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