HB1620 95TH GENERAL ASSEMBLY

LRB095 06776 RLC 31905 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB1620

Introduced 2/22/2007, by Rep. Linda Chapa LaVia

SYNOPSIS AS INTRODUCED:

725 ILCS 5/Art. 108C heading new
725 ILCS 5/108C-5 new
725 ILCS 5/108C-10 new
725 ILCS 5/108C-15 new
725 ILCS 5/108C-20 new

Amends the Code of Criminal Procedure of 1963. Provides that the State's Attorney may request the issuance of a property preservation warrant authorizing the seizure of property in the same manner as provided for in a search warrant or in a seizure warrant. Provides that the court shall issue the order if the court determines that there is probable cause to believe that the property to be seized is: (i) the proceeds of specified criminal activity, or (ii) assets or other property traceable therefrom, or (iii) profits realized therefrom. Provides that upon conviction, the court may order that the property seized be used to pay restitution to the victim; pay fines, fees and costs; or reimburse the prosecuting agency for costs incurred as a result of investigation and trial. Effective immediately.

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 Code of Criminal Procedure of 1963 is amended by adding Article 108C as follows:

(725 ILCS 5/Art. 108C heading new)

ARTICLE 108C. PROPERTY PRESERVATION WARRANTS

(725 ILCS 5/108C-5 new)

Sec. 108C-5. Application for a property preservation warrant.

(a) (1) In order to preserve property unlawfully taken from a victim, and to prevent, to the fullest extent possible, the dissipation, secretion or the laundering of: (i) the proceeds of the criminal activity, or (ii) assets or other property traceable therefrom, or (iii) profits realized therefrom, the State's Attorney may request the issuance of an order authorizing the seizure of such property in the same manner as provided for in a search warrant or in a seizure warrant.

(2) If the court determines that there is probable cause to believe that the property to be seized is: (i) the proceeds of specified criminal activity, or (ii) assets or other property traceable therefrom, or (iii) profits realized therefrom, the court shall issue a property preservation warrant authorizing the seizure of such property.

(3) Property subject to seizure under this Section may be seized by any peace officer upon receipt of the property preservation warrant issued by the court.

(4) A copy of the property preservation warrant shall be provided by personal service or by registered mail to every person who may be reasonably believed to have an interest in the property subject to seizure.

(5) If the property to be seized is real property, the State shall cause to be recorded, at or as near as is practical to the time of the issuance of the property preservation warrant, a lis pendens in each county in which the real property is situated which specifically identifies the property by legal description, the name of the owner of record as shown on the latest equalized assessment roll, and the assessor's parcel number.

(6) If the property to be seized are assets presently in the possession of, or under the control of, or have at any time been in the possession of, or under the control of a banking or financial institution, the property preservation warrant may direct the banking or financial institution to immediately:

(i) deliver said assets to the State's Attorney;

(ii) disclose the location, nature and value of any of the assets of the accused that are held by the banking or financial institution that are not identified in the property preservation warrant, and freeze the assets for 3 business days; and

(iii) where previously in control or possession of the property, disclose the present location, nature and value of any of the above described property to the State's Attorney.

(b) The property shall remain in the custody of the State's Attorney until further order of a court.

(725 ILCS 5/108C-10 new)

Sec. 108C-10. Claimant proceedings.

(a) Petition. Any person claiming an interest in the preserved property may, at any time within 30 days from the date of the seizure, or within 30 days after receipt of actual notice, file with the court, and provide to the State's Attorney who caused the seizure, a written, verified petition stating the nature and amount of his or her interest in the property or assets and request for specified relief from the property preservation warrant.

(b) Time for hearing. The defendant, or a person who has filed a verified claim to the property shall have the right to have the court conduct a hearing in order to determine whether he or she is entitled to relief from the property preservation warrant. Within 30 days of the service of the request for hearing upon the State's Attorney, or upon a showing of good cause, the hearing shall be held within 10 days of the service of the request for hearing upon the State's Attorney.

(c) Evidence. In determining whether or not a claimant is entitled to relief from the property preservation warrant, the court has the discretion to consider any matter that it deems relevant, reliable and appropriate, including hearsay statements, in order to reach a just and equitable decision.

(d) Relevant factors. The court shall give significant weight to the following factors:

(1) the public interest in preserving the property or assets pendente lite;

(2) the difficulty of preserving the property or assets pendente lite where the underlying alleged crimes involve issues of fraud and moral turpitude;

(3) the fact that the requested relief is being sought by the State's Attorney on behalf of financial crime victims; and

(4) the significant public interest involved in compensating the victims of financial crime and paying court imposed restitution, fines, fees, and costs.

(e) Orders. The court shall weigh the relative likelihood of success on the merits and the consequences to each of the parties. If court finds that the State is more likely than not to prevail on the merits and the risk of the dissipation of assets outweighs the potential harm to the defendants and the interested parties, the court shall deny relief to the petitioner.

(725 ILCS 5/108C-15 new)

Sec. 108C-15. Alternative remedies.

(a) The court, in crafting its order, shall seek to protect the interests of any innocent third persons, including an innocent spouse, who were not involved in the commission of any criminal activity.

(b) In addition to, or in lieu of granting or denying relief under a petition filed under this Section, the court may also order any other form of relief that it determines, in its discretion, may further the interests of justice, including, but not limited to:

(1) the issuance of an injunction to restrain any person from transferring, encumbering, hypothecating, or otherwise disposing of property;

(2) the appointment of a receiver to take possession of, care for, manage, and operate the assets and properties so that the property may be maintained and preserved. The court may order that a receiver appointed pursuant to this Section shall be compensated for all reasonable expenditures made or incurred by him or her in connection with the possession, care, management, and operation of any property or assets that are subject to the provisions of this Section; or

(3) the posting of a bond or other undertaking, in lieu of other orders, of a value sufficient to ensure the satisfaction of restitution and fines imposed pursuant to this Section.

(725 ILCS 5/108C-20 new)

Sec. 108C-20. Final disposition of property. Upon conviction, the court may order that the property seized pursuant this Section be used to pay restitution to the victim; pay fines, fees and costs; or reimburse the prosecuting agency for costs incurred as a result of investigation and trial.

Section 99. Effective date. This Act takes effect upon becoming law.