Full Text of HB1120 99th General Assembly
HB1120ham002 99TH GENERAL ASSEMBLY | Rep. Michael J. Zalewski Filed: 4/14/2015
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| 1 | | AMENDMENT TO HOUSE BILL 1120
| 2 | | AMENDMENT NO. ______. Amend House Bill 1120 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Criminal Code of 2012 is amended by | 5 | | changing Sections 33G-6 and 33G-9 as follows: | 6 | | (720 ILCS 5/33G-6) | 7 | | (Section scheduled to be repealed on June 11, 2017) | 8 | | Sec. 33G-6.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 | 9 | | forfeiture. Under this Article: | 10 | | (a) The circuit court shall have jurisdiction to prevent | 11 | | and restrain violations of this Article by issuing appropriate | 12 | | orders, 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, |
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| 1 | | including money, obtained, directly or indirectly, by a | 2 | | violation of this Article; | 3 | | (2) imposing reasonable restrictions on the future | 4 | | activities or investments of any person or enterprise, | 5 | | including prohibiting any person or enterprise from | 6 | | engaging in the same type of endeavor as the person or | 7 | | enterprise engaged in, that violated this Article; or | 8 | | (3) ordering dissolution or reorganization of any | 9 | | enterprise, making due provision for the rights of innocent | 10 | | persons. | 11 | | (b) Protective orders. | 12 | | (1) Upon application of the State, the court may enter | 13 | | a restraining order or injunction, require the execution of | 14 | | a satisfactory performance bond, or take any other action | 15 | | to preserve the availability of property described in | 16 | | subsection (c) for forfeiture under this Article: | 17 | | (A) upon the filing of an indictment, information, | 18 | | or complaint charging a violation of this Article for | 19 | | which forfeiture may be ordered under this Article and | 20 | | alleging that the property with respect to which the | 21 | | order is sought would be subject to forfeiture under | 22 | | this Article; or | 23 | | (B) prior to the filing of an indictment, | 24 | | information, or complaint described in subparagraph | 25 | | (A) of this paragraph (1), if, after notice to persons | 26 | | appearing to have an interest in the property and |
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| 1 | | opportunity for a hearing, the court determines that: | 2 | | (i) there is probable cause to believe the | 3 | | State will prevail on the issue of forfeiture and | 4 | | that failure to enter the order will result in the | 5 | | property being destroyed, removed from the | 6 | | jurisdiction of the court, or otherwise made | 7 | | unavailable for forfeiture; and | 8 | | (ii) the need to preserve the availability of | 9 | | the property through the entry of the requested | 10 | | order outweighs the hardship on any party against | 11 | | whom the order is to be entered. Provided, however, | 12 | | that an order entered under this subparagraph (B) | 13 | | shall be effective for not more than 90 days, | 14 | | unless extended by the court for good cause shown | 15 | | or unless an indictment, information, complaint, | 16 | | or administrative notice has been filed. | 17 | | (2) A temporary restraining order under this | 18 | | subsection (b) may be entered upon application of the State | 19 | | without notice or opportunity for a hearing when an | 20 | | indictment, information, complaint, or administrative | 21 | | notice has not yet been filed with respect to the property, | 22 | | if the State demonstrates that there is probable cause to | 23 | | believe that the property with respect to which the order | 24 | | is sought would, in the event of a conviction, be subject | 25 | | to forfeiture under this Section and that provision of | 26 | | notice will jeopardize the integrity of the investigation, |
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| 1 | | the safety of any persons, or the availability of the | 2 | | property for forfeiture. The temporary order shall expire | 3 | | not more than 30 days after the date on which it is | 4 | | entered, unless extended for good cause shown or unless the | 5 | | party against whom it is entered consents to an extension | 6 | | for a longer period. A hearing requested concerning an | 7 | | order entered under this paragraph shall be held at the | 8 | | earliest possible time and prior to the expiration of the | 9 | | temporary order. | 10 | | (3) The court may receive and consider, at a hearing | 11 | | held under this subsection (b), evidence and information | 12 | | that would be inadmissible under the Illinois Rules of | 13 | | Evidence. | 14 | | (4) Order to repatriate and deposit. | 15 | | (A) Under its authority to enter a pretrial | 16 | | restraining order under this Section, the court may | 17 | | order a defendant to repatriate any property that may | 18 | | be seized and forfeited and to deposit that property | 19 | | pending trial with the State's Attorney or another | 20 | | designated law enforcement agency. | 21 | | (B) Failure to comply with an order under this | 22 | | subsection (b) is punishable as a civil or criminal | 23 | | contempt of court. | 24 | | (c) Forfeiture. | 25 | | (1) The following are subject to forfeiture: | 26 | | (A) any property, real or personal, constituting, |
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| 1 | | derived from, or traceable to any proceeds the person | 2 | | obtained directly or indirectly, as a result of a | 3 | | violation of this Article; | 4 | | (B) any of the person's property used, or intended | 5 | | to be used, in any manner or part, to commit, or to | 6 | | facilitate the commission of, a violation of this | 7 | | Article; | 8 | | (C) all conveyances, including aircraft, vehicles, | 9 | | or vessels, which are used, or intended for use, to | 10 | | transport, or in any manner to facilitate the | 11 | | transportation, sale, receipt, possession, or | 12 | | concealment of property described in subparagraphs (A) | 13 | | and (B), but: | 14 | | (i) no conveyance used by any person as a | 15 | | common carrier in the transaction of business as a | 16 | | common carrier is subject to forfeiture under this | 17 | | Section unless it appears that the owner or other | 18 | | person in charge of the conveyance is a consenting | 19 | | party or privy to a violation of this Article; | 20 | | (ii) no conveyance is subject to forfeiture | 21 | | under this Section by reason of any act or omission | 22 | | which the owner proves to have been committed or | 23 | | omitted without his or her knowledge or consent; | 24 | | (iii) a forfeiture of a conveyance encumbered | 25 | | by a bona fide security interest is subject to the | 26 | | interest of the secured party if he or she neither |
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| 1 | | had knowledge of nor consented to the act or | 2 | | omission; | 3 | | (D) all real property, including any right, title, | 4 | | and interest (including, but not limited to, any | 5 | | leasehold interest or the beneficial interest in a land | 6 | | trust) in the whole of any lot or tract of land and any | 7 | | appurtenances or improvements, which is used or | 8 | | intended to be used, in any manner or part, to commit, | 9 | | or in any manner to facilitate the commission of, any | 10 | | violation of this Article or that is the proceeds of | 11 | | any violation or act that constitutes a violation of | 12 | | this Article. | 13 | | (2) Property subject to forfeiture under this Article | 14 | | may be seized by the sheriff, or his or her agent, upon | 15 | | process or seizure warrant issued by any court having | 16 | | jurisdiction over the property. Seizure by the sheriff or | 17 | | his or her agent without process may be made: | 18 | | (A) if the seizure is incident to a seizure | 19 | | warrant; | 20 | | (B) if the property subject to seizure has been the | 21 | | subject of a prior judgment in favor of the State in a | 22 | | criminal proceeding, or in an injunction or forfeiture | 23 | | proceeding based upon this Article; | 24 | | (C) if there is probable cause to believe that the | 25 | | property is directly or indirectly dangerous to health | 26 | | or safety; |
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| 1 | | (D) if there is probable cause to believe that the | 2 | | property is subject to forfeiture under this Article | 3 | | and the property is seized under circumstances in which | 4 | | a warrantless seizure or arrest would be reasonable; or | 5 | | (E) in accordance with the Code of Criminal | 6 | | Procedure of 1963. | 7 | | (3) After seizure under paragraph (2), forfeiture | 8 | | proceedings shall be instituted in accordance with | 9 | | subsections (i) through (r) of Section 29B-1 of this Code. | 10 | | (4) Property taken or detained under this Section shall | 11 | | not be subject to replevin, but is deemed to be in the | 12 | | custody of the sheriff subject only to the order and | 13 | | judgments of the circuit court having jurisdiction over the | 14 | | forfeiture proceedings and the decisions of the State's | 15 | | Attorney under this Article. When property is seized under | 16 | | this Article, the seizing agency shall promptly conduct an | 17 | | inventory of the seized property and estimate the | 18 | | property's value and shall forward a copy of the inventory | 19 | | of seized property and the estimate of the property's value | 20 | | to the sheriff. Upon receiving notice of seizure, the | 21 | | sheriff may: | 22 | | (A) place the property under seal; | 23 | | (B) remove the property to a place designated by | 24 | | the sheriff; | 25 | | (C) keep the property in the possession of the | 26 | | seizing agency; |
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| 1 | | (D) remove the property to a storage area for | 2 | | safekeeping or, if the property is a negotiable | 3 | | instrument or money and is not needed for evidentiary | 4 | | purposes, deposit it in an interest bearing account; | 5 | | (E) place the property under constructive seizure | 6 | | by posting notice of pending forfeiture on it, by | 7 | | giving notice of pending forfeiture to its owners and | 8 | | interest holders, or by filing notice of pending | 9 | | forfeiture in any
appropriate public record relating | 10 | | to the property; or | 11 | | (F) provide for another agency or custodian, | 12 | | including an owner, secured party, or lienholder, to | 13 | | take custody of the property upon the terms and | 14 | | conditions set by the sheriff. | 15 | | (5) When property is forfeited under this Article, the | 16 | | State's Attorney shall sell all the property unless the | 17 | | property is required by law to be destroyed or is harmful | 18 | | to the public, and shall distribute the proceeds of the | 19 | | sale, together with any moneys forfeited or seized, in | 20 | | accordance with paragraph (6). However, upon the | 21 | | application of the seizing agency or prosecutor who was | 22 | | responsible for the investigation, arrest, or arrests and | 23 | | prosecution which lead to the forfeiture, the State's | 24 | | Attorney may return any item of forfeited property to the | 25 | | seizing agency or prosecutor for official use in the | 26 | | enforcement of laws, if the agency or prosecutor can |
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| 1 | | demonstrate that the item requested would be useful to the | 2 | | agency or prosecutor in its enforcement efforts. When any | 3 | | real property returned to the seizing agency is sold by the | 4 | | agency or its unit of government, the proceeds of the sale | 5 | | shall be delivered to the State's Attorney and distributed | 6 | | in accordance with paragraph (6). | 7 | | (6) All moneys and the sale proceeds of all other | 8 | | property forfeited and seized under this Article shall be | 9 | | distributed as follows: | 10 | | (A) 75% shall be distributed to the metropolitan | 11 | | enforcement group, local, municipal, county, or State | 12 | | law enforcement agency or agencies which conducted or | 13 | | participated in the investigation resulting in the | 14 | | forfeiture. The distribution shall bear a reasonable | 15 | | relationship to the degree of direct participation of | 16 | | the law enforcement agency in the effort resulting in | 17 | | the forfeiture, taking into account the total value of | 18 | | the property forfeited and the total law enforcement | 19 | | effort with respect to the violation of the law upon | 20 | | which the forfeiture is based. Amounts distributed to | 21 | | the agency or agencies shall be used for the | 22 | | enforcement of laws. | 23 | | (B)(i) 12.5% shall be retained by the Office of the | 24 | | State's Attorney of the county in which the prosecution | 25 | | resulting in the forfeiture was instituted, deposited | 26 | | in a special fund in the county treasury and |
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| 1 | | appropriated to the State's Attorney for use in the | 2 | | enforcement of laws. In counties over 3,000,000 | 3 | | population, 25% shall be retained by the Office of the | 4 | | State's Attorney for use in the enforcement of laws. If | 5 | | the prosecution is undertaken solely by the Attorney | 6 | | General, 25% shall be distributed to the Attorney | 7 | | General for use in the enforcement of laws. | 8 | | (ii) 12.5% shall be distributed to the Office of | 9 | | the State's Attorneys Appellate Prosecutor and | 10 | | deposited in the Narcotics Profit Forfeiture Fund of | 11 | | that office to be used for additional expenses incurred | 12 | | in the investigation, prosecution and appeal of cases | 13 | | arising under laws. However, the Office of the State's | 14 | | Attorneys Appellate Prosecutor shall not receive | 15 | | distribution from cases brought in counties with over | 16 | | 3,000,000 population or cases brought solely by the | 17 | | Attorney General. | 18 | | (d) (b) Any violation of this Article is subject to the | 19 | | remedies, procedures, and forfeiture as set forth in | 20 | | subsections (g) and (i) (f) through (s) of Section 29B-1 of | 21 | | this Code.
| 22 | | (Source: P.A. 97-686, eff. 6-11-12.) | 23 | | (720 ILCS 5/33G-9) | 24 | | (Section scheduled to be repealed on June 11, 2017) | 25 | | Sec. 33G-9. Repeal. This Article is repealed on June 11, |
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| 1 | | 2020 5 years after it becomes law .
| 2 | | (Source: P.A. 97-686, eff. 6-11-12.)".
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