§ 1467. — Criminal forfeiture.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC1467]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 71--OBSCENITY
Sec. 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--
(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--
(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--
(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--
(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).
(Added Pub. L. 100-690, title VII, Sec. 7522(a), Nov. 18, 1988, 102
Stat. 4490; amended Pub. L. 101-647, title XXXV, Sec. 3549, Nov. 29,
1990, 104 Stat. 4926.)
References in Text
The Federal Rules of Evidence, referred to in subsec. (c)(3), are
set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
Section 616 of the Tariff Act of 1930, referred to in subsec.
(h)(4), is classified to section 1616a of Title 19, Customs Duties.
The Federal Rules of Criminal Procedure, referred to in subsec. (k),
are set out in the Appendix to this title.
Amendments
1990--Subsec. (h)(4). Pub. L. 101-647 substituted ``under section
616 of the Tariff Act of 1930'' for ``in accordance with the provisions
of section 1616, title 19, United States Code''.
