0001|                           HOUSE BILL 1024
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0002|     43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003|                            INTRODUCED BY
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0004|                       JUDY VANDERSTAR RUSSELL
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0005|     
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0006|                                   
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0007|     
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0008|                                   
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0009|     
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0010|                                AN ACT
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0011|     RELATING TO CRIMINAL LAW; ENACTING THE MONEY LAUNDERING ACT;
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0012|     PROVIDING CRIMINAL PENALTIES AND CIVIL REMEDIES; AMENDING AND
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0013|     ENACTING SECTIONS OF THE NMSA 1978.
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0014|     
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0015|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016|          Section 1.  A new section of the Criminal Code is enacted
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0017|     to read:
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0018|          "[<u>NEW MATERIAL</u>]  SHORT TITLE.--Sections 1 through 17 of
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0019|     this act may be cited as the "Money Laundering Act"."
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0020|          Section 2.  A new section of the Criminal Code is enacted
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0021|     to read:
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0022|          "[<u>NEW MATERIAL</u>]  DEFINITIONS.--As used in the Money
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0023|     Laundering Act:
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0024|               A.  "attorney for the state" means an attorney
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0025|     designated by the attorney general, by a county attorney or by
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0001|     a city attorney to investigate, commence and prosecute an
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0002|     action;
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0003|               B.  "financial institution" means:
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0004|                    (1)  a bank, thrift institution or agency,
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0005|     trust company or a branch thereof;
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0006|                    (2)  a broker or dealer in securities or
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0007|     commodities;
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0008|                    (3)  an investment banker;
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0009|                    (4)  an investment company;
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0010|                    (5)  an issuer, redeemer or cashier of
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0011|     traveler's checks, checks, money orders or similar instruments;
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0012|                    (6)  an operator of a credit card system;
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0013|                    (7)  an insurance company;
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0014|                    (8)  a dealer in precious metals, stones or
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0015|     jewels;
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0016|                    (9)  a pawnbroker;
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0017|                    (10)  a loan or finance company;
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0018|                    (11)  a travel agency;
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0019|                    (12)  a licensed sender of money;
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0020|                    (13)  a telegraph company;
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0021|                    (14)  a business engaged in vehicle sales,
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0022|     including automobile, airplane or boat sales;
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0023|                    (15)  a person involved in real estate closings
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0024|     and settlements;
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0025|                    (16)  an agency or authority of a state or
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0001|     local government carrying out a duty or power of a business
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0002|     described in this subsection; or
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0003|                    (17)  any person or business involved in the
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0004|     exchange of currency or transmission of monetary instruments;
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0005|               C.  "injured person" means a person who has
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0006|     sustained economic loss, including medical loss, as a result of
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0007|     injury to his person, business or property by the conduct
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0008|     giving rise to the forfeiture of property, and who is not an
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0009|     owner of or an interest holder in the property.  "Injured
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0010|     person" does not include a person who is responsible for the
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0011|     conduct giving rise to forfeiture or a person whose interest
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0012|     would not be exempt from forfeiture if the person were an owner
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0013|     of or interest holder in the property;    
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0014|               D.  "interest holder" means a person in whose favor
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0015|     there is a security interest or who is the beneficiary of a
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0016|     perfected encumbrance pertaining to an interest in property;
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0017|               E.  "monetary instrument" means coin or currency of
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0018|     the United States or any other country, traveler's checks,
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0019|     personal checks, bank checks, money orders, investment
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0020|     securities in bearer form or in such form that title passes
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0021|     upon delivery of the security and negotiable instruments in
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0022|     bearer form or in such form that title passes upon delivery of
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0023|     the instrument;
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0024|               F.  "owner" means a person who is not a secured
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0025|     party within the meaning of Section 55-9-105 NMSA 1978 and who
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0001|     has an interest in property, whether legal or equitable.  A
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0002|     person who holds property for the benefit of or as agent or
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0003|     nominee for another is not an owner.  A purported interest that
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0004|     is not in compliance with any statute requiring its recordation
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0005|     or reflection in public records in order to perfect the
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0006|     interest against a bona fide purchaser for value shall not be
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0007|     recognized as an interest against this state in an action
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0008|     pursuant to the Money Laundering Act.  An owner with power to
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0009|     convey property binds other owners, and a spouse binds his
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0010|     spouse, by his act or omission;
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0011|               G.  "person" means any individual, corporation,
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0012|     partnership, trust or estate, joint stock company, association,
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0013|     syndicate, joint venture, unincorporated organization or group
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0014|     and all entities treated as legal personalities;
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0015|               H.  "person known to have an interest" means a
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0016|     person whose interest in property is reflected in the public
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0017|     records in which his interest is required by law to be recorded
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0018|     or reflected in order to perfect his interest.  If a person's
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0019|     interest in property is not required by law to be reflected in
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0020|     public records in order to perfect his interest in the
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0021|     property, a person shall be known to have an interest only if
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0022|     his interest can be readily ascertained at the time of the
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0023|     commencement of the forfeiture action pursuant the Money
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0024|     Laundering Act;
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0025|               I.  "personal property" includes all interests in
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0001|     property in whatever form, except real estate as defined in
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0002|     Section 47-1-1 NMSA 1978 and fixtures as defined in Section
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0003|     55-9-313 NMSA 1978;
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0004|               J.  "proceeds" means property acquired or derived
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0005|     directly or indirectly from, produced through or realized
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0006|     through an act or omission;
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0007|               K.  "property" means anything of value and includes
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0008|     any interest in property, including any benefit, privilege,
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0009|     claim or right with respect to anything of value, whether real
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0010|     or personal, tangible or intangible;
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0011|               L.  "seizing agency" means any department or agency
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0012|     of this state or its political subdivisions that regularly
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0013|     employs peace officers and that employs the peace officer who
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0014|     seizes property for forfeiture, or such other agency as the
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0015|     seizing agency may designate in a particular case by its chief
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0016|     executive officer or his designee;
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0017|               M.  "seizure for forfeiture" means seizure of
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0018|     property by a peace officer coupled with an assertion by the
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0019|     seizing agency or by an attorney for the state that the
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0020|     property is subject to forfeiture;
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0021|               N.  "specified unlawful activity" means any act or
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0022|     omission, including any initiatory, preparatory or completed
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0023|     offense or omission, committed for financial gain that is
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0024|     punishable as a felony under the laws of New Mexico or, if the
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0025|     act occurred outside New Mexico, would be punishable as a
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0001|     felony under the laws of the state in which it occurred and
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0002|     under the laws of New Mexico, including:
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0003|                    (1)  trafficking in controlled substances,
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0004|     murder, robbery, kidnapping, forgery, larceny, fraud,
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0005|     embezzlement, bribery, gambling, illegal kickbacks, extortion,
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0006|     arson and aggravated arson, trafficking in explosives or
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0007|     weapons, receiving stolen property, promoting prostitution,
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0008|     criminal solicitation, fraudulent securities practices, loan
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0009|     sharking, distribution of controlled substances, unlawful sale
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0010|     or possession or transportation of explosives or explosive
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0011|     incendiary devices, violation of the Computer Crimes Act or
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0012|     unauthorized recording; and
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0013|                    (2)  racketeering and its predicate offenses;
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0014|     and
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0015|               O.  "transaction" includes a purchase, sale, trade,
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0016|     loan, pledge, investment, gift, transfer, transmission,
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0017|     delivery, deposit, withdrawal, payment, transfer between
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0018|     accounts, exchange of currency, extension of credit, purchase
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0019|     or sale of any monetary instrument, use of a safe-deposit box,
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0020|     or any other acquisition or disposition of property by whatever
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0021|     means effected."
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0022|          Section 3.  A new section of the Criminal Code is enacted
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0023|     to read:
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0024|          "[<u>NEW MATERIAL</u>]  REPORTS TO THE ATTORNEY GENERAL--
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0025|     PENALTIES.--
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0001|               A.  Any person, corporation, partnership, sole
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0002|     proprietorship, business or financial institution that is
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0003|     required to file any report regarding business conducted in
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0004|     this state pursuant to the provisions of the federal Currency
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0005|     and Foreign Transaction Reporting Act and the regulations
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0006|     promulgated pursuant to that act shall file a duplicate of that
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0007|     report with the attorney general and the department of public
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0008|     safety.
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0009|               B.  All persons engaged in a trade or business who
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0010|     receive ten thousand dollars ($10,000) or more in money in one
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0011|     transaction, or who receive ten thousand dollars ($10,000) or
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0012|     more in money through two or more related transactions, must
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0013|     complete and file with the attorney general the information
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0014|     required by 26 U.S.C. Section 6050 I and regulations

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0015|     promulgated pursuant to that section, concerning returns
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0016|     relating to cash received in trade or business.
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0017|               C.  The timely filing of a report required by this
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0018|     section with the appropriate federal agency shall be deemed in
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0019|     compliance with the reporting requirements of this section,
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0020|     provided that the person responsible for filing the report
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0021|     arranges for the report to be promptly transmitted by the
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0022|     federal agency to the attorney general and the department of
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0023|     public safety.
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0024|               D.  This section does not preclude a financial
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0025|     institution or a person engaged in a trade or business, in his
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0001|     discretion, from instituting contact with and thereafter
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0002|     communicating with and disclosing customer financial records to
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0003|     appropriate state or local law enforcement agencies when the
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0004|     financial institution or person has information that may be
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0005|     relevant to a possible violation of any criminal statute or to
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0006|     the evasion or attempted evasion of any reporting requirement
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0007|     in the Money Laundering Act.
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0008|               E.  A financial institution, a person engaged in a
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0009|     trade or business or any officer, employee or agent of either,
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0010|     that keeps and files a record pursuant to this section or that
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0011|     communicates or discloses information or records under
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0012|     Subsection D of this section, shall not be liable to its
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0013|     customer, to a state or local agency or to any person for any
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0014|     loss or damage caused in whole or in part by the making, filing
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0015|     or governmental use of the report or any information contained
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0016|     therein.
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0017|               F.  The attorney general and the department of
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0018|     public safety may report any possible violations indicated by
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0019|     analysis of the reports required by the Money Laundering Act to
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0020|     any appropriate law enforcement agency for use in the proper
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0021|     discharge of its official duties.  Any person who releases
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0022|     information received pursuant to this subsection except in the
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0023|     proper discharge of his official duties is guilty of a
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0024|     misdemeanor.
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0025|               G.  Any person who:
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0001|                    (1)  knowingly violates any provision of the
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0002|     Money Laundering Act is guilty of a second degree felony;
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0003|                    (2)  with the intent to disguise the fact that
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0004|     money or a payment instrument is the proceeds of criminal
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0005|     conduct; or to promote, manage, establish, carry on or
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0006|     facilitate the promotion, management, establishment or carrying
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0007|     on of any criminal conduct, knowingly furnishes or provides to
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0008|     a financial institution, a person engaged in a trade or
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0009|     business or any officer, employee, or agent thereof or to the
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0010|     attorney general or the department of public safety any false,
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0011|     inaccurate or incomplete information or knowingly conceals a
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0012|     material fact in connection with a transaction for which a
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0013|     report is required to be filed pursuant to this section is
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0014|     guilty of a second degree felony; or 
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0015|                    (3)  with the intent to disguise the fact that
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0016|     money or a payment instrument is the proceeds of criminal
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0017|     conduct or to promote, manage, establish, carry on or
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0018|     facilitate the promotion, management, establishment or carrying
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0019|     on of any criminal conduct or to evade the making or filing of
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0020|     a report required under this section or to cause the making or
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0021|     filing of a report that contains a material omission or
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0022|     misstatement of fact, conducts or structures a transaction or
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0023|     series of transactions by or through one or more financial
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0024|     institutions or persons engaged in a trade or business is
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0025|     guilty of a second degree felony.
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0001|               H.  Notwithstanding any other provisions of law, any
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0002|     violation of this section constitutes a separate, punishable
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0003|     offense as to each transaction or exemption.
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0004|               I.  Any report, record, information, analysis or
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0005|     request obtained by the attorney general, the department of
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0006|     public safety or agency pursuant to the Money Laundering Act is
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0007|     not a public record as defined in Section 14-3-2 NMSA 1978 and
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0008|     is not subject to disclosure pursuant to Subsection E Section
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0009|     14-2-1 NMSA 1978.
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0010|               J.  Any financial institution or person required to
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0011|     file a report required by this section shall, at the request of
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0012|     the attorney general or the department of public safety,
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0013|     provide the attorney general or the department of public safety
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0014|     with access to a copy of the report during the period of time
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0015|     that the financial institution or person is required to
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0016|     maintain the report."
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0017|          Section 4.  A new section of the Criminal Code is enacted
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0018|     to read:
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0019|          "[<u>NEW MATERIAL</u>]  INVESTIGATIONS.--
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0020|               A.  The attorney general, any district attorney or
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0021|     any law enforcement agency with authority to enforce the
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0022|     Criminal Code may conduct investigations within or outside New
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0023|     Mexico to determine if any person, corporation, partnership,
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0024|     sole proprietorship, business, financial institution or person
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0025|     engaged in a trade or business has failed to file a report
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0001|     required by the Money Laundering Act or has engaged or is
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0002|     engaging in any act, practice or transaction that constitutes a
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0003|     violation of that act.
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0004|               B.  All persons, corporations, partnerships, sole
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0005|     proprietorships, businesses and financial institutions shall,
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0006|     upon request of the attorney general, a district attorney or
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0007|     any law enforcement agency with authority to enforce the
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0008|     Criminal Code, make their books and records available to the
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0009|     attorney general, district attorney or any law enforcement
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0010|     agency with authority to enforce the Criminal Code for
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0011|     inspection and examination in connection with an investigation
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0012|     pursuant to this section."
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0013|          Section 5.  A new section of the Criminal Code is enacted
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0014|     to read:
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0015|          "[<u>NEW MATERIAL</u>]  MONEY LAUNDERING AND ILLEGAL
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0016|     INVESTMENT--CRIMINAL PENALTY--CIVIL REMEDIES.--
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0017|               A.  It is unlawful for any person:
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0018|                    (1)  who knows that the property involved is
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0019|     the proceeds of some form of unlawful activity, to knowingly
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0020|     transport, receive or acquire the property or to conduct a
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0021|     transaction involving the property, when, in fact, the property
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0022|     is the proceeds of specified unlawful activity;
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0023|                    (2)  to make property available to another, by
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0024|     transaction, transportation or otherwise, knowing that it is
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0025|     intended to be used for the purpose of committing or furthering
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0001|     the commission of a specified unlawful activity;
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0002|                    (3)  knowing that the property involved in the
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0003|     transaction is the proceeds of some form of unlawful activity,
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0004|     to knowingly conduct a transaction that, in fact, involves
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0005|     proceeds of specified unlawful activity, the purpose of which,
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0006|     in whole or in part, is either to conceal or disguise the
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0007|     nature, location, source, ownership or control of the property
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0008|     or to avoid a transaction reporting requirement under state or
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0009|     federal law; or
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0010|                    (4)  knowing that the property involved in the
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0011|     transaction is the proceeds of some form of unlawful activity,
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0012|     to knowingly engage in the business of conducting, directing,
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0013|     planning, organizing, initiating, financing, managing,
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0014|     supervising or facilitating transactions involving property
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0015|     that, in fact, is the proceeds of a specified unlawful
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0016|     activity.
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0017|               B.  A person who violates Paragraph (1), (2), (3) or
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0018|     (4) of Subsection A of this section is guilty of a second
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0019|     degree felony and upon conviction may be fined twice the value
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0020|     of the property involved.
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0021|               C.  A person who violates any subsection of this
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0022|     section is subject to civil damages of three times the value of
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0023|     the property involved in the transaction, in addition to any
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0024|     criminal sanction imposed.
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0025|               D.  Nothing contained in the Money Laundering Act
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0001|     shall preclude any remedies, be they civil or criminal,
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0002|     available under the Racketeering Act or the Controlled
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0003|     Substances Act or by any other statute or act.  Those remedies
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0004|     shall be in addition to and not in lieu of those provided for
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0005|     in the Money Laundering Act.
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0006|               E.  All proceeds traceable to a violation of the
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0007|     Money Laundering Act are subject to seizure and forfeiture
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0008|     pursuant to Section 9, 13 or 14 of the Money Laundering Act."
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0009|          Section 6.  A new section of the Criminal Code is enacted
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0010|     to read:
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0011|          "[<u>NEW MATERIAL</u>]  JURISDICTION.--The state may commence a
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0012|     civil in rem proceeding in the district court if the property
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0013|     for which forfeiture is sought is within New Mexico at the time
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0014|     of the filing of the action or a civil in personam proceeding
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0015|     if the courts of New Mexico have in personam jurisdiction of an
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0016|     owner of or interest holder in the property for which
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0017|     forfeiture is sought."
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0018|          Section 7.  A new section Criminal Code is enacted to
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0019|     read:
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0020|          "[<u>NEW MATERIAL</u>]  VENUE.--A civil action brought pursuant
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0021|     to the Money Laundering Act may be brought in the county in
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0022|     which the property is seized or in any county in which an owner
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0023|     or interest holder could be civilly or criminally complained
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0024|     against for the conduct alleged to give rise to the forfeiture
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0025|     of the property or where the seizing agency is domiciled."
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0001|          Section 8.  A new section of the Criminal Code is enacted
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0002|     to read:
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0003|          "[<u>NEW MATERIAL</u>]  PROPERTY SUBJECT TO FORFEITURE--
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0004|     EXEMPTIONS.--All property, including all interests in such
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0005|     property, described in a statute providing for its forfeiture
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0006|     is subject to forfeiture; however:
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0007|               A.  no vehicle used by any person as a common
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0008|     carrier in the transaction of business as a common carrier may
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0009|     be forfeited under the provisions of the Money Laundering Act
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0010|     unless it appears that the owner or other person in charge of
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0011|     the vehicle was a consenting party or privy to the act or
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0012|     omission giving rise to forfeiture or knew or had reason to
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0013|     know of it;
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0014|               B.  no vehicle may be forfeited under the provisions
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0015|     of the Money Laundering Act for any act or omission established
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0016|     by the owner to have been committed or omitted by a person
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0017|     other than the owner while the vehicle was unlawfully in the
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0018|     possession of a person other than the owner in violation of the
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0019|     criminal laws of this state or of the United States;
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0020|               C.  no property may be forfeited pursuant to
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0021|     Paragraph (1) or (3) of Subsection A of Section 15 of the Money
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0022|     Laundering Act if the conduct giving rise to the forfeiture was
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0023|     not committed for financial gain;
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0024|               D.  no owner's or interest holder's interest may be
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0025|     forfeited under the Money Laundering Act if the owner or
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0001|     interest holder establishes all of the following:
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0002|                    (1)  he acquired the interest before or during
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0003|     the conduct giving rise to forfeiture;
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0004|                    (2)  he did not empower any person whose act or
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0005|     omission gives rise to forfeiture with legal or equitable power
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0006|     to convey the interest, as to a bona fide purchaser for value
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0007|     and he was not married to any such person or if married to such
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0008|     a person, held the property as separate property; and
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0009|                    (3)  he did not know and could not reasonable
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0010|     have known of the act or omission or that it was likely to
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0011|     occur; and
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0012|               E.  no owner's or interest holder's interest may be
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0013|     forfeited under the Money Laundering Act if the owner or
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0014|     interest holder establishes all of the following:
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0015|                    (1)  he acquired the interest after the conduct
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0016|     giving rise to forfeiture;
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0017|                    (2)  he is a bona fide purchaser for value not
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0018|     knowingly taking part in an illegal transaction; and
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0019|                    (3)  he was at the time of purchase and at all
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0020|     times after the purchase and before the filing of a money
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0021|     laundering lien notice or the filing and notice of a civil or
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0022|     criminal proceeding relating to the property, whichever is
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0023|     earlier, reasonably without notice of the act or omission
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0024|     giving rise to forfeiture and reasonably without cause to
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0025|     believe that the property was subject to forfeiture."
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0001|          Section 9.  A new section of the Criminal Code is enacted
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0002|     to read:
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0003|          "[<u>NEW MATERIAL</u>]  SEIZURE OF PROPERTY.--
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0004|               A.  Property subject to forfeiture under the Money
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0005|     Laundering Act may be seized for forfeiture by a peace officer:
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0006|                    (1)  on process issued pursuant to the Rules of
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0007|     Civil Procedure for the District Courts or the provisions of
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0008|     the Money Laundering Act, including a seizure warrant;
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0009|                    (2)  by making a seizure for forfeiture on
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0010|     property seized on process issued pursuant to law; or
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0011|                    (3)  by making a seizure for forfeiture without
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0012|     court process if any of the following is true:
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0013|                         (a)  the seizure for forfeiture is of
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0014|     property seized incident to an arrest or search;
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0015|                         (b)  the property subject to seizure for
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0016|     forfeiture has been the subject of a prior judgment in favor of
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0017|     New Mexico or any other state or the federal government in a
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0018|     forfeiture proceeding; or
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0019|                         (c)  the peace officer has probable cause
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0020|     to believe that the property is subject to forfeiture.
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0021|               B.  Property subject to forfeiture under the Money
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0022|     Laundering Act may be seized for forfeiture by placing the
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0023|     property under constructive seizure.  Constructive seizure may
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0024|     be made by posting notice of seizure for forfeiture on the
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0025|     property or by filing notice of seizure for forfeiture or
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0001|     notice of pending forfeiture in any appropriate public record
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0002|     relating to the property.
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0003|               C.  The court shall determine probable cause for
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0004|     seizure before real property may be seized for forfeiture,
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0005|     unless the seizure is pursuant to a constructive seizure or the
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0006|     filing of a money laundering lien or lis pendens.  The court
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0007|     may make its determination ex parte if the state demonstrates
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0008|     that notice and an opportunity to appear would create a risk of
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0009|     harm to the public safety or welfare, including the risk of
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0010|     physical injury or the likelihood of property damage or
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0011|     financial loss.
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0012|               D.  The court shall determine probable cause for
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0013|     seizure before property may be seized for forfeiture as a
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0014|     substitute asset or pursuant to Subsection A of Section 15 of
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0015|     the Money Laundering Act, unless the seizure is pursuant to a
    |
0016|     constructive seizure or the filing of a money laundering lien
    |
0017|     or lis pendens.  The court may issue a seizure warrant for such
    |
0018|     property if it determines that there is probable cause to
    |
0019|     believe that the property is subject to forfeiture and is not
    |
0020|     available for seizure for forfeiture for any reason described
    |
0021|     in Subsection A of Section 15 of the Money Laundering Act.  The
    |
0022|     determinations shall be made ex parte unless real property is
    |
0023|     to be seized and Subsection C of this section requires notice
    |
0024|     and an opportunity to appear.
    |
0025|               E.  In establishing a preponderance of the evidence
    |
0001|     or in determining probable cause for seizure and for
    |
0002|     forfeiture, a rebuttable presumption exists that the property
    |
0003|     of any person is subject to forfeiture if the state establishes
    |
0004|     all of the following by the standard of proof applicable to
    |
0005|     that proceeding:
    |
0006|                    (1)  conduct giving rise to forfeiture
    |
0007|     occurred;
    |
0008|                    (2)  the person acquired the property during
    |
0009|     the period of the conduct giving rise to forfeiture or within a
    |
0010|     reasonable time after that period; and
    |
0011|                    (3)  there is no likely source for the property
    |
0012|     other than the conduct giving rise to forfeiture.
    |
0013|               F.  In establishing a preponderance of the evidence
    |
0014|     or in determining probable cause for seizure and for
    |
0015|     forfeiture, the fact that money or any negotiable instrument
    |
0016|     was found in proximity to contraband or to instrumentalities of
    |
0017|     an offense gives rise to an inference that the money or
    |
0018|     instrument was the proceeds of contraband or was used or
    |
0019|     intended to be used to facilitate commission of the offense."
    |
0020|          Section 10.  A new section of the Criminal Code is enacted
    |
0021|     to read:
    |
0022|          "[<u>NEW MATERIAL</u>]  POWERS AND DUTIES OF PEACE OFFICERS AND
    |
0023|     AGENCIES.--
    |
0024|               A.  In the event of a seizure for forfeiture under
    |
0025|     Section 9 of the Money Laundering Act, the property is not
    |
0001|     subject to replevin, conveyance, sequestration or attachment,
    |
0002|     but is deemed to be in the custody of the law enforcement
    |
0003|     agency making the seizure for forfeiture.  The seizing agency
    |
0004|     or the attorney for the state may authorize the release of the
    |
0005|     seizure for forfeiture of the property if forfeiture or
    |
0006|     retention is unnecessary, may transfer the property to any
    |
0007|     other state or federal agency or may transfer the action to
    |
0008|     another attorney for the state by discontinuing forfeiture
    |
0009|     proceedings in favor of forfeiture proceedings initiated by the
    |
0010|     other agency or attorney.  An action pursuant to the Money
    |
0011|     Laundering Act shall be consolidated with any other action or
    |
0012|     proceeding relating to the same property on motion by the
    |
0013|     attorney for the state in either action.
    |
0014|               B.  If property is seized for forfeiture under
    |
0015|     Section 9 of the Money Laundering Act, pending forfeiture and
    |
0016|     final disposition, the seizing agency may do any of the
    |
0017|     following:
    |
0018|                    (1)  remove the property to a storage area for
    |
0019|     safekeeping or, if the property is a negotiable instrument or
    |
0020|     money, deposit it in an interest-bearing account;
    |
0021|                    (2)  remove the property to a place designated
    |
0022|     by the court; or
    |
0023|                    (3)  provide for another custodian or agency to
    |
0024|     take custody of the property and remove it to an appropriate
    |
0025|     location within the jurisdiction of the court.
    |
0001|               C.  A person who acts in good faith and in a
    |
0002|     reasonable manner to comply with an order of the court or a
    |
0003|     request of a peace office is not liable to any person for acts
    |
0004|     done in compliance with the order or request.
    |
0005|               D.  A possessory lien of a person from whose
    |
0006|     possession property is seized is not affected by the seizure."
    |
0007|          Section 11.  A new section of the Criminal Code is enacted
    |
0008|     to read:
    |
0009|          "[<u>NEW MATERIAL</u>]  COMMENCEMENT OF PROCEEDINGS.--
    |
0010|               A.  If the state fails to initiate forfeiture
    |
0011|     proceedings against property seized for forfeiture by filing a
    |
0012|     complaint, pursuant to Section 13 or 14 of the Money Laundering
    |
0013|     Act, within sixty days after seizure or notice of seizure
    |
0014|     forfeiture, whichever is later, such property shall be released
    |
0015|     from its seizure for forfeiture on the request of an owner or
    |
0016|     interest holder, pending further proceedings pursuant to the
    |
0017|     Money Laundering Act, which shall be commenced within seven
    |
0018|     years after actual discovery of the last act giving rise to
    |
0019|     forfeiture.
    |
0020|               B.  If the property sought to be forfeited is real
    |
0021|     property, including fixtures, the attorney for the state may
    |
0022|     file a lis pendens or a notice of pending forfeiture with
    |
0023|     respect to the property with the county recorder of the county
    |
0024|     in which the property is located, in addition to any lien
    |
0025|     provided by law, without a filing fee or other charge."
    |
0001|          Section 12.  A new section of the Criminal Code is enacted
    |
0002|     to read:
    |
0003|          "[<u>NEW MATERIAL</u>]  JUDICIAL FORFEITURE PROCEEDINGS--
    |
0004|     GENERAL.--
    |
0005|               A.  In any proceeding pursuant to the Money
    |
0006|     Laundering Act, the court, on application of the state, may
    |
0007|     enter any restraining order or injunction, require the
    |
0008|     execution of satisfactory performance bonds, create
    |
0009|     receiverships, appoint conservators, appraisers, accountants or
    |
0010|     trustees or take any other action to seize, secure, maintain or
    |
0011|     preserve the availability of property subject to forfeiture,
    |
0012|     including a warrant or order for its seizure, whether prior or
    |
0013|     subsequent to the filing of a notice of seizure, notice of
    |
0014|     pending forfeiture or complaint.
    |
0015|               B.  If property is seized for forfeiture without a
    |
0016|     prior judicial determination of probable cause, an order of
    |
0017|     forfeiture or a hearing pursuant to Subsection D of Section 14
    |
0018|     of the Money Laundering Act, the court, on an application filed
    |
0019|     by an owner of or interest holder in the property within thirty
    |
0020|     days after notice of its seizure for forfeiture or actual
    |
0021|     knowledge of it, whichever is earlier, may issue an order to
    |
0022|     show cause to the seizing agency for a hearing on the sole
    |
0023|     issue of whether probable cause for forfeiture of the property
    |
0024|     then exists.  Notice of the order to show cause hearing must be
    |
0025|     served upon the attorney for the state at least five working
    |
0001|     days before the hearing is held.  If the court finds that no
    |
0002|     probable cause for forfeiture of the property then exists or if
    |
0003|     the state elects not to contest the issue, the property seized
    |
0004|     for forfeiture from the applicant shall be released to the
    |
0005|     custody of the applicant pending the outcome of a judicial
    |
0006|     proceeding pursuant to the Money Laundering Act.  If the court
    |
0007|     finds that probable cause for the forfeiture of the property
    |
0008|     then exists, the court shall not order the property released.
    |
0009|               C.  A defendant convicted in any criminal proceeding
    |
0010|     shall be precluded from subsequently denying the essential
    |
0011|     allegations of the criminal offense of which he was convicted
    |
0012|     in any proceeding pursuant to the Money Laundering Act.  For
    |
0013|     the purposes of that act, a conviction may result from a
    |
0014|     verdict or pleas including a no contest plea.
    |
0015|               D.  In any judicial forfeiture hearing,
    |
0016|     determination or other proceeding pursuant to the Money
    |
0017|     Laundering Act, the applicant, petitioner or claimant must
    |
0018|     establish by a preponderance of the evidence that he is an
    |
0019|     owner of or interest holder in the property seized for
    |
0020|     forfeiture before other evidence is taken.  The burden of
    |
0021|     proving the standing of the claimant and the existence of the
    |
0022|     exemption is on the claimant or party raising the claim, and it
    |
0023|     is not necessary to negate the standing of any claimant or the
    |
0024|     existence of any exemption in any notice, application,
    |
0025|     complaint or other pleading.
    |
0001|               E.  In hearings and determinations pursuant to the
    |
0002|     Money Laundering Act:
    |
0003|                    (1)  the law of evidence relating to civil
    |
0004|     actions applies equally to all parties, including the state, an
    |
0005|     applicant, a petitioner, a claimant and a defendant, on all
    |
0006|     issues required to be established by a preponderance of the
    |
0007|     evidence; and
    |
0008|                    (2)  the court shall receive and consider, in
    |
0009|     making any determination of probable cause or reasonable cause,
    |
0010|     all evidence and information that would be permissible in
    |
0011|     determining probable cause at a preliminary hearing, at a grand
    |
0012|     jury or by a magistrate, together with inferences from the
    |
0013|     evidence and information.
    |
0014|               F.  All property, including all interests in such
    |
0015|     property, declared forfeited vests in this state on the
    |
0016|     commission of the act or omission giving rise to forfeiture,
    |
0017|     together with the proceeds of the property after such time. 
    |
0018|     Any such property or proceeds subsequently transferred to any
    |
0019|     person are subject to forfeiture and thereafter shall be
    |
0020|     ordered forfeited unless the transferee claims and establishes
    |
0021|     in a hearing the showings set out in Section 8 of the Money
    |
0022|     Laundering Act.
    |
0023|               G.  The court may order a sale or any other
    |
0024|     disposition of the property if the property may perish, waste,
    |
0025|     be foreclosed on or otherwise be significantly reduced in value
    |
0001|     or if the expenses of maintaining the property are or will
    |
0002|     become greater than its fair market value.  If the court orders
    |
0003|     a sale, the court shall designate a third party or state
    |
0004|     property manager to dispose of the property by public sale or
    |
0005|     other commercially reasonable method and shall distribute the
    |
0006|     proceeds in the following order of priority:
    |
0007|                    (1)  payment of reasonable expenses incurred in
    |
0008|     connection with the sale;
    |
0009|                    (2)  satisfaction of exempt interests in the
    |
0010|     order of their priority; and
    |
0011|                    (3)  preservation of the balance, if any, in
    |
0012|     the actual or constructive custody of the court in an interest
    |
0013|     bearing account, subject to further proceedings under the Money
    |
0014|     Laundering Act.
    |
0015|               H.  No person claiming to be an owner of or interest
    |
0016|     holder in property seized for forfeiture under the Money
    |
0017|     Laundering Act may commence or maintain any action against the
    |
0018|     state concerning the validity of the alleged interest other
    |
0019|     than as provided in that act."
    |
0020|          Section 13.  A new section of the Criminal Code is enacted
    |
0021|     to read:
    |
0022|          "[<u>NEW MATERIAL</u>]  JUDICIAL IN REM FORFEITURE
    |
0023|     PROCEEDINGS.--
    |
0024|               A.  If a forfeiture is authorized by law, it shall
    |
0025|     be ordered by a court on an action in rem brought by the state
    |
0001|     pursuant to a complaint for forfeiture.  The state may serve
    |
0002|     the complaint in the manner provided by the Rules of Civil
    |
0003|     Procedure for the District Courts.
    |
0004|               B.  A civil in rem action may be brought by the
    |
0005|     state in addition to or in lieu of the civil in personam
    |
0006|     forfeiture procedures set forth in Sections 14 and 15 of the
    |
0007|     Money Laundering Act.  Judicial in rem forfeiture proceedings
    |
0008|     are in the nature of an action in rem and are governed by the
    |
0009|     Rules of Civil Procedure for the District Courts."
    |
0010|          Section 14.  A new section of the Criminal Code is enacted
    |
0011|     to read:
    |
0012|          "[<u>NEW MATERIAL</u>]  JUDICIAL IN PERSONAM FORFEITURE
    |
0013|     PROCEEDINGS.--
    |
0014|               A.  If a forfeiture is authorized by law, it shall
    |
0015|     be ordered by a court on proceedings by the state in an in
    |
0016|     personam civil action.
    |
0017|               B.  In any proceedings pursuant to this section, the
    |
0018|     court, on application of the state, may enter any order
    |
0019|     authorized by Subsection A of Section 12 of the Money
    |
0020|     Laundering Act or take any other action to seize, secure,
    |
0021|     maintain or preserve the availability of property subject to
    |
0022|     forfeiture, including a warrant for its seizure, whether before
    |
0023|     or after the filing of a complaint, indictment or information.
    |
0024|               C.  Notwithstanding the provisions of Subsection D
    |
0025|     of this section, a temporary restraining order may be entered
    |
0001|     on application of the state without notice or an opportunity
    |
0002|     for a hearing if the state demonstrates both that: 
    |
0003|                    (1)  there is probable cause to believe that
    |
0004|     the property with respect to which the order is sought would,
    |
0005|     in the event of final judgment or conviction, be subject to
    |
0006|     forfeiture; and
    |
0007|                    (2)  provision of notice will jeopardize the
    |
0008|     availability of the property for forfeiture.  A temporary
    |
0009|     restraining order expires within ten days after the date on
    |
0010|     which it is entered unless the party against whom it is entered
    |
0011|     consents to an extension for a longer period or unless after
    |
0012|     commencing a hearing the court enters or is considering a
    |
0013|     preliminary injunction.
    |
0014|               D.  Notice of the entry of the restraining order and
    |
0015|     an opportunity for a hearing shall be afforded to persons known
    |
0016|     to have an interest in the property, whether or not a temporary
    |
0017|     restraining order is entered without notice.  The hearing,
    |
0018|     however, is limited to the issues of whether both:
    |
0019|                    (1)  there is a probability that the state will
    |
0020|     prevail on the issue of forfeiture and that failure to enter
    |
0021|     the order will result in the property being destroyed,
    |
0022|     conveyed, encumbered or further encumbered, removed from the
    |
0023|     jurisdiction of the court, concealed or otherwise made
    |
0024|     unavailable for forfeiture; and
    |
0025|                    (2)  the need to preserve the availability of
    |
0001|     property through the entry of the requested order outweighs the
    |
0002|     hardship on any owner, interest holder or defendant against
    |
0003|     whom the order is to be entered.
    |
0004|               E.  The filing of the order of forfeiture in the
    |
0005|     appropriate public records perfects the interest of the state
    |
0006|     in the property described in the order as of the earlier of the
    |
0007|     date of the act or omission giving rise to forfeiture or the
    |
0008|     date that a notice of seizure for forfeiture or notice of
    |
0009|     pending forfeiture or money laundering lien was first filed in
    |
0010|     the records, which entitles the state to all rights of a
    |
0011|     secured party as to that property in addition to any other
    |
0012|     rights or remedies of the state in relation to the property. 
    |
0013|     Any income accruing to, or derived from, an enterprise or any
    |
0014|     interest in an enterprise or other property interest that is
    |
0015|     forfeited is also forfeited from the time of the conduct giving
    |
0016|     rise to forfeiture.  It may be used pending procedures
    |
0017|     subsequent to a verdict or finding of liability to offset
    |
0018|     ordinary and necessary expenses of the enterprise or property
    |
0019|     as required by law or that are necessary to protect the
    |
0020|     interests of New Mexico or a political subdivision of the
    |
0021|     state."
    |
0022|          Section 15.  A new section of the Criminal Code is enacted
    |
0023|     to read:
    |
0024|          "[<u>NEW MATERIAL</u>]  SUPPLEMENTAL REMEDIES.--
    |
0025|               A.  The court shall order the forfeiture of any
    |
0001|     other property of a claimant or an in personam civil defendant
    |
0002|     up to the value of the claimant's or defendant's property that
    |
0003|     the court finds is subject to forfeiture if any of the
    |
0004|     following circumstances apply to the property:
    |
0005|                    (1)  it cannot be located;
    |
0006|                    (2)  it has been transferred or conveyed to,
    |
0007|     sold to or deposited with a third party;
    |
0008|                    (3)  it has been placed beyond the jurisdiction
    |
0009|     of the court;
    |
0010|                    (4)  it has been substantially diminished in
    |
0011|     value by any act or omission of the defendant;
    |
0012|                    (5)  it has been commingled with other property
    |
0013|     that cannot be divided without difficulty; or
    |
0014|                    (6)  it is subject to any interest that is
    |
0015|     exempt from forfeiture.
    |
0016|               B.  In addition to any other remedy provided for by
    |
0017|     law, if property subject to forfeiture is conveyed, alienated,
    |
0018|     encumbered, disposed of, received, removed from the
    |
0019|     jurisdiction of the court, concealed or otherwise rendered
    |
0020|     unavailable for forfeiture after the filing of a money
    |
0021|     laundering lien notice or provision of notice of pending
    |
0022|     forfeiture or after the filing and notice of a civil proceeding
    |
0023|     alleging forfeiture under the Money Laundering Act, whichever
    |
0024|     is earlier, the state may institute an action in district court
    |
0025|     against the person named in the money laundering lien or notice
    |
0001|     of pending forfeiture or the defendant in the civil proceeding
    |
0002|     in an amount equal to the fair market value of the property,
    |
0003|     together with reasonable investigative expenses and attorney
    |
0004|     fees.  If a civil proceeding under the Money Laundering Act is
    |
0005|     pending, the action shall be filed only in the court where the
    |
0006|     civil proceeding is pending.
    |
0007|               C.  This section does not limit the right of the
    |
0008|     state to obtain any order or injunction, receivership, writ,
    |
0009|     attachment, garnishment or other remedy authorized under this
    |
0010|     title or appropriate to protect the interests of the state or
    |
0011|     available under other applicable law."
    |
0012|          Section 16.  A new section of the Criminal Code is enacted
    |
0013|     to read:
    |
0014|          "[<u>NEW MATERIAL</u>]  DISPOSITION BY COURT.--
    |
0015|               A.  After the court's disposition of all claims
    |
0016|     timely filed under the Money Laundering Act, the state has
    |
0017|     clear title to the forfeited property and the court shall so
    |
0018|     order.  Title to the forfeited property and its proceeds is
    |
0019|     deemed to have vested in the state on the commission of the act
    |
0020|     or omission giving rise to the forfeiture.
    |
0021|               B.  On entry of judgment for a claimant in any
    |
0022|     proceeding to forfeit property under the Money Laundering Act,
    |
0023|     such property or interest in property shall be returned or
    |
0024|     conveyed to the claimant designated by the court.  If it
    |
0025|     appears that there was reasonable cause for the seizure for
    |
0001|     forfeiture or for the filing of the notice of pending
    |
0002|     forfeiture or complaint, the court shall cause a finding to be
    |
0003|     entered, and the claimant is not, in such case, entitled to
    |
0004|     costs, nor is the person or seizing agent that made the
    |
0005|     seizure, nor is the attorney for the state liable to suit or
    |
0006|     judgment on account of such seizure, suit or prosecution."
    |
0007|          Section 17.  A new section of the Criminal Code is enacted
    |
0008|     to read:
    |
0009|          "[<u>NEW MATERIAL</u>]  ALLOCATION OF FORFEITED PROPERTY.--
    |
0010|               A.  Any property, including all interests in
    |
0011|     property, forfeited to the state shall be transferred as
    |
0012|     requested by the attorney for the state to the seizing agency
    |
0013|     or to the agency or political subdivision employing the
    |
0014|     attorney for the state, which may do any of the following:
    |
0015|                    (1)  sell, lease, lend or transfer the property
    |
0016|     to any local or state government entity or agency or political
    |
0017|     subdivision, law enforcement agency or prosecutorial agency or
    |
0018|     any federal law enforcement agency that operates within the
    |
0019|     state for official federal, state or political subdivision use
    |
0020|     within the state, with expenses for keeping and transferring
    |
0021|     such property to be paid by the recipient;
    |
0022|                    (2)  sell forfeited property by public or
    |
0023|     otherwise commercially reasonable sale with expenses of keeping
    |
0024|     and selling the property and the amount of all valid interests
    |
0025|     established by claimants paid out of the proceeds of the sale
    |
0001|     with the balance paid into the anti-money laundering fund of
    |
0002|     the state or of the county in which the political subdivision
    |
0003|     seizing the property or prosecuting the action is located;
    |
0004|                    (3)  destroy or use for investigative purposes
    |
0005|     any illegal or controlled substances or other contraband at any
    |
0006|     time more than twenty days after seizure, on written approval
    |
0007|     of the district court, preserving only such material as may be
    |
0008|     necessary for evidence;
    |
0009|                    (4)  sell, use or destroy all raw materials,
    |
0010|     products and equipment of any kind used or intended for use in
    |
0011|     manufacturing, compounding or processing a controlled
    |
0012|     substance;
    |
0013|                    (5)  compromise and pay claims against property
    |
0014|     forfeited pursuant to any provision of this section; or
    |
0015|                    (6)  make any other disposition of forfeited
    |
0016|     property authorized by law for the disposition of property of
    |
0017|     the state, government entity, agency or political subdivision.
    |
0018|               B.  Notwithstanding the provisions of Subsection A
    |
0019|     of this section or any other provision of law to the contrary:
    |
0020|                    (1)  if the property forfeited is money, and a
    |
0021|     law enforcement agency can specifically identify money as being
    |
0022|     from its investigative funds or as being exchanged for property
    |
0023|     from its investigative property, the money shall be remitted to
    |
0024|     the investigative fund.  If there is additional forfeited money
    |
0025|     or money tendered on satisfaction by an interest holder that
    |
0001|     cannot be specifically identified, the court shall order the
    |
0002|     money returned to each law enforcement agency that makes a
    |
0003|     showing of costs or expenses that it incurred in connection
    |
0004|     with the investigation and prosecution of the matter and shall
    |
0005|     order all excess money remaining after such returns deposited
    |
0006|     in the anti-money laundering fund of this state or of the
    |
0007|     county in which the political subdivision seizing the money or
    |
0008|     prosecuting the action is located; or
    |
0009|                    (2)  if the property declared forfeited is an
    |
0010|     interest in a vehicle, the court shall order it forfeited to
    |
0011|     the local, state or other law enforcement agency seizing the
    |
0012|     vehicle for forfeiture or to the seizing agency.
    |
0013|               C.  Money in any anti-money laundering fund may be
    |
0014|     used, in addition to any other lawful use, for:
    |
0015|                    (1)  the payment of any expenses necessary to
    |
0016|     seize, detain, appraise, inventory, protect, maintain, preserve
    |
0017|     the availability of, advertise or sell property that is subject
    |
0018|     to forfeiture and that is seized, detained or forfeited or of
    |
0019|     any other necessary expenses incident to the seizure,
    |
0020|     detention, preservation or forfeiture of the property.  The
    |
0021|     payments may include payments for contract services and
    |
0022|     payments to reimburse any federal, state or local agency for
    |
0023|     any expenditures made to perform the functions of the seizing
    |
0024|     agency; or
    |
0025|                    (2)  the payment of awards for information or
    |
0001|     assistance leading to a civil or criminal proceeding."
    |
0002|          Section 18.  Section 30-42-3 NMSA 1978 (being Laws 1980,
    |
0003|     Chapter 40, Section 3, as amended) is amended to read:
    |
0004|          "30-42-3.  DEFINITIONS.--As used in the Racketeering Act:
    |
0005|               A.  "racketeering" means any act which is chargeable
    |
0006|     or indictable under the laws of New Mexico and punishable by
    |
0007|     imprisonment for more than one year, involving any of the
    |
0008|     following cited offenses:
    |
0009|                    (1)  murder, as provided in Section 30-2-1 NMSA
    |
0010|     1978;
    |
0011|                    (2)  robbery, as provided in Section 30-16-2
    |
0012|     NMSA 1978;
    |
0013|                    (3)  kidnapping, as provided in Section 30-4-1
    |
0014|     NMSA 1978;
    |
0015|                    (4)  forgery, as provided in Section 30-16-10
    |
0016|     NMSA 1978;
    |
0017|                    (5)  larceny, as provided in Section 30-16-1
    |
0018|     NMSA 1978;
    |
0019|                    (6)  fraud, as provided in Section 30-16-6 NMSA
    |
0020|     1978;
    |
0021|                    (7)  embezzlement, as provided in Section
    |
0022|     30-16-8 NMSA 1978;
    |
0023|                    (8)  receiving stolen property, as provided in
    |
0024|     Section 30-16-11 NMSA 1978;
    |
0025|                    (9)  bribery, as provided in Sections 30-24-1
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0001|     through 30-24-3 NMSA 1978;
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0002|                    (10)  gambling, as provided in Sections 30-19-
    |
0003|     3, 30-19-13 and 30-19-15 NMSA 1978;
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0004|                    (11)  illegal kickbacks, as provided in
    |
0005|     Sections 30-41-1 and 30-41-2 NMSA 1978;
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0006|                    (12)  extortion, as provided in Section 30-16-9
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0007|     NMSA 1978;
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0008|                    (13)  trafficking in controlled substances, as
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0009|     provided in Section 30-31-20 NMSA 1978;
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0010|                    (14)  arson and aggravated arson, as provided
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0011|     in Subsection A of Section 30-17-5 and Section 30-17-6 NMSA
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0012|     1978;
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0013|                    (15)  promoting prostitution, as provided in
    |
0014|     Section 30-9-4 NMSA 1978;
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0015|                    (16)  criminal solicitation, as provided in
    |
0016|     Section 30-28-3 NMSA 1978;
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0017|                    (17)  fraudulent securities practices, as
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0018|     provided in the New Mexico Securities Act of 1986;
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0019|                    (18)  loan sharking, as provided in Sections
    |
0020|     30-43-1 through 30-43-5 NMSA 1978; <s>[and]</s>
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0021|                    (19)  distribution of controlled substances or
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0022|     controlled substance <s>[analogues]</s> <u>analogs</u> as provided for in
    |
0023|     Sections 30-31-21 and 30-31-22 NMSA 1978; <u>and
</u>    |
<u></u>0024| <u>                   (20)  money laundering as provided in the Money
</u>    |
<u></u>0025| <u>    Laundering Act;</u>
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0001|               B.  "person" <s>[includes]</s> <u>means</u> any individual or
    |
0002|     entity capable of holding a legal or beneficial interest in
    |
0003|     property;
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0004|               C.  "enterprise" means any sole proprietorship,
    |
0005|     partnership, corporation, business, labor union, association or
    |
0006|     other legal entity or any group of individuals associated in
    |
0007|     fact although not a legal entity and includes illicit as well
    |
0008|     as licit entities; and
    |
0009|               D.  "pattern of racketeering activity" means
    |
0010|     engaging in at least two incidents of racketeering with the
    |
0011|     intent of accomplishing any of the prohibited activities set
    |
0012|     forth in Subsections A through D of Section 30-42-4 NMSA 1978;
    |
0013|     provided at least one of <s>[such]</s> <u>the</u> incidents occurred
    |
0014|     after the effective date of the Racketeering Act and the last
    |
0015|     <s>[of which]</s> <u>incident</u> occurred within five years after the
    |
0016|     commission of a prior incident of racketeering."
    |
0017|          Section 19.  SEVERABILITY.--If any part or application of
    |
0018|     this act is held invalid, the remainder or its application to
    |
0019|     other situations or persons shall not be affected.
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0020|                              
    |