HB5074 97TH GENERAL ASSEMBLY

LRB097 16525 MRW 61694 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5074

Introduced 2/7/2012, by Rep. Michael J. Zalewski

SYNOPSIS AS INTRODUCED:

See Index

Amends the Criminal Code of 1961. Adds the Illinois Street Gang and Racketeer Influenced and Corrupt Organizations Law (RICO) as a new Article of the Code. Provides that it is unlawful for any person: (1) who is employed by or associated with any enterprise, knowingly to conduct or participate, directly or indirectly, in such enterprise's affairs through either a pattern of predicate activity (specified criminal offenses) or the collection of unlawful debt; or (2) knowingly to acquire or maintain, directly or indirectly, through either a pattern of predicate activity or the collection of unlawful debt, any interest in, or control of, to any degree, of any enterprise, real property, or personal property of any character, including money. Establishes criminal penalties and civil remedies. Provides that any violation of the Article is subject to the remedies, procedures, and forfeiture as set forth in the money laundering statute. 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 5. The Criminal Code of 1961 is amended by adding Article 33G as follows:

(720 ILCS 5/Art. 33G heading new)

ARTICLE 33G.

ILLINOIS STREET GANG AND RACKETEER INFLUENCED AND CORRUPT

ORGANIZATIONS LAW

(720 ILCS 5/33G-1 new)

Sec. 33G-1. Short title. This Article may be cited as the Illinois Street Gang and Racketeer Influenced and Corrupt Organizations Law (or "RICO").

(720 ILCS 5/33G-2 new)

Sec. 33G-2. Legislative declaration. The substantial harm inflicted on the people and economy of this State by pervasive violent street gangs and other forms of enterprise criminality, is legitimately a matter of grave concern to the people of this State who have a basic right to be protected from such criminal activity and to be given adequate remedies to redress its harms. Whereas the current laws of this State provide inadequate remedies, procedures and punishments, the Illinois General Assembly hereby gives the supplemental remedies of the Illinois Street Gang and Racketeer Influenced and Corrupt Organizations Law full force and effect under law for the common good of this State and its people.

(720 ILCS 5/33G-3 new)

Sec. 33G-3. Definitions. As used in this Article:

(a) "Another state" means any State of the United States (other than the State of Illinois), or the District of Columbia, or the Commonwealth of Puerto Rico, or any territory or possession of the United States, or any political subdivision, or any department, agency, or instrumentality thereof.

(b) "Enterprise" includes (1) any individual, sole proprietorship, partnership, corporation, association, business or charitable trust or other legal entity, and (2) any group of individuals or other legal entities, or any combination thereof, associated in fact although not itself a legal entity. An association in fact must be held together by a common purpose, apart from an individual purpose or purposes, but it need not be hierarchically structured or otherwise specially configured. As used in this Article, "enterprise" includes licit and illicit enterprises.

(c) "Predicate activity" means:

(1) any act, attempt, endeavor, solicitation, or conspiracy that is punishable by imprisonment for more than one year, and constitutes a violation or violations of any of the following provisions of the laws of the State of Illinois (as amended or revised as of the date the activity occurred or, in the instance of a continuing offense, the date that charges under this Article are filed in a particular matter in the State of Illinois):

(i) under the Criminal Code of 1961: 8-1.2 (solicitation of murder for hire), 9-1 (first degree murder), 9-3.1 (concealment of homicidal death), 9-3.3 (drug-induced homicide), 10-1 (kidnapping), 10-2 (aggravated kidnapping), 10-3 (unlawful restraint), 10-3.1 (aggravated unlawful restraint), 10-4 (forcible detention), 10-5 (child abduction), 10-7 (aiding and abetting child abduction), 10-9 (trafficking of persons, involuntary servitude, and related offenses), 11-6 (indecent solicitation of a child), 11-6.5 (indecent solicitation of an adult), 11-9.1 (sexual exploitation of a child), 11-9.2 (custodial sexual misconduct), 11-14.4(a)(1) (promoting juvenile prostitution), 11-15.1 (soliciting for a juvenile prostitute), 11-14.3(a)(2)(A) or 11-14.3(a)(2)(B) (promoting prostitution), 11-16 (pandering), 11-14.4(a)(1) (promoting juvenile prostitution), 11-17.1 (keeping a place of juvenile prostitution), 11-18.1 (patronizing a juvenile prostitute), 11-14.4(a)(2) or 11-14.4(a)(3) (promoting juvenile prostitution), 11-19.1 (juvenile pimping and aggravated juvenile pimping), 11-14.4(a)(4) (promoting juvenile prostitution), 11-19.2 (exploitation of a child), 12-2 (aggravated assault), 12-3.05 or 12-4 (aggravated battery), 12-4.1 (heinous battery), 12-4.2 (aggravated battery with a firearm), 12-4.2-5 (aggravated battery with a machine gun or silencer-equipped firearm), 12-4.7 (drug-induced infliction of great bodily harm), 12-6.1 or 12-6.5 (compelling organization membership of persons), 12-6.4 (criminal street gang recruitment), 12-7.3 (stalking), 12-7.4 (aggravated stalking), 12-7.5 (cyber-stalking), 12-11 (home invasion), 12-11.1 (vehicular invasion), 11-1.20 or 12-13 (criminal sexual assault), 11-1.30 or 12-14 (aggravated criminal sexual assault), 11-1.40 or 12-14.1 or (predatory criminal sexual assault of a child), 11-1.60 or 12-16 (aggravated criminal sexual abuse), 16-16.1 or 24-3.9 (aggravated possession of a stolen firearm), 18-1 (robbery), 18-2 (armed robbery), 18-3 (vehicular hijacking), 18-4 (aggravated vehicular hijacking), 18-5 (aggravated robbery), 19-1 (burglary), 19-2 (possession of burglary tools), 19-3 (residential burglary), 20-1 (arson), 20-1.1 (aggravated arson), 20-1.2 (residential arson), 20-1.3 (place of worship arson), 20-2 (possession of explosives), 20.5-5 (causing a catastrophe), 20.5-6 (possession of a deadly substance), 24-1.2 (aggravated discharge of a firearm), 24-1.2-5 (aggravated discharge of a machine gun or silencer equipped firearm), 24-1.6 (aggravated unlawful use of a weapon), 24-1.8 (unlawful possession of a firearm by a street gang member), 24-2.2 (unlawful ammunition), 24-3 (unlawful sale of firearms), 24-3.2 (unlawful discharge of firearm projectiles), 24-3A (gunrunning), 24-5 (defacing a firearm), 26-5 (dog-fighting), 29D-15 (soliciting support for terrorism), 29D-20 (making a terrorist threat), 29D-25 (falsely making a terrorist threat), 29D-30 (terrorism), 29D-35 (hindering prosecution of terrorism), 31A-1.2 (unauthorized contraband in a penal institution), or 33A-3 (armed violence).

(ii) under the Cannabis Control Act: Sections 5 (manufacture or delivery of cannabis), 5.1 (cannabis trafficking), or 8 (production or possession of cannabis plants) provided the offense either involves more than 30 grams of any substance containing cannabis or involves more than 20 cannabis sativa plants.

(iii) under the Illinois Controlled Substances Act: Sections 401 (manufacture or delivery of a controlled substance), 401.1 (controlled substance trafficking), 405 (calculated criminal drug conspiracy), or 405.2 (street gang criminal drug conspiracy).

(iv) under the Methamphetamine Control and Community Protection Act: Sections 15 (methamphetamine manufacturing), or 55 (methamphetamine delivery); or

(2) any act, attempt, endeavor, solicitation, or conspiracy involving murder, kidnapping, illegal gambling, arson, robbery, or dealing in a controlled substance or listed chemical (as defined under the laws of the United States in Title 21, United States Code, Section 802), that is chargeable under the laws of another state and punishable by imprisonment for more than one year. Under this Article, the term "chargeable" means the act, attempt or endeavor, solicitation, or conspiracy constitutes an offense under the substantive criminal law of another state, as such laws exist as of the date the activity occurred or, in the instance of a continuing offense, the date that charges under this Article are filed in a particular matter in the State of Illinois, but it does not include any procedural defenses under the laws of another state.

(d) "Pattern of predicate activity" means:

(1) at least 2 occurrences of predicate activity related to the affairs of an enterprise in the form of an act, attempt, endeavor, solicitation, or conspiracy, or any combination thereof; and

(2) at least one of which occurs after the effective date of this Article, and the last of which falls within 10 years (excluding any period of imprisonment) after the prior occurrence of predicate activity;

(e) "Unlawful debt" means a debt:

(1) incurred or contracted in the business of gambling activity that was in violation of the law of the United States, or the State of Illinois or another state, or any political subdivision thereof, and that is unenforceable under federal law, or the laws of the State of Illinois or another state, in whole or in part as to principal or interest, or

(2) that was incurred in connection with the business of lending money or other things of value in violation of the law of the United States, or the laws of the State of Illinois or another state, or political subdivision thereof at a rate usurious under federal law, or the laws of the State of Illinois or another state, where the usurious rate is at least twice the enforceable rate;

(f) "Unlawful death" includes the following offenses: under the Criminal Code of 1961: Sections 9-1 (first degree murder), 9-2 (second degree murder), 9-3 (voluntary manslaughter and reckless homicide), or 9-3.2 (involuntary manslaughter).

(720 ILCS 5/33G-4 new)

Sec. 33G-4. Prohibited activities. Under this Article:

(a) It is unlawful for any person:

(1) who is employed by or associated with any enterprise, knowingly to conduct or participate, directly or indirectly, in such enterprise's affairs through either a pattern of predicate activity or the collection of unlawful debt; or

(2) knowingly to acquire or maintain, directly or indirectly, through either a pattern of predicate activity or the collection of unlawful debt, any interest in, or control of, to any degree, of any enterprise, real property, or personal property of any character, including money.

(b) It is unlawful for any person knowingly to attempt to violate, or knowingly conspire to violate, this Article. Notwithstanding any other provision of law, in any prosecution for a conspiracy to violate this Article, no person may be convicted of such conspiracy unless an overt act in furtherance of such agreement is alleged and proved to have been committed by him or by a coconspirator, but the commission of such overt act need not itself constitute predicate activity underlying the specific violation of this Article.

(c) The application of a remedy under this Article does not preclude the application of other criminal, civil, or administrative remedies under this Article or any other provision of law. Any person prosecuted under this Article may be convicted and sentenced either:

(1) for the offense of conspiring to violate this Article, and for any other particular offense or offenses that may be one of the objects of a conspiracy to violate this Article; or

(2) for the offense of violating this Article, and for any other particular offense or offenses that may constitute predicate activity underlying a violation of this Article.

(d) It is not a defense to any violation of this Article that a defendant has been formerly prosecuted for an offense based upon the same facts, within the meaning of Section 3-4 of this Code, that thereafter serves as any portion of the underlying predicate activity in a subsequent prosecution under this Article, unless the former prosecution was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution under this Article.

(e) In any criminal prosecution under this Article, the court may permit the introduction into evidence, as an admission or self-incriminating verbal act by a defendant, any certified court document relating to that defendant, including charging instruments, judgments of conviction, or transcripts of previous court proceedings underlying any prior conviction of that defendant, that may otherwise constitute evidence of a violation of this Article. The finder of fact may consider such court documents against that defendant, but the admission of the court documents shall not estop the defendant from challenging, in the criminal prosecution under this Article, any factual matters asserted in the court documents or any inferences to be drawn therefrom.

(720 ILCS 5/33G-5 new)

Sec. 33G-5. Penalties. Under this Article, notwithstanding any other provision of law:

(a) Any violation of subsection (a) of Section 33G-4 of this Article shall be sentenced as a Class X felony with a special term of imprisonment of not less than 10 years and not more than 30 years, or the sentence applicable to the underlying predicate activity, whichever is higher, and the sentence imposed shall also include restitution, and or a criminal fine, jointly and severally, up to $250,000 or twice the gross amount of any intended proceeds of the violation, if any, whichever is higher.

(b) Any violation of subsection (b) of Section 33G-4 of this Article shall be sentenced as a Class X felony with a special term of imprisonment of not less than 7 years and not more than 30 years, and the sentence imposed shall also include restitution, and or a criminal fine, jointly and severally, up to $250,000 or twice the gross amount of any intended proceeds of the violation, if any, whichever is higher.

(c) Wherever the unlawful death of any person or persons results as a necessary or natural consequence of any violation of this Article, the sentence imposed on the defendant shall include an enhanced term of imprisonment of at least 25 years up to natural life, in addition to any other penalty imposed by the court, provided:

(1) the death or deaths were reasonably foreseeable to the defendant to be sentenced; and

(2) the death or deaths occurred when such defendant was otherwise engaged in the violation of this Article as a whole.

(d) A sentence of probation, periodic imprisonment, conditional discharge, impact incarceration or county impact incarceration, court supervision, withheld adjudication, or any pretrial diversionary sentence or suspended sentence, is not authorized for a violation of this Article.

(720 ILCS 5/33G-6 new)

Sec. 33G-6. Remedial proceedings, procedures, and forfeiture. Under this Article:

(a) The circuit court shall have jurisdiction to prevent and restrain violations of this Article by issuing appropriate orders, including:

(1) ordering any person to disgorge illicit proceeds obtained by a violation of this Article or divest himself or herself of any interest, direct or indirect, in any enterprise or real or personal property of any character, including money, obtained, directly or indirectly, by a violation of this Article;

(2) imposing reasonable restrictions on the future activities or investments of any person or enterprise, including prohibiting any person or enterprise from engaging in the same type of endeavor as the person or enterprise engaged in, that violated this Article; or

(3) ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons.

(b) Any violation of this Article is subject to the remedies, procedures, and forfeiture as set forth in subsections (f) through (s) of Section 29B-1 of this Code.

(720 ILCS 5/33G-7 new)

Sec. 33G-7. Severability. If any clause, sentence, Section or provision, or part of this Article or the application thereof to any person or circumstance shall be adjudged to be unconstitutional, the remainder of this Article or its application to any person or circumstances other than those to which it is held invalid shall not be affected thereby.

(720 ILCS 5/33G-8 new)

Sec. 33G-8. Construction. In interpreting the provisions of this Article, the court, because of its remedial purposes, shall construe them liberally. Nothing in this Article shall preclude the imposition of additional criminal penalties under any provision of Federal law, or the laws of the State of Illinois or another state, or any other law, or the affording of any remedies in addition to those provided for in this Article. In addition, the court shall construe this Article in light of the provisions contained in Title IX of Public Law 91-452, 84 Stat. 922 (as amended in Title 18, United States Code, Section 1961-1968), wherever substantially similar language is used in such Title and this Article, but where such language indicates an intent to depart from such Title, the court shall interpret the language as herein provided.

(720 ILCS 5/33G-9 new)

Sec. 33G-9. Limitations. Under this Article, notwithstanding any other provision of law, but otherwise subject to the periods of exclusion from limitation as provided in Section 3-7 of this Code, the following limitations apply:

(a) Any action, proceeding, or prosecution brought under this Article must commence within 5 years of one of the following dates, whichever is latest:

(1) the date of the commission of the last occurrence of predicate activity in a pattern of such activity, in the form of an act, attempt, endeavor, or solicitation, underlying the alleged violation of this Article; or

(2) in the case of an action, proceeding, or prosecution, based upon a conspiracy to violate this Article, the date that the last objective of the alleged conspiracy was accomplished, defeated or abandoned (whichever is later); or

(3) the date any minor victim of the violation attains the age of 18 years or the date any victim of the violation subject to a legal disability thereafter gains legal capacity; or

(4) the date that any alleged violation of this Article, including injury, cause, pattern, or identity of the violator or violators, was otherwise discovered in the exercise of good faith.

(b) Any action, proceeding, or prosecution brought under this Article may be commenced at any time against all defendants if the conduct of any defendant, or any part of the overall violation, resulted in the unlawful death of any person or persons.

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