TO: Kim Morss (SCAO) and all District Court Judges
FROM: Christie Donner, Coordinator-Colorado Criminal Justice Reform Coalition (303) 444-6981 ext.1 or (303) 956-9603 cell or cdonner2@juno.com DATE: June 26, 2002
RE: Changes in Colorado's asset
forfeiture laws and procedures (effective for any civil forfeiture actions
filed on or after 7/1/02)
_____________________________________________________________________________________________
Dear Ms. Morss and District Court Judges in Colorado,
On May 31, 2002, the Governor signed into law HB 02-1404 that substantially reformed civil asset forfeiture laws and procedures in Colorado. The law applies to forfeiture actions filed on and after July 1, 2002.
By way of background, there were two main goals of HB 1404: (1) provide greater due process protection for property owners in a civil forfeiture action; and (2) allocate proceeds from forfeiture through an appropriate budgeting process, including dedicating a portion of forfeiture proceeds to expanding substance abuse treatment and detoxification in the local area where the forfeiture occurred.
HB 1404 was sponsored by Representative Shawn Mitchell (R-Broomfield) and Senator Bill Thiebaut (D-Pueblo) (with 31 additional bi-partisan, legislative co-sponsors) and was passed in the House on a 51-11 vote and passed in the Senate on a 23-10 vote.
The Colorado Criminal Justice Reform Coalition (CCJRC) is a group of over 85 organizations and faith communities throughout Colorado who worked in conjunction with a larger coalition in support of HB 1404. Several of us, including myself, were very involved with the legislative sponsors in drafting the legislation. Some judges may remember that several of us from CCJRC spoke at the judicial conference last October on a panel moderated by Judge Tidball on the increase in the prison population and the impact on families, particularly within communities of color.
We have prepared this summary to assist in the implementation of HB 1404. Many of the changes are significant. One change that is particularly significant is the way that proceeds from asset forfeiture are to be distributed which will involve new roles and responsibilities for the prosecutor, the seizing law enforcement agency, the court, and the court clerk. However, the mechanism that was created was intended to minimize the burden on the court and the clerk's office and is intended to be relatively straight-forward. The intent was not to create additional burden on the court but, rather, to develop a more appropriate formula and mechanism for the distribution of forfeiture proceeds that is as self-executing as possible.
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The statutes affected by the passage of HB 1404 are the Colorado Public Nuisance Act (16-13-301, 303, 307, 308, 311, 314, 315), the Colorado Contraband Forfeiture Act (16-13-502, 504, 505, 506, 601, 701) and the Colorado Organized Crime Act (18-17-106). HB 1404 provides uniformity between these 3 statutes.
SUMMARY OF MAJOR CHANGES PURSUANT TO HB 1404
Requires a criminal conviction prior to forfeiture with some limited exceptions;
Raises the plaintiff's standard of proof to "clear
and convincing" evidence;
Requires the plaintiff to prove that property was
"instrumental" to the commission of an offense or public nuisance. "Instrumental"
is defined;
Requires the court to make a finding that the value of forfeited property is "proportional" to the offense or related criminal activity and provides objective criteria for the court to consider;
Requires the forfeiture action to be stayed pending disposition in the criminal case;
Repeals the "innocent owner" affirmative defense.
Requires the plaintiff to prove that an owner is not an "innocent owner".
"Innocent owner" is defined;
New formula and procedure for distributing proceeds from asset forfeiture--after compensating any lienholder, victim, or innocent co-owner, 50% of forfeiture proceeds are to be allocated to drug treatment in the local area and 50% allocated to local government for "public safety" purposes;
State Jurisdiction. ("Restriction on state transfer"): Requires that a forfeiture action be filed in state district court if the property was seized by state or local law enforcement pursuant to a state or local investigation and the owner is being prosecuted in state court. Exceptions include situations where the owner is being prosecuted in federal court or an authorized agent of the federal government requests that the property be transferred to federal custody.
Criminal Conviction Requirement (with limited exceptions):
Colorado Public Nuisance Act: 16-13-307(1.5),(1.6),(1.7)
Colorado Contraband Forfeiture Act:16-13-505 (1.5), (1.6),(1.7) Colorado
Organized Crime Act:18-17-106(5)
No judgement of forfeiture shall be entered until
an owner is convicted of an offense. The criminal conviction does not have
to be obtained in the same jurisdiction as the jurisdiction where the forfeiture
is being prosecuted. The forfeiture action can be based upon either the
crime of conviction or related criminal activity.
A forfeiture proceeding shall be stayed pending the
outcome of the criminal case. The stay is not required to be maintained
during any criminal appeal or post-conviction proceeding. Also, criminal
charges and the forfeiture action may be contemporaneously resolved pursuant
to agreement of the parties.
Upon acquittal or dismissal of a criminal action,
the forfeiture action shall be dismissed and seized property returned to
the owner unless possession of the property is illegal. If forfeiture is
dismissed or judgment entered in favor of the owner, the owner shall not
be assessed any costs by the state related to the seizure and forfeiture.
EXCEPTIONS TO THE CRIMINAL CONVICTION REQUIREMENT:
If a property owner fails to appear at a court hearing related to the criminal case or is determined to be a fugitive to avoid criminal prosecution then the forfeiture action can proceed without first obtaining a criminal conviction of the defendant. However, before
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the district attorney can proceed with the forfeiture
action, the district attorney must send notice to a defendant's last known
address that the forfeiture action will proceed in 30 days of the notice.
If the defendant appears in the criminal action within the 30 day period,
then the district attorney may not use this exception to the criminal conviction
requirement.
Following notice to all persons known to have an
interest in the property, if no person claims an interest in the property,
then the forfeiture action can proceed without obtaining a criminal conviction
of the owner.
If an owner is not an "innocent owner" as defined,
then the forfeiture action can proceed without obtaining a criminal conviction.
If an owner dies subsequent to the acts subjecting
the property to forfeiture, then a forfeiture action can proceed without
a criminal conviction.
The forfeiture action can proceed if an adult owner receives a deferred judgment, deferred sentence, or participates in a diversion program or with a juvenile who received a deferred adjudication, deferred sentence or participates in a diversion program.
Changes in Standard of Proof in civil forfeiture actions:
Colorado Public Nuisance Act:16-13-301
(2.3); 16-13-303(5.1) Colorado Contraband Forfeiture Act: 16-13-502(1.7);
16-13-504(2.1) Colorado Organized Crime Act:18-17-106(5)
Raises the plaintiff's standard of proof in civil
forfeiture actions to "clear and convincing" evidence.
The plaintiff is also required to prove by "clear
and convincing" evidence that the property was instrumental to a crime
or that property constitutes traceable proceeds of the crime of conviction
or related criminal activity. "Instrumental" means a substantial connection
exists between the property and a crime.
The court is required to make a finding prior to an entry of judgment of forfeiture that, upon "clear and convincing" evidence, the value of the property to be forfeited is proportional to the crime or related criminal activity. Under the proportionality review, the court shall ensure that the forfeiture meets the remedial purpose of the statute and shall be guided by objective criteria including:
The severity of the offense or related criminal activity and the harm or risk of harm to the public;
The financial gain derived or sought to be derived through commission of the offense or related criminal activity;
The actual or intended loss to victims due to the commission of the offense or related criminal activity;
The extent of the property owner's involvement in the offense or related criminal activity;
Whether the offense was part of an ongoing pattern of related criminal activity; and
The value of the owner's interest in the property.
Changes in "innocent owner"
Colorado Public Nuisance Act: 16-13-303(5.2)
Colorado Contraband Forfeiture Act:16-13-504(2.1), (2.2) Colorado Organized Crime Act 18-17-106(5)
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"Innocent owner" means as an owner who did not have
actual knowledge or was not given notice of an act subjecting his or her
property to possible forfeiture. (Under former law, property could be forfeited
if an owner knew or reasonably should have known that his or her property
was being used improperly.) The notice requirement can be met by proof
of notice to the owner sent by certified mail. "Innocent owner" also includes
an owner, who upon learning of impermissible use, took reasonable action
to prohibit such use by revoking or attempting to revoke permission for
the persons engaging in such conduct to use the property or took reasonable
action to discourage or prevent the impermissible use.
For an owner who acquires property after the conduct
constituting an impermissible use, "innocent owner" means a person, who
at the time he or she acquired the interested in the property, had no knowledge
that the illegal use had occurred and acquired the interest in the property
through a bona fide transaction for value, probate, inheritance, dissolution
of marriage or other operation of law.
The owner has the burden of proving by a preponderance
of evidence that he or she has an ownership interest in the subject property.
The district attorney has the burden of proving by clear and convincing evidence that an owner is not an "innocent owner."
State jurisdiction. ("Restriction on state transfer.")
Colorado
Public Nuisance Act:16-13-307(2.5) Colorado Contraband Forfeiture Act:16-13-505
(2.5) Colorado Organized Crime Act: 18-17-106(5)
All forfeiture actions shall proceed in state district court if the property was seized by local or state law enforcement and the owner is being prosecuted in state court. Unless directed by an authorized agent of the federal government, no state or local law enforcement agency shall transfer property seized by state or local agency for forfeiture under federal law unless an owner is being prosecuted in federal court.
Changes in distribution of proceeds
Colorado Public Nuisance Act: 16-13-311(3), 16-13-314(2) Colorado Contraband Forfeiture Act: 16-13-506(1) Colorado Organized Crime Act:18-17-106(2)
A. PRIORITIZATION: Asset forfeiture proceeds shall be distributed with the following prioritization:
storage of forfeited property;
5. the district attorney for costs associated with
the prosecution of the forfeiture action and any title transfer --not to
exceed 10% of value of all property forfeited; 6. 1% of the value of the
forfeited property to Clerk of the Court for administration expenses; 7.
Of any remaining balance:
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lienholders, if any; |
| 2.
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innocent co-owner for his or her portion of the property forfeited, if any; |
| 3.
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victim, if any; |
| 4.
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seizing law enforcement agency for costs associated with the sale, maintenance, and |
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a. 50% will be distributed to the general fund of the governmental body with budgetary authority over the seizing law enforcement agency. For example, if the city police did the seizure of the property, then proceeds would be allocated to the general fund of the city --if the county sheriff's office conducts the seizure, then proceeds would be allocated to the general fund of the county. If a multi-jurisdictional task force is involved, it is up to the law enforcement agencies involved in the task force to advise the district attorney about the terms of any interagency agreement so that the district attorney can prepare a specific proposed Order on disbursement. b. the remaining 50% will be distributed to the Managed Service Organization (MSO) that provides detoxification and substance abuse treatment in the judicial district where the forfeiture occurred.
B. PROCEDURE FOR DISTRIBUTING FORFEITED PROPERTY: Once an Order of forfeiture is entered:
1. the seizing law enforcement agency shall deposit any cash forfeited in its possession into the Registry of the Court. The seizing law enforcement agency is required to sell forfeited property at public sale. An innocent co-owner has the option of purchasing the forfeited interest in the property at private sale for fair market value in lieu of public sale. The seizing agency shall ensure that any liens are satisfied at sale.
2. The seizing law enforcement agency is required to notify the Court and the District
Attorney when all property subject to forfeiture has been sold and proceeds deposited into the registry of the court.
3. The District Attorney has 30 days from the date the forfeiture order is entered to file a motion, affidavit and any supporting documentation to request compensation from forfeiture proceeds (not to exceed 10% of total value of forfeited property.) 4. Any victim has 30 days from the date the forfeiture order is entered to submit a request for compensation to the District Attorney.
5. Within 10 days after the date the seizing agency notifies the court that all property forfeited has been sold, the seizing agency may submit a request for reimbursement. In it's motion, the seizing agency shall identify any other law enforcement agencies that participated in the seizure and specify the details of any intergovernmental agreement. The seizing agency shall submit a copy to the district attorney.
6. The District Attorney shall prepare a motion and proposed Order for distribution based upon the motions and requests submitted by the parties and shall include 1% of the total value forfeited to the Clerk of the Court for administration expenses. The District Attorney shall send copies of the motion and proposed order to all parties.
appropriate court personnel disburse the proceeds
pursuant to the Order.
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The parties have 10 days after the filing of the proposed order to file any objections. |
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The court will entered an Order of Distribution and the Court Clerk will ensure that the |
C. RESPONSIBILITIES REGARDING DISTRIBUTION OF PROCEEDS:
1. Law enforcement agency is responsible for: (a) selling the forfeited personal and real property and ensuring that any liens are satisfied at the sale; (b) depositing all proceeds from the sale into the registry of the court; and (c) notifying the court and district attorney when all forfeited property has been sold.
2. The prosecutor is responsible for identifying the parties who are entitled to compensation from forfeited proceeds and for preparing a motion and proposed order regarding distribution, including a specific accounting.
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3. The court is responsible for reviewing the proposed order and any objections filed and issuing an order regarding distribution.
4. The clerk of the court is responsible for ensuring that the appropriate court personnel (bookkeeping or otherwise) actually disburse the proceeds pursuant to court order.
Miscellaneous provisions of HB 1404:
Federal forfeiture funds exempted: (16-13-601) Any proceeds from federal forfeitures are exempted from the distribution formula and procedure enacted regarding state forfeiture proceedings.
Rental car seizure: (16-13-315; 16-13-504(1.5) If a rental car is seized, the law enforcement agency shall notify the rental car company. Law enforcement shall release the rental car to an authorized agent of the rental car company unless the rental car must be maintained in the custody of the seizing agency for evidentiary purposes or unless the seizing agency has probable cause to believe the rental car company, at the time of rental, knew of the intended illegal use of the rental car.
Temporary seizure not affected: (16-13-307(1.8) Nothing in this act shall limit the temporary seizure by law enforcement for evidentiary, investigative, or protective purposes.
Reporting Requirements. (16-13-701) The District Attorney must annually file a report on forfeiture activity in the jurisdiction with the Department of Local Affairs. Any law enforcement agency that receives proceeds from federal forfeitures must file an accounting of federal forfeiture proceeds with the Department of Local Affairs.
We will be monitoring the implementation of HB 1404. If any of the judges have questions or experience any problems that many need to be addressed in subsequent legislation or otherwise, please advise me. Thank you for the opportunity to share this information.
Yours truly,
Christie Donner, coordinator
Colorado Criminal Justice Reform Coalition
c/o Rocky Mountain Peace & Justice Center
P.O. Box 1156
Boulder, CO 80306-1156
(303) 444-6981 ext.1-office
(303) 956-9603 cell
cdonner2@juno.com
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