[Congressional Record Volume 156, Number 23 (Tuesday, February 23, 2010)]
[Senate]
[Pages S700-S701]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself, Mr. Kaufman, Mr. Schumer, and Ms. 
        Klobuchar):
  S. 3017. A bill to protect State and local witnesses from tampering 
and retaliation, and for other purposes; to the Committee on the 
Judiciary.
  Mr. SPECTER. Mr. President, I have sought recognition to introduce 
legislation to make it a Federal offense to intimidate or threaten a 
witness in a State court proceeding.
  This legislation I believe to be necessary based upon some very 
disastrous experiences in the criminal courts in Philadelphia, as 
evidenced by a lengthy series of articles in the Philadelphia Inquirer 
and a field hearing which the Judiciary Subcommittee on Crime and Drugs 
held in Philadelphia. What has occurred is that in many instances, 
witnesses are intimidated--even murdered--to prevent them from 
testifying.
  The crime scenes in our big cities are atrocious. I spent eight years 
as the district attorney of Philadelphia. When I left that position, I 
didn't think the crime problem could be worse, but regrettably it is 
now, in many aspects. One of the aspects has been for the young thugs 
who are under accusation or friends of those who are under charge to go 
to the witnesses and terrify them and even murder them. During the 
course of the field hearing, we had two parents testify about how their 
children were brutally murdered.
  It is a violation of State law to intimidate a witness, but making it 
a Federal offense imports a great deal more pressure, more power to the 
situation. People do not like the Federal presence, the initiation of a 
criminal case, the investigation by the FBI, and the treatment of the 
Federal courts is materially different--at least in Philadelphia--than 
it is in the State court proceedings.
  I think this kind of legislation would be very salutary. If you don't 
have the integrity of the judicial process protected, it is a very sad 
day in the administration of justice. I introduced this legislation on 
behalf of Senator Schumer, Senator Klobuchar, and Senator Kaufman.
  Mr. President, I ask unanimous consent that the full text of my 
statement and the text of the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

       Mr. SPECTER. Mr. President, I have sought recognition to 
     introduce the State Witness Protection Act of 2010. I am 
     joined on this legislation by Senators Kaufman, Schumer and 
     Klobuchar as original cosponsors.
       As reported by the Philadelphia Inquirer on December 14, 
     2009, ``[p]rosecutors, detectives, and even some defense 
     attorneys say witness fear has become an unspoken factor in 
     virtually every court case involving violent crime in 
     Philadelphia. Reluctant or terrified witnesses routinely fail 
     to appear in court, and when they do, they often recant their 
     earlier testimony or statement to police.''
       One Philadelphia Assistant District Attorney is quoted in 
     the article saying that at least one witness in every murder 
     trial recants. As a result, Assistant District Attorneys 
     learn to ``lock in'' witness testimony early with signed 
     statements and testimony under oath, and are expert in cross-
     examining witnesses who ``go south.'' At times, the 
     prosecutors are forced to lock up witnesses on material 
     witness warrants to assure their appearance at trial.
       In Philadelphia between 2006 and 2008, the District 
     Attorney's Office filed witness intimidation charges against 
     approximately 1,000 individuals. Their conviction rate on 
     these charges, however, is only 28%.
       Witness intimidation and violent crime are problems that I 
     have worked on for decades, since I was an Assistant District 
     Attorney and later District Attorney in Philadelphia, and on 
     the Judiciary Committee, where I have served since 1981 when 
     I was sworn in.
       Criminal trials cannot proceed unless there are witnesses, 
     and if witnesses are subject to intimidation or even worse, 
     murdered, criminal cases cannot go forward. And unless 
     witnesses can be assured they will be protected, the problem 
     of witness intimidation cannot be expected to go away.
       Philadelphia's witness intimidation problems are similar to 
     those faced by many communities in our country. A recent Op-
     Ed in the Chicago Tribune stated that witnesses often want to 
     cooperate with police, but the risk of retribution is too 
     great. The article posed the following question ``What would 
     happen if we diminished the risk and created a greater sense 
     of assurance that the law would do its job in actually making 
     the streets safe as well as protecting those who decide to 
     turn killers in?''
       On January 8, 2010, I chaired a field hearing in 
     Philadelphia for the Senate Judiciary Subcommittee on Crime 
     and Drugs on witness intimidation to explore how law 
     enforcement can better protect witnesses. Two parents--each 
     who lost a child to gun violence--testified. Barbara Clowden 
     told us that her son Eric Hayes, 17 years old, was killed 
     just two days before he was to testify in an arson trial in 
     Philadelphia. Because Eric's life had been threatened, in 
     January 2006 his family entered into the city's witness 
     relocation program. Eventually the money from the program ran 
     out and they had to relocate to Northeast Philadelphia where 
     Eric was murdered. No one to date has been convicted of 
     Eric's murder.
       Ted Canada is a Philadelphia resident and SEPTA bus driver. 
     In 2005, his son Lamar Canada was shot 12 times and killed by 
     Dominick Peoples and another unidentified shooter in 
     Philadelphia over a gambling debt. One witness to the 
     shooting, Johnta Gravitt, 17 years old, was murdered 10 days 
     after he testified at the preliminary hearing and identified 
     Peoples as one of the shooters. Another witness initially 
     cooperated but after his statement to the police was publicly 
     posted in his neighborhood identifying him as a ``snitch,'' 
     he recanted. Peoples, nevertheless, was convicted.
       The most notorious example of witness intimidation in 
     Philadelphia involves Kaboni Savage, a drug kingpin who was 
     federally indicted last April on racketeering and murder 
     charges for retaliating against his former drug associate, 
     Eugene Coleman. Coleman had agreed to testify against Savage 
     in a federal trial. The federal charges allege that to 
     retaliate for this, Savage orchestrated the firebombing of 
     Coleman's family home on the 3200 block of North 6th Street 
     in Philadelphia during the early morning hours of October 9, 
     2004. Killed in the fire were Coleman's mother, Marcella 
     Coleman (age 54); Coleman's infant son, Damir Jenkins (15 
     months old); Marcella Coleman's niece, Tameka Nash (age 34), 
     and her daughter, Khadjah Nash (age 10); Marcella Coleman's 
     grandson, Tahj Porchea (age 12); and a family friend, Sean 
     Rodriguez (age 15). In a conversation secretly recorded by 
     court authorized wiretaps, Savage explained how witness 
     intimidation works, ``Without the witnesses, you don't have 
     no case . . . No witness, no crime.''
       The witness intimidation problem is exacerbated by internet 
     sites, such as whosarat.com, which expose the identities of 
     witnesses and government informants. Gang members and 
     criminals are becoming more computer savvy. They use the 
     internet to find out who may be a cooperating witness by 
     accessing public court dockets. They also access other sites 
     to locate these individuals. With this information obtained 
     anonymously through the internet, gang members and other 
     criminals can easily threaten or harm witnesses, as well as 
     their family members.
       It is imperative that we find a way to make people feel 
     safe if they step forward and provide information to law 
     enforcement. As Philadelphia Police Commissioner Charles H. 
     Ramsey testified at the Subcommittee hearing, ``the only way 
     we're going to deal with crime in communities is when the 
     community steps forward, but they have to feel comfortable in 
     doing so and know they have support.''
       To better protect state witnesses from witness tampering 
     and witness retaliation, I am introducing today The State 
     Witness Protection Act of 2010, a bill that ensures that 
     state witnesses will receive the same protections

[[Page S701]]

     from actions of intimidation and retaliation as federal 
     witnesses have under federal law. Making this a federal 
     offense and bringing in the FBI to investigate, as 
     Commissioner Ramsey testified, ``would make a tremendous 
     difference and make people think twice before they'' engaged 
     in witness intimidation He explained it this way--
       I just think the whole environment or atmosphere when you 
     go into a Federal court versus a local court is just somewhat 
     different, and they [defendants] haven't been exposed to it 
     that often. I just think it has an impact in the feedback 
     I've gotten from people on both sides, whether it's another 
     law enforcement agency or from a person who's been in the 
     criminal justice system. They do not want to go into Federal 
     court. (Tr. At 16).
       The bill, which tracks the language of 18 U.S.C. 
     Sec. Sec. 1512 and 1513, provides the same penalties as now 
     provided in federal court for witness tampering in state 
     court proceedings. For state court proceedings, the bill 
     makes it a federal offense to kill, physically harm, threaten 
     to physically harm, harass, or intimidate, or offer anything 
     of value to, a state court witness or victim if done--
       with the intent to influence another person's testimony;
       with the intent to induce another to withhold testimony or 
     records, alter or destroy evidence, evade legal process, or 
     be absent from a state proceeding if that person has been 
     summoned by legal process;
       with the intent to hinder or prevent a person from 
     providing information to law enforcement; or
       with the intent to retaliate against anyone for being a 
     witness or providing testimony or information to law 
     enforcement.
       Federal jurisdiction is established by prosecuting only 
     cases where there are communications in furtherance of the 
     offense by mail, interstate or foreign commerce by any means, 
     including computer, interstate or foreign travel in 
     furtherance of the commission of the offense, or the use of 
     weapons which have been shipped or transported across state 
     lines. Any attempt or conspiracy to commit these same 
     offenses is also illegal and subject to the same penalties. 
     And finally, the bill provides for specific guideline 
     enhancements for all obstruction offenses.
       The message must be sent loud and clear that serious 
     penalties will be imposed on those who dare to attempt to 
     obstruct justice in our country. The ``State Witness 
     Protection Act of 2010'' is a strong means of delivering that 
     necessary message.
                                  ____


                                S. 3017

       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 ``State Witness Protection Act 
     of 2010''.

     SEC. 2. 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:

     ``Sec. 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.''.

     SEC. 3. 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, Sec. 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.
                                 ______