18 U.S.C. § 2325 — Definition

Page 585 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2325 § 2323. Forfeiture, destruction, and restitution (a) CIVIL FORFEITURE.— (1) PROPERTY SUBJECT TO FORFEITURE.—The following property is subject to forfeiture to the United States Government: (A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title. (B) Any property used, or intended to be used, in any manner or part to commit or fa- cilitate the commission of an offense re- ferred to in subparagraph (A). (C) Any property constituting or derived from any proceeds obtained directly or indi- rectly as a result of the commission of an of- fense referred to in subparagraph (A). (2) PROCEDURES.—The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this sec- tion. For seizures made under this section, the court shall enter an appropriate protective order with respect to discovery and use of any records or information that has been seized. The protective order shall provide for appro- priate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used. At the conclusion of the for- feiture proceedings, unless otherwise re- quested by an agency of the United States, the court shall order that any property forfeited under paragraph (1) be destroyed, or otherwise disposed of according to law. (b) CRIMINAL FORFEITURE.— (1) PROPERTY SUBJECT TO FORFEITURE.—The court, in imposing sentence on a person con- victed of an offense under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title, shall order, in addi- tion to any other sentence imposed, that the person forfeit to the United States Govern- ment any property subject to forfeiture under subsection (a) for that offense. (2) PROCEDURES.— (A) IN GENERAL.—The forfeiture of prop- erty under paragraph (1), including any sei- zure and disposition of the property and any related judicial or administrative pro- ceeding, shall be governed by the procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), other than subsection (d) of that section. (B) DESTRUCTION.—At the conclusion of the forfeiture proceedings, the court, unless oth- erwise requested by an agency of the United States shall order that any— (i) forfeited article or component of an article bearing or consisting of a counter- feit mark be destroyed or otherwise dis- posed of according to law; and (ii) infringing items or other property described in subsection (a)(1)(A) and for- feited under paragraph (1) of this sub- section be destroyed or otherwise disposed of according to law. (c) RESTITUTION.—When a person is convicted of an offense under section 506 of title 17 or sec- tion 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title, the court, pursuant to sections 3556, 3663A, and 3664 of this title, shall order the person to pay restitution to any victim of the offense as an offense against property referred to in section 3663A(c)(1)(A)(ii) of this title. (Added Pub. L. 110–403, title II, § 206(a), Oct. 13, 2008, 122 Stat. 4262.) CHAPTER 113A—TELEMARKETING AND EMAIL MARKETING FRAUD Sec. 2325. Definition. 2326. Enhanced penalties. 2327. Mandatory restitution. 2328. Mandatory forfeiture. Editorial Notes PRIOR PROVISIONS A prior chapter 113A of part I of this title, consisting of section 2331 et seq. and relating to terrorism, was re- numbered chapter 113B of part I of this title by Pub. L. 103–322, title XXV, § 250002(a)(1), Sept. 13, 1994, 108 Stat. 2082. AMENDMENTS 2017—Pub. L. 115–70, title IV, § 402(a)(1), (b)(2), Oct. 18, 2017, 131 Stat. 1213, 1214, inserted ‘‘AND EMAIL MAR- KETING’’ after ‘‘TELEMARKETING’’ in chapter head- ing and added item 2328. § 2325. Definition In this chapter, the term ‘‘telemarketing or email marketing’’— (1) means a plan, program, promotion, or campaign that is conducted to induce— (A) purchases of goods or services; (B) participation in a contest or sweep- stakes; (C) a charitable contribution, donation, or gift of money or any other thing of value; (D) investment for financial profit; (E) participation in a business oppor- tunity; (F) commitment to a loan; or (G) participation in a fraudulent medical study, research study, or pilot study, by use of one or more interstate telephone calls, emails, text messages, or electronic in- stant messages initiated either by a person who is conducting the plan, program, pro- motion, or campaign or by a prospective pur- chaser or contest or sweepstakes participant or charitable contributor, donor, or investor; and (2) does not include the solicitation through the posting, publication, or mailing of a cata- log or brochure that— (A) contains a written description or illus- tration of the goods, services, or other op- portunities being offered; (B) includes the business address of the so- licitor; (C) includes multiple pages of written ma- terial or illustration; and (D) has been issued not less frequently than once a year, if the person making the solicitation does not solicit customers by telephone, email, text Page 586 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2326 message, or electronic instant message, but only receives interstate telephone calls, emails, text messages, or electronic instant messages initiated by customers in response to the written materials, whether in hard copy or digital format, and in response to those interstate telephone calls, emails, text mes- sages, or electronic instant messages does not conduct further solicitation. (Added Pub. L. 115–70, title IV, § 402(a)(2), Oct. 18, 2017, 131 Stat. 1213.) Editorial Notes PRIOR PROVISIONS A prior section 2325, added Pub. L. 103–322, title XXV, § 250002(a)(2), Sept. 13, 1994, 108 Stat. 2082; amended Pub. L. 107–56, title X, § 1011(d), Oct. 26, 2001, 115 Stat. 396, re- lated to definition of ‘‘telemarketing’’, prior to repeal by Pub. L. 115–70, title IV, § 402(a)(2), Oct. 18, 2017, 131 Stat. 1213. Statutory Notes and Related Subsidiaries SHORT TITLE Pub. L. 103–322, title XXV, § 250001, Sept. 13, 1994, 108 Stat. 2081, provided that: ‘‘This Act [probably should be ‘‘title’’, meaning title XXV (§§ 250001–250008) of Pub. L. 103–322, which enacted this chapter, amended sections 1029, 1341, and 3059 of this title, and enacted provisions set out as notes under this section and section 994 of Title 28, Judiciary and Judicial Procedure] may be cited as the ‘Senior Citizens Against Marketing Scams Act of 1994’.’’ INFORMATION NETWORK Pub. L. 103–322, title XXV, § 250008, Sept. 13, 1994, 108 Stat. 2088, as amended by Pub. L. 104–294, title VI, § 604(b)(29), Oct. 11, 1996, 110 Stat. 3508, provided that: ‘‘(a) HOTLINE.—The Attorney General shall, subject to the availability of appropriations, establish a national toll-free hotline for the purpose of— ‘‘(1) providing general information on tele- marketing fraud to interested persons; and ‘‘(2) gathering information related to possible viola- tions of provisions of law amended by this title [see Short Title note above]. ‘‘(b) ACTION ON INFORMATION GATHERED.—The Attor- ney General shall work in cooperation with the Federal Trade Commission to ensure that information gathered through the hotline shall be acted on in an appropriate manner.’’ § 2326. Enhanced penalties A person who is convicted of an offense under section 1028, 1029, 1341, 1342, 1343, 1344, or 1347 or section 1128B of the Social Security Act (42 U.S.C. 1320a–7b), or a conspiracy to commit such an offense, in connection with the conduct of telemarketing or email marketing— (1) shall be imprisoned for a term of up to 5 years in addition to any term of imprisonment imposed under any of those sections, respec- tively; and (2) in the case of an offense under any of those sections that— (A) victimized ten or more persons over the age of 55; or (B) targeted persons over the age of 55, shall be imprisoned for a term of up to 10 years in addition to any term of imprisonment im- posed under any of those sections, respec- tively. (Added Pub. L. 103–322, title XXV, § 250002(a)(2), Sept. 13, 1994, 108 Stat. 2082; amended Pub. L. 105–184, §§ 3, 4, June 23, 1998, 112 Stat. 520; Pub. L. 115–70, title IV, § 402(a)(3), Oct. 18, 2017, 131 Stat. 1214.) Editorial Notes AMENDMENTS 2017—Pub. L. 115–70 substituted ‘‘1344, or 1347 or sec- tion 1128B of the Social Security Act (42 U.S.C. 1320a–7b)’’ for ‘‘or 1344’’ and inserted ‘‘or email mar- keting’’ after ‘‘telemarketing’’ in introductory provi- sions. 1998—Pub. L. 105–184 inserted ‘‘, or a conspiracy to commit such an offense,’’ after ‘‘or 1344’’ in introduc- tory provisions and substituted ‘‘shall’’ for ‘‘may’’ in two places. § 2327. Mandatory restitution (a) IN GENERAL.—Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution to all victims of any of- fense for which an enhanced penalty is provided under section 2326. (b) SCOPE AND NATURE OF ORDER.— (1) DIRECTIONS.—The order of restitution under this section shall direct the defendant to pay to the victim (through the appropriate court mechanism) the full amount of the vic- tim’s losses as determined by the court pursu- ant to paragraph (2). (2) ENFORCEMENT.—An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A. (3) DEFINITION.—For purposes of this sub- section, the term ‘‘full amount of the victim’s losses’’ means all losses suffered by the victim as a proximate result of the offense. (4) ORDER MANDATORY.—(A) The issuance of a restitution order under this section is manda- tory. (B) A court may not decline to issue an order under this section because of— (i) the economic circumstances of the de- fendant; or (ii) the fact that a victim has, or is enti- tled to, receive compensation for his or her injuries from the proceeds of insurance or any other source. (c) VICTIM DEFINED.—In this section, the term ‘‘victim’’ has the meaning given that term in section 3663A(a)(2). (Added Pub. L. 103–322, title XXV, § 250002(a)(2), Sept. 13, 1994, 108 Stat. 2082; amended Pub. L. 104–132, title II, § 205(e), Apr. 24, 1996, 110 Stat. 1232; Pub. L. 104–294, title VI, § 601(n), Oct. 11, 1996, 110 Stat. 3502; Pub. L. 105–184, § 5, June 23, 1998, 112 Stat. 520.) Editorial Notes AMENDMENTS 1998—Subsec. (a). Pub. L. 105–184, § 5(1), substituted ‘‘to all victims of any offense for which an enhanced penalty is provided under section 2326’’ for ‘‘for any of- fense under this chapter’’. Subsec. (c). Pub. L. 105–184, § 5(2), added subsec. (c) and struck out former subsec. (c) which read as follows: