Nebraska Revised Statute 28-1601

Chapter 28 Section 1601

28-1601.

Property used in commission of certain crimes; forfeiture; proceeding; prosecuting authority; duties; pretrial hearing; intervention; evidentiary hearing; court orders; failure to appear; storage fee.

(1) In addition to existing penalties for a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107, a court may order forfeiture of any money, securities, negotiable instruments, firearms, conveyances, or electronic communication devices as defined in section 28-833, any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices, or any gambling devices as defined in section 28-1101 if:

(a) The owner or possessor of the property has been convicted of a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107;

(b) The information charging such violation specifically requests the forfeiture of property upon conviction and is prepared pursuant to section 28-1602; and

(c) The property is found by clear and convincing evidence to have been derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107.

(2) Following the filing of an information charging a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 that specifically seeks forfeiture of any property listed in subsection (1) of this section, the defendant may request a pretrial hearing to determine the existence of probable cause to believe that the property specifically sought to be forfeited was derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107. The request for a hearing pursuant to this section must be filed with the district court in which the criminal proceeding is pending within thirty days after the filing of the information.

(3) At any time after the filing of the information in district court and prior to final disposition of the criminal case, any person or entity, other than the defendant, with a claimed legal interest in the property may petition to intervene in the district court with jurisdiction over the criminal case for the specific and limited purpose of demonstrating his, her, or its legal interest in the property and his, her, or its lack of actual knowledge that such property was derived from, used, or intended to be used in violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107. In the petition to intervene, the intervening person or entity shall, at a minimum, state facts demonstrating his, her, or its legal interest in the property and his, her, or its lack of actual knowledge regarding the use or intended use of the property. Within thirty days after filing a motion to intervene, the district court shall conduct an evidentiary hearing on the matter. At the conclusion of such hearing, the court may order that any or all of the property be returned to the intervening claimant after it is no longer needed as evidence in the criminal case upon a showing by the claimant by a preponderance of the evidence (a) that he, she, or it has a legally recognized interest in the property and (b) either (i) that such property was acquired by the claimant in good faith and he, she, or it did not have actual knowledge that such property was derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 or (ii) that the property seized was not derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107. The court, on its own motion or upon application of the intervening claimant, may permit such person to proceed in forma pauperis under sections 25-2301 to 25-2310. The court, on its own motion or upon application of the intervening claimant, may appoint counsel to represent such person if such person is indigent. If he or she asserts indigency, the court shall make a reasonable inquiry to determine such person's financial condition and may require him or her to execute an affidavit of indigency for filing with the clerk of the court.

(4) After conviction but prior to sentencing for a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 in cases in which the prosecuting authority has specifically requested forfeiture of property, the district court shall conduct an evidentiary hearing at which the prosecuting authority must prove by clear and convincing evidence what specific amount or portion of the property specifically enumerated in the criminal information was derived from, used, or intended for use in furtherance of a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107. At the conclusion of such hearing, the court shall make specific findings of fact indicating what amount or portion of the property sought to be forfeited by the state was derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107. The court shall order any amount or portion of the property not proven by the state to be derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 or the fair market value of the legally recognized interest in such property be returned to its rightful and legal owner or interest holder.

(5)(a) The court shall order that any amount or portion of property proven by the state by clear and convincing evidence to be derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 be forfeited to the state and disposition of such property be conducted in accordance with this subsection and section 28-1439.02 at such time as the property is no longer required as evidence in any criminal proceeding.

(b) As part of any disposition of property, the court may order that: (i) Any money, securities, or negotiable instruments be distributed as provided in Article VII, section 5, of the Constitution of Nebraska; (ii) any conveyances be sold or put to official use by the seizing agency for a period of not more than one year and when such property is no longer necessary for official use or at the end of two years, whichever comes first, such property shall be sold. Proceeds from the sale of any conveyance shall be distributed as provided in Article VII, section 5, of the Constitution of Nebraska; (iii) any electronic communication devices as defined in section 28-833, any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices, or any gambling devices as defined in section 28-1101 be destroyed by a law enforcement agency; and (iv) the disposition of firearms shall be effectuated pursuant to section 29-820.

(c) As used in this subsection, official use means use directly in connection with enforcement of the Child Pornography Prevention Act, the Uniform Controlled Substances Act, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107.

(6) Any money, securities, negotiable instruments, firearms, conveyances, or electronic communication devices as defined in section 28-833, any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices, or any gambling devices as defined in section 28-1101 may be forfeited pursuant to a plea agreement between the state and the defendant subject to notice to or approval of the court.

(7) Subdivision (1)(a) of this section does not apply if the owner or possessor of the property dies or is removed from the United States before charges are filed or a conviction obtained.

(8) Subdivision (1)(b) of this section does not apply if the owner or possessor of the property dies or is removed from the United States before charges are filed so long as the statute of limitations for a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 has not expired.

(9) Subdivision (1)(a) of this section does not apply if the owner or possessor of the property is unknown or incapable of being determined for some legitimate reason or fails to appear in court as ordered after prosecution for a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 is commenced and is not apprehended within twelve months after the failure to appear order was issued by the court.

(10) If the owner or possessor of the property fails to appear in court as ordered after prosecution for a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 is commenced but appears or is apprehended within twelve months after the failure to appear order was issued by the court, the court may order the owner or possessor of the property, as a part of any sentence imposed for either the failure to appear or the conviction of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107, to pay a storage fee of one hundred dollars per month for each month the property was held following the issuance of the failure to appear order.

Cross References

  • Child Pornography Prevention Act, see section 28-1463.01.
  • Uniform Controlled Substances Act, see section 28-401.01.