfeiture under this section and any certified recordings or transcripts of testimony taken in a foreign judicial proceeding concerning such order or judgment of conviction shall be admissible in evidence in a proceeding brought pursuant to this section. Such certified order or judgment of conviction, when admitted into evidence, creates a rebuttable presumption that the unlawful drug activity giving rise to forfeiture under this section has occurred.

(5) The provisions of paragraphs (3) and (4) of this subsection shall not be construed as limiting the admissibility of any evidence otherwise admissible, nor shall they limit the ability of the United States to establish probable cause that property is subject to forfeiture by any evidence otherwise admissible.

(j) For purposes of this section—

(1) the term “Attorney General” means the Attorney General or his delegate; and

(2) the term “Secretary of the Treasury” means the Secretary of the Treasury or his delegate.

 

(k) Interbank Accounts.—

(1) In general.—

(A) In general.—For the purpose of a forfeiture under this section or under the Controlled Substances Act (21 U.S.C. 801 et seq.), if funds are deposited into an account at a foreign financial institution (as defined in section 984(c)(2)(A) of this title), and that foreign financial institution (as defined in section 984(c)(2)(A) of this title) has an interbank account in the United States with a covered financial institution (as defined in section 5318(j)(1) of title 31), the funds shall be deemed to have been deposited into the interbank account in the United States, and any restraining order, seizure warrant, or arrest warrant in rem regarding the funds may be served on the covered financial institution, and funds in the interbank account, up to the value of the funds deposited into the account at the foreign financial institution (as defined in section 984(c)(2)(A) of this title), may be restrained, seized, or arrested.

(B) Authority to suspend.—The Attorney General, in consultation with the Secretary of the Treasury, may suspend or terminate a forfeiture under this section if the Attorney General determines that a conflict of law exists between the laws of the jurisdiction in which the foreign financial institution (as defined in section 984(c)(2)(A) of this title) is located and the laws of the United States with respect to liabilities arising from the restraint, seizure, or arrest of such funds, and that such suspension or termination would be in the interest of justice and would not harm the national interests of the United States.

 

(2) No requirement for government to trace funds.—If a forfeiture action is brought against funds that are restrained, seized, or arrested under paragraph (1), it shall not be necessary for the Government to establish that the funds are directly traceable to the funds that were deposited into the foreign financial institution (as defined in section 984(c)(2)(A) of this title), nor shall it be necessary for the Government to rely on the application of section 984.

(3) Claims brought by owner of the funds.—If a forfeiture action is instituted against funds restrained, seized, or arrested under paragraph (1), the owner of the funds deposited into the account at the foreign financial institution (as defined in section 984(c)(2)(A) of this title) may contest the forfeiture by filing a claim under section 983.

(4) Definitions.—For purposes of this subsection, the following definitions shall apply:

(A) Interbank account.—The term “interbank account” has the same meaning as in section 984(c)(2)(B).

(B) Owner.—

(i) In general.—Except as provided in clause (ii), the term “owner”—

(I) means the person who was the owner, as that term is defined in section 983(d)(6), of the funds that were deposited into the foreign financial institution (as defined in section 984(c)(2)(A) of this title) at the time such funds were deposited; and

(II) does not include either the foreign financial institution (as defined in section 984(c)(2)(A) of this title) or any financial institution acting as an intermediary in the transfer of the funds into the interbank account.

 

(ii) Exception.—The foreign financial institution (as defined in section 984(c)(2)(A) of this title) may be considered the “owner” of the funds (and no other person shall qualify as the owner of such funds) only if—

(I) the basis for the forfeiture action is wrongdoing committed by the foreign financial institution (as defined in section 984(c)(2)(A) of this title); or

(II) the foreign financial institution (as defined in section 984(c)(2)(A) of this title) establishes, by a preponderance of the evidence, that prior to the restraint, seizure, or arrest of the funds, the foreign financial institution (as defined in section 984(c)(2)(A) of this title) had discharged all or part of its obligation to the prior owner of the funds, in which case the foreign financial institution (as defined in section 984(c)(2)(A) of this title) shall be deemed the owner of the funds to the extent of such discharged obligation.

Related posts: