[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1739 Introduced in Senate (IS)]








109th CONGRESS
  1st Session
                                S. 1739

    To amend the material witness statute to strengthen procedural 
                  safeguards, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 21, 2005

   Mr. Leahy introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To amend the material witness statute to strengthen procedural 
                  safeguards, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. RELEASE OR DETENTION OF A MATERIAL WITNESS.

    (a) Amendments to Title 18.--Section 3144 of title 18, United 
States Code, is amended to read as follows:
``Sec. 3144. Release or detention of a material witness
    ``(a) Arrest of Material Witness.--
            ``(1) In general.--A judicial officer may order the arrest 
        of a person as a material witness, if it appears from an 
        affidavit filed by a party in a criminal case before a court of 
        the United States, or by an attorney for the Government in a 
        matter occurring before a Federal grand jury, that there is 
        probable cause to believe that--
                    ``(A) the testimony of such person is material in 
                such case or matter; and
                    ``(B) the person has been served with a summons or 
                subpoena and failed or refused to appear as required.
            ``(2) Exception.--A judicial officer may waive the summons 
        or subpoena requirement described in paragraph (1)(B), if the 
        judicial officer finds by clear and convincing evidence that 
        the service of a summons or subpoena--
                    ``(A) is likely to result in the person fleeing; or
                    ``(B) cannot adequately secure the appearance of 
                the person as required.
    ``(b) Warrant for Material Witness.--
            ``(1) Requirements.--A warrant issued under subsection (a) 
        shall--
                    ``(A) contain the name of the material witness or, 
                if the name of such witness is unknown, a name or 
                description by which the witness can be identified with 
                reasonable certainty;
                    ``(B) specify that the testimony of the witness is 
                sought in a criminal case or grand jury proceeding;
                    ``(C) command that the witness be arrested and 
                brought without unnecessary delay before a judicial 
                officer;
                    ``(D) inform the witness of the witness's right to 
                retain counsel or to request that counsel be appointed 
                if the witness cannot obtain counsel; and
                    ``(E) be signed by a judicial officer.
            ``(2) Execution of warrant.--
                    ``(A) Arrest of witness.--A warrant issued under 
                subsection (a) shall be executed by arresting the 
                material witness.
                    ``(B) Warrant to be provided to witness.--
                            ``(i) In general.--Upon arrest, an officer 
                        possessing the warrant shall show such warrant 
                        to the material witness.
                            ``(ii) Warrant not in possession of 
                        arresting officer.--If an officer does not 
                        possess the warrant at the time of arrest of a 
                        material witness, an officer--
                                    ``(I) shall inform the witness of 
                                the existence and purpose of the 
                                warrant; and
                                    ``(II) at the request of the 
                                witness, shall provide the warrant to 
                                the witness as soon as possible.
            ``(3) Return of warrant.--
                    ``(A) After execution.--After executing a warrant 
                issued under subsection (a), an officer shall return 
                the warrant to the judicial officer before whom the 
                material witness is brought in accordance with 
                subsection (c).
                    ``(B) Unexecuted warrant.--At the request of an 
                attorney for the United States Government, an 
                unexecuted warrant shall be brought back to and 
                canceled by a judicial officer.
    ``(c) Initial Appearance.--
            ``(1) Appearance upon arrest.--A material witness arrested 
        pursuant to a warrant issued under subsection (a) shall be 
        brought without unnecessary delay before a judicial officer.
            ``(2) Place of initial appearance.--The initial appearance 
        of a material witness arrested pursuant to a warrant issued 
        under subsection (a) shall be--
                    ``(A) in the district of arrest; or
                    ``(B) in an adjacent district if--
                            ``(i) the appearance can occur more 
                        promptly there; or
                            ``(ii) the warrant was issued there and the 
                        initial appearance will occur on the day of the 
                        arrest.
            ``(3) Procedures.--At the initial appearance described in 
        paragraph (2), a judicial officer shall--
                    ``(A) inform a material witness of--
                            ``(i) the warrant against the witness, and 
                        the application and affidavit filed in support 
                        of the warrant; and
                            ``(ii) the witness's right to retain 
                        counsel or to request that counsel be appointed 
                        if the witness cannot obtain counsel;
                    ``(B) allow the witness a reasonable opportunity to 
                consult with counsel;
                    ``(C) release or detain the witness as provided by 
                subsection (d); and
                    ``(D) if the initial appearance occurs in a 
                district other than where the warrant issued, transfer 
                the witness to such district, provided that the 
                judicial officer finds that the witness is the same 
                person named in the warrant.
    ``(d) Release or Detention.--
            ``(1) In general.--Upon the appearance before a judicial 
        officer of a material witness arrested pursuant to a warrant 
        issued under subsection (a), the judicial officer shall order 
        the release or detention of such witness.
            ``(2) Release.--
                    ``(A) In general.--A judicial officer shall order 
                the release of a material witness arrested pursuant to 
                a warrant issued under subsection (a) on personal 
                recognizance or upon execution of an unsecured 
                appearance bond under section 3142(b), or on a 
                condition or combination of conditions under section 
                3142(c), unless the judicial officer determines by 
                clear and convincing evidence that such release will 
                not reasonably assure the appearance of the witness as 
                required.
                    ``(B) Testimony secured by deposition.--No material 
                witness may be detained because of the inability of the 
                witness to comply with any condition of release if the 
                testimony of such witness can adequately be secured by 
                deposition.
            ``(3) Detention.--
                    ``(A) No reasonable assurance of appearance.--If, 
                after a hearing pursuant to the provisions of section 
                3142(f)(2), a judicial officer finds by clear and 
                convincing evidence that no condition or combination of 
                conditions will reasonably assure the appearance of a 
                material witness as required by this section, such 
                judicial officer may order that the witness be detained 
                for a period not to exceed 5 days, or until the 
                testimony of the witness can adequately be secured by 
                deposition or by appearance before the court or grand 
                jury, whichever is earlier.
                    ``(B) Extension of detention.--
                            ``(i) In general.--Subject to clause (ii), 
                        upon the motion of a party (or an attorney for 
                        the United States Government in a matter 
                        occurring before a Federal grand jury), the 
                        period of detention under subparagraph (A) may 
                        be extended for additional periods of up to 5 
                        days, or until the testimony of a material 
                        witness can adequately be secured by deposition 
                        or by appearance before the court or grand 
                        jury, whichever is earlier.
                            ``(ii) Limit.--The total period of 
                        detention under this subparagraph may not 
                        exceed--
                                    ``(I) 30 days, where the testimony 
                                of the witness is sought in a criminal 
                                case; or
                                    ``(II) 10 days, where the testimony 
                                of the witness is sought in a grand 
                                jury proceeding.
                    ``(C) Good cause required.--A motion under 
                subparagraph (B) shall demonstrate good cause for why 
                the testimony of a material witness could not 
                adequately be secured by deposition or by appearance 
                before the court or grand jury during the previous 5-
                day period.
            ``(4) Factors to be considered.--A judicial officer, in 
        determining whether a material witness should be released or 
        detained--
                    ``(A) shall take into account the available 
                information concerning the history and characteristics 
                of the witness, including the information described in 
                section 3142(g)(3)(A); and
                    ``(B) may consider challenges to the basis of the 
                warrant.
            ``(5) Contents of release order.--A release order issued 
        under paragraph (2) shall comply with the requirements of 
        paragraphs (1) and (2)(B) of section 3142(h).
            ``(6) Contents of detention order.--A detention order 
        issued under paragraph (3) shall comply with the requirements 
        of section 3142(i), provided that a judicial officer shall 
        direct that a material witness be held--
                    ``(A) in a facility separate and apart, to the 
                extent practicable, from persons charged with or 
                convicted of a criminal offense; and
                    ``(B) under the least restrictive conditions 
                possible.
    ``(e) Report.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, the Attorney General shall provide to the Committees on 
        the Judiciary of the Senate and the House of Representatives an 
        annual report regarding the use of this section by the United 
        States Government during the preceding 1-year period.
            ``(2) Content of report.--A report required under paragraph 
        (1) shall include--
                    ``(A) the number of warrants sought under 
                subsection (a), and the number either granted or 
                denied;
                    ``(B) the number of material witnesses arrested 
                pursuant to a warrant issued under subsection (a) whose 
                testimony was not secured by deposition or by 
                appearance before the court or grand jury, and the 
                reasons therefore; and
                    ``(C) the average number of days that material 
                witnesses arrested pursuant to a warrant issued under 
                subsection (a) were detained.''.
    (b) Amendment to Federal Rules of Civil Procedure.--Rule 46(h) of 
the Federal Rules of Criminal Procedure is amended to read as follows:
    ``(h) Supervising Detention Pending Trial.--To eliminate 
unnecessary detention, the court must supervise the detention within 
the district of any defendants awaiting trial and of any persons held 
as material witnesses.''.
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