Illinois General Assembly - Full Text of HB5715
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Full Text of HB5715  99th General Assembly




State of Illinois
2015 and 2016


Introduced , by Rep. Michael J. Zalewski


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

    Amends the Criminal Code of 2012 concerning the Illinois Street Gang and Racketeer Influenced and Corrupt Organizations Law. Extends the date of repeal of the Law from June 11, 2017 to June 11, 2022. Establishes specific forfeiture and protective order provisions for violations of the Law (rather than the provisions in the money laundering statute). Provides for distribution of moneys and the sale proceeds of all other property forfeited and seized under the Law to various units of government. Effective immediately.

LRB099 17060 SLF 41418 b






HB5715LRB099 17060 SLF 41418 b

1    AN ACT concerning criminal law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Criminal Code of 2012 is amended by changing
5Sections 33G-6 and 33G-9 as follows:
6    (720 ILCS 5/33G-6)
7    (Section scheduled to be repealed on June 11, 2017)
8    Sec. 33G-6. Remedial proceedings, procedures, and
9forfeiture. Under this Article:
10    (a) The circuit court shall have jurisdiction to prevent
11and restrain violations of this Article by issuing appropriate
12orders, including:
13        (1) ordering any person to disgorge illicit proceeds
14    obtained by a violation of this Article or divest himself
15    or herself of any interest, direct or indirect, in any
16    enterprise or real or personal property of any character,
17    including money, obtained, directly or indirectly, by a
18    violation of this Article;
19        (2) imposing reasonable restrictions on the future
20    activities or investments of any person or enterprise,
21    including prohibiting any person or enterprise from
22    engaging in the same type of endeavor as the person or
23    enterprise engaged in, that violated this Article; or



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1        (3) ordering dissolution or reorganization of any
2    enterprise, making due provision for the rights of innocent
3    persons.
4    (b) Protective orders.
5        (1) Upon application of the State, the court may enter
6    a restraining order or injunction, require the execution of
7    a satisfactory performance bond, or take any other action
8    to preserve the availability of property described in
9    subsection (c) for forfeiture under this Article:
10            (A) upon the filing of an indictment, information,
11        or complaint charging a violation of this Article for
12        which forfeiture may be ordered under this Article and
13        alleging that the property with respect to which the
14        order is sought would be subject to forfeiture under
15        this Article; or
16            (B) prior to the filing of an indictment,
17        information, or complaint described in subparagraph
18        (A) of this paragraph (1), if, after notice to persons
19        appearing to have an interest in the property and
20        opportunity for a hearing, the court determines that:
21                (i) there is probable cause to believe the
22            State will prevail on the issue of forfeiture and
23            that failure to enter the order will result in the
24            property being destroyed, removed from the
25            jurisdiction of the court, or otherwise made
26            unavailable for forfeiture; and



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1                (ii) the need to preserve the availability of
2            the property through the entry of the requested
3            order outweighs the hardship on any party against
4            whom the order is to be entered. Provided, however,
5            that an order entered under this subparagraph (B)
6            shall be effective for not more than 90 days,
7            unless extended by the court for good cause shown
8            or unless an indictment, information, complaint,
9            or administrative notice has been filed.
10        (2) A temporary restraining order under this
11    subsection (b) may be entered upon application of the State
12    without notice or opportunity for a hearing when an
13    indictment, information, complaint, or administrative
14    notice has not yet been filed with respect to the property,
15    if the State demonstrates that there is probable cause to
16    believe that the property with respect to which the order
17    is sought would, in the event of a conviction, be subject
18    to forfeiture under this Section and that provision of
19    notice will jeopardize the integrity of the investigation,
20    the safety of any persons, or the availability of the
21    property for forfeiture. The temporary order shall expire
22    not more than 30 days after the date on which it is
23    entered, unless extended for good cause shown or unless the
24    party against whom it is entered consents to an extension
25    for a longer period. A hearing requested concerning an
26    order entered under this paragraph shall be held at the



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1    earliest possible time and prior to the expiration of the
2    temporary order.
3        (3) The court may receive and consider, at a hearing
4    held under this subsection (b), evidence and information
5    that would be inadmissible under the Illinois Rules of
6    Evidence.
7        (4) Order to repatriate and deposit.
8            (A) Under its authority to enter a pretrial
9        restraining order under this Section, the court may
10        order a defendant to repatriate any property that may
11        be seized and forfeited and to deposit that property
12        pending trial with the State's Attorney or another
13        designated law enforcement agency.
14            (B) Failure to comply with an order under this
15        subsection (b) is punishable as a civil or criminal
16        contempt of court.
17    (c) Forfeiture.
18        (1) The following are subject to forfeiture:
19            (A) any property, real or personal, constituting,
20        derived from, or traceable to any proceeds the person
21        obtained directly or indirectly, as a result of a
22        violation of this Article;
23            (B) any of the person's property used, or intended
24        to be used, in any manner or part, to commit, or to
25        facilitate the commission of, a violation of this
26        Article;



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1            (C) all conveyances, including aircraft, vehicles
2        or vessels, which are used, or intended for use, to
3        transport, or in any manner to facilitate the
4        transportation, sale, receipt, possession, or
5        concealment of property described in subparagraphs (A)
6        and (B), but:
7                (i) no conveyance used by any person as a
8            common carrier in the transaction of business as a
9            common carrier is subject to forfeiture under this
10            Section unless it appears that the owner or other
11            person in charge of the conveyance is a consenting
12            party or privy to a violation of this Article;
13                (ii) no conveyance is subject to forfeiture
14            under this Section by reason of any act or omission
15            which the owner proves to have been committed or
16            omitted without his or her knowledge or consent;
17                (iii) a forfeiture of a conveyance encumbered
18            by a bona fide security interest is subject to the
19            interest of the secured party if he or she neither
20            had knowledge of nor consented to the act or
21            omission;
22            (D) all real property, including any right, title,
23        and interest (including, but not limited to, any
24        leasehold interest or the beneficial interest in a land
25        trust) in the whole of any lot or tract of land and any
26        appurtenances or improvements, which is used or



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1        intended to be used, in any manner or part, to commit,
2        or in any manner to facilitate the commission of, any
3        violation of this Article or that is the proceeds of
4        any violation or act that constitutes a violation of
5        this Article.
6        (2) Property subject to forfeiture under this Article
7    may be seized by the sheriff, or his or her agent, upon
8    process or seizure warrant issued by any court having
9    jurisdiction over the property. Seizure by the sheriff or
10    his or her agent without process may be made:
11            (A) if the seizure is incident to a seizure
12        warrant;
13            (B) if the property subject to seizure has been the
14        subject of a prior judgment in favor of the State in a
15        criminal proceeding, or in an injunction or forfeiture
16        proceeding based upon this Article;
17            (C) if there is probable cause to believe that the
18        property is directly or indirectly dangerous to health
19        or safety;
20            (D) if there is probable cause to believe that the
21        property is subject to forfeiture under this Article
22        and the property is seized under circumstances in which
23        a warrantless seizure or arrest would be reasonable; or
24            (E) in accordance with the Code of Criminal
25        Procedure of 1963.
26        (3) After seizure under paragraph (2), forfeiture



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1    proceedings shall be instituted in accordance with
2    subsections (i) through (r) of Section 29B-1 of this Code.
3        (4) Property taken or detained under this Section shall
4    not be subject to replevin, but is deemed to be in the
5    custody of the sheriff subject only to the order and
6    judgments of the circuit court having jurisdiction over the
7    forfeiture proceedings and the decisions of the State's
8    Attorney under this Article. When property is seized under
9    this Article, the seizing agency shall promptly conduct an
10    inventory of the seized property and estimate the
11    property's value and shall forward a copy of the inventory
12    of seized property and the estimate of the property's value
13    to the sheriff. Upon receiving notice of seizure, the
14    sheriff may:
15            (A) place the property under seal;
16            (B) remove the property to a place designated by
17        the sheriff;
18            (C) keep the property in the possession of the
19        seizing agency;
20            (D) remove the property to a storage area for
21        safekeeping or, if the property is a negotiable
22        instrument or money and is not needed for evidentiary
23        purposes, deposit it in an interest bearing account;
24            (E) place the property under constructive seizure
25        by posting notice of pending forfeiture on it, by
26        giving notice of pending forfeiture to its owners and



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1        interest holders, or by filing notice of pending
2        forfeiture in any appropriate public record relating
3        to the property; or
4            (F) provide for another agency or custodian,
5        including an owner, secured party, or lienholder, to
6        take custody of the property upon the terms and
7        conditions set by the sheriff.
8        (5) When property is forfeited under this Article, the
9    State's Attorney shall sell all the property unless the
10    property is required by law to be destroyed or is harmful
11    to the public, and shall distribute the proceeds of the
12    sale, together with any moneys forfeited or seized, in
13    accordance with paragraph (6). However, upon the
14    application of the seizing agency or prosecutor who was
15    responsible for the investigation, arrest or arrests and
16    prosecution which lead to the forfeiture, the State's
17    Attorney may return any item of forfeited property to the
18    seizing agency or prosecutor for official use in the
19    enforcement of laws, if the agency or prosecutor can
20    demonstrate that the item requested would be useful to the
21    agency or prosecutor in its enforcement efforts. When any
22    real property returned to the seizing agency is sold by the
23    agency or its unit of government, the proceeds of the sale
24    shall be delivered to the State's Attorney and distributed
25    in accordance with paragraph (6).
26        (6) All moneys and the sale proceeds of all other



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1    property forfeited and seized under this Article shall be
2    distributed as follows:
3            (A) 75% shall be distributed to the metropolitan
4        enforcement group, local, municipal, county, or State
5        law enforcement agency or agencies which conducted or
6        participated in the investigation resulting in the
7        forfeiture. The distribution shall bear a reasonable
8        relationship to the degree of direct participation of
9        the law enforcement agency in the effort resulting in
10        the forfeiture, taking into account the total value of
11        the property forfeited and the total law enforcement
12        effort with respect to the violation of the law upon
13        which the forfeiture is based. Amounts distributed to
14        the agency or agencies shall be used for the
15        enforcement of laws.
16            (B)(i) 12.5% shall be retained by the Office of the
17        State's Attorney of the county in which the prosecution
18        resulting in the forfeiture was instituted, deposited
19        in a special fund in the county treasury and
20        appropriated to the State's Attorney for use in the
21        enforcement of laws. In counties over 3,000,000
22        population, 25% shall be retained by the Office of the
23        State's Attorney for use in the enforcement of laws. If
24        the prosecution is undertaken solely by the Attorney
25        General, 25% shall be distributed to the Attorney
26        General for use in the enforcement of laws.



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1            (ii) 12.5% shall be distributed to the Office of
2        the State's Attorneys Appellate Prosecutor and
3        deposited in the Narcotics Profit Forfeiture Fund of
4        that office to be used for additional expenses incurred
5        in the investigation, prosecution and appeal of cases
6        arising under laws. However, the Office of the State's
7        Attorneys Appellate Prosecutor shall not receive
8        distribution from cases brought in counties with over
9        3,000,000 population or cases brought solely by the
10        Attorney General.
11    (d) (b) Any violation of this Article is subject to the
12remedies, procedures, and forfeiture as set forth in
13subsections (g) and (i) (f) through (s) of Section 29B-1 of
14this Code.
15(Source: P.A. 97-686, eff. 6-11-12.)
16    (720 ILCS 5/33G-9)
17    (Section scheduled to be repealed on June 11, 2017)
18    Sec. 33G-9. Repeal. This Article is repealed on June 11,
192022 5 years after it becomes law.
20(Source: P.A. 97-686, eff. 6-11-12.)
21    Section 99. Effective date. This Act takes effect upon
22becoming law.