The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“PRESERVING CRIMINAL ASSETS FOR FORFEITURE ACT” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S8637-S8638 on Dec. 8, 2010.
The publication is reproduced in full below:
PRESERVING CRIMINAL ASSETS FOR FORFEITURE ACT
Mr. WHITEHOUSE. Mr. President, I rise to speak in support of S. 4005, the Preserving Criminal Assets for Forfeiture Act of 2010, which I recently introduced with my distinguished colleague Senator Cornyn. This bill will help keep the proceeds and instrumentalities of crime out of the hands of foreign criminals. It will also encourage foreign countries to assist the United States in recovering the overseas assets of U.S. criminals.
The U.S. Government is currently authorized to assist foreign nations seeking to enforce their forfeiture judgments, for example by seizing the proceeds of large-scale international fraud, drug trafficking, or money laundering. Recent judicial decisions, however, have interpreted existing statutes as not providing our courts with the authority to restrain known criminal assets located in the U.S. prior to the issuance of a foreign forfeiture judgment. Criminals are therefore able to move and hide the assets they hold in the United States as soon as they find out they will be subject to foreign forfeiture proceedings, or even while the proceedings are ongoing. This leaves U.S. courts with no property to freeze once the foreign forfeiture judgment is entered.
Because of this hole in the law, foreign criminals have already been able to shield hundreds of millions of dollars worth of ill-gotten property, allowing them to continue their criminal enterprises and frustrating the efforts of law enforcement. In recent months alone, our government has been unable to restrain more than $550 million that had been identified for forfeiture by foreign governments in connection with criminal investigations and prosecutions. This money will remain a continuing resource for criminal organizations, allowing them to fund extensive additional criminal activity, some of which may well target Americans.
The U.S. Government's lack of authority to preserve criminal assets in advance of a foreign forfeiture judgment also threatens the cooperation we receive from foreign nations in our own criminal cases. The United States regularly seeks our allies' assistance in issuing prejudgment restraints to preserve the ill-gotten assets of U.S. criminals who have hidden their proceeds overseas. For example, in April of this year, Panama repatriated approximately $40 million in gold and jewelry from a drug money laundering case, which had been restrained there for years at our request. The forfeited assets will be liquidated, with the final proceeds from those sales placed into the Department of Justice's assets forfeiture fund, and used to enhance future domestic and international criminal investigations and law enforcement initiatives. As another example, in the major international fraud case involving Allen Stanford, Switzerland, the United Kingdom, and Canada have restrained a combined $400 million on behalf of the United States pursuant to our forfeiture proceedings.
Comparable future forfeitures could be in jeopardy because, before executing a request from the United States, most countries require assurances of reciprocity. In fact, a number of these reciprocity agreements are codified in treaties. If we fail to provide our government with authority to restrain assets pending foreign forfeiture judgments, we may ultimately enable criminal organizations in the United States to dissipate foreign assets that should be subject to U.S. forfeiture proceedings. That puts at risk hundreds of millions of dollars in criminal proceeds that may not be able to be returned to fraud victims or that criminals will reinvest in drug trafficking offenses or other crimes that affect our communities.
The bipartisan Preserving Criminal Assets for Forfeiture Act of 2010 will fix these problems by preventing criminals from removing illicit assets from the United States during the pendency of foreign forfeiture proceedings. The bill would amend 28 U.S.C. Sec. 4267(d)(3) to clarify that U.S. courts have the power to issue restraining orders freezing the proceeds and instrumentalities of foreign criminals until foreign forfeiture proceedings have concluded. In doing so, the legislation brings the treatment of international criminals' assets in line with that of domestic criminals.
The bill includes due process protections analogous to those used for restraining orders in anticipation of domestic forfeiture judgments, to make sure that only criminal assets are targeted. It also requires the U.S. court to ensure that the relevant foreign tribunal observes due process protections, has subject matter jurisdiction, and is not acting as a result of fraud.
The bill is supported by the Department of Justice, and I thank the attorneys of the Department for their expert advice on this legislation. I also particularly thank Senator Cornyn for his leadership on this issue. It has been a great pleasure to work with him in introducing this legislation. I urge our colleagues on both sides of the aisle to join with us to enact this much needed bill into law.
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