text:
Page:United States Statutes at Large Volume 98 Part 2.djvu/874

 98 STAT. 2034

4.

-%

Post, p 3139

18 USC 3591.

PUBLIC LAW 98-473—OCT. 12, 1984

(B) specify, and demonstrate compliance with, an installment schedule established by a court before enactment of the amendments made by this Act, specifying the dates on which designated partial payments will be made; or (C) establish with the concurrence of the Attorney General, a new installment schedule of a duration not exceeding two years, except in special circumstances, and specifying the dates on which designated partial payments will be made. (2) This subsection shall not apply in cases in which— (A) the Attorney General believes the likelihood of collection is remote; or (B) criminal fines have been stayed pending appeal. (b) The Attorney General shall, within one hundred and eighty days after the effective date of this Act, declare all fines for which this obligation is unfulfilled to be in criminal default, subject to the civil and criminal remedies established by amendments made by this Act. No interest or monetary penalties shall be charged on any fines subject to this section. (c) Not later than one year following the effective date of this Act, the Attorney General shall include in the annual crime report steps taken to implement this Act and the progress achieved in criminal fine collection, including collection data for each judicial district. SEC. 238. (a) Title 18 of the United States Code is amended by adding the following new chapter after chapter 227: "CHAPTER 228—IMPOSITION, PAYMENT, AND COLLECTION OF FINES "Sec. "3591. Imposition of a fine. "3592. Payment of a fine, delinquency and default. "3593. Modification or remission of fine. "3594. Certification and notification. "3595. Interest, monetary penalties for delinquency, and default. "3596. Civil remedies for satisfaction of an unpaid fine. "3597. Resentencing upon failure to pay a fine. "3598. Statute of limitations. "3599. Criminal default.

"§ 3591. Imposition of a fine "(a) FACTORS TO B E CONSIDERED IN IMPOSING A FINE.—The court, in determining whether to impose a fine, the amount of any fine, the time for payment, and the method of payment, shall consider— "(1) the ability of the defendant to pay the fine in view of the income of the defendant, earning capacity and financial resources, and, if the defendant is an organization, the size of the organization; "(2) the nature of the burden that payment of the fine will impose on the defendant, and on any person who is financially dependent on the defendant, relative to the burden which alternative punishments would impose; ' "(3) any restitution or reparation made by the defendant in connection with the offense and any obligation imposed upon the defendant to make such restitution or reparation; "(4) if the defendant is an organization, any measure taken by the organization to discipline its employees or agents responsible for the offense or to ensure against a recurrence of such an offense; and

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text:
Page:Letter from Frank Wilson updating the Capone investigation, March 27, 1931.djvu/3

 We have secured further evidence relating to Sam Guznik, who was indicted for the years 1927 and 1928. The new evidence relates to the year 1929, and a new indictment covering the three years is to be returned by the grand jury within a day or two.

I was anxious to get an additional special agent started, promptly, on some new angles of the Capone case, and you wired instructions that Special Agent Sullivan be assigned. It was necessary for him to complete some work on the police cases, and he has not been available until this afternoon. I have some leads which may establish income to Capone from houses of prostitution, and Agents Sullivan and Malone are starting out this afternoon on that angle. I believe that this angle will warrant careful investigation, because in the event that we an show the connection of the taxpayer with this particularly disreputable business, we would probably be assured of a conviction in the event such evidence is brought before the jury. We also believe that if such evidence is presented, the court would, no doubt, inflict a heavier sentence than would be inflicted if the income related only to gambling.

With office space which was talked about when you were in Chicago has not materialized. We may get a small room suitable for one or two men to work in within a few days, if some furniture can be secured. The room is located next to the United States Commissioner's Office where there are a lot of questionable persons hanging around the halls. I would not feel it advisable to use that room unless we could have steel filing cabinets in which to lock our records. We are now using four cabinets in this office, and we are badly in need of two or three more, as the old desk I am using cannot be locked, and the ancient flat top desk being used by Revenue Agents Clagett, Westrich and Hodgins cannot be locked. The three revenue agents have one small desk between them. I have tried to get the use of an additional steel cabinet but they are needed for other purposes. I tried today to borrow a cabinet from the United States Attorney's Office, and they are "to let me know about it". That is the usual stall around here.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Page:United States Statutes at Large Volume 98 Part 2.djvu/875

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2035

"(5) any other pertinent consideration. "(b) EFFECT OF FINALITY OF JUDGMENT.—Notwithstanding the fact that a sentence to pay a fine can subsequently be— "(1) modified or remitted pursuant to the provisions of section 3592; "(2) corrected pursuant to the provisions of rule 35; or "(3) appealed; a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes. "§ 3592. Payment of a fine, delinquency and default "(a) TIME AND METHOD OF PAYMENT.—Payment of a fine is due immediately unless the court, at the time of sentencing— "(1) requires payment by a date certain; or "(2) establishes an installment schedule, the specific terms of which shall be fixed by the court. "(b) INDIVIDUAL RESPONSIBILITIES FOR PAYMENT.—If a fine is imposed on an organization, it is the duty of each individual authorized to make disbursement of the assets of the organization to pay the fine from assets of the organization. If a fine is imposed on an agent or shareholder of an organization, the fine shall not be paid, directly or indirectly, out of the assets of the organization, unless the court finds that such payment is expressly permissible under applicable State law. "(c) RESPONSIBILITY TO PROVIDE CURRENT ADDRESS.—At the time of imposition of the fine, the court shall order the person fined to provide the Attorney General with a current mailing address for the entire period that any part of the fine remains unpaid. Failure to provide the Attorney General with a current address or a change in address shall be punishable as a contempt of court. "(d) STAY OF FINE PENDING APPEAL.—Unless exceptional circumstances exist, if a sentence to pay a fine is stayed pending appeal, the court granting the stay shall include in such stay— "(1) a requirement that the defendant, pending appeal, deposit the entire fine amount, or the amount due under an installment schedule, during the pendency of an appeal, in an escrow account in the registry of the district court, or to give bond for the payment thereof; or "(2) an order restraining the defendant from transferring or dissipating assets found to be sufficient, if sold, to meet the defendant's fine obligation. "(e) DELINQUENT FINE.—A fine is delinquent if any portion of such fine is not paid within thirty days of when it is due, including any fines to be paid pursuant to an installment schedule. "(f) DEFAULT.—A fine is in default if any portion of such fine is more than ninety days delinquent. When a criminal fine is in default, the entire amount is due within thirty days of notification of the default, notwithstanding any installment schedule. "§ 3593. Modification or remission of fine "(a) PETITION FOR MODIFICATION OR REMISSION.—A person who has been sentenced to pay a fine, and who— "(1) can show a good faith effort to comply with the terms of the sentence and concerning whom the circumstances no longer exist that warranted the imposition of the fine in the amount imposed or payment by the installment schedule, may at any time petition the court for—

Ante, p. 2015.

18 USC 3592.

18 USC 3593.

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text:
Page:United States Statutes at Large Volume 98 Part 2.djvu/876

 98 STAT. 2036

PUBLIC LAW 98-473—OCT. 12, 1984

"(A) an extension of the installment schedule, not to exceed two years except in case of incarceration or special circumstances; or "(B) a remission of all or part of the unpaid portion including interest and penalties; or "(2) has voluntarily made restitution or reparation to the victim of the offense, may at any time petition the court for a remission of the unpaid portion of the fine in an amount not exceeding the amount of such restitution or reparation. Any petition filed pursuant to this subsection shall be filed in the court in which sentence was originally imposed, unless that court transfers jurisdiction to another court. The petitioner shall notify the Attorney General that the petition has been filed within ten working days after filing. For the purposes of clause (1), unless exceptional circumstances exist, a person may be considered to have made a good faith effort to comply with the terms of the sentence only after payment of a reasonable portion of the fine. "(b) ORDER OF MODIFICATION OR REMISSION,—If, after the filing of a petition as provided in subsection (a), the court finds that the circumstances warrant relief, the court may enter an appropriate order, in which case it shall provide the Attorney General with a copy of such order.

' 'i*^

18 USC 3594.

•

"§ 3594. Certification and notification "(a) DISPOSITION OF PAYMENT.—The clerk shall forward each fine payment to the United States Treasury and shall notify the Attorney General of its receipt within ten working days. "(b) CERTIFICATION OF IMPOSITION.—If a fine exceeding $100 is imposed, modified, or remitted, the sentencing court shall incorporate in the order imposing, remitting, and modifying such fine, and promptly certify to the Attorney General— "(1) the name of the person fined; "(2) his current address; "(3) the docket number of the case; "(4) the amount of the fine imposed; "(5) any installment schedule; "(6) the nature of any modification or remission of the fine or installment schedule; and "(7) the amount of the fine that is due and unpaid. "(c) RESPONSIBILITY FOR COLLECTION.—The Attorney General shall be responsible for collection of an unpaid fine concerning which a certification has been issued as provided in subsection (a). "(d) NOTIFICATION OF DEUNQUENCY.—Within ten working days after a fine is determined to be delinquent as provided in section 3592(e), the Attorney General shall notify the person whose fine is delinquent, by certified mail, to inform him that the fine is delinquent. "(e) NOTIFICATION OF DEFAULT.—Within ten working days after a fine is determined to be in default as provided in section 3592(f), the Attorney General shall notify the person defaulting, by certified mail, to inform him that the fine is in default and the entire unpaid balance, including interest and penalties, is due within thirty days.

18 USC 3595.

"§ 3595. Interest, monetary penalties for delinquency, and default "Upon a determination of willful nonpayment, the court may impose the following interest and monetary penalties:

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text:
Page:United States Statutes at Large Volume 98 Part 2.djvu/877

 PUBLIC LAW 98-473—OCT. 12, 1984 '• '

98 STAT. 2037

"(1) INTEREST.—Notwithstanding any other provision of law, interest at the rate of 1 per centum per month, or 12 per centum per year, shall be charged, beginning the thirty-first day after sentencing on the first day of each month during which any fine balance remains unpaid, including sums to be paid pursuant to an installment schedule. "(2) MONETARY PENALTIES FOR DELINQUENT FINES.—Notwith-

standing any other provision of law, a penalty sum equal to 10 per centum shall be charged for any portion of a criminal fine which has become delinquent. The Attorney General may waive all or part of the penalty for good cause. "§ 3596. Civil remedies for satisfaction of an unpaid fine "(a) LIEN.—A fine imposed as a sentence is a lien in favor of the United States upon all property belonging to the person fined. The lien arises at the time of the entry of the judgment and continues until the liability is satisfied, remitted, or set aside, or until it becomes unenforceable pursuant to the provisions of subsection (b). On application of the person fined, the Attorney General shall— "(1) issue a certificate of release, as described in section 6325 of the Internal Revenue Code, of any lien imposed pursuant to this section, upon his acceptance of a bond described in section 6325(a)(2) of the Internal Revenue Code; or "(2) issue a certificate of discharge, as described in section 6325 of the Internal Revenue Code, of any part of the person's property subject to a lien imposed pursuant to this section, upon his determination that the fair market value of that part of such property remaining subject to and available to satisfy the lien is at least three times the amount of the fine. "(b) EXPIRATION OF LIEN.—A lien becomes unenforceable at the time liability to pay a fine expires as provided in section 3598. "(c) APPLICATION OF OTHER LIEN PROVISIONS.—The provisions of sections 6323, 6331, 6334 through 6336, 6337(a), 6338 through 6343, 6901, 7402, 7403, 7424 through 7426, 7505(a), 7506, 7701, and 7805 of the Internal Revenue Code of 1954 (26 U.S.C. 6323, 6331, 6332, 6334 through 6336, 6337(a), 6338 through 6343, 6901, 7402, 7403, 7424 through 7426, 7505(a), 7506, 7701, and 7805) and of section 513 of the Act of October 17, 1940 (54 Stat. 1190), apply to a fine and to the lien imposed by subsection (a) as if the liability of the person fined were for an internal revenue tax assessment, except to the extent that the application of such statutes is modified by regulations issued by the Attorney General to accord with differences in the nature of the liabilities. For the purposes of this subsection, references in the preceding sections of the Internal Revenue Code of 1954 to 'the Secretary' shall be construed to mean 'the Attorney General,' and references in those sections to 'tax' shall be construed to mean 'fine.' "(d) EFFECT ON NOTICE OF LIEN.—A notice of the lien imposed by subsection (a) shall be considered a notice of lien for taxes payable to the United States for the purposes of any State or local law providing for the filing of a notice of a tax lien. The registration, recording, docketing, or indexing, in accordance with 28 U.S.C. 1962, of the judgment under which a fine is imposed shall be considered for all purposes as the filing prescribed by section 6323(f)(1)(A) of the Internal Revenue Code of 1954 (26 U.S.C. 6323(f)(1)(A)) and by subsection (c). "(e) ALTERNATIVE ENFORCEMENT.—Notwithstanding any other provision of this section, a judgment imposing a fine may be

'

Waiver, 18 USC 3596.

26 USC 6325.

'

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50 USC app. 573.

26 USC l et seq.

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text:
Page:United States Statutes at Large Volume 98 Part 2.djvu/878

 98 STAT. 2038

PUBLIC LAW 98-473—OCT. 12, 1984

enforced by execution against the property of the person fined in like manner as judgments in civil cases. "(f) DISCHARGE OF DEBTS INAPPLICABLE.—No discharge of debts pursuant to a bankruptcy proceeding shall render a lien under this section unenforceable or discharge liability to pay a fine. 18 USC 3597.

,,,_

.

18 USC 3598.

"§ 3597. Resentencing upon failure to pay a fine "(a) RESENTENCING.—Subject to the provisions of subsection (b), if a person knowingly fails to pay a delinquent fine the court may resentence the person to any sentence which might originally have been imposed. "(b) IMPRISONMENT.—The defendant may be sentenced to a term of imprisonment under subsection (a) only if the court determines that' l l) the person willfully refused to pay the delinquent fine or had failed to make sufficient bona fide efforts to pay the fine; or "(2) in light of the nature of the offense and the characteristics of the person, alternatives to imprisonment are not adequate to serve the purposes of punishment and deterrence. "§ 3598. Statute of limitations "(a) LIABILITY To PAY A FINE EXPIRES.—

50 USC app. 573. 18 USC 3599. M V.

V

"(1) twenty years after the entry of the judgment; "(2) upon the death of the person fined. "(b) The period set forth in subsection (a) may be extended, prior to its expiration, by a written agreement between the person fined and the Attorney General. The running of the period set forth in subsection (a) is suspended during any interval for which the running of the period of limitations for collection of a tax would be suspended pursuant to section 6503(b), 6503(c), 6503(f), 6503(i), or 7508(a)(l)(I) of the Internal Revenue Code of 1954 (26 U.S.C. 6503(b), 6503(c), 6503(f), 6503(i), or 7508(a)(l)(I)), or section 513 of the Act of October 17, 1940 (54 Stat. 1190). "§ 3599. Criminal default "Whoever, having been sentenced to pay a fine, willfully fails to pay the fine, shall be fined not more than twice the amount of the unpaid balance of the fine or $10,000, whichever is greater, imprisoned not more than one year, or both.". (b) Section 3651 of title 18, United States Code, is amended by inserting after "May be required to provide for the support of any persons, for whose support he is legally responsible." the following new paragraph: "If the court has imposed and ordered execution of a fine and placed the defendant on probation, payment of the fine or adherence to the court-established installment schedule shall be a condition of the probation.". (c) Section 3651 of title 18, United States Code, is amended by striking out the last paragraph and inserting in lieu thereof the following: "The defendant's liability for any unexecuted fine or other punishment imposed as to which probation is granted, shall be fully discharged by the fulfillment of the terms and conditions of probation.". (d) The second paragraph of section 3655 of title 18, United States Code, is amended to read as follows:

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text:
Page:United States Statutes at Large Volume 98 Part 2.djvu/879

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2039

"He shall keep informed concerning the conduct, condition, and compliance with any condition of probation, including the payment of a fine or restitution of each probationer under his supervision, and shall report thereon to the court placing such person on probation. He shall report to the court any failure of a probationer under his supervision to pay a fine in default within thirty days after notification that it is in default so that the court may determine whether probation should be revoked.". (e) Section 4209 of title 18, United States Code, is amended in subsection (a) by striking out the period at the end of the first sentence and inserting in lieu thereof "and, in a case involving a criminal fine that has not already been paid, that the parolee pay or agree to adhere to an installment schedule, not to exceed two years except in special circumstances, to pay for any fine imposed for the offense.". (f) Subsection (b)(l) of section 4214 of title 18, United States Code, is amended by adding after "parole" the following: "or a failure to pay a fine in default within thirty days after notification that it is in default". (g)(1) Section 3565 of title 18, United States Code, is repealed. (2) The table of sections for chapter 227 of title 18, United States Code, is amended by striking out the item for section 3565 and inserting in lieu thereof the following:

Ante, p. 2027.

Ante, p. 2027.

Repeal. Ante, p. 1995.

"3565. Repealed.".

(h) Section 3569 of title 18, United States Code, is amended by— (1) striking out "(a)"; and (2) striking out subsection (b). (i) This section shall be repealed on the first day of the first calendar month beginning twenty-four months after the date of enactment of this Act. SEC. 239. Since, due to an impending crisis in prison overcrowding, available Federal prison space must be treated as a scarce resource in the sentencing of criminal defendants; Since, sentencing decisions should be designed to ensure that prison resources are, first and foremost, reserved for those violent and serious criminal offenders who pose the most dangerous threat to society; Since, in cases of nonviolent and nonserious offenders, the interests of society as a whole as well as individual victims of crime can continue to be served through the imposition of alternative sentences, such as restitution and community service; Since, in the two years preceding the enactment of sentencing guidelines. Federal sentencing practice should ensure that scarce prison resources are available to house violent and serious criminal offenders by the increased use of restitution, community service, and other alternative sentences in cases of nonviolent and nonserious offenders: Now, therefore, be it Declared, That it is the sense of the Senate that in the two years preceding the enactment of the sentencing guidelines, Federal judges, in determining the particular sentence to be imposed, consider— (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant has not

Repeal. 18 USC 3565 note. 18 USC 3551 note.

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text: The Yellow Book/Volume 6/Earth's Complines


text:
Page:United States Statutes at Large Volume 98 Part 2.djvu/880

 98 STAT. 2040

PUBLIC LAW 98-473—OCT. 12, 1984 been convicted of a crime of violence or otherwise serious offense; and (3) the general appropriateness of imposing a sentence of imprisonment in cases in which the defendant has been convicted of a crime of violence or otherwise serious offense. CHAPTER III—FORFEITURE

Comprehensive Forfeiture Act of 1984. 18 USC 1961 note.

SEC. 301. This title may be cited as the "Comprehensive Forfeiture Act of 1984 ".

„ A PART A

SEC. 302. Section 1963 of title 18 of the United States Code is amended to read as follows: "§ 1963. Criminal penalties "(a) Whoever violates any provision of section 1962 of this chapter shall be fined not more than $25,000 or imprisoned not more than twenty years, or both, and shall forfeit to the United States, irrespective of any provision of State law— "(1) any interest the person has acquired or maintained in violation of section 1962; "(2) any.,. ,^, "(A) interest in; "(B) security of; "(C) claim against; or "(D) property or contractual right of any kind affording a source of influence over; any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of, in violation of section 1962; and "(3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of section 1962. The court, in imposing sentence on such person shall order, in addition to any other sentence imposed pursuant to this section, that the person forfeit to the United States all property described in this subsection. "(b) Property subject to criminal forfeiture under this section includes— "(1) real property, including things growing on, affixed to, and found in land; and "(2) tangible and intangible personal property, including rights, privileges, interests, claims, and securities. "(c) All right, title, and interest in property described in subsection (a) 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) that he is a bona fide purchaser for value of such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture under this section. "(d) If any of the property described in subsection (a)— "(1) cannot be located;

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text:
Page:United States Statutes at Large Volume 98 Part 2.djvu/881

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2041

"(2) has been transferred to, 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 by any act or omission of the defendant; 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). "(e)(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) for forfeiture under this section— "(A) upon the filing of an indictment or information charging a violation of section 1962 of this chapter 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'll) there is a substantial probability that the United States will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and "(ii) the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered: Provided, however. That an order entered pursuant to subparagraph (B) shall be effective for not more than ninety days, unless extended by the court for good cause shown or unless an indictment or information described in subparagraph (A) has been filed. "(2) A temporary restraining order under this subsection may be entered upon application of the United States without notice or opportunity for a hearing when an information or indictment has not yet been filed with respect to the property, if the United States demonstrates that there is probable cause to believe that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section and that provision of notice will jeopardize the availability of the property for forfeiture. Such a temporary order shall expire not more than ten days after the date on which it is entered, unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period. A hearing requested concerning an order entered under this paragraph shall be held at the earliest possible time, and prior to the expiration of the temporary order. "(3) The court may receive and consider, at a hearing held pursuant to this subsection, evidence and information that would be inadmissible under the Federal Rules of Evidence. "(0 Upon conviction of a person under this section, the court shall enter a judgment of forfeiture of the property to the United States and shall also authorize the Attorney General to seize all property

Courts, U.S.

28 USC app. Seizure and forfeiture of property.

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text:
Author:Hubert Anson Newton

Works about Newton

 * Hubert Anson Newton, Scientific Papers of Josiah Willard Gibbs, Volume 2 (1906)

title: Author:Hubert Anson Newton


text:
Page:United States Statutes at Large Volume 98 Part 2.djvu/882

 98 STAT. 2042

Disposition of property.

PUBLIC LAW 98-473—OCT. 12, 1984

ordered forfeited upon such terms and conditions as the court shall deem proper. Following the 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, an enterprise or an interest in an enterprise which has been ordered forfeited under this section may be used to offset ordinary and necessary expenses to the enterprise which are required by law, or which are necessary to protect the interests of the United States or third parties. "(g) Following the seizure of property ordered forfeited under this section, the Attorney General shall direct the disposition of the property by sale or any other commercially feasible means, making due provision for the rights of any innocent persons. Any property right or interest not exercisable by, or transferable for value to, the United States shall expire and shall not revert to the defendant, nor shall the defendant or any person acting in concert with or on behalf of the defendant be eligible to purchase forfeited property at any sale held by the United States. Upon application of a person, other than the defendant or a person acting in concert with or on behalf of the defendant, 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. Notwithstanding 31 U.S.C. 3302(b), the proceeds of any sale or other disposition of property forfeited under this section and any moneys forfeited shall be used to pay all proper expenses for the forfeiture and the sale, including expenses of seizure, maintenance and custody of the property pending its disposition, advertising and court costs. The Attorney General shall deposit in the Treasury any amounts of such proceeds or moneys remaining after the payment of such expenses. "(h) 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 chapter; "(2) compromise claims arising under this section; "(3) award compensation to persons providing information resulting in a forfeiture under this section; "(4) direct the disposition by the United States 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) The Attorney General may promulgate regulations with respect to— "(1) making reasonable efforts to provide notice to persons who may have an interest in property ordered forfeited under this section;

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text:
Page:United States Statutes at Large Volume 98 Part 2.djvu/883

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2043

V

"(2) granting petitions for remission or mitigation of forfeiture; "(3) the restitution of property to victims of an offense petitioning for remission or mitigation of forfeiture under this chapter; "(4) the disposition by the United States of forfeited property by public sale or other commercially feasible means; "(5) the maintenance and safekeeping of any property forfeited under this section pending its disposition; and "(6) the compromise of claims arising under this chapter. Pending the promulgation of such regulations, all provisions of law relating to the disposition of property, or the proceeds from the sale thereof, or the remission or mitigation of forfeitures for violation of the customs laws, and the compromise of claims and the award of compensation to informers in respect of such forfeitures shall apply to forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as applicable and not inconsistent with the provisions hereof. Such duties as are imposed upon the Customs Service or any person with respect to the disposition of property under the customs law shall be performed under this chapter by the Attorney General. "0) Except as provided in subsection (m), 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, "(k) 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. "(1) In order to facilitate the identification or 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. "(m)(l) 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 for at least seven successive court days in such manner as the Attorney General may direct. The Government may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in the property that is the subject of the order of forfeiture as a substitute for published notice as to those persons so notified. "(2) Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may, within thirty days of the final publication of notice or his receipt of notice tinder paragraph (1), whichever is earlier, petition the court for a hearing to adjudicate

Courts, U.S.

18 USC app.

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text:
Page:United States Statutes at Large Volume 98 Part 2.djvu/884

 98 STAT. 2044

PUBLIC LAW 98-473—OCT. 12, 1984

the validity of his alleged interest in the property. The hearing shall be held before the court alone, without a jury. "(3) The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the petitioner's right, title, or interest in the property, the time and circumstances of the petitioner's acquisition of the right, title, or interest in the property, any additional facts supporting the petitioner's claim, and the relief sought. "(4) The hearing on the petition shall, to the extent practicable and consistent with the interests of justice, be held within thirty days of the filing of the petition. The court may consolidate the hearing on the petition with a hearing on any other petition filed by a person other than the defendant under this subsection. "(5) At the hearing, the petitioner may testify and present evidence and witnesses on his own behalf, and cross-examine witnesses who appear at the hearing. The United States may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing. In addition to testimony and evidence presented at the hearing, the court shall consider the relevant portions of the record of the criminal case which resulted in the order of forfeiture. "(6) If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that— "(A) the petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or "(B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this section; the court shall amend the order of forfeiture in accordance with its determination. "(7) Following the court's disposition of all petitions filed under this subsection, or if no such petitions are filed following the expiration of the period provided in paragraph (2) for the filing of such petitions, the United States shall have clear title to property that is the subject of the order of forfeiture and may warrant good title to any subsequent purchaser or transferee.". PART B

SEC. 303. Part D of title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 841 et seq.) is amended by adding at the end thereof the following new sections 413 and 414: "CRIMINAL FORFEITURES "PROPERTY SUBJECT TO CRIMINAL FORFEITURE

Post, p. 2192, 2i^usc 853 21 USC 95l!

"SEC. 413. (a) Any person convicted of a violation of this title or ^^^^^ punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law—

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Page:United States Statutes at Large Volume 98 Part 2.djvu/885

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2045

"(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; "(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and "(3) in the case of a person convicted of engaging in a continuing criminal enterprise in violation of section 408 of this title (21 U.S.C. 848), the person shall forfeit, in addition to any property described in paragraph (1) or (2), any of his interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise. The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to this title or title III, that the person forfeit to the United States all property described in this subsection. "MEANING OF TERM 'PROPERTY'

"(b) Property subject to criminal forfeiture under this section includes— "(1) real property, including things growing on, affixed to, and found in land; and "(2) tangible and intangible personal property, including rights, privileges, interests, claims, and securities. "THIRD PARTY TRANSFERS

"(c) All right, title, and interest in property described in subsection (a) 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 (o) that he is a bona fide purchaser for value of such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture under this section. "(d) If any of the property described in subsection (a)— "(1) cannot be located; "(2) has been transferred to, 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 by any act or omission of the defendant; 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). "REBUTTABLE PRESUMPTION

"(e) There is a rebuttable presumption at trial that any property of a person convicted of a felony under this title or title III is subject to forfeiture under this section if the United States establishes by a preponderance of the evidence that—

21 USC 951.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/886

 98 STAT. 2046 21 USC 951.

PUBLIC LAW 98-473—OCT. 12, 1984 "(1) such property was acquired by such person during the period of the violation of this title or title III or within a reasonable time after such period; and "(2) there was no likely source for such property other than the violation of this title or title III. "PROTECTIVE ORDERS

28 USC app.

"(f)(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) for forfeiture under this section— "(A) upon the filing of an indictment or information charging a violation of this title or title III for which criminal forfeiture may be ordered under this section and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section; or "(B) prior to the filing of such an indictment or information, if, after notice to persons appearing to have an interest in the property and opportunity for a hearing, the court determines that— "(i) there is a substantial probability that the United States will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and "(ii) the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered: Provided, however, That an order entered pursuant to subparagraph (B) shall be effective for not more than ninety days, unless extended by the court for good cause shown or unless an indictment or information described in subparagraph (A) has been filed. "(2) A temporary restraining order under this subsection may be entered upon application of the United States without notice or opportunity for a hearing when an information or indictment has not yet been filed with respect to the property, if the United States demonstrates that there is probable cause to believe that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section and that provision of notice will jeopardize the availability of the property for forfeiture. Such a temporary order shall expire not more than ten days after the date on which it is entered, unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period. A hearing requested concerning an order entered under this paragraph shall be held at the earliest possible time and prior to the expiration of the temporary order. "(3) The court may receive and consider, at a hearing held pursuant to this subsection, evidence and information that would be inadmissible under the Federal Rules of Evidence.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/887

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2047

" W A R R A N T OF SEIZURE

"(g) 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 (f) 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. "EXECUTION

"(h) 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. "DISPOSITION OF PROPERTY

"(i) Following the seizure of property ordered forfeited under this section, the Attorney General shall direct the disposition of the property by sale or any other commercially feasible means, making due provision for the rights of any innocent persons. Any property right or interest not exercisable by, or transferable for value to, the United States shall expire and shall not revert to the defendant, nor shall the defendant or any person acting in concert with him or on his behalf be eligible to purchase forfeited property at any sale held by the United States. Upon application of a person, other than the defendant or a person acting in concert with him or on his behalf, the court may restrain or stay the sale or disposition of the property pending the conclusion of any appeal of the criminal case giving rise to the forfeiture, if the applicant demonstrates that proceeding with the sale or disposition of the property will result in irreparable injury, harm, or loss to him. "AUTHORITY OF THE ATTORNEY GENERAL

"(j) 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) compromise claims arising under this section; "(3) award compensation to persons providing information resulting in a forfeiture under this section;

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Page:United States Statutes at Large Volume 98 Part 2.djvu/888

 98 STAT. 2048

PUBLIC LAW 98-473—OCT. 12, 1984 "(4) direct the disposition by the United States, in accordance with the provisions of section 511(e) of this title (21 U.S.C. 881(e)), 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. "APPLICABILTTY OF CIVIL FORFEITURE PROVISIONS

"(k) Except to the extent that they are inconsistent with the provisions of this section, the provisions of section 511(d) of this title (21 U.S.C. 881(d)) shall apply to a criminal forfeiture under this section. "BAR ON INTERVENTION

"(1) Except as provided in subsection (o), 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. "JURISDICTION TO ENTER ORDERS

"(m) 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. "DEPOSITIONS

18 USC app.

"(n) 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. "THIRD PARTY INTERESTS

"(oKD 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 for at least seven successive court days 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.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/889

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2049

"(2) Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may, within thirty days of the final publication of notice or his receipt of notice under paragraph (1), whichever is earlier, petition the court for a hearing to adjudicate the validity of his alleged interest in the property. The hearing shall be held before the court alone, without a jury. "(3) The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the petitioner's right, title, or interest in the property, the time and circumstances of the petitioner's acquisition of the right, title, or interest in the property, any additional facts supporting the petitioner's claim, and the relief sought. "(4) The hearing on the petition shall, to the extent practicable and consistent with the interests of justice, be held within thirty days of the filing of the petition. The court may consolidate the hearing on the petition with a hearing on any other petition filed by a person other than the defendant under this subsection. "(5) At the hearing, the petitioner may testify and present evidence and witnesses on his own behalf, and cross-examine witnesses who appear at the hearing. The United States may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing. In addition to testimony and evidence presented at the hearing, the court shall consider the relevant portions of the record of the criminal case which resulted in the order of forfeiture. "(6) If, after the hesiring, 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 them 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 sul^equent purchaser or transferee. (p) The provisions of this section shall be liberally construed to effectuate its remedial purposes.

'•

"INVESTMENT OF ILUCIT DRUG PROFITS

"SEC. 414. (a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a violation of this title or title III punishable by imprisonment for more than one year in which such person has participated as a principal within the meaning of section 2 of title 18, United States Code, to use or invest,

21 USC 854. 21 USC 951.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/890

 98 STAT. 2050

Securities.

21 USC 951.

Penalties.

Real property.

PUBLIC LAW 98-473—OCT. 12, 1984

directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this section if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any violation of this title or title III after such purchase do not amount in the aggregate to 1 per centum of the outstanding securities of any one class, and do not confer, either in law or in fact, the. power to elect one or more directors of the issuer. "(b) Whoever violates this section shall be fined not more than $50,000 or imprisoned not more than ten years, or both. "(c) As used in this section, the term 'enterprise' includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity. "(d) The provisions of this section shall be liberally construed to effectuate its remedial purposes.". SEC. 304. Section 304 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 824) is amended by adding at the end of subsection (f) the following sentence: "All right, title, and interest in such controlled substances shall vest in the United States upon a revocation order becoming final.". SEC. 305. Section 408 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 848) is amended— (a) in subsection (a)— (1) by striking out "(1)"; (2) by striking out "paragraph (2)" each time it appears, and inserting in lieu thereof "section 413 of this title"; and (3) by striking out paragraph (2); and (b) by striking out subsection (d). SEC. 306. Section 511 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 881) is amended— ^ (a) in subsection (a) by inserting at the end thereof the following new subsection: "(7) All real property, including any right, title, and interest in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner."; (b) in subsection (b)— (1) by inserting "civil or criminal" after "Any property subject to'; and (2) by striking out in paragraph (4) "has been used or is intended to be used in violation o f and inserting in lieu thereof "is subject to civil or criminal forfeiture under"; (c) in subsection (c)— (1) by inserting in the second sentence "any o f after "Whenever property is seized under"; and

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Page:United States Statutes at Large Volume 98 Part 2.djvu/891

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2051

(2) by inserting in paragraph (3) ", if practicable," after "remove it"; (d) in subsection (d), by inserting "any o f after "alleged to have been incurred, under"; (e) in subsection (e)— (1) by inserting "civilly or criminally" in the first sentence after "Whenever property is"; and (2) by striking out in paragraph (3) "and remove it for disposition" and inserting in lieu thereof "and dispose of it"; and (f) by inserting at the end thereof the following new subsections: "(h) All right, title, and interest in property described in subsection (a) shall vest in the United States upon commission of the act giving rise to forfeiture under this section. "(i) The filing of an indictment or information alleging a violation of this title or title III which is also related to a civil forfeiture proceeding under this section shall, upon motion of the United States and for good cause shown, stay the civil forfeiture proceeding. "(j) In addition to the venue provided for in section 1395 of title 28, United States Code, 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.". SEC. 307. Part A of title III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is amended by adding at the end thereof the following new section:

21 USC 951.

"CRIMINAL FORFEITURES

"SEC. 1017. Section 413 of title II, relating to criminal forfeitures, shall apply in every respect to a violation of this title punishable by imprisonment for more than one year.". SEC. 308. The table of contents of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is amended— (a) by adding immediately after

21 USC 970. ^"^^' P- 2044.

"Sec. 412. Applicability of treaties and other international agreements.".

the following new items: "Sec. 413. Criminal forfeitures. "Sec. 414. Investment of illicit drug profits.".

and (b) by adding immediately after "Sec. 1016. Authority of Secretary of the Treasury.".

the following new item: "Sec. 1017. Criminal forfeitures.". PART C

SEC. 309. (a) Section 511(e)(1) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 881(e)(1)) is amended by adding after "retain the property for official use" the following: "or transfer the custody or ownership of any forfeited property to any Federal, State, or local agency pursuant to section 616 of the Tariff Act of 1930 (19 U.S.C. 1616)". (b) Section 511(e) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 881(e)) is amended by inserting

Post, p. 2055.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/892

 98 STAT. 2052

Post, p. 2193. Department of Justice Assets Forfeiture Fund, establishment.

21 USC 801 note.

PUBLIC LAW 98-473—OCT. 12, 1984

before "The proceeds from any sale under paragraph (2)" the following: "The Attorney General shall ensure the equitable transfer pursuant to paragraph (1) 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 pursuant to paragraph (1) shall not be subject to review.". (c) Section 511(e) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 881(e)) is further amended by striking out "the general fund of the United States Treasury" in the sentence beginning "The Attorney General shall" and inserting in lieu thereof "accordance with section 524(c) of title 28, United States Code". SEC. 310. Section 524 of title 28, United States Code, is amended by adding at the end the following new subsection: "(c)(1) There is established in the United States Treasury a special fund to be known as the Department of Justice Assets Forfeiture Fund (hereinafter in this subsection referred to as the 'fund') which shall be available to the Attorney General without fiscal year limitation in such amounts as may be specified in appropriations Acts for the following purposes of the Department of Justice— "(A) the payment, at the discretion of the Attorney General, of any expenses necessary to seize, detain, inventory, safeguard, maintain, advertise, or sell property under seizure, detention, or forfeited pursuant to any law enforced or administered by the Department of Justice, or of any other necessary expenses incident to the seizure, detention, or forfeiture of such property; such payments may include payments for contract services and payments to reimburse any Federal, State, or local agency for any expenditures made to perform the foregoing functions; "(B) the payment of awards for information or assistance leading to a civil or criminal forfeiture under the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 800 et seq.) or a criminal forfeiture under the Racketeer Influenced and Corrupt Organizations statute (18 U.S.C. 1961 et seq.), at the discretion of the Attorney General; "(C) the compromise and payment of valid liens and mortgages against property that has been forfeited pursuant to any law enforced or administered by the Department of Justice, subject to the discretion of the Attorney General to determine the validity of any such lien or mortgage and the amount of payment to be made; and "(D) disbursements authorized in connection with remission or mitigation procedures relating to property forfeited under any law enforced or administered by the Department of Justice. "(2) Any award paid from the fund for information concerning a forfeiture, as provided in paragraph (1)(B), shall be paid at the discretion of the Attorney General or his delegate, except that the authority to pay an award of $10,000 or more shall not be delegated to any person other than the Deputy Attorney General, the Associate Attorney General, the Director of the Federal Bureau of Investigation, or the Administrator of the Drug Enforcement Administration. Any award for such information shall not exceed the lesser of $150,000 or one-fourth of the amount realized by the United States from the property forfeited.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/893

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2053

"(3) There shall be deposited in the fund all amounts from the forfeiture of property under any law enforced or administered by the Department of Justice remaining after the payment of expenses for forfeiture and sale authorized by law. "(4) Amounts in the fund which are not currently needed for the purpose of this section shall be kept on deposit or invested in obligations of, or guaranteed by, the United States. "(5) The Attorney General shall transmit to the Congress, not later than four months after the end of each fiscal year a detailed report on the amounts deposited in the fund and a description of expenditures made under this subsection. "(6) The provisions of this subsection relating to deposits in the fund shall apply to all property in the custody of the Department of Justice on or after the effective date of the Comprehensive Forfeiture Act of 1983. "(7) For fiscal years 1984, 1985, 1986, and 1987, there are authorized to be appropriated such sums as may be necessary for the purposes described in paragraph (1). At the end of each fiscal year, any amount in the fund in excess of the amount appropriated shall be deposited in the general fund of the Treasury of the United States, except that an amount not to exceed $5,000,000 may be carried forward and available for appropriation in the next fiscal year. "(8) For the purposes of this subsection, property is forfeited pursuant to a law enforced or administered by the Department of Justice if it is forfeited pursuant to— "(A) any criminal forfeiture proceeding; "(B) any civil judicial forfeiture proceeding; or "(C) any civil administrative forfeiture proceeding conducted by the Department of Justice; except to the extent that the seizure was effected by a Customs officer or that custody was maintained by the Customs Service in which case the provisions of section 613a of the Tariff Act of 1930 (19 U.S.C. 1613a) shall apply.". PARTD

SEC. 311. Section 607 of the Tariff Act of 1930 (19 U.S.C. 1607) is amended to read as follows: "§ 607. Seizure; value $100,000 or less, prohibited articles, transporting conveyances "(a) I f "(1) the value of such seized vessel, vehicle, aircraft, merchandise, or baggage does not exceed $100,000; "(2) such seized merchandise consists of articles the importation of which is prohibited; or "(3) such seized vessel, vehicle, or aircraft was used to import, export, or otherwise transport or store any controlled substances; the appropriate customs officer shall cause a notice of the seizure of such articles and the intention to forfeit and sell or otherwise dispose of the same according to law to be published for at least three successive weeks in such manner as the Secretary of the Treasury may direct. Written notice of seizure together with information on the applicable procedures shall be sent to each party who appears to have an interest in the seized article.

Report.

Appropriation authorization.

Post, p. 2054.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/894

 98 STAT. 2054

PUBLIC LAW 98-473—OCT. 12, 1984

"(b) As used in this section, the term 'controlled substance' has the meaning given that term in section 102 of the Controlled Substances Act (21 U.S.C. 802).". SEC. 312. Section 608 of the Tariff Act of 1930 (19 U.S.C. 1608) is amended in the second sentence by inserting after "penal sum o f the following: "$5,000 or 10 per centum of the value of the claimed property, whichever is lower, but not less than,". SEC. 313. Section 609 of the Tariff Act of 1930 (19 U.S.C. 1609) is amended by striking out "after deducting the actual expenses of seizure, publication, and sale in the Treasury of the United States." and inserting in lieu thereof "after deducting expenses enumerated in section 613 of this Act into the Customs Forfeiture Fund.". SEC. 314. Section 610 of the Tariff Act of 1930 (19 U.S.C. 1610) is amended by striking out "If the value of any vessel, vehicle, merchandise, or baggage so seized is greater than $10,000," and substituting in lieu thereof the following: "If any vessel, vehicle, aircraft, merchandise, or baggage is not subject to the procedure set forth in section 607,". SEC. 315. Section 612 of the. Tariff Act of 1930 (19 U.S.C. 1612) is amended by— (1) inserting "aircraft," immediately after "vehicle," wherever it appears in the section; (2) striking out "and the value of such vessel, vehicle, merchandise, or baggage as determined under section 606 does not exceed $10,000," in the first sentence and inserting in lieu thereof the following: "and the article is subject to the provisions of section 607 of this Act,"; and (3) striking out "If such value of such vessel, vehicle, merchandise, or baggage exceeds $10,000," in the second sentence and inserting in lieu thereof the following: "If the article is not subject to the provisions of section 607 of this Act,". SEC. 316. Section 613(a)(3) of the Tariff Act of 1930 (19 U.S.C. 1613(a)(3)) is amended to read as follows: "(3) The residue shall be deposited in the Customs Forfeiture Fund.". SEC. 317. The Tariff Act of 1930 is amended by adding a new section immediately after section 613 (19 U.S.C. 1613) to read as follows: 19 USC 1613a. Establishment.

19 USC 1613.

Post, p. 2056.

"§ 613a. Customs Forfeiture Fund "(a) There is hereby established in the Treasury of the United States a special fund for the United States Customs Service that shall be entitled the 'Customs Forfeiture Fund' (hereinafter referred to in this section as the 'fund'). This fund shall be available without fiscal year limitation in such amounts as may be specified in appropriations Acts for the following purposes of the United States Customs Service— "(1) the payment of all proper expenses of the seizure or detention or the proceedings of forfeiture and sale (not otherwise recovered under section 613(a)) including but not limited to, expenses of inventory, security, maintaining the custody of the property, advertising and sale, and if condemned by the court and a bond for such costs was not given, the costs as taxed by the court; and "(2) the payment of awards of compensation to informers under section 619 of the Tariff Act of 1930, as amended.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/895

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2055

"(b) There shall be deposited in the fund all proceeds from the sale or other disposition of property forfeited under, and any currency or monetary instruments seized and forfeited under, the laws enforced or administered by the United States Customs Service. "(c) Amounts in the fund which are not currently needed for the purposes of this section shall be kept on deposit or invested in obligations of, or guaranteed by, the United States. "(d) The Commissioner of Customs shall transmit to the Congress, not later than four months after the end of each fiscal year a detailed report on the amounts deposited in the fund and a description of expenditures made under this section. "(e) The provisions of this section relating to deposits in the fund shall apply to all property in the custody of the United States Customs Service on or after the effective date of the Comprehensive Forfeiture Act of 1983. "(f) For the purposes described in subsection (a), there are authorized to be appropriated from the fund for fiscal year 1984 not more than $10,000,000, for fiscal year 1985 not more than $15,000,000, for fiscal year 1986, not more than $20,000,000, and for fiscal year 1987 not more than $20,000,000. Amounts in the fund in excess of the amounts appropriated at the end of each fiscal year shall be deposited in the General Fund of the Treasury of the United States. At the end of the last fiscal year for which appropriations from the fund are authorized by this Act, the fund shall cease to exist and any amount then remaining in the fund shall be deposited in the General Fund of the Treasury of the United States.". SEC. 318. A new section 616 is added to the Tariff Act of 1930 (19 U.S.C. 1616) to read as follows: "§ 616. Disposition of forfeited property "(a) Notwithstanding any other provision of the law, the Commissioner is authorized to retain forfeited property, or to transfer such property on such terms and conditions as he may determine to— "(1) any other Federal agency; or "(2) 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. The Secretary of the Treasury 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 Secretary 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. "(b) The Secretary of the Treasury may order the discontinuance of any forfeiture proceedings under this Act 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 Act, the Attorney General may seek dismissal of the complaint in favor of forfeiture proceedings under State or local law. "(c) 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

Report.

Appropriation authorization.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/896

 98 STAT. 2056

PUBLIC LAW 98-473—OCT. 12, 1984

the appropriate State or local official immediately upon the initiation of the proper actions by such officials. "(d) 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.". SEC. 319. Section 619 of the Tariff Act of 1930 (19 U.S.C. 1619) is amended by— (a) striking out "$50,000" each time it appears and inserting in lieu thereof "$150,000"; and (b) adding at the end thereof "In no event shall the Secretary delegate the authority to pay an award under this section in excess of $10,000 to an official below the level of the Commissioner of Customs.". SEC. 320. The Tariff Act of 1930 is amended by adding a new section 589, to read as follows: 19 USC 1589. 19 USC 1401.

Repeal.

49 USC app. 1509.

19 USC 1711.

"§ 589. Arrest authority of customs officers "Subject to the direction of the Secretary of the Treasury, an officer of the Customs Service as defined in section 401(i) of this Act, as amended, may— "(1) carry a firearm; "(2) execute and serve any order, warrant, subpoena, summons, or other process issued under the authority of the United States; "(3) make an arrest without a warrant for any offense against the United States committed in the officer's presence or for a felony, cognizable under the laws of the United States committed outside the officer's presence if the officer has reasonable grounds to believe that the person to be arrested has committed or is committing a felony; and "(4) perform any other law enforcement duty that the Secretary of the Treasury may designate.". (b) Section 7607 of the Internal Revenue Act of 1954 (26 U.S.C. 7607) is repealed. SEC. 321. Sections 602, 605, 606, 608, 609, 611, 613, 614, 615, 618, and 619 (19 U.S.C. 1602, 1605, 1606, 1608, 1609, 1611, 1613, 1614, 1615, 1618, and 1619) of the Tariff Act of 1930 are amended by inserting the word "aircraft," immediately after the words "vehicle" or "vehicles," wherever they appear. SEC. 322. Section 644 of the Tariff Act of 1930 (19 U.S.C. 1644) is amended to read as follows: "§ 644. Application of the Federal Aviation Act and section 1518(d) of title 33 "(a) The authority vested by section 1109 of the Federal Aviation Act of 1958 (49 U.S.C. 1509) in the Secretary of the Treasury, by regulation to provide for the application to civil air navigation of the laws and regulations relating to the administration of customs, and of the laws and regulations relating to the entry and clearance of vessels, shall extend to the application in like manner of any of the provisions of this Act, or of the Anti-Smuggling Act of 1935, or of any regulations promulgated hereunder.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/897

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2057

"(b) For purposes of section 1518(d) of title 33, the term 'customs laws administered by the Secretary of the Treasury' shall mean this chapter and any other provisions of law classified to this title.". SEC. 323. The Tariff Act of 1930 is amended by adding a new section 600 to read as follows: "§ 600. Application of the customs laws to other seizures by customs officers "The procedures set forth in sections 602 through 619 of this Act (19 U.S.C. 1602 through 1619) shall apply to seizures of any property effected by customs officers under any law enforced or administered by the Customs Service unless such law specifies different procedures.". CHAPTER IV—OFFENDERS WITH MENTAL DISEASE OR DEFECT

SEC. 401. This chapter may be sited as the "Insanity Defense Reform Act of 1984." SEC. 402. (a) Chapter 1 of title 18, United States Code, is amended by adding at the end thereof the following new section: "§ 20. Insanity defense

19 USC 1600.

Insanity Defense Reform Act of 1984.

18 USC 4241 note. 18 USC 20.

"(a) AFFIRMATIVE DEFENSE.—It is an affirmative defense to a

prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. "(b) BURDEN OF PROOF.—The defendant has the burden of proving the defense of insanity by clear and convincing evidence.". (b) The sectional analysis of chapter 1 of title 18, United States Code, is amended to add the following new section 20: "20. Insanity Defense.".

SEC. 403. (a) Chapter 313 of title 18, United States Code, is amended to read as follows:

"CHAPTER 313—OFFENDERS WITH MENTAL DISEASE OR DEFECT "Sec. "4241. "4242. "4243. "4244. "4245.

Determination of mental competency to stand trial. Determination of the existence of insanity at the time of the offense. Hospitalization of a person found not guilty only by reason of insanity. Hospitalization of a convicted person suffering from mental disease or defect. Hospitalization of an imprisoned person suffering from mental disease or defect. "4246. Hospitalization of a person due for release but suffering from mental disease or defect. "4247. General provisions for chapter.

"§ 4241. Determination of mental competency to stand trial "(a) MOTION TO DETERMINE COMPETENCY OF DEFENDANT.—At any

time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall

31-194 - 0 - 86 - 29: QL. 3 Part 2

18 USC 4241.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/898

 98 STAT. 2058

PUBLIC LAW 98-473—OCT. 12, 1984

grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. "(b) PSYCHIATRIC OR PSYCHOLOGICAL EXAMINATION AND REPORT.—

Ante, pp. 1976, 1985.

Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c). "(c) HEARING.—The hearing shall be conducted pursuant to the provisions of section 4247(d). "(d) DETERMINATION AND DISPOSITION.—If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense, the court shall commit the defendant to the custody of the Attorney General. The Attorney General shall hospitalize the defendant for treatment in a suitable facility— "(1) for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the trial to proceed; and "(2) for an additional reasonable period of time until— "(A) his mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the trial to proceed; or "(B) the pending charges against him are disposed of according to law; whichever is earlier. If, at the end of the time period specified, it is determined that the defendant's mental condition has not so improved as to permit the trial to proceed, the defendant is subject to the provisions of section 4246. "(e) DISCHARGE.—When the director of the facility in which a defendant is hospitalized pursuant to subsection (d) determines that the defendant has recovered to such an extent that he is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. The clerk shall send a copy of the certificate to the defendant's counsel and to the attorney for the Government. The court shall hold a hearing, conducted pursuant to the provisions of section 4247(d), to determine the competency of the defendant. If, after the hearing, the court finds by a preponderance of the evidence that the defendant has recovered to such an extent that he is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense, the court shall order his immediate discharge from the facility in which he is hospitalized and shall set the date for trial. Upon discharge, the defendant is subject to the provisions of chapter 207. "(f) ADMISSIBILITY OF FINDING OF COMPETENCY.—A finding by

the

court that the defendant is mentally competent to stand trial shall not prejudice the defendant in raising the issue of his insanity as a

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Page:United States Statutes at Large Volume 98 Part 2.djvu/899

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2059

defense to the offense charged, and shall not be admissible a s evidence in a trial for the offense charged. '*§ 4242. Determination of the existence of insanity a t the time of the offense

18 USC 4242.

"(a) M O T I O N FOR PRETRIAL PSYCHIATRIC OR PSYCHOLOGICAL E X A M I -

NATION.—Upon the filing of a notice, as provided in Rule 12.2 of the Federal Rules of Criminal Procedure, that the defendant intends to rely on the defense of insanity, the court, upon motion of the attorney for the Government, shall order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c). "(b) SPECIAL VERDICT.—If the issue of insanity is raised by notice as provided in Rule 12.2 of the Federal Rules of Criminal Procedure on motion of the defendant or of the attorney for the Government, or on the court's own motion, the j u r y shall be instructed to find, or, in the event of a nonjury trial, the court shall find the defendant— "(1) guilty; "(2) not guilty; or "(3) not guilty only by reason of insanity. "§ 4243. Hospitalization of a person found not guilty only by reason of insanity "(a) DETERMINATION OF P R E S E N T M E N T A L CONDITION OF ACQUITTED

PERSON.—If a person is found not guilty only by reason of insanity at the time of the offense charged, h e shall be committed to a suitable facility until such t i m e as h e is eligible for release pursuant to subsection (e). "(b) PSYCHIATRIC OR PSYCHOLOGICAL EXAMINATION AND R E P O R T. —

Prior to the date of the hearing, pursuant to subsection (c), the court shall order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247 (b) and (c). "(c) H E A R I N G. — A h e a r i n g shall be conducted pursuant to the provisions of section 4247(d) and shall t a k e place not later than forty days following the special verdict. "(d) BURDEN OF PROOF.—In a hearing pursuant to subsection (c) of this section, a person found not guilty only by reason of insanity of an offense involving bodily injury to, or serious damage to the property of, a n other person, or involving a substantial risk of such injury or damage, has the burden of proving by clear and convincing evidence that his release would not create a substantial risk of bodily injury to a n other person or serious damage of property of a n other d u e to a present mental disease or defect. With respect to any other offense, the person has the burden of such proof by a preponderance of the evidence. "(e) DETERMINATION AND DISPOSITION.—If, after the h e a r i n g, the

court fails to find by the standard specified in subsection (d) of this section that the person's release would not create a substantial risk of bodily injury to a n other person or serious damage of property of a n other d u e to a present mental disease or defect, the court shall commit the person to the custody of the Attorney General. The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and t r e a t m e n t.

18 USC app.

18 USC 4243.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/900

 98 STAT. 2060

PUBLIC LAW 98-473—OCT. 12, 1984

The Attorney General shall make all reasonable efforts to cause such a State to assume such responsibility. If, notwithstanding such efforts, neither such State will assume such responsibility, the Attorney General shall hospitalize the person for treatment in a suitable facility until— "(1) such a State will assume such responsibility; or "(2) the person's mental condition is such that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, would not create a substantial risk of bodily injury to another person or serious damage to property of another; whichever is earlier. The Attorney General shall continue periodically to exert all reasonable efforts to cause such a State to assume such responsibility for the person's custody, care, and treatment. "(f) DISCHARGE.—When the director of the facility in which an acquitted person is hospitalized pursuant to subsection (e) determines that the person has recovered from his mental disease or defect to such an extent that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. The clerk shall send a copy of the certificate to the person's counsel and to the attorney for the Government. The court shall order the discharge of the acquitted person or, on the motion of the attorney for the Government or on its own motion, shall hold a hearing, conducted pursuant to the provisions of section 4247(d), to determine whether he should be released. If, after the hearing, the court finds by the standard specified in subsection (d) that the person has recovered from his mental disease or defect to such an extent that— "(1) his release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall order that he be immediately discharged; or "(2) his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall— "(A) order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the director of the facility in which he is committed, and that has been found by the court to be appropriate; and "(B) order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment. The court at any time may, after a hearing employing the same criteria, modify or eliminate the regimen of medical, psychiatric, or psychological care or treatment. "(g) REVOCATION OF CONDITIONAL DISCHARGE.—The director of a

medical facility responsible for administering a regimen imposed on an acquitted person conditionally discharged under subsection (f) shall notify the Attorney General and the court having jurisdiction over the person of any failure of the person to comply with the

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Page:United States Statutes at Large Volume 98 Part 2.djvu/901

 PUBLIC LAW 98-473—OCT. 12, 1984

98 STAT. 2061

regimen. Upon such notice, or upon other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. The court shall, after a hearing, determine whether the person should be remanded to a suitable facility on the ground that, in light of his failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, his continued release would create a substantial risk of bodily injury to another person or serious damage to property of another. "§ 4244. Hospitalization of a convicted person suffering from mental disease or defect "(a) MOTION TO DETERMINE PRESENT MENTAL CONDITION OF CONVICTED DEFENDANT.—A defendant found guilty of an offense, or the

attorney for the Government, may, within ten days after the defendant is found guilty, and prior to the time the defendant is sentenced, file a motion for a hearing on the present mental condition of the defendant if the motion is supported by substantial information indicating that the defendant may presently be suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility. The court shall grant the motion, or at any time prior to the sentencing of the defendant shall order such a hearing on its own motion, if it is of the opinion that there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility. "(b) PSYCHIATRIC OR PSYCHOLOGICAL EXAMINATION AND REPORT.—

Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c). In addition to the information required to be included in the psychiatric or psychological report pursuant to the provisions of section 4247(c), if the report includes an opinion by the examiners that the defendant is presently suffering from a mental disease or defect but that it is not such as to require his custody for care or treatment in a suitable facility, the report shall also include an opinion by the examiner concerning the sentencing alternatives that could best accord the defendant the kind of treatment he does need. "(c) HEARING.—The hearing shall be conducted pursuant to the provisions of section 4247(d). "(d) DETERMINATION AND DISPOSITION.—If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect and that he should, in lieu of being sentenced to imprisonment, be committed to a suitable facility for care or treatment, the court shall commit the defendant to the custody of the Attorney General. The Attorney General shall hospitalize the defendant for care or treatment in a suitable facility. Such a commitment constitutes a provisional sentence of imprisonment to the maximum term authorized by law for the offense for which the defendant was found guilty. "(e) DISCHARGE.—When the director of the facility in which the defendant is hospitalized pursuant to subsection (d) determines that the defendant has recovered from his mental disease or defect to

18 USC 4244.

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Page:United States Statutes at Large Volume 98 Part 2.djvu/902

 98 STAT. 2062

18 USC 4245.

PUBLIC LAW 98-473—OCT. 12, 1984

such an extent that he is no longer in need of custody for care or treatment in such a facihty, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. The clerk shall send a copy of the certificate to the defendant's counsel and to the attorney for the Government. If, at the time of the filing of the certificate, the provisional sentence imposed pursuant to subsection (d) has not expired, the court shall proceed finally to sentencing and may modify the provisional sentence. "§ 4245. Hospitalization of an imprisoned person suffering from mental disease or defect "(a) MOTION TO DETERMINE PRESENT MENTAL CONDITION OF IMPRISONED PERSON.—If a person serving a sentence of imprisonment

objects either in writing or through his attorney to being transferred to a suitable facility for care or treatment, an attorney for the Government, at the request of the director of the facility in which the person is imprisoned, may file a motion with the court for the district in which the facility is located for a hearing on the present mental condition of the person. The court shall grant the motion if there is reasonable cause to believe that the person may presently be suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility. A motion filed under this subsection shall stay the transfer of the person pending completion of procedures contained in this section. "(b) PSYCHIATRIC OR PSYCHOLOGICAL EXAMINATION AND REPORT.—

Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the person may be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c). "(c) HEARING.—The hearing shall be conducted pursuant to the provisions of section 4247(d). "(d) DETERMiNATioisr AND DISPOSITION.—If, after the hearing, the court finds by a preponderance of the evidence that the person is presently suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility, the court shall commit the person to the custody of the Attorney General. The Attorney General shall hospitalize the person for treatment in a suitable facility until he is no longer in need of such custody for care or treatment or until the expiration of the sentence of imprisonment, whichever occurs earlier. "(e) DISCHARGE.—When the director of the facility in which the person is hospitalized pursuant to subsection (d) determines that the person has recovered from his mental disease or defect to such an extent that he is no longer in need of custody for care or treatment in such a facility, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. The clerk shall send a copy of the certificate to the person's counsel and to the attorney for the Government. If, at the time of the filing of the certificate, the term of imprisonment imposed upon the person has not expired, the court shall order that the person be reimprisoned until the expiration of his sentence of imprisonment. 18 USC 4246.

"§ 4246. Hospitalization of a person due for release but suffering from mental disease or defect "(a) INSTITUTION OF PROCEEDING.—If the director of a facility in

which a person is hospitalized certifies that a person whose sentence

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