
                              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. 56½, 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. 



