Full Text of HB0909 97th General Assembly
HB0909ham001 97TH GENERAL ASSEMBLY | Rep. Kelly Burke Filed: 10/21/2011
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| 1 | | AMENDMENT TO HOUSE BILL 909
| 2 | | AMENDMENT NO. ______. Amend House Bill 909 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Public Corruption Profit Forfeiture Act is | 5 | | amended 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 | 9 | | following Sections, subsections, and clauses of the Criminal | 10 | | Code 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 |
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| 1 | | disadvantaged business enterprises), | 2 | | shall forfeit to the State of Illinois: | 3 | | (A) any profits or proceeds and any property or | 4 | | property interest he or she has acquired or maintained in | 5 | | violation of any of the offenses listed in clauses (1) | 6 | | through (4) (3) of this subsection (a) that the court | 7 | | determines, after a forfeiture hearing under subsection | 8 | | (b) of this Section, to have been acquired or maintained as | 9 | | a result of violating any of the offenses listed in clauses | 10 | | (1) through (4) (3) of this subsection (a); and | 11 | | (B) any interest in, security of, claim against, or | 12 | | property or contractual right of any kind affording a | 13 | | source of influence over, any enterprise which he or she | 14 | | has established, operated, controlled, conducted, or | 15 | | participated in the conduct of, in violation of any of the | 16 | | offenses listed in clauses (1) through (4) (3) of this | 17 | | subsection (a) that the court determines, after a | 18 | | forfeiture hearing under subsection (b) of this Section, to | 19 | | have been acquired or maintained as a result of violating | 20 | | any of the offenses listed in clauses (1) through (4) (3) | 21 | | of this subsection (a) or used to facilitate a violation of | 22 | | one of the offenses listed in clauses (1) through (4) (3) | 23 | | of this subsection (a).
| 24 | | (b) The court shall, upon petition by the Attorney General | 25 | | or State's Attorney, at any time after the filing of an | 26 | | information or return of an indictment, conduct a hearing to |
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| 1 | | determine whether any property or property interest is subject | 2 | | to forfeiture under this Act. At the forfeiture hearing the | 3 | | people shall have the burden of establishing, by a | 4 | | preponderance of the evidence, that property or property | 5 | | interests are subject to forfeiture under this Act. There is a | 6 | | rebuttable presumption at such hearing that any property or | 7 | | property interest of a person charged by information or | 8 | | indictment with a violation of any of the offenses listed in | 9 | | clauses (1) through (4) (3) of subsection (a) of this Section | 10 | | or who is convicted of a violation of any of the offenses | 11 | | listed in clauses (1) through (4) (3) of subsection (a) of this | 12 | | Section is subject to forfeiture under this Section if the | 13 | | State establishes by a preponderance of the evidence that: | 14 | | (1) such property or property interest was acquired by | 15 | | such person during the period of the violation of any of | 16 | | the offenses listed in clauses (1) through (4) (3) of | 17 | | subsection (a) of this Section or within a reasonable time | 18 | | after such period; and
| 19 | | (2) there was no likely source for such property or | 20 | | property interest other than the violation of any of the | 21 | | offenses listed in clauses (1) through (4) (3) of | 22 | | subsection (a) of this Section.
| 23 | | (c) In an action brought by the People of the State of | 24 | | Illinois under this Act, wherein any restraining order, | 25 | | injunction or prohibition or any other action in connection | 26 | | with any property or property interest subject to forfeiture |
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| 1 | | under this Act is sought, the circuit court which shall preside | 2 | | over the trial of the person or persons charged with any of the | 3 | | offenses listed in clauses (1) through (4) (3) of subsection | 4 | | (a) of this Section shall first determine whether there is | 5 | | probable cause to believe that the person or persons so charged | 6 | | have committed a violation of any of the offenses listed in | 7 | | clauses (1) through (4) (3) of subsection (a) of this Section | 8 | | and whether the property or property interest is subject to | 9 | | forfeiture pursuant to this Act.
| 10 | | In order to make such a determination, prior to entering | 11 | | any such order, the court shall conduct a hearing without a | 12 | | jury, wherein the People shall establish that there is: (i) | 13 | | probable cause that the person or persons so charged have | 14 | | committed one of the offenses listed in clauses (1) through (4) | 15 | | (3) of subsection (a) of this Section and (ii) probable cause | 16 | | that any property or property interest may be subject to | 17 | | forfeiture pursuant to this Act. Such hearing may be conducted | 18 | | simultaneously with a preliminary hearing, if the prosecution | 19 | | is commenced by information or complaint, or by motion of the | 20 | | People, at any stage in the proceedings. The court may accept a | 21 | | finding of probable cause at a preliminary hearing following | 22 | | the filing of a charge for violating one of the offenses listed | 23 | | in clauses (1) through (4) (3) of subsection (a) of this | 24 | | Section or the return of an indictment by a grand jury charging | 25 | | one of the offenses listed in clauses (1) through (4) (3) of | 26 | | subsection (a) of this Section as sufficient evidence of |
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| 1 | | probable cause as provided in item (i) above.
| 2 | | Upon such a finding, the circuit court shall enter such | 3 | | restraining order, injunction or prohibition, or shall take | 4 | | such other action in connection with any such property or | 5 | | property interest subject to forfeiture under this Act, as is | 6 | | necessary to insure that such property is not removed from the | 7 | | jurisdiction of the court, concealed, destroyed or otherwise | 8 | | disposed of by the owner of that property or property interest | 9 | | prior to a forfeiture hearing under subsection (b) of this | 10 | | Section. The Attorney General or State's Attorney shall file a | 11 | | certified copy of such restraining order, injunction or other | 12 | | prohibition with the recorder of deeds or registrar of titles | 13 | | of each county where any such property of the defendant may be | 14 | | located. No such injunction, restraining order or other | 15 | | prohibition shall affect the rights of any bona fide purchaser, | 16 | | mortgagee, judgment creditor or other lien holder arising prior | 17 | | to the date of such filing.
| 18 | | The court may, at any time, upon verified petition by the | 19 | | defendant, conduct a hearing to release all or portions of any | 20 | | such property or interest which the court previously determined | 21 | | to be subject to forfeiture or subject to any restraining | 22 | | order, injunction, or prohibition or other action. The court | 23 | | may release such property to the defendant for good cause shown | 24 | | and within the sound discretion of the court.
| 25 | | (d) Prosecution under this Act may be commenced by the | 26 | | Attorney General or a State's Attorney.
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| 1 | | (e) Upon an order of forfeiture being entered pursuant to | 2 | | subsection (b) of this Section, the court shall authorize the | 3 | | Attorney General to seize any property or property interest | 4 | | declared forfeited under this Act and under such terms and | 5 | | conditions as the court shall deem proper. Any property or | 6 | | property interest that has been the subject of an entered | 7 | | restraining order, injunction or prohibition or any other | 8 | | action filed under subsection (c) shall be forfeited unless the | 9 | | claimant can show by a preponderance of the evidence that the | 10 | | property or property interest has not been acquired or | 11 | | maintained as a result of a violation of any of the offenses | 12 | | listed in clauses (1) through (4) (3) of subsection (a) of this | 13 | | Section or has not been used to facilitate a violation of any | 14 | | of the offenses listed in clauses (1) through (4) (3) of | 15 | | subsection (a) of this Section.
| 16 | | (f) The Attorney General or his or her designee is | 17 | | authorized to sell all property forfeited and seized pursuant | 18 | | to this Act, unless such property is required by law to be | 19 | | destroyed or is harmful to the public, and, after the deduction | 20 | | of all requisite expenses of administration and sale, shall | 21 | | distribute the proceeds of such sale, along with any moneys | 22 | | forfeited or seized, in accordance with subsection (g).
| 23 | | (g) All monies and the sale proceeds of all other property | 24 | | forfeited and seized pursuant to this Act shall be distributed | 25 | | as follows:
| 26 | | (1) An amount equal to 50% shall be distributed to the |
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| 1 | | unit of local government or other law enforcement agency | 2 | | whose officers or employees conducted the investigation | 3 | | into a violation of any of the offenses listed in clauses | 4 | | (1) through (4) (3) of subsection (a) of this Section and | 5 | | caused the arrest or arrests and prosecution leading to the | 6 | | forfeiture. Amounts distributed to units of local | 7 | | government and law enforcement agencies shall be used for | 8 | | enforcement of laws governing public corruption, or for | 9 | | other law enforcement purposes. In the event, however, that | 10 | | the investigation, arrest or arrests and prosecution | 11 | | leading to the forfeiture were undertaken solely by a State | 12 | | agency, the portion provided hereunder shall be paid into | 13 | | the State Asset Forfeiture Fund in the State treasury to be | 14 | | used by that State agency in accordance with law.
If the | 15 | | investigation, arrest or arrests and prosecution leading | 16 | | to the forfeiture were undertaken by the Attorney General, | 17 | | the portion provided hereunder shall be paid into the | 18 | | Attorney General's Whistleblower Reward and Protection | 19 | | Fund in the State treasury to be used by the Attorney | 20 | | General in accordance with law. | 21 | | (2) An amount equal to 12.5% shall be distributed to | 22 | | the county in which the prosecution resulting in the | 23 | | forfeiture was instituted, deposited in a special fund in | 24 | | the county treasury and appropriated to the State's | 25 | | Attorney for use in accordance with law.
If the prosecution | 26 | | was conducted by the Attorney General, then the amount |
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| 1 | | provided under this subsection shall be paid into the | 2 | | Attorney General's Whistleblower Reward and Protection | 3 | | Fund in the State treasury to be used by the Attorney | 4 | | General in accordance with law. | 5 | | (3) An amount equal to 12.5% shall be distributed to | 6 | | the Office of the State's Attorneys Appellate Prosecutor | 7 | | and deposited in the State's Attorneys Appellate | 8 | | Prosecutor Anti-Corruption Fund, to be used by the Office | 9 | | of the State's Attorneys Appellate Prosecutor for | 10 | | additional expenses incurred in prosecuting appeals | 11 | | arising under this Act. Any amounts remaining in the Fund | 12 | | after all additional expenses have been paid shall be used | 13 | | by the Office to reduce the participating county | 14 | | contributions to the Office on a prorated basis as | 15 | | determined by the board of governors of the Office of the | 16 | | State's Attorneys Appellate Prosecutor based on the | 17 | | populations of the participating counties.
If the appeal is | 18 | | to be conducted by the Attorney General, then the amount | 19 | | provided under this subsection shall be paid into the | 20 | | Attorney General's Whistleblower Reward and Protection | 21 | | Fund in the State treasury to be used by the Attorney | 22 | | General in accordance with law. | 23 | | (4) An amount equal to 25% shall be paid into the State | 24 | | Asset Forfeiture Fund in the State treasury to be used by | 25 | | the Department of State Police for the funding of the | 26 | | investigation of public corruption activities. Any amounts |
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| 1 | | remaining in the Fund after full funding of such | 2 | | investigations shall be used by the Department in | 3 | | accordance with law to fund its other enforcement | 4 | | activities.
| 5 | | (h) All moneys deposited pursuant to this Act in the State | 6 | | Asset Forfeiture Fund shall, subject to appropriation, be used | 7 | | by the Department of State Police in the manner set forth in | 8 | | this Section. All moneys deposited pursuant to this Act in the | 9 | | Attorney General's Whistleblower Reward and Protection Fund | 10 | | shall, subject to appropriation, be used by the Attorney | 11 | | General for State law enforcement purposes and for the | 12 | | performance of the duties of that office. All moneys deposited | 13 | | pursuant to this Act in the State's Attorneys Appellate | 14 | | Prosecutor Anti-Corruption Fund shall, subject to | 15 | | appropriation, be used by the Office of the State's Attorneys | 16 | | Appellate Prosecutor in the manner set forth in this Section.
| 17 | | (Source: P.A. 96-1019, eff. 1-1-11.)
| 18 | | Section 99. Effective date. This Act takes effect upon | 19 | | becoming law.".
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