Organized Retail Crime Act of 2009 - Amends the federal criminal code to define "organized retail crime" as: (1) the stealing, embezzlement, 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 participate in such criminal activities.
Modifies the crime of transporting and selling or receiving stolen goods to include activities involving organized retail crime and the facilitation of such crime through the operation of an online marketplace.
Expands the crime of fraud involving access devices to include the use of gift cards, a Universal Product Code label, or a radio frequency identification transponder to obtain goods or services illegally.
Imposes reporting and other requirements on operators of online marketplaces and high volume (at least $12,000 annually) sellers relating to the sale of goods and services suspected of being acquired through organized retail crime.
Requires the U.S. Sentencing Commission to review and, if appropriate, amend its guidelines for persons convicted of offenses involving organized retail crime.
Provides for civil forfeiture of any property used to commit or facilitate organized retail crime.
Allows a business whose goods or services were sold or used in the facilitation of organized retail crime through the operation of an online marketplace to obtain injunctive relief and compensatory damages.
[Congressional Bills 111th Congress]
[From the U.S. Government Printing 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.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security.
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