SB234 By Senator Orr RFD Judiciary Rd 1 16-FEB-16

SYNOPSIS: This bill would create the Alabama RICO (Racketeer Influenced and Corrupt Organizations) Act to provide criminal penalties and other sanctions for those who engage in racketeering activity or patterns of racketeering activity.

This bill would prohibit a person, through a pattern of racketeering activity or proceeds derived therefrom, from acquiring or maintaining, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money, and would prohibit a person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, an enterprise through a pattern of racketeering activity.

This bill would allow courts to enjoin certain violations of the act to protect the rights of innocent persons and would provide that all property of every kind used or derived from a pattern of racketeering activity is subject to forfeiture.

This bill would also provide for the enforcement of RICO judgments in other states and would allow investigative agencies to file liens on certain property or beneficial interests of persons engaged in violations of the act.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

Relating to racketeering; to provide criminal penalties and other sanctions for those who engage in racketeering activity or patterns of racketeering activity; to provide for criminal and civil penalties; to authorize courts to enjoin certain racketeering activities; to provide for the forfeiture of property used or derived from a pattern of racketeering activity; to provide for the enforcement of RICO judgments in other states; to allow investigative agencies to file liens on certain property or beneficial interests of persons engaged in violations of this act; to provide for the venue of criminal proceedings; and to create the Criminal Organized Activity/RICO Fund; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall be known and may be cited as the Alabama RICO (Racketeer Influenced and Corrupt Organizations) Act.

Section 2. The Legislature finds and declares the following:

(1) 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.

(2) The intent of this act is to impose sanctions against those who violate this act and to provide compensation to persons injured or aggrieved by such violations. It is not the intent of the Legislature that isolated incidents of misdemeanor conduct or acts of civil disobedience be prosecuted under this act. It is the intent of the Legislature, however, that this act 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 act shall be liberally construed to effectuate the remedial purposes embodied in its operative provisions.

Section 3. For the purposes of this act, the following terms shall have the following meanings:

(1) BENEFICIAL INTEREST. 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 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. The term 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.

(2) CIVIL PROCEEDING. Any civil action commenced by an investigative agency under any provision of this act.

(3) CRIMINAL PROCEEDING. Any criminal prosecution commenced by an investigative agency under any provision of this act.

(4) DOCUMENTARY MATERIAL. Any book, paper, document, writing, drawing, graph, chart, photograph, phonorecord, magnetic tape, computer printout, or other data compilation from which information can be obtained or from which information can be translated into usable form or other tangible item.

(5) ENTERPRISE. 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.

(6) INVESTIGATIVE AGENCY. The Attorney General or the office of any district attorney.

(7) PATTERN OF RACKETEERING ACTIVITY. Any three or more persons engaging in either of the following:

a. 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, 2016, and that the last of the acts occurred within four years, excluding any periods of imprisonment, after the commission of a prior act of racketeering activity.

b. Any one or more acts of domestic terrorism as described in subsection (a) of Section 10 or any criminal attempt, criminal solicitation, or criminal conspiracy related thereto.

(8) 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 or the commission, attempt to commit, solicitation, coercion, or intimidation of another person to commit the following crimes which are chargeable by indictment under the following laws of this state:

a. Offenses chargeable as a felony under Alabama law.

b. Theft of property.

c. Receipt of stolen property.

d. Promotion of gambling.

e. Promotion of prostitution.

f. Offenses defined in Alabama law relating to the security of state or county or juvenile correctional facilities.

g. Any criminal offense committed in violation of the laws of the United States or its territories, dominions, or possessions, any of the several states, or any foreign nation which, if committed in this state, would be considered criminal organized activity under this section.

(9) PERSON. Any natural person or any business entity.

(10) REAL PROPERTY. 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. The notice described in Section 12.

(12) TRUSTEE. Any person who holds legal or record title to real property for which any other person has a beneficial interest or any successor trustee or trustees to any of the foregoing persons. The term does not include any person appointed or acting as a guardian or conservator under Title 26, Code of Alabama 1975, relating to guardian and ward, or personal representative under Chapter 2 of Title 43, Code of Alabama 1975, relating to the administration of estates, and other provisions in such revised probate code relating to the administration of estates or 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.

Section 4. (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 attempt to violate any of the provisions of subsection (a) or (b).

Section 5. (a) Any person convicted of the offense of engaging in activity in violation of Section 4 is guilty of a Class A felony.

(b) In lieu of any fine otherwise authorized by law, any person convicted of the offense of engaging in conduct in violation of Section 4 shall be sentenced to pay a fine that does not exceed the greater of sixty thousand dollars ($60,000) or three times the amount of any pecuniary value gained by him or her from the violation, with the funds being paid into the Criminal Organized Activity/RICO Fund. If an adverse ruling is made in a forfeiture case against a person convicted of violating Section 4, the fine shall be offset by the amount of the forfeiture awarded to the plaintiff or plaintiffs.

(c) The court shall hold a hearing to determine the amount of the fine authorized by subsection (b).

(d) For the purposes of subsection (b), "pecuniary value" means either of the following:

(1) Anything of value in the form of money, a negotiable instrument, a commercial interest, or anything else, derived from the racketeering activity.

(2) Any other property or service that has a value in excess of one hundred dollars ($100) derived from the racketeering activity.

Section 6. (a) Any circuit court, after making due provisions for the rights of innocent persons, may enjoin violations of Section 4 by issuing appropriate orders and judgments including, but not limited to, the following:

(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 or she was engaged in violation of Section 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.

(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 Section 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). In the 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 Section 4 shall have a cause of action for three times the actual damages sustained and, where appropriate, punitive damages. The 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 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 act shall estop the defendant in any subsequent civil action or proceeding as to all matters proved in the criminal proceeding.

(f) If the court finds that an action brought under this section violates Rule 11(a) of the Alabama Rules of Civil Procedure, the court shall assess both parties' attorneys' fees to the offending party and may take further disciplinary action if necessary.

Section 7. (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 what shall be known as a RICO forfeiture to the state.

(b) Any property, whether real or personal, and any funds or monetary instruments for which the defendant transferred ownership interest in to another person, may be forfeited if the state proves by a preponderance of the evidence both of the following:

(1) The transfer occurred within the previous three years from any arrest for a violation of this act or the institution of forfeiture proceedings pursuant to this act, whichever occurs first.

(2) The defendant retained substantial access to, use of, or control over such property, funds, or instruments.

(c) A RICO forfeiture proceeding shall be governed by the Alabama Rules of Civil Procedure except to the extent that special rules of procedure are stated in this act.

(d) A RICO forfeiture proceeding shall be an in rem proceeding against the property.

(e) A RICO forfeiture proceeding shall be instituted by complaint and prosecuted by the Attorney General or 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.

(f)(1) 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.

(2) 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.

(3) 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 exists 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.

(4) 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.

(g) 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 10 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, within a reasonable time after receiving notice of seizure, shall file a complaint for forfeiture. The complaint shall state, in addition to the information required in subsection (f), the date and location of the seizure.

(h) 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 the Alabama Rules of Civil Procedure. Service by publication may be ordered upon any party whose whereabouts cannot be determined.

(i)(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, upon such terms and conditions as prescribed by it, may 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 the 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 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.

(j) After service of process, all further proceedings shall be as provided in the Alabama Rules of Civil Procedure, except that any party may bring one motion to dismiss at any time and such motion shall be heard and ruled on within 10 days.

(k) 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.

(l) Subject to the requirement of protecting the interest of all innocent parties, the court, after judgment of forfeiture, may 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 the agency or political subdivision no longer has use for the property, it shall be disposed of by judicial sale.

(3) 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 the sale over and above the amount necessary to satisfy the lien or security interest.

(4) Judicial sale of the property.

(5) Transfer of the property to any innocent party having an interest therein equal to or greater than the value of the property.

(6) Any other disposition of the property which is in the interest of substantial justice and adequately protects innocent parties.

(m) 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 section, the court, after satisfaction of the interest of any innocent party, may 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.

(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, Code of Alabama 1975, 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.

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, on behalf of the state, may institute an action in the appropriate circuit 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, the action shall be filed only in the court where the civil proceeding is pending.

(o) Unless by other agreement of the primary law enforcement agency and the prosecutorial entity, the proceeds from any forfeiture shall be used, first, for payment of all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of or custody, advertising, prosecution, and court costs. The remaining proceeds from the sale or distribution shall be awarded by the court pursuant to recommendation of the prosecutorial entity on a pro rata share to the participating law enforcement agencies, the prosecutorial entity that pursued the action, and as payment of restitution to any victims of the underlying offense. Any proceeds from sales authorized by this section awarded by the court to a county or municipal law enforcement agency shall be deposited into the respective county or municipal general fund and made available to the appropriate law enforcement agency upon requisition of the chief law enforcement official of the agency. Any monies or proceeds authorized by this act and ordered by the court to be distributed to the district attorney shall be deposited into the district attorney's solicitor's fund to be expended for lawful law enforcement purposes.

(p) Upon motion of any party, a proceeding instituted under this act shall be stayed pending the disposition of the underlying criminal action.

Section 8. Notwithstanding any other provision of law, a criminal or civil action or proceeding under this act may be commenced up until five years after the conduct in violation of a provision of this act 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 act, then the running of this period of limitations, with respect to any cause of action arising under subsection (b) or (c) of Section 6 which is based upon any matter complained of in the 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.

Section 9. The application of one civil remedy under this act shall not preclude the application of any other remedy, civil or criminal, under this act or any other provision of law. Civil remedies under this act are supplemental and not mutually exclusive.

Section 10. (a) Notwithstanding any other provision of law, a valid judgment rendered by a court of a jurisdiction having a law substantially similar to this act 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 act would be enforced in the 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 act so as to further the purposes of this act.

Section 11. In any criminal proceeding brought pursuant to this act, 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.

Section 12. (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 court, upon the presentation of a RICO lien notice, shall immediately record it in the official records.

(b) The RICO lien notice shall be signed by the Attorney General or his or her designee or by a district attorney or his or her designee. The notice shall be in such form as the Attorney General prescribes and shall set forth all of 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 act 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 act.

(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 subdivision (1) of subsection (b). 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 section.

(d) The investigative agency, as soon as practicable after the filing of each RICO lien notice, shall 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 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.

(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 Section 13. 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.

(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 or she 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.

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 Class B 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 the following:

(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.

(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 or her 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 circuit 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) This section shall not apply to any conveyance by a trustee pursuant to a court order unless the 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, this section shall not apply to either of the following:

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.

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 section shall be made with due provision for the rights of innocent persons.

Section 13. (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, upon the motion of such person, shall immediately enter an order setting a date for hearing, which date shall be not less than five nor more than 10 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 the person is covered by the RICO lien notice or otherwise subject to forfeiture under this act; and, if the person shows by the preponderance of the evidence that the RICO lien notice is not applicable to him or her or that any real property or beneficial interest owned by him or her is not subject to forfeiture under this act, 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.

(3) At the hearing set forth in subdivision (1), the court may release from the RICO lien notice any real property or beneficial interest upon the posting by the person of the security as is equal to the value of the real property or beneficial interest owned by the person.

(e) In the event a civil proceeding is pending against a person named in a RICO lien notice, the court, upon motion by the person, may grant the relief set forth in this section.

Section 14. (a) There shall be established as part of the Office of Prosecution Services, the Criminal Organized Activity/RICO Fund. The fund shall be allowed to accept contributions from public officials, law enforcement agencies, advocacy groups, individuals, governmental entities as well as private and charitable entities. Further, the fund may apply for any applicable grants. The fund shall also receive the full amounts of any fines imposed pursuant to Section 5.

(b) If funds are available, the Attorney General, district attorneys, Secretary of the Alabama State Law Enforcement Agency (ALEA), chiefs of police, or sheriffs, may request funds to assist with RICO investigations, training on RICO matters, expenses associated with the prosecution of RICO cases, and the posting of up to a five thousand dollar ($5,000) reward for information leading to the arrest and conviction of any person involved in criminal organized RICO activity which leads to the death or maiming of another person, terrorism or funding of terrorism, or human trafficking.

(c) All funds shall be subject to audits by the Alabama Examiners of Public Accounts.

Section 15. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 16. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

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