(720 ILCS 5/29D‑65)
Sec. 29D‑65.
Asset freeze, seizure, and forfeiture.
(a) Asset freeze, seizure, and forfeiture in connection with
a
violation of this Article.
(1) Whenever it appears that there is probable cause |
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to believe that any person used, is using, is about to use, or is intending to use property in any way that constitutes or would constitute a violation of this Article, the Attorney General or any State's Attorney may make an ex parte application to the circuit court to freeze or seize all the assets of that person and, upon a showing of probable cause in the ex parte hearing, the circuit court shall issue an order to freeze or seize all assets of that person. A copy of the freeze or seize order shall be served upon the person whose assets have been frozen or seized and that person or any person claiming an interest in the property may, at any time within 30 days of service, file a motion to release his or her assets. Within 10 days that person is entitled to a hearing. In any proceeding to release assets, the burden of proof shall be by a preponderance of evidence and shall be on the State to show that the person used, was using, is about to use, or is intending to use any property in any way that constitutes or would constitute a violation of this Article. If the court finds that any property was being used, is about to be used, or is intended to be used in violation of or in any way that would constitute a violation of this Article, the court shall order such property frozen or held until further order of the court. Any property so ordered held or frozen shall be subject to forfeiture under the following procedure. Upon the request of the defendant, the court may release frozen or seized assets sufficient to pay attorney's fees for representation of the defendant at a hearing conducted under this Section.
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(2) If, within 60 days after any seizure or asset
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freeze under subparagraph (1) of this Section, a person having any property interest in the seized or frozen property is charged with an offense, the court which renders judgment upon the charge shall, within 30 days after the judgment, conduct a forfeiture hearing to determine whether the property was used, about to be used, or intended to be used in violation of this Article or in connection with any violation of this Article, or was integrally related to any violation or intended violation of this Article. The hearing shall be commenced by a written petition by the State, including material allegations of fact, the name and address of every person determined by the State to have any property interest in the seized or frozen property, a representation that written notice of the date, time, and place of the hearing has been mailed to every such person by certified mail at least 10 days before the date, and a request for forfeiture. Every such person may appear as a party and present evidence at the hearing. The quantum of proof required shall be preponderance of the evidence, and the burden of proof shall be on the State. If the court determines that the seized or frozen property was used, about to be used, or intended to be used in violation of this Article or in connection with any violation of this Article, or was integrally related to any violation or intended violation of this Article, an order of forfeiture and disposition of the seized or frozen money and property shall be entered. All property forfeited may be liquidated and the resultant money together with any money forfeited shall be allocated among the participating law enforcement agencies in such proportions as may be determined to be equitable by the court entering the forfeiture order, any such property so forfeited shall be received by the State's Attorney or Attorney General and upon liquidation shall be allocated among the participating law enforcement agencies in such proportions as may be determined equitable by the court entering the forfeiture order.
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(3) If a seizure or asset freeze under subparagraph
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(1) of this subsection (a) is not followed by a charge under this Article within 60 days, or if the prosecution of the charge is permanently terminated or indefinitely discontinued without any judgment of conviction or a judgment of acquittal is entered, the State's Attorney or Attorney General shall immediately commence an in rem proceeding for the forfeiture of any seized money or other things of value, or both, in the circuit court and any person having any property interest in the money or property may commence separate civil proceedings in the manner provided by law. Any property so forfeited shall be allocated among the participating law enforcement agencies in such proportions as may be determined to be equitable by the court entering the forfeiture order.
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(b) Forfeiture of property acquired in connection with a violation of this
Article.
(1) Any person who commits any offense under this
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Article shall forfeit, according to the provisions of this Section, any moneys, profits, or proceeds, and any interest or property in which the sentencing court determines he or she has acquired or maintained, directly or indirectly, in whole or in part, as a result of, or used, was about to be used, or was intended to be used in connection with the offense. The person shall also forfeit any interest in, security, claim against, or contractual right of any kind which affords the person a source of influence over any enterprise which he or she has established, operated, controlled, conducted, or participated in conducting, where his or her relationship to or connection with any such thing or activity directly or indirectly, in whole or in part, is traceable to any item or benefit which he or she has obtained or acquired through an offense under this Article or which he or she used, about to use, or intended to use in connection with any offense under this Article. Forfeiture under this Section may be pursued in addition to or in lieu of proceeding under subsection (a) of this Section.
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(2) Proceedings instituted under this subsection
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shall be subject to and conducted in accordance with the following procedures:
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(A) The sentencing court shall, upon petition by
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the prosecuting agency, whether it is the Attorney General or the State's Attorney, at any time following sentencing, conduct a hearing to determine whether any property or property interest is subject to forfeiture under this subsection. At the forfeiture hearing the People of the State of Illinois shall have the burden of establishing, by a preponderance of the evidence, that the property or property interests are subject to forfeiture.
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(B) In any action brought by the People of the
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State of Illinois under this Section, the court shall have jurisdiction to enter such restraining orders, injunctions, or prohibitions, or to take such other action in connection with any real, personal, or mixed property, or other interest, subject to forfeiture, as it shall consider proper.
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(C) In any action brought by the People of the
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State of Illinois under this subsection in which any restraining order, injunction, or prohibition or any other action in connection with any property or interest subject to forfeiture under this subsection is sought, the circuit court presiding over the trial of the person or persons charged with a violation under this Article shall first determine whether there is probable cause to believe that the person or persons so charged have committed an offense under this Article and whether the property or interest is subject to forfeiture under this subsection. In order to make this determination, prior to entering any such order, the court shall conduct a hearing without a jury in which the People shall establish: (i) probable cause that the person or persons so charged have committed an offense under this Article; and (ii) probable cause that any property or interest may be subject to forfeiture under this subsection. The hearing may be conducted simultaneously with a preliminary hearing if the prosecution is commenced by information, or by motion of the People at any stage in the proceedings. The court may enter a finding of probable cause at a preliminary hearing following the filing of information charging a violation of this Article or the return of an indictment by a grand jury charging an offense under this Article as sufficient probable cause for purposes of this subsection. Upon such a finding, the circuit court shall enter such restraining order, injunction, or prohibition or shall take such other action in connection with any such property or other interest subject to forfeiture under this subsection as is necessary to ensure that the property is not removed from the jurisdiction of the court, concealed, destroyed, or otherwise disposed of by the owner or holder of that property or interest prior to a forfeiture hearing under this subsection. The Attorney General or State's Attorney shall file a certified copy of the restraining order, injunction, or other prohibition with the recorder of deeds or registrar of titles of each county where any such property of the defendant may be located. No such injunction, restraining order, or other prohibition shall affect the rights of any bona fide purchaser, mortgagee, judgment creditor, or other lien holder arising prior to the date of such filing. The court may, at any time, upon verified petition by the defendant, conduct a hearing to release all or portions of any such property or interest which the court previously determined to be subject to forfeiture or subject to any restraining order, injunction, prohibition, or other action. The court may release the property to the defendant for good cause shown and within the sound discretion of the court.
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(D) Upon a conviction of a person under this
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Article, the court shall authorize the Attorney General or State's Attorney to seize and sell all property or other interest declared forfeited under this Article, unless the property is required by law to be destroyed or is harmful to the public. The court may order the Attorney General or State's Attorney to segregate funds from the proceeds of the sale sufficient: (1) to satisfy any order of restitution, as the court may deem appropriate; (2) to satisfy any legal right, title, or interest which the court deems superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to forfeiture under this subsection; or (3) to satisfy any bona‑fide purchaser for value of the right, title, or interest in the property who was without reasonable notice that the property was subject to forfeiture. Following the entry of an order of forfeiture, the Attorney General or State's Attorney shall publish notice of the order and his or her intent to dispose of the property. Within 30 days following the publication, any person may petition the court to adjudicate the validity of his or her alleged interest in the property. After the deduction of all requisite expenses of administration and sale, the Attorney General or State's Attorney shall distribute the proceeds of the sale, along with any moneys forfeited or seized, among participating law enforcement agencies in such equitable portions as the court shall determine.
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(E) No judge shall release any property or money
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seized under subdivision (A) or (B) for the payment of attorney's fees of any person claiming an interest in such money or property.
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(c) Exemptions from forfeiture. A property interest is exempt from
forfeiture under this Section if its owner or interest holder establishes by a
preponderance of evidence that the owner or interest holder:
(A)(i) in the case of personal property, is not
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legally accountable for the conduct giving rise to the forfeiture, did not acquiesce in it, and did not know and could not reasonably have known of the conduct or that the conduct was likely to occur, or
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(ii) in the case of real property, is not legally
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accountable for the conduct giving rise to the forfeiture, or did not solicit, conspire, or attempt to commit the conduct giving rise to the forfeiture; and
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(B) had not acquired and did not stand to acquire
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substantial proceeds from the conduct giving rise to its forfeiture other than as an interest holder in an arms length commercial transaction; and
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(C) with respect to conveyances, did not hold the
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property jointly or in common with a person whose conduct gave rise to the forfeiture; and
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(D) does not hold the property for the benefit of or
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as nominee for any person whose conduct gave rise to its forfeiture, and, if the owner or interest holder acquired the interest through any such person, the owner or interest holder acquired it as a bona fide purchaser for value without knowingly taking part in the conduct giving rise to the forfeiture; and
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(E) that the owner or interest holder acquired the
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(i) before the commencement of the conduct
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giving rise to its forfeiture and the person whose conduct gave rise to its forfeiture did not have the authority to convey the interest to a bona fide purchaser for value at the time of the conduct; or
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(ii) after the commencement of the conduct
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giving rise to its forfeiture, and the owner or interest holder acquired the interest as a mortgagee, secured creditor, lien holder, or bona fide purchaser for value without knowledge of the conduct which gave rise to the forfeiture; and
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(a) in the case of personal property,
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without knowledge of the seizure of the property for forfeiture; or
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(b) in the case of real estate, before the
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filing in the office of the Recorder of Deeds of the county in which the real estate is located of a notice of seizure for forfeiture or a lis pendens notice.
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(Source: P.A. 92‑854, eff. 12‑5‑02.)
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