13-2314

13-2314. Racketeering; civil remedies by this
state; definitions

A. The attorney general or a county attorney may file an action in superior court
on behalf of a person who sustains injury to his person, business or property by
racketeering as defined by section 13-2301, subsection D, paragraph 4 or by a violation
of section 13-2312 for the recovery of treble damages and the costs of the suit,
including reasonable attorney fees, or to prevent, restrain, or remedy racketeering as
defined by section 13-2301, subsection D, paragraph 4 or a violation of section
13-2312. If the person against whom a racketeering claim has been asserted, including a
forfeiture action or lien, prevails on that claim, the person may be awarded costs and
reasonable attorney fees incurred in defense of that claim. In actions filed by the
state or a county, awards of costs and reasonable attorney fees are to be assessed
against and paid from monies acquired pursuant to sections 13-2314.01 and 13-2314.03.

B. The superior court has jurisdiction to prevent, restrain, and remedy
racketeering as defined by section 13-2301, subsection D, paragraph 4 or a violation of
section 13-2312 after making provision for the rights of any person who sustained injury
to his person, business or property by the racketeering conduct and after a hearing or
trial, as appropriate, by issuing appropriate orders.

C. Prior to a determination of liability such orders may include, but are not
limited to, issuing seizure warrants, entering findings of probable cause for in personam
or in rem forfeiture, entering restraining orders or prohibitions or taking such other
actions, including the acceptance of satisfactory performance bonds, the creation of
receiverships and the enforcement of constructive trusts, in connection with any property
or other interest subject to forfeiture, damages or other remedies or restraints pursuant
to this section as the court deems proper.

D. Following a determination of liability such orders may include, but are not
limited to:

1. Ordering any person to divest himself of any interest, direct or indirect, in
any enterprise.

2. Imposing reasonable restrictions on the future activities or investments of any
person, including prohibiting any person from engaging in the same type of endeavor as
the enterprise engaged in, the activities of which affect the laws of this state, to the
extent the constitutions of the United States and this state permit.

3. Ordering dissolution or reorganization of any enterprise.

4. Ordering the payment of treble damages to those persons injured by racketeering
as defined by section 13-2301, subsection D, paragraph 4 or a violation of section
13-2312.

5. Ordering the payment of all costs and expenses of the prosecution and
investigation of any offense included in the definition of racketeering in section
13-2301, subsection D, paragraph 4 or a violation of section 13-2312, civil and criminal,
including reasonable attorney fees, to be paid to the general fund of the state or the
county which brings the action.

6. In personam forfeiture pursuant to chapter 39 of this title to the general fund
of the state or county as appropriate, to the extent that forfeiture is not inconsistent
with protecting the rights of any person who sustained injury to his person, business or
property by the racketeering conduct, of the interest of a person in:

(a) Any property or interest in property acquired or maintained by the person in
violation of section 13-2312.

(b) Any interest in, security of, claims against or property, office, title,
license or contractual right of any kind affording a source of influence over any
enterprise or other property which the person has acquired or maintained an interest in
or control of, conducted or participated in the conduct of in violation of section
13-2312.

(c) All proceeds traceable to an offense included in the definition of racketeering
in section 13-2301, subsection D, paragraph 4 and held by the person and all monies,
negotiable instruments, securities and other property used or intended to be used by the
person in any manner or part to facilitate commission of the offense and that the person
either owned or controlled for the purpose of that use.

(d) Any other property up to the value of the subject property described in
subdivision (a), (b) or (c) of this paragraph.

7. Payment to the general fund of the state or county as appropriate of an amount
equal to the gain that was acquired or maintained through an offense included in the
definition of racketeering in section 13-2301, subsection D, paragraph 4 or a violation
of section 13-2312 or that any person is liable for under this section.

E. A person who is liable for conduct described in subsection D, paragraph 6,
subdivision (a), (b) or (c) of this section is liable for the total value of all
interests in property described in those subdivisions. The court shall enter an order of
forfeiture against the person in the amount of the total value of all those interests
less the value of any interests that are forfeited before or at the time of the entry of
the final judgment.

F. A person or enterprise that acquires any property through an offense included in
the definition of racketeering in section 13-2301, subsection D, paragraph 4 or through a
violation of section 13-2312 is an involuntary trustee. The involuntary trustee and any
other person or enterprise, except a bona fide purchaser for value who is reasonably
without notice of the unlawful conduct and who is not knowingly taking part in an illegal
transaction, hold the property, its proceeds and its fruits in constructive trust for the
benefit of persons entitled to remedies under this section.

G. In addition to or in lieu of an action under this section the attorney general
or a county attorney may file an in rem action pursuant to chapter 39 of this title for
forfeiture, to the extent that forfeiture is not inconsistent with protecting the rights
of any person who sustained injury to his person, business or property by the
racketeering conduct, of:

1. Any property or interest in property acquired or maintained by a person in
violation of section 13-2312.

2. Any interest in, security of, claims against or property, office, title, license
or contractual right of any kind affording a source of influence over any enterprise or
other property which a person has acquired or maintained an interest in or control of,
conducted or participated in the conduct of in violation of section 13-2312.

3. All proceeds traceable to an offense included in the definition of racketeering
in section 13-2301, subsection D, paragraph 4 and all monies, negotiable instruments,
securities and other property used or intended to be used in any manner or part to
facilitate the commission of the offense.

H. A defendant convicted in any criminal proceeding shall be precluded from
subsequently denying the essential allegations of the criminal offense of which he was
convicted in any civil proceeding. For the purposes of this subsection, a conviction may
result from a verdict or plea including a no contest plea.

I. Notwithstanding any law creating a lesser period, the initiation of civil
proceedings related to violations of any offense included in the definition of
racketeering in section 13-2301, subsection D, paragraph 4 or a violation of section
13-2312, including procedures pursuant to chapter 39 of this title, shall be commenced
within seven years after actual discovery of the violation.

J. In any civil action brought pursuant to this section, the attorney general or a
county attorney may file with the clerk of the superior court a certificate stating that
the case is of special public importance. A copy of that certificate shall be furnished
immediately by such clerk to the chief judge or presiding chief judge of the superior
court in the county in which such action is pending, and, upon receipt of such copy, the
judge shall immediately designate a judge to hear and determine the action. The judge so
designated shall promptly assign such action for hearing, participate in the hearings and
determination and cause the action to be expedited.

K. The standard of proof in actions brought pursuant to this section is the
preponderance of the evidence test.

L. A civil action authorized by this section, including proceedings pursuant to
chapter 39 of this title, is remedial and not punitive and does not limit and is not
limited by any other previous or subsequent civil or criminal action under this title or
any other provision of law. Civil remedies provided under this title are supplemental
and not mutually exclusive.

M. The attorney general may appear as amicus curiae in any proceeding in which a
claim under this section has been asserted, including proceedings pursuant to chapter 39
of this title, or in which the court is interpreting this chapter or chapter 39 of this
title. A party who files a notice of appeal from a civil action brought under this
chapter or chapter 39 of this title shall serve the notice and one copy of the
appellant's brief on the attorney general at the time the person files the appellant's
brief with the court. This requirement is jurisdictional.

N. In this section and section 13-2312:

1. "Acquire" means for a person to do any of the following:

(a) Possess.

(b) Act so as to exclude other persons from using their property except on his own
terms.

(c) Bring about or receive the transfer of any interest in property, whether to
himself or to another person, or to secure performance of a service.

2. "Gain" means any benefit, interest or property of any kind without reduction for
expenses of acquiring or maintaining it or incurred for any other reason.

3. "Proceeds" includes any interest in property of any kind acquired through or
caused by an act or omission, or derived from the act or omission, directly or
indirectly, and any fruits of this interest, in whatever form.