Sen. Antonio Muņoz

Filed: 5/22/2012

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 1907

2    AMENDMENT NO. ______. Amend House Bill 1907 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Criminal Code of 1961 is amended by adding
5Article 33G as follows:
 
6    (720 ILCS 5/Art. 33G heading new)
7
ARTICLE 33G.
8
ILLINOIS STREET GANG AND RACKETEER INFLUENCED AND CORRUPT
9
ORGANIZATIONS LAW

 
10    (720 ILCS 5/33G-1 new)
11    Sec. 33G-1. Short title. This Article may be cited as the
12Illinois Street Gang and Racketeer Influenced and Corrupt
13Organizations Law (or "RICO").
 
14    (720 ILCS 5/33G-2 new)

 

 

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1    Sec. 33G-2. Legislative declaration. The substantial harm
2inflicted on the people and economy of this State by pervasive
3violent street gangs and other forms of enterprise criminality,
4is legitimately a matter of grave concern to the people of this
5State who have a basic right to be protected from that criminal
6activity and to be given adequate remedies to redress its
7harms. Whereas the current laws of this State provide
8inadequate remedies, procedures and punishments, the Illinois
9General Assembly hereby gives the supplemental remedies of the
10Illinois Street Gang and Racketeer Influenced and Corrupt
11Organizations Law full force and effect under law for the
12common good of this State and its people.
 
13    (720 ILCS 5/33G-3 new)
14    Sec. 33G-3. Definitions. As used in this Article:
15    (a) "Another state" means any State of the United States
16(other than the State of Illinois), or the District of
17Columbia, or the Commonwealth of Puerto Rico, or any territory
18or possession of the United States, or any political
19subdivision, or any department, agency, or instrumentality
20thereof.
21    (b) "Enterprise" includes:
22        (1) any partnership, corporation, association,
23    business or charitable trust, or other legal entity; and
24        (2) any group of individuals or other legal entities,
25    or any combination thereof, associated in fact although not

 

 

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1    itself a legal entity. An association in fact must be held
2    together by a common purpose of engaging in a course of
3    conduct, and it may be associated together for purposes
4    that are both legal and illegal. An association in fact
5    must:
6            (A) have an ongoing organization or structure,
7        either formal or informal;
8            (B) the various members of the group must function
9        as a continuing unit, even if the group changes
10        membership by gaining or losing members over time; and
11            (C) have an ascertainable structure distinct from
12        that inherent in the conduct of a pattern of predicate
13        activity.
14    As used in this Article, "enterprise" includes licit and
15illicit enterprises.
16    (c) "Labor organization" includes any organization, labor
17union, craft union, or any voluntary unincorporated
18association designed to further the cause of the rights of
19union labor that is constituted for the purpose, in whole or in
20part, of collective bargaining or of dealing with employers
21concerning grievances, terms or conditions of employment, or
22apprenticeships or applications for apprenticeships, or of
23other mutual aid or protection in connection with employment,
24including apprenticeships or applications for apprenticeships.
25    (d) "Operation or management" means directing or carrying
26out the enterprise's affairs and is limited to any person who

 

 

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1knowingly serves as a leader, organizer, operator, manager,
2director, supervisor, financier, advisor, recruiter, supplier,
3or enforcer of an enterprise in violation of this Article.
4    (e) "Predicate activity" means any act that is a Class 2
5felony or higher and constitutes a violation or violations of
6any of the following provisions of the laws of the State of
7Illinois (as amended or revised as of the date the activity
8occurred or, in the instance of a continuing offense, the date
9that charges under this Article are filed in a particular
10matter in the State of Illinois) or any act under the law of
11another jurisdiction for an offense that could be charged as a
12Class 2 felony or higher in this State:
13        (1) under the Criminal Code of 1961: 8-1.2
14    (solicitation of murder for hire), 9-1 (first degree
15    murder), 9-3.3 (drug-induced homicide), 10-1 (kidnapping),
16    10-2 (aggravated kidnapping), 10-3.1 (aggravated unlawful
17    restraint), 10-4 (forcible detention), 10-5(b)(10) (child
18    abduction), 10-9 (trafficking in persons, involuntary
19    servitude, and related offenses), 11-1.20 (criminal sexual
20    assault), 11-1.30 (aggravated criminal sexual assault),
21    11-1.40 (predatory criminal sexual assault of a child),
22    11-1.60 (aggravated criminal sexual abuse), 11-6 (indecent
23    solicitation of a child), 11-6.5 (indecent solicitation of
24    an adult), 11-14.3(a)(2)(A) and (a)(2)(B) (promoting
25    prostitution), 11-14.4 (promoting juvenile prostitution),
26    11-18.1 (patronizing a minor engaged in prostitution;

 

 

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1    patronizing a juvenile prostitute), 12-3.05 (aggravated
2    battery), 12-6.4 (criminal street gang recruitment),
3    12-6.5 (compelling organization membership of persons),
4    12-7.3 (stalking), 12-7.4 (aggravated stalking), 12-7.5
5    (cyberstalking), 12-11 (home invasion), 12-11.1 (vehicular
6    invasion), 18-1 (robbery), 18-2 (armed robbery), 18-3
7    (vehicular hijacking), 18-4 (aggravated vehicular
8    hijacking), 18-5 (aggravated robbery), 19-1 (burglary),
9    19-3 (residential burglary), 20-1 (arson), 20-1.1
10    (aggravated arson), 20-1.2 (residential arson), 20-1.3
11    (place of worship arson), 24-1.2 (aggravated discharge of a
12    firearm), 24-1.2-5 (aggravated discharge of a machine gun
13    or silencer equipped firearm), 24-1.8 (unlawful possession
14    of a firearm by a street gang member), 24-3.2 (unlawful
15    discharge of firearm projectiles), 24-3.9 (aggravated
16    possession of a stolen firearm), 24-3A (gunrunning), 26-5
17    (dog-fighting), 29D-14.9 (terrorism), 29D-15 (soliciting
18    support for terrorism), 29D-15.1 (causing a catastrophe),
19    29D-15.2 (possession of a deadly substance), 29D-20
20    (making a terrorist threat), 29D-25 (falsely making a
21    terrorist threat), 29D-29.9 (material support for
22    terrorism), 29D-35 (hindering prosecution of terrorism),
23    31A-1.2 (unauthorized contraband in a penal institution),
24    or 33A-3 (armed violence);
25        (2) under the Cannabis Control Act: Sections 5
26    (manufacture or delivery of cannabis), 5.1 (cannabis

 

 

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1    trafficking), or 8 (production or possession of cannabis
2    plants), provided the offense either involves more than 500
3    grams of any substance containing cannabis or involves more
4    than 50 cannabis sativa plants;
5        (3) under the Illinois Controlled Substances Act:
6    Sections 401 (manufacture or delivery of a controlled
7    substance), 401.1 (controlled substance trafficking), 405
8    (calculated criminal drug conspiracy), or 405.2 (street
9    gang criminal drug conspiracy); or
10        (4) under the Methamphetamine Control and Community
11    Protection Act: Sections 15 (methamphetamine
12    manufacturing), or 55 (methamphetamine delivery).
13    (f) "Pattern of predicate activity" means:
14        (1) at least 3 occurrences of predicate activity that
15    are in some way related to each other and that have
16    continuity between them, and that are separate acts. Acts
17    are related to each other if they are not isolated events,
18    including if they have similar purposes, or results, or
19    participants, or victims, or are committed a similar way,
20    or have other similar distinguishing characteristics, or
21    are part of the affairs of the same enterprise. There is
22    continuity between acts if they are ongoing over a
23    substantial period, or if they are part of the regular way
24    some entity does business or conducts its affairs; and
25        (2) which occurs after the effective date of this
26    Article, and the last of which falls within 3 years

 

 

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1    (excluding any period of imprisonment) after the first
2    occurrence of predicate activity.
3    (g) "Unlawful death" includes the following offenses:
4under the Criminal Code of 1961: Sections 9-1 (first degree
5murder) or 9-2 (second degree murder).
 
6    (720 ILCS 5/33G-4 new)
7    Sec. 33G-4. Prohibited activities.
8    (a) It is unlawful for any person, who intentionally
9participates in the operation or management of an enterprise,
10directly or indirectly, to:
11        (1) knowingly do so, directly or indirectly, through a
12    pattern of predicate activity;
13        (2) knowingly cause another to violate this Article; or
14        (3) knowingly conspire to violate this Article.
15    Notwithstanding any other provision of law, in any
16prosecution for a conspiracy to violate this Article, no person
17may be convicted of that conspiracy unless an overt act in
18furtherance of the agreement is alleged and proved to have been
19committed by him, her, or by a coconspirator, but the
20commission of the overt act need not itself constitute
21predicate activity underlying the specific violation of this
22Article.
23    (b) It is unlawful for any person knowingly to acquire or
24maintain, directly or indirectly, through a pattern of
25predicate activity any interest in, or control of, to any

 

 

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1degree, of any enterprise, real property, or personal property
2of any character, including money.
3    (c) Nothing in this Article shall be construed as to make
4unlawful any activity which is arguably protected or prohibited
5by the National Labor Relations Act, the Illinois Educational
6Labor Relations Act, the Illinois Public Labor Relations Act,
7or the Railway Labor Act.
8    (d) The following organizations, and any officer or agent
9of those organizations acting in his or her official capacity
10as an officer or agent, may not be sued in civil actions under
11this Article:
12        (1) a labor organization; or
13        (2) any business defined in Division D, E, F, G, H, or
14    I of the Standard Industrial Classification as established
15    by the Occupational Safety and Health Administration, U.S.
16    Department of Labor.
17    (e) Any person prosecuted under this Article may be
18convicted and sentenced either:
19        (1) for the offense of conspiring to violate this
20    Article, and for any other particular offense or offenses
21    that may be one of the objects of a conspiracy to violate
22    this Article; or
23        (2) for the offense of violating this Article, and for
24    any other particular offense or offenses that may
25    constitute predicate activity underlying a violation of
26    this Article.

 

 

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1    (f) The State's Attorney, or a person designated by law to
2act for him or her and to perform his or her duties during his
3or her absence or disability, may authorize a criminal
4prosecution under this Article. Prior to any State's Attorney
5authorizing a criminal prosecution under this Article, the
6State's Attorney shall adopt rules and procedures governing the
7investigation and prosecution of any offense enumerated in this
8Article. These rules and procedures shall set forth guidelines
9which require that any potential prosecution under this Article
10be subject to an internal approval process in which it is
11determined, in a written prosecution memorandum prepared by the
12State's Attorney's Office, that (1) a prosecution under this
13Article is necessary to ensure that the indictment adequately
14reflects the nature and extent of the criminal conduct involved
15in a way that prosecution only on the underlying predicate
16activity would not, and (2) a prosecution under this Article
17would provide the basis for an appropriate sentence under all
18the circumstances of the case in a way that a prosecution only
19on the underlying predicate activity would not. No State's
20Attorney, or person designated by law to act for him or her and
21to perform his or her duties during his or her absence or
22disability, may authorize a criminal prosecution under this
23Article prior to reviewing the prepared written prosecution
24memorandum. However, any internal memorandum shall remain
25protected from disclosure under the attorney-client privilege,
26and this provision does not create any enforceable right on

 

 

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1behalf of any defendant or party, nor does it subject the
2exercise of prosecutorial discretion to judicial review.
3    (g) A labor organization and any officer or agent of that
4organization acting in his or her capacity as an officer or
5agent of the labor organization are exempt from prosecution
6under this Article.
 
7    (720 ILCS 5/33G-5 new)
8    Sec. 33G-5. Penalties. Under this Article, notwithstanding
9any other provision of law:
10    (a) Any violation of subsection (a) of Section 33G-4 of
11this Article shall be sentenced as a Class X felony with a term
12of imprisonment of not less than 7 years and not more than 30
13years, or the sentence applicable to the underlying predicate
14activity, whichever is higher, and the sentence imposed shall
15also include restitution, and or a criminal fine, jointly and
16severally, up to $250,000 or twice the gross amount of any
17intended proceeds of the violation, if any, whichever is
18higher.
19    (b) Any violation of subsection (b) of Section 33G-4 of
20this Article shall be sentenced as a Class X felony, and the
21sentence imposed shall also include restitution, and or a
22criminal fine, jointly and severally, up to $250,000 or twice
23the gross amount of any intended proceeds of the violation, if
24any, whichever is higher.
25    (c) Wherever the unlawful death of any person or persons

 

 

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1results as a necessary or natural consequence of any violation
2of this Article, the sentence imposed on the defendant shall
3include an enhanced term of imprisonment of at least 25 years
4up to natural life, in addition to any other penalty imposed by
5the court, provided:
6        (1) the death or deaths were reasonably foreseeable to
7    the defendant to be sentenced; and
8        (2) the death or deaths occurred when the defendant was
9    otherwise engaged in the violation of this Article as a
10    whole.
11    (d) A sentence of probation, periodic imprisonment,
12conditional discharge, impact incarceration or county impact
13incarceration, court supervision, withheld adjudication, or
14any pretrial diversionary sentence or suspended sentence, is
15not authorized for a violation of this Article.
 
16    (720 ILCS 5/33G-6 new)
17    Sec. 33G-6. Remedial proceedings, procedures, and
18forfeiture. Under this Article:
19    (a) The circuit court shall have jurisdiction to prevent
20and restrain violations of this Article by issuing appropriate
21orders, including:
22        (1) ordering any person to disgorge illicit proceeds
23    obtained by a violation of this Article or divest himself
24    or herself of any interest, direct or indirect, in any
25    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) Any violation of this Article is subject to the
12remedies, procedures, and forfeiture as set forth in
13subsections (f) through (s) of Section 29B-1 of this Code.
 
14    (720 ILCS 5/33G-7 new)
15    Sec. 33G-7. Construction. In interpreting the provisions
16of this Article, the court shall construe them in light of the
17applicable model jury instructions set forth in the Federal
18Criminal Jury Instructions for the Seventh Circuit (1999) for
19Title IX of Public Law , 91-452, 84 Stat. 922 (as amended in
20Title 18, United States Code, Sections 1961 through 1968),
21except to the extent that it is inconsistent with the plain
22language of this Article.
 
23    (720 ILCS 5/33G-8 new)
24    Sec. 33G-8. Limitations. Under this Article,

 

 

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1notwithstanding any other provision of law, but otherwise
2subject to the periods of exclusion from limitation as provided
3in Section 3-7 of this Code, the following limitations apply:
4    (a) Any action, proceeding, or prosecution brought under
5this Article must commence within 5 years of one of the
6following dates, whichever is latest:
7        (1) the date of the commission of the last occurrence
8    of predicate activity in a pattern of that activity, in the
9    form of an act underlying the alleged violation of this
10    Article; or
11        (2) in the case of an action, proceeding, or
12    prosecution, based upon a conspiracy to violate this
13    Article, the date that the last objective of the alleged
14    conspiracy was accomplished, defeated or abandoned
15    (whichever is later); or
16        (3) the date any minor victim of the violation attains
17    the age of 18 years or the date any victim of the violation
18    subject to a legal disability thereafter gains legal
19    capacity.
20    (b) Any action, proceeding, or prosecution brought under
21this Article may be commenced at any time against all
22defendants if the conduct of any defendant, or any part of the
23overall violation, resulted in the unlawful death of any person
24or persons.
 
25    (720 ILCS 5/33G-9 new)

 

 

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1    Sec. 33G-9. Repeal. This Article is repealed 5 years after
2it becomes law.
 
3    Section 99. Effective date. This Act takes effect upon
4becoming law.".