CRS Report for Congress
Civil Asset Forfeiture Reform Act of 2000:
Overview of Public Law 106-185
June 2, 2000
Paul Starett Wallace, Jr.
Specialist in American Public Law
American Law Division

Congressional Research Service ˜ The Library of Congress

After years of complaints regarding abusive Government conduct which permitted prosecutors
to confiscate the assets of innocent people long before the criminal trials began, Public Law
106-185 is intended to provide a balance between protecting the rights of property owners
while continuing to permit the Government to confiscate assets which can be proved by a
preponderance of the evidence that such property may have been used in or was part of a

Civil Asset Forfeiture Reform Act of 2000: Overview of
Public Law 106-185
Forfeiture has long provided both a deterrent against crime as well as a form of
punishment for the criminal.1 Federal confiscation procedures, however, were
sometimes seen to be unfair. Public Law No. 106-185, signed into law by President
Clinton on April 25, 2000 is intended to make, federal forfeiture procedures more fair
and yet more effective. The Act will raise the standards the government must meet
when it seeks to take property from private citizens suspected of drug trafficking or
other crimes. Some of the major changes made by the Act which were the result of
a compromise between a bipartisan group of legislators and Attorney General Janet
Reno include: (1) raising the Government’s standard of proof to one of
preponderance of the evidence; (2) supplying indigent defendants with legal
representation in forfeiture cases if they already have appointed counsel in a related
criminal case or had real property, such as a business or house, which was seized by
the Government; (3) expanding the innocent owner defense; (4) permitting property
owners, in cases of substantial hardship, to maintain temporary custody of the
property subject to a forfeiture contest; (5) allowing successful forfeiture claimants
to recover interest and for damages to their property suffered while in Government
possession; (6) empowering the courts to dismiss the forfeiture challenges of fugitive
property claimants; (7) enlarging the Government’s forfeiture authority over the
proceeds of a substantial number of crimes previously beyond its reach; (8)
recognizing the authority of the federal courts to enforce foreign forfeiture judgments;
(9) allowing federal prosecutors to share certain grand jury information for civil
forfeiture purposes; and (10) affording the Government the option of proceeding
under criminal forfeiture procedures in any instance in which it might invoke civil
forfeiture procedures.

1 See H. Rept. 106th-192, 106th Cong. 1st Sess., at 5.

General Background.........................................1
Public Law No. 106-185......................................1
Section 1..................................................2
Section 2. Notice; Claim; Compliant.............................2
Burden of Proof.............................................3
Innocent Owner Defense......................................3
Proportionality .............................................. 4
Section 3. Compensation for Damage to Seized Property.............4
Section 4. Attorney Fees, Costs and Interest (Return of property to claimant;
liability for wrongful seizure; attorney fees, cost, and interest)......5
Section 5. Seizure Warrant Requirement..........................5
Section 6. Use of Forfeited Funds To Pay Restitution To Crime Victims..7
Section 7. Civil Forfeiture Of Real Property.......................7
Section 8. Stay Of Civil Forfeiture Case..........................7
Section 9. Civil Restraining Orders..............................8
Section 10. Cooperation Among Federal Prosecutors.................9
Section 11. Statute Of Limitations For Civil Forfeiture...............9
Section 12. Destruction Or Removal Of Property To Prevent Seizure....9
Section 13. Fungible Property In Bank Accounts..................10
Section 14. Fugitive Disentitlement.............................10
Section 15. Enforcement Of Foreign Forfeiture Judgment............10
Section 16. Encouraging Use Of Criminal Forfeiture As An Alternative To Civil
Forfeiture ............................................. 11
Section 17. Access To Records In Bank Secrecy Jurisdiction.........11
Section 18. Application To Alien Smuggling Offenses...............11
Section 19. Enhanced Visibility Of The Asset Forfeiture Program......12
Section 20. Proceeds........................................12
Section 21. Effective Date....................................14

Civil Asset Forfeiture Reform Act of 2000:
Overview of Public Law 106-185
General Background
The Civil Asset Forfeiture Reform Act of 2000 represents the evolution of
proposals offered by Congressmen Hyde and Conyers over several years. During the
105th Congress, H.R. 1965 was introduced to make federal civil forfeiture procedures
more equitable for property owners in general and in addition give innocent property
owners a process for recovering their property and make themselves whole.2 Similar
to H.R. 1965 relative to its purpose, H.R. 1658 was introduced in the 106th Congress.
On June 24, 1999, the House passed it by a vote of 375-483 and referred it to the
Senate Judiciary Committee on June 28, 1999. Following the incorporation of some
of the provisions in S. 1701, S. 1931 amended H.R. 1658 which then passed the
Senate Judiciary Committee by a voice vote on March 23, 2000. The full Senate
passed the compromise version of H.R. 1658 by voice vote on March 27, 2000.4 On
April 11, 2000, the House agreed to the Senate amendments and passed H.R. 1658
by voice vote.5 On April 25, 2000, H.R. 1658 was signed into law by President
Clinton and became Public Law No. 106-185.6
Public Law No. 106-185
After many years of complaints regarding allegedly abusive government conduct,
the new law in general will make it more difficult for the federal government to
confiscate a person’s property before it actually brings charges in a criminal case.
This in effect will impose a more severe test which prosecutors must satisfy before
being able to confiscate homes, money, cars, boats and other property before any
criminal trial begins.
More specifically, the law will provide a more uniform procedure for federal civil
forfeiture by establishing new rules to govern the proceedings in the following

2 See H. Rept. 98-358, 105th Cong. 1st Sess. 27 (1997).
3 145 Cong. Rec. H4878 (daily ed. June 24, 1999).
4 146 Cong. Rec. S1762 (daily ed. March 27, 2000).
5 146 Cong. Rec. H2054 (daily ed. April 11, 2000).
6 114 Stat. 202 (2000).

Section 1.
Section 1 states its title: Civil Asset Forfeiture Reform Act Of 2000.
Section 2. Notice; Claim; Compliant.
Section 2 creates new rules for civil forfeiture proceedings by setting forth
notification requirements with respect to seized property and civil forfeiture
proceedings, including: (1) a requirement that the notice the Government is required
to send to interested parties in a nonjudicial civil forfeiture proceeding under a civil
forfeiture statute be sent to achieve proper notice as soon as practicable and within
60 days after the date of the seizure; and (2) it sets out various conditions under
which notice may be extended based upon its adverse results, i.e., endangering the life
or physical safety of an individual; flight from prosecution; destruction of or
tampering with evidence, etc.
This section sets forth procedures for filing claims for seized property by
directing the Government, within 90 days after a claim has been filed, to file a
complaint for forfeiture consistent with specified requirements in the Supplemental
Rules for Certain Admiralty and Maritime Claims or return the property pending the
filing of a complaint, except a court in the district where the complaint will be filed
may extend the period for good cause shown or upon agreement of the parties. If the
Government does not file a compliant for forfeiture or return the property, or, before
the time for filing a complaint has expired obtain a criminal indictment containing an
allegation that the property is subject to forfeiture and take the steps necessary to
preserve its right to maintain custody of the property, the Government shall promptly
release the property and may not take any further action to effect the civil forfeiture7
of such property.
In lieu of, or in addition to filing a civil forfeiture complaint, the Government is
authorized to include a forfeiture allegation in a criminal indictment. This section
specifically indicates that if criminal forfeiture is the only forfeiture proceeding
commenced by the Government, the Government’s right to continued possession of8
the property shall be governed by the applicable criminal forfeiture statute. It
prevents a complaint from being dismissed on the ground that the Government did
not have adequate evidence at the time the complaint was filed to establish the
forfeitability of the property.9
This section affords an opportunity for any person claiming an interest in seized
property, in any case in which the Government files a complaint for forfeiture in the
appropriate United States district court, to file a claim asserting such person’s
interest, except that such claim may not be filed later than 30 days after the date of

7 114 Stat. 204.
8 Id.
9 114 Stat. 204-205.

services of the Government’s complaint or not later than 30 days after the date of final
publication of notice of the filing of the compliant.10
The court may authorize, if a person with standing to contest the forfeiture of
property is financially unable to obtain representation by counsel: (1) the appointment
of counsel to represent a person with respect to the claim where the person is
represented by counsel appointed in connection with a related criminal case; or (2)
insure that the person is represented by an attorney from the Legal Services
Corporation, at the person’s request, where the property subject to forfeiture is real
property that is being used by the person as a primary residence.11
Burden of Proof
The burden of proof, in any action brought under any civil forfeiture statute for
the civil forfeiture of any property, is placed on the Government to establish, by a
preponderance of the evidence, that the property is subject to forfeiture.12 The
Government may use evidence gathered after the filing of a complaint for forfeiture
to establish that property is subject to forfeiture.13 If its theory of forfeiture is that the
property was used to commit or facilitate the commission of a criminal offense, or was
involved in such commission, the Government must establish that there was a
substantial connection between the property and the offense.14
Innocent Owner Defense
An innocent owner’s interest in property may not be forfeited under any civil15
forfeiture statute. The claimant has the burden of proving that he/she is an innocent
owner by a preponderance of the evidence.16
An otherwise valid claim may not be denied on the ground that the claimant gave
nothing of value in exchange for the property if: (1) the property is the claimant’s
primary residence; (2) depriving the claimant of the property would deprive the
claimant of the means to maintain reasonable shelter in the community; (3) the
property is not, and is not traceable to, the proceeds of any criminal offense; and (4)
the claimant acquired his/her interest in the property through marriage, divorce, or
legal separation, or the claimant was the spouse or legal dependent of a person whose
death resulted in the transfer of the property to the claimant through inheritance or
probate. The court is required to limit the value of any real property interest for
which innocent ownership is recognized to the value necessary to maintain reasonable

10 114 Stat. 205.
11 Id.
12 Id.
13 114 Stat. 206.
14 Id.
15 Id.
16 Id.

shelter.17 It prevents the assertion of an ownership interest in contraband or other
property that is illegal to possess.18
In situations regarding the partial interest in property which is subject to
forfeiture by an innocent owner, the court may enter an appropriate order setting
aside the forfeiture; severing the property; or compensating the owner to the extent
of his/her ownership.19
A claimant may petition the court to determine whether forfeiture was
constitutionally excessive.20 For the purpose of making the determination, the court
is directed to compare the forfeiture to the gravity of the offense.21 The claimant has
the burden of establishing, by a preponderance of the evidence at a hearing conducted
by the court without a jury, that the forfeiture is grossly disproportional to the
claimant’s offense.22 The court is directed to reduce or eliminate a forfeiture found
to be grossly disproportional as necessary in order to avoid a violation of the Eighth
Amendment. 23
The court is authorized to impose a civil fine of 10 percent of the value of the
forfeited property upon a claimant in any civil forfeiture proceeding in which the
Government prevails if the court finds that the claimant’s assertion of an interest in
the property was frivolous. This provision specifies that such fine shall not be less
than $250 nor greater than $5,000.24
Section 3. Compensation for Damage to Seized Property
The Federal Tort Claims Act is amended to authorize compensation for injury
or loss of goods, merchandise, or other property while in the possession of any
customs or other law officer if the claimant was not convicted of a crime for which
the claimant’s property interest was subject to criminal forfeiture and if: “(1) the
property was seized for the purpose of forfeiture under any provision of Federal law
providing for the forfeiture of property other than as a sentence imposed upon
conviction of a criminal offense; (2) the interest of the claimant was not forfeited; (3)
the interest of the claimant was not remitted or mitigated (if the property was subject
to forfeiture); and (4) the claimant was not convicted of a crime for which the interest
of the claimant in the property was subject to forfeiture under a Federal criminal

17 114 Stat. 206-207.
18 114 Stat. 207.
19 Id.
20 114 Stat. 209.
21 Id.
22 Id.
23 114 Stat. 209-10.
24 114 Stat. 210.

forfeiture law.”25 The Attorney General is authorized to settle, for not more than
$50,000 in any case, a claim for damage to, or loss of, privately owned property
caused by an investigative or law enforcement officer who is employed by the
Department of Justice acting within the scope of his/her employment except the
Attorney General may not pay a claim: “(1) if it is presented to the Attorney General
more than one year after it accrues; or (2) if it is presented by an officer or employee
of the Federal Government and arose within the scope of employment.”26
Section 4. Attorney Fees, Costs and Interest (Return of property to
claimant; liability for wrongful seizure; attorney fees, cost, and
Section 2465 of title 28 of the United States Code has been amended to provide
that upon the entry of a judgment for the claimant in any proceeding to condemn or
forfeit property seized or arrested under any provision of Federal law: (1) such
property shall be returned forthwith to the claimant or his agent; and (2) if it appears
that there was reasonable cause for the seizure or arrest, the court shall cause a proper
certificate to be entered and neither the person who made the seizure or arrest nor the
prosecutor shall be liable to suit or judgment on account of such suit or prosecution,
nor shall the claimant be entitled to costs, except as follows. The United States will
be liable, in any civil proceeding to forfeit property under any provision of Federal law
in which the claimant substantially prevails, except where the claimant is convicted of
a crime for which the claimant’s interest in the property was subject to forfeiture
under a Federal criminal forfeiture law, for (1) reasonable attorney fees and cost
reasonably incurred by the claimant; (2) post-judgment interest; and (3) specified
interest and imputed amounts of interest in cases involving currency, other negotiable
instruments, or the proceeds of an interlocutory sale. This section also provides that
the United States shall not be required to disgorge the value of any intangible benefits
nor make any other payments to the claimant not specifically authorized by this
subsection.27 Provisions are made for situations involving multiple claims to the same
property. The court is required to reduce the award of cost and attorney fees
accordingly if the court enters judgment in part for the claimant and in part for the
Government. 28
Section 5. Seizure Warrant Requirement
This section amends section 981(b) of title 18, United States Code regarding
seizure warrant requirements for civil forfeiture. It permits the seizure of property by
the Secretary of the Treasury or the United States Postal Service in the case of
property involved in a violation investigated by such entity, respectively.29 It requires
that the seizure be made pursuant to a warrant obtained in the same manner as

25 114 Stat. 211.
26 Id.
27 114 Stat. 211-12.
28 114 Stat. 213.
29 Id.

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 has 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 the seizure is made pursuant to a lawful arrest or search, or another exception to
the Fourth Amendment warrant would apply; or (3) the property was lawfully seized30
by a State or local law enforcement agency and transferred to a Federal agency.
A seizure warrant may be issued by a judicial officer in any district in which a
forfeiture against the property may be filed under section 1355(b) of title 28 of the
United States Code, 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.31 It requires any motion
for the return of property seized be filed in the district in which the property was32
The Attorney 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 this Act or under the Controlled Substances Act, 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.33 The
application for the restraining order should: (A) 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 (B) 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.34
The Controlled Substances Act is amended to provide for seizure by the
Attorney General of property subject to forfeiture to the United States in section

981(b) of title 18, United States Code.35

30 Id.
31 Id.
32 Id.
33 114 Stat. 213-14.
34 114 Stat. 214.
35 Id.

Section 6. Use of Forfeited Funds To Pay Restitution To Crime
Forfeited property may be used to pay restitution 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 activity.36
Section 7. Civil Forfeiture Of Real Property
All civil forfeiture of real property and interests in real property will be
accomplished through judicial proceedings; real property that is the subject of a civil
forfeiture may not be seized before entry of a forfeiture order; the owner or occupants
of the real property may not be evicted from, or otherwise deprived of the use and
enjoyment of, real property that is the subject of a pending forfeiture action.37 The
Government, however, may file a lis pendens or execute a writ of entry for the
purpose of conducting an inspection and taking inventory of the property.38
The Government may initiate a civil forfeiture action against real property by:
(1) filing a complaint for forfeiture; (2) posting a notice of the complaint on the
property; and (3) serving notice on the property owner, along with a copy of the
complaint. Constructive service is possible under specified circumstances.39 If real
property has been posted in accordance with the Act, the court need not issue an
arrest warrant in rem, or take any other action to establish in rem jurisdiction over the
property. 40
This section sets out the requirements for and circumstances allowing the seizure41
of real property prior to entry of a forfeiture order.
Section 8. Stay Of Civil Forfeiture Case
This section amends the code provisions regarding the stay of civil forfeiture
proceedings 18 U.S.C. 981(g). It authorizes the court, upon motion of the United
States, to stay such a proceeding upon determining that civil discovery will adversely
affect the ability of the Government to conduct a related criminal investigation or the

36 114 Stat. 214.
37 Id.
38 Id.
39 114 Stat. 214-15.
40 114 Stat. 215.
41 If: “(A) the Government notifies the court that it intends to seize the property before trial;
and (B) the court–(i) issues a notice of application for warrant, causes the notice to be served
on the property owner and posted on the property, and conducts a hearing in which the
property owner has a meaningful opportunity to be heard; or (ii) makes an ex parte order that
there is probable cause for the forfeiture and that there are exigent circumstances that permit
the Government to seize the property without prior notice and an opportunity for the property
owner to be heard.”

prosecution of a related criminal case.42 The court is authorized, upon motion of the
claimant, to stay a proceeding 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.43 Permits the court, with respect to the impact of civil
discovery, to 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.44 The court is prohibited from
imposing a protective order as an alternative to a stay if the effect of such order would
be to allow one party to pursue discovery while the other party is substantially unable45
to do so. The Government may, in requesting a stay, 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.46 This section authorizes the
court, whenever a civil forfeiture proceeding is stayed, to enter any order necessary
to preserve the value of the property or to protect the rights of persons with an
interest in the property while the stay is in effect.47 It also provides that a
determination by the court that the claimant has standing to request a stay pursuant
to this section (paragraph 2) shall not preclude the Government from objecting to the48
standing of the claimant by dispositive motion or at the time of trial.
The provisions for stays, applicable to civil forfeitures under the Controlled
Substances Act, are replaced with a cross reference to the stay provisions of 1849
U.S.C. 981(g).
Section 9. Civil Restraining Orders
The Act authorizes the court , upon application of the United States, to enter a
restraining order or injunction, require the execution of satisfactory performance
bonds, create receiverships, appoint conservators, custodians, appraisers, accountants,
or trustees, or take any other action to seize, secure, maintain, or preserve the
availability of property subject to civil forfeiture: (A) upon the filing of a civil
forfeiture complaint alleging that the property with respect to which the order is
sought is subject to civil forfeiture; or (B) prior to filing of such complaint if, after
notice to the person appearing to have an interest in the property and opportunity for
a hearing, the court determines that there is a substantial probability that the United
States will prevail on the issue of forfeiture and that failure to enter the order will

42 Id.
43 114 Stat. 216.
44 Id.
45 Id.
46 Id.
47 Id.
48 Id.
49 Id.

result in the property being destroyed, removed from the jurisdiction of the court, or
otherwise made unavailable for forfeiture and that the need to preserve the availability
of the property through the entry of the requested order outweighs the hardship of50
any party.
It provides for an order entered prior to the filing of a complaint effective for no
more than 90 days, with exceptions.51
This section also contains provisions pertaining to temporary restraining orders
and consideration of information that would be inadmissible under the Federal Rules
of Evidence.52
Section 10. Cooperation Among Federal Prosecutors
This section amends section 3322(a) of title 18, United States Code regarding
the disclosure of matters occurring before a grand jury in order to allow a person who
is privy to grand jury information concerning a banking law violation to disclose the
information to a Government attorney for use in connection with any civil forfeiture53
provision of Federal law.
Section 11. Statute Of Limitations For Civil Forfeiture
The Act amends section 1621 of title 19, United States Code (Tariff Act of
1930) to provide that a civil forfeiture action under the customs laws must be
commenced within two years after the time when the existence of the property and
the involvement of the property in the alleged offense were discovered or within five
years after the time when the alleged offense was discovered, whichever was later.54
The amendment extends the statute of limitations by as much as two years for cases
where the government does not immediately discover the nexus between the property
and the crime which subjects it to confiscation. The amendment applies to most civil
forfeitures, since most adopt the statute of limitations applicable in customs cases.
Section 12. Destruction Or Removal Of Property To Prevent Seizure
This section amends section 2232 of title 18, United States Code, regarding the
destruction or removal of property to prevent seizure. Provisions are made for a fine,
up to five years’ imprisonment, or both, for: knowingly and without authority from
that court, destroying property or attempting to do so, knowing that property is
subject to the in rem jurisdiction of a United States court for purposes of civil

50 114 Stat. 216-17.
51 The exceptions are unless extended by the court for good cause shown, or unless a
complaint has been filed alleging that the property with respect to which the order is sought
is subject to civil forfeiture.
52 114 Stat. 217.
53 Id.
54 Id.

forfeiture under Federal law, for the purpose of impairing or defeating the court’s in
rem jurisdiction over the property.55
Section 13. Fungible Property In Bank Accounts
Section 984 of title 18, United States Code regarding civil forfeiture of fungible
property is amended to make it inapplicable to an action against funds held by a
financial institution in an interbank account unless the account holder knowingly
engaged in the offense that is the basis for the forfeiture.56 The amendment also
absolves the government from specifically identifying and tracing forfeitable fungible
property after it has been deposited in a financial institution in any civil forfeiture.
Prior to the amendment, the section was only available in civil forfeitures which were
triggered by money laundering violations. This section defines “financial institution”
to include a foreign bank.57
Section 14. Fugitive Disentitlement
This section amends Chapter 163 of title 28, United States Code to authorize a
judicial officer to prohibit a person from using the resources of the courts of the
United States in furtherance of a claim in any related civil forfeiture action or a claim
in third party proceedings in any related criminal forfeiture action upon a finding that
such person: (1) after notice or knowledge of the fact that a warrant or process has
been issued for his apprehension, in order to avoid criminal prosecution, purposely
leaves the jurisdiction of the United States, declines to enter or reenter the United
States to submit to its jurisdiction, or otherwise evades the jurisdiction of the court
in which a criminal case is pending against the person; and (2) is not confined or held
in custody in any other jurisdiction for commission of criminal conduct in that58
jurisdiction. Unlike the rest of the Act, the fugitive disentitlement feature becomes
effectively immediately, §§14(c), 21, P.L. 106-185, 114 Stat. 219, 225 (2000).
The Supreme Court had previously refused to recognize the inherent authority
of the federal courts to dismiss a property owner’s forfeiture claim based solely on the
ground the claimant refused to return to the United States to face criminal charges,
Degen v. United States, 517 U.S. 820 (1996).
Section 15. Enforcement Of Foreign Forfeiture Judgment
The Act amends Chapter 163 of title 28, United States Code by adding at the
end: “§ 2467. Enforcement of foreign judgment”. This section requires a foreign
nation seeking to have a forfeiture or confiscation judgment registered and enforced
by a district court of the United States to submit a request to the Attorney General
that includes:(A) a summary of the facts of the case and a description of the

55 114 Stat. 218.
56 114 Stat. 218-19.
57 114 Stat. 219.
58 Id.

proceedings that resulted in the forfeiture or confiscation judgment; (B) a certified
copy of the forfeiture or confiscation judgment; and (C) an affidavit or sworn
declaration establishing that the defendant received notice of the proceedings in
sufficient time and that the judgment rendered is in force and is not subject to
appeal. 59
It provides the provisions concerning the certification for the request, jurisdiction
and venue, entry and enforcement of judgment, finality of foreign findings, and
currency conversion for any forfeiture or confiscation judgment requiring payment.60
Section 16. Encouraging Use Of Criminal Forfeiture As An
Alternative To Civil Forfeiture
Section 2461 of title 28, United States Code is amended by adding a section
which gives the Government the authority, if forfeiture of property is authorized in
connection with a violation of an Act of Congress and a person is charged in an
indictment or information with such violation but no specific statutory provision is
made for criminal forfeiture, to include the forfeiture in the indictment or information
in accordance with the Federal Rules of Criminal Procedure.61 The section authorizes
the court, upon conviction, to order the forfeiture of the property in accordance with
specified Controlled Substances Act (21 U.S.C. § 853) procedures.62
Section 17. Access To Records In Bank Secrecy Jurisdiction
This section amends section 986 of title 18, United States Code, to provide for
judicial sanctions up to and including dismissal with prejudice of the claim of any
claimant in a civil forfeiture case, or any related criminal forfeiture case under the
Controlled Substances Act, when the claimant refuses to provide financial records
which are material and located in a foreign country when it is within the claimant’s
capacity to waive the claimant’s rights under applicable financial secrecy laws or to63
obtain the records.
Section 18. Application To Alien Smuggling Offenses
This section amends the Immigration and Nationality Act (8 U.S.C. § 1324[b])
by adding a provision regarding the bringing in and harboring of aliens and the
corresponding authority and powers of seizure and forfeiture of the gross proceeds
as well as any property traceable to such conveyance or which resulted from a
violation of the immigration Act. The section sets out the standards under the code
which will apply to civil forfeiture under the Immigration Nationality Act, with the

59 114 Stat. 220.
60 114 Stat. 220-21.
61 114 Stat. 221.
62 Id.
63 114 Stat. 221-22.

exception for duties imposed upon the Secretary of the Treasury under the customs
laws. 64
The section sets forth what constitutes prima facie evidence for the purpose of
making a determination that an alien involved in the alleged violation had not received
prior official authorization to come to, enter, or reside in the United States, or that
such alien remained in violation of the law.65
Section 19. Enhanced Visibility Of The Asset Forfeiture Program
Section 524(c)(6) of title 28, United States Code amends congressional
reporting requirements regarding the Department of Justice Assets Forfeiture Fund
by the Attorney General to require submission of specified detailed reports for the
prior fiscal year on: (1) report on total deposit to the Fund by State of deposit; (2)
report on total expenses paid from the fund; (3) report describing the number, value,
and types of properties placed into official use by Federal agencies; (4) report
describing the number, value, and types of properties transferred to State and local
law enforcement agencies; (5) report by type of disposition, describing the number,
value, and types of forfeited property disposed of during the year; (6) report on the
year-end inventory of property under seizure, but not yet forfeited, that reflects the
type of property, its estimated value, and the estimated value of liens and mortgages
outstanding on the property; (7) report listing each property in the year-end inventory,66
not yet forfeited, with an outstanding equity of not less than $1,000,000.
The section provides that the reports should include information with respect to
all forfeitures under any law enforced or administered by the Department of Justice.
It allows meeting the transmittal and publication requirements by posting the reports
on an Internet website maintained by the Department of Justice for a period not less
than 2 years, and by notifying the House and Senate Judiciary Committee when the
reports are available electronically.67
Section 20. Proceeds
This provision has the effect of enlarging the money laundering civil forfeiture
provisions to include the property traceable to any crime, which is listed as a money
laundering predicate offense (i.e., “specified unlawful activity”), regardless of whether
a money laundering violation has occurred. Although facially this might be thought
to include a wide range of state crimes which have no connection to any federal
interest,68 Congressional intent and constitutional requirements seem to preclude such

64 114 Stat. 222.
65 Id.
66 114 Stat. 223-24.
67 Id.
68 After amendment, section 981(a)(1)(C) reads in pertinent part, “. . . the following property
is subject to forfeiture to the United States . . . (C) Any property, real or personal, which

a construction. At minimum, however, the amendment seems to bring civil forfeiture
to a wide variety of federal crimes with respect to which civil forfeiture would have
been possible heretofore in the absence of a related money laundering violation.69

68 (...continued)
constitutes or is derived from proceeds traceable to . . . any offense constituting ‘specified
unlawfully activity’ (as defined in section 1956(c)(7) of this title), or a conspiracy to commit
such offense.” Section 1956(c)(7) defines “specified unlawful activity” to mean, among other
things, “any act or activity constituting an offense listed in section 1961(1) of this title.”
Section 1961(1) offenses include “any act or threat involving murder, kidnapping, gambling,
arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled
substance or listed chemical (as defined in section 102 of the Controlled Substances Act),
which is chargeable under State law and punishable by imprisonment for more than one year,”

18 U.S.C. 1961(1)(A).

69 The list includes: 18 U.S.C. section 32 (relating to the destruction of aircraft), section 37
(relating to violence at international airports), section 115 (relating to influencing, impeding,
or retaliating against a Federal official by threatening or injuring a family member), section
152 (relating to concealment of assets; false oaths and claims; bribery), section 215 (relating
to commissions or gifts for procuring loans), section 224 (relating to sports bribery), section
351 (relating to congressional or Cabinet officer assassination), any of section 503 (relating
to certain counterfeiting offenses), section 513 (relating to securities of States and private
entities), section 549 (relating to removing goods from Customs custody), section 659
(relating to theft from interstate shipment) if the act indictable under section 659 is felonious,
section 664 (relating to embezzlement from pension and welfare funds), section 831 (relating
to prohibited transactions involving nuclear materials), section 875 (relating to interstate
communications), sections 891-894 (relating to extortionate credit transactions), section 956
(relating to conspiracy to kill, kidnap, maim, or injure certain property in a foreign country),
section 1084 (relating to the transmission of gambling information), section 1111 (relating to
murder within the special maritime and territorial jurisdiction of the United States), section
1114 (relating to murder of federal officers and employees), section 1116 (relating to murder
of foreign officials, official guests, or internationally protected persons), section 1201 (relating
to kidnapping), section 1203 (relating to hostage taking), section 1341 (relating to mail fraud
not involving a financial institution), section 1343 (relating to wire fraud not involving a
financial institution), section 1361 (relating to willful injury of Government property), section
1363 (relating to destruction of property within the special maritime and territorial
jurisdiction), section 1425 (relating to the procurement of citizenship or nationalization
unlawfully), section 1426 (relating to the reproduction of naturalization or citizenship papers),
section 1427 (relating to the sale of naturalization or citizenship papers), sections 1461-1465
(relating to obscene matter although criminal forfeiture is possible under existing law, 18
U.S.C. 1467), section 1503 (relating to obstruction of justice), section 1510 (relating to
obstruction of criminal investigations), section 1511 (relating to the obstruction of State or
local law enforcement), section 1512 (relating to tampering with a witness, victim, or an
informant), section 1513 (relating to retaliating against a witness, victim, or an informant),
section 1542 (relating to false statement in application and use of passport), section 1543
(relating to forgery or false use of passport), section 1544 (relating to misuse of passport),
section 1546 (relating to fraud and misuse of visas, permits, and other documents), sections
1581-1588) relating to peonage and slavery), section 1708 (theft from the mail), section 1751
(relating to Presidential assassination), section 1951 (relating to interference with commerce,
robbery, or extortion), section 1952 (relating to racketeering), section 1953 (relating to
interstate transportation of wagering paraphernalia), section 1954 (relating to unlawful
welfare fund payments), section 1956 (relating to the laundering of monetary instruments),

The changes make it clear that forfeitable proceeds are not limited to the profits
of the crime.
Section 21. Effective Date
Except for the immediately effective fugitive disentitlement provisions of 28
U.S.C. 2466, the Act applies to any forfeiture proceeding commenced on or after the
date that is 120 days after the enactment.70

69 (...continued)
section 1957 (relating to engaging in monetary transactions in property derived from specified
unlawful activity), section 1958 (relating to use of interstate commerce facilities in the
commission of murder-for-hire), section 2280 (relating to violence against maritime
navigation), section 2281 (relating to violence against maritime fixed platforms), sections
2314 and 2315 (relating to interstate transportation of stolen property), section 2332 (relating
to terrorist acts abroad against United States nationals), section 2332a (relating to use of
weapons of mass destruction), section 2332b (relating to international terrorist acts
transcending national boundaries), or section 2339A (relating to providing material support
to terrorists); 29 U.S.C. section 186 (dealing with restrictions on payments and loans to labor
organizations) or section 501(c) relating to embezzlement from union funds).
70 114 Stat 225.