[Congressional Record Volume 149, Number 116 (Thursday, July 31, 2003)]
[Senate]
[Pages S10685-S10687]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CRAIG:
  S. 1553. A bill to amend title 18, United States Code, to combat, 
deter, and punish individuals and enterprises engaged in organized 
retail theft; to the Committee on the Judiciary.
  Mr. CRAIG. Mr. President, today I am introducing legislation to 
respond to a growing crime problem that is harming honest businesses, 
endangering public health, and dragging down our economy.
  The problem I am talking about is organized retail theft.
  Organized retail theft is a quantum leap in criminality beyond petty 
shoplifting. It involves professional gangs or theft rings that move 
quickly from store to store, from community to community, and across 
State lines to pilfer large amounts of merchandise that can be easily 
sold through fencing operations, flea markets, swap meets and shady 
storefront operations.
  This type of criminal activity is a growing problem throughout the 
United States, harming many segments of the retail community, including 
supermarkets, chain drug stores, independent pharmacies, convenience 
stores, large discount operations, mass merchandisers, and specialty 
shops, among others. Organized retail theft has become the most 
pressing security problem confronting retailers and their suppliers, 
accounting for an estimated $30 billion in losses at the retail level 
annually, according to the Federal Bureau of Investigation's interstate 
theft task force.
  This kind of theft also presents significant health and safety risks 
for consumers. While items that are in high demand and prized by these 
organized gangs include software, videos, DVDs and CDs, razor blades, 
camera film, and batteries--they also include over-the-counter drug 
products, such as analgesics, cough and cold medications, and infant 
formula. Professional theft rings do not provide ideal or required 
storage conditions for consumable items, and as a result, the integrity 
and nutrient content of these products is often compromised. 
Furthermore, when products are near the end of their expiration date, 
it is not uncommon for unscrupulous middlemen to change the expiration 
date, lot numbers, and labels to falsely extend the shelf-life of the 
products or to disguise the fact that the merchandise has been stolen.
  Clearly, theft of this kind adversely affects both retailers and 
consumers in a variety of ways. For example, because theft by 
professional gangs has become so rampant in certain product categories, 
such as infant formula, many retail stores are taking the product off 
the shelves and placing them behind the counter or under lock and key. 
In some cases, products are simply unavailable due to high pilferage 
rates.
  Let me commend the Federal Bureau of Investigation and the Department 
of Justice for their work in this area. I know the Department has 
successfully prosecuted a number of cases against professional 
shoplifting rings. However, retail organizations and individual 
companies are crying out for help because this type of criminal 
activity is escalating, and there is no federal statute that 
specifically addresses organized retail theft. I believe more can be 
done to help in the investigation, apprehension, and prosecution of 
these criminal gangs.
  The legislation that I am introducing is in response to the concerns 
that

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have been brought to my attention by the retailing community. I hope my 
colleagues will join me in this effort. While this bill is not a cure-
all, I hope it will help to highlight the magnitude of the problem so 
that we can begin considering appropriate initiatives with all 
interested parties, including our federal law enforcement agencies, on 
how to effectively combat and deter organized retail theft in the 
future.
  I ask unanimous consent that the text of the Organized Retail Theft 
Act be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1553

       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.
       ``(h) 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.

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       (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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