Full Text of HB2353 96th General Assembly
HB2353 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB2353
Introduced 2/19/2009, by Rep. Kevin Joyce SYNOPSIS AS INTRODUCED: |
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720 ILCS 5/29B-1 |
from Ch. 38, par. 29B-1 |
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Amends the Criminal Code of 1961 relating to the offense of money laundering. Changes the definition of "criminally derived property" to: (1) any property, real or personal, constituting
or
derived from proceeds obtained, directly or indirectly, from activity that constitutes a felony under State, federal, or foreign law; or (2) any property
represented to be property constituting or derived from proceeds obtained,
directly or indirectly, from activity that constitutes a felony under State, federal, or foreign law (rather than a
violation of the Criminal Code of 1961, the Illinois Controlled Substances
Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act). Establishes penalties for laundering of property by transporting, transmitting, or transferring, or attempting to transport, transmit, or transfer a monetary instrument knowing, or having reason to know, that the financial transaction is designed in whole or in part to avoid a transaction reporting requirement under State law. Effective immediately.
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| CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY | |
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A BILL FOR
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HB2353 |
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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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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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| (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 is as follows: | 14 |
| (A) Laundering of property of a value not exceeding | 15 |
| $10,000 is a Class 3 felony; | 16 |
| (B) Laundering of property of a value exceeding | 17 |
| $10,000 but not exceeding $100,000 is a Class 2 felony; | 18 |
| (C) Laundering of property of a value exceeding | 19 |
| $100,000 but not exceeding $500,000 is a Class 1 | 20 |
| felony; | 21 |
| (D) Laundering of property of a value exceeding | 22 |
| $500,000 is a Class 1 non-probationable felony. | 23 |
| (d) Evidence. In a prosecution under this Article, either | 24 |
| party may introduce the following evidence pertaining to the | 25 |
| issue of whether the property or proceeds were known to be some | 26 |
| form of criminally derived property or from some form of |
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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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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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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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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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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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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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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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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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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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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 |
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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 |
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LRB096 08518 RLC 18638 b |
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| 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 |
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LRB096 08518 RLC 18638 b |
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| 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; |
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HB2353 |
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LRB096 08518 RLC 18638 b |
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| (iv) the date, identity of the transferor, and | 2 |
| circumstances of the claimant's acquisition of the | 3 |
| interest in the property;
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| (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 |
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HB2353 |
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LRB096 08518 RLC 18638 b |
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| 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 |
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HB2353 |
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LRB096 08518 RLC 18638 b |
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| 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 |
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HB2353 |
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LRB096 08518 RLC 18638 b |
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| 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.
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| (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.
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| (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.
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| (8) If the State does not show existence of probable |
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HB2353 |
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LRB096 08518 RLC 18638 b |
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| 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 |
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HB2353 |
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LRB096 08518 RLC 18638 b |
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| 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 |
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HB2353 |
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LRB096 08518 RLC 18638 b |
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| 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 |
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HB2353 |
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LRB096 08518 RLC 18638 b |
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| 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.
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