HOUSE BILL No. 5656

 

December 8, 2009, Introduced by Reps. Espinoza, Polidori, Hansen, Byrnes, Tlaib and Neumann 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.