The Antelope Valley's promise
of the American Dream was abruptly
cut
short by a dose of abetted reality. Foreclosures
induced by
lending practices
that steered borrowers into loans they
couldn't understand and ultimately couldn't afford devastated
individual
homeowners, and by
multiplying that effect by thousands the
subprime mortgage crisis shall have drowned us all in debt.
Survival and growth can only
be achieved if the strength of the
law and the shield of truth
are used to break the Final
wave before it engulfs generations
into financial extinction.
CPR for Cities Everywhere
PENAL
CODE SECTION 186-186.8
186.
This act may be cited as the
"California Control of Profits of Organized Crime Act."
186.1. The Legislature hereby finds and declares that an
effective
means of punishing and deterring criminal activities of organized
crime is through the forfeiture of profits acquired and accumulated
as a result of such criminal activities. It is the intent of
the
Legislature that the "California Control of Profits of Organized
Crime Act" be used by prosecutors to punish and deter only such
activities.
186.2. For purposes of this chapter, the following definitions
apply:
(a) "Criminal profiteering activity" means any act
committed or
attempted or any threat made for financial gain or advantage, which
act or threat may be charged as a crime under any of the following
sections:
(1) Arson, as defined in Section 451.
(2) Bribery, as defined in Sections 67, 67.5, and
68.
(3) Child pornography or exploitation, as defined
in
subdivision
(b) of Section 311.2, or Section 311.3 or 311.4, which may be
prosecuted as a felony.
(4) Felonious assault, as defined in Section 245.
(5) Embezzlement, as defined in Sections 424 and
503.
(6) Extortion, as defined in Section 518.
(7) Forgery, as defined in Section 470.
(8) Gambling, as defined in Sections 337a to 337f,
inclusive, and
Section 337i, except the activities of a person who participates
solely as an individual bettor.
(9) Kidnapping, as defined in Section 207.
(10) Mayhem, as defined in Section 203.
(11) Murder, as defined in Section 187.
(12) Pimping and pandering, as defined in Section
266.
(13) Receiving stolen property, as defined in
Section 496.
(14) Robbery, as defined in Section 211.
(15) Solicitation of crimes, as defined in Section
653f.
(16) Grand theft, as defined in Section 487.
(17) Trafficking in controlled substances, as
defined in
Sections
11351, 11352, and 11353 of the Health and Safety Code.
(18) Violation of the laws governing corporate
securities,
as
defined in Section 25541 of the Corporations Code.
(19) Any of the offenses contained in Chapter 7.5
(commencing with
Section 311) of Title 9, relating to obscene matter, or in Chapter
7.6 (commencing with Section 313) of Title 9, relating to harmful
matter that may be prosecuted as a felony.
(20) Presentation of a false or fraudulent claim,
as
defined in
Section 550.
(21) False or fraudulent activities, schemes, or
artifices, as
described in Section 14107 of the Welfare and Institutions Code.
(22) Money laundering, as defined in Section
186.10.
(23) Offenses relating to the counterfeit of a
registered
mark, as
specified in Section 350.
(24) Offenses relating to the unauthorized access
to
computers,
computer systems, and computer data, as specified in Section 502.
(25) Conspiracy to commit any of the crimes listed
above,
as
defined in Section 182.
(26) Subdivision (a) of Section 186.22, or a
felony
subject to
enhancement as specified in subdivision (b) of Section 186.22.
(27) Any offenses related to fraud or theft
against the
state's
beverage container recycling program, including, but not limited to,
those offenses specified in this subdivision and those criminal
offenses specified in the California Beverage Container Recycling and
Litter Reduction Act, commencing at Section 14500 of the Public
Resources Code.
(28) Human trafficking, as defined in Section
236.1.
(29) Theft of personal identifying information, as
defined
in
Section 530.5.
(30) Offenses involving the theft of a motor
vehicle, as
specified
in Section 10851 of the Vehicle Code.
(b) (1) "Pattern of criminal profiteering
activity" means
engaging
in at least two incidents of criminal profiteering, as defined by
this chapter, that meet the following requirements:
(A) Have the same or a similar purpose, result,
principals,
victims, or methods of commission, or are otherwise interrelated by
distinguishing characteristics.
(B) Are not isolated events.
(C) Were committed as a criminal activity of
organized
crime.
(2) Acts that would constitute a "pattern of
criminal
profiteering
activity" may not be used by a prosecuting agency to seek the
remedies provided by this chapter unless the underlying offense
occurred after the effective date of this chapter and the prior act
occurred within 10 years, excluding any period of imprisonment, of
the commission of the underlying offense. A prior act may not be used
by a prosecuting agency to seek remedies provided by this chapter if
a prosecution for that act resulted in an acquittal.
(c) "Prosecuting agency" means the Attorney
General or the
district attorney of any county.
(d) "Organized crime" means crime that is of a
conspiratorial
nature and that is either of an organized nature and seeks to supply
illegal goods and services such as narcotics, prostitution,
loan-sharking, gambling, and pornography, or that, through planning
and coordination of individual efforts, seeks to conduct the illegal
activities of arson for profit, hijacking, insurance fraud,
smuggling, operating vehicle theft rings, fraud against the beverage
container recycling program, or systematically encumbering the assets
of a business for the purpose of defrauding creditors. "Organized
crime" also means crime committed by a criminal street gang, as
defined in subdivision (f) of Section 186.22. "Organized
crime"
also
means false or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code, and
the theft of personal identifying information, as defined in Section
530.5.
(e) "Underlying offense" means an offense
enumerated in
subdivision (a) for which the defendant is being prosecuted.
186.3. (a) In any case in which a person is alleged to have
been
engaged in a pattern of criminal profiteering activity, upon a
conviction of the underlying offense, the assets listed in
subdivisions (b) and (c) shall be subject to forfeiture upon proof of
the provisions of subdivision (d) of Section 186.5.
(b) Any property interest whether tangible or
intangible,
acquired
through a pattern of criminal profiteering activity.
(c) All proceeds of a pattern of criminal
profiteering
activity,
which property shall include all things of value that may have been
received in exchange for the proceeds immediately derived from the
pattern of criminal profiteering activity.
186.4. (a) The prosecuting agency shall, in conjunction with
the
criminal proceeding, file a petition of forfeiture with the superior
court of the county in which the defendant has been charged with the
underlying criminal offense, which shall allege that the defendant
has engaged in a pattern of criminal profiteering activity, including
the acts or threats chargeable as crimes and the property
forfeitable pursuant to Section 186.3. The prosecuting agency
shall
make service of process of a notice regarding that petition upon
every individual who may have a property interest in the alleged
proceeds, which notice shall state that any interested party may file
a verified claim with the superior court stating the amount of their
claimed interest and an affirmation or denial of the prosecuting
agency's allegation. If the notices cannot be given by
registered
mail or personal delivery, the notices shall be published for at
least three successive weeks in a newspaper of general circulation in
the county where the property is located. If the property
alleged
to be subject to forfeiture is real property, the prosecuting agency
shall, at the time of filing the petition of forfeiture, record a lis
pendens in each county in which the real property is situated which
specifically identifies the real property alleged to be subject to
forfeiture. The judgment of forfeiture shall not affect the
interest
in real property of any third party which was acquired prior to the
recording of the lis pendens.
(b) All notices shall set forth the time within
which a
claim of
interest in the property seized is required to be filed pursuant to
Section 186.5.
186.5. (a) Any person claiming an interest in the property or
proceeds may, at any time within 30 days from the date of the first
publication of the notice of seizure, or within 30 days after receipt
of actual notice, file with the superior court of the county in
which the action is pending a verified claim stating his or her
interest in the property or proceeds. A verified copy of the
claim
shall be given by the claimant to the Attorney General or district
attorney, as appropriate.
(b) (1) If, at the end of the time set forth
in
subdivision (a),
an interested person, other than the defendant, has not filed a
claim, the court, upon motion, shall declare that the person has
defaulted upon his or her alleged interest, and it shall be subject
to forfeiture upon proof of the provisions of subdivision (d).
(2) The defendant may admit or deny that the
property is
subject
to forfeiture pursuant to the provisions of this chapter. If
the
defendant fails to admit or deny or to file a claim of interest in
the property or proceeds, the court shall enter a response of denial
on behalf of the defendant.
(c) (1) The forfeiture proceeding shall be set for
hearing
in the
superior court in which the underlying criminal offense will be
tried.
(2) If the defendant is found guilty of the
underlying
offense,
the issue of forfeiture shall be promptly tried, either before the
same jury or before a new jury in the discretion of the court, unless
waived by the consent of all parties.
(d) At the forfeiture hearing, the prosecuting
agency
shall have
the burden of establishing beyond a reasonable doubt that the
defendant was engaged in a pattern of criminal profiteering activity
and that the property alleged in the petition comes within the
provisions of subdivision (b) or (c) of Section 186.3.
186.6. (a) Concurrent with, or subsequent to, the filing of
the
petition, the prosecuting agency may move the superior court for the
following pendente lite orders to preserve the status quo of the
property alleged in the petition of forfeiture:
(1) An injunction to restrain all interested
parties and
enjoin
them from transferring, encumbering, hypothecating or otherwise
disposing of that property.
(2) Appointment of a receiver to take possession
of, care
for,
manage, and operate the assets and properties so that such property
may be maintained and preserved.
(b) No preliminary injunction may be granted or
receiver
appointed
without notice to the interested parties and a hearing to determine
that such an order is necessary to preserve the property, pending the
outcome of the criminal proceedings, and that there is probable
cause to believe that the property alleged in the forfeiture
proceedings are proceeds or property interests forfeitable under
Section 186.3. However, a temporary restraining order may
issue
pending that hearing pursuant to the provisions of Section 527 of the
Code of Civil Procedure.
(c) Notwithstanding any other provision of law,
the court
in
granting these motions may order a surety bond or undertaking to
preserve the property interests of the interested parties.
(d) The court shall, in making its orders, seek to
protect
the
interests of those who may be involved in the same enterprise as the
defendant, but who were not involved in the commission of the
criminal profiteering activity.
186.7. (a) If the trier of fact at the forfeiture hearing
finds
that the alleged property or proceeds is forfeitable pursuant to
Section 186.3 and the defendant was engaged in a pattern of criminal
profiteering activity, the court shall declare that property or
proceeds forfeited to the state or local governmental entity, subject
to distribution as provided in Section 186.8. No property
solely
owned by a bona fide purchaser for value shall be subject to
forfeiture.
(b) If the trier of fact at the forfeiture hearing
finds
that the
alleged property is forfeitable pursuant to Section 186.3 but does
not find that a person holding a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired
that interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount due
to that person is less than the appraised value of the property, that
person may pay to the state or the local governmental entity which
initiated the forfeiture proceeding, the amount of the registered
owner's equity, which shall be deemed to be the difference between
the appraised value and the amount of the lien, mortgage, security
interest, or interest under a conditional sales contract.
Upon
that
payment, the state or local governmental entity shall relinquish all
claims to the property. If the holder of the interest elects
not
to
make that payment to the state or local governmental entity, the
property shall be deemed forfeited to the state or local governmental
entity and the ownership certificate shall be forwarded. The
appraised value shall be determined as of the date judgment is
entered either by agreement between the legal owner and the
governmental entity involved, or if they cannot agree, then by a
court-appointed appraiser for the county in which the action is
brought. A person holding a valid lien, mortgage, security
interest,
or interest under a conditional sales contract shall be paid the
appraised value of his or her interest.
(c) If the amount due to a person holding a valid
lien,
mortgage,
security interest, or interest under a conditional sales contract is
less than the value of the property and the person elects not to make
payment to the governmental entity, the property shall be sold at
public auction by the Department of General Services or by the local
governmental entity which shall provide notice of that sale by one
publication in a newspaper published and circulated in the city,
community, or locality where the sale is to take place.
(d) Notwithstanding subdivision (c), a county may
dispose
of any
real property forfeited to the county pursuant to this chapter
pursuant to Section 25538.5 of the Government Code.
186.8.
Notwithstanding that no response or claim has been
filed
pursuant to Section 186.5, in all cases where property is forfeited
pursuant to this chapter and, if necessary, sold by the Department of
General Services or local governmental entity, the money forfeited
or the proceeds of sale shall be distributed by the state or local
governmental entity as follows:
(a) To the bona fide or innocent purchaser,
conditional
sales
vendor, or holder of a valid lien, mortgage, or security interest, if
any, up to the amount of his or her interest in the property or
proceeds, when the court declaring the forfeiture orders a
distribution to that person. The court shall endeavor to
discover
all those lienholders and protect their interests and may, at its
discretion, order the proceeds placed in escrow for up to an
additional 60 days to ensure that all valid claims are received and
processed.
(b) To the Department of General Services or local
governmental
entity for all expenditures made or incurred by it in connection with
the sale of the property, including expenditures for any necessary
repairs, storage, or transportation of any property seized under this
chapter.
(c) To the general fund of the state or local
governmental
entity,
whichever prosecutes.
(d) In any case involving a violation of
subdivision (b) of
Section 311.2, or Section 311.3 or 311.4, in lieu of the distribution
of the proceeds provided for by subdivisions (b) and (c), the
proceeds shall be deposited in the county children's trust fund,
established pursuant to Section 18966 of the Welfare and Institutions
Code, of the county that filed the petition of forfeiture. If
the
county does not have a children's trust fund, the funds shall be
deposited in the State Children's Trust Fund, established pursuant to
Section 18969 of the Welfare and Institutions Code.
(e) In any case involving crimes against the state
beverage
container recycling program, in lieu of the distribution of proceeds
provided in subdivision (c), the proceeds shall be deposited in the
penalty account established pursuant to subdivision (d) of Section
14580 of the Public Resources Code, except that a portion of the
proceeds equivalent to the cost of prosecution in the case shall be
distributed to the local prosecuting entity that filed the petition
of forfeiture.
(1)The
following property is subject to forfeiture
to the United States:
(A)Any
property, real or personal, involved in a
transaction or attempted transaction in violation of section 1956,
1957
or 1960
of this title, or any property traceable to such property.
(B)Any
property, real or personal, within the
jurisdiction of the United States, constituting, derived from, or
traceable to, any proceeds obtained directly or indirectly from an
offense against a foreign nation, or any property used to facilitate
such an offense, if the offense—
(i)involves
trafficking in nuclear, chemical,
biological, or radiological weapons technology or material, or the
manufacture, importation, sale, or distribution of a controlled
substance (as that term is defined for purposes of the Controlled
Substances Act), or any other conduct described in section 1956(c)(7)(B);
(ii)would
be punishable within the jurisdiction of
the foreign nation by death or imprisonment for a term exceeding 1
year; and
(iii)would
be punishable under the laws of the United
States by imprisonment for a term exceeding 1 year, if the act or
activity constituting the offense had occurred within the jurisdiction
of the United States.
if
such violation relates to the sale of assets
acquired or held by the Resolution Trust Corporation, the Federal
Deposit Insurance Corporation, as conservator or receiver for a
financial institution, or any other conservator for a financial
institution appointed by the Office of the Comptroller of the Currency
or the Office of Thrift Supervision or the National Credit Union
Administration, as conservator or liquidating agent for a financial
institution.
(E)With
respect to an offense listed in subsection
(a)(1)(D) committed for the purpose of executing or attempting to
execute any scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent statements, pretenses,
representations or promises, the gross receipts of such an offense
shall include all property, real or personal, tangible or intangible,
which thereby is obtained, directly or indirectly.
(F)Any
property, real or personal, which represents
or is traceable to the gross proceeds obtained, directly or indirectly,
from a violation of—
(i)section
511
(altering or removing motor vehicle identification numbers);
(ii)section
553
(importing or exporting stolen motor vehicles);
(iv)section
2312
(transporting stolen motor vehicles in interstate commerce); or
(v)section
2313
(possessing or selling a stolen motor vehicle that has moved in
interstate commerce).
(G)All
assets, foreign or domestic—
(i)of
any individual, entity, or organization
engaged in planning or perpetrating any any [1]
Federal crime of terrorism (as defined in section 2332b(g)(5))
against the United States, citizens or residents of the United States,
or their property, and all assets, foreign or domestic, affording any
person a source of influence over any such entity or organization;
(ii)acquired
or maintained by any person with the
intent and for the purpose of supporting, planning, conducting, or
concealing any Federal crime of terrorism (as defined in section 2332b(g)(5)[2]
against the United States, citizens or residents of the United States,
or their property;
(iii)derived
from, involved in, or used or intended to
be used to commit any Federal crime of terrorism (as defined in section
2332b(g)(5))
against the United States, citizens or residents of the United States,
or their property; or
(iv)of
any individual, entity, or organization
engaged in planning or perpetrating any act of international terrorism
(as defined in section 2331)
against any international organization (as defined in section 209 of
the State Department Basic Authorities Act of 1956 (22
U.S.C. 4309(b))
or against any foreign Government.[3]
Where the property sought for forfeiture is located beyond the
territorial boundaries of the United States, an act in furtherance of
such planning or perpetration must have occurred within the
jurisdiction of the United States.
(H)Any
property, real or personal, involved in a
violation or attempted violation, or which constitutes or is derived
from proceeds traceable to a violation, of section 2339C
of this title.
(2)For
purposes of paragraph (1), the term
“proceeds” is defined as follows:
(A)In
cases involving illegal goods, illegal
services, unlawful activities, and telemarketing and health care fraud
schemes, the term “proceeds” means property of any
kind obtained
directly or indirectly, as the result of the commission of the offense
giving rise to forfeiture, and any property traceable thereto, and is
not limited to the net gain or profit realized from the offense.
(B)In
cases involving lawful goods or lawful
services that are sold or provided in an illegal manner, the term
“proceeds” means the amount of money acquired
through the illegal
transactions resulting in the forfeiture, less the direct costs
incurred in providing the goods or services. The claimant shall have
the burden of proof with respect to the issue of direct costs. The
direct costs shall not include any part of the overhead expenses of the
entity providing the goods or services, or any part of the income taxes
paid by the entity.
(C)In
cases involving fraud in the process of
obtaining a loan or extension of credit, the court shall allow the
claimant a deduction from the forfeiture to the extent that the loan
was repaid, or the debt was satisfied, without any financial loss to
the victim.
(b)
(1)Except
as provided in section 985,
any property subject to forfeiture to the United States under
subsection (a) may be seized by the Attorney General and, in the case
of property involved in a violation investigated by the Secretary of
the Treasury or the United States Postal Service, the property may also
be seized by the Secretary of the Treasury or the Postal Service,
respectively.
(2)Seizures
pursuant to this section shall be made
pursuant to a warrant obtained in the same manner as provided for a
search warrant under the Federal Rules of Criminal Procedure, except
that a seizure may be made without a warrant if—
(A)a
complaint for forfeiture has been filed in the
United States district court and the court issued an arrest warrant in
rem pursuant to the Supplemental Rules for Certain Admiralty and
Maritime Claims;
(B)there
is probable cause to believe that the
property is subject to forfeiture and—
(i)the
seizure is made pursuant to a lawful arrest
or search; or
(ii)another
exception to the Fourth Amendment warrant
requirement would apply; or
(C)the
property was lawfully seized by a State or
local law enforcement agency and transferred to a Federal agency.
(3)Notwithstanding
the provisions of rule 41(a) of
the Federal Rules of Criminal Procedure, a seizure warrant may be
issued pursuant to this subsection by a judicial officer in any
district in which a forfeiture action against the property may be filed
under section 1355(b)
of title 28,
and may be executed in any district in which the property is found, or
transmitted to the central authority of any foreign state for service
in accordance with any treaty or other international agreement. Any
motion for the return of property seized under this section shall be
filed in the district court in which the seizure warrant was issued or
in the district court for the district in which the property was
seized.
(4)
(A)If
any person is arrested or charged in a foreign
country in connection with an offense that would give rise to the
forfeiture of property in the United States under this section or under
the Controlled Substances Act, the Attorney General may apply to any
Federal judge or magistrate judge in the district in which the property
is located for an ex parte order restraining the property subject to
forfeiture for not more than 30 days, except that the time may be
extended for good cause shown at a hearing conducted in the manner
provided in rule 43(e) of the Federal Rules of Civil Procedure.
(B)The
application for the restraining order shall
set forth the nature and circumstances of the foreign charges and the
basis for belief that the person arrested or charged has property in
the United States that would be subject to forfeiture, and shall
contain a statement that the restraining order is needed to preserve
the availability of property for such time as is necessary to receive
evidence from the foreign country or elsewhere in support of probable
cause for the seizure of the property under this subsection.
(c)Property
taken or detained under this section
shall not be repleviable, but shall be deemed to be in the custody of
the Attorney General, the Secretary of the Treasury, or the Postal
Service, as the case may be, subject only to the orders and decrees of
the court or the official having jurisdiction thereof. Whenever
property is seized under this subsection, the Attorney General, the
Secretary of the Treasury, or the Postal Service, as the case may be,
may—
(1)place
the property under seal;
(2)remove
the property to a place designated by him;
or
(3)require
that the General Services Administration
take custody of the property and remove it, if practicable, to an
appropriate location for disposition in accordance with law.
(d)For
purposes of this section, the provisions of
the customs laws relating to the seizure, summary and judicial
forfeiture, condemnation of property for violation of the customs laws,
the disposition of such property or the proceeds from the sale of such
property under this section, the remission or mitigation of such
forfeitures, and the compromise of claims (19
U.S.C. 1602
et seq.), insofar as they are applicable and not inconsistent with the
provisions of this section, shall apply to seizures and forfeitures
incurred, or alleged to have been incurred, under this section, except
that such duties as are imposed upon the customs officer or any other
person with respect to the seizure and forfeiture of property under the
customs laws shall be performed with respect to seizures and
forfeitures of property under this section by such officers, agents, or
other persons as may be authorized or designated for that purpose by
the Attorney General, the Secretary of the Treasury, or the Postal
Service, as the case may be. The Attorney General shall have sole
responsibility for disposing of petitions for remission or mitigation
with respect to property involved in a judicial forfeiture proceeding.
(e)Notwithstanding
any other provision of the law,
except section 3 of the Anti Drug Abuse Act of 1986, the Attorney
General, the Secretary of the Treasury, or the Postal Service, as the
case may be, is authorized to retain property forfeited pursuant to
this section, or to transfer such property on such terms and conditions
as he may determine—
(1)to
any other Federal agency;
(2)to
any State or local law enforcement agency
which participated directly in any of the acts which led to the seizure
or forfeiture of the property;
(3)in
the case of property referred to in subsection
(a)(1)(C), to any Federal financial institution regulatory
agency—
(A)to
reimburse the agency for payments to claimants
or creditors of the institution; and
(B)to
reimburse the insurance fund of the agency for
losses suffered by the fund as a result of the receivership or
liquidation;
(4)in
the case of property referred to in subsection
(a)(1)(C), upon the order of the appropriate Federal financial
institution regulatory agency, to the financial institution as
restitution, with the value of the property so transferred to be set
off against any amount later recovered by the financial institution as
compensatory damages in any State or Federal proceeding;
(5)in
the case of property referred to in subsection
(a)(1)(C), to any Federal financial institution regulatory agency, to
the extent of the agency’s contribution of resources to, or
expenses
involved in, the seizure and forfeiture, and the investigation leading
directly to the seizure and forfeiture, of such property;
(6)as
restoration to any victim of the offense
giving rise to the forfeiture, including, in the case of a money
laundering offense, any offense constituting the underlying specified
unlawful activity; or
(7)In [3]
the case of property referred to in subsection (a)(1)(D), to the
Resolution Trust Corporation, the Federal Deposit Insurance
Corporation, or any other Federal financial institution regulatory
agency (as defined in section 8(e)(7)(D) of the Federal Deposit
Insurance Act).
The
Attorney General, the Secretary of the
Treasury, or the Postal Service, as the case may be, shall ensure the
equitable transfer pursuant to paragraph (2) of any forfeited property
to the appropriate State or local law enforcement agency so as to
reflect generally the contribution of any such agency participating
directly in any of the acts which led to the seizure or forfeiture of
such property. A decision by the Attorney General, the Secretary of the
Treasury, or the Postal Service pursuant to paragraph (2) shall not be
subject to review. The United States shall not be liable in any action
arising out of the use of any property the custody of which was
transferred pursuant to this section to any non-Federal agency. The
Attorney General, the Secretary of the Treasury, or the Postal Service
may order the discontinuance of any forfeiture proceedings under this
section in favor of the institution of forfeiture proceedings by State
or local authorities under an appropriate State or local statute. After
the filing of a complaint for forfeiture under this section, the
Attorney General may seek dismissal of the complaint in favor of
forfeiture proceedings under State or local law. Whenever forfeiture
proceedings are discontinued by the United States in favor of State or
local proceedings, the United States may transfer custody and
possession of the seized property to the appropriate State or local
official immediately upon the initiation of the proper actions by such
officials. Whenever forfeiture proceedings are discontinued by the
United States in favor of State or local proceedings, notice shall be
sent to all known interested parties advising them of the
discontinuance or dismissal. The United States shall not be liable in
any action arising out of the seizure, detention, and transfer of
seized property to State or local officials. The United States shall
not be liable in any action arising out of a transfer under paragraph
(3), (4), or (5) of this subsection.
(f)All
right, title, and interest in property
described in subsection (a) of this section shall vest in the United
States upon commission of the act giving rise to forfeiture under this
section.
(g)
(1)Upon
the motion of the United States, the court
shall stay the civil forfeiture proceeding if the court determines that
civil discovery will adversely affect the ability of the Government to
conduct a related criminal investigation or the prosecution of a
related criminal case.
(2)Upon
the motion of a claimant, the court shall
stay the civil forfeiture proceeding with respect to that claimant if
the court determines that—
(A)the
claimant is the subject of a related criminal
investigation or case;
(B)the
claimant has standing to assert a claim in
the civil forfeiture proceeding; and
(C)continuation
of the forfeiture proceeding will
burden the right of the claimant against self-incrimination in the
related investigation or case.
(3)With
respect to the impact of civil discovery
described in paragraphs (1) and (2), the court may determine that a
stay is unnecessary if a protective order limiting discovery would
protect the interest of one party without unfairly limiting the ability
of the opposing party to pursue the civil case. In no case, however,
shall the court impose a protective order as an alternative to a stay
if the effect of such protective order would be to allow one party to
pursue discovery while the other party is substantially unable to do
so.
(4)In
this subsection, the terms “related criminal
case” and “related criminal
investigation” mean an actual prosecution
or investigation in progress at the time at which the request for the
stay, or any subsequent motion to lift the stay is made. In determining
whether a criminal case or investigation is
“related” to a civil
forfeiture proceeding, the court shall consider the degree of
similarity between the parties, witnesses, facts, and circumstances
involved in the two proceedings, without requiring an identity with
respect to any one or more factors.
(5)In
requesting a stay under paragraph (1), the
Government may, in appropriate cases, submit evidence ex parte in order
to avoid disclosing any matter that may adversely affect an ongoing
criminal investigation or pending criminal trial.
(6)Whenever
a civil forfeiture proceeding is stayed
pursuant to this subsection, the court shall enter any order necessary
to preserve the value of the property or to protect the rights of
lienholders or other persons with an interest in the property while the
stay is in effect.
(7)A
determination by the court that the claimant
has standing to request a stay pursuant to paragraph (2) shall apply
only to this subsection and shall not preclude the Government from
objecting to the standing of the claimant by dispositive motion or at
the time of trial.
(h)In
addition to the venue provided for in section 1395
of title 28
or any other provision of law, in the case of property of a defendant
charged with a violation that is the basis for forfeiture of the
property under this section, a proceeding for forfeiture under this
section may be brought in the judicial district in which the defendant
owning such property is found or in the judicial district in which the
criminal prosecution is brought.
(i)
(1)Whenever
property is civilly or criminally
forfeited under this chapter, the Attorney General or the Secretary of
the Treasury, as the case may be, may transfer the forfeited personal
property or the proceeds of the sale of any forfeited personal or real
property to any foreign country which participated directly or
indirectly in the seizure or forfeiture of the property, if such a
transfer—
(A)has
been agreed to by the Secretary of State;
(B)is
authorized in an international agreement
between the United States and the foreign country; and
(C)is
made to a country which, if applicable, has
been certified under section 481(h) [4]
of the Foreign Assistance Act of 1961.
A
decision by the Attorney General or the
Secretary of the Treasury pursuant to this paragraph shall not be
subject to review. The foreign country shall, in the event of a
transfer of property or proceeds of sale of property under this
subsection, bear all expenses incurred by the United States in the
seizure, maintenance, inventory, storage, forfeiture, and disposition
of the property, and all transfer costs. The payment of all such
expenses, and the transfer of assets pursuant to this paragraph, shall
be upon such terms and conditions as the Attorney General or the
Secretary of the Treasury may, in his discretion, set.
(2)The
provisions of this section shall not be
construed as limiting or superseding any other authority of the United
States to provide assistance to a foreign country in obtaining property
related to a crime committed in the foreign country, including property
which is sought as evidence of a crime committed in the foreign
country.
(3)A
certified order or judgment of forfeiture by a
court of competent jurisdiction of a foreign country concerning
property which is the subject of forfeiture under this section and was
determined by such court to be the type of property described in
subsection (a)(1)(B) of this section, and any certified recordings or
transcripts of testimony taken in a foreign judicial proceeding
concerning such order or judgment of forfeiture, shall be admissible in
evidence in a proceeding brought pursuant to this section. Such
certified order or judgment of forfeiture, when admitted into evidence,
shall constitute probable cause that the property forfeited by such
order or judgment of forfeiture is subject to forfeiture under this
section and creates a rebuttable presumption of the forfeitability of
such property under this section.
(4)A
certified order or judgment of conviction by a
court of competent jurisdiction of a foreign country concerning an
unlawful drug activity which gives rise to forfeiture under this
section and any certified recordings or transcripts of testimony taken
in a foreign judicial proceeding concerning such order or judgment of
conviction shall be admissible in evidence in a proceeding brought
pursuant to this section. Such certified order or judgment of
conviction, when admitted into evidence, creates a rebuttable
presumption that the unlawful drug activity giving rise to forfeiture
under this section has occurred.
(5)The
provisions of paragraphs (3) and (4) of this
subsection shall not be construed as limiting the admissibility of any
evidence otherwise admissible, nor shall they limit the ability of the
United States to establish probable cause that property is subject to
forfeiture by any evidence otherwise admissible.
(j)For
purposes of this section—
(1)the
term “Attorney General” means the Attorney
General or his delegate; and
(2)the
term “Secretary of the Treasury” means the
Secretary of the Treasury or his delegate.
(k)Interbank
Accounts.—
(1) In
general.—
(A) In
general.— For
the purpose of a forfeiture under this
section or under the Controlled Substances Act (21
U.S.C. 801
et seq.), if funds are deposited into an account at a foreign financial
institution (as defined in section 984(c)(2)(A)
of this title), and that foreign financial institution (as defined in
section 984(c)(2)(A)
of this title) has an interbank account in the United States with a
covered financial institution (as defined in section 5318(j)(1)
of title 31),
the funds shall be deemed to have been deposited into the interbank
account in the United States, and any restraining order, seizure
warrant, or arrest warrant in rem regarding the funds may be served on
the covered financial institution, and funds in the interbank account,
up to the value of the funds deposited into the account at the foreign
financial institution (as defined in section 984(c)(2)(A)
of this title), may be restrained, seized, or arrested.
(B)Authority
to suspend.— The
Attorney General, in consultation with the
Secretary of the Treasury, may suspend or terminate a forfeiture under
this section if the Attorney General determines that a conflict of law
exists between the laws of the jurisdiction in which the foreign
financial institution (as defined in section 984(c)(2)(A)
of this title) is located and the laws of the United States with
respect to liabilities arising from the restraint, seizure, or arrest
of such funds, and that such suspension or termination would be in the
interest of justice and would not harm the national interests of the
United States.
(2) No
requirement for government to trace funds.— If a
forfeiture action is brought against funds
that are restrained, seized, or arrested under paragraph (1), it shall
not be necessary for the Government to establish that the funds are
directly traceable to the funds that were deposited into the foreign
financial institution (as defined in section 984(c)(2)(A)
of this title), nor shall it be necessary for the Government to rely on
the application of section 984.
(3)Claims
brought by owner of the funds.— If a
forfeiture action is instituted against
funds restrained, seized, or arrested under paragraph (1), the owner of
the funds deposited into the account at the foreign financial
institution (as defined in section 984(c)(2)(A)
of this title) may contest the forfeiture by filing a claim under
section 983.
(4)Definitions.—
For
purposes of this subsection, the following
definitions shall apply:
(A)Interbank
account.— The
term “interbank account” has the same meaning
as in section 984(c)(2)(B).
(B)Owner.—
(i) In
general.— Except
as provided in clause (ii), the term
“owner”—
(I)means
the person who was the owner, as that term
is defined in section 983(d)(6), of the funds that were deposited into
the foreign financial institution (as defined in section 984(c)(2)(A)
of this title) at the time such funds were deposited; and
(II)does
not include either the foreign financial
institution (as defined in section 984(c)(2)(A)
of this title) or any financial institution acting as an intermediary
in the transfer of the funds into the interbank account.
(ii)Exception.—
The
foreign financial institution (as defined in
section 984(c)(2)(A)
of this title) may be considered the “owner” of the
funds (and no other
person shall qualify as the owner of such funds) only if—
(I)the
basis for the forfeiture action is wrongdoing
committed by the foreign financial institution (as defined in section 984(c)(2)(A)
of this title); or
(II)the
foreign financial institution (as defined in
section 984(c)(2)(A)
of this title) establishes, by a preponderance of the evidence, that
prior to the restraint, seizure, or arrest of the funds, the foreign
financial institution (as defined in section 984(c)(2)(A)
of this title) had discharged all or part of its obligation to the
prior owner of the funds, in which case the foreign financial
institution (as defined in section 984(c)(2)(A)
of this title) shall be deemed the owner of the funds to the extent of
such discharged obligation.
TITLE
18 > PART I
> CHAPTER
47 >
§ 1028. Fraud and related activity in connection with
identification documents, authentication features, and information
(a)Whoever,
in a circumstance described in
subsection (c) of this section—
(1)knowingly
and without lawful authority produces
an identification document, authentication feature, or a false
identification document;
(2)knowingly
transfers an identification document,
authentication feature, or a false identification document knowing that
such document or feature was stolen or produced without lawful
authority;
(3)knowingly
possesses with intent to use unlawfully
or transfer unlawfully five or more identification documents (other
than those issued lawfully for the use of the possessor),
authentication features, or false identification documents;
(4)knowingly
possesses an identification document
(other than one issued lawfully for the use of the possessor),
authentication feature, or a false identification document, with the
intent such document or feature be used to defraud the United States;
(5)knowingly
produces, transfers, or possesses a
document-making implement or authentication feature with the intent
such document-making implement or authentication feature will be used
in the production of a false identification document or another
document-making implement or authentication feature which will be so
used;
(6)knowingly
possesses an identification document or
authentication feature that is or appears to be an identification
document or authentication feature of the United States or a sponsoring
entity of an event designated as a special event of national
significance which is stolen or produced without lawful authority
knowing that such document or feature was stolen or produced without
such authority;
(7)knowingly
transfers, possesses, or uses, without
lawful authority, a means of identification of another person with the
intent to commit, or to aid or abet, or in connection with, any
unlawful activity that constitutes a violation of Federal law, or that
constitutes a felony under any applicable State or local law; or
(8)knowingly
traffics in false or actual
authentication features for use in false identification documents,
document-making implements, or means of identification;
shall
be punished as provided in subsection (b)
of this section.
(b)The
punishment for an offense under subsection
(a) of this section is—
(1)except
as provided in paragraphs (3) and (4), a
fine under this title or imprisonment for not more than 15 years, or
both, if the offense is—
(A)the
production or transfer of an identification
document, authentication feature, or false identification document that
is or appears to be—
(i)an
identification document or authentication
feature issued by or under the authority of the United States; or
(ii)a
birth certificate, or a driver’s license or
personal identification card;
(B)the
production or transfer of more than five
identification documents, authentication features, or false
identification documents;
(C)an
offense under paragraph (5) of such
subsection; or
(D)an
offense under paragraph (7) of such subsection
that involves the transfer, possession, or use of 1 or more means of
identification if, as a result of the offense, any individual
committing the offense obtains anything of value aggregating $1,000 or
more during any 1-year period;
(2)except
as provided in paragraphs (3) and (4), a
fine under this title or imprisonment for not more than 5 years, or
both, if the offense is—
(A)any
other production, transfer, or use of a means
of identification, an identification document,,[1]
authentication feature, or a false identification document; or
(B)an
offense under paragraph (3) or (7) of such
subsection;
(3)a
fine under this title or imprisonment for not
more than 20 years, or both, if the offense is committed—
(A)to
facilitate a drug trafficking crime (as
defined in section 929(a)(2));
(B)in
connection with a crime of violence (as
defined in section 924(c)(3));
or
(C)after
a prior conviction under this section
becomes final;
(4)a
fine under this title or imprisonment for not
more than 30 years, or both, if the offense is committed to facilitate
an act of domestic terrorism (as defined under section 2331(5)
of this title) or an act of international terrorism (as defined in
section 2331(1)
of this title);
(5)in
the case of any offense under subsection (a),
forfeiture to the United States of any personal property used or
intended to be used to commit the offense; and
(6)a
fine under this title or imprisonment for not
more than one year, or both, in any other case.
(c)The
circumstance referred to in subsection (a) of
this section is that—
(1)the
identification document, authentication
feature, or false identification document is or appears to be issued by
or under the authority of the United States or a sponsoring entity of
an event designated as a special event of national significance or the
document-making implement is designed or suited for making such an
identification document, authentication feature, or false
identification document;
(2)the
offense is an offense under subsection (a)(4)
of this section; or
(3)either—
(A)the
production, transfer, possession, or use
prohibited by this section is in or affects interstate or foreign
commerce, including the transfer of a document by electronic means; or
(B)the
means of identification, identification
document, false identification document, or document-making implement
is transported in the mail in the course of the production, transfer,
possession, or use prohibited by this section.
(1)the
term “authentication feature” means any
hologram, watermark, certification, symbol, code, image, sequence of
numbers or letters, or other feature that either individually or in
combination with another feature is used by the issuing authority on an
identification document, document-making implement, or means of
identification to determine if the document is counterfeit, altered, or
otherwise falsified;
(2)the
term “document-making implement” means any
implement, impression, template, computer file, computer disc,
electronic device, or computer hardware or software, that is
specifically configured or primarily used for making an identification
document, a false identification document, or another document-making
implement;
(3)the
term “identification document” means a
document made or issued by or under the authority of the United States
Government, a State, political subdivision of a State, a sponsoring
entity of an event designated as a special event of national
significance, a foreign government, political subdivision of a foreign
government, an international governmental or an international
quasi-governmental organization which, when completed with information
concerning a particular individual, is of a type intended or commonly
accepted for the purpose of identification of individuals;
(4)the
term “false identification document” means a
document of a type intended or commonly accepted for the purposes of
identification of individuals that—
(A)is
not issued by or under the authority of a
governmental entity or was issued under the authority of a governmental
entity but was subsequently altered for purposes of deceit; and
(B)appears
to be issued by or under the authority of
the United States Government, a State, a political subdivision of a
State, a sponsoring entity of an event designated by the President as a
special event of national significance, a foreign government, a
political subdivision of a foreign government, or an international
governmental or quasi-governmental organization;
(5)the
term “false authentication feature” means an
authentication feature that—
(A)is
genuine in origin, but, without the
authorization of the issuing authority, has been tampered with or
altered for purposes of deceit;
(B)is
genuine, but has been distributed, or is
intended for distribution, without the authorization of the issuing
authority and not in connection with a lawfully made identification
document, document-making implement, or means of identification to
which such authentication feature is intended to be affixed or embedded
by the respective issuing authority; or
(C)appears
to be genuine, but is not;
(6)the
term “issuing authority”—
(A)means
any governmental entity or agency that is
authorized to issue identification documents, means of identification,
or authentication features; and
(B)includes
the United States Government, a State, a
political subdivision of a State, a sponsoring entity of an event
designated by the President as a special event of national
significance, a foreign government, a political subdivision of a
foreign government, or an international government or
quasi-governmental organization;
(7)the
term “means of identification” means any name
or number that may be used, alone or in conjunction with any other
information, to identify a specific individual, including
any—
(A)name,
social security number, date of birth,
official State or government issued driver’s license or
identification
number, alien registration number, government passport number, employer
or taxpayer identification number;
(B)unique
biometric data, such as fingerprint, voice
print, retina or iris image, or other unique physical representation;
(C)unique
electronic identification number, address,
or routing code; or
(D)telecommunication
identifying information or
access device (as defined in section 1029(e));
(8)the
term “personal identification card” means an
identification document issued by a State or local government solely
for the purpose of identification;
(9)the
term “produce” includes alter, authenticate,
or assemble;
(10)the
term “transfer” includes selecting an
identification document, false identification document, or
document-making implement and placing or directing the placement of
such identification document, false identification document, or
document-making implement on an online location where it is available
to others;
(11)the
term “State” includes any State of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, and
any other commonwealth, possession, or territory of the United States;
and
(12)the
term “traffic” means—
(A)to
transport, transfer, or otherwise dispose of,
to another, as consideration for anything of value; or
(B)to
make or obtain control of with intent to so
transport, transfer, or otherwise dispose of.
(e)This
section does not prohibit any lawfully
authorized investigative, protective, or intelligence activity of a law
enforcement agency of the United States, a State, or a political
subdivision of a State, or of an intelligence agency of the United
States, or any activity authorized under chapter 224
of this title.
(f)Attempt
and Conspiracy.— Any
person who attempts or conspires to commit
any offense under this section shall be subject to the same penalties
as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.
(g)Forfeiture
Procedures.— The
forfeiture of property under this section,
including any seizure and disposition of the property and any related
judicial or administrative proceeding, shall be governed by the
provisions of section 413 (other than subsection (d) of that section)
of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 853).
(h)Forfeiture;
Disposition.— In
the circumstance in which any person is
convicted of a violation of subsection (a), the court shall order, in
addition to the penalty prescribed, the forfeiture and destruction or
other disposition of all illicit authentication features,
identification documents, document-making implements, or means of
identification.
(i)Rule
of Construction.— For purpose of subsection (a)(7), a
single
identification document or false identification document that contains
1 or more means of identification shall be construed to be 1 means of
identification.
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