[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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