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U.S. Code as of:
01/19/04
Section 1467. Criminal forfeiture
(a) Property Subject to Criminal Forfeiture. - A person who is
convicted of an offense involving obscene material under this
chapter shall forfeit to the United States such person's interest
in -
(1) any obscene material produced, transported, mailed,
shipped, or received in violation of this chapter;
(2) any property, real or personal, constituting or traceable
to gross profits or other proceeds obtained from such offense;
and
(3) any property, real or personal, used or intended to be used
to commit or to promote the commission of such offense, if the
court in its discretion so determines, taking into consideration
the nature, scope, and proportionality of the use of the property
in the offense.
(b) 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 (m) 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.
(c) 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
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(A) upon the filing of an indictment or information charging a
violation 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
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(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;
except that an order entered under subparagraph (B) shall be
effective for not more than 90 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 10 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.
(d) 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 (c) 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.
(e) Order of Forfeiture. - The court shall order forfeiture of
property referred to in subsection (a) if -
(1) the trier of fact determines, beyond a reasonable doubt,
that such property is subject to forfeiture; and
(2) with respect to property referred to in subsection (a)(3),
if the court exercises the court's discretion under that
subsection.
(f) 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.
(g) Disposition of Property. - Following the seizure of property
ordered forfeited under this section, the Attorney General shall
destroy or retain for official use any property described in
paragraph (1) of subsection (a) and shall direct the disposition of
any property described in paragraph (2) or (3) of subsection (a) 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 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.
(h) Authority of 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
chapter, 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) comprise 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, under section
616 of the Tariff Act of 1930, 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.
(i) Bar on Intervention. - Except as provided in subsection (l)
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.
(j) 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.
(k) 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.
(l) 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 30 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 30
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
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(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.
(m) Construction. - This section shall be liberally construed to
effectuate its remedial purposes.
(n) Substitute Assets. - If any of the property described in
subsection (a), as a result of any act or omission of the defendant
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(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).
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