S. 901 — Introduced in Senate

II 113th CONGRESS 1st Session S. 901 IN THE SENATE OF THE UNITED STATES May 8, 2013 Mr. Casey (for himself and Mr. Schumer) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To protect State and local witnesses from tampering and retaliation, and for other purposes. 1. Short title This Act may be cited as the State Witness Protection Act of 2013. 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: 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. . 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, §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. 4. Witness protection grant program (a) In General Subject to subsection (b), the Attorney General shall make competitive grants to eligible State, tribal, and local governments to establish or maintain programs that— (1) provide protection or assistance to witnesses in— (A) court proceedings involving homicide, or involving a serious violent felony or serious drug offense as defined in section 3559(c)(2) of title 18, United States Code; and (B) court proceedings involving gangs or organized crime; and (2) provide information and outreach to the public about witness intimidation. (b) Criteria In making grants under subsection (a), the Attorney General shall evaluate applicants based upon— (1) the extent to which the applicant has a lack of infrastructure to support a witness assistance program; (2) the extent to which witness intimidation is present with respect to the applicant; (3) the level of cases not prosecuted by the applicant due to witness intimidation; (4) the number of homicides per capita committed in the jurisdiction of the applicant; (5) the number of serious violent felonies or serious drug offenses, as defined in section 3559(c)(2) of title 18, United States Code, per capita committed in the jurisdiction of the applicant; (6) the extent to which organized crime is present in the jurisdiction of the applicant; and (7) any other appropriate criteria as determined by the Attorney General. (c) Federal share (1) In general The Federal share of the cost of a project carried out using a grant made under this section shall be not more than 75 percent. (2) In-kind contributions (A) In general Subject to subparagraph (B), the non-Federal share for a project carried out using a grant made under this section may be made in the form of in-kind contributions that are directly related to the purpose for which the grant was made. (B) Maximum percentage Not more than 50 percent of the non-Federal share for a project carried out using a grant made under this section may be in the form of in-kind contributions. (d) Administrative expenses Federal administrative costs to carry out this section for a fiscal year shall not exceed 5 percent of the funds appropriated pursuant to subsection (e) for such fiscal year. (e) Authorization of Appropriations There are authorized to be appropriated such sums as are necessary to carry out this section.