13-4312

13-4312. Judicial in personam forfeiture
proceedings

A. If a forfeiture is authorized by law, it shall be ordered by a court on
proceedings by the state in an in personam civil or criminal action pursuant to section
13-2313 or 13-2314 or any other law providing for a forfeiture.

B. Any complaint, information or indictment alleging or charging one or more
offenses included in section 13-2301, subsection D, paragraph 4 or a violation of section
13-2312, or any other offense giving rise to forfeiture under this title, shall set forth
with reasonable particularity property that the state seeks to forfeit pursuant to this
section in that action, if any. The court shall allow the allegation that particular new
or different or differently described property is subject to forfeiture in an in personam
criminal or civil case to be made at any time prior to the date the case is actually
tried unless the allegation is filed fewer than twenty days before the case is actually
tried, and the court finds on the record that the defendant was in fact prejudiced by the
untimely filing and states reasons for these findings, provided that when the allegation
is filed, the state must make available to the defendant a copy of any material
information concerning the allegation.

C. In any proceeding pursuant to this section, the court, on application of the
state, may enter any order authorized by section 13-4310, subsection A or take any other
action to seize, secure, maintain or preserve the availability of property subject to
forfeiture under this title, including a warrant for its seizure, whether before or after
the filing of a complaint, indictment or information.

D. Notwithstanding subsection E of this section, a temporary restraining order
under this section may be entered on application of the state without notice or an
opportunity for a hearing if the state demonstrates both that:

1. There is probable cause to believe that the property with respect to which the
order is sought would, in the event of final judgment or conviction, be subject to
forfeiture under this title.

2. Provision of notice will jeopardize the availability of the property for
forfeiture. A temporary restraining order expires within ten days after the date on which
it is entered unless the party against whom it is entered consents to an extension for a
longer period or unless after commencing a hearing the court enters or is considering a
preliminary injunction.

E. Notice of the entry of the restraining order and an opportunity for a hearing
shall be afforded to persons known to have an interest in the property, whether or not a
temporary restraining order is entered without notice. The hearing, however, is limited
to the issues of whether both:

1. There is a probability 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,
concealed or otherwise made unavailable for forfeiture.

2. The need to preserve the availability of property through the entry of the
requested order outweighs the hardship on any owner, interest holder or defendant against
whom the order is to be entered.

F. A hearing requested by any owner or interest holder concerning an order entered
under this section shall be held at the earliest possible time and before the expiration
of a temporary order.

G. On a determination of liability or the conviction of a person for conduct giving
rise to forfeiture under this title, the court shall enter a judgment of forfeiture of
the property described in the forfeiture statute alleged and set out in the complaint,
information or indictment, as amended, and shall also authorize the county attorney or
attorney general, their agents or any peace officer to seize all property ordered
forfeited that was not previously seized or is not then under seizure. Following the
entry of an order declaring the property forfeited, the court, on application of the
state, may enter any order authorized by section 13-4310, subsection A or take any other
action to protect the interest of this state or a political subdivision in the property
ordered forfeited. The filing of the order of forfeiture in the appropriate public
records perfects the interest of the state in the property described in the order as of
the earlier of the date of the act or omission giving rise to forfeiture or the date that
a notice of seizure for forfeiture or notice of pending forfeiture or racketeering lien
was first filed in the records, which entitles the state to all rights of a secured party
as to that property in addition to any other rights or remedies of the state in relation
to the property. Any income accruing to, or derived from, an enterprise or any interest
in an enterprise or other property interest that is forfeited under this chapter is also
forfeited from the time of the conduct giving rise to forfeiture. It may be used pending
procedures subsequent to a verdict or finding of liability to offset ordinary and
necessary expenses of the enterprise or property as required by law or that are necessary
to protect the interests of this state or a political subdivision.

H. Procedures subsequent to the verdict or finding of liability and order of
forfeiture shall be as follows:

1. Following the entry of an order of forfeiture under this subsection the clerk of
the court shall, and the attorney for the state may, give notice of pending forfeiture to
all owners and interest holders who have not previously been given notice, if any, in the
manner provided in section 13-4307.

2. An owner of or interest holder in property that has been ordered forfeited
pursuant to such action whose claim is not precluded may file a claim as described in
section 13-4311, subsections E and F in the court for a hearing to adjudicate the
validity of his claimed interest in the property within thirty days after initial notice
of pending forfeiture or after notice under paragraph 1 of this subsection, whichever is
earlier.

3. The hearing on the claim, to the extent practicable and consistent with the
interest of justice, shall be held within sixty days after the order of forfeiture. The
court may consolidate the hearing on the claim with a hearing on any other claim filed by
a person other than a party or defendant in the underlying action and concerning the same
property.

4. The hearing shall be held by the court without a jury and conducted in the
manner provided for in rem judicial forfeiture actions including the provisions of
section 13-4311, subsections J and K. In addition to testimony and evidence presented at
the hearing, the court shall consider the relevant portions of the record of the
underlying civil or criminal action that resulted in the order of forfeiture.

5. In accordance with its findings at the hearing, the court may amend the order of
forfeiture if it determines that any claimant has established by a preponderance of the
evidence that the claimant is an owner of or interest holder in the property if either of
the following applies:

(a) The state has failed to establish by a preponderance of the evidence that the
interest is subject to forfeiture under section 13-4304.

(b) The claimant has established by a preponderance of the evidence that the
interest is exempt from forfeiture under section 13-4304.

I. In order to facilitate the identification or location of property declared
forfeited and to facilitate the disposition of filed or subsequent claims pursuant to
subsection H, paragraph 2 of this section, the court, on application of the state, may
order that the testimony of any witness relating to the property forfeited or alleged to
be subject to forfeiture be taken by deposition and that any designated book, paper,
document, record, recording, electronic or otherwise, or other material which is not
privileged be produced at the same time and place and in the same manner as that provided
for the taking of depositions under the rules of civil procedure.