96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB5362

 

Introduced 2/5/2010, by Rep. Daniel J. Burke

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/29B-1   from Ch. 38, par. 29B-1

    Amends the Criminal Code of 1961. Makes a technical change in the Section concerning the offense of money laundering.


LRB096 19269 RLC 34660 b

 

 

A BILL FOR

 

HB5362 LRB096 19269 RLC 34660 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 5. The Criminal Code of 1961 is amended by changing
5 Section 29B-1 as follows:
 
6     (720 ILCS 5/29B-1)  (from Ch. 38, par. 29B-1)
7     Sec. 29B-1. (a) A person commits the offense of money
8 laundering:
9         (1) when, knowing that the property involved in 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
15         (2) when, with the intent to:
16             (A) promote the carrying on of a specified criminal
17         activity as defined in this Article; or
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,
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
2     facilitate specified criminal activity as defined by
3     subdivision (b)(6).
4     (b) As used in this Section:
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.
12         (1) "Financial transaction" means a purchase, sale,
13     loan, pledge, gift, transfer, delivery or other
14     disposition utilizing criminally derived property, and
15     with respect to financial institutions, includes a
16     deposit, withdrawal, transfer between accounts, exchange
17     of currency, loan, extension of credit, purchase or sale of
18     any stock, bond, certificate of deposit or other monetary
19     instrument, use of safe deposit box, or any other payment,
20     transfer or delivery by, through, or to a financial
21     institution. For purposes of clause (a)(2) of this Section,
22     the term "financial transaction" also means a transaction
23     which without regard to whether the funds, monetary
24     instruments, or real or personal property involved in the
25     transaction are criminally derived, any transaction which
26     in any way or degree: (1) involves the movement of funds by

 

 

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1     wire or any other means; (2) involves one or more monetary
2     instruments; or (3) the transfer of title to any real or
3     personal property. The receipt by an attorney of bona fide
4     fees for the purpose of legal representation is not a
5     financial transaction for purposes of this Section.
6         (2) "Financial institution" means any bank; saving and
7     loan association; trust company; agency or branch of a
8     foreign bank in the United States; currency exchange;
9     credit union, mortgage banking institution; pawnbroker;
10     loan or finance company; operator of a credit card system;
11     issuer, redeemer or cashier of travelers checks, checks or
12     money orders; dealer in precious metals, stones or jewels;
13     broker or dealer in securities or commodities; investment
14     banker; or investment company.
15         (3) "Monetary instrument" means United States coins
16     and currency; coins and currency of a foreign country;
17     travelers checks; personal checks, bank checks, and money
18     orders; investment securities; bearer negotiable
19     instruments; bearer investment securities; or bearer
20     securities and certificates of stock in such form that
21     title thereto passes upon delivery.
22         (4) "Criminally derived property" means: (A) any
23     property, real or personal, constituting or derived from
24     proceeds obtained, directly or indirectly, from activity
25     that constitutes a felony under State, federal, or foreign
26     law; or (B) any property represented to be property

 

 

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1     constituting or derived from proceeds obtained, directly
2     or indirectly, from activity that constitutes a felony
3     under State, federal, or foreign law.
4         (5) "Conduct" or "conducts" includes, in addition to
5     its ordinary meaning, initiating, concluding, or
6     participating in initiating or concluding a transaction.
7         (6) "Specified criminal activity" means any violation
8     of Section 29D-15.1 (720 ILCS 5/29D-15.1) and any violation
9     of Article 29D of this Code.
10         (7) "Director" means the Director of State Police or
11     his or her designated agents.
12         (8) "Department" means the Department of State Police
13     of the State of Illinois or its successor agency.
14         (9) "Transaction reporting requirement under State
15     law" means any violation as defined under the Currency
16     Reporting Act.
17     (c) Sentence.
18         (1) Laundering of criminally derived property of a
19     value not exceeding $10,000 is a Class 3 felony;
20         (2) Laundering of criminally derived property of a
21     value exceeding $10,000 but not exceeding $100,000 is a
22     Class 2 felony;
23         (3) Laundering of criminally derived property of a
24     value exceeding $100,000 but not exceeding $500,000 is a
25     Class 1 felony;
26         (4) Money laundering in violation of subsection (a)(2)

 

 

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1     of this Section is a Class X felony;
2         (5) Laundering of criminally derived property of a
3     value exceeding $500,000 is a Class 1 non-probationable
4     felony;
5         (6) In a prosecution under clause (a)(1.5)(B)(ii) of
6     this Section, the sentences are as follows:
7             (A) Laundering of property of a value not exceeding
8         $10,000 is a Class 3 felony;
9             (B) Laundering of property of a value exceeding
10         $10,000 but not exceeding $100,000 is a Class 2 felony;
11             (C) Laundering of property of a value exceeding
12         $100,000 but not exceeding $500,000 is a Class 1
13         felony;
14             (D) Laundering of property of a value exceeding
15         $500,000 is a Class 1 non-probationable felony.
16     (d) Evidence. In a prosecution under this Article, either
17 party may introduce the following evidence pertaining to the
18 issue of whether the property or proceeds were known to be some
19 form of criminally derived property or from some form of
20 unlawful activity:
21         (1) A financial transaction was conducted or
22     structured or attempted in violation of the reporting
23     requirements of any State or federal law; or
24         (2) A financial transaction was conducted or attempted
25     with the use of a false or fictitious name or a forged
26     instrument; or

 

 

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1         (3) A falsely altered or completed written instrument
2     or a written instrument that contains any materially false
3     personal identifying information was made, used, offered
4     or presented, whether accepted or not, in connection with a
5     financial transaction; or
6         (4) A financial transaction was structured or
7     attempted to be structured so as to falsely report the
8     actual consideration or value of the transaction; or
9         (5) A money transmitter, a person engaged in a trade or
10     business or any employee of a money transmitter or a person
11     engaged in a trade or business, knows or reasonably should
12     know that false personal identifying information has been
13     presented and incorporates the false personal identifying
14     information into any report or record; or
15         (6) The criminally derived property is transported or
16     possessed in a fashion inconsistent with the ordinary or
17     usual means of transportation or possession of such
18     property and where the property is discovered in the
19     absence of any documentation or other indicia of legitimate
20     origin or right to such property; or
21         (7) A person pays or receives substantially less than
22     face value for one or more monetary instruments; or
23         (8) A person engages in a transaction involving one or
24     more monetary instruments, where the physical condition or
25     form of the monetary instrument or instruments makes it
26     apparent that they are not the product of bona fide

 

 

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1     business or financial transactions.
2     (e) Duty to enforce this Article.
3         (1) It is the duty of the Department of State Police,
4     and its agents, officers, and investigators, to enforce all
5     provisions of this Article, except those specifically
6     delegated, and to cooperate with all agencies charged with
7     the enforcement of the laws of the United States, or of any
8     state, relating to money laundering. Only an agent,
9     officer, or investigator designated by the Director may be
10     authorized in accordance with this Section to serve seizure
11     notices, warrants, subpoenas, and summonses under the
12     authority of this State.
13         (2) Any agent, officer, investigator, or peace officer
14     designated by the Director may: (A) make seizure of
15     property pursuant to the provisions of this Article; and
16     (B) perform such other law enforcement duties as the
17     Director designates. It is the duty of all State's
18     Attorneys to prosecute violations of this Article and
19     institute legal proceedings as authorized under this
20     Article.
21     (f) Protective orders.
22         (1) Upon application of the State, the court may enter
23     a restraining order or injunction, require the execution of
24     a satisfactory performance bond, or take any other action
25     to preserve the availability of property described in
26     subsection (h) for forfeiture under this Article:

 

 

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1             (A) upon the filing of an indictment, information,
2         or complaint charging a violation of this Article for
3         which forfeiture may be ordered under this Article and
4         alleging that the property with respect to which the
5         order is sought would be subject to forfeiture under
6         this Article; or
7             (B) prior to the filing of such an indictment,
8         information, or complaint, if, after notice to persons
9         appearing to have an interest in the property and
10         opportunity for a hearing, the court determines that:
11                 (i) there is probable cause to believe that the
12             State will prevail on the issue of forfeiture and
13             that failure to enter the order will result in the
14             property being destroyed, removed from the
15             jurisdiction of the court, or otherwise made
16             unavailable for forfeiture; and
17                 (ii) the need to preserve the availability of
18             the property through the entry of the requested
19             order outweighs the hardship on any party against
20             whom the order is to be entered.
21             Provided, however, that an order entered pursuant
22         to subparagraph (B) shall be effective for not more
23         than 90 days, unless extended by the court for good
24         cause shown or unless an indictment, information,
25         complaint, or administrative notice has been filed.
26         (2) A temporary restraining order under this

 

 

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1     subsection may be entered upon application of the State
2     without notice or opportunity for a hearing when an
3     indictment, information, complaint, or administrative
4     notice has not yet been filed with respect to the property,
5     if the State demonstrates that there is probable cause to
6     believe that the property with respect to which the order
7     is sought would be subject to forfeiture under this Section
8     and that provision of notice will jeopardize the
9     availability of the property for forfeiture. Such a
10     temporary order shall expire not more than 30 days after
11     the date on which it is entered, unless extended for good
12     cause shown or unless the party against whom it is entered
13     consents to an extension for a longer period. A hearing
14     requested concerning an order entered under this paragraph
15     shall be held at the earliest possible time and prior to
16     the expiration of the temporary order.
17         (3) The court may receive and consider, at a hearing
18     held pursuant to this subsection (f), evidence and
19     information that would be inadmissible under the Illinois
20     rules of evidence.
21         (4) Order to repatriate and deposit.
22             (A) In general. Pursuant to its authority to enter
23         a pretrial restraining order under this Section, the
24         court may order a defendant to repatriate any property
25         that may be seized and forfeited and to deposit that
26         property pending trial with the Illinois State Police

 

 

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1         or another law enforcement agency designated by the
2         Illinois State Police.
3             (B) Failure to comply. Failure to comply with an
4         order under this subsection (f) is punishable as a
5         civil or criminal contempt of court.
6     (g) Warrant of seizure. The State may request the issuance
7 of a warrant authorizing the seizure of property described in
8 subsection (h) in the same manner as provided for a search
9 warrant. If the court determines that there is probable cause
10 to believe that the property to be seized would be subject to
11 forfeiture, the court shall issue a warrant authorizing the
12 seizure of such property.
13     (h) Forfeiture.
14         (1) The following are subject to forfeiture:
15             (A) any property, real or personal, constituting,
16         derived from, or traceable to any proceeds the person
17         obtained directly or indirectly, as a result of a
18         violation of this Article;
19             (B) any of the person's property used, or intended
20         to be used, in any manner or part, to commit, or to
21         facilitate the commission of, a violation of this
22         Article;
23             (C) all conveyances, including aircraft, vehicles
24         or vessels, which are used, or intended for use, to
25         transport, or in any manner to facilitate the
26         transportation, sale, receipt, possession, or

 

 

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1         concealment of property described in subparagraphs (A)
2         and (B), but:
3                 (i) no conveyance used by any person as a
4             common carrier in the transaction of business as a
5             common carrier is subject to forfeiture under this
6             Section unless it appears that the owner or other
7             person in charge of the conveyance is a consenting
8             party or privy to a violation of this Article;
9                 (ii) no conveyance is subject to forfeiture
10             under this Section by reason of any act or omission
11             which the owner proves to have been committed or
12             omitted without his or her knowledge or consent;
13                 (iii) a forfeiture of a conveyance encumbered
14             by a bona fide security interest is subject to the
15             interest of the secured party if he or she neither
16             had knowledge of nor consented to the act or
17             omission;
18             (D) all real property, including any right, title,
19         and interest (including, but not limited to, any
20         leasehold interest or the beneficial interest in a land
21         trust) in the whole of any lot or tract of land and any
22         appurtenances or improvements, which is used or
23         intended to be used, in any manner or part, to commit,
24         or in any manner to facilitate the commission of, any
25         violation of this Article or that is the proceeds of
26         any violation or act that constitutes a violation of

 

 

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1         this Article.
2         (2) Property subject to forfeiture under this Article
3     may be seized by the Director or any peace officer upon
4     process or seizure warrant issued by any court having
5     jurisdiction over the property. Seizure by the Director or
6     any peace officer without process may be made:
7             (A) if the seizure is incident to a seizure
8         warrant;
9             (B) if the property subject to seizure has been the
10         subject of a prior judgment in favor of the State in a
11         criminal proceeding, or in an injunction or forfeiture
12         proceeding based upon this Article;
13             (C) if there is probable cause to believe that the
14         property is directly or indirectly dangerous to health
15         or safety;
16             (D) if there is probable cause to believe that the
17         property is subject to forfeiture under this Article
18         and the property is seized under circumstances in which
19         a warrantless seizure or arrest would be reasonable; or
20             (E) in accordance with the Code of Criminal
21         Procedure of 1963.
22         (3) In the event of seizure pursuant to paragraph (2),
23     forfeiture proceedings shall be instituted in accordance
24     with subsections (i) through (r).
25         (4) Property taken or detained under this Section shall
26     not be subject to replevin, but is deemed to be in the

 

 

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1     custody of the Director subject only to the order and
2     judgments of the circuit court having jurisdiction over the
3     forfeiture proceedings and the decisions of the State's
4     Attorney under this Article. When property is seized under
5     this Article, the seizing agency shall promptly conduct an
6     inventory of the seized property and estimate the
7     property's value and shall forward a copy of the inventory
8     of seized property and the estimate of the property's value
9     to the Director. Upon receiving notice of seizure, the
10     Director may:
11             (A) place the property under seal;
12             (B) remove the property to a place designated by
13         the Director;
14             (C) keep the property in the possession of the
15         seizing agency;
16             (D) remove the property to a storage area for
17         safekeeping or, if the property is a negotiable
18         instrument or money and is not needed for evidentiary
19         purposes, deposit it in an interest bearing account;
20             (E) place the property under constructive seizure
21         by posting notice of pending forfeiture on it, by
22         giving notice of pending forfeiture to its owners and
23         interest holders, or by filing notice of pending
24         forfeiture in any appropriate public record relating
25         to the property; or
26             (F) provide for another agency or custodian,

 

 

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1         including an owner, secured party, or lienholder, to
2         take custody of the property upon the terms and
3         conditions set by the Director.
4         (5) When property is forfeited under this Article, the
5     Director shall sell all such property unless such property
6     is required by law to be destroyed or is harmful to the
7     public, and shall distribute the proceeds of the sale,
8     together with any moneys forfeited or seized, in accordance
9     with paragraph (6). However, upon the application of the
10     seizing agency or prosecutor who was responsible for the
11     investigation, arrest or arrests and prosecution which
12     lead to the forfeiture, the Director may return any item of
13     forfeited property to the seizing agency or prosecutor for
14     official use in the enforcement of laws, if the agency or
15     prosecutor can demonstrate that the item requested would be
16     useful to the agency or prosecutor in its enforcement
17     efforts. When any real property returned to the seizing
18     agency is sold by the agency or its unit of government, the
19     proceeds of the sale shall be delivered to the Director and
20     distributed in accordance with paragraph (6).
21         (6) All monies and the sale proceeds of all other
22     property forfeited and seized under this Article shall be
23     distributed as follows:
24             (A) 65% shall be distributed to the metropolitan
25         enforcement group, local, municipal, county, or State
26         law enforcement agency or agencies which conducted or

 

 

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1         participated in the investigation resulting in the
2         forfeiture. The distribution shall bear a reasonable
3         relationship to the degree of direct participation of
4         the law enforcement agency in the effort resulting in
5         the forfeiture, taking into account the total value of
6         the property forfeited and the total law enforcement
7         effort with respect to the violation of the law upon
8         which the forfeiture is based. Amounts distributed to
9         the agency or agencies shall be used for the
10         enforcement of laws.
11             (B)(i) 12.5% shall be distributed to the Office of
12         the State's Attorney of the county in which the
13         prosecution resulting in the forfeiture was
14         instituted, deposited in a special fund in the county
15         treasury and appropriated to the State's Attorney for
16         use in the enforcement of laws. In counties over
17         3,000,000 population, 25% shall be distributed to the
18         Office of the State's Attorney for use in the
19         enforcement of laws. If the prosecution is undertaken
20         solely by the Attorney General, the portion provided
21         hereunder shall be distributed to the Attorney General
22         for use in the enforcement of laws.
23                 (ii) 12.5% shall be distributed to the Office
24             of the State's Attorneys Appellate Prosecutor and
25             deposited in the Narcotics Profit Forfeiture Fund
26             of that office to be used for additional expenses

 

 

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

 

 

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1         seizing agency of the change in address or, if the
2         owner or interest holder's address changes subsequent
3         to the effective date of the notice of pending
4         forfeiture, the owner or interest holder shall
5         promptly notify the State's Attorney of the change in
6         address; or
7             (B) If the property seized is a conveyance, to the
8         address reflected in the office of the agency or
9         official in which title or interest to the conveyance
10         is required by law to be recorded, then by mailing a
11         copy of the notice by certified mail, return receipt
12         requested, to that address; or
13             (C) If the owner's or interest holder's address is
14         not known, and is not on record as provided in
15         paragraph (B), then by publication for 3 successive
16         weeks in a newspaper of general circulation in the
17         county in which the seizure occurred.
18         (2) Notice served under this Article is effective upon
19     personal service, the last date of publication, or the
20     mailing of written notice, whichever is earlier.
21     (j) Notice to State's Attorney. The law enforcement agency
22 seizing property for forfeiture under this Article shall,
23 within 90 days after seizure, notify the State's Attorney for
24 the county, either where an act or omission giving rise to the
25 forfeiture occurred or where the property was seized, of the
26 seizure of the property and the facts and circumstances giving

 

 

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1 rise to the seizure and shall provide the State's Attorney with
2 the inventory of the property and its estimated value. When the
3 property seized for forfeiture is a vehicle, the law
4 enforcement agency seizing the property shall immediately
5 notify the Secretary of State that forfeiture proceedings are
6 pending regarding such vehicle.
7     (k) Non-judicial forfeiture. If non-real property that
8 exceeds $20,000 in value excluding the value of any conveyance,
9 or if real property is seized under the provisions of this
10 Article, the State's Attorney shall institute judicial in rem
11 forfeiture proceedings as described in subsection (l) of this
12 Section within 45 days from receipt of notice of seizure from
13 the seizing agency under subsection (j) of this Section.
14 However, if non-real property that does not exceed $20,000 in
15 value excluding the value of any conveyance is seized, the
16 following procedure shall be used:
17         (1) If, after review of the facts surrounding the
18     seizure, the State's Attorney is of the opinion that the
19     seized property is subject to forfeiture, then within 45
20     days after the receipt of notice of seizure from the
21     seizing agency, the State's Attorney shall cause notice of
22     pending forfeiture to be given to the owner of the property
23     and all known interest holders of the property in
24     accordance with subsection (i) of this Section.
25         (2) The notice of pending forfeiture must include a
26     description of the property, the estimated value of the

 

 

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1     property, the date and place of seizure, the conduct giving
2     rise to forfeiture or the violation of law alleged, and a
3     summary of procedures and procedural rights applicable to
4     the forfeiture action.
5         (3)(A) Any person claiming an interest in property
6     which is the subject of notice under paragraph (1) of this
7     subsection (k), must, in order to preserve any rights or
8     claims to the property, within 45 days after the effective
9     date of notice as described in subsection (i) of this
10     Section, file a verified claim with the State's Attorney
11     expressing his or her interest in the property. The claim
12     must set forth:
13             (i) the caption of the proceedings as set forth on
14         the notice of pending forfeiture and the name of the
15         claimant;
16             (ii) the address at which the claimant will accept
17         mail;
18             (iii) the nature and extent of the claimant's
19         interest in the property;
20             (iv) the date, identity of the transferor, and
21         circumstances of the claimant's acquisition of the
22         interest in the property;
23             (v) the name and address of all other persons known
24         to have an interest in the property;
25             (vi) the specific provision of law relied on in
26         asserting the property is not subject to forfeiture;

 

 

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1             (vii) all essential facts supporting each
2         assertion; and
3             (viii) the relief sought.
4         (B) If a claimant files the claim and deposits with the
5     State's Attorney a cost bond, in the form of a cashier's
6     check payable to the clerk of the court, in the sum of 10%
7     of the reasonable value of the property as alleged by the
8     State's Attorney or the sum of $100, whichever is greater,
9     upon condition that, in the case of forfeiture, the
10     claimant must pay all costs and expenses of forfeiture
11     proceedings, then the State's Attorney shall institute
12     judicial in rem forfeiture proceedings and deposit the cost
13     bond with the clerk of the court as described in subsection
14     (l) of this Section within 45 days after receipt of the
15     claim and cost bond. In lieu of a cost bond, a person
16     claiming interest in the seized property may file, under
17     penalty of perjury, an indigency affidavit which has been
18     approved by a circuit court judge.
19         (C) If none of the seized property is forfeited in the
20     judicial in rem proceeding, the clerk of the court shall
21     return to the claimant, unless the court orders otherwise,
22     90% of the sum which has been deposited and shall retain as
23     costs 10% of the money deposited. If any of the seized
24     property is forfeited under the judicial forfeiture
25     proceeding, the clerk of the court shall transfer 90% of
26     the sum which has been deposited to the State's Attorney

 

 

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1     prosecuting the civil forfeiture to be applied to the costs
2     of prosecution and the clerk shall retain as costs 10% of
3     the sum deposited.
4         (4) If no claim is filed or bond given within the 45
5     day period as described in paragraph (3) of this subsection
6     (k), the State's Attorney shall declare the property
7     forfeited and shall promptly notify the owner and all known
8     interest holders of the property and the Director of State
9     Police of the declaration of forfeiture and the Director
10     shall dispose of the property in accordance with law.
11     (l) Judicial in rem procedures. If property seized under
12 the provisions of this Article is non-real property that
13 exceeds $20,000 in value excluding the value of any conveyance,
14 or is real property, or a claimant has filed a claim and a cost
15 bond under paragraph (3) of subsection (k) of this Section, the
16 following judicial in rem procedures shall apply:
17         (1) If, after a review of the facts surrounding the
18     seizure, the State's Attorney is of the opinion that the
19     seized property is subject to forfeiture, then within 45
20     days of the receipt of notice of seizure by the seizing
21     agency or the filing of the claim and cost bond, whichever
22     is later, the State's Attorney shall institute judicial
23     forfeiture proceedings by filing a verified complaint for
24     forfeiture and, if the claimant has filed a claim and cost
25     bond, by depositing the cost bond with the clerk of the
26     court. When authorized by law, a forfeiture must be ordered

 

 

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1     by a court on an action in rem brought by a State's
2     Attorney under a verified complaint for forfeiture.
3         (2) During the probable cause portion of the judicial
4     in rem proceeding wherein the State presents its
5     case-in-chief, the court must receive and consider, among
6     other things, all relevant hearsay evidence and
7     information. The laws of evidence relating to civil actions
8     apply to all other portions of the judicial in rem
9     proceeding.
10         (3) Only an owner of or interest holder in the property
11     may file an answer asserting a claim against the property
12     in the action in rem. For purposes of this Section, the
13     owner or interest holder shall be referred to as claimant.
14     Upon motion of the State, the court shall first hold a
15     hearing, wherein any claimant must establish by a
16     preponderance of the evidence, that he or she has a lawful,
17     legitimate ownership interest in the property and that it
18     was obtained through a lawful source.
19         (4) The answer must be signed by the owner or interest
20     holder under penalty of perjury and must set forth:
21             (A) the caption of the proceedings as set forth on
22         the notice of pending forfeiture and the name of the
23         claimant;
24             (B) the address at which the claimant will accept
25         mail;
26             (C) the nature and extent of the claimant's

 

 

HB5362 - 24 - LRB096 19269 RLC 34660 b

1         interest in the property;
2             (D) the date, identity of transferor, and
3         circumstances of the claimant's acquisition of the
4         interest in the property;
5             (E) the name and address of all other persons known
6         to have an interest in the property;
7             (F) all essential facts supporting each assertion;
8         and
9             (G) the precise relief sought.
10         (5) The answer must be filed with the court within 45
11     days after service of the civil in rem complaint.
12         (6) The hearing must be held within 60 days after
13     filing of the answer unless continued for good cause.
14         (7) The State shall show the existence of probable
15     cause for forfeiture of the property. If the State shows
16     probable cause, the claimant has the burden of showing by a
17     preponderance of the evidence that the claimant's interest
18     in the property is not subject to forfeiture.
19         (8) If the State does not show existence of probable
20     cause, the court shall order the interest in the property
21     returned or conveyed to the claimant and shall order all
22     other property forfeited to the State. If the State does
23     show existence of probable cause, the court shall order all
24     property forfeited to the State.
25         (9) A defendant convicted in any criminal proceeding is
26     precluded from later denying the essential allegations of

 

 

HB5362 - 25 - LRB096 19269 RLC 34660 b

1     the criminal offense of which the defendant was convicted
2     in any proceeding under this Article regardless of the
3     pendency of an appeal from that conviction. However,
4     evidence of the pendency of an appeal is admissible.
5         (10) An acquittal or dismissal in a criminal proceeding
6     does not preclude civil proceedings under this Article;
7     however, for good cause shown, on a motion by the State's
8     Attorney, the court may stay civil forfeiture proceedings
9     during the criminal trial for a related criminal indictment
10     or information alleging a money laundering violation. Such
11     a stay shall not be available pending an appeal. Property
12     subject to forfeiture under this Article shall not be
13     subject to return or release by a court exercising
14     jurisdiction over a criminal case involving the seizure of
15     such property unless such return or release is consented to
16     by the State's Attorney.
17         (11) All property declared forfeited under this
18     Article vests in this State on the commission of the
19     conduct giving rise to forfeiture together with the
20     proceeds of the property after that time. Any such property
21     or proceeds subsequently transferred to any person remain
22     subject to forfeiture and thereafter shall be ordered
23     forfeited.
24         (12) A civil action under this Article must be
25     commenced within 5 years after the last conduct giving rise
26     to forfeiture became known or should have become known or 5

 

 

HB5362 - 26 - LRB096 19269 RLC 34660 b

1     years after the forfeitable property is discovered,
2     whichever is later, excluding any time during which either
3     the property or claimant is out of the State or in
4     confinement or during which criminal proceedings relating
5     to the same conduct are in progress.
6     (m) Stay of time periods. If property is seized for
7 evidence and for forfeiture, the time periods for instituting
8 judicial and non-judicial forfeiture proceedings shall not
9 begin until the property is no longer necessary for evidence.
10     (n) Settlement of claims. Notwithstanding other provisions
11 of this Article, the State's Attorney and a claimant of seized
12 property may enter into an agreed-upon settlement concerning
13 the seized property in such an amount and upon such terms as
14 are set out in writing in a settlement agreement.
15     (o) Property constituting attorney fees. Nothing in this
16 Article applies to property which constitutes reasonable bona
17 fide attorney's fees paid to an attorney for services rendered
18 or to be rendered in the forfeiture proceeding or criminal
19 proceeding relating directly thereto where such property was
20 paid before its seizure, before the issuance of any seizure
21 warrant or court order prohibiting transfer of the property and
22 where the attorney, at the time he or she received the property
23 did not know that it was property subject to forfeiture under
24 this Article.
25     (p) Construction. It is the intent of the General Assembly
26 that the forfeiture provisions of this Article be liberally

 

 

HB5362 - 27 - LRB096 19269 RLC 34660 b

1 construed so as to effect their remedial purpose. The
2 forfeiture of property and other remedies hereunder shall be
3 considered to be in addition to, and not exclusive of, any
4 sentence or other remedy provided by law.
5     (q) Judicial review. If property has been declared
6 forfeited under subsection (k) of this Section, any person who
7 has an interest in the property declared forfeited may, within
8 30 days after the effective date of the notice of the
9 declaration of forfeiture, file a claim and cost bond as
10 described in paragraph (3) of subsection (k) of this Section.
11 If a claim and cost bond is filed under this Section, then the
12 procedures described in subsection (l) of this Section apply.
13     (r) Burden of proof of exemption or exception. It is not
14 necessary for the State to negate any exemption or exception in
15 this Article in any complaint, information, indictment or other
16 pleading or in any trial, hearing, or other proceeding under
17 this Article. The burden of proof of any exemption or exception
18 is upon the person claiming it.
19     (s) Review of administrative decisions. All administrative
20 findings, rulings, final determinations, findings, and
21 conclusions of the State's Attorney's Office under this Article
22 are final and conclusive decisions of the matters involved. Any
23 person aggrieved by the decision may obtain review of the
24 decision pursuant to the provisions of the Administrative
25 Review Law and the rules adopted pursuant to that Law. Pending
26 final decision on such review, the administrative acts, orders,

 

 

HB5362 - 28 - LRB096 19269 RLC 34660 b

1 and rulings of the State's Attorney's Office remain in full
2 force and effect unless modified or suspended by order of court
3 pending final judicial decision. Pending final decision on such
4 review, the acts, orders, and rulings of the State's Attorney's
5 Office remain in full force and effect, unless stayed by order
6 of court. However, no stay of any decision of the
7 administrative agency shall issue unless the person aggrieved
8 by the decision establishes by a preponderance of the evidence
9 that good cause exists for the stay. In determining good cause,
10 the court shall find that the aggrieved party has established a
11 substantial likelihood of prevailing on the merits and that
12 granting the stay will not have an injurious effect on the
13 general public.
14 (Source: P.A. 96-275, eff. 8-11-09; 96-710, eff. 1-1-10;
15 revised 10-9-09.)