
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-56 Section 319(d)]
[CITE: 21USC853]

 
                        TITLE 21--FOOD AND DRUGS
 
              CHAPTER 13--DRUG ABUSE PREVENTION AND CONTROL
 
                  SUBCHAPTER I--CONTROL AND ENFORCEMENT
 
                     Part D--Offenses and Penalties
 
Sec. 853. Criminal forfeitures


(a) Property subject to criminal forfeiture

    Any person convicted of a violation of this subchapter or subchapter 
II of this chapter punishable by imprisonment for more than one year 
shall forfeit to the United States, irrespective of any provision of 
State law--
        (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 848 of this 
    title, 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 subchapter or subchapter 
II of this chapter, that the person forfeit to the United States all 
property described in this subsection. In lieu of a fine otherwise 
authorized by this part, a defendant who derives profits or other 
proceeds from an offense may be fined not more than twice the gross 
profits or other proceeds.

(b) Meaning of term ``property''

    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) Third party transfers

    All right, title, and interest in property described in subsection 
(a) of this section vests in the United States upon the commission of 
the act giving rise to forfeiture under this section. Any such property 
that is subsequently transferred to a person other than the defendant 
may be the subject of a special verdict of forfeiture and thereafter 
shall be ordered forfeited to the United States, unless the transferee 
establishes in a hearing pursuant to subsection (n) of this section that 
he is a bona fide purchaser for value of such property who at the time 
of purchase was reasonably without cause to believe that the property 
was subject to forfeiture under this section.

(d) Rebuttable presumption

    There is a rebuttable presumption at trial that any property of a 
person convicted of a felony under this subchapter or subchapter II of 
this chapter is subject to forfeiture under this section if the United 
States establishes by a preponderance of the evidence that--
        (1) such property was acquired by such person during the period 
    of the violation of this subchapter or subchapter II of this chapter 
    or within a reasonable time after such period; and
        (2) there was no likely source for such property other than the 
    violation of this subchapter or subchapter II of this chapter.

(e) Protective orders

    (1) Upon application of the United States, the court may enter a 
restraining order or injunction, require the execution of a satisfactory 
performance bond, or take any other action to preserve the availability 
of property described in subsection (a) of this section for forfeiture 
under this section--
        (A) upon the filing of an indictment or information charging a 
    violation of this subchapter or subchapter II of this chapter for 
    which criminal forfeiture may be ordered under this section and 
    alleging that the property with respect to which the order is sought 
    would, in the event of conviction, be subject to forfeiture under 
    this section; or
        (B) prior to the filing of such an indictment or information, 
    if, after notice to persons appearing to have an interest in the 
    property and opportunity for a hearing, the court determines that--
            (i) there is a substantial probability that the United 
        States will prevail on the issue of forfeiture and that failure 
        to enter the order will result in the property being destroyed, 
        removed from the jurisdiction of the court, or otherwise made 
        unavailable for forfeiture; and
            (ii) the need to preserve the availability of the property 
        through the entry of the requested order outweighs the hardship 
        on any party against whom the order is to be entered:

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.

(f) Warrant of seizure

    The Government may request the issuance of a warrant authorizing the 
seizure of property subject to forfeiture under this section in the same 
manner as provided for a search warrant. If the court determines that 
there is probable cause to believe that the property to be seized would, 
in the event of conviction, be subject to forfeiture and that an order 
under subsection (e) of this section may not be sufficient to assure the 
availability of the property for forfeiture, the court shall issue a 
warrant authorizing the seizure of such property.

(g) Execution

    Upon entry of an order of forfeiture under this section, the court 
shall authorize the Attorney General to seize all property ordered 
forfeited upon such terms and conditions as the court shall deem proper. 
Following entry of an order declaring the property forfeited, the court 
may, upon application of the United States, enter such appropriate 
restraining orders or injunctions, require the execution of satisfactory 
performance bonds, appoint receivers, conservators, appraisers, 
accountants, or trustees, or take any other action to protect the 
interest of the United States in the property ordered forfeited. Any 
income accruing to or derived from property ordered forfeited under this 
section may be used to offset ordinary and necessary expenses to the 
property which are required by law, or which are necessary to protect 
the interests of the United States or third parties.

(h) Disposition of property

    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.

(i) Authority of the Attorney General

    With respect to property ordered forfeited under this section, the 
Attorney General is authorized to--
        (1) grant petitions for mitigation or remission of forfeiture, 
    restore forfeited property to victims of a violation of this 
    subchapter, 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;
        (4) direct the disposition by the United States, in accordance 
    with the provisions of section 881(e) of this title, 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.

(j) Applicability of civil forfeiture provisions

    Except to the extent that they are inconsistent with the provisions 
of this section, the provisions of section 881(d) of this title shall 
apply to a criminal forfeiture under this section.

(k) Bar on intervention

    Except as provided in subsection (n) of this section, no party 
claiming an interest in property subject to forfeiture under this 
section may--
        (1) intervene in a trial or appeal of a criminal case involving 
    the forfeiture of such property under this section; or
        (2) commence an action at law or equity against the United 
    States concerning the validity of his alleged interest in the 
    property subsequent to the filing of an indictment or information 
    alleging that the property is subject to forfeiture under this 
    section.

(l) Jurisdiction to enter orders

    The district courts of the United States shall have jurisdiction to 
enter orders as provided in this section without regard to the location 
of any property which may be subject to forfeiture under this section or 
which has been ordered forfeited under this section.

(m) Depositions

    In order to facilitate the identification and location of property 
declared forfeited and to facilitate the disposition of petitions for 
remission or mitigation of forfeiture, after the entry of an order 
declaring property forfeited to the United States, the court may, upon 
application of the United States, order that the testimony of any 
witness relating to the property forfeited be taken by deposition and 
that any designated book, paper, document, record, recording, or other 
material not privileged be produced at the same time and place, in the 
same manner as provided for the taking of depositions under Rule 15 of 
the Federal Rules of Criminal Procedure.

(n) Third party interests

    (1) Following the entry of an order of forfeiture under this 
section, the United States shall publish notice of the order and of its 
intent to dispose of the property in such manner as the Attorney General 
may direct. The Government may also, to the extent practicable, provide 
direct written notice to any person known to have alleged an interest in 
the property that is the subject of the order of forfeiture as a 
substitute for published notice as to those persons so notified.
    (2) Any person, other than the defendant, asserting a legal interest 
in property which has been ordered forfeited to the United States 
pursuant to this section may, within 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 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.

(o) Construction

    The provisions of this section shall be liberally construed to 
effectuate its remedial purposes.

(p) Forfeiture of substitute property

    If any of the property described in subsection (a) of this section, 
as a result of any act or omission of the defendant--
        (1) cannot be located upon the exercise of due diligence;
        (2) has been transferred or sold to, or deposited with, a third 
    party;
        (3) has been placed beyond the jurisdiction of the court;
        (4) has been substantially diminished in value; or
        (5) has been commingled with other property which cannot be 
    divided without difficulty;

the court shall order the forfeiture of any other property of the 
defendant up to the value of any property described in paragraphs (1) 
through (5).

(q) Restitution for cleanup of clandestine laboratory sites

    The court, when sentencing a defendant convicted of an offense under 
this subchapter or subchapter II of this chapter involving the 
manufacture of amphetamine or methamphetamine, shall--
        (1) order restitution as provided in sections 3612 and 3664 of 
    title 18;
        (2) order the defendant to reimburse the United States, the 
    State or local government concerned, or both the United States and 
    the State or local government concerned for the costs incurred by 
    the United States or the State or local government concerned, as the 
    case may be, for the cleanup associated with the manufacture of 
    amphetamine or methamphetamine by the defendant; and
        (3) order restitution to any person injured as a result of the 
    offense as provided in section 3663A of title 18.

(Pub. L. 91-513, title II, Sec. 413, as added and amended Pub. L. 98-
473, title II, Secs. 303, 2301(d)-(f), Oct. 12, 1984, 98 Stat. 2044, 
2192, 2193; Pub. L. 99-570, title I, Secs. 1153(b), 1864, Oct. 27, 1986, 
100 Stat. 3207-13, 3207-54; Pub. L. 104-237, title II, Sec. 207, Oct. 3, 
1996, 110 Stat. 3104; Pub. L. 106-310, div. B, title XXXVI, 
Sec. 3613(a), Oct. 17, 2000, 114 Stat. 1229.)

                       References in Text

    The Federal Rules of Evidence, referred to in subsec. (e)(3), are 
set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
    The Federal Rules of Criminal Procedure, referred to in subsec. (m), 
are set out in the Appendix to Title 18, Crimes and Criminal Procedure.


                               Amendments

    2000--Subsec. (q). Pub. L. 106-310, Sec. 3613(a)(1), (2), in 
introductory provisions, inserted ``amphetamine or'' before 
``methamphetamine'' and substituted ``shall'' for ``may''.
    Subsec. (q)(2). Pub. L. 106-310, Sec. 3613(a)(2), (3), inserted ``, 
the State or local government concerned, or both the United States and 
the State or local government concerned'' after ``to reimburse the 
United States'', ``or the State or local government concerned, as the 
case may be,'' after ``costs incurred by the United States'', and 
``amphetamine or'' before ``methamphetamine''.
    Subsec. (q)(3). Pub. L. 106-310, Sec. 3613(a)(4), substituted 
``section 3663A of title 18'' for ``section 3663 of title 18''.
    1996--Subsec. (q). Pub. L. 104-237 added subsec. (q).
    1986--Subsec. (c). Pub. L. 99-570, Sec. 1864(1), substituted 
``subsection (n)'' for ``subsection (o)''.
    Subsec. (f). Pub. L. 99-570, Sec. 1864(2), substituted ``subsection 
(e)'' for ``subsection (f)''.
    Subsec. (i)(1). Pub. L. 99-570, Sec. 1864(3), substituted ``this 
subchapter'' for ``this chapter''.
    Subsec. (k). Pub. L. 99-570, Sec. 1864(1), (4), which directed the 
substitution of ``subsection (n)'' for ``subsection (o)'' in ``the 
second subsection (h)'', and directed the redesignation of ``the second 
subsection (h)'' as subsection (k), were executed to this subsection 
because the ``second subsection (h)'' had been editorially redesignated 
subsec. (k) to reflect the probable intent of Congress. See 1984 
Amendment note below.
    Subsec. (p). Pub. L. 99-570, Sec. 1153(b), which directed that 
``section 413 of title II of the Comprehensive Drug Abuse Prevention and 
Control Act of 1975'' be amended ``by redesignating subsection `(p)' as 
subsection `(q)' '' and adding subsec. (p) was executed to this section, 
which is section 413 of the Comprehensive Drug Abuse Prevention and 
Control Act of 1970, as the probable intent of Congress, by adding a 
subsec. (p) in view of the prior redesignation of subsec. (p) as (o) by 
Pub. L. 98-473, Sec. 2301(e)(2). See 1984 Amendment note below.
    1984--Subsec. (a). Pub. L. 98-473, Sec. 2301(d), inserted ``In lieu 
of a fine otherwise authorized by this part, a defendant who derives 
profits or other proceeds from an offense may be fined not more than 
twice the gross profits or other proceeds.''
    Subsec. (d). Pub. L. 98-473, Sec. 2301(e), struck out subsec. (d) 
which related to forfeiture of property other than that described in 
subsec. (a) and the conditions therefor, and redesignated former subsec. 
(e) as (d).
    Subsecs. (e) to (p). Pub. L. 98-473, Sec. 2301(e)(2), which directed 
that this section be amended by redesignating subsecs. (e), (f), (g), 
(h), (i), (l), (m), (n), (o), and (p) as subsecs. (d), (e), (f), (g), 
(h), (i), (j), (h), (l), (m), (n), and (o), respectively, was executed 
by redesignating subsecs. (e) to (p) as (d) to (o), respectively, to 
give effect to the probable intent of Congress.
    Subsec. (n)(1). Pub. L. 98-473, Sec. 2301(f), struck out ``for at 
least seven successive court days'' after ``to dispose of the 
property''.

                  Section Referred to in Other Sections

    This section is referred to in sections 333, 848, 970 of this title; 
title 18 sections 38, 229B, 793, 794, 798, 982, 986, 1028, 1029, 1834, 
3554; title 28 section 2461; title 33 section 1415; title 42 section 
1786; title 50 section 783.
