[Congressional Record Volume 161, Number 39 (Monday, March 9, 2015)]
[Senate]
[Pages S1338-S1339]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 272. Mrs. GILLIBRAND submitted an amendment intended to be
proposed by her to the bill S. 178, to provide justice for the victims
of trafficking; which was ordered to lie on the table; as follows:
On page 95, after line 18, insert the following:
SEC. ___. FEDERAL CRIMINAL PROCEDURE POST-CONVICTION RELIEF
FOR VICTIMS OF TRAFFICKING.
(a) In General.--Chapter 237 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 3772. Motion to vacate; expungement; motion to dismiss
``(a) Definitions.--In this section--
``(1) the term `eligible entity' includes--
``(A) a legal aid society or legal services organization
that provides indigent legal services;
``(B) a nonprofit organization that provides legal services
to victims of trafficking; and
``(C) a public defender's office;
``(2) the terms `employee' and `officer' have the meanings
given the terms in section 2105 of title 5; and
``(3) the term `victim of trafficking' has the meaning
given the term in section 103 of the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7102).
``(b) Motion to Vacate.--
``(1) In general.--A person convicted of any offense
against the United States may move the appropriate district
court of the United States to vacate the judgment of
conviction if the offense was committed as a direct result of
the person having been a victim of trafficking.
``(2) Contents of motion.--A motion described in paragraph
(1) shall--
``(A) be in writing;
``(B) describe any supporting evidence;
``(C) state the offense and
``(D) include copies of any documents showing that the
movant is entitled to relief under this section.
``(3) Hearing.--
``(A) Mandatory hearing.--
``(i) Motion in opposition to motion to vacate.--Not later
than 30 days after the date on which a motion is filed under
paragraph (1), the Government may file a motion in opposition
of the motion filed under paragraph (1).
``(ii) Mandatory hearing.--If the Government files a motion
described in clause (i), not later than 15 days after the
date on which the motion is filed, the court shall hold a
hearing on the motion.
``(B) Discretionary hearing.--If the Government does not
file a motion described in subparagraph (A)(i), not later
than 45 days after the date on which a motion is filed under
paragraph (1), the court may hold a hearing on the motion.
``(4) Factors.--The court shall grant a motion under this
section if, after notice to and
[[Page S1339]]
opportunity for the Government to be heard, the court finds,
by a preponderance of the evidence, that--
``(A) the movant was convicted of an offense against the
United States; and
``(B) the participation in the offense by the movant was a
result of the person having been a victim of trafficking.
``(5) Supporting evidence.--
``(A) Rebuttable presumption.--For purposes of this
section, there shall be a rebuttable presumption that the
movant is a victim of trafficking if the movant includes in
the motion--
``(i) a certified copy of an official record of a Federal,
State, tribal, or local proceeding, including an approval
notice or an enforcement certification generated from a
Federal immigration proceeding, that shows that the movant
was a victim of trafficking, including a victim of a
trafficker charged with a violation of chapter 77; or
``(ii) an affidavit or sworn testimony from a trained
professional staff member of a victim services organization,
an attorney, a member of the clergy, or a medical or other
professional from whom the movant has sought assistance in
addressing the trauma associated with being a victim of
trafficking.
``(B) Other evidence.--
``(i) In general.--For purposes of this section, in
determining whether the movant is a victim of trafficking,
the court may consider any other evidence the court
determines is of sufficient credibility and probative value,
including an affidavit or sworn testimony of the movant.
``(ii) Affidavit or sworn testimony of movant sufficient
evidence.--The affidavit or sworn testimony of the movant
described in clause (i) shall be sufficient evidence to
vacate a conviction under this section if the court
determines that--
``(I) the affidavit or sworn testimony is credible; and
``(II) no other evidence is readily available.
``(6) Conviction not required.--It shall not be necessary
that any person other than the movant be convicted of an
offense against the United States before the movant may file
a motion under paragraph (1).
``(7) Denial of motion.--
``(A) In general.--If the court denies a motion filed under
paragraph (1), the denial shall be without prejudice.
``(B) Reasons for denial.--If the court denies a motion
filed under paragraph (1), the court shall state the reasons
for the denial in writing.
``(C) Reasonable time to cure deficiencies in motion.--If
the motion was denied due to a curable deficiency in the
motion, the court shall allow the movant sufficient time for
the movant to cure the deficiency.
``(8) Appeal.--An order granting or denying a motion to
vacate under this section may be appealed in accordance with
section 1291 of title 28 and section 3731 of this title.
``(c) Expungement.--
``(1) In general.--If the court grants a motion to vacate
under subsection (b), the court shall immediately vacate the
conviction, set aside the verdict and enter a judgment of
acquittal, and enter an expungement order that directs that
there be expunged from all official records all references to
the--
``(A) arrest of the person for the offense;
``(B) the institution of criminal proceedings against the
person; and
``(C) the results of the proceedings.
``(2) Effect.--The effect of an order entered under
paragraph (1) shall be to restore the person, in the
contemplation of the law, to the status the person occupied
before the arrest or the institution of the criminal
proceedings.
``(d) Pretrial Motion to Dismiss.--
``(1) In general.--A person charged with an offense against
the United States may move to dismiss the indictment,
information, or complaint if the participation in the offense
by the person was a result of the person having been a victim
of trafficking.
``(2) Applicable rules governing motion.--
``(A) In general.--A motion described in paragraph (1)
shall--
``(i) be deemed to be a motion described in rule
12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure;
and
``(ii) except as provided in subparagraph (B), be governed
by the rules applicable to that motion.
``(B) Ruling on motion.--Notwithstanding rule 12(d) of the
Federal Rules of Criminal Procedure, the court--
``(i) shall decide a motion under this subsection before
trial; and
``(ii) may not defer ruling on the motion until during or
after trial.
``(e) Additional Actions by Court.--The court may, upon
granting a motion under this section take such additional
action as the court determines is appropriate.
``(f) Confidentiality of Movant.--
``(1) In general.--A motion under this section and any
documents, pleadings, or orders relating to the motion shall
be filed under seal.
``(2) Information not available for public inspection.--No
officer or employee may make any report, paper, picture,
photograph, court file or other document, in the custody or
possession of the officer or employee, that identifies the
movant available for public inspection.
``(g) Applicability.--This section shall apply to any
conviction before or on or after the date of enactment of
this section.
``(h) Grant for Best Practices.--
``(1) In general.--On and after the date that is 1 year
after the date of enactment of this section, the Attorney
General of the United States may make grants to eligible
entities to develop, improve, or expand legal services to
carry out this section.
``(2) Authorization of appropriations.--There is authorized
to be appropriated such sums as are necessary to carry out
this section, including providing organizations and agencies
with funds to train legal aid services on motions practices
under this section.''.
(b) Technical and Conforming Amendment.--The table of
sections of chapter 237 of title 18, United States Code, is
amended by adding at the end the following:
``3772. Motion to vacate; expungement; motion to dismiss.''.
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