HB1120ham001 99TH GENERAL ASSEMBLY

Rep. Michael J. Zalewski

Filed: 4/10/2015

09900HB1120ham001 LRB099 04981 RLC 33734 a

AMENDMENT TO HOUSE BILL 1120

AMENDMENT NO. ______. Amend House Bill 1120 by replacing everything after the enacting clause with the following:

"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(Section scheduled to be repealed on June 11, 2017)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) Protective orders.

(1) Upon application of the State, 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 subsection (c) for forfeiture under this Article:

(A) upon the filing of an indictment, information, or complaint charging a violation of this Article for which forfeiture may be ordered under this Article and alleging that the property with respect to which the order is sought would be subject to forfeiture under this Article; or

(B) prior to the filing of an indictment, information, or complaint described in subparagraph (A) of this paragraph (1), if, after notice to persons appearing to have an interest in the property and opportunity for a hearing, the court determines that:

(i) there is probable cause to believe the State 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

(ii) 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, however, that an order entered under this subparagraph (B) shall be effective for not more than 90 days, unless extended by the court for good cause shown or unless an indictment, information, complaint, or administrative notice has been filed.

(2) A temporary restraining order under this subsection (b) may be entered upon application of the State without notice or opportunity for a hearing when an indictment, information, complaint, or administrative notice has not yet been filed with respect to the property, if the State demonstrates that there is probable cause to believe that the property with respect to which the order is sought would, in the event of a conviction, be subject to forfeiture under this Section and that provision of notice will jeopardize the integrity of the investigation, the safety of any persons, or the availability of the property for forfeiture. The temporary order shall expire not more than 30 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 paragraph shall be held at the earliest possible time and prior to the expiration of the temporary order.

(3) The court may receive and consider, at a hearing held under this subsection (b), evidence and information that would be inadmissible under the Illinois Rules of Evidence.

(4) Order to repatriate and deposit.

(A) Under its authority to enter a pretrial restraining order under this Section, the court may order a defendant to repatriate any property that may be seized and forfeited and to deposit that property pending trial with the State's Attorney or another designated law enforcement agency.

(B) Failure to comply with an order under this subsection (b) is punishable as a civil or criminal contempt of court.

(c) Forfeiture.

(1) The following are subject to forfeiture:

(A) any property, real or personal, constituting, derived from, or traceable to any proceeds the person obtained directly or indirectly, as a result of a violation of this Article;

(B) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this Article;

(C) all conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in subparagraphs (A) and (B), but:

(i) no conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this Section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this Article;

(ii) no conveyance is subject to forfeiture under this Section by reason of any act or omission which the owner proves to have been committed or omitted without his or her knowledge or consent;

(iii) a forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he or she neither had knowledge of nor consented to the act or omission;

(D) all real property, including any right, title, and interest (including, but not limited to, any leasehold interest or the beneficial interest in a land trust) in the whole of any lot or tract of land and any appurtenances or improvements, which is used or intended to be used, in any manner or part, to commit, or in any manner to facilitate the commission of, any violation of this Article or that is the proceeds of any violation or act that constitutes a violation of this Article.

(2) Property subject to forfeiture under this Article may be seized by the sheriff, or his or her agent, upon process or seizure warrant issued by any court having jurisdiction over the property. Seizure by the sheriff or his or her agent without process may be made:

(A) if the seizure is incident to a seizure warrant;

(B) if the property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal proceeding, or in an injunction or forfeiture proceeding based upon this Article;

(C) if there is probable cause to believe that the property is directly or indirectly dangerous to health or safety;

(D) if there is probable cause to believe that the property is subject to forfeiture under this Article and the property is seized under circumstances in which a warrantless seizure or arrest would be reasonable; or

(E) in accordance with the Code of Criminal Procedure of 1963.

(3) After seizure under paragraph (2), forfeiture proceedings shall be instituted in accordance with subsections (i) through (r) of Section 29B-1 of this Code.

(4) Property taken or detained under this Section shall not be subject to replevin, but is deemed to be in the custody of the sheriff subject only to the order and judgments of the circuit court having jurisdiction over the forfeiture proceedings and the decisions of the State's Attorney under this Article. When property is seized under this Article, the seizing agency shall promptly conduct an inventory of the seized property and estimate the property's value and shall forward a copy of the inventory of seized property and the estimate of the property's value to the sheriff. Upon receiving notice of seizure, the sheriff may:

(A) place the property under seal;

(B) remove the property to a place designated by the sheriff;

(C) keep the property in the possession of the seizing agency;

(D) remove the property to a storage area for safekeeping or, if the property is a negotiable instrument or money and is not needed for evidentiary purposes, deposit it in an interest bearing account;

(E) place the property under constructive seizure by posting notice of pending forfeiture on it, by giving notice of pending forfeiture to its owners and interest holders, or by filing notice of pending forfeiture in any appropriate public record relating to the property; or

(F) provide for another agency or custodian, including an owner, secured party, or lienholder, to take custody of the property upon the terms and conditions set by the sheriff.

(5) When property is forfeited under this Article, the State's Attorney shall sell all the property unless the property is required by law to be destroyed or is harmful to the public, and shall distribute the proceeds of the sale, together with any moneys forfeited or seized, in accordance with paragraph (6). However, upon the application of the seizing agency or prosecutor who was responsible for the investigation, arrest, or arrests and prosecution which lead to the forfeiture, the State's Attorney may return any item of forfeited property to the seizing agency or prosecutor for official use in the enforcement of laws, if the agency or prosecutor can demonstrate that the item requested would be useful to the agency or prosecutor in its enforcement efforts. When any real property returned to the seizing agency is sold by the agency or its unit of government, the proceeds of the sale shall be delivered to the State's Attorney and distributed in accordance with paragraph (6).

(6) All moneys and the sale proceeds of all other property forfeited and seized under this Article shall be distributed as follows:

(A) 75% shall be distributed to the metropolitan enforcement group, local, municipal, county, or State law enforcement agency or agencies which conducted or participated in the investigation resulting in the forfeiture. The distribution shall bear a reasonable relationship to the degree of direct participation of the law enforcement agency in the effort resulting in the forfeiture, taking into account the total value of the property forfeited and the total law enforcement effort with respect to the violation of the law upon which the forfeiture is based. Amounts distributed to the agency or agencies shall be used for the enforcement of laws.

(B)(i) 12.5% shall be retained by the Office of the State's Attorney of the county in which the prosecution resulting in the forfeiture was instituted, deposited in a special fund in the county treasury and appropriated to the State's Attorney for use in the enforcement of laws. In counties over 3,000,000 population, 25% shall be retained by the Office of the State's Attorney for use in the enforcement of laws. If the prosecution is undertaken solely by the Attorney General, 25% shall be distributed to the Attorney General for use in the enforcement of laws.

(ii) 12.5% shall be distributed to the Office of the State's Attorneys Appellate Prosecutor and deposited in the Narcotics Profit Forfeiture Fund of that office to be used for additional expenses incurred in the investigation, prosecution and appeal of cases arising under laws. However, the Office of the State's Attorneys Appellate Prosecutor shall not receive distribution from cases brought in counties with over 3,000,000 population or cases brought solely by the Attorney General.

(d) (b) Any violation of this Article is subject to the remedies, procedures, and forfeiture as set forth in subsections (g) and (i) (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, 2020 5 years after it becomes law.

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