Full Text of HB2353 96th General Assembly
HB2353enr 96TH GENERAL ASSEMBLY
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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| AN ACT concerning criminal law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Criminal Code of 1961 is amended by changing | 5 |
| Section 29B-1 as follows:
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| (720 ILCS 5/29B-1) (from Ch. 38, par. 29B-1)
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| Sec. 29B-1. (a) A person commits the offense of money | 8 |
| laundering:
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| (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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LRB096 08518 RLC 18638 b |
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| 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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| (2) when, with the intent to:
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| (A) promote the carrying on of a specified criminal | 17 |
| activity as defined
in this Article; or
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| (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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| 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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LRB096 08518 RLC 18638 b |
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| subdivision (b)(6) or property used to conduct or
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| facilitate specified criminal activity as defined by | 3 |
| subdivision (b)(6).
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| (b) As used in this Section:
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| (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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| (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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| 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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| instruments, or real or personal property involved in the | 26 |
| transaction are
criminally derived, any transaction which |
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LRB096 08518 RLC 18638 b |
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| 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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| (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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| (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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| (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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| 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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| 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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| (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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| (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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| (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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| (9) "Transaction reporting requirement under State | 22 |
| law" means any violation as defined under the Currency | 23 |
| Reporting Act.
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| (c) Sentence.
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| (1) Laundering of criminally derived property of a | 26 |
| value not exceeding
$10,000 is a Class 3 felony;
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LRB096 08518 RLC 18638 b |
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| (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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| (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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| (4) Money laundering in violation of subsection (a)(2) | 8 |
| of this Section
is a Class X felony;
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| (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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| (6) In a prosecution under clause (a)(1.5)(B)(ii) of | 13 |
| this Section, the sentences are 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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| 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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LRB096 08518 RLC 18638 b |
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| 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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| 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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| (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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| 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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| rules of evidence.
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| (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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| (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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| 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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| 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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| (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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| (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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| (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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| 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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| 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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HB2353 Enrolled |
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LRB096 08518 RLC 18638 b |
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| 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 |
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HB2353 Enrolled |
- 19 - |
LRB096 08518 RLC 18638 b |
|
| 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 |
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HB2353 Enrolled |
- 20 - |
LRB096 08518 RLC 18638 b |
|
| 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; |
|
|
|
HB2353 Enrolled |
- 21 - |
LRB096 08518 RLC 18638 b |
|
| 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 |
|
|
|
HB2353 Enrolled |
- 22 - |
LRB096 08518 RLC 18638 b |
|
| 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 |
|
|
|
HB2353 Enrolled |
- 23 - |
LRB096 08518 RLC 18638 b |
|
| 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 |
|
|
|
HB2353 Enrolled |
- 24 - |
LRB096 08518 RLC 18638 b |
|
| 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 |
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|
|
HB2353 Enrolled |
- 25 - |
LRB096 08518 RLC 18638 b |
|
| 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 |
|
|
|
HB2353 Enrolled |
- 26 - |
LRB096 08518 RLC 18638 b |
|
| 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 |
|
|
|
HB2353 Enrolled |
- 27 - |
LRB096 08518 RLC 18638 b |
|
| 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 |
|
|
|
HB2353 Enrolled |
- 28 - |
LRB096 08518 RLC 18638 b |
|
| 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.
|
|