2006 Ohio Revised Code - 2923.32. Engaging in pattern of corrupt activity; forfeiture.

§ 2923.32. Engaging in pattern of corrupt activity; forfeiture.
 

(A) (1)  No person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt. 

(2) No person, through a pattern of corrupt activity or the collection of an unlawful debt, shall acquire or maintain, directly or indirectly, any interest in, or control of, any enterprise or real property. 

(3) No person, who knowingly has received any proceeds derived, directly or indirectly, from a pattern of corrupt activity or the collection of any unlawful debt, shall use or invest, directly or indirectly, any part of those proceeds, or any proceeds derived from the use or investment of any of those proceeds, in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise. 

A purchase of securities on the open market with intent to make an investment, without intent to control or participate in the control of the issuer, and without intent to assist another to do so is not a violation of this division, if the securities of the issuer held after the purchase by the purchaser, the members of the purchaser's immediate family, and the purchaser's or the immediate family members' accomplices in any pattern of corrupt activity or the collection of an unlawful debt do not aggregate one per cent of the outstanding securities of any one class of the issuer and do not confer, in law or in fact, the power to elect one or more directors of the issuer. 

(B) (1)  Whoever violates this section is guilty of engaging in a pattern of corrupt activity. Except as otherwise provided in this division, engaging in corrupt activity is a felony of the second degree. If at least one of the incidents of corrupt activity is a felony of the first, second, or third degree, aggravated murder, or murder, if at least one of the incidents was a felony under the law of this state that was committed prior to the effective date of this amendment and that would constitute a felony of the first, second, or third degree, aggravated murder, or murder if committed on or after the effective date of this amendment, or if at least one of the incidents of corrupt activity is a felony under the law of the United States or of another state that, if committed in this state on or after the effective date of this amendment, would constitute a felony of the first, second, or third degree, aggravated murder, or murder under the law of this state, engaging in a pattern of corrupt activity is a felony of the first degree. Notwithstanding any other provision of law, a person may be convicted of violating the provisions of this section as well as of a conspiracy to violate one or more of those provisions under section 2923.01 of the Revised Code. 

(2) Notwithstanding the financial sanctions authorized by section 2929.18 of the Revised Code, the court may do all of the following with respect to any person who derives pecuniary value or causes property damage, personal injury other than pain and suffering, or other loss through or by the violation of this section: 

(a) In lieu of the fine authorized by that section, impose a fine not exceeding the greater of three times the gross value gained or three times the gross loss caused and order the clerk of the court to pay the fine into the corrupt activity investigation and prosecution fund created in section 2923.35 of the Revised Code; 

(b) In addition to the fine described in division (B)(2)(a) of this section and the financial sanctions authorized by section 2929.18 of the Revised Code, order the person to pay court costs; 

(c) In addition to the fine described in division (B)(2)(a) of this section and the financial sanctions authorized by section 2929.18 of the Revised Code, order the person to pay to the state, municipal, or county law enforcement agencies that handled the investigation and prosecution the costs of investigation and prosecution that are reasonably incurred. 

The court shall hold a hearing to determine the amount of fine, court costs, and other costs to be imposed under this division. 

(3) In addition to any other penalty or disposition authorized or required by law, the court shall order any person who is convicted of or pleads guilty to a violation of this section or who is adjudicated delinquent by reason of a violation of this section to criminally forfeit to the state any personal or real property in which the person has an interest and that was used in the course of or intended for use in the course of a violation of this section, or that was derived from or realized through conduct in violation of this section, including any property constituting an interest in, means of control over, or influence over the enterprise involved in the violation and any property constituting proceeds derived from the violation, including all of the following: 

(a) Any position, office, appointment, tenure, commission, or employment contract of any kind acquired or maintained by the person in violation of this section, through which the person, in violation of this section, conducted or participated in the conduct of an enterprise, or that afforded the person a source of influence or control over an enterprise that the person exercised in violation of this section; 

(b) Any compensation, right, or benefit derived from a position, office, appointment, tenure, commission, or employment contract described in division (B)(3)(a) of this section that accrued to the person in violation of this section during the period of the pattern of corrupt activity; 

(c) Any interest in, security of, claim against, or property or contractual right affording the person a source of influence or control over the affairs of an enterprise that the person exercised in violation of this section; 

(d) Any amount payable or paid under any contract for goods or services that was awarded or performed in violation of this section. 

(4) (a) A sentence or disposition of criminal forfeiture pursuant to division (B)(3) of this section shall not be entered unless either of the following applies: 

(i) The indictment, count in the indictment, or information charging the offense, or the complaint, indictment, or information filed in juvenile court charging the violation as a delinquent act alleges the extent of the property subject to forfeiture; 

(ii) The criminal sentence or delinquency disposition requires the forfeiture of property that was not reasonably foreseen to be subject to forfeiture at the time of the indictment, count in the indictment, or information charging the offense, or the complaint, indictment, or information filed in juvenile court charging the violation as a delinquent act, provided that the prosecuting attorney gave prompt notice to the defendant or the alleged or adjudicated delinquent child of such property not reasonably foreseen to be subject to forfeiture when it is discovered to be forfeitable. 

(b) A special verdict shall be returned as to the extent of the property, if any, subject to forfeiture. When the special verdict is returned, a judgment of forfeiture shall be entered. 

(5) If any property included in a special verdict of forfeiture returned pursuant to division (B)(4) of this section cannot be located, has been sold to a bona fide purchaser for value, placed beyond the jurisdiction of the court, substantially diminished in value by the conduct of the defendant or adjudicated delinquent child, or commingled with other property that cannot be divided without difficulty or undue injury to innocent persons, or otherwise is unreachable without undue injury to innocent persons, the court shall order forfeiture of any other reachable property of the defendant or adjudicated delinquent child up to the value of the property that is unreachable. 

(6) All property ordered forfeited pursuant to this section shall be held by the law enforcement agency that seized it for distribution or disposal pursuant to section 2923.35 of the Revised Code. The agency shall maintain an accurate record of each item of property so seized and held, which record shall include the date on which each item was seized, the manner and date of disposition by the agency, and if applicable, the name of the person who received the item; however, the record shall not identify or enable the identification of the individual officer who seized the property. The record is a public record open for inspection under section 149.43 of the Revised Code. Each law enforcement agency that seizes and holds in any calendar year any item of property that is ordered forfeited pursuant to this section shall prepare a report covering the calendar year that cumulates all of the information contained in all of the records kept by the agency pursuant to this division for that calendar year, and shall send the cumulative report, no later than the first day of March in the calendar year following the calendar year covered by the report, to the attorney general. Each such report so received by the attorney general is a public record open for inspection under section 149.43 of the Revised Code. Not later than the fifteenth day of April in the calendar year in which the reports were received, the attorney general shall send to the president of the senate and the speaker of the house of representatives a written notification that does all of the following: 

(a) Indicates that the attorney general has received from law enforcement agencies reports of the type described in this division that cover the previous calendar year and indicates that the reports were received under this division; 

(b) Indicates that the reports are open for inspection under section 149.43 of the Revised Code; 

(c) Indicates that the attorney general will provide a copy of any or all of the reports to the president of the senate or the speaker of the house of representatives upon request. 

(C)  Notwithstanding the notice and procedure prescribed by division (E) of this section, an order of criminal forfeiture entered under division (B)(3) of this section shall authorize an appropriate law enforcement agency to seize the property declared forfeited under this section upon the terms and conditions, relating to the time and manner of seizure, that the court determines proper. 

(D)  Criminal penalties under this section are not mutually exclusive, unless otherwise provided, and do not preclude the application of any other criminal or civil remedy under this or any other section of the Revised Code. A disposition of criminal forfeiture ordered pursuant to division (B)(3) of this section in relation to a child who was adjudicated delinquent by reason of a violation of this section does not preclude the application of any other order of disposition under Chapter 2152. of the Revised Code or any other civil remedy under this or any other section of the Revised Code. 

(E) (1)  Upon the entry of a judgment of forfeiture pursuant to division (B)(3) of this section, the court shall cause notice of the judgment to be sent by certified mail, return receipt requested, to all persons known to have, or appearing to have, an interest in the property that was acquired prior to the filing of a corrupt activity lien notice or a lis pendens as authorized by section 2923.36 of the Revised Code. If the notices cannot be given to those persons in that manner, the court shall cause publication of the notice of the judgment of forfeiture pursuant to the Rules of Civil Procedure. 

(2) Within thirty days after receipt of a notice or after the date of publication of a notice under division (E)(1) of this section, any person, other than the defendant or the adjudicated delinquent child, who claims an interest in the property that is subject to forfeiture may petition the court for a hearing to determine the validity of the claim. The petition shall be signed and sworn to by the petitioner and shall set forth the nature and extent of the petitioner's interest in the property, the date and circumstances of the petitioner's acquisition of the interest, any additional allegations supporting the claim, and the relief sought. The petitioner shall furnish the prosecuting attorney with a copy of the petition. 

(3) The court, to the extent practicable and consistent with the interests of justice, shall hold the hearing described under division (E)(2) of this section within thirty days from the filing of the petition. The court may consolidate the hearings on all petitions filed by third party claimants under this section. At the hearing, the petitioner may testify and present evidence on the petitioner's own behalf and cross-examine witnesses. The prosecuting attorney may present evidence and witnesses in rebuttal and in defense of the claim of the state to the property and cross-examine witnesses. The court, in making its determination, shall consider the testimony and evidence presented at the hearing and the relevant portions of the record of the criminal proceeding that resulted in the judgment of forfeiture. 

(4) If at a hearing held under division (E)(3) of this section, the court, by a preponderance of the evidence, determines either that the petitioner has a legal right, title, or interest in the property that, at the time of the commission of the acts giving rise to the forfeiture of the property, was vested in the petitioner and not in the defendant or the adjudicated delinquent child or was superior to the right, title, or interest of the defendant or the adjudicated delinquent child, or that the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of the purchase reasonably without cause to believe that the property was subject to forfeiture under this section, it shall amend, in accordance with its determination, the judgment of forfeiture to protect the rights of innocent persons. 

(F)  Except as provided in division (E) of this section, no person claiming an interest in property that is subject to forfeiture under this section shall do either of the following: 

(1) Intervene in a trial or appeal of a criminal case or a delinquency case that involves the forfeiture of the property; 

(2) File an action against the state concerning the validity of the person's alleged interest in the property subsequent to the filing of the indictment, count in the indictment, or information, or the filing of the complaint, indictment, or information in juvenile court, that alleges that the property is subject to forfeiture under this section. 

(G)  As used in this section, "law enforcement agency" includes, but is not limited to, the state board of pharmacy. 
 

HISTORY: 141 v H 5 (Eff 1-1-86); 141 v S 74 (Eff 9-3-86); 142 v H 708 (Eff 4-19-88); 143 v H 215 (Eff 4-11-90); 143 v H 266 (Eff 9-6-90); 146 v S 2 (Eff 7-1-96); 147 v S 164 (Eff 1-15-98); 148 v S 179, § 3. Eff 1-1-2002.
 

Not analogous to former RC § 2923.32 (GC § 12674; 114 v 143; Bureau of Code Revision, 10-1-53), repealed 134 v H 511, § 2, eff 1-1-74.

The effective date is set by section 5 of SB 179. 


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