II Calendar No. 495 112th CONGRESS 2d Session S. 1002 [Report No. 112–204] IN THE SENATE OF THE UNITED STATES May 16, 2011 Mr. Schumer (for himself, Mr. Kyl, Ms. Klobuchar, Mr. Brown of Ohio, Mr. Whitehouse, Mr. Sessions, Mr. Graham, Mr. Coons, Mr. Bennet, Mr. Lugar, Mr. Nelson of Florida, Mr. Casey, Mr. Blumenthal, Mr. Lautenberg, Mrs. Hagan, Mr. Portman, Mr. Wyden, Mr. Menendez, Ms. Ayotte, Mr. Wicker, Mr. Kirk, Mr. Cochran, Mr. Corker, Mr. Alexander, Mr. Coats, Mrs. Gillibrand, Mr. Kohl, Mr. Brown of Massachusetts, Mr. Roberts, Mr. Cornyn, Mr. Lee, Mrs. Feinstein, Mr. Coburn, and Mr. Hatch) introduced the following bill; which was read twice and referred to the Committee on the Judiciary August 28, 2012 Reported, under authority of the order of the Senate of August 2, 2012, by Mr. Leahy, with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To prohibit theft of medical products, and for other purposes.

1.

Short title

This Act may be cited as the Strengthening and Focusing Enforcement to Deter Organized Stealing and Enhance Safety Act of 2011 or the SAFE DOSES Act.

2.

Theft of medical products

(a)

In general

Chapter 31 of title 18, United States Code, is amended by adding at the end the following:

670.

Theft of medical products

(a)

Definitions

In this section— (1)the term biological product has the meaning given the term in section 351 of the Public Health Service Act (42 U.S.C. 262); (2)the terms device, drug, infant formula, and labeling have the meanings given those terms in section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321); (3)the term medical food has the meaning given the term in section 5(b) of the Orphan Drug Act (21 U.S.C. 360ee(b)); and (4)the term medical product means a drug, biological product, device, medical food, or infant formula that— (A)is being stored for transportation, or is being or has been transported, shipped, or received; and (B)has not yet been made available for retail purchase by a customer at the time of the relevant conduct described in subsection (b). (b)

Offenses

It shall be unlawful, using any means or facility of interstate or foreign commerce, or in or affecting interstate or foreign commerce, to knowingly— (1)steal, take without authorization, embezzle, carry away, or obtain by fraud or deception a medical product, or attempt or conspire to do so; (2)transport, handle, traffic in, or store a stolen medical product, or attempt or conspire to do so; or (3)participate, in any way, in a scheme to alter, forge, or falsify the labeling or documentation (including documentation relating to origination or shipping) of a stolen or expired medical product. (c)

Penalties

(1)

In general

Any person that violates subsection (b)— (A)if the value of the medical product or products is less than $5,000, shall be fined under this title, imprisoned for not more than 3 years, or both; and (B)subject to paragraph (2), for any other violation, shall be fined under this title, imprisoned for not more than 20 years, or both. (2)

Additional factors

Any person that violates subsection (b) shall be fined under this title and imprisoned for not less than 1 year nor more than 20 years if— (A)the value of the medical product or products is not less than $5,000; and (B)the— (i)person— (I)buys, or otherwise obtains, a medical product, knowing or with reckless disregard as to whether the medical product is expired or has been stolen, with the intent to sell or distribute the medical product; (II)sells, or distributes, a medical product, knowing or with reckless disregard as to whether the medical product is expired or has been stolen; or (III)at the time of the violation is employed by, or is an agent of, an organization in the supply chain from which the stolen or expired medical products were removed, including a manufacturer, wholesaler, repacker, own-label distributor, private-label distributor, jobber, broker, drug trader, transportation company, hospital, pharmacy, or security company; or (ii)violation— (I)involves the use of violence, force, or a threat of violence or force; (II)involves the use of a deadly weapon; (III)results in injury, including the injury of deprivation of treatment, or death caused by ingestion or use of a stolen or expired medical product; or (IV)is the second or subsequent offense under subsection (b) committed by the person. (3)

Civil penalties

(A)

In general

The Attorney General may bring a civil action in an appropriate United States district court against any person that engages in conduct that violates subsection (b). (B)

Penalty

In a civil action brought under subparagraph (A) the court may impose a civil penalty in an amount not more than the greater of 3 times the economic loss attributable to the violation or $1,000,000.

. (b)

Civil forfeiture

Section 981(a)(1)(C) of title 18, United States Code, is amended by inserting 670, after 657,. (c)

Technical and conforming amendment

The table of sections for chapter 31 of title 18, United States Code, is amended by adding after the item relating to section 669 the following: 670. Theft of medical products. .

3.

Penalties for theft-related offenses

(a)

Interstate or foreign shipments by carrier

Section 659 of title 18, United States Code, is amended in the fifth undesignated paragraph, by striking 10 years and inserting 20 years. (b)

Racketeering

Chapter 95 of title 18, United States Code, is amended— (1)in section 1952(a)(3)(A), by striking 5 years and inserting 20 years; and (2)in section 1957(b)(1), by striking ten years and inserting 20 years. (c)

Breaking or entering carrier facilities

Section 2117 of title 18, United States Code, is amended in the first undesignated paragraph by striking ten years and inserting 20 years. (d)

Stolen property

Chapter 113 of title 18, United States Code, is amended— (1)in section 2314, in the sixth undesignated paragraph, by striking ten years and inserting 20 years; and (2)in section 2315, in the fourth undesignated paragraph, by striking ten years and inserting 20 years.

4.

Amendment to RICO

Section 1961(1)(B) of title 18, United States Code, is amended by inserting , section 670 (relating to theft of medical products) before , sections 891.

5.

Amendment to title III

Section 2516(1) of title 18, United States Code, is amended— (1)by redesignating paragraph (s) as paragraph (t); and (2)by inserting after paragraph (r) the following: (s)any violation of section 670 (relating to theft of medical products). .

6.

Amendment to order of restitution

Section 3663A(c)(1)(A) of title 18, United States Code, is amended— (1)in clause (ii), by striking or at the end; (2)in clause (iii), by striking and at the end and inserting or; and (3)by adding at the end the following: (iv)an offense under section 670 (relating to theft of medical products); and .

7.

Directive to United States Sentencing Commission

Pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this Act, the United States Sentencing Commission shall review and, if appropriate, amend the Federal Sentencing Guidelines and policy statements applicable to a person convicted of an offense under section 2118 of title 18, United States Code, section 670 of title 18, United States Code, as added by this Act, or other section of title 18 of the United States Code, amended by this Act.

1.

Short title

This Act may be cited as the Safe Doses Act.

2.

Theft of medical products

(a)

Prohibited conduct and penalties

Chapter 31 of title 18, United States Code, is amended by adding at the end the following:

670.

Theft of medical products

(a)

Prohibited conduct

Whoever, in, or using any means or facility of, interstate or foreign commerce— (1)embezzles, steals, or by fraud or deception obtains, or knowingly and unlawfully takes, carries away, or conceals, a pre-retail medical product; (2)knowingly and falsely makes, alters, forges, or counterfeits the labeling or documentation (including documentation relating to origination or shipping) of a pre-retail medical product; (3)knowingly possesses, transports, or traffics in a pre-retail medical product that was involved in a violation of paragraph (1) or (2); (4)with intent to defraud, buys, or otherwise obtains, a pre-retail medical product that has expired or been stolen; (5)with intent to defraud, sells, or distributes, a pre-retail medical product that is expired or stolen; or (6)attempts or conspires to violate any of paragraphs (1) through (5); shall be punished as provided in subsection (c) and subject to the other sanctions provided in this section.(b)

Aggravated offenses

An offense under this section is an aggravated offense if — (1)the defendant is employed by, or is an agent of, an organization in the supply chain for the pre-retail medical product; or (2)the violation— (A)involves the use of violence, force, or a threat of violence or force; (B)involves the use of a deadly weapon; (C)results in serious bodily injury or death, including serious bodily injury or death resulting from the use of the medical product involved; or (D)is subsequent to a prior conviction for an offense under this section. (c)

Criminal penalties

Whoever violates subsection (a)— (1)if the offense is an aggravated offense under subsection (b)((2)(C), shall be fined under this title or imprisoned not more than 30 years, or both; (2)if the value of the medical products involved in the offense is $5,000 or greater, shall be fined under this title, imprisoned for not more than 15 years, or both, but if the offense is an aggravated offense other than one under subsection (b)(2)(C), the maximum term of imprisonment is 20 years; and (3)in any other case, shall be fined under this title, imprisoned for not more than 3 years, or both, but if the offense is an aggravated offense other than one under subsection (b)(2)(C), the maximum term of imprisonment is 5 years. (d)

Civil penalties

Whoever violates subsection (a) is subject to a civil penalty in an amount not more than the greater of— (1)three times the economic loss attributable to the violation; or (2)$1,000,000. (e)

Definitions

In this section— (1)the term pre-retail medical product means a medical product that has not yet been made available for retail purchase by a consumer; (2)the term medical product means a drug, biological product, device, medical food, or infant formula; (3)the terms device, drug, infant formula, and labeling have, respectively, the meanings given those terms in section 201 of the Federal Food, Drug, and Cosmetic Act; (4)the term biological product has the meaning given the term in section 351 of the Public Health Service Act; (5)the term medical food has the meaning given the term in section 5(b) of the Orphan Drug Act; and (6)the term supply chain includes manufacturer, wholesaler, repacker, own-labeled distributor, private-label distributor, jobber, broker, drug trader, transportation company, hospital, pharmacy, or security company.

. (b)

Clerical amendment

The table of sections at the beginning of chapter 31 of title 18, United States Code, is amended by adding after the item relating to section 669 the following: 670. Theft of medical products. .

3.

Civil forfeiture

Section 981(a)(1)(C) of title 18, United States Code, is amended by inserting 670, after 657,.

4.

Penalties for theft-related offenses

(a)

Interstate or foreign shipments by carrier

Section 659 of title 18, United States Code, is amended by adding at the end of the fifth undesignated paragraph the following: If the offense involves a pre-retail medical product (as defined in section 670), it shall be punished under section 670 unless the penalties provided for under this section are greater.. (b)

Racketeering

(1)

Travel Act Violations

Section 1952 of title 18, United States Code, is amended by adding that the end the following: (d)If the offense under this section involves an act described in paragraph (1) or (3) of subsection (a) and also involves a pre-retail medical product (as defined in section 670), the punishment for the offense shall be the same as the punishment for an offense under section 670, unless the punishment under subsection (a) is greater. . (2)

Money Laundering

Section 1957(b)(1) of title 18, United States Code, is amended by adding at the end the following: If the offense involves a pre-retail medical product (as defined in section 670) the punishment for the offense shall be the same as the punishment for an offense under section 670 unless the punishment under this subsection is greater. (c)

Breaking or entering carrier facilities

Section 2117 of title 18, United States Code, is amended by adding at the end of the first undesignated paragraph the following: If the offense involves a pre-retail medical product (as defined in section 670) the punishment for the offense shall be the same as the punishment for an offense under section 670 unless the punishment under this section is greater.. (d)

Stolen property

(1)

Transportation of stolen goods and related offenses

Section 2314 of title 18, United States Code, is amended by adding at the end of the sixth undesignated paragraph the following: If the offense involves a pre-retail medical product (as defined in section 670) the punishment for the offense shall be the same as the punishment for an offense under section 670 unless the punishment under this section is greater.. (2)

Sale or receipt of stolen goods and related offenses

Section 2315 of title 18, United States Code, is amended by adding at the end of the fourth undesignated paragraph the following: If the offense involves a pre-retail medical product (as defined in section 670) the punishment for the offense shall be the same as the punishment for an offense under section 670 unless the punishment under this section is greater..

5.

Inclusion of new offense as RICO predicate

Section 1961(1)(B) of title 18, United States Code, is amended by inserting , section 670 (relating to theft of medical products) before , sections 891.

6.

Amendment to extend wiretapping authority to new offense

Section 2516(1) of title 18, United States Code, is amended— (1)by redesignating paragraph (s) as paragraph (t); (2)by striking or at the end of paragraph (r); and (3)by inserting after paragraph (r) the following: (s)any violation of section 670 (relating to theft of medical products); or .

7.

Required restitution

Section 3663A(c)(1)(A) of title 18, United States Code, is amended— (1)in clause (ii), by striking or at the end; (2)in clause (iii), by striking and at the end and inserting or; and (3)by adding at the end the following: (iv)an offense under section 670 (relating to theft of medical products); and .

8.

Directive to the United States Sentencing Commission

(a)

In general

Pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this section, the United States Sentencing Commission shall review and, if appropriate, amend the Federal sentencing guidelines and policy statements applicable to persons convicted of offenses under section 670 of title 18, United States Code, as added by this Act, section 2118 of title 18, United States Code, or any another section of title 18, United States Code, amended by this Act, to reflect the intent of Congress that penalties for such offenses be sufficient to deter and punish such offenses, and appropriately account for the actual harm to the public from these offenses. (b)

Requirements

In carrying out this section, the United States Sentencing Commission shall— (1)consider the extent to which the Federal sentencing guidelines and policy statements appropriately reflect— (A)the serious nature of such offenses; (B)the incidence of such offenses; and (C)the need for an effective deterrent and appropriate punishment to prevent such offenses; (2)consider establishing a minimum offense level under the Federal sentencing guidelines and policy statements for offenses covered by this Act; (3)account for any additional aggravating or mitigating circumstances that might justify exceptions to the generally applicable sentencing ranges; (4)ensure reasonable consistency with other relevant directives, Federal sentencing guidelines and policy statements; (5)make any necessary conforming changes to the Federal sentencing guidelines and policy statements; and (6)ensure that the Federal sentencing guidelines and policy statements adequately meet the purposes of sentencing set forth in section 3553(a)(2) of title 18, United States Code.

August 28, 2012 Reported with an amendment