S. 3017 – Reading Mode

111th CONGRESS

2d Session

S. 3017

IN THE SENATE OF THE UNITED STATES

February 23, 2010

Mr. Specter (for himself, Mr. Kaufman, Mr. Schumer, and Ms. Klobuchar) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To protect State and local witnesses from tampering and retaliation, and for other purposes.

Short title

This Act may be cited as the State Witness Protection Act of 2010.

Protection of State and local witnesses

(a)

In general

Chapter 73 of title 18, United States Code, is amended by adding at the end the following:

1522.

State and local witness tampering and retaliation

(a)

Definitions

In this section—

(1)

the term State official proceeding means a proceeding before a judge or court of a State or political subdivision thereof; and

(2)

the term physical force has the meaning given the term in section 1515.

(b)

Tampering and retaliation

It shall be unlawful, in a circumstance described in subsection (c), for a person to kill, attempt to kill, use physical force or the threat of physical force against, harass, intimidate or attempt to intimidate, or offer anything of value to, another individual, with the intent to—

(1)

influence, delay, or prevent the testimony or attendance of any person in a State official proceeding;

(2)

prevent the production of a record, document, or other object, in a State official proceeding;

(3)

cause or induce any person to—

(A)

withhold testimony, or withhold a record, document, or other object from a State official proceeding;

(B)

alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in a State official proceeding;

(C)

evade legal process summoning that person to appear as a witness, or to produce a record, document or other object in a State official proceeding; or

(D)

be absent from a State official proceeding to which that person has been summoned by legal process;

(4)

hinder, delay, or prevent the communication by any person to a law enforcement officer or judge of a State, or political subdivision thereof, of information relating to the violation or possible violation of a law of a State or political subdivision thereof, or a violation of conditions of probation, parole, or release pending judicial proceedings; or

(5)

retaliate against any person for—

(A)

the attendance of a witness or party at a State official proceeding, or any testimony given or any record, document, or other object produced by a witness in a State official proceeding; or

(B)

providing to a law enforcement officer any information relating to the violation or possible violation of a law of a State or political subdivision thereof, or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings.

(c)

Circumstances

A circumstance described in this subsection is that—

(1)

any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense;

(2)

any person travels or is transported in interstate or foreign commerce in the course of the commission of or in furtherance of the commission of the offense; or

(3)

any weapon, including a firearm, shipped or transported across State lines or in interstate or foreign commerce is used in committing or in furtherance of the commission of the offense.

(d)

Penalties

(1)

In general

Any person that violates this section—

(A)

in the case of a killing, shall be punished as provided under sections 1111 and 1112;

(B)

in the case of an attempt to murder, or the use or attempted use of physical force against any person, shall be fined under this title, or imprisoned for not more than 30 years, or both; and

(C)

in the case of any other violation of this section, shall be fined under this title, imprisoned for not more than 20 years, or both.

(2)

Exception

If the offense under this section occurs in connection with a trial of a criminal case, the maximum term of imprisonment that may be imposed for the offense shall be the higher of—

(A)

the penalty described in paragraph (1); or

(B)

the maximum term that could have been imposed for any offense charged in the criminal case.

(3)

Attempt and Conspiracy

Any person who attempts or conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

(e)

Affirmative defense

It is an affirmative defense to a prosecution under this section, which the defendant shall prove by a preponderance of the evidence, that the conduct committed by the defendant—

(1)

consisted solely of lawful conduct; and

(2)

that the sole intention of the defendant was to encourage, induce, or cause the other person to testify truthfully.

(f)

Pending proceeding; evidentiary value

For the purposes of this section—

(1)

a State official proceeding need not be pending or about to be instituted at the time of the offense; and

(2)

the testimony, or the record, document, or other object obstructed, tampered, or retaliated against by the defendant need not be admissible in evidence or free of a claim of privilege.

(g)

Intent

In a prosecution for an offense under this section, the state of mind need not be proved with respect to—

(1)

a State official proceeding before a judge, court, magistrate judge, or grand jury being before a judge or court of a State or political subdivision thereof;

(2)

a judge being a judge of a State or political subdivision thereof; or

(3)

a law enforcement officer being an officer or employee of the State or political subdivision thereof.

(h)

Venue

A prosecution brought under this section may be brought—

(1)

in the district in which the State official proceeding (whether or not pending or about to be instituted) was intended to be affected; or

(2)

in the district which the conduct constituting the alleged offense occurred.

(b)

Technical and conforming amendment

The table of contents for chapter 73 of title 18, United States Code, is amended by adding at the end the following:

1522. State and local witness tampering and retaliation.

Sentencing guidelines enhancement

Pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this section, the United States Sentencing Commission shall amend the Federal Sentencing Guidelines to increase the guideline range for Obstruction of Justice, §2J1.2, as follows—

(1)

by 2 levels if the defendant threatened or harmed 1 or more individuals on more than 1 occasion;

(2)

by 2 levels if the defendant accepted or paid a bribe or payoff as part of a scheme to obstruct justice;

(3)

by 2 levels if the defendant destroyed or caused the destruction of documents on a computer; and

(4)

by 6 levels if the offense resulted in substantial interference with the administration of justice.