Regulations
& Codified CSA > USC > Subchapter
I, Part D > Section 853
Section 853. Criminal Forfeitures
Property subject to criminal forfeiture
(a) 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.
Meaning of term "property"
(b) 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.
Third party transfers
(c) 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.
Rebuttable presumption
(d) 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.
Protective orders
(e)(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.
Warrant of seizure
(f) 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.
Execution
(g) 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.
Disposition of property
(h) 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 applicant demonstrates that
proceeding with the sale or disposition of the property will result in irreparable injury, harm, or
loss to him.
Authority of the Attorney General
(i) 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.
Applicability of civil forfeiture provisions
(j) 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.
Bar on intervention
(k) 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 subchapter; 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.
Jurisdiction to enter orders
(l) 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.
Depositions
(m) 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.
Third party interests
(n)(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.
Construction
(o) The provisions of this section shall be liberally construed to effectuate its remedial purposes.
Forfeiture of substitute property
(p) 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).
(q) The court, when sentencing a defendant convicted of an offense under this title or title III
involving the manufacture of methamphetamine, may--
(1) order restitution as provided in sections 3612 and 3664 of title 18, United States
Code;
(2) order the defendant to reimburse the United States for the costs incurred by the
United States for the cleanup associated with the manufacture of methamphetamine
by the defendant; and
(3) order restitution to any person injured as a result of the offense as provided in
section 3663 of title 18, United States Code.
(Pub.L. 91-513, Title II, Section 413, as added Pub.L. 98-473, Title II, Section 303, Oct. 12,
1984, 98 Stat. 2044, and amended Pub.L. 98-473, Title II, Section 2301(d)-(f), Oct. 12, 1984, 98
Stat. 2192, 2193; Pub.L. 99-570, Title I, Sections 1153(b), 1864, Oct. 27, 1986, 100 Stat.
3207-13, 3207-54; Pub.L. 104-237, Title II, Section 207, Oct. 3, 1996, 110 Stat. 3104.)
EDITORIAL NOTES
Codification. The language of section 1153(b) of Pub.L. 99-570, amending this section by the
relettering of subsec. (p) as (q) and addition of a new subsec. (p) was executed by the addition of
a new subsec. (p), but no relettering of prior subsec. (p) since such prior subsec. (p) had been
relettered (o) by Pub.L. 98-473, Title II, Section 2301(e)(2), Oct. 12, 1984, 98 Stat. 2193.
Amendment by section 1153(b) of Pub.L. 99-570 was executed to section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (this section) as the probable
intent of Congress, despite directory language purporting to require the amendment of section
413 of title II of the "Comprehensive Drug Abuse Prevention and Control Act of 1975".
The amendatory language of section 1864(1) of Pub.L. 99-570, directing the substitution of
"subsection (n)" for "subsection (o)" in the second subsection (h) [originally enacted as (l) and
relettered (h) by section 2301(e)(2) of Pub.L. 98-473] was executed to such relettered subsec. (h)
which was subsequently relettered as (k) by section 1864(4) of Pub.L. 99-570.
The amendatory language of section 1864(3) of Pub.L. 99-570 directing the substitution of "this
subchapter" for "this chapter" in subsec. (i)(1) was executed by the substitution of "this
subchapter" for "this section" as the probable intent of Congress.
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