Sec. 410 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... 94

Sec. 410 

TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... 94 

31301 of title 49, United States Code), operating in com- merce (as defined in that section); and 

(B) is located within 2,500 feet of the National System of Interstate and Defense Highways or the Federal-Aid Primary System. 

(b) FIRST OFFENSE.—A person who violates section 401(a)(1) or section 416 by distributing or possessing with intent to distribute a controlled substance in or on, or within 1,000 feet of, a truck stop or safety rest area is (except as provided in subsection (b)42) sub- ject to— 

(1) twice the maximum punishment authorized by section 401(b); and 

(2) twice any term of supervised release authorized by sec- tion 401(b) for a first offense.
(c) SUBSEQUENT OFFENSE.—A person who violates section 

401(a)(1) or section 416 by distributing or possessing with intent to distribute a controlled substance in or on, or within 1,000 feet of, a truck stop or a safety rest area after a prior conviction or convic- tions under subsection (a) 43 have become final is subject to— 

(1) 3 times the maximum punishment authorized by sec- tion 401(b); and 

(2) 3 times any term of supervised release authorized by section 401(b) for a first offense. 

INFORMATION FOR SENTENCING 

SEC. 410. ø21 U.S.C. 850¿ Except as otherwise provided in this title or section 303(a) of the Public Health Service Act44, no limita- tion shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence under this title or title III. 

PROCEEDINGS TO ESTABLISH PRIOR CONVICTIONS 

SEC. 411. ø21 U.S.C. 851¿ (a)(1) No person who stands con- victed of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless be- fore trial, or before entry of a plea of guilty, the United States at- torney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a show- ing by the United States attorney that facts regarding prior convic- tions could not with due diligence be obtained prior to trial or be- fore entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the pur- pose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sen- tence. 

(2) An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for 

42 So in law. Probably should be ‘‘subsection (c)’’.
43 So in law. Probably should be ‘‘subsection (b)’’.
44 Section 303 of the Public Health Service Act was repealed by section 3201(b)(1) of Public 

Law 106–310 (114 Stat. 1190). 

January 16, 2018 As Amended Through P.L. 115-91, Enacted December 12, 2017 

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95 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... Sec. 411 

a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed. 

(b) If the United States attorney files an information under this section, the court shall after conviction but before pronounce- ment of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence. 

(c)(1) If the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the re- sponse shall be served upon the United States attorney. The court shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment. The failure of the United States attorney to include in the information the complete criminal record of the person or any facts in addition to the convictions to be relied upon shall not constitute grounds for invalidating the notice given in the information required by sub- section (a)(1). The hearing shall be before the court without a jury and either party may introduce evidence. Except as otherwise pro- vided in paragraph (2) of this subsection, the United States attor- ney shall have the burden of proof beyond a reasonable doubt on any issue of fact. At the request of either party, the court shall enter findings of fact and conclusions of law. 

(2) A person claiming that a conviction alleged in the informa- tion was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof by a preponderance of the evidence on any issue of fact raised by the response. Any challenge to a prior con- viction, not raised by response to the information before an in- creased sentence is imposed in reliance thereon, shall be waived unless good cause be shown for failure to make a timely challenge. 

(d)(1) If the person files no response to the information, or if the court determines, after hearing, that the person is subject to increased punishment by reason of prior convictions, the court shall proceed to impose sentence upon him as provided by this part. 

(2) If the court determines that the person has not been con- victed as alleged in the information, that a conviction alleged in the information is invalid, or that the person is otherwise not subject to an increased sentence as a matter of law, the court shall, at the request of the United States attorney, postpone sentence to allow an appeal from that determination. If no such request is made, the court shall impose sentence as provided by this part. The person may appeal from an order postponing sentence as if sentence had been pronounced and a final judgment of conviction entered. 

(e) No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction. 

January 16, 2018 As Amended Through P.L. 115-91, Enacted December 12, 2017 

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Sec. 412 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... 96 

APPLICATION OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS 

SEC. 412. ø21 U.S.C. 852¿ Nothing in the Single Convention on Narcotic Drugs, the Convention on Psychotropic Substances, or other treaties or international agreements shall be construed to limit the provision of treatment, education, or rehabilitation as al- ternatives to conviction or criminal penalty for offenses involving any drug or other substance subject to control under any such trea- ty or agreement. 

CRIMINAL FORFEITURES
PROPERTY SUBJECT TO CRIMINAL FORFEITURE 

SEC. 413. ø21 U.S.C. 853¿ (a) Any person convicted of a viola- tion of this title or title III punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law— 

(1) any property constituting, or derived from, any pro- ceeds the person obtained, directly or indirectly, as the result of such violation; 

(2) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and 

(3) in the case of a person convicted of engaging in a con- tinuing criminal enterprise in violation of section 408 of this title (21 U.S.C. 848), the person shall forfeit, in addition to any property described in paragraph (1) or (2), any of his interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise. 

The court, in imposing sentence on such person, shall order, in ad- dition to any other sentence imposed pursuant to this title or title III, that the person forfeit to the United States all property de- scribed in this subsection. In lieu of a fine otherwise authorized by this part, a defendant who derives profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds. 

MEANING OF TERM ‘‘PROPERTY’’ 

(b) Property subject to criminal forfeiture under this section in- cludes— 

(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. 

THIRD PARTY TRANSFERS 

(c) All right, title, and interest in property described in sub- section (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 defend- ant may be the subject 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 (n) that he is a bona fide purchaser for value of such property who at the 

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97 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... Sec. 413 

time of purchase was reasonably without cause to believe that the property was subject to forfeiture under this section. 

REBUTTABLE PRESUMPTION 

(d) There is a rebuttable presumption at trial that any prop- erty of a person convicted of a felony under this title or title III is subject to forfeiture under this section if the United States estab- lishes by a preponderance of the evidence that— 

(1) such property was acquired by such person during the period of the violation of this title or title III or within a rea- sonable time after such period; and 

(2) there was no likely source for such property other than the violation of this title or title III. 

PROTECTIVE ORDERS 

(e)(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 charg- ing a violation of this title or title III for which criminal for- feiture may be ordered under this section 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 sec- tion; 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 fail- ure to enter the order will result in the property being de- stroyed, removed from the jurisdiction of the court, or oth- erwise made unavailable for forfeiture; and 

(ii) the need to preserve the availability of the prop- erty 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 subpara- graph (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 op- portunity 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 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 

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Sec. 413 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... 98 

for good cause shown or unless the party against whom it is en- tered consents to an extension for a longer period. A hearing re- quested 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 pur- suant to this subsection, evidence and information that would be inadmissible under the Federal Rules of Evidence. 

(4)45 ORDER TO REPATRIATE AND DEPOSIT.—
(A) IN GENERAL.—Pursuant to its authority to enter a 

pretrial restraining order under this section, the court may order a defendant to repatriate any property that may be seized and forfeited, and to deposit that property pending trial in the registry of the court, or with the United States Marshals Service or the Secretary of the Treasury, in an interest-bearing account, if appropriate. 

(B) FAILURE TO COMPLY.—Failure to comply with an order under this subsection, or an order to repatriate prop- erty under subsection (p), shall be punishable as a civil or criminal contempt of court, and may also result in an en- hancement of the sentence of the defendant under the ob- struction of justice provision of the Federal Sentencing Guidelines. 

WARRANT OF SEIZURE 

(f) The Government may request the issuance of a warrant au- thorizing the seizure of property subject to forfeiture under this section in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be sub- ject to forfeiture and that an order under subsection (e) may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property. 

EXECUTION 

(g) Upon entry of an order of forfeiture under this section, the court shall authorize the Attorney General to seize all property or- dered forfeited upon such terms and conditions as the court shall deem proper. Following 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 prop- erty ordered forfeited. Any income accuring to or derived from property ordered forfeited under this section may be used to offset ordinary and necessary expenses to the property which are re- quired by law, or which are necessary to protect the interests of the United States or third parties. 

45 Indentation is so in law. See section 319(d)(2) of Public Law 107–56 (115 Stat. 314). 

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99 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... Sec. 413 

DISPOSITION OF PROPERTY 

(h) Following the seizure of property ordered forfeited under this section, the Attorney General shall direct the disposition of the property by sale of any other any other commercially feasible means, making due provision for the rights of any innocent per- sons. Any property right or interest not exercisable by, or transfer- able for value to, the United States shall expire and shall not re- vert to the defendant, nor shall the defendant or any person acting in concert with him or on his behalf be eligible to purchase for- feited property at any sale held by the United States. Upon appli- cation of a person, other than the defendant or a person acting in concert with him or on his behalf, 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 forefeiture, if the ap- plicant demonstrates that proceeding with the sale or disposition of the property will result in irreparable injury, harm, or loss to him. 

AUTHORITY OF THE ATTORNEY GENERAL 

(i) With respect to property ordered forfeited under this sec- tion, 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 title, or take any other action to protect the rights of innocent per- sons which is in the interest of justice and which is not incon- sistent with the provisions of this section; 

(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, in accord- ance with the provisions of section 511(e) of this title (21 U.S.C. 881(e)), of all property ordered forfeited under this sec- tion by public sale or any other commerically 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. 

APPLICABILITY OF CIVIL FORFEITURE PROVISIONS 

(j) Except to the extent that they are inconsistent with the pro- visions of this section, the provisions of section 511(d) of this title (21 U.S.C. 881(d)) shall apply to a criminal forfeiture under this section. 

BAR ON INTERVENTION 

(k) Except as provided in subsection (n), 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 involv- 

ing 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 infor- mation alleging that the property in subject to forfeiture under 

this section. 

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Sec. 413 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... 100 

JURISDICTION TO ENTER ORDERS 

(l) The district courts of the United States shall have jurisdic- tion 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. 

DEPOSITIONS 

(m) In order to facilitate the identification and location of prop- erty 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 deposi- tion and that any designated book, paper, document, record, record- ing, or other material not privileged be produced at the same time any place, in the same manner as provided for the taking of deposi- tions under Rule 15 of the Federal Rules of Criminal Procedure. 

THIRD PARTY INTERESTS 

(n)(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 prac- ticable, 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 in- terest 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 peti- tioner’s right, title, or interest in the property, the time and cir- cumstances of the petitioner’s acquisition of the right, title, or in- terest in the property, and additional facts supporting the peti- tioner’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 evi- dence and witnesses on his own behalf, and cross-examine wit- nesses who appear at the hearing. The United States may present evidence and witnesses in rebuttal and in defense of this claim to the property and cross-examine witnesses who appear at the hear- ing, the court shall consider the relevant portions of the record of the criminal case which resulted in the order of forfeiture. 

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101 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... Sec. 413 

(6) If, after the hearing, the court determines that the peti- tioner 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 defend- ant or was superior to any right, title, or interest of the defend- ant at the time of the commission of the acts which gave rise 

to the forfeiture of the property under the 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 expi- ration 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. 

(o) The provisions of this section shall be liberally construed to effectuate its remedial purposes. 

(p) FORFEITURE OF SUBSTITUTE PROPERTY.—
(1) IN GENERAL.—Paragraph (2) of this subsection shall 

apply, if any property described in subsection (a), as a result of any act or omission of the defendant— 

(A) cannot be located upon the exercise of due dili- gence; 

(B) has been transferred or sold to, or deposited with, a third party; 

(C) has been placed beyond the jurisdiction of the court; 

(D) has been substantially diminished in value; or 

(E) has been commingled with other property which cannot be divided without difficulty.
(2) SUBSTITUTE PROPERTY.—In any case described in any of 

subparagraphs (A) through (E) of paragraph (1), the court shall order the forfeiture of any other property of the defendant, up to the value of any property described in subparagraphs (A) through (E) of paragraph (1), as applicable. 

(3) RETURN OF PROPERTY TO JURISDICTION.—In the case of property described in paragraph (1)(C), the court may, in addi- tion to any other action authorized by this subsection, order the defendant to return the property to the jurisdiction of the court so that the property may be seized and forfeited. 

(q) The court, when sentencing a defendant convicted of an of- fense under this title or title III involving the manufacture, the possession, or the possession with intent to distribute, of amphet- amine or methamphetamine, shall— 

(1) order restitution as provided in sections 3612 and 3664 of title 18, United States Code; 

(2) order the defendant to reimburse the United States, the State or local government concerned, or both the United 

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