Mr. Biden, Mr. Tebeau and the War on Music Venues

“Yesterday  Jimmy Tebeau, bass guitarist for The Schwag, a Grateful Dead tribute band, was sentenced to 30 months in federal prison and 200 hours of community service for tolerating drug sales during the music festivals he hosted at his southern Missouri campground. Under a plea deal that spares him a possible sentence of up to 20 years, Tebeau will also pay a $50,000 fine and forfeit his 250-acre property, known as Camp Zoe.

The federal charge to which Tebeau pleaded guilty, “maintaining drug-involved premises,” applies to defendants who “manage or control any place” and “intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.” Hence it did not matter that Tebeau neither distributed drugs nor profited from their sale. In fact, he could have faced the same charge even if people merely used drugs at his events, known as Schwagstock and Spookstock. Tebeau reserved the right to challenge the use of this statute against the operator of a concert venue, which has potentially sweeping implications for just about any musical performance where the scent of cannabis perfumes the air.”  Jacob Sullum, Your Government: Making Rock Concerts Illegal, One Grateful Dead Tribute Band at a Time, Reason 10. Oct. 2012.

The government claims that Jimmy Tebeau violated 21 U.S.C. §856(a)(2), as an owner or occupant, by managing and controlling Camp Zoe, and knowingly and intentionally profiting from and making available for use, with or without compensation, Camp Zoe for the purpose of unlawfully storing, distributing, or using controlled substances.

Congress enacted 21 U.S.C. § 856 (also known as the “crack-house” statute) as part of the Anti-Drug Abuse Act of 1986, while expanding the Comprehensive Drug Abuse Prevention and Control Act of 1970. In 2003, worried about the development of dance raves and MDMA, Congress added language to clarify that 21 U.S.C. § 856 penalties reached temporary infractions as well.

The driving force behind the 2003 amendment was (then) Senator Joe Biden (initially with the RAVE Act). Senator Biden also co-sponsored the Anti-Drug Abuse Act of 1986. In 2003, amid hearings to confirm Karen Tandy as administrator of the Drug Enforcement Administration, Biden discussed 21 U.S.C. § 856 in great detail. Perhaps the administration needs a reminder:

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….

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…..

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 he 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.

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. Senator Joe Biden, Congressional Record Volume 149, Number 116, 31 Jul. 2003.