18 U.S.C. § 1963 — Criminal penalties

Page 488 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1963 (Added Pub. L. 91–452, title IX, § 901(a), Oct. 15, 1970, 84 Stat. 942; amended Pub. L. 100–690, title VII, § 7033, Nov. 18, 1988, 102 Stat. 4398.) Editorial Notes AMENDMENTS 1988—Subsec. (d). Pub. L. 100–690 substituted ‘‘sub- section’’ for ‘‘subsections’’. § 1963. Criminal penalties (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 activ- ity 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 estab- lished, operated, controlled, conducted, or par- ticipated in the conduct of, in violation of sec- tion 1962; and (3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering ac- tivity 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 per- son forfeit to the United States all property de- scribed in this subsection. In lieu of a fine other- wise authorized by this section, a defendant who derives profits or other proceeds from an offense may be fined not more than twice the gross prof- its 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 prop- erty, including rights, privileges, interests, claims, and securities. (c) All right, title, and interest in property de- scribed 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 sub- ject of a special verdict of forfeiture and there- after 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 in- junction, 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 sec- tion— (A) upon the filing of an indictment or infor- mation 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 ap- pearing to have an interest in the property and opportunity for a hearing, the court deter- mines 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 re- quested order outweighs the hardship on any party against whom the order is to be en- tered: Provided, however, That an order entered pursu- ant to subparagraph (B) shall be effective for not more than ninety days, unless extended by the court for good cause shown or unless an indict- ment 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 prop- erty, if the United States demonstrates that there is probable cause to believe that the prop- erty 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 fourteen 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, evi- dence and information that would be inadmis- sible under the Federal Rules of Evidence. (e) Upon conviction of a person under this sec- tion, the court shall enter a judgment of for- feiture 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 declar- ing the property forfeited, the court may, upon application of the United States, enter such ap- propriate restraining orders or injunctions, re- quire the execution of satisfactory performance bonds, appoint receivers, conservators, apprais- ers, accountants, or trustees, or take any other action to protect the interest of the United States in the property ordered forfeited. Any in- Page 489 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1963 come 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 Gen- eral 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 in- terest 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 pur- chase 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 disposi- tion 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 disposi- tion 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 Gen- eral 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 au- thorized to— (1) grant petitions for mitigation or remis- sion of forfeiture, restore forfeited property to victims of a violation of this chapter, or take any other action to protect the rights of inno- cent persons which is in the interest of justice and which is not inconsistent with the provi- sions 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 com- mercially feasible means, making due provi- sion for the rights of innocent persons; and (5) take appropriate measures necessary to safeguard and maintain property ordered for- feited under this section pending its disposi- tion. (h) The Attorney General may promulgate regulations with respect to— (1) making reasonable efforts to provide no- tice to persons who may have an interest in property ordered forfeited under this section; (2) granting petitions for remission or miti- gation of forfeiture; (3) the restitution of property to victims of an offense petitioning for remission or mitiga- tion of forfeiture under this chapter; (4) the disposition by the United States of forfeited property by public sale or other com- mercially 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 there- of, or the remission or mitigation of forfeitures for violation of the customs laws, and the com- promise of claims and the award of compensa- tion 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 incon- sistent with the provisions hereof. Such duties as are imposed upon the Customs Service or any person with respect to the disposition of prop- erty 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 crimi- nal case involving the forfeiture of such prop- erty under this section; or (2) commence an action at law or equity against the United States concerning the va- lidity of his alleged interest in the property subsequent to the filing of an indictment or information alleging that the property is sub- ject to forfeiture under this section. (j) The district courts of the United States shall have jurisdiction to enter orders as pro- vided in this section without regard to the loca- tion 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 fa- cilitate 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 pro- vided for the taking of depositions under Rule 15 of the Federal Rules of Criminal Procedure. (l)(1) Following the entry of an order of for- feiture 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 di- rect 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 noti- fied. (2) Any person, other than the defendant, as- serting a legal interest in property which has Page 490 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1963 been ordered forfeited to the United States pur- suant 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 prop- erty. The hearing shall be held before the court alone, without a jury. (3) The petition shall be signed by the peti- tioner 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 acquisi- tion of the right, title, or interest in the prop- erty, any additional facts supporting the peti- tioner’s claim, and the relief sought. (4) The hearing on the petition shall, to the ex- tent practicable and consistent with the inter- ests 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 de- fense of its claim to the property and cross-ex- amine witnesses who appear at the hearing. In addition to testimony and evidence presented at the hearing, the court shall consider the rel- evant 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 prepon- derance 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 in- valid 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 rea- sonably 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 pe- titions filed under this subsection, or if no such petitions are filed following the expiration of the period provided in paragraph (2) for the fil- ing 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 sub- section (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 depos- ited with, a third party; (3) has been placed beyond the jurisdiction of the court; (4) has been substantially diminished in value; or (5) has been commingled with other property which cannot be divided without difficulty; the court shall order the forfeiture of any other property of the defendant up to the value of any property described in paragraphs (1) through (5). (Added Pub. L. 91–452, title IX, § 901(a), Oct. 15, 1970, 84 Stat. 943; amended Pub. L. 98–473, title II, §§ 302, 2301(a)–(c), Oct. 12, 1984, 98 Stat. 2040, 2192; Pub. L. 99–570, title I, § 1153(a), Oct. 27, 1986, 100 Stat. 3207–13; Pub. L. 99–646, § 23, Nov. 10, 1986, 100 Stat. 3597; Pub. L. 100–690, title VII, §§ 7034, 7058(d), Nov. 18, 1988, 102 Stat. 4398, 4403; Pub. L. 101–647, title XXXV, § 3561, Nov. 29, 1990, 104 Stat. 4927; Pub. L. 111–16, § 3(4), May 7, 2009, 123 Stat. 1607.) Editorial Notes 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 2009—Subsec. (d)(2). Pub. L. 111–16 substituted ‘‘four- teen days’’ for ‘‘ten days’’. 1990—Subsec. (a). Pub. L. 101–647 substituted ‘‘or both’’ for ‘‘or both.’’ in introductory provisions. 1988—Subsec. (a). Pub. L. 100–690, § 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, § 7034, redesignated former subsec. (n) as (m) and substituted ‘‘act or omis- sion’’ 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, § 2301(a), inserted ‘‘In lieu of a fine otherwise authorized by this section, a de- fendant 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, § 302, amended subsec. (a) generally, designating existing provisions as pars. (1) and (2), in- serting par. (3), and provisions following par. (3) relat- ing to power of the court to order forfeiture to the United States. Subsec. (b). Pub. L. 98–473, § 302, amended subsec. (b) generally, substituting provisions relating to property subject to forfeiture, for provisions relating to jurisdic- tion of the district courts of the United States. Subsec. (c). Pub. L. 98–473, § 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 proce- dures related thereto. Subsec. (d). Pub. L. 98–473, § 2301(b), struck out subsec. (d) which provided: ‘‘If any of the property described in subsection (a): (1) cannot be located; (2) has been trans- ferred 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 commin- gled with other property which cannot be divided with- out 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).’’ Page 491 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1965 Pub. L. 98–473, § 302, added subsec. (d). Subsecs. (e) to (m). Pub. L. 98–473, § 302, added sub- secs. (d) to (m). Subsec. (m)(1). Pub. L. 98–473, § 2301(c), struck out ‘‘for at least seven successive court days’’ after ‘‘dis- pose of the property’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2009 AMENDMENT Amendment by Pub. L. 111–16 effective Dec. 1, 2009, see section 7 of Pub. L. 111–16, set out as a note under section 109 of Title 11, Bankruptcy. TRANSFER OF FUNCTIONS For transfer of functions, personnel, assets, and li- abilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Sec- retary of Homeland Security, and for treatment of re- lated 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 Novem- ber 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Se- curity, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended gen- erally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6. § 1964. Civil remedies (a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enter- prise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of en- deavor as the enterprise engaged in, the activi- ties of which affect interstate or foreign com- merce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons. (b) The Attorney General may institute pro- ceedings under this section. Pending final deter- mination thereof, the court may at any time enter such restraining orders or prohibitions, or take such other actions, including the accept- ance of satisfactory performance bonds, as it shall deem proper. (c) Any person injured in his business or prop- erty by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee, except that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to es- tablish a violation of section 1962. The exception contained in the preceding sentence does not apply to an action against any person that is criminally convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which the con- viction becomes final. (d) A final judgment or decree rendered in favor of the United States in any criminal pro- ceeding brought by the United States under this chapter shall estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding brought by the United States. (Added Pub. L. 91–452, title IX, § 901(a), Oct. 15, 1970, 84 Stat. 943; amended Pub. L. 98–620, title IV, § 402(24)(A), Nov. 8, 1984, 98 Stat. 3359; Pub. L. 104–67, title I, § 107, Dec. 22, 1995, 109 Stat. 758.) Editorial Notes AMENDMENTS 1995—Subsec. (c). Pub. L. 104–67 inserted before period at end ‘‘, except that no person may rely upon any con- duct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962. The exception contained in the preceding sentence does not apply to an action against any per- son that is criminally convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which the conviction be- comes final’’. 1984—Subsec. (b). Pub. L. 98–620 struck out provision that in any action brought by the United States under this section, the court had to proceed as soon as prac- ticable to the hearing and determination thereof. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1995 AMENDMENT Amendment by Pub. L. 104–67 not to affect or apply to any private action arising under title I of the Securi- ties Exchange Act of 1934 (15 U.S.C. 78a et seq.) or title I of the Securities Act of 1933 (15 U.S.C. 77a et seq.), commenced before and pending on Dec. 22, 1995, see sec- tion 108 of Pub. L. 104–67, set out as a note under sec- tion 77l of Title 15, Commerce and Trade. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620, set out as an Effective Date note under section 1657 of Title 28, Judiciary and Judicial Procedure. CONSTRUCTION OF 1995 AMENDMENT Nothing in amendment by Pub. L. 104–67 to be deemed to create or ratify any implied right of action, or to prevent Securities and Exchange Commission, by rule or regulation, from restricting or otherwise regulating private actions under Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), see section 203 of Pub. L. 104–67, set out as a Construction note under section 78j–1 of Title 15, Commerce and Trade. § 1965. Venue and process (a) Any civil action or proceeding under this chapter against any person may be instituted in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs. (b) In any action under section 1964 of this chapter in any district court of the United States in which it is shown that the ends of jus- tice require that other parties residing in any other district be brought before the court, the court may cause such parties to be summoned, and process for that purpose may be served in any judicial district of the United States by the marshal thereof. (c) In any civil or criminal action or pro- ceeding instituted by the United States under this chapter in the district court of the United States for any judicial district, subpenas issued by such court to compel the attendance of wit-