ASSEMBLY, No. 3826

STATE OF NEW JERSEY

209th LEGISLATURE

INTRODUCED NOVEMBER 8, 2001

Sponsored by:

Assemblyman NEIL M. COHEN

District 20 (Union)

Assemblyman PETER J. BARNES, JR.

District 18 (Middlesex)

Co-Sponsored by:

Assemblyman Guear and Assemblywoman Greenstein

SYNOPSIS

Provides for an attachment order to freeze certain funds or assets relating to terrorism.

CURRENT VERSION OF TEXT

As introduced.

An Act concerning freezing certain funds or assets relating to terrorism and supplementing Title 2C of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Attachment of deposited funds.

a. As used in this section:

(1) "Material support or resources" means currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities weapons, lethal substances, explosives, personnel, transportation and other physical assets, except medicine or religious materials.

(2) "Terrorism" means any unlawful act involving the use of a deadly weapon, destructive device or any instrument, article or substance readily capable of causing death or serious physical injury or damage to property committed for political or financial gain with the intent to intimidate or coerce the State, any of its political subdivisions, agencies, instrumentalities, officers or agents or cause the impairment or interruption of public communications, public transportation, common carriers, public utilities or other public services.

b. Upon application by the Attorney General, a court may issue an attachment order directing a financial institution to freeze some or all of the funds or assets deposited with or held by the financial institution by or on behalf of an account holder charged with the commission of a crime or an account holder the Attorney General has probable cause to believe is involved with soliciting or providing material support or resources to another person intending that the material support or resource will be used, in whole or in part, to plan, prepare, carry out, or escape from an act of terrorism.

2. Application. The application of the Attorney General required by this act shall contain:

a. a copy of a criminal complaint issued by a court that alleges the commission of a crime by the account holder;

b. a statement of the actual financial loss caused by the account holder in the commission of the crime, if not already stated in the complaint;

c. a statement of facts relied upon by the applicant including the details of the particular offense that is about to committed or that has been committed; and

d. identification of the account holder's name and financial institution account number.

3. Issuance of an order. If the court finds that:

a. there is probable cause that the account holder was involved in the commission of a crime;

b. there is probable cause to believe that the account holder is engaging in or was engaged in soliciting or providing material support or resources to another person intending that the support or resource will be used, in whole or in part, to plan, prepare, carry out, or escape from an act of terrorism;

c. the accounts of the account holder are specifically identified;and

d. it is necessary to freeze the account holder's funds or assets to ensure eventual restitution to victims of the alleged offense,

the court may order the financial institution to freeze all or part of the account holder's deposited funds or assets so that the funds or assets may not be withdrawn or disposed of until further order of the court.

As part of the consideration of an application in which there is no corroborative evidence offered, the judge shall inquire in camera as to the identity of any informants or any other additional information concerning the basis upon which the investigative or law enforcement officer or agency has applied for the attachment order which the judge finds relevant in order to determine if there is probable cause pursuant to this act.

4. Duty of financial institutions. Upon receipt of the order authorized by this act, a financial institution shall not permit any funds or assets that were frozen by the order to be withdrawn or disposed of until further order of the court.

5. Release of funds. a. The account holder may, upon notice and motion, have a hearing to contest the freezing of funds or assets and to seek the release of all or part of them.

b. The account holder is entitled to an order releasing the funds or assets by showing:

(1) that the account holder has posted a bond or other adequate surety, guaranteeing that, upon conviction, adequate funds or assets will be available to pay complete restitution to victims of the alleged offense;

(2) that there is no probable cause to believe that the account holder was involved in the alleged offense;

(3) that the amount of funds or assets frozen is more than is necessary to pay complete restitution to all victims of the alleged offense; or

(4) that the funds or assets should be returned in the interests of justice.

c. It is not grounds for the release of funds or assets that the particular accounts frozen do not contain funds or assets that were proceeds from or used in the commission of the crime.

6. Disposition of funds. a. The court may order the financial institution to remit all or part of the frozen funds or assets to the court.

b. If the account holder is acquitted or the charges are dismissed, the court shall issue an order releasing the freeze on the funds or assets.

7. Time limit. The freeze permitted by this act expires 24 months after the date of the court's initial attachment order unless the time limit is extended by the court in writing upon a showing of good cause by the Attorney General.

8. Notice. Within ten days after a court issues an attachment order under this act, the Attorney General shall send a copy of the order to the account holder's last known address or to the account holder's attorney, if known.

9. This act shall take effect immediately.

STATEMENT

In the days following the September 11, 2001 attacks on the World Trade Center and the Pentagon it became clear that funds and assets which these terrorists used to plan these atrocious acts were deposited or held in financial institutions in this country. It is the sponsor's intent to establish a mechanism by which law enforcement can request an order freezing the funds or assets of individuals they suspect are carrying out acts of terrorism.

This bill would provide that upon application by the Attorney General, a court may issue an attachment order directing a financial institution to freeze some or all of the funds or assets of an account holder who is charged with the commission of the crime of terrorism or an account holder the Attorney General has probable cause to believe is involved with soliciting or providing material support or resources to another person intending that the material support or resource will be used in whole or in or in part, to plan, prepare, carry out, or escape from an act of terrorism.

The bill sets forth the application requirements the Attorney General is required to satisfy before the court would consider issuing the attachment order. The application would include: a copy of a criminal complaint issued by a court that alleges the commission of a crime by the account holder; a statement of the actual financial loss caused by the account holder in the commission of the crime, if not already stated in the complaint; a statement of facts relied upon by the applicant including the details of the particular offense that is about to committed or that has been committed; and identification of the account holder's name and financial institution account number.

The court may order the financial institution to freeze all or part of the account holder's deposited funds or assets, if it finds that: there is probable cause that the account holder was involved in the commission of a crime; there is probable cause to believe that the account holder is engaging in or was engaging in soliciting or providing material support or resources to another person intending that the support or resource will be used, in whole or in part, to plan, prepare, carry out, or escape from an act of terrorism; the accounts of the account holder are specifically identified; and it is necessary to freeze the account holder's funds or assets to ensure eventual restitution to victims of the alleged offense. If there is no corroborative evidence offered, the judge shall inquire in camera as to the identity of any informants or any other additional information concerning the basis upon which the investigative or law enforcement officer or agency has applied for the attachment order which the judge finds relevant in order to determine if there is probable cause pursuant to this section.

Once the financial institution receives the order it would not permit any funds or assets that were frozen by the order to be withdrawn or be disposed of until further order of the court.

The account holder can, upon notice and motion, have a hearing to contest the freezing of funds or assets and to seek the release of all or part of them. In order to release assets the account holder must show: that the account holder has posted a bond or other adequate surety, guaranteeing that, upon conviction, adequate funds or assets will be available to pay complete restitution to victims of the alleged offense; that there is no probable cause to believe that the account holder was involved in the alleged offense; that the amount of funds or assets frozen is more than is necessary to pay complete restitution to all victims of the alleged offense; or that the funds or assets should be returned in the interests of justice. It is not grounds for the release of funds or assets that the particular accounts frozen do not contain funds or assets that were proceeds from or used in the commission of the crime.

If the account holder is acquitted or the charges are dismissed, the court shall issue an order releasing the freeze on the funds or assets.

The freeze permitted by this act expires 24 months after the date of the court's initial attachment order unless the time limit is extended by the court in writing upon a showing of good cause by the Attorney General.