People v. Arman

• Decision Date: 10 April 1991
• Docket Number: No. 1-87-2705,1-87-2705
• Citation: 576 N.E.2d 11,215 Ill.App.3d 687
• Parties: , 159 Ill.Dec. 342 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John B. ARMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 11

576 N.E.2d 11

215 Ill.App.3d 687, 159 Ill.Dec. 342

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John B. ARMAN, Defendant-Appellant.

No. 1-87-2705.

Appellate Court of Illinois First District, Third Division.

April 10, 1991.

Jack O'Malley, States Atty., Chicago (Inge Fryklund, Maureen A. Harton, of counsel), for plaintiff-appellee.

Julius Lucius Echeles, Chicago (Jeffrey Urdanger, Chicago, of counsel), for defendant-appellant.

Justice WHITE delivered the opinion of the court:

A jury in the circuit court of Cook County found defendant, John B. Arman, guilty of narcotics racketeering. (Ill.Rev.Stat.1983, ch. 56 1/2, par. 1654(a).) In connection with sentencing, the State then filed a petition for forfeiture of certain real property and bank accounts of defendant. Following a hearing, the court entered a forfeiture order. Defendant appeals from that order. We affirm.

Defendant's underlying criminal conviction was the subject of an earlier appeal, in which our reversal of his conviction was itself reversed by the supreme court. The facts of the offense were set forth in the opinions filed in that cause. People v. Arman (1988), 171 Ill.App.3d 232, 121 Ill.Dec. 147, 524 N.E.2d 1195, rev'd (1989), 131 Ill.2d 115, 137 Ill.Dec. 5, 545 N.E.2d 658.

Pursuant to section 5 of the Narcotics Profit Forfeiture Act (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1655) (the Act), the State's petition sought forfeiture of a parcel of real estate at 1831 North Kimball Avenue, in Chicago; the proceeds from sale of another parcel at 1846 North Spaulding Avenue, in Chicago; and three savings accounts and one checking account at the Banco Popular de Puerto Rico, in Chicago. The petition alleged that defendant had acquired an interest in or had maintained the real estate and bank accounts with profits and proceeds of narcotics racketeering.

The court denied defendant's motion in limine, which would have required the State to limit its proof of financial activity, for purposes of forfeiture, to dates falling within the time period of the racketeering activity charged in defendant's underlying indictment. The court also denied defendant's motions for dismissal and for summary judgment. Sitting without a jury, the court then found that the State had proved by a preponderance of the evidence that funds gained through narcotics racketeering were used to maintain the buildings in question and that such funds also "went through and became" savings and checking accounts of defendant. Accordingly, the court entered an order forfeiting the remaining Kimball Avenue real estate as well as one savings and one checking account. The court also denied defendant's motion for a hearing to determine how much of the property was actually acquired or maintained by narcotics racketeering.

I

Defendant's first contention is that his constitutional right to a jury trial was denied when the court conducted the forfeiture hearing without a jury.

Defendant begins by arguing that the forfeiture proceeding was "so akin to a criminal proceeding" that it was subject to the Illinois Constitution's guaranty of a jury trial in criminal cases. (Ill. Const.1970, art. I, § 8.) He bases this argument on the fact that the Act's forfeiture provisions were included in a statutory section setting forth three consequences of committing the offense of narcotics racketeering. Besides forfeiture, the other two consequences were guilt of a Class I felony and liability to a fine of as much as $250,000. Ill.Rev.Stat.1985, ch. 56 1/2, pars. 1655(a)(3), (b).

Defendant continues by arguing that the Act's forfeiture provisions were subject to the Illinois Constitution's more general guaranty of the "right of trial by jury as heretofore enjoyed" (Ill. Const.1970, art. I, § 13). Defendant says that, even though the general jury-trial right protected by section 13 has been held not to apply in statutory actions of a type that were unknown to the common law, it would be unconstitutional to apply such a "restrictive" view of the section 13 right to the present action.

We note that, since defendant's forfeiture hearing, section 5(b) of the Act has been amended to provide for conducting forfeiture hearings at any time after filing of an information or return of an indictment, rather than only at any time following sentencing. Correspondingly, the term "sentencing court" has been replaced by the mere term "court" in section 5(a)(3) of the Act. (Pub. Act No. 86-350, eff. Jan. 1, 1990 (amending Ill.Rev.Stat.1987, ch. 56 1/2, par. 1655).

The parties dispute whether defendant waived his claim by agreeing at the hearing that the Act precluded a jury trial of the forfeiture matter. It is also unclear whether the Act's language actually precluded a jury trial of the matter. However, our decision does not require us to resolve either the waiver or the statutory-interpretation issue. Our reason is that, even if we assume that defendant preserved his claim and that the Act did deny a jury trial of forfeiture proceedings, the Act did not violate the Illinois Constitution in doing so.

Forfeiture statutes such as our Act represent an attempt to cope with the phenomenon of continuing, influential, and highly profitable criminal enterprises that transcend isolated acts of criminality. (See, e.g., United States v. Sandini (3d Cir.1987), 816 F.2d 869, 871-72; Smith, The Scope of Real Property Forfeiture for Drug-Related Crimes under the Comprehensive Forfeiture Act, 137 U.Pa.L.Rev. 303, 313-17 (1988); Note, A Proposal To Reform Criminal Forfeiture Under RICO and CCE, 97 Harv.L.Rev. 1929, 1929-30 (1984); see generally 37 C.J.S. Forfeitures §§ 1 through 6 (1943).) In part, the legislative effort requires integrating an ancient legal concept--forfeiture--with a more modern system of constitutional law.

The Act makes forfeiture one of the penalties for committing the Class I felony of narcotics racketeering. (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1655; cf. Sandini, 816 F.2d at 875 (under Federal statute, forfeiture is penalty, not element of crime); Weiner, Crime Must Not Pay: RICO Criminal Forfeiture in Perspective, 1 N.Ill.U.L.Rev. 225, 232 n. 30 (1981) (RICO forfeiture is in personam and punishment for crime).) Under the Act as it read in defendant's case, forfeiture might be ordered only after conviction. The forfeiture proceeding was thus part of sentencing, not part of trial. The conviction, not the forfeiture, was what determined felonious guilt. Consequently, it was during the conviction, not the forfeiture, stage of proceedings under the Act that defendant was entitled to a jury under the Illinois Constitution's guaranty of that right in criminal cases (Ill. Const.1970, art. I, § 8).

As a postconviction penalty, forfeiture under the Act no more involves a section 8 right of jury trial than does any other criminal sentence. A defendant is constitutionally entitled to have a jury determine guilt or innocence, but not to have it decide the penalty. See People v. Erickson (1987), 117 Ill.2d 271, 289, 111 Ill.Dec. 924, 931, 513 N.E.2d 367, 374; cf. McMillan v. Pennsylvania (1986), 477 U.S. 79, 93, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 67, 81 (sixth amendment does not guarantee jury trial at sentencing); Spaziano v. Florida (1984), 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340, 355 (same); People v. Heise (1913), 257 Ill. 443, 449-50, 100 N.E. 1000, 1002 (Ill. Const.1870, art. II, § 5, did not guarantee jury trial at sentencing); People ex rel. Bradley v. Illinois State Reformatory (1894), 148 Ill. 413, 422, 36 N.E. 76, 79 (same); People v. Koning (1958), 18 Ill.App.2d 119, 126, 151 N.E.2d 103, 106 (same).

Defendant's claim under section 13 of article I of the Illinois Constitution likewise fails for the simple reason that, when the 1818 Illinois Constitution was adopted, there was no common law right to have a jury decide punishment after a criminal conviction. Thus, no such right was constitutionally preserved. Illinois cases have consistently held that the section 13 jury-trial right applies only to proceedings of a type in which such trial was known to the common law. (E.g., Seifert v. Standard Paving Co. (1976), 64 Ill.2d 109, 120, 355 N.E.2d 537, 541; People ex rel. Keith v. Keith (1967), 38 Ill.2d 405, 407-08, 231 N.E.2d 387, 388-89; Ward v. Farwell (1881), 97 Ill. 593, 612, 614-15; Puglisi v. Hansford (1990), 193 Ill.App.3d 803, 807, 140 Ill.Dec. 733, 735, 550 N.E.2d 618, 620.) Criminal sentencing proceedings are not of such a type. But cf. State v. Fossett (Del.Super.1957), 134 A.2d 272, 276 (due process and common law require jury trial in same criminal proceeding of civil forfeiture sought regarding property said to be used unlawfully); accord State v. Rossitto (Del.1974), 331 A.2d 385, 388.

Defendant has cited no authority to the contrary. His citation of In re $53,263 (1987), 159 Ill.App.3d 114, 111 Ill.Dec. 351, 512 N.E.2d 740, is not helpful; the right to a jury was not at issue in that case, in which a forfeiture was ordered by the trial judge alone.

Accordingly, even if the Act did forbid a jury trial in his forfeiture proceeding, defendant's constitutional claim of right to a jury is unavailing.

II

Defendant's second contention is that, in requiring that the forfeitability of his property be proved by a mere preponderance of the evidence rather than requiring proof beyond a reasonable doubt, the Act violates his right to due process of law. Presumably, defendant invokes State as well as Federal constitutional law in this respect. U.S. Const., amends. V, XIV; Ill. Const.1970, art. I, § 2.

A Federal court construing a comparable Federal drug forfeiture statute (21 U.S.C. § 848 (1982)) employed language that is pertinent here:

"[F]orfeiture is punishment for the crime. Forfeiture is not an element of the continuing [criminal] enterprise offense, but simply an additional penalty for that proscribed conduct. [Citation.]

The argument that forfeiture is...