HB5767 98TH GENERAL ASSEMBLY

LRB098 18676 RLC 53819 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB5767

Introduced , by Rep. Dennis M. Reboletti - Sandra M. Pihos

SYNOPSIS AS INTRODUCED:

720 ILCS 5/33G-6
720 ILCS 5/33G-9

Amends the Criminal Code of 2012. Deletes provision that any violation of the Illinois Street Gang and Racketeer Influenced and Corrupt Organizations Law is subject to the remedies, procedures, and forfeiture as set forth in the statute concerning money laundering. Provides that the United States, another state, or this State, or any political subdivision, department, agency, or instrumentality of the United States, another state, or this State, or any person subject to a substantially equal involvement defense or the person's estate, injured in his or her person, business, or property by a violation, directly or indirectly, of the Illinois Street Gang and Racketeer Influenced and Corrupt Organizations Law may sue in any appropriate court and shall recover threefold any damages sustained and the costs of the suit, including a reasonable attorney's fee at the trial and appellate level, and any equitable remedy justice requires, including injunctions, declaratory judgments, divestiture, accounting, or disgorgement. Provides that the court shall order civil or criminal forfeiture of property derived or maintained from a violation of this Law. Provides that the Illinois Street Gang and Racketeer Influenced and Corrupt Organizations Law is repealed on June 11, 2022 (rather than June 11, 2017).

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Criminal Code of 2012 is amended by changing Sections 33G-6 and 33G-9 as follows:

(720 ILCS 5/33G-6)

(Section scheduled to be repealed on June 11, 2017)

Sec. 33G-6. Remedial proceedings, procedures, and forfeiture. Under this Article:

(a) The circuit court shall have jurisdiction to prevent and restrain violations of this Article by issuing appropriate orders, including:

(1) ordering any person to disgorge illicit proceeds obtained by a violation of this Article or divest himself or herself of any interest, direct or indirect, in any enterprise or real or personal property of any character, including money, obtained, directly or indirectly, by a violation of this Article;

(2) imposing reasonable restrictions on the future activities or investments of any person or enterprise, including prohibiting any person or enterprise from engaging in the same type of endeavor as the person or enterprise engaged in, that violated this Article; or

(3) ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons.

(b) The United States, another state, or this State, or any political subdivision, department, agency, or instrumentality of the United States, another state, or this State, or any person subject to a substantially equal involvement defense or the person's estate, injured in his or her person, business, or property by a violation, directly or indirectly, of this Article, may sue in any appropriate court and shall recover threefold any damages sustained and the costs of the suit, including a reasonable attorney's fee at the trial and appellate level, and any equitable remedy justice requires, including injunctions, declaratory judgments, divestiture, accounting, or disgorgement. Pending final determination of the case, the court may at any time enter any restraining orders or prohibitions, or take any other actions, including the acceptance of satisfactory performance bonds, as it shall deem proper. Satisfactory performance bonds shall not be required of the United States, another state, or this State, or any political subdivision, department, agency, or instrumentality of the United States, another state, or this State. The existence of a criminal conviction or investigation for the alleged violation of this Article is not a prerequisite to any proceeding under this subsection; but a final judgment entered in favor of the State in any criminal proceeding brought under this Article shall estop the defendant in the criminal case from denying the material allegations of the criminal violation in any subsequent civil or administrative proceeding brought under this Article.

(c) Notwithstanding any other provision of law, the court shall, for any violation of this Article, order criminal or civil forfeiture, in personam or in rem, jointly and severally, of any interest or property the person has acquired or maintained in violation of this Article, or any interest in, security of, or claim against, or property or contractual right of any kind affording a source of influence of any degree over, any enterprise that the person has established, operated, controlled, conducted, or participated in, in violation of this Article, and any property constituting, or derived from, any proceeds, including money, that the person obtained, directly or indirectly, from predicate activity or unlawful debt collection in violation of this Article. Any court, in imposing sentence on the person, shall order, in addition to any other sentence imposed under this Article, that the person forfeit to the State all property described in this subsection (c). The property and interests subject to criminal or civil forfeiture under this Article include any real property, including things growing on, affixed to, and found in land, and any tangible and intangible personal property, including rights, privileges, interests, claims, and securities. All right, title, and interest in property described in this Article vests in the State upon the inception of the illicit agreement or commission of any act otherwise giving rise to forfeiture under this Article. The court shall further order the criminal or civil forfeiture of any other property of the defendant up to the value of the property described in this subsection (c) if, as a result of any act or omission of the defendant, the property subject to forfeiture:

(1) cannot be located upon the exercise of due diligence;

(2) has been transferred or sold to, or deposited with, a third party;

(3) has been placed beyond the jurisdiction of the court;

(4) has been substantially diminished in value; or

(5) has been commingled with other property that cannot be divided without difficulty.

(d) Any property subject to criminal or civil forfeiture under this Article that is subsequently transferred to a person other than a defendant may be the subject of a special verdict of forfeiture and thereafter shall be ordered forfeited to the State, unless the transferee petitions the court and establishes in a hearing before the court, without a jury, that he or she is a bona fide purchaser for value of the property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture under this Article. The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the petitioner's right, title, or interest in the property, the time and circumstances of the petitioner's acquisition of the right, title, or interest in the property, any additional facts supporting the petitioner's claim, and the relief sought. The hearing on the petition shall, to the extent practicable and consistent with the interests of justice, be held as soon as possible after completion of the criminal proceedings, if any, under this Article. The court may consolidate the hearing on the petition with a hearing on any other petition filed by a person other than the defendant under this Article. Following the court's disposition of all petitions filed under this Article, or if no petitions are filed then within 90 days of the completion of criminal or civil proceedings under this Article, the State shall have clear title to property that is the subject of the order of forfeiture and may warrant good title to any subsequent purchaser or transferee. In addition to testimony and evidence presented at the hearing, the court shall consider the relevant portions of the record of any criminal case that resulted in, or relates to, the order of forfeiture. After the hearing, the court shall amend the order of forfeiture if the court determines that the petitioner has established by a preponderance of the evidence that:

(1) the petitioner has a legal right, title, or interest in the property, and the right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts that gave rise to the forfeiture of the property under this Article; or

(2) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this Article.

(e) Upon application of a prosecutor, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property described in this Section for forfeiture under this Article:

(1) upon the filing of an indictment or information charging a violation of this Article and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this Article; or

(2) prior to the filing of an indictment or information, if, after notice to persons appearing to have an interest in the property and opportunity for a hearing, the court determines that:

(A) there is a substantial probability that the State's Attorney will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and

(B) the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered; provided that any order entered shall be effective for not more than 90 days, unless extended by the court for good cause shown or unless an indictment or information described in this Section has been filed.

A temporary restraining order under this Article may be entered upon application of the State's Attorney without notice or opportunity for a hearing when an information or indictment has not yet been filed with respect to the property, if the State's Attorney demonstrates that there is probable cause to believe that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this Article and that provision of notice will jeopardize the integrity of an investigation, the safety of any persons, or the availability of the property for forfeiture. A temporary order shall expire not more than 10 days after the date on which it is entered, unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period. A hearing requested concerning an order entered under this Article shall be held at the earliest possible time and prior to the expiration of the temporary order. The court may receive and consider, at a hearing held under this Article, evidence and information that would be otherwise inadmissible under the rules of evidence, and a hearing shall be held by the court without a jury.

(f) Upon conviction of a person under this Article or upon the completion of appropriate civil proceedings under this Article, the court shall enter a judgment of forfeiture of the property to the State and shall authorize the State's Attorney or his or her agent to seize all property ordered forfeited upon the terms and conditions as the court shall deem proper. Following the entry of an order declaring the property forfeited, the court may, upon application of the State's Attorney, enter the appropriate restraining orders or injunctions, require the execution of satisfactory performance bonds, appoint receivers, conservators, appraisers, accountants, or trustees, or take any other action to protect the interest of the State in the property ordered forfeited. Any income accruing to, or derived from, an enterprise or an interest in an enterprise that has been ordered forfeited under this Article may be used to offset ordinary and necessary expenses to the enterprise which are required by law, or which are necessary to protect the interests of the State or third parties.

(g) Following the seizure of property ordered forfeited under this Article, the State's Attorney or his or her agent shall direct the disposition of the property by sale or any other commercially feasible means, making due provision for the rights of any innocent persons. Any property right or interest not exercisable by, or transferable for value to, the State shall expire and shall not revert to the defendant, nor shall the defendant or any person acting in concert with or on behalf of the defendant be eligible to purchase forfeited property at any sale held by the State's Attorney or his or her agent. Upon application of a person, other than the defendant or a person acting in concert with or on behalf of the defendant, the court may restrain or stay the sale or disposition of the property pending the conclusion of any appeal of the criminal case giving rise to the forfeiture, if the applicant demonstrates that proceeding with the sale or disposition of the property will result in irreparable injury, harm, or loss to him or her. At the direction of the court, the proceeds of any sale or other disposition of property forfeited under this Article and any moneys forfeited shall be used to pay all proper expenses consisting of the costs of the investigation, the prosecution, and any related remedial proceedings under this Article, and for the forfeiture and sale, including any expenses of seizure, maintenance, or custody of the property pending its disposition, advertising and court costs. The State's Attorney shall deposit in the treasury of the State 75% of any amounts of the proceeds or moneys remaining after the payment of the proper expenses, which money or proceeds shall thereafter be disposed of as prescribed by law, and the State's Attorney shall retain directly the final 25% of the proceeds or moneys for the general purposes of fulfilling the duties of his or her office, or for equitable sharing, as directed by the State's Attorney, among those law enforcement agencies participating in the investigation, the prosecution, and any related remedial proceedings under this Article.

(h) With respect to property ordered forfeited under this Article, the court is authorized to:

(1) grant petitions for mitigation or remission of forfeiture, restore forfeited property to victims of a violation of this Article, or take any other action to protect the rights of innocent persons that is in the interest of justice and that is not inconsistent with the provisions of this Article;

(2) compromise claims arising under this Article;

(3) award compensation to persons providing information resulting in a forfeiture under this Article;

(4) direct the disposition by public sale by the State's Attorney or his or her agent of all property ordered forfeited under this Article or direct any other commercially feasible means, making due provision for the rights of innocent persons; and

(5) take appropriate measures necessary to safeguard and maintain property ordered forfeited under this Article pending its disposition.

(i) Except as provided in this Section, no party claiming an interest in property subject to forfeiture under this Article may:

(1) intervene in any trial or appeal of a criminal case involving the forfeiture of the property under this Article; or

(2) commence an action at law or equity against the this State, or against any State's Attorney or law enforcement agency, concerning the actions taken under this Article or concerning the validity of an alleged interest in the property subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture under this Article.

(j) In order to facilitate the identification or location of property declared forfeited and to facilitate the disposition of petitions for remission or mitigation of forfeiture, and the entry of an order declaring property forfeited to the State, the court may, upon application of the State's Attorney, order that the testimony of any witness relating to the property forfeited be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged be produced at the same time and place, in the same manner as provided for the taking of depositions in civil proceedings under the laws of this State. Any violation of this Article is subject to the remedies, procedures, and forfeiture as set forth in subsections (f) through (s) of Section 29B-1 of this Code.

(Source: P.A. 97-686, eff. 6-11-12.)

(720 ILCS 5/33G-9)

(Section scheduled to be repealed on June 11, 2017)

Sec. 33G-9. Repeal. This Article is repealed on June 11, 2022 5 years after it becomes law.

(Source: P.A. 97-686, eff. 6-11-12.)