H 3767 Session 110 (1993-1994)
H 3767 General Bill, By Wilkins and H.H. Clyborne
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 20
to Title 16 so as to provide for the Racketeer Influenced and Corrupt
Organizations Act and to provide definitions, penalties, and seizure
procedures.
03/24/93 House Introduced and read first time HJ-7
03/24/93 House Referred to Committee on Judiciary HJ-7
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING CHAPTER 20 TO TITLE 16 SO AS TO PROVIDE FOR
THE RACKETEER INFLUENCED AND CORRUPT
ORGANIZATIONS ACT AND TO PROVIDE DEFINITIONS,
PENALTIES, AND SEIZURE PROCEDURES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"CHAPTER 20
Racketeer Influenced and
Corrupt Organizations Act
Section 16-20-10. This chapter may be cited as the Racketeer
Influenced and Corrupt Organizations Act.
Section 16-20-20. As used in this chapter:
(1) `Aggrieved person' means the State or an innocent person who
has been injured by or suffered damages as a result of a violation of this
chapter.
(2) `Documentary material' means any document, drawing,
photograph, recording, or other tangible item containing compiled data
from which information can be obtained or translated into a usable form.
(3) `Enterprise' means an individual, partnership, corporation,
association, or other legal entity, and any union or group of individuals
associated in fact, though not a legal entity.
(4) `Pattern of racketeering activity' means engaging in at least two
incidents of racketeering activity that have the same or similar intent,
result, accomplice, victim, or method of commission, or that are
otherwise interrelated by distinguishing characteristics that are not
isolated incidents. A pattern of racketeering activity requires that one
act occur after the effective date of this chapter and that the other act
occur within ten years, excluding imprisonment, after the commission
of a prior act of racketeering activity.
(5) `Racketeering activity' means to commit, to attempt to commit,
to conspire to commit a violation of, or aiding and abetting in a violation
of any of the following:
(a) murder;
(b) assault and battery with intent to kill;
(c) kidnapping;
(d) sexual exploitation of a minor, prostitution of a minor, or
sexual performances by children;
(e) robbery;
(f) arson;
(g) burglary;
(h) theft;
(i) receiving stolen property;
(j) forgery;
(k) fraud;
(l) bribery;
(m) official misconduct under Articles 3 and 4, Chapter 9, Title
16;
(n) conflict of interest;
(o) perjury;
(p) tampering with witnesses, juries, grand juries, or evidence;
(q) intimidation;
(r) prostitution;
(s) gambling;
(t) distribution or trafficking of illegal drugs or controlled
substances under Sections 44-53-370 through 44-53-390, 44-53-395,
44-53-440, and 44-53-475;
(u) offenses relating to obscene and harmful materials under
Article 3, Chapter 15 of Title 16.
Section 16-20-30. (A) It is unlawful for a person to:
(1) knowingly or intentionally receive proceeds directly or
indirectly derived from a pattern of racketeering activity, and use or
invest those proceeds or the proceeds derived from them to acquire an
interest in property or to establish or to operate an enterprise;
(2) knowingly or intentionally, through a pattern of racketeering
activity, acquire or maintain, either directly or indirectly, an interest in
or control of property or an enterprise or proceeds derived from them;
or
(3) be employed by or associated with an enterprise, and
knowingly or intentionally conduct or otherwise participate in the
activities of that enterprise through a pattern of racketeering activity.
(B) A person who violates the provisions of subsection (A) is guilty
of corrupt business influence, a felony and, upon conviction, must be
imprisoned not more than ten years or fined not more than one hundred
thousand dollars, or both. If the person engaged in conduct through
which he derived pecuniary value or which caused personal injury,
property damage, or other loss, he may be fined one hundred thousand
dollars or not more than three times the gross value of the gain or the
loss, whichever is greater, along with costs of investigation and
prosecution reasonably incurred.
Section 16-20-40. The prosecuting attorney in a county in which the
violation occurs, may bring an action in that county to enjoin a violation
of Section 16-20-30. If the court finds by a preponderance of the
evidence that a violation of Section 16-20-30 has occurred, it may:
(1) order a defendant to divest himself of any interest in any
enterprise or property;
(2) impose reasonable restrictions upon the future activities or
investments of a defendant, including prohibiting a defendant from
engaging in the same type of endeavor as the enterprise in which he was
engaged in violation of Section 16-20-30;
(3) order the dissolution or reorganization of any enterprise;
(4) order the suspension or revocation of a license, permit, or prior
approval granted to any enterprise by any agency of the State;
(5) order the forfeiture of the charter of a corporation organized
under the laws of South Carolina, or the revocation of a certificate
authorizing a foreign corporation to conduct business within the State,
upon finding that the board of directors or a managerial agent acting on
behalf of the corporation, in conducting the affairs of the corporation,
has authorized or engaged in conduct in violation of Section 16-20-30
and that, for the prevention of future criminal activity, the public interest
requires the charter of the corporation forfeited and the corporation
dissolved or the certificate revoked; and
(6) make any order or judgment that the court considers appropriate.
In any order or judgment made by the court under this section, the
judge shall make due provision for the rights of innocent persons,
including a person having any rights, title, or interest of record in any of
the property.
Section 16-20-50. (A) The prosecuting attorney in a county in
which any of the property is located, may bring an action for the
forfeiture of any property used in the course of, intended for use in the
course of, derived from, or realized through, conduct in violation of
Section 16-20-30. An action for forfeiture may be brought in a county
in which any of the property is located. Upon a showing by a
preponderance of the evidence that the property in question was used in
the course of, intended for use in the course of, derived from, or realized
through, conduct in violation of Section 16-20-30, the court, subject to
the right, title, or interest of record of any other party in the property
determined under Section 16-20-60, shall order the property forfeited to
the State, and shall specify the manner of disposition of the property
including the manner of disposition if the property is not transferable for
value. The court shall order forfeitures and dispositions under the
section with due provision for the rights of innocent persons and as
provided in Section 16-20-60.
(B) When an action is filed under subsection (A), the prosecutor may
move for an order to have property subject to forfeiture seized by a law
enforcement agency. The judge shall issue an order upon a showing of
probable cause to believe that a violation of Section 16-20-30 involving
the property in question has occurred.
Section 16-20-60. (A) Property subject to forfeiture under this
chapter must be seized by a law enforcement officer upon court order.
Seizure may be made without court order only if:
(1) the seizure is incident to a lawful arrest or search, or to an
inspection under an administration inspection warrant; or
(2) the property subject to seizure has been the subject of a prior
judgment in favor of the State in a forfeiture proceeding under this
chapter.
(B) When property is seized under subsection (A), pending forfeiture
and final disposition, the law enforcement officer making the seizure
may:
(1) place the property under seal;
(2) remove the property to a place designated by the court;
(3) require another agency authorized by law to take custody of
the property and remove it to an appropriate location; or
(4) place the property in an interest bearing special account, as
provided in this section, if the property seized is cash.
(C) Property seized under subsection (A) is not subject to replevin,
but is considered to be in the custody of the law enforcement officer
making the seizure, subject only to order of the court. However, if a
seizure of property is made in accordance with subsection (A), the
prosecuting attorney shall promptly bring an action for forfeiture under
Section 16-20-50 within:
(1) thirty days after receiving notice from a person claiming a
right, title, or interest in the property; or
(2) one hundred eighty days after the property is seized;
whichever occurs first.
(D) If an action under subsection (C) is not filed within thirty days
after receiving notice from a person claiming a right, title, or interest in
the property, the claimant is entitled to file a complaint seeking replevin,
foreclosure, or other appropriate remedy, and shall obtain immediately
a hearing on the complaint as provided in subsection (F). If an action is
not filed within one hundred eighty days after the date of the seizure,
and the property has not been previously released to an innocent person
under Section 16-20-70, the law enforcement agency whose officer
made the seizure must return the property to its owner.
(E) If property is seized under subsection (A) and the property is a
vehicle or real property, the prosecuting attorney shall serve, within
thirty days after the date the property is seized and as provided by the
South Carolina Rules of Civil Procedure, notice of seizure upon each
person whose right, title, or interest is of record in the South Carolina
Department of Highways and Public Transportation, in the county
recorder's office, or other office authorized to receive or record vehicle
or real property ownership interests.
(F) The person whose right, title, or interest is of record may at any
time file a complaint seeking replevin, foreclosure, or another
appropriate remedy, to which the State may answer in forfeiture within
the appropriate statutory period. The court shall set the matter for a
hearing promptly, and in the case of replevin or foreclosure, the court
shall set the hearing as provided by the applicable statutory provisions.
(G) All real or personal property, conveyances, and equipment of any
value used in the course of, intended for use in the course of, derived
from, or realized through conduct in violation of Section 16-20-30, when
reduced to proceeds, and any cash, negotiable instruments, and securities
which are seized and forfeited must be disposed of as follows:
(1) seventy-five percent to the law enforcement agency or
agencies;
(2) twenty percent to the prosecuting agency; and
(3) five percent must be remitted to the State Treasurer and
deposited to the credit of the general fund of the State.
(H) All forfeited monies and proceeds from the sale of forfeited
property as provided for in subsection (G) must be retained by the
governing body of the local law enforcement agency or prosecution
agency and deposited in a separate, special account in the name of each
appropriate agency. These accounts may be drawn on and used only by
the agency for which the account was established. These accounts must
not be used to supplant operating funds in the current or future budgets.
In the case of a state law enforcement agency or state prosecution
agency, monies and proceeds must be remitted to the State Treasurer
who shall establish separate, special accounts as provided in this section
for local agencies.
All expenditures from these accounts must be documented, and the
documentation made available for audit purposes and upon request by
a person under the provisions of Chapter 4 of Title 30, the Freedom of
Information Act.
Section 16-20-70. (A) If a person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract did not
know or did not have reason to believe that the property was the object
of the offense of corrupt business influence under Section 16-20-30, the
court shall determine whether the secured interest is equal to or in excess
of the appraised value of the property.
(B) Appraised value is to be determined as of the date of judgment
on a wholesale basis by:
(1) agreement between the secured party and the prosecuting
attorney; or
(2) the tax appraiser for the county in which the action is brought.
(C) If the amount due to the secured party is equal to or greater than
the appraised value of the property, the court shall order the property
released to the secured party.
(D) If the amount due the secured party is less than the appraised
value of the property, the holder of the interest may pay into the court an
amount equal to the owner's equity, which is the difference between the
appraised value and the amount of the lien, mortgage, security interest,
or interest under a conditional sales contract. Upon payment, the State
or applicable law enforcement agency, or both, shall relinquish all
claims to the property.
Section 16-20-80. (A) An aggrieved person, in addition to a
proceeding under Section 16-20-60, may bring an action for injunctive
relief from corrupt business influence in the court in the county of the
aggrieved person's residence, or in a county where any of the affected
property or the affected enterprise is located. If the court finds, through
a preponderance of the evidence, that the aggrieved is suffering from
corrupt business influence, it shall make an appropriate order for
injunctive relief. This order must be made in accordance with the
principles that govern the granting of injunctive relief from threatened
loss or damage in other civil cases, except that a showing of special or
irreparable damage to the aggrieved person is not required. The court
may order injunctive relief only after the execution of a bond by the
aggrieved person for an injunction improvidently granted, in an amount
established by the court. In addition, the court may order a temporary
restraining order or a preliminary injunction, but only after a showing of
immediate danger of significant loss or damage to the aggrieved person.
(B) An aggrieved person may bring an action against a person who
has violated Section 16-20-30 in the court in the county of the aggrieved
person's residence, or in a county where any of the affected property or
the affected enterprise is located, for damages suffered as a result of
corrupt business influence. Upon a showing by a preponderance of the
evidence that the aggrieved person has been damaged by corrupt
business influence, the court shall order the person causing the damage
through a violation of Section 16-20-30 to pay the aggrieved person:
(1) an amount equal to three times his actual damages;
(2) the costs of the action;
(3) a reasonable attorney's fee; and
(4) any punitive damages awarded by the court and allowable
under law.
(C) The defendant and the aggrieved person are entitled to a trial by
jury in an action brought under this section.
(D) In addition to any rights provided under Section 16-20-60, an
aggrieved person has a right or claim to forfeited property or to the
proceeds derived from forfeited property superior to any right or claim
the State has in the same property or proceeds.
(E) If the State is an aggrieved person, the Attorney General has
concurrent jurisdiction with the prosecuting attorney to bring an action
under this section.
Section 16-20-90. In an action brought under this chapter, the
principle of collateral estoppel operates to bar relitigation of the issues
previously determined in a criminal proceeding under Section
16-20-30."
SECTION 2. This act takes effect three months after approval by the
Governor.
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