II 

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, and Mr. MCCAIN) 

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

Committee on the Judiciary 

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’’. 

6 SEC. 2. TRAFFICKING IN COUNTERFEIT MILITARY GOODS 

7 OR SERVICES. 

8 (a) TRAFFICKING IN COUNTERFEIT MILITARY

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

10 States Code, is amended— 


rfrederick on DSKD9S0YB1PROD with BILLS
2 

•S 1228 IS

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

2 following: 

3 ‘‘(3) MILITARY GOODS OR SERVICES.— 

4 ‘‘(A) IN GENERAL.—A person who com5 mits an offense under paragraph (1) shall be 

6 punished in accordance with subparagraph (B) 

7 if— 

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

9 service described in paragraph (1) that if 

10 it malfunctioned, failed, or was com11 promised, could reasonably be expected to 

12 cause— 

13 ‘‘(I) serious bodily injury or 

14 death; 

15 ‘‘(II) disclosure of classified in16 formation; 

17 ‘‘(III) impairment of combat op18 erations; or 

19 ‘‘(IV) other significant harm to a 

20 member of the Armed Forces or to 

21 national security; and 

22 ‘‘(ii) the person had knowledge that 

23 the good or service is falsely identified as 

24 meeting military standards or is intended 


rfrederick on DSKD9S0YB1PROD with BILLS
3 

•S 1228 IS

1 for use in a military or national security 

2 application. 

3 ‘‘(B) PENALTIES.— 

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

5 commits an offense described in subpara6 graph (A) shall be fined not more than 

7 $5,000,000, imprisoned for not more than 

8 20 years, or both. 

9 ‘‘(ii) PERSON OTHER THAN AN INDI10 VIDUAL.—A person other than an indi11 vidual that commits an offense described in 

12 subparagraph (A) shall be fined not more 

13 than $15,000,000. 

14 ‘‘(C) SUBSEQUENT OFFENSES.— 

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

16 commits an offense described in subpara17 graph (A) after the individual is convicted 

18 of an offense under subparagraph (A) shall 

19 be fined not more than $15,000,000, im20 prisoned not more than 30 years, or both. 

21 ‘‘(ii) PERSON OTHER THAN AN INDI22 VIDUAL.—A person other than an indi23 vidual that commits an offense described in 

24 subparagraph (A) after the person is con25 victed of an offense under subparagraph 


rfrederick on DSKD9S0YB1PROD with BILLS
4 

•S 1228 IS

1 (A) shall be fined not more than 

2 $30,000,000.’’; and 

3 (2) in subsection (e)— 

4 (A) in paragraph (1), by striking the pe5 riod at the end and inserting a semicolon; 

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

7 the end; 

8 (C) in paragraph (4), by striking the pe9 riod at the end and a semicolon; and 

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

11 ‘‘(5) the term ‘falsely identified as meeting mili12 tary standards’ relating to a good or service— 

13 ‘‘(A) means the good or service— 

14 ‘‘(i)(I) bears a label, tag, stamp, prod15 uct code, phrase, or emblem of any kind 

16 that indicates that the good or service 

17 meets a standard, requirement, or speci18 fication issued by the Department of De19 fense, an Armed Force, or a reserve com20 ponent; 

21 ‘‘(II) is packaged in a wrapper, con22 tainer, box, case, or packaging of any type 

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

24 product code, phrase, or emblem of any 

25 kind which indicates that the good or servVerDate Mar 15 2010 02:26 Jun 22, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1228.IS S1228

rfrederick on DSKD9S0YB1PROD with BILLS
5 

•S 1228 IS

1 ices meets a standard, requirement, or 

2 specification issued by the Department of 

3 Defense, an Armed Force, or a reserve 

4 component; or 

5 ‘‘(III) is accompanied by or marketed 

6 with a certificate or other oral or written 

7 representation that the good or service 

8 meets a standard, requirement, or speci9 fication issued by the Department of De10 fense, an Armed Force, or a reserve com11 ponent; and 

12 ‘‘(ii) does not meet the standard, re13 quirement, or specification of the Depart14 ment of Defense, an Armed Force, or a re15 serve component that is indicated or rep16 resented in a manner described in clause 

17 (i); and 

18 ‘‘(B) shall not apply to— 

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

20 service in a manner that is unlikely to 

21 cause confusion, to cause mistake, or to 

22 deceive; or 

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

24 requirement, or specification issued by the 

25 Department of Defense, an Armed Force, 


rfrederick on DSKD9S0YB1PROD with BILLS
6 

•S 1228 IS

1 or a reserve component has only a de mini2 mis relationship to national security or the 

3 safety of the members of the Armed 

4 Forces; and 

5 ‘‘(6) the term ‘use in a military or national se6 curity application’ means the use of a good or serv7 ice, independently, in conjunction with, or as a com8 ponent of another good or service— 

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

10 duties of the Armed Forces of the United 

11 States or the reserve components of the Armed 

12 Forces; or 

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

14 directly support— 

15 ‘‘(i) combat operations; or 

16 ‘‘(ii) critical national defense or na17 tional security functions.’’. 

18 (b) SENTENCING GUIDELINES.— 

19 (1) DIRECTIVE.—The United States Sentencing 

20 Commission shall review and, if appropriate, amend 

21 the Federal sentencing guidelines and policy state22 ments applicable to persons convicted of an offense 

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

24 Code, to reflect the intent of Congress that penalties 

25 for such offenses be increased in comparison to 


rfrederick on DSKD9S0YB1PROD with BILLS
7 

•S 1228 IS

1 those provided on the day before the date of enact2 ment of this Act under the guidelines and policy 

3 statements. 

4 (2) REQUIREMENTS.—In amending the Federal 

5 Sentencing Guidelines and policy statements under 

6 paragraph (1), the United States Sentencing Com7 mission shall— 

8 (A) ensure that the guidelines and policy 

9 statements, including section 2B5.3 of the Fed10 eral Sentencing Guidelines (and any successor 

11 thereto), reflect— 

12 (i) the serious nature of the offenses 

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

14 United States Code; 

15 (ii) the need for an effective deterrent 

16 and appropriate punishment to prevent of17 fenses under section 2320(a) of title 18, 

18 United States Code; and 

19 (iii) the effectiveness of incarceration 

20 in furthering the objectives described in 

21 clauses (i) and (ii); 

22 (B) consider the extent to which the guide23 lines appropriately account for the risk, even if 

24 attenuated or unknown to the offender, to 

25 members of the Armed Forces of the United 


rfrederick on DSKD9S0YB1PROD with BILLS
8 

•S 1228 IS

1 States, military readiness, and national security 

2 resulting from an offense committed under sec3 tion 2320(a) of title 18, United States Code, in4 cluding in instances involving a limited value or 

5 quantity of goods or services; 

6 (C) ensure reasonable consistency with 

7 other relevant directives and guidelines and 

8 Federal statutes; 

9 (D) make any necessary conforming 

10 changes to the guidelines; and 

11 (E) ensure that the guidelines relating to 

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

13 United States Code, adequately meet the pur14 poses of sentencing, as described in section 

15 3553(a)(2) of title 18, United States Code. 

16 (3) EMERGENCY AUTHORITY.—The United 

17 States Sentencing Commission shall— 

18 (A) promulgate the guidelines, policy state19 ments, or amendments provided for in this Act 

20 as soon as practicable, and in any event not 

21 later than 180 days after the date of enactment 

22 of this Act, in accordance with the procedure 

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

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

25 authority under that Act had not expired; and 


rfrederick on DSKD9S0YB1PROD with BILLS
9 

•S 1228 IS

1 (B) pursuant to the emergency authority 

2 provided under subparagraph (A), make such 

3 conforming amendments to the Federal sen4 tencing guidelines as the Commission deter5 mines necessary to achieve consistency with 

6 other guideline provisions and applicable law. 

Æ 


rfrederick on DSKD9S0YB1PROD with BILLS