[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1847 Reported in Senate (RS)]





                                                       Calendar No. 206

105th CONGRESS

  1st Session

                               H. R. 1847

_______________________________________________________________________

                                 AN ACT

    To improve the criminal law relating to fraud against consumers.

_______________________________________________________________________

                            October 9, 1997

                       Reported with an amendment





                                                       Calendar No. 206
105th CONGRESS
  1st Session
                                H. R. 1847


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              July 9, 1997

  Received; read twice and referred to the Committee on the Judiciary

                            October 9, 1997

                Reported by Mr. Hatch, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 AN ACT


 
    To improve the criminal law relating to fraud against consumers.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Telemarketing Fraud 
Prevention Act of 1997''.</DELETED>

<DELETED>SEC. 2. FORFEITURE OF FRAUD PROCEEDS.</DELETED>

<DELETED>    Section 982(a) of title 18, United States Code, is amended 
by adding at the end the following:</DELETED>
<DELETED>    ``(8) The Court, in sentencing a defendant for an offense 
under section 2326, shall order that the defendant forfeit to the 
United States any real or personal property--</DELETED>
        <DELETED>    ``(A) used or intended to be used to commit or to 
        promote the commission of such offense, if the court in its 
        discretion so determines, taking into consideration the nature, 
        scope, and proportionality of the use of the property in the 
        offense; and</DELETED>
        <DELETED>    ``(B) constituting, derived from, or traceable to 
        the gross proceeds that the defendant obtained directly or 
        indirectly as a result of the offense.''.</DELETED>

<DELETED>SEC. 3. SENTENCING GUIDELINES CHANGES.</DELETED>

<DELETED>    Pursuant to its authority under section 994(p) of title 
28, United States Code, the United States Sentencing Commission shall 
review and amend the sentencing guidelines to provide a sentencing 
enhancement for any offense listed in section 2326 of title 18, United 
States Code--</DELETED>
        <DELETED>    (1) by at least 4 levels if the circumstances 
        authorizing an additional term of imprisonment under section 
        2326(1) are present; and</DELETED>
        <DELETED>    (2) by at least 8 levels if the circumstances 
        authorizing an additional term of imprisonment under section 
        2326(2) are present.</DELETED>

<DELETED>SEC. 4. INCREASED PUNISHMENT FOR USE OF FOREIGN LOCATION TO 
              EVADE PROSECUTION.</DELETED>

<DELETED>    Pursuant to its authority under section 994(p) of title 
28, United States Code, the United States Sentencing Commission shall 
amend the sentencing guidelines to increase the offense level for any 
fraud offense by at least 2 levels if the defendant conducted 
activities to further the fraud from a foreign country.</DELETED>

<DELETED>SEC. 5. SENTENCING COMMISSION DUTIES.</DELETED>

<DELETED>    The Sentencing Commission shall ensure that the sentences, 
guidelines, and policy statements for offenders convicted of offenses 
described in sections 3 and 4 are appropriately severe and reasonably 
consistent with other relevant directives and with other 
guidelines.</DELETED>

<DELETED>SEC. 6. CLARIFICATION OF ENHANCEMENT OF PENALTIES.</DELETED>

<DELETED>    Section 2327(a) of title 18, United States Code, is 
amended by striking ``under this chapter'' and inserting ``for which an 
enhanced penalty is provided under section 2326 of this 
title''.</DELETED>

<DELETED>SEC. 7. ADDITION OF CONSPIRACY OFFENSES TO SECTION 2326 
              ENHANCEMENT.</DELETED>

<DELETED>    Section 2326 of title 18, United States Code, is amended 
by inserting ``, or a conspiracy to commit such an offense,'' after 
``or 1344''.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Telemarketing Fraud Prevention Act 
of 1997''.

SEC. 2. CRIMINAL FORFEITURE OF FRAUD PROCEEDS.

    Section 982 of title 18, United States Code, is amended--
            (1) in subsection (a)--
                    (A) by redesignating the second paragraph 
                designated as paragraph (6) as paragraph (7); and
                    (B) by adding at the end the following:
    ``(8) The Court, in sentencing a defendant convicted of an offense 
under section 1028, 1029, 1341, 1342, 1343, or 1344, or of a conspiracy 
to commit such an offense, if the offense involves telemarketing (as 
that term is defined in section 2325), shall order that the defendant 
forfeit to the United States any real or personal property--
            ``(A) used or intended to be used to commit, to facilitate, 
        or to promote the commission of such offense; and
            ``(B) constituting, derived from, or traceable to the gross 
        proceeds that the defendant obtained directly or indirectly as 
        a result of the offense.''; and
            (2) in subsection (b)(1)(A), by striking ``(a)(1) or 
        (a)(6)'' and inserting ``(a)(1), (a)(6), or (a)(8)''.

SEC. 3. PENALTY FOR TELEMARKETING FRAUD.

    Section 2326 of title 18, United States Code, is amended by 
striking ``may'' each place it appears and inserting ``shall''.

SEC. 4. ADDITION OF CONSPIRACY OFFENSES TO SECTION 2326 ENHANCEMENT.

    Section 2326 of title 18, United States Code, is amended by 
inserting ``, or a conspiracy to commit such an offense,'' after ``or 
1344''.

SEC. 5. CLARIFICATION OF MANDATORY RESTITUTION.

    Section 2327 of title 18, United States Code, is amended--
            (1) in subsection (a), by striking ``for any offense under 
        this chapter'' and inserting ``to all victims of any offense 
        for which an enhanced penalty is provided under section 2326''; 
        and
            (2) by striking subsection (c) and inserting the following:
    ``(c) Victim Defined.--In this section, the term `victim' has the 
meaning given that term in section 3663A(a)(2).''.

SEC. 6. AMENDMENT OF FEDERAL SENTENCING GUIDELINES.

    (a) Definition of Telemarketing.--In this section, the term 
``telemarketing'' has the meaning given that term in section 2326 of 
title 18, United States Code.
    (b) Directive To Sentencing Commission.--Pursuant to its authority 
under section 994(p) of title 28, United States Code, and in accordance 
with this section, the United States Sentencing Commission shall--
            (1) promulgate Federal sentencing guidelines or amend 
        existing sentencing guidelines (and policy statements, if 
        appropriate) to provide for substantially increased penalties 
        for persons convicted of offenses described in section 2326 of 
        title 18, United States Code, as amended by this Act, in 
        connection with the conduct of telemarketing;
            (2) submit to Congress an explanation of each action taken 
        under paragraph (1) and any additional policy recommendations 
        for combating the offenses described in that paragraph.
    (c) Requirements.--In carrying out this section, the Commission 
shall--
            (1) ensure that the guidelines and policy statements 
        promulgated or amended pursuant to subsection (b)(1) and any 
        recommendations submitted thereunder reflect the serious nature 
        of the offenses;
            (2) provide an additional appropriate sentencing 
        enhancement if offense involved sophisticated means, including 
        but not limited to sophisticated concealment efforts, such as 
        perpetrating the offense from outside the United States;
            (3) provide an additional appropriate sentencing 
        enhancement for cases in which a large number of vulnerable 
        victims, including but not limited to victims described in 
        section 2326(2) of title 18, United States Code, are affected 
        by a fraudulent scheme or schemes;
            (4) ensure that guidelines and policy statements 
        promulgated or amended pursuant to subsection (b)(1) are 
        reasonably consistent with other relevant statutory directives 
        to the Commission and with other guidelines;
            (5) account for any aggravating or mitigating circumstances 
        that might justify upward or downward departures;
            (6) ensure that the guidelines adequately meet the purposes 
        of sentencing as set forth in section 3553(a)(2) of title 18, 
        United States Code; and
            (7) take any other action the Commission considers 
        necessary to carry out this section.
    (d) Emergency Authority.--The Commission shall promulgate the 
guidelines or amendments provided for under this subsection as soon as 
practicable, and in any event not later than 120 days after the date of 
enactment of the Telemarketing Fraud Prevention Act of 1997, in 
accordance with the procedures set forth in section 21(a) of the 
Sentencing Reform Act of 1987, as though the authority under that 
authority had not expired, except that the Commission shall submit to 
Congress the emergency guidelines or amendments promulgated under this 
section, and shall set an effective date for those guidelines or 
amendments not earlier than 30 days after their submission to Congress.