II 

109TH CONGRESS 

1ST SESSION S. 1739 

To amend the material witness statute to strengthen procedural safeguards, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 21, 2005 

Mr. LEAHY introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To amend the material witness statute to strengthen 

procedural safeguards, and for other purposes. 

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

3 SECTION 1. RELEASE OR DETENTION OF A MATERIAL WIT4 NESS. 

5 (a) AMENDMENTS TO TITLE 18.—Section 3144 of 

6 title 18, United States Code, is amended to read as fol7 lows: 

8 ‘‘§ 3144. Release or detention of a material witness 

9 ‘‘(a) ARREST OF MATERIAL WITNESS.— 
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1 ‘‘(1) IN GENERAL.—A judicial officer may order 

2 the arrest of a person as a material witness, if it ap3 pears from an affidavit filed by a party in a criminal 

4 case before a court of the United States, or by an 

5 attorney for the Government in a matter occurring 

6 before a Federal grand jury, that there is probable 

7 cause to believe that— 

8 ‘‘(A) the testimony of such person is mate9 rial in such case or matter; and 

10 ‘‘(B) the person has been served with a 

11 summons or subpoena and failed or refused to 

12 appear as required. 

13 ‘‘(2) EXCEPTION.—A judicial officer may waive 

14 the summons or subpoena requirement described in 

15 paragraph (1)(B), if the judicial officer finds by 

16 clear and convincing evidence that the service of a 

17 summons or subpoena— 

18 ‘‘(A) is likely to result in the person flee19 ing; or 

20 ‘‘(B) cannot adequately secure the appear21 ance of the person as required. 

22 ‘‘(b) WARRANT FOR MATERIAL WITNESS.— 

23 ‘‘(1) REQUIREMENTS.—A warrant issued under 

24 subsection (a) shall— 
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1 ‘‘(A) contain the name of the material wit2 ness or, if the name of such witness is un3 known, a name or description by which the wit4 ness can be identified with reasonable certainty; 

5 ‘‘(B) specify that the testimony of the wit6 ness is sought in a criminal case or grand jury 

7 proceeding; 

8 ‘‘(C) command that the witness be arrested 

9 and brought without unnecessary delay before a 

10 judicial officer; 

11 ‘‘(D) inform the witness of the witness’s 

12 right to retain counsel or to request that coun13 sel be appointed if the witness cannot obtain 

14 counsel; and 

15 ‘‘(E) be signed by a judicial officer. 

16 ‘‘(2) EXECUTION OF WARRANT.— 

17 ‘‘(A) ARREST OF WITNESS.—A warrant 

18 issued under subsection (a) shall be executed by 

19 arresting the material witness. 

20 ‘‘(B) WARRANT TO BE PROVIDED TO WIT21 NESS.— 

22 ‘‘(i) IN GENERAL.—Upon arrest, an 

23 officer possessing the warrant shall show 

24 such warrant to the material witness. 
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1 ‘‘(ii) WARRANT NOT IN POSSESSION

2 OF ARRESTING OFFICER.—If an officer 

3 does not possess the warrant at the time of 

4 arrest of a material witness, an officer— 

5 ‘‘(I) shall inform the witness of 

6 the existence and purpose of the war7 rant; and 

8 ‘‘(II) at the request of the wit9 ness, shall provide the warrant to the 

10 witness as soon as possible. 

11 ‘‘(3) RETURN OF WARRANT.— 

12 ‘‘(A) AFTER EXECUTION.—After executing 

13 a warrant issued under subsection (a), an offi14 cer shall return the warrant to the judicial offi15 cer before whom the material witness is brought 

16 in accordance with subsection (c). 

17 ‘‘(B) UNEXECUTED WARRANT.—At the re18 quest of an attorney for the United States Gov19 ernment, an unexecuted warrant shall be 

20 brought back to and canceled by a judicial offi21 cer. 

22 ‘‘(c) INITIAL APPEARANCE.— 

23 ‘‘(1) APPEARANCE UPON ARREST.—A material 

24 witness arrested pursuant to a warrant issued under 
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1 subsection (a) shall be brought without unnecessary 

2 delay before a judicial officer. 

3 ‘‘(2) PLACE OF INITIAL APPEARANCE.—The ini4 tial appearance of a material witness arrested pursu5 ant to a warrant issued under subsection (a) shall 

6 be— 

7 ‘‘(A) in the district of arrest; or 

8 ‘‘(B) in an adjacent district if— 

9 ‘‘(i) the appearance can occur more 

10 promptly there; or 

11 ‘‘(ii) the warrant was issued there and 

12 the initial appearance will occur on the day 

13 of the arrest. 

14 ‘‘(3) PROCEDURES.—At the initial appearance 

15 described in paragraph (2), a judicial officer shall— 

16 ‘‘(A) inform a material witness of— 

17 ‘‘(i) the warrant against the witness, 

18 and the application and affidavit filed in 

19 support of the warrant; and 

20 ‘‘(ii) the witness’s right to retain 

21 counsel or to request that counsel be ap22 pointed if the witness cannot obtain coun23 sel; 

24 ‘‘(B) allow the witness a reasonable oppor25 tunity to consult with counsel; 
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1 ‘‘(C) release or detain the witness as pro2 vided by subsection (d); and 

3 ‘‘(D) if the initial appearance occurs in a 

4 district other than where the warrant issued, 

5 transfer the witness to such district, provided 

6 that the judicial officer finds that the witness is 

7 the same person named in the warrant. 

8 ‘‘(d) RELEASE OR DETENTION.— 

9 ‘‘(1) IN GENERAL.—Upon the appearance be10 fore a judicial officer of a material witness arrested 

11 pursuant to a warrant issued under subsection (a), 

12 the judicial officer shall order the release or deten13 tion of such witness. 

14 ‘‘(2) RELEASE.— 

15 ‘‘(A) IN GENERAL.—A judicial officer shall 

16 order the release of a material witness arrested 

17 pursuant to a warrant issued under subsection 

18 (a) on personal recognizance or upon execution 

19 of an unsecured appearance bond under section 

20 3142(b), or on a condition or combination of 

21 conditions under section 3142(c), unless the ju22 dicial officer determines by clear and convincing 

23 evidence that such release will not reasonably 

24 assure the appearance of the witness as re25 quired. 
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1 ‘‘(B) TESTIMONY SECURED BY DEPOSI2 TION.—No material witness may be detained 

3 because of the inability of the witness to comply 

4 with any condition of release if the testimony of 

5 such witness can adequately be secured by dep6 osition. 

7 ‘‘(3) DETENTION.— 

8 ‘‘(A) NO REASONABLE ASSURANCE OF AP9 PEARANCE.—If, after a hearing pursuant to the 

10 provisions of section 3142(f)(2), a judicial offi11 cer finds by clear and convincing evidence that 

12 no condition or combination of conditions will 

13 reasonably assure the appearance of a material 

14 witness as required by this section, such judicial 

15 officer may order that the witness be detained 

16 for a period not to exceed 5 days, or until the 

17 testimony of the witness can adequately be se18 cured by deposition or by appearance before the 

19 court or grand jury, whichever is earlier. 

20 ‘‘(B) EXTENSION OF DETENTION.— 

21 ‘‘(i) IN GENERAL.—Subject to clause 

22 (ii), upon the motion of a party (or an at23 torney for the United States Government 

24 in a matter occurring before a Federal 

25 grand jury), the period of detention under 
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1 subparagraph (A) may be extended for ad2 ditional periods of up to 5 days, or until 

3 the testimony of a material witness can 

4 adequately be secured by deposition or by 

5 appearance before the court or grand jury, 

6 whichever is earlier. 

7 ‘‘(ii) LIMIT.—The total period of de8 tention under this subparagraph may not 

9 exceed— 

10 ‘‘(I) 30 days, where the testi11 mony of the witness is sought in a 

12 criminal case; or 

13 ‘‘(II) 10 days, where the testi14 mony of the witness is sought in a 

15 grand jury proceeding. 

16 ‘‘(C) GOOD CAUSE REQUIRED.—A motion 

17 under subparagraph (B) shall demonstrate good 

18 cause for why the testimony of a material wit19 ness could not adequately be secured by deposi20 tion or by appearance before the court or grand 

21 jury during the previous 5-day period. 

22 ‘‘(4) FACTORS TO BE CONSIDERED.—A judicial 

23 officer, in determining whether a material witness 

24 should be released or detained— 
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1 ‘‘(A) shall take into account the available 

2 information concerning the history and charac3 teristics of the witness, including the informa4 tion described in section 3142(g)(3)(A); and 

5 ‘‘(B) may consider challenges to the basis 

6 of the warrant. 

7 ‘‘(5) CONTENTS OF RELEASE ORDER.—A re8 lease order issued under paragraph (2) shall comply 

9 with the requirements of paragraphs (1) and (2)(B) 

10 of section 3142(h). 

11 ‘‘(6) CONTENTS OF DETENTION ORDER.—A de12 tention order issued under paragraph (3) shall com13 ply with the requirements of section 3142(i), pro14 vided that a judicial officer shall direct that a mate15 rial witness be held— 

16 ‘‘(A) in a facility separate and apart, to 

17 the extent practicable, from persons charged 

18 with or convicted of a criminal offense; and 

19 ‘‘(B) under the least restrictive conditions 

20 possible. 

21 ‘‘(e) REPORT.— 

22 ‘‘(1) IN GENERAL.—Notwithstanding any other 

23 provision of law, the Attorney General shall provide 

24 to the Committees on the Judiciary of the Senate 

25 and the House of Representatives an annual report 
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1 regarding the use of this section by the United 

2 States Government during the preceding 1-year pe3 riod. 

4 ‘‘(2) CONTENT OF REPORT.—A report required 

5 under paragraph (1) shall include— 

6 ‘‘(A) the number of warrants sought under 

7 subsection (a), and the number either granted 

8 or denied; 

9 ‘‘(B) the number of material witnesses ar10 rested pursuant to a warrant issued under sub11 section (a) whose testimony was not secured by 

12 deposition or by appearance before the court or 

13 grand jury, and the reasons therefore; and 

14 ‘‘(C) the average number of days that ma15 terial witnesses arrested pursuant to a warrant 

16 issued under subsection (a) were detained.’’. 

17 (b) AMENDMENT TO FEDERAL RULES OF CIVIL PRO18 CEDURE.—Rule 46(h) of the Federal Rules of Criminal 

19 Procedure is amended to read as follows: 

20 ‘‘(h) SUPERVISING DETENTION PENDING TRIAL.— 

21 To eliminate unnecessary detention, the court must super22 vise the detention within the district of any defendants 

23 awaiting trial and of any persons held as material wit24 nesses.’’. 

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