RULE 32.2. FORFEITURE
(a) Notice to the Defendant. A court may conduct a forfeiture proceeding in conjunction with a criminal proceeding if the indictment or information contains notice to the defendant that the prosecution will seek the forfeiture of property in accordance with the applicable statute.
(b) Entering a Preliminary Order of Forfeiture.
(1) In General. As soon as practicable after a verdict or finding of guilty, or after a plea of guilty is accepted, on any count in an indictment or information regarding which forfeiture is sought, the court must determine what property is subject to forfeiture under the applicable statute. If the prosecution seeks forfeiture of specific property, the court must determine whether the prosecution has established the requisite nexus between the property and the offense. The court's determination may be based on evidence already in the record, including any written plea agreement or, if the forfeiture is contested, on evidence or information presented by the parties at a hearing after the verdict or finding of guilt.
(2) Preliminary Order. If the court finds that property is subject to forfeiture, it must promptly enter a preliminary order directing the forfeiture of specific property without regard to any third party's interest in all or part of it. Determining whether a third party has such an interest must be deferred until any third party files a claim in an ancillary proceeding under Rule 32.2(c).
(3) Seizing Property. The entry of a preliminary order of forfeiture authorizes the attorney general (or a designee) to seize the specific property subject to forfeiture; to conduct any discovery the court considers proper in identifying, locating, or disposing of the property; and to commence proceedings that comply with any statutes governing third-party rights. At sentencingor at any time before sentencing if the defendant consentsthe order of forfeiture becomes final as to the defendant. The court may include in the order of forfeiture conditions reasonably necessary to preserve the property's value pending any appeal.
(c) Ancillary Proceeding; Entering a Final Order of Forfeiture.
(1) In General. If a third party files a petition asserting an interest in the property to be forfeited, the court must conduct an ancillary proceeding.
(A) In the ancillary proceeding, the court may, on motion, dismiss the petition for lack of standing, for failure to state a claim, or for any other lawful reason. For purposes of the motion, the facts set forth in the petition are assumed to be true.
(B) After disposing of any motion filed under Rule 32.2(c)(1)(A) and before conducting a hearing on the petition, the court may permit the parties to conduct discovery in accordance with the North Dakota Rules of Civil Procedure if the court determines that discovery is necessary or desirable to resolve factual issues. When discovery ends, a party may move for summary judgment under N.D.R.Civ.P. 56.
(2) Entering a Final Order. When the ancillary proceeding ends, the court must enter a final order of forfeiture by amending the preliminary order as necessary to account for any third-party rights. If no third party files a timely petition, the preliminary order becomes the final order of forfeiture if the court finds that the defendant (or any combination of defendants convicted in the case) had an interest in property that is forfeitable under the applicable statute. The defendant may not object to the entry of the final order on the ground that the property belongs, in whole or in part, to a codefendant or third party; nor may a third party object to the final order on the ground that the third party had an interest in the property.
(3) Multiple Petitions. If multiple third-party petitions are filed in the same case, an order dismissing or granting one petition is not appealable until rulings are made on all the petitions, unless the court determines that there is no just reason for delay.
(d) Stay Pending Appeal. If a defendant appeals from a conviction or an order of forfeiture, the court may stay the order of forfeiture on terms appropriate to ensure that the property remains available pending appellate review. A stay does not delay the ancillary proceeding or the determination of a third party's rights or interests. If the court rules in favor of any third party while an appeal is pending, the court may amend the order of forfeiture but must not transfer any property interest to a third party until the decision on appeal becomes final, unless the defendant consents in writing or on the record.
(e) Subsequently Located Property; Substitute Property.
(1) In General. On the prosecution's motion, the court may at any time enter an order of forfeiture or amend an existing order of forfeiture to include property that:
(A) is subject to forfeiture under an existing order of forfeiture but was located and identified after that order was entered; or
(B) is substitute property that qualifies for forfeiture under an applicable statute.
(2) Procedure. If the prosecution shows that the property is subject to forfeiture under Rule 32.2(e)(1), the court must:
(A) enter an order forfeiting that property, or amend an existing preliminary or final order to include it; and
(B) if a third party files a petition claiming an interest in the property, conduct an ancillary proceeding under Rule 32.2(c).
(f) Jury Trial Limited. There is no right to a jury trial under Rule 32.2.
Rule 32.2 was adopted effective ________________.
Rule 32.2 is derived from Fed.R.Crim.P. 32.2.
SOURCES: Joint Procedure Committee Minutes of _______________ pages ___; Fed.R.Crim.P. 32.2.
CONSIDERED: N.D.C.C. §§ 19-03.1-36; 19-03.1-36.1; 19-03.1-36.2; 19-03.1-36.3; 19-03.1-36.4; 19-03.1-36.5; 19-03.1-36.6; 19-03.1-36.7; 19-03.1-36.8; N.D.C.C. ch. 29-31.1.