[Congressional Record Volume 149, Number 116 (Thursday, July 31, 2003)]
[Senate]
[Pages S10605-S10608]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HONORING OUR ARMED FORCES
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SPECIALIST MICHAEL DEUEL
Mr. THOMAS. Mr. President, I rise today to speak about a young man
from my State who selflessly performed as his country asked. While
doing so Army SP Michael R. Deuel was killed in Iraq on June 18 while
on guard duty at a propane distribution center.
Michael was a good soldier and served proudly in the 325th Infantry
Regiment's 82nd Airborne Division. He comes from a family of military
tradition that he carried with him. It was the Air Force that brought
the Deuel family to Wyoming where both parents served on Wyoming's own
F.E. Warren Air Force Base.
It is particularly important that at a time like this, as we address
legislation and we prepare to adjourn for the month of August and
return to our homes to meet with constituents that we take time to
remember soldiers such as Specialist Deuel. These are the brave souls
who give everything to secure the peace.
Michael joined the Army so he could learn to parachute. Eventually he
wanted to become a smoke jumper and fight forest fires. This too is a
particularly dangerous job, and as we see through this year's fire
season it is critical to the survival of our towns and rural
communities in the West. Michael's decision to be in the army and his
goals for life after the Army paint a picture of a young man committed
to his country and his fellow Americans.
As operations continue in Iraq and the noose tightens around the last
remnants of the regime, I offer America's thanks to Michael Deuel and
to his family. It takes a special person to answer the call to public
service. It is challenging and dangerous. America remains strong and
steadfast because of the courage that they have shown in the face of
danger.
Thank you for your service and sacrifice. May God bless SP Michael
Deuel of the 82nd Airborne Division and may God continue to bless the
United States of America.
Mr. BIDEN. Mr. President, I rise today to speak in support of Karen
Tandy's nomination to be Administrator of the Drug Enforcement
Administration. I am pleased that the Senate confirmed her nomination
last night.
I had an opportunity to meet with Ms. Tandy a few weeks ago in my
office and I was quite impressed by her. With more than a quarter
century of experience in drug enforcement, I believe that she is not
only well qualified to be the DEA Administrator, but that she will also
bring a passion for drug policy to the job.
Both in her work as a prosecutor and in leadership positions at the
Justice Department, Ms. Tandy's focus has been on drug trafficking,
money laundering and asset forfeiture. She has served as an Assistant
U.S. Attorney in Virginia and Washington State, Chief of Litigation in
the Asset Forfeiture Office and Deputy Chief of the Narcotics and
Dangerous Drugs Section at Main Justice. For the past 4 years she has
served as Associate Deputy Attorney General and the Director of the
Organized Crime Drug Enforcement Task Force (OCDETF) program. During
that time she has focused the OCDETF program and provided tremendous
leadership.
Her nomination has the endorsement of a number of well-respected
organizations including the Fraternal Order of Police, the National
Troopers Association, the Association of Former Narcotics Agents, the
National Narcotics Officers' Association Coalition, the Community Anti-
Drug Coalitions of America, the County Executives of America, and the
International Union of Police Associations.
Ms. Tandy comes to the DEA at a time when both Federal and State
resources for drug investigations are shrinking. I believe that she
will have a difficult time fighting for scarce resources and keeping
the drug issue on the national agenda.
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After September 11, the FBI transferred 567 agents from counterdrug
investigation to counter-terrorism investigations and the DEA was left
to fill in the gap without adequate funding. The President's 2004
budget only provides funding for an additional 233 Special Agents. By
shutting down popular programs such as the Mobile and Regional
Enforcement Teams, DEA has been able to shuffle around 362 agents,
making them look like new agents when they are not.
The magnitude of the gap left by the FBI is quite troubling.
According to a recent GAO report, the number of FBI Agents working on
drug cases has decreased by more than 62 percent, from 891 to 335,
since September 2001. And the number of new FBI drug cases has
plummeted from 1,825 in fiscal year 2000 to only 310 in the first half
of fiscal year 2003.
It is clear that the DEA will need more resources if it is expected
to fill the sizeable void left by the FBI. That is why I joined with
twelve other Senators to write to the appropriators urging that they
provide more money for the DEA to be able to do its job. I hope that at
the end of the day the Congress will be able to give them more money
than the President requested.
Another issue which relates closely to the work of the DEA, is the
Illicit Drug Anti-Proliferation Act, legislation which I authored that
became law as part of the PROTECT Act in April. The bill provides
Federal prosecutors the tools needed to combat the manufacture,
distribution or use of any controlled substance at any venue whose
purpose is to engage in illegal narcotics activity. Rather than create
a new law, it merely amends a well-established statute to make clear
that anyone who knowingly and intentionally uses their property--or
allows another person to use their property--for the purpose of
distributing or manufacturing or using illegal drugs can be held
accountable, regardless of whether the drug use is ongoing or occurs at
a single event.
I introduced this legislation after holding a series of hearings
regarding the dangers of Ecstasy and the rampant drug promotion
associated with some raves. For the past few years Federal prosecutors
have been using the so-called ``crack house statute''--a law which
makes it illegal for someone to knowingly and intentionally hold an
event for the purpose of drug use, distribution or manufacturing--to
prosecute rogue rave promoters who profit off of putting kids at risk.
My bill simply amended that existing law in two ways. First, it made
the ``crack house statute'' apply not just to ongoing drug distribution
operations, but to ``single-event'' activities, including an event
where the promoter has as his primary purpose the sale of Ecstasy or
other illegal drugs. And second, it made the law apply to outdoor as
well as indoor activity.
Although this legislation grew out of the problems identified at
raves, the criminal and civil penalties in the bill would also apply to
people who promoted any type of event for the purpose of illegal drug
manufacturing, sale, or use. This said, it is important to recognize
that this legislation is not designed in any way, shape or form to
hamper the activities of legitimate event promoters. If rave promoters
and sponsors operate such events as they are so often advertised--as
places for peopled to come dance in a safe, drug-free environment--then
they have nothing to fear from this law. In no way is this bill aimed
at stifling any type of music or expression--it is only trying to deter
illicit drug use and protect kids.
I know that there will always be certain people who will bring drugs
into musical or other events and use them without the knowledge or
permission of the promoter or club owner. This is not the type of
activity that my bill addresses. The purpose of my legislation is not
to prosecute legitimate law-abiding managers of stadiums, arenas,
performing arts centers, licensed beverage facilities and other venues
because of incidental drug use at their events. In fact, when crafting
this legislation, I took steps to ensure that it did not capture such
cases. My bill would help in the prosecution of rogue promoters who
intentionally hold the event for the purpose of illegal drug use or
distribution. That is quite a high bar.
I am committed to making sure that this law is enforced properly and
have been in close contact with officials from the Drug Enforcement
Administration to make sure that the law is properly construed. That is
why I was concerned by press reports about a DEA Agent in Billings,
Montana who misinterpreted the Illicit Drug Anti-Proliferation Act when
he approached the manager of the local Eagles Lodge to warn her that
she may be violating the new law if the Lodge allowed the National
Organization to Reform Marijuana Laws (NORML) to have a fundraiser at
their facility.
I was troubled to hear this because, according to press reports, the
Eagles Lodge had no knowledge that there might be drug activity at
their location before the DEA approached them. And following the DEA
Agent's misguided advice based on an inaccurate understanding of the
law, the Lodge decided to cancel the NORML event, leading to an outcry
from various groups that the new law has stifled free speech.
As I mentioned, the law only applies to those who ``knowingly and
intentionally'' hold an event ``for the purpose of'' drug
manufacturing, sale and use. Based upon my understanding of the facts
around the NORML fundraising incident, the Eagles Lodge did not come
anywhere close to violating that high legal standard.
I had my staff meet with the DEA chief counsel's office to discuss
the Eagles Lodge incident and DEA's interpretation of the law. The DEA
assured my office that they shared my understanding of the law and that
this interpretation of the statute was conveyed to all DEA field
offices shortly after the bill was signed into law.
In a June 19, 2003, letter to me from DEA Acting Administrator
William B. Simpkins, the DEA acknowledged that the Special Agent
``misinterpreted'' DEA's initial legal guidance on the law and
``incorrectly'' suggested to the Eagles Lodge that the law might apply
to the NORML fundraiser. DEA conceded that ``[r]egrettably, the DEA
Special Agent's incorrect interpretation of the statute contributed to
the decision of the Eagles Lodge to cancel the event.'' In response to
this misguided interpretation of the law, the DEA issued on June 17,
2003, supplemental guidance in a memo to all DEA field agents making
clear that:
property owners not personally involved in illicit drug
activity would not be violating the Act unless they knowingly
and intentionally permitted on their property an event
primarily for the purpose of drug use. Legitimate property
owners and event promoters would not be violating the Act
simply based upon or just because of illegal patron behavior.
I have expressed clearly to Ms. Tandy my expectation that the law
will be applied narrowly and responsibly. Ms. Tandy has confirmed that
under her direction the DEA will implement the law as it was intended,
targeting only those events whose promoters knowingly and intentionally
allow the manufacture, sale or use of illegal drugs. In the DEA's June
19, 2003 letter to me, it noted that its initial May 15, 2003 guidance:
informed [DEA] personnel that [the law's] requirements of
`knowledge' and `intent' were not changed by the [new] Act.
Accordingly, legitimate event promoters, such as bona fide
managers of stadiums, arenas, performing arts centers, and
licensed beverage facilities should not be concerned that
they will be prosecuted simply based upon or just because of
illegal patron activity.
Obviously, DEA's May 15th guidance was not sufficient to prevent the
unfortunate Eagles Lodge incident but it reveals the Agency's
understanding and intent not to target and prosecute the sorts of
legitimate businesses cited above. As this is a new law, Ms. Tandy
agrees that DEA must and will redouble its efforts in training its
agents on the proper legal interpretation.
Finally, let me conclude by making two final responses to some
critics of my law who have claimed; one, that it stretches the law
beyond its original intention, and two, that it creates a legal
standard that will permit innocent businessmen, concert promoters, even
homeowners to be prosecuted for the drug use of those who come to their
property. Both charges are wrong, as I will now explain.
First, my law amended section 856 of Title 21, U.S. Code. Section 856
became law in 1986. While section 856 has become known popularly as the
``crack house statute,'' it has always been
[[Page S10607]]
available to prosecute any venue--not just crack houses--where the
owner knowingly and intentionally made the property available for the
purpose of illegal drug activity. This fact has long been recognized by
the Federal courts. As the Ninth Circuit Court of Appeals--the most
liberal Federal appellate court in the Nation--said: ``There is no
reason to believe that [section 856] was intended to apply only to
storage facilities and crack houses.'' [United States v. Tamez, 941
F.2d 770, 773 (9th Cir. 1991).] Or, in the words of the Fifth Circuit
Court of Appeals: ``it is highly unlikely that anyone would openly
maintain a place for the purpose of manufacturing and distributing
cocaine without some sort of `legitimate' cover--as a residence, a
nightclub, a retail business, or a storage barn.'' [United States v.
Roberts, 913 F.2d 211, (5th Cir. 1990).]
The suggestion by some that my law expanded section 856 to entities
other than traditional crack houses is simply untrue. Rather, in the 17
years section 856 has been on the books, it has been used by the
Justice Department to prosecute seemingly ``legitimate businesses''
used as a front for drug activity. Specifically, section 856 has been
used against motels, bars, restaurants, used car dealerships,
apartments, private clubs, and taverns. [See United States v. Chen, 913
F.2d 183 (5th Cir. 1990); United States v. Bilis, 170 F.3d 88 (1st Cir.
1999); United States v. Meschack, 225 F.3d 556 (5th Cir. 2000); United
States v. Tamez, 941 F.2d 770 (9th Cir. 1991); United States v.
Roberts, 913 F.2d 211 (5th Cir. 1990); United States v. Cooper, 966
F.2d 936 (5th Cir. 1992); Huerd v. United States, 1993 U.S. App. LEXIS
2949 (Feb. 10, 1993, 9th Cir.).] The bottom line is that if a defendant
hides behind the front of a legitimate business, or allows a drug
dealer to do so on their property, they should be held accountable.
Just as the criminal law punishes the defendant who ``aids and
abets''--like the getaway driver in a bank robbery ring--section 856
has always punished those who knowingly and intentionally provide a
venue for others to engage in illicit drug activity.
The second point I will make is that my law does not--does not--
change the well-established legal standard of section 856 which is
required to secure a criminal conviction. Some critics of my law
suggest that Congress just created a new, incredibly low legal
threshold for prosecution under my law. In fact, it is the exact
opposite. For 17 years, section 856 has required a high burden of
proof, and my law does not change that standard at all. So let's get
our facts straight.
In order to convict a defendant under section 856, the Justice
Department needs to prove 2 things beyond a reasonable doubt--the
highest legal standard in our justice system. Specifically, the
government must prove that the defendant one, ``knowingly and
intentionally'' made their property available, and two, ``for the
purpose'' of illegal drug distribution, manufacture or use. These are 2
high hurdles the government must first pass before a defendant can be
convicted under section 856. Let me briefly discuss both of these legal
elements. As will become quite clear, the Federal courts interpreting
section 856 have consistently rejected the very broad interpretations
of the statute many critics now assert will result from my law.
Federal courts construing the ``knowledge'' and ``intent'' prong of
section 856 have consistently held this to be a very high bar. It's not
enough for a defendant to simply think, or have reason to believe, that
drug use could occur on their property. Actual knowledge of future drug
use, coupled with a specific intention that such use occur, is
required. One Federal court discussing the knowing and intentional
standard put it this way:
an act is done ``knowingly'' if done voluntarily and
intentionally, and not because of mistake or accident or
other innocent reason. The purpose of adding the word
``knowingly'' is to insure that no one will be convicted for
an act done because of mistake or accident, or other innocent
reason. Actual knowledge on the part of the defendant that
she was renting, leasing or making available for use the
[property] for the purpose of unlawfully storing,
distributing, or using a controlled substance is an essential
element of the offense charged. . . . An act is done
``intentionally'' if done voluntarily and purposely with the
intent to do something the law forbids, that is, with the
purpose either to disobey or to disregard the law. . . . It
is not sufficient to show that the defendant may have
suspected or thought that the [property] [was] were being
used for [illicit drug activity]. [Chen, 913 F.2d at 187.]
As explained by the Federal courts, then, section 856 means what it
says--the law only applies to defendants who have actual knowledge that
their property will be used for drug use and who intend that very
outcome. As a result, section 856 could never be used--as some critics
have irresponsibly suggested--against the promoters of a rock concert
whose patrons include some who are suspected of doing drugs during live
music performances. In this way, section 856 is very different than
other laws proposed which would impose a ``reckless'' standard--
holding, for example, a concert promoter liable where they had reason
to believe that drug use might occur.
For example, a bill introduced in the House would create criminal
liability for anyone who ``knowingly promotes any rave, dance, music,
or other entertainment event, that takes place under circumstances
where the promoter knows or reasonably ought to know that a controlled
substance will be used or distributed.'' I disagreed with this approach
because it would have replaced the high legal standard of section 856,
on the books for 17 years, with a much lower standard where a concert
promoter could be prosecuted for the illicit drug activity of patrons
for which the promoter had no actual knowledge. When I wrote section
856 17 years ago, I and my colleagues required actual knowledge of
illicit drug activity. Actual knowledge is still the standard today.
Let me now briefly discuss the second prong under section 856, the
requirement that the defendant make their property available ``for the
purpose'' of illicit drug activity. Again, courts have interpreted this
prong in a way to ensure that section 856 cannot be used against
innocent property owners where some incidental drug use occurs on their
premises. One Federal court started its discussion of the purpose prong
by noting that `` `purpose' is a word of common and ordinary, well
understood meaning: it is `that which one sets before him to
accomplish; an end, intention, or aim, object, plan, project.' ''
[Chen, 913 F.2d at 189.] Thus, Federal courts have noted that
it is strictly incumbent on the government to prove beyond a
reasonable doubt not that a defendant knowingly maintained a
place where controlled substances were used or
distributed, but rather that a defendant knowingly
maintained a place for the specific purpose of
distributing or using a controlled substance. [Id.]
Accordingly, the courts have interpreted that ``purpose prong'' of
section 856 to prevent prosecution of defendants who knowingly allowed
drug use on their property. In so doing, the courts have recognized
that it's not enough to simply know that illicit drug activity is
occurring on one's property; the property owner must be maintaining the
property for that specific purpose. This is particularly true when
section 856 is used against a ``non-traditional crack house,'' such as
a residence or business. In fact, a federal appellate court reversed a
section 856 conviction against a defendant who had allowed her son to
deal drugs out of his bedroom. There was evidence that his mother, the
defendant, assisted him in his drug dealing. While the court sustained
her conviction under a count of aiding and abetting, it reversed her
conviction under section 856, finding that while she knowingly allowed
drug dealing on her property, the primary purpose of her apartment was
as a residence, not as a venue for illicit drug activity. As the court
observed:
manufacturing, distributing, or using drugs must be more than
a mere collateral purpose of the residence. Thus, `the
``casual'' drug user does not run afoul of [section 856]
because he does not maintain his house for the purpose of
using drugs but rather for the purpose of residence, the
consumption of drugs therein being merely incidental to that
purpose.' We think it is fair to say, at least in the
residential context, that the manufacture (or distribution or
use) of drugs must be at least one of the primary or
principal uses to which the house is put. United States v.
Verners, 53 F.3d 291, 296 (10th Cir. 1995).
This analysis makes clear that section 856 cannot be used--as critics
of my law claim--against a concert promoter for the incidental drug use
of their patrons or against a homeowner for the incidental drug use of
a guest at a backyard barbeque. Just as section
[[Page S10608]]
856 ``[does not] criminalize simple consumption of drugs in one's
home,'' [United States v. Lancaster, 968 F.2d 1250, 1253 (D.C. Cir.
1992)], it cannot be used to prosecute innocent event promoters, venue
owners, or other property owners for the incidental drug use of the
patrons or guests.
Here is the bottom line: Section 856 has been on the books for 17
years and I'm unaware of it ever being used to go after a concert
promoter, a venue owner, or a private citizen for the incidental drug
use of their patrons or guests. Why? Because, as the Federal court
decisions I have briefly reviewed today show, we wrote into law a high
burden of proof to make sure that innocent actors don't get prosecuted.
If you don't know for example, that the guy renting your arena plans to
sell drugs, you are off the hook. If you don't intend for the guy
renting your arena to sell drugs, you are off the hook. And if you
don't intend that the guy renting your arena do so for the specific
purpose of selling drugs, you are off the hook.
So let's get our facts straight here. It is just not helpful for
critics of section 856 to run around screaming that the ``sky is
falling,'' when it has not fallen for 17 years and has no reason to
start now. As stated earlier, innocent actors have nothing to fear from
this statute and I intend to monitor the enforcement of the Illicit
Drug Anti-Proliferation Act closely to make sure that it is used
properly. If someone uses a rave, or any other event, as a pretext to
sell ecstasy to kids, they should go to jail, plain and simple. But
that sad reality should not prevent responsible event promoters and
venue owners around this country from putting on live music shows and
other events, just because some of their patrons will inevitably use
drugs.
In closing, Asa Hutchinson left some big shoes to fill over at DEA,
but I believe that Ms. Tandy is up to the task. And it is wonderful
that she will be the first woman to head the DEA. I congratulate her on
her confirmation.
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