Current Status Bill Number:4061 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19970422 Primary Sponsor:Harrison All Sponsors:Harrison Drafted Document Number:kgh\15079cm.97 Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Racketeer Influenced and Corrupt Organizations Act, Crimes and Offenses
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
House 19970422 Introduced, read first time, 25 HJ
referred to Committee
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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:
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 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, attempt to commit, conspire to commit, or aiding and abetting to commit:
(a) murder (Section 16-3-10);
(b) assault and battery with intent to kill (Section 16-3-620);
(c) kidnaping (Section 16-3-910);
(d) arson (Section 16-11-110);
(e) armed robbery (Section 16-11-330);
(f) burglary (Sections 16-11-311 and 16-11-312);
(g) extortion (common law);
(h) obstruction of justice (common law);
(i) distribution or trafficking of illegal drugs or controlled substances (Sections 44-53-370 through 44-53-390, 44-53-395, 44-53-440, and 44-53-475);
(j) prostitution (Sections 16-15-90, 16-15-100, and 16-15-110);
(k) any offense contained in the following provisions that may be punished by a term of imprisonment of more than one year:
(i) Articles 1, 3, and 4 of Chapter 9, Title 16;
(ii) Chapter 13, Title 16;
(iii) Chapter 14, Title 16;
(iv) Article 3 of Chapter 15, Title 16; and
(v) Chapter 19, 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)(1) 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.
(2) If the property to be seized or forfeited is real property, the prosecuting attorney shall file a notice of pendency of action with the clerk of court in all counties where the property is located. The time for filing the notice is as provided in Section 15-11-10. The notice of pendency of action must comply with Chapter 11, Title 15 of the 1976 Code and contain:
(a) the name of the owner of the property sought to be seized or forfeited;
(b) the name of the person or enterprise against whom the action is brought;
(c) the description of the property in that county;
(d) the object of the action;
(e) the name of the county in which the action has or will be filed.
(3) Upon a showing by a preponderance of the evidence that the property in question was used in the course of, intended for the 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.
(4) If the property forfeited to the State is real property, the court shall state in the forfeiture order the officer or agency authorized to convey title by deed on behalf of the State. The deed must contain the name of the owner of the property seized or forfeited and must be indexed in the Office of the Register of Mesne Conveyance or clerk of court in the grantor's index in the name of the State and in the name of the record owner of the property seized or forfeited.
(5) The court shall order forfeitures and dispositions under this section with due provision for the rights of innocent persons and as provided in Section 16-20-60. An order for forfeiture, based upon a showing of the preponderance of evidence and a deed issued pursuant to the order, is valid and binding without regard to the conviction of a person or enterprise for corrupt business influence under Section 16-20-30(B).
(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 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 and conveyed by deed 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 and convey by deed to the property to the secured party.
(E) If the secured party does not pay the owner's equity as set forth in subsection (D), the court, upon such terms and conditions as prescribed by it, shall order that the property be sold by judicial sale. Proceeds from the sale above the amount necessary to satisfy the lien or security interest must be paid in accordance with the provisions of Section 16-20-60(G).
Section 16-20-80. 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 upon approval by the Governor.