crime. We object to the mens rea standard included in the proposed legislation of "knowing or believing the same" to be property obtained in violation of law. This statute would allow conviction on the impossibly subjective test of the belief of the accused. We are also concerned that this provision of the proposed statute would infringe upon the Sixth Amendment right to counsel. Under the proposed legislation it is unlikely that an attorney could accept a fee from a client who had possibly engaged in criminal activity. This is especially true given the belief standard of the proposed legislation. We object to the expansion of in personam forfeiture contained in H.R. 2785, H.R. 2786 and S. 1335. We believe that the proposed forfeiture legislation will unduly infringe the Sixth Amendment right to counsel and represents an unwarranted increase in criminal penalties. The forfeiture provisions, as currently drafted, are overly broad and contain many ambiguities which will require significant judicial resources to clear up. Specifically, the proposed forfeiture provisions fail to establish the link between the defendant, the criminal activity and the proceeds to be forfeited. There is no nexus between the defendant and these other elements. We similarly object to the relation back and substitute asset provisions. The relation back doctrine makes little sense given the difficulty of defining the act which gives rise to the forfeiture. The substitute asset provision comes dangerously close to the long established bar on forfeiture of estates. In addition, the substitute asset provision will place the defendant in the incongruous position of being trustee or fiduciary to the government's unsecured claim from the moment of the criminal act. It has been a pleasure to be able to appear today and explain the American Bar Association's position on money laundering legislation. The ABA is willing to assist the Subcommittee in any way it can to refine this legislation and develop a workable solution to the money laundering problem. I will be glad to answer any questions. 0082W Approved as American Bar Association Policy The House acts only on the recommendation. AMERICAN BAR ASSOCIATION SECTION OF CRIMINAL JUSTICE REPORT TO THE HOUSE OF DELEGATES RECOMMENDATION BE IT RESOLVED, That the American Bar Association supports enactment of federal legislation which will assist federal law enforcement agencies in combatting money laundering through the following: 1. 2. Create a new federal criminal offense of "money Amend the Bank Secrecy Act to provide for faster 3. Increase substantially the number of personnel available to the Secretary of the Treasury and the 4. Amend the Bank Secrecy Act to require additional BE IT FURTHER RESOLVED, That the American Bar Association opposes the enactment of proposed legislation dealing with money laundering which would: 1. Create a new crime of money laundering as contained in the . H.R. 2786, and S. 1335, and also in H.R. 1367, ?. Create new crime of Facilitating an Offense as Administration's contained in the legislation, H.R. 2785, H. R. 2786, and S. 1335 (99th Congress). 3. Amend Rule 17 (c), Federal Rules of Criminal Procedure, contained legislation, in the Administration's H.R. 2785, H.R. 2786, and S. 1335 (99th Congress), which would authorize a court to direct the recipient of a grand jury subpoena not to notify anyone of the existence of the subpoena. 4. Amend the Right to Financial Privacy Act as contained in the Administration's legislation, H.R. 2785, H.R. 2786, and S. 1335 (99th Congress), to delete the requirement that records obtained from a financial institution pursuant to grand jury subpoena must be returned and actually presented to the grand jury. 5. Create a new crime of Receiving the Proceeds of a Crime as contained in the Administration's legislation, H.R. 2785, H.R. 2786, and S. 1335 (99th Congress). 6. Expand the scope of federal forfeiture law as contained in the Administration's legislation, H.R. 2785, H.R. 2786, and S. 1335 (99th Congress). |