HR1525-118

1. Short title This Act may be cited as the Fifth Amendment Integrity Restoration Act of 2023 or the FAIR Act of 2023.

2. Civil forfeiture and nonjudicial forfeiture Section 983 of title 18, United States Code, is amended— in subsection (a)— in the subsection heading, by striking claim;; in paragraph (1)— in subparagraph (A)— in clause (i)— by striking clauses (ii) through (v), in any nonjudicial and inserting clause (ii), in any; and by striking 60 and inserting 7; by striking clauses (ii) through (v); by inserting after clause (i) the following: If the identity or interest of a party is not determined until after the seizure or turnover but is determined before a declaration of forfeiture is entered, the Government shall determine the identity and address of the party or interest within 7 days after the seizure or turnover, and notice shall be sent to such interested party not later than 7 days after the determination by the Government of the identity and address of the party or the party's interest. by striking subparagraphs (B) and (C); by redesignating subparagraphs (D) through (F) as subparagraphs (B) through (D), respectively; and in subparagraph (C), as so redesignated, by striking nonjudicial; by striking paragraph (2); by redesignating paragraphs (3) and (4) as paragraphs (2) and (3), respectively; and in paragraph (2)(A), as so redesignated— by striking 90 and inserting 30; and by striking after a claim has been filed and inserting after the date of the seizure; in subsection (b)— in paragraph (1)— by amending subparagraph (A) to read as follows: If a person with standing to contest the forfeiture of property in a civil forfeiture proceeding under a civil forfeiture statute is— financially unable to obtain representation by counsel; or the cost of obtaining representation would exceed the value of the seized property, in subparagraph (B), by inserting or appoint after authorize; and in paragraph (2)(A)— by striking in a judicial civil forfeiture proceeding and inserting in a civil forfeiture proceeding; by inserting under paragraph (1) after counsel; by striking , and the property subject to forfeiture is real property that is being used by the person as a primary residence,; and by striking , at the request of the person, shall insure and inserting shall ensure; in subsection (c)— in paragraph (1), by striking a preponderance of the evidence and inserting clear and convincing evidence; in paragraph (2), by striking a preponderance of the evidence and inserting clear and convincing evidence; and by striking paragraph (3) and inserting the following: if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish, by clear and convincing evidence, that— there was a substantial connection between the property and the offense; and the owner of any interest in the seized property— used the property with intent to facilitate the offense; or knowingly consented or was willfully blind to the use of the property by another in connection with the offense. in subsection (d)— in paragraph (1), by striking the second sentence and inserting the following: The Government shall have the burden of proving that the claimant is not an innocent owner by a preponderance of the evidence.; and in paragraph (2)— in subparagraph (A), by striking an owner who and all that follows through upon learning and inserting an owner who, upon learning; and in subparagraph (B)(i), by inserting before For purposes of this paragraph the following: If the Government satisfies its burden under paragraph (1), the claimant may rebut the Government’s evidence related to his innocent ownership, including by showing that he did all that could reasonably be expected under the law.; in subsection (e)— in paragraph (1), in the matter preceding subparagraph (A)— by striking nonjudicial; and by striking a declaration and inserting an order; in paragraph (2)— in subparagraph (A), by striking declaration and inserting order; and by striking subparagraph (B) and inserting the following: Any proceeding described in subparagraph (A) shall be commenced within 6 months of the entry of the order granting the motion. by striking paragraph (5); in subsection (f)(1), in the matter preceding subparagraph (A), by striking (a) and inserting (a)(3)(A); in subsection (g)— in paragraph (1), by striking (a)(4) and inserting (a)(3); and by amending paragraph (2) to read as follows: In making this determination, the court shall consider such factors as— the seriousness of the offense; the extent of the nexus of the property to the offense; the range of sentences available for the offense giving rise to forfeiture; the fair market value of the property; and the hardship to the property owner and dependents. by adding at the end the following: Notwithstanding any other provision of law— no Federal seizing agency may conduct nonjudicial forfeitures; no property may be subject to forfeiture except through judicial process; and no order of forfeiture may be entered except by a United States district court. In this subsection, the term nonjudicial forfeiture means an in rem action that permits the Federal seizing agency to start a forfeiture without judicial involvement. (ii)If the identity or interest of a party is not determined until after the seizure or turnover but is determined before a declaration of forfeiture is entered, the Government shall determine the identity and address of the party or interest within 7 days after the seizure or turnover, and notice shall be sent to such interested party not later than 7 days after the determination by the Government of the identity and address of the party or the party's interest.; (A)If a person with standing to contest the forfeiture of property in a civil forfeiture proceeding under a civil forfeiture statute is— (i)financially unable to obtain representation by counsel; or (ii)the cost of obtaining representation would exceed the value of the seized property,the court may authorize or appoint counsel to represent that person with respect to the claim.; (3)if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish, by clear and convincing evidence, that— (A)there was a substantial connection between the property and the offense; and (B)the owner of any interest in the seized property— (i)used the property with intent to facilitate the offense; or (ii)knowingly consented or was willfully blind to the use of the property by another in connection with the offense.; (B)Any proceeding described in subparagraph (A) shall be commenced within 6 months of the entry of the order granting the motion.; and (2)In making this determination, the court shall consider such factors as— (A)the seriousness of the offense; (B)the extent of the nexus of the property to the offense; (C)the range of sentences available for the offense giving rise to forfeiture; (D)the fair market value of the property; and (E)the hardship to the property owner and dependents.; and (k) (1)Notwithstanding any other provision of law— (A)no Federal seizing agency may conduct nonjudicial forfeitures; (B)no property may be subject to forfeiture except through judicial process; and (C)no order of forfeiture may be entered except by a United States district court. (2)In this subsection, the term nonjudicial forfeiture means an in rem action that permits the Federal seizing agency to start a forfeiture without judicial involvement..

3. Disposition of forfeited property Section 511(e) of the Controlled Substances Act (21 U.S.C. 881(e)) is amended— in paragraph (1)— in the matter preceding subparagraph (A), by striking civilly or; by striking subparagraph (A); and by redesignating subparagraphs (B) through (E) as subparagraphs (A) through (D), respectively; in paragraph (2)— in subparagraph (A), in the matter preceding clause (i), by striking subparagraph (B) of paragraph (1) and inserting paragraph (1)(A); and in subparagraph (B), by striking accordance with section 524(c) of title 28, and inserting the General Fund of the Treasury of the United States; by striking paragraph (3); by redesignating paragraph (4) as paragraph (3); and in paragraph (3), as redesignated— in subparagraph (A), by striking paragraph (1)(B) and inserting paragraph (1)(A); and in subparagraph (B), in the matter preceding clause (i), by striking paragraph (1)(B) that is civilly or and inserting paragraph (1)(A) that is. Chapter 46 of title 18, United States Code, is amended— in section 981(e)— by striking is authorized and all that follows through or forfeiture of the property; and inserting shall forward to the Treasurer of the United States any proceeds of property forfeited pursuant to this section for deposit in the General Fund of the Treasury or transfer such property on such terms and conditions as such officer may determine—; by redesignating paragraphs (3), (4), (5), (6), and (7) as paragraphs (1), (2), (3), (4), and (5), respectively; and in the matter following paragraph (5), as so redesignated— by striking the first, second, third, sixth, and eighth sentences; and by striking paragraph (3), (4), or (5) and inserting paragraph (1), (2), or (3); and in section 983(g)— in paragraph (3), by striking grossly; and in paragraph (4), by striking grossly. The Tariff Act of 1930 (19 U.S.C. 1304 et seq.) is amended— in section 613A(a) (19 U.S.C. 1613b(a))— in paragraph (1)— in subparagraph (D), by inserting and after the semicolon; in subparagraph (E), by striking ; and and inserting a period; and by striking subparagraph (F); and in paragraph (2)— by striking (A) Any payment and inserting Any payment; and by striking subparagraph (B); and in section 616 (19 U.S.C. 1616a)— in the section heading, by striking Transfer of forfeited property and inserting Dismissal in favor of forfeiture under State law; in subsection (a), by striking (a) The Secretary and inserting The Secretary; and by striking subsections (b) through (d). Section 9705 of title 31, United States Code, is amended— in subsection (a)(1)— by striking subparagraph (G); and by redesignating subparagraphs (H) through (J) as subparagraphs (G) through (I), respectively; and in subsection (b)— by striking paragraphs (2) and (4); and by redesignating paragraphs (3) and (5) as paragraphs (2) and (3), respectively.

4. Department of Justice Assets Forfeiture Fund deposits Section 524(c)(4) of title 28, United States Code, is amended— by striking subparagraphs (A) and (B); and by redesignating subparagraphs (C) and (D) as subparagraphs (A) and (B), respectively.

5. Structuring transactions to evade reporting requirement prohibited Section 5324 of title 31, United States Code, is amended— in subsection (a)— in the matter preceding paragraph (1), by inserting knowingly after Public Law 91–508; and in paragraph (3), by inserting of funds not derived from a legitimate source after any transaction; in subsection (b), in the matter preceding paragraph (1), by inserting knowingly after such section; and in subsection (c), in the matter preceding paragraph (1), by inserting knowingly after section 5316. Section 5317 of title 31, United States Code, is amended by adding at the end the following: Not later than 14 days after the date on which notice is provided under paragraph (2)— a court of competent jurisdiction shall conduct a hearing on any property seized or restrained under subsection (c)(2) with respect to an alleged violation of section 5324; and any property described in subparagraph (A) shall be returned unless the court finds that there is probable cause to believe that there is a violation of section 5324 involving the property. Each person from whom property is seized or restrained under subsection (c)(2) with respect to an alleged violation of section 5324 shall be notified of the right of the person to a hearing under paragraph (1). The amendment made by paragraph (1) shall apply to property seized or restrained after the date of enactment of this Act. (d)Probable cause hearing in connection with property seizures relating to certain monetary instruments transactions (1)In generalNot later than 14 days after the date on which notice is provided under paragraph (2)— (A)a court of competent jurisdiction shall conduct a hearing on any property seized or restrained under subsection (c)(2) with respect to an alleged violation of section 5324; and (B)any property described in subparagraph (A) shall be returned unless the court finds that there is probable cause to believe that there is a violation of section 5324 involving the property. (2)NoticeEach person from whom property is seized or restrained under subsection (c)(2) with respect to an alleged violation of section 5324 shall be notified of the right of the person to a hearing under paragraph (1)..

6. Reporting requirements Section 524(c)(6)(A)(i) of title 28, United States Code, is amended by inserting from each type of forfeiture, and specifically identifying which funds were obtained from including criminal forfeitures and which were obtained from civil forfeitures, after deposits.

7. Applicability The amendments made by this Act shall apply to— any civil forfeiture proceeding pending on or filed on or after the date of enactment of this Act; and any amounts received from the forfeiture of property on or after the date of enactment of this Act.