PROCEDURES FOR OBTAINING ORDER

Transcription

1 PREJUDGMENT PRESERVATION OF DEFENDANT S PROPERTY/ASSETS TO SATISFY ANTICIPATED RESTITUTION S Current through OF EXPEDITED S California Cal. Penal Code When defendant has been charged with two or more felonies involving fraud or embezzlement, which involve a pattern of related felony conduct, and the pattern of related felony conduct involves the taking of, or results in the loss by another person or entity of, more than one hundred thousand dollars ($100,000). The "two or more related felonies" may be felonies committed against two or more separate victims, or against the same victim on two or more separate occasions. Court must find that the prosecution is likely to prevail on the merits and the risk of the dissipation of assets outweighs the potential harm to the defendant and other interested parties. Temporary restraining order (TRO), preliminary injunction, appointment of a receiver, bond, or any other protective relief necessary to preserve the property or assets. NOTE: Orders can be obtained over any property or asset that is in the control of the defendant, or that has been transferred to a third party after the commission of the allege crime (unless transfer is through bona fide purchase). (1) State files petition with the court simultaneous or subsequent to the filing of the indictment. (2) Notice is provided to every person with interest in the property and is published for at least three successive weeks in local newspaper (3) If REAL PROPERTY is to be attached, a lis pendens must be recorded in each county in which the real property is situated at the time of filing. If FINANCIAL ASSETS are to be attached, an order may be obtained from the court at the time the petition is filed directing relevant financial institutions to disclose account numbers and the value of defendant s assets. (4) Any party (including the defendant) with a verified interest in the property has the right to challenge an attachment order at a hearing. He/she must file a verified claim within 30 days of receiving notice. Effective until date of sentencing. A temporary restraining order may be issued by the court, ex parte, pending a hearing in conjunction with or subsequent to the filing of the petition, upon application of the prosecuting attorney. The temporary restraining order may be based upon the sworn declaration of a peace officer with personal knowledge of the criminal investigation that establishes probable cause to believe that aggravated white collar crime has taken place and that the amount of restitution and fines exceeds or equals the worth of the assets subject to the temporary restraining The declaration may include the hearsay statements of witnesses. The temporary restraining order may be issued without notice upon a showing of good cause to the court.

2 2 OF EXPEDITED S Minnesota When defendant has been charged with the commission of a felony. (a) a loss of at least $10,000 as result of the alleged felony; (b) probable cause to believe defendant was involved in the commission of a felony; and (c) it is necessary to freeze the funds or assets to ensure availability of funds for full restitution. An order to freeze defendant s funds or assets deposited with or held by a financial institution. (1) Prosecutor files petition with court which includes: a) a copy of the complaint; b) a statement of actual financial loss caused by the alleged felony (if not already stated in the complaint); and c) the account holder s name and financial institution number. (2) Prosecutor provides notice of attachment order to defendant within 10 days of court s issuance. 24 months after entry of N/A, because no hearing required prior to issuance of Minn. Stat (3) Defendant may move for hearing challenging To succeed in challenge, he/she must show: (a) the account holder has posted a bond or other adequate surety; or (b) no probable cause to believe the account holder was involved in the alleged offense; or (c) the amount of funds frozen is more than necessary for full restitution; or (d) a joint account holder who is not involved in the alleged criminal activity has deposited all or part of the funds; or (e) the funds should be returned in the interest of justice.

3 3 OF EXPEDITED S Montana Mont. When the defendant has been Code charged with commission of a felony. Anno. The court must find it is necessary to preserve property or 244 assets that could be used to satisfy an anticipated restitution New Jersey N.J. Stat. 2C:66-1 to 11 (a) a reasonable suspicion that the account holder has committed or is about to commit the crime of terrorism or the crime of soliciting or providing material support or resources from terrorism; (b) the accounts of the accused are specifically identified; and (c) freezing the account is necessary to ensure eventual restitution. Court may grant restraining order or injunction, require defendant to obtain a satisfactory bond, or take other action. An order to freeze all or part of the defendant s funds or assets deposited with or held by a financial institution. (1) Prosecutor files petition court after prosecution is commenced (2) Hearing held on the petition, and any person with an interest in the property is entitled to be heard (1) Attorney General (AG) files petition with court which includes: a statement of the approximate financial loss caused by the commission of the crime; a statement of facts relied upon by the AG; and identification of the account holder's name and financial institution account number. (2) In considering an application in which there is no corroborative evidence, the judge shall inquire in camera as to the identity of any informants or any other information concerning the basis upon which the AG has applied for the attachment No mention. 24 months after entry of order, unless extended on showing of good cause. N/A N/A, because order issued without hearing. (3) AG provides notice to the defendant within 10 days of court s issuance of

4 4 OF EXPEDITED S Pennsylvania 42 Pa.C.S When defendant is charged with a crime or delinquency for which restitution may be ordered. Court must find substantial probability that: (a) Commonwealth will prevail; (b) restitution will be ordered exceeding $10,000 in value; (c) the property appears necessary to satisfy the restitution order; (d) failure to enter order will result in property being destroyed, removed or otherwise unavailable for payment; and (e) the need to preserve the property outweighs the hardship on any party against whom the order is to be entered. TRO, injunction, execution of a satisfactory performance bond, or any other action to preserve property necessary to satisfy an anticipated restitution (4) Defendant may move for a hearing to contest the To succeed in releasing the funds or assets, he/she must show: (a) the account holder has posted a bond or other adequate surety; (b) there is no reasonable suspicion that the account holder has committed or is about to commit the alleged offense; (c) the amount of funds or assets frozen is more than is necessary to pay full restitution; or (d) the funds or assets should be returned in the interests of justice. (1) Prosecutor files petition when filing the indictment. (2) Notice and opportunity to be heard must be provided to persons with interest in the property. No mention. Court may issue TRO without notice to defendant or an opportunity for hearing, if prosecutor shows: (A) probable cause to believe that the property may be necessary to satisfy an anticipated restitution order; and (B) notice will jeopardize the availability of the property. Any interested party (including defendant) may request a hearing challenging this Expires within 10 days of entry of

5 5 OF EXPEDITED S Utah Utah Code Ann a-601 When defendant is charged with a criminal violation or delinquency for which restitution may be ordered. (a) probable cause to believe defendant committed alleged crime; (b) failure to enter order will result in property being made unavailable for anticipated restitution; and, (c) the need to preserve property outweighs hardship on the defendant or any interested party. TRO, injunction, order to execute a satisfactory performance bond, or order to take any other action to preserve property necessary to satisfy an anticipated restitution (1) Prosecution files petition with the court prior to or at the time a criminal information, indictment charging a violation, or a petition alleging delinquency is filed, or at any time during the prosecution of the case. (2) Notice and opportunity to be heard are provided to the defendant. For the period of time given in order Court may issue a TRO without notice to the defendant or an opportunity to be heard if the prosecutor shows: (a) a substantial likelihood that the property is necessary to satisfy an anticipated restitution order; and (b) notice would jeopardize the availability of the property. Expires within 10 days of entry of 2011 National Center for Victims of Crime.