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PAG LIN 1 1 DIVISION I 1 2 IOWA FORFEITURE REFORM ACT 1 3 Section 1. NEW SECTION. 809A.1 DEFINITIONS. 1 4 As used in this chapter: 1 5 1. "Conveyance" includes any vehicle, trailer, vessel, 1 6 aircraft, or other means of transportation. 1 7 2. "Interest holder" means a secured party within the 1 8 meaning of chapter 554, or the beneficiary of a security 1 9 interest or encumbrance pertaining to an interest in property, 1 10 whose interest is perfected against a good faith purchaser for 1 11 value. A person who holds property for the benefit of or as 1 12 an agent or nominee for another person, or who is not in 1 13 substantial compliance with any statute requiring an interest 1 14 in property to be recorded or reflected in public records in 1 15 order to perfect the interest against a good faith purchaser 1 16 for value, is not an interest holder. 1 17 3. "Omission" means the failure to perform an act that is 1 18 required by law. 1 19 4. "Owner" means a person, other than an interest holder, 1 20 who has an interest in property. A person who holds property 1 21 for the benefit of or for an agent or nominee for another 1 22 person, or who is not in substantial compliance with any 1 23 statute requiring an interest in property to be recorded or 1 24 reflected in public records in order to perfect the interest 1 25 against a good faith purchaser for value, is not an owner. 1 26 5. "Proceeds" means property acquired directly or 1 27 indirectly from, produced through, realized through, or caused 1 28 by an act or omission and includes any property of any kind 1 29 without reduction for expenses incurred for acquisition, 1 30 maintenance, production, or any other purpose. 1 31 6. "Property" means anything of value, and includes any 1 32 interest in property, including any benefit, privilege, claim, 1 33 or right with respect to anything of value, whether real or 1 34 personal, tangible, or intangible. 1 35 7. "Prosecuting attorney" means an attorney who is 2 1 authorized by law to appear on the behalf of the state in a 2 2 criminal case, and includes the attorney general, an assistant 2 3 attorney general, the county attorney, an assistant county 2 4 attorney, or a special or substitute prosecutor whose 2 5 appearance is approved by a court having jurisdiction to try a 2 6 defendant for the offense with which the defendant is charged. 2 7 8. "Regulated interest holder" means an interest holder 2 8 that is a business authorized to do business in this state and 2 9 is under the jurisdiction of any state or federal agency 2 10 regulating banking, insurance, real estate, or securities. 2 11 9. "Seizing agency" means a department or agency of this 2 12 state or its political subdivisions that regularly employs law 2 13 enforcement officers, and that employs the law enforcement 2 14 officer who seizes property for forfeiture, or such other 2 15 agency as the department or agency may designate by its chief 2 16 executive officer or the officer's designee. 2 17 10. "Seizure for forfeiture" means seizure of property by 2 18 a law enforcement officer, including a constructive seizure, 2 19 accompanied by an assertion by the seizing agency or by a 2 20 prosecuting attorney that the property is seized for 2 21 forfeiture, in accordance with section 809A.6. 2 22 Sec. 2. NEW SECTION. 809A.2 JURISDICTION AND VENUE. 2 23 1. The district court has jurisdiction under this chapter 2 24 over: 2 25 a. All interests in property within this state at the time 2 26 a forfeiture action is filed. 2 27 b. The interest in the property of an owner or interest 2 28 holder who is subject to personal jurisdiction in this state. 2 29 2. In addition to the venue provided for under chapter 803 2 30 or any other provision of law, a proceeding for forfeiture 2 31 under this chapter may be maintained in the county in which 2 32 any part of the property is found or in the county in which a 2 33 civil or criminal action could be maintained against an owner 2 34 or interest holder for the conduct alleged to give rise to the 2 35 forfeiture. 3 1 Sec. 3. NEW SECTION. 809A.3 CONDUCT GIVING RISE TO 3 2 FORFEITURE. 3 3 The following conduct may give rise to forfeiture: 3 4 1. An act or omission which is a public offense and which 3 5 is a serious or aggravated misdemeanor or felony. 3 6 2. An act or omission occurring outside of this state, 3 7 that would be punishable by confinement of one year or more in 3 8 the place of occurrence and would be a serious or aggravated 3 9 misdemeanor or felony if the act or omission occurred in this 3 10 state. 3 11 3. An act or omission committed in furtherance of any act 3 12 or omission described in subsection 1, which is a serious or 3 13 aggravated misdemeanor or felony including any inchoate or 3 14 preparatory offense. 3 15 Sec. 4. NEW SECTION. 809A.4 PROPERTY SUBJECT TO 3 16 FORFEITURE. 3 17 The following are subject to forfeiture: 3 18 1. All controlled substances, raw materials, controlled 3 19 substance analogs, counterfeit controlled substances, 3 20 imitation controlled substances, or precursor substances, that 3 21 have been manufactured, distributed, dispensed, possessed, or 3 22 acquired in violation of the laws of this state. 3 23 2. a. All property, except as provided in paragraph "b", 3 24 including the whole of any lot or tract of land and any 3 25 appurtenances or improvements to real property, including 3 26 homesteads that are otherwise exempt from judicial sale 3 27 pursuant to section 561.16, that is either: 3 28 (1) Furnished or intended to be furnished by a person in 3 29 an exchange that constitutes conduct giving rise to 3 30 forfeiture. 3 31 (2) Used or intended to be used in any manner or part to 3 32 facilitate conduct giving rise to forfeiture. 3 33 b. If the only conduct giving rise to forfeiture is a 3 34 violation of section 124.401, subsection 3, real property is 3 35 not subject to forfeiture and other property subject to 4 1 forfeiture pursuant to paragraph "a", subparagraph (2), may be 4 2 forfeited only pursuant to section 809A.14. 4 3 3. All proceeds of any conduct giving rise to forfeiture. 4 4 4. All weapons possessed, used, or available for use in 4 5 any manner to facilitate conduct giving rise to forfeiture. 4 6 5. Any interest or security in, claim against, or property 4 7 or contractual right of any kind affording a source of control 4 8 over any enterprise that a person has established, operated, 4 9 controlled, or conducted through, or participated in the 4 10 conduct, giving rise to forfeiture. 4 11 6. a. Any property of a person up to the value of 4 12 property of either of the following: 4 13 (1) Described in subsection 2 that the person owned or 4 14 possessed for the purpose of a use described in subsection 2. 4 15 (2) Described in subsection 3 and is proceeds of conduct 4 16 engaged in by the person or for which the person is criminally 4 17 responsible. 4 18 b. Property described in this subsection may be seized for 4 19 forfeiture pursuant to a constructive seizure or an actual 4 20 seizure pursuant to section 809A.6. Actual seizure may only 4 21 be done pursuant to a seizure warrant issued on a showing, in 4 22 addition to the showing of probable cause for the forfeiture 4 23 of the subject property, that the subject property is not 4 24 available for seizure for reasons described in section 4 25 809A.15, subsection 1, and that the value of the property to 4 26 be seized is not greater than the total value of the subject 4 27 property, or pursuant to a constructive seizure. If property 4 28 of a defendant up to the total value of all interests in the 4 29 subject property is not seized prior to final judgment in an 4 30 action under this section, the remaining balance shall be 4 31 ordered forfeited as a personal judgment against the 4 32 defendant. 4 33 Sec. 5. NEW SECTION. 809A.5 EXEMPTIONS. 4 34 1. All property, including all interests in property, 4 35 described in section 809A.4 is subject to forfeiture, except 5 1 that property is exempt from forfeiture if either of the 5 2 following occurs: 5 3 a. The owner or interest holder acquired the property 5 4 before or during the conduct giving rise to its forfeiture, 5 5 and did not know and could not reasonably have known of the 5 6 conduct or that the conduct was likely to occur, or acted 5 7 reasonably to prevent the conduct giving rise to forfeiture. 5 8 b. The owner or interest holder acquired the property, 5 9 including acquisition of proceeds of conduct giving rise to 5 10 forfeiture, after the conduct giving rise to its forfeiture 5 11 and acquired the property in good faith, for value and did not 5 12 knowingly take part in an illegal transaction. 5 13 2. Notwithstanding subsection 1, property is not exempt 5 14 from forfeiture, even though the owner or interest holder 5 15 lacked knowledge or reason to know that the conduct giving 5 16 rise to its forfeiture had occurred or was likely to occur, if 5 17 any of the following exists: 5 18 a. The person whose conduct gave rise to its forfeiture 5 19 had the authority to convey the property of the person 5 20 claiming the exemption to a good faith purchaser for value at 5 21 the time of the conduct. 5 22 b. The owner or interest holder is criminally responsible 5 23 for the conduct giving rise to its forfeiture, whether or not 5 24 the owner or interest holder is prosecuted or convicted. 5 25 c. The owner or interest holder acquired the property with 5 26 notice of its actual or constructive seizure for forfeiture 5 27 under section 809A.6, or with reason to believe that it was 5 28 subject to forfeiture. 5 29 Sec. 6. NEW SECTION. 809A.6 SEIZURE OF PROPERTY. 5 30 1. A peace officer may seize property for forfeiture upon 5 31 process issued by any district judge, district associate 5 32 judge, or magistrate. The court may issue a seizure warrant 5 33 on an affidavit under oath demonstrating that probable cause 5 34 exists for its forfeiture or that the property has been the 5 35 subject of a previous final judgment of forfeiture in the 6 1 courts of any state or of the United States. The court may 6 2 order that the property be seized on such terms and conditions 6 3 as are reasonable in the discretion of the court. The order 6 4 may be made on or in connection with a search warrant. 6 5 2. Peace officers may seize property for forfeiture 6 6 without process on probable cause to believe that the property 6 7 is subject to forfeiture under this chapter and if exigent 6 8 circumstances exist or if the property has already been seized 6 9 for a purpose other than forfeiture. 6 10 3. The seizure of inhabited residential real property for 6 11 forfeiture which is accompanied by removing or excluding its 6 12 residents shall be done pursuant to a preseizure adversarial 6 13 judicial determination of probable cause, except that this 6 14 determination may be made ex parte if the prosecuting attorney 6 15 has demonstrated exigent circumstances. 6 16 4. Property may be seized constructively by: 6 17 a. Posting notice of seizure for forfeiture or notice of 6 18 pending forfeiture on the property. 6 19 b. Giving notice pursuant to section 809A.8. 6 20 c. Filing or recording in the public records relating to 6 21 that type of property notice of seizure for forfeiture, notice 6 22 of pending forfeiture, a forfeiture lien, or a notice of lis 6 23 pendens. 6 24 Filings or recordings made pursuant to this subsection are 6 25 not subject to a filing fee or other charge. 6 26 5. The seizing agency, or the prosecuting attorney, shall 6 27 make a reasonable effort to provide notice of the seizure to 6 28 the person from whose possession or control the property was 6 29 seized. If no person is in possession or control of the 6 30 property, the seizing agency may attach the notice to the 6 31 property or to the place of its seizure or may make a 6 32 reasonable effort to deliver it to the owner of the property. 6 33 The notice shall contain a general description of the property 6 34 seized, the date and place of seizure, the name of the seizing 6 35 agency, and the address and telephone number of the seizing 7 1 officer or other person or agency from whom information about 7 2 the seizure may be obtained. 7 3 6. A person who acts in good faith and in a reasonable 7 4 manner to comply with an order of the court or a request of a 7 5 law enforcement officer is not liable to any person for acts 7 6 done in reasonable compliance with the order or request. In 7 7 addition, an inference of guilt shall not be drawn from the 7 8 fact that a person refuses a law enforcement officer's request 7 9 to deliver the property. 7 10 7. A possessory lien of a person from whose possession 7 11 property is seized is not affected by the seizure. 7 12 Sec. 7. NEW SECTION. 809A.7 PROPERTY MANAGEMENT AND 7 13 PRESERVATION. 7 14 1. Property seized for forfeiture under this chapter is 7 15 not subject to alienation, conveyance, sequestration, 7 16 attachment, or an application for return of seized property 7 17 under chapter 809. 7 18 2. The seizing agency or the prosecuting attorney may 7 19 authorize the release of the seizure for forfeiture on the 7 20 property if forfeiture or retention of actual custody is 7 21 unnecessary. 7 22 3. The prosecuting attorney may discontinue forfeiture 7 23 proceedings and transfer the action to another state or 7 24 federal agency or prosecuting attorney who has initiated 7 25 forfeiture proceedings. 7 26 4. Property seized for forfeiture under this chapter is 7 27 deemed to be in the custody of the district court subject only 7 28 to the orders and decrees of the court having jurisdiction 7 29 over the forfeiture proceedings and to the acts of the seizing 7 30 agency or the prosecuting attorney pursuant to this chapter. 7 31 5. An owner of property seized for forfeiture under this 7 32 chapter may obtain release of the property by posting with the 7 33 prosecuting attorney a surety bond or cash in an amount equal 7 34 to the full fair market value of the property as determined by 7 35 the prosecuting attorney. The state may refuse to release the 8 1 property if any of the following apply: 8 2 a. The bond tendered is inadequate. 8 3 b. The property is retained as contraband or as evidence. 8 4 c. The property is particularly altered or designed for 8 5 use in conduct giving rise to forfeiture. 8 6 If a surety bond or cash is posted and the property is 8 7 forfeited, the court shall forfeit the surety bond or cash in 8 8 lieu of the property. 8 9 6. If property is seized for forfeiture under this 8 10 chapter, the prosecuting attorney, subject to any need to 8 11 retain the property as evidence, may do any of the following: 8 12 a. Remove the property to an appropriate place designated 8 13 by the district court. 8 14 b. Place the property under constructive seizure. 8 15 c. Remove the property to a storage area for safekeeping 8 16 or, if the property is a negotiable instrument or money, 8 17 deposit it in an interest-bearing account. 8 18 d. Provide for another agency or custodian, including an 8 19 owner, secured party, mortgagee, or lienholder, to take 8 20 custody of the property and service, maintain, and operate it 8 21 as reasonably necessary to maintain its value, in any 8 22 appropriate location within the jurisdiction of the court. 8 23 e. Require the seizing agency to take custody of the 8 24 property and remove it to an appropriate location for 8 25 disposition in accordance with law. 8 26 7. As soon as practicable after seizure for forfeiture, 8 27 the seizing agency shall conduct a written inventory and 8 28 estimate the value of the property seized. 8 29 8. The court may order property which has been seized for 8 30 forfeiture sold, leased, rented, or operated to satisfy a 8 31 specified interest of any interest holder, or to preserve the 8 32 interests of any party on motion of such party. The court may 8 33 enter orders under this subsection after notice to persons 8 34 known to have an interest in the property, and an opportunity 8 35 for a hearing, if either of the following exist: 9 1 a. The interest holder has timely filed a proper claim and 9 2 is a regulated interest holder. 9 3 b. The interest holder has an interest which the 9 4 prosecuting attorney has stipulated is exempt from forfeiture. 9 5 9. A sale may be ordered under subsection 8 if the 9 6 property is liable to perish, to waste, or to be foreclosed 9 7 upon or significantly reduced in value, or if the expenses of 9 8 maintaining the property are disproportionate to its value. A 9 9 third party designated by the court shall dispose of the 9 10 property by commercially reasonable public sale and distribute 9 11 the proceeds in the following order of priority: 9 12 a. For the payment of reasonable expenses incurred in 9 13 connection with the sale or disposal. 9 14 b. For the satisfaction of exempt interests in the order 9 15 of their priority. 9 16 c. Any balance of the proceeds shall be preserved in the 9 17 actual or constructive custody of the court, in an interest- 9 18 bearing account, subject to the proceedings under this 9 19 chapter. 9 20 Sec. 8. NEW SECTION. 809A.8 COMMENCEMENT OF FORFEITURE 9 21 PROCEEDINGS &endash; PROPERTY RELEASE REQUIREMENTS. 9 22 1. Forfeiture proceedings shall be commenced as follows: 9 23 a. Property seized for forfeiture shall be released on the 9 24 request of an owner or interest holder to the owner's or 9 25 interest holder's custody, as custodian for the court, pending 9 26 further proceedings pursuant to this chapter if the 9 27 prosecuting attorney fails to do either of the following: 9 28 (1) File a notice of pending forfeiture against the 9 29 property within ninety days after seizure. 9 30 (2) File a judicial forfeiture proceeding within ninety 9 31 days after notice of pending forfeiture of property upon which 9 32 a proper claim has been timely filed pursuant to section 9 33 809A.11. 9 34 b. Within thirty days after the effective date of the 9 35 notice of pending forfeiture, an owner of or interest holder 10 1 in the property may elect to file with the prosecuting 10 2 attorney either of the following: 10 3 (1) A claim pursuant to section 809A.11. 10 4 (2) A petition for recognition of exemption pursuant to 10 5 section 809A.11, except that no petition may be filed after 10 6 the state commences a court action. 10 7 c. An extension of time for the filing of a claim shall 10 8 not be granted. 10 9 d. If a petition is timely filed, the prosecuting attorney 10 10 may delay filing a judicial forfeiture proceeding for one 10 11 hundred eighty days after the notice of pending forfeiture, 10 12 and the following procedures shall apply: 10 13 (1) The prosecuting attorney shall provide the seizing 10 14 agency and the petitioning party with a written recognition of 10 15 exemption and statement of nonexempt interests relating to any 10 16 or all interests in the property in response to each 10 17 petitioning party as follows: 10 18 (a) Within sixty days after the effective date of the 10 19 notice of pending forfeiture if the petitioner is a regulated 10 20 interest holder. The recognition of exemption shall recognize 10 21 the interest of the petitioner to the extent of documented 10 22 outstanding principal plus interest at the contract rate until 10 23 paid. 10 24 (b) Within one hundred twenty days after the effective 10 25 date of the notice of pending forfeiture for all other 10 26 petitioners. 10 27 (2) An owner or interest holder in any property declared 10 28 nonexempt may file a claim pursuant to 809A.11 within thirty 10 29 days after the effective date of the notice of the recognition 10 30 of exemption and statement of nonexempt interest. 10 31 (3) If a petitioning party does not timely file a proper 10 32 claim under paragraph "b", the recognition of exemption and 10 33 statement of nonexempt interests becomes final, and the 10 34 prosecuting attorney shall proceed as provided in sections 10 35 809A.16 and 809A.17. 11 1 (4) The prosecuting attorney may elect to proceed under 11 2 this section for judicial forfeiture at any time. 11 3 (5) If a judicial forfeiture proceeding follows the 11 4 application of procedures in this paragraph, the following 11 5 apply: 11 6 (a) A duplicate or repetitive notice is not required. If 11 7 a proper claim has been timely filed pursuant to subparagraph 11 8 (2), the claim shall be determined in a judicial forfeiture 11 9 proceeding after the commencement of such a proceeding under 11 10 sections 809A.13, 809A.14, and 809A.15. 11 11 (b) The proposed recognition of exemption and statement of 11 12 nonexempt interest responsive to all petitioning parties who 11 13 subsequently filed claims are void and are regarded as 11 14 rejected offers to compromise. 11 15 e. If a proper petition for recognition of exemption or 11 16 proper claim is not timely filed, the prosecuting attorney 11 17 shall proceed as provided in sections 809A.16 and 809A.17. 11 18 2. a. Notice of pending forfeiture, service of an in rem 11 19 complaint or notice of a recognition of exemption and 11 20 statement of nonexempt interests required under the chapter, 11 21 shall be given in accordance with one of the following: 11 22 (1) If the owner's or interest holder's name and current 11 23 address are known, by either personal service by any person 11 24 qualified to serve process or by any law enforcement officer 11 25 or by mailing a copy of the notice by restricted certified 11 26 mail to that address. 11 27 (2) If the owner's or interest holder's name and address 11 28 are required by law to be on record with the county recorder, 11 29 secretary of state, the motor vehicle division of the state 11 30 department of transportation, or another state or federal 11 31 agency to perfect an interest in the property, and the owner's 11 32 or interest holder's current address is not known, by mailing 11 33 a copy of the notice by restricted certified mail to any 11 34 address of record with any of the described agencies. 11 35 (3) If the owner's or interest holder's address is not 12 1 known and is not on record as provided in subsection 2, 12 2 paragraph "a", subparagraph (2), or the owner or interest 12 3 holder's interest is not known, by publication in one issue of 12 4 a newspaper of general circulation in the county in which the 12 5 seizure occurred. 12 6 b. Notice is effective upon the earlier of personal 12 7 service, publication, or the mailing of a written notice, 12 8 except that notice of pending forfeiture of real property is 12 9 not effective until it is recorded. Notice of pending 12 10 forfeiture shall include a description of the property, the 12 11 date and place of seizure, the conduct giving rise to 12 12 forfeiture or the violation of law alleged, and a summary of 12 13 procedures and procedural rights applicable to the forfeiture 12 14 action. 12 15 Sec. 9. NEW SECTION. 809A.9 LIENS. 12 16 1. The prosecuting attorney may file, without a filing 12 17 fee, a lien for the forfeiture of property if any of the 12 18 following apply: 12 19 a. Upon the initiation of any civil or criminal proceeding 12 20 relating to conduct giving rise to forfeiture under this 12 21 chapter. 12 22 b. Upon seizure for forfeiture. 12 23 c. In connection with a proceeding or seizure for 12 24 forfeiture in any other state under a state or federal statute 12 25 substantially similar to the relevant provisions of this 12 26 chapter. The filing constitutes notice to any person claiming 12 27 an interest in the seized property or in property owned by the 12 28 named person. 12 29 2. The lienor, as soon as practical after filing a lien, 12 30 shall furnish to any person named in the lien a notice of the 12 31 filing of the lien. Failure to furnish notice under this 12 32 subsection shall not invalidate or otherwise affect the lien. 12 33 3. The lien notice shall set forth all of the following: 12 34 a. The name of the person and, in the discretion of the 12 35 lienor, any aliases, or the name of any corporation, 13 1 partnership, trust, or other entity, including nominees, that 13 2 are owned entirely or in part, or controlled by the person. 13 3 b. The description of the seized property or the criminal 13 4 or civil proceeding that has been brought relating to conduct 13 5 giving rise to forfeiture under the chapter. 13 6 c. The amount claimed by the lienor. 13 7 d. The name of the district court where the proceeding or 13 8 action has been brought. 13 9 e. The case number of the proceeding or action if known at 13 10 the time of the filing of the lien. 13 11 4. The notice of forfeiture lien shall be filed in 13 12 accordance with the provisions of the laws of this state 13 13 relating to the type of property that is subject to the lien. 13 14 The validity and priority of the forfeiture lien shall be 13 15 determined in accordance with applicable law pertaining to 13 16 liens. 13 17 5. A lien filed pursuant to this section applies to the 13 18 described property or to one named person, any aliases, 13 19 fictitious names, or other names, including the names of any 13 20 corporation, partnership, trust, or other entity, owned 13 21 entirely or in part, or controlled by the named person, and 13 22 any interest in real property owned or controlled by the named 13 23 person. A separate forfeiture lien shall be filed for each 13 24 named person. 13 25 6. The lien notice creates, upon filing, a lien in favor 13 26 of the lienor as it relates to the property or the named 13 27 person or related entities. The lien secures the amount of 13 28 potential liability for civil judgment, and, if applicable, 13 29 the fair market value of property relating to all proceedings 13 30 under this chapter enforcing the lien. 13 31 7. The lienor may amend or release, in whole or in part, a 13 32 lien filed under this section at any time by filing, without a 13 33 filing fee, an amended lien. 13 34 8. Upon entry of judgment in its favor, the state may 13 35 proceed to execute on the lien as provided by law. 14 1 Sec. 10. NEW SECTION. 809A.10 TRUSTEES. 14 2 1. Except as provided in subsection 2, a trustee, 14 3 constructive or otherwise, who has notice that a notice of 14 4 forfeiture lien, or a notice of pending forfeiture, or a civil 14 5 forfeiture proceeding has been filed against the property or 14 6 against any person or entity for whom the person holds title 14 7 or appears as record owner, shall furnish within fifteen days, 14 8 to the seizing agency, or the prosecuting attorney all of the 14 9 following: 14 10 a. The name and address of each person or entity for whom 14 11 the property is held. 14 12 b. The description of all other property whose legal title 14 13 is held for the benefit of the named person. 14 14 c. A copy of the applicable trust agreement or other 14 15 instrument, if any, under which the trustee or other person 14 16 holds legal title or appears as record owner of the property. 14 17 2. Subsection 1 is inapplicable if any of the following 14 18 applies: 14 19 a. A trustee is acting under a recorded subdivision trust 14 20 agreement or a recorded deed of trust. 14 21 b. All of the information is of record in the public 14 22 records giving notice of liens on that type of property. 14 23 3. A trustee with notice who knowingly fails to comply 14 24 with the provisions of this section commits a class "D" 14 25 felony, and shall be fined not less than ten thousand dollars 14 26 per day for each day of noncompliance. 14 27 4. A trustee with notice who fails to comply with 14 28 subsection 1 is subject to a civil penalty of three hundred 14 29 dollars for each day of noncompliance. The court shall enter 14 30 judgment ordering payment of three hundred dollars for each 14 31 day of noncompliance from the effective date of the notice 14 32 until the required information is furnished or the state 14 33 executes its judgment lien under this section. 14 34 5. To the extent permitted by the Constitution of the 14 35 United States and the Constitution of the State of Iowa, the 15 1 duty to comply with subsection 1 shall not be excused by any 15 2 privilege or provision of law of this state or any other state 15 3 or country which authorizes or directs that testimony or 15 4 records required to be furnished pursuant to subsection 1 are 15 5 privileged or confidential or otherwise may not be disclosed. 15 6 6. A trustee who furnishes information pursuant to 15 7 subsection 1 is immune from civil liability for the release of 15 8 information. 15 9 7. An employee of the seizing agency or the prosecuting 15 10 attorney who releases the information obtained pursuant to 15 11 subsection 1, except in the proper discharge of official 15 12 duties, commits a serious misdemeanor. 15 13 8. If any information furnished pursuant to subsection 1 15 14 is offered in evidence, the court may seal that portion of the 15 15 record or may order that the information be disclosed in a 15 16 designated way. 15 17 9. A judgment or an order of payment entered pursuant to 15 18 this section becomes a judgment lien against the property 15 19 alleged to be subject to forfeiture. 15 20 Sec. 11. NEW SECTION. 809A.11 CLAIMS &endash; PETITIONS FOR 15 21 RECOGNITION OF EXEMPTION. 15 22 1. Only an owner of or interest holder in property seized 15 23 for forfeiture may file a claim, and shall do so in the manner 15 24 provided in this section. The claim shall be mailed to the 15 25 seizing agency and to the prosecuting attorney by restricted 15 26 certified mail within thirty days after the effective date of 15 27 notice of pending forfeiture. An extension of time for the 15 28 filing of a claim shall not be granted. 15 29 2. The prosecuting attorney may make an opportunity to 15 30 file a petition for recognition of exemption available by so 15 31 indicating in the notice of pending forfeiture described in 15 32 section 809A.8, subsection 2. 15 33 3. The claim or petition and all supporting documents 15 34 shall be in affidavit form, signed by the claimant under oath, 15 35 and sworn to by the affiant before one who has authority to 16 1 administer the oath, under penalty of perjury and shall set 16 2 forth all of the following: 16 3 a. The caption of the proceedings and identifying number, 16 4 if any, as set forth on the notice of pending forfeiture or 16 5 complaint, the name of the claimant or petitioner, and the 16 6 name of the prosecuting attorney who authorized the notice of 16 7 pending forfeiture or complaint. 16 8 b. The address where the claimant or petitioner will 16 9 accept mail. 16 10 c. The nature and extent of the claimant's or petitioner's 16 11 interest in the property. 16 12 d. The date, the identity of the transferor, and the 16 13 circumstances of the claimant's or petitioner's acquisition of 16 14 the interest in the property. 16 15 e. The specific provision of this chapter relied on in 16 16 asserting that the property is not subject to forfeiture. 16 17 f. All essential facts supporting each assertion. 16 18 g. The specific relief sought. 16 19 Sec. 12. NEW SECTION. 809A.12 JUDICIAL PROCEEDINGS 16 20 GENERALLY. 16 21 1. A judicial forfeiture proceeding under this chapter is 16 22 subject to the provisions of this section. 16 23 2. The court, before or after the filing of a notice of 16 24 pending forfeiture or complaint and on application of the 16 25 prosecuting attorney, may do any of the following: 16 26 a. Enter a restraining order or injunction. 16 27 b. Require the execution of satisfactory performance 16 28 bonds. 16 29 c. Create receiverships. 16 30 d. Appoint conservators, custodians, appraisers, 16 31 accountants, or trustees. 16 32 e. Take any other action to seize, secure, maintain, or 16 33 preserve the availability of property subject to forfeiture 16 34 under this chapter, including a writ of attachment or a 16 35 warrant for its seizure. 17 1 3. The court, after five days' notice to the prosecuting 17 2 attorney, may issue an order to show cause to the seizing 17 3 agency, for a hearing on the sole issue of whether probable 17 4 cause for forfeiture of the property then exists if all of the 17 5 following exist: 17 6 a. Property is seized for forfeiture or a forfeiture lien 17 7 is filed without a previous judicial determination of probable 17 8 cause, order of forfeiture, or a hearing under section 17 9 809A.14, subsection 4. 17 10 b. An owner of or interest holder in the property files an 17 11 application for a hearing within ten days after notice of its 17 12 seizure for forfeiture or lien, or actual knowledge of its 17 13 seizure, whichever is earlier. 17 14 c. The owner of or interest holder in the property 17 15 complies with the requirements for claims or petitions in 17 16 section 809A.11. 17 17 The hearing shall be held within thirty days of the order 17 18 to show cause unless continued for good cause on motion of 17 19 either party. 17 20 4. If the court finds in a hearing under subsection 3 that 17 21 no probable cause exists for forfeiture of the property, or if 17 22 the state elects not to contest the issue, the property shall 17 23 be released to the custody of the applicant, as custodian for 17 24 the court, or from the lien pending the outcome of a judicial 17 25 proceeding pursuant to this chapter. If the court finds that 17 26 probable cause for the forfeiture of the property exists, the 17 27 court shall not order the property released. 17 28 5. All applications filed within the ten-day period 17 29 prescribed by subsection 3 shall be consolidated for a single 17 30 hearing relating to each applicant's interest in the property 17 31 seized for forfeiture. 17 32 6. A defendant convicted in any criminal proceeding is 17 33 precluded from later denying the essential allegations of the 17 34 criminal offense of which the defendant was convicted in any 17 35 proceeding pursuant to this section. For the purposes of this 18 1 section, a conviction results from a verdict or a plea of 18 2 guilty. 18 3 7. In any proceeding under this chapter, if a claim is 18 4 based on an exemption provided for in this chapter, the burden 18 5 of proving the existence of the exemption is on the claimant, 18 6 and it is not necessary for the state to negate the exemption 18 7 in any application or complaint. 18 8 8. In hearings and determinations pursuant to this 18 9 section, the court may receive and consider, in making any 18 10 determination of probable cause, all evidence admissible in 18 11 determining probable cause at a preliminary hearing or by a 18 12 judge pursuant to chapter 808 together with inferences 18 13 therefrom. 18 14 9. The fact that money or a negotiable instrument was 18 15 found in close proximity to any contraband or an 18 16 instrumentality of conduct giving rise to forfeiture shall 18 17 give rise to the presumption that the money or negotiable 18 18 instrument was the proceeds of conduct giving rise to 18 19 forfeiture or was used or intended to be used to facilitate 18 20 the conduct. 18 21 10. A presumption arises that any property of a person is 18 22 subject to forfeiture under this chapter if the state 18 23 establishes, by the standard of proof applicable to that 18 24 proceeding, any of the following: 18 25 a. The person has engaged in conduct giving rise to 18 26 forfeiture. 18 27 b. The property was acquired by the person during that 18 28 period of the conduct giving rise to forfeiture or within a 18 29 reasonable time after that period. 18 30 c. No likely source for acquisition of the property exists 18 31 other than the conduct giving rise to the forfeiture. 18 32 11. A finding that property is the proceeds of conduct 18 33 giving rise to forfeiture does not require proof that the 18 34 property is the proceeds of any particular exchange or 18 35 transaction. 19 1 12. A person who acquires property subject to forfeiture 19 2 is a constructive trustee of the property, and its fruits, for 19 3 the benefit of the state, to the extent that the person's 19 4 interest is not exempt from forfeiture. If property subject 19 5 to forfeiture has been commingled with other property, the 19 6 court shall order the forfeiture of the commingled property, 19 7 and of any fruits of the commingled property, to the extent of 19 8 the property subject to forfeiture, unless an owner or 19 9 interest holder proves that specified property does not 19 10 contain property subject to forfeiture, or that the person's 19 11 interest in specified property is exempt from forfeiture. 19 12 13. Title to all property declared forfeited under this 19 13 chapter vests in the state on the commission of the conduct 19 14 giving rise to forfeiture together with the proceeds of the 19 15 property after that time. Any such property or proceeds 19 16 subsequently transferred to any person remain subject to 19 17 forfeiture and thereafter shall be ordered forfeited unless 19 18 the transferee claims and establishes in a hearing under the 19 19 provisions of the chapter that the transferee's interest is 19 20 exempt under section 809A.5. 19 21 14. An acquittal or dismissal in a criminal proceeding 19 22 shall not preclude civil proceedings under this chapter. 19 23 15. For good cause shown, on motion by the prosecuting 19 24 attorney, the court may stay discovery against the criminal 19 25 defendant and against the state in civil forfeiture 19 26 proceedings during a criminal trial for a related criminal 19 27 indictment or information alleging the same conduct, after 19 28 making provision to prevent loss to any party resulting from 19 29 the stay. Such a stay shall not be available pending an 19 30 appeal. 19 31 16. Except as otherwise provided by this chapter, all 19 32 proceedings hereunder shall be governed by the rules of civil 19 33 procedure. 19 34 17. An action brought pursuant to this chapter shall be 19 35 consolidated with any other action or proceeding brought 20 1 pursuant to this chapter or chapter 626 or 654 relating to the 20 2 same property on motion of the prosecuting attorney, and may 20 3 be consolidated on motion of an owner or interest holder. 20 4 Sec. 13. NEW SECTION. 809A.13 IN REM PROCEEDINGS. 20 5 1. A judicial in rem forfeiture proceeding may be brought 20 6 by the prosecuting attorney in addition to, or in lieu of, 20 7 civil in personam forfeiture procedures, and is also subject 20 8 to the provisions of this section. If a forfeiture is 20 9 authorized by this chapter, it shall be ordered by the court 20 10 in the in rem action. 20 11 2. An action in rem may be brought by the prosecuting 20 12 attorney pursuant to a notice of pending forfeiture or 20 13 verified complaint for forfeiture. The state may serve the 20 14 complaint in the manner provided in section 809A.8, subsection 20 15 2, or as provided by the rules of civil procedure. 20 16 3. Only an owner of or an interest holder in the property 20 17 who has timely filed a proper claim pursuant to section 20 18 809A.11 may file an answer in an action in rem. For the 20 19 purposes of this section, an owner of or interest holder in 20 20 property who has filed a claim and answer shall be referred to 20 21 as a claimant. 20 22 4. The answer shall be signed by the owner or interest 20 23 holder under penalty of perjury and shall be in accordance 20 24 with R.C.P. 72 and shall also set forth all of the following: 20 25 a. The caption of the proceedings and identifying number, 20 26 if any, as set forth on the notice of pending forfeiture or 20 27 complaint and the name of the claimant. 20 28 b. The address where the claimant will accept mail. 20 29 c. The nature and extent of the claimant's interest in 20 30 property. 20 31 d. The date, the identity of the transferor, and the 20 32 circumstances of the claimant's acquisition of the interest in 20 33 the property. 20 34 e. The specific provision of this chapter relied on in 20 35 asserting that it is not subject to forfeiture. 21 1 f. All essential facts supporting each assertion. 21 2 g. The specific relief sought. 21 3 5. The answer, accompanied by a bond to the court, shall 21 4 be filed within twenty days after service on the claimant of 21 5 the civil in rem complaint. The bond amount shall at a 21 6 minimum be the greater of two thousand five hundred dollars or 21 7 ten percent of the estimated value of the property as alleged 21 8 in the complaint, or up to a maximum of two hundred fifty 21 9 thousand dollars. In lieu of a cost bond, a claimant may 21 10 under penalty of perjury move the court to proceed pursuant to 21 11 chapter 610. Any funds received by the court as cost bonds 21 12 shall be placed in an interest-bearing account pending final 21 13 disposition of the case. The court shall approve sureties 21 14 upon condition that the claimant shall pay all costs and 21 15 expense of the forfeiture proceedings as provided in section 21 16 809A.16 or 809A.17. 21 17 6. The rules of civil procedure shall apply to discovery 21 18 by the state and any claimant who has timely answered the 21 19 complaint. 21 20 7. The forfeiture hearing shall be held without a jury and 21 21 within sixty days after service of the complaint unless 21 22 continued for good cause. The prosecuting attorney shall have 21 23 the initial burden of proving the property is subject to 21 24 forfeiture by a preponderance of the evidence. If the state 21 25 so proves the property is subject to forfeiture, the claimant 21 26 has the burden of proving that the claimant has an interest in 21 27 the property which is exempt from forfeiture under this 21 28 chapter by a preponderance of the evidence. 21 29 8. The court shall order the interest in the property 21 30 returned or conveyed to the claimant if the prosecuting 21 31 attorney fails to meet the state's burden or the claimant 21 32 establishes by a preponderance of the evidence that the 21 33 claimant has an interest that is exempt from forfeiture. The 21 34 court shall order all other property forfeited to the state 21 35 and conduct further proceedings pursuant to sections 809A.16 22 1 and 809A.17. 22 2 Sec. 14. NEW SECTION. 809A.14 IN PERSONAM PROCEEDINGS. 22 3 1. A judicial in personam forfeiture proceeding brought by 22 4 a prosecuting attorney pursuant to an in personam civil action 22 5 alleging conduct giving rise to forfeiture is subject to the 22 6 provisions of this section. If a forfeiture is authorized by 22 7 this chapter, it shall be ordered by the court in the in 22 8 personam action. This action shall be in addition to or in 22 9 lieu of in rem forfeiture procedures. 22 10 2. The court, on application of the prosecuting attorney, 22 11 may enter any order authorized by section 809A.12, or any 22 12 other appropriate order to protect the state's interest in 22 13 property forfeited or subject to forfeiture. 22 14 3. The court may issue a temporary restraining order on 22 15 application of the prosecuting attorney, if the state 22 16 demonstrates both of the following: 22 17 a. Probable cause exists to believe that in the event of a 22 18 final judgment, the property involved would be subject to 22 19 forfeiture under this chapter. 22 20 b. Provision of notice would jeopardize the availability 22 21 of the property for forfeiture. 22 22 4. Notice of the issuance of a temporary restraining order 22 23 and an opportunity for a hearing shall be given to persons 22 24 known to have an interest in the property. A hearing shall be 22 25 held at the earliest possible date in accordance with R.C.P. 22 26 326, and shall be limited to the following issues: 22 27 a. Whether a probability exists that the state will 22 28 prevail on the issue of forfeiture. 22 29 b. Whether the failure to enter the order will result in 22 30 the property being destroyed, conveyed, encumbered, removed 22 31 from the jurisdiction of the court, concealed, or otherwise 22 32 made unavailable for forfeiture. 22 33 c. Whether the need to preserve the availability of 22 34 property outweighs the hardship on any owner or interest 22 35 holder against whom the order is to be entered. 23 1 5. On a determination that a person committed conduct 23 2 giving rise to forfeiture under this chapter, the court shall 23 3 do both of the following: 23 4 a. Enter a judgment of forfeiture of the property found to 23 5 be subject to forfeiture described in the complaint. 23 6 b. Authorize the prosecuting attorney or designee or any 23 7 law enforcement officer to seize all property ordered 23 8 forfeited which was not previously seized or is not under 23 9 seizure. 23 10 6. Except as provided in section 809A.12, a person 23 11 claiming an interest in property subject to forfeiture under 23 12 this chapter shall not intervene in a trial or appeal of a 23 13 criminal action or in an in personam civil action involving 23 14 the forfeiture of the property. 23 15 7. Following the entry of an in personam forfeiture order, 23 16 the prosecuting attorney may proceed with an in rem action to 23 17 resolve the remaining interests in the property. The 23 18 following procedures shall apply: 23 19 a. The prosecuting attorney shall give notice of pending 23 20 forfeiture, in the manner provided in section 809A.8, to all 23 21 owners and interest holders who have not previously been given 23 22 notice. 23 23 b. An owner of or interest holder in property that has 23 24 been ordered forfeited and whose claim is not precluded may 23 25 file a claim as described in section 809A.11, within thirty 23 26 days after initial notice of pending forfeiture or after 23 27 notice under paragraph "a", whichever is earlier. 23 28 c. If the state does not recognize the claimed exemption, 23 29 the prosecuting attorney shall file a complaint and the court 23 30 shall hold an in rem forfeiture hearing as provided for in 23 31 section 809A.13. 23 32 d. In accordance with the findings made at the hearing, 23 33 the court may amend the order of forfeiture if it determines 23 34 that any claimant has established by a preponderance of the 23 35 evidence that the claimant has an interest in the property 24 1 which is exempt under the provision of section 809A.5. 24 2 Sec. 15. NEW SECTION. 809A.15 SUBSTITUTED ASSETS &endash; 24 3 SUPPLEMENTAL REMEDIES. 24 4 1. The court shall order the forfeiture of any other 24 5 property of a person, including a claimant, up to the value of 24 6 that person's property found by the court to be subject to 24 7 forfeiture under this chapter, if any of the following applies 24 8 to the person's forfeitable property: 24 9 a. The forfeitable property cannot be located. 24 10 b. The forfeitable property has been transferred or 24 11 conveyed to, sold to, or deposited with a third party. 24 12 c. The forfeitable property is beyond the jurisdiction of 24 13 the court. 24 14 d. The forfeitable property has been substantially 24 15 diminished in value while not in the actual physical custody 24 16 of the court, the seizing agency, the prosecuting attorney, or 24 17 their designee. 24 18 e. The forfeitable property has been commingled with other 24 19 property that cannot be divided without difficulty. 24 20 f. The forfeitable property is subject to any interest of 24 21 another person which is exempt from forfeiture under this 24 22 chapter. 24 23 2. a. The prosecuting attorney may institute a civil 24 24 action in district court against any person with notice or 24 25 actual knowledge who destroys, conveys, encumbers, removes 24 26 from the jurisdiction of the court, conceals, or otherwise 24 27 renders unavailable property alleged to be subject to 24 28 forfeiture if either of the following apply: 24 29 (1) A forfeiture lien or notice of pending forfeiture has 24 30 been filed and notice given pursuant to section 809A.8. 24 31 (2) A complaint pursuant to section 809A.13 alleging 24 32 conduct giving rise to forfeiture has been filed and notice 24 33 given pursuant to such section 809A.8. 24 34 b. The court shall enter a final judgment in an amount 24 35 equal to the value of the lien not to exceed the fair market 25 1 value of the property, or if a lien, does not exist in an 25 2 amount equal to the fair market value of the property, 25 3 together with reasonable investigative expenses and attorney's 25 4 fees. 25 5 c. If a civil proceeding under this chapter is pending in 25 6 court, the action shall be heard by that court. 25 7 Sec. 16. NEW SECTION. 809A.16 DISPOSITION OF PROPERTY. 25 8 1. If notice of pending forfeiture is properly served in 25 9 an action in rem or in personam in which personal property, 25 10 having an estimated value of five thousand dollars or less, is 25 11 seized, and no claim opposing forfeiture is filed within 25 12 thirty days of service of such notice, the prosecuting 25 13 attorney shall prepare a written declaration of forfeiture of 25 14 the subject property to the state and allocate the property 25 15 according to the provisions of section 809A.17. 25 16 2. Within one hundred eighty days of the date of a 25 17 declaration of forfeiture, an owner or interest holder in 25 18 property declared forfeited pursuant to subsection 1, may 25 19 petition the court to have the declaration of forfeiture set 25 20 aside, after making a prima facie showing that the state 25 21 failed to serve proper notice as provided by section 809A.13. 25 22 Upon such a showing the court shall allow the state to 25 23 demonstrate by a preponderance of the evidence that notice was 25 24 properly served. If the state fails to meet its burden of 25 25 proof, the court may order the declaration of forfeiture set 25 26 aside. The state may proceed with judicial proceedings 25 27 pursuant to this chapter. 25 28 3. Except as provided in subsection 1, if a proper claim 25 29 is not timely filed in an action in rem, or if a proper answer 25 30 is not timely filed in response to a complaint, the 25 31 prosecuting attorney may apply for an order of forfeiture and 25 32 an allocation of forfeited property pursuant to section 25 33 809A.17. Under such circumstance and upon a determination by 25 34 the court that the state's written application established the 25 35 court's jurisdiction, the giving of proper notice, and facts 26 1 sufficient to show probable cause for forfeiture, the court 26 2 shall order the property forfeited to the state. 26 3 4. After final disposition of all claims timely filed in 26 4 an action in rem, or after final judgment and disposition of 26 5 all claims timely filed in an action in personam, the court 26 6 shall enter an order that the state has clear title to the 26 7 forfeited property interest. Title to the forfeited property 26 8 interest and its proceeds shall be deemed to have vested in 26 9 the state on the commission of the conduct giving rise to the 26 10 forfeiture under this chapter. 26 11 5. The court, on application of the prosecuting attorney, 26 12 may release or convey forfeited personal property to a 26 13 regulated interest holder if any of the following applies: 26 14 a. The prosecuting attorney, in the attorney's discretion, 26 15 has recognized in writing that the regulated interest holder 26 16 has an interest in the property and informs the court that the 26 17 property interest is exempt from forfeiture. 26 18 b. The regulated interest holder's interest was acquired 26 19 in the regular course of business as a regulated interest 26 20 holder. 26 21 c. The amount of the regulated interest holder's 26 22 encumbrance is readily determinable and has been reasonably 26 23 established by proof made available by the prosecuting 26 24 attorney to the court. 26 25 d. The encumbrance held by the regulated interest holder 26 26 seeking possession is the only interest exempted from 26 27 forfeiture and the order forfeiting the property to the state 26 28 transferred all of the rights of the owner prior to 26 29 forfeiture, including rights to redemption, to the state. 26 30 6. After the court's release or conveyance under 26 31 subsection 5, the regulated interest holder shall dispose of 26 32 the property by a commercially reasonable public sale. Within 26 33 ten days of disposition the regulated interest holder shall 26 34 tender to the state the amount received at disposition less 26 35 the amount of the regulated interest holder's encumbrance and 27 1 reasonable expense incurred by the interest holder in 27 2 connection with the sale or disposal. For the purposes of 27 3 this section, "commercially reasonable" means a sale or 27 4 disposal that would be commercially reasonable under chapter 27 5 554, article 7. 27 6 7. On order of the court or declaration of forfeiture 27 7 forfeiting the subject property, the state may transfer good 27 8 and sufficient title to any subsequent purchaser or 27 9 transferee. The title shall be recognized by all courts and 27 10 agencies of this state, and any political subdivision. On 27 11 entry of judgment in favor of a person claiming an interest in 27 12 the property that is subject to forfeiture proceedings under 27 13 this chapter, the court shall enter an order that the property 27 14 or interest in property shall be released or delivered 27 15 promptly to that person free of liens and encumbrances under 27 16 this chapter, and that the person's cost bond shall be 27 17 discharged. 27 18 8. Upon motion by the prosecuting attorney, if it appears 27 19 after a hearing that reasonable cause existed for the seizure 27 20 for forfeiture or for the filing of the notice of pending 27 21 forfeiture or complaint, the court shall find all of the 27 22 following: 27 23 a. That reasonable cause existed, or that the action was 27 24 taken under a reasonable good faith belief that it was proper. 27 25 b. That the claimant is not entitled to costs or damages. 27 26 c. That the person or seizing agency who made the seizure 27 27 and the prosecuting attorney are not liable to suit or 27 28 judgment for the seizure, suit, or prosecution. 27 29 9. The court shall order a claimant who fails to establish 27 30 that a substantial portion of the claimant's interest is 27 31 exempt from forfeiture under section 809A.5, to pay the 27 32 reasonable costs and expenses of all of the following: 27 33 a. Of any claimant who established that the claimant's 27 34 entire interest is exempt from forfeiture under section 27 35 809A.5. 28 1 b. Of the state for the investigation and prosecution of 28 2 the matter, including reasonable attorney's fees, in 28 3 connection with that claimant. 28 4 Sec. 17. NEW SECTION. 809A.17 DISPOSITION OF FORFEITED 28 5 PROPERTY. 28 6 1. A person having control over forfeited property shall 28 7 communicate that fact to the attorney general or the attorney 28 8 general's designee. 28 9 2. Forfeited property not needed as evidence in a criminal 28 10 case shall be delivered to the department of justice, or, upon 28 11 written authorization of the attorney general or the attorney 28 12 general's designee, the property may be destroyed, sold, or 28 13 delivered to an appropriate agency for disposal in accordance 28 14 with this section. 28 15 3. Forfeited property may be used by the department of 28 16 justice in the enforcement of the criminal law. The 28 17 department may give, sell, or trade property to any other 28 18 state agency or to any other law enforcement agency within the 28 19 state if, in the opinion of the attorney general, it will 28 20 enhance law enforcement within the state. 28 21 4. Forfeited property which is not used by the department 28 22 of justice in the enforcement of the law may be requisitioned 28 23 by the department of public safety or any law enforcement 28 24 agency within the state for use in enforcing the criminal laws 28 25 of this state. Forfeited property not requisitioned may be 28 26 delivered to the director of the department of general 28 27 services to be disposed of in the same manner as property 28 28 received pursuant to section 18.15. 28 29 5. Notwithstanding subsection 1, 2, 3, or 4, the following 28 30 apply: 28 31 a. Forfeited property which is a controlled substance or a 28 32 simulated, counterfeit, or imitation-controlled substance 28 33 shall be disposed of as provided in section 124.506. 28 34 b. Forfeited property which is a weapon or ammunition 28 35 shall be deposited with the department of public safety to be 29 1 disposed of in accordance with the rules of the department. 29 2 All weapons or ammunition may be held for use in law 29 3 enforcement, testing, or comparison by the criminalistics 29 4 laboratory, or destroyed. Ammunition and firearms which are 29 5 not illegal and are not offensive weapons as defined by 29 6 section 724.1 may be sold by the department as provided in 29 7 section 809.21. 29 8 c. Material in violation of chapter 728 shall be 29 9 destroyed. 29 10 d. Property subject to the rules of the natural resource 29 11 commission shall be delivered to that commission for disposal 29 12 in accordance with its rules. 29 13 Sec. 18. NEW SECTION. 809A.18 POWERS OF ENFORCEMENT 29 14 PERSONNEL. 29 15 1. A prosecuting attorney may conduct an investigation of 29 16 any conduct that gives rise to forfeiture. The prosecuting 29 17 attorney is authorized, before the commencement of a 29 18 proceeding or action under this chapter, to subpoena 29 19 witnesses, and compel their attendance, examine them under 29 20 oath, and require the production of documentary evidence for 29 21 inspection, reproducing, or copying. Except as otherwise 29 22 provided by this section, the prosecuting attorney shall 29 23 proceed under this subsection with the same powers and 29 24 limitations, and judicial oversight and enforcement, and in 29 25 the manner provided by this chapter and by the Iowa rules of 29 26 civil procedure. Any person compelled to appear under a 29 27 demand for oral testimony under this section may be 29 28 accompanied, represented, and advised by counsel. 29 29 2. The examination of all witnesses under this section 29 30 shall be conducted by the prosecuting attorney before an 29 31 officer authorized to administer oaths. The testimony shall 29 32 be taken by a certified shorthand reporter or by a sound 29 33 recording device and shall be transcribed or otherwise 29 34 preserved. The prosecuting attorney may exclude from the 29 35 examination all persons except the witness, the witness' 30 1 counsel, the officer before whom the testimony is to be taken, 30 2 law enforcement officials, and a certified shorthand reporter. 30 3 Prior to oral examination, the person shall be advised of the 30 4 person's right to refuse to answer any questions on the basis 30 5 of the privilege against self-incrimination. The examination 30 6 shall be conducted in a manner consistent with the rules 30 7 dealing with the taking of depositions. 30 8 3. Except as otherwise provided in this section, prior to 30 9 the filing of a civil or criminal proceeding or action 30 10 relating to such a proceeding, documentary material, 30 11 transcripts, or oral testimony, in the possession of the 30 12 prosecuting attorney, shall not be available for examination 30 13 by any individual other than a law enforcement official or 30 14 agent of such official without the consent of the person who 30 15 produced the material, transcripts, or oral testimony. 30 16 4. A person shall not knowingly remove from any place, 30 17 conceal, withhold, destroy, mutilate, alter, or by any other 30 18 means falsify any documentary material that is the subject of 30 19 a subpoena, with intent to avoid, evade, prevent, or obstruct 30 20 compliance in whole or in part by any person with any duly 30 21 served subpoena of the prosecuting attorney under this 30 22 section. A violation of this subsection is a class "D" 30 23 felony. The prosecuting attorney shall investigate and 30 24 prosecute suspected violations of this subsection. 30 25 5. Acts or omissions by the prosecuting attorneys in the 30 26 course of their duties in the enforcement of any of the 30 27 provisions of this chapter, including provision of any legal 30 28 services prior to charging, complaint, or seizure, are 30 29 prosecutorial and shall not subject the attorneys or their 30 30 principals to civil liability. 30 31 Sec. 19. NEW SECTION. 809A.19 IMMUNITY ORDERS. 30 32 1. If a person is or may be called to produce evidence at 30 33 a deposition, hearing, or trial under this chapter or at an 30 34 investigation brought by the prosecuting attorney under 30 35 section 809A.18, the district court in which the deposition, 31 1 hearing, trial, or investigation is or may be held shall, upon 31 2 certification in writing of a request of the prosecuting 31 3 attorney, issue an order, ex parte or after a hearing, 31 4 requiring the person to produce evidence, notwithstanding that 31 5 person's refusal to do so on the basis of the privilege 31 6 against self-incrimination. 31 7 2. The prosecuting attorney may certify in writing a 31 8 request for an ex parte order under subsection 1 if in the 31 9 prosecuting attorney's judgment both of the following apply: 31 10 a. The production of the evidence may be necessary to the 31 11 public interest. 31 12 b. The person has refused or is likely to refuse to 31 13 produce evidence on the basis of the privilege against self- 31 14 incrimination. 31 15 3. A person shall not refuse to comply with an order 31 16 issued under subsection 1 on the basis of a self-incrimination 31 17 privilege. If the person refuses to comply with the order 31 18 after being informed of its existence by the presiding 31 19 officer, the person may be compelled or punished by the 31 20 district court issuing an order for civil or criminal 31 21 contempt. 31 22 4. The production of evidence compelled by order issued 31 23 under subsection 1, and any information directly or indirectly 31 24 derived from the production of evidence, shall not be used 31 25 against the person in a subsequent criminal case, except in a 31 26 prosecution for perjury, false swearing, or an offense 31 27 otherwise involving a failure to comply with the order. 31 28 Sec. 20. NEW SECTION. 809A.20 STATUTE OF LIMITATIONS. 31 29 A civil action under this chapter shall be commenced within 31 30 seven years after the last conduct giving rise to forfeiture 31 31 or the cause of action becomes known or should have become 31 32 known, excluding any time during which either the property or 31 33 defendant is out of the state or in confinement, or during 31 34 which criminal proceedings relating to the same conduct are 31 35 pending. 32 1 Sec. 21. NEW SECTION. 809A.21 SUMMARY FORFEITURE OF 32 2 CONTROLLED SUBSTANCES. 32 3 Controlled substances included in chapter 124 which are 32 4 contraband and any controlled substance whose owners are 32 5 unknown are summarily forfeited to the state. The court may 32 6 include in any judgment under this chapter an order forfeiting 32 7 any controlled substance involved in the conduct giving rise 32 8 to forfeiture to the extent of the defendant's interest. 32 9 Sec. 22. NEW SECTION. 809A.22 BAR TO COLLATERAL ACTION. 32 10 A person claiming an interest in property subject to 32 11 forfeiture shall not commence or maintain any action against 32 12 the state concerning the validity of the alleged interest 32 13 other than as provided in this chapter. 32 14 Sec. 23. NEW SECTION. 809A.23 STATUTORY CONSTRUCTION. 32 15 The provisions of this chapter shall be liberally construed 32 16 to effectuate its remedial purposes. Civil remedies under 32 17 this chapter shall be supplemental and not mutually exclusive. 32 18 The civil remedies do not preclude and are not precluded by 32 19 any other provision of law. 32 20 Sec. 24. NEW SECTION. 809A.24 UNIFORMITY OF APPLICATION. 32 21 1. The provisions of this chapter shall be applied and 32 22 construed to effectuate its general purpose to make uniform 32 23 the law with respect to the subject of this chapter among 32 24 states enacting this law. 32 25 2. The attorney general may enter into reciprocal 32 26 agreements with the attorney general or chief prosecuting 32 27 attorney of any state to effectuate the purposes of this 32 28 chapter. 32 29 DIVISION II 32 30 IOWA ONGOING CRIMINAL CONDUCT ACT 32 31 Sec. 25. NEW SECTION. 706A.1 DEFINITIONS. 32 32 In this chapter, unless the context otherwise requires: 32 33 1. "Criminal network" means any combination of persons 32 34 engaging, for financial gain on a continuing basis, in conduct 32 35 which is an indictable offense under the laws of this state 33 1 regardless of whether such conduct is charged or indicted. As 33 2 used in this subsection, persons combine if they collaborate 33 3 or act in concert in carrying on or furthering the activities 33 4 or purposes of a network even though such persons may not know 33 5 each other's identity, membership in the network changes from 33 6 time to time, or one or more members of the network stand in a 33 7 wholesaler-retailer, service provider, or other arm's length 33 8 relationship with others as to conduct in the furtherance of 33 9 the financial goals of the network. 33 10 2. "Enterprise" includes any sole proprietorship, 33 11 partnership, corporation, trust, or other legal entity, or any 33 12 unchartered union, association, or group of persons associated 33 13 in fact although not a legal entity, and includes unlawful as 33 14 well as lawful enterprises. 33 15 3. "Proceeds" means property acquired or derived directly 33 16 or indirectly from, produced through, realized through, or 33 17 caused by an act or omission and includes any property of any 33 18 kind. 33 19 4. "Property" means anything of value, and includes any 33 20 interest in property, including any benefit, privilege, claim, 33 21 or right with respect to anything of value, whether real or 33 22 personal, tangible, or intangible, without reduction for 33 23 expenses incurred for acquisition, maintenance, production, or 33 24 any other purpose. 33 25 5. "Specified unlawful activity" means any act, including 33 26 any preparatory or completed offense, committed for financial 33 27 gain on a continuing basis, that is punishable as an 33 28 indictable offense under the laws of the state in which it 33 29 occurred and under the laws of this state. 33 30 Sec. 26. NEW SECTION. 706A.2 VIOLATIONS. 33 31 1. SPECIFIED UNLAWFUL ACTIVITY INFLUENCED ENTERPRISES. 33 32 a. It is unlawful for any person who has knowingly 33 33 received any proceeds of specified unlawful activity to use or 33 34 invest, directly or indirectly, any part of such proceeds in 33 35 the acquisition of any interest in any enterprise or any real 34 1 property, or in the establishment or operation of any 34 2 enterprise. 34 3 b. It is unlawful for any person to knowingly acquire or 34 4 maintain, directly or indirectly, any interest in or control 34 5 of any enterprise or real property through specified unlawful 34 6 activity. 34 7 c. It is unlawful for any person to knowingly conduct the 34 8 affairs of any enterprise through specified unlawful activity 34 9 or to knowingly participate, directly, or indirectly, in any 34 10 enterprise that the person knows is being conducted through 34 11 specified unlawful activity. 34 12 d. It is unlawful for any person to conspire or attempt to 34 13 violate or to solicit or facilitate the violations of the 34 14 provisions of paragraphs "a", "b", or "c". 34 15 2. FACILITATION OF A CRIMINAL NETWORK. It is unlawful for 34 16 a person acting with knowledge of the financial goals and 34 17 criminal objectives of a criminal network to knowingly 34 18 facilitate criminal objectives of the network by doing any of 34 19 the following: 34 20 a. Engaging in violence or intimidation or inciting or 34 21 inducing another to engage in violence or intimidation. 34 22 b. Inducing or attempting to induce a person believed to 34 23 have been called or who may be called as a witness to 34 24 unlawfully withhold any testimony, testify falsely, or absent 34 25 themselves from any official proceeding to which the potential 34 26 witness has been legally summoned. 34 27 c. Attempting by means of bribery, misrepresentation, 34 28 intimidation, or force to obstruct, delay, or prevent the 34 29 communication of information or testimony relating to a 34 30 violation of any criminal statute to a peace officer, 34 31 magistrate, prosecutor, grand jury, or petit jury. 34 32 d. Injuring or damaging another person's body or property 34 33 because that person or any other person gave information or 34 34 testimony to a peace officer, magistrate, prosecutor, or grand 34 35 jury. 35 1 e. Attempting to suppress by an act of concealment, 35 2 alteration, or destruction any physical evidence that might 35 3 aid in the discovery, apprehension, prosecution, or conviction 35 4 of any person. 35 5 f. Making any property available to a member of the 35 6 criminal network. 35 7 g. Making any service other than legal services available 35 8 to a member of the criminal network. 35 9 h. Inducing or committing any act or omission by a public 35 10 servant in violation of the public servant's official duty. 35 11 i. Obtaining any benefit for a member of a criminal 35 12 network by means of false or fraudulent pretenses, 35 13 representation, promises or material omissions. 35 14 j. Making a false sworn statement regarding a material 35 15 issue, believing it to be false, or making any statement, 35 16 believing it to be false, regarding a material issue to a 35 17 public servant in connection with an application for any 35 18 benefit, privilege, or license, or in connection with any 35 19 official investigation or proceeding. 35 20 3. MONEY LAUNDERING. It is unlawful for a person to 35 21 commit money laundering as defined in chapter 706B. 35 22 4. ACTS OF SPECIFIED UNLAWFUL ACTIVITY. It is unlawful 35 23 for a person to commit specified unlawful activity as defined 35 24 in section 706A.1. 35 25 5. NEGLIGENT EMPOWERMENT OF SPECIFIED UNLAWFUL ACTIVITY. 35 26 a. It is unlawful for a person to negligently allow 35 27 property owned or controlled by the person or services 35 28 provided by the person, other than legal services, to be used 35 29 to facilitate specified unlawful activity, whether by 35 30 entrustment, loan, rent, lease, bailment, or otherwise. 35 31 b. Damages for negligent empowerment of specified unlawful 35 32 activity shall include all reasonably foreseeable damages 35 33 proximately caused by the specified unlawful activity, 35 34 including, in a case brought or intervened in by the state, 35 35 the costs of investigation and criminal and civil litigation 36 1 of the specified unlawful activity incurred by the government 36 2 for the prosecution and defense of any person involved in the 36 3 specified unlawful activity, and the imprisonment, probation, 36 4 parole, or other expense reasonably necessary to detain, 36 5 punish, and rehabilitate any person found guilty of the 36 6 specified unlawful activity, except for the following: 36 7 (1) If the person empowering the specified unlawful 36 8 activity acted only negligently and was without knowledge of 36 9 the nature of the activity and could not reasonably have known 36 10 of the unlawful nature of the activity or that it was likely 36 11 to occur, damages shall be limited to the greater of the 36 12 following: 36 13 (a) The cost of the investigation and litigation of the 36 14 person's own conduct plus the value of the property or service 36 15 involved as of the time of its use to facilitate the specified 36 16 unlawful activity. 36 17 (b) All reasonably foreseeable damages to any person, 36 18 except any person responsible for the specified unlawful 36 19 activity, and to the general economy and welfare of the state 36 20 proximately caused by the person's own conduct. 36 21 (2) If the property facilitating the specified unlawful 36 22 activity was taken from the possession or control of the 36 23 person without that person's knowledge and against that 36 24 person's will in violation of the criminal law, damages shall 36 25 be limited to reasonably foreseeable damages to any person, 36 26 except persons responsible for the taking or the specified 36 27 unlawful activity, and to the general economy and welfare of 36 28 the state proximately caused by the person's negligence, if 36 29 any, in failing to prevent its taking. 36 30 (3) If the person was aware of the possibility that the 36 31 property or service would be used to facilitate some form of 36 32 specified unlawful activity and acted to prevent the unlawful 36 33 use, damages shall be limited to reasonably foreseeable 36 34 damages to any person, except any person responsible for the 36 35 specified unlawful activity, and to the general economy and 37 1 welfare of the state proximately caused by the person's 37 2 failure, if any, to act reasonably to prevent the unlawful 37 3 use. 37 4 (4) The plaintiff shall carry the burden of proof by a 37 5 preponderance of the evidence that the specified unlawful 37 6 activity occurred and was facilitated by the property or 37 7 services. The defendant shall have the burden of proof by a 37 8 preponderance of the evidence as to circumstances constituting 37 9 lack of negligence and on the limitations on damages in this 37 10 subsection. 37 11 Sec. 27. NEW SECTION. 706A.3 CIVIL REMEDIES &endash; ACTIONS. 37 12 1. The prosecuting attorney or an aggrieved person may 37 13 institute civil proceedings against any person in district 37 14 court seeking relief from conduct constituting a violation of 37 15 this chapter or to prevent, restrain, or remedy such 37 16 violation. 37 17 2. The district court has jurisdiction to prevent, 37 18 restrain, or remedy such violations by issuing appropriate 37 19 orders. Prior to a determination of liability such orders may 37 20 include, but are not limited to, entering restraining orders 37 21 or injunctions, requiring the execution of satisfactory 37 22 performance bonds, creating receiverships, and enforcing 37 23 constructive trusts in connection with any property or 37 24 interest subject to damages, forfeiture, or other remedies or 37 25 restraints pursuant to this chapter. 37 26 3. If the plaintiff in such a proceeding proves the 37 27 alleged violation by a preponderance of the evidence, the 37 28 district court, after making due provision for the rights of 37 29 innocent persons, shall grant relief by entering any 37 30 appropriate order or judgment, including any of the following: 37 31 a. Ordering any defendant to divest the defendant of any 37 32 interest in any enterprise, or in any real property. 37 33 b. Imposing reasonable restrictions upon the future 37 34 activities or investments of any defendant, including, but not 37 35 limited to, prohibiting any defendant from engaging in the 38 1 same type of endeavor as any enterprise in which the defendant 38 2 was engaged in a violation of this chapter. 38 3 c. Ordering the dissolution or reorganization of any 38 4 enterprise. 38 5 d. Ordering the payment of all reasonable costs and 38 6 expenses of the investigation and prosecution of any 38 7 violation, civil or criminal, including reasonable attorney 38 8 fees in the trial and appellate courts. Such payments 38 9 received by the state, by judgment, settlement, or otherwise, 38 10 shall be considered forfeited property and disposed of 38 11 pursuant to section 809A.17. 38 12 e. Ordering the forfeiture of any property subject to 38 13 forfeiture under chapter 809A, pursuant to the provisions and 38 14 procedures of that chapter. 38 15 f. Ordering the suspension or revocation of any license, 38 16 permit, or prior approval granted to any person by any agency 38 17 of the state. 38 18 g. Ordering the surrender of the certificate of existence 38 19 of any corporation organized under the laws of this state or 38 20 the revocation of any certificate authorizing a foreign 38 21 corporation to conduct business within this state, upon 38 22 finding that for the prevention of future violations, the 38 23 public interest requires the certificate of the corporation to 38 24 be surrendered and the corporation dissolved or the 38 25 certificate revoked. 38 26 4. Relief under subsection 3, paragraphs "e", "f", and "g" 38 27 shall not be granted in civil proceedings instituted by an 38 28 aggrieved person unless the prosecuting attorney has 38 29 instituted the proceedings or intervened. In any action under 38 30 this section brought by the state or in which the state has 38 31 intervened, the state may employ any of the powers of seizure 38 32 and restraint of property as are proved for forfeiture actions 38 33 under chapter 809A, or as are provided for the collection of 38 34 taxes payable and past due, and whose collection has been 38 35 determined to be in jeopardy. 39 1 5. In a proceeding initiated under this section, 39 2 injunctive relief shall be granted in conformity with the 39 3 principles that govern the granting of relief from injury or 39 4 threatened injury in other civil cases, but no showing of 39 5 special or irreparable injury is required. Pending final 39 6 determination of a proceeding initiated under this section, a 39 7 temporary restraining order or a preliminary injunction may be 39 8 issued upon a showing of immediate danger of significant 39 9 injury, including the possibility that a judgment for money 39 10 damages might be difficult to execute, and, in a proceeding 39 11 initiated by a nongovernmental aggrieved person, upon the 39 12 execution of proper bond against injury for an injunction 39 13 improvidently granted. 39 14 6. Any person who is in possession or control of proceeds 39 15 of any violation of this chapter, is an involuntary trustee 39 16 and holds the property in constructive trust for the benefit 39 17 of the person entitled to remedies under this chapter, unless 39 18 the holder acquired the property as a bona fide purchaser for 39 19 value who was not knowingly taking part in an illegal 39 20 transaction. 39 21 7. Any person whose business or property is directly or 39 22 indirectly injured by conduct constituting a violation of this 39 23 chapter, by any person, may bring a civil action, subject to 39 24 the in pari delicto defense and shall recover threefold the 39 25 actual damages sustained and the costs and expenses of the 39 26 investigation and prosecution of the action including 39 27 reasonable attorney fees in the trial and appellate courts. 39 28 Damages shall not include pain and suffering. Any person 39 29 injured shall have a claim to any property against which any 39 30 fine, or against which treble damages under subsection 10 or 39 31 11 may be imposed, superior to any right or claim of the state 39 32 to the property, up to the value of actual damages and costs 39 33 awarded in an action under this subsection. The state shall 39 34 have a right of subrogation to the extent that an award made 39 35 to a person so injured is satisfied out of property against 40 1 which any fine or civil remedy in favor of the state may be 40 2 imposed. 40 3 8. a. If liability of a legal entity is based on the 40 4 conduct of another, through respondent superior or otherwise, 40 5 the legal entity shall not be liable for more than actual 40 6 damages and costs, including a reasonable attorney's fee, if 40 7 the legal entity affirmatively shows by a preponderance of the 40 8 evidence that both of the following apply: 40 9 (1) The conduct was not engaged in, authorized, solicited, 40 10 commanded, or recklessly tolerated by the legal entity, by the 40 11 directors of the legal entity or by a high managerial agent of 40 12 the legal entity acting within the scope of employment. 40 13 (2) The conduct was not engaged in by an agent of the 40 14 legal entity acting within the scope of employment and in 40 15 behalf of the legal entity. 40 16 b. For the purposes of this subsection: 40 17 (1) "Agent" means any officer, director, or employee of 40 18 the legal entity, or any other person who is authorized to act 40 19 in behalf of the legal entity. 40 20 (2) "High managerial agent" means any officer of the legal 40 21 entity or, in the case of a partnership, a partner, or any 40 22 other agent in a position of comparable authority with respect 40 23 to the formulation of policy of the legal entity. 40 24 (3) Notwithstanding any other provision of law, any 40 25 pleading, motion, or other paper filed by a nongovernmental 40 26 aggrieved party in connection with a proceeding or action 40 27 under subsection 7 shall be verified. If such aggrieved 40 28 person is represented by an attorney, such pleading, motion, 40 29 or other paper shall be signed by at least one attorney of 40 30 record in the attorney's individual name, whose address shall 40 31 be stated. 40 32 If such pleading, motion, or other paper includes an 40 33 averment of fraud, coercion, accomplice, respondent superior, 40 34 conspiratorial, enterprise, or other vicarious accountability, 40 35 it shall state, insofar as practicable, the circumstances with 41 1 particularity. The verification and the signature by an 41 2 attorney required by this subsection shall constitute a 41 3 certification by the signor that the attorney has carefully 41 4 read the pleading, motion, or other paper and, based on a 41 5 reasonable inquiry, believes that all of the following exist: 41 6 (a) It is well grounded in fact. 41 7 (b) It is warranted by existing law, or a good faith 41 8 argument for the extension, modification, or reversal of 41 9 existing law. 41 10 (c) It is not made for an improper purpose, including to 41 11 harass, to cause unnecessary delay, or to impose a needless 41 12 increase in the cost of litigation. 41 13 The court may, after a hearing and appropriate findings of 41 14 fact, impose upon any person who verified the complaint, 41 15 cross-claim or counterclaim, or any attorney who signed it in 41 16 violation of this subsection, or both, a fit and proper 41 17 sanction, which may include an order to pay to the other party 41 18 or parties the amount of the reasonable expenses incurred 41 19 because of the complaint or claim, including reasonable 41 20 attorney fees. If the court determines that the filing of a 41 21 complaint or claim under subsection 7 by a nongovernmental 41 22 party was frivolous in whole or in part, the court shall award 41 23 double the actual expenses, including attorney fees, incurred 41 24 because of the frivolous portion of the complaint or claim. 41 25 9. Upon the filing of a complaint, cross-claim, or 41 26 counterclaim under this section, an aggrieved person, as a 41 27 jurisdictional prerequisite, shall immediately notify the 41 28 attorney general of its filing and serve one copy of the 41 29 pleading on the attorney general. Service of the notice on 41 30 the attorney general does not limit or otherwise affect the 41 31 right of the state to maintain an action under this section or 41 32 intervene in a pending action and does not authorize the 41 33 aggrieved person to name the state or the attorney general as 41 34 a party to the action. The attorney general, upon timely 41 35 application, may intervene or appear as amicus curiae in any 42 1 civil proceeding or action brought under this section if the 42 2 attorney general certifies that, in the opinion of the 42 3 attorney general, the proceeding or action is of general 42 4 public importance. In any proceeding or action brought under 42 5 this section by an aggrieved person, the state shall be 42 6 entitled to the same relief as if it had instituted the 42 7 proceeding or action. 42 8 10. a. Any prosecuting attorney may bring a civil action 42 9 on behalf of a person whose business or property is directly 42 10 or indirectly injured by conduct constituting a violation of 42 11 this chapter, and shall recover threefold the damages 42 12 sustained by such person and the costs and expenses of the 42 13 investigation and prosecution of the action, including 42 14 reasonable attorney fees in the trial and appellate courts. 42 15 The court shall exclude from the amount of monetary relief 42 16 awarded any amount of monetary relief which is any of the 42 17 following: 42 18 (1) Which duplicates amounts which have been awarded for 42 19 the same injury. 42 20 (2) Which is properly allocable to persons who have 42 21 excluded their claims under paragraph "c". 42 22 b. In any action brought under this subsection, the 42 23 prosecuting attorney, at such times, in such manner, and with 42 24 such content as the court may direct, shall cause notice of 42 25 the action to be given by publication. If the court finds 42 26 that notice given solely by publication would deny due process 42 27 to any person, the court may direct further notice to such 42 28 person according to the circumstances of the case. 42 29 c. A person on whose behalf an action is brought under 42 30 this subsection may elect to exclude from adjudication the 42 31 portion of the state claim for monetary relief attributable to 42 32 the person by filing notice of such election within such time 42 33 as specified in the notice given under this subsection. 42 34 d. A final judgement in an action under this subsection 42 35 shall preclude any claim under this subsection by a person on 43 1 behalf of whom such action was brought who fails to give 43 2 notice of exclusion within the times specified in the notice 43 3 given under paragraph "b". 43 4 e. An action under this subsection on behalf of a person 43 5 other than the state shall not be dismissed or compromised 43 6 without the approval of the court, and notice of any proposed 43 7 dismissal or compromise shall be given in such manner as the 43 8 court directs. 43 9 11. The attorney general may bring a civil action as 43 10 parens patriae on behalf of the general economy, resources, 43 11 and welfare of this state, and shall recover threefold the 43 12 proceeds acquired, maintained, produced, or realized by or on 43 13 behalf of the defendant by reason of a violation of this 43 14 chapter, plus the costs and expenses of the investigation and 43 15 prosecution of the action, including reasonable attorney fees 43 16 in the trial and appellate courts. 43 17 a. A person who has knowingly conducted or participated in 43 18 the conduct of an enterprise in violation of section 706A.2, 43 19 subsection 1, paragraph "c" is also jointly and severally 43 20 liable for the greater of threefold the damage sustained 43 21 directly or indirectly by the state by reason of conduct in 43 22 furtherance of the violation or threefold the total of all 43 23 proceeds acquired, maintained, produced, or realized by, or on 43 24 behalf of any person by reason of participation in the 43 25 enterprise except for the following: 43 26 (1) A person is not liable for conduct occurring prior to 43 27 the person's first knowing participation in or conduct of the 43 28 enterprise. 43 29 (2) If a person shows that, under circumstances 43 30 manifesting a voluntary and complete renunciation of culpable 43 31 intent, the person withdrew from the enterprise by giving a 43 32 complete and timely warning to law enforcement authorities or 43 33 by otherwise making a reasonable and substantial effort to 43 34 prevent the conduct or result which is the criminal objective 43 35 of the enterprise, the person is not liable for conduct 44 1 occurring after the person's withdrawal. 44 2 b. A person who has facilitated a criminal network in 44 3 violation of section 706A.2, subsection 2, is also jointly and 44 4 severally liable for all of the following: 44 5 (1) The damages resulting from the conduct in furtherance 44 6 of the criminal objectives of the criminal network, to the 44 7 extent that the person's facilitation was of substantial 44 8 assistance to the conduct. 44 9 (2) The proceeds of conduct in furtherance of the criminal 44 10 objectives of the criminal network, to the extent that the 44 11 person's facilitation was of substantial assistance to the 44 12 conduct. 44 13 (3) A person who has engaged in money laundering in 44 14 violation of chapter 706B is also jointly and severally liable 44 15 for the greater of threefold the damages resulting from the 44 16 person's conduct or threefold the property that is the subject 44 17 of the violation. 44 18 Sec. 28. NEW SECTION. 706A.4 CRIMINAL SANCTIONS. 44 19 A person who violates section 706A.2, subsection 1, 2, or 44 20 4, commits a class "B" felony. 44 21 Sec. 29. NEW SECTION. 706A.5 UNIFORMITY OF CONSTRUCTION 44 22 AND APPLICATION. 44 23 1. The provisions of this chapter shall be liberally 44 24 construed to effectuate its remedial purposes. Civil remedies 44 25 under this chapter shall be supplemental and not mutually 44 26 exclusive. Civil remedies under this chapter do not preclude 44 27 and are not precluded by other provisions of law. 44 28 2. The provisions of this chapter shall be applied and 44 29 construed to effectuate its general purpose to make uniform 44 30 the law with respect to the subject of this chapter among 44 31 states enacting the law. 44 32 3. The attorney general may enter into reciprocal 44 33 agreements with the attorney general or chief prosecuting 44 34 attorney of any state to effectuate the purposes of this 44 35 chapter. 45 1 DIVISION III 45 2 IOWA MONEY LAUNDERING ACT 45 3 Sec. 30. NEW SECTION. 706B.1 DEFINITIONS. 45 4 In this chapter, unless the context otherwise requires: 45 5 1. "Proceeds" means property acquired or derived directly 45 6 or indirectly from, produced through, realized through, or 45 7 caused by an act or omission and includes any property of any 45 8 kind. 45 9 2. "Property" means anything of value, and includes any 45 10 interest in property, including any benefit, privilege, claim, 45 11 or right with respect to anything of value, whether real or 45 12 personal, tangible or intangible. 45 13 3. "Specified unlawful activity" means any act, including 45 14 any preparatory or completed offense, committed for financial 45 15 gain on a continuing basis, that is punishable by confinement 45 16 of one year or more under the laws of this state, or, if the 45 17 act occurred outside this state, would be punishable by 45 18 confinement of one year or more under the laws of the state in 45 19 which it occurred and under the laws of this state. 45 20 4. "Transaction" includes a purchase, sale, trade, loan, 45 21 pledge, investment, gift, transfer, transmission, delivery, 45 22 deposit, withdrawal, payment, transfer between accounts, 45 23 exchange of currency, extension of credit, purchase, or sale 45 24 of any monetary instrument, use of a safe deposit box, or any 45 25 other acquisition or disposition of property by whatever means 45 26 effected. 45 27 5. "Unlawful activity" means any act which is chargeable 45 28 or indictable as a public offense of any degree under the laws 45 29 of the state in which the act occurred or under federal law 45 30 and, if the act occurred in a state other than this state, 45 31 would be chargeable or indictable as a public offense of any 45 32 degree under the laws of this state or under federal law. 45 33 Sec. 31. NEW SECTION. 706B.2 MONEY LAUNDERING PENALTY &endash; 45 34 CIVIL REMEDIES. 45 35 1. It is unlawful for a person to do any of the following: 46 1 a. To knowingly transport, receive, or acquire property or 46 2 to conduct a transaction involving property, knowing that the 46 3 property involved is the proceeds of some form of unlawful 46 4 activity, when, in fact, the property is the proceeds of 46 5 specified unlawful activity. 46 6 b. To make property available to another, by transaction, 46 7 transportation, or otherwise, knowing that it is intended to 46 8 be used for the purpose of committing or furthering the 46 9 commission of specified unlawful activity. 46 10 c. To conduct a transaction knowing that the property 46 11 involved in the transaction is the proceeds of some form of 46 12 unlawful activity with the intent to conceal or disguise the 46 13 nature, location, source, ownership, or control of the 46 14 property or the intent to avoid a transaction-reporting 46 15 requirement under chapter 529, the Iowa financial transaction 46 16 reporting Act, or federal law. 46 17 d. To knowingly engage in the business of conducting, 46 18 directing, planning, organizing, initiating, financing, 46 19 managing, supervising, or facilitating transactions involving 46 20 property, knowing that the property involved in the 46 21 transaction is the proceeds of some form of unlawful activity, 46 22 that, in fact, is the proceeds of specified unlawful activity. 46 23 2. A person who violates: 46 24 a. Subsection 1, paragraphs "a", "b", or "c", commits a 46 25 class "C" felony, and may be fined not more than ten thousand 46 26 dollars or twice the value of the property involved, whichever 46 27 is greater, or by imprisonment for not more than 10 years, or 46 28 both. 46 29 b. Subsection 1, paragraph "d", commits a class "D" 46 30 felony, and may be fined not more than five thousand dollars 46 31 or twice the value of the property involved, whichever is 46 32 greater, or by imprisonment for not more than five years, or 46 33 both. 46 34 3. A person who violates subsection 1, paragraph "a", "b", 46 35 "c", or "d", is subject to a civil penalty of three times the 47 1 value of the property involved in the transaction, in addition 47 2 to any criminal sanction imposed. 47 3 4. A person who is found guilty of a violation under this 47 4 section also may be charged with violations of chapter 706A, 47 5 and property involved in a violation under this chapter is 47 6 subject to forfeiture under chapter 809A. 47 7 Sec. 32. NEW SECTION. 706B.3 UNIFORMITY OF CONSTRUCTION 47 8 AND APPLICATION. 47 9 1. The provisions of this chapter shall be liberally 47 10 construed to effectuate its remedial purposes. Civil remedies 47 11 under this chapter shall be supplemental and not mutually 47 12 exclusive. The civil remedies do not preclude and are not 47 13 precluded by other provision of law. 47 14 2. The provisions of this chapter shall be applied and 47 15 construed to effectuate its general purpose to make uniform 47 16 the law with respect to the subject of this chapter among 47 17 states enacting the law. 47 18 3. The attorney general may enter into reciprocal 47 19 agreements with the attorney general or chief prosecuting 47 20 attorney of any state to effectuate the purposes of this 47 21 chapter. 47 22 DIVISION IV 47 23 IOWA FINANCIAL TRANSACTION REPORTING ACT 47 24 Sec. 33. NEW SECTION. 529.1 DEFINITIONS. 47 25 In this chapter, unless the context otherwise requires: 47 26 1. "Authorized delegate" means a person designated by the 47 27 licensee. 47 28 2. "Check cashing" means exchanging for compensation a 47 29 check, draft, money order, traveler's check, or a payment 47 30 instrument of a licensee for money delivered to the presenter 47 31 at the time and place of the presentation. 47 32 3. "Compensation" means any fee, commission, or other 47 33 benefit. 47 34 4. "Conduct the business" means engaging in activities of 47 35 a licensee or money transmitter more than ten times in any 48 1 calendar year for compensation. 48 2 5. "Foreign money exchange" means exchanging for 48 3 compensation money of the United States government or a 48 4 foreign government to or from money of another government at a 48 5 conspicuously posted exchange rate at the time and place of 48 6 the presentation of the money to be exchanged. 48 7 6. "Licensee" means a person licensed under this chapter. 48 8 7. "Location" means a place of business at which activity 48 9 conducted by a licensee or money transmitter occurs. 48 10 8. "Money" means a medium of exchange authorized or 48 11 adopted by a domestic or foreign government as a part of its 48 12 currency and that is customarily used and accepted as a medium 48 13 of exchange in the country of issuance. 48 14 9. "Money transmitter" means a person who is located or 48 15 doing business in this state, including a check cashier and a 48 16 foreign money exchanger, and who does any of the following: 48 17 a. Sells or issues payment instruments. 48 18 b. Conducts the business of receiving money for the 48 19 transmission of or transmitting money. 48 20 c. Conducts the business of exchanging payment instruments 48 21 or money into any form of money or payment instrument. 48 22 d. Conducts the business of receiving money for obligors 48 23 for the purpose of paying obligors' bills, invoices, or 48 24 accounts. 48 25 e. Meets the definition of a bank, financial agency, or 48 26 financial institution as prescribed by 31 U.S.C. } 5312 or 31 48 27 C.F.R. } 103.11 and any successor provisions. 48 28 10. "Payment instrument" means a check, draft, money 48 29 order, traveler's check, or other instrument or order for the 48 30 transmission or payment of money, sold to one or more persons, 48 31 whether or not that instrument or order is negotiable. 48 32 "Payment instrument" does not include an instrument that is 48 33 redeemable by the issuer in merchandise or service, a credit 48 34 card voucher, or a letter of credit. 48 35 11. "Proceeds" means anything of value, and includes any 49 1 interest in property, including any benefit, privilege, claim, 49 2 or right with respect to anything of value, whether real or 49 3 personal, tangible or intangible, without reduction for 49 4 expenses incurred for acquisition, maintenance, production, or 49 5 any other purpose. 49 6 12. "Superintendent" means the superintendent of banking 49 7 or the superintendent of credit unions. 49 8 13. "Transaction" includes a purchase, sale, trade, loan, 49 9 pledge, investment, gift, transfer, transmission, delivery, 49 10 deposit, withdrawal, payment, transfer between accounts, 49 11 exchange of currency, extension of credit, purchase, or sale 49 12 of any monetary instrument, use of a safe deposit box, or any 49 13 other acquisition or disposition of property by whatever means 49 14 effected. 49 15 14. "Transmitting money" includes the transmission of 49 16 money by any means including transmission within this country 49 17 or to or from locations abroad by payment instrument, wire, 49 18 facsimile, or electronic transfer, courier, or otherwise. 49 19 15. "Traveler's check" means an instrument identified as a 49 20 traveler's check on its face or commonly recognized as a 49 21 traveler's check and issued in a money multiple of United 49 22 States or foreign currency with a provision for a specimen 49 23 signature of the purchaser to be completed at the time of 49 24 purchase and a countersignature of the purchaser to be 49 25 completed at the time of negotiation. 49 26 Sec. 34. NEW SECTION. 529.2 REPORTS. 49 27 1. Each licensee and authorized delegate of a licensee and 49 28 each money transmitter shall file with the department of 49 29 public safety, in a form prescribed by the department, a 49 30 report of any activity or business conducted by a customer 49 31 that the licensee, authorized delegate, or money transmitter 49 32 believes may constitute a possible money laundering as 49 33 prohibited by section 706B.2 or specified unlawful activity as 49 34 defined in chapter 706B. That report shall be filed within 49 35 fifteen days of the activity. 50 1 2. A licensee, authorized delegate, or money transmitter 50 2 required to file a report regarding business conducted in this 50 3 state pursuant to the federal Currency and Foreign 50 4 Transactions Reporting Act, 31 U.S.C. } 5311 through 5326 and 50 5 31 C.F.R. pt. 103, or 12 C.F.R. } 21.11, shall file a 50 6 duplicate of that report with the department of public safety. 50 7 3. All persons engaged in a trade or business who receive 50 8 more than ten thousand dollars in money in one transaction, or 50 9 who receive more than ten thousand dollars in money through 50 10 two or more related transactions, must complete and file with 50 11 the department of public safety the information required by 26 50 12 U.S.C. } 6050i and 26 C.F.R. } 1.6050I, and any successor 50 13 provisions, concerning returns relating to cash received in 50 14 trade or business. 50 15 4. A licensee, authorized delegate, or money transmitter 50 16 that is regulated under the federal Currency and Foreign 50 17 Transaction Reporting Act, 31 U.S.C. } 5325 and 31 C.F.R. pt. 50 18 103, and that is required to make available prescribed records 50 19 to the secretary of the United States department of treasury 50 20 upon request at any time, shall follow the same prescribed 50 21 procedures and create and maintain the same prescribed records 50 22 relating to a transaction and shall make these records 50 23 available to the department of public safety on request at any 50 24 time. 50 25 5. a. If the superintendent finds that reasonable grounds 50 26 exist for requiring additional recordkeeping and reporting in 50 27 order to carry out the purposes of this chapter and prevent 50 28 evasion of this chapter, the superintendent may issue an order 50 29 requiring any group of licensees, authorized delegates or 50 30 money transmitters in a geographic area to do any of the 50 31 following: 50 32 (1) Obtain information described by the superintendent in 50 33 the order regarding any of the following: 50 34 (a) Transactions in which the licensee, authorized 50 35 delegate, or money transmitter is involved for the payment, 51 1 receipt, or transfer of United States coin or currency or 51 2 other monetary instruments described by the superintendent in 51 3 the order, involving amounts or denominations of five hundred 51 4 dollars or more, as the superintendent may prescribe. 51 5 (b) Other persons participating in those transactions. 51 6 (2) Maintain records of that information for five years or 51 7 less, as the superintendent may prescribe and make those 51 8 records available to the department of public safety and the 51 9 superintendent. 51 10 (3) File a report with the department of public safety and 51 11 the superintendent regarding any transaction described in the 51 12 order in the manner prescribed in the order. 51 13 b. An order issued under paragraph "a" is not effective 51 14 for more than sixty days unless renewed by the superintendent 51 15 after finding that reasonable grounds exist for continuation 51 16 of the order. 51 17 6. a. The timely filing of a report required by this 51 18 section with the appropriate federal agency shall be deemed 51 19 compliance with the reporting requirements of this section, 51 20 unless the attorney general or the department of public safety 51 21 has notified the superintendent that reports of that type are 51 22 not being regularly and comprehensively transmitted by that 51 23 federal agency to the department of public safety. 51 24 b. This chapter does not preclude a licensee, authorized 51 25 delegate, money transmitter, financial institution, or a 51 26 person engaged in a trade or business, in its discretion, from 51 27 instituting contact with, and thereafter communicating with 51 28 and disclosing customer financial records to appropriate state 51 29 or local law enforcement agencies if the licensee, authorized 51 30 delegate, money transmitter, financial institution, or person 51 31 has information that may be relevant to a possible violation 51 32 of any criminal statute or to the evasion or attempted evasion 51 33 of any reporting requirement of this chapter. 51 34 c. A licensee, authorized delegate, money transmitter, 51 35 financial institution, person engaged in a trade or business, 52 1 or any officer, employee, agent, or authorized delegate of any 52 2 of them, or any public official or governmental employee who 52 3 keeps or files a record pursuant to this section or who 52 4 communicates or discloses information or records under 52 5 paragraph "b", is not liable to its customer, to a state or 52 6 local agency, or to any person for any loss or damage caused 52 7 in whole or in part by the making, filing, or governmental use 52 8 of the report, or any information contained in that report. 52 9 7. The attorney general or the department of public safety 52 10 may report any possible violations indicated by analysis of 52 11 the reports required by this chapter to any appropriate law 52 12 enforcement agency for use in the proper discharge of its 52 13 official duties. The attorney general or the department of 52 14 public safety shall provide copies of the reports required by 52 15 this chapter to any appropriate prosecutorial or law 52 16 enforcement agency upon being provided with a written request 52 17 for records relating to a specific individual or entity and 52 18 stating that the agency has an articulable suspicion that such 52 19 individual or entity has committed a felony offense or a 52 20 violation of this chapter to which the reports are relevant. 52 21 A person who releases information received pursuant to this 52 22 subsection except in the proper discharge of the person's 52 23 official duties is guilty of a serious misdemeanor. 52 24 8. It shall be unlawful for any person to do any of the 52 25 following: 52 26 a. To knowingly violate any provision of this chapter. 52 27 b. With intent to disguise the fact that money or a 52 28 payment instrument is the proceeds of criminal conduct, or 52 29 with intent to promote, manage, establish, carry on, or 52 30 facilitate the promotion, management, establishment, or 52 31 carrying on of any criminal conduct, to knowingly furnish or 52 32 provide to a licensee, authorized delegate, money transmitter, 52 33 financial institution, person engaged in a trade or business, 52 34 or any officer, employee, agent or authorized delegate of any 52 35 of them, or to the attorney general or department of public 53 1 safety, any false, inaccurate, or incomplete information; or 53 2 to knowingly conceal a material fact in connection with a 53 3 transaction for which a report is required to be filed 53 4 pursuant to this section. 53 5 c. With the intent to disguise the fact that money or a 53 6 payment instrument is the proceeds of criminal conduct, or 53 7 with intent to promote, manage, establish, carry on, or 53 8 facilitate the promotion, management, establishment, or 53 9 carrying on of any criminal conduct, or with intent to evade 53 10 the making or filing of a report required under this chapter, 53 11 or with intent to cause the making or filing of a report that 53 12 contains a material omission or misstatement of fact, or with 53 13 intent to conduct or structure a transaction or series of 53 14 transactions by or through one or more licensees, authorized 53 15 delegates, money transmitters, financial institutions, or 53 16 persons engaged in a trade or business. 53 17 9. A person who violates subsection 8 is guilty of a class 53 18 "C" felony and is also subject to a civil penalty of three 53 19 times the value of the property involved in the transaction, 53 20 or, if no transaction is involved, five thousand dollars. 53 21 10. Notwithstanding any other provision of law, each 53 22 violation of this section constitutes a separate, punishable 53 23 offense. 53 24 11. Any report, record, information, analysis, or request 53 25 obtained by the attorney general or department of public 53 26 safety pursuant to this chapter is not a public record as 53 27 defined in chapter 22 and is not subject to disclosure. 53 28 Sec. 35. NEW SECTION. 529.3 INVESTIGATIONS. 53 29 1. The attorney general or county attorney may conduct 53 30 investigations within or outside this state to determine if 53 31 any licensee, authorized delegate, money transmitter, or 53 32 person engaged in a trade or business has failed to file a 53 33 report required by this chapter or has engaged or is engaging 53 34 in any act, practice, or transaction that constitutes a 53 35 violation of this chapter. 54 1 2. On request of the attorney general or county attorney, 54 2 all licensees, authorized delegates, money transmitters, and 54 3 financial institutions shall make their books and records 54 4 available to the attorney general or county attorney or peace 54 5 officer during normal business hours for inspection and 54 6 examination in connection with an investigation pursuant to 54 7 this section. 54 8 Sec. 36. NEW SECTION. 529.4 UNIFORMITY OF CONSTRUCTION 54 9 AND APPLICATION. 54 10 1. The provisions of this chapter shall be liberally 54 11 construed to effectuate its remedial purposes. Civil remedies 54 12 under this chapter shall be supplemental and not mutually 54 13 exclusive. The civil remedies do not preclude and are not 54 14 precluded by other provisions of law. 54 15 2. The provisions of this chapter shall be applied and 54 16 construed to effectuate its general purpose to make uniform 54 17 the law with respect to the subject of this chapter among 54 18 states enacting the law. 54 19 3. The attorney general is authorized to enter into 54 20 reciprocal agreements with the attorney general or chief 54 21 prosecuting attorney of any state to effectuate the purposes 54 22 of this chapter. 54 23 DIVISION V 54 24 CONFORMING AMENDMENTS 54 25 Sec. 37. Section 80.39, subsection 1, Code 1995, is 54 26 amended to read as follows: 54 27 1. Personal property, except for motor vehicles subject to 54 28 sale pursuant to section 321.89, and seizableor forfeitable54 29 property subject to disposition pursuant to chapter 809, which 54 30 personal property is found or seized by, turned in to, or 54 31 otherwise lawfully comes into the possession of the department 54 32 of public safety and which the department does not own, shall 54 33 be disposed of pursuant to this section. If by examining the 54 34 property the owner or lawful custodian of the property is 54 35 known or can be readily ascertained, the department shall 55 1 notify the owner or custodian by certified mail directed to 55 2 the owner's or custodian's last known address, as to the 55 3 location of the property. If the identity or address of the 55 4 owner cannot be determined, notice by one publication in a 55 5 newspaper of general circulation in the area where the 55 6 property was found is sufficient notice. A published notice 55 7 may contain multiple items. 55 8 Sec. 38. Section 123.20, subsection 7, Code 1995, is 55 9 amended to read as follows: 55 10 7. To accept intoxicating liquors ordered delivered to the 55 11 alcoholic beverages division pursuant to chapter809809A, and 55 12 offer for sale and deliver the intoxicating liquors to class 55 13 "E" liquor control licensees, unless the administrator 55 14 determines that the intoxicating liquors may be adulterated or 55 15 contaminated. If the administrator determines that the 55 16 intoxicating liquors may be adulterated or contaminated, the 55 17 administrator shall order their destruction. 55 18 Sec. 39. Section 321.232, subsection 3, Code 1995, is 55 19 amended to read as follows: 55 20 3. A radar jamming device may be seized by a peace officer 55 21 subject to forfeiture as provided by chapter 809 or 809A. 55 22 Sec. 40. Section 321J.10, subsection 7, Code 1995, is 55 23 amended to read as follows: 55 24 7. Specimens obtained pursuant to warrants issued under 55 25 this section are not subject to disposition under section 55 26 808.9 or chapter 809 or 809A. 55 27 Sec. 41. Section 455B.103, subsection 4, paragraph d, 55 28 subparagraph (2), Code 1995, is amended to read as follows: 55 29 (2) In a reasonable manner, and any property seized shall 55 30 be treated in accordance with the provisions of chapters 808, 55 31and809, and 809A. 55 32 Sec. 42. Section 602.6405, subsection 1, Code 1995, is 55 33 amended to read as follows: 55 34 1. Magistrates have jurisdiction of simple misdemeanors, 55 35 including traffic and ordinance violations, and preliminary 56 1 hearings, search warrant proceedings, county and municipal 56 2 infractions, and small claims. Magistrates have jurisdiction 56 3 to determine the disposition of livestock or another animal, 56 4 as provided in sections 717.5 and 717B.4, if the magistrate 56 5 determines the value of the livestock or animal is less than 56 6 ten thousand dollars. Magistrates have jurisdiction to 56 7 exercise the powers specified in sections 556F.2 and 556F.12, 56 8 and to hear complaints or preliminary informations, issue 56 9 warrants, order arrests, make commitments, and take bail. 56 10 Magistrates have jurisdiction over violations of section 56 11 123.49, subsection 2, paragraph "h". Magistrates who are 56 12 admitted to the practice of law in this state have 56 13 jurisdiction over all proceedings for the involuntary 56 14 commitment, treatment, or hospitalization of individuals under 56 15 chapters 125 and 229, except as otherwise provided under 56 16 section 229.6A; nonlawyer magistrates have jurisdiction over 56 17 emergency detention and hospitalization proceedings under 56 18 sections 125.91 and 229.22. Magistrates have jurisdiction to 56 19 conduct hearings authorized under section 809.4and section56 20809.10, subsection 2. 56 21 Sec. 43. Section 809.1, subsection 2, Code 1995, is 56 22 amended by striking the subsection. 56 23 Sec. 44. Section 809.17, Code 1995, is amended to read as 56 24 follows: 56 25 809.17 PROCEEDS APPLIED TO VARIOUS PROGRAMS. 56 26 Except as provided in section 809.21, proceeds from the 56 27 disposal of seizedor forfeitedproperty pursuant to this 56 28 chapter may be transferred in whole or in part to the victim 56 29 compensation fund created in section 912.14 at the discretion 56 30 of the recipient agency, political subdivision, or department. 56 31 Sec. 45. Sections 809.6 through 809.14, Code 1995, are 56 32 repealed. 56 33 EXPLANATION 56 34 New Chapter 809A, the Iowa Forfeiture Reform Act, does the 56 35 following: 57 1 Provides civil procedures so the state can obtain a 57 2 personal forfeiture judgment against an offender which can be 57 3 satisfied from in-state or out-of-state assets. 57 4 Defines conduct triggering forfeiture to include out-of- 57 5 state conduct which would be a triggering offense in the state 57 6 initiating the action and conduct committed in furtherance of 57 7 a triggering offense. 57 8 Defines forfeitable property to include: (1) real or 57 9 personal property furnished or intended to be furnished in 57 10 exchange for the unlawful conduct, or used, or intended to be 57 11 used, to facilitate the illegal activity (the Act excludes 57 12 real property from forfeiture in simple drug possession cases 57 13 and requires personal property used to facilitate simple 57 14 possession cases to be forfeited in a civil in personam 57 15 action); (2) proceeds derived from illegal activity; (3) 57 16 enterprise interests which are interests affording a source of 57 17 influence over an enterprise established, controlled, or 57 18 participated in through illegal activity (e.g., corporate 57 19 stocks); and (4) substitute assets if the original forfeitable 57 20 property is subject to an exempt interest or otherwise 57 21 unavailable. The substitute asset is forfeitable up to the 57 22 value of the property that was owned or possessed for the 57 23 purpose of facilitating illegal activity or that is proceeds 57 24 of illegal activity or for which the wrongdoer is criminally 57 25 responsible. In addition, a seizure warrant is required to 57 26 seize a substitute asset. 57 27 Requires the state as well as the claimant in contested 57 28 forfeiture cases to meet a preponderance of the evidence 57 29 standard. 57 30 Creates presumptions that property is forfeitable if it was 57 31 acquired during a person's conduct giving rise to forfeiture 57 32 or within a reasonable time thereafter and there is no other 57 33 likely source for the property or money or a negotiable 57 34 instrument found in close proximity to contraband or an 57 35 instrumentality is proceeds of, or was used or intended to be 58 1 used to further, conduct giving rise to forfeiture. 58 2 Exempts an interest if: 58 3 1. The owner or interest holder: 58 4 a. Obtained the interest prior to or during the illegal 58 5 activity without knowledge or reason to know of the illegal 58 6 activity or its likelihood of occurrence; or 58 7 b. Obtained the interest prior to or during the illegal 58 8 activity with knowledge, or reason to know of the offense or 58 9 its likelihood of occurrence, but took reasonable steps to 58 10 prevent the offense (e.g., notification of authorities or 58 11 cancellation of a lease); or 58 12 c. Purchased the interest in good faith and without 58 13 knowledge of the unlawful conduct; and 58 14 2. The owner or interest holder: 58 15 a. Is not criminally responsible for the wrongdoer's 58 16 conduct (e.g., not a co-conspirator); and 58 17 b. Was not in a relationship with the wrongdoer that 58 18 permitted the wrongdoer to convey the property to a good faith 58 19 purchaser for value; and 58 20 c. Had no notice of the seizure or reason to believe the 58 21 property was forfeitable. 58 22 The bill also does the following: 58 23 Allows release of seized property if the state deems 58 24 retention unnecessary because a case is weak or forfeiture 58 25 would not serve justice. 58 26 Allows an owner or interest holder to file a petition with 58 27 the state requesting recognition of an exempt interest. If 58 28 the state denies the request, the petitioner has recourse to 58 29 the courts. 58 30 Permits interlocutory sale, lease, or operation by interest 58 31 holders with uncontroverted or presumptively legitimate 58 32 interest when property will be foreclosed or significantly 58 33 reduced in value before final judgment. If the property is 58 34 sold, the proceeds are used to pay sale costs and satisfy 58 35 exempt interests. Any remaining balance is deposited into an 59 1 interest-bearing account and becomes the subject of the 59 2 litigation. 59 3 Permits the filing of a lien or constructive seizure 59 4 (posting notice) to establish the state's interest and avoid 59 5 unnecessarily displacing residents. 59 6 Requires an adversarial judicial finding of probable cause 59 7 to evict residents, except in emergencies. 59 8 Releases property to an owner or interest holder pending 59 9 final judgment if the state fails to file judicial proceedings 59 10 within specified time limits, the owner posts a bond or cash 59 11 equal to the fair market value of the property (the bond or 59 12 cash is forfeited in lieu of the property), the court finds no 59 13 probable cause for the forfeiture of the property in an 59 14 expedited hearing on that issue (the hearing is available upon 59 15 application by an owner or interest holder). 59 16 Authorizes states to enter into a custodian agreement with 59 17 an owner or interest holder to maintain the property pending 59 18 final judgment. 59 19 Authorizes the court to create a receivership or appoint a 59 20 conservator, custodian, or trustee to preserve the property's 59 21 value. 59 22 Permits the deposit of seized moneys or negotiable 59 23 instruments into an interest-bearing account. 59 24 Allows an interlocutory sale by interest holders with 59 25 uncontroverted or presumptively legitimate interests to avoid 59 26 spoilage or waste of perishable assets. 59 27 Provides the state's title to forfeited property is vested 59 28 from the time of the commission of the conduct giving rise to 59 29 the forfeiture. Explicitly excludes exempted property from 59 30 application of the relation back doctrine. 59 31 Designates anyone receiving nonexempt property which is 59 32 subject to forfeiture as a constructive trustee for the 59 33 benefit of the state. 59 34 Requires a trustee with notice of the forfeiture action to 59 35 provide the state with specified information about the person 60 1 for whose benefit the forfeitable property is held. 60 2 Authorizes the state, in uncontested cases, to declare the 60 3 forfeiture of personal property of a value up to $5,000. 60 4 Provides probable cause is the state's burden of proof in 60 5 unopposed cases requiring a judicial order so the state can 60 6 summarize its evidence. 60 7 Provides an option that creates independent funding bases 60 8 for law enforcement, within the state. 60 9 New Chapter 706A, the Ongoing Criminal Conduct Act, does 60 10 the following: 60 11 Creates the following five violations, each a type of 60 12 economic crime or facilitation of economic crime: 60 13 1. The infiltration of legitimate commerce through 60 14 investment of illegal proceeds, the control of an enterprise 60 15 through crime itself (as by an extortionate takeover), and 60 16 conducting an enterprise through specified unlawful activity. 60 17 2. The knowing facilitation of a criminal network by 60 18 engaging in subsidiary crimes, such as obstruction of justice, 60 19 extortion, facilitation of the network by providing property 60 20 or services (other than legal services) and fraud. 60 21 3. Money laundering, by reference to the Iowa Money 60 22 Laundering Act. 60 23 4. The commission of specified unlawful activity under 60 24 circumstances in which the acts are for financial gain. 60 25 5. The negligent empowerment of specified unlawful 60 26 activity. The bill provides only civil remedies for this 60 27 violation. It fixes limited financial responsibility in the 60 28 nature of a tort remedy for negligently providing property or 60 29 services that facilitate specified unlawful activity. 60 30 Creates special civil remedies for violations, including 60 31 private treble damages actions, actions by the state to obtain 60 32 damage on behalf of the citizens of the state, and injunctive 60 33 relief. 60 34 Defines the scope of civil liability to assure protection 60 35 of legal entities and to clarify the measure of damages and 61 1 statutory liability for the acts of joint ventures and other 61 2 persons acting in concert. 61 3 New Chapter 706B, the Iowa Money Laundering Act, does the 61 4 following: 61 5 Guides the application of financial remedies and allows 61 6 reciprocal agreements encouraging interstate cooperation and 61 7 uniformity through special purpose and uniformity sections. 61 8 Creates the following four violations: 61 9 1. Knowingly dealing in the proceeds of unlawful activity. 61 10 2. Making property available to another for the purpose of 61 11 furthering specified unlawful activity. 61 12 3. Knowingly conducting transactions that conceal or 61 13 disguise illegal proceeds or avoid transaction reporting 61 14 requirements. 61 15 4. Engaging in money laundering as a business (this 61 16 violation carries with it an enhanced penalty). 61 17 Imposes a civil treble damages sanction in addition to 61 18 criminal penalties to deter individuals who provide services 61 19 to the drug industry for profit. 61 20 Provides that money laundering is conduct giving rise to 61 21 forfeiture, and integrates the chapter with new chapter 809A. 61 22 New Chapter 529, the Iowa Financial Transaction Reporting 61 23 Act, does the following: 61 24 Parallels current federal transaction reporting 61 25 requirements for who must make reports, the contents of the 61 26 reports, and the circumstances that trigger the obligation to 61 27 report. 61 28 Designs the reports to provide data from which law 61 29 enforcement may make general resource decisions; improve 61 30 geographic and business sector targeting; focus on specific 61 31 individuals and businesses; and assist in the proof of cases 61 32 under investigation. The reports under chapter 529 are: 61 33 1. Suspicious Transaction Reports. This obligation to 61 34 report applies to all money transmitters including all 61 35 financial institutions as defined by federal law and several 62 1 additional categories of businesses. The form of the report 62 2 is within the discretion of the department of public safety. 62 3 2. Currency and Foreign Transactions Reporting Act 62 4 Reports. These requirements apply only to money transmitters 62 5 and only impose a duty to report if the transmitter is 62 6 required to file under 31 U.S.C. } 5311-26 and the relevant 62 7 federal regulations. 62 8 3. Reports of Receipt of More Than $10,000 in a Trade or 62 9 Business. All persons (not just money transmitters) engaged 62 10 in a trade or business who receive more than $10,000 in cash 62 11 or a cash equivalent in one transaction (or in two or more 62 12 related transactions) must file a report of the transaction. 62 13 The report is to contain the information contained in the 62 14 federal IRS form 8300 and required by federal regulations. 62 15 4. $3,000 Logs. All money transmitters who are required 62 16 by federal law to keep so-called "$3,000 logs" must also keep 62 17 them for the state department of public safety as well. The 62 18 logs must be available for inspection at any time. 62 19 5. Targeting Projects. The superintendent of banking or 62 20 the superintendent of credit unions may require additional 62 21 recordkeeping in a specified geographic area for a 60-day 62 22 period. Modeled on 31 U.S.C. } 5326, this provision is 62 23 intended to allow gathering of financial report data on a more 62 24 comprehensive basis than allowed by the other financial 62 25 reporting requirements, and to address specific localized 62 26 money laundering problems. 62 27 BACKGROUND STATEMENT 62 28 SUBMITTED BY THE AGENCY 62 29 This is a joint proposal from the attorney general's office 62 30 and the department of public safety. 62 31 The components of the package, which are all based on model 62 32 legislation by the President's commission on Model State Drug 62 33 Laws (1993), include the following: forfeiture reform, 62 34 ongoing criminal conduct, money laundering and financial 62 35 transaction reporting. 63 1 The purpose of this package of proposals is to give Iowa 63 2 law enforcement more tools to combat criminal networks that 63 3 are engaged in conspiracy activities. The proposal recognizes 63 4 a shift in law enforcement approaches from a "buy-bust" 63 5 approach to a "conspiracy approach". The "conspiracy 63 6 approach" can be applied to a large variety of situations, 63 7 including pedophile rings, burglary rings, drugs, gangs, 63 8 illegal gambling, and money laundering. 63 9 The key motivator for criminals to engage in these types of 63 10 illegal activity is profits. Criminal sanctions alone have 63 11 proven to be unable to stop or slow these illegal activities. 63 12 Law enforcement officials should have the tools to target the 63 13 fruits of the illegal activity meaning the profits. 63 14 In addition, these types of illegal activities negatively 63 15 impact legitimate businesses. 63 16 FORFEITURE REFORM 63 17 Criminals should not be allowed to profit from the fruits 63 18 of their illegal activity. This proposal will strengthen the 63 19 current forfeiture law while providing more protection to 63 20 innocent parties. The highlights include: forfeiture no 63 21 longer applies in simple misdemeanor crimes; the homestead 63 22 exemption no longer applies &endash; thus "crack houses" will be 63 23 eligible for forfeiture; out-of-state assets from criminal 63 24 activity will be forfeitable; procedures are established for 63 25 maintenance of the forfeited assets; more notice provisions 63 26 are set forth; and the successful practice of allowing the 63 27 proceeds of forfeiture to be used for law enforcement purposes 63 28 is continued. 63 29 ONGOING CRIMINAL CONDUCT 63 30 When criminals join together to commit crimes, they gain 63 31 power and economic advantage. This proposal creates five 63 32 violations which are: infiltration of legitimate commerce 63 33 through investment of illegal proceeds, knowing facilitation 63 34 of a criminal network, money laundering, committing unlawful 63 35 activity for financial gain, and negligent empowerment of 64 1 unlawful activity. The penalties are criminal and civil: a 64 2 Class "B" felony, treble damages, and injunctive relief. 64 3 MONEY LAUNDERING 64 4 Criminals who profit from their illegal activities must 64 5 find a way to launder their money. Often criminals disguise 64 6 the source of the money by investing it in seemingly 64 7 legitimate businesses, by buying luxury items or by laundering 64 8 it through legal gambling activities. The highlights of this 64 9 proposal, which makes money laundering a crime, include: 64 10 creating criminal violations when a person knowingly deals in 64 11 proceeds of unlawful activities or conducts transactions to 64 12 disguise illegal activity, imposing treble civil penalty in 64 13 these cases, and allowing for forfeiture of assets used in 64 14 connection with money laundering. 64 15 FINANCIAL TRANSACTION REPORTING 64 16 Currently financial institutions are required to report 64 17 many transactions to the federal government. But the federal 64 18 government does not have the resources or the desire to 64 19 investigate all possible cases of illegal activity. The state 64 20 should have access to the information in order to pursue cases 64 21 as the state chooses. 64 22 This proposal requires financial institutions and casinos 64 23 to provide reports to the department of public safety. For 64 24 example, a report on every $10,000 single cash transaction 64 25 will go to the federal government and the state department of 64 26 public safety. Casinos will be required to report similar 64 27 large cash transactions to the state in addition to the 64 28 federal government. 64 29 SUMMARY 64 30 Iowa currently lags behind many other states that have 64 31 adopted some type of statutes to address the following crimes: 64 32 32 states have criminal network laws. 64 33 22 states have money laundering laws. 64 34 31 states gave ongoing criminal conduct laws. 64 35 Iowa should adopt these proposals in order to increase law 65 1 enforcement's tools to address these crimes and in order to 65 2 not become a safe haven for these types of activities. 65 3 LSB 1168DP 76 65 4 mk/cf/24
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