SB2613 Enrolled LRB094 16170 RLC 51412 b

1     AN ACT concerning criminal law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 1. Purpose.
5     (a) This Act is not intended to make any substantive change
6 in the law. It reconciles conflicts that have arisen from
7 multiple amendments and enactments made to Section 29B-1 of the
8 Criminal Code of 1961 by Public Acts 94-364 and 94-556. It also
9 makes a technical correction in subdivision (l)(3) of that
10 Section.
11     (b) In this Act, the reference at the end of Section 29B-1
12 of the Criminal Code of 1961 indicates the sources in the
13 Session Laws of Illinois that were used in the preparation of
14 the text of that Section. The text of Section 29B-1 included in
15 this Act is intended to include the different versions of that
16 Section found in the Public Acts included in the list of
17 sources, but may not include other versions of the Section to
18 be found in Public Acts not included in the list of sources.
19 The list of sources is not a part of the text of the Section.
20 Except for the one technical correction made in subdivision
21 (l)(3), the text of Section 29B-1 contains no striking or
22 underscoring because no other changes are being made in the
23 material that is being combined.
 
24     Section 5. The Criminal Code of 1961 is amended by changing
25 Section 29B-1 as follows:
 
26     (720 ILCS 5/29B-1)  (from Ch. 38, par. 29B-1)
27     Sec. 29B-1. (a) A person commits the offense of money
28 laundering:
29         (1) when, knowing that the property involved in a
30     financial transaction represents the proceeds of some form
31     of unlawful activity, he or she conducts or attempts to

 

 

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1     conduct such a financial transaction which in fact involves
2     criminally derived property:
3             (A) with the intent to promote the carrying on of
4         the unlawful activity from which the criminally
5         derived property was obtained; or
6             (B) where he or she knows or reasonably should know
7         that the financial transaction is designed in whole or
8         in part:
9                 (i) to conceal or disguise the nature, the
10             location, the source, the ownership or the control
11             of the criminally derived property; or
12                 (ii) to avoid a transaction reporting
13             requirement under State law; or
14         (1.5) when he or she transports, transmits, or
15     transfers, or attempts to transport, transmit, or transfer
16     a monetary instrument:
17             (A) with the intent to promote the carrying on of
18         the unlawful activity from which the criminally
19         derived property was obtained; or
20             (B) knowing, or having reason to know, that the
21         financial transaction is designed in whole or in part:
22                 (i) to conceal or disguise the nature, the
23             location, the source, the ownership or the control
24             of the criminally derived property; or
25                 (ii) to avoid a transaction reporting
26             requirement under State law; or
27         (2) when, with the intent to:
28             (A) promote the carrying on of a specified criminal
29         activity as defined in this Article; or
30             (B) conceal or disguise the nature, location,
31         source, ownership, or control of property believed to
32         be the proceeds of a specified criminal activity as
33         defined by subdivision (b)(6); or
34             (C) avoid a transaction reporting requirement
35         under State law,
36     he or she conducts or attempts to conduct a financial

 

 

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1     transaction involving property he or she believes to be the
2     proceeds of specified criminal activity as defined by
3     subdivision (b)(6) or property used to conduct or
4     facilitate specified criminal activity as defined by
5     subdivision (b)(6).
6     (b) As used in this Section:
7         (0.5) "Knowing that the property involved in a
8     financial transaction represents the proceeds of some form
9     of unlawful activity" means that the person knew the
10     property involved in the transaction represented proceeds
11     from some form, though not necessarily which form, of
12     activity that constitutes a felony under State, federal, or
13     foreign law, regardless of whether or not such activity is
14     specified in subdivision (b) (4).
15         (1) "Financial transaction" means a purchase, sale,
16     loan, pledge, gift, transfer, delivery or other
17     disposition utilizing criminally derived property, and
18     with respect to financial institutions, includes a
19     deposit, withdrawal, transfer between accounts, exchange
20     of currency, loan, extension of credit, purchase or sale of
21     any stock, bond, certificate of deposit or other monetary
22     instrument, use of safe deposit box, or any other payment,
23     transfer or delivery by, through, or to a financial
24     institution. For purposes of clause (a)(2) of this Section,
25     the term "financial transaction" also means a transaction
26     which without regard to whether the funds, monetary
27     instruments, or real or personal property involved in the
28     transaction are criminally derived, any transaction which
29     in any way or degree: (1) involves the movement of funds by
30     wire or any other means; (2) involves one or more monetary
31     instruments; or (3) the transfer of title to any real or
32     personal property. The receipt by an attorney of bona fide
33     fees for the purpose of legal representation is not a
34     financial transaction for purposes of this Section.
35         (2) "Financial institution" means any bank; saving and
36     loan association; trust company; agency or branch of a

 

 

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1     foreign bank in the United States; currency exchange;
2     credit union, mortgage banking institution; pawnbroker;
3     loan or finance company; operator of a credit card system;
4     issuer, redeemer or cashier of travelers checks, checks or
5     money orders; dealer in precious metals, stones or jewels;
6     broker or dealer in securities or commodities; investment
7     banker; or investment company.
8         (3) "Monetary instrument" means United States coins
9     and currency; coins and currency of a foreign country;
10     travelers checks; personal checks, bank checks, and money
11     orders; investment securities; bearer negotiable
12     instruments; bearer investment securities; or bearer
13     securities and certificates of stock in such form that
14     title thereto passes upon delivery.
15         (4) "Criminally derived property" means: (A) any
16     property, real or personal, constituting or derived from
17     proceeds obtained, directly or indirectly, pursuant to a
18     violation of the Criminal Code of 1961, the Illinois
19     Controlled Substances Act, the Cannabis Control Act, or the
20     Methamphetamine Control and Community Protection Act; or
21     (B) any property represented to be property constituting or
22     derived from proceeds obtained, directly or indirectly,
23     pursuant to a violation of this Code, the Illinois
24     Controlled Substances Act, the Cannabis Control Act, or the
25     Methamphetamine Control and Community Protection Act.
26         (5) "Conduct" or "conducts" includes, in addition to
27     its ordinary meaning, initiating, concluding, or
28     participating in initiating or concluding a transaction.
29         (6) "Specified criminal activity" means any violation
30     of Section 20.5-5 (720 ILCS 5/20.5-5) and any violation of
31     Article 29D of this Code.
32         (7) "Director" means the Director of State Police or
33     his or her designated agents.
34         (8) "Department" means the Department of State Police
35     of the State of Illinois or its successor agency.
36         (9) "Transaction reporting requirement under State

 

 

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1     law" means any violation as defined under the Currency
2     Reporting Act.
3     (c) Sentence.
4         (1) Laundering of criminally derived property of a
5     value not exceeding $10,000 is a Class 3 felony;
6         (2) Laundering of criminally derived property of a
7     value exceeding $10,000 but not exceeding $100,000 is a
8     Class 2 felony;
9         (3) Laundering of criminally derived property of a
10     value exceeding $100,000 but not exceeding $500,000 is a
11     Class 1 felony;
12         (4) Money laundering in violation of subsection (a)(2)
13     of this Section is a Class X felony;
14         (5) Laundering of criminally derived property of a
15     value exceeding $500,000 is a Class 1 non-probationable
16     felony.
17     (d) Evidence. In a prosecution under this Article, either
18 party may introduce the following evidence pertaining to the
19 issue of whether the property or proceeds were known to be some
20 form of criminally derived property or from some form of
21 unlawful activity:
22         (1) A financial transaction was conducted or
23     structured or attempted in violation of the reporting
24     requirements of any State or federal law; or
25         (2) A financial transaction was conducted or attempted
26     with the use of a false or fictitious name or a forged
27     instrument; or
28         (3) A falsely altered or completed written instrument
29     or a written instrument that contains any materially false
30     personal identifying information was made, used, offered
31     or presented, whether accepted or not, in connection with a
32     financial transaction; or
33         (4) A financial transaction was structured or
34     attempted to be structured so as to falsely report the
35     actual consideration or value of the transaction; or
36         (5) A money transmitter, a person engaged in a trade or

 

 

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1     business or any employee of a money transmitter or a person
2     engaged in a trade or business, knows or reasonably should
3     know that false personal identifying information has been
4     presented and incorporates the false personal identifying
5     information into any report or record; or
6         (6) The criminally derived property is transported or
7     possessed in a fashion inconsistent with the ordinary or
8     usual means of transportation or possession of such
9     property and where the property is discovered in the
10     absence of any documentation or other indicia of legitimate
11     origin or right to such property; or
12         (7) A person pays or receives substantially less than
13     face value for one or more monetary instruments; or
14         (8) A person engages in a transaction involving one or
15     more monetary instruments, where the physical condition or
16     form of the monetary instrument or instruments makes it
17     apparent that they are not the product of bona fide
18     business or financial transactions.
19     (e) Duty to enforce this Article.
20         (1) It is the duty of the Department of State Police,
21     and its agents, officers, and investigators, to enforce all
22     provisions of this Article, except those specifically
23     delegated, and to cooperate with all agencies charged with
24     the enforcement of the laws of the United States, or of any
25     state, relating to money laundering. Only an agent,
26     officer, or investigator designated by the Director may be
27     authorized in accordance with this Section to serve seizure
28     notices, warrants, subpoenas, and summonses under the
29     authority of this State.
30         (2) Any agent, officer, investigator, or peace officer
31     designated by the Director may: (A) make seizure of
32     property pursuant to the provisions of this Article; and
33     (B) perform such other law enforcement duties as the
34     Director designates. It is the duty of all State's
35     Attorneys to prosecute violations of this Article and
36     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
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
27             whom the order is to be entered.
28             Provided, however, that an order entered pursuant
29         to subparagraph (B) shall be effective for not more
30         than 90 days, unless extended by the court for good
31         cause shown or unless an indictment, information,
32         complaint, or administrative notice has been filed.
33         (2) A temporary restraining order under this
34     subsection may be entered upon application of the State
35     without notice or opportunity for a hearing when an
36     indictment, information, complaint, or administrative

 

 

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1     notice has not yet been filed with respect to the property,
2     if the State demonstrates that there is probable cause to
3     believe that the property with respect to which the order
4     is sought would be subject to forfeiture under this Section
5     and that provision of notice will jeopardize the
6     availability of the property for forfeiture. Such a
7     temporary order shall expire not more than 30 days after
8     the date on which it is entered, unless extended for good
9     cause shown or unless the party against whom it is entered
10     consents to an extension for a longer period. A hearing
11     requested concerning an order entered under this paragraph
12     shall be held at the earliest possible time and prior to
13     the expiration of the temporary order.
14         (3) The court may receive and consider, at a hearing
15     held pursuant to this subsection (f), evidence and
16     information that would be inadmissible under the Illinois
17     rules of evidence.
18         (4) Order to repatriate and deposit.
19             (A) In general. Pursuant to its authority to enter
20         a pretrial restraining order under this Section, the
21         court may order a defendant to repatriate any property
22         that may be seized and forfeited and to deposit that
23         property pending trial with the Illinois State Police
24         or another law enforcement agency designated by the
25         Illinois State Police.
26             (B) Failure to comply. Failure to comply with an
27         order under this subsection (f) is punishable as a
28         civil or criminal contempt of court.
29     (g) Warrant of seizure. The State may request the issuance
30 of a warrant authorizing the seizure of property described in
31 subsection (h) in the same manner as provided for a search
32 warrant. If the court determines that there is probable cause
33 to believe that the property to be seized would be subject to
34 forfeiture, the court shall issue a warrant authorizing the
35 seizure of such property.
36     (h) Forfeiture.

 

 

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1         (1) The following are subject to forfeiture:
2             (A) any property, real or personal, constituting,
3         derived from, or traceable to any proceeds the person
4         obtained directly or indirectly, as a result of a
5         violation of this Article;
6             (B) any of the person's property used, or intended
7         to be used, in any manner or part, to commit, or to
8         facilitate the commission of, a violation of this
9         Article;
10             (C) all conveyances, including aircraft, vehicles
11         or vessels, which are used, or intended for use, to
12         transport, or in any manner to facilitate the
13         transportation, sale, receipt, possession, or
14         concealment of property described in subparagraphs (A)
15         and (B), but:
16                 (i) no conveyance used by any person as a
17             common carrier in the transaction of business as a
18             common carrier is subject to forfeiture under this
19             Section unless it appears that the owner or other
20             person in charge of the conveyance is a consenting
21             party or privy to a violation of this Article;
22                 (ii) no conveyance is subject to forfeiture
23             under this Section by reason of any act or omission
24             which the owner proves to have been committed or
25             omitted without his or her knowledge or consent;
26                 (iii) a forfeiture of a conveyance encumbered
27             by a bona fide security interest is subject to the
28             interest of the secured party if he or she neither
29             had knowledge of nor consented to the act or
30             omission;
31             (D) all real property, including any right, title,
32         and interest (including, but not limited to, any
33         leasehold interest or the beneficial interest in a land
34         trust) in the whole of any lot or tract of land and any
35         appurtenances or improvements, which is used or
36         intended to be used, in any manner or part, to commit,

 

 

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1         or in any manner to facilitate the commission of, any
2         violation of this Article or that is the proceeds of
3         any violation or act that constitutes a violation of
4         this Article.
5         (2) Property subject to forfeiture under this Article
6     may be seized by the Director or any peace officer upon
7     process or seizure warrant issued by any court having
8     jurisdiction over the property. Seizure by the Director or
9     any peace officer without process may be made:
10             (A) if the seizure is incident to a seizure
11         warrant;
12             (B) if the property subject to seizure has been the
13         subject of a prior judgment in favor of the State in a
14         criminal proceeding, or in an injunction or forfeiture
15         proceeding based upon this Article;
16             (C) if there is probable cause to believe that the
17         property is directly or indirectly dangerous to health
18         or safety;
19             (D) if there is probable cause to believe that the
20         property is subject to forfeiture under this Article
21         and the property is seized under circumstances in which
22         a warrantless seizure or arrest would be reasonable; or
23             (E) in accordance with the Code of Criminal
24         Procedure of 1963.
25         (3) In the event of seizure pursuant to paragraph (2),
26     forfeiture proceedings shall be instituted in accordance
27     with subsections (i) through (r).
28         (4) Property taken or detained under this Section shall
29     not be subject to replevin, but is deemed to be in the
30     custody of the Director subject only to the order and
31     judgments of the circuit court having jurisdiction over the
32     forfeiture proceedings and the decisions of the State's
33     Attorney under this Article. When property is seized under
34     this Article, the seizing agency shall promptly conduct an
35     inventory of the seized property and estimate the
36     property's value and shall forward a copy of the inventory

 

 

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1     of seized property and the estimate of the property's value
2     to the Director. Upon receiving notice of seizure, the
3     Director may:
4             (A) place the property under seal;
5             (B) remove the property to a place designated by
6         the Director;
7             (C) keep the property in the possession of the
8         seizing agency;
9             (D) remove the property to a storage area for
10         safekeeping or, if the property is a negotiable
11         instrument or money and is not needed for evidentiary
12         purposes, deposit it in an interest bearing account;
13             (E) place the property under constructive seizure
14         by posting notice of pending forfeiture on it, by
15         giving notice of pending forfeiture to its owners and
16         interest holders, or by filing notice of pending
17         forfeiture in any appropriate public record relating
18         to the property; or
19             (F) provide for another agency or custodian,
20         including an owner, secured party, or lienholder, to
21         take custody of the property upon the terms and
22         conditions set by the Director.
23         (5) When property is forfeited under this Article, the
24     Director shall sell all such property unless such property
25     is required by law to be destroyed or is harmful to the
26     public, and shall distribute the proceeds of the sale,
27     together with any moneys forfeited or seized, in accordance
28     with paragraph (6). However, upon the application of the
29     seizing agency or prosecutor who was responsible for the
30     investigation, arrest or arrests and prosecution which
31     lead to the forfeiture, the Director may return any item of
32     forfeited property to the seizing agency or prosecutor for
33     official use in the enforcement of laws, if the agency or
34     prosecutor can demonstrate that the item requested would be
35     useful to the agency or prosecutor in its enforcement
36     efforts. When any real property returned to the seizing

 

 

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1     agency is sold by the agency or its unit of government, the
2     proceeds of the sale shall be delivered to the Director and
3     distributed in accordance with paragraph (6).
4         (6) All monies and the sale proceeds of all other
5     property forfeited and seized under this Article shall be
6     distributed as follows:
7             (A) 65% shall be distributed to the metropolitan
8         enforcement group, local, municipal, county, or State
9         law enforcement agency or agencies which conducted or
10         participated in the investigation resulting in the
11         forfeiture. The distribution shall bear a reasonable
12         relationship to the degree of direct participation of
13         the law enforcement agency in the effort resulting in
14         the forfeiture, taking into account the total value of
15         the property forfeited and the total law enforcement
16         effort with respect to the violation of the law upon
17         which the forfeiture is based. Amounts distributed to
18         the agency or agencies shall be used for the
19         enforcement of laws.
20             (B) (i) 12.5% shall be distributed to the Office of
21         the State's Attorney of the county in which the
22         prosecution resulting in the forfeiture was
23         instituted, deposited in a special fund in the county
24         treasury and appropriated to the State's Attorney for
25         use in the enforcement of laws. In counties over
26         3,000,000 population, 25% shall be distributed to the
27         Office of the State's Attorney for use in the
28         enforcement of laws. If the prosecution is undertaken
29         solely by the Attorney General, the portion provided
30         hereunder shall be distributed to the Attorney General
31         for use in the enforcement of laws.
32                 (ii) 12.5% shall be distributed to the Office
33             of the State's Attorneys Appellate Prosecutor and
34             deposited in the Narcotics Profit Forfeiture Fund
35             of that office to be used for additional expenses
36             incurred in the investigation, prosecution and

 

 

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1             appeal of cases arising under laws. The Office of
2             the State's Attorneys Appellate Prosecutor shall
3             not receive distribution from cases brought in
4             counties with over 3,000,000 population.
5             (C) 10% shall be retained by the Department of
6         State Police for expenses related to the
7         administration and sale of seized and forfeited
8         property.
9     (i) Notice to owner or interest holder.
10         (1) Whenever notice of pending forfeiture or service of
11     an in rem complaint is required under the provisions of
12     this Article, such notice or service shall be given as
13     follows:
14             (A) If the owner's or interest holder's name and
15         current address are known, then by either personal
16         service or mailing a copy of the notice by certified
17         mail, return receipt requested, to that address. For
18         purposes of notice under this Section, if a person has
19         been arrested for the conduct giving rise to the
20         forfeiture, then the address provided to the arresting
21         agency at the time of arrest shall be deemed to be that
22         person's known address. Provided, however, if an owner
23         or interest holder's address changes prior to the
24         effective date of the notice of pending forfeiture, the
25         owner or interest holder shall promptly notify the
26         seizing agency of the change in address or, if the
27         owner or interest holder's address changes subsequent
28         to the effective date of the notice of pending
29         forfeiture, the owner or interest holder shall
30         promptly notify the State's Attorney of the change in
31         address; or
32             (B) If the property seized is a conveyance, to the
33         address reflected in the office of the agency or
34         official in which title or interest to the conveyance
35         is required by law to be recorded, then by mailing a
36         copy of the notice by certified mail, return receipt

 

 

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1         requested, to that address; or
2             (C) If the owner's or interest holder's address is
3         not known, and is not on record as provided in
4         paragraph (B), then by publication for 3 successive
5         weeks in a newspaper of general circulation in the
6         county in which the seizure occurred.
7         (2) Notice served under this Article is effective upon
8     personal service, the last date of publication, or the
9     mailing of written notice, whichever is earlier.
10     (j) Notice to State's Attorney. The law enforcement agency
11 seizing property for forfeiture under this Article shall,
12 within 90 days after seizure, notify the State's Attorney for
13 the county, either where an act or omission giving rise to the
14 forfeiture occurred or where the property was seized, of the
15 seizure of the property and the facts and circumstances giving
16 rise to the seizure and shall provide the State's Attorney with
17 the inventory of the property and its estimated value. When the
18 property seized for forfeiture is a vehicle, the law
19 enforcement agency seizing the property shall immediately
20 notify the Secretary of State that forfeiture proceedings are
21 pending regarding such vehicle.
22     (k) Non-judicial forfeiture. If non-real property that
23 exceeds $20,000 in value excluding the value of any conveyance,
24 or if real property is seized under the provisions of this
25 Article, the State's Attorney shall institute judicial in rem
26 forfeiture proceedings as described in subsection (l) of this
27 Section within 45 days from receipt of notice of seizure from
28 the seizing agency under subsection (j) of this Section.
29 However, if non-real property that does not exceed $20,000 in
30 value excluding the value of any conveyance is seized, the
31 following procedure shall be used:
32         (1) If, after review of the facts surrounding the
33     seizure, the State's Attorney is of the opinion that the
34     seized property is subject to forfeiture, then within 45
35     days after the receipt of notice of seizure from the
36     seizing agency, the State's Attorney shall cause notice of

 

 

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1     pending forfeiture to be given to the owner of the property
2     and all known interest holders of the property in
3     accordance with subsection (i) of this Section.
4         (2) The notice of pending forfeiture must include a
5     description of the property, the estimated value of the
6     property, the date and place of seizure, the conduct giving
7     rise to forfeiture or the violation of law alleged, and a
8     summary of procedures and procedural rights applicable to
9     the forfeiture action.
10         (3)(A) Any person claiming an interest in property
11     which is the subject of notice under paragraph (1) of this
12     subsection (k), must, in order to preserve any rights or
13     claims to the property, within 45 days after the effective
14     date of notice as described in subsection (i) of this
15     Section, file a verified claim with the State's Attorney
16     expressing his or her interest in the property. The claim
17     must set forth:
18             (i) the caption of the proceedings as set forth on
19         the notice of pending forfeiture and the name of the
20         claimant;
21             (ii) the address at which the claimant will accept
22         mail;
23             (iii) the nature and extent of the claimant's
24         interest in the property;
25             (iv) the date, identity of the transferor, and
26         circumstances of the claimant's acquisition of the
27         interest in the property;
28             (v) the name and address of all other persons known
29         to have an interest in the property;
30             (vi) the specific provision of law relied on in
31         asserting the property is not subject to forfeiture;
32             (vii) all essential facts supporting each
33         assertion; and
34             (viii) the relief sought.
35             (B) If a claimant files the claim and deposits with
36         the State's Attorney a cost bond, in the form of a

 

 

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1         cashier's check payable to the clerk of the court, in
2         the sum of 10% of the reasonable value of the property
3         as alleged by the State's Attorney or the sum of $100,
4         whichever is greater, upon condition that, in the case
5         of forfeiture, the claimant must pay all costs and
6         expenses of forfeiture proceedings, then the State's
7         Attorney shall institute judicial in rem forfeiture
8         proceedings and deposit the cost bond with the clerk of
9         the court as described in subsection (l) of this
10         Section within 45 days after receipt of the claim and
11         cost bond. In lieu of a cost bond, a person claiming
12         interest in the seized property may file, under penalty
13         of perjury, an indigency affidavit which has been
14         approved by a circuit court judge.
15             (C) If none of the seized property is forfeited in
16         the judicial in rem proceeding, the clerk of the court
17         shall return to the claimant, unless the court orders
18         otherwise, 90% of the sum which has been deposited and
19         shall retain as costs 10% of the money deposited. If
20         any of the seized property is forfeited under the
21         judicial forfeiture proceeding, the clerk of the court
22         shall transfer 90% of the sum which has been deposited
23         to the State's Attorney prosecuting the civil
24         forfeiture to be applied to the costs of prosecution
25         and the clerk shall retain as costs 10% of the sum
26         deposited.
27         (4) If no claim is filed or bond given within the 45
28     day period as described in paragraph (3) of this subsection
29     (k), the State's Attorney shall declare the property
30     forfeited and shall promptly notify the owner and all known
31     interest holders of the property and the Director of State
32     Police of the declaration of forfeiture and the Director
33     shall dispose of the property in accordance with law.
34     (l) Judicial in rem procedures. If property seized under
35 the provisions of this Article is non-real property that
36 exceeds $20,000 in value excluding the value of any conveyance,

 

 

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1 or is real property, or a claimant has filed a claim and a cost
2 bond under paragraph (3) of subsection (k) of this Section, the
3 following judicial in rem procedures shall apply:
4         (1) If, after a review of the facts surrounding the
5     seizure, the State's Attorney is of the opinion that the
6     seized property is subject to forfeiture, then within 45
7     days of the receipt of notice of seizure by the seizing
8     agency or the filing of the claim and cost bond, whichever
9     is later, the State's Attorney shall institute judicial
10     forfeiture proceedings by filing a verified complaint for
11     forfeiture and, if the claimant has filed a claim and cost
12     bond, by depositing the cost bond with the clerk of the
13     court. When authorized by law, a forfeiture must be ordered
14     by a court on an action in rem brought by a State's
15     Attorney under a verified complaint for forfeiture.
16         (2) During the probable cause portion of the judicial
17     in rem proceeding wherein the State presents its
18     case-in-chief, the court must receive and consider, among
19     other things, all relevant hearsay evidence and
20     information. The laws of evidence relating to civil actions
21     apply to all other portions of the judicial in rem
22     proceeding.
23         (3) Only an owner of or interest holder in the property
24     may file an answer asserting a claim against the property
25     in the action in rem. For purposes of this Section, the
26     owner or interest holder shall be referred to as claimant.
27     Upon motion of the State, the court shall first hold a
28     hearing, wherein any claimant must establish by a
29     preponderance of the evidence, that he or she has a lawful,
30     legitimate ownership interest in the property and that it
31     was obtained through a lawful source.
32         (4) The answer must be signed by the owner or interest
33     holder under penalty of perjury and must set forth:
34             (A) the caption of the proceedings as set forth on
35         the notice of pending forfeiture and the name of the
36         claimant;

 

 

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1             (B) the address at which the claimant will accept
2         mail;
3             (C) the nature and extent of the claimant's
4         interest in the property;
5             (D) the date, identity of transferor, and
6         circumstances of the claimant's acquisition of the
7         interest in the property;
8             (E) the name and address of all other persons known
9         to have an interest in the property;
10             (F) all essential facts supporting each assertion;
11         and
12             (G) the precise relief sought.
13         (5) The answer must be filed with the court within 45
14     days after service of the civil in rem complaint.
15         (6) The hearing must be held within 60 days after
16     filing of the answer unless continued for good cause.
17         (7) The State shall show the existence of probable
18     cause for forfeiture of the property. If the State shows
19     probable cause, the claimant has the burden of showing by a
20     preponderance of the evidence that the claimant's interest
21     in the property is not subject to forfeiture.
22         (8) If the State does not show existence of probable
23     cause, the court shall order the interest in the property
24     returned or conveyed to the claimant and shall order all
25     other property forfeited to the State. If the State does
26     show existence of probable cause, the court shall order all
27     property forfeited to the State.
28         (9) A defendant convicted in any criminal proceeding is
29     precluded from later denying the essential allegations of
30     the criminal offense of which the defendant was convicted
31     in any proceeding under this Article regardless of the
32     pendency of an appeal from that conviction. However,
33     evidence of the pendency of an appeal is admissible.
34         (10) An acquittal or dismissal in a criminal proceeding
35     does not preclude civil proceedings under this Article;
36     however, for good cause shown, on a motion by the State's

 

 

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1     Attorney, the court may stay civil forfeiture proceedings
2     during the criminal trial for a related criminal indictment
3     or information alleging a money laundering violation. Such
4     a stay shall not be available pending an appeal. Property
5     subject to forfeiture under this Article shall not be
6     subject to return or release by a court exercising
7     jurisdiction over a criminal case involving the seizure of
8     such property unless such return or release is consented to
9     by the State's Attorney.
10         (11) All property declared forfeited under this
11     Article vests in this State on the commission of the
12     conduct giving rise to forfeiture together with the
13     proceeds of the property after that time. Any such property
14     or proceeds subsequently transferred to any person remain
15     subject to forfeiture and thereafter shall be ordered
16     forfeited.
17         (12) A civil action under this Article must be
18     commenced within 5 years after the last conduct giving rise
19     to forfeiture became known or should have become known or 5
20     years after the forfeitable property is discovered,
21     whichever is later, excluding any time during which either
22     the property or claimant is out of the State or in
23     confinement or during which criminal proceedings relating
24     to the same conduct are in progress.
25     (m) Stay of time periods. If property is seized for
26 evidence and for forfeiture, the time periods for instituting
27 judicial and non-judicial forfeiture proceedings shall not
28 begin until the property is no longer necessary for evidence.
29     (n) Settlement of claims. Notwithstanding other provisions
30 of this Article, the State's Attorney and a claimant of seized
31 property may enter into an agreed-upon settlement concerning
32 the seized property in such an amount and upon such terms as
33 are set out in writing in a settlement agreement.
34     (o) Property constituting attorney fees. Nothing in this
35 Article applies to property which constitutes reasonable bona
36 fide attorney's fees paid to an attorney for services rendered

 

 

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1 or to be rendered in the forfeiture proceeding or criminal
2 proceeding relating directly thereto where such property was
3 paid before its seizure, before the issuance of any seizure
4 warrant or court order prohibiting transfer of the property and
5 where the attorney, at the time he or she received the property
6 did not know that it was property subject to forfeiture under
7 this Article.
8     (p) Construction. It is the intent of the General Assembly
9 that the forfeiture provisions of this Article be liberally
10 construed so as to effect their remedial purpose. The
11 forfeiture of property and other remedies hereunder shall be
12 considered to be in addition to, and not exclusive of, any
13 sentence or other remedy provided by law.
14     (q) Judicial review. If property has been declared
15 forfeited under subsection (k) of this Section, any person who
16 has an interest in the property declared forfeited may, within
17 30 days after the effective date of the notice of the
18 declaration of forfeiture, file a claim and cost bond as
19 described in paragraph (3) of subsection (k) of this Section.
20 If a claim and cost bond is filed under this Section, then the
21 procedures described in subsection (l) of this Section apply.
22     (r) Burden of proof of exemption or exception. It is not
23 necessary for the State to negate any exemption or exception in
24 this Article in any complaint, information, indictment or other
25 pleading or in any trial, hearing, or other proceeding under
26 this Article. The burden of proof of any exemption or exception
27 is upon the person claiming it.
28     (s) Review of administrative decisions. All administrative
29 findings, rulings, final determinations, findings, and
30 conclusions of the State's Attorney's Office under this Article
31 are final and conclusive decisions of the matters involved. Any
32 person aggrieved by the decision may obtain review of the
33 decision pursuant to the provisions of the Administrative
34 Review Law and the rules adopted pursuant to that Law. Pending
35 final decision on such review, the administrative acts, orders,
36 and rulings of the State's Attorney's Office remain in full

 

 

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1 force and effect unless modified or suspended by order of court
2 pending final judicial decision. Pending final decision on such
3 review, the acts, orders, and rulings of the State's Attorney's
4 Office remain in full force and effect, unless stayed by order
5 of court. However, no stay of any decision of the
6 administrative agency shall issue unless the person aggrieved
7 by the decision establishes by a preponderance of the evidence
8 that good cause exists for the stay. In determining good cause,
9 the court shall find that the aggrieved party has established a
10 substantial likelihood of prevailing on the merits and that
11 granting the stay will not have an injurious effect on the
12 general public.
13 (Source: P.A. 93-520, eff. 8-6-03; 94-364, eff. 7-29-05;
14 94-556, eff. 9-11-05; revised 8-19-05.)
 
15     Section 99. Effective date. This Act takes effect upon
16 becoming law.