TITLE 18

CRIMES AND PUNISHMENTS

CHAPTER 15

CHILDREN AND VULNERABLE ADULTS

18-1507B.  criminal forfeiture. (1) Any person who enters a plea of guilty or is convicted of a felony violation of section 18-1507, 18-1507A, 18-1509, or 18-1509A, Idaho Code, no matter the form of the judgment or order withholding judgment, shall forfeit to the state of Idaho:

(a)  Any property constituting or derived from any proceeds the person obtained, directly or indirectly, as the result of such violation. Such proceeds shall also include any virtual or cryptocurrency; and

(b)  Any property, used in any manner or part, to commit or to facilitate the commission of such violation.

(2)  The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to section 18-1507, 18-1507A, 18-1509, or 18-1509A, Idaho Code, that the person forfeit to the state of Idaho all property described in this section. The issue of criminal forfeiture shall be for the court alone, without submission to a jury, as a part of the sentencing procedure within the criminal action.

(3)  "Property" subject to criminal forfeiture under this section means personal property, including but not limited to vehicles, real property, computer files, computer hardware and software, and electronic data employed in any manner or part in the commission of the violation.

(4)  Any peace officer of this state seizing property subject to forfeiture under the provisions of this section shall cause a written inventory to be made and shall maintain custody of the same until all legal actions have been exhausted.

(5)  Property subject to criminal forfeiture under this section shall not be ordered forfeited unless the prosecuting attorney has filed a separate allegation within the criminal proceeding seeking forfeiture of specific property. The prosecuting attorney shall file, within fourteen (14) days of the filing of the criminal information or indictment, a forfeiture request and notice with the trial court. Any property of a person subject to the provisions of this section shall be subject to forfeiture under this section if the state of Idaho establishes by a preponderance of the evidence that:

(a)  The property was acquired or used by a person during the period of the violation of section 18-1507, 18-1507A, 18-1509, or 18-1509A, Idaho Code, or within a reasonable time after such violation; and

(b)  The property was used in the commission of the violation of section 18-1507, 18-1507A, 18-1509, or 18-1509A, Idaho Code.

(6)(a)  Upon application of the state of Idaho, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property described in subsection (3) of this section for forfeiture under this section upon the filing of an indictment or information charging a violation of sexual exploitation of a minor for which criminal forfeiture may be ordered and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section.

(b)  The state may request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this section in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture and that an order under subsection (2) of this section may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property by the appropriate law enforcement agency upon such terms and conditions as the court shall deem proper.

(c)  The court may, upon application of the state of Idaho, enter such 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 of Idaho in the property subject to forfeiture. Any income accruing to or derived from property subject to forfeiture under this section may be used to offset ordinary and necessary expenses to the property that are required by law or that are necessary to protect the interests of the state of Idaho or third parties.

(7)  Upon the filing of a forfeiture request pursuant to subsection (5) of this section, or in the event of seizure pursuant to a warrant of seizure, or upon entry of an order of forfeiture, the prosecuting attorney shall, if appropriate, institute proceedings pursuant to subsection (8) of this section within twenty (20) days of such event.

(8)(a)  Within twenty (20) days of an institution of proceedings as provided in subsection (7) of this section, notice, including a copy of the request for forfeiture, shall be given to each co-owner or party in interest who has or claims any right, title, or interest in any of such personal property according to one (1) of the following methods:

(i)   Upon each co-owner of or party in interest in a titled motor vehicle, aircraft, or other conveyance, by mailing notice by certified mail to the last known address of each co-owner and party in interest as given upon the records of the appropriate department of state or federal government where records relating to such conveyances are maintained;

(ii)  Upon each secured party and assignee designated as such in any UCC-1 financing statement on file in an appropriate filing office covering any personal property sought to be forfeited, by mailing notice by certified mail to the secured party and the assignee, if any, at their respective last known addresses as shown on such financing statement; or

(iii) Upon each co-owner or party in interest whose name and last known address is known, by mailing notice by certified mail to the last known address of such person.

(b)  Within twenty (20) days after the mailing of the notice, the co-owner or party in interest shall file a verified answer and claim to the property described in the notice.

(c)  If a verified answer is filed within twenty (20) days after mailing of the notice, the forfeiture proceeding against all co-owners and parties in interest who have filed verified answers shall be set for hearing before the court without a jury on a day not less than sixty (60) days after the mailing of the notice, and the proceeding shall have priority over other civil cases, except as provided in chapter 28, title 37, Idaho Code.

(i)   At a hearing held pursuant to this subsection, any co-owner or party in interest who has a verified answer on file may show by competent evidence that his interest in the titled motor vehicle, aircraft, or other conveyance is not subject to forfeiture because he could not have known in the exercise of reasonable diligence that the titled motor vehicle, aircraft, or other conveyance was being used, had been used, or was intended to be used for the purposes described in subsection (1) of this section;

(ii)  A co-owner or claimant of any right, title, or interest in the property may prove that his right, title, or interest, whether under a lien, mortgage, security agreement, conditional sales contract, or otherwise, was created without any knowledge or reason to believe that the property was being used, had been used, or was intended to be used for the purpose alleged;

1.  In the event of such proof, the court shall order that portion of the property or interest released to the bona fide or innocent co-owner, purchaser, lienholder, mortgagee, secured party, or conditional sales vendor;

2.  If the amount due to such person is less than the value of the property, the property may be sold at public auction or in another commercially reasonable method by the prosecuting attorney. If sold at public auction, the prosecuting attorney shall publish a notice of the sale by at least one (1) publication in a newspaper published and circulated in the city, community, or locality where the sale is to take place at least one (1) week prior to sale of the property. The proceeds from such sale shall be distributed as follows in the order indicated:

(A)  To the bona fide or innocent co-owner, purchaser, conditional sales vendor, lienholder, mortgagee, or secured party of the property, if any, up to the value of his interest in the property.

(B)  The balance, if any, in the following order:

a.  To the prosecuting attorney, for all expenditures made or incurred by him in connection with the sale, including expenditure for any necessary repairs, storage, or transportation of the property, and for all expenditures made or incurred by him in connection with the forfeiture proceedings, including but not limited to expenditures for witnesses’ fees, reporters’ fees, transcripts, printing, traveling, and investigation; and

b.  To the law enforcement agency of this state that seized the property for all expenditures for traveling, investigation, storage, and other expenses made or incurred after the seizure and in connection with the forfeiture of any property seized under this chapter.

(C)  Notwithstanding any other provision of this section, upon being satisfied that the interest of a co-owner or claimant should not be subject to forfeiture because he neither knew nor should have known that the personal property was being used or had been used for the purposes alleged, or that due to preexisting security interests in such property there is no equity that may be forfeited, the prosecuting attorney may release the property to the co-owner, holder of the security interest, or other claimant.

(D)  In any case, the prosecuting attorney, may, within thirty (30) days after order of forfeiture, pay the balance due to the bona fide lienholder, mortgagee, secured party, or conditional sales vendor and thereby purchase the property for use to enforce the provisions of this section.

(d)  The provisions of this subsection shall not apply to any seized electronic or computer hardware, and the seizing law enforcement agency shall destroy such property upon exhaustion of all legal actions.

(9)  In issuing any order under the provisions of this section, the court shall make a determination that the property, or a portion thereof in the case of real property, was actually used in the violation. The property forfeited shall not be unfairly disproportionate to the property actually used in violation of the provisions of this chapter.

(10) With respect to property ordered forfeited under this section, the prosecuting attorney is authorized to:

(a)  Restore forfeited property to victims of a violation of this section or take any other action to protect the rights of innocent persons that is in the interest of justice and that is not inconsistent with the provisions of this section;

(b)  Compromise claims arising under this section;

(c)  Award compensation to persons providing information resulting in a forfeiture under this section; and

(d)  Take appropriate measures necessary to safeguard and maintain property ordered forfeited under this section pending its disposition.

(11) Except as provided in subsection (8) of this section and notwithstanding any other provision of law, no party claiming an interest in property subject to forfeiture under this section may:

(a)  Intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this section; or

(b)  Commence an action at law or equity against the state of Idaho concerning the validity of his alleged interest in the property subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture under this section.

(12)(a)  The district courts of the state of Idaho shall have jurisdiction over:

(i)   Property for which forfeiture is sought that is within the state at the time the action is filed; and

(ii)  The interest of a co-owner or interest holder in the property if the co-owner or interest holder is subject to personal jurisdiction in this state.

(b)  In order to facilitate the identification and location of property declared forfeited after the entry of an order declaring property forfeited to the state of Idaho, the court may, upon application of the state of Idaho, 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, 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 rule 26 of the Idaho rules of civil procedure.

(13)(a)  On the motion of a party and after notice to any persons who are known to have an interest in the property and an opportunity to be heard, the court may order property that has been seized for forfeiture sold, leased, rented, or operated to satisfy an interest of any interest holder who has timely filed a proper claim or to preserve the interests of any party. The court may order a sale or any other disposition of the property if the property may perish, waste, be foreclosed on, or otherwise be significantly reduced in value or if the expenses of maintaining the property are or will become greater than its fair market value. If the court orders a sale, the court shall designate a third party or state property manager to dispose of the property by public sale or other commercially reasonable method and shall distribute the proceeds in the following order of priority:

(i)   Payment of reasonable expenses incurred in connection with the sale;

(ii)  Satisfaction of exempt interests in the order of their priority; and

(iii) Preservation of the balance, if any, in the actual or constructive custody of the court in an interest-bearing account, subject to further proceedings under this section.

(b)  When property is forfeited under this section, the prosecuting attorney may:

(i)   Retain it for official use by law enforcement; or

(ii)  Sell that which is not required to be destroyed by law and that is not harmful to the public.

(14) The provisions of this section shall be liberally construed to effectuate its purposes.

History:

[18-1507B, added 2023, ch. 180, sec. 1, p. 489.]