February 10, 2010, Introduced by Senators BASHAM, HUNTER, CLARKE, CLARK-COLEMAN, ANDERSON, THOMAS, KAHN and GARCIA and referred to the Committee on Judiciary.
A bill to amend 1931 PA 328, entitled
"The Michigan penal code,"
by amending sections 159g, 159m, and 159q (MCL 750.159g, 750.159m,
and 750.159q), section 159g as amended by 2002 PA 124 and sections
159m and 159q as added by 1995 PA 187.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 159g. As used in this chapter, "racketeering" means
committing, attempting to commit, conspiring to commit, or aiding
or abetting, soliciting, coercing, or intimidating a person to
commit an offense for financial gain, involving any of the
following:
(a) A felony violation of section 8 of the tobacco products
tax act, 1993 PA 327, MCL 205.428, concerning tobacco product
taxes, or section 9 of former 1947 PA 265, concerning cigarette
taxes.
(b) A violation of section 11151(3) of the natural resources
and environmental protection act, 1994 PA 451, MCL 324.11151, or
section 48(3) of former 1979 PA 64, concerning felonious disposal
of hazardous waste.
(c)
A felony violation of part 74 or section 17766a of the
public
health code, 1978 PA 368, MCL 333.7401 to 333.7461, and
333.17766a,
concerning controlled substances. or
androgenic
anabolic
steroids.
(d) A felony violation of section 60 of the social welfare
act, 1939 PA 280, MCL 400.60, concerning welfare fraud.
(e) A violation of section 4, 5, or 7 of the medicaid false
claim act, 1977 PA 72, MCL 400.604, 400.605, and 400.607,
concerning medicaid fraud.
(f) A felony violation of section 18 of the Michigan gaming
control
and revenue act, the Initiated Law of 1996 IL 1, MCL
432.218, concerning the business of gaming.
(g) A violation of section 409 of the uniform securities act,
1964 PA 265, MCL 451.809, or, beginning October 1, 2009, a
violation of section 508 of the uniform securities act (2002), 2008
PA 551, MCL 451.2508, concerning securities fraud.
(h) A violation of section 5 or 7 of 1978 PA 33, MCL 722.675
and 722.677, concerning the display or dissemination of obscene
matter to minors.
(i) A violation of section 49, concerning animal fighting.
(j) (i)
A felony violation of section 72,
73, 74, 75, or 77,
concerning arson.
(k) (j)
A violation of section 93, 94, 95,
or 96, concerning
bank bonds, bills, notes, and property.
(l) (k)
A violation of section 110 or 110a,
concerning breaking
and entering or home invasion.
(m) (l) A
violation of section 117, 118, 119, 120, 121, or 124,
concerning bribery.
(n) (m)
A violation of section 120a,
concerning jury
tampering.
(o) (n)
A violation of section 145c,
concerning child sexually
abusive activity or material.
(p) (o)
A felony violation of section 157n,
157p, 157q, 157r,
157s, 157t, or 157u, concerning credit cards or financial
transaction devices.
(q) (p)
A felony violation of section 174,
175, 176, 180, 181,
or 182, concerning embezzlement.
(r) (q)
A felony violation of chapter
XXXIII, concerning
explosives and bombs.
(s) (r)
A violation of section 213,
concerning extortion.
(t) (s)
A felony violation of section 218,
concerning false
pretenses.
(u) (t)
A felony violation of section
223(2), 224(1)(a), (b),
or (c), 224b, 224c, 224e(1), 226, 227, 234a, 234b, or 237a,
concerning firearms or dangerous weapons.
(v) (u)
A felony violation of chapter XLI,
concerning forgery
and counterfeiting.
(w) (v)
A violation of section 271, 272,
273, or 274,
concerning securities fraud.
(x) (w)
A violation of section 300a,
concerning food stamps or
coupons or access devices.
(y) (x)
A violation of section 301, 302,
303, 304, 305, 305a,
or 313, concerning gambling.
(z) (y)
A violation of section 316 or 317,
concerning murder.
(aa) (z)
A violation of section 330, 331, or
332, concerning
horse racing.
(bb) (aa)
A violation of section 349, 349a,
or 350, concerning
kidnapping.
(cc) (bb)
A felony violation of chapter LII, concerning
larceny.
(dd) (cc)
A violation of section 411k,
concerning money
laundering.
(ee) (dd)
A violation of section 422, 423,
424, or 425,
concerning perjury or subornation of perjury.
(ff) (ee)
A violation of section 452, 455,
457, 458, or 459,
concerning prostitution.
(gg) (ff)
A violation of section 529, 529a,
530, or 531,
concerning robbery.
(hh) (gg)
A felony violation of section 535,
535a, or 536a,
concerning stolen, embezzled, or converted property.
(ii) (hh)
A violation of chapter LXXXIII-A,
concerning
terrorism.
(jj) (ii)
A violation of section 5 of 1984 PA
343, MCL
752.365, concerning obscenity.
(kk) (jj)
An offense committed within this
state or another
state
that constitutes racketeering activity as defined in section
1961(1)
of title 18 of the United States Code, 18 U.S.C. USC 1961.
(ll) (kk)
An offense committed within this
state or another
state in violation of a law of the United States that is
substantially similar to a violation listed in subdivisions (a)
through
(ii) (jj).
(mm) (ll) An
offense committed in another state in violation of
a statute of that state that is substantially similar to a
violation
listed in subdivisions (a) through (ii) (jj).
Sec. 159m. (1) Except as otherwise provided in this section,
all real, personal, or intangible property of a person convicted of
a violation of section 159i that is the proceeds of racketeering,
the substituted proceeds of racketeering, or an instrumentality of
racketeering, is subject to civil in rem forfeiture to a local unit
of government or the state under this section and sections 159n to
159q.
(2)
Real property that is the primary residence of the spouse
of
the owner is not subject to civil in rem forfeiture under this
section
and sections 159n to 159q, unless that spouse had prior
actual
knowledge of, and consented to and participated in the
commission
of, the racketeering activity. Real
property that is the
primary residence of a dependent minor child of the owner is not
subject to civil in rem forfeiture under this section and sections
159n to 159q.
(3) Property is not subject to civil in rem forfeiture if
either of the following circumstances exists:
(a) The owner of the property did not have prior actual
knowledge of the commission of the racketeering activity.
(b) The owner of the property served notice of the commission
of the crime upon an appropriate law enforcement agency.
(4) The civil in rem forfeiture of property encumbered by a
security interest is subject to the interest of the holder of the
security interest who did not have prior actual knowledge of the
racketeering activity.
(5) The civil in rem forfeiture of property encumbered by an
unpaid balance on a land contract is subject to the interest of the
land contract vendor who did not have prior actual knowledge of the
racketeering activity.
(6) Reasonable attorney fees for representation in an action
under this chapter are not subject to civil in rem forfeiture under
this chapter.
Sec. 159q. (1) At the civil in rem forfeiture proceeding, the
court shall act as trier of fact. The prosecuting agency has the
burden of proving both of the following by clear and convincing
evidence:
(a) The property is subject to civil in rem forfeiture under
section 159m.
(b) The person claiming an ownership interest in the property
had prior actual knowledge of the commission of an offense listed
in the definition of racketeering.
(2) At the civil in rem forfeiture proceeding, the person
claiming an ownership interest in the property has the burden of
proving, by a preponderance of the evidence, that he or she served
notice of the commission of the crime upon an appropriate law
enforcement agency.
(3) At the civil in rem forfeiture proceeding, the prosecuting
agency has the burden of proving, by a preponderance of the
evidence, that a person claiming a security interest in the
property or a person claiming an interest as a land contract vendor
had prior actual knowledge of the commission of the racketeering
activity.
(4) If the prosecuting agency fails to meet the burden of
proof under subsection (1), or if the person claiming an ownership
interest in the property meets his or her burden of proof under
subsection (2), the property shall be returned to the owner within
28 days after a written order is entered to return the property,
unless
an appellate court stays the order. In addition, the
prosecuting
agency shall reimburse the owner for reasonable
attorney
fees and damages related to towing costs, storage fees and
expenses,
foreclosure costs, and other similar expenses.
(5) If the prosecuting agency meets the burden of proof under
subsection (1) and the person claiming an ownership interest in the
property does not meet the burden of proof under subsection (2),
the
property shall be disposed of pursuant to under section 159r.
(6) Within 7 days after personal property is returned to the
owner, or a lien filed against real property or a motor vehicle is
discharged, the prosecuting agency that gave notice of the seizure
of the property and the intent to forfeit and dispose of the
property
pursuant to under section 159o shall give notice to the
persons who received notice pursuant to section 159o that the
property has been returned to the owner or that the lien has been
discharged.
(7) The notice required under subsection (6) shall be a
written notice delivered to the person or sent to the person by
certified mail. If the name and address of the person are not
reasonably ascertainable or delivery of the notice cannot
reasonably be accomplished, the notice shall be published in a
newspaper of general circulation in the county in which the
personal property was seized or the real property is located for 10
successive publishing days.
(8) A defendant convicted in a criminal proceeding is estopped
from subsequently denying in a civil action the essential
allegations of the criminal offense of which he or she was
convicted.
(9) The testimony of a person at a civil in rem forfeiture
proceeding held under this chapter is not admissible against him or
her, except for the purpose of impeachment, in a criminal
proceeding other than a criminal prosecution for perjury. The
testimony of a person at a civil in rem forfeiture proceeding held
under this chapter does not waive the person's constitutional right
against self-incrimination.