[105th Congress Public Law 184]
[From the U.S. Government Printing Office]
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[DOCID: f:publ184.105]
[[Page 519]]
TELEMARKETING FRAUD PREVENTION ACT OF 1998
[[Page 112 STAT. 520]]
Public Law 105-184
105th Congress
An Act
To improve the criminal law relating to fraud against
consumers. <<NOTE: June 23, 1998 - [H.R. 1847]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Telemarketing
Fraud Prevention Act of 1998.>>
SECTION 1. <<NOTE: 18 USC 1 note.>> SHORT TITLE.
This Act may be cited as the ``Telemarketing Fraud Prevention Act of
1998''.
SEC. 2. CRIMINAL FORFEITURE OF FRAUD PROCEEDS.
Section 982 of title 18, United States Code, is amended--
(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) <<NOTE: Courts.>> 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 offense; 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)''.
SEC. 3. PENALTY FOR TELEMARKETING FRAUD.
Section 2326 of title 18, United States Code, is amended 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 amended by
inserting ``, or a conspiracy to commit such an offense,'' after ``or
1344''.
SEC. 5. CLARIFICATION OF MANDATORY RESTITUTION.
Section 2327 of title 18, United States Code, is amended--
(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 provided under section 2326''; and
(2) by striking subsection (c) and inserting the following:
[[Page 112 STAT. 521]]
``(c) Victim Defined.--In this section, the term `victim' has the
meaning given that term in section 3663A(a)(2).''.
SEC. 6. <<NOTE: 28 USC 994 note.>> AMENDMENT OF FEDERAL SENTENCING
GUIDELINES.
(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.
(b) Directive To Sentencing Commission.--Pursuant to its authority
under section 994(p) of title 28, United States Code, and in accordance
with this section, the United States Sentencing Commission shall--
(1) promulgate Federal sentencing guidelines or amend
existing sentencing guidelines (and policy statements, if
appropriate) to provide for substantially increased penalties
for persons convicted of offenses described in section 2326 of
title 18, United States Code, as amended by this Act, in
connection with the conduct of telemarketing; and
(2) submit to Congress an explanation of each action taken
under paragraph (1) and any additional policy recommendations
for combating the offenses described in that paragraph.
(c) Requirements.--In carrying out this section, the
Commission shall--
(1) ensure that the guidelines and policy statements
promulgated or amended pursuant to subsection (b)(1) and any
recommendations submitted thereunder reflect the serious nature
of the offenses;
(2) provide an additional appropriate sentencing
enhancement, if the offense involved sophisticated means,
including but not limited to sophisticated concealment 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 victims 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 downward 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 considers
necessary to carry out this section.
(d) <<NOTE: Deadlines.>> 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 the enactment of the Telemarketing Fraud
Prevention Act of 1998, in accordance 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
Commission 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.
[[Page 112 STAT. 522]]
SEC. 7. FALSE ADVERTISING OR MISUSE OF NAME TO INDICATE UNITED STATES
MARSHALS SERVICE.
Section 709 of title 18, United States Code, is amended by inserting
after the thirteenth undesignated paragraph the following:
``Whoever, except with the written permission of the Director of the
United States Marshals Service, knowingly uses the words `United States
Marshals Service', `U.S. Marshals Service', `United States Marshal',
`U.S. Marshal', `U.S.M.S.', or any colorable imitation of any such
words, or the likeness of a United States Marshals Service badge, logo,
or insignia on any item of apparel, in connection with any
advertisement, circular, book, pamphlet, software, or other publication,
or any play, motion picture, broadcast, telecast, or other production,
in a manner that is reasonably calculated to convey the impression that
the wearer of the item of apparel is acting pursuant to the legal
authority of the United States Marshals Service, or to convey the
impression that such advertisement, circular, book, pamphlet, software,
or other publication, or such play, motion picture, broadcast, telecast,
or other production, is approved, endorsed, or authorized by the United
States Marshals Service;''.
SEC. 8. DISCLOSURE OF CERTAIN RECORDS FOR INVESTIGATIONS OF
TELEMARKETING FRAUD.
Section 2703(c)(1)(B) of title 18, United States Code, is
amended--
(1) by striking ``or'' at the end of clause (ii);
(2) by striking the period at the end of clause (iii) and
inserting ``; or''; and
(3) by adding at the end the following:
``(iv) submits a formal written request relevant to a law
enforcement investigation concerning telemarketing fraud for the
name, address, and place of business of a subscriber or customer
of such provider, which subscriber or customer is engaged in
telemarketing (as such term is defined in section 2325 of this
title).''.
Approved June 23, 1998.
LEGISLATIVE HISTORY--H.R. 1847:
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HOUSE REPORTS: No. 105-158 (Comm. on the Judiciary).
CONGRESSIONAL RECORD:
Vol. 143 (1997):
July 8, considered and passed House.
Nov. 9, considered and passed
Senate, amended.
Vol. 144 (1998):
June 16, House concurred in Senate
amendment.
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