[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1553 Introduced in Senate (IS)]
1st Session
S. 1553
To amend title 18, United States Code, to combat, deter, and punish
individuals and enterprises engaged in organized retail theft.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 31 (legislative day, July 21), 2003
Mr. Craig introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to combat, deter, and punish
individuals and enterprises engaged in organized retail theft.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Organized Retail Theft Act of
2003''.
SEC. 2. PROHIBITION AGAINST ORGANIZED RETAIL THEFT.
(a) In General.--Chapter 103 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 2120. Organized retail theft
``(a) In General.--Whoever in any material way or degree obstructs,
delays, or affects commerce or the movement of any article or commodity
in commerce, by taking possession of, carrying away, or transferring or
causing to be carried away, with intent to steal, any goods offered for
retail sale with a total value exceeding $1,000, but not exceeding
$5,000, during any 180-day period shall be fined not more than $1,000,
imprisoned not more than 1 year, or both.
``(b) High Value.--Whoever in any material way or degree obstructs,
delays, or affects commerce or the movement of any article or commodity
in commerce, by taking possession of, carrying away, or transferring or
causing to be carried away, with intent to steal, any goods offered for
retail sale with a total value exceeding $5,000, during any 180-day
period, shall be fined under this title, imprisoned not more than 10
years, or both.
``(c) Receipt and Disposal.--Whoever receives, possesses, conceals,
stores, barters, sells, disposes of, or travels in interstate or
foreign commerce, with the intent to distribute, any property which the
person knows, or should know has been taken or stolen in violation of
subsection (a) or (b), or who travels in interstate or foreign
commerce, with the intent to distribute the proceeds of goods which the
person knows or should know to be the proceeds of an offense described
in subsection (a) or (b), or to otherwise knowingly promote, manage,
carry on, or facilitate an offense described in subsection (a) or (b),
shall be fined or imprisoned as provided in subsection (a) if the
actions involved a violation of subsection (a) and as provided in
subsection (b) if the actions involved a violation of subsection (b).
``(d) Enhanced Penalties.--
``(1) Assault.--Whoever, in committing, or in attempting to
commit, any offense defined in subsections (a) and (b) of this
section, assaults any person, or puts in jeopardy the life of
any person by the use of a dangerous weapon or device, shall be
fined under this title, imprisoned not more than 25 years, or
both.
``(2) Death and kidnapping.--Whoever, in committing any
offense under this section, or in avoiding or attempting to
avoid apprehension for the commission of such offense, or in
freeing himself or attempting to free himself from arrest or
confinement for such offense, kills any person, or forces any
person to accompany him without the consent of such person,
shall be imprisoned not less than 10 years, or if death results
shall be punished by death or life imprisonment.
``(e) Forfeiture and Disposition of Goods.--
``(1) In general.--Whoever violates this section shall
forfeit to the United States, irrespective of any provision of
State law any interest in the retail goods the person knows or
should know to have been acquired or maintained in violation of
this section.
``(2) Injunctions and impounding, forfeiture, and
disposition of goods.--
``(A) Injunctions and impounding.--In any
prosecution under this subsection, upon motion of the
United States, the court may--
``(i) grant 1 or more temporary,
preliminary, or permanent injunctions on such
terms as the court determines to be reasonable
to prevent or restrain the alleged violation;
and
``(ii) at any time during the proceedings,
order the impounding on such terms as the court
determines to be reasonable, of any good that
the court has reasonable cause to believe was
involved in the violation.
``(B) Forfeiture and disposition of goods.--Upon
conviction of any person of a violation under this
subsection, the court shall--
``(i) order the forfeiture of any good
involved in the violation or that has been
impounded under subparagraph (A)(ii);
``(ii) either--
``(I) order the disposal of the
good by delivery to such Federal,
State, or local government agencies as,
in the opinion of the court, have a
need for such good, or by gift to such
charitable or nonprofit institutions
as, in the opinion of the court, have a
need for such good, if such disposition
would not otherwise be in violation of
law and if the manufacturer consents to
such disposition; or
``(II) order the return of any
goods seized or impounded under
subparagraph (A)(ii) to their rightful
owner; and
``(iii) find that the owner of the goods
seized or impounded under subparagraph (A)(ii)
aided in the investigation and order that such
owner be reimbursed for the expenses associated with that aid.
``(C) Terms.--For purposes of remission and
mitigation of goods forfeited to the Government under
this subsection, the provisions of section 981(d) of
this title shall apply.
``(f) Civil Remedies.--
``(1) In general.--Any person injured by a violation of
this section, or who demonstrates the likelihood of such
injury, may bring a civil action in an appropriate United
States district court against the alleged violator. The
complaint shall set forth in detail the manner and form of the
alleged violation.
``(2) Injunctions and impounding and disposition of
goods.--In any action under paragraph (1), the court may--
``(A) grant 1 or more temporary, preliminary, or
permanent injunctions upon the posting of a bond at
least equal to the value of the goods affected and on
such terms as the court determines to be reasonable to
prevent or restrain the violation;
``(B) at any time while the action is pending,
order the impounding upon the posting of a bond at
least equal to the value of the goods affected and, on
such terms as the court determines to be reasonable, if
the court has reasonable cause to believe the goods
were involved in the violation; and
``(C) as part of a final judgment or decree, in the
court's discretion, order the restitution of any good
involved in the violation or that has been impounded
under subparagraph (B).
``(3) Damages.--In any action under paragraph (1), the
plaintiff shall be entitled to recover the actual damages
suffered by the plaintiff as a result of the violation, and any
profits of the violator that are attributable to the violation
and are not taken into account in computing the actual damages.
In establishing the violator's profits, the plaintiff shall be
required to present proof only of the violator's sales, and the
violator shall be required to prove all elements of cost or
deduction claimed.
``(4) Costs and attorney's fees.--In any action under
paragraph (1), in addition to any damages recovered under
paragraph (3), the court in its discretion may award the
prevailing party its costs in the action and its reasonable
attorney's fees.
``(5) Repeat violations.--
``(A) Treble damages.--In any case in which a
person violates this section within 3 years after the
date on which a final judgment was entered against that
person for a previous violation of this section, the
court may, in its discretion, in an action brought
under this subsection, increase the award of damages
for the later violation to not more than 3 times the
amount that would otherwise be awarded under paragraph
(3), as the court considers appropriate.
``(B) Burden of proof.--A plaintiff that seeks
damages described in subparagraph (A) shall bear the
burden of proving the existence of the earlier
violation.
``(g) Definition.--In this section, the term `value' has the
meaning given that term in section 2311 of this title.''.
(b) Conforming Amendment.--The table of sections for chapter 103 of
title 18, United States Code, is amended by inserting at the end the
following:
``2120. Organized retail theft.''.
SEC. 3. COMMISSION OF ORGANIZED RETAIL THEFT A PREDICATE FOR RICO
CLAIM.
Section 1961(1) of title 18, United States Code, is amended by
adding ``, section 2120 (relating to organized retail theft)'' before
``, sections 2251''.
SEC. 4. FLEA MARKETS.
(a) Prohibitions.--No person at a flea market shall sell, offer for
sale, or knowingly permit the sale of any of the following products:
(1) Baby food, infant formula, or similar products used as
a sole or major source of nutrition, manufactured and packaged
for sale for consumption primarily by children under 3 years of
age.
(2) Any drug, food for special dietary use, cosmetic, or
device, as such terms are defined in the Federal Food, Drug,
and Cosmetic Act and regulations issued under that Act.
(b) Exclusion.--Nothing in this section shall prohibit a person
from engaging in activity otherwise prohibited by subsection (a), in
the case of a product described in subsection (a)(2), if that person
maintains for public inspection written documentation identifying the
person as an authorized representative of the manufacturer or
distributor of that product.
(c) Flea Market Defined.--
(1) In general.--As used in this section, the term ``flea
market'' means any physical location, other than a permanent
retail store, at which space is rented or otherwise made
available to others for the conduct of business as transient or
limited vendors.
(2) Exclusion.--For purposes of paragraph (1), transient or
limited vendors shall not include those persons who sell by
sample or catalog for future delivery to the purchaser.
(d) Criminal Penalties.--Any person who willfully violates this
section shall be punished as provided in section 2120 of title 18,
United States Code.
SEC. 5. ATTORNEY GENERAL REPORTING REQUIREMENTS.
Beginning with the first year after the date of enactment of this
Act, the Attorney General shall include in the report of the Attorney
General to Congress on the business of the Department of Justice
prepared pursuant to section 522 of title 28, United States Code, an
accounting, on a district by district basis, of the following with
respect to all actions taken by the Department of Justice that involve
organized retail theft (as punishable under section 2120 of title 18,
United States Code, as added by this Act), including--
(1) the number of open investigations;
(2) the number of cases referred by the United States
Customs Service;
(3) the number of cases referred by other agencies or
sources; and
(4) the number and outcome, including settlements,
sentences, recoveries, and penalties, of all prosecutions
brought under section 2120 of title 18, United States Code.
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