[Congressional Record Volume 146, Number 79 (Wednesday, June 21, 2000)]
[Senate]
[Pages S5556-S5558]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. LEAHY (for himself and Mr. Kohl):
S. 2761. A bill to fund task forces to locate and apprehend fugitives
in Federal, State, and local felony criminal cases and to provide
administrative subpoena authority; to the Committee on the Judiciary.
capturing criminals act of 2000
Mr. LEAHY. Mr. President, as a former prosecutor, I am well aware
that fugitives from justice are an important problem and that their
capture is an essential function of law enforcement. According to the
FBI, nearly 550,000 people are currently fugitives from justice on
federal, state, and local felony charges combined. This means that
there are almost as many fugitive felons as there are citizens residing
in my home state of Vermont.
The fact that we have more than one half million fugitives from
justice, a significant portion of whom are convicted felons in
violation of probation or parole, who have been able to flaunt courts
order and avoid arrest, breeds disrespect for our laws and poses
undeniable risks to the safety of our citizens. We must do better. The
Leahy-Kohl ``Capturing Criminals Act of 2000,'' which I introduce
today, will provide additional tools and resources to our federal law
enforcement agencies to pursue and capture fugitive felons on both
federal and state charges.
Our federal law enforcement agencies should be commended for the job
they have been doing to date on capturing federal fugitives and helping
the states and local communities bring their fugitives to justice. The
U.S. Marshals Service, our oldest law enforcement agency, has arrested
over 120,000 federal, state and local fugitives in the past four years,
including more federal fugitives than all the other federal agencies
combined. In prior years, the Marshals Service spearheaded special
fugitive apprehension task forces, called FIST Operations, that
targeted fugitives in particular areas and was singularly successful in
arresting over 34,000 fugitive felons.
Similarly, the FBI has established twenty-four Safe Streets Task
Forces exclusively focused on apprehending fugitives in cities around
the country. Over the period of 1995 to 1999, the FBI's efforts have
resulted in the arrest of a total of 132,292 fugitives, including
64,336, who were state fugitives.
The Capturing Criminals Act would help our law enforcement agencies
keep the pressure on fugitives by authorizing the Attorney General to
establish regional Fugitive Apprehension Task Forces, to be coordinated
by the United States Marshals Service; authorizing administrative
subpoenas for use in obtaining records relevant to finding federal and
state fugitives; and, finally, requesting a comprehensive report on the
administrative subpoena authorities held by federal agencies, which
vary in scope, enforcement and privacy safeguards.
``Administrative subpoena'' is the term generally used to refer to a
demand for documents or testimony by an investigative entity or
regulatory agency that is empowered to issue the subpoena independently
and without the approval of any grand jury, court or other judicial
entity. I am generally skeptical of administrative subpoena power.
Administrative subpoenas avoid the strict grand jury secrecy rules and
the documents provided in response to such subpoenas are, therefore,
subject to broader dissemination. Moreover, since investigative agents
issue such subpoenas directly, without review by a judicial officer or
even a prosecutor, fewer ``checks'' are in place to ensure the subpoena
is issued with good cause and not merely as a fishing expedition.
Nonetheless, unlike initial criminal inquiries, fugitive
investigations present unique difficulties. Law enforcement may not use
grand jury subpoenas since, by the time a person is a fugitive, the
grand jury phase of an investigation is usually over. Use of
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grand jury subpoenas to obtain phone or bank records to track down a
fugitive would be an abuse of the grand jury. Trial subpoenas may also
not be used, either because the fugitive is already convicted or no
trial may take place without the fugitive.
This inability to use trial and grand jury subpoenas for fugitive
investigations creates a disturbing gap in law enforcement procedures.
Law enforcement partially fills this gap by using the All Writs Act, 28
U.S.C. Sec. 1651(a), which authorizes federal courts to ``issue all
writs necessary or appropriate in aid of their respective jurisdictions
and agreeable to the usages and principles of law.'' The procedures,
however, for obtaining orders under this Act, and the scope and non-
disclosure terms of such orders, vary between jurisdictions.
Thus, authorizing administrative subpoena power will help bridge the
gap in fugitive investigations to allow federal law enforcement
agencies to obtain records useful for tracking a fugitive's
whereabouts. The Leahy-Kohl Capturing Criminals Act makes clear that
the approval of a court remains necessary to obtain an order for
nondisclosure of the subpoena and production of the requested records
to the subscriber or customer to whom the records pertain.
I am certainly not alone in recognizing the problem this nation has
with fugitives from justice. Senators Thurmond and Biden have
introduced the ``Fugitive Apprehension Act,'' S. 2516, specifically to
address the difficulties facing law enforcement in this area. I commend
both my colleagues for their leadership. While I agree with the general
purposes of S. 2516, aspects of that bill would be problematic. I look
forward to working with my colleagues on the Judiciary Committee to
resolve the differences in our bills.
Without detailing all of the differences in the bills, let me provide
some examples. As introduced, S. 2516 would limit use of an
administrative subpoena to those fugitives who have been ``indicted,''
which fails to address the fact that fugitives flee after arrest on the
basis of a ``complaint'' and may flee after the prosecutor has filed an
``information'' in lieu of an indictment. The Leahy-Kohl ``Capturing
Criminals Act,'' by contrast, would allow use of such subpoenas to
track fugitives who have been accused in a ``complaint, information or
indictment.''
In addition, S. 2516 requires the U.S. Marshal Service to report
quarterly to the Attorney General (who must transmit the report to
Congress) on use of the administrative subpoenas. In my view, while a
reporting requirement is useful, the requirement as described in S.
2516 is overly burdensome and insufficiently specific. The Leahy-Kohl
``Capturing Criminals Act'' would require the Attorney General to
report for the next three years to the Judiciary Committees of both the
House and Senate with the following information about the use of
administrative subpoenas in fugitive investigations: the number issued,
by which agency, identification of the charges on which the fugitive
was wanted and whether the fugitive was wanted on federal or state
charges.
Although S. 2516 outlines the procedures for enforcement of an
administrative subpoena, it is silent on the mechanisms for both
contesting the subpoena by the recipient and for delaying notice to the
person about whom the record pertains. The Leahy-Kohl ``Capturing
Criminals Act'' expressly addresses these issues.
This legislation will help law enforcement--with increased resources
for regional fugitive apprehension task forces and administrative
subpoena authority--bring to justice both federal and state fugitives
who, by their conduct, have demonstrated a lack of respect for our
nation's criminal justice system. I look forward to working with my
colleagues to ensure swift passage of this legislation.
Mr. President, I ask unanimous consent that the text of my
legislation be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2761
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 ``Capturing Criminals Act of
2000''.
SEC. 2. FUGITIVE APPREHENSION TASK FORCES.
(a) In General.--The Attorney General is authorized to
establish, upon consultation with the Secretary of the
Treasury and appropriate law enforcement officials in the
States, Fugitive Apprehension Task Forces, consisting of
Federal, State, and local law enforcement authorities in
designated regions of the United States, to be coordinated by
the Director of the United States Marshals Service, for the
purpose of locating and apprehending fugitives, as defined by
section 1075 of title 18, United States Code, as added by
this Act.
(b) Authorization of Appropriations.--There are authorized
to be appropriated to the United States Marshals Service to
carry out the provisions of this section $20,000,000 for
fiscal year 2001, $5,000,000 for fiscal year 2002, and
$5,000,000 for fiscal year 2003.
(c) Other Federal and State law.--Nothing in this section
shall be construed to limit the authority under any other
provision of Federal or State law to locate or apprehend a
fugitive .
SEC. 3. ADMINISTRATIVE SUBPOENAS TO APPREHEND FUGITIVES.
(a) In General.--Chapter 49 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 1075. Administrative subpoenas to apprehend fugitives
``(a) Definitions.--In this section--
``(1) the term `fugitive' means a person who--
``(A) having been accused by complaint, information or
indictment, or having been convicted of committing, a felony
under Federal law, flees from or evades (or attempts to flee
from or evade) the jurisdiction of the court with
jurisdiction over the felony;
``(B) having been accused by complaint, information or
indictment, or having been convicted of committing, a felony
under State law, flees from or evades (or attempts to flee
from or evade) the jurisdiction of the court with
jurisdiction over the felony;
``(C) escapes from lawful Federal or State custody after
having been accused by complaint, information or indictment,
or convicted, of committing a felony under Federal or State
law; or
``(D) is in violation of paragraph (2) or (3) of the first
undesignated paragraph of section 1073;
``(2) the term `investigation' means, with respect to a
State fugitive described in subparagraph (B) or (C) of
paragraph (1), an investigation in which there is reason to
believe that the fugitive fled from or evaded (or attempted
to flee from or evade) the jurisdiction of the court, or
escaped from custody, in or affecting, or using any facility
of, interstate or foreign commerce, or as to whom an
appropriate law enforcement officer or official of a State or
political subdivision has requested the Attorney General to
assist in the investigation, and the Attorney General finds
that the particular circumstances of the request give rise to
a Federal interest sufficient for the exercise of Federal
jurisdiction under section 1075; and
``(3) the term `State' means a State of the United States,
the District of Columbia, and any commonwealth, territory, or
possession of the United States.
``(b) Scope.--In any investigation with respect to the
apprehension of a fugitive, the Attorney General may subpoena
witnesses for the purpose of the production of any records
(including books, papers, documents, electronic data, and
other tangible and intangible items that constitute or
contain evidence) that the Attorney General finds, based upon
articulable facts, are relevant to discerning the fugitive's
whereabouts. A subpoena under this subsection shall describe
the records or items required to be produced and prescribe a
return date within a reasonable period of time within which
the records or items can be assembled and made available.
``(c) Jurisdiction.--The attendance of witnesses and the
production of records may be required from any place in any
State or any other place subject to the jurisdiction of the
United States at any designated place where the witness is
served with a subpoena, except that a witness shall not be
required to appear more than 500 miles distant from the place
where the witness was served. Witnesses subpoenaed under this
section shall be paid the same fees and mileage that are paid
witnesses in the courts of the United States.
``(d) Service.--A subpoena issued under this section may be
served by any person designated in the subpoena as the agent
of service. Service upon a natural person may be made by
personal delivery of the subpoena to that person or by
certified mail with return receipt requested. Service may be
made upon a domestic or foreign corporation, a partnership,
or other unincorporated association that is subject to suit
under a common name, by delivering the subpoena to an
officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of
process. The affidavit of the person serving the subpoena
entered on a true copy thereof by the agent of service shall
be proof of service.
``(e)Enforcement.--
``(1) Noncompliance.--In the case of the contumacy by or
refusal to obey a subpoena issued to any person, the Attorney
General may invoke the aid of any court of the United States
within the jurisdiction of which the investigation is carried
on or of which the subpoenaed person is an inhabitant, or in
which he carries on business or may be found, to compel
compliance with
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the subpoena. The court may issue an order requiring the
subpoenaed person to appear before the Attorney General to
produce records if so ordered. Any failure to obey the order
of the court may be punishable by the court as contempt
thereof. All process in any such case may be served in any
judicial district in which the person may be found.
``(2) Rights of a subpoena recipient.--Not later than 20
days after the date of service of an administrative subpoena
under this section upon any person, or at any time before the
return date specified in the subpoena, whichever period is
shorter, such person may file, in the district court of the
United States for the judicial district within which such
person resides, is found, or transacts business, a petition
to modify or quash such subpoena on grounds that--
``(A) the terms of the subpoena are unreasonable or
unnecessary;
``(B) the subpoena fails to meet the requirements of this
section; or
``(C) the subpoena violates the constitutional rights or
any other legal right or privilege of the subpoenaed party.
``(3) Time for response.--The time allowed for compliance
with a subpoena in whole or in part shall be suspended during
the pendency of a petition filed under paragraph (2). Such
petition shall specify the grounds upon which the petitioner
relies in seeking relief.
``(f) Delayed Notice.--
``(1) In general.--Where an administrative subpoena is
issued under this section to a provider of electronic
communication service (as defined in section 2510 of this
title) or remote computing service (as defined in section
2711 of this title), the Attorney General may--
``(A) in accordance with section 2705(a) of this title,
delay notification to the subscriber or customer to whom the
record pertains; and
``(B) apply to a court, in accordance with section 2705(b)
of this title, for an order commanding the provider of
electronic communication service or remote computing service
not to notify any other person of the existence of the
subpoena or court order.
``(2) Subpoenas for financial records.--If a subpoena is
issued under this section to a financial institution for
financial records of any customer of such institution, the
Attorney General may apply to a court under section 1109 of
the Right to Financial Privacy Act of 1978 (12 U.S.C. 3409)
for an order to delay customer notice as otherwise required.
``(3) Nondisclosure requirements.--Except as provided in
paragraphs (1) and (2), the Attorney General may apply to a
court for an order requiring the party to whom an
administrative subpoena is directed to refrain from notifying
any other party of the existence of the subpoena or court
order for such period as the court deems appropriate. The
court shall enter such order if it determines that there is
reason to believe that notification of the existence of the
administrative subpoena will result in--
``(A) endangering the life or physical safety of an
individual;
``(B) flight from prosecution;
``(C) destruction of or tampering with evidence;
``(D) intimidation of potential witnesses; or
``(E) otherwise seriously jeopardizing an investigation or
undue delay of a trial.
``(g) Immunity From Civil Liability.--Any person, including
officers, agents, and employees, who in good faith produce
the records or items requested in a subpoena shall not be
liable in any court of any State or the United States to any
customer or other person for such production or for
nondisclosure of that production to the customer, in
compliance with the terms of a court order for nondisclosure.
``(h) Delegation.--The Attorney General and the Secretary
of the Treasury shall issue guidelines governing the issuance
of administrative subpoenas. Such guidelines shall mandate
that administrative subpoenas may be issued only after review
and approval of senior supervisory personnel within the
Department of Justice and the Department of the Treasury.
``(i) Report.--The Attorney General shall report in January
of each year to the Committees on the Judiciary of the Senate
and the House of Representatives on the number of
administrative subpoenas issued under this section, whether
each matter involved a fugitive from Federal or State
charges, and identification of the agency issuing the
subpoena and imposing the charges. This reporting requirement
shall terminate in 3 years after enactment.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 49 of title 18, United States Code, is amended by
adding at the end the following:
``1075. Administrative subpoenas to apprehend fugitives.''.
SEC. 4. STUDY AND REPORT OF THE USE OF ADMINISTRATIVE
SUBPOENAS.
Not later than December 31, 2001, the Attorney General
shall complete a study on the use of administrative subpoena
power by executive branch agencies or entities and shall
report the findings to the Committees on the Judiciary of the
Senate and the House of Representatives. Such report shall
include--
(1) a description of the sources of administrative subpoena
power and the scope of such subpoena power within executive
branch agencies;
(2) a description of applicable subpoena enforcement
mechanisms;
(3) a description of any notification provisions and any
other provisions relating to safeguarding privacy interests;
(4) a description of the standards governing the issuance
of administrative subpoenas; and
(5) recommendations from the Attorney General regarding
necessary steps to ensure that administrative subpoena power
is used and enforced consistently and fairly by executive
branch agencies.
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