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3 Convictions
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CITE

    18 USC Sec. 1963                                            01/05/2009

EXPCITE

    TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
    PART I - CRIMES
    CHAPTER 96 - RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS

HEAD

    Sec. 1963. Criminal penalties

STATUTE

      (a) Whoever violates any provision of section 1962 of this
    chapter shall be fined under this title or imprisoned not more than
    20 years (or for life if the violation is based on a racketeering
    activity for which the maximum penalty includes life imprisonment),
    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. In lieu of a fine otherwise authorized by this
    section, 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) 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 (l) 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)(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
      -
          (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.
      (e) 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 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.
      (f) 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.
      (g) 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.
      (h) 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;
        (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.
      (i) Except as provided in subsection (l), no party claiming an
    interest in property subject to forfeiture under this section may -
        (1) intervene in a trial or appeal of a criminal case involving
      the forfeiture of such property under this section; or
        (2) commence an action at law or equity against the United
      States concerning the validity of his alleged interest in the
      property subsequent to the filing of an indictment or information
      alleging that the property is subject to forfeiture under this
      section.
      (j) The district courts of the United States shall have
    jurisdiction to enter orders as provided in this section without
    regard to the location of any property which may be subject to
    forfeiture under this section or which has been ordered forfeited
    under this section.
      (k) 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.
      (l)(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.
      (m) If any of the property described in subsection (a), as a
    result of any act or omission of the defendant -
        (1) cannot be located upon the exercise of due diligence;
        (2) has been transferred or sold to, or deposited with, a third
      party;
        (3) has been placed beyond the jurisdiction of the court;
        (4) has been substantially diminished in value; or
        (5) has been commingled with other property which cannot be
      divided without difficulty;
    the court shall order the forfeiture of any other property of the
    defendant up to the value of any property described in paragraphs
    (1) through (5).

SOURCE

    (Added Pub. L. 91-452, title IX, Sec. 901(a), Oct. 15, 1970, 84
    Stat. 943; amended Pub. L. 98-473, title II, Secs. 302, 2301(a)-
    (c), Oct. 12, 1984, 98 Stat. 2040, 2192; Pub. L. 99-570, title I,
    Sec. 1153(a), Oct. 27, 1986, 100 Stat. 3207-13; Pub. L. 99-646,
    Sec. 23, Nov. 10, 1986, 100 Stat. 3597; Pub. L. 100-690, title VII,
    Secs. 7034, 7058(d), Nov. 18, 1988, 102 Stat. 4398, 4403; Pub. L.
    101-647, title XXXV, Sec. 3561, Nov. 29, 1990, 104 Stat. 4927.)

REFERENCES IN TEXT

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

AMENDMENTS

      1990 - Subsec. (a). Pub. L. 101-647 substituted "or both" for "or
    both." in introductory provisions.
      1988 - Subsec. (a). Pub. L. 100-690, Sec. 7058(d), substituted
    "shall be fined under this title or imprisoned not more than 20
    years (or for life if the violation is based on a racketeering
    activity for which the maximum penalty includes life imprisonment),
    or both." for "shall be fined not more than $25,000 or imprisoned
    not more than twenty years, or both".
      Subsecs. (m), (n). Pub. L. 100-690, Sec. 7034, redesignated
    former subsec. (n) as (m) and substituted "act or omission" for
    "act of omission".
      1986 - Subsecs. (c) to (m). Pub. L. 99-646 substituted "(l)" for
    "(m)" in subsec. (c), redesignated subsecs. (e) to (m) as (d) to
    (l), respectively, and substituted "(l)" for "(m)" in subsec. (i)
    as redesignated.
      Subsec. (n). Pub. L. 99-570 added subsec. (n).
      1984 - Subsec. (a). Pub. L. 98-473, Sec. 2301(a), inserted "In
    lieu of a fine otherwise authorized by this section, a defendant
    who derives profits or other proceeds from an offense may be fined
    not more than twice the gross profits or other proceeds." following
    par. (3).
      Pub. L. 98-473, Sec. 302, amended subsec. (a) generally,
    designating existing provisions as pars. (1) and (2), inserting
    par. (3), and provisions following par. (3) relating to power of
    the court to order forfeiture to the United States.
      Subsec. (b). Pub. L. 98-473, Sec. 302, amended subsec. (b)
    generally, substituting provisions relating to property subject to
    forfeiture, for provisions relating to jurisdiction of the district
    courts of the United States.
      Subsec. (c). Pub. L. 98-473, Sec. 302, amended subsec. (c)
    generally, substituting provisions relating to transfer of rights,
    etc., in property to the United States, or to other transferees,
    for provisions relating to seizure and transfer of property to the
    United States and procedures related thereto.
      Subsec. (d). Pub. L. 98-473, Sec. 2301(b), struck out subsec. (d)
    which provided: "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)."
      Pub. L. 98-473, Sec. 302, added subsec. (d).
      Subsecs. (e) to (m). Pub. L. 98-473, Sec. 302, added subsecs. (d)
    to (m).
      Subsec. (m)(1). Pub. L. 98-473, Sec. 2301(c), struck out "for at
    least seven successive court days" after "dispose of the property".

TRANSFER OF FUNCTIONS

      For transfer of functions, personnel, assets, and liabilities of
    the United States Customs Service of the Department of the
    Treasury, including functions of the Secretary of the Treasury
    relating thereto, to the Secretary of Homeland Security, and for
    treatment of related references, see sections 203(1), 551(d),
    552(d), and 557 of Title 6, Domestic Security, and the Department
    of Homeland Security Reorganization Plan of November 25, 2002, as
    modified, set out as a note under section 542 of Title 6.
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