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[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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \2\493 F.3d 1305 (11th Cir. 2007).
---------------------------------------------------------------------------
    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.
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    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.

                                 

```