BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 443 (Alejo) - Forfeiture
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|Version: August 18, 2015 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: No |Mandate: No |
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|Hearing Date: August 24, 2015 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 443 would permit, until January 1, 2019,
prosecutors in a criminal profiteering matter to file a petition
of forfeiture of assets and property of individuals associated
with transnational criminal organizations up to 60 days prior to
the filing of criminal charges, as specified. This bill would
require the Attorney General to submit a specified report to the
Legislature and Governor by January 1, 2018.
Fiscal
Impact:
One-time minor workload costs likely less than $10,000
(General Fund), to the Department of Justice (DOJ) to gather,
compile, and submit the detailed report.
Potentially significant increase in trial court costs (General
Fund*) to review additional petitions for forfeiture that
otherwise would not have been filed and/or filed in
conjunction with criminal charges, and for motions for the
return of property on grounds of no probable cause.
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Potential future increase in state and local revenues to the
extent the provisions of this bill result in additional asset
forfeiture proceeds that would not have occurred under
existing law.
*Trial Court Trust Fund
Background: Under existing law, property acquired through or proceeds of
criminal profiteering (organized crime) activity is subject to
forfeiture. Under existing state law, a prosecutor is required
to file a petition of forfeiture in conjunction with the
criminal proceeding for the underlying offense and provide
notice to persons who may have an interest in the property that
is alleged to be subject to forfeiture. (Penal Code § 186.4.)
When or after charges and a forfeiture petition are filed in a
criminal profiteering forfeiture case, existing state law
provides that a prosecutor may move the court for orders
preserving the defendant's assets that may be subject to
forfeiture through the following means: 1) an injunction to
restrain all interested parties from transferring, encumbering,
or otherwise disposing of property subject to forfeiture, 2)
appointment of a receiver to manage the property, or 3)
requirement of a surety bond to preserve the interests of
interested parties. (Penal Code § 186.6.)
In contrast to California law, federal law authorizes a
pre-indictment seizure of assets and property with or without
prior notice. A prosecutor may request a temporary restraining
order without notice if he or she can establish probable cause
that, upon conviction, the property will be subject to
forfeiture, and that notice will jeopardize the availability of
the property for future forfeiture. The temporary restraining
order, if granted, expires after 14 days unless extended for
good cause shown or unless the party against whom it is entered
consents to an extension for a longer period. Alternatively, a
federal prosecutor can request a noticed hearing where he or she
must demonstrate that there is a substantial probability that
the government will prevail on the issue of forfeiture, failure
to allow seizure will result in the property being destroyed or
removed from the jurisdiction, and the need to preserve the
seized property outweighs the hardship on the opposing party. An
order so entered is effective for up to 90 days, unless extended
by the court for good cause shown or unless an indictment has
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been filed. (18 U.S.C. § 1963(d).)
The California Attorney General's report, Gangs Beyond Borders:
California and the Fight Against Transnational Organized Crime
(March 2014), included a recommendation for the Legislature to
amend California law to enable prosecutors to temporarily freeze
the assets of transnational criminal organizations and their
gang associates before the filing of an indictment. In summary,
the report stated, "Under current law, transnational criminal
organizations are often given the equivalent of advance warning
that their criminal proceeds and assets are about to be seized
by law enforcement. That is because of a legal void that
prevents the seizure of any assets until the filing of a formal
criminal indictment. As a result, in cases where illicit assets
are discovered before an indictment can be filed, criminals have
the chance to remove their assets before they can be taken. This
loophole must be eliminated by empowering law enforcement to
temporarily freeze an organization's illicit proceeds or
property in advance of a formal prosecution." (Executive
Summary, vi.)
This bill seeks to codify the specified recommendation in the
Attorney General report.
Proposed Law:
This bill would permit, until January 1, 2019, a prosecutor to
seize assets and property of individuals associated with
transnational criminal organizations, as defined, up to 60 days
prior to the filing of criminal charges pursuant to criminal
profiteering forfeiture proceedings. Specifically, this bill:
Authorizes a prosecuting agency to file a petition for
forfeiture in cases of criminal profiteering prior to
commencement of criminal proceedings upon the following
showing:
o The value of the assets to be seized exceeds
$100,000.
o There is a substantial probability that the
prosecuting agency will file a criminal complaint or
seek a grand jury indictment against the defendant.
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o There is a substantial probability that the
prosecuting agency will prevail on the issue of
forfeiture and that failure to enter the order will
result in the property being destroyed, removed from
the jurisdiction of the court, or otherwise made
unavailable for forfeiture.
o The need to preserve the availability of the
property through the entry of the requested order
outweighs the hardship on any party against whom the
order is to be entered.
o There is a substantial probability that the
assets subject to forfeiture represent direct or
indirect proceeds of criminal activity committed for
the benefit of, at the direction of, or in association
with, a transnational criminal organization, as
defined.
Defines, for purposes of criminal profiteering forfeiture, a
"transnational criminal organization" as "any ongoing
organization, group, or association having leaders,
associates, operations, or activities in more than one
country, with one of its primary activities being the
commission of one or more specified criminal
profiteering-related acts.
States that if a forfeiture petition is filed prior to the
filing of the complaint in a criminal action, the petition
and any injunctive order shall be dismissed by operation of
law unless a criminal complaint or grand jury indictment is
filed within 60 days of the grant of the motion.
Provides that if a forfeiture petition is dismissed because
criminal charges were not filed within 60 days, the motion
shall not be re-filed, except upon the filing of a criminal
complaint.
Provides that if a forfeiture petition is filed prior to the
filing of criminal charges, a person claiming an interest in
the property may move for the return of the property on the
grounds that there is not probable cause to believe the
property is forfeitable and is not otherwise subject to court
order of forfeiture or destruction by another specified
statute.
Provides that a motion for return of property may be made
prior to, during, or subsequent to the filing of criminal
charges or a grand jury indictment. If the prosecuting agency
does not establish a substantial probability that the
property is subject to forfeiture, the court shall order the
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seized property released to the person it determines is
entitled to the property.
On or before January 1, 2018, requires the Attorney General
to provide a report to specified committees of the
Legislature and the Governor. The report is to include, but
not be limited to, the following information regarding
petitions filed for forfeiture under the provisions of this
bill:
o The number of cases in which the process
authorized by this bill has been used.
o The value and kinds of property seized in each
case.
o The criminal charges filed, if any, in
conjunction with each forfeiture action.
o The number of cases in which related charges
were not filed.
o The number of cases in which property was
returned because charges were not filed.
o The length of time between dismissal, if any, of
the forfeiture petition and the return of the property,
as specified.
o The number of cases in which property was
returned pursuant to a motion filed, as specified.
Staff
Comments: The DOJ has indicated one-time minor workload to
gather, compile, and submit the mandated legislative report. The
trial courts could incur additional workload to review
additional petitions for forfeiture that otherwise would have
been filed in conjunction with criminal charges or may not have
been filed at all. In the absence of available data to determine
the volume of petitions to review, however, the magnitude of the
additional court workload is unknown at this time. To the extent
the provisions of this measure result in additional asset
forfeiture proceeds would result in increased state and local
revenue of an unknown but potentially significant amount.
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