TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 32.2, N.D.R.Crim.P., Forfeiture
Justice Maring has requested that the Committee consider whether North Dakota should adopt a forfeiture procedure rule based on Fed.R.Crim.P. 32.2, the federal criminal forfeiture rule.
Under Fed.R.Crim.P. 32.2, a forfeiture procedure can be conducted in conjunction with a criminal case and the forfeiture order can be made part of the criminal judgment. Such a procedure may be incompatible with North Dakota's substantive forfeiture law, which requires forfeiture actions to be brought against the property to be forfeited with the final result set out in a civil judgment.
Conducting a forfeiture action in conjunction with the related criminal action, however, could contribute to judicial economy and timely resolution of the forfeiture action. In forfeiture actions, timeliness is a major issue. See State v. One Black 1989 Cadillac, 522 N.W.2d 457 (N.D. 1994). Therefore, staff has prepared a draft rule that is based on Fed.R.Crim.P. 32.2, but that also contains alterations designed to bring the rule in line with North Dakota's substantive forfeiture law.
North Dakota forfeiture law can be found in N.D.C.C. ch. 29-31.1 (Property Forfeiture and Disposition) and in N.D.C.C. §§ 19-03.1-36 19-03.1-36.7, the forfeiture sections of the Uniform Controlled Substances Act. Copies of these forfeiture statutes are attached. Forfeiture procedure is found in N.D.C.C. §§ 19-03.1-36.1 19-03.1-36.7, which apply to all forfeiture actions.
One issue the Committee may wish to discuss in considering the draft rule is whether it is practical to conduct a forfeiture action in conjunction with a criminal action. Under the draft rule, the court can rely on the evidence developed over the course of the trial in determining whether there is probable cause to forfeit the property and then resolve all the issues related to the defendant's rights in the property prior to sentencing. In theory, this would seem to provide an advantage over having a separate proceeding, but the Committee may have insight on whether this would work in the real world.
A copy of the draft rule is attached.