BILL REQ. #:  H-1219.1 

Read first time 02/11/2003.   Referred to Committee on Criminal Justice & Corrections.

     AN ACT Relating to trafficking in persons; amending RCW 9A.82.090, 9A.82.100, and 9A.82.120; and reenacting and amending RCW 9A.82.010.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 9A.82.010 and 2001 c 222 s 3 and 2001 c 217 s 11 are each reenacted and amended to read as follows:
     Unless the context requires the contrary, the definitions in this section apply throughout this chapter.
     (1)(a) "Beneficial interest" means:
     (i) The interest of a person as a beneficiary under a trust established under Title 11 RCW in which the trustee for the trust holds legal or record title to real property;
     (ii) The interest of a person as a beneficiary under any other trust arrangement under which a trustee holds legal or record title to real property for the benefit of the beneficiary; or
     (iii) The interest of a person under any other form of express fiduciary arrangement under which one person holds legal or record title to real property for the benefit of the other person.
     (b) "Beneficial interest" does not include the interest of a stockholder in a corporation or the interest of a partner in a general partnership or limited partnership.
     (c) A beneficial interest is considered to be located where the real property owned by the trustee is located.
     (2) "Control" means the possession of a sufficient interest to permit substantial direction over the affairs of an enterprise.
     (3) "Creditor" means a person making an extension of credit or a person claiming by, under, or through a person making an extension of credit.
     (4) "Criminal profiteering" means any act, including any anticipatory or completed offense, committed for financial gain, or an offense, including an anticipatory or completed offense, that is defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, that is chargeable or indictable under the laws of the state in which the act occurred and, if the act occurred in a state other than this state, would be chargeable or indictable under the laws of this state had the act occurred in this state and punishable as a felony and by imprisonment for more than one year, regardless of whether the act is charged or indicted, as any of the following:
     (a) Murder, as defined in RCW 9A.32.030 and 9A.32.050;
     (b) Robbery, as defined in RCW 9A.56.200 and 9A.56.210;
     (c) Kidnapping, as defined in RCW 9A.40.020 and 9A.40.030;
     (d) Forgery, as defined in RCW 9A.60.020 and 9A.60.030;
     (e) Theft, as defined in RCW 9A.56.030, 9A.56.040, 9A.56.060, and 9A.56.080;
     (f) Unlawful sale of subscription television services, as defined in RCW 9A.56.230;
     (g) Theft of telecommunication services or unlawful manufacture of a telecommunication device, as defined in RCW 9A.56.262 and 9A.56.264;
     (h) Child selling or child buying, as defined in RCW 9A.64.030;
     (i) Bribery, as defined in RCW 9A.68.010, 9A.68.020, 9A.68.040, and 9A.68.050;
     (j) Gambling, as defined in RCW 9.46.220 and 9.46.215 and 9.46.217;
     (k) Extortion, as defined in RCW 9A.56.120 and 9A.56.130;
     (l) Extortionate extension of credit, as defined in RCW 9A.82.020;
     (m) Advancing money for use in an extortionate extension of credit, as defined in RCW 9A.82.030;
     (n) Collection of an extortionate extension of credit, as defined in RCW 9A.82.040;
     (o) Collection of an unlawful debt, as defined in RCW 9A.82.045;
     (p) Delivery or manufacture of controlled substances or possession with intent to deliver or manufacture controlled substances under chapter 69.50 RCW;
     (q) Trafficking in stolen property, as defined in RCW 9A.82.050;
     (r) Leading organized crime, as defined in RCW 9A.82.060;
     (s) Money laundering, as defined in RCW 9A.83.020;
     (t) Obstructing criminal investigations or prosecutions in violation of RCW 9A.72.090, 9A.72.100, 9A.72.110, 9A.72.120, 9A.72.130, 9A.76.070, or 9A.76.180;
     (u) Fraud in the purchase or sale of securities, as defined in RCW 21.20.010;
     (v) Promoting pornography, as defined in RCW 9.68.140;
     (w) Sexual exploitation of children, as defined in RCW 9.68A.040, 9.68A.050, and 9.68A.060;
     (x) Promoting prostitution, as defined in RCW 9A.88.070 and 9A.88.080;
     (y) Arson, as defined in RCW 9A.48.020 and 9A.48.030;
     (z) Assault, as defined in RCW 9A.36.011 and 9A.36.021;
     (aa) Assault of a child, as defined in RCW 9A.36.120 and 9A.36.130;
     (bb) A pattern of equity skimming, as defined in RCW 61.34.020;
     (cc) Commercial telephone solicitation in violation of RCW 19.158.040(1);
     (dd) Trafficking in insurance claims, as defined in RCW 48.30A.015;
     (ee) Unlawful practice of law, as defined in RCW 2.48.180;
     (ff) Commercial bribery, as defined in RCW 9A.68.060;
     (gg) Health care false claims, as defined in RCW 48.80.030;
     (hh) Unlicensed practice of a profession or business, as defined in RCW 18.130.190(7);
     (ii) Improperly obtaining financial information, as defined in RCW 9.35.010; ((or))
     (jj) Identity theft, as defined in RCW 9.35.020;
     (kk) Trafficking, as defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003.
     (5) "Dealer in property" means a person who buys and sells property as a business.
     (6) "Debtor" means a person to whom an extension of credit is made or a person who guarantees the repayment of an extension of credit or in any manner undertakes to indemnify the creditor against loss resulting from the failure of a person to whom an extension is made to repay the same.
     (7) "Documentary material" means any book, paper, document, writing, drawing, graph, chart, photograph, phonograph record, magnetic tape, computer printout, other data compilation from which information can be obtained or from which information can be translated into usable form, or other tangible item.
     (8) "Enterprise" includes any individual, sole proprietorship, partnership, corporation, business trust, or other profit or nonprofit legal entity, and includes any union, association, or group of individuals associated in fact although not a legal entity, and both illicit and licit enterprises and governmental and nongovernmental entities.
     (9) "Extortionate extension of credit" means an extension of credit with respect to which it is the understanding of the creditor and the debtor at the time the extension is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.
     (10) "Extortionate means" means the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person.
     (11) "Financial institution" means any bank, trust company, savings and loan association, savings bank, mutual savings bank, credit union, or loan company under the jurisdiction of the state or an agency of the United States.
     (12) "Pattern of criminal profiteering activity" means engaging in at least three acts of criminal profiteering, one of which occurred after July 1, 1985, and the last of which occurred within five years, excluding any period of imprisonment, after the commission of the earliest act of criminal profiteering. In order to constitute a pattern, the three acts must have the same or similar intent, results, accomplices, principals, victims, or methods of commission, or be otherwise interrelated by distinguishing characteristics including a nexus to the same enterprise, and must not be isolated events. However, in any civil proceedings brought pursuant to RCW 9A.82.100 by any person other than the attorney general or county prosecuting attorney in which one or more acts of fraud in the purchase or sale of securities are asserted as acts of criminal profiteering activity, it is a condition to civil liability under RCW 9A.82.100 that the defendant has been convicted in a criminal proceeding of fraud in the purchase or sale of securities under RCW 21.20.400 or under the laws of another state or of the United States requiring the same elements of proof, but such conviction need not relate to any act or acts asserted as acts of criminal profiteering activity in such civil action under RCW 9A.82.100.
     (13) "Real property" means any real property or interest in real property, including but not limited to a land sale contract, lease, or mortgage of real property.
     (14) "Records" means any book, paper, writing, record, computer program, or other material.
     (15) "Repayment of an extension of credit" means the repayment, satisfaction, or discharge in whole or in part of a debt or claim, acknowledged or disputed, valid or invalid, resulting from or in connection with that extension of credit.
     (16) "Stolen property" means property that has been obtained by theft, robbery, or extortion.
     (17) "To collect an extension of credit" means to induce in any way a person to make repayment thereof.
     (18) "To extend credit" means to make or renew a loan or to enter into an agreement, tacit or express, whereby the repayment or satisfaction of a debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or shall be deferred.
     (19) "Traffic" means to sell, transfer, distribute, dispense, or otherwise dispose of stolen property to another person, or to buy, receive, possess, or obtain control of stolen property, with intent to sell, transfer, distribute, dispense, or otherwise dispose of the property to another person.
     (20)(a) "Trustee" means:
     (i) A person acting as a trustee under a trust established under Title 11 RCW in which the trustee holds legal or record title to real property;
     (ii) A person who holds legal or record title to real property in which another person has a beneficial interest; or
     (iii) A successor trustee to a person who is a trustee under (a)(i) or (ii) of this subsection.
     (b) "Trustee" does not mean a person appointed or acting as:
     (i) A personal representative under Title 11 RCW;
     (ii) A trustee of any testamentary trust;
     (iii) A trustee of any indenture of trust under which a bond is issued; or
     (iv) A trustee under a deed of trust.
     (21) "Unlawful debt" means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in the state in full or in part because the debt was incurred or contracted:
     (a) In violation of any one of the following:
     (i) Chapter 67.16 RCW relating to horse racing;
     (ii) Chapter 9.46 RCW relating to gambling;
     (b) In a gambling activity in violation of federal law; or
     (c) In connection with the business of lending money or a thing of value at a rate that is at least twice the permitted rate under the applicable state or federal law relating to usury.

Sec. 2   RCW 9A.82.090 and 2001 c 222 s 13 are each amended to read as follows:
     During the pendency of any criminal case charging a violation of RCW 9A.82.060 or ((a violation of RCW)) 9A.82.080, or an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, the superior court may, in addition to its other powers, issue an order pursuant to RCW 9A.82.100 (2) or (3). Upon conviction of a person for a violation of RCW 9A.82.060 or ((a violation of RCW)) 9A.82.080, or an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, the superior court may, in addition to its other powers of disposition, issue an order pursuant to RCW 9A.82.100.

Sec. 3   RCW 9A.82.100 and 2001 c 222 s 14 are each amended to read as follows:
     (1)(a) A person who sustains injury to his or her person, business, or property by an act of criminal profiteering that is part of a pattern of criminal profiteering activity, or by an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, or by a violation of RCW 9A.82.060 or 9A.82.080 may file an action in superior court for the recovery of damages and the costs of the suit, including reasonable investigative and attorney's fees.
     (b) The attorney general or county prosecuting attorney may file an action: (i) On behalf of those persons injured or, respectively, on behalf of the state or county if the entity has sustained damages, or (ii) to prevent, restrain, or remedy a pattern of criminal profiteering activity, or an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, or a violation of RCW 9A.82.060 or 9A.82.080.
     (c) An action for damages filed by or on behalf of an injured person, the state, or the county shall be for the recovery of damages and the costs of the suit, including reasonable investigative and attorney's fees.
     (d) In an action filed to prevent, restrain, or remedy a pattern of criminal profiteering activity, or an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, or a violation of RCW 9A.82.060 or 9A.82.080, the court, upon proof of the violation, may impose a civil penalty not exceeding two hundred fifty thousand dollars, in addition to awarding the cost of the suit, including reasonable investigative and attorney's fees.
     (2) The superior court has jurisdiction to prevent, restrain, and remedy a pattern of criminal profiteering, or an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, or a violation of RCW 9A.82.060 or 9A.82.080 after making provision for the rights of all innocent persons affected by the violation and after hearing or trial, as appropriate, by issuing appropriate orders.
     (3) Prior to a determination of liability, orders issued under subsection (2) of this section may include, but are not limited to, entering restraining orders or prohibitions or taking such other actions, including the acceptance of satisfactory performance bonds, in connection with any property or other interest subject to damages, forfeiture, or other restraints pursuant to this section as the court deems proper. The orders may also include attachment, receivership, or injunctive relief in regard to personal or real property pursuant to Title 7 RCW. In shaping the reach or scope of receivership, attachment, or injunctive relief, the superior court shall provide for the protection of bona fide interests in property, including community property, of persons who were not involved in the violation of this chapter, except to the extent that such interests or property were acquired or used in such a way as to be subject to forfeiture under RCW 9A.82.100(4)(f).
     (4) Following a determination of liability, orders may include, but are not limited to:
     (a) Ordering any person to divest himself or herself of any interest, direct or indirect, in any enterprise.
     (b) Imposing reasonable restrictions on the future activities or investments of any person, including prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect the laws of this state, to the extent the Constitutions of the United States and this state permit.
     (c) Ordering dissolution or reorganization of any enterprise.
     (d) Ordering the payment of actual damages sustained to those persons injured by a violation of RCW 9A.82.060 or 9A.82.080, or an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, or an act of criminal profiteering that is part of a pattern of criminal profiteering, and in the court's discretion, increasing the payment to an amount not exceeding three times the actual damages sustained.
     (e) Ordering the payment of all costs and expenses of the prosecution and investigation of a pattern of criminal profiteering, or an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, activity or a violation of RCW 9A.82.060 or 9A.82.080, civil and criminal, incurred by the state or county, including any costs of defense provided at public expense, as appropriate to the state general fund or the antiprofiteering revolving fund of the county.
     (f) Ordering forfeiture first as restitution to any person damaged by an act of criminal profiteering that is part of a pattern of criminal profiteering, or by an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, then to the state general fund or antiprofiteering revolving fund of the county, as appropriate, to the extent not already ordered to be paid in other damages, of the following:
     (i) Any property or other interest acquired or maintained in violation of RCW 9A.82.060 or 9A.82.080 to the extent of the investment of funds, and any appreciation or income attributable to the investment, from a violation of RCW 9A.82.060 or 9A.82.080.
     (ii) Any property, contractual right, or claim against property used to influence any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of, in violation of RCW 9A.82.060 or 9A.82.080.
     (iii) All proceeds traceable to or derived from an offense included in the pattern of criminal profiteering activity, or an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, and all moneys, negotiable instruments, securities, and other things of value significantly used or intended to be used significantly to facilitate commission of the offense.
     (g) Ordering payment to the state general fund or antiprofiteering revolving fund of the county, as appropriate, of an amount equal to the gain a person has acquired or maintained through an offense included in the definition of criminal profiteering.
     (5) In addition to or in lieu of an action under this section, the attorney general or county prosecuting attorney may file an action for forfeiture to the state general fund or antiprofiteering revolving fund of the county, as appropriate, to the extent not already ordered paid pursuant to this section, of the following:
     (a) Any interest acquired or maintained by a person in violation of RCW 9A.82.060 or 9A.82.080 to the extent of the investment of funds obtained from a violation of RCW 9A.82.060 or 9A.82.080 and any appreciation or income attributable to the investment.
     (b) Any property, contractual right, or claim against property used to influence any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of, in violation of RCW 9A.82.060 or 9A.82.080.
     (c) All proceeds traceable to or derived from an offense included in the pattern of criminal profiteering activity, or an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, and all moneys, negotiable instruments, securities, and other things of value significantly used or intended to be used significantly to facilitate the commission of the offense.
     (6) A defendant convicted in any criminal proceeding is precluded in any civil proceeding from denying the essential allegations of the criminal offense proven in the criminal trial in which the defendant was convicted. For the purposes of this subsection, a conviction shall be deemed to have occurred upon a verdict, finding, or plea of guilty, notwithstanding the fact that appellate review of the conviction and sentence has been or may be sought. If a subsequent reversal of the conviction occurs, any judgment that was based upon that conviction may be reopened upon motion of the defendant.
     (7) The initiation of civil proceedings under this section shall be commenced within three years after discovery of the pattern of criminal profiteering activity or after the pattern should reasonably have been discovered or, in the case of an offense that is defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, within three years after the final disposition of any criminal charges relating to the offense, whichever is later.
     (8) The attorney general or county prosecuting attorney may, in a civil action brought pursuant to this section, file with the clerk of the superior court a certificate stating that the case is of special public importance. A copy of that certificate shall be furnished immediately by the clerk to the presiding chief judge of the superior court in which the action is pending and, upon receipt of the copy, the judge shall immediately designate a judge to hear and determine the action. The judge so designated shall promptly assign the action for hearing, participate in the hearings and determination, and cause the action to be expedited.
     (9) The standard of proof in actions brought pursuant to this section is the preponderance of the evidence test.
     (10) A person other than the attorney general or county prosecuting attorney who files an action under this section shall serve notice and one copy of the pleading on the attorney general within thirty days after the action is filed with the superior court. The notice shall identify the action, the person, and the person's attorney. Service of the notice does not limit or otherwise affect the right of the state to maintain an action under this section or intervene in a pending action nor does it authorize the person to name the state or the attorney general as a party to the action.
     (11) Except in cases filed by a county prosecuting attorney, the attorney general may, upon timely application, intervene in any civil action or proceeding brought under this section if the attorney general certifies that in the attorney general's opinion the action is of special public importance. Upon intervention, the attorney general may assert any available claim and is entitled to the same relief as if the attorney general had instituted a separate action.
     (12) In addition to the attorney general's right to intervene as a party in any action under this section, the attorney general may appear as amicus curiae in any proceeding in which a claim under this section has been asserted or in which a court is interpreting RCW 9A.82.010, 9A.82.080, 9A.82.090, 9A.82.110, or 9A.82.120, or this section.
     (13) A private civil action under this section does not limit any other civil or criminal action under this chapter or any other provision. Private civil remedies provided under this section are supplemental and not mutually exclusive.
     (14) Upon motion by the defendant, the court may authorize the sale or transfer of assets subject to an order or lien authorized by this chapter for the purpose of paying actual attorney's fees and costs of defense. The motion shall specify the assets for which sale or transfer is sought and shall be accompanied by the defendant's sworn statement that the defendant has no other assets available for such purposes. No order authorizing such sale or transfer may be entered unless the court finds that the assets involved are not subject to possible forfeiture under RCW 9A.82.100(4)(f). Prior to disposition of the motion, the court shall notify the state of the assets sought to be sold or transferred and shall hear argument on the issue of whether the assets are subject to forfeiture under RCW 9A.82.100(4)(f). Such a motion may be made from time to time and shall be heard by the court on an expedited basis.
     (15) In an action brought under subsection (1)(a) and (b)(i) of this section, either party has the right to a jury trial.

Sec. 4   RCW 9A.82.120 and 2001 c 222 s 16 are each amended to read as follows:
     (1) The state, upon filing a criminal action under RCW 9A.82.060 or 9A.82.080 or for an offense defined in section 1, chapter . . . (Substitute House Bill No. 1175), Laws of 2003, whether or not committed for financial gain, or a civil action under RCW 9A.82.100, may file in accordance with this section a criminal profiteering lien. A filing fee or other charge is not required for filing a criminal profiteering lien.
     (2) A criminal profiteering lien shall be signed by the attorney general or the county prosecuting attorney representing the state in the action and shall set forth the following information:
     (a) The name of the defendant whose property or other interests are to be subject to the lien;
     (b) In the discretion of the attorney general or county prosecuting attorney filing the lien, any aliases or fictitious names of the defendant named in the lien;
     (c) If known to the attorney general or county prosecuting attorney filing the lien, the present residence or principal place of business of the person named in the lien;
     (d) A reference to the proceeding pursuant to which the lien is filed, including the name of the court, the title of the action, and the court's file number for the proceeding;
     (e) The name and address of the attorney representing the state in the proceeding pursuant to which the lien is filed;
     (f) A statement that the notice is being filed pursuant to this section;
     (g) The amount that the state claims in the action or, with respect to property or other interests that the state has requested forfeiture to the state or county, a description of the property or interests sought to be paid or forfeited;
     (h) If known to the attorney general or county prosecuting attorney filing the lien, a description of property that is subject to forfeiture to the state or property in which the defendant has an interest that is available to satisfy a judgment entered in favor of the state; and
     (i) Such other information as the attorney general or county prosecuting attorney filing the lien deems appropriate.
     (3) The attorney general or the county prosecuting attorney filing the lien may amend a lien filed under this section at any time by filing an amended criminal profiteering lien in accordance with this section that identifies the prior lien amended.
     (4) The attorney general or the county prosecuting attorney filing the lien shall, as soon as practical after filing a criminal profiteering lien, furnish to any person named in the lien a notice of the filing of the lien. Failure to furnish notice under this subsection does not invalidate or otherwise affect a criminal profiteering lien filed in accordance with this section.
     (5)(a) A criminal profiteering lien is perfected against interests in personal property in the same manner as a security interest in like property pursuant to RCW ((62A.9-302, 62A.9-303, 62A.9-304, 62A.9-305, and 62A.9-306)) 62A.9A-301 through 62A.9A-316 or as otherwise required to perfect a security interest in like property under applicable law. In the case of perfection by filing, the state shall file, in lieu of a financing statement in the form prescribed by RCW ((62A.9-402)) 62A.9A-502, a notice of lien in substantially the following form: