Bill Text: IL SB1402 | 2017-2018 | 100th General Assembly | Engrossed

Bill Title: Amends the Code of Criminal Procedure of 1963. Allows the prosecution in a criminal case to bring an action seeking a court order to freeze the assets of a person charged with or convicted of a criminal offense if there are grounds to believe the defendant may dissipate the assets to avoid paying any fine, restitution, assessment, or costs that may or has been imposed as the result of a conviction. Provides the court must limit its order to allow the defendant sufficient assets for legal representation for any pending criminal charges against the defendant, including contesting any motion or order with regard to freezing his or her assets. Provides the court may limit an asset freezing order to provide the defendant with assets for his or her living and business expenses. Provides procedures for obtaining and enforcing asset freezing motions and orders. Sets forth obligations and protections for persons who are not a defendant in the case but who hold assets of the defendant subject to an asset freezing order. Allows for appeal by any party. Defines terms.

Spectrum: Moderate Partisan Bill (Democrat 4-1)

Status: (Engrossed) 2017-07-06 - Rule 19(a) / Re-referred to Rules Committee [SB1402 Detail]

Download: Illinois-2017-SB1402-Engrossed.html

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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 Code of Criminal Procedure of 1963 is
5amended by adding the heading of Article 112B and Sections
6112B-1, 112B-2, 112B-3, 112B-4, 112B-5, 112B-5.5, 112B-6,
7112B-7, and 112B-8 as follows:
8 (725 ILCS 5/Art. 112B heading new)
10 (725 ILCS 5/112B-1 new)
11 Sec. 112B-1. Definitions. In this Article:
12 "Asset" means anything that may be the subject of
13ownership, whether real or personal, tangible or intangible, or
14legal or equitable, or any interest in it, which is not exempt
15from execution under applicable law.
16 "Asset-freezing order" means an in personam order
17restraining or enjoining a person from dissipating an asset
18directly or indirectly.
19 "Defendant" means a person charged with a criminal offense
20against whom an asset-freezing order is brought.
21 "Dissipate" means to take an action with regard to an asset
22of a defendant to defeat satisfaction of an existing or future

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1judgment for a fine, restitution, assessment, or court costs
2after conviction, including:
3 (1) selling, removing, alienating, transferring,
4 assigning, encumbering, or similarly dealing with the
5 asset;
6 (2) instructing, requesting, counseling, demanding, or
7 encouraging any other person to take an action described in
8 paragraph (1) of this definition; and
9 (3) facilitating, assisting in, aiding, abetting, or
10 participating in an action described in paragraph (1) or
11 (2) of this definition.
12 "Lien" means a charge against or an interest in property to
13secure payment of a debt or performance of an obligation, and
14includes a security interest created by agreement, a judicial
15lien obtained by legal or equitable process or proceedings, a
16common-law lien, or a statutory lien.
17 "Nonparty" means a person that is not a defendant and has
18custody or control of an asset of a defendant who is subject to
19an asset-freezing order. The term includes a person that holds
20a joint ownership interest in an asset with a defendant against
21which an asset-freezing order has been entered.
22 "Person" means an individual, estate, business or
23nonprofit entity, public corporation, government or
24governmental subdivision, agency, or instrumentality, or other
25legal entity.
26 "Record" means information that is inscribed on a tangible

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1medium or that is stored in an electronic or other medium and
2is retrievable in perceivable form.
3 "State" means the prosecutor who filed the charge against
4the defendant and brings an action for an asset-freezing order.
5 "Transfer" means every mode, direct or indirect, absolute
6or conditional, voluntary or involuntary, of disposing of or
7parting with an asset or an interest in an asset, and includes
8payment of money, release, lease, and creation of a lien or
9other encumbrance.
10 (725 ILCS 5/112B-2 new)
11 Sec. 112B-2. Scope.
12 (a) This Article applies to a right accruing to a nonparty
13after the entry of an asset-freezing order if:
14 (1) the nonparty has been served with the order under
15 subsection (a) of Section 112B-5 of this Article; or
16 (2) the State obtaining the order has filed, recorded,
17 or docketed the order in the appropriate jurisdiction and
18 office in which the State would be required under
19 applicable law to file, record, or docket the order to give
20 notice of, establish, or perfect a lien, security interest,
21 mortgage, or comparable interest, and the order as filed,
22 recorded, or docketed, if it were a judicial lien in favor
23 of the State, would give priority to the interest of the
24 State over the interest of the nonparty under applicable
25 law.

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1 (b) This Article does not apply to or limit a right or
2remedy available to the State, defendant, or nonparty to the
3extent that a federal law or regulation preempts this Article.
4 (c) This Article does not affect a right or remedy
5including a right or remedy arising from the creation,
6perfection, priority, or enforcement of a security interest or
7other interests that existed before an order takes effect.
8 (d) This Article does not prevent the exercise of other
9remedies not inconsistent with this Article.
10 (725 ILCS 5/112B-3 new)
11 Sec. 112B-3. Asset-freezing order issued with notice.
12 (a) The State may, by motion, bring an action under this
13Article regarding assets of a person charged with or convicted
14of a criminal offense under the laws of this State if a fine,
15restitution, assessment, or costs may be sought or has been
16imposed as the result of a conviction. A court may issue an
17asset-freezing order on motion of the State with notice to the
18defendant against whom the order is sought and with an
19expedited opportunity to be heard if the court finds that:
20 (1) there is a substantial likelihood that the State
21 will prevail on the merits of the action;
22 (2) if the order is not granted, there is a substantial
23 likelihood the assets of the defendant against whom the
24 order is sought will be dissipated so that the State will
25 be unable to receive satisfaction of a judgment after

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1 conviction because of the dissipation;
2 (3) any harm the defendant against whom the order is
3 sought may suffer by complying with the order is clearly
4 outweighed by the risk of harm to the State if the order is
5 not issued; and
6 (4) the order, if issued, would not be adverse to the
7 public interest.
8 (b) An asset-freezing order issued with notice must be
9served in compliance with State law.
10 (c) A defendant against whom an asset-freezing order is
11issued may apply for relief from the order by posting a bond or
12other security in an amount determined by the court.
13 (d) On at least 24 hours' notice to the State, a defendant
14against whom the order is issued may apply for an order
15permitting him or her to pay his or her ordinary living
16expenses or business expenses.
17 (e) The court must limit an asset-freezing order to provide
18a sufficient amount to provide the legal representation needs
19of the defendant for any pending criminal charge against him or
20her, including responding and contesting motions and orders
21under this Article.
22 (f) The court may limit an asset-freezing order to a
23certain amount or type of assets and may order appropriate
24accounting requirements.
25 (g) An asset-freezing order remains in effect until it is
26vacated by the court, or the criminal charge is resolved by

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1agreement of the State and defendant, operation of law, or
2satisfaction of a judgment entered against the defendant
3against whom the order was issued.
4 (725 ILCS 5/112B-4 new)
5 Sec. 112B-4. Asset-freezing order issued without notice.
6 (a) The court may issue an asset-freezing order on motion
7of the State without the notice required by subsection (a) of
8Section 112B-3 of this Article if the court finds that facts in
9an affidavit or verified pleading offered in support of the
10motion establish that the State is entitled to the order under
11that Section.
12 (b) The State moving for an asset-freezing order under
13subsection (a) of this Section shall:
14 (1) conduct a reasonable inquiry and disclose in the
15 affidavit or verified pleading all material facts that
16 weigh against the issuance of the order; and
17 (2) disclose in the affidavit or verified pleading all
18 efforts to give notice or the reasons why notice should not
19 be required.
20 (c) An asset-freezing order issued without notice expires
21on a date set by the court, not later than 14 days after the
22court issues the order, unless before that time:
23 (1) the court, for good cause, extends the order and
24 states in the order of extension the reason for the
25 extension; or

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1 (2) the defendant consents in a record to an extension.
2 (d) If an asset-freezing order is issued without notice,
3the defendant against whom the order is issued may move to
4dissolve or modify the order after notice to the State that
5obtained the order and may apply for relief under subsections
6(c) and (d) of Section 112B-3 of this Article. The court shall
7hear and decide the motion or application on an expedited
9 (725 ILCS 5/112B-5 new)
10 Sec. 112B-5. Obligation of nonparty served with
11asset-freezing order.
12 (a) An asset-freezing order may be served on a nonparty. If
13the State who obtained the order serves a nonparty with the
14order, the State shall give notice to the defendant of the name
15and address of the nonparty not later than one day after
17 (b) Subject to subsection (e) of this Section, a nonparty
18served with an asset-freezing order shall freeze the assets of
19the defendant against whom the order is issued until further
20order of the court. The nonparty shall comply promptly with
21this subsection (b), taking into account the manner, time, and
22place of service and other factors that reasonably affect the
23nonparty's ability to comply. If the nonparty believes, in good
24faith, that complying with the asset-freezing order would
25violate a law, create liability under a law, or violate an

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1order issued by another jurisdiction, the nonparty immediately
2may move the court that issued the asset freezing order to
3dissolve or modify the order. If the court finds that the
4nonparty acted in good faith, it may not find the nonparty in
5contempt of court for failing to comply with the order during
6the pendency of the petition. The court shall hear and decide
7the motion on an expedited basis.
8 (c) If an asset-freezing order is vacated or modified, the
9State obtaining the order shall give notice promptly to a
10nonparty that was served with the order in the same manner as
11the nonparty was originally given notice.
12 (d) Except as otherwise provided for in subsection (b) of
13this Section, a nonparty served with an asset-freezing order
14may not knowingly assist in or permit a violation of the order.
15 (e) A nonparty served with an asset-freezing order may move
16to dissolve or modify the order. The court shall hear and
17decide the motion on an expedited basis.
18 (725 ILCS 5/112B-5.5 new)
19 Sec. 112B-5.5. Asset dissipation relief.
20 (a) The State may seek asset dissipation relief against a
21transfer or obligation of an asset knowingly made to dissipate
22the asset and may obtain:
23 (1) avoidance of the transfer or obligation to the
24 extent necessary to satisfy an existing or future judgment
25 for a fine, restitution, assessment, or court costs;

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1 (2) an attachment or other provisional remedy against
2 the asset transferred or other property of the transferee
3 in accordance with the procedure prescribed by the Code of
4 Civil Procedure; or
5 (3) subject to applicable principles of equity and in
6 accordance with applicable rules of civil procedure:
7 (A) an injunction against further disposition by
8 the defendant or a transferee, or both, of the asset
9 transferred or of other property;
10 (B) appointment of a receiver to take charge of the
11 asset transferred or of other property of the
12 transferee; or
13 (C) any other relief the circumstances may
14 require.
15 (b) Notwithstanding voidability of a transfer or an
16obligation under this Section, a good-faith transferee or
17obligee is entitled, to the extent of the value given the
18defendant for the transfer or obligation, to:
19 (1) a lien on or a right to retain any interest in the
20 asset transferred; or
21 (2) enforcement of any obligation incurred.
22 (725 ILCS 5/112B-6 new)
23 Sec. 112B-6. Indemnity.
24 The court may indemnify a nonparty for the reasonable costs
25of compliance with the order and compensate for any loss caused

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1by the order from the assets of the defendant.
2 (725 ILCS 5/112B-7 new)
3 Sec. 112B-7. Appeal. The State, defendant, or nonparty may
4appeal an order issued, including an interlocutory appeal,
5under this Article granting, continuing, modifying, refusing,
6or dissolving an asset-freezing order or asset dissipation
7relief order.