[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1173 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 1173

  To amend title 18, United States Code, to combat, deter, and punish 
 individuals and enterprises engaged nationally and internationally in 
organized crime involving theft and interstate fencing of stolen retail 
                  merchandise, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 25, 2009

   Mr. Ellsworth (for himself and Mr. Jordan of Ohio) introduced the 
  following bill; which was 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 nationally and internationally in 
organized crime involving theft and interstate fencing of stolen retail 
                  merchandise, and for other purposes.

    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 Crime Act of 
2009''.

SEC. 2. FINDINGS AND STATEMENT OF PURPOSE.

    (a) Findings.--Congress makes the following findings:
            (1) Organized retail crime involving the obtaining by fraud 
        and theft of retail merchandise from entities engaged in 
        interstate commerce is a nationwide problem of an increasing 
        scale and is expected to cost American companies and consumers 
        more than $30,000,000,000 annually.
            (2) The increasing losses by retailers as a result of 
        organized retail crime make certain goods and products less 
        available and accessible to American consumers.
            (3) The uncontrolled redistribution and unsafe storage of 
        stolen and fraudulently obtained consumer products such as baby 
        formula, over-the-counter drugs, and other products by persons 
        engaged in such organized retail crime is a health and safety 
        hazard to American consumers.
            (4) The unregulated black-market sales of such fraudulently 
        obtained and stolen merchandise results in an estimated 
        $1,600,000,000 annual loss in much needed sales and income tax 
        revenues to State and local governments.
            (5) The illegal income from the expanding theft and resale 
        of stolen retail goods is reasonably believed to benefit 
        persons and organizations engaged in other forms of criminal 
        activity such as drug trafficking, gang activity, and 
        terrorism.
            (6) Organized retail crime rings often obtain retail 
        merchandise through the use of checks for which there are 
        insufficient funds or that are forged or stolen, frequently 
        returning the merchandise to fraudulently obtain refunds. Such 
        practices create major problems for the retail industry and the 
        national banking system.
            (7) Organized retail crime rings are increasingly using 
        counterfeit, forged, misappropriated, and improperly 
        transferred Universal Product Code labels and other devices 
        employed to identify articles for sale as a method for 
        achieving their ends.
            (8) The dramatic growth of organized retail crime and the 
        unfettered resale of such stolen and fraudulently obtained 
        goods in national and international Internet-based marketplaces 
        has resulted in effective evasion by such resellers of State 
        and local regulations on secondhand goods and article resellers 
        which had traditionally been used to control the possession, 
        resale, and transfer of stolen goods.
            (9) The unrestricted expansion of anonymous Internet-based 
        marketplaces for stolen and fraudulently obtained goods has 
        resulted in a dramatic increase in the deployment of organized 
        retail crime rings seeking to sell stolen goods in Internet-
        based marketplaces.
            (10) Conduct constituting organized retail crime and 
        conduct facilitating organized retail crime both substantially 
        affect interstate commerce.
    (b) Statement of Purpose.--In light of the above findings, the 
purposes of this Act are as follows:
            (1) To protect consumers, retailers, the national banking 
        system, and State and local governments from the more than 
        $30,000,000,000 annual problem of organized retail crime as 
        well as the related adverse health and safety risks it creates.
            (2) To continue to allow legitimate transactions to occur 
        on online marketplaces while addressing the growing problem of 
        fencing stolen merchandise over the Internet (``e-fencing'') 
        that facilitates organized retail crime.

SEC. 3. ORGANIZED RETAIL CRIME.

    (a) Definitions.--Section 2311 of title 18, United States Code, is 
amended--
            (1) by inserting after the fifth paragraph (relating to the 
        definition of ``motor vehicle'') the following:
            ```Organized retail crime' means--
                    ``(1) the stealing, embezzlement, or obtaining by 
                fraud, false pretenses, or other illegal means, of 
                retail merchandise in quantities that would not 
                normally be purchased for personal use or consumption 
                for the purpose of reselling or otherwise reentering 
                such retail merchandise in commerce; or
                    ``(2) the recruitment of persons to undertake, or 
                the coordination, organization, or facilitation of, 
                such stealing, embezzlement, or obtaining by fraud, 
                false pretenses, or other illegal means;'';
            (2) by inserting before the paragraph inserted by 
        subsection (a)(1) of this section, the following:
            ```Online marketplace' means--
            ``(1) an Internet site where persons other than the 
        operator of the Internet site can enter into transactions for 
        the sale of goods or services and in which--
                    ``(A) such goods or services are promoted through 
                inclusion in search results displayed within the 
                Internet site; and
                    ``(B) the operator of the Internet site--
                            ``(i) has the contractual right to 
                        supervise the activities of the person with 
                        respect to such goods or services; or
                            ``(ii) has a financial interest in the sale 
                        of such goods or services;'';
            (3) by inserting after the second paragraph, relating to 
        the definition of ``cattle'', the following new paragraph:
            ```Internet site' means a location on the Internet 
        accessible at a specific Internet domain name, is accessible at 
        a specific address under the Internet Protocol (or any 
        successor protocol), or is identified by a uniform resource 
        locator;''; and
            (4) by inserting before the paragraph inserted by paragraph 
        (3) of this subsection, the following new paragraph:
            ```High-volume seller' means a seller on an online 
        marketplace who in the past 12 months has made or offered to 
        make discrete transactions aggregating at least $12,000;''.
    (b) Transportation of Stolen Goods.--The first paragraph of section 
2314 of title 18, United States Code, is amended by inserting ``or 
engages in organized retail crime involving the transporting, 
transmitting, or transferring in interstate or foreign commerce any 
goods, wares, or merchandise,'' after ``$5,000 or more,''.
    (c) Sale or Receipt of Stolen Goods.--The first paragraph of 
section 2315 of title 18, United States Code, is amended by inserting 
``or engages in organized retail crime involving receiving, possessing, 
concealing, storing, bartering, selling, or disposing of any goods, 
wares, or merchandise,'' after ``$5,000 or more,''.
    (d) Fraud in Connection With Access Devices.--Section 1029(e)(1) of 
title 18, United States Code, is amended--
            (1) by inserting ``(including gift card)'' after ``card'';
            (2) by inserting ``(including a Universal Product Code 
        label)'' after ``code''; and
            (3) by inserting ``(including a radio frequency 
        identification transponder)'' after ``identifier''.
    (e) Facilitation of Organized Retail Crime.--
            (1) In general.--The first paragraph of section 2315 of 
        title 18, United States Code, as amended by subsection (c) of 
        this section, is further amended by inserting ``, or 
        facilitates such organized retail crime, including, but not 
        limited to, facilitation through the operation of an online 
        marketplace for the sale of goods and services, knowing or 
        having reasonable cause to know that such organized retail 
        crime is facilitated by such operation'' before ``; or'' at the 
        end of the paragraph.
            (2) Operator of an online marketplace.--Section 2315 of 
        title 18, United States Code, is further amended by inserting 
        before the last paragraph the following:
    ``It is unlawful for an operator of an online marketplace to fail 
to--
            ``(1) expeditiously investigate when credible evidence of 
        sales of goods or services acquired through organized retail 
        crime on its online marketplace comes to its attention, and 
        remove from the online marketplace or disable access to 
        material from the online marketplace of sellers offering goods 
        or services when the result of the investigation provides 
        knowledge or a reasonable cause to know that the goods or 
        services were acquired through organized retail crime, and 
        maintain a record of all investigations for a minimum of three 
        years;
            ``(2) require the seller of property whose merchandise 
        packaging identifies the property as being available from a 
        particular or exclusive retail source, to post such identifying 
        information conspicuously on the Internet site where other 
        information about the property is posted; and
            ``(3) in the case of each high volume seller--
                    ``(A) maintain the following information for three 
                years--
                            ``(i) the name, telephone number, e-mail 
                        address, legitimate physical address, any user 
                        identification, and company name of the high-
                        volume seller; and
                            ``(ii) all transactions conducted by each 
                        high-volume seller on the online marketplace 
                        for the most recent three-year period; and
                    ``(B) require any high-volume seller to--
                            ``(i) conspicuously post its name, 
                        telephone number, and legitimate address on the 
                        Internet site where other information about the 
                        property being sold by the high-volume seller 
                        is posted; or
                            ``(ii) provide, upon request of any 
                        business that has a reasonable suspicion that 
                        goods or services at the site were acquired 
                        through organized retail crime, its name, 
                        telephone number, and legitimate physical 
                        address.''.
    (f) Review and Amendment of Federal Sentencing Guidelines Related 
to Organized Retail Crime.--
            (1) Review and amendment.--The United States Sentencing 
        Commission, pursuant to its authority under section 994 of 
        title 28, United States Code, and in accordance with this 
        section, shall review and, if appropriate, amend the Federal 
        sentencing guidelines (including its policy statements) 
        applicable to persons convicted of offenses involving organized 
        retail crime under--
                    (A) sections 1029, 2314, and 2315 of title 18, 
                United States Code; and
                    (B) any other relevant provision of the United 
                States Code.
            (2) Requirements.--In carrying out the requirements of this 
        section, the United States Sentencing Commission shall--
                    (A) ensure that the Federal sentencing guidelines 
                (including its policy statements) reflect--
                            (i) the serious nature of the offenses and 
                        penalties referred to in this Act;
                            (ii) the magnitude of organized retail 
                        crime; and
                            (iii) the need to deter, prevent, and 
                        punish such offense;
                    (B) consider the extent to which the Federal 
                sentencing guidelines (including its policy statements) 
                adequately address violations of the sections amended 
                by this Act to sufficiently deter and punish such 
                offenses;
                    (C) maintain reasonable consistency with other 
                relevant directives and sentencing guidelines;
                    (D) account for any additional aggravating or 
                mitigating circumstances that might justify exceptions 
                to the generally applicable sentencing ranges; and
                    (E) consider whether to provide a sentencing 
                enhancement for those convicted of conduct proscribed 
                by this Act, where such conduct involves--
                            (i) organized retail crime;
                            (ii) sale or resale of a product in an 
                        online marketplace;
                            (iii) a threat to public health and safety, 
                        including but not limited to alteration of an 
                        expiration date or of product ingredients;
                            (iv) theft, conversion, alteration, or 
                        removal of a product label;
                            (v) alteration, transfer, theft, 
                        conversion, counterfeiting, or reproduction of 
                        a Universal Product Code label; and
                            (vi) use of a fire or emergency exit.
    (g) Civil Forfeiture.--
            (1) Section 2315 of title 18, United States Code, is 
        further amended by inserting before the last paragraph the 
        following:
    ``This section shall have the following civil forfeiture 
provisions:
            ``(1) Any property used, in any manner or part, to commit 
        organized retail crime or the facilitation of organized retail 
        crime shall be subject to forfeiture to the United States.
            ``(2) The provisions of chapter 46 of this title relating 
        to civil forfeitures, including section 983 of this title, 
        shall extend to any seizure or civil forfeiture under this 
        section. At the conclusion of the forfeiture proceedings, the 
        court, unless otherwise requested by an agency of the United 
        States, shall order that any forfeited article be returned to 
        the rightful owner or otherwise disposed of according to law.
            ``(3)(A) The court, in imposing sentence on a person 
        convicted of an offense under this section, shall order, in 
        addition to any other sentence imposed, that the person forfeit 
        to the United States--
                            ``(i) any property constituting or derived 
                        from any proceeds the person obtained, directly 
                        or indirectly, as the result of the offense of 
                        organized retail crime or the facilitation of 
                        organized retail crime; and
                            ``(ii) any of the person's property used, 
                        or intended to be used, in any manner or part, 
                        to commit, facilitate, aid, or abet the 
                        commission of either such offense.
            ``(B) The forfeiture of property under subparagraph (A), 
        including any seizure and disposition of the property and any 
        related judicial or administrative proceeding, shall be 
        governed by the procedures set forth in section 413 of the 
        Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 
        U.S.C. 853), other than subsection (d) of that section. 
        Notwithstanding section 413(h) of that Act, at the conclusion 
        of the forfeiture proceedings, the court shall order that any 
        forfeited article or component of an article bearing or 
        consisting of a counterfeit mark be destroyed.
            ``(4) When a person is convicted of an offense under this 
        section, the court, pursuant to sections 3556, 3663A, and 3664, 
        shall order the person to pay restitution to the owner of the 
        property and any other victim of the offense as an offense 
        against property referred to in section 3663A(c)(1)(A)(ii).
            ``(5) The term `victim', as used in paragraph (4), has the 
        meaning given that term in section 3663A(a)(2).''.

SEC. 4. ACTIONS AGAINST AN OPERATOR OF AN ONLINE MARKETPLACE.

    (a) In General.--Any business whose goods or services were sold or 
otherwise used in the facilitation of organized retail crime through 
the operation of an online marketplace may bring a civil action against 
the operator of the online marketplace for violations of section 3(e) 
with respect to such goods and services in any district court of the 
United States to enjoin further violation of this Act by the person or 
entity and to recover damages for any loss resulting from such 
violation.
    (b) Subsequent Actions.--A final judgment or decree rendered in 
favor of the United States in any criminal proceeding brought by the 
United States under this Act shall stop the defendant from denying the 
essential allegations of the criminal offense in any subsequent civil 
proceeding brought by any business whose goods or services were sold or 
otherwise used in an act of organized retail crime.

SEC. 5. NO PREEMPTION OF STATE LAW.

    No provision of this Act, including any amendment made by this Act, 
shall be construed as indicating an intent on the part of Congress to 
occupy the field in which that provision or amendment operates, 
including criminal penalties, to the exclusion of any State law on the 
same subject matter that would otherwise be within the authority of the 
State, unless there is a positive conflict between that provision or 
amendment and that State law so that the two cannot consistently stand 
together.

SEC. 6. EFFECTIVE DATE.

    The amendments made by this Act take effect 120 days after the date 
of the enactment of this Act.
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