16-14-1. [
Index ]
This chapter shall be known and may
be cited as the 'Georgia RICO (Racketeer Influenced and Corrupt
Organizations) Act.'
16-14-2. [
Index ]
(a) The General Assembly finds that
a severe problem is posed in this state by the increasing sophistication of
various criminal elements and the increasing extent to which the state and
its citizens are harmed as a result of the activities of these elements.
(b) The General Assembly declares that the intent of this chapter is to
impose sanctions against those who violate this chapter and to provide
compensation to persons injured or aggrieved by such violations. It is not
the intent of the General Assembly that isolated incidents of misdemeanor
conduct or acts of civil disobedience be prosecuted under this chapter. It
is the intent of the General Assembly, however, that this chapter apply to
an interrelated pattern of criminal activity motivated by or the effect of
which is pecuniary gain or economic or physical threat or injury. This
chapter shall be liberally construed to effectuate the remedial purposes
embodied in its operative provisions.
16-14-3. [
Index ]
As used in this
chapter, the term:
(1) 'Alien corporation' means a corporation organized
under laws other than the laws of the United States or the laws of any state
of the United States.
(2)(A) 'Beneficial interest' means either of the
following:
(i) The interest of a person as a beneficiary under any other
trust arrangement pursuant to which a trustee holds legal or record title to
real property for the benefit of such person; or
(ii) The interest of a
person under any other form of express fiduciary arrangement pursuant to
which any other person holds legal or record title to real property for the
benefit of such person.
(B) 'Beneficial interest' does not include the
interest of a stockholder in a corporation or the interest of a partner in
either a general partnership or limited partnership. A beneficial interest
shall be deemed to be located where the real property owned by the trustee
is located.
(3) 'Civil proceeding' means any civil proceeding commenced
by an investigative agency under any provision of this chapter.
(4)
'Criminal proceeding' means any criminal proceeding commenced by an
investigative agency under any provision of this chapter.
(5)
'Documentary material' means any book, paper, document, writing, drawing,
graph, chart, photograph, phonorecord, magnetic tape, computer printout,
other data compilation from which information can be obtained or from which
information can be translated into usable form, or other tangible item.
(6) 'Enterprise' means any person, sole proprietorship, partnership,
corporation, business trust, union chartered under the laws of this state,
or other legal entity; or any unchartered union, association, or group of
individuals associated in fact although not a legal entity; and it includes
illicit as well as licit enterprises and governmental as well as other
entities.
(7) 'Investigative agency' means the Department of Law or the
office of any district attorney.
(8) 'Pattern of racketeering activity'
means:
(A) Engaging in at least two acts of racketeering activity in
furtherance of one or more incidents, schemes, or transactions that have the
same or similar intents, results, accomplices, victims, or methods of
commission or otherwise are interrelated by distinguishing characteristics
and are not isolated incidents, provided at least one of such acts occurred
after July 1, 1980, and that the last of such acts occurred within four
years, excluding any periods of imprisonment, after the commission of a
prior act of racketeering activity; or
(B) Engaging in any one or more
acts of domestic terrorism as described in subsection (a) of Code Section
16-4-10 or any criminal attempt, criminal solicitation, or criminal
conspiracy related thereto.
(9)(A) 'Racketeering activity' means to
commit, to attempt to commit, or to solicit, coerce, or intimidate another
person to commit any crime which is chargeable by indictment under the
following laws of this state:
(i) Article 2 of Chapter 13 of this title,
relating to controlled substances;
(ii) Article 3 of Chapter 13 of this
title, known as the 'Dangerous Drugs Act';
(iii) Subsection (j) of Code
Section 16-14-30, relating to marijuana;
(iv) Article 1 of Chapter 5 of
this title, relating to homicide;
(v) Article 2 of Chapter 5 of this
title, relating to bodily injury and related offenses;
(vi) Articles 3
and 4 of Chapter 7 of this title, relating to arson and destructive devices,
respectively;
(vii) Code Section 16-7-1, relating to burglary;
(viii) Code Section 16-9-1, relating to forgery in the first degree;
(ix) Article 1 of Chapter 8 of this title, relating to theft;
(x)
Article 2 of Chapter 8 of this title, relating to robbery;
(xi) Code
Sections 16-6-9 through 16-6-12 and 16-6-14, relating to prostitution and
pandering;
(xii) Code Section 16-12-80, relating to distributing obscene
materials;
(xiii) Code Section 16-10-2, relating to bribery;
(xiv)
Code Section 16-10-93, relating to influencing witnesses;
(xv) Article 4
of Chapter 10 of this title and Code Sections 16-10-20, 16-10-23, 16-10-91,
and 16-10-95, relating to perjury and other falsifications;
(xvi) Code
Section 16-10-94, relating to tampering with evidence;
(xvii) Code
Section 16-12-22, relating to commercial gambling;
(xviii) Code Section
3-3-27, relating to distilling or making liquors;
(xix) Part 2 of
Article 4 of Chapter 11 of this title, known as the 'Georgia Firearms and
Weapons Act';
(xx) Code Section 16-8-60, relating to unauthorized
transfers and reproductions of recorded material;
(xxi) Code Section
10-5-24, relating to violations of the 'Georgia Securities Act of 1973';
(xxii) Code Section 3-3-27, relating to the unlawful distillation,
manufacture, and transportation of alcoholic beverages;
(xxiii) Code
Sections 16-9-31, 16-9-32, 16-9-33, and 16-9-34, relating to the unlawful
use of financial transaction cards;
(xxiv) Code Section 40-3-90,
relating to certain felonies involving certificates of title, security
interest, or liens concerning motor vehicles;
(xxv) Code Section
40-4-21, relating to removal or falsification of identification numbers;
(xxvi) Code Section 40-4-22, relating to possession of motor vehicle parts
from which the identification has been removed;
(xxvii) Code Section
16-9-70, relating to use of an article with an altered identification mark;
(xxviii) Article 6 of Chapter 9 of this title, known as the 'Georgia
Computer Systems Protection Act';
(xxix) Any conduct defined as
'racketeering activity' under 18 U.S.C. Section 1961 (1)(A), (B), (C), and
(D);
(xxx) Article 3 of Chapter 5 of this title, relating to kidnapping,
false imprisonment, and related offenses, except for Code Section 16-5-44,
relating to aircraft hijacking;
(xxxi) Code Section 16-11-37, relating
to terroristic threats and acts;
(xxxii) Code Section 16-5-44.1,
relating to motor vehicle hijacking;
(xxxiii) Code Section 16-10-32,
relating to tampering with witnesses, victims, or informants;
(xxxiv)
Code Section 16-10-97, relating to intimidation of grand or petit juror or
court officer;
(xxxv) Article 11 of Chapter 1 of Title 7 and Sections
5311 through 5330 of Title 31 of the United States Code relating to records
and reports of currency transactions;
(xxxvi) Article 8 of Chapter 9 of
this title, relating to identity fraud, and Section 1028 of Title 18 of the
United States Code, relating to fraudulent identification documents and
information; or
(xxxvii) Code Section 33-1-9, relating to insurance
fraud.
(B) 'Racketeering activity' shall also mean any act or threat
involving murder, kidnapping, gambling, arson, robbery, theft, receipt of
stolen property, bribery, extortion, obstruction of justice, dealing in
narcotic or dangerous drugs, or dealing in securities which is chargeable
under the laws of the United States or any of the several states and which
is punishable by imprisonment for more than one year.
(10) 'Real
property' means any real property situated in this state or any interest in
such real property, including, but not limited to, any lease of or mortgage
upon such real property.
(11) 'RICO lien notice' means the notice
described in Code Section 16-14-13.
(12)(A) 'Trustee' means either of
the following:
(i) Any person who holds legal or record title to real
property for which any other person has a beneficial interest; or
(ii)
Any successor trustee or trustees to any of the foregoing persons.
(B)
'Trustee' does not include the following:
(i) Any person appointed or
acting as a personal representative under Title 29, relating to guardian and
ward, or under Chapter 6 of Title 53 of the 'Pre-1998 Probate Code,'
relating to the administration of estates, if applicable, or Chapter 6 of
Title 53 of the 'Revised Probate Code of 1998' and other provisions in such
revised probate code relating to the administration of estates; or
(ii)
Any person appointed or acting as a trustee of any testamentary trust or as
trustee of any indenture of trust under which any bonds are or are to be
issued.
16-14-4. [
Index ]
(a) It is unlawful for any person, through a
pattern of racketeering activity or proceeds derived therefrom, to acquire
or maintain, directly or indirectly, any interest in or control of any
enterprise, real property, or personal property of any nature, including
money.
(b) It is unlawful for any person employed by or associated with
any enterprise to conduct or participate in, directly or indirectly, such
enterprise through a pattern of racketeering activity.
(c) It is
unlawful for any person to conspire or endeavor to violate any of the
provisions of subsection (a) or (b) of this Code section.
16-14-5. [
Index ]
(a) Any person convicted of the offense of engaging in activity in violation
of Code Section 16-14-4 is guilty of a felony and shall be punished by not
less than five nor more than 20 years´ imprisonment or the fine specified in
subsection (b) of this Code section, or both.
(b) In lieu of any fine
otherwise authorized by law, any person convicted of the offense of engaging
in conduct in violation of Code Section 16-14-4 may be sentenced to pay a
fine that does not exceed the greater of $25,000.00 or three times the
amount of any pecuniary value gained by him from such violation.
(c) The
court shall hold a hearing to determine the amount of the fine authorized by
subsection (b) of this Code section.
(d) For the purposes of subsection
(b) of this Code section, 'pecuniary value' means:
(1) Anything of value
in the form of money, a negotiable instrument, a commercial interest, or
anything else, the primary significance of which is economic advantage; or
(2) Any other property or service that has a value in excess of $100.00.
16-14-6. [
Index ]
(a) Any superior court may, after making due provisions for the
rights of innocent persons, enjoin violations of Code Section 16-14-4 by
issuing appropriate orders and judgments including, but not limited to:
(1) Ordering any defendant to divest himself of any interest in any
enterprise, real property, or personal property;
(2) Imposing reasonable
restrictions upon the future activities or investments of any defendant
including, but not limited to, prohibiting any defendant from engaging in
the same type of endeavor as the enterprise in which he was engaged in
violation of Code Section 16-14-4;
(3) Ordering the dissolution or
reorganization of any enterprise;
(4) Ordering the suspension or
revocation of any license, permit, or prior approval granted to any
enterprise by any agency of the state; or
(5) Ordering the forfeiture of
the charter of a corporation organized under the laws of this state or the
revocation of a certificate authorizing a foreign corporation to conduct
business within this state upon a finding that the board of directors or a
managerial agent acting on behalf of the corporation, in conducting affairs
of the corporation, has authorized or engaged in conduct in violation of
Code Section 16-14-4 and that, for the prevention of future criminal
activity, the public interest requires that the charter of the corporation
be forfeited and that the corporation be dissolved or the certificate be
revoked.
(b) Any aggrieved person or the state may institute a
proceeding under subsection (a) of this Code section. In such proceeding,
relief shall be granted in conformity with the principles that govern the
granting of injunctive relief from threatened loss or damage in other civil
cases, provided that no showing of special or irreparable damage to the
person shall have to be made. Upon the execution of proper bond against
damages for an injunction improvidently granted and a showing of immediate
danger of significant loss or damage, a temporary restraining order and a
preliminary injunction may be issued in any such action before a final
determination on the merits.
(c) Any person who is injured by reason of
any violation of Code Section 16-14-4 shall have a cause of action for three
times the actual damages sustained and, where appropriate, punitive damages.
Such person shall also recover attorneys´ fees in the trial and appellate
courts and costs of investigation and litigation reasonably incurred. The
defendant or any injured person may demand a trial by jury in any civil
action brought pursuant to this Code section.
(d) Any injured person
shall have a right or claim to forfeited property or to the proceeds derived
therefrom superior to any right or claim the state or the county (other than
for costs) has in the same property or proceeds. To enforce such a claim,
the injured person must intervene in the forfeiture proceeding prior to its
final disposition.
(e) A conviction in any criminal proceeding under
this chapter shall estop the defendant in any subsequent civil action or
proceeding as to all matters proved in the criminal proceeding.
16-14-7. [
Index ]
(a) All property of every kind used or intended for use in the
course of, derived from, or realized through a pattern of racketeering
activity is subject to forfeiture to the state. Forfeiture shall be had by a
civil procedure known as a RICO forfeiture proceeding under the following
rules.
(b) A RICO forfeiture proceeding shall be governed by Chapter 11
of Title 9, the 'Georgia Civil Practice Act,' except to the extent that
special rules of procedure are stated in this chapter.
(c) A RICO
forfeiture proceeding shall be an in rem proceeding against the property.
(d) A RICO forfeiture proceeding shall be instituted by complaint and
prosecuted by the district attorney of the county in which the property is
located or seized. The proceeding may be commenced before or after seizure
of the property.
(e) If the complaint is filed before seizure, it shall
state what property is sought to be forfeited, that the property is within
the jurisdiction of the court, the grounds for forfeiture, and the names of
all persons known to have or claim an interest in the property. The court
shall determine ex parte whether there is reasonable cause to believe that
the property is subject to forfeiture and that notice to those persons
having or claiming an interest in the property prior to seizure would cause
the loss or destruction of the property. If the court finds that reasonable
cause does not exist to believe the property is subject to forfeiture, it
shall dismiss the complaint. If the court finds that reasonable cause does
exist to believe the property is subject to forfeiture but there is not
reasonable cause to believe that prior notice would result in loss or
destruction, it shall order service on all persons known to have or claim an
interest in the property prior to a further hearing on whether a writ of
seizure should issue. If the court finds that there is reasonable cause to
believe that the property is subject to forfeiture and to believe that prior
notice would cause loss or destruction, it shall without any further hearing
or notice issue a writ of seizure directing the sheriff of the county where
the property is found to seize it.
(f) Seizure may be effected by a law
enforcement officer authorized to enforce the penal laws of this state prior
to the filing of the complaint and without a writ of seizure if the seizure
is incident to a lawful arrest, search, or inspection and the officer has
probable cause to believe the property is subject to forfeiture and will be
lost or destroyed if not seized. Within ten days of the date of seizure, the
seizure shall be reported by the officer to the district attorney of the
circuit in which the seizure is effected; and the district attorney shall,
within a reasonable time after receiving notice of seizure, file a complaint
for forfeiture. The complaint shall state, in addition to the information
required in subsection (e) of this Code section, the date and place of
seizure.
(g) After the complaint is filed or the seizure effected,
whichever is later, every person known to have or claim an interest in the
property shall be served, if not previously served, with a copy of the
complaint and a notice of seizure in the manner provided by Chapter 11 of
Title 9, the 'Georgia Civil Practice Act.' Service by publication may be
ordered upon any party whose whereabouts cannot be determined.
(h)(1)
Any person claiming an interest in the property may become a party to the
action at any time prior to judgment whether named in the complaint or not.
Any party claiming a substantial interest in the property may upon motion be
allowed by the court to take possession of the property upon posting bond
with good and sufficient security in double the amount of the property´s
value conditioned to pay the value of any interest in the property found to
be subject to forfeiture or the value of any interest of another not subject
to forfeiture. Such a party taking possession shall not remove the property
from the territorial jurisdiction of the court without written permission
from the court.
(2) The court may, upon such terms and conditions as
prescribed by it, order that the property be sold by an innocent party who
holds a lien on or security interest in the property at any time during the
proceedings. Any proceeds from such sale over and above the amount necessary
to satisfy the lien or security interest shall be paid into court pending
final judgment in the forfeiture proceeding. No such sale shall be ordered,
however, unless the obligation upon which the lien or security interest is
based is in default.
(3) Pending final judgment in the forfeiture
proceeding, the court may make any other disposition of the property which
is in the interest of substantial justice.
(i) After service of process,
all further proceedings shall be as provided in Chapter 11 of Title 9, the
'Georgia Civil Practice Act,' except that any party may bring one motion to
dismiss at any time and such motion shall be heard and ruled on within ten
days. Any party may demand a jury trial.
(j) The interest of an innocent
party in the property shall not be subject to forfeiture. An innocent party
is one who did not have actual or constructive knowledge that the property
was subject to forfeiture.
(k) Subject to the requirement of protecting
the interest of all innocent parties, the court may, after judgment of
forfeiture, make any of the following orders for disposition of the
property:
(1) Destruction of contraband, the possession of which is
illegal;
(2) Retention for official use by any agency of this state or
any political subdivision thereof. When such agency or political subdivision
no longer has use for such property, it shall be disposed of by judicial
sale;
(3) Transfer to the Division of Archives and History of property
useful for historical or instructional purposes;
(4) Retention of the
property by any innocent party having an interest therein, upon payment or
approval of a plan for payment into court of the value of any forfeited
interest in the property. The plan may include, in the case of an innocent
party who holds a lien on or security interest in the property, the sale of
the property by the innocent party under such terms and conditions as may be
prescribed by the court and the payment into court of any proceeds from such
sale over and above the amount necessary to satisfy the lien or security
interest;
(5) Judicial sale of the property;
(6) Transfer of the
property to any innocent party having an interest therein equal to or
greater than the value of the property; or
(7) Any other disposition of
the property which is in the interest of substantial justice and adequately
protects innocent parties.
(l) The net proceeds of any sale or
disposition after satisfaction of the interest of any innocent party, less
the greater of one-half thereof or the costs borne by the county in bringing
the forfeiture action, shall be paid into the general fund of the state
treasury. The costs borne by the county or one-half of the net proceeds of
sale or disposition, whichever is greater, shall be paid into the treasury
of the county where the forfeiture action is brought. Notwithstanding any
other provision in this Code section, the court may, after satisfaction of
the interest of any innocent party, make any other division of the proceeds
among the state, county, or municipalities or agencies of the state, county,
or municipalities, which is commensurate with the proportion of the
assistance that each contributed to the underlying criminal action,
forfeiture, or criminal action and forfeiture.
(m) In lieu of the
provisions of subsections (c) through (g) of this Code section, the state
may bring an in personam action for the forfeiture of any property subject
to forfeiture under subsection (a) of this Code section.
(n)(1) Upon the
entry of a final judgment of forfeiture in favor of the state, the title of
the state to the forfeited property shall:
(A) In the case of real
property or beneficial interest, relate back to the date of filing of the
RICO lien notice in the official records of the county where the real
property or beneficial trust is located and, if no RICO lien notice is
filed, then to the date of the filing of any notice of lis pendens under
Article 9 of Chapter 14 of Title 44 in the official records of the county
where the real property or beneficial interest is located and, if no RICO
lien notice or notice of lis pendens is so filed, then to the date of
recording of the final judgment of forfeiture in the official records of the
county where the real property or beneficial interest is located; and
(B)
In the case of personal property, relate back to the date the personal
property was seized by the investigating agency.
(2) If property subject
to forfeiture is conveyed, alienated, disposed of, or otherwise rendered
unavailable for forfeiture after the filing of a RICO lien notice or after
the filing of a civil proceeding or criminal proceeding, whichever is
earlier, the investigative agency may, on behalf of the state, institute an
action in the appropriate superior court against the person named in the
RICO lien notice or the defendant in the civil proceeding or criminal
proceeding; and the court shall enter final judgment against the person
named in the RICO lien notice or the defendant in the civil proceeding or
criminal proceeding in an amount equal to the fair market value of the
property, together with investigative costs and attorney´s fees incurred by
the investigative agency in the action. If a civil proceeding is pending,
such action shall be filed only in the court where such civil proceeding is
pending.
16-14-8. [
Index ]
Notwithstanding any other provision of law, a
criminal or civil action or proceeding under this chapter may be commenced
up until five years after the conduct in violation of a provision of this
chapter terminates or the cause of action accrues. If a criminal prosecution
or civil action is brought by the state to punish or prevent any violation
of this chapter, then the running of this period of limitations, with
respect to any cause of action arising under subsection (b) or (c) of Code
Section 16-14-6 which is based upon any matter complained of in such
prosecution or action by the state, shall be suspended during the pendency
of the prosecution or action by the state and for two years thereafter.
16-14-9. [
Index ]
The application of one civil remedy under this chapter shall
not preclude the application of any other remedy, civil or criminal, under
this chapter or any other provision of law. Civil remedies under this
chapter are supplemental and not mutually exclusive.
16-14-10. [
Index ]
(a) Notwithstanding any other provision of law, a valid judgment rendered by
a court of a jurisdiction having a law substantially similar to this chapter
will be recognized and enforced by the courts of this state to the extent
that a judgment rendered by a court of this state pursuant to this chapter
would be enforced in such other jurisdiction.
(b) The Attorney General
is authorized to enter into reciprocal agreements with the attorney general
or chief prosecuting attorney of any jurisdiction having a law substantially
similar to this chapter so as to further the purposes of this chapter.
16-14-11. [
Index ]
In any criminal proceeding brought pursuant to this chapter,
the crime shall be considered to have been committed in any county in which
an incident of racketeering occurred or in which an interest or control of
an enterprise or real or personal property is acquired or maintained.
16-14-12. [
Index ]
This state may, in any civil action brought pursuant to this
chapter, file with the clerk of the superior court a certificate stating
that the case is of special public importance. A copy of that certificate
shall be furnished immediately by such clerk to the chief judge or, in his
absence, the presiding chief judge of the superior court in which such
action is pending; and, upon receipt of such copy, the judge shall
immediately designate a judge to hear and determine the action. The judge so
designated shall promptly assign such action for hearing, participate in the
hearings and determination, and cause the action to be expedited.
16-14-13. [
Index ]
(a) Upon the institution of any civil proceeding, the
investigative agency then or at any time during the pendency of the
proceeding may file in the official records of any one or more counties a
RICO lien notice. No filing fee or other charge shall be required as a
condition for filing the RICO lien notice; and the clerk of the superior
court shall, upon the presentation of a RICO lien notice, immediately record
it in the official records.
(b) The RICO lien notice shall be signed by
the Attorney General or his designee or by a district attorney or his
designee. The notice shall be in such form as the Attorney General
prescribes and shall set forth the following information:
(1) The name
of the person against whom the civil proceeding has been brought. In its
discretion, the investigative agency may also name in the RICO lien notice
any other aliases, names, or fictitious names under which the person may be
known. In its discretion, the investigative agency may also name in the RICO
lien notice any corporation, partnership, or other entity that is either
controlled by or entirely owned by the person;
(2) If known to the
investigative agency, the present residence and business addresses of the
person named in the RICO lien notice and of the other names set forth in the
RICO lien notice;
(3) A reference to the civil proceeding stating that a
proceeding under this chapter has been brought against the person named in
the RICO lien notice, the name of the county or counties where the
proceeding has been brought, and, if known to the investigative agency at
the time of filing the RICO lien notice, the case number of the proceeding;
(4) A statement that the notice is being filed pursuant to this chapter; and
(5) The name and address of the investigative agency filing the RICO lien
notice and the name of the individual signing the RICO lien notice.
(c)
A RICO lien notice shall apply only to one person and, to the extent
applicable, any aliases, fictitious names, or other names, including names
of corporations, partnerships, or other entities, to the extent permitted in
paragraph (1) of subsection (b) of this Code section. A separate RICO lien
notice shall be filed for any other person against whom the investigative
agency desires to file a RICO lien notice under this Code section.
(d)
The investigative agency shall, as soon as practicable after the filing of
each RICO lien notice, furnish to the person named in the notice either a
copy of the recorded notice or a copy of the notice with a notation thereon
of the county or counties in which the notice has been recorded. The failure
of the investigative agency to so furnish a copy of the notice under this
subsection shall not invalidate or otherwise affect the notice.
(e) The
filing of a RICO lien notice creates, from the time of its filing, a lien in
favor of the state on the following property of the person named in the
notice and against any other names set forth in the notice:
(1) Any real
property situated in the county where the notice is filed then or thereafter
owned by the person or under any of the names; and
(2) Any beneficial
interest situated in the county where the notice is filed then or thereafter
owned by the person or under any of the names.
(f) The lien shall
commence and attach as of the time of filing of the RICO lien notice and
shall continue thereafter until expiration, termination, or release pursuant
to Code Section 16-14-14. The lien created in favor of the state shall be
superior and prior to the interest of any other person in the real property
or beneficial interest if the interest is acquired subsequent to the filing
of the notice.
(g) In conjunction with any civil proceedings:
(1)
The investigative agency may file without prior court order in any county a
lis pendens and, in such case, any person acquiring an interest in the
subject real property or beneficial interest, if the real property or
beneficial interest is acquired subsequent to the filing of lis pendens,
shall take the interest subject to the civil proceeding and any subsequent
judgment of forfeiture; and
(2) If a RICO lien notice has been filed, the
investigative agency may name as defendants, in addition to the person named
in the notice, any persons acquiring an interest in the real property or
beneficial interest subsequent to the filing of the notice. If a judgment of
forfeiture is entered in the proceeding in favor of the state, the interest
of any person in the property that was acquired subsequent to the filing of
the notice shall be subject to the notice and judgment of forfeiture.
(h)(1) A trustee who acquires actual knowledge that a RICO lien notice or a
civil proceeding or criminal proceeding has been filed against any person
for whom he holds legal or record title to real property shall immediately
furnish to the investigative agency the following:
(A) The name and
address of the person, as known to the trustee;
(B) The name and
address, as known to the trustee, of all other persons for whose benefit the
trustee holds title to the real property; and
(C) If requested by the
investigative agency, a copy of the trust agreement or other instrument
pursuant to which the trustee holds legal or record title to the real
property.
(2) Any trustee who fails to comply with the provisions of
this subsection is guilty of a misdemeanor.
(i) Any trustee who conveys
title to real property for which a RICO lien notice has been filed at the
time of the conveyance in the county where the real property is situated
naming a person who, to the actual knowledge of the trustee, holds a
beneficial interest in the trust shall be liable to the state for the
greater of:
(1) The amount of proceeds received directly by the person
named in the RICO lien notice as a result of the conveyance;
(2) The
amount of proceeds received by the trustee as a result of the conveyance and
distributed to the person named in the RICO lien notice; or
(3) The fair
market value of the interest of the person named in the RICO lien notice in
the real property so conveyed; however, if the trustee conveys the real
property and holds the proceeds that would otherwise be paid or distributed
to the beneficiary or at the direction of the beneficiary or his designee,
the trustee´s liability shall not exceed the amount of the proceeds so held
for so long as the proceeds are held by the trustee.
(j) The filing of a
RICO lien notice shall not constitute a lien on the record title to real
property as owned by the trustee except to the extent the trustee is named
in the RICO lien notice. The investigative agency may bring a civil
proceeding in any superior court against the trustee to recover from the
trustee the amounts set forth in subsection (i), and the state shall also be
entitled to recover investigative costs and attorney´s fees incurred by the
investigative agency.
(k) The filing of a RICO lien notice shall not
affect the use to which real property or a beneficial interest owned by the
person named in the RICO lien notice may be put or the right of the person
to receive any avails, rents, or other proceeds resulting from the use and
ownership, but not the sale, of the property until a judgment of forfeiture
is entered.
(l)(1) The provisions of this Code section shall not apply
to any conveyance by a trustee pursuant to a court order unless such court
order is entered in an action between the trustee and the beneficiary.
(2) Unless the trustee has actual knowledge that a person owning a
beneficial interest in the trust is named in a RICO lien notice or is
otherwise a defendant in a civil proceeding, the provisions of this Code
section shall not apply to:
(A) Any conveyance by a trustee required
under the terms of any trust agreement, which trust agreement is a matter of
public record prior to the filing of any RICO lien notice; or
(B) Any
conveyance by a trustee to all of the persons who own a beneficial interest
in the trust.
(m) All forfeitures or dispositions under this Code
section shall be made with due provision for the rights of innocent persons.
16-14-14. [
Index ]
(a) The term of a RICO lien notice shall be for a period of
six years from the date of filing unless a renewal RICO lien notice has been
filed by the investigative agency; and, in such case, the term of the
renewal RICO lien notice shall be for a period of six years from the date of
its filing. The investigative agency shall be entitled to only one renewal
of the RICO lien notice.
(b) The investigative agency filing the RICO
lien notice may release in whole or in part any RICO lien notice or may
release any specific real property or beneficial interest from the RICO lien
notice upon such terms and conditions as it may determine. Any release of a
RICO lien notice executed by the investigative agency may be filed in the
official records of any county. No charge or fee shall be imposed for the
filing of any release of a RICO lien notice.
(c) If no civil proceeding
has been instituted by the investigative agency seeking a forfeiture of any
property owned by the person named in the RICO lien notice, the acquittal in
the criminal proceeding of the person named in the RICO lien notice or the
dismissal of the criminal proceeding shall terminate the RICO lien notice;
and, in such case, the filing of the RICO lien notice shall have no effect.
In the event the criminal proceeding has been dismissed or the person named
in the RICO lien notice has been acquitted in the criminal proceeding, the
RICO lien notice shall continue for the duration of the civil proceeding.
(d) If no civil proceeding is then pending against the person named in a
RICO lien notice, the person named in a RICO lien notice may institute an
action against the investigative agency filing the notice in the county
where the notice has been filed seeking a release or extinguishment of the
notice; and, in such case:
(1) The court shall, upon the motion of such
person, immediately enter an order setting a date for hearing, which date
shall be not less than five nor more than ten days after the action has been
filed; and the order, along with a copy of the complaint, shall be served on
the investigative agency within three days after the institution of the
action. At the hearing, the court shall take evidence on the issue of
whether any real property or beneficial interest owned by such person is
covered by the RICO lien notice or otherwise subject to forfeiture under
this chapter; and, if such person shows by the preponderance of the evidence
that the RICO lien notice is not applicable to him or that any real property
or beneficial interest owned by him is not subject to forfeiture under this
chapter, the court shall enter a judgment extinguishing the RICO lien notice
or releasing the real property or beneficial interest from the RICO lien
notice;
(2) The court shall immediately enter its order releasing from
the RICO lien notice any specific real property or beneficial interest if a
sale of the real property or beneficial interest is pending and the filing
of the notice prevents the sale of the property or interest; however, the
proceeds resulting from the sale of the real property or beneficial interest
shall be deposited into the registry of the court, subject to the further
order of the court; and
(3) At the hearing set forth in paragraph (1),
the court may release from the RICO lien notice any real property or
beneficial interest upon the posting by such person of such security as is
equal to the value of the real property or beneficial interest owned by such
person.
(e) In the event a civil proceeding is pending against a person
named in a RICO lien notice, the court, upon motion by said person, may
grant the relief set forth in this Code section.
16-14-15. [
Index ]
(a)
Each alien corporation desiring to acquire of record any real property shall
have, prior to acquisition, and shall continuously maintain in this state
during any year thereafter in which such real property is owned by the alien
corporation:
(1) A registered office; and
(2) A registered agent,
which agent may be either:
(A) An individual resident in this state
whose business office is identical with such registered office; or
(B)
Another corporation authorized to transact business in this state having a
business office identical with such registered office.
(b) Each
registered agent appointed pursuant to this Code section, on whom process
may be served, shall file a statement in writing with the Secretary of State
accepting the appointment as registered agent simultaneously with being
designated.
(c) Each alien corporation shall file with the Secretary of
State an annual registration setting forth:
(1) The name of the alien
corporation and the country under whose law it is incorporated;
(2) The
mailing address of the principal office of the alien corporation;
(3)
The name and mailing address of each officer and each director of the alien
corporation;
(4) The name and street address of the registered agent and
registered office of the alien corporation; and
(5) The signature of the
corporate president, vice-president, secretary, assistant secretary, or
treasurer attesting to the accuracy of the report as of the date the annual
registration is executed on behalf of the corporation.
(d) The first
annual registration must be delivered to the Secretary of State between
January 1 and April 1, or such other date as the Secretary of State may
specify by rules or regulations, of the year following a calendar year in
which an alien corporation filed its initial application pursuant to
subsection (a) of this Code section. Subsequent annual registrations must be
delivered to the Secretary of State between January 1 and April 1, or such
other date as the Secretary of State may specify by rules or regulations, of
the following calendar years.
(e) For filing reports required pursuant
to this Code section, the Secretary of State shall collect a filing fee as
set out in Code Section 14-2-122 for the filing of annual registrations.
(f) If an annual registration does not contain the information required by
this Code section, the Secretary of State shall promptly notify the
reporting domestic, foreign, or alien corporation in writing and return the
report to it for correction. If the report is corrected to contain the
information required by this Code section and delivered to the Secretary of
State within 30 days after the effective date of notice, it is deemed to be
timely filed.
(g) The Secretary of State shall record the status of any
alien corporation that fails to comply with the requirements of this Code
section.
(h) Each alien corporation that fails to file a report as
required by subsection (c) of this Code section or fails to maintain a
registered office and a registered agent as required by subsection (a) of
this Code section shall not be entitled to own, purchase, or sell any real
property and shall not be entitled to bring an action or defend in the
courts of the state until such requirements have been complied with.
(i)
The filing of a report by a corporation as required by subsection (c) of
this Code section shall be solely for the purposes of this chapter and,
notwithstanding Code Section 14-2-510 or any other relevant law, shall not
be used as a determination of whether the corporation is actually doing
business in this state.