TITLE 7
Corporations, Associations, and Partnerships

CHAPTER 7-15
Racketeer Influenced and Corrupt Organizations

SECTION 7-15-3.1


§ 7-15-3.1 Criminal forfeiture procedures.

(a) The attorney general shall set forth with reasonable particularity the property that the attorney general seeks to forfeit pursuant to this chapter.

(b) The court may, upon application of the attorney general, enter a restraining order or injunction, require any person claiming any interest in the subject property to execute a satisfactory performance bond to the state, or take any other action to preserve the availability of property subject to forfeiture described in this section, whether prior or subsequent to the filing of a complaint, indictment, or information. An order entered prior to the filing of a complaint, indictment, or information is effective for not more than ninety (90) days, unless extended by the court for good cause shown for not more than an additional ninety (90) days, or unless a complaint, indictment, or information has been filed during the period.

(c) Written notice and an opportunity for a hearing prior to any action by the court shall be afforded to persons appearing to have an interest in the property The hearing, however, is to be limited to the issues of whether:

(1) Based on the preponderance of the evidence that the state will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, conveyed, encumbered or further encumbered, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and

(2) The need to preserve the availability of property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered.

(d) A temporary restraining order under this section with respect to the property may be entered upon application of the attorney general without notice or opportunity for a hearing when a complaint, information, or indictment has not yet been filed, if the attorney general demonstrates that there is probable cause to believe that the property as 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. The temporary restraining order expires within ten (10) days of the date on which it is entered, unless extended for good cause shown for not more than an additional ten (10) days, or unless the party against whom it is entered consents to an extension for a longer period.

(1) A hearing requested by any party in interest concerning an order entered under this subsection shall be held at the earliest possible time and prior to the expiration of the temporary order.

(2) The court may receive and consider, at a hearing held pursuant to this subsection, evidence and information that would be admissible under the rules of evidence.

(e)(1) Upon conviction of a person for a violation of this chapter, the court shall enter a judgment of forfeiture to the state of the property described and shall also authorize the attorney general to seize all property ordered forfeited upon any terms and conditions that the court deems proper. Following the entry of an order declaring the property forfeited, the court may, upon application of the attorney general, enter 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 state in the property ordered forfeited. Any income accruing to, or derived from, an enterprise or an interest in an enterprise that has been ordered forfeited under this section may be used to offset ordinary and necessary expenses of the enterprise as required by law and expenses that are necessary to protect the interests of the state or innocent third parties.

(2) All right, title, and interest in property described in this section vests in the state upon the commission of the act giving rise to forfeiture under this act. Any property that is subsequently transferred to any person may be the subject of a special verdict of forfeiture and subsequently shall be ordered forfeited to the state, unless the transferee establishes in a hearing pursuant to subsection (f) that he or she is a bona fide purchaser for value of the property who at the time of purchase was reasonably without cause to believe that the property was subject for forfeiture.

(f) Procedures subsequent to the special verdict of forfeiture are as follows:

(1) Following the entry of an order of forfeiture under this section, the state shall publish notice of the order and of its intent to dispose of the property for at least seven (7) successive court days in any manner that the court orders. The state shall also, to the extent practicable, provide written notice to all parties known to have an interest in the property and all parties whose identity is reasonably subject to discovery and who may have an interest in the forfeited property.

(2) Any person, other than the defendant, asserting an interest in property that has been ordered forfeited to the state pursuant to this section may, within one hundred and eighty (180) days of the final publication of notice or his or her receipt of notice as stated in this section, whichever is earlier, petition the court for a hearing to adjudicate the validity of his or her alleged interest in the property. The hearing shall be held by the court 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 petitioner's right, title, or interest in the property; the time and circumstances of the petitioner's acquisition of the right, title, or interest in the property; any additional facts supporting the petitioner's claim; and the relief sought.

(4) The hearing on the petition shall, to the extent practicable and consistent with the interest of justice, be held within thirty (30) 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 and concerning the same property.

(5) At the hearing, the petitioner may testify and present evidence and witnesses on his or her own behalf, and cross examine witnesses who appear at the hearing. The state may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross examine witnesses who appear at the hearing. In addition to testimony and evidence presented at the hearing, the court shall consider the relevant portions of the record of the criminal case that resulted in the order of forfeiture.

(6) In accordance with its findings at the hearing, the court shall amend the order of forfeiture if it determines that the petitioner has established by a preponderance of the evidence that the petitioner:

(i) Has a right, title, or interest in the property, and 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;

(ii) Is a bona fide purchaser for value of any 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 chapter; or

(iii) Was a victim of the violation of this chapter and is entitled to compensation pursuant to §§ 7-15-4(c), in which case the court shall order the escrow of a sufficient amount to satisfy any judgment which may be obtained in an action brought pursuant to that section.

(7) Following the court's disposition of all petitions filed under this section, or if no petitions are filed, following the expiration of the period provided in this section for the filing of petitions, the state has clear title to property that is the subject of the order of forfeiture and is able to transfer good and sufficient title to any subsequent purchaser, transferee, or fund as provided in this section.

(8) Except as provided in this section, no party claiming an interest in property subject to forfeiture under this section may:

(i) Intervene in a trial or appeal of a criminal case involving the forfeiture of property; or

(ii) Commence any action against the state concerning the validity of the alleged interest in the property subsequent to the filing of a complaint, information, or indictment alleging that the property is subject to forfeiture.

(g) In order to facilitate the identification or location of property declared forfeited and to facilitate the disposition of petitions filed pursuant to this section, after the entry of an order declaring property forfeiture to the state, the court may, upon application of the attorney general or the petitioner, 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 (electronic or otherwise), or other material not privileged, be produced at the same time and place and in the same manner as provided for the taking of depositions under the rules of civil procedure.

(h) If any of the property described in this section:

(1) Cannot be located;

(2) Has been transferred 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 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 the subject property.

(i) The court has jurisdiction to enter orders as provided in this section regarding property located within this state that may be subject to forfeiture under this chapter or that has been ordered forfeited under this chapter.

History of Section.
(P.L. 1985, ch. 353, § 2.)