CO Code § 18-17-106 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 17 - Colorado Organized Crime Control Act|§ 18-17-106. Civil Remedies

  Any district court may, after making due provision for the rights of innocent persons, enjoin violations of the provisions of section 18-17-104 by issuing appropriate orders and judgments, including, but not limited to:   Ordering any defendant to divest himself of any interest in any enterprise, including real property;    Imposing reasonable restrictions upon the future activities or investments of any defendant, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which he was engaged in violation of the provisions of section 18-17-104;    Ordering the dissolution or reorganization of any enterprise;    Ordering the suspension or revocation of a license, permit, or prior approval granted to any enterprise by any agency of the state;    Ordering the forfeiture of the charter of a corporation organized under the laws of this state or the revocation of a certificate authorizing a foreign corporation to conduct business within the state, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of section 18-17-104 and that, for the prevention of future criminal activity, the public interest requires the charter of the corporation forfeited and the corporation dissolved or the certificate revoked.       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 the provisions of section 18-17-104 is subject to civil forfeiture to the state. The state shall dispose of all forfeited property as soon as commercially feasible. If property is not exercisable or transferable for value by the state, it shall expire. All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons. The disposition of seized property shall be as follows:   Any personal property which is required by law to be destroyed, or the possession of which is illegal, or which, in the opinion of the court is not properly the subject of a sale may be destroyed pursuant to a warrant for the destruction of personal property, issued by the district court, directed to the sheriff, and returned by the sheriff upon execution thereof. The district court shall stay the execution of any such warrant during the period in which the property is used as evidence in any pending criminal or civil proceeding.    Any personal property seized and forfeited under the provisions of this section shall be sold by the sheriff in the manner provided for sales on execution.    As to any real property, the district court shall enter a permanent order of abatement. The order of abatement shall direct the sheriff to sell such building or place and the ground upon which it is situated, to the extent of the interest, direct or indirect, of such person found to be in violation of the provisions of section 18-17-104, at public sale in the manner provided for sales of property upon execution.    The proceeds realized from such sales shall be applied pursuant to section 16-13-311 (3)(a), C.R.S.       Property subject to forfeiture under this section may be seized by a law enforcement officer upon court process. Seizure without process may be made if:   The seizure is incident to a lawful arrest or search or an inspection under an administrative inspection warrant;    The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based upon this section.       In the event of a seizure under subsection (3) of this section, a forfeiture proceeding shall be instituted promptly. Property taken or detained under this section shall not be subject to replevin but is deemed to be in the custody of the law enforcement officer making the seizure, subject only to the order of the court. When property is seized under this section, pending forfeiture and final disposition, the law enforcement officer may:   Place the property under seal;    Remove the property to a place designated by court;    Require another agency authorized by law to take custody of the property and remove it to an appropriate location.       The attorney general or district attorney may institute civil proceedings under this section. Any action instituted under this section shall conform to the procedures set forth in part 3 or part 5 of article 13 of title 16, C.R.S. In any action brought under this section, the district court shall proceed as soon as practicable to the hearing and determination. Pending final determination, the district court may, at any time, enter such injunctions, prohibitions, or restraining orders or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper.    Any aggrieved person may institute a proceeding under subsection (1) of this section. In such proceeding, relief shall be granted in conformity with the principles that govern that granting of injunctive relief from threatened loss or damage in other civil cases; except that no showing of special or irreparable damage to the person shall have to be made. Upon the execution of proper bond against damages for an injunction improvidently granted and a showing of immediate danger of significant loss or damage, a temporary restraining order and a preliminary injunction may be issued in any such action before a final determination on the merits.    Any person injured by reason of any violation of the provisions of section 18-17-104 shall have a cause of action for threefold the actual damages sustained. Such person shall also recover attorney fees in the trial and appellate courts and costs of investigation and litigation reasonably incurred; except that:   The defendant or any injured person may demand a trial by jury in any civil action brought pursuant to this section; and    Any injured person shall have a right or claim to forfeited property or to the proceeds derived therefrom superior to any right or claim the state has in the same property or proceeds.       A final judgment or decree rendered in favor of the people in any criminal proceeding under this article shall estop the defendant in any subsequent civil action or proceeding as to all matters as to which such judgment or decree would be an estoppel as between the parties.    The application of one civil remedy under any provision of this article shall not preclude the application of any other remedy, civil or criminal, under this article or any other provision of law. Civil remedies under this article are supplemental and not mutually exclusive.    Whenever it is established in an action brought pursuant to this section that a person has received proceeds derived from activities prohibited by section 18-17-104, the court shall, upon request, award to the plaintiff a money judgment of forfeiture for the amount of such proceeds. The person subjected to such a money judgment may claim a setoff in an amount equal to the fair market value of other property forfeited if he shows that said property is traceable to a pattern of racketeering activity.    The burden of proof in an action brought pursuant to this section shall be by clear and convincing evidence.    (Deleted by amendment,L. 2002, p. 931, § 14, effective July 1, 2002.)     History. Source: L. 81: Entire article added, p. 1020, § 1, effective July 1. L. 87: (2)(c) amended and (10) to (12) added, p. 645, § 26, effective July 1. L. 2002: (2)(b), (2)(d), (5), (11), and (12) amended, p. 931, § 14, effective July 1.    ANNOTATION   Law reviews. For article, “State and Federal Forfeiture of Property Used in Criminal Activity”, see 11 Colo. Law. 2597 (1982). For article, “The Potential Application of RICO in the Natural Resources/Environmental Law Context”, see 63 Den. U.L. Rev. 535 (1986).   The Colorado Organized Crime Control Act does not interdict the court's authority to order a stay, but the requirement in subsection (5) that a court proceed to the merits “as soon as practicable” is a factor that the court should consider in deciding whether to grant a stay. In re Kozeny, 236 F.3d 615 (10th Cir. 2000).   Subsection (6) concerning the granting of injunctive relief is applied in Federal Deposit Ins. Corp. v. Antonio, 649 F. Supp. 1352 (D. Colo. 1986 ).   Court has authority under this statute to freeze assets which are not related to the illegal conduct in order to ensure availability of assets to satisfy monetary judgments. Federal Deposit Ins. Corp. v. Antonio, 843 F.2d 1311 (10th Cir. 1988).   Federal cases construing RICO may be instructive. However, where there exists appropriate Colorado authority on an issue, that authority is controlling. Tallitsch v. Child Support Servs., Inc., 926 P.2d 143 (Colo. App. 1996).   Method for determining an award of attorney fees described, and appropriate factors enumerated, in Tallitsch v. Child Support Servs., Inc., 926 P.2d 143 (Colo. App. 1996).   No “rule of proportionality” for attorney fees. Purpose of this statute to encourage “private attorneys general” would be defeated if the fees to be awarded were limited according to the amount recovered in damages. However, this does not preclude a trial court's review of the success achieved and the results obtained when setting a reasonable fee. Tallitsch v. Child Support Servs., Inc., 926 P.2d 143 (Colo. App. 1996).   Plaintiff claiming injury “by reason of any violation” of § 18-17-104 has standing under this section only if plaintiff has been injured by the conduct constituting the violation and can recover only for harm caused by one or more of the predicate acts under COCCA. Floyd v. Coors Brewing Co., 952 P.2d 797 (Colo. App. 1997).   Applied in Niemi v. Burgess, 874 F. Supp. 2d 1048 (D. Colo. 2012 ).