II
Calendar No. 206
105TH CONGRESS
1ST SESSION
H. R. 1847
IN THE SENATE OF THE UNITED STATES
JULY 9, 1997
Received; read twice and referred to the Committee on the Judiciary
OCTOBER 9, 1997
Reported by Mr. HATCH, with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
AN ACT
To improve the criminal law relating to fraud against
consumers.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Telemarketing Fraud
Prevention Act of 1997’’.
SEC. 2. FORFEITURE OF FRAUD PROCEEDS.
Section 982(a) of title 18, United States Code, is
amended by adding at the end the following:
HR 1847 RS
‘‘(8) The Court, in sentencing a defendant for an of-
fense under section 2326, shall order that the defendant
forfeit to the United States any real or personal prop-
erty—
‘‘(A) used or intended to be used to commit or
to promote the commission of such offense, if the
court in its discretion so determines, taking into con-
sideration the nature, scope, and proportionality of
the use of the property in the offense; and
‘‘(B) constituting, derived from, or traceable to
the gross proceeds that the defendant obtained di-
rectly or indirectly as a result of the offense.’’.
SEC. 3. SENTENCING GUIDELINES CHANGES.
Pursuant to its authority under section 994(p) of title
28, United States Code, the United States Sentencing
Commission shall review and amend the sentencing guide-
lines to provide a sentencing enhancement for any offense
listed in section 2326 of title 18, United States Code—
(1) by at least 4 levels if the circumstances au-
thorizing an additional term of imprisonment under
section 2326(1) are present; and
(2) by at least 8 levels if the circumstances au-
thorizing an additional term of imprisonment under
section 2326(2) are present.
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SEC. 4. INCREASED PUNISHMENT FOR USE OF FOREIGN
LOCATION TO EVADE PROSECUTION.
Pursuant to its authority under section 994(p) of title
28, United States Code, the United States Sentencing
Commission shall amend the sentencing guidelines to in-
crease the offense level for any fraud offense by at least
2 levels if the defendant conducted activities to further
the fraud from a foreign country.
SEC. 5. SENTENCING COMMISSION DUTIES.
The Sentencing Commission shall ensure that the
sentences, guidelines, and policy statements for offenders
convicted of offenses described in sections 3 and 4 are ap-
propriately severe and reasonably consistent with other
relevant directives and with other guidelines.
SEC. 6. CLARIFICATION OF ENHANCEMENT OF PENALTIES.
Section 2327(a) of title 18, United States Code, is
amended by striking ‘‘under this chapter’’ and inserting
‘‘for which an enhanced penalty is provided under section
2326 of this title’’.
SEC. 7. ADDITION OF CONSPIRACY OFFENSES TO SECTION
2326 ENHANCEMENT.
Section 2326 of title 18, United States Code, is
amended by inserting ‘‘, or a conspiracy to commit such
an offense,’’ after ‘‘or 1344’’.
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SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Telemarketing Fraud
Prevention Act of 1997’’.
SEC. 2. CRIMINAL FORFEITURE OF FRAUD PROCEEDS.
Section 982 of title 18, United States Code, is amend-
ed—
(1) in subsection (a)—
(A) by redesignating the second paragraph
designated as paragraph (6) as paragraph (7);
and
(B) by adding at the end the following:
‘‘(8) The Court, in sentencing a defendant convicted
of an offense under section 1028, 1029, 1341, 1342, 1343,
or 1344, or of a conspiracy to commit such an offense, if
the offense involves telemarketing (as that term is defined
in section 2325), shall order that the defendant forfeit to
the United States any real or personal property—
‘‘(A) used or intended to be used to commit, to
facilitate, or to promote the commission of such of-
fense; and
‘‘(B) constituting, derived from, or traceable to
the gross proceeds that the defendant obtained directly
or indirectly as a result of the offense.’’; and
(2) in subsection (b)(1)(A), by striking ‘‘(a)(1) or
(a)(6)’’ and inserting ‘‘(a)(1), (a)(6), or (a)(8)’’.
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SEC. 3. PENALTY FOR TELEMARKETING FRAUD.
Section 2326 of title 18, United States Code, is amend-
ed by striking ‘‘may’’ each place it appears and inserting
‘‘shall’’.
SEC. 4. ADDITION OF CONSPIRACY OFFENSES TO SECTION
2326 ENHANCEMENT.
Section 2326 of title 18, United States Code, is amend-
ed by inserting ‘‘, or a conspiracy to commit such an of-
fense,’’ after ‘‘or 1344’’.
SEC. 5. CLARIFICATION OF MANDATORY RESTITUTION.
Section 2327 of title 18, United States Code, is amend-
ed—
(1) in subsection (a), by striking ‘‘for any offense
under this chapter’’ and inserting ‘‘to all victims of
any offense for which an enhanced penalty is pro-
vided under section 2326’’; and
(2) by striking subsection (c) and inserting the
following:
‘‘(c) VICTIM DEFINED.—In this section, the term ‘vic-
tim’ has the meaning given that term in section
3663A(a)(2).’’.
SEC. 6. AMENDMENT OF FEDERAL SENTENCING GUIDE-
LINES.
(a) DEFINITION OF TELEMARKETING.—In this section,
the term ‘‘telemarketing’’ has the meaning given that term
in section 2326 of title 18, United States Code.
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efforts, such as perpetrating the offense from outside
the United States;
(3) provide an additional appropriate sentencing
enhancement for cases in which a large number of
vulnerable victims, including but not limited to vic-
tims described in section 2326(2) of title 18, United
States Code, are affected by a fraudulent scheme or
schemes;
(4) ensure that guidelines and policy statements
promulgated or amended pursuant to subsection
(b)(1) are reasonably consistent with other relevant
statutory directives to the Commission and with other
guidelines;
(5) account for any aggravating or mitigating
circumstances that might justify upward or down-
ward departures;
(6) ensure that the guidelines adequately meet
the purposes of sentencing as set forth in section
3553(a)(2) of title 18, United States Code; and
(7) take any other action the Commission consid-
ers necessary to carry out this section.
(d) EMERGENCY AUTHORITY.—The Commission shall
promulgate the guidelines or amendments provided for
under this subsection as soon as practicable, and in any
event not later than 120 days after the date of enactment
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of the Telemarketing Fraud Prevention Act of 1997, in ac-
cordance with the procedures set forth in section 21(a) of
the Sentencing Reform Act of 1987, as though the authority
under that authority had not expired, except that the Com-
mission shall submit to Congress the emergency guidelines
or amendments promulgated under this section, and shall
set an effective date for those guidelines or amendments not
earlier than 30 days after their submission to Congress.