HB0409 95TH GENERAL ASSEMBLY

LRB095 06377 RLC 26473 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB0409

Introduced 01/26/07, by Rep. Linda Chapa LaVia

SYNOPSIS AS INTRODUCED:

See Index

Creates the Organized Crime Control Act. Provides that a person who has received any proceeds with knowledge that they were derived, directly or indirectly, from a pattern of racketeering activity may not use or invest, whether directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use thereof in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise. Provides that a person, through a pattern of racketeering activity, may not acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property. Provides that a person employed by, or associated with, any enterprise may not conduct or participate, directly or indirectly, in the enterprise through a pattern of racketeering activity. Provides that any person convicted of engaging in racketeering activity is guilty of a Class 1 felony. Provides that any person who engages in a continuing criminal enterprise is guilty of a Class 1 felony. Requires the court to order forfeiture to the State of all real or personal property used in the course of, or intended for use in the course of, derived from, or realized through such criminal conduct. Provides for other civil remedies. Provides that the Attorney General and the State's Attorneys of this State have concurrent authority to institute criminal proceedings under the Act, except that a State's Attorney may institute proceedings only with the prior written approval of the Attorney General. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Organized Crime Control Act.

Section 5. Intent. The General Assembly finds that a severe problem is posed in this State by the increasing organization among certain criminal elements and the increasing extent to which criminal activities and funds acquired as a result of criminal activity are being directed to and against the legitimate economy of the State. The General Assembly declares that the intent of the Organized Crime Control Act is to impose sanctions against this subversion of the economy by organized criminal elements and to provide compensation to private persons injured thereby. It is not the intent of the General Assembly that isolated incidents of misdemeanor conduct be prosecuted under this Act, but only an interrelated pattern of criminal activity the motive or effect of which is to derive pecuniary gain.

Section 10. Definitions. For the purposes of this Act:

(1) "Commission of a crime" means being accountable for the commission of a crime under Article 5 of the Criminal Code of 1961.

(2) "Enterprise" means any sole proprietorship, partnership, limited liability company, corporation, business trust, union organized under the laws of this State or other legal entity or any union not organized under the laws of this State, association or group of individuals associated in fact although not a legal entity. "Enterprise" includes illicit and licit enterprises and governmental and other entities.

(3) "Pattern of racketeering activity" means engaging in at least 3 incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics, provided that at least one of the incidents occurred after the effective date of this Act and that the last of the incidents occurred within 7 years after the first incident of racketeering activity. Acts occurring at the same time and place which may form the basis for crimes punishable under more than one statutory provision may count for only one incident of racketeering activity.

(4) "Racketeering activity" means any activity specified in: (i) 18 U.S.C. 1961 as in effect on the effective date of this Act or (ii) the attempt, conspiracy to commit, or commission of any of the felonies specified in: Article 10, 11, 20, 20.5, 21, 24, 26, 28, 29A, 30, 31, 32, 33, or 33E, Section 9-1, 12-4.2, 12-4.2-5, 12-4.3, 12-9, 12-13, 12-14, 12-14.1, 12-15, 12-16, 12-16.2, 12-33, subsection (a) or (d-5) of Section 12-4 of the Criminal Code of 1961, the Illinois Controlled Substances Act, the Methamphetamine Control and Community Protection Act, the Cannabis Control Act, the Wrongs to Children Act, Article VIIIA of the Illinois Public Aid Code, Section 22 of the Cigarette Tax Act, or the Illinois Securities Law of 1953.

Section 15. Prohibited activities.

(a) A person who has received any proceeds with knowledge that they were derived, directly or indirectly, from a pattern of racketeering activity may not use or invest, whether directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use thereof in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise.

(b) A person, through a pattern of racketeering activity, may not acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property.

(c) A person employed by, or associated with, any enterprise may not conduct or participate, directly or indirectly, in the enterprise through a pattern of racketeering activity.

Section 20. Penalties.

(a) Any person convicted of engaging in racketeering activity in violation of Section 15 is guilty of a Class 1 felony.

(b) In lieu of a fine under subsection (a), any person convicted of engaging in conduct in violation of Section 15, through which he or she derived pecuniary value, or by which he or she caused personal injury or property damage or other loss, may be fined not to exceed 2 times the gross value gained or 2 times the gross loss caused, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred. In calculating the amount of a fine based on personal injury, any measurement of pain and suffering shall be excluded.

(c) The court shall hold a hearing to determine the amount of the fine authorized by subsection (b).

(d) In subsection (b), "pecuniary value" means: (1) anything of value in the form of money, a negotiable instrument, or a commercial interest or anything else the primary significance of which is economic advantage; or (2) any other property or service that has a value in excess of $100.

Section 25. Continuing criminal enterprise.

(a) Any person who engages in a continuing criminal enterprise is guilty of a Class 1 felony.

(b) In this Section a person is considered to be engaged in a continuing criminal enterprise if he or she engages in a prohibited activity under Section 15; and

(1) the activity is undertaken by the person in concert with 5 or more other persons, each of whom acted with intent to commit a crime and with respect to whom the person occupies a supervisory position; and

(2) the person obtains gross income or resources in excess of $25,000 from the activity.

Section 30. Criminal forfeitures.

(a) In addition to the penalties under Sections 20 and 25, the court shall order forfeiture, according to the procedures set forth in subsections (b), (c), and (d), of all real or personal property used in the course of, or intended for use in the course of, derived from, or realized through conduct in violation of Section 15 or 25. All forfeitures under this Section shall be made with due provision for the rights of innocent persons. Property constituting proceeds derived from conduct in violation of Section 15 or 25 includes, but is not limited to, any of the following:

(1) Any position, office, appointment, tenure, commission, or employment contract of any kind that the defendant acquired or maintained in violation of Section 15 or 25, through which the defendant conducted or participated in the conduct of the affairs of an enterprise in violation of Section 15 or 25, or that afforded the defendant a source of influence or control over the affairs of an enterprise that the defendant exercised in violation of Section 15 or 25.

(2) Any compensation, right, or benefit derived from a position, office, appointment, tenure, commission, or employment contract that accrued to the defendant during the period of conduct in violation of Section 15 or 25.

(3) Any interest in, security of, claim against, or property or contractual right affording the defendant a source of influence or control over the affairs of an enterprise in which the defendant participated in violation of Section 15 or 25.

(4) Any amount payable or paid under any contract for goods or services that was awarded or performed in violation of Section 15 or 25.

(b) Any criminal complaint alleging a violation of Section 15 or 25 shall allege the extent of property subject to forfeiture under this Section. At trial, the trier of fact shall return a special verdict determining the extent of property, if any, to be subject to forfeiture under this Section. When a special verdict contains a finding of property subject to forfeiture under this Section, a judgment of criminal forfeiture shall be entered along with the judgment of conviction.

(c) If any property included in a special verdict of criminal forfeiture cannot be located, has been sold to a bona fide purchaser for value, has been placed beyond the jurisdiction of the court, has been substantially diminished in value by the conduct of the defendant, has been commingled with other property that cannot be divided without difficulty or undue injury to innocent persons, or is otherwise unreachable without undue injury to innocent persons, the court may order forfeiture of any other property of the defendant up to the value of the property that is unreachable.

(d) Any injured person has a right or claim to forfeited property or the proceeds derived therefrom superior to any right or claim the State has under this Section in the same property or proceeds. This subsection (d) does not grant the injured person priority over State claims or rights by reason of a tax lien or other basis not covered by this Act. All rights, titles, and interest in property described in subsection (a) vest in the State upon the commission of the act giving rise to forfeiture under this Section.

Section 35. Civil remedies.

(a) After making due provision for the rights of innocent persons, any circuit court may enjoin violations of Section 15 or 25 and may issue appropriate orders and judgments related thereto, including, but not limited to:

(1) Ordering any defendant to divest himself or herself of any interest in any enterprise which is involved in the violation of Section 15 or 25, including real property.

(2) Imposing reasonable restrictions upon the future activities or investments of any defendant related to enjoining violations of Section 15 or 25, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which he or she was engaged in violation of Section 15 or 25.

(3) Ordering the dissolution or reorganization of any related enterprise.

(4) Ordering the suspension or revocation of a license, permit, or prior approval granted to any related enterprise by any agency of the State or a county or municipality.

(5) Ordering the dissolution of a corporation organized under the Business Corporation Act of 1983, or the revocation of a certificate authorizing a foreign corporation to conduct business within the State, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of Section 15 or 25 and that, for the prevention of future criminal activity, the public interest requires the action under this paragraph (5).

(b) (1) All property, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through conduct which has resulted in a conviction for violation of Section 15 or 25 is subject to civil forfeiture to the State. The State shall dispose of all forfeited property as soon as commercially feasible. If property is not exercisable or transferable for value by the State, it shall expire. All forfeitures or dispositions under this Section shall be made with due provision for the rights of innocent persons. The proceeds realized from the forfeitures and dispositions shall be deposited into the Common School Fund.

(2) Notwithstanding paragraph (1), property described in paragraph (1) is subject to forfeiture if the person who violated Section 15 or 25 has not been convicted, but he or she is a defendant in a criminal proceeding, is released, pending trial, on bail, and fails to appear in court regarding the criminal proceeding. However, before making the final determination of any action under this Section, the court must determine that the party bringing the action can prove the person committed the violation of Section 15 or 25.

(3) Any injured person has a right or claim to forfeited property or the proceeds derived therefrom superior to any right or claim the State has under this Section in the same property or proceeds. This paragraph does not grant the person priority over State claims or rights by reason of a tax lien or other basis not covered by this Act.

(c) The Attorney General or any State's Attorney may institute civil proceedings under this Section. In any action brought under this Section, the circuit court shall proceed as soon as practicable to the hearing and determination. Pending final determination of any action under this Section, the circuit court may at any time enter such injunctions, prohibitions, or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court deems proper. At any time pending final determination of a forfeiture action under subsection (b), the circuit court may order the seizure of property subject to forfeiture and may make such orders as it deems necessary to preserve and protect the property.

(d) Any person who is injured by reason of any violation of Section 15 or 25 has a cause of action for 2 times the actual damages sustained and, when appropriate, punitive damages. The person shall also recover attorney's fees and costs of the investigation and litigation reasonably incurred. The defendant or any injured person may demand a trial by jury in any civil action brought under this Section.

(e) The burden of proof under this Section is that of satisfying or convincing to a reasonable certainty by a greater weight of the credible evidence that the property is subject to forfeiture under this Section.

(f) A final judgment or decree rendered in favor of the State in any criminal proceeding under this Act shall stop the defendant from denying the essential allegations of the criminal offense in any subsequent civil action or proceeding.

Section 40. Enforcement and jurisdiction.

(a) A criminal or civil action or proceeding under this Act may be commenced at any time within 6 years after a violation under this Act terminates or the cause of action accrues. If a criminal action or proceeding under this Act is brought, or intervened in, to punish, prevent, or restrain any such violation, the running of the period of limitations with respect to any civil action or proceeding, including an action or proceeding under Section 35, which is based in whole or in part upon any matter complained of in the criminal action or proceeding shall be suspended for 2 years following the termination of the criminal action or proceeding.

(b) The application of one civil or criminal remedy under this Act does not preclude the application of any other remedy, civil or criminal, under this Act or any other provision of law. Civil remedies under this Act are supplemental, and not mutually exclusive, except that the State may not proceed under both subsection (b) of Section 20 and subsection (d) of Section 35.

(c) The Attorney General and the State's Attorneys of this State have concurrent authority to institute criminal proceedings under this Act, except that a State's Attorney may institute proceedings only with the prior written approval of the Attorney General.

Section 99. Effective date. This Act takes effect upon becoming law.