Honoring Our Armed Forces

Mr. BIDEN. Mr. President, I rise today to speak in support of Karen Tandy's nomination to be Administrator of the Drug Enforcement Administration. I am pleased that the Senate confirmed her nomination last night.

I had an opportunity to meet with Ms. Tandy a few weeks ago in my office and I was quite impressed by her. With more than a quarter century of experience in drug enforcement, I believe that she is not only well qualified to be the DEA Administrator, but that she will also bring a passion for drug policy to the job.

Both in her work as a prosecutor and in leadership positions at the Justice Department, Ms. Tandy's focus has
been on drug trafficking, money laundering and asset forfeiture. She has served as an Assistant U.S. Attorney in Virginia and Washington State, Chief of Litigation in the Asset Forfeiture Office and Deputy Chief of the Narcotics and Dangerous Drugs Section at Main Justice. For the past 4 years she has served as Associate Deputy Attorney General and the Director of the Organized Crime Drug Enforcement Task Force (OCDETF) program. During that time she has focused the OCDETF program and provided tremendous leadership.

Her nomination has the endorsement of a number of well-respected organizations including the Fraternal Order of Police, the National Troopers Association, the Association of Former Narcotics Agents, the National Narcotics Officers' Association Coalition, the Community Anti-Drug Coalitions of America, the County Executives of America, and the International Union of Police Associations.

Ms. Tandy comes to the DEA at a time when both Federal and State resources for drug investigations are shrinking. I believe that she will have a difficult time fighting for scarce resources and keeping the drug issue on the national agenda.

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After September 11, the FBI transferred 567 agents from counterdrug investigation to counter-terrorism investigations and the DEA was left to fill in the gap without adequate funding. The President's 2004 budget only provides funding for an additional 233 Special Agents. By shutting down popular programs such as the Mobile and Regional Enforcement Teams, DEA has been able to shuffle around 362 agents, making them look like new agents when they are not.

The magnitude of the gap left by the FBI is quite troubling. According to a recent GAO report, the number of FBI Agents working on drug cases has decreased by more than 62 percent, from 891 to 335, since September 2001. And the number of new FBI drug cases has plummeted from 1,825 in fiscal year 2000 to only 310 in the first half of fiscal year 2003.

It is clear that the DEA will need more resources if it is expected to fill the sizeable void left by the FBI. That is why I joined with twelve other Senators to write to the appropriators urging that they provide more money for the DEA to be able to do its job. I hope that at the end of the day the Congress will be able to give them more money than the President requested.

Another issue which relates closely to the work of the DEA, is the Illicit Drug Anti-Proliferation Act, legislation which I authored that became law as part of the PROTECT Act in April. The bill provides Federal prosecutors the tools needed to combat the manufacture, distribution or use of any controlled substance at any venue whose purpose is to engage in illegal narcotics activity. Rather than create a new law, it merely amends a well-established statute to make clear that anyone who knowingly and intentionally uses their property—or allows another person to use their property—for the purpose of distributing or manufacturing or using illegal drugs can be held accountable, regardless of whether the drug use is ongoing or occurs at a single event.

I introduced this legislation after holding a series of hearings regarding the dangers of Ecstasy and the rampant drug promotion associated with some raves. For the past few years Federal prosecutors have been using the so-called "crack house statute"—a law which makes it illegal for someone to knowingly and intentionally hold an event for the purpose of drug use, distribution or manufacturing—to prosecute rogue rave promoters who profit off of putting kids at risk. My bill simply amended that existing law in two ways. First, it made the "crack house statute" apply not just to ongoing drug distribution operations, but to "single-event" activities, including an event where the promoter has as his primary purpose the sale of Ecstasy or other illegal drugs. And second, it made the law apply to outdoor as well as indoor activity.

Although this legislation grew out of the problems identified at raves, the criminal and civil penalties in the bill would also apply to people who promoted any type of event for the purpose of illegal drug manufacturing, sale, or use. This said, it is important to recognize that this legislation is not designed in any way, shape or form to hamper the activities of legitimate event promoters. If rave promoters and sponsors operate such events as they are so often advertised—as places for peopled to come dance in a safe, drug-free environment—then they have nothing to fear from this law. In no way is this bill aimed at stifling any type of music or expression—it is only trying to deter illicit drug use and protect kids.

I know that there will always be certain people who will bring drugs into musical or other events and use them without the knowledge or permission of the promoter or club owner. This is not the type of activity that my bill addresses. The purpose of my legislation is not to prosecute legitimate law-abiding managers of stadiums, arenas, performing arts centers, licensed beverage facilities and other venues because of incidental drug use at their events. In fact, when crafting this legislation, I took steps to ensure that it did not capture such cases. My bill would help in the prosecution of rogue promoters who intentionally hold the event for the purpose of illegal drug use or distribution. That is quite a high bar.

I am committed to making sure that this law is enforced properly and have been in close contact with officials from the Drug Enforcement Administration to make sure that the law is properly construed. That is why I was concerned by press reports about a DEA Agent in Billings, Montana who misinterpreted the Illicit Drug Anti-Proliferation Act when he approached the manager of the local Eagles Lodge to warn her that she may be violating the new law if the Lodge allowed the National Organization to Reform Marijuana Laws (NORML) to have a fundraiser at their facility.

I was troubled to hear this because, according to press reports, the Eagles Lodge had no knowledge that there might be drug activity at their location before the DEA approached them. And following the DEA Agent's misguided advice based on an inaccurate understanding of the law, the Lodge decided to cancel the NORML event, leading to an outcry from various groups that the new law has stifled free speech.

As I mentioned, the law only applies to those who "knowingly and intentionally" hold an event "for the purpose of" drug manufacturing, sale and use. Based upon my understanding of the facts around the NORML fundraising incident, the Eagles Lodge did not come anywhere close to violating that high legal standard.

I had my staff meet with the DEA chief counsel's office to discuss the Eagles Lodge incident and DEA's interpretation of the law. The DEA assured my office that they shared my understanding of the law and that this interpretation of the statute was conveyed to all DEA field offices shortly after the bill was signed into law.
In a June 19, 2003, letter to me from DEA Acting Administrator William B. Simpkins, the DEA acknowledged that the Special Agent "misinterpreted" DEA's initial legal guidance on the law and "incorrectly" suggested to the Eagles Lodge that the law might apply to the NORML fundraiser. DEA conceded that "[r]egrettably, the DEA Special Agent's incorrect interpretation of the statute contributed to the decision of the Eagles Lodge to cancel the event." In response to this misguided interpretation of the law, the DEA issued on June 17, 2003, supplemental guidance in a memo to all DEA field agents making clear that:

property owners not personally involved in illicit drug activity would not be violating the Act unless they knowingly and intentionally permitted on their property an event primarily for the purpose of drug use. Legitimate property owners and event promoters would not be violating the Act simply based upon or just because of illegal patron behavior.

I have expressed clearly to Ms. Tandy my expectation that the law will be applied narrowly and responsibly. Ms. Tandy has confirmed that under her direction the DEA will implement the law as it was intended, targeting only those events whose promoters knowingly and intentionally allow the manufacture, sale or use of illegal drugs. In the DEA's June 19, 2003 letter to me, it noted that its initial May 15, 2003 guidance:

informed [DEA] personnel that [the law's] requirements of 'knowledge' and 'intent' were not changed by the [new] Act. Accordingly, legitimate event promoters, such as bona fide managers of stadiums, arenas, performing arts centers, and licensed beverage facilities should not be concerned that they will be prosecuted simply based upon or just because of illegal patron activity.

Obviously, DEA's May 15th guidance was not sufficient to prevent the unfortunate Eagles Lodge incident but it reveals the Agency's understanding and intent not to target and prosecute the sorts of legitimate businesses cited above. As this is a new law, Ms. Tandy agrees that DEA must and will redouble its efforts in training its agents on the proper legal interpretation.

Finally, let me conclude by making two final responses to some critics of my law who have claimed; one, that it stretches the law beyond its original intention, and two, that it creates a legal standard that will permit innocent businessmen, concert promoters, even homeowners to be prosecuted for the drug use of those who come to their property. Both charges are wrong, as I will now explain.

First, my law amended section 856 of Title 21, U.S. Code. Section 856 became law in 1986. While section 856 has become known popularly as the "crack house statute," it has always been 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).]

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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.

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Here is the bottom line: Section 856 has been on the books for 17 years and I'm unaware of it ever being used to go after a concert promoter, a venue owner, or a private citizen for the incidental drug use of their patrons or guests. Why? Because, as the Federal court decisions I have briefly reviewed today show, we wrote into law a high burden of proof to make sure that innocent actors don't get prosecuted. If you don't know for example, that the guy renting your arena plans to sell drugs, you are off the hook. If you don't intend for the guy renting your arena to sell drugs, you are off the hook. And if you don't intend that the guy renting your arena do so for the specific purpose of selling drugs, you are off the hook.

So let's get our facts straight here. It is just not helpful for critics of section 856 to run around screaming that the "sky is falling," when it has not fallen for 17 years and has no reason to start now. As stated earlier, innocent actors have nothing to fear from this statute and I intend to monitor the enforcement of the Illicit Drug Anti-Proliferation Act closely to make sure that it is used properly. If someone uses a rave, or any other event, as a pretext to sell ecstasy to kids, they should go to jail, plain and simple. But that sad reality should not prevent responsible event promoters and venue owners around this country from putting on live music shows and other events, just because some of their patrons will inevitably use drugs.

In closing, Asa Hutchinson left some big shoes to fill over at DEA, but I believe that Ms. Tandy is up to the task. And it is wonderful that she will be the first woman to head the DEA. I congratulate her on her confirmation.