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1 | AN ACT concerning criminal law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Criminal Code of 1961 is amended by changing | ||||||
5 | Section 29B-1 as follows:
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6 | (720 ILCS 5/29B-1) (from Ch. 38, par. 29B-1)
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7 | Sec. 29B-1. (a) A person commits the offense of money | ||||||
8 | laundering:
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9 | (1) when, knowing that the property involved in a | ||||||
10 | financial transaction represents the proceeds of some form | ||||||
11 | of unlawful activity, he or she conducts or attempts to | ||||||
12 | conduct such a financial transaction which in fact involves | ||||||
13 | criminally derived property: | ||||||
14 | (A) with the intent to promote the carrying on of | ||||||
15 | the unlawful activity from which the criminally | ||||||
16 | derived property was obtained; or | ||||||
17 | (B) where he or she knows or reasonably should know | ||||||
18 | that the financial transaction is designed in whole or | ||||||
19 | in part: | ||||||
20 | (i) to conceal or disguise the nature, the | ||||||
21 | location, the source, the ownership or the control | ||||||
22 | of the criminally derived property; or | ||||||
23 | (ii) to avoid a transaction reporting |
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1 | requirement under State law; or | ||||||
2 | (1.5) when he or she transports, transmits, or | ||||||
3 | transfers, or attempts to transport, transmit, or transfer | ||||||
4 | a monetary instrument: | ||||||
5 | (A) with the intent to promote the carrying on of | ||||||
6 | the unlawful activity from which the criminally | ||||||
7 | derived property was obtained; or | ||||||
8 | (B) knowing, or having reason to know, that the | ||||||
9 | financial transaction is designed in whole or in part: | ||||||
10 | (i) to conceal or disguise the nature, the | ||||||
11 | location, the source, the ownership or the control | ||||||
12 | of the criminally derived property; or | ||||||
13 | (ii) to avoid a transaction reporting | ||||||
14 | requirement under State law;
or
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15 | (2) when, with the intent to:
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16 | (A) promote the carrying on of a specified criminal | ||||||
17 | activity as defined
in this Article; or
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18 | (B) conceal or disguise the nature, location, | ||||||
19 | source, ownership, or
control of property believed to | ||||||
20 | be the proceeds of a specified criminal
activity as | ||||||
21 | defined by subdivision (b)(6); or | ||||||
22 | (C) avoid a transaction reporting requirement | ||||||
23 | under State law,
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24 | he or she conducts or attempts to conduct a financial | ||||||
25 | transaction
involving property he or she believes to be the | ||||||
26 | proceeds of specified criminal
activity as defined by |
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1 | subdivision (b)(6) or property used to conduct or
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2 | facilitate specified criminal activity as defined by | ||||||
3 | subdivision (b)(6).
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4 | (b) As used in this Section:
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5 | (0.5) "Knowing that the property involved in a | ||||||
6 | financial transaction represents the proceeds of some form | ||||||
7 | of unlawful activity" means that the person knew the | ||||||
8 | property involved in the transaction represented proceeds | ||||||
9 | from some form, though not necessarily which form, of | ||||||
10 | activity that constitutes a felony under State, federal, or | ||||||
11 | foreign law , regardless of whether or not such activity is | ||||||
12 | specified in subdivision (b)(4) .
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13 | (1) "Financial transaction" means a purchase, sale, | ||||||
14 | loan, pledge, gift,
transfer, delivery or other | ||||||
15 | disposition utilizing criminally derived property,
and | ||||||
16 | with respect to financial institutions, includes a | ||||||
17 | deposit, withdrawal,
transfer between accounts, exchange | ||||||
18 | of currency, loan, extension of credit,
purchase or sale of | ||||||
19 | any stock, bond, certificate of deposit or other monetary
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20 | instrument, use of safe deposit box, or any other payment, | ||||||
21 | transfer or delivery by, through, or to a
financial | ||||||
22 | institution.
For purposes of clause (a)(2) of this Section, | ||||||
23 | the term "financial
transaction" also
means a transaction | ||||||
24 | which without regard to whether the funds, monetary
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25 | instruments, or real or personal property involved in the | ||||||
26 | transaction are
criminally derived, any transaction which |
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1 | in any way or degree: (1) involves
the movement of funds by | ||||||
2 | wire or any other means; (2) involves one or more
monetary | ||||||
3 | instruments; or (3) the transfer of title to any real or | ||||||
4 | personal
property.
The receipt by an attorney of bona fide | ||||||
5 | fees for the purpose
of legal representation is not a | ||||||
6 | financial transaction for purposes of this
Section.
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7 | (2) "Financial institution" means any bank; saving and | ||||||
8 | loan
association; trust company; agency or branch of a | ||||||
9 | foreign bank in the
United States; currency exchange; | ||||||
10 | credit union, mortgage banking
institution; pawnbroker; | ||||||
11 | loan or finance company; operator of a credit card
system; | ||||||
12 | issuer, redeemer or cashier of travelers checks, checks or | ||||||
13 | money
orders; dealer in precious metals, stones or jewels; | ||||||
14 | broker or dealer in
securities or commodities; investment | ||||||
15 | banker; or investment company.
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16 | (3) "Monetary instrument" means United States coins | ||||||
17 | and currency;
coins and currency of a foreign country; | ||||||
18 | travelers checks; personal checks,
bank checks, and money | ||||||
19 | orders; investment securities; bearer
negotiable | ||||||
20 | instruments; bearer investment securities; or bearer | ||||||
21 | securities
and certificates of stock in such form that | ||||||
22 | title thereto passes upon
delivery.
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23 | (4) "Criminally derived property" means: (A) any | ||||||
24 | property, real or personal, constituting
or
derived from | ||||||
25 | proceeds obtained, directly or indirectly, from activity | ||||||
26 | that constitutes a felony under State, federal, or foreign |
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1 | law pursuant to a
violation of the Criminal Code of 1961, | ||||||
2 | the Illinois Controlled Substances
Act, the Cannabis | ||||||
3 | Control Act, or the Methamphetamine Control and Community | ||||||
4 | Protection Act ; or (B) any property
represented to be | ||||||
5 | property constituting or derived from proceeds obtained,
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6 | directly or indirectly, from activity that constitutes a | ||||||
7 | felony under State, federal, or foreign law pursuant to a | ||||||
8 | violation of this Code, the Illinois
Controlled Substances | ||||||
9 | Act, the Cannabis Control Act, or the Methamphetamine | ||||||
10 | Control and Community Protection Act .
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11 | (5) "Conduct" or "conducts" includes, in addition to | ||||||
12 | its ordinary
meaning, initiating, concluding, or | ||||||
13 | participating in initiating or concluding
a transaction.
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14 | (6) "Specified criminal activity" means any violation | ||||||
15 | of Section 20.5-5
(720 ILCS 5/20.5-5) and any violation of | ||||||
16 | Article 29D of this Code.
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17 | (7) "Director" means the Director of State Police or | ||||||
18 | his or her designated agents. | ||||||
19 | (8) "Department" means the Department of State Police | ||||||
20 | of the State of Illinois or its successor agency.
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21 | (9) "Transaction reporting requirement under State | ||||||
22 | law" means any violation as defined under the Currency | ||||||
23 | Reporting Act.
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24 | (c) Sentence.
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25 | (1) Laundering of criminally derived property of a | ||||||
26 | value not exceeding
$10,000 is a Class 3 felony;
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1 | (2) Laundering of criminally derived property of a | ||||||
2 | value exceeding
$10,000 but not exceeding $100,000 is a | ||||||
3 | Class 2 felony;
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4 | (3) Laundering of criminally derived property of a | ||||||
5 | value exceeding
$100,000 but not exceeding $500,000 is a | ||||||
6 | Class 1 felony;
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7 | (4) Money laundering in violation of subsection (a)(2) | ||||||
8 | of this Section
is a Class X felony;
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9 | (5) Laundering of criminally derived property of a | ||||||
10 | value exceeding
$500,000 is a
Class 1 non-probationable | ||||||
11 | felony ; .
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12 | (6) In a prosecution under clause (a)(1.5)(B)(ii) of | ||||||
13 | this Section, the sentence is as follows: | ||||||
14 | (A) Laundering of property of a value not exceeding | ||||||
15 | $10,000 is a Class 3 felony; | ||||||
16 | (B) Laundering of property of a value exceeding | ||||||
17 | $10,000 but not exceeding $100,000 is a Class 2 felony; | ||||||
18 | (C) Laundering of property of a value exceeding | ||||||
19 | $100,000 but not exceeding $500,000 is a Class 1 | ||||||
20 | felony; | ||||||
21 | (D) Laundering of property of a value exceeding | ||||||
22 | $500,000 is a Class 1 non-probationable felony. | ||||||
23 | (d) Evidence. In a prosecution under this Article, either | ||||||
24 | party may introduce the following evidence pertaining to the | ||||||
25 | issue of whether the property or proceeds were known to be some | ||||||
26 | form of criminally derived property or from some form of |
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1 | unlawful activity: | ||||||
2 | (1) A financial transaction was conducted or | ||||||
3 | structured or attempted in violation of the reporting | ||||||
4 | requirements of any State or federal law; or | ||||||
5 | (2) A financial transaction was conducted or attempted | ||||||
6 | with the use of a false or fictitious name or a forged | ||||||
7 | instrument; or | ||||||
8 | (3) A falsely altered or completed written instrument | ||||||
9 | or a written instrument that contains any materially false | ||||||
10 | personal identifying information was made, used, offered | ||||||
11 | or presented, whether accepted or not, in connection with a | ||||||
12 | financial transaction; or | ||||||
13 | (4) A financial transaction was structured or | ||||||
14 | attempted to be structured so as to falsely report the | ||||||
15 | actual consideration or value of the transaction; or | ||||||
16 | (5) A money transmitter, a person engaged in a trade or | ||||||
17 | business or any employee of a money transmitter or a person | ||||||
18 | engaged in a trade or business, knows or reasonably should | ||||||
19 | know that false personal identifying information has been | ||||||
20 | presented and incorporates the false personal identifying | ||||||
21 | information into any report or record; or | ||||||
22 | (6) The criminally derived property is transported or | ||||||
23 | possessed in a fashion inconsistent with the ordinary or | ||||||
24 | usual means of transportation or possession of such | ||||||
25 | property and where the property is discovered in the | ||||||
26 | absence of any documentation or other indicia of legitimate |
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1 | origin or right to such property; or | ||||||
2 | (7) A person pays or receives substantially less than | ||||||
3 | face value for one or more monetary instruments; or | ||||||
4 | (8) A person engages in a transaction involving one or | ||||||
5 | more monetary instruments, where the physical condition or | ||||||
6 | form of the monetary instrument or instruments makes it | ||||||
7 | apparent that they are not the product of bona fide | ||||||
8 | business or financial transactions. | ||||||
9 | (e) Duty to enforce this Article. | ||||||
10 | (1) It is the duty of the Department of State Police, | ||||||
11 | and its agents, officers, and investigators, to enforce all | ||||||
12 | provisions of this Article, except those specifically | ||||||
13 | delegated, and to cooperate with all agencies charged with | ||||||
14 | the enforcement of the laws of the United States, or of any | ||||||
15 | state, relating to money laundering. Only an agent, | ||||||
16 | officer, or investigator designated by the Director may be | ||||||
17 | authorized in accordance with this Section to serve seizure | ||||||
18 | notices, warrants, subpoenas, and summonses under the | ||||||
19 | authority of this State. | ||||||
20 | (2) Any agent, officer, investigator, or peace officer | ||||||
21 | designated by the Director may: (A) make seizure of | ||||||
22 | property pursuant to the provisions of this Article; and | ||||||
23 | (B) perform such other law enforcement duties as the | ||||||
24 | Director designates. It is the duty of all State's | ||||||
25 | Attorneys to prosecute violations of this Article and | ||||||
26 | institute legal proceedings as authorized under this |
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1 | Article. | ||||||
2 | (f) Protective orders. | ||||||
3 | (1) Upon application of the State, the court may enter | ||||||
4 | a restraining order or injunction, require the execution of | ||||||
5 | a satisfactory performance bond, or take any other action | ||||||
6 | to preserve the availability of property described in | ||||||
7 | subsection (h) for forfeiture under this Article: | ||||||
8 | (A) upon the filing of an indictment, information, | ||||||
9 | or complaint charging a violation of this Article for | ||||||
10 | which forfeiture may be ordered under this Article and | ||||||
11 | alleging that the property with respect to which the | ||||||
12 | order is sought would be subject to forfeiture under | ||||||
13 | this Article; or
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14 | (B) prior to the filing of such an indictment, | ||||||
15 | information, or complaint, if, after notice to persons | ||||||
16 | appearing to have an interest in the property and | ||||||
17 | opportunity for a hearing, the court determines that: | ||||||
18 | (i) there is probable cause to believe that the | ||||||
19 | State will prevail on the issue of forfeiture and | ||||||
20 | that failure to enter the order will result in the | ||||||
21 | property being destroyed, removed from the | ||||||
22 | jurisdiction of the court, or otherwise made | ||||||
23 | unavailable for forfeiture; and | ||||||
24 | (ii) the need to preserve the availability of | ||||||
25 | the property through the entry of the requested | ||||||
26 | order outweighs the hardship on any party against |
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1 | whom the order is to be entered. | ||||||
2 | Provided, however, that an order entered pursuant | ||||||
3 | to subparagraph (B) shall be effective for not more | ||||||
4 | than 90 days, unless extended by the court for good | ||||||
5 | cause shown or unless an indictment, information, | ||||||
6 | complaint, or administrative notice has been filed. | ||||||
7 | (2) A temporary restraining order under this | ||||||
8 | subsection may be entered upon application of the State | ||||||
9 | without notice or opportunity for a hearing when an | ||||||
10 | indictment, information, complaint, or administrative | ||||||
11 | notice has not yet been filed with respect to the property, | ||||||
12 | if the State demonstrates that there is probable cause to | ||||||
13 | believe that the property with respect to which the order | ||||||
14 | is sought would be subject to forfeiture under this Section | ||||||
15 | and that provision of notice will jeopardize the | ||||||
16 | availability of the property for forfeiture. Such a | ||||||
17 | temporary order shall expire not more than 30 days after | ||||||
18 | the date on which it is entered, unless extended for good | ||||||
19 | cause shown or unless the party against whom it is entered | ||||||
20 | consents to an extension for a longer period. A hearing | ||||||
21 | requested concerning an order entered under this paragraph | ||||||
22 | shall be held at the earliest possible time and prior to | ||||||
23 | the expiration of the temporary order. | ||||||
24 | (3) The court may receive and consider, at a hearing | ||||||
25 | held pursuant to this subsection (f), evidence and | ||||||
26 | information that would be inadmissible under the Illinois |
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1 | rules of evidence.
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2 | (4) Order to repatriate and deposit. | ||||||
3 | (A) In general. Pursuant to its authority to enter | ||||||
4 | a pretrial restraining order under this Section, the | ||||||
5 | court may order a defendant to repatriate any property | ||||||
6 | that may be seized and forfeited and to deposit that | ||||||
7 | property pending trial with the Illinois State Police | ||||||
8 | or another law enforcement agency designated by the | ||||||
9 | Illinois State Police. | ||||||
10 | (B) Failure to comply. Failure to comply with an | ||||||
11 | order under this subsection (f) is punishable as a | ||||||
12 | civil or criminal contempt of court.
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13 | (g) Warrant of seizure. The State may request the issuance | ||||||
14 | of a warrant authorizing the seizure of property described in | ||||||
15 | subsection (h) in the same manner as provided for a search | ||||||
16 | warrant. If the court determines that there is probable cause | ||||||
17 | to believe that the property to be seized would be subject to | ||||||
18 | forfeiture, the court shall issue a warrant authorizing the | ||||||
19 | seizure of such property. | ||||||
20 | (h) Forfeiture. | ||||||
21 | (1) The following are subject to forfeiture: | ||||||
22 | (A) any property, real or personal, constituting, | ||||||
23 | derived from, or traceable to any proceeds the person | ||||||
24 | obtained directly or indirectly, as a result of a | ||||||
25 | violation of this Article; | ||||||
26 | (B) any of the person's property used, or intended |
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1 | to be used, in any manner or part, to commit, or to | ||||||
2 | facilitate the commission of, a violation of this | ||||||
3 | Article; | ||||||
4 | (C) all conveyances, including aircraft, vehicles | ||||||
5 | or vessels, which are used, or intended for use, to | ||||||
6 | transport, or in any manner to facilitate the | ||||||
7 | transportation, sale, receipt, possession, or | ||||||
8 | concealment of property described in subparagraphs (A) | ||||||
9 | and (B), but: | ||||||
10 | (i) no conveyance used by any person as a | ||||||
11 | common carrier in the transaction of business as a | ||||||
12 | common carrier is subject to forfeiture under this | ||||||
13 | Section unless it appears that the owner or other | ||||||
14 | person in charge of the conveyance is a consenting | ||||||
15 | party or privy to a violation of this Article; | ||||||
16 | (ii) no conveyance is subject to forfeiture | ||||||
17 | under this Section by reason of any act or omission | ||||||
18 | which the owner proves to have been committed or | ||||||
19 | omitted without his or her knowledge or consent; | ||||||
20 | (iii) a forfeiture of a conveyance encumbered | ||||||
21 | by a bona fide security interest is subject to the | ||||||
22 | interest of the secured party if he or she neither | ||||||
23 | had knowledge of nor consented to the act or | ||||||
24 | omission; | ||||||
25 | (D) all real property, including any right, title, | ||||||
26 | and interest (including, but not limited to, any |
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1 | leasehold interest or the beneficial interest in a land | ||||||
2 | trust) in the whole of any lot or tract of land and any | ||||||
3 | appurtenances or improvements, which is used or | ||||||
4 | intended to be used, in any manner or part, to commit, | ||||||
5 | or in any manner to facilitate the commission of, any | ||||||
6 | violation of this Article or that is the proceeds of | ||||||
7 | any violation or act that constitutes a violation of | ||||||
8 | this Article.
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9 | (2) Property subject to forfeiture under this Article | ||||||
10 | may be seized by the Director or any peace officer upon | ||||||
11 | process or seizure warrant issued by any court having | ||||||
12 | jurisdiction over the property. Seizure by the Director or | ||||||
13 | any peace officer without process may be made: | ||||||
14 | (A) if the seizure is incident to a seizure | ||||||
15 | warrant; | ||||||
16 | (B) if the property subject to seizure has been the | ||||||
17 | subject of a prior judgment in favor of the State in a | ||||||
18 | criminal proceeding, or in an injunction or forfeiture | ||||||
19 | proceeding based upon this Article; | ||||||
20 | (C) if there is probable cause to believe that the | ||||||
21 | property is directly or indirectly dangerous to health | ||||||
22 | or safety; | ||||||
23 | (D) if there is probable cause to believe that the | ||||||
24 | property is subject to forfeiture under this Article | ||||||
25 | and the property is seized under circumstances in which | ||||||
26 | a warrantless seizure or arrest would be reasonable; or |
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1 | (E) in accordance with the Code of Criminal | ||||||
2 | Procedure of 1963. | ||||||
3 | (3) In the event of seizure pursuant to paragraph (2), | ||||||
4 | forfeiture proceedings shall be instituted in accordance | ||||||
5 | with subsections (i) through (r). | ||||||
6 | (4) Property taken or detained under this Section shall | ||||||
7 | not be subject to replevin, but is deemed to be in the | ||||||
8 | custody of the Director subject only to the order and | ||||||
9 | judgments of the circuit court having jurisdiction over the | ||||||
10 | forfeiture proceedings and the decisions of the State's | ||||||
11 | Attorney under this Article. When property is seized under | ||||||
12 | this Article, the seizing agency shall promptly conduct an | ||||||
13 | inventory of the seized property and estimate the | ||||||
14 | property's value and shall forward a copy of the inventory | ||||||
15 | of seized property and the estimate of the property's value | ||||||
16 | to the Director. Upon receiving notice of seizure, the | ||||||
17 | Director may: | ||||||
18 | (A) place the property under seal; | ||||||
19 | (B) remove the property to a place designated by | ||||||
20 | the Director; | ||||||
21 | (C) keep the property in the possession of the | ||||||
22 | seizing agency; | ||||||
23 | (D) remove the property to a storage area for | ||||||
24 | safekeeping or, if the property is a negotiable | ||||||
25 | instrument or money and is not needed for evidentiary | ||||||
26 | purposes, deposit it in an interest bearing account; |
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1 | (E) place the property under constructive seizure | ||||||
2 | by posting notice of pending forfeiture on it, by | ||||||
3 | giving notice of pending forfeiture to its owners and | ||||||
4 | interest holders, or by filing notice of pending | ||||||
5 | forfeiture in any appropriate public record relating | ||||||
6 | to the property; or | ||||||
7 | (F) provide for another agency or custodian, | ||||||
8 | including an owner, secured party, or lienholder, to | ||||||
9 | take custody of the property upon the terms and | ||||||
10 | conditions set by the Director. | ||||||
11 | (5) When property is forfeited under this Article, the | ||||||
12 | Director shall sell all such property unless such property | ||||||
13 | is required by law to be destroyed or is harmful to the | ||||||
14 | public, and shall distribute the proceeds of the sale, | ||||||
15 | together with any moneys forfeited or seized, in accordance | ||||||
16 | with paragraph (6). However, upon the application of the | ||||||
17 | seizing agency or prosecutor who was responsible for the | ||||||
18 | investigation, arrest or arrests and prosecution which | ||||||
19 | lead to the forfeiture, the Director may return any item of | ||||||
20 | forfeited property to the seizing agency or prosecutor for | ||||||
21 | official use in the enforcement of laws, if the agency or | ||||||
22 | prosecutor can demonstrate that the item requested would be | ||||||
23 | useful to the agency or prosecutor in its enforcement | ||||||
24 | efforts. When any real property returned to the seizing | ||||||
25 | agency is sold by the agency or its unit of government, the | ||||||
26 | proceeds of the sale shall be delivered to the Director and |
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1 | distributed in accordance with paragraph (6). | ||||||
2 | (6) All monies and the sale proceeds of all other | ||||||
3 | property forfeited and seized under this Article shall be | ||||||
4 | distributed as follows: | ||||||
5 | (A) 65% shall be distributed to the metropolitan | ||||||
6 | enforcement group, local, municipal, county, or State | ||||||
7 | law enforcement agency or agencies which conducted or | ||||||
8 | participated in the investigation resulting in the | ||||||
9 | forfeiture. The distribution shall bear a reasonable | ||||||
10 | relationship to the degree of direct participation of | ||||||
11 | the law enforcement agency in the effort resulting in | ||||||
12 | the forfeiture, taking into account the total value of | ||||||
13 | the property forfeited and the total law enforcement | ||||||
14 | effort with respect to the violation of the law upon | ||||||
15 | which the forfeiture is based. Amounts distributed to | ||||||
16 | the agency or agencies shall be used for the | ||||||
17 | enforcement of laws. | ||||||
18 | (B)(i) 12.5% shall be distributed to the Office of | ||||||
19 | the State's Attorney of the county in which the | ||||||
20 | prosecution resulting in the forfeiture was | ||||||
21 | instituted, deposited in a special fund in the county | ||||||
22 | treasury and appropriated to the State's Attorney for | ||||||
23 | use in the enforcement of laws. In counties over | ||||||
24 | 3,000,000 population, 25% shall be distributed to the | ||||||
25 | Office of the State's Attorney for use in the | ||||||
26 | enforcement of laws. If the prosecution is undertaken |
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1 | solely by the Attorney General, the portion provided | ||||||
2 | hereunder shall be distributed to the Attorney General | ||||||
3 | for use in the enforcement of laws. | ||||||
4 | (ii) 12.5% shall be distributed to the Office | ||||||
5 | of the State's Attorneys Appellate Prosecutor and | ||||||
6 | deposited in the Narcotics Profit Forfeiture Fund | ||||||
7 | of that office to be used for additional expenses | ||||||
8 | incurred in the investigation, prosecution and | ||||||
9 | appeal of cases arising under laws. The Office of | ||||||
10 | the State's Attorneys Appellate Prosecutor shall | ||||||
11 | not receive distribution from cases brought in | ||||||
12 | counties with over 3,000,000 population. | ||||||
13 | (C) 10% shall be retained by the Department of | ||||||
14 | State Police for expenses related to the | ||||||
15 | administration and sale of seized and forfeited | ||||||
16 | property. | ||||||
17 | (i) Notice to owner or interest holder. | ||||||
18 | (1) Whenever notice of pending forfeiture or service of | ||||||
19 | an in rem complaint is required under the provisions of | ||||||
20 | this Article, such notice or service shall be given as | ||||||
21 | follows: | ||||||
22 | (A) If the owner's or interest holder's name and | ||||||
23 | current address are known, then by either personal | ||||||
24 | service or mailing a copy of the notice by certified | ||||||
25 | mail, return receipt requested, to that address. For | ||||||
26 | purposes of notice under this Section, if a person has |
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1 | been arrested for the conduct giving rise to the | ||||||
2 | forfeiture, then the address provided to the arresting | ||||||
3 | agency at the time of arrest shall be deemed to be that | ||||||
4 | person's known address. Provided, however, if an owner | ||||||
5 | or interest holder's address changes prior to the | ||||||
6 | effective date of the notice of pending forfeiture, the | ||||||
7 | owner or interest holder shall promptly notify the | ||||||
8 | seizing agency of the change in address or, if the | ||||||
9 | owner or interest holder's address changes subsequent | ||||||
10 | to the effective date of the notice of pending | ||||||
11 | forfeiture, the owner or interest holder shall | ||||||
12 | promptly notify the State's Attorney of the change in | ||||||
13 | address; or | ||||||
14 | (B) If the property seized is a conveyance, to the | ||||||
15 | address reflected in the office of the agency or | ||||||
16 | official in which title or interest to the conveyance | ||||||
17 | is required by law to be recorded, then by mailing a | ||||||
18 | copy of the notice by certified mail, return receipt | ||||||
19 | requested, to that address; or | ||||||
20 | (C) If the owner's or interest holder's address is | ||||||
21 | not known, and is not on record as provided in | ||||||
22 | paragraph (B), then by publication for 3 successive | ||||||
23 | weeks in a newspaper of general circulation in the | ||||||
24 | county in which the seizure occurred. | ||||||
25 | (2) Notice served under this Article is effective upon | ||||||
26 | personal service, the last date of publication, or the |
| |||||||
| |||||||
1 | mailing of written notice, whichever is earlier. | ||||||
2 | (j) Notice to State's Attorney. The law enforcement agency | ||||||
3 | seizing property for forfeiture under this Article shall, | ||||||
4 | within 90 days after seizure, notify the State's Attorney for | ||||||
5 | the county, either where an act or omission giving rise to the | ||||||
6 | forfeiture occurred or where the property was seized, of the | ||||||
7 | seizure of the property and the facts and circumstances giving | ||||||
8 | rise to the seizure and shall provide the State's Attorney with | ||||||
9 | the inventory of the property and its estimated value. When the | ||||||
10 | property seized for forfeiture is a vehicle, the law | ||||||
11 | enforcement agency seizing the property shall immediately | ||||||
12 | notify the Secretary of State that forfeiture proceedings are | ||||||
13 | pending regarding such vehicle. | ||||||
14 | (k) Non-judicial forfeiture. If non-real property that | ||||||
15 | exceeds $20,000 in value excluding the value of any conveyance, | ||||||
16 | or if real property is seized under the provisions of this | ||||||
17 | Article, the State's Attorney shall institute judicial in rem | ||||||
18 | forfeiture proceedings as described in subsection (l) of this | ||||||
19 | Section within 45 days from receipt of notice of seizure from | ||||||
20 | the seizing agency under subsection (j) of this Section. | ||||||
21 | However, if non-real property that does not exceed $20,000 in | ||||||
22 | value excluding the value of any conveyance is seized, the | ||||||
23 | following procedure shall be used: | ||||||
24 | (1) If, after review of the facts surrounding the | ||||||
25 | seizure, the State's Attorney is of the opinion that the | ||||||
26 | seized property is subject to forfeiture, then within 45 |
| |||||||
| |||||||
1 | days after the receipt of notice of seizure from the | ||||||
2 | seizing agency, the State's Attorney shall cause notice of | ||||||
3 | pending forfeiture to be given to the owner of the property | ||||||
4 | and all known interest holders of the property in | ||||||
5 | accordance with subsection (i) of this Section. | ||||||
6 | (2) The notice of pending forfeiture must include a | ||||||
7 | description of the property, the estimated value of the | ||||||
8 | property, the date and place of seizure, the conduct giving | ||||||
9 | rise to forfeiture or the violation of law alleged, and a | ||||||
10 | summary of procedures and procedural rights applicable to | ||||||
11 | the forfeiture action. | ||||||
12 | (3)(A) Any person claiming an interest in property | ||||||
13 | which is the subject of notice under paragraph (1) of this | ||||||
14 | subsection (k), must, in order to preserve any rights or | ||||||
15 | claims to the property, within 45 days after the effective | ||||||
16 | date of notice as described in subsection (i) of this | ||||||
17 | Section, file a verified claim with the State's Attorney | ||||||
18 | expressing his or her interest in the property. The claim | ||||||
19 | must set forth: | ||||||
20 | (i) the caption of the proceedings as set forth on | ||||||
21 | the notice of pending forfeiture and the name of the | ||||||
22 | claimant; | ||||||
23 | (ii) the address at which the claimant will accept | ||||||
24 | mail; | ||||||
25 | (iii) the nature and extent of the claimant's | ||||||
26 | interest in the property; |
| |||||||
| |||||||
1 | (iv) the date, identity of the transferor, and | ||||||
2 | circumstances of the claimant's acquisition of the | ||||||
3 | interest in the property;
| ||||||
4 | (v) the name and address of all other persons known | ||||||
5 | to have an interest in the property; | ||||||
6 | (vi) the specific provision of law relied on in | ||||||
7 | asserting the property is not subject to forfeiture; | ||||||
8 | (vii) all essential facts supporting each | ||||||
9 | assertion; and | ||||||
10 | (viii) the relief sought. | ||||||
11 | (B) If a claimant files the claim and deposits with the | ||||||
12 | State's Attorney a cost bond, in the form of a cashier's | ||||||
13 | check payable to the clerk of the court, in the sum of 10% | ||||||
14 | of the reasonable value of the property as alleged by the | ||||||
15 | State's Attorney or the sum of $100, whichever is greater, | ||||||
16 | upon condition that, in the case of forfeiture, the | ||||||
17 | claimant must pay all costs and expenses of forfeiture | ||||||
18 | proceedings, then the State's Attorney shall institute | ||||||
19 | judicial in rem forfeiture proceedings and deposit the cost | ||||||
20 | bond with the clerk of the court as described in subsection | ||||||
21 | (l) of this Section within 45 days after receipt of the | ||||||
22 | claim and cost bond. In lieu of a cost bond, a person | ||||||
23 | claiming interest in the seized property may file, under | ||||||
24 | penalty of perjury, an indigency affidavit which has been | ||||||
25 | approved by a circuit court judge. | ||||||
26 | (C) If none of the seized property is forfeited in the |
| |||||||
| |||||||
1 | judicial in rem proceeding, the clerk of the court shall | ||||||
2 | return to the claimant, unless the court orders otherwise, | ||||||
3 | 90% of the sum which has been deposited and shall retain as | ||||||
4 | costs 10% of the money deposited. If any of the seized | ||||||
5 | property is forfeited under the judicial forfeiture | ||||||
6 | proceeding, the clerk of the court shall transfer 90% of | ||||||
7 | the sum which has been deposited to the State's Attorney | ||||||
8 | prosecuting the civil forfeiture to be applied to the costs | ||||||
9 | of prosecution and the clerk shall retain as costs 10% of | ||||||
10 | the sum deposited. | ||||||
11 | (4) If no claim is filed or bond given within the 45 | ||||||
12 | day period as described in paragraph (3) of this subsection | ||||||
13 | (k), the State's Attorney shall declare the property | ||||||
14 | forfeited and shall promptly notify the owner and all known | ||||||
15 | interest holders of the property and the Director of State | ||||||
16 | Police of the declaration of forfeiture and the Director | ||||||
17 | shall dispose of the property in accordance with law. | ||||||
18 | (l) Judicial in rem procedures. If property seized under | ||||||
19 | the provisions of this Article is non-real property that | ||||||
20 | exceeds $20,000 in value excluding the value of any conveyance, | ||||||
21 | or is real property, or a claimant has filed a claim and a cost | ||||||
22 | bond under paragraph (3) of subsection (k) of this Section, the | ||||||
23 | following judicial in rem procedures shall apply: | ||||||
24 | (1) If, after a review of the facts surrounding the | ||||||
25 | seizure, the State's Attorney is of the opinion that the | ||||||
26 | seized property is subject to forfeiture, then within 45 |
| |||||||
| |||||||
1 | days of the receipt of notice of seizure by the seizing | ||||||
2 | agency or the filing of the claim and cost bond, whichever | ||||||
3 | is later, the State's Attorney shall institute judicial | ||||||
4 | forfeiture proceedings by filing a verified complaint for | ||||||
5 | forfeiture and, if the claimant has filed a claim and cost | ||||||
6 | bond, by depositing the cost bond with the clerk of the | ||||||
7 | court. When authorized by law, a forfeiture must be ordered | ||||||
8 | by a court on an action in rem brought by a State's | ||||||
9 | Attorney under a verified complaint for forfeiture. | ||||||
10 | (2) During the probable cause portion of the judicial | ||||||
11 | in rem proceeding wherein the State presents its | ||||||
12 | case-in-chief, the court must receive and consider, among | ||||||
13 | other things, all relevant hearsay evidence and | ||||||
14 | information. The laws of evidence relating to civil actions | ||||||
15 | apply to all other portions of the judicial in rem | ||||||
16 | proceeding. | ||||||
17 | (3) Only an owner of or interest holder in the property | ||||||
18 | may file an answer asserting a claim against the property | ||||||
19 | in the action in rem. For purposes of this Section, the | ||||||
20 | owner or interest holder shall be referred to as claimant. | ||||||
21 | Upon motion of the State, the court shall first hold a | ||||||
22 | hearing, wherein any claimant must establish by a | ||||||
23 | preponderance of the evidence, that he or she has a lawful, | ||||||
24 | legitimate ownership interest in the property and that it | ||||||
25 | was obtained through a lawful source. | ||||||
26 | (4) The answer must be signed by the owner or interest |
| |||||||
| |||||||
1 | holder under penalty of perjury and must set forth: | ||||||
2 | (A) the caption of the proceedings as set forth on | ||||||
3 | the notice of pending forfeiture and the name of the | ||||||
4 | claimant; | ||||||
5 | (B) the address at which the claimant will accept | ||||||
6 | mail; | ||||||
7 | (C) the nature and extent of the claimant's | ||||||
8 | interest in the property; | ||||||
9 | (D) the date, identity of transferor, and | ||||||
10 | circumstances of the claimant's acquisition of the | ||||||
11 | interest in the property; | ||||||
12 | (E) the name and address of all other persons known | ||||||
13 | to have an interest in the property; | ||||||
14 | (F) all essential facts supporting each assertion; | ||||||
15 | and | ||||||
16 | (G) the precise relief sought.
| ||||||
17 | (5) The answer must be filed with the court within 45 | ||||||
18 | days after service of the civil in rem complaint. | ||||||
19 | (6) The hearing must be held within 60 days after | ||||||
20 | filing of the answer unless continued for good cause.
| ||||||
21 | (7) The State shall show the existence of probable | ||||||
22 | cause for forfeiture of the property. If the State shows | ||||||
23 | probable cause, the claimant has the burden of showing by a | ||||||
24 | preponderance of the evidence that the claimant's interest | ||||||
25 | in the property is not subject to forfeiture.
| ||||||
26 | (8) If the State does not show existence of probable |
| |||||||
| |||||||
1 | cause, the court shall order the interest in the property | ||||||
2 | returned or conveyed to the claimant and shall order all | ||||||
3 | other property forfeited to the State. If the State does | ||||||
4 | show existence of probable cause, the court shall order all | ||||||
5 | property forfeited to the State. | ||||||
6 | (9) A defendant convicted in any criminal proceeding is | ||||||
7 | precluded from later denying the essential allegations of | ||||||
8 | the criminal offense of which the defendant was convicted | ||||||
9 | in any proceeding under this Article regardless of the | ||||||
10 | pendency of an appeal from that conviction. However, | ||||||
11 | evidence of the pendency of an appeal is admissible. | ||||||
12 | (10) An acquittal or dismissal in a criminal proceeding | ||||||
13 | does not preclude civil proceedings under this Article; | ||||||
14 | however, for good cause shown, on a motion by the State's | ||||||
15 | Attorney, the court may stay civil forfeiture proceedings | ||||||
16 | during the criminal trial for a related criminal indictment | ||||||
17 | or information alleging a money laundering violation. Such | ||||||
18 | a stay shall not be available pending an appeal. Property | ||||||
19 | subject to forfeiture under this Article shall not be | ||||||
20 | subject to return or release by a court exercising | ||||||
21 | jurisdiction over a criminal case involving the seizure of | ||||||
22 | such property unless such return or release is consented to | ||||||
23 | by the State's Attorney. | ||||||
24 | (11) All property declared forfeited under this | ||||||
25 | Article vests in this State on the commission of the | ||||||
26 | conduct giving rise to forfeiture together with the |
| |||||||
| |||||||
1 | proceeds of the property after that time. Any such property | ||||||
2 | or proceeds subsequently transferred to any person remain | ||||||
3 | subject to forfeiture and thereafter shall be ordered | ||||||
4 | forfeited. | ||||||
5 | (12) A civil action under this Article must be | ||||||
6 | commenced within 5 years after the last conduct giving rise | ||||||
7 | to forfeiture became known or should have become known or 5 | ||||||
8 | years after the forfeitable property is discovered, | ||||||
9 | whichever is later, excluding any time during which either | ||||||
10 | the property or claimant is out of the State or in | ||||||
11 | confinement or during which criminal proceedings relating | ||||||
12 | to the same conduct are in progress. | ||||||
13 | (m) Stay of time periods. If property is seized for | ||||||
14 | evidence and for forfeiture, the time periods for instituting | ||||||
15 | judicial and non-judicial forfeiture proceedings shall not | ||||||
16 | begin until the property is no longer necessary for evidence. | ||||||
17 | (n) Settlement of claims. Notwithstanding other provisions | ||||||
18 | of this Article, the State's Attorney and a claimant of seized | ||||||
19 | property may enter into an agreed-upon settlement concerning | ||||||
20 | the seized property in such an amount and upon such terms as | ||||||
21 | are set out in writing in a settlement agreement. | ||||||
22 | (o) Property constituting attorney fees. Nothing in this | ||||||
23 | Article applies to property which constitutes reasonable bona | ||||||
24 | fide attorney's fees paid to an attorney for services rendered | ||||||
25 | or to be rendered in the forfeiture proceeding or criminal | ||||||
26 | proceeding relating directly thereto where such property was |
| |||||||
| |||||||
1 | paid before its seizure, before the issuance of any seizure | ||||||
2 | warrant or court order prohibiting transfer of the property and | ||||||
3 | where the attorney, at the time he or she received the property | ||||||
4 | did not know that it was property subject to forfeiture under | ||||||
5 | this Article. | ||||||
6 | (p) Construction. It is the intent of the General Assembly | ||||||
7 | that the forfeiture provisions of this Article be liberally | ||||||
8 | construed so as to effect their remedial purpose. The | ||||||
9 | forfeiture of property and other remedies hereunder shall be | ||||||
10 | considered to be in addition to, and not exclusive of, any | ||||||
11 | sentence or other remedy provided by law. | ||||||
12 | (q) Judicial review. If property has been declared | ||||||
13 | forfeited under subsection (k) of this Section, any person who | ||||||
14 | has an interest in the property declared forfeited may, within | ||||||
15 | 30 days after the effective date of the notice of the | ||||||
16 | declaration of forfeiture, file a claim and cost bond as | ||||||
17 | described in paragraph (3) of subsection (k) of this Section. | ||||||
18 | If a claim and cost bond is filed under this Section, then the | ||||||
19 | procedures described in subsection (l) of this Section apply. | ||||||
20 | (r) Burden of proof of exemption or exception. It is not | ||||||
21 | necessary for the State to negate any exemption or exception in | ||||||
22 | this Article in any complaint, information, indictment or other | ||||||
23 | pleading or in any trial, hearing, or other proceeding under | ||||||
24 | this Article. The burden of proof of any exemption or exception | ||||||
25 | is upon the person claiming it. | ||||||
26 | (s) Review of administrative decisions.
All administrative |
| |||||||
| |||||||
1 | findings, rulings, final determinations, findings, and | ||||||
2 | conclusions of the State's Attorney's Office under this Article | ||||||
3 | are final and conclusive decisions of the matters involved. Any | ||||||
4 | person aggrieved by the decision may obtain review of the | ||||||
5 | decision pursuant to the provisions of the Administrative | ||||||
6 | Review Law and the rules adopted pursuant to that Law. Pending | ||||||
7 | final decision on such review, the administrative acts, orders, | ||||||
8 | and rulings of the State's Attorney's Office remain in full | ||||||
9 | force and effect unless modified or suspended by order of court | ||||||
10 | pending final judicial decision. Pending final decision on such | ||||||
11 | review, the acts, orders, and rulings of the State's Attorney's | ||||||
12 | Office remain in full force and effect, unless stayed by order | ||||||
13 | of court. However, no stay of any decision of the | ||||||
14 | administrative agency shall issue unless the person aggrieved | ||||||
15 | by the decision establishes by a preponderance of the evidence | ||||||
16 | that good cause exists for the stay. In determining good cause, | ||||||
17 | the court shall find that the aggrieved party has established a | ||||||
18 | substantial likelihood of prevailing on the merits and that | ||||||
19 | granting the stay will not have an injurious effect on the | ||||||
20 | general public.
| ||||||
21 | (Source: P.A. 93-520, eff. 8-6-03; 94-364, eff. 7-29-05; | ||||||
22 | 94-556, eff. 9-11-05; 94-955, eff. 6-27-06.)
| ||||||
23 | Section 99. Effective date. This Act takes effect upon | ||||||
24 | becoming law.
|