[Congressional Record (Bound Edition), Volume 149 (2003), Part 15]
[Senate]
[Pages 20537-20540]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       HONORING OUR ARMED FORCES

                                 ______
                                 

                        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.
  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.

[[Page 20538]]

  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 people 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 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).]

[[Page 20539]]

  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 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

[[Page 20540]]

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.

                          ____________________