People v. Daniels

No. 2--95--1190
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, ) No. 95--CF--544
)
v. )
)
JOE C. DANIELS, ) Honorable
) Eugene A. Wojcik,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________

JUSTICE COLWELL delivered the opinion of the court:
In March 1995, defendant, Joe C. Daniels, was indicted with
one count of unlawful delivery of more than 15 grams but less than
100 grams of a controlled substance (cocaine) (720 ILCS
570/401(a)(2)(A) (West 1992)); and two counts of unlawful delivery
of more than 1 gram but less than 15 grams of a controlled
substance (cocaine) (720 ILCS 570/401(c)(2) (West 1992)).
Defendant moved to dismiss the criminal prosecution against him on
the basis of former jeopardy, arguing that, because a vehicle
titled in his name and seized at the time of his arrest was
forfeited, the seizure and forfeiture constituted punishment for
the same conduct as the criminal offenses and barred further
prosecution against him. After a hearing on September 14, 1995,
the circuit court denied defendant's motion, and he timely appealed
(see 145 Ill. 2d R. 604(f)). We affirm and remand for further
proceedings.
The operative facts gleaned from the record are brief and
undisputed. When defendant was arrested, a 1978 Oldsmobile Coupe
bearing the vehicle identification number 3N37K8C149983 was seized.
The State sent defendant a notice of a pending forfeiture, but he
did not file a claim for the vehicle. Defendant subsequently
received a declaration of forfeiture advising him that the car was
forfeited on May 26, 1995, pursuant to the Illinois Drug Asset
Forfeiture Procedure Act (Forfeiture Act) (725 ILCS 150/1 et seq.
(West 1992)).
Under the provisions of the Forfeiture Act, the State's
Attorney may initiate a nonjudicial forfeiture proceeding against
personal property subject to forfeiture in connection with a drug
offense if the property does not exceed $20,000 in value, excluding
the value of any conveyance. 725 ILCS 150/6 (West 1992). The
State's Attorney gives statutory notice of the pending forfeiture
to known and unknown owners and interest holders of the property
who may then file a claim against the property within 45 days of
the effective date of the notice. 725 ILCS 150/4, 6(B), 6(C)(1)
(West 1992). If the claimant properly files a claim, the State's
Attorney then initiates a judicial in rem forfeiture proceeding for
the court to adjudicate whether the property should be forfeited.
If no claim is timely made, the State's Attorney declares the
property forfeited administratively and disposes of the property in
accordance with the law. 725 ILCS 150/6(C), 6(D) (West 1992).
Here, defendant did not file a claim against the forfeited
automobile, and it was administratively forfeited.
On appeal, defendant argues that, under the holding of our
State supreme court in In re P.S., 169 Ill. 2d 260 (1996), the
forfeiture of defendant's automobile must be deemed punishment for
double jeopardy purposes, and defendant's right to dismissal of the
criminal charges should not have been denied on the ground that
defendant did not claim the property, since the forfeited auto was
a titled vehicle which, according to defendant, distinguishes this
case from this court's ruling in People v. Towns, 269 Ill. App. 3d
907, 918-19 (1995), rev'd in part on other grounds sub nom. In re
P.S., 169 Ill. 2d 260 (1996), vacated in part & remanded sub nom.
Illinois v. Kimery, 518 U.S.___, 135 L. Ed. 2d 1092, 116 S. Ct. 2577 (1996) (mem.). Defendant also relies on United States v.
Ursery, 59 F.3d 568 (6th Cir. 1995) (where government instituted
civil forfeiture action against Ursery's property alleging it had
been used to facilitate drug offenses and defendant agreed to
settle the claim, appeals court concluded that forfeiture and
criminal conviction were punishment for the same offense and
violated prohibition against double jeopardy; jeopardy attached
when forfeiture judgment was entered; conviction and sentence
vacated). However, during the pendency of this appeal the
appellate decision in Ursery was reversed by United States v.
Ursery, 518 U.S. ___, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996).
In P.S., a consolidated case, our State supreme court affirmed
this court's judgment (No. 2--93--1212) with respect to defendant
John Kimery, who was charged with unlawful possession of a
controlled substance (Ill. Rev. Stat. 1991, ch. 56«, par. 1402(c)
(now 720 ILCS 570/402(c)(West 1992))). Kimery's automobile was
seized in connection with the charge and was eventually forfeited
to the State in an in rem proceeding in which Kimery filed a claim
for the property. We vacated Kimery's conviction and sentence and
dismissed the criminal charge against him after concluding that
criminally prosecuting Kimery following the forfeiture of his car
violated the double jeopardy clause. However, our supreme court's
judgment affirming our decision was later vacated by the United
States Supreme Court with respect to Kimery. In re P.S., Nos. 2--
93--1050, 2--93--1212 cons. (2d Dist. March 1, 1995) (unpublished
order under Supreme Court Rule 23), aff'd in part & rev'd in part
& remanded, 169 Ill. 2d 260 (1996), vacated in part & remanded sub
nom. Illinois v. Kimery, 518 U.S.___, 135 L. Ed. 2d 1092, 116 S. Ct. 2577 (1996) (mem.). We concluded in P.S. and Towns that the in
rem forfeiture of a defendant's property in a separate civil
proceeding barred further criminal prosecution of the defendant for
the underlying drug offense on double jeopardy grounds because it
would constitute additional punishment. As many other jurisdictions
had done, we reached this conclusion after interpreting and
attempting to harmonize the holdings of Department of Revenue v.
Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937
(1994); Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488,
113 S. Ct. 2801 (1993); and United States v. Halper, 490 U.S. 435,
104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989).
Our supreme court similarly concluded that further prosecution
of Kimery following the civil in rem forfeiture of his vehicle was
prohibited by the double jeopardy clause, but reached a different
conclusion as to defendants P.S. and Roderick Turner, finding that
the conduct leading to the forfeitures in their cases was different
from the conduct constituting the criminal offenses. In re P.S.,
169 Ill. 2d 260. From the subsequent history of P.S., which
occurred during the pendency of the present appeal, it appears to
us that the portion of the decision in P.S. pertaining to Kimery is
no longer good law.
In People v. Towns, 269 Ill. App. 3d at 918-19, a consolidated
case, we concluded that defendant Towns' failure to make a claim to
the $411 in cash that was seized from him at the time of his arrest
rendered him a nonparty to the forfeiture proceeding; the
forfeiture was not a punishment as to him because he was never "in
jeopardy" in the forfeiture proceeding. We therefore affirmed his
subsequent conviction (No. 2--93--1376). Towns, 269 Ill. App. 3d
at 919. In that same case, defendant Roderick Turner was arrested
on a drug charge, and he appeared to contest the forfeiture of
$2,165 seized at the time of his arrest. We concluded that the
double jeopardy prohibition against multiple punishments protected
defendant Turner from further prosecution. The State appealed the
judgment as to defendant Turner; Towns was not a party to the
appeal. In re P.S., 169 Ill. 2d 260. Thus, it appears that the
portion of the decision in Towns regarding defendant Towns, who
failed to contest the forfeiture, is still good law. Towns, 269
Ill. App. 3d at 918-19; accord People v. Delatorre, 279 Ill. App.
3d 1014, 1019 (1996).
In the present case, we affirm the trial court's decision on
two grounds. First, recent jurisprudence in the law of double
jeopardy conclusively reestablishes that, absent exceptional
circumstances, a civil in rem forfeiture of a defendant's property
will not ordinarily be deemed a "punishment" for double jeopardy
purposes even though the forfeiture arises from the same unlawful
conduct which is the subject of a separate criminal prosecution of
the defendant. United States v. Ursery, 518 U.S. ___, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996). We also find no meaningful
distinction between titled property, such as a vehicle, and cash
that prevents us from concluding that the forfeiture is not
punishment for double jeopardy purposes.
Additionally, because defendant never became a party-claimant
in the administrative forfeiture proceeding, no jeopardy attached
as to him; defendant was not "at risk" for double jeopardy purpose.
People v. Smith, 275 Ill. App. 3d 844, 851-52 (1995); Towns, 269
Ill. App. 3d at 918-19 (defendant Towns, a nonparty, was not at
risk for double jeopardy purposes), rev'd in part on other grounds
sub nom. In re P.S., 169 Ill. 2d 260 (1996), vacated in part &
remanded sub nom. Illinois v. Kimery, 518 U.S.___, 135 L. Ed. 2d 1092, 116 S. Ct. 2577 (1996) (mem.); accord People v. Delatorre,
279 Ill. App. 3d 1014, 1019 (1996); see People v. Krizek, 271 Ill.
App. 3d 533, 538-39 (1995) (temporary deprivation of use of
property seized by State upon probable cause for forfeiture was not
punishment of defendant for double jeopardy purposes).
I. CIVIL IN REM FORFEITURE IS NOT PUNISHMENT
FOR DOUBLE JEOPARDY PURPOSES
The civil in rem seizure and forfeiture of defendant's vehicle
in the instant case did not constitute a criminal punishment for
double jeopardy purposes. The double jeopardy clauses of the
federal and state constitutions are designed to protect against
three distinct abuses: (1) a second prosecution for the same
offense after acquittal; (2) a second prosecution for the same
offense after conviction; and (3) multiple punishments for the same
offense when sought in a separate proceeding. U.S. Const., amend.
V; Ill. Const. 1970, art. I, 10; Halper, 490 U.S. at 440, l04 L. Ed. 2d at 496, 109 S. Ct. at 1897; North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 665, 89 S. Ct. 2072, 2076 (1969).
The third of these protections, which is the subject of this
appeal, prohibits punishing twice, or attempting a second time to
punish criminally, for the same offense. Halper, 490 U.S. at 442,
l04 L. Ed. 2d at 498, 109 S. Ct. at 1898.
In United States v. Ursery the Supreme Court reaffirmed the
two-part test to be applied in determining whether a civil in rem
forfeiture amounts to criminal punishment for double jeopardy
purposes. Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 568, 116 S. Ct. at 2147, relying on United States v. One Assortment of 89
Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984).
Under this test, a court must first determine the legislative
intent of the forfeiture proceeding. The question is whether the
forfeiture proceeding is intended to be, or by its nature
necessarily is, criminal and punitive, or civil and remedial.
Ursery, 518 U.S. at___,___, 135 L. Ed. 2d at 561, 568, 116 S. Ct.
at 2142, 2147, relying on 89 Firearms, 465 U.S. at 362-63, 79 L. Ed. 2d at 368, 104 S. Ct. at 1105.
Second, the court must determine whether the forfeiture
proceeding is so punitive in fact as to persuade the court that the
proceeding may not legitimately be viewed as civil and remedial in
nature despite the legislature's intent. Ursery, 518 U.S. at___,
135 L. Ed. 2d at 568, 116 S. Ct. at 2147, relying on 89 Firearms,
465 U.S. at 365-66, 79 L. Ed. 2d at 370-71, 104 S. Ct. 1106-07
(whether the statutory scheme is so punitive either in purpose or
effect as to negate Congress' intention to establish a civil
remedial mechanism). The defendant or claimant must show by the
"clearest proof" that the forfeiture proceeding is "so punitive in
form and effect as to render [it] criminal" despite the
legislature's intent to the contrary. Ursery, 518 U.S. at___, 135 L. Ed. 2d at 569, 116 S. Ct. at 2148, relying on 89 Firearms, 465 U.S. at 366, 79 L. Ed. 2d at 370-71, 104 S. Ct. 1106-07. Applying
this two-part test to civil forfeitures of property used or
intended to be used to facilitate federal drug offenses or in
violation of money-laundering provisions, the Supreme Court in
Ursery held that in the cases before it the in rem civil
forfeitures were neither punishment nor criminal in nature for
double jeopardy purposes.
A. Legislative Intent
In applying this two-part test to the present case, it is
clear to us that the in rem forfeiture proceeding here is civil and
remedial in nature. Illinois' Forfeiture Act (725 ILCS 150/1 et
seq. (West 1994)) is similar to the federal statutory scheme at
issue in Ursery where the Court found the proceeding to be civil,
in rem, and remedial rather than criminal in nature. Ursery, 518
U.S. at ___, 135 L. Ed. 2d at 568-69, 116 S. Ct. at 2147-48; see
also Smith, 275 Ill. App. 3d at 849; 725 ILCS 150/2, 6 (West 1992).
Under the Illinois Controlled Substances Act (Controlled
Substances Act) (720 ILCS 570/100 et seq. (West 1992)), property
subject to forfeiture includes, among other things, everything of
value furnished, or intended to be furnished, in exchange for a
controlled substance in violation of the Controlled Substances Act
and all proceeds traceable to such an exchange; and all moneys used
or intended to be used, to commit, or in any manner to facilitate,
any violation of the Controlled Substances Act. See 720 ILCS
570/505(a) (West 1992) (enumerating as forfeitable personal and
real property used or intended to be used in any manner to commit
or to facilitate the commission of a drug offense). The property
may be seized if there is "probable cause" to believe that the
property is subject to forfeiture under the Controlled Substances
Act. 720 ILCS 570/505(b)(4) (West 1992). An in rem judicial
proceeding is available to any owner or interest holder of the
property who properly files a claim against seized property. At
the nonjury hearing before the court, the State must show the
existence of probable cause to forfeit the property; then the
claimant has the burden of showing by a preponderance of the
evidence that his or her interest in the property is exempt from
forfeiture. Krizek, 271 Ill. App. 3d at 538; 725 ILCS 150/9(F),
(G) (West 1992).
The property may be declared administratively forfeited in a
nonjudicial proceeding if no owner or known interest holder makes
a timely claim within the 45-day period; the State need only notify
known owners or interest holders in accordance with the statute.
725 ILCS 150/4 (West 1992). Since no one ever need file a claim,
it is clear that the scheme is in rem and is directed at the
property itself; it is not in personam and is not directed
personally against an accused. As in Ursery, the Illinois
proceeding is clearly civil in nature and is not intended to
sanction criminally a particular defendant. Ursery, 518 U.S.
at___, 135 L. Ed. 2d at 568-69, 116 S. Ct. at 2147-48.
At this juncture, we observe that, because the
United States Supreme Court has vacated the judgment against John
Kimery in In re P.S., 169 Ill. 2d 260 (1996), vacated in part &
remanded sub nom. Illinois v. Kimery, 518 U.S.___, 135 L. Ed. 2d 1092, 116 S. Ct. 2577 (1996) (mem.), and has remanded that cause to
the supreme court of Illinois for reconsideration in the light of
Ursery, we believe that the Kimery decision has revived the
validity of our State supreme court's previous legal analysis of
civil in rem forfeitures in People v. 1988 Mercury Cougar, 154 Ill. 2d 27 (1992) (forfeiture proceeding against instrumentality of a
crime is civil and in rem in nature and precludes double jeopardy
protection; forfeiture is remedial). See People v. Felix, Nos. 4--
95--0607, 4--95--0608 cons. (4th Dist. July 26, 1996) (finding that
Mercury Cougar which was overruled in P.S. now again correctly
embodies the law following Ursery).
B. Punitive Effect Despite Legislative Intent
Under the second prong of the 89 Firearms test, we next
determine whether the statutory scheme is "so punitive" either in
purpose or effect as to negate the legislative intent to establish
a civil remedial mechanism. Ursery, 518 U.S. at ___, 135 L. Ed. 2d
at 561, 116 S. Ct. at 2142, citing 89 Firearms, 465 U.S. at 365,
798 L. Ed. 2d at 370, 104 S. Ct. at 1106. As in Ursery, we
conclude that there is little evidence, much less the "clearest
proof" that the Illinois forfeiture proceeding is so punitive in
form and effect as to render it criminal despite the legislature's
intent. The court examines whether the statutory scheme has
important nonpunitive goals even though it may have certain
punitive aspects. Here, the forfeiture provisions serve important
nonpunitive goals. The legislature has declared that the
beneficial purpose of the Forfeiture Act is to deter "the rising
incidence of the abuse and trafficking of" controlled substances.
725 ILCS 150/2 (West 1992). The forfeiture provisions are intended
to remove the instrumentalities of drug crimes, making it more
difficult for the crimes to be repeated. 1988 Mercury Cougar, 154 Ill. 2d at 37-38. As in their federal counterparts, the Illinois
forfeiture provisions encourage the owner to take care that his or
her property is not used for illegal purposes; and the provisions
also serve the nonpunitive goal of ensuring that persons do not
profit from their illegal acts. See Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 569-71, 116 S. Ct. at 2148-49.
Additionally, civil in rem forfeitures have not historically
been regarded as punishment for double jeopardy purposes, and the
State does not have to demonstrate scienter in order to establish
that the property is subject to forfeiture. The property may be
subject to forfeiture even if no party files a claim to it; the
State never need show any connection between the property and a
particular person. Though the forfeiture provisions provide an
"innocent owner" exception (725 ILCS 150/8 (West 1992)), these
exceptions, without a greater indication of punitive intent, are
not dispositive of the intent to punish an accused for double
jeopardy purposes. Like a criminal sanction, a civil sanction may
also have deterrent purposes. Finally, even though the forfeiture
provisions are tied to the commission of criminal activity, this
fact is insufficient to render the provisions punitive, as the
legislature may impose both criminal and civil sanctions with
respect to the same act or omission. See Ursery, 518 U.S. at___,
135 L. Ed. 2d at 569-71, 116 S. Ct. at 2148-49.
We conclude that, under the second prong of the test, the
forfeiture of the vehicle is a remedial civil sanction. Defendant
has failed to demonstrate with the "clearest proof" that the
forfeiture of the vehicle amounted to a criminal punishment for
double jeopardy purposes. He has presented no compelling reasons
which would alter our conclusion. We hold that the seizure and the
civil in rem forfeiture of the vehicle were neither "punishment"
nor "criminal" for double jeopardy purposes.
II. JEOPARDY DID NOT ATTACH BECAUSE DEFENDANT WAS A NONPARTY
This court has ruled that the seizure and forfeiture of
property in a civil in rem forfeiture proceeding--even if later
declared void ab initio for lack of notice--do not amount to
punishment for double jeopardy purposes since the defendant has not
become a party to the proceeding. People v. Smith, 275 Ill. App.
3d 844, 851-52 (1995); People v. Towns, 269 Ill. App. 3d 907, 918-
19 (1995), rev'd in part on other grounds sub nom. In re P.S., 169 Ill. 2d 260 (1996), vacated in part & remanded sub nom. Illinois v.
Kimery, 518 U.S.___,135 L. Ed. 2d 1092, 116 S. Ct. 2577 (1996)
(mem.); accord Delatorre, 279 Ill. App. 3d at 1019; see also
Krizek, 271 Ill. App. 3d 533 (temporary deprivation of use of
property not punishment for double jeopardy purposes).
In Delatorre, the defendants were charged with the unlawful
delivery of cannabis (720 ILCS 550/5 (West 1992)). Defendant
Israel was served with a notice of forfeiture of $934, and
defendant Martin was served with a notice of forfeiture of a 1984
Ford F150 truck. Neither defendant filed a claim as required to
contest the forfeiture under the Forfeiture Act (725 ILCS 150/6(C)
(West 1992)). The State's Attorney thereupon declared the cash and
the truck administratively forfeited. There, as here, the trial
court denied the defendants' motions to dismiss the criminal
prosecution against them because they did not file claims in the
forfeiture proceeding. Relying on Towns, 269 Ill. App. 3d at 918,
which adopted the rationale of United States v. Torres, 28 F.3d 1463 (7th Cir. 1994), we concluded in Delatorre that, as
nonparties, the defendants were not at risk in the forfeiture
proceedings and, without the risk of a determination of guilt,
jeopardy did not attach. Delatorre, 279 Ill. App. 3d at 1017,
1019. We also found that this rule applied equally to claims of
multiple punishment for the same offense as well as to multiple
prosecutions. We held that a defendant's filing of a claim in a
civil forfeiture proceeding is a prerequisite to reaching the
determination, in a subsequent criminal case, of whether that
particular civil sanction constitutes a criminal punishment of the
defendant. Delatorre, 279 Ill. App. 3d at 1019. We reaffirm that
holding and find it applicable to the case now before us. The
courts in Ursery and Delatorre chose not to distinguish between
forfeitures of cash or titled property such as a vehicle. We find
this distinction immaterial in the present case. The forfeiture
proceeding is directed at the property itself, not at the owners or
interest holders--whether they are known or unknown. If an owner
is aggrieved by the seizure of his property, the remedy is to
appear timely in the forfeiture proceeding to make a proper claim.
See Krizek, 271 Ill. App. 3d at 539.
We affirm the order of the circuit court of Du Page County
denying defendant's motion to dismiss the prosecution, and we
remand the cause for further proceedings.
Affirmed and remanded.
DOYLE and HUTCHINSON, JJ., concur.