HR 2922 IH

107th CONGRESS

1st Session

H. R. 2922

To amend title 31, United States Code, to prevent the smuggling of large amounts of currency or monetary instruments into or out of the United States, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

September 20, 2001

Mrs. ROUKEMA (for herself and Mr. LAFALCE) introduced the following bill; which was referred to the Committee on Financial Services, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration and such provisions as fall within the jurisdiction of the committee concerned

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A BILL

To amend title 31, United States Code, to prevent the smuggling of large amounts of currency or monetary instruments into or out of the United States, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Bulk Cash Smuggling Act of 2001'.

SEC. 2. FINDINGS AND PURPOSE.

(a) FINDINGS- The Congress finds the following:

(1) Effective enforcement of the currency reporting requirements of subchapter II of chapter 53 of title 31, United States Code, and the regulations prescribed under such subchapter, has forced drug dealers and other criminals engaged in cash-based businesses to avoid using traditional financial institutions.

(2) In their effort to avoid using traditional financial institutions, drug dealers and other criminals are forced to move large quantities of currency in bulk form to and through the airports, border crossings, and other ports of entry where the currency can be smuggled out of the United States and placed in a foreign financial institution or sold on the black market.

(3) The transportation and smuggling of cash in bulk form may now be the most common form of money laundering, and the movement of large sums of cash is one of the most reliable warning signs of drug trafficking, terrorism , money laundering, racketeering, tax evasion and similar crimes.

(4) The intentional transportation into or out of the United States of large amounts of currency or monetary instruments, in a manner designed to circumvent the mandatory reporting provisions of subchapter II of chapter 53 of title 31, United States Code, is the equivalent of, and creates the same harm as, the smuggling of goods.

(5) The arrest and prosecution of bulk cash smugglers are important parts of law enforcement's effort to stop the laundering of criminal proceeds, but the couriers who attempt to smuggle the cash out of the United States are typically low-level employees of large criminal organizations, and thus are easily replaced. Accordingly, only the confiscation of the smuggled bulk cash can effectively break the cycle of criminal activity of which the laundering of the bulk cash is a critical part.

(6) The current penalties for violations of the currency reporting requirements are insufficient to provide a deterrent to the laundering of criminal proceeds. In particular, in cases where the only criminal violation under current law is a reporting offense, the law does not adequately provide for the confiscation of smuggled currency. In contrast, if the smuggling of bulk cash were itself an offense, the cash could be confiscated as the corpus delicti of the smuggling offense.

(b) PURPOSES- The purposes of this Act are as follows:

(1) To make the act of smuggling bulk cash itself a criminal offense.

(2) To authorize forfeiture of any smuggled cash and other monetary instruments, together with any other property involved in the smuggling offense.

(3) To emphasize the seriousness of the act of bulk cash smuggling.

(4) To prescribe guidelines for determining the amount of property subject to forfeiture in various situations.

SEC. 3. BULK CASH SMUGGLING INTO OR OUT OF THE UNITED STATES.

(a) ENACTMENT OF BULK CASH SMUGGLING OFFENSE- Subchapter II of chapter 53 of title 31, United States Code, is amended by adding at the end the following:

`Sec. 5331. Bulk cash smuggling into or out of the United States

`(a) CRIMINAL OFFENSE-

`(1) IN GENERAL- Whoever, with the intent to evade a currency reporting requirement under section 5316, knowingly conceals more than $10,000 in currency or other monetary instruments on the person of such individual or in any conveyance, article of luggage, merchandise, or other container, and transports or transfers or attempts to transport or transfer such currency or monetary instruments from a place within the United States to a place outside of the United States, or from a place outside the United States to a place within the United States, shall be guilty of a currency smuggling offense and subject to punishment pursuant to subsection (b).

`(2) CONCEALMENT ON PERSON- For purposes of this section, the concealment of currency on the person of any individual includes concealment in any article of clothing worn by the individual or in any luggage, backpack, or other container worn or carried by such individual.

`(b) PENALTY-

`(1) TERM OF IMPRISONMENT- A person convicted of a currency smuggling offense under subsection (a), or a conspiracy to commit such offense, shall be imprisoned for not more than 5 years.

`(2) FORFEITURE- In addition, the court, in imposing sentence under paragraph (1), shall order that the defendant forfeit to the United States, any

property, real or personal, involved in the offense, and any property traceable to such property, subject to subsection (d) of this section.

`(3) PROCEDURE- The seizure, restraint, and forfeiture of property under this section shall be governed by section 413 of the Controlled Substances Act.

`(4) PERSONAL MONEY JUDGMENT- If the property subject to forfeiture under paragraph (2) is unavailable, and the defendant has insufficient substitute property that may be forfeited pursuant to section 413(p) of the Controlled Substances Act, the court shall enter a personal money judgment against the defendant for the amount that would be subject to forfeiture.

`(c) CIVIL FORFEITURE-

`(1) IN GENERAL- Any property involved in a violation of subsection (a), or a conspiracy to commit such violation, and any property traceable to such violation or conspiracy, may be seized and, subject to subsection (d) of this section, forfeited to the United States.

`(2) PROCEDURE- The seizure and forfeiture shall be governed by the procedures governing civil forfeitures in money laundering cases pursuant to section 981(a)(1)(A) of title 18, United States Code.

`(3) TREATMENT OF CERTAIN PROPERTY AS INVOLVED IN THE OFFENSE- For purposes of this subsection and subsection (b), any currency or other monetary instrument that is concealed or intended to be concealed in violation of subsection (a) or a conspiracy to commit such violation, any article, container, or conveyance used, or intended to be used, to conceal or transport the currency or other monetary instrument, and any other property used, or intended to be used, to facilitate the offense, shall be considered property involved in the offense.

`(d) PROPORTIONALITY OF FORFEITURE-

`(1) IN GENERAL- Upon a showing by the property owner by a preponderance of the evidence that the currency or monetary instruments involved in the offense giving rise to the forfeiture were derived from a legitimate source, and were intended for a lawful purpose, the court shall reduce the forfeiture to the maximum amount that is not grossly disproportional to the gravity of the offense.

`(2) FACTORS TO BE CONSIDERED- In determining the amount of the forfeiture, the court shall consider all aggravating and mitigating facts and circumstances that have a bearing on the gravity of the offense, including the following:

`(A) The value of the currency or other monetary instruments involved in the offense.

`(B) Efforts by the person committing the offense to structure currency transactions, conceal property, or otherwise obstruct justice.

`(C) Whether the offense is part of a pattern of repeated violations of Federal law.'.

(b) CONFORMING AMENDMENT- The table of sections for subchapter II of chapter 53 of title 31, United States Code, is amended by inserting after the item relating to section 5330, the following new item:

`5331. Bulk cash smuggling into or out of the United States.'.

SEC. 4. FORFEITURE IN CURRENCY REPORTING CASES.

(a) IN GENERAL- Subsection (c) of section 5317 of title 31, United States Code, is amended to read as follows:

`(c) FORFEITURE-

`(1) IN GENERAL- The court in imposing sentence for any violation of section 5313, 5316, or 5324, or any conspiracy to commit such violation, shall order the defendant to forfeit all property, real or personal, involved in the offense and any property traceable thereto.

`(2) PROCEDURE- Forfeitures under this subsection shall be governed by the procedures established in section 413 of the Controlled Substances Act and the guidelines established in paragraph (4).

`(3) CIVIL FORFEITURE- Any property involved in a violation of section 5313, 5316, or 5324, or any conspiracy to commit any such violation, and any property traceable to any such violation or conspiracy, may be seized and, subject to paragraph (4), forfeited to the United States in accordance with the procedures governing civil forfeitures in money laundering cases pursuant to section 981(a)(1)(A) of title 18, United States Code.

`(4) PROPORTIONALITY OF FORFEITURE-

`(A) IN GENERAL- Upon a showing by the property owner by a preponderance of the evidence that any currency or monetary instruments involved in the offense giving rise to the forfeiture were derived from a legitimate source, and were intended for a lawful purpose, the court shall reduce the forfeiture to the maximum amount that is not grossly disproportional to the gravity of the offense.

`(B) FACTORS TO BE CONSIDERED- In determining the amount of the forfeiture, the court shall consider all aggravating and mitigating facts and circumstances that have a bearing on the gravity of the offense, including the following:

`(i) The value of the currency or other monetary instruments involved in the offense.

`(ii) Efforts by the person committing the offense to structure currency transactions, conceal property, or otherwise obstruct justice.

`(iii) Whether the offense is part of a pattern of repeated violations of Federal law.'.

(b) CONFORMING AMENDMENTS- (1) Section 981(a)(1)(A) of title 18, United States Code, is amended by striking `of section 5313(a) or 5324(a) of title 31, or'.

(2) Section 982(a)(1) of title 18, United States Code, is amended by striking `of 5313(a), 5316, or 5324 of title 31, or'.

SEC. 5. INTERSTATE CURRENCY COURIERS.

Section 1957 of title 18, United States Code, is amended by adding at the end the following new subsection:

`(g) Any person who conceals more than $10,000 in currency on his or her person, in any vehicle, in any compartment or container within any vehicle, or in any container placed in a common carrier, and transports, attempts to transport, or conspires to transport such currency in interstate commerce on any public road or highway or on any bus, train, airplane, vessel, or other common carrier, knowing that the currency was derived from some form of unlawful activity, or knowing that the currency was intended to be used to promote some form of unlawful activity, shall be punished as provided in subsection (b). The defendant's knowledge may be established by proof that the defendant was willfully blind to the source or intended use of the currency. For purposes of this subsection, the concealment of currency on the person of any individual includes concealment in any article of clothing worn by the individual or in any luggage, backpack, or other container worn or carried by such individual.'.