[House Report 112-324]
[From the U.S. Government Publishing Office]
112th Congress Rept. 112-324
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
DRUG TRAFFICKING SAFE HARBOR ELIMINATION ACT
OF 2011
_______
December 12, 2011.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 313]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 313) to amend the Controlled Substances Act to
clarify that persons who enter into a conspiracy within the
United States to possess or traffic illegal controlled
substances outside the United States, or engage in conduct
within the United States to aid or abet drug trafficking
outside the United States, may be criminally prosecuted in the
United States, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Performance Goals and Objectives................................. 10
Advisory on Earmarks............................................. 10
Section-by-Section Analysis...................................... 10
Changes in Existing Law Made by the Bill, as Reported............ 11
Dissenting Views................................................. 12
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Drug Trafficking Safe Harbor
Elimination Act of 2011''.
SEC. 2. AMENDMENTS TO THE CONTROLLED SUBSTANCES ACT TO CLARIFY
CONSPIRACIES CONDUCTED WITHIN THE UNITED STATES MAY
BE CRIMINALLY PROSECUTED IN THE UNITED STATES.
Section 406 of the Controlled Substances Act (21 U.S.C. 846) is
amended by--
(1) inserting ``(a)'' before ``Any''; and
(2) inserting at the end the following:
``(b) Whoever, within the United States, conspires with one or more
persons, or aids or abets one or more persons, regardless of where such
other persons are located, to engage in conduct at any place outside
the United States that would constitute a violation of this title,
other than a violation of section 404(a), if committed within the
United States, shall be subject to the same penalties that would apply
to such conduct if it were to occur within the United States.''.
Purpose and Summary
H.R. 313 gives extraterritorial application to the Federal
drug conspiracy statute. The legislation clarifies that those
persons who conspire within the United States to possess or
traffic illegal controlled substances outside the United
States, or engage in conduct within the United States to aid or
abet drug trafficking outside the United States, may be
criminally prosecuted in the United States. The crime of simple
possession of a controlled substance is excluded from
application of the legislation.
Background and Need for the Legislation
This bill closes a loophole in the Controlled Substances
Act and clarifies Congress' intent that the drug trafficking
conspiracy statute be given extraterritorial application. Drug
traffickers are currently allowed to conspire with impunity in
the United States and evade criminal prosecution when their
goal is to traffic drugs outside of the United States.
A Federal criminal case demonstrates how the loophole is
being exploited. In 1998, two individuals conspired with
members of a large Colombian drug trafficking organization
which included a Saudi Arabian prince. The goal of the
conspiracy was to traffic 2,000 kilograms of cocaine, worth
over $100 million, from South America to Europe. Several
meetings among the co-conspirators occurred in Miami, Florida
and elsewhere around the world. Specifically, while in Miami,
they planned in detail to purchase the cocaine in Colombia and
ship it to Europe for distribution. Ultimately, the prince used
his royal jet under diplomatic cover to transport the cocaine
from Venezuela to Paris, France. Although part of the cocaine
was seized by law enforcement authorities in France and Spain,
about 1,000 kilograms of cocaine were distributed and sold in
the Netherlands, Italy and elsewhere in Europe.
In 2005, two of the conspirators were convicted of drug
trafficking and conspiracy in Federal district court in Florida
and each sentenced to about 24 years in prison. However, in
2007 the U.S. Court of Appeals for the Eleventh Circuit vacated
their convictions.\1\ The court reasoned that there is no
violation of Federal law when, absent Congressional intent to
the contrary, the object of the conspiracy is to possess and
distribute controlled substances outside of the United States
even though meetings and negotiations in furtherance of the
crime occurred on U.S. soil.
---------------------------------------------------------------------------
\1\United States v. Lopez-Vanegas, 493 F.3d 1305 (11th Cir. 2007).
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Crime is usually territorial. It is a matter of law
enforcement specific to the place where the crime occurs.
However, drug trafficking is inherently global in nature, now
more than ever. Two other provisions of the Controlled
Substances Act are explicitly extraterritorial: 21 U.S.C.
Sec. 959 (foreign manufacture of drugs for U.S. importation)
and Sec. 960a (narco-terrorism). In addition, 18 U.S.C.
Sec. 1956, the primary anti-money laundering statute used in
drug trafficking cases, is extraterritorial. The Federal
Maritime Drug Law Enforcement Act was enacted in response to
the increasing use of vessels, submersibles and semi-
submersibles to traffic drugs around the world. In passing that
law, Congress stated ``that trafficking in controlled
substances aboard vessels is a serious international problem
and is universally condemned. Moreover, such trafficking
presents a specific threat to the security and societal well-
being of the United States.''
There are hundreds of Federal laws which are expressly
extraterritorial. Extradition treaties among countries around
the world are often used to effectuate the extraterritorial
laws of nations. The United States has taken the lead in
worldwide narcotics control over the past several decades. Now
is not the time for the U.S. to provide a safe haven for drug
traffickers to plot their illicit, international operations.
The United States is a signatory to two leading
international drug treaties: the 1961 Single Convention on
Narcotic Drugs and the 1971 Convention on Psychotropic
Substances. The first treaty has been extremely influential in
standardizing national drug control laws. The Controlled
Substances Act was intended to fulfill our treaty obligations.
As of January 2005, this treaty had 180 parties. The second
treaty was designed to control psychotropic drugs which were
not within the scope of the first treaty. This treaty,
supplemented by subsequent treaty signed in 1988, includes
provisions to end international drug trafficking, associated
money laundering and other drug-related crimes.
The Committee adopted an amendment to expressly exclude the
crime of simple possession of a controlled substance from the
extraterritorial application of the drug conspiracy statute.
Consideration has been given to situations where one or more
persons in the United States may discuss the simple possession
or personal use of drugs outside of the United States with
individuals in or outside of the United States. The intent to
criminalize conspiracies to traffic drugs both in and outside
of the United States should not extend to conspiracies limited
to the simple possession of personal use quantities when there
is no concurrent intent to distribute or re-sell those drugs.
Opponents argue that the new conspiracy provision should
only apply to cases in which the conduct at issue violates not
just U.S. law but the laws of the countries in which the drug
trafficking occurs. The Lopez-Vanegas case illustrates the
difficulty this requirement would present to the government.
The 2,000 kilograms of cocaine originated in Colombia. It was
transported to Venezuela and Saudi Arabia before arriving in
Paris. Then, part of the cocaine was transported to Spain. The
rest of it was sold in Italy, the Netherlands and elsewhere in
Europe. The members of this drug trafficking conspiracy met in
Miami, Florida, Aruba, Spain and Saudi Arabia. The proceeds of
the sale of the cocaine were laundered through Switzerland.
Under this requirement, the government would have been
required to prove that the conduct alleged in the conspiracy
was criminal in more than ten countries around the world.
Despite some creative legal interpretation by our colleagues on
the other side of the aisle, the government would not meet this
burden simply by proving illegality in one country. A simple
plain meaning interpretation of the amendment offered by Mr.
Scott of Virginia leaves no doubt that the government would be
required to prove illegality in every country in which any drug
trafficking conduct occurred.
As noted above, Congress has enacted numerous
extraterritorial statutes and in most of those instances, has
done so without regard for the legality of the conduct in the
foreign country or countries in which it occurs.\2\
Interpretation and application of foreign law or mutual
criminality is currently and more appropriately addressed in
the extradition process.
---------------------------------------------------------------------------
\2\See, e.g., 18 U.S.C. Sec. 1091 (genocide), ch. 113B (terrorism),
ch. 113C (torture), ch. 118 (war crimes), Sec. 2442 (recruitment or use
of child soldiers).
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Opponents also assert that H.R. 313 should not apply to
distribution offenses. There are essentially two types of
Federal offenses relating to the possession of illegal drugs:
simple possession and possession with intent to distribute.
Simple possession includes the control or ownership of amounts
to be used by one individual. Possession with intent to
distribute encompasses the re-sale of drugs to others as well
as the cultivation, manufacture, and importation of drugs.
Although distribution offenses carry lower penalties than
Federal drug trafficking offenses,\3\ they still involve the
sale of large quantities of illegal drugs--quantities that well
exceed those that would constitute simple possession under
Federal law.
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\3\See 21 U.S.C. Sec. 841 et seq.
---------------------------------------------------------------------------
A carve-out of possession with intent to distribute
offenses would exempt significant drug distributors from the
reach of the drug conspiracy statute and afford them continuing
safe harbor protections that this bill intends to eliminate.
Hearings
The Committee on the Judiciary held no hearings on H.R.
313.
Committee Consideration
On October 6, 2011, the Committee met in open session and
ordered the bill H.R. 313 favorably reported with an amendment,
by a recorded vote of 20-7, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 313.
1. An amendment by Mr. Scott to limit coverage of the bill
to conduct which is a criminal offense in the place where it
occurs. Failed 11 to 13.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino......................................................
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle......................................................
Mr. Amodei...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley.....................................................
Ms. Chu.........................................................
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
[Vacant]........................................................
-----------------------------------------------
Total....................................................... 11 13
----------------------------------------------------------------------------------------------------------------
2. An amendment by Mr. Scott to limit coverage of the bill
to the most serious of drug crimes. Failed 11 to 12.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino......................................................
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle......................................................
Mr. Amodei...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley.....................................................
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
[Vacant]........................................................
-----------------------------------------------
Total....................................................... 11 12
----------------------------------------------------------------------------------------------------------------
3. An amendment by Ms. Jackson Lee to require corroborating
evidence in order to convict someone of a drug offense. Failed
9 to 17.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Amodei...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen.......................................................
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley.....................................................
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
[Vacant]........................................................
-----------------------------------------------
Total....................................................... 9 17
----------------------------------------------------------------------------------------------------------------
4. Motion to report H.R. 313 favorably, as amended. Passed
20 to 7.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Amodei...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen.......................................................
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley.....................................................
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
[Vacant]........................................................
-----------------------------------------------
Total....................................................... 20 7
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 313, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, December 8, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Smith: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 313, the ``Drug
Trafficking Safe Harbor Elimination Act of 2011.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 313--Drug Trafficking Safe Harbor Elimination Act of 2011.
As ordered reported by the House Committee on the Judiciary on
October 6, 2011
CBO estimates that implementing H.R. 313 would have no
significant costs to the Federal Government. Enacting the bill
could affect direct spending and revenues; therefore, pay-as-
you-go procedures apply. However, CBO estimates that any
effects would be insignificant for each year.
H.R. 313 would prohibit U.S. entities from assisting,
supporting, or engaging in conspiracy with entities engaged in
activities outside the United States that would violate the
Controlled Substances Act if carried out within the United
States. Under current law, it is legal to assist or invest in a
manufacturing company with operations outside the United States
that produces chemicals that are on the U.S. Controlled
Substance list. Thus, the government might be able to pursue
new cases under the bill that it otherwise would not be able to
prosecute. CBO expects that H.R. 313 would apply to a
relatively small number of new cases, however, so any increase
in costs for law enforcement, court proceedings, or prison
operations would not be significant. Any such costs would be
subject to the availability of appropriated funds.
Because those prosecuted and convicted under H.R. 313 could
be subject to criminal fines, the Federal Government might
collect additional fines if the legislation is enacted.
Criminal fines are recorded as revenues, deposited in the Crime
Victims Fund, and later spent. CBO expects that any additional
revenues and direct spending would not be significant because
of the small number of cases likely to be affected.
To the extent that public and private entities, including
public and private pension funds, would be prohibited from
investing in or aiding those companies, the legislation would
constitute an intergovernmental and private-sector mandate as
defined in the Unfunded Mandates Reform Act (UMRA). The cost of
the mandate is uncertain because it would depend on what
activities are determined to constitute assistance, support, or
conspiracy under the legislation, and those terms may be
interpreted narrowly or broadly. Moreover, if investments are
prohibited, the cost of complying with the mandate would depend
on the difference in returns on the investments that would be
prohibited and on alternative investments. CBO does not have
data to make those determinations. Therefore, CBO cannot
determine whether the aggregate costs of the intergovernmental
or private-sector mandates would exceed the annual thresholds
established in UMRA ($71 million for intergovernmental mandates
and $142 million for private-sector mandates in 2011, adjusted
annually for inflation).
The CBO staff contacts for this estimate are Mark Grabowicz
(for Federal costs), Melissa Merrell (for the State and local
impact), and Marin Randall (for the impact on the private
sector). The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
313, gives extraterritorial application to the Federal drug
conspiracy statute for drug trafficking crimes under Title 21,
United States Code, but not the crime of simple possession of a
controlled substance.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 313 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1: Short Title.
Section 1 provides that the short title of H.R. 313 is the
``Drug Trafficking Safe Harbor Elimination Act of 2011.''
Sec. 2: Amendments to the Controlled Substances Act To Clarify
Conspiracies Conducted Within the United States may be
Criminally Prosecuted in the United States.
Section 2 gives extraterritorial application to the Federal
drug conspiracy statute. The Section clarifies that those
persons who conspire within the United States to possess with
intent to distribute or traffic illegal controlled substances
outside the United States, or engage in conduct within the
United States to aid or abet drug trafficking outside the
United States, may be criminally prosecuted in the United
States. Section 2 also excludes the crime of simple possession
of a controlled substance from the extraterritorial application
of the drug conspiracy statute.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
CONTROLLED SUBSTANCES ACT
TITLE II--CONTROL AND ENFORCEMENT
* * * * * * *
Part D--Offenses and Penalties
* * * * * * *
ATTEMPT AND CONSPIRACY
Sec. 406. (a) Any person who attempts or conspires to commit
any offense defined in this title shall be subject to the same
penalties as those prescribed for the offense, the commission
of which was the object of the attempt or conspiracy.
(b) Whoever, within the United States, conspires with one or
more persons, or aids or abets one or more persons, regardless
of where such other persons are located, to engage in conduct
at any place outside the United States that would constitute a
violation of this title, other than a violation of section
404(a), if committed within the United States, shall be subject
to the same penalties that would apply to such conduct if it
were to occur within the United States.
* * * * * * *
Dissenting Views
INTRODUCTION
H.R. 313 has the potential to greatly expand our Nation's
drug laws and the harsh penalties associated with them. It
would criminalize conspiracies that take place in the United
States relating to drug activity that occurs entirely in
another country, regardless of that country's law or the scope
of the activity. This bill would also subject more people to
mandatory minimum sentences and it would further extend our
Nation's failed policy on drugs.
For these reasons, and those stated below, we urge our
colleagues to oppose this legislation and respectfully dissent.
DESCRIPTION AND BACKGROUND
H.R. 313 would amend the Controlled Substances Act (CSA)\1\
to provide that persons located in the United States who enter
into a conspiracy within the United States to engage in drug
trafficking abroad, or who aid and abet drug trafficking
abroad, may be criminally prosecuted in the United States.
---------------------------------------------------------------------------
\1\Codified at Chapter 13 of 21 U.S. Code.
---------------------------------------------------------------------------
H.R. 313 was introduced at least partly in response to the
2007 decision of the 11th Circuit Court of Appeals in United
States v. Lopez-Vanegas.\2\ In that case, the defendants were
charged with and convicted of a conspiracy to transport large
amounts of cocaine from Venezuela to France. The prosecution's
charges were based on 21 U.S.C. Sec. Sec. 841 (unlawful
distribution of controlled substances) and 846 (conspiracy to
violate the CSA). The defendants appealed their conviction on
the basis that the object of the conspiracy--the possession and
distribution on foreign soil--is not a violation of section 841
because the statute does not expressly provide for liability
for possession or distribution that occurs completely outside
the United States. The Court of Appeals agreed and overturned
the convictions, reasoning that Congress had not stated its
intent to reach discussions held in the United States in
furtherance of a conspiracy to possess controlled substances
outside the territorial jurisdiction of the United States with
the intent to distribute those controlled substances outside of
the territorial jurisdiction of the United States.
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\2\493 F.3d 1305 (11th Cir. 2007).
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For the reasons discussed below, however, H.R. 313 is an
overbroad response the Lopez-Vanegas case and an unwarranted
extension of Federal criminal law.
CONCERNS WITH H.R. 313
I. THE BILL'S FOCUS SHOULD BE LIMITED TO THE HIGHEST LEVELS OF
INTERNATIONAL DRUG TRAFFICKING
If Congress is to extend Federal criminal law to
conspiracies occurring solely in the United States to engage in
drug transactions taking place abroad, it should focus only on
the highest level of drug trafficking, such as the large
quantities of cocaine trafficked in the Lopez-Vanegas case.
Local law enforcement is more than capable of investigating and
prosecuting low-level drug sellers, while Federal law
enforcement has the unique ability to dismantle sophisticated
drug trafficking networks which cross international boundaries
and which should be the focus of Federal law. While the
Committee adopted an amendment offered by the bill's sponsor,
Chairman Lamar Smith, to exclude conspiracies solely involving
simple possession of controlled substances from the bill, this
amendment did not adequately limit the broad coverage of the
bill.
An amendment offered by Congressman Robert C. ``Bobby''
Scott (D-VA) to limit the bill's coverage to conspiracies to
engage in conduct which under the Federal drug laws would be
punishable by imprisonment of greater than 20 years failed by a
vote of 11 to 12. Without this change, the scope of the bill is
too broad.
II. FEDERAL CRIMINAL LAW SHOULD NOT BE EXTENDED TO CONSPIRACIES IN THE
UNITED STATES TO ENGAGE IN DRUG TRANSACTIONS THAT ARE LEGAL ABROAD
Another significant concern with H.R. 313 is that it would
allow Federal prosecution of conspiracies that take place in
the United States to engage in drug distribution that, in some
cases, may not even be illegal in the country in which the
distribution takes place.
Drug laws around the world are not all the same. There are
some drug transactions which are illegal under the laws of the
United States but are not criminally prohibited in some other
countries. For instance, activities such as the use,
production, and distribution of marijuana for medical use are
legal in various countries, including Israel\3\ and Canada.\4\
Israelis, Canadians and other citizens involved in medical
marijuana programs in their country could face Federal
prosecution if they visited the United States but stayed in
contact with their coworkers abroad.
---------------------------------------------------------------------------
\3\http://www.pmo.gov.il/PMOEng/Communication/Spokesman/2011/08/
spokecannabis070811.
htm; Bankier, Ariela. Israeli Government Approves Guidelines for
Medical Marijuana, Haaretz.com. Haaretz Newspaper, Aug. 8 2011.,
available at http://www.haaretz.com/news/national/israeli-government-
approves-guidelines-for-medical-marijuana-1.377416.
\4\http://www.hc-sc.gc.ca/dhp-mps/marihuana/index-eng.php.
---------------------------------------------------------------------------
To correct this problem, Congressman Scott offered an
amendment that would have limited the bill's application to
conspiracies to engage in drug activity abroad that would
actually be a criminal offense in the place in which that
conduct occurs. This narrow amendment to the bill is necessary
to prevent the unwarranted use of Federal investigative,
prosecutorial, and prison resources in situations in which it
would be permissible under foreign law for someone to engage in
certain drug activity in other countries but illegal for them,
because of this bill, to make arrangements for that legal
activity in the United States. The amendment failed by a vote
of 11 to 13.
III. H.R. 313 WOULD CONTINUE THE UNJUST PROLIFERATION OF MANDATORY
MINIMUM SENTENCES
The broad scope of this bill means that even more
individuals will be subjected to mandatory minimum sentences
under the CSA.\5\ Mandatory minimum penalties are already a
major concern with respect to sentencing fairness and the wise
use of financial resources, but they would be particularly
troublesome with respect to actions which have almost no nexus
to the United States.
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\5\The conspiracy provision under the CSA subjects conspirators to
the same penalties as those prescribed for the offense. 21 U.S.C
Sec. 846. The CSA provides a number of mandatory minimum penalties,
such as sentences of 5 years imprisonment for distribution or
possession with intent to distribute one gram of LSD, 100 marijuana
plants, 28 grams of crack cocaine, 500 grams of powder cocaine, 100
grams of heroin, five grams of pure methamphetamine, 50 grams of a
methamphetamine mixture, ten grams of PCP, and 100 grams of a PCP
mixture. Ten-year sentences are mandatory for ten grams of LSD, 1000
marijuana plants, 280 grams of crack cocaine, five kilos of powder
cocaine, one kilo of heroin, 50 grams of pure methamphetamine, 500
grams of a methamphetamine mixture, 100 grams of PCP, and one kilo of a
PCP mixture.
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Mandatory minimums for low-level offenders waste
considerable tax dollars in terms of prison spending and law
enforcement prioritization. In 2008, 21,023 people were
sentenced to 31,239 counts of conviction carrying mandatory
minimum sentences at an average cost of $28,000 per person per
year. Mandatory minimums cause other unintended, but very real,
consequences beyond the daily and personal injustice of
subjecting many defendants to sentences that are too long.
One major consequence is that mandatory minimums contribute
to over-incarceration. As Federal Public Defender Michael
Nachmanoff testified before the U.S. Sentencing Commission in
2009:
[t]he Federal prison population is currently at 206,786
inmates, a nearly five-fold increase since mandatory
minimums and mandatory guidelines became law. The major
cause of the prison population explosion is the
increase in sentence length for drug trafficking, from
23 months before the guidelines to 73 months in 2001.
About 75% of this increase was due to mandatory
minimums, and 25% was due to guideline increases above
mandatory minimum levels. Today, the average sentence
length for drug trafficking is even higher than in
2001, at 83.2 months.\6\
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\6\Statement of Michael Nachmanoff, Federal Public Defender for the
Eastern District of
Virginia, Public Hearing Before the United States Sentencing
Commission, ``The Sentencing Reform Act of 1984: 25 Years Later,'' New
York, New York, July 9, 2009, available at http://www.fd.org/pdf_lib/
Statement%20of%20Michael%20Nachmanoff%20USSC%20Regional%20
Hearing%207.9.09.pdf.
Federal prison beds should be prioritized for offenders who
have higher level roles in drug trafficking organizations. This
is another reason that limiting the scope of this bill to
quantities that carry sentences of more than 20 years would
help ensure that low-level individuals will not be swept into
the over-burdened criminal justice system, ensuring that
Federal law enforcement and prosecutors can focus on major
traffickers.
IV. CONGRESS SHOULD REFRAIN FROM UNWARRANTED EXTENSIONS OF CONSPIRACY
LAWS
Conspiracy laws are particularly susceptible to abuse, and
convicting someone based on discussions about activity that may
be criminal has very serious ramifications. As discussed above,
H.R. 313 is even more problematic because it is not limited to
high-level drug trafficking and the object of the conspiracies
covered by the bill may, in some cases, not even be illegal in
the countries in which the transactions take place. Federal
drug laws provide extreme punishment, and under the drug
conspiracy law, someone may be subject to the same penalty for
a conspiracy as the underlying offense, which could include
lengthy mandatory minimum sentences.\7\
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\7\21 U.S.C. Sec. 846.
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In response to these concerns, Congresswoman Sheila Jackson
Lee (D-TX) offered an amendment that would have prevented the
use of the bill's conspiracy provision to convict someone for
drug offenses unless the conviction is supported by evidence
other than the eyewitness testimony of a law enforcement
officer or individual acting on behalf of a law enforcement
officer (i.e, confidential informant). Her amendment also
responds in part to the case in Tulia, Texas, in which more
than 40 mostly African American citizens were falsely arrested,
and some convicted, of drug crimes, based on the fabrications
of a part-time, undercover officer, who worked on temporary
assignments for small police departments.\8\ The amendment,
however, failed by a vote of 9 to 17.
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\8\Nate Blakeslee, Color of Justice: An Undercover Drug Bust Opens
Old Wounds in Tulia, Texas, The Austin Chronicle, July 28, 2000,
available at http://www.austinchronicle.com/news/2000-07-28/78058/
print/.
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Americans are best protected from abuse when a greater
degree of evidence in conspiracy cases is required.
Unfortunately, H.R. 313 fails to achieve this goal. As a
result, the bill is an unwarranted extension of Federal laws
which are already overbroad.
CONCLUSION
While Congress has an interest in combating major,
international drug trafficking, H.R. 313 is not the solution.
The scope of this bill is an excessive response to the Lopez-
Vanegas case, which involved large-scale cocaine shipments.
Federal drug conspiracy laws are already subject to abuse and
impose extreme penalties. H.R. 313, however, exacerbates
current law by criminalizing arrangements made in the United
States for drug transactions that take place completely outside
this country, some of which may not even be illegal in the
countries where they occur.
For the forgoing reasons, we respectfully dissent.
John Conyers, Jr.
Jerrold Nadler.
Robert C. ``Bobby'' Scott.
Melvin L. Watt.
Sheila Jackson Lee.
Maxine Waters.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.