MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Judiciary A
By: Representative Blackmon
AN ACT TO PROVIDE FOR THE SEIZURE AND FORFEITURE OF PROPERTY USED IN TRADEMARK AND RECORDINGS VIOLATIONS; TO PROVIDE FOR SEIZURE AND FORFEITURE PROCEEDINGS; TO PROVIDE FOR NOTICE TO LIENHOLDERS AND PARTIES WITH SECURITY INTERESTS; TO PROVIDE FOR THE DISPOSITION OF PROPERTY AND PROCEEDS; TO AMEND SECTIONS 97-21-53, 97-21-55, 97-21-57 AND 97-23-89, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) All property, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of Section 97-21-53, 97-21-55, 97-21-57 or 97-23-89 is subject to civil forfeiture to the state pursuant to the provisions of Section 2 of this act; provided, however, that a forfeiture of personal property encumbered by a bona fide security interest or real property encumbered by a bona fide mortgage, deed of trust, lien or encumbrance of record shall be subject to the interest of the secured party or subject to the interest of the holder of the mortgage, deed of trust, lien or encumbrance of record if such secured party or holder neither had knowledge of or consented to the act or omission.
(2) Property subject to forfeiture may be seized by law enforcement officers upon process issued by any appropriate court having jurisdiction over the property. Seizure without process may be made if:
(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under a lawful administrative inspection;
(b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this article.
(3) The Attorney General, any district attorney or any state agency having jurisdiction over conduct in violation of Section 97-21-53, 97-21-55, 97-21-57 or 97-23-89 may institute civil proceedings under this section. In any action brought under this section, the circuit court shall proceed as soon as practicable to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper.
(4) Any aggrieved person may institute a civil proceeding against any person or enterprise convicted of engaging in activity in violation of Section 97-21-53, 97-21-55, 97-21-57 or 97-23-89. In such proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that no showing of immediate and irreparable injury, loss or damage to the person shall have to be made.
(5) The Attorney General may, upon timely application, intervene in any civil action or proceeding brought under this section if he certifies that, in his opinion, the action or proceeding is of general public importance. In such action or proceeding, the state shall be entitled to the same relief as if the Attorney General instituted the action or proceeding.
(6) Notwithstanding any other provision of law, a criminal or civil action or proceeding under this act may be commenced at any time within five (5) years after the conduct in violation of law terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent or restrain any violation of law, the running of the period of limitations prescribed by this section with respect to any cause of action arising under this section which is based, in whole or in part, upon any matter complained of in any such prosecution, action or proceeding shall be suspended during the pendency of such prosecution, action or proceeding and for two (2) years following its termination.
(7) The application of one (1) civil remedy under any provision of this act shall not preclude the application of any other remedy, civil or criminal, under this act or any other provision of law. Civil remedies under this act are supplemental.
SECTION 2. (1) When any property is seized pursuant to Section 1 of this act, proceedings under this section shall be instituted promptly.
(2) (a) A petition for forfeiture shall be filed promptly in the name of the State of Mississippi with the clerk of the circuit court of the county in which the seizure is made. A copy of such petition shall be served upon the following persons by service of process in the same manner as in civil cases:
(i) The owner of the property, if address is known;
(ii) Any secured party who has registered his lien or filed a financing statement as provided by law, if the identity of such secured party can be ascertained by the state by making a good faith effort to ascertain the identity of such secured party as described in paragraphs (b), (c), (d), (e) and (f) of this subsection;
(iii) Any other bona fide lienholder or secured party or other person holding an interest in the property in the nature of a security interest of whom the state has actual knowledge;
(iv) A holder of a mortgage, deed of trust, lien or encumbrance of record, if the property is real estate by making a good faith inquiry as described in paragraph (g) of this section; and
(v) Any person in possession of property subject to forfeiture at the time that it was seized.
(b) If the property is a motor vehicle susceptible of titling under the Mississippi Motor Vehicle Title Law and if there is any reasonable cause to believe that the vehicle has been titled, the state shall make inquiry of the Department of Revenue as to what the records of the Department of Revenue show as to who is the record owner of the vehicle and who, if anyone, holds any lien or security interest which affects the vehicle.
(c) If the property is a motor vehicle and is not titled in the State of Mississippi, then the state shall attempt to ascertain the name and address of the person in whose name the vehicle is licensed, and if the vehicle is licensed in a state which has in effect a certificate of title law, the state shall make inquiry of the appropriate agency of that state as to what the records of the agency show as to who is the record owner of the vehicle and who, if anyone, holds any lien, security interest, or other instrument in the nature of a security device which affects the vehicle.
(d) If the property is of a nature that a financing statement is required by the laws of this state to be filed to perfect a security interest affecting the property and if there is any reasonable cause to believe that a financing statement covering the security interest has been filed under the laws of this state, the state shall make inquiry of the appropriate office designated in Section 75-9-501 as to what the records show as to who is the record owner of the property and who, if anyone, has filed a financing statement affecting the property.
(e) If the property is an aircraft or part thereof and if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the state shall make inquiry of the administrator of the Federal Aviation Administration as to what the records of the administrator show as to who is the record owner of the property and who, if anyone, holds an instrument in the nature of a security device which affects the property.
(f) In the case of all other personal property subject to forfeiture, if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the state shall make a good faith inquiry to identify the holder of any such instrument.
(g) If the property is real estate, the state shall make inquiry at the appropriate places to determine who is the owner of record and who, if anyone is a holder of a bona fide mortgage, deed of trust, lien or encumbrance.
(h) In the event the answer to an inquiry states that the record owner of the property is any person other than the person who was in possession of it when it was seized, or states that any person holds any lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust which affects the property, the state shall cause any record owner and also any lienholder, secured party, other person who holds an interest in the property in the nature of a security interest, or holder of an encumbrance, mortgage or deed of trust which affects the property to be named in the petition of forfeiture and to be served with process in the same manner as in civil cases.
(i) If the owner of the property cannot be found and served with a copy of the petition of forfeiture, or if no person was in possession of the property subject to forfeiture at the time that it was seized and the owner of the property is unknown, the state shall file with the clerk of the court in which the proceeding is pending an affidavit to such effect, whereupon the clerk of the court shall publish notice of the hearing addressed to "the Unknown Owner of _______________," filling in the blank space with a reasonably detailed description of the property subject to forfeiture. Service by publication shall contain the other requisites prescribed in Section 11-33-41, and shall be served as provided in Section 11-33-37 for publication of notice for attachments at law.
(j) No proceedings instituted pursuant to the provisions of this act shall proceed to hearing unless the judge conducting the hearing is satisfied that this section has been complied with. Any answer received from an inquiry required by paragraphs (b) through (g) of this section shall be introduced into evidence at the hearing.
(3) (a) An owner of property that has been seized shall file a verified answer within twenty (20) days after the completion of service of process. If no answer is filed, the court shall hear evidence that the property is subject to forfeiture and forfeit the property to the state. If an answer is filed, a time for hearing on forfeiture shall be set within thirty (30) days of filing the answer or at the succeeding term of court if court would not be in progress within thirty (30) days after filing the answer. Provided, however, that upon request by the state or the owner of the property, the court may postpone said forfeiture hearing to a date past the time any criminal action is pending against said owner.
(b) If the owner of the property has filed a verified answer denying that the property is subject to forfeiture, then the burden is on the state or the jurisdiction instituting proceedings to prove that the property is subject to forfeiture. The burden of proof placed upon the state or the jurisdiction instituting proceedings shall be clear and convincing proof. However, if no answer has been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture.
(c) At the hearing any claimant of any right, title, or interest in the property may prove his lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust to be bona fide and created without knowledge or consent that the property was to be used so as to cause the property to be subject to forfeiture.
(d) If it is found that the property is subject to forfeiture, then the judge shall forfeit the property to the state or the jurisdiction instituting proceedings. However, if proof at the hearing discloses that the interest of any bona fide lienholder, secured party, other person holding an interest in the property in the nature of a security interest or any holder of a bona fide encumbrance, mortgage or deed of trust is greater than or equal to the present value of the property, the court shall order the property released to him. If such interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall order the property forfeited to the state or the jurisdiction instituting proceedings.
(4) (a) All personal property, including money, which is forfeited to the state or the jurisdiction instituting proceedings and is not capable of being sold at public auction shall be liquidated and the proceeds, after deduction of all storage and court costs, shall be forwarded to the State Treasurer and deposited in the General Fund of the state or in the general fund of the county of the jurisdiction instituting proceedings.
(b) All real estate which is forfeited to the state or the jurisdiction instituting proceedings shall be sold to the highest bidder at a public auction to be conducted by the state or the jurisdiction instituting proceedings at such place, on such notice and in accordance with the same procedure, as far as practicable, as is required in the case of sales of land under execution of law. The proceeds of such sale shall first be applied to the cost and expense in administering and conducting such sale, then to the satisfaction of all mortgages, deeds of trusts, liens and encumbrances of record on such property. All proceeds in excess of the amount necessary for the cost of the sale of such land and the satisfaction of any liens thereon shall be deposited in the General Fund of the State Treasury or in the general fund of the county of the jurisdiction instituting proceedings.
(c) All other property that has been seized by the state or the jurisdiction instituting proceedings and that has been forfeited shall, except as otherwise provided, be sold at a public auction for cash by the state or the jurisdiction instituting proceedings to the highest and best bidder after advertising the sale for at least once each week for three (3) consecutive weeks, the last notice to appear not more than ten (10) days nor less than five (5) days prior to such sale, in a newspaper having a general circulation in the jurisdiction instituting proceedings or throughout the State of Mississippi. Such notices shall contain a description of the property to be sold and a statement of the time and place of sale. It shall not be necessary to the validity of such sale either to have the property present at the place of sale or to have the name of the owner thereof stated in such notice. The proceeds of the sale shall be delivered to the circuit clerk and shall be disposed of as follows:
(i) To any bona fide lienholder, secured party, or other party holding an interest in the property in the nature of a security interest, to the extent of his interest; and
(ii) The balance, if any, after deduction of all storage and court costs, shall be forwarded to the State Treasurer and deposited with and used as general funds of the state or to the jurisdiction instituting proceedings and deposited in the county general fund.
(d) The Department of Revenue shall issue a certificate of title to any person who purchases property under the provisions of this section when a certificate of title is required under the laws of this state.
SECTION 3. Section 97-21-53, Mississippi Code of 1972, is amended as follows:
97-21-53. (1) Every person who shall knowingly and willfully forge or counterfeit, or cause or procure to be forged or counterfeited, any representation, likeness, similitude, copy, or imitation of the private stamp, wrappers, or labels usually fixed by any mechanic or manufacturer to, and used by such mechanic or manufacturer on, in, or about the sale of any goods, wares, or merchandise whatsoever, shall be punished as follows:
(a) If the goods or services to which the forged or counterfeit representation, likeness, similitude, copy of imitation of the private stamp, wrappers or labels are attached or affixed, or in connection with which they are used, or to which the offender intended they be attached or affixed, or in connection with which the offender intended they be used, have, in the aggregate, a retail value of the goods if they were not forged or counterfeited of One Thousand Dollars ($1,000.00), or more, the person shall be guilty of a felony and, upon conviction, may be imprisoned for up to five (5) years and fined up to Ten Thousand Dollars ($10,000.00); or
(b) If the goods or services to which the forged or counterfeit representation, likeness, similitude, copy, or imitation of the private stamp, wrappers, or labels are attached or affixed, or in connection with which they are used, or to which the offender intended they be attached or affixed, or in connection with which the offender intended they be used, have, in the aggregate, a retail value of less than One Thousand Dollars ($1,000.00), the person shall be guilty of a misdemeanor and, upon conviction, may be imprisoned for up to one (1) year and fined up to Five Thousand Dollars ($5,000.00).
(2) Property used in any way to violate the provisions of this section shall be subject to forfeiture under Sections 1 and 2 of House Bill No. 784, 2011 Regular Session.
SECTION 4. Section 97-21-55, Mississippi Code of 1972, is amended as follows:
97-21-55. (1) Every person who shall have in his possession any die, plate, engraving, or printed label, stamp, or wrapper, or any representation, likeness, similitude, copy, or imitation of the private stamp, wrapper, or label usually fixed by any mechanic or manufacturer to, and used by such mechanic or manufacturer on, in, or about the sale of any goods, wares, or merchandise, with intent to use or sell the said die, plate or engraving, or printed stamp, label, or wrapper, for the purpose of aiding or assisting, in any way whatever, in vending any goods, wares, or merchandise in imitation of, or intended to resemble and be sold for the goods, wares, or merchandise of such mechanic or manufacturer, shall be guilty of a felony, and, upon conviction, be punished by imprisonment for not more than five (5) years and a fine of Ten Thousand Dollars ($10,000.00).
(2) Property used in any way to violate the provisions of this section shall be subject to forfeiture under Sections 1 and 2 of House Bill No._784, 2011 Regular Session.
SECTION 5. Section 97-21-57, Mississippi Code of 1972, is amended as follows:
97-21-57. (1) Every person who shall vend any goods, wares, or merchandise having thereon any forged or counterfeit stamp or label, imitating, resembling, or purporting to be the stamp or label of any mechanic or manufacturer, knowing the same to be forged or counterfeited, and resembling or purporting to be imitations of the stamps or labels of such mechanic or manufacturer, without disclosing the fact to the purchaser thereof, shall be punished as follows:
(a) If the goods or services to which the forged or counterfeit representation, likeness, similitude, copy, or imitation of the private stamp, wrappers, or labels are attached or affixed, or in connection with which they are used, or to which the offender intended they be attached or affixed, or in connection with which the offender intended they be used, have, in the aggregate, a retail value of the goods if they were not forged or counterfeited of One Thousand Dollars ($1,000.00), or more, the person shall be guilty of a felony and, upon conviction, may be imprisoned for up to five (5) years and fined up to Ten Thousand Dollars ($10,000.00); or
(b) If the goods or services to which the forged or counterfeit representation, likeness, similitude, copy, or imitation of the private stamp, wrappers, or labels are attached or affixed, or in connection with which they are used, or to which the offender intended they be attached or affixed, or in connection with which the offender intended they be used, have, in the aggregate, a retail value of the goods if they were not forged or counterfeited of less than One Thousand Dollars ($1,000.00), the person shall be guilty of a misdemeanor and, upon conviction, may be imprisoned for up to one (1) year and fined up to Five Thousand Dollars ($5,000.00).
(2) Property used in any way to violate the provisions of this section shall be subject to forfeiture under Sections 1 and 2 of House Bill No._784, 2011 Regular Session.
SECTION 6. Section 97-23-89, Mississippi Code of 1972, is amended as follows:
97-23-89. (1) For purposes of this section, the following words shall have the meaning ascribed herein, unless the context requires otherwise:
(a) "Person" means any individual, partnership, corporation or association.
(b) "Manufacturer" means any individual, partnership, corporation or association which, after first having acquired the right to transfer sounds or images from the lawful owner thereof, actually transfers or causes the transfer thereon of such sounds or images recorded on a phonograph record, disc, wire, tape, videocassette, film or other article on which sounds or images are recorded, or assembles and transfers any product containing such transferred sounds or images as a component thereof.
(2) It shall be unlawful for any person to manufacture or knowingly (a) sell, rent, distribute or circulate, (b) cause to be sold, distributed or circulated, or (c) possess with intent to sell, rent, distribute or circulate, for any compensation, a recorded article or device containing sounds or images, including any phonograph record, tape, disc, videocassette, film or other article or device upon which sounds or images may be fixed or reproduced, without the actual name and street address of the manufacturer thereof and, when the recorded article or device contains sounds only, without the name of the actual performer or group of performers prominently disclosed on the cover, jacket, box or label containing such recorded article or device. Any person who is convicted of a first violation of this subsection shall be guilty of a felony and fined not more than Ten Thousand Dollars ($10,000.00) or be imprisoned in the State Penitentiary for not more than three (3) years, or both. Any person who is convicted of a second or subsequent violation of this subsection shall be guilty of a felony and fined not more than Fifty Thousand Dollars ($50,000.00) or be imprisoned in the State Penitentiary for not more than seven (7) years, or both.
(3) Each and every individual manufacture, distribution or sale or transfer for a consideration of such recorded article or device in violation of the provisions of this section shall constitute a separate offense.
(4) Property used in any way to violate the provisions of this section shall be subject to forfeiture under Sections 1 and 2 of House Bill No._784, 2011 Regular Session.
SECTION 7. This act shall take effect and be in force from and after July 1, 2011.