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
applicant 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, the possession, or the possession with intent to
distribute, 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, or on premises or in property that the defendant owns,
resides, or does business in; 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, Secs. 303, 2301(d)-(f), Oct. 12, 1984, 98 Stat.
2044, 2192, 2193; Pub. L. 99-570, title I, Secs. 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;
Pub. L. 109-177, title VII, Sec. 743(a), Mar. 9, 2006, 120 Stat.
272.)
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.
AMENDMENTS
2006 - Subsec. (q). Pub. L. 109-177, Sec. 743(a)(1), inserted ",
the possession, or the possession with intent to distribute," after
"manufacture" in introductory provisions.
Subsec. (q)(2). Pub. L. 109-177, Sec. 743(a)(2), inserted ", or
on premises or in property that the defendant owns, resides, or
does business in" after "by the defendant".
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".
SAVINGS CLAUSE
Pub. L. 109-177, title VII, Sec. 743(b), Mar. 9, 2006, 120 Stat.
273, provided that: "Nothing in this section [amending this
section] shall be interpreted or construed to amend, alter, or
otherwise affect the obligations, liabilities and other
responsibilities of any person under any Federal or State
environmental laws."
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