Monday, December 26, 2011

Overcriminalized.com Legislative Update

From Overcriminalized.com:




Sponsor: Sensenbrenner (R - WI)

Official Title: A bill to amend title 18, United States Code, to deter public corruption, and for other purposes.

Status:
5/5/2011: Introduced in House
5/5/2011: Referred to House Judiciary Committee

Commentary: This bill would make myriad changes to Title 18 of the U.S. Code to expand the scope of a number of federal criminal laws targeting fraud, theft, bribery, embezzlement, racketeering, and other forms of so-called public corruption. H.R. 1793 would also increase the criminal penalties for certain public corruption offenses, expand the federal venue provisions for a wide range of federal offenses (including perjury and obstruction of justice), and broaden the applicability of the federal wiretap authorization statute. Specifically, the provisions of the bill make the following changes to Title 18 of the U.S. Code: (1) expand the scope of the federal mail and wire fraud statutes (18 U.S.C. §§ 1341 and 1343) to cover not just "money and property," but rather "money, property, or anything of value"; (2) broaden the scope of the federal venue provision (18 U.S.C. § 3237(a)) to allow for proper venue in "any district in which an act in furtherance of an offense is committed"; (3) increase the maximum criminal penalty for "theft or bribery concerning programs receiving federal financial assistance" (18 U.S.C. § 666(a)) from 10 years imprisonment to 20 years imprisonment; (4) increase the maximum criminal penalty for the embezzlement, theft, purloining, or conversion or public money, property, or records (18 U.S.C. § 641) from 10 years imprisonment to 20 years imprisonment; (5) increase the maximum criminal penalty for bribery and graft (18 U.S.C. § 201) from 15 years imprisonment to 20 years imprisonment in cases involving a specific intent to influence, and from two years imprisonment to five years imprisonment in cases not involving such intent; (6) modify the language of the illegal gratuities portion of the bribery statute (18 U.S.C. § 201(c)(1)) to prohibit gratuities given because of an "official's or person's official position or any official act" and not solely because of "any official act"; (7) broaden the definition of an "official act" for the purposes of the illegal gratuities portion of the bribery statute; (8) extend the statute of limitations for prosecuting certain public corruption offenses; (9) increase the maximum criminal penalties for federal statutes prohibiting the inappropriate solicitation and acceptance of political contributions (see 18 U.S.C. §§ 602(a)(4), 600, 601(a), 606, 607(a)(2), and 610); (10) expand the predicate offenses available for the charging of RICO violations under 18 U.S.C. § 1961; (11) broaden the applicability of the federal wiretap authorization statute (18 U.S.C. § 2516) to include certain public corruption offenses; (12) widen the scope of the federal venue provision for perjury and obstruction of justice prosecutions (see 18 U.S.C. § 1512(i)); (13) amend the federal honest services fraud statute (18 U.S.C. § 1346A) to prohibit undisclosed self-dealing by public officials; (14) clarify that the theft and bribery provisions of 18 U.S.C. § 666(c) shall apply "to the giving or receiving of 'anything of value' that is corruptly solicited, demanded, accepted or agreed to be accepted"; and (15) modify the certification process under 18 U.S.C. § 3731 for appeals by the United States of pre-trial evidentiary decisions rendered by the district courts. H.R. 1793 would also amend 28 U.S.C. § 360(a) to allow for the disclosure of confidential materials associated with formal complaints against federal judges to the U.S. Attorney General, grand juries, or law enforcement agencies when such complaints involve allegations of criminal offenses.

Sponsor: Miller (D - NC)

Official Title: A bill to provide for enhanced mortgage-backed and asset-backed security investor protections, to prevent foreclosure fraud, and for other purposes.

Status:
5/5/2011: Introduced in House
5/5/2011: Referred to House Financial Services Committee

Commentary: This bill, like its Senate counterpart (S. 824), would amend various provisions of the Trust Indenture Act (TIA) (15 U.S.C. § 77aa et seq.), the Truth in Lending Act (15 U.S.C. § 1631 et seq.), the Real Estate Settlement Procedures Act (12 U.S.C. § 2601 et seq.), and the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.) to broaden the scope of each act to include both mortgage-backed and asset-backed securities. In addition, H.R. 1783 would increase the existing criminal penalties for violations of the TIA (15 U.S.C. § 77yyy). Currently, willful violations of the TIA, and false statements or material omissions related to any "application, report, or document filed or required to be filed under the provisions" of the TIA, are punishable by criminal sanctions of up to five years imprisonment, fines of up to $10,000, or both. H.R. 1783 would increase the maximum allowable criminal fine under section 77yyy from $10,000 to $40,000.

Sponsor: Heck (R - NV)

Official Title: A bill to amend title 18, United States Code, to establish a criminal offense relating to fraudulent claims about military service.

Status:
5/5/2011: Introduced in House
5/5/2011: Referred to House Judiciary Committee

Commentary: The original Stolen Valor Act (SVA), passed by Congress and signed into law by President Bush in 2006, broadened the provisions of federal law addressing the unauthorized purchase, solicitation, wear, manufacture, or sale of military decorations and medals. The SVA also made it a federal criminal offense to falsely represent oneself, either verbally or in writing, to have been "awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item." Under current law, violations of this provision are punishable by up to six months imprisonment, fines under Title 18 of the U.S. Code, or both. Enhanced sentences of up to one year imprisonment are also authorized for violations involving the Congressional Medal of Honor, the Navy Cross, the Air Force Cross, or Purple Heart medal. In July 2010, the U.S. District Court in Colorado ruled the SVA a "facially unconstitutional" violation of the First Amendment's free speech protections. A three-judge panel of the Ninth Circuit Court of Appeals also found the SVA to be unconstitutional on free-speech grounds in August 2010. This bill, H.R. 1775, would nevertheless add to the original SVA and create a new federal criminal offense for certain misrepresentation made about U.S. military service. Specifically, H.R. 1775 would criminalize anyone who, "with intent to obtain anything of value," knowingly makes a misrepresentation about their "military service." Under the provisions of the bill, the term "military service" would be defined as: (1) service in the U.S. military; (2) service in a combat zone as a member of the U.S. military; (3) attainment of a specific rank in the U.S. military; and (4) receipt of "any decoration or medal authorized by Congress for the Armed Forces of the United States; ... any of the service medals or badges awarded to members of such forces; or ... the ribbon, button, or rosette of any such badge, decoration, or medal." Violations of this new criminal provision would be punishable by criminal sanctions of up to six months imprisonment, fines under Title 18 of the U.S. Code, or both. If the misrepresentation involves claims that an "individual served in a combat zone, served in a special operations force, or was awarded the Congressional Medal of Honor," it would be punishable by criminal sanctions of up to one year imprisonment, fines under Title 18 of the U.S. Code, or both.

Sponsor: Whitfield (R - KY)

Official Title: A bill to amend the Interstate Horseracing Act of 1978 to prohibit the use of performance-enhancing drugs in horseracing, and for other purposes.

Status:
5/4/2011: Introduced in House
5/4/2011: Referred to House Energy and Commerce Committee

Commentary: This bill, like its House counterpart (S. 886), would amend the Interstate Horseracing Act of 1978 (15 U.S.C. § 3001 et seq.) to prohibit the use of "performance-enhancing drugs" in horseracing. H.R. 1733 does not include traditional criminal penalties, but it does debar violators from participating in their industry, a quasi-criminal penalty that Congress is increasingly imposing without the many protections that apply to investigations and prosecutions in the criminal context. The bill includes a very broad definition of performance-enhancing drug: "any substance capable of affecting the performance of a horse at any time by acting on the nervous system, cardiovascular system, respiratory system, digestive system, urinary system, reproductive system, musculoskeletal system, blood system, immune system (other than licensed vaccines against infectious agents), or endocrine system of [a] horse." It would forbid a person from entering a "horse in a race that is subject to an interstate off-track wager if the person knows the horse is under the influence of a performance-enhancing drug." It would also prohibit a person from "knowingly provid[ing] a horse with a performance-enhancing drug if the horse, while under the influence of the drug, will participate in a race that is subject to an interstate off-track wager." Further, the bill would proscribe all racing associations from conducting races subject to interstate off-track wagering unless the racing association has a policy in place that: (1) prohibits providing a performance-enhancing drug to a horse if the horse will participate in races while under the drug's influence; (2) prohibits racing a horse that is under the influence; (3) requires independent third-party testing for performance-enhancing drugs; and (4) requires reporting of third-party testing results to the Federal Trade Commission (FTC). Violations would primarily be punishable through civil penalties, enforced through either designated host racing commissions or through the FTC. The FTC would have the authority to enforce such violations as if they constituted contraventions of a FTC rule defining an unfair or deceptive act or practice under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. § 57a(a)(1)(B)). In addition to these civil penalties, H.R. 1733 would create a quasi-criminal penalty framework that would ban any individual a designated host racing commission or the FTC finds has been involved in a violation from participating in all horseracing-related activities, and ban horses testing positive for performance-enhancing drugs from competing in future races subject to off-track wagering. An individual who provided performance-enhancing drugs or who raced a horse in violation of the bill would receive a suspension of at least 180 days for a first offense, a suspension of at least one year for a second offense, and a permanent ban for a third offense. Horses in violation of H.R. 1733 would receive a suspension of at least 180 days for a first offense, a suspension of at least one year for a second offense, and a suspension of at least two years for a third or subsequent offense. In addition to this quasi-criminal penalty structure and the civil penalties described above, the bill would also create a private right of action in federal court for any person who has "reason to believe that [their] interest ... is threatened or adversely affected by the engagement of another person in a practice that violates" the provisions of H.R. 1733 or rules promulgated in accordance with the bill.

Sponsor: Leahy (D - VT)

Official Title: A bill to establish the supplemental fraud fighting account, and for other purposes.

Status:
5/5/2011: Introduced in Senate
5/5/2011: Referred to Senate Judiciary Committee
5/19/2011: Ordered to be reported Senate Judiciary Committee
5/19/2011: Reported to Senate by Senate Judiciary Committee
5/19/2011: Placed on Senate calendar

Commentary: This bill would extend the international money laundering statute (18 U.S.C. § 1956 (a)(2)(A)) to cover actions in violation of sections 7201 and 7206 of the Internal Revenue Code of 1986 (26 U.S.C. § 7201 and 26 U.S.C. § 7206), which prohibit willful attempts to evade or defeat federal tax law and proscribe fraud or false statements made in connection with any return, statement, or other federal tax document. Specifically, the vague and overly broad criminal offense in S. 890 would apply the federal international money laundering statute to anyone who "transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States" with intent "to promote the carrying on of specified unlawful activity" and "[to] engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code." Violations of this ambiguous provision would be punishable by criminal sanctions of up to 20 years imprisonment, fines of up to $500,000 or twice the value of the monetary instrument involved in the violation, or both. In addition, S. 890 would amend 18 U.S.C. § 1030(a)(6) to broaden the reach of the criminal statute outlawing the fraudulent trafficking of computer passwords or similar information by removing the federal jurisdictional hook in the provision. Currently, federal law prohibits such behavior if it "affects interstate or foreign commerce," or if the computer involved is "used by or for the Government of the United States." S. 890 would remove such limiting language and allow prosecution for fraudulent password trafficking on any "protected computer," which is undefined by the legislation or statute. The bill also seeks to amend 18 U.S.C. § 1028(a)(7) to expand the current prohibition on "fraud and related activity in connection with identification documents, authentication features, and information" to include organizational as well as personal identification materials. Despite existing civil and criminal remedies to combat the fraudulent use of organizational identification materials, S. 890 would allow prosecutors to pursue criminal sanctions against anyone who "knowingly transfers, possesses, or uses, without lawful authority, a means of identification" of any person or organization "with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law." Such violations would be punishable by up to 15 years imprisonment, fines under Title 18 of the U.S. Code, or both, if the offense involved one or more means of identification and the offense involved obtaining anything of value aggregating $1,000 or more in a one-year period. All other violations of this provision would be punishable by up to five years imprisonment, fines under Title 18 of the U.S. Code, or both. On top of modifying these specific criminal statutes, S. 890 would also broaden the venue provision (18 U.S.C. § 3237(a)) for federal mail fraud offenses and would amend the 21st Century Department of Justice Appropriations Authorization Act (28 U.S.C. 527 note) to establish a supplemental fraud fighting account in the Department of Justice Working Capital Fund for the cost of the "investigation of and conduct of criminal, civil, or administrative proceedings relating to fraud offenses."

Sponsor: Udall (D - NM)

Official Title: A bill to amend the Interstate Horseracing Act of 1978 to prohibit the use of performance-enhancing drugs in horseracing, and for other purposes.

Status:
5/4/2011: Introduced in Senate
5/4/2011: Referred to Senate Commerce, Science and Transportation Committee

Commentary: This bill, like its House counterpart (H.R. 1733), would amend the Interstate Horseracing Act of 1978 (15 U.S.C. § 3001 et seq.) to prohibit the use of "performance-enhancing drugs" in horseracing. S. 886 does not include traditional criminal penalties, but it does debar violators from participating in their industry, a quasi-criminal penalty that Congress is increasingly imposing without the many protections that apply to investigations and prosecutions in the criminal context. The bill includes a very broad definition of performance-enhancing drug: "any substance capable of affecting the performance of a horse at any time by acting on the nervous system, cardiovascular system, respiratory system, digestive system, urinary system, reproductive system, musculoskeletal system, blood system, immune system (other than licensed vaccines against infectious agents), or endocrine system of [a] horse." It would forbid a person from entering a "horse in a race that is subject to an interstate off-track wager if the person knows the horse is under the influence of a performance-enhancing drug." It would also prohibit a person from "knowingly provid[ing] a horse with a performance-enhancing drug if the horse, while under the influence of the drug, will participate in a race that is subject to an interstate off-track wager." Further, the bill would proscribe all racing associations from conducting races subject to interstate off-track wagering unless the racing association has a policy in place that: (1) prohibits providing a performance-enhancing drug to a horse if the horse will participate in races while under the drug's influence; (2) prohibits racing a horse that is under the influence; (3) requires independent third-party testing for performance-enhancing drugs; and (4) requires reporting of third-party testing results to the Federal Trade Commission (FTC). Violations would primarily be punishable through civil penalties, enforced through either designated host racing commissions or through the FTC. The FTC would have the authority to enforce such violations as if they constituted contraventions of a FTC rule defining an unfair or deceptive act or practice under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. § 57a(a)(1)(B)). In addition to these civil penalties, S. 886 would create a quasi-criminal penalty framework that would ban any individual a designated host racing commission or the FTC finds has been involved in a violation from participating in all horseracing-related activities, and ban horses testing positive for performance-enhancing drugs from competing in future races subject to off-track wagering. An individual who provided performance-enhancing drugs or who raced a horse in violation of the bill would receive a suspension of at least 180 days for a first offense, a suspension of at least one year for a second offense, and a permanent ban for a third offense. Horses in violation of S. 886 would receive a suspension of at least 180 days for a first offense, a suspension of at least one year for a second offense, and a suspension of at least two years for a third or subsequent offense. In addition to this quasi-criminal penalty structure and the civil penalties described above, the bill would also create a private right of action in federal court for any person who has "reason to believe that [their] interest ... is threatened or adversely affected by the engagement of another person in a practice that violates" the provisions of S. 886 or rules promulgated in accordance with the bill.

Sponsor: Landrieu (D - LA)

Official Title: A bill to amend the Consumer Credit Protection Act to assure meaningful disclosures of the terms of rental-purchase agreements, including disclosures of all costs to consumers under such agreements, to provide substantive rights to consumers under such agreements, and for other purposes.

Status:
5/4/2011: Introduced in Senate
5/4/2011: Referred to Senate Banking, Housing and Urban Affairs Committee

Commentary: This bill, much like its House counterpart (H.R. 1588), would amend the Consumer Credit Protection Act (CCPA) (15 U.S.C. § 1601 et seq.) to require merchants offering goods under rental-purchase agreements to make detailed disclosures to consumers. The bill also creates a new criminal offense punishing any party that "willfully and knowingly gives false or inaccurate information or fails to provide information which that person is required to disclose under the provisions of [the CCPA] or any regulation issued under this title [of the CCPA]." Violations of this provision would be punishable by criminal sanctions of up to one year imprisonment, fines of up to $5,000, or both.

Sponsor: Stutzman (R - IN)

Official Title: A bill to amend title 38, United States Code, to revise the enforcement penalties for misrepresentation of a business concern as a small business concern owned and controlled by veterans or as a small business concern owned and controlled by service-disabled veterans.

Status:
4/15/2011: Introduced in House
4/15/2011: Referred to House Veteran Affairs Committee
5/3/2011: Hearing Held by House Subcommittee on Economic Opportunity
5/5/2011: Mark up in the House Subcommittee on Economic Opportunity
5/5/2011: Forwarded to full committee by voice vote House Subcommittee on Economic Opportunity
5/12/2011: Mark up in the House Veteran Affairs Committee
5/12/2011: Ordered to be reported by voice vote House Veteran Affairs Committee

Commentary: This bill would amend section 8127 of Title 38, U.S. Code, to strengthen the enforcement penalties available to punish government contractors who misrepresent their business concerns as small business concerns owned and controlled by veterans or service-disabled veterans for the purpose of receiving favorable treatment in the U.S. Department of Veterans Affairs (VA) contracting process. Under current law (38 U.S.C. § 8127(g)), any business concern contracting with the VA that misrepresents its status as a "small business concern owned and controlled by veterans or as a small business concern owned and controlled by service-disabled veterans" is subject to debarment for "a reasonable period of time, as determined by the Secretary [of VA]." H.R. 1657 would amend section 8127(g) to mandate that such misrepresenting business concerns and all of their principals be subject to debarment from contracting with the VA for a period of at least five years.

Sponsor: Leahy (D - VT)

Official Title: A bill to require restitution for victims of criminal violations of the Federal Water Pollution Control Act, and for other purposes.

Status:
2/15/2011: Introduced in Senate
2/15/2011: Referred to Senate Judiciary Committee
5/19/2011: Ordered to be reported Senate Judiciary Committee
5/19/2011: Reported to Senate by Senate Judiciary Committee
5/19/2011: Placed on Senate calendar

Commentary: Section 3663A of Title 18, U.S. Code, mandates that those convicted of certain crimes pay restitution to the victims of those crimes. This bill, which is substantially similar to S. 3466 from the 111th Congress, would add a wide range of conduct prohibited by the Federal Water Pollution Control Act, commonly known as the Clean Water Act, to the list of crimes for which restitution must be ordered as part of the sentence. Because restitution would be mandatory, federal courts would not have the discretionary authority to decide in any case that justice does not require or is contrary to ordering restitution. Under 33 U.S.C 3319(c), any person who "negligently" or "knowingly" violates a number of provisions of the Clean Water Act can be prosecuted. In addition, any person who "knowingly" violates any of those provisions and "who knows at the time that he thereby places another person in imminent danger of death or serious bodily injury" is subject to increased punishment.

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