NOTE: The analysis and commentary below was compiled by Forfeiture Endangers American Rights Inc. This is not part of the text of the bill itself.
- by Mark Nestmann, (c) 1997 Asset Protection International
(republished with permission)
HR-1965 has several provisions dealing with international forfeitures. Section 6(d) amends 18 USC Sec. 986, which relates to records held in bank secrecy jurisdictions. This section eliminates the right of any person with overseas investments to contest a civil forfeiture without requesting the foreign holder of records relating to those investments to disclose full details about them to the government. Failure to do so shall result in the dismissal of the [claimant's] claim with prejudice.
Section 10(a) amends 28 USC by adding Section 2466, which would permit US courts to enforce foreign forfeiture judgments. The foreign jurisdiction must certify that the judgment is not subject to appeal and that it has made reasonable efforts to recover the forfeiture judgment within its borders. Otherwise, the only requirement is that the foreign jurisdiction have ratified the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the "UN Convention") (Dec. 19, 1988 (E/Conf./82/15), reprinted in 28 International Legal Materials 493 (1989)) or that the United States has a treaty or other formal international agreement in effect providing for mutual forfeiture assistance [such as a Mutual Legal Assistance Treaty]. Further, "the court shall be bound by the findings of facts insofar as they are stated in the foreign judgment."
These minimal requirements cast a very wide ambit. More than 100 nations have ratified the UN Convention, including such paragons of freedom as Cuba, Bosnia and El Salvador. How will a US court react to a petition from Cuba requesting the forfeiture of property in the United States conveyed by a person seeking political asylum who had conveyed the assets to the United States in violation of Cuban foreign exchange control laws?
Section 11(a) adds Section 2467 to Title 28, broadening the admissibility of hearsay in a civil forfeiture proceeding admissible in a civil forfeiture proceeding to establish probable cause, United States v. One 56-Foot Motor Yacht Named Tahuna, 702 F.2d 1276 (9th Cir. 1983), even hearsay from a paid confidential informant. The section makes it impossible for a claimant to object to the admission of foreign financial records as hearsay.
Section 27 amends 18 USC 2232 by making it a felony to interfere with the seizure or forfeiture of property by "removing" it. One effective way to remove property from the jurisdiction of a US court is to move it outside the United States. This section would effectively ban any such transfer if the effect of that transfer would be to frustrate a US criminal forfeiture order. Will Congress next impose the death penalty for maintaining assets outside the United States to frustrate forfeitures, as Nazi Germany did in 1936?
Section 34 amends 21 USC 853 by providing explicit authority for US courts to order persons whose property is subject to criminal forfeiture to repatriate to the jurisdiction of the court that property, or substitute untainted property, before conviction or even trial. Failure to do so is punishable by criminal contempt citation and may also result in an "enhancement" of any jail sentence. The Supreme Court already has upheld the pre-trial restraint of assets that might be used to pay an attorney. United States v. Monsanto, 491 U.S. 600 (1989). This provision expands that authority for the pre-trial restraint of substitute assets that could be used to pay an attorney.
In summary, HR-1965 is the worst of all possible worlds. It is reform in name only. API urges you to contact your Congressional representative to demand the defeat of this legislation and the enactment of true reform that would end all forfeiture of property without a criminal conviction.