0001| HOUSE BILL 352 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| R. DAVID PEDERSON | 0005| | 0006| | 0007| | 0008| FOR THE COURTS, CORRECTIONS AND CRIMINAL JUSTICE COMMITTEE | 0009| | 0010| AN ACT | 0011| RELATING TO CRIMINAL LAW; ENACTING THE MONEY LAUNDERING ACT; | 0012| PROVIDING CRIMINAL AND CIVIL PENALTIES; AMENDING AND ENACTING | 0013| SECTIONS OF THE NMSA 1978. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. A new section of the Criminal Code is enacted | 0017| to read: | 0018| "[NEW MATERIAL] SHORT TITLE.--Sections 1 through 5 of | 0019| this act may be cited as the "Money Laundering Act"." | 0020| Section 2. A new section of the Criminal Code is enacted | 0021| to read: | 0022| "[NEW MATERIAL] DEFINITIONS.--As used in the Money | 0023| Laundering Act: | 0024| A. "financial institution" means: | 0025| (1) a bank, credit union, trust company or | - 1 - 0001| thrift institution or an agency or branch thereof; | 0002| (2) a broker or dealer in securities or | 0003| commodities; | 0004| (3) an investment banker; | 0005| (4) an investment company; | 0006| (5) an issuer, redeemer or cashier of | 0007| traveler's checks, checks, money orders or similar | 0008| instruments; | 0009| (6) an operator of a credit card system; | 0010| (7) an insurance company; | 0011| (8) a dealer in precious metals, stones or | 0012| jewels; | 0013| (9) a pawnbroker; | 0014| (10) a loan or finance company; | 0015| (11) a travel agency; | 0016| (12) a licensed sender of money; | 0017| (13) a telegraph company; | 0018| (14) a business engaged in vehicle sales, | 0019| including automobile, airplane and boat sales; | 0020| (15) a currency exchange; | 0021| (16) a person involved in real estate | 0022| closings and settlements; or | 0023| (17) an agency or authority of a state or | 0024| local government carrying out a duty or power of a business | 0025| described in this subsection; | - 2 - 0001| B. "financial transaction" means a purchase, sale, | 0002| loan, pledge, gift, transfer, delivery or other disposition of | 0003| any monetary instrument or the movement of funds by wire or | 0004| other means; | 0005| C. "monetary instrument" means coin or currency of | 0006| the United States or any other country, traveler's checks, | 0007| personal checks, bank checks, money orders, investment | 0008| securities in bearer form or in such other form that title | 0009| passes upon delivery of the security and negotiable | 0010| instruments in bearer form or in such other form that title | 0011| passes upon delivery of the instrument; | 0012| D. "person" means an individual, corporation, | 0013| partnership, trust or estate, joint stock company, | 0014| association, syndicate, joint venture, unincorporated | 0015| organization or group or other entity; | 0016| E. "proceeds" means property that is acquired, | 0017| delivered, produced or realized, whether directly or | 0018| indirectly, by an act or omission; | 0019| F. "property" means anything of value, including | 0020| real, personal, tangible or intangible property; and | 0021| G. "specified unlawful activity" means an act or | 0022| omission, including any initiatory, preparatory or completed | 0023| offense or omission, committed for financial gain that is | 0024| punishable as a felony under the laws of New Mexico or, if the | 0025| act occurred outside New Mexico, would be punishable as a | - 3 - 0001| felony under the laws of the state in which it occurred and | 0002| under the laws of New Mexico." | 0003| Section 3. A new section of the Criminal Code is enacted | 0004| to read: | 0005| "[NEW MATERIAL] REPORTS FILED WITH THE DEPARTMENT OF | 0006| PUBLIC SAFETY--CRIMINAL PENALTIES.-- | 0007| A. A financial institution in New Mexico that is | 0008| required to file a report regarding a financial transaction | 0009| under the provisions of the federal Currency and Foreign | 0010| Transactions Reporting Act and the regulations promulgated | 0011| pursuant to that act shall file a duplicate of that report | 0012| with the department of public safety; provided, a financial | 0013| institution that makes a timely filing with an appropriate | 0014| federal agency shall be deemed to have satisfied the reporting | 0015| requirements of this subsection. | 0016| B. A person engaged in a trade or business in New | 0017| Mexico who, in the course of the trade or business, receives | 0018| more than ten thousand dollars ($10,000) in cash in one | 0019| financial transaction or two or more related financial | 0020| transactions and who is required to file a report under the | 0021| provisions of 26 U.S.C. Section 6050I and regulations | 0022| promulgated pursuant to that section shall file a duplicate of | 0023| that report with the department of public safety; provided, a | 0024| person who makes a timely filing with an appropriate federal | 0025| agency shall be deemed to have satisfied the reporting | - 4 - 0001| requirements of this subsection. | 0002| C. A financial institution, a person engaged in a | 0003| trade or business or an officer, employee or agent of either | 0004| who files or keeps a record pursuant to the provisions of this | 0005| section or who communicates or discloses information or | 0006| records pursuant to the provisions of this section shall not | 0007| be liable to its customer or to any person for any loss or | 0008| damage caused in whole or in part by the making, filing or | 0009| governmental use of the report or information contained in the | 0010| report. | 0011| D. Any person who releases information received | 0012| pursuant to the provisions of this section, except in the | 0013| proper discharge of his official duties, is guilty of a | 0014| misdemeanor. | 0015| E. A person who knowingly: | 0016| (1) fails to file a report with the | 0017| department of public safety required pursuant to the | 0018| provisions of this section is subject to a fine of not more | 0019| than ten percent of the value of the financial transaction | 0020| required to be reported or five thousand dollars ($5,000), | 0021| whichever is greater; or | 0022| (2) provides any false or inaccurate | 0023| information or knowingly conceals any material fact in a | 0024| report required pursuant to Subsections A and B of this | 0025| section is guilty of a fourth degree felony. | - 5 - 0001| F. Notwithstanding any other provision of law, a | 0002| violation of this section constitutes a separate, punishable | 0003| offense for each transaction or exemption. | 0004| G. Any report, record, information, analysis or | 0005| request obtained by the department of public safety or other | 0006| agency pursuant to the provisions of this section is not a | 0007| public record as defined in Section 14-3-2 NMSA 1978 and is | 0008| not subject to disclosure pursuant to the provisions of | 0009| Section 14-2-1 NMSA 1978. | 0010| H. A financial institution or person required to | 0011| file a report pursuant to the provisions of Subsection A or B | 0012| of this section shall, at the request of the department of | 0013| public safety, provide the department with access to a copy of | 0014| the report during the period of time that the financial | 0015| institution or person is required to maintain the report." | 0016| Section 4. A new section of the Criminal Code is enacted | 0017| to read: | 0018| "[NEW MATERIAL] PROHIBITED ACTIVITY--CRIMINAL | 0019| PENALTIES--CIVIL PENALTIES.-- | 0020| A. It is unlawful for a person who knows that the | 0021| property involved in a financial transaction is, or was | 0022| represented to be, the proceeds of a specified unlawful | 0023| activity to: | 0024| (1) conduct, structure, engage in or | 0025| participate in a financial transaction that involves the | - 6 - 0001| property, knowing that the financial transaction is designed | 0002| in whole or in part to conceal or disguise the nature, | 0003| location, source, ownership or control of the property or to | 0004| avoid a transaction reporting requirement under state or | 0005| federal law; | 0006| (2) conduct, structure, engage in or | 0007| participate in a financial transaction that involves the | 0008| property for the purpose of committing or furthering the | 0009| commission of any other specified unlawful activity; | 0010| (3) transport the property with the intent to | 0011| further a specified unlawful activity, knowing that the | 0012| transport is designed, in whole or in part, to conceal or | 0013| disguise the nature, location, source, ownership or control of | 0014| the monetary instrument or to avoid a transaction reporting | 0015| requirement under state or federal law; or | 0016| (4) make the property available to another | 0017| person by means of a financial transaction or by transporting | 0018| the property, when he knows that the property is intended for | 0019| use by the other person to commit or further the commission of | 0020| a specified unlawful activity. | 0021| B. A person who violates any provision of | 0022| Subsection A of this section is guilty of a: | 0023| (1) second degree felony if the illegal | 0024| financial transaction involves more than one hundred thousand | 0025| dollars ($100,000); | - 7 - 0001| (2) third degree felony if the illegal | 0002| financial transaction involves more than ten thousand dollars | 0003| ($10,000) but not more than one hundred thousand dollars | 0004| ($100,000); | 0005| (3) fourth degree felony if the illegal | 0006| financial transaction involves more than one thousand dollars | 0007| ($1,000) but not more than ten thousand dollars ($10,000); or | 0008| (4) misdemeanor if the illegal financial | 0009| transaction involves one thousand dollars ($1,000) or less. | 0010| C. In addition to any criminal penalty, a person | 0011| who violates any provision of Subsection A of this section is | 0012| subject to a civil penalty of three times the value of the | 0013| property involved in the transaction. | 0014| D. Nothing contained in the Money Laundering Act | 0015| precludes civil or criminal remedies provided by the | 0016| Racketeering Act or the Controlled Substances Act or by any | 0017| other New Mexico law. Those remedies are in addition to and | 0018| not in lieu of remedies provided in the Money Laundering Act." | 0019| Section 5. A new section of the Criminal Code is enacted | 0020| to read: | 0021| "[NEW MATERIAL] ATTORNEY FEES--EXCEPTION.--No provision | 0022| of the Money Laundering Act shall apply to a financial | 0023| transaction involving the bona fide fees an attorney accepts | 0024| for representing a client in a criminal investigation or a | 0025| proceeding arising from a criminal investigation." | - 8 - 0001| Section 6. Section 30-42-3 NMSA 1978 (being Laws 1980, | 0002| Chapter 40, Section 3, as amended) is amended to read: | 0003| "30-42-3. DEFINITIONS.--As used in the Racketeering Act: | 0004| A. "racketeering" means any act ~~[which]~~ that | 0005| is chargeable or indictable under the laws of New Mexico and | 0006| punishable by imprisonment for more than one year, involving | 0007| any of the following cited offenses: | 0008| (1) murder, as provided in Section 30-2-1 | 0009| NMSA 1978; | 0010| (2) robbery, as provided in Section 30-16-2 | 0011| NMSA 1978; | 0012| (3) kidnapping, as provided in Section 30-4-1 | 0013| NMSA 1978; | 0014| (4) forgery, as provided in Section 30-16-10 | 0015| NMSA 1978; | 0016| (5) larceny, as provided in Section 30-16-1 | 0017| NMSA 1978; | 0018| (6) fraud, as provided in Section 30-16-6 | 0019| NMSA 1978; | 0020| (7) embezzlement, as provided in Section | 0021| 30-16-8 NMSA 1978; | 0022| (8) receiving stolen property, as provided in | 0023| Section 30-16-11 NMSA 1978; | 0024| (9) bribery, as provided in Sections 30-24-1 | 0025| through 30-24-3 NMSA 1978; | - 9 - 0001| (10) gambling, as provided in Sections | 0002| 30-19-3, 30-19-13 and 30-19-15 NMSA 1978; | 0003| (11) illegal kickbacks, as provided in | 0004| Sections 30-41-1 and 30-41-2 NMSA 1978; | 0005| (12) extortion, as provided in Section | 0006| 30-16-9 NMSA 1978; | 0007| (13) trafficking in controlled substances, as | 0008| provided in Section 30-31-20 NMSA 1978; | 0009| (14) arson and aggravated arson, as provided | 0010| in Subsection A of Section 30-17-5 and Section 30-17-6 NMSA | 0011| 1978; | 0012| (15) promoting prostitution, as provided in | 0013| Section 30-9-4 NMSA 1978; | 0014| (16) criminal solicitation, as provided in | 0015| Section 30-28-3 NMSA 1978; | 0016| (17) fraudulent securities practices, as | 0017| provided in the New Mexico Securities Act of 1986; | 0018| (18) loan sharking, as provided in Sections | 0019| 30-43-1 through 30-43-5 NMSA 1978; ~~[and]~~ | 0020| (19) distribution of controlled substances or | 0021| controlled substance analogues, as provided ~~[for]~~ in | 0022| Sections 30-31-21 and 30-31-22 NMSA 1978; and | 0023| (20) a violation of the provisions of | 0024| Section 4 of the Money Laundering Act; | 0025| B. "person" ~~[includes any]~~ means an individual | - 10 - 0001| or entity capable of holding a legal or beneficial interest in | 0002| property; | 0003| C. "enterprise" means ~~[any]~~ a sole | 0004| proprietorship, partnership, corporation, business, labor | 0005| union, association or other legal entity or ~~[any]~~ a group | 0006| of individuals associated in fact although not a legal entity | 0007| and includes illicit as well as licit entities; and | 0008| D. "pattern of racketeering activity" means | 0009| engaging in at least two incidents of racketeering with the | 0010| intent of accomplishing any of the prohibited activities set | 0011| forth in Subsections A through D of Section 30-42-4 NMSA 1978; | 0012| provided at least one of ~~[such]~~ the incidents occurred | 0013| after the effective date of the Racketeering Act and the last | 0014| ~~[of which]~~ incident occurred within five years after the | 0015| commission of a prior incident of racketeering." | 0016| Section 7. SEVERABILITY.--If any part or application of | 0017| the Money Laundering Act is held invalid, the remainder or its | 0018| application to other situations or persons shall not be | 0019| affected. | 0020| Section 8. EFFECTIVE DATE.--The effective date of the | 0021| provisions of this act is July 1, 1998. | 0022| |