46.4905 Forfeiture.

Cite as [A.S.C.A. § 46.4905]

(a) A person who commits a felony violation of this chapter shall forfeit, according to this section, (i) any moneys, profits, or proceeds the person acquired in whole or in part, as a result of committing the violation and (ii) any property or interest in property that the sentencing court determines the person acquired, in whole or in part, as a result of committing violation or the person maintained or used, in whole or in part, to facilitate, directly or indirectly, the commission of the violation. The person shall forfeit any interest in, securities of claim against, or contractual right of any kind that affords the person a source of influence over, any enterprise that the person has established, operated, controlled, conducted, or participated in conducting, if the person's relationship to or connection with the interest, security of claim, or contractual right, directly or indirectly, in whole or in part, is traceable to any thing or benefit that the person has obtained or acquired as a result of a felony violation under this chapter.

(b) The following items are subject to forfeiture:

(1) All moneys, things of value, books, records, and research products and materials that are used or intended to be used in committing a felony violation of this chapter.

(2) Everything of value furnished, or intended to be furnished, in exchange for any material or substance in violation of this chapter, all proceeds traceable to that exchange, and all moneys, negotiable instruments, and securities used or intended t be used to commit or in any manner to facilitate the commission of felony violation of this Chapter.

(3) All real property, including any right, title, and interest (including, but not limited to, any leasehold interest or the beneficial interest in a land trust) in the whole of any lot or tract of land and any appurtenances or improvements, that is used or intended to be used, in any manner or part, to commit or in any manner to facilitate the commission of a felony violation of this chapter or that is the proceeds of any act that constitutes a felony violation of this chapter.

(c) Property subject to forfeiture under this chapter may be seized by the Department of Public Safety and Attorney General's Office upon process or seizure warrant issued by any court having jurisdiction over the property. The Department of Public Safety and Attorney General's Office may seize property under this Chapter without process under any of the following circumstances:

(1) If the seizure is incident to inspection under an administrative inspection warrant.

(2) If the property subject to seizure has been the subject of a prior judgment in favor of the American Samoa Government criminal proceeding or in an injunction or forfeiture proceeding under this chapter.

(3) If there is probable cause to believe that the property is directly or indirectly dangerous to health or safety.

(4) If there is probable cause to believe that the property is subject to forfeiture under this chapter and the property is seized under circumstances in which a warrantless seizure or arrest would be reasonable.

(5) In accordance with any other section within the American Samoa Code Annotated.

(d) Proceedings instituted pursuant to this section shall be subject to and conducted in accordance with the procedures set forth in this subsection.

(1) The sentencing court, on petition by the Attorney General's Office at any time following sentencing of the defendant, shall conduct a hearing to determine whether any property or property interest of the defendant is subject to forfeiture under this section. At the forfeiture hearing the American Samoa Government has the burden of establishing, by a preponderance of the evidence, that the property or property interest is subject to forfeiture.

(2) In an action brought by the American Samoa Government under this section, in which a restraining order, injunction, prohibition, or other action in connection with any property or interest subject to forfeiture under this section is sought, the High Court presiding over the trial of the person charged with a felony violation of this chapter shall first determine whether there is probable cause to believe that the person so charged has committed an offense under this chapter and whether the property or interest is subject to forfeiture under this section. To make that determination, the High Court shall conduct a hearing without a jury, at which the American Samoa Government must establish that there is:

(i) probable cause that the person charged committed a felony offense under this chapter, and

(ii) probable cause that property r interest may be subject to forfeiture under this section. The hearing may be conducted simultaneously with a preliminary hearing or by motion of the American Samoa Government at any stage in the proceedings. The High Court may accept, at the preliminary hearing the filing of an information or complaint charging that the defendant committed a felony offense under this chapter. (3) Upon making a finding of probable cause, the High Court shall enter a restraining order, injunction, r prohibition or shall take other action in connection with the property or other interest subject to forfeiture under this section as is necessary to insure that the property is not removed from the jurisdiction of the High Court, concealed, destroyed, or otherwise disposed of by the owner of that property or interest before a forfeiture hearing is convened pursuant to this section. The Attorney General shall file a certified copy of the restraining order, injunction, or other probation issued under this section shall affect the rights of any bona fide purchaser, mortgagee, judgment creditor, or other lienholder that arose before the date the certified copy is filed.

(4) The court may at any time, on verified petition by the defendant, conduct a hearing to determine whether all or any portion of the property or interest, which the court previously determined to be subject to forfeiture or subject to any restraining order, injunction, prohibition, or other action, should be released. The court may in its discretion release the property to the defendant for good cause shown.

(5) Upon conviction of a person for a felony violation of this chapter, the High Court shall authorize the Commissioner of the Department of Public Safety and Attorney General's Office to seize any property or other interest declared forfeited under this section on terms and conditions the High Court deems proper.

(e) Property taken or detained under this section shall be held in the custody of the Attorney General subject only t the order and judgments of the High Court having jurisdiction over the forfeiture proceedings under this section. When property is seized under this section, the Attorney General's Office shall promptly conduct an inventory of the seized property and estimate the property's value to the High Court. Upon receiving the notice of seizure, the Attorney General may do any of the following:

(1) Place the property under seal.

(2) Remove the property to a storage area designated by the Attorney General for safekeeping.

(3) Deposit into an interest bearing account, property in the form f negotiable instruments or money which is not needed for evidentiary purposes.

(4) Place the property under constructive seizure by posting notice of the pending forfeiture on it, by giving notice of the pending forfeiture to its owners and interest holders, or by filing a notice of the pending forfeiture to its owners and interest holders, r by filing a notice of the pending forfeiture in any appropriate public record relating to property.

(5) Provide for another agency or custodian, including an owner, a secured party, or lienholder, to take custody of the property on terms and conditions set by the Attorney General.

(f) When property is forfeited under this section, the Attorney shall sell the property unless the property is required by law to be destroyed or is harmful t the public. The Attorney General shall distribute the proceeds of the sale, together with any moneys forfeited or seized, in accordance with subsection (g). On the application of the prosecutor who was responsible for investigation, arrest, and prosecution that lead to the forfeiture, however, the Attorney General may return any item of forfeited property t the prosecutor for official use in the enforcement of laws relating to this section if the prosecutor can demonstrate that the item requested would be useful to the prosecutor in their enforcement efforts.

(f) All moneys from penalties and the proceeds of sale of all property forfeited and seized under this section shall be distributed to the WIC and Food Stamp programs administered by the American Samoa Department of Human and Social Services.

History: 2004, PL 28-14.