General Assembly: 76 (1996 Regular GA) - Chapter 1133 - Economic and other penalties for criminal activity


Published: 1996-04-17

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.

301 lAWS OF THE SEVENTY-SIXTH GA., 1996 SESSION CH. 1133

a single point of contact for information on the registries and providing information shar- ing among the registries, including the statutory changes necessary for implementation.

Approved April 17, 1996

CHAPTER 1133 ECONOMIC AND OTHER PENALTIES FOR CRIMINAL ACTNIlY

S.F.482

AN ACT establishing economic and other penalties for certain criminal activity.

Be It Enacted by the General Assembly of the State of Iowa:

DNISION I IOWA FORFEITURE REFORM ACT

Section 1. NEW SECTION. 809A1 DEFINITIONS. As used in this chapter: 1. "Conveyance" includes any vehicle, trailer, vessel, aircraft, or other means of trans-

portation. 2. "Interest holder" means a secured party within the meaning of chapter 554, or the

beneficiary of a security interest or encumbrance pertaining to an interest in property, whose interest is perfected against a good faith purchaser for value. A person who holds property for the benefit of or as an agent or nominee for another person, or who is not in substantial compliance with any statute requiring an interest in property to be recorded or reflected in public records in order to perfect the interest against a good faith purchaser for value, is not an interest holder.

3. "Omission" means the failure to perform an act that is required by law. 4. "Owner" means a person, other than an interest holder, who has an interest in prop-

erty. A person who holds property for the benefit of or for an agent or nominee for another person, or who is not in substantial compliance with any statute requiring an interest in property to be recorded or reflected in public records in order to perfect the interest against a good faith purchaser for value, is not an owner.

5. "Proceeds" means property acquired directly or indirectly from, produced through, realized through, or caused by an act or omission and includes any property of any kind without reduction for expenses incurred for acquisition, maintenance, production, or any other purpose.

6. "Property" means anything of value, and includes any interest in property, including any benefit, privilege, claim, or right with respect to anything of value, whether real or personal, tangible, or intangible.

7. "Prosecuting attorney" means an attorney who is authorized by law to appear on the behalf of the state in a criminal case, and includes the attorney general, an assistant attor- ney general, the county attorney, an assistant county attorney, or a special or substitute prosecutor whose appearance is approved by a court having jurisdiction to try a defendant for the offense with which the defendant is charged.

8. "Regulated interest holder" means an interest holder that is a business authorized to do business in this state and is under the jurisdiction of any state or federal agency regulat- ing banking, insurance, real estate, or securities.

9. "Seizing agency" means a department or agency of this state or its political subdivi- sions that regularly employs law enforcement officers, and that employs the law enforce- ment officer who seizes property for forfeiture, or such other agency as the department or

CH. 1133 lAWS OF THE SEVENTY-SIXTH GA., 1996 SESSION 302

agency may designate by its chief executive officer or the officer's designee. 10. "Seizure for forfeiture" means seizure of property by a law enforcement officer,

including a constructive seizure, accompanied by an assertion by the seizing agency or by a prosecuting attorney that the property is seized for forfeiture, in accordance with section 809A.6.

Sec. 2. NEW SECTION. 809A.2 JURISDICTION AND VENUE. 1. The district court has jurisdiction under this chapter over: a. All interests in property within this state at the time a forfeiture action is filed. b. The interest in the property of an owner or interest holder who is subject to personal

jurisdiction in this state. 2. In addition to the venue provided for under chapter 803 or any other provision of law,

a proceeding for forfeiture under this chapter may be maintained in the county in which any part of the property is found or in the county in which a civil or criminal action could be maintained against an owner or interest holder for the conduct alleged to give rise to the forfeiture.

Sec. 3. NEW SECTION. 809A.3 CONDUCT GIVING RISE TO FORFEITURE. The following conduct may give rise to forfeiture: 1. An act or omission which is a public offense and which is a serious or aggravated

misdemeanor or felony. 2. An act or omission occurring outside of this state, that would be punishable by con-

finement of one year or more in the place of occurrence and would be a serious or aggra- vated misdemeanor or felony if the act or omission occurred in this state.

3. An act or omission committed in furtherance of any act or omission described in subsection 1, which is a serious or aggravated misdemeanor or felony including any in- choate or preparatory offense.

4. A violation of section 32IJ.4B, subsection 12. 5. Notwithstanding subsections 1 through 4, violations of chapter 321 or 32IJ, except

section 32IJAB, subsection 12, shall not be considered conduct giving rise to forfeiture.

Sec. 4. NEW SECTION. 809A.4 PROPERlY SUBJECT TO FORFEITURE. The following are subject to forfeiture: 1. All controlled substances, raw materials, controlled substance analogs, counterfeit

controlled substances, imitation controlled substances, or precursor substances, that have been manufactured, distributed, dispensed, possessed, or acquired in violation of the laws of this state.

2. a. All property, except as provided in paragraph "b", including the whole of any lot or tract of land and any appurtenances or improvements to real property, including home- steads that are otherwise exempt from judicial sale pursuant to section 561.16, that is either:

(1) Furnished or intended to be furnished by a person in an exchange that constitutes conduct giving rise to forfeiture.

(2) Used or intended to be used in any manner or part to facilitate conduct giving rise to forfeiture.

b. If the only conduct giving rise to forfeiture is a violation of section 124.401, subsec- tion 3, real property is not subject to forfeiture and other property subject to forfeiture pursuant to paragraph "a", subparagraph (2), may be forfeited only pursuant to section 809A.14.

3. All proceeds of any conduct giving rise to forfeiture. 4. All weapons possessed, used, or available for use in any manner to facilitate conduct

giving rise to forfeiture. 5. Any interest or security in, claim against, or property or contractual right of any kind

affording a source of control over any enterprise that a person has established, operated, controlled, or conducted through, or participated in the conduct, giving rise to forfeiture.

303 lAWS OF THE SEVENlY-SIXTH GA, 1996 SESSION CH. 1133

6. a. Any property of a person up to the value of property of either of the following: (1) Described in subsection 2 that the person owned or possessed for the purpose of a

use described in subsection 2. (2) Described in subsection 3 and is proceeds of conduct engaged in by the person or

for which the person is criminally responsible. b. Property described in this subsection may be seized for forfeiture pursuant to a con-

structive seizure or an actual seizure pursuant to section 809A.6. Actual seizure may only be done pursuant to a seizure warrant issued on a showing, in addition to the showing of probable cause for the forfeiture of the subject property, that the subject property is not available for seizure for reasons described in section 809A.15, subsection 1, and that the value of the property to be seized is not greater than the total value of the subject property, or pursuant to a constructive seizure. If property of a defendant up to the total value of all interests in the subject property is not seized prior to final judgment in an action under this section, the remaining balance shall be ordered forfeited as a personal judgment against the defendant.

7. As used in this section, "facilitate" means to have a substantial connection between the property and the conduct giving rise to forfeiture.

Sec. 5. NEW SECTION. 809A.5 EXEMPTIONS. 1. All property, including all interests in property, described in section 809A.4 is sub-

ject to forfeiture, except that property is exempt from forfeiture if either of the following occurs:

a. The owner or interest holder acquired the property before or during the conduct giving rise to its forfeiture, and did not know and could not reasonably have known of the conduct or that the conduct was likely to occur, or acted reasonably to prevent the conduct giving rise to forfeiture.

b. The owner or interest holder acquired the property, including acquisition of pro- ceeds of conduct giving rise to forfeiture, after the conduct giving rise to its forfeiture and acquired the property in good faith, for value and did not knowingly take part in an illegal transaction.

2. Notwithstanding subsection 1, property is not exempt from forfeiture, even though the owner or interest holder lacked knowledge or reason to know that the conduct giving rise to its forfeiture had occurred or was likely to occur, if any of the following exists:

a. The person whose conduct gave rise to its forfeiture had the authority to convey the property of the person claiming the exemption to a good faith purchaser for value at the time of the conduct.

b. The owner or interest holder is criminally responsible for the conduct giving rise to its forfeiture, whether or not the owner or interest holder is prosecuted or convicted.

c. The owner or interest holder acquired the property with notice of its actual or con- structive seizure for forfeiture under section 809A.6, or with reason to believe that it was subject to forfeiture.

Sec. 6. NEW SECTION. 809A.6 SEIZURE OF PROPERTI. 1. A peace officer may seize property for forfeiture upon process issued by any district

judge, district associate judge, or magistrate. The court may issue a seizure warrant on an affidavit under oath demonstrating that probable cause exists for its forfeiture or that the property has been the subject of a previous final judgment of forfeiture in the courts of any state or of the United States. The court may order that the property be seized on such terms and conditions as are reasonable in the discretion of the court. The order may be made on or in connection with a search warrant.

2. Peace officers may seize property for forfeiture without process on probable cause to believe that the property is subject to forfeiture under this chapter and if exigent circum- stances exist or if the property has already been seized for a purpose other than forfeiture.

3. The seizure of inhabited residential real property for forfeiture which is accompanied

CH. 1133 lAWS OF THE SEVENlY-SIXTH GA., 1996 SESSION 304

by removing or excluding its residents shall be done pursuant to a preseizure adversarial judicial determination of probable cause, except that this determination may be made ex parte if the prosecuting attorney has demonstrated exigent circumstances.

4. Property may be seized constructively by: a. Posting notice of seizure for forfeiture or notice of pending forfeiture on the property. b. Giving notice pursuant to section 809A8. c. Filing or recording in the public records relating to that type of property notice of

seizure for forfeiture, notice of pending forfeiture, a forfeiture lien, or a notice of lis pendens. Filings or recordings made pursuant to this subsection are not subject to a filing fee or

other charge. 5. The seizing agency, or the prosecuting attorney, shall make a reasonable effort to

provide notice of the seizure to the person from whose possession or control the property was seized and to any person who has a security interest in the property. If no person is in possession or control of the property, the seizing agency may attach the notice to the property or to the place of its seizure or may make a reasonable effort to deliver it to the owner of the property. The notice shall contain a general description of the property seized, the date and place of seizure, the name of the seizing agency, and the address and tele- phone number of the seizing officer or other person or agency from whom information about the seizure may be obtained.

6. A person who acts in good faith and in a reasonable manner pursuant to this section to comply with an order of the court or a request of a law enforcement officer is not liable to any person for acts done in reasonable compliance with the order or request. In addi- tion, an inference of guilt shall not be drawn from the fact that a person refuses a law enforcement officer's request to deliver the property.

7. A possessory lien of a person from whose possession property is seized is not af- fected by the seizure.

Sec. 7. NEW SECTION. 809A7 PROPERlY MANAGEMENT AND PRESERVATION. 1. Property seized for forfeiture under this chapter is not subject to alienation, convey-

ance, sequestration, attachment, or an application for return of seized property under chap- ter 809.

2. The seizing agency or the prosecuting attorney may authorize the release of the seizure for forfeiture on the property if forfeiture or retention of actual custody is unneces- sary.

3. The prosecuting attorney may discontinue forfeiture proceedings and transfer the action to another state or federal agency or prosecuting attorney who has initiated forfei- ture proceedings.

4. Property seized for forfeiture under this chapter is deemed to be in the custody of the district court subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings and to the acts of the seizing agency or the prosecuting attorney pursuant to this chapter.

5. An owner of property seized for forfeiture under this chapter may obtain release of the property by posting with the court a surety bond or cash in an amount determined by the court to be reasonable in light of the fair market value of the property. Property shall not be released if any of the following apply:

a. The owner fails to post the required bond. b. The property is retained as contraband or as evidence. c. The property is particularly altered or designed for use in conduct giving rise to

forfeiture. If a surety bond or cash is posted and the property is forfeited, the court shall forfeit the

surety bond or cash in lieu of the property. 6. If property is seized for forfeiture under this chapter, the prosecuting attorney, sub-

ject to any need to retain the property as evidence, may do any of the following: a. Remove the property to an appropriate place designated by the district court.

305 lAWS OF THE SEVENTY-SIXTH GA., 1996 SESSION CH. 1133

b. Place the property under constructive seizure. c. Remove the property to a storage area for safekeeping or, if the property is a nego-

tiable instrument or money, deposit it in an interest-bearing account. d. Provide for another agency or custodian, including an owner, secured party, mort-

gagee, or lienholder, to take custody of the property and service, maintain, and operate it as reasonably necessary to maintain its value, in any appropriate location within the juris- diction of the court.

e. Require the seizing agency to take custody of the property and remove it to an appro- priate location for disposition in accordance with law.

7. As soon as practicable after seizure for forfeiture, the seizing agency shall conduct a written inventory and estimate the value of the property seized.

S. The court may order property which has been seized for forfeiture sold, leased, rented, or operated to satisfy a specified interest of any interest holder, or to preserve the interests of any party on motion of such party. The court may enter orders under this subsection after notice to persons known to have an interest in the property, and an oppor- tunity for a hearing, if either of the following exist:

a. The interest holder has timely filed a proper claim and is a regulated interest holder. b. The interest holder has an interest which the prosecuting attorney has stipulated is

exempt from forfeiture. 9. A sale may be ordered under subsection S if the property is liable to perish, to waste,

or to be foreclosed upon or significantly reduced in value, or if the expenses of maintain- ing the property are disproportionate to its value. A third party designated by the court shall dispose of the property by commercially reasonable public sale and distribute the proceeds in the following order of priority:

a. For the payment of reasonable expenses incurred in connection with the sale or disposal.

b. For the satisfaction of exempt interests in the order of their priority. c. Any balance of the proceeds shall be preserved in the actual or constructive custody

of the court, in an interest-bearing account, subject to the proceedings under this chapter.

Sec. S. NEW SECfION. S09AS COMMENCEMENT OF FORFEITURE PROCEED- INGS - PROPERlY RELEASE REQUIREMENTS.

1. Forfeiture proceedings shall be commenced as follows: a. Property seized for forfeiture shall be released on the request of an owner or interest

holder to the owner's or interest holder's custody, as custodian for the court, pending further proceedings pursuant to this chapter if the prosecuting attorney fails to do either of the following:

(1) File a notice of pending forfeiture against the property within ninety days after seizure.

(2) File a judicial forfeiture proceeding within ninety days after notice of pending for- feiture of property upon which a proper claim has been timely filed pursuant to section S09A.II.

b. Within thirty days after the effective date of the notice of pending forfeiture, an owner of or interest holder in the property may elect to file with the prosecuting attorney any of the following:

(1) A claim pursuant to section S09AII. (2) A petition for recognition of exemption pursuant to section S09A 11, except that no

petition may be filed after the state commences a court action. (3) A request for an extension of time in which to file a claim or petition for recognition

of exemption. c. An extension of time for the filing of a claim shall only be granted for good cause

shown for mistake, inadvertence, surprise, excusable neglect, or unavoidable casualty. d. If a petition is timely filed, the prosecuting attorney may delay filing a judicial forfei-

ture proceeding for one hundred eighty days after the notice of pending forfeiture, and the following procedures shall apply:

CH. 1133 LAWS OF THE SEVEN1Y-SIXTH GA, 1996 SESSION 306

(1) The prosecuting attorney shall provide the seizing agency and the petitioning party with a written recognition of exemption and statement of nonexempt interests relating to any or all interests in the property in response to each petitioning party as follows:

(a) Within sixty days after the effective date of the notice of pending forfeiture if the petitioner is a regulated interest holder. The recognition of exemption shall recognize the interest of the petitioner to the extent of documented outstanding principal plus interest at the contract rate until paid.

(b) Within one hundred twenty days after the effective date of the notice of pending forfeiture for all other petitioners.

(2) An owner or interest holder in any property declared nonexempt may file a claim pursuant to section 809A 11 within thirty days after the effective date of the notice of the recognition of exemption and statement of nonexempt interest.

(3) If a petitioning party does not timely file a proper claim under paragraph "b", the recognition of exemption and statement of nonexempt interests becomes final, and the prosecuting attorney shall proceed as provided in sections 809A 16 and 809A 17.

(4) The prosecuting attorney may elect to proceed under this section for judicial forfei- ture at any time.

(5) If a judicial forfeiture proceeding follows the application of procedures in this para- graph, the following apply:

(a) A duplicate or repetitive notice is not required. If a proper claim has been timely filed pursuant to subparagraph (2), the claim shall be determined in a judicial forfeiture proceeding after the commencement of such a proceeding under sections 809A 13, 809A 14, and 809AI5.

(b) The proposed recognition of exemption and statement of nonexempt interest re- sponsive to all petitioning parties who subsequently filed claims are void and are regarded as rejected offers to compromise.

e. If a proper petition for recognition of exemption or proper claim is not timely filed, the prosecuting attorney shall proceed as provided in sections 809A 16 and 809A 17.

2. a. Notice of pending forfeiture, service of an in rem complaint or notice of a recog- nition of exemption and statement of nonexempt interests required under the chapter, shall be given in accordance with one of the following:

(1) If the owner's or interest holder's name and current address are known, by either personal service by any person qualified to serve process or by any law enforcement of- ficer or by mailing a copy of the notice by restricted certified mail to that address.

(2) If the owner's or interest holder's name and address are required by law to be on record with the county recorder, secretary of state, the motor vehicle division of the state department of transportation, or another state or federal agency to perfect an interest in the property, and the owner's or interest holder'S current address is not known, by mailing a copy of the notice by restricted certified mail to any address of record with any of the described agencies.

(3) If the owner's or interest holder's address is not known and is not on record as provided in subsection 2, paragraph "a", subparagraph (2), or the owner or interest holder's interest is not known, by publication in one issue of a newspaper of general circulation in the county in which the seizure occurred.

b. Notice is effective upon the earlier of personal service, publication, or the mailing of a written notice, except that notice of pending forfeiture of real property is not effective until it is recorded. Notice of pending forfeiture shall include a description of the property, the date and place of seizure, the conduct giving rise to forfeiture or the violation of law alleged, and a summary of procedures and procedural rights applicable to the forfeiture action.

Sec. 9. NEW SECTION. 809A9 UENS. 1. The prosecuting attorney may file, without a filing fee, a lien for the forfeiture of

property if any of the following apply:

307 lAWS OF THE SEVENlY-SIXTH GA., 1996 SESSION CH. 1133

a. Upon the initiation of any civil or criminal proceeding relating to conduct giving rise to forfeiture under this chapter.

b. Upon seizure for forfeiture. c. In connection with a proceeding or seizure for forfeiture in any other state under a

state or federal statute substantially similar to the relevant provisions of this chapter. The filing constitutes notice to any person claiming an interest in the seized property or in property owned by the named person.

2. The lienor, as soon as practical, but not later than ten days, after filing a lien, shall furnish to any person named in the lien a notice of the filing of the lien. Failure to furnish notice under this subsection shall not invalidate or otherwise affect the lien.

3. The lien notice shall set forth all of the following: a. The name of the person and, in the discretion of the lienor, any aliases, or the name

of any corporation, partnership, trust, or other entity, including nominees, that are owned entirely or in part, or controlled by the person.

b. The description of the seized property or the criminal or civil proceeding that has been brought relating to conduct giving rise to forfeiture under the chapter.

c. The amount claimed by the lienor. d. The name of the district court where the proceeding or action has been brought. e. The case number of the proceeding or action if known at the time of the filing of the

lien. 4. The notice of forfeiture lien shall be filed in accordance with the provisions of the

laws of this state relating to the type of property that is subject to the lien. The validity and priority of the forfeiture lien shall be determined in accordance with applicable law per- taining to liens.

5. A lien filed pursuant to this section applies to the described property or to one named person, any aliases, fictitious names, or other names, including the names of any corpora- tion, partnership, trust, or other entity, owned entirely or in part, or controlled by the named person, and any interest in real property owned or controlled by the named person. A separate forfeiture lien shall be filed for each named person.

6. The lien notice creates, upon filing, a lien in favor of the lienor as it relates to the property or the named person or related entities. The lien secures the amount of potential liability for civil judgment, and, if applicable, the fair market value of property relating to all proceedings under this chapter enforcing the lien.

7. The lienor may amend or release, in whole or in part, a lien filed under this section at any time by filing, without a filing fee, an amended lien.

S. Upon entry of judgment in its favor, the state may proceed to execute on the lien as provided by law.

Sec. 10. NEW SECTION. S09AI0 TRUSTEES. 1. Except as provided in subsection 2, a trustee, constructive or otherwise, who has

notice that a notice of forfeiture lien, or a notice of pending forfeiture, or a civil forfeiture proceeding has been filed against the property or against any person or entity for whom the person holds title or appears as record owner, shall furnish within fifteen days of such notice, to the seizing agency, or the prosecuting attorney all of the following:

a. The name and address of each person or entity for whom the property is held. b. The description of all other property whose legal title is held for the benefit of the

named person. c. A copy of the applicable trust agreement or other instrument, if any, under which the

trustee or other person holds legal title or appears as record owner of the property. 2. Subsection I is inapplicable if any of the following applies: a. A trustee is acting under a recorded subdivision trust agreement or a recorded deed

of trust. b. All of the information is of record in the public records giving notice of liens on that

type of property.

CH. 1133 lAWS OF THE SEVEN1Y-SIXTH GA, 1996 SESSION 30S

3. A trustee with notice who knowingly fails to comply with the provisions of this sec- tion commits a class "D" felony, and shall be fined not less than ten thousand dollars per day for each day of noncompliance.

4. A trustee with notice who fails to comply with subsection 1 is subject to a civil pen- alty of three hundred dollars for each day of noncompliance. The court shall enter judg- ment ordering payment of three hundred dollars for each day of noncompliance from the effective date of the notice until the required information is furnished or the state executes its judgment lien under this section.

5. To the extent permitted by the Constitution of the United States and the Constitution of the State of Iowa, the duty to comply with subsection 1 shall not be excused by any privilege or provision of law of this state or any other state or country which authorizes or directs that testimony or records required to be furnished pursuant to subsection 1 are privileged or confidential or otherwise may not be disclosed.

6. A trustee who furnishes information pursuant to subsection 1 is immune from civil liability for the release of information.

7. An employee of the seizing agency or the prosecuting attorney who releases the information obtained pursuant to subsection 1, except in the proper discharge of official duties, commits a serious misdemeanor.

S. If any information furnished pursuant to subsection 1 is offered in evidence, the court may seal that portion of the record or may order that the information be disclosed in a designated way.

9. A judgment or an order of payment entered pursuant to this section becomes ajudg- ment lien against the property alleged to be subject to forleiture.

Sec. 11. NEW SECTION. S09All ClAIMS - PETITIONS FOR RECOGNITION OF EXEMPTION.

1. Only an owner of or interest holder in property seized for forleiture may file a claim, and shall do so in the manner provided in this section. The claim shall be mailed to the seizing agency and to the prosecuting attorney by restricted certified mail or other service which indicates the date on which the claim was received by the seizing agency and pros- ecuting attorney within thirty days after the effective date of notice of pending forleiture. An extension of time for the filing of a claim shall only be granted for good cause shown for mistake, inadvertence, surprise, excusable neglect, or unavoidable casualty.

2. The prosecuting attorney shall make an opportunity to file a petition for recognition of exemption available by so indicating in the notice of pending forleiture described in section S09AS, subsection 2.

3. The claim or petition and all supporting documents shall be in affidavit form, signed by the claimant under oath, and sworn to by the affiant before one who has authority to administer the oath, under penalty of peIjury and shall set forth all of the following:

a. The caption of the proceedings and identifying number, if any, as set forth on the notice of pending forleiture or complaint, the name of the claimant or petitioner, and the name of the prosecuting attorney who authorized the notice of pending forleiture or com- plaint.

b. The address where the claimant or petitioner will accept mail. c. The nature and extent of the claimant's or petitioner's interest in the property. d. The date, the identity of the transferor, and the circumstances of the claimant's or

petitioner's acquisition of the interest in the property. e. The specific provision of law relied on in asserting that the property is not subject to

forleiture. f. All essential facts supporting each assertion. g. The specific relief sought.

Sec. 12. NEW SECTION. S09AI2 JUDICIAL PROCEEDINGS GENERALLY. I. A judicial forfeiture proceeding under this chapter is subject to the provisions of this

section.

309 lAWS OF THE SEVENTY-SIXTH GA., 1996 SESSION CH. 1133

2. The court, before or after the filing of a notice of pending forfeiture or complaint and on application of the prosecuting attorney, may do any of the following:

a. Enter a restraining order or injunction. b. Require the execution of satisfactory performance bonds. c. Create receiverships. d. Appoint conservators, custodians, appraisers, accountants, or trustees. e. Take any other action to seize, secure, maintain, or preserve the availability of prop-

erty subject to forfeiture under this chapter, including a writ of attachment or a warrant for its seizure.

3. The court, after five days' notice to the prosecuting attorney, may issue an order to show cause to the seizing agency, for a hearing on the sole issue of whether probable cause for forfeiture of the property then exists if all of the following exist:

a. Property is seized for forfeiture or a forfeiture lien is filed without a previous judicial determination of probable cause, order of forfeiture, or a hearing under section S09A14, subsection 4.

b. An owner of or interest holder in the property files an application for a hearing within ten days after notice of its seizure for forfeiture or lien, or actual knowledge of its seizure, whichever is earlier.

c. The owner of or interest holder in the property complies with the requirements for claims or petitions in section S09A 11.

The hearing shall be held within thirty days of the order to show cause unless continued for good cause on motion of either party.

4. If the court finds in a hearing under subsection 3 that no probable cause exists for forfeiture of the property, or if the state elects not to contest the issue, the property shall be released to the custody of the applicant, as custodian for the court, or from the lien pend- ing the outcome of a judicial proceeding pursuant to this chapter. If the court finds that probable cause for the forfeiture of the property exists, the court shall not order the prop- erty released.

5. All applications filed within the ten-day period prescribed by subsection 3 shall be consolidated for a single hearing relating to each applicant's interest in the property seized for forfeiture.

6. A defendant convicted in any criminal proceeding is precluded from later denying the essential allegations of the criminal offense of which the defendant was convicted in any proceeding pursuant to this section. For the purposes of this section, a conviction results from a verdict or a plea of guilty. A defendant whose conviction is overturned on appeal may file a motion to correct, vacate, or modify a judgment of forfeiture under this subsection.

7. In any proceeding under this chapter, if a claim is based on an exemption provided for in this chapter, the burden of proving the existence of the exemption is on the claim- ant. However, once the claimant comes forward with some evidence supporting the exist- ence of the exemption, the state must provide some evidence to negate the assertion of the exemption. The state's evidence must be substantial, though not necessarily rising to the level of a preponderance of the evidence, and more than a simple assertion of the claimant's interest in the property. The agency or political subdivision bringing the forfeiture action shall pay the reasonable attorneys fees and costs, as determined by the court, incurred by a claimant who prevails on a claim for exemption in a proceeding under this chapter.

S. In hearings and determinations pursuant to this section, the court may receive and consider, in making any determination of probable cause, all evidence admissible in deter- mining probable cause at a preliminary hearing or by a judge pursuant to chapter SOS together with inferences therefrom.

9. The fact that money or a negotiable instrument was found in close proximity to ~y contraband or an instrumentality of conduct giving rise to forfeiture shall give rise to the presumption that the money or negotiable instrument was the proceeds of conduct giving rise to forfeiture or was used or intended to be used to facilitate the conduct.

CH. 1133 lAWS OF THE SEVEN1Y-SIXTH GA, 1996 SESSION 310

10. Subject to the exemptions contained in section 809A5, a presumption arises that any property of a person is subject to forfeiture under this chapter if the state establishes any of the following:

a. The person has engaged in conduct giving rise to forfeiture. b. The property was acquired by the person during that period of the conduct giving

rise to forfeiture or within a reasonable time after that period. c. No likely source for acquisition of the property exists other than the conduct giving

rise to the forfeiture. 11. A finding that property is the proceeds of conduct giving rise to forfeiture does not

require proof that the property is the proceeds of any particular exchange or transaction. 12. A person who acquires property subject to forfeiture is a constructive trustee of the

property, and its fruits, for the benefit of the state, to the extent that the person's interest is not exempt from forfeiture. If property subject to forfeiture has been commingled with other property, the court shall order the forfeiture of the commingled property, and of any fruits of the commingled property, to the extent of the property subject to forfeiture, un- less an owner or interest holder proves that specified property does not contain property subject to forfeiture, or that the person's interest in specified property is exempt from forfeiture.

13. Title to all property declared forfeited under this chapter vests in the state on the commission of the conduct giving rise to forfeiture together with the proceeds of the prop- erty after that time. Any such property or proceeds subsequently transferred to any person remain subject to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and establishes in a hearing under the provisions of the chapter that the transferee's interest is exempt under section 809A5.

14. An acquittal or dismissal in a criminal proceeding shall not preclude civil proceed- ings under this chapter.

15. For good cause shown, on motion by either party, the court may stay discovery in civil forfeiture proceedings during a criminal trial for a related criminal indictment or information alleging the same conduct, after making provision to prevent loss to any party resulting from the stay. Such a stay shall not be available pending an appeal.

16. Except as otherwise provided by this chapter, all proceedings hereunder shall be governed by the rules of civil procedure.

17. An action brought pursuant to this chapter shall be consolidated with any other action or proceeding brought pursuant to this chapter or chapter 626 or 654 relating to the same property on motion of the prosecuting attorney, and may be consolidated on motion of an owner or interest holder.

Sec. 13. NEW SECTION. 809A13 IN REM PROCEEDINGS. 1. A judicial in rem forfeiture proceeding may be brought by the prosecuting attorney

in addition to, or in lieu of, civil in personam forfeiture procedures, and is also subject to the provisions of this section. If a forfeiture is authorized by this chapter, it shall be or- dered by the court in the in rem action.

2. An action in rem may be brought by the prosecuting attorney pursuant to a notice of pending forfeiture or verified complaint for forfeiture. The state may serve the complaint in the manner provided in section 809A8, subsection 2, or as provided by the rules of civil procedure.

3. Only an owner of or an interest holder in the property who has timely filed a proper claim pursuant to section 809All may file an answer in an action in rem. For the purposes of this section, an owner of or interest holder in property who has filed a claim and answer shall be referred to as a claimant.

4. The answer shall be signed by the owner or interest holder under penalty of peIjury and shall be in accordance with R.C.P. 72 and shall also set forth all of the following:

a. The caption of the proceedings and identifying number, if any, as set forth on the notice of pending forfeiture or complaint and the name of the claimant.

311 IAWS OF THE SEVENTY-SIXTH GA., 1996 SESSION CH. 1133

b. The address where the claimant will accept mail. c. The nature and extent of the claimant's interest in the property. d. The date, the identity of the transferor, and the circumstances of the claimant's ac-

quisition of the interest in the property. e. The specific provision of this chapter relied on in asserting that it is not subject to

forfeiture. f. All essential facts supporting each assertion. g. The specific relief sought. 5. The answer shall be filed within twenty days after service on the claimant of the civil

in rem complaint. 6. The rules of civil procedure shall apply to discovery by the state and any claimant

who has timely answered the complaint. 7. The forfeiture hearing shall be held without a jury and within sixty days after service

of the complaint unless continued for good cause. The prosecuting attorney shall have the initial burden of proving the property is subject to forfeiture by a preponderance of the evidence. If the state so proves the property is subject to forfeiture, the claimant has the burden of proving that the claimant has an interest in the property which is exempt from forfeiture under this chapter by a preponderance of the evidence.

S. The court shall order the interest in the property returned or conveyed to the claim- ant if the prosecuting attorney fails to meet the state's burden or the claimant establishes by a preponderance of the evidence that the claimant has an interest that is exempt from forfeiture. The court shall order all other property forfeited to the state and conduct fur- ther proceedings pursuant to sections S09A 16 and S09A 17.

Sec. 14. NEW SECTION. S09A14 IN PERSONAM PROCEEDINGS. 1. A judicial in personam forfeiture proceeding brought by a prosecuting attorney pur-

suant to an in personam civil action alleging conduct giving rise to forfeiture is subject to the provisions of this section. If a forfeiture is authorized by this chapter, it shall be or- dered by the court in the in personam action. This action shall be in addition to or in lieu of in rem forfeiture procedures.

2. The court, on application of the prosecuting attorney, may enter any order autho- rized by section S09A12, or any other appropriate order to protect the state's interest in property forfeited or subject to forfeiture.

3. The court may issue a temporary restraining order on application of the prosecuting attorney, if the state demonstrates both of the following:

a. Probable cause exists to believe that in the event of a final judgment, the property involved would be subject to forfeiture under this chapter.

b. Provision of notice would jeopardize the availability of the property for forfeiture. 4. Notice of the issuance of a temporary restraining order and an opportunity for a

hearing shall be given to persons known to have an interest in the property. A hearing shall be held at the earliest possible date in accordance with R.C.P. 326, and shall be limited to the following issues:

a. Whether a probability exists that the state will prevail on the issue of forfeiture. b. Whether the failure to enter the order will result in the property being destroyed,

conveyed, encumbered, removed from the jurisdiction of the court, concealed, or other- wise made unavailable for forfeiture.

c. Whether the need to preserve the availability of property outweighs the hardship on any owner or interest holder against whom the order is to be entered.

5. On a determination that a person committed conduct giving rise to forfeiture under this chapter, the court shall do both of the following:

a. Enter a judgment of forfeiture of the property found to be subject to forfeiture de- scribed in the complaint.

b. Authorize the prosecuting attorney or designee or any law enforcement officer to seize all property ordered forfeited which was not previously seized or is not under seizure.

CH. 1133 lAWS OF THE SEVENTY-SIXTH GA, 1996 SESSION 312

6. Except as provided in section 809A12, a person claiming an interest in property subject to forfeiture under this chapter shall not intervene in a trial or appeal of a criminal action or in an in personam civil action involving the forfeiture of the property.

7. Following the entry of an in personam forfeiture order, the prosecuting attorney may proceed with an in rem action to resolve the remaining interests in the property. The following procedures shall apply:

a. The prosecuting attorney shall give notice of pending forfeiture, in the manner pro- vided in section 809A8, to all owners and interest holders who have not previously been given notice.

b. An owner of or interest holder in property that has been ordered forfeited and whose claim is not precluded may file a claim as described in section 809A 11, within thirty days after initial notice of pending forfeiture or after notice under paragraph "a", whichever is earlier.

c. If the state does not recognize the claimed exemption, the prosecuting attorney shall file a complaint and the court shall hold an in rem forfeiture hearing as provided for in section 809A13.

d. In accordance with the findings made 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 has an interest in the property which is exempt under the pro- visions of section 809A5.

Sec. 15. NEW SECTION. 809A15 SUBSTITUTED ASSETS - SUPPLEMENTAL REMEDIES.

1. The court shall order the forfeiture of any other property of a person, including a claimant, up to the value of that person's property found by the court to be subject to forfeiture under this chapter, if any of the following applies to the person's forfeitable property:

a. The forfeitable property cannot be located. b. The forfeitable property has been transferred or conveyed to, sold to, or deposited

with a third party. c. The forfeitable property is beyond the jurisdiction of the court. d. The forfeitable property has been substantially diminished in value while not in the

actual physical custody of the court, the seizing agency, the prosecuting attorney, or their designee.

e. The forfeitable property has been commingled with other property that cannot be divided without difficulty.

f. The forfeitable property is subject to any interest of another person which is exempt from forfeiture under this chapter.

2. a. The prosecuting attorney may institute a civil action in district court against any person with notice or actual knowledge who destroys, conveys, encumbers, removes from the jurisdiction of the court, conceals, or otherwise renders unavailable property alleged to be subject to forfeiture if either of the following apply:

(1) A forfeiture lien or notice of pending forfeiture has been filed and notice given pursuant to section 809A8.

(2) A complaint pursuant to section 809A 13 alleging conduct giving rise to forfeiture has been filed and notice given pursuant to section 809A8.

b. The court shall enter a final judgment in an amount equal to the value of the lien not to exceed the fair market value of the property, or if a lien does not exist, in an amount equal to the fair market value of the property, together with reasonable investigative ex- penses and attorney's fees.

c. If a civil proceeding under this chapter is pending in court, the action shall be heard by that court.

313 lAWS OF THE SEVENTY-SIXTH GA, 1996 SESSION CH. 1133

Sec. 16. NEW SECTION. 809A16 DISPOSITION OF PROPERlY. 1. If notice of pending forfeiture is properly served in an action in rem or in personam

in which personal property, having an estimated value of five thousand dollars or less, as established by affidavit provided by the prosecuting attorney, is seized, and no claim op- posing forfeiture is filed within thirty days of service of such notice, the prosecuting attor- ney shall prepare a written declaration of forfeiture of the subject property to the state and allocate the property according to the provisions of section 809A 1 7.

2. Within one hundred eighty days of the date of a declaration of forfeiture, an owner or interest holder in property declared forfeited pursuant to subsection 1, may petition the court to have the declaration of forfeiture set aside, after making a prima facie showing that the state failed to serve proper notice as provided by section 809A13. Upon such a showing the court shall allow the state to demonstrate by a preponderance of the evidence that notice was properly served. If the state fails to meet its burden of proof, the court may order the declaration of forfeiture set aside. The state may proceed with judicial proceed- ings pursuant to this chapter.

3. Except as provided in subsection 1, if a proper claim is not timely filed in an action in rem, or if a proper answer is not timely filed in response to a complaint, the prosecuting attorney may apply for an order of forfeiture and an allocation of forfeited property pursu- ant to section 809A 17. Under such circumstance and upon a determination by the court that the state's written application established the court's jurisdiction, the giving of proper notice, and facts sufficient to show probable cause for forfeiture, the court shall order the property forfeited to the state.

4. Mer final disposition of all claims timely filed in an action in rem, or after final judgment and disposition of all claims timely filed in an action in personam, the court shall enter an order that the state has clear title to the forfeited property interest. Title to the forfeited property interest and its proceeds shall be deemed to have vested in the state on the commission of the conduct giving rise to the forfeiture under this chapter.

5. The court, on application of the prosecuting attorney, may release or convey for- feited personal property to a regulated interest holder or interest holder if any of the fol- lowing applies:

a. The prosecuting attorney, in the attorney's discretion, has recognized in writing that the regulated interest holder or interest holder has an interest in the property and informs the court that the property interest is exempt from forfeiture.

b. The regulated interest holder'S or interest holder's interest was acquired in the regu- lar course of business as a regulated interest holder or interest holder.

c. The amount of the regulated interest holder's or interest holder's encumbrance is readily determinable and has been reasonably established by proof made available by the prosecuting attorney to the court.

d. The encumbrance held by the regulated interest holder or interest holder seeking possession is the only interest exempted from forfeiture and the order forfeiting the prop- erty to the state transferred all of the rights of the owner prior to forfeiture, including rights to redemption, to the state.

6. Mer the court's release or conveyance under subsection 5, the regulated interest holder or interest holder shall dispose of the property by a commercially reasonable pub- lic sale. Within ten days of disposition the regulated interest holder or interest holder shall tender to the state the amount received at disposition less the amount of the regulated interest holder's or interest holder's encumbrance and reasonable expense incurred by the regulated interest holder or interest holder in connection with the sale or disposal. For the purposes of this section, "commercially reasonable" means a sale or disposal that would be commercially reasonable under chapter 554, article 7.

7. On order of the court or declaration of forfeiture forfeiting the subject property, the state may transfer good and sufficient title to any subsequent purchaser or transferee. The title shall be recognized by all courts and agencies of this state, and any political subdivi- sion. On entry of judgment in favor of a person claiming an interest in the property that is subject to forfeiture proceedings under this chapter, the court shall enter an order that the

CH. 1133 lAWS OF THE SEVENTY-SIXTH GA., 1996 SESSION 314

property or interest in property shall be released or delivered promptly to that person free of liens and encumbrances under this chapter, and that the person's cost bond shall be discharged.

8. Upon motion by the prosecuting attorney, if it appears after a hearing that reason- able cause existed for the seizure for forfeiture or for the filing of the notice of pending forfeiture or complaint, the court shall find all of the following:

a. That reasonable cause existed, or that the action was taken under a reasonable good faith belief that it was proper.

b. That the claimant is not entitled to costs or damages. c. That the person or seizing agency who made the seizure and the prosecuting attor-

ney are not liable to suit or judgment for the seizure, suit, or prosecution.

Sec. 17. NEW SECTION. 809A17 DISPOSITION OF FORFEITED PROPERlY. 1. A person having control over forfeited property shall communicate that fact to the

attorney general or the attorney general's designee. 2. Forfeited property not needed as evidence in a criminal case shall be delivered to the

department of justice, or, upon written authorization of the attorney general or the attor- ney general's designee, the property may be destroyed, sold, or delivered to an appropri- ate agency for disposal in accordance with this section.

3. Forfeited property may be used by the department of justice in the enforcement of the criminal law. The department may give, sell, or trade property to any other state agency or to any other law enforcement agency within the state if, in the opinion of the attorney general, it will enhance law enforcement within the state.

4. Forfeited property which is not used by the department of justice in the enforcement of the law may be requisitioned by the department of public safety or any law enforcement agency within the state for use in enforcing the criminal laws of this state. Forfeited prop- erty not requisitioned may be delivered to the director of the department of general ser- vices to be disposed of in the same manner as property received pursuant to section 18.15.

5. Notwithstanding subsection 1,2,3, or 4, the following apply: a. Forfeited property which is a controlled substance or a simulated, counterfeit, or

imitation-controlled substance shall be disposed of as provided in section 124.506. b. Forfeited property which is a weapon or ammunition shall be deposited with the

department of public safety to be disposed of in accordance with the rules of the depart- ment. All weapons or ammunition may be held for use in law enforcement, testing, or comparison by the criminalistics laboratory, or destroyed. Ammunition and firearms which are not illegal and are not offensive weapons as defined by section 724.1 may be sold by the department as provided in section 809.21.

c. Material in violation of chapter 728 shall be destroyed. d. Property subject to the rules of the natural resource commission shall be delivered to

that commission for disposal in accordance with its rules.

Sec. 18. NEW SECTION. 809AI8 POWERS OF ENFORCEMENT PERSONNEL. 1. A prosecuting attorney may conduct an investigation of any conduct that gives rise to

forfeiture. The prosecuting attorney is authorized, before the commencement of a pro- ceeding or action under this chapter, to subpoena witnesses, and compel their attendance, examine them under oath, and require the production of documentary evidence for in- spection, reproducing, or copying. Except as otherwise provided by this section, the pros- ecuting attorney shall proceed under this subsection with the same powers and limita- tions, and judicial oversight and enforcement, and in the manner provided by this chapter and by the Iowa rules of civil procedure. Any person compelled to appear under a demand for oral testimony under this section may be accompanied, represented, and advised by counsel.

2. The examination of all witnesses under this section shall be conducted by the pros- ecuting attorney before an officer authorized to administer oaths. The testimony shall be

315 lAWS OF THE SEVENlY-SIXTH GA., 1996 SESSION CH. 1133

taken by a certified shorthand reporter or by a sound recording device and shall be tran- scribed or otherwise preserved. The prosecuting attorney may exclude from the examina- tion all persons except the witness, the witness' counsel, the officer before whom the testimony is to be taken, law enforcement officials, and a certified shorthand reporter. Prior to oral examination, the person shall be advised of the person's right to refuse to answer any questions on the basis of the privilege against self-incrimination. The exami- nation shall be conducted in a manner consistent with the rules dealing with the taking of depositions.

3. Except as otherwise provided in this section, prior to the filing of a civil or criminal proceeding or action relating to such a proceeding, documentary material, transcripts, or oral testimony, in the possession of the prosecuting attorney, shall not be available for examination by any individual other than a law enforcement official or agent of such offi- cial without the consent of the person who produced the material, transcripts, or oral testimony.

4. A person shall not knowingly remove from any place, conceal, withhold, destroy, mutilate, alter, or by any other means falsify any documentary material that is the subject of a subpoena, with intent to avoid, evade, prevent, or obstruct compliance in whole or in part by any person with any duly served subpoena of the prosecuting attorney under this section. A violation of this subsection is a class "D" felony. The prosecuting attorney shall investigate and prosecute suspected violations of this subsection.

Sec. 19. NEW SECTION. 809A.19 IMMUNI1Y ORDERS. 1. If a person is or may be called to produce evidence at a deposition, hearing, or trial

under this chapter or at an investigation brought by the prosecuting attorney under sec- tion 809A.18, the district court in which the deposition, hearing, trial, or investigation is or may be held shall, upon certification in writing of a request of the prosecuting attorney, issue an order, ex parte or after a hearing, requiring the person to produce evidence, notwithstanding that person's refusal to do so on the basis of the privilege against self- incrimination.

2. The prosecuting attorney may certify in writing a request for an ex parte order under subsection 1 if in the prosecuting attorney's judgment both of the following apply:

a. The production of the evidence may be necessary to the public interest. b. The person has refused or is likely to refuse to produce evidence on the basis of the

privilege against self-incrimination. 3. A person shall not refuse to comply with an order issued under subsection 1 on the

basis of a self-incrimination privilege. If the person refuses to comply with the order after being informed of its existence by the presiding officer, the person may be compelled or punished by the district court issuing an order for civil or criminal contempt.

4. The production of evidence compelled by order issued under subsection 1, and any information directly or indirectly derived from the production of evidence, shall not be used against the person in a subsequent criminal case, except in a prosecution for perjury, false swearing, or an offense otherwise involving a failure to comply with the order.

Sec. 20. NEW SECTION. 809A.20 STATUTE OF UMITATIONS. A civil action under this chapter shall be commenced within five years after the last

conduct giving rise to forfeiture or the cause of action becomes known or should have become known, excluding any time during which either the property or defendant is out of the state or in confinement, or during which criminal proceedings relating to the same conduct are pending.

Sec.21. NEW SECTION. 809A.21 SUMMARY FORFEITURE OF CONTROLLED SUBSTANCES.

Controlled substances included in chapter 124 which are contraband and any controlled substance whose owners are unknown are summarily forfeited to the state. The court may include in any judgment under this chapter an order forfeiting any controlled substance involved in the conduct giving rise to forfeiture to the extent of the defendant's interest.

CH. 1133 lAWS OF THE SEVENTY-SIXTH GA, 1996 SESSION 316

Sec. 22. NEW SECTION. 809A22 BAR TO COLlATERAL ACTION. A person claiming an interest in property subject to forfeiture shall not commence or

maintain any action against the state concerning the validity of the alleged interest other than as provided in this chapter.

Sec. 23. NEW SECTION. 809A23 STATUTORY CONSTRUCTION. The provisions of this chapter shall be liberally construed to effectuate its remedial pur-

poses. Civil remedies under this chapter shall be supplemental and not mutually exclusive. The civil remedies do not preclude and are not precluded by any other provision of law.

Sec. 24. NEW SECTION. 809A24 UNIFORMITY OF APPUCATION. 1. The provisions of this chapter shall be applied and construed to effectuate its general

purpose to make uniform the law with respect to the subject of this chapter among states enacting this law.

2. The attorney general may enter into reciprocal agreements with the attorney general or chief prosecuting attorney of any state to effectuate the purposes of this chapter.

Sec. 25. NEW SECTION. 809A25 RULEMAKING. The attorney general shall adopt, amend, or repeal rules pursuant to chapter 17 A to

carry out the provisions of this chapter.

DIVISION II IOWA ONGOING CRIMINAL CONDUCT ACT

Sec. 26. NEW SECTION. 706Al DEFINITIONS. In this chapter, unless the context otherwise requires: 1. "Criminal network" means any combination of persons engaging, for financial gain

on a continuing basis, in conduct which is an indictable offense under the laws of this state regardless of whether such conduct is charged or indicted. As used in this subsection, persons combine if they collaborate or act in concert in carrying on or furthering the activities or purposes of a network even though such persons may not know each other's identity, membership in the network changes from time to time, or one or more members of the network stand in a wholesaler-retailer, service provider, or other arm's length rela- tionship with others as to conduct in the furtherance of the financial goals of the network.

2. "Enterprise" includes any sole proprietorship, partnership, corporation, trust, or other legal entity, or any unchartered union, association, or group of persons associated in fact although not a legal entity, and includes unlawful as well as lawful enterprises.

3. "Proceeds" means property acquired or derived directly or indirectly from, produced through, realized through, or caused by an act or omission and includes any property of any kind.

4. "Property" means anything of value, and includes any interest in property, including any benefit, privilege, claim, or right with respect to anything of value, whether real or personal, tangible, or intangible, without reduction for expenses incurred for acquisition, maintenance, production, or any other purpose.

5. "Specified unlawful activity" means any act, including any preparatory or completed offense, committed for financial gain on a continuing basis, that is punishable as an indict- able offense under the laws of the state in which it occurred and under the laws of this state.

Sec. 27. NEW SECTION. 706A2 VIOlATIONS. l. SPECIFIED UNlAWFUL ACTIVITY INFLUENCED ENTERPRISES. a. It is unlawful for any person who has knowingly received any proceeds of specified

unlawful activity to use or invest, directly or indirectly, any part of such proceeds in the acquisition of any interest in any enterprise or any real property, or in the establishment or operation of any enterprise.

b. It is unlawful for any person to knowingly acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property through specified unlawful activity.

317 lAWS OF THE SEVENTY-SIXTH GA, 1996 SESSION CH. 1133

c. It is unlawful for any person to knowingly conduct the affairs of any enterprise through specified unlawful activity or to knowingly participate, directly, or indirectly, in any enter- prise that the person knows is being conducted through specified unlawful activity.

d. It is unlawful for any person to conspire or attempt to violate or to solicit or facilitate the violations of the provisions of paragraphs "a", "b", or "c".

2. FACIUTATION OF A CRIMINAL NETWORK. It is unlawful for a person acting with knowledge of the financial goals and criminal objectives of a criminal network to knowingly facilitate criminal objectives of the network by doing any of the following:

a. Engaging in violence or intimidation or inciting or inducing another to engage in violence or intimidation.

b. Inducing or attempting to induce a person believed to have been called or who may be called as a witness to unlawfully withhold any testimony, testify falsely, or absent them- selves from any official proceeding to which the potential witness has been legally sum- moned.

c. Attempting by means of bribery, misrepresentation, intimidation, or force to obstruct, delay, or prevent the communication of information or testimony relating to a violation of any criminal statute to a peace officer, magistrate, prosecutor, grand jury, or petit jury.

d. Injuring or damaging another person's body or property because that person or any other person gave information or testimony to a peace officer, magistrate, prosecutor, or grand jury.

e. Attempting to suppress by an act of concealment, alteration, or destruction any physical evidence that might aid in the discovery, apprehension, prosecution, or conviction of any person.

f. Making any property available to a member of the criminal network. g. Making any service other than legal services available to a member of the criminal

network. h. Inducing or committing any act or omission by a public servant in violation of the

public servant's official duty. i. Obtaining any benefit for a member of a criminal network by means of false or fraudu-

lent pretenses, representation, promises or material omissions. j. Making a false sworn statement regarding a material issue, believing it to be false, or

making any statement, believing it to be false, regarding a material issue to a public ser- vant in connection with an application for any benefit, privilege, or license, or in connec- tion with any official investigation or proceeding.

3. MONEY lAUNDERING. It is unlawful for a person to commit money laundering as defined in chapter 706B.

4. ACTS OF SPECIFIED UNIA WFUL ACTMTY. It is unlawful for a person to commit specified unlawful activity as defined in section 706A 1.

5. NEGUGENT EMPOWERMENT OF SPECIFIED UNlAWFUL ACTMTY. a. It is unlawful for a person to negligently allow property owned or controlled by the

person or services provided by the person, other than legal services, to be used to facilitate specified unlawful activity, whether by entrustment, loan, rent, lease, bailment, or other- wise.

b. Damages for negligent empowerment of specified unlawful activity shall include all reasonably foreseeable damages proximately caused by the specified unlawful activity, including, in a case brought or intervened in by the state, the costs of investigation and criminal and civil litigation of the specified unlawful activity incurred by the government for the prosecution and defense of any person involved in the specified unlawful activity, and the imprisonment, probation, parole, or other expense reasonably necessary to de- tain, punish, and rehabilitate any person found guilty of the specified unlawful activity, except for the following:

(1) If the person empowering the specified unlawful activity acted only negligently and was without knowledge of the nature of the activity and could not reasonably have known

CH. 1133 lAWS OF THE SEVEN1Y-SIXTH GA, 1996 SESSION 318

of the unlawful nature of the activity or that it was likely to occur, damages shall be limited to the greater of the following:

(a) The cost of the investigation and litigation of the person's own conduct plus the value of the property or service involved as of the time of its use to facilitate the specified unlawful activity.

(b) All reasonably foreseeable damages to any person, except any person responsible for the specified unlawful activity, and to the general economy and welfare of the state proximately caused by the person's own conduct.

(2) If the property facilitating the specified unlawful activity was taken from the posses- sion or control of the person without that person's knowledge and against that person's will in violation of the criminal law, damages shall be limited to reasonably foreseeable damages to any person, except persons responsible for the taking or the specified unlaw- ful activity, and to the general economy and welfare of the state proximately caused by the person's negligence, if any, in failing to prevent its taking.

(3) If the person was aware of the possibility that the property or service would be used to facilitate some form of specified unlawful activity and acted to prevent the unlawful use, damages shall be limited to reasonably foreseeable damages to any person, except any person responsible for the specified unlawful activity, and to the general economy and welfare of the state proximately caused by the person's failure, if any, to act reasonably to prevent the unlawful use.

(4) The plaintiff shall carry the burden of proof by a preponderance of the evidence that the specified unlawful activity occurred and was facilitated by the property or services. The defendant shall have the burden of proof by a preponderance of the evidence as to circumstances constituting lack of negligence and on the limitations on damages in this subsection.

Sec. 28. NEW SECTION. 706A.3 CIVIL REMEDIES - ACTIONS. 1. The prosecuting attorney or an aggrieved person may institute civil proceedings against

any person in district court seeking relief from conduct constituting a violation of this chapter or to prevent, restrain, or remedy such violation.

2. The district court has jurisdiction to prevent, restrain, or remedy such violations by issuing appropriate orders. Prior to a determination of liability such orders may include, but are not limited to, entering restraining orders or injunctions, requiring the execution of satisfactory performance bonds, creating receiverships, and enforcing constructive trusts in connection with any property or interest subject to damages, forfeiture, or other rem- edies or restraints pursuant to this chapter.

3. If the plaintiff in such a proceeding proves the alleged violation by a preponderance of the evidence, the district court, after making due provision for the rights of innocent persons, shall grant relief by entering any appropriate order or judgment, including any of the following:

a. Ordering any defendant to divest the defendant of any interest in any enterprise, or in any real property.

b. Imposing reasonable restrictions upon the future activities or investments of any defendant, including, but not limited to, prohibiting any defendant from engaging in the

. same type of endeavor as any enterprise in which the defendant was engaged in a viola- tion of this chapter.

c. Ordering the dissolution or reorganization of any enterprise. d. Ordering the payment of all reasonable costs and expenses of the investigation and

prosecution of any violation, civil or criminal, including reasonable attorney fees in the trial and appellate courts. Such payments received by the state, by judgment, settlement, or otherwise, shall be considered forfeited property and disposed of pursuant to section 809A.17.

e. Ordering the forfeiture of any property subject to forfeiture under chapter 809A, pursuant to the provisions and procedures of that chapter.

319 LAWS OF THE SEVENTY-SIXTH GA., 1996 SESSION CH. 1133

f. Ordering the suspension or revocation of any license, permit, or prior approval granted to any person by any agency of the state.

g. Ordering the surrender of the certificate of existence of any corporation organized under the laws of this state or the revocation of any certificate authorizing a foreign corpo- ration to conduct business within this state, upon finding that for the prevention of future violations, the public interest requires the certificate of the corporation to be surrendered and the corporation dissolved or the certificate revoked.

4. Relief under subsection 3, paragraphs "en, "f", and "g" shall not be granted in civil proceedings instituted by an aggrieved person unless the prosecuting attorney has insti- tuted the proceedings or intervened. In any action under this section brought by the state or in which the state has intervened, the state may employ any of the powers of seizure and restraint of property as are proved* for forfeiture actions under chapter 809A, or as are provided for the collection of taxes payable and past due, and whose collection has been determined to be in jeopardy.

5. In a proceeding initiated under this section, injunctive relief shall be granted in con- formity with the principles that govern the granting of relief from injury or threatened injury in other civil cases, but no showing of special or irreparable injury is required. Pending final determination of a proceeding initiated under this section, a temporary re- straining order or a preliminary injunction may be issued upon a showing of immediate danger of significant injury, including the possibility that a judgment for money damages might be difficult to execute, and, in a proceeding initiated by a nongovernmental ag- grieved person, upon the execution of proper bond against injury for an injunction im- providently granted.

6. Any person who is in possession or control of proceeds of any violation of this chap- ter, is an involuntary trustee and holds the property in constructive trust for the benefit of the person entitled to remedies under this chapter, unless the holder acquired the prop- erty as a bona fide purchaser for value who was not knowingly taking part in an illegal transaction.

7. Any person whose business or property is directly or indirectly injured by conduct constituting a violation of this chapter, by any person, may bring a civil action, subject to the in pari delicto defense and shall recover threefold the actual damages sustained and the costs and expenses of the investigation and prosecution of the action including reason- able attorney fees in the trial and appellate courts. Damages shall not include pain and suffering. Any person injured shall have a claim to any property against which any fine, or against which treble damages under subsection 10 or 11 may be imposed, superior to any right or claim of the state to the property, up to the value of actual damages and costs awarded in an action under this subsection. The state shall have a right of subrogation to the extent that an award made to a person so injured is satisfied out of property against which any fine or civil remedy in favor of the state may be imposed.

8. a. If liability of a legal entity is based on the conduct of another, through respon- dent** superior or otherwise, the legal entity shall not be liable for more than actual dam- ages and costs, including a reasonable attorney's fee, if the legal entity affirmatively shows by a preponderance of the evidence that both of the following apply:

(1) The conduct was not engaged in, authorized, solicited, commanded, or recklessly tolerated by the legal entity, by the directors of the legal entity or by a high managerial agent of the legal entity acting within the scope of employment.

(2) The conduct was not engaged in by an agent of the legal entity acting within the scope of employment and in behalf of the legal entity.

b. For the purposes of this subsection: (1) "Agent" means any officer, director, or employee of the legal entity, or any other

person who is authorized to act in behalf of the legal entity. (2) "High managerial agent" means any officer of the legal entity or, in the case of a

partnership, a partner, or any other agent in a position of comparable authority with re- spect to the formulation of policy of the legal entity.

'The word "provided" probably intended "The word "respondeat" probably intended

CH. 1133 LAWS OF THE SEVENTY-SIXTH GA., 1996 SESSION 320

(3) Notwithstanding any other provision of law, any pleading, motion, or other paper filed by a nongovernmental aggrieved party in connection with a proceeding or action under subsection 7 shall be verified. If such aggrieved person is represented by an attor- ney, such pleading, motion, or other paper shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated.

If such pleading, motion, or other paper includes an averment of fraud, coercion, accom- plice, respondent* superior, conspiratorial, enterprise, or other vicarious accountability, it shall state, insofar as practicable, the circumstances with particularity. The verification and the signature by an attorney required by this subsection shall constitute a certification by the signor that the attorney has carefully read the pleading, motion, or other paper and, based on a reasonable inquiry, believes that all of the following exist:

(a) It is well-grounded in fact. (b) It is warranted by existing law, or a good faith argument for the extension, modifi-

cation, or reversal of existing law. (c) It is not made for an improper purpose, including to harass, to cause unnecessary

delay, or to impose a needless increase in the cost of litigation. The court may, after a hearing and appropriate findings of fact, impose upon any person

who verified the complaint, cross-claim or counterclaim, or any attorney who signed it in violation of this subsection, or both, a fit and proper sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred be- cause of the complaint or claim, including reasonable attorney fees. If the court deter- mines that the filing of a complaint or claim under subsection 7 by a nongovernmental party was frivolous in whole or in part, the court shall award double the actual expenses, including attorney fees, incurred because of the frivolous portion of the complaint or claim.

9. Upon the filing of a complaint, cross-claim, or counterclaim under this section, an aggrieved person, as a jurisdictional prerequisite, shall immediately notify the attorney general of its filing and serve one copy of the pleading on the attorney general. Service of the notice on the attorney general does not limit or otherwise affect the right of the state to maintain an action under this section or intervene in a pending action and does not autho- rize the aggrieved person to name the state or the attorney general as a party to the action. The attorney general, upon timely application, may intervene or appear as amicus curiae in any civil proceeding or action brought under this section if the attorney general certifies that, in the opinion of the attorney general, the proceeding or action is of general public importance. In any proceeding or action brought under this section by an aggrieved per- son, the state shall be entitled to the same relief as if it had instituted the proceeding or action.

10. a. Any prosecuting attorney may bring a civil action on behalf of a person whose business or property is directly or indirectly injured by conduct constituting a violation of this chapter, and shall recover threefold the damages sustained by such person and the costs and expenses of the investigation and prosecution of the action, including reason- able attorney fees in the trial and appellate courts. The court shall exclude from the amount of monetary relief awarded any amount of monetary relief which is any of the following:

(1) Which duplicates amounts which have been awarded for the same injury. (2) Which is properly allocable to persons who have excluded their claims under para-

graph "c". b. In any action brought under this subsection, the prosecuting attorney, at such times,

in such manner, and with such content as the court may direct, shall cause notice of the action to be given by publication. If the court finds that notice given solely by publication would deny due process to any person, the court may direct further notice to such person according to the circumstances of the case.

c. A person on whose behalf an action is brought under this subsection may elect to exclude from adjudication the portion of the state claim for monetary relief attributable to the person by filing notice of such election within such time as specified in the notice given under this subsection.

d. A final judgment in an action under this subsection shall preclude any claim under this subsection by a person on behalf of whom such action was brought who fails to give

·The word "respondeat" probably intended

321 lAWS OF THE SEVEN1Y-SIXTH GA, 1996 SESSION CH. 1133

notice of exclusion within the times specified in the notice given under paragraph "b". e. An action under this subsection on behalf of a person other than the state shall not be

dismissed or compromised without the approval of the court, and notice of any proposed dismissal or compromise shall be given in such manner as the court directs.

11. The attorney general may bring a civil action as parens patriae on behalf of the general economy, resources, and welfare of this state, and shall recover threefold the proceeds acquired, maintained, produced, or realized by or on behalf of the defendant by reason of a violation of this chapter, plus the costs and expenses of the investigation and prosecution of the action, including reasonable attorney fees in the trial and appellate courts.

a. A person who has knowingly conducted or participated in the conduct of an enter- prise in violation of section 706A.2, subsection 1, paragraph "c" is also jointly and sever- ally liable for the greater of threefold the damage sustained directly or indirectly by the state by reason of conduct in furtherance of the violation or threefold the total of all pro- ceeds acquired, maintained, produced, or realized by, or on behalf of any person by rea- son of participation in the enterprise except for the following:

(1) A person is not liable for conduct occurring prior to the person's first knowing participation in or conduct of the enterprise.

(2) If a person shows that, under circumstances manifesting a voluntary and complete renunciation of culpable intent, the person withdrew from the enterprise by giving a com- plete and timely warning to law enforcement authorities or by otherwise making a reason- able and substantial effort to prevent the conduct or result which is the criminal objective of the enterprise, the person is not liable for conduct occurring after the person's with- drawal.

b. A person who has facilitated a criminal network in violation of section 706A.2, sub- section 2, is also jointly and severally liable for all of the following:

(1) The damages resulting from the conduct in furtherance of the criminal objectives of the criminal network, to the extent that the person's facilitation was of substantial assis- tance to the conduct.

(2) The proceeds of conduct in furtherance of the criminal objectives of the criminal network, to the extent that the person's facilitation was of substantial assistance to the conduct.

(3) A person who has engaged in money laundering in violation of chapter 706B is also jointly and severally liable for the greater of threefold the damages resulting from the person's conduct or threefold the property that is the subject of the violation.

Sec. 29. NEW SECTION. 706A.4 CRIMINAL SANCTIONS. A person who violates section 706A.2, subsection 1, 2, or 4, commits a class "B" felony.

Sec. 30. NEW SECTION. 706A.5 UNIFORMI1Y OF CONSTRUCTION AND APPU- CATION.

1. The provisions of this chapter shall be liberally construed to effectuate its remedial purposes. Civil remedies under this chapter shall be supplemental and not mutually exclu- sive. Civil remedies under this chapter do not preclude and are not precluded by other provisions of law.

2. The provisions of this chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting the law.

3. The attorney general may enter into reciprocal agreements with the attorney general or chief prosecuting attorney of any state to effectuate the purposes of this chapter.

DMSION III IOWA MONEY lAUNDERING ACT

Sec.31. NEW SECTION. 706B.I DEFINITIONS. In this chapter, unless the context otherwise requires: 1. "Proceeds" means property acquired or derived directly or indirectly from, produced

CH. 1133 lAWS OF THE SEVENTI-SIXTH GA, 1996 SESSION 322

through, realized through, or caused by an act or omission and includes any property of any kind.

2. "Property" means anything of value, and includes any interest in property, including any benefit, privilege, claim, or right with respect to anything of value, whether real or personal, tangible or intangible.

3. "Specified unlawful activity" means any act, including any preparatory or completed offense, committed for financial gain on a continuing basis, that is punishable by confine- ment of one year or more under the laws of this state, or, if the act occurred outside this state, would be punishable by confinement of one year or more under the laws of the state in which it occurred and under the laws of this state.

4. "Transaction" includes a purchase, sale, trade, loan, pledge, investment, gift, trans- fer, transmission, delivery, deposit, withdrawal, payment, transfer between accounts, ex- change of currency, extension of credit, purchase, or sale of any monetary instrument, use of a safe deposit box, or any other acquisition or disposition of property by whatever means effected.

5. "Unlawful activity" means any act which is chargeable or indictable as a public of- fense of any degree under the laws of the state in which the act occurred or under federal law and, if the act occurred in a state other than this state, would be chargeable or indict- able as a public offense of any degree under the laws of this state or under federal law.

Sec. 32. NEW SECTION. 706B.2 MONEY lAUNDERING PENALTY - CIVIL REM- EDIES.

1. It is unlawful for a person to do any of the following: a. To knowingly transport, receive, or acquire property or to conduct a transaction

involving property, knowing that the property involved is the proceeds of some form of unlawful activity, when, in fact, the property is the proceeds of specified unlawful activity.

b. To make property available to another, by transaction, transportation, or otherwise, knowing that it is intended to be used for the purpose of committing or furthering the commission of specified unlawful activity.

c. To conduct a transaction knowing that the property involved in the transaction is the proceeds of some form of unlawful activity with the intent to conceal or disguise the na- ture, location, source, ownership, or control of the property or the intent to avoid a trans- action-reporting requirement under chapter 529, the Iowa financial transaction reporting Act, or federal law.

d. To knowingly engage in the business of conducting, directing, planning, organizing, initiating, financing, managing, supervising, or facilitating transactions involving prop- erty, knowing that the property involved in the transaction is the proceeds of some form of unlawful activity, that, in fact, is the proceeds of specified unlawful activity.

2. A person who violates: a. Subsection 1, paragraphs "a", "b", or "c", commits a class "C" felony, and may be

fined not more than ten thousand dollars or twice the value of the property involved, which- ever is greater, or by imprisonment for not more than 10 years, or both.

b. Subsection 1, paragraph "d", commits a class "D" felony, and may be fined not more than seven thousand five hundred dollars or twice the value of the property involved, whichever is greater, or by imprisonment for not more than five years, or both.

3. A person who violates subsection 1, paragraph "a", "b", "c", or "d", is subject to a civil penalty of three times the value of the property involved in the transaction, in addition to any criminal sanction imposed.

4. A person who is found guilty of a violation under this section also may be charged with violations of chapter 706A, and property involved in a violation under this chapter is subject to forfeiture under chapter 809A

323 LAWS OF THE SEVEN1Y-SIXTH GA., 1996 SESSION CH. 1133

Sec. 33. NEW SECTION. 706B.3 UNIFORMIlY OF CONSTRUCTION AND APPLI- CATION.

1. The provisions of this chapter shall be liberally construed to effectuate its remedial purposes. Civil remedies under this chapter shall be supplemental and not mutually exclu- sive. The civil remedies do not preclude and are not precluded by other provision of law.

2. The provisions of this chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting the law.

3. The attorney general may enter into reciprocal agreements with the attorney general or chief prosecuting attorney of any state to effectuate the purposes of this chapter.

DIVISION IV IOWA FINANCIAL TRANSACfION REPORTING ACf

Sec. 34. NEW SECTION. 529.1 DEFINITIONS. In this chapter, unless the context otherwise requires: 1. "Authorized delegate" means a person designated by the licensee. 2. "Check cashing" means exchanging for compensation a check, draft, money order,

traveler's check, or a payment instrument of a licensee for money delivered to the pre- senter at the time and place of the presentation.

3. "Compensation" means any fee, commission, or other benefit. 4. "Conduct the business" means engaging in activities of a licensee or money transmit-

ter more than ten times in any calendar year for compensation. 5. "Foreign money exchange" means exchanging for compensation money of the United

States government or a foreign government to or from money of another government at a conspicuously posted exchange rate at the time and place of the presentation of the money to be exchanged.

6. "Licensee" means a person licensed under this chapter. 7. "Location" means a place of business at which activity conducted by a licensee or

money transmitter occurs. 8. "Money" means a medium of exchange authorized or adopted by a domestic or for-

eign government as a part of its currency and that is customarily used and accepted as a medium of exchange in the country of issuance.

9. "Money transmitter" means a person who is located or doing business in this state, including a check cashier and a foreign money exchanger, and who does any of the follow- ing:

a. Sells or issues payment instruments. b. Conducts the business of receiving money for the transmission of or transmitting

money. c. Conducts the business of exchanging payment instruments or money into any form

of money or payment instrument. d. Conducts the business of receiving money for obligors for the purpose of paying

obligors' bills, invoices, or accounts. e. Meets the definition of a bank, financial agency, or financial institution as prescribed

by 31 U.S.C. § 5312 or 31 C.F.R. § 103.11 and any successor provisions. 10. "Payment instrument" means a check, draft, money order, traveler's check, or other

instrument or order for the transmission or payment of money, sold to one or more per- sons, whether or not that instrument or order is negotiable. "Payment instrument" does not include an instrument that is redeemable by the issuer in merchandise or service, a credit card voucher, or a letter of credit.

11. "Proceeds" means anything of value, and includes any interest in property, includ- ing any benefit, privilege, claim, or right with respect to anything of value, whether real or personal, tangible or intangible, without reduction for expenses incurred for acquisition, maintenance, production, or any other purpose.

12. "Superintendent" means the superintendent of banking or the superintendent of credit unions.

13. "Transaction" includes a purchase, sale, trade, loan, pledge, investment, gift, trans- fer, transmission, delivery, deposit, withdrawal, payment, transfer between accounts,

CH. 1133 lAWS OF THE SEVEN1Y-SIXTH GA., 1996 SESSION 324

exchange of currency, extension of credit, purchase, or sale of any monetary instrument, use of a safe deposit box, or any other acquisition or disposition of property by whatever means effected.

14. "Transmitting money" includes the transmission of money by any means including transmission within this country or to or from locations abroad by payment instrument, wire, facsimile, or electronic transfer, courier, or otherwise.

15. "Traveler's check" means an instrument identified as a traveler's check on its face or commonly recognized as a traveler's check and issued in a money multiple of United States or foreign currency with a provision for a specimen signature of the purchaser to be completed at the time of purchase and a countersignature of the purchaser to be com- pleted at the time of negotiation.

Sec. 35. NEW SECTION. 529.2 REPORTS. 1. A licensee, authorized delegate, or money transmitter required to file a report re-

garding business conducted in this state pursuant to the federal Currency and Foreign Transactions Reporting Act, 31 U.S.C. § 5311 through 5326 and 31 C.F.R. pt. 103, or 12 C.F.R. § 21.11, shall file a duplicate of that report with the department of public safety.

2. All persons engaged in a trade or business who are required to file a report pursuant to 26 U.S.C. § 6050i and 26 C.F.R. § 1.60501, and any successor provisions, concerning returns relating to cash received in trade or business, shall file a copy of the report with the department of public safety.

3. A licensee, authorized delegate, or money transmitter that is regulated under the federal Currency and Foreign Transaction Reporting Act, 31 U.S.C. § 5325 and 31 C.F.R. pt. 103, and that is required to make available prescribed records to the secretary of the United States department of treasury upon request at any time, shall follow the same pre- scribed procedures and create and maintain the same prescribed records relating to a transaction and shall make these records available to the department of public safety pur- suant to a prosecuting attorney subpoena.

4. a. The timely filing of a report required by this section with the appropriate federal agency shall be deemed compliance with the reporting requirements of this section, un- less the attorney general or the department of public safety has notified the superinten- dent that reports of that type are not being regularly and comprehensively transmitted by that federal agency to the department of public safety.

b. This chapter does not preclude a licensee, authorized delegate, money transmitter, financial institution, or a person engaged in a trade or business, in its discretion, from instituting contact with, and thereafter communicating with and disclosing customer fi- nancial records to appropriate state or local law enforcement agencies if the licensee, authorized delegate, money transmitter, financial institution, or person has information that may be relevant to a possible violation of any criminal statute or to the evasion or attempted evasion of any reporting requirement of this chapter.

c. A licensee, authorized delegate, money transmitter, financial institution, person en- gaged in a trade or business, or any officer, employee, agent, or authorized delegate of any of them, or any public official or governmental employee who keeps or files a record pursuant to this section or who communicates or discloses information or records under paragraph "b", is not liable to its customer, to a state or local agency, or to any person for any loss or damage caused in whole or in part by the making, filing, or governmental use of the report, or any information contained in that report.

5. The attorney general or the department of public safety may report any possible violations indicated by analysis of the reports required by this chapter to any appropriate law enforcement agency for use in the proper discharge of its official duties. The attorney general or the department of public safety shall provide copies of the reports required by this chapter to any appropriate prosecutorial or law enforcement agency upon being pro- vided with a written request for records relating to a specific individual or entity and stating that the agency has an articulable suspicion that such individual or entity has

325 lAWS OF THE SEVENlY-SIXTH GA., 1996 SESSION CH. 1133

committed a felony offense or a violation of this chapter to which the reports are relevant. A person who releases information received pursuant to this subsection except in the proper discharge of the person's official duties is guilty of a serious misdemeanor.

6. It shall be unlawful for any person to do any of the following: a. With intent to disguise the fact that money or a payment instrument is the proceeds

of criminal conduct, or with intent to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of any criminal conduct, to knowingly furnish or provide to a licensee, authorized delegate, money transmitter, finan- cial institution, person engaged in a trade or business, or any officer, employee, agent or authorized delegate of any of them, or to the attorney general or department of public safety, any false, inaccurate, or incomplete information; or to knowingly conceal a mate- rial fact in connection with a transaction for which a report is required to be filed pursuant to this section.

b. With the intent to disguise the fact that money or a payment instrument is the pro- ceeds of criminal conduct, or with intent to promote, manage, establish, carry on, or facili- tate the promotion, management, establishment, or carrying on of any criminal conduct, or with intent to evade the making or filing of a report required under this chapter, or with intent to cause the making or filing of a report that contains a material omission or mis- statement of fact, or with intent to conduct or structure a transaction or series of transac- tions by or through one or more licensees, authorized delegates, money transmitters, fi- nancial institutions, or persons engaged in a trade or business.

7. A person who violates subsection 7* is guilty of a class "C" felony and is also subject to a civil penalty of three times the value of the property involved in the transaction, or, if no transaction is involved, five thousand dollars.

8. Notwithstanding any other provision of law, each violation of this section constitutes a separate, punishable offense.

9. Any report, record, information, analysis, or request obtained by the attorney gen- eral or department of public safety pursuant to this chapter is not a public record as de- fined in chapter 22 and is not subject to disclosure.

Sec. 36. NEW SECTION. 529.3 INVESTIGATIONS. 1. The attorney general or county attorney may conduct investigations within or out-

side this state to determine if any licensee, authorized delegate, money transmitter, or person engaged in a trade or business has failed to file a report required by this chapter or has engaged or is engaging in any act, practice, or transaction that constitutes a violation of this chapter.

2. Upon presentation of a subpoena from a prosecuting attorney, all licensees, autho- rized delegates, money transmitters, and financial institutions shall make their books and records available to the attorney general or county attorney or peace officer during normal business hours for inspection and examination in connection with an investigation pursu- ant to this section.

Sec. 37. NEW SECTION. 529.4 UNIFORMIlY OF CONSTRUCTION AND APPU- CATION.

1. The provisions of this chapter shall be liberally construed to effectuate its remedial purposes. Civil remedies under this chapter shall be supplemental and not mutuaIly exclu- sive. The civil remedies do not preclude and are not precluded by other provisions of law.

2. The provisions of this chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting the law and to make the reporting requirements regarding financial transactions under Iowa law uniform with the reporting requirements regarding financial transactions under federal law.

3. The attorney general is authorized to enter into reciprocal agreements with the attor- ney general or chief prosecuting attorney of any state to effectuate the purposes of this chapter.

·Subsection 6 probably intended

CR. 1133 lAWS OF THE SEVENlY-SIXTH GA, 1996 SESSION

DMSIONV CONFORMING AMENDMENTS

326

Sec. 38. Section 22.7, Code Supplement 1995, is amended by adding the following new subsection:

NEW SUBSECTION. 33. A record required under the Iowa financial transaction re- porting Act listed in section 529.2, subsection 10.*

Sec. 39. Section 80.39, subsection 1, Code 1995, is amended to read as follows: 1. Personal property, except for motor vehicles subjectto sale pursuantto section 321.89,

and seizable 9F fedeitable property subject to disposition pursuant to chapter 809, which personal property is found or seized by, turned in to, or otherwise lawfully comes into the possession of the department of public safety and which the department does not own, shall be disposed of pursuant to this section. If by examining the property the owner or lawful custodian of the property is known or can be readily ascertained, the department shall notify the owner or custodian by certified mail directed to the owner's or custodian's last known address, as to the location of the property. If the identity or address of the owner cannot be determined, notice by one publication in a newspaper of general circula- tion in the area where the property was found is sufficient notice. A published notice may contain multiple items.

Sec. 40. Section 123.20, subsection 7, Code 1995, is amended to read as follows: 7. To accept intoxicating liquors ordered delivered to the alcoholic beverages division

pursuant to chapter 8()9 809A, and offer for sale and deliver the intoxicating liquors to class "E" liquor control licensees, unless the administrator determines that the intoxicat- ing liquors may be adulterated or contaminated. If the administrator determines that the intoxicating liquors may be adulterated or contaminated, the administrator shall order their destruction.

Sec.41. Section 321.232, subsection 3, Code 1995, is amended to read as follows: 3. A radar jamming device may be seized by a peace officer subject to forfeiture as

provided by chapter 809 or 809A

Sec. 42. Section 32IJAB, subsection 12, Code Supplement 1995, is amended to read as follows:

12. Operating a motor vehicle on a street or highway in this state in violation of an order of impoundment or immobilization is la serious misdemeanor. A motor vehicle which is subject to an order of impoundment or immobilization that is operated on a street or highway in this state in violation of the order shall be seized and forfeited to the state under eftaJ)teF chapters 809 and 809A

Sec. 43. Section 32IJAB, subsections 13 and 16, Code Supplement 1995, are amended to read as follows:

13. Once the period of impoundment or immobilization has expired, the owner of the motor vehicle shall have thirty days to claim the motor vehicle and pay the fees and charges imposed under this section. If the owner or the owner's designee has not claimed the vehicle and paid the fees and charges imposed under this section within seven days from the date of expiration of the period, the clerk shall send written notification to the motor vehicle owner, at the owner's last known address, notifying the owner of the date of expi- ration of the period of impoundment or immobilization and of the period in which the motor vehicle must be claimed. If the motor vehicle owner fails to claim the motor vehicle and pay the fees and charges imposed within the thirty-day period, the motor vehicle shall be forfeited to the state under eftaJ)teF chapters 809 and 809A

16. Notwithstanding the requirements of this section, the holder of a security interest in a vehicle which is impounded or immobilized pursuant to this section or forfeited in the manner provided in eftaJ)teF chapters 809 and 809A shall be notified of the impoundment, immobilization, or forfeiture within seventy-two hours of the seizure of the vehicle and

'Subsection 9 probably intended

327 LAWS OF THE SEVENlY-SIXTH GA., 1996 SESSION CH. 1133

shall have the right to claim the motor vehicle without payment of any fees or surcharges unless the value of the vehicle exceeds the value of the security interest held by the creditor.

Sec. 44. Section 32IJ.I0, subsection 7, Code 1995, is amended to read as follows: 7. Specimens obtained pursuant to warrants issued under this section are not subject to

disposition under section SOS.9 or chapter S09 or S09A.

Sec. 45. Section 455B.I03, subsection 4, paragraph d, subparagraph (2), Code 1995, is amended to read as follows:

(2) In a reasonable manner, and any property seized shall be treated in accordance with the provisions of chapters SOS~ ami S09, and S09A.

Sec. 46. Section 602.6405, subsection 1, Code 1995, is amended to read as follows: 1. Magistrates have jurisdiction of simple misdemeanors, including traffic and ordi-

nance violations, and preliminary hearings, search warrant proceedings, county and mu- nicipal infractions, and small claims. Magistrates have jurisdiction to determine the dispo- sition of livestock or another animal, as provided in sections 717.5 and 717B.4, if the mag- istrate determines the value of the livestock or animal is less than ten thousand dollars. Magistrates have jurisdiction to exercise the powers specified in sections 556F.2 and 556F.12, and to hear complaints or preliminary informations, issue warrants, order ar- rests, make commitments, and take bail. Magistrates have jurisdiction over violations of section 123.49, subsection 2, paragraph "h". Magistrates who are admitted to the practice of law in this state have jurisdiction over all proceedings for the involuntary commitment, treatment, or hospitalization of individuals under chapters 125 and 229, except as other- wise provided under section 229.6A; nonlawyer magistrates have jurisdiction over emer- gency detention and hospitalization proceedings under sections 125.91 and 229.22. Mag- istrates have jurisdiction to conduct hearings authorized under section S09.4 aBa seeaeB 809.10, s1:19SeetieB 2.

Sec. 47. Section S09.1, subsection 2, Code Supplement 1995, is amended by striking the subsection.

Sec.4S. Section S09.4, Code 1995, is amended to read as follows: S09.4 HEARING - APPEAL. An application for the return of seized property shall be set for hearing not less than five

nor more than thirty days after the filing of the application and shall be tried to the court. All claims to the same property shall be heard in one proceeding unless it is shown that the proceeding would result in prejudice to one or more of the parties. If the total value of the property sought to be returned is less than five thousand dollars, the proceeding may be conducted by a magistrate or a district associate judge with appeal to be as in the case of small claims. In all other cases, the hearing shall be conducted by a district judge, with appeal as provided in section ~ S09.12A.

Sec. 49. NEW SECTION. S09.12A APPEALS. An appeal from a denial of an application for the return of seized property or from an

order for the return of seized property shall be made within thirty days after the entry of a judgment order. The appellant, other than the state, shall post a bond of a reasonable amount as the court may fix and approve, conditioned to pay all costs of the proceedings if the appellant is unsuccessful on appeal. The appellant, other than the state, may be re- quired to post a supersedeas bond or other security, as the court finds to be reasonable, in order to stay the operation of a forfeiture order under section S09A.16.

Sec. 50. Section S09.15, Code 1995, is amended to read as follows: S09.15 COMBINING PROCEEDINGS. In cases involving seized property and feFfeitable property subject to forfeiture pursuant

to section S09A.4, the court may order that the proceedings be combined for purposes of this chapter.

CH. 1133 lAWS OF THE SEVEN1Y-SIXTH GA, 1996 SESSION

Sec. 51. Section 809.16, Code 1995, is amended to read as follows: 809.16 RULEMAKING.

328

The attorney general may shall adopt, amend, or repeal rules pursuant to chapter 17 A to carry out the provisions of this chapter.

Sec. 52. Section 809.17, Code 1995, is amended to read as follows: 809.17 PROCEEDS APPLIED TO VARIOUS PROGRAMS. Except as provided in section 809.21, proceeds from the disposal of seized aF forfeited

property pursuant to this chapter may be transferred in whole or in part to the victim compensation fund created in section 912.14 at the discretion of the recipient agency, political subdivision, or department.

Sec. 53. Sections 809.6 through 809.14, Code 1995, are repealed.

Approved April 17, 1996

CHAPTER 1134 JUVENILE AND CRIMINAL JUSTICE - MISCELIANEOUS PROVISIONS

S.F.2420

AN ACf relating to juvenile justice, including the use of deadly force by criminal street gangs, dispositional alternatives for juveniles adjudicated delinquent, registering with the sex offender registry, and associate juvenile judge jurisdiction.

Be It Enacted by the General Assembly of the State of Iowa:

Section 1. Section 232.8, subsection 1, paragraph c, Code Supplement 1995, is amended to read as follows:

c. Violations by a child, age sixteen or older, which subject the child to the provisions of section 124.401, subsection 1, paragraph "e" or "f", or violations of section 723A.2 which involve a violation of chapter 724, or violation of chapter 724 which constitutes a felony, or violations which constitute a forcible felony are excluded from the jurisdiction of the juve- nile court and shall be prosecuted as otherwise provided by law unless the court transfers jurisdiction of the child to the juvenile court upon motion and for good cause. A child over whom jurisdiction has not been transferred to the juvenile court, and who is convicted of a violation excluded from the jurisdiction of the juvenile court under this paragraph, shall be sentenced pursuant to section 124.401B, 902.9, or 903.1. Notwithstanding any other provision of the Code to the contrary. the court may accept from a child a plea of guilty. or may instruct the jury on a lesser included offense to the offense excluded from the juris- diction of the juvenile court under this section in the same manner as regarding an adult.

Sec. 2. Section 232.52, subsection 2, paragraph d, Code Supplement 1995, is amended by adding the following new subparagraph:

NEW SUBPARAGRAPH. (4) The chief juvenile court officer or the officer's designee for placement in a program under section 232.191, subsection 4. The chief juvenile court officer or the officer's designee may place a child in group foster care for failure to comply with the terms and conditions of the supervised community treatment program for up to seventy-two hours without notice to the court or for more than seventy-two hours if the court is notified of the placement within seventy-two hours of placement, subject to a hearing before the court on the placement within ten days.