RS 90.1 - Seizure and disposition of evidence, property and proceeds; gambling
A.(1) Upon conviction of a person for the crime of gambling, gambling by computer, or related offenses, the evidence, property, and paraphernalia seized as instruments of such crime shall, upon order of the court, be destroyed when it is no longer needed as evidence and all such evidence, property, and paraphernalia found to be in use in the conduct of such unlawful activity and having a value for lawful purposes, shall be sold under the orders of the court at public auction and the proceeds handled in accordance with Subsection B of this Section.
(2) Nothing shall prohibit the seizing or prosecutorial agency from petitioning the court to keep and maintain articles of evidence, property and paraphernalia for the purposes of training of investigators, historical display, or both.
B.(1) All property, immovable or movable, including money, used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of a provision of R.S. 14:90, 90.2, 90.3, or 90.6, notwithstanding whether a conviction has been procured, is subject to civil forfeiture to the state. The state shall dispose of all forfeited property as soon as commercially feasible.
(2)(a) All forfeitures or dispositions under this Subsection shall be made with due regard for the rights of factually innocent persons. No mortgage, lien, privilege, or other security interest recognized under the laws of Louisiana shall be affected by a forfeiture hereunder if the holder of such mortgage, lien, privilege, or other security interest establishes that he is a factually innocent person. No forfeiture or disposition under this Section shall affect the rights of factually innocent persons provided that following notice of pending forfeiture a written claim is filed with the seizing agency and the district attorney within thirty days of seizure.
(b) Notwithstanding the provisions of this Section, a mortgage, lien, or security interest held by a federally-insured financial institution shall not be affected by the seizure and forfeiture provisions of this Section.
(3) Notice of pending forfeiture or service shall be given in accordance with one of the following:
(a) If the owner's or interest holder's name and current address are known, either by personal service or by mailing a copy of the notice by certified mail to that address.
(b) If the owner's or interest holder's name and address are required by law to be recorded with the parish clerk of court, the office of motor vehicles of the Department of Public Safety and Corrections, or another state or federal agency to perfect an interest in the property, and the owner's or interest holder's current address is not known, by mailing a copy of the notice by certified mail, return receipt requested, to any address of record with any of such agencies.
(c) If the owner's or interest holder's address is not known and is not on record as provided in Subparagraph (b) of this Paragraph, or the owner's or interest holder's interest is not known, by publication in one issue of the official journal in the parish in which the seizure occurs.
(d) Notice is effective upon personal service, publication, or the mailing of a written notice, whichever is earlier, and shall include a description of the property, the date and place of seizure, the conduct giving rise to forfeiture or the violation of law alleged, and a summary of procedures and procedural rights applicable to the forfeiture action.
(e) The district attorney may file, without a filing fee, a lien for the forfeiture of property upon the initiation of any civil or criminal proceeding under this Chapter or upon seizure for forfeiture. The filing constitutes notice to any person claiming an interest in the seized property or in property owned by the named person.
(4)(a) Only an owner of or interest holder in property seized for forfeiture may file a claim, and shall do so in the manner provided in this Section. The claim shall be mailed to the seizing agency and to the district attorney by certified mail, return receipt requested, within thirty days after notice of pending forfeiture. No extension of time for the filing of a claim shall be granted.
(b) The claim shall be in affidavit form, signed by the claimant under oath, and sworn to by the affiant before one who has authority to administer the oath, under penalty of perjury or false swearing and shall set forth all of the following:
(i) The caption of the proceedings as set forth on the notice of pending forfeiture or petition and the name of the claimant.
(ii) The address where the claimant will accept mail.
(iii) The nature and extent of the claimant's interest in the property.
(iv) The date, identity of the transferor, and the circumstances of the claimant's acquisition of the interest in the property.
(v) The specific provision of this Chapter relied on in asserting that the property is not subject to forfeiture.
(vi) All essential facts supporting each assertion.
(vii) The specific relief sought.
(5) The allocation of proceeds from such forfeiture and disposition shall be determined by the court in accordance with each law enforcement entity's participation in the investigation, seizure, and forfeiture process.
(a) Proceeds are to be placed into a gambling forfeiture trust fund maintained by the appropriate local, state, or federal agency. Such proceeds are to be used exclusively in law enforcement. Permissible uses include, but are not limited to, reward programs established by such agencies, prosecution, continuing legal education, law enforcement training and equipment.
(b) Prior to such allocation, the costs of investigation shall be paid to the law enforcement agency conducting the investigation and twenty-five percent of the proceeds, including the costs of prosecution, shall be paid to the district attorney's gambling forfeiture trust fund, or in parishes where no such fund exists, to the district attorney's office.
(c) The court shall make an allocation of twenty-five percent of the proceeds based on participation of law enforcement agencies involved.
(d) The remainder of the proceeds shall be deposited into the State General Fund.
C.(1) In the event of a seizure under this Section, a forfeiture proceeding shall be instituted within a reasonable period of time. Property taken or detained under this Section shall not be subject to sequestration or attachment but is deemed to be in the custody of the law enforcement officer making the seizure, subject only to the order of the court. When property is seized under this Section, pending forfeiture and final disposition, the law enforcement officer making the seizure may either:
(a) Place the property under seal.
(b) Remove the property to a place designated by the court.
(c) Request another agency authorized by law to take custody of the property and remove it to an appropriate location.
(2) In the case of currency, the currency shall be photographed and transferred in the form of a cashiers check to the district attorney for deposit into the gambling forfeiture trust fund pending adjudication.
D. The district attorney may institute civil proceedings under this Section. In any action brought under this Section, the district court shall proceed as soon as practicable to the hearing and determination. Pending final determination, the court may at any time enter such injunctions or restraining orders or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper.
E. A final judgment or decree rendered in favor of the state in any criminal proceeding shall preclude the defendant from denying the essential facts established in that proceeding in any subsequent civil action.
F. Notwithstanding any other provision of law, a criminal or civil action or proceeding under this Chapter may be commenced at any time within 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 under the provisions of this Chapter, the running of the period prescribed by this Section with respect to any cause of action arising under Subsection D of this Section which is based in whole or in part upon any matter complained of in any such prosecution or action shall be suspended during the pendency of such prosecution or action and for two years following its termination.
G. A defendant who violates any provision of R.S. 14:90 or 90.3 shall be liable individually, and when two or more defendants have violated any provision of R.S. 14:90 or 90.3 they be liable in solido for all damages, costs of court, and other costs associated with the investigation and prosecution of such violations.
Added by Acts 1979, No. 317, §1, eff. July 10, 1979; Acts 2008, No. 673, §1, eff. July 1, 2008.