HB0909 EngrossedLRB097 03728 RLC 43765 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 Public Corruption Profit Forfeiture Act is
5amended by changing Section 10 as follows:
 
6    (5 ILCS 283/10)
7    Sec. 10. Penalties.
8    (a) A person who is convicted of a violation of any of the
9following Sections, subsections, and clauses of the Criminal
10Code of 1961:
11        (1) clause (a)(6) of Section 12-6 (intimidation by a
12    public official),
13        (2) Section 33-1 (bribery), or
14        (3) subsection (a) of Section 33E-7 (kickbacks), or
15        (4) Section 33C-4 or subsection (d) of Section 17-10.3
16    (fraudulently obtaining public moneys reserved for
17    disadvantaged business enterprises),
18shall forfeit to the State of Illinois:
19        (A) any profits or proceeds and any property or
20    property interest he or she has acquired or maintained in
21    violation of any of the offenses listed in clauses (1)
22    through (4) (3) of this subsection (a) that the court
23    determines, after a forfeiture hearing under subsection

 

 

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1    (b) of this Section, to have been acquired or maintained as
2    a result of violating any of the offenses listed in clauses
3    (1) through (4) (3) of this subsection (a); and
4        (B) any interest in, security of, claim against, or
5    property or contractual right of any kind affording a
6    source of influence over, any enterprise which he or she
7    has established, operated, controlled, conducted, or
8    participated in the conduct of, in violation of any of the
9    offenses listed in clauses (1) through (4) (3) of this
10    subsection (a) that the court determines, after a
11    forfeiture hearing under subsection (b) of this Section, to
12    have been acquired or maintained as a result of violating
13    any of the offenses listed in clauses (1) through (4) (3)
14    of this subsection (a) or used to facilitate a violation of
15    one of the offenses listed in clauses (1) through (4) (3)
16    of this subsection (a).
17    (b) The court shall, upon petition by the Attorney General
18or State's Attorney, at any time after the filing of an
19information or return of an indictment, conduct a hearing to
20determine whether any property or property interest is subject
21to forfeiture under this Act. At the forfeiture hearing the
22people shall have the burden of establishing, by a
23preponderance of the evidence, that property or property
24interests are subject to forfeiture under this Act. There is a
25rebuttable presumption at such hearing that any property or
26property interest of a person charged by information or

 

 

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1indictment with a violation of any of the offenses listed in
2clauses (1) through (4) (3) of subsection (a) of this Section
3or who is convicted of a violation of any of the offenses
4listed in clauses (1) through (4) (3) of subsection (a) of this
5Section is subject to forfeiture under this Section if the
6State establishes by a preponderance of the evidence that:
7        (1) such property or property interest was acquired by
8    such person during the period of the violation of any of
9    the offenses listed in clauses (1) through (4) (3) of
10    subsection (a) of this Section or within a reasonable time
11    after such period; and
12        (2) there was no likely source for such property or
13    property interest other than the violation of any of the
14    offenses listed in clauses (1) through (4) (3) of
15    subsection (a) of this Section.
16    (c) In an action brought by the People of the State of
17Illinois under this Act, wherein any restraining order,
18injunction or prohibition or any other action in connection
19with any property or property interest subject to forfeiture
20under this Act is sought, the circuit court which shall preside
21over the trial of the person or persons charged with any of the
22offenses listed in clauses (1) through (4) (3) of subsection
23(a) of this Section shall first determine whether there is
24probable cause to believe that the person or persons so charged
25have committed a violation of any of the offenses listed in
26clauses (1) through (4) (3) of subsection (a) of this Section

 

 

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1and whether the property or property interest is subject to
2forfeiture pursuant to this Act.
3    In order to make such a determination, prior to entering
4any such order, the court shall conduct a hearing without a
5jury, wherein the People shall establish that there is: (i)
6probable cause that the person or persons so charged have
7committed one of the offenses listed in clauses (1) through (4)
8(3) of subsection (a) of this Section and (ii) probable cause
9that any property or property interest may be subject to
10forfeiture pursuant to this Act. Such hearing may be conducted
11simultaneously with a preliminary hearing, if the prosecution
12is commenced by information or complaint, or by motion of the
13People, at any stage in the proceedings. The court may accept a
14finding of probable cause at a preliminary hearing following
15the filing of a charge for violating one of the offenses listed
16in clauses (1) through (4) (3) of subsection (a) of this
17Section or the return of an indictment by a grand jury charging
18one of the offenses listed in clauses (1) through (4) (3) of
19subsection (a) of this Section as sufficient evidence of
20probable cause as provided in item (i) above.
21    Upon such a finding, the circuit court shall enter such
22restraining order, injunction or prohibition, or shall take
23such other action in connection with any such property or
24property interest subject to forfeiture under this Act, as is
25necessary to insure that such property is not removed from the
26jurisdiction of the court, concealed, destroyed or otherwise

 

 

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1disposed of by the owner of that property or property interest
2prior to a forfeiture hearing under subsection (b) of this
3Section. The Attorney General or State's Attorney shall file a
4certified copy of such restraining order, injunction or other
5prohibition with the recorder of deeds or registrar of titles
6of each county where any such property of the defendant may be
7located. No such injunction, restraining order or other
8prohibition shall affect the rights of any bona fide purchaser,
9mortgagee, judgment creditor or other lien holder arising prior
10to the date of such filing.
11    The court may, at any time, upon verified petition by the
12defendant, conduct a hearing to release all or portions of any
13such property or interest which the court previously determined
14to be subject to forfeiture or subject to any restraining
15order, injunction, or prohibition or other action. The court
16may release such property to the defendant for good cause shown
17and within the sound discretion of the court.
18    (d) Prosecution under this Act may be commenced by the
19Attorney General or a State's Attorney.
20    (e) Upon an order of forfeiture being entered pursuant to
21subsection (b) of this Section, the court shall authorize the
22Attorney General to seize any property or property interest
23declared forfeited under this Act and under such terms and
24conditions as the court shall deem proper. Any property or
25property interest that has been the subject of an entered
26restraining order, injunction or prohibition or any other

 

 

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1action filed under subsection (c) shall be forfeited unless the
2claimant can show by a preponderance of the evidence that the
3property or property interest has not been acquired or
4maintained as a result of a violation of any of the offenses
5listed in clauses (1) through (4) (3) of subsection (a) of this
6Section or has not been used to facilitate a violation of any
7of the offenses listed in clauses (1) through (4) (3) of
8subsection (a) of this Section.
9    (f) The Attorney General or his or her designee is
10authorized to sell all property forfeited and seized pursuant
11to this Act, unless such property is required by law to be
12destroyed or is harmful to the public, and, after the deduction
13of all requisite expenses of administration and sale, shall
14distribute the proceeds of such sale, along with any moneys
15forfeited or seized, in accordance with subsection (g).
16    (g) All monies and the sale proceeds of all other property
17forfeited and seized pursuant to this Act shall be distributed
18as follows:
19        (1) An amount equal to 50% shall be distributed to the
20    unit of local government or other law enforcement agency
21    whose officers or employees conducted the investigation
22    into a violation of any of the offenses listed in clauses
23    (1) through (4) (3) of subsection (a) of this Section and
24    caused the arrest or arrests and prosecution leading to the
25    forfeiture. Amounts distributed to units of local
26    government and law enforcement agencies shall be used for

 

 

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1    enforcement of laws governing public corruption, or for
2    other law enforcement purposes. In the event, however, that
3    the investigation, arrest or arrests and prosecution
4    leading to the forfeiture were undertaken solely by a State
5    agency, the portion provided hereunder shall be paid into
6    the State Asset Forfeiture Fund in the State treasury to be
7    used by that State agency in accordance with law. If the
8    investigation, arrest or arrests and prosecution leading
9    to the forfeiture were undertaken by the Attorney General,
10    the portion provided hereunder shall be paid into the
11    Attorney General's Whistleblower Reward and Protection
12    Fund in the State treasury to be used by the Attorney
13    General in accordance with law.
14        (2) An amount equal to 12.5% shall be distributed to
15    the county in which the prosecution resulting in the
16    forfeiture was instituted, deposited in a special fund in
17    the county treasury and appropriated to the State's
18    Attorney for use in accordance with law. If the prosecution
19    was conducted by the Attorney General, then the amount
20    provided under this subsection shall be paid into the
21    Attorney General's Whistleblower Reward and Protection
22    Fund in the State treasury to be used by the Attorney
23    General in accordance with law.
24        (3) An amount equal to 12.5% shall be distributed to
25    the Office of the State's Attorneys Appellate Prosecutor
26    and deposited in the State's Attorneys Appellate

 

 

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1    Prosecutor Anti-Corruption Fund, to be used by the Office
2    of the State's Attorneys Appellate Prosecutor for
3    additional expenses incurred in prosecuting appeals
4    arising under this Act. Any amounts remaining in the Fund
5    after all additional expenses have been paid shall be used
6    by the Office to reduce the participating county
7    contributions to the Office on a prorated basis as
8    determined by the board of governors of the Office of the
9    State's Attorneys Appellate Prosecutor based on the
10    populations of the participating counties. If the appeal is
11    to be conducted by the Attorney General, then the amount
12    provided under this subsection shall be paid into the
13    Attorney General's Whistleblower Reward and Protection
14    Fund in the State treasury to be used by the Attorney
15    General in accordance with law.
16        (4) An amount equal to 25% shall be paid into the State
17    Asset Forfeiture Fund in the State treasury to be used by
18    the Department of State Police for the funding of the
19    investigation of public corruption activities. Any amounts
20    remaining in the Fund after full funding of such
21    investigations shall be used by the Department in
22    accordance with law to fund its other enforcement
23    activities.
24    (h) All moneys deposited pursuant to this Act in the State
25Asset Forfeiture Fund shall, subject to appropriation, be used
26by the Department of State Police in the manner set forth in

 

 

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1this Section. All moneys deposited pursuant to this Act in the
2Attorney General's Whistleblower Reward and Protection Fund
3shall, subject to appropriation, be used by the Attorney
4General for State law enforcement purposes and for the
5performance of the duties of that office. All moneys deposited
6pursuant to this Act in the State's Attorneys Appellate
7Prosecutor Anti-Corruption Fund shall, subject to
8appropriation, be used by the Office of the State's Attorneys
9Appellate Prosecutor in the manner set forth in this Section.
10(Source: P.A. 96-1019, eff. 1-1-11.)
 
11    Section 99. Effective date. This Act takes effect upon
12becoming law.