To amend title 18, United States Code, to combat, deter, and punish individuals and enterprises engaged in organized retail theft.

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

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.

END