[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.
______