§ 6-2-711 — Asset forfeiture

Wyoming § 6-2-711

• Jurisdiction: Wyoming
• Title 06: Crimes and Offenses
• Ch. 2: OFFENSES AGAINST THE PERSON
• Art. 7: HUMAN TRAFFICKING

Text

(a) The following are subject to forfeiture as permitted
pursuant to subsections (c) through (j) of this section:
(i) All assets subject to the jurisdiction of the
court:
(A) Used by a person while engaged in
perpetrating a violation of this article;
(B) Affording a person a source of influence
over a trafficked individual in violation of this article;
(C) Acquired or maintained by a person with the
intent to, and for the purpose of supporting, conducting or
concealing an act which violates this article; or
(D) Derived from, involved in or used or
intended to be used to commit an act which violates this
article.
(ii) All books, records, products and materials which
are used or intended for use in violation of this article;
(iii) All conveyances including aircraft, vehicles or
vessels, knowingly used or intended for use to transport victims
or in any manner to knowingly facilitate transportation of
victims for human trafficking in violation of this article are
subject to forfeiture, provided:
(A) No conveyance used by any person as a common
carrier in the transaction of business as a common carrier is
subject to forfeiture under this section unless the owner or
corporate officer is a consenting party or privy to a violation
of this article;
(B) No conveyance is subject to forfeiture under
this section by reason of any act committed without the
knowledge or consent of the owner;
(C) A forfeiture of a conveyance encumbered by a
bona fide security interest is subject to the interest if the
secured party neither had knowledge of nor consented to the act.
(iv) All buildings knowingly used or intended for use
to further human trafficking in violation of this article if the
owner has knowledge of or gives consent to the act of violation.
A forfeiture of property encumbered by a bona fide security
interest is subject to the interest if the secured party neither
had knowledge of nor consented to the act;
(v) Any property or other thing of pecuniary value
furnished in exchange for human trafficking in violation of this
article including any proceeds, assets or other property of any
kind traceable to the exchange and any money, securities or
other negotiable instruments used to facilitate a violation of
this article. Property used or furnished without the consent or
knowledge of the owner is not forfeitable under this paragraph
to the extent of the owner's interest;
(vi) Overseas assets of persons convicted of human
trafficking under this article to the extent they can be
retrieved by the state.
(b) Property subject to forfeiture under this article may
be seized by any law enforcement officer of the state upon
process issued by any district or circuit court having
jurisdiction over the property. Seizure without process may be
made if:
(i) The seizure is incident to an arrest or a search
under a search warrant or an inspection under an administrative
inspection warrant; or
(ii) The property subject to seizure has been the
subject of a prior judgment in favor of the state in a criminal,
injunction or forfeiture proceeding based upon this article.
(c) Any person convicted of a violation of this article
which is punishable by imprisonment for more than one (1) year
shall be subject to forfeiture of property listed under
subsection (a) of this section. The procedure for forfeiture
shall be as provided in subsections (d) through (j) of this
section.
(d) If the state seeks forfeiture of property:
(i) The indictment or information shall contain
notice to the defendant that the state seeks forfeiture and
shall specifically identify the property sought to be forfeited;
(ii) All property shall be returned to the legal
owner or person from whom it was seized unless there is a
finding or verdict of guilt, an admission of guilt or a plea of
nolo contendere to a felony under this act;
(iii) After a finding or verdict of guilt, an
admission of guilt or a plea of nolo contendere to a felony
under this act is accepted, the court shall conduct a forfeiture
hearing to determine if the property is subject to forfeiture
under this section. If the court finds under a preponderance of
evidence standard that property is subject to forfeiture, the
court shall enter a preliminary order directing the forfeiture;
(iv) The court may include in the preliminary order
of forfeiture additional conditions reasonably necessary to
preserve the property's value pending any appeal.
(e) If the court makes a preliminary order of forfeiture
of property, legal interests of persons other than a party to
the criminal action shall be determined, subject to the
following:
(i) Following an entry of a preliminary order of
forfeiture, the state shall publish notice of the order in a
newspaper of general circulation in the state once a week for
two (2) weeks and shall provide written notice by first class
mail to the last known address of any person who, after
reasonable inquiry, appears to be a potential owner or lien
holder in the property. The notice shall describe the forfeited
property and shall advise that parties with a potential interest
in the property may contest the forfeiture by filing a petition
with the court not later than sixty (60) days after the date of
the second published notice or, if notice is mailed under this
paragraph, not later than thirty (30) days after mailing written
notice;
(ii) If a third party files a timely response
asserting an interest in property subject to a preliminary order
of forfeiture, the court shall conduct a hearing. The court may
permit the parties to conduct discovery in accordance with the
Wyoming Rules of Civil Procedure if the court determines that
discovery is necessary or desirable to resolve factual issues.
After the hearing, the court shall enter a final order of
forfeiture by amending the preliminary order as necessary to
account for any third party rights. If no third party files a
timely petition, the preliminary order shall become the final
order upon expiration of the time for filing a petition;
(iii) If a defendant appeals from a conviction or a
preliminary or final order of forfeiture, the court may stay the
preliminary or final order of forfeiture on terms appropriate to
ensure that the property remains available pending appellate
review. A stay shall not delay a hearing or a determination of a
third party's rights or interests. If the court rules in favor
of any third party while an appeal is pending, the court may
amend the order of forfeiture but shall not transfer any
property interest to a third party until the decision on appeal
becomes final, unless the defendant consents in writing or on
the record.
(f) An interest in property belonging to a third party
shall not be forfeited to the extent that the third party
establishes it has a perfected lien in the property or proves by
a preponderance of evidence that he has a perfected security
interest in the property or proves he is an innocent owner. For
purposes of this subsection:
(i) With respect to a property interest in existence
at the time the violation of this article took place, "innocent
owner" means a person who held an interest in the property who
neither had knowledge of nor consented to the violation;
(ii) With respect to a property interest acquired
after the violation of this article has taken place, the term
"innocent owner" means a person who, at the time that person
acquired the interest in the property:
(A) Was a bona fide purchaser or seller for
value or a holder of a bona fide security interest in the
property; and
(B) Did not know and was reasonably without
cause to believe the property was used in connection with a
violation of this article.
(g) Property taken or detained under this section shall
not be subject to replevin, but is deemed to be in the custody
of and subject only to the orders and decrees of the court
having jurisdiction over the proceedings. When property is
seized under this section, the court shall place the property
under seal or otherwise assure the property is maintained under
conditions reasonably necessary to preserve the property's value
or may sell the property for value and hold the proceeds thereof
until the forfeiture proceedings have become final as to all
parties and all rights of appeal have been exhausted.
(h) A person's interest in property is not subject to
forfeiture to the extent that the forfeiture is grossly
disproportionate to the gravity of the offense giving rise to
the forfeiture. The state shall have the burden of demonstrating
by a preponderance of the evidence that a forfeiture is not
grossly disproportionate. Proportionality shall be decided by
the court as follows:
(i) In determining whether a forfeiture is grossly
disproportionate, the court shall consider:
(A) The extent to which the property was used or
intended to be used in executing the underlying offense;
(B) The value of the property, including both
its fair market and subjective value;
(C) The actions of the person involved in the
activity giving rise to the forfeiture proceedings;
(D) The severity of the criminal sanctions
associated with the actions of the person;
(E) Whether the property constitutes the
person's lawful livelihood or means of earning a living;
(F) Whether the offense or attempted offense has
severe collateral consequences; and
(G) Any other factors the court deems necessary
and relevant.
(ii) If the court finds the forfeiture is grossly
disproportionate to the offense, it shall reduce or eliminate
the forfeiture as it finds appropriate.
(j) Within six (6) months after a final order of
forfeiture is affirmed on appeal or the deadline to appeal
passes without a notice of appeal being filed, the state shall,
by public sale or auction, liquidate forfeited tangible property
and distribute the total proceeds of the forfeiture as follows:
(i) Costs of forfeiture proceedings and the sale of
forfeited property incurred by the state;
(ii) Costs of storing and maintaining the forfeited
property incurred by the court;
(iii) The amount necessary to pay court ordered
restitution shall be applied to pay that restitution;
(iv) Civil judgments entered against the forfeiting
defendant in favor of that defendant's victim, already existing
at the time proceeds are received, to the extent that such
judgments cannot be satisfied out of the forfeiting defendant's
assets;
(v) If a remainder exists, to the public school fund
of the respective counties as provided by article 7, section 5
of the Wyoming constitution.