II 

Calendar No. 107 

112TH CONGRESS 

1ST SESSION S. 1228 

To prohibit trafficking in counterfeit military goods or services. 

IN THE SENATE OF THE UNITED STATES 

JUNE 16, 2011 

Mr. WHITEHOUSE (for himself, Mr. GRAHAM, Mr. COONS, Mr. MCCAIN, Mr. 

BLUMENTHAL, Ms. KLOBUCHAR, Mr. KYL, Mr. LEAHY, and Mr. HATCH) 

introduced the following bill; which was read twice and referred to the 

Committee on the Judiciary 

JULY 21, 2011 

Reported by Mr. LEAHY, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To prohibit trafficking in counterfeit military goods or 

services. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Combating Military 

5 Counterfeits Act of 2011’’. 


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1 SEC. 2. TRAFFICKING IN COUNTERFEIT MILITARY GOODS 

2 OR SERVICES. 

3 (a) TRAFFICKING IN COUNTERFEIT MILITARY

4 GOODS OR SERVICES.—Section 2320 of title 18, United 

5 States Code, is amended— 

6 (1) in subsection (a), by adding at the end the 

7 following: 

8 ‘‘(3) MILITARY GOODS OR SERVICES.— 

9 ‘‘(A) IN GENERAL.—A person who com10 mits an offense under paragraph (1) shall be 

11 punished in accordance with subparagraph (B) 

12 if— 

13 ‘‘(i) the offense involved a good or 

14 service described in paragraph (1) that if 

15 it malfunctioned, failed, or was com16 promised, could reasonably be expected to 

17 cause— 

18 ‘‘(I) serious bodily injury or 

19 death; 

20 ‘‘(II) disclosure of classified in21 formation; 

22 ‘‘(III) impairment of combat op23 erations; or 

24 ‘‘(IV) other significant harm to a 

25 member of the Armed Forces or to 

26 national security; and 


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1 ‘‘(ii) the person had knowledge that 

2 the good or service is falsely identified as 

3 meeting military standards or is intended 

4 for use in a military or national security 

5 application. 

6 ‘‘(B) PENALTIES.— 

7 ‘‘(i) INDIVIDUAL.—An individual who 

8 commits an offense described in subpara9 graph (A) shall be fined not more than 

10 $5,000,000, imprisoned for not more than 

11 20 years, or both. 

12 ‘‘(ii) PERSON OTHER THAN AN INDI13 VIDUAL.—A person other than an indi14 vidual that commits an offense described in 

15 subparagraph (A) shall be fined not more 

16 than $15,000,000. 

17 ‘‘(C) SUBSEQUENT OFFENSES.— 

18 ‘‘(i) INDIVIDUAL.—An individual who 

19 commits an offense described in subpara20 graph (A) after the individual is convicted 

21 of an offense under subparagraph (A) shall 

22 be fined not more than $15,000,000, im23 prisoned not more than 30 years, or both. 

24 ‘‘(ii) PERSON OTHER THAN AN INDI25 VIDUAL.—A person other than an indiVerDate Mar 15 2010 00:05 Jul 22, 2011 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S1228.RS S1228

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1 vidual that commits an offense described in 

2 subparagraph (A) after the person is con3 victed of an offense under subparagraph 

4 (A) shall be fined not more than 

5 $30,000,000.’’; and 

6 (2) in subsection (e)— 

7 (A) in paragraph (1), by striking the pe8 riod at the end and inserting a semicolon; 

9 (B) in paragraph (3), by striking ‘‘and’’ at 

10 the end; 

11 (C) in paragraph (4), by striking the pe12 riod at the end and a semicolon; and 

13 (D) by adding at the end the following: 

14 ‘‘(5) the term ‘falsely identified as meeting mili15 tary standards’ relating to a good or service— 

16 ‘‘(A) means the good or service— 

17 ‘‘(i)(I) bears a label, tag, stamp, prod18 uct code, phrase, or emblem of any kind 

19 that indicates that the good or service 

20 meets a standard, requirement, or speci21 fication issued by the Department of De22 fense, an Armed Force, or a reserve com23 ponent; 

24 ‘‘(II) is packaged in a wrapper, con25 tainer, box, case, or packaging of any type 


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1 or nature which bears a label, tag, stamp, 

2 product code, phrase, or emblem of any 

3 kind which indicates that the good or serv4 ices meets a standard, requirement, or 

5 specification issued by the Department of 

6 Defense, an Armed Force, or a reserve 

7 component; or 

8 ‘‘(III) is accompanied by or marketed 

9 with a certificate or other oral or written 

10 representation that the good or service 

11 meets a standard, requirement, or speci12 fication issued by the Department of De13 fense, an Armed Force, or a reserve com14 ponent; and 

15 ‘‘(ii) does not meet the standard, re16 quirement, or specification of the Depart17 ment of Defense, an Armed Force, or a re18 serve component that is indicated or rep19 resented in a manner described in clause 

20 (i); and 

21 ‘‘(B) shall not apply to— 

22 ‘‘(i) the identification of a good or 

23 service in a manner that is unlikely to 

24 cause confusion, to cause mistake, or to 

25 deceive; or 


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1 ‘‘(ii) a good or service if the standard, 

2 requirement, or specification issued by the 

3 Department of Defense, an Armed Force, 

4 or a reserve component has only a de mini5 mis relationship to national security or the 

6 safety of the members of the Armed 

7 Forces; and 

8 ‘‘(6) the term ‘use in a military or national se9 curity application’ means the use of a good or serv10 ice, independently, in conjunction with, or as a com11 ponent of another good or service— 

12 ‘‘(A) during the performance of the official 

13 duties of the Armed Forces of the United 

14 States or the reserve components of the Armed 

15 Forces; or 

16 ‘‘(B) by the United States to perform or 

17 directly support— 

18 ‘‘(i) combat operations; or 

19 ‘‘(ii) critical national defense or na20 tional security functions.’’. 

21 (b) SENTENCING GUIDELINES.— 

22 (1) DIRECTIVE.—The United States Sentencing 

23 Commission shall review and, if appropriate, amend 

24 the Federal sentencing guidelines and policy state25 ments applicable to persons convicted of an offense 


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1 under section 2320(a) of title 18, United States 

2 Code, to reflect the intent of Congress that penalties 

3 for such offenses be increased in comparison to 

4 those provided on the day before the date of enact5 ment of this Act under the guidelines and policy 

6 statements. 

7 (2) REQUIREMENTS.—In amending the Federal 

8 Sentencing Guidelines and policy statements under 

9 paragraph (1), the United States Sentencing Com10 mission shall— 

11 (A) ensure that the guidelines and policy 

12 statements, including section 2B5.3 of the Fed13 eral Sentencing Guidelines (and any successor 

14 thereto), reflect— 

15 (i) the serious nature of the offenses 

16 described in section 2320(a) of title 18, 

17 United States Code; 

18 (ii) the need for an effective deterrent 

19 and appropriate punishment to prevent of20 fenses under section 2320(a) of title 18, 

21 United States Code; and 

22 (iii) the effectiveness of incarceration 

23 in furthering the objectives described in 

24 clauses (i) and (ii); 


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1 (B) consider the extent to which the guide2 lines appropriately account for the risk, even if 

3 attenuated or unknown to the offender, to 

4 members of the Armed Forces of the United 

5 States, military readiness, and national security 

6 resulting from an offense committed under sec7 tion 2320(a) of title 18, United States Code, in8 cluding in instances involving a limited value or 

9 quantity of goods or services; 

10 (C) ensure reasonable consistency with 

11 other relevant directives and guidelines and 

12 Federal statutes; 

13 (D) make any necessary conforming 

14 changes to the guidelines; and 

15 (E) ensure that the guidelines relating to 

16 offenses under section 2320(a) of title 18, 

17 United States Code, adequately meet the pur18 poses of sentencing, as described in section 

19 3553(a)(2) of title 18, United States Code. 

20 (3) EMERGENCY AUTHORITY.—The United 

21 States Sentencing Commission shall— 

22 (A) promulgate the guidelines, policy state23 ments, or amendments provided for in this Act 

24 as soon as practicable, and in any event not 

25 later than 180 days after the date of enactment 


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1 of this Act, in accordance with the procedure 

2 set forth in section 21(a) of the Sentencing Act 

3 of 1987 (28 U.S.C. 994 note), as though the 

4 authority under that Act had not expired; and 

5 (B) pursuant to the emergency authority 

6 provided under subparagraph (A), make such 

7 conforming amendments to the Federal sen8 tencing guidelines as the Commission deter9 mines necessary to achieve consistency with 

10 other guideline provisions and applicable law. 

11 SECTION 1. SHORT TITLE. 

12 This Act may be cited as the ‘‘Combating Military 

13 Counterfeits Act of 2011’’. 

14 SEC. 2. TRAFFICKING IN COUNTERFEIT MILITARY GOODS 

15 OR SERVICES. 

16 (a) TRAFFICKING IN COUNTERFEIT MILITARY GOODS

17 OR SERVICES.—Section 2320 of title 18, United States 

18 Code, is amended— 

19 (1) in subsection (a), by adding at the end the 

20 following: 

21 ‘‘(3) MILITARY GOODS OR SERVICES.— 

22 ‘‘(A) IN GENERAL.—A person who commits 

23 an offense under paragraph (1) shall be punished 

24 in accordance with subparagraph (B) if— 


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1 ‘‘(i) the offense involved a good or serv2 ice described in paragraph (1) that if it 

3 malfunctioned, failed, or was compromised, 

4 could reasonably be foreseen to cause— 

5 ‘‘(I) serious bodily injury or 

6 death; 

7 ‘‘(II) disclosure of classified infor8 mation; 

9 ‘‘(III) impairment of combat op10 erations; or 

11 ‘‘(IV) other significant harm to a 

12 member of the Armed Forces or to na13 tional security; and 

14 ‘‘(ii) the person had knowledge that the 

15 good or service is falsely identified as meet16 ing military standards or is intended for 

17 use in a military or national security ap18 plication. 

19 ‘‘(B) PENALTIES.— 

20 ‘‘(i) INDIVIDUAL.—An individual who 

21 commits an offense described in subpara22 graph (A) shall be fined not more than 

23 $5,000,000, imprisoned for not more than 

24 20 years, or both. 


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1 ‘‘(ii) PERSON OTHER THAN AN INDI2 VIDUAL.—A person other than an indi3 vidual that commits an offense described in 

4 subparagraph (A) shall be fined not more 

5 than $15,000,000. 

6 ‘‘(C) SUBSEQUENT OFFENSES.— 

7 ‘‘(i) INDIVIDUAL.—An individual who 

8 commits an offense described in subpara9 graph (A) after the individual is convicted 

10 of an offense under subparagraph (A) shall 

11 be fined not more than $15,000,000, impris12 oned not more than 30 years, or both. 

13 ‘‘(ii) PERSON OTHER THAN AN INDI14 VIDUAL.—A person other than an indi15 vidual that commits an offense described in 

16 subparagraph (A) after the person is con17 victed of an offense under subparagraph (A) 

18 shall be fined not more than $30,000,000.’’; 

19 and 

20 (2) in subsection (e)— 

21 (A) in paragraph (1), by striking the period 

22 at the end and inserting a semicolon; 

23 (B) in paragraph (3), by striking ‘‘and’’ at 

24 the end; 


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1 (C) in paragraph (4), by striking the period 

2 at the end and inserting a semicolon; and 

3 (D) by adding at the end the following: 

4 ‘‘(5) the term ‘falsely identified as meeting mili5 tary standards’ relating to a good or service means 

6 there is a material misrepresentation that the good or 

7 service meets a standard, requirement, or specifica8 tion issued by the Department of Defense, an Armed 

9 Force, or a reserve component; and 

10 ‘‘(6) the term ‘use in a military or national se11 curity application’ means the use of a good or service, 

12 independently, in conjunction with, or as a compo13 nent of another good or service— 

14 ‘‘(A) during the performance of the official 

15 duties of the Armed Forces of the United States 

16 or the reserve components of the Armed Forces; 

17 or 

18 ‘‘(B) by the United States to perform or di19 rectly support— 

20 ‘‘(i) combat operations; or 

21 ‘‘(ii) critical national defense or na22 tional security functions.’’. 

23 (b) SENTENCING GUIDELINES.— 

24 (1) DEFINITION.—In this subsection, the term 

25 ‘‘critical infrastructure’’ has the meaning given that 


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1 term in application note 13(A) of section 2B1.1 of the 

2 Federal Sentencing Guidelines. 

3 (2) DIRECTIVE.—The United States Sentencing 

4 Commission shall review and, if appropriate, amend 

5 the Federal Sentencing Guidelines and policy state6 ments applicable to persons convicted of an offense 

7 under section 2320(a) of title 18, United States Code, 

8 to reflect the intent of Congress that penalties for such 

9 offenses be increased for defendants that sell infring10 ing products to, or for the use by or for, the Armed 

11 Forces or a Federal, State, or local law enforcement 

12 agency or for use in critical infrastructure or in na13 tional security applications. 

14 (3) REQUIREMENTS.—In amending the Federal 

15 Sentencing Guidelines and policy statements under 

16 paragraph (2), the United States Sentencing Commis17 sion shall— 

18 (A) ensure that the guidelines and policy 

19 statements, including section 2B5.3 of the Fed20 eral Sentencing Guidelines (and any successor 

21 thereto), reflect— 

22 (i) the serious nature of the offenses de23 scribed in section 2320(a) of title 18, 

24 United States Code; 


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1 (ii) the need for an effective deterrent 

2 and appropriate punishment to prevent of3 fenses under section 2320(a) of title 18, 

4 United States Code; and 

5 (iii) the effectiveness of incarceration 

6 in furthering the objectives described in 

7 clauses (i) and (ii); 

8 (B) consider an appropriate offense level en9 hancement and minimum offense level for of10 fenses that involve a product used to maintain or 

11 operate critical infrastructure, or used by or for 

12 an entity of the Federal Government or a State 

13 or local government in furtherance of the admin14 istration of justice, national defense, or national 

15 security; 

16 (C) ensure reasonable consistency with other 

17 relevant directives and guidelines and Federal 

18 statutes; 

19 (D) make any necessary conforming changes 

20 to the guidelines; and 

21 (E) ensure that the guidelines relating to of22 fenses under section 2320(a) of title 18, United 

23 States Code, adequately meet the purposes of sen24 tencing, as described in section 3553(a)(2) of 

25 title 18, United States Code. 


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1 (4) EMERGENCY AUTHORITY.—The United States 

2 Sentencing Commission shall— 

3 (A) promulgate the guidelines, policy state4 ments, or amendments provided for in this Act 

5 as soon as practicable, and in any event not 

6 later than 180 days after the date of enactment 

7 of this Act, in accordance with the procedure set 

8 forth in section 21(a) of the Sentencing Act of 

9 1987 (28 U.S.C. 994 note), as though the author10 ity under that Act had not expired; and 

11 (B) pursuant to the emergency authority 

12 provided under subparagraph (A), make such 

13 conforming amendments to the Federal Sen14 tencing Guidelines as the Commission determines 

15 necessary to achieve consistency with other 

16 guideline provisions and applicable law. 


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Calendar No. 107 

112TH CONGRESS 

1ST SESSION S. 1228 

A BILL 

To prohibit trafficking in counterfeit military goods 

or services. 

JULY 21, 2011 

Reported with an amendment 


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