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21 USC Sec. 853 01/22/02
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TITLE 21 - FOOD AND DRUGS
CHAPTER 13 - DRUG ABUSE
PREVENTION AND CONTROL
SUBCHAPTER I - CONTROL
AND ENFORCEMENT
Part D - Offenses and
Penalties
-HEAD-
Sec. 853. Criminal forfeitures
-STATUTE-
(a) Property
subject to criminal forfeiture Any
person convicted of a violation of this subchapter or subchapter
II of this chapter punishable by imprisonment for more than
one year shall forfeit to the United States, irrespective of any
provision of State law -
(1) any property constituting,
or derived from, any proceeds the
person obtained, directly or indirectly, as the result of such
violation;
(2) any of the person's
property used, or intended to be used, in any manner or part, to commit,
or to facilitate the commission of, such violation; and
(3) in the case of a person
convicted of engaging in a continuing
criminal enterprise in violation of section 848
of this title, the
person shall forfeit, in addition to any property described
in paragraph (1) or (2), any of his interest in, claims against,
and property or contractual rights affording a source of control
over, the continuing criminal enterprise. The
court, in imposing sentence on such person, shall order, in addition
to any other sentence imposed pursuant to this subchapter or
subchapter II of this chapter, that the person forfeit to the United
States all property described in this subsection. In lieu of
a fine otherwise authorized by this part, a defendant who derives
profits or other proceeds from an offense may be fined not more
than twice the gross profits or other proceeds.
(b) Meaning
of term ''property''
Property subject to criminal
forfeiture under this section includes -
(1) real property, including
things growing on, affixed to, and found in land; and
(2) tangible and intangible
personal property, including rights,
privileges, interests, claims, and securities.
(c) Third
party transfers
All right, title, and interest
in property described in subsection (a) of this section vests in the
United States upon the commission
of the act giving rise to forfeiture under this section.
Any such property that is subsequently transferred to a person
other than the defendant may be the subject of a special verdict
of forfeiture and thereafter shall be ordered forfeited to the
United States, unless the transferee establishes in a hearing pursuant
to subsection (n) of this section that he is a bona fide purchaser
for value of such property who at the time of purchase was
reasonably without cause to believe that the property was subject
to forfeiture under this section.
(d) Rebuttable
presumption
There is a rebuttable
presumption at trial that any property of a person
convicted of a felony under this subchapter or subchapter II of
this chapter is subject to forfeiture under this section if the United
States establishes by a preponderance of the evidence that -
(1) such property was acquired
by such person during the period of
the violation of this subchapter or subchapter II of this chapter
or within a reasonable time after such period; and
(2) there was no likely
source for such property other than the violation
of this subchapter or subchapter II of this chapter.
(e) Protective
orders
(1) Upon application of
the United States, the court may enter a restraining
order or injunction, require the execution of a satisfactory
performance bond, or take any other action to preserve the
availability of property described in subsection (a) of this section
for forfeiture under this section -
(A) upon the filing of
an indictment or information charging a violation of this subchapter
or subchapter II of this chapter for which criminal forfeiture may
be ordered under this section and alleging that the property with
respect to which the order is sought would, in the event of conviction,
be subject to forfeiture under this section; or
(B) prior to the filing
of such an indictment or information, if,
after notice to persons appearing to have an interest in the property
and opportunity for a hearing, the court determines that -
(i) there is a substantial
probability that the United States will prevail on the issue of
forfeiture and that failure to enter the order will result in
the property being destroyed, removed from the jurisdiction of
the court, or otherwise made unavailable for forfeiture; and
(ii) the need to preserve
the availability of the property through
the entry of the requested order outweighs the hardship on
any party against whom the order is to be entered: Provided,
however, That an order entered pursuant to subparagraph (B)
shall be effective for not more than ninety days, unless extended
by the court for good cause shown or unless an indictment or
information described in subparagraph (A) has been filed.
(2) A temporary restraining
order under this subsection may be entered upon application of the
United States without notice or opportunity for a hearing when an
information or indictment has not yet been filed with respect to the
property, if the United States demonstrates that there is probable
cause to believe that the property with respect to which the order
is sought would, in the event of conviction, be subject to forfeiture
under this section and that provision of notice will jeopardize the
availability of the property for forfeiture. Such a temporary order
shall expire not more than ten days after the date on which it is
entered, unless extended for good cause shown or unless the party
against whom it is entered consents to an extension for a longer period.
A hearing requested concerning an order entered under this paragraph
shall be held at the earliest possible time and prior to the expiration
of the temporary order.
(3) The court may receive
and consider, at a hearing held pursuant to this subsection, evidence
and information that would be inadmissible under the Federal Rules
of Evidence.
(4) Order to repatriate
and deposit. -
(A) In general. - Pursuant
to its authority to enter a pretrial restraining
order under this section, the court may order a defendant
to repatriate any property that may be seized and forfeited,
and to deposit that property pending trial in the registry
of the court, or with the United States Marshals Service or
the Secretary of the Treasury, in an interest-bearing account, if
appropriate.
(B) Failure to comply.
- Failure to comply with an order under this subsection, or an order
to repatriate property under subsection (p) of this section, shall
be punishable as a civil or criminal
contempt of court, and may also result in an enhancement of
the sentence of the defendant under the obstruction of justice provision
of the Federal Sentencing Guidelines.
(f) Warrant
of seizure
The Government may request the issuance of a warrant authorizing the
seizure of property subject to forfeiture under this section in the
same manner as provided for a search warrant. If the court determines
that there is probable cause to believe that the property to be seized
would, in the event of conviction, be subject to forfeiture and that
an order under subsection (e) of this section may not be sufficient
to assure the availability of the property for forfeiture, the court
shall issue a warrant authorizing the seizure of such property.
(g) Execution
Upon entry of an order of forfeiture under this section, the court shall
authorize the Attorney General to seize all property ordered forfeited
upon such terms and conditions as the court shall deem proper. Following
entry of an order declaring the property forfeited, the court may, upon
application of the United States, enter such appropriate restraining
orders or injunctions, require the execution of satisfactory performance
bonds, appoint receivers, conservators, appraisers, accountants, or
trustees, or take any other action to protect the interest of the United
States in the property ordered forfeited. Any income accruing to or
derived from property
ordered forfeited under this section may be used to offset ordinary
and necessary expenses to the property which are required by
law, or which are necessary to protect the interests of the United
States or third parties.
(h) Disposition
of property
Following the seizure of property ordered forfeited under this section,
the Attorney General shall direct the disposition of the property by
sale or any other commercially feasible means, making due provision
for the rights of any innocent persons. Any property right or interest
not exercisable by, or transferable for value to, the United States
shall expire and shall not revert to the defendant, nor shall the defendant
or any person acting in concert with him or on his behalf be eligible
to purchase forfeited property at any sale held by the United States.
Upon application of a person, other than the defendant or a person acting
in concert with him or on his behalf, the court may restrain or stay
the sale or disposition of the property pending the conclusion of any
appeal of the criminal case giving rise to the forfeiture, if the pplicant
demonstrates that proceeding with the sale or disposition of
the property will result in irreparable injury, harm, or loss to him.
(i) Authority
of the Attorney General
With respect to property
ordered forfeited under this section, the
Attorney General is authorized to -
(1) grant petitions for
mitigation or remission of forfeiture, restore forfeited property
to victims of a violation of this subchapter, or take any other action
to protect the rights of innocent persons which is in the interest
of justice and which is not inconsistent with the provisions of this
section;
(2) compromise claims arising
under this section;
(3) award compensation to
persons providing information resulting in a forfeiture under this
section;
(4) direct the disposition
by the United States, in accordance with the provisions of section
881(e) of this title, of all property ordered
forfeited under this section by public sale or any other commercially
feasible means, making due provision for the rights of innocent persons;
and
(5) take appropriate measures
necessary to safeguard and maintain
property ordered forfeited under this section pending its
disposition.
(j) Applicability
of civil forfeiture provisions
Except to the extent that they are inconsistent with the provisions
of this section, the provisions of section 881(d)
of this title shall apply to a criminal forfeiture under this section.
(k) Bar on
intervention
Except as provided in
subsection (n) of this section, no party claiming
an interest in property subject to forfeiture under this section
may -
(1) intervene in a trial
or appeal of a criminal case involving the
forfeiture of such property under this section; or
(2) commence an action at
law or equity against the United States
concerning the validity of his alleged interest in the property
subsequent to the filing of an indictment or information alleging
that the property is subject to forfeiture under this section.
(l) Jurisdiction
to enter orders
The district courts of the
United States shall have jurisdiction to
enter orders as provided in this section without regard to the location
of any property which may be subject to forfeiture under this
section or which has been ordered forfeited under this section.
(m) Depositions
In order to facilitate the identification and location of property declared
forfeited and to facilitate the disposition of petitions for remission
or mitigation of forfeiture, after the entry of an order declaring property
forfeited to the United States, the court may, upon application of the
United States, order that the testimony of any witness relating to the
property forfeited be taken by deposition and that any designated book,
paper, document, record, recording, or other material not privileged
be produced at the same time and place, in the same manner as provided
for the taking of depositions under Rule 15 of the Federal Rules of
Criminal Procedure.
(n) Third
party interests
(1) Following the entry
of an order of forfeiture under this section,
the United States shall publish notice of the order and of its
intent to dispose of the property in such manner as the Attorney
General may direct. The Government may also, to the extent
practicable, provide direct written notice to any person known
to have alleged an interest in the property that is the subject
of the order of forfeiture as a substitute for published notice
as to those persons so notified.
(2) Any person, other than
the defendant, asserting a legal interest
in property which has been ordered forfeited to the United States
pursuant to this section may, within thirty days of the final
publication of notice or his receipt of notice under paragraph
(1), whichever is earlier, petition the court for a hearing
to adjudicate the validity of his alleged interest in the property.
The hearing shall be held before the court alone, without
a jury.
(3) The petition shall be
signed by the petitioner under penalty of perjury and shall set forth
the nature and extent of the petitioner's right, title, or interest
in the property, the time and circumstances of the petitioner's acquisition
of the right, title, or interest in the property, any additional facts
supporting the petitioner's claim, and the relief sought.
(4) The hearing on the petition
shall, to the extent practicable and consistent with the interests
of justice, be held within thirty days of the filing of the petition.
The court may consolidate the hearing on the petition with a hearing
on any other petition filed by a person other than the defendant under
this subsection.
(5) At the hearing, the
petitioner may testify and present evidence
and witnesses on his own behalf, and cross-examine witnesses
who appear at the hearing. The United States may present evidence
and witnesses in rebuttal and in defense of its claim to the
property and cross-examine witnesses who appear at the hearing.
In addition to testimony and evidence presented at the hearing,
the court shall consider the relevant portions of the record
of the criminal case which resulted in the order of forfeiture.
(6) If, after the hearing,
the court determines that the petitioner
has established by a preponderance of the evidence that -
(A) the petitioner has
a legal right, title, or interest in the property, and such right,
title, or interest renders the order of forfeiture invalid in whole
or in part because the right, title, or interest was vested in the
petitioner rather than the defendant or was superior to any right,
title, or interest of the defendant at the time of the commission
of the acts which gave rise to the forfeiture of the property under
this section; or
(B) the petitioner is
a bona fide purchaser for value of the right, title, or interest
in the property and was at the time of purchase reasonably without
cause to believe that the property was subject to forfeiture under
this section; the court shall amend the order of forfeiture in accordance
with its determination.
(7) Following the court's
disposition of all petitions filed under this subsection, or if no
such petitions are filed following the expiration of the period provided
in paragraph (2) for the filing of such petitions, the United States
shall have clear title to property that is the subject of the order
of forfeiture and may warrant good title to any subsequent purchaser
or transferee.
(o) Construction
The provisions of this section shall be liberally construed to effectuate
its remedial purposes.
(p) Forfeiture
of substitute property
(1) In general Paragraph
(2) of this subsection shall apply, if any property described in subsection
(a) of this section, as a result of any act or omission of the defendant
-
(A) cannot be located
upon the exercise of due diligence;
(B) has been transferred
or sold to, or deposited with, a third
party;
(C) has been placed beyond
the jurisdiction of the court;
(D) has been substantially
diminished in value; or
(E) has been commingled
with other property which cannot be divided
without difficulty.
(2) Substitute property
In any case described in any of subparagraphs (A) through (E) of paragraph
(1), the court shall order the forfeiture of any other property of
the defendant, up to the value of any property described in subparagraphs
(A) through (E) of paragraph (1), as applicable.
(3) Return of property to
jurisdiction
In the case of property
described in paragraph (1)(C), the court
may, in addition to any other action authorized by this subsection,
order the defendant to return the property to the jurisdiction
of the court so that the property may be seized and forfeited.
(q) Restitution
for cleanup of clandestine laboratory sites
The court, when sentencing a defendant convicted of an offense under
this subchapter or subchapter II of this chapter involving the manufacture
of amphetamine or methamphetamine, shall -
(1) order restitution as
provided in sections 3612 and 3664 of title
18;
(2) order the defendant
to reimburse the United States, the State or local government concerned,
or both the United States and the State or local government concerned
for the costs incurred
by the United States or the State or local government concerned,
as the case may be, for the cleanup associated with the
manufacture of amphetamine or methamphetamine by the defendant;
and
(3) order restitution to
any person injured as a result of the offense
as provided in section 3663A of title 18.
-SOURCE-
(Pub. L. 91-513, title II,
Sec. 413, as added and amended Pub. L. 98-473,
title II, Sec. 303, 2301(d)-(f), Oct. 12, 1984, 98 Stat. 2044,
2192, 2193; Pub. L. 99-570, title I, Sec. 1153(b), 1864, Oct. 27,
1986, 100 Stat. 3207-13, 3207-54; Pub. L. 104-237, title II, Sec.
207, Oct. 3, 1996, 110 Stat. 3104; Pub. L. 106-310, div. B, title
XXXVI, Sec. 3613(a), Oct. 17, 2000, 114 Stat. 1229; Pub. L. 107-56,
title III, Sec. 319(d), Oct. 26, 2001, 115 Stat. 314.)
-REFTEXT-
REFERENCES
IN TEXT
The Federal Rules of Evidence,
referred to in subsec. (e)(3), are set
out in the Appendix to Title 28, Judiciary and Judicial Procedure.
The Federal Rules of Criminal
Procedure, referred to in subsec. (m),
are set out in the Appendix to Title 18, Crimes and Criminal Procedure.
-MISC2-
AMENDMENTS
2001 - Subsec. (e)(4). Pub.
L. 107-56, Sec. 319(d)(2), added par. (4).
Subsec. (p). Pub. L. 107-56,
Sec. 319(d)(1), inserted heading and amended
text of subsec. (p) generally. Prior to amendment, text read
as follows: ''If any of the property described in subsection (a)
of this section, as a result of any act or omission of the defendant
-
''(1) cannot be located
upon the exercise of due diligence;
''(2) has been transferred
or sold to, or deposited with, a third
party;
''(3) has been placed beyond
the jurisdiction of the court;
''(4) has been substantially
diminished in value; or
''(5) has been commingled
with other property which cannot be divided without difficulty; the
court shall order the forfeiture of any other property of the defendant
up to the value of any property described in paragraphs (1)
through (5).''
2000 - Subsec. (q). Pub. L.
106-310, Sec. 3613(a)(1), (2), in introductory provisions, inserted
''amphetamine or'' before ''methamphetamine'' and substituted ''shall''
for ''may''.
Subsec. (q)(2). Pub. L. 106-310,
Sec. 3613(a)(2), (3), inserted '', the State or local government concerned,
or both the United States and the State or local government concerned''
after ''to reimburse the United States'', ''or the State or local government
concerned, as the case may be,'' after ''costs incurred by the United
States'', and ''amphetamine or'' before ''methamphetamine''.
Subsec. (q)(3). Pub. L. 106-310,
Sec. 3613(a)(4), substituted ''section
3663A of title 18'' for ''section 3663 of title 18''.
1996 - Subsec. (q). Pub. L.
104-237 added subsec. (q).
1986 - Subsec. (c). Pub. L.
99-570, Sec. 1864(1), substituted ''subsection
(n)'' for ''subsection (o)''.
Subsec. (f). Pub. L. 99-570,
Sec. 1864(2), substituted ''subsection
(e)'' for ''subsection (f)''.
Subsec. (i)(1). Pub. L. 99-570,
Sec. 1864(3), substituted ''this subchapter'' for ''this chapter''.
Subsec. (k). Pub. L. 99-570,
Sec. 1864(1), (4), which directed the substitution of ''subsection (n)''
for ''subsection (o)'' in ''the second subsection (h)'', and directed
the redesignation of ''the second subsection (h)'' as subsection (k),
were executed to this subsection because the ''second subsection (h)''
had been editorially redesignated subsec. (k) to reflect the probable
intent of Congress. See 1984 Amendment note below.
Subsec. (p). Pub. L. 99-570,
Sec. 1153(b), which directed that ''section 413 of title II of the Comprehensive
Drug Abuse Prevention and Control Act of 1975'' be amended ''by redesignating
subsection '(p)' as subsection '(q)' '' and adding subsec. (p) was executed
to this section, which is section 413 of the Comprehensive Drug Abuse
Prevention and Control Act of 1970, as the probable intent of Congress,
by adding a subsec. (p) in view of the prior redesignation of subsec.
(p) as (o) by Pub. L. 98-473, Sec. 2301(e)(2). See 1984 Amendment note
below.
1984 - Subsec. (a). Pub. L.
98-473, Sec. 2301(d), inserted ''In lieu of a fine otherwise authorized
by this part, a defendant who derives profits or other proceeds from
an offense may be fined not more than twice the gross profits or other
proceeds.''
Subsec. (d). Pub. L. 98-473,
Sec. 2301(e), struck out subsec. (d) which
related to forfeiture of property other than that described in
subsec. (a) and the conditions therefor, and redesignated former subsec.
(e) as (d).
Subsecs. (e) to (p). Pub.
L. 98-473, Sec. 2301(e)(2), which directed that this section be amended
by redesignating subsecs. (e), (f), (g), (h), (i), (l), (m), (n), (o),
and (p) as subsecs. (d), (e), (f), (g), (h), (i), (j), (h), (l), (m),
(n), and (o), respectively, was executed by redesignating subsecs. (e)
to (p) as (d) to (o),
respectively, to give effect to the probable intent of Congress.
Subsec. (n)(1). Pub. L. 98-473,
Sec. 2301(f), struck out ''for at least
seven successive court days'' after ''to dispose of the property''.
TERMINATION
DATE OF 2001 AMENDMENT
Amendments by title III of
Pub. L. 107-56 to terminate effective on and after the first day of
fiscal year 2005 if Congress enacts a joint resolution that such amendments
no longer have the force of law, see section 303 of Pub. L. 107-56,
set out as a Four-Year Congressional Review; Expedited Consideration
note under section 5311 of Title 31, Money and Finance.
-SECREF-
SECTION REFERRED
TO IN OTHER SECTIONS
This section is referred
to in sections 333, 848, 970
of this title; title
18 sections 38, 229B, 793, 794, 798, 982, 986, 1028, 1029,
1834, 3554; title 28 sections 524, 2461; title 31 sections 5317,
5332; title 33 section 1415; title 42 section 1786; title 50 section
783.
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