II

107TH CONGRESS

1ST SESSION S. 1351

To provide administrative subpoena authority to apprehend fugitives.

IN THE SENATE OF THE UNITED STATES

AUGUST 3, 2001

Mr. THURMOND (for himself, Mr. BIDEN, and Mr. HATCH) introduced the following bill; which was read twice and referred to the Committee on the

Judiciary

A BILL

To provide administrative subpoena authority to apprehend

fugitives.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Fugitive Apprehension

5 Act of 2001’’.

6 SEC. 2. ADMINISTRATIVE SUBPOENAS TO APPREHEND FU7 GITIVES.

8 (a) IN GENERAL.—Chapter 49 of title 18, United

9 States Code, is amended by adding at the end the fol10 lowing:
2

•S 1351 IS

1 ‘‘§ 1075. Administrative subpoenas to apprehend fugi2 tives

3 ‘‘(a) DEFINITIONS.—In this section:

4 ‘‘(1) FUGITIVE.—The term ‘fugitive’ means a

5 person who—

6 ‘‘(A) having been accused by complaint, in7 formation, or indictment under Federal law or

8 having been convicted of committing a felony

9 under Federal law, flees or attempts to flee

10 from or evades or attempts to evade the juris11 diction of the court with jurisdiction over the

12 felony;

13 ‘‘(B) having been accused by complaint, in14 formation, or indictment under State law or

15 having been convicted of committing a felony

16 under State law, flees or attempts to flee from,

17 or evades or attempts to evade, the jurisdiction

18 of the court with jurisdiction over the felony;

19 ‘‘(C) escapes from lawful Federal or State

20 custody after having been accused by complaint,

21 information, or indictment or having been con22 victed of committing a felony under Federal or

23 State law; or

24 ‘‘(D) is in violation of subparagraph (2) or

25 (3) of the first undesignated paragraph of sec26 tion 1073.
3

•S 1351 IS

1 ‘‘(2) INVESTIGATION.—The term ‘investigation’

2 means, with respect to a State fugitive described in

3 subparagraph (B) or (C) of paragraph (1), an inves4 tigation in which there is reason to believe that the

5 fugitive fled from or evaded, or attempted to flee

6 from or evade, the jurisdiction of the court, or es7 caped from custody, in or affecting, or using any fa8 cility of, interstate or foreign commerce, or as to

9 whom an appropriate law enforcement officer or offi10 cial of a State or political subdivision has requested

11 the Attorney General to assist in the investigation,

12 and the Attorney General finds that the particular

13 circumstances of the request give rise to a Federal

14 interest sufficient for the exercise of Federal juris15 diction pursuant to section 1075.

16 ‘‘(b) SUBPOENAS AND WITNESSES.—

17 ‘‘(1) SUBPOENAS.—In any investigation with

18 respect to the apprehension of a fugitive, the Attor19 ney General may subpoena witnesses for the purpose

20 of the production of any records (including books,

21 papers, documents, electronic data, and other tan22 gible and intangible items that constitute or contain

23 evidence) that the Attorney General finds, based on

24 articulable facts, are relevant to discerning the

25 whereabouts of the fugitive. A subpoena under this
4

•S 1351 IS

1 subsection shall describe the records or items re2 quired to be produced and prescribe a return date

3 within a reasonable period of time within which the

4 records or items can be assembled and made avail5 able.

6 ‘‘(2) WITNESSES.—The attendance of witnesses

7 and the production of records may be required from

8 any place in any State or other place subject to the

9 jurisdiction of the United States at any designated

10 place where the witness was served with a subpoena,

11 except that a witness shall not be required to appear

12 more than 500 miles distant from the place where

13 the witness was served. Witnesses summoned under

14 this section shall be paid the same fees and mileage

15 that are paid witnesses in the courts of the United

16 States.

17 ‘‘(c) SERVICE.—

18 ‘‘(1) AGENT.—A subpoena issued under this

19 section may be served by any person designated in

20 the subpoena as the agent of service.

21 ‘‘(2) NATURAL PERSON.—Service upon a nat22 ural person may be made by personal delivery of the

23 subpoena to that person or by certified mail with re24 turn receipt requested.
5

•S 1351 IS

1 ‘‘(3) CORPORATION.—Service may be made

2 upon a domestic or foreign corporation or upon a

3 partnership or other unincorporated association that

4 is subject to suit under a common name, by deliv5 ering the subpoena to an officer, to a managing or

6 general agent, or to any other agent authorized by

7 appointment or by law to receive service of process.

8 ‘‘(4) AFFIDAVIT.—The affidavit of the person

9 serving the subpoena entered on a true copy thereof

10 by the person serving it shall be proof of service.

11 ‘‘(d) CONTUMACY OR REFUSAL.—

12 ‘‘(1) IN GENERAL.—In the case of the contu13 macy by or refusal to obey a subpoena issued to any

14 person, the Attorney General may invoke the aid of

15 any court of the United States within the jurisdic16 tion of which the investigation is carried on or of

17 which the subpoenaed person is an inhabitant, or in

18 which he carries on business or may be found, to

19 compel compliance with the subpoena. The court

20 may issue an order requiring the subpoenaed person

21 to appear before the Attorney General to produce

22 records if so ordered.

23 ‘‘(2) CONTEMPT.—Any failure to obey the order

24 of the court may be punishable by the court as con25 tempt thereof.
6

•S 1351 IS

1 ‘‘(3) PROCESS.—All process in any case to en2 force an order under this subsection may be served

3 in any judicial district in which the person may be

4 found.

5 ‘‘(4) RIGHTS OF SUBPOENA RECIPIENT.—Not

6 later than 20 days after the date of service of an ad7 ministrative subpoena under this section upon any

8 person, or at any time before the return date speci9 fied in the subpoena, whichever period is shorter,

10 such person may file, in the district within which

11 such person resides, is found, or transacts business,

12 a petition to modify or quash such subpoena on

13 grounds that—

14 ‘‘(A) the terms of the subpoena are unrea15 sonable or oppressive;

16 ‘‘(B) the subpoena fails to meet the re17 quirements of this section; or

18 ‘‘(C) the subpoena violates the constitu19 tional rights or any other legal rights or privi20 lege of the subpoenaed party.

21 ‘‘(e) GUIDELINES.—

22 ‘‘(1) IN GENERAL.—The Attorney General shall

23 issue guidelines governing the issuance of adminis24 trative subpoenas pursuant to this section.
7

•S 1351 IS

1 ‘‘(2) REVIEW.—The guidelines required by this

2 subsection shall mandate that administrative sub3 poenas may be issued only after review and approval

4 of senior supervisory personnel within the respective

5 investigative agency or component of the Depart6 ment of Justice and of the United States Attorney

7 for the judicial district in which the administrative

8 subpoena shall be served.

9 ‘‘(f) NONDISCLOSURE REQUIREMENTS.—

10 ‘‘(1) IN GENERAL.—Except as otherwise pro11 vided by law, the Attorney General may apply to a

12 court for an order requiring the party to whom an

13 administrative subpoena is directed to refrain from

14 notifying any other party of the existence of the sub15 poena or court order for such period as the court

16 deems appropriate.

17 ‘‘(2) ORDER.—The court shall enter such order

18 if it determines that there is reason to believe that

19 notification of the existence of the administrative

20 subpoena will result in—

21 ‘‘(A) endangering the life or physical safety

22 of an individual;

23 ‘‘(B) flight from prosecution;

24 ‘‘(C) destruction of or tampering with evi25 dence;
8

•S 1351 IS

1 ‘‘(D) intimidation of potential witnesses; or

2 ‘‘(E) otherwise seriously jeopardizing an

3 investigation or undue delay of a trial.

4 ‘‘(g) IMMUNITY FROM CIVIL LIABILITY.—Any per5 son, including officers, agents, and employees, who in good

6 faith produce the records or items requested in a subpoena

7 shall not be liable in any court of any State or the United

8 States to any customer or other person for such produc9 tion or for nondisclosure of that production to the cus10 tomer, in compliance with the terms of a court order for

11 nondisclosure.’’.

12 (b) TECHNICAL AND CONFORMING AMENDMENT.—

13 The analysis for chapter 49 of title 18, United States

14 Code, is amended by adding at the end the following:

‘‘1075. Administrative subpoenas to apprehend fugitives.’’.

Æ