§ 21-28-5.04.1 Criminal forfeitureprocedures. – (a) Any criminal complaint, information, or indictment charging one or morecovered offenses shall set forth with reasonable particularity property thatthe attorney general seeks to forfeit pursuant to this section.
(b) The court may, upon application of the attorney general,enter a restraining order or injunction, require any person claiming anyinterest in the subject property to execute a satisfactory performance bond tothe state, or take any other action to preserve the availability of propertysubject to forfeiture described in § 21-28-5.04, whether prior orsubsequent to the filing of a complaint, indictment, or information. Writtennotice and an opportunity for a hearing shall be afforded to persons appearingto have an interest in the property, the hearing to be limited to the issues ofwhether:
(1) There is a substantial probability that the state willprevail on the issue of forfeiture and that failure to enter the order willresult in the property being destroyed, conveyed, encumbered or furtherencumbered, removed from the jurisdiction of the court, or made unavailable forforfeitures; and
(2) The need to preserve the availability of property throughthe entry of the requested order outweighs the hardship on any party againstwhom the order is to be entered.
(c) A temporary restraining order under this section may beentered upon application of the attorney general without notice or opportunityfor a hearing when a complaint, information, or indictment has not yet beenfiled with respect to the property if the attorney general demonstrates thatthere is probable cause to believe that the property with respect to which theorder is sought would, in the event of conviction, be subject to forfeitureunder § 21-28-5.04 and that provision of notice will jeopardize theavailability of the property for forfeiture. The temporary restraining ordershall expire within ten (10) days of the date on which it is entered unlessextended for good cause shown or unless the party against whom it is enteredconsents to an extension for a longer period.
(2) A hearing requested by any party in interest concerningan order entered under this subsection shall be held at the earliest possibletime and prior to the expiration of the temporary order.
(3) The court may receive and consider, at the hearing heldpursuant to this subsection, evidence and information that would beinadmissible in court.
(d) Upon conviction of a person for a covered offense thecourt shall enter a judgment of forfeiture of the property described in §21-28-5.04 to the state and shall also authorize the attorney general to seizeall property ordered forfeited upon any terms and conditions that the courtshall deem proper. Following the entry of an order declaring the propertyforfeited, the court may, upon application of the attorney general, enter anyappropriate restraining orders or injunctions, require the execution ofsatisfactory performance bonds, appoint receivers, conservators, appraisers,accountants, or trustees, or take any other action to protect the interest ofthe state in the property ordered forfeited. Any income accruing to or derivedfrom an enterprise or an interest in an enterprise that has been orderedforfeited under this section may be used to offset ordinary and necessaryexpenses of the enterprise as required by law or that are necessary to protectthe interest of the state or innocent third parties.
(e) All right, title, and interest in property described in§ 21-28-5.04 vests in the state upon the commission of the act giving riseto forfeiture under this chapter. Any property that is subsequently transferredto any person may be the subject of a special verdict of forfeiture and afterthis shall be ordered forfeited to the state, unless the transferee establishesin a hearing pursuant to subsection (f) of this section that he or she is abona fide purchaser for value of the property who at the time of purchase wasreasonably without cause to believe that the property was subject forforfeiture.
(f) Procedures subsequent to the special verdict offorfeiture shall be as follows:
(1) Following the entry of an order of forfeiture under thissection, the state shall publish notice of the order and of its intent todispose of the property once per week for at least three (3) weeks in themanner that the attorney general may provide by regulation. The attorneygeneral shall also, to the extent practicable, provide written notice to allparties known to have an interest in the property and all parties whoseidentity is reasonably subject to discovery and who may have an interest in theforfeited property.
(2) Any person, other than the defendant, asserting anyinterest in property that has been ordered forfeited to the state pursuant tothis section may, within one hundred eighty (180) days of the final publicationof notice or his or her receipt of notice under subdivision (1) of thissubsection, whichever is earlier, petition the court for a hearing toadjudicate the validity of his or her alleged interest in the property.
(3) The petition shall be signed by the petitioner underpenalty of perjury and shall set forth the nature and extent of thepetitioner's right, title, or interest in the property; and additional factssupporting the petitioner's claim; and the relief sought.
(4) The hearing on the petition shall, to the extentpracticable and consistent with the interest of justice, be held within thirty(30) days of the filing of the petition. The court may consolidate the hearingon the petition with a hearing on any other petition filed by a person otherthan the defendant and concerning the same property.
(5) At a hearing, the petitioner may testify and presentevidence and witnesses on his own behalf, and cross-examine witnesses whoappear at the hearing. The state may present evidence and witnesses in rebuttaland in defense of its claim to the property and cross-examine witnesses whoappear at the hearing. In addition to testimony and evidence presented at thehearing, the court shall consider the relevant portions of the record of thecriminal case that resulted in the order of forfeiture.
(6) In accordance with its findings at the hearing, the courtshall amend the order of forfeiture if it determines that the petitioner hasestablished by a preponderance of the evidence that:
(i) The petitioner has a right, title, or interest in theproperty, and the right, title or interest was vested in the petitioner ratherthan the defendant or was superior to any right, title, or interest of thedefendant at the time of the commission of the acts which gave rise to theforfeiture of the property under this section; or
(ii) The petitioner is a bona fide purchaser for value of anyright, title, or interest in the property and was at the time of purchasereasonably without cause to believe that the property was subject to forfeitureunder this section.
(7) Following the court's disposition of all petitions filedunder this section, or if no such petitions are filed, following the expirationof the period provided in § 21-28-5.04 for the filing of the petitions,the state shall have clear title to property that is the subject of the orderof forfeiture and shall transfer good and sufficient title to any subsequentpurchaser, transferee, or fund as provided in this chapter.
(8) Except as provided in this section, no party claiming aninterest in property subject to forfeiture under this section may:
(i) Intervene in a trial or appeal of a criminal caseinvolving the forfeiture of the property; or
(ii) Commence any action against the state concerning thevalidity of the alleged interest.
(g) In order to facilitate the identification or location ofproperty declared forfeited and to facilitate the disposition of petitionsfiled pursuant to § 21-28-5.04 after the entry of an order declaringforfeited property to the state, the court may, upon application of theattorney general, order that the testimony of any witness relating to theproperty forfeited be taken by deposition and that any designated book, paper,document, record, recording (electronic or otherwise), or other material notprivileged, be produced at the same time and place, in the same manner asprovided for the taking of depositions under the Rules of Civil Procedure.
(h) If any of the property described in § 21-28-5.04:(1) cannot be located; (2) has been transferred to, sold to or deposited with athird party; (3) has been placed beyond the jurisdiction of the court; (4) hasbeen substantially diminished in value by any act or omission of the defendant;or (5) has been commingled with other property which cannot be divided withoutdifficulty; the court shall order the forfeiture of any other property of thedefendant up to the value of the subject property.
(i) The court shall have jurisdiction to enter orders asprovided in this section without regard to the location of any property thatmay be subject to forfeiture under this section or that has been orderedforfeited under this section.
§ 21-28-5.04.1 Criminal forfeitureprocedures. – (a) Any criminal complaint, information, or indictment charging one or morecovered offenses shall set forth with reasonable particularity property thatthe attorney general seeks to forfeit pursuant to this section.
(b) The court may, upon application of the attorney general,enter a restraining order or injunction, require any person claiming anyinterest in the subject property to execute a satisfactory performance bond tothe state, or take any other action to preserve the availability of propertysubject to forfeiture described in § 21-28-5.04, whether prior orsubsequent to the filing of a complaint, indictment, or information. Writtennotice and an opportunity for a hearing shall be afforded to persons appearingto have an interest in the property, the hearing to be limited to the issues ofwhether:
(1) There is a substantial probability that the state willprevail on the issue of forfeiture and that failure to enter the order willresult in the property being destroyed, conveyed, encumbered or furtherencumbered, removed from the jurisdiction of the court, or made unavailable forforfeitures; and
(2) The need to preserve the availability of property throughthe entry of the requested order outweighs the hardship on any party againstwhom the order is to be entered.
(c) A temporary restraining order under this section may beentered upon application of the attorney general without notice or opportunityfor a hearing when a complaint, information, or indictment has not yet beenfiled with respect to the property if the attorney general demonstrates thatthere is probable cause to believe that the property with respect to which theorder is sought would, in the event of conviction, be subject to forfeitureunder § 21-28-5.04 and that provision of notice will jeopardize theavailability of the property for forfeiture. The temporary restraining ordershall expire within ten (10) days of the date on which it is entered unlessextended for good cause shown or unless the party against whom it is enteredconsents to an extension for a longer period.
(2) A hearing requested by any party in interest concerningan order entered under this subsection shall be held at the earliest possibletime and prior to the expiration of the temporary order.
(3) The court may receive and consider, at the hearing heldpursuant to this subsection, evidence and information that would beinadmissible in court.
(d) Upon conviction of a person for a covered offense thecourt shall enter a judgment of forfeiture of the property described in §21-28-5.04 to the state and shall also authorize the attorney general to seizeall property ordered forfeited upon any terms and conditions that the courtshall deem proper. Following the entry of an order declaring the propertyforfeited, the court may, upon application of the attorney general, enter anyappropriate restraining orders or injunctions, require the execution ofsatisfactory performance bonds, appoint receivers, conservators, appraisers,accountants, or trustees, or take any other action to protect the interest ofthe state in the property ordered forfeited. Any income accruing to or derivedfrom an enterprise or an interest in an enterprise that has been orderedforfeited under this section may be used to offset ordinary and necessaryexpenses of the enterprise as required by law or that are necessary to protectthe interest of the state or innocent third parties.
(e) All right, title, and interest in property described in§ 21-28-5.04 vests in the state upon the commission of the act giving riseto forfeiture under this chapter. Any property that is subsequently transferredto any person may be the subject of a special verdict of forfeiture and afterthis shall be ordered forfeited to the state, unless the transferee establishesin a hearing pursuant to subsection (f) of this section that he or she is abona fide purchaser for value of the property who at the time of purchase wasreasonably without cause to believe that the property was subject forforfeiture.
(f) Procedures subsequent to the special verdict offorfeiture shall be as follows:
(1) Following the entry of an order of forfeiture under thissection, the state shall publish notice of the order and of its intent todispose of the property once per week for at least three (3) weeks in themanner that the attorney general may provide by regulation. The attorneygeneral shall also, to the extent practicable, provide written notice to allparties known to have an interest in the property and all parties whoseidentity is reasonably subject to discovery and who may have an interest in theforfeited property.
(2) Any person, other than the defendant, asserting anyinterest in property that has been ordered forfeited to the state pursuant tothis section may, within one hundred eighty (180) days of the final publicationof notice or his or her receipt of notice under subdivision (1) of thissubsection, whichever is earlier, petition the court for a hearing toadjudicate the validity of his or her alleged interest in the property.
(3) The petition shall be signed by the petitioner underpenalty of perjury and shall set forth the nature and extent of thepetitioner's right, title, or interest in the property; and additional factssupporting the petitioner's claim; and the relief sought.
(4) The hearing on the petition shall, to the extentpracticable and consistent with the interest of justice, be held within thirty(30) days of the filing of the petition. The court may consolidate the hearingon the petition with a hearing on any other petition filed by a person otherthan the defendant and concerning the same property.
(5) At a hearing, the petitioner may testify and presentevidence and witnesses on his own behalf, and cross-examine witnesses whoappear at the hearing. The state may present evidence and witnesses in rebuttaland in defense of its claim to the property and cross-examine witnesses whoappear at the hearing. In addition to testimony and evidence presented at thehearing, the court shall consider the relevant portions of the record of thecriminal case that resulted in the order of forfeiture.
(6) In accordance with its findings at the hearing, the courtshall amend the order of forfeiture if it determines that the petitioner hasestablished by a preponderance of the evidence that:
(i) The petitioner has a right, title, or interest in theproperty, and the right, title or interest was vested in the petitioner ratherthan the defendant or was superior to any right, title, or interest of thedefendant at the time of the commission of the acts which gave rise to theforfeiture of the property under this section; or
(ii) The petitioner is a bona fide purchaser for value of anyright, title, or interest in the property and was at the time of purchasereasonably without cause to believe that the property was subject to forfeitureunder this section.
(7) Following the court's disposition of all petitions filedunder this section, or if no such petitions are filed, following the expirationof the period provided in § 21-28-5.04 for the filing of the petitions,the state shall have clear title to property that is the subject of the orderof forfeiture and shall transfer good and sufficient title to any subsequentpurchaser, transferee, or fund as provided in this chapter.
(8) Except as provided in this section, no party claiming aninterest in property subject to forfeiture under this section may:
(i) Intervene in a trial or appeal of a criminal caseinvolving the forfeiture of the property; or
(ii) Commence any action against the state concerning thevalidity of the alleged interest.
(g) In order to facilitate the identification or location ofproperty declared forfeited and to facilitate the disposition of petitionsfiled pursuant to § 21-28-5.04 after the entry of an order declaringforfeited property to the state, the court may, upon application of theattorney general, order that the testimony of any witness relating to theproperty forfeited be taken by deposition and that any designated book, paper,document, record, recording (electronic or otherwise), or other material notprivileged, be produced at the same time and place, in the same manner asprovided for the taking of depositions under the Rules of Civil Procedure.
(h) If any of the property described in § 21-28-5.04:(1) cannot be located; (2) has been transferred to, sold to or deposited with athird party; (3) has been placed beyond the jurisdiction of the court; (4) hasbeen substantially diminished in value by any act or omission of the defendant;or (5) has been commingled with other property which cannot be divided withoutdifficulty; the court shall order the forfeiture of any other property of thedefendant up to the value of the subject property.
(i) The court shall have jurisdiction to enter orders asprovided in this section without regard to the location of any property thatmay be subject to forfeiture under this section or that has been orderedforfeited under this section.
§ 21-28-5.04.1 Criminal forfeitureprocedures. – (a) Any criminal complaint, information, or indictment charging one or morecovered offenses shall set forth with reasonable particularity property thatthe attorney general seeks to forfeit pursuant to this section.
(b) The court may, upon application of the attorney general,enter a restraining order or injunction, require any person claiming anyinterest in the subject property to execute a satisfactory performance bond tothe state, or take any other action to preserve the availability of propertysubject to forfeiture described in § 21-28-5.04, whether prior orsubsequent to the filing of a complaint, indictment, or information. Writtennotice and an opportunity for a hearing shall be afforded to persons appearingto have an interest in the property, the hearing to be limited to the issues ofwhether:
(1) There is a substantial probability that the state willprevail on the issue of forfeiture and that failure to enter the order willresult in the property being destroyed, conveyed, encumbered or furtherencumbered, removed from the jurisdiction of the court, or made unavailable forforfeitures; and
(2) The need to preserve the availability of property throughthe entry of the requested order outweighs the hardship on any party againstwhom the order is to be entered.
(c) A temporary restraining order under this section may beentered upon application of the attorney general without notice or opportunityfor a hearing when a complaint, information, or indictment has not yet beenfiled with respect to the property if the attorney general demonstrates thatthere is probable cause to believe that the property with respect to which theorder is sought would, in the event of conviction, be subject to forfeitureunder § 21-28-5.04 and that provision of notice will jeopardize theavailability of the property for forfeiture. The temporary restraining ordershall expire within ten (10) days of the date on which it is entered unlessextended for good cause shown or unless the party against whom it is enteredconsents to an extension for a longer period.
(2) A hearing requested by any party in interest concerningan order entered under this subsection shall be held at the earliest possibletime and prior to the expiration of the temporary order.
(3) The court may receive and consider, at the hearing heldpursuant to this subsection, evidence and information that would beinadmissible in court.
(d) Upon conviction of a person for a covered offense thecourt shall enter a judgment of forfeiture of the property described in §21-28-5.04 to the state and shall also authorize the attorney general to seizeall property ordered forfeited upon any terms and conditions that the courtshall deem proper. Following the entry of an order declaring the propertyforfeited, the court may, upon application of the attorney general, enter anyappropriate restraining orders or injunctions, require the execution ofsatisfactory performance bonds, appoint receivers, conservators, appraisers,accountants, or trustees, or take any other action to protect the interest ofthe state in the property ordered forfeited. Any income accruing to or derivedfrom an enterprise or an interest in an enterprise that has been orderedforfeited under this section may be used to offset ordinary and necessaryexpenses of the enterprise as required by law or that are necessary to protectthe interest of the state or innocent third parties.
(e) All right, title, and interest in property described in§ 21-28-5.04 vests in the state upon the commission of the act giving riseto forfeiture under this chapter. Any property that is subsequently transferredto any person may be the subject of a special verdict of forfeiture and afterthis shall be ordered forfeited to the state, unless the transferee establishesin a hearing pursuant to subsection (f) of this section that he or she is abona fide purchaser for value of the property who at the time of purchase wasreasonably without cause to believe that the property was subject forforfeiture.
(f) Procedures subsequent to the special verdict offorfeiture shall be as follows:
(1) Following the entry of an order of forfeiture under thissection, the state shall publish notice of the order and of its intent todispose of the property once per week for at least three (3) weeks in themanner that the attorney general may provide by regulation. The attorneygeneral shall also, to the extent practicable, provide written notice to allparties known to have an interest in the property and all parties whoseidentity is reasonably subject to discovery and who may have an interest in theforfeited property.
(2) Any person, other than the defendant, asserting anyinterest in property that has been ordered forfeited to the state pursuant tothis section may, within one hundred eighty (180) days of the final publicationof notice or his or her receipt of notice under subdivision (1) of thissubsection, whichever is earlier, petition the court for a hearing toadjudicate the validity of his or her alleged interest in the property.
(3) The petition shall be signed by the petitioner underpenalty of perjury and shall set forth the nature and extent of thepetitioner's right, title, or interest in the property; and additional factssupporting the petitioner's claim; and the relief sought.
(4) The hearing on the petition shall, to the extentpracticable and consistent with the interest of justice, be held within thirty(30) days of the filing of the petition. The court may consolidate the hearingon the petition with a hearing on any other petition filed by a person otherthan the defendant and concerning the same property.
(5) At a hearing, the petitioner may testify and presentevidence and witnesses on his own behalf, and cross-examine witnesses whoappear at the hearing. The state may present evidence and witnesses in rebuttaland in defense of its claim to the property and cross-examine witnesses whoappear at the hearing. In addition to testimony and evidence presented at thehearing, the court shall consider the relevant portions of the record of thecriminal case that resulted in the order of forfeiture.
(6) In accordance with its findings at the hearing, the courtshall amend the order of forfeiture if it determines that the petitioner hasestablished by a preponderance of the evidence that:
(i) The petitioner has a right, title, or interest in theproperty, and the right, title or interest was vested in the petitioner ratherthan the defendant or was superior to any right, title, or interest of thedefendant at the time of the commission of the acts which gave rise to theforfeiture of the property under this section; or
(ii) The petitioner is a bona fide purchaser for value of anyright, title, or interest in the property and was at the time of purchasereasonably without cause to believe that the property was subject to forfeitureunder this section.
(7) Following the court's disposition of all petitions filedunder this section, or if no such petitions are filed, following the expirationof the period provided in § 21-28-5.04 for the filing of the petitions,the state shall have clear title to property that is the subject of the orderof forfeiture and shall transfer good and sufficient title to any subsequentpurchaser, transferee, or fund as provided in this chapter.
(8) Except as provided in this section, no party claiming aninterest in property subject to forfeiture under this section may:
(i) Intervene in a trial or appeal of a criminal caseinvolving the forfeiture of the property; or
(ii) Commence any action against the state concerning thevalidity of the alleged interest.
(g) In order to facilitate the identification or location ofproperty declared forfeited and to facilitate the disposition of petitionsfiled pursuant to § 21-28-5.04 after the entry of an order declaringforfeited property to the state, the court may, upon application of theattorney general, order that the testimony of any witness relating to theproperty forfeited be taken by deposition and that any designated book, paper,document, record, recording (electronic or otherwise), or other material notprivileged, be produced at the same time and place, in the same manner asprovided for the taking of depositions under the Rules of Civil Procedure.
(h) If any of the property described in § 21-28-5.04:(1) cannot be located; (2) has been transferred to, sold to or deposited with athird party; (3) has been placed beyond the jurisdiction of the court; (4) hasbeen substantially diminished in value by any act or omission of the defendant;or (5) has been commingled with other property which cannot be divided withoutdifficulty; the court shall order the forfeiture of any other property of thedefendant up to the value of the subject property.
(i) The court shall have jurisdiction to enter orders asprovided in this section without regard to the location of any property thatmay be subject to forfeiture under this section or that has been orderedforfeited under this section.
