S 1228
112th
CONGRESS
1st Session
S. 1228To
prohibit trafficking in counterfeit military goods or services.
IN
THE SENATE OF THE UNITED STATESJune 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 BILLTo prohibit trafficking in counterfeit
military goods or services.
Be it enacted by the
Senate and House of Representatives of the United States of America in Congress
assembled,
SECTION 1. SHORT TITLE.
This Act
may be cited as the `Combating Military Counterfeits Act of 2011'.
SEC.
2. TRAFFICKING IN COUNTERFEIT MILITARY GOODS OR SERVICES.
(a)
Trafficking in Counterfeit Military Goods or Services- Section 2320 of title 18,
United States Code, is amended--
(1) in subsection (a), by
adding at the end the following:
`(3) MILITARY GOODS
OR SERVICES-
`(A) IN GENERAL- A person who commits
an offense under paragraph (1) shall be punished in accordance with subparagraph
(B) if--
`(i) the offense involved a good
or service described in paragraph (1) that if it malfunctioned, failed, or was
compromised, could reasonably be expected to cause--
`(I) serious bodily injury or death;
`(II) disclosure of classified information;
`(III) impairment of combat operations; or
`(IV) other significant harm to a member of the Armed Forces or to national security;
and
`(ii) the person had knowledge
that the good or service is falsely identified as meeting military standards or
is intended for use in a military or national security application.
`(i) INDIVIDUAL- An individual
who commits an offense described in subparagraph (A) shall be fined not more than
$5,000,000, imprisoned for not more than 20 years, or both.
`(ii) PERSON OTHER THAN AN INDIVIDUAL- A person other than an individual that
commits an offense described in subparagraph (A) shall be fined not more than
$15,000,000.
`(C) SUBSEQUENT OFFENSES-
`(i) INDIVIDUAL- An individual who commits an offense described in subparagraph
(A) after the individual is convicted of an offense under subparagraph (A) shall
be fined not more than $15,000,000, imprisoned not more than 30 years, or both.
`(ii) PERSON OTHER THAN AN INDIVIDUAL- A person other than an individual that
commits an offense described in subparagraph (A) after the person is convicted
of an offense under subparagraph (A) shall be fined not more than $30,000,000.';
and
(A) in paragraph (1), by striking the period at the end and inserting a semicolon;
(B) in paragraph (3), by striking `and' at the end;
(C) in paragraph (4), by striking the period at the end and a semicolon; and
(D) by adding at the end the following:
`(5) the
term `falsely identified as meeting military standards' relating to a good or
service--
`(A) means the good or service--
`(i)(I) bears a label, tag, stamp, product code, phrase, or emblem of any kind
that indicates that the good or service meets a standard, requirement, or specification
issued by the Department of Defense, an Armed Force, or a reserve component;
`(II) is packaged in a wrapper, container, box, case, or packaging of any type
or nature which bears a label, tag, stamp, product code, phrase, or emblem of
any kind which indicates that the good or services meets a standard, requirement,
or specification issued by the Department of Defense, an Armed Force, or a reserve
component; or
`(III) is accompanied
by or marketed with a certificate or other oral or written representation that
the good or service meets a standard, requirement, or specification issued by
the Department of Defense, an Armed Force, or a reserve component; and
`(ii) does not meet the standard, requirement, or specification of the Department
of Defense, an Armed Force, or a reserve component that is indicated or represented
in a manner described in clause (i); and
`(B) shall not apply to--
`(i) the identification
of a good or service in a manner that is unlikely to cause confusion, to cause
mistake, or to deceive; or
`(ii) a
good or service if the standard, requirement, or specification issued by the Department
of Defense, an Armed Force, or a reserve component has only a de minimis relationship
to national security or the safety of the members of the Armed Forces; and
`(6) the term `use in a military or national security application' means the use
of a good or service, independently, in conjunction with, or as a component of
another good or service--
`(A) during the performance
of the official duties of the Armed Forces of the United States or the reserve
components of the Armed Forces; or
`(B) by the
United States to perform or directly support--
`(i) combat operations; or
`(ii) critical
national defense or national security functions.'.
(b) Sentencing Guidelines-
(1) DIRECTIVE- The United States
Sentencing Commission shall review and, if appropriate, amend the Federal sentencing
guidelines and policy statements applicable to persons convicted of an offense
under section 2320(a) of title 18, United States Code, to reflect the intent of
Congress that penalties for such offenses be increased in comparison to those
provided on the day before the date of enactment of this Act under the guidelines
and policy statements.
(2) REQUIREMENTS- In amending
the Federal Sentencing Guidelines and policy statements under paragraph (1), the
United States Sentencing Commission shall--
(A) ensure
that the guidelines and policy statements, including section 2B5.3 of the Federal
Sentencing Guidelines (and any successor thereto), reflect--
(i) the serious nature of the offenses described in section 2320(a) of title 18,
United States Code;
(ii) the need for
an effective deterrent and appropriate punishment to prevent offenses under section
2320(a) of title 18, United States Code; and
(iii) the effectiveness of incarceration in furthering the objectives described
in clauses (i) and (ii);
(B) consider the
extent to which the guidelines appropriately account for the risk, even if attenuated
or unknown to the offender, to members of the Armed Forces of the United States,
military readiness, and national security resulting from an offense committed
under section 2320(a) of title 18, United States Code, including in instances
involving a limited value or quantity of goods or services;
(C) ensure reasonable consistency with other relevant directives and guidelines
and Federal statutes;
(D) make any necessary
conforming changes to the guidelines; and
(E)
ensure that the guidelines relating to offenses under section 2320(a) of title
18, United States Code, adequately meet the purposes of sentencing, as described
in section 3553(a)(2) of title 18, United States Code.
(3) EMERGENCY AUTHORITY- The United States Sentencing Commission shall--
(A) promulgate the guidelines, policy statements, or amendments provided for in
this Act as soon as practicable, and in any event not later than 180 days after
the date of enactment of this Act, in accordance with the procedure set forth
in section 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 note), as though
the authority under that Act had not expired; and
(B) pursuant to the emergency authority provided under subparagraph (A), make
such conforming amendments to the Federal sentencing guidelines as the Commission
determines necessary to achieve consistency with other guideline provisions and
applicable law.
END