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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4071 Introduced in House (IH)]

103d CONGRESS
  2d Session
                                H. R. 4071

   To amend title 39, United States Code, to grant the United States 
Postal Service the authority to issue civil investigative demands, and 
                          for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             March 17, 1994

 Miss Collins of Michigan (by request) introduced the following bill; 
 which was referred jointly to the Committees on Post Office and Civil 
                       Service and the Judiciary

_______________________________________________________________________

                                 A BILL

 
   To amend title 39, United States Code, to grant the United States 
Postal Service the authority to issue civil investigative demands, and 
                          for other purposes.

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

SECTION 1. CIVIL INVESTIGATIVE DEMANDS.

    (a) In General.--Chapter 30 of title 39, United States Code, is 
amended by adding at the end the following:
``Sec. 3016. Civil investigative demands
    ``(a) For purposes of this section--
            ``(1) the term `person' means any natural person, 
        partnership, corporation, association, or other legal entity, 
        including any person acting under color or authority of State 
        law;
            ``(2) the term `documentary material' includes the original 
        or any copy of any book, record, report, memorandum, paper, 
        communication, tabulation, chart, or other document, and any 
        product of discovery;
            ``(3) the term `custodian' means the custodian or any 
        deputy custodian designated under subsection (c);
            ``(4) the term `product of discovery' includes--
                    ``(A) the original or duplicate of any deposition, 
                interrogatory, response, document, thing, result of the 
                inspection of land or other property, examination, or 
                admission obtained by any method of discovery in any 
                judicial litigation or in any administrative litigation 
                of an adversarial nature;
                    ``(B) any digest, analysis, selection, compilation, 
                or any derivation thereof; and
                    ``(C) any index or manner of access therein; and
            ``(5) the term `agent' includes a Postal Inspector or any 
        person retained by the Postal Service in connection with the 
        enforcement of the laws of the United States relative to the 
        United States mails and acting under the authority of section 
        3061 of title 18.
    ``(b)(1) Whenever the Postmaster General or his delegate has reason 
to believe that any person may be in possession, custody, or control of 
any documentary material, or may have any information, relevant to an 
investigation of a matter arising under this chapter, he may, prior to 
the commencement of a civil or criminal proceeding thereon, issue in 
writing, and cause to be served upon such person, a civil investigative 
demand requiring such person to produce such documentary material for 
inspection and copying or reproduction, to answer in writing written 
interrogatories, to give oral testimony concerning documentary material 
or information, or to furnish any combination of such material, 
answers, or testimony. Whenever a civil investigative demand is an 
express demand for any product of discovery, the Postmaster General or 
his delegate shall cause to be served, in any manner authorized by this 
section, a copy of such demand upon the person from whom the discovery 
was obtained and notify the person to whom such demand is issued of the 
date on which such copy was served.
    ``(2) Each such demand shall--
            ``(A) state the nature of the conduct under investigation 
        and the provision of this chapter applicable thereto;
            ``(B) if it is a demand for production of documentary 
        material--
                    ``(i) describe the class or classes of documentary 
                material to be produced thereunder with such 
                definiteness and certainty as to permit such material 
                to be fairly identified;
                    ``(ii) prescribe a return date or dates which will 
                provide a reasonable period of time within which the 
                material so demanded may be assembled and made 
                available for inspection and copying or reproduction; 
                and
                    ``(iii) identify the custodian to whom such 
                material shall be made available;
            ``(C) if it is a demand for answers to written 
        interrogatories--
                    ``(i) state with definiteness and certainty the 
                written interrogatories to be answered;
                    ``(ii) prescribe a date or dates at which time 
                answers to written interrogatories shall be submitted; 
                and
                    ``(iii) identify the custodian to whom such answers 
                shall be submitted; and
            ``(D) if it is a demand for the giving of oral testimony--
                    ``(i) prescribe a date, time, and place at which 
                oral testimony shall be commenced; and
                    ``(ii) identify the person who shall conduct the 
                examination and the custodian to whom the transcript of 
                such examination shall be submitted.
Any such demand which is an express demand for any product of discovery 
shall not be returned or returnable until 20 days after a copy of such 
demand has been served upon the person from whom the discovery was 
obtained.
    ``(3)(A) No such demand shall require the production of any 
documentary material, the submission of any answers to written 
interrogatories, or the giving of any oral testimony, if such material, 
answers, or testimony would be protected from disclosure under--
            ``(i) the standards applicable to subpoenas or subpoenas 
        duces tecum issued by a court of the United States in aid of a 
        grand jury investigation; or
            ``(ii) the standards applicable to discovery requests under 
        the Federal Rules of Civil Procedure, to the extent that the 
        application of such standards to any such demand is appropriate 
        and consistent with the provisions and purposes of this 
        section.
    ``(B) Any such demand which is an express demand for any product of 
discovery supersedes any inconsistent order, rule, or provision of law 
(other than this section) preventing or restraining disclosure of such 
product of discovery to any person. Disclosure of any product of 
discovery pursuant to any such express demand does not constitute a 
waiver of any right or privilege, including any right or privilege 
which may be invoked to resist discovery of trial preparation 
materials, to which the person making such disclosure may be entitled.
    ``(4)(A) Any such demand may be served by a Postal Service agent at 
any place within the territorial jurisdiction of any court of the 
United States.
    ``(B) Any such demand or any petition filed under subsection (d) 
may be served upon any person who is not to be found within the 
territorial jurisdiction of any court of the United States, in such 
manner as the Federal Rules of Civil Procedure prescribe for service in 
a foreign country. To the extent that the courts of the United States 
can assert jurisdiction over such person consistent with due process, 
the United States District Court for the District of Columbia shall 
have the same jurisdiction to take any action respecting compliance 
with this section by such person that such court would have if such 
person were personally within the jurisdiction of such court.
    ``(5)(A) Service of any such demand or of any petition filed under 
subsection (d) may be made upon a partnership, corporation, 
association, or other legal entity by--
            ``(i) delivering a duly executed copy thereof to any 
        partner, executive officer, managing agent, or general agent 
        thereof, or to any agent thereof authorized by appointment or 
        by law to receive service of process on behalf of such 
        partnership, corporation, association or entity;
            ``(ii) delivering a duly executed copy thereof to the 
        principal office or place of business of the partnership, 
        corporation, association, or entity; or
            ``(iii) depositing such copy in the United States mails, by 
        registered or certified mail, return receipt requested, duly 
        addressed to such partnership, corporation, association, or 
        entity at its principal office or place of business.
    ``(B) Service of any such demand or of any petition filed under 
subsection (d) may be made upon any natural person by--
            ``(i) delivering a duly executed copy thereof to the person 
        to be served; or
            ``(ii) depositing such copy in the United States mails by 
        registered or certified mail, return receipt requested, duly 
        addressed to such person at his residence or principal office 
        or place of business.
    ``(6) A verified return by the individual serving any such demand 
or petition setting forth the matter of such service shall be proof of 
such service. In the case of service by registered or certified mail, 
such return shall be accompanied by the return post office receipt of 
delivery of such demand.
    ``(7) The production of documentary material in response to a 
demand served pursuant to this section shall be made under a sworn 
certificate, in such form as the demand designates, by the person, if a 
natural person, to whom the demand is directed or, if not a natural 
person, by a person or persons having knowledge of the facts, and 
circumstances relating to such production, to the effect that all of 
the documentary material required by the demand and in the possession, 
custody, or control of the person to whom the demand is directed has 
been produced and made available to the custodian.
    ``(8) Each interrogatory in a demand served pursuant to this 
section shall be answered separately and fully in writing under oath, 
unless it is objected to, in which event the reasons for the objection 
shall be stated in lieu of an answer, and it shall be submitted under a 
sworn certificate, in such form as the demand designates, by the 
person, if a natural person, to whom the demand is directed or, if not 
a natural person, by a person or persons responsible for answering each 
interrogatory, to the effect that all information required by the 
demand and in the possession, custody, control, or knowledge of the 
person to whom the demand is directed has been submitted.
    ``(9)(A) The examination of any person pursuant to a demand for 
oral testimony served under this section shall be taken before an 
officer authorized to administer oaths and affirmations by the laws of 
the United States or of the place where the examination is held. The 
officer before whom the testimony is to be taken shall put the witness 
on oath or affirmation and shall personally, or by someone acting under 
his direction and in his presence, record the testimony of the witness. 
The testimony shall be taken stenographically and transcribed. When the 
testimony is fully transcribed, the officer before whom the testimony 
is taken shall promptly transmit a copy of the transcript of the 
testimony to the custodian.
    ``(B) The officer conducting the examination shall exclude from the 
place where the examination is held all other persons except the person 
being examined, his counsel, counsel for the Postal Service, the 
officer before whom the testimony is to be taken, and any stenographer 
taking such testimony. The provisions of the Act of March 3, 1913 
(Chapter 114; 37 Stat. 731; 15 U.S.C. 30) shall not apply to such 
examination.
    ``(C) The oral testimony of any person taken pursuant to a demand 
served under this section shall be taken in the judicial district of 
the United States within which such person resides, is found, or 
transacts business, or in such other place as may be agreed upon by the 
officer conducting the examination and such person.
    ``(D) When the testimony is fully transcribed, the officer shall 
afford the witness (who may be accompanied by counsel) a reasonable 
opportunity to examine the transcript, and the transcript shall be read 
to or by the witness, unless such examination and reading are waived by 
the witness. Any changes in form or substance which the witness desires 
to make shall be entered and identified upon the transcript by the 
officer with a statement of the reasons given by the witness for making 
such changes. The transcript shall then be signed by the witness, 
unless the witness in writing waives the signing, is ill, cannot be 
found, or refuses to sign. If the transcript is not signed by the 
witness within 30 days after being afforded a reasonable opportunity to 
examine it, the officer shall sign it and state on the record the fact 
of the waiver, illness, absence of the witness, or the refusal to sign, 
together with the reason, if any, given therefor.
    ``(E) The officer shall certify on the transcript that the witness 
was duly sworn by him and that the transcript is a true record of the 
testimony given by the witness, and the officer or agent shall promptly 
deliver it or send it by registered or certified mail to the custodian.
    ``(F) Upon payment of reasonable charges therefor, the Postal 
Service shall furnish a copy of the transcript to the witness only, 
except that the Postmaster General or his delegate may for good cause 
limit such witness to inspection of the official transcript of his 
testimony.
    ``(G)(i) Any person compelled to appear under a demand for oral 
testimony pursuant to this section may be accompanied, represented, and 
advised by counsel. Counsel may advise such person, in confidence, 
either upon the request of such person or upon counsel's own 
initiative, with respect to any question asked of such person. Such 
person or counsel may object on the record to any question, in whole or 
in part, and shall briefly state for the record the reason for the 
objection. Any objection may properly be made, received, and entered 
upon the record when it is claimed that such person is entitled to 
refuse to answer the question on grounds of any constitutional or other 
legal right or privilege, including the privilege against self-
incrimination. Such person shall not otherwise object to or refuse to 
answer any question, and shall not by himself or through counsel 
otherwise interrupt the oral examination. If such person refuses to 
answer any question, the Postal Service may petition the district court 
of the United States pursuant to subsection (d) for an order compelling 
such person to answer such question.
    ``(ii) If such person refuses to answer any question on grounds of 
the privilege against self-incrimination, the testimony of such person 
may be compelled in accordance with the provisions of part V of title 
18.
    ``(c)(1) The Postmaster General or his delegate shall designate an 
agent to serve as custodian of documentary material, answers to 
interrogatories, and transcripts of oral testimony received under this 
section and such additional agents as he shall determine from time to 
time to be necessary to serve as deputies to the custodian of 
documents.
    ``(2) Any person, upon whom any demand under subsection (b) for the 
production of documentary material has been duly served, shall make 
such material available for inspection and copying or reproduction to 
the custodian designated therein at the principal place of business of 
such person (or at such other place as such custodian and such person 
thereafter may agree and prescribe in writing or as the court may 
direct) pursuant to subsection (d) on the return date specified in such 
demand (or on such later date as such custodian may prescribe in 
writing). Such person may upon written agreement between such person 
and the custodian substitute copies for originals of all or any part of 
such material.
    ``(3)(A) The custodian to whom any documentary material, answers to 
interrogatories, or transcripts of oral testimony are delivered shall 
take physical possession thereof, and shall be responsible for the use 
made thereof and for the return of documentary material, pursuant to 
this section.
    ``(B) The custodian may cause the preparation of such copies of 
such documentary material, answers to interrogatories, or transcripts 
of oral testimony as may be required for official use by any duly 
authorized official, employee, or agent of the Postal Service or the 
Department of Justice under regulations which shall be promulgated by 
the Postal Service. Notwithstanding subparagraph (C), such material, 
answers, and transcripts may be used by any such official employee, or 
agent in connection with the taking of oral testimony pursuant to this 
section.
    ``(C) Except as otherwise provided in this section, while in the 
possession of the custodian, no documentary material, answers to 
interrogatories, or transcripts of oral testimony, or copies thereof, 
so produced shall be available for examination, without the consent of 
the person who produced such material, answers or transcripts, and, in 
the case of any product of discovery produced pursuant to an express 
demand for such material, of the person from whom the discovery was 
obtained by an individual other than a duly authorized official, 
employee, or agent of the Postal Service or the Department of Justice. 
Nothing in this section shall prevent disclosure to either body of the 
Congress or to any authorized committee or subcommittee thereof.
    ``(D) While in the possession of the custodian and under such 
reasonable terms and conditions as the Postal Service shall prescribe--
            ``(i) documentary material and answers to interrogatories 
        shall be available for examination by the person who produced 
        such material or answers, or by any duly authorized 
        representative of such person; and
            ``(ii) transcripts of oral testimony shall be available for 
        examination by the person who produced such testimony or his 
        counsel.
    ``(4)(A) Whenever any attorney of the Postal Service or the 
Department of Justice has been designated to appear before any court, 
grand jury, or agent of a Federal administrative or regulatory agency 
in any case or proceeding, the custodian of any documentary material, 
answers to interrogatories, or transcripts of oral testimony may 
deliver to such attorney such material, answers or transcripts for 
official use in connection with any such case, a grand jury, or 
proceeding as such attorney or agent determines to be required. Upon 
the completion of any such case, grand jury, or proceeding, such 
attorney shall return to the custodian any such material, answers, or 
transcripts so delivered which have not passed into the control of such 
court, grand jury, or agency through the introduction thereof into the 
record of such case or proceeding.
    ``(B) The custodian of any documentary material, answers to 
interrogatories, or transcripts of oral testimony may deliver to the 
Federal Trade Commission, in response to a written request, copies of 
such material, answers or transcripts for use in connection with an 
investigation or proceeding under the Commission's jurisdiction. Such 
material, answers, or transcripts may only be used by the Commission in 
such manner and subject to such conditions as apply to the Postal 
Service under this section.
    ``(5) If any documentary material has been produced in the course 
of any investigation by any person pursuant to a demand under this 
section and--
            ``(A) any case or proceeding before any court or grand jury 
        arising out of such investigation, or any proceeding before any 
        Federal administrative or regulatory agency involving such 
        material, has been completed, or
            ``(B) no case or proceeding, in which such material may be 
        used, has been commenced within a reasonable time after 
        completion of the examination and analysis of all documentary 
        material and other information assembled in the course of such 
        investigation,
the custodian shall, upon written request of the person who produced 
such material, return to such person any such material (other than 
copies thereof furnished to the custodian pursuant to paragraph (2) or 
made by the Postal Service pursuant to paragraph (3) which has not 
passed into the control of any court, grand jury, or agency through the 
introduction thereof into the record of such case or proceeding.
    ``(6) In the event of the death, disability or separation from 
service in the Postal Service of the custodian of any documentary 
material, answers to interrogatories, or transcripts of oral testimony 
produced under any demand issued pursuant to this section, or the 
official relief of such custodian from responsibility for the custody 
and control of such material, answers, or transcripts, the Postmaster 
General or his delegate shall promptly--
            ``(A) designate another agent to serve as custodian of such 
        material, answers to interrogatories, or transcripts of oral 
        testimony produced under any demand issued pursuant to this 
        section, or the official relief of such custodian from the 
        responsibility for the custody and control of such material, 
        answers, or transcripts; and
            ``(B) transmit in writing to the person who produced such 
        material, answers, or testimony notice as to the identity and 
        address of the successor so designated.
Any successor designated under this paragraph shall have with regard to 
such material, answers, or transcripts all duties and responsibilities 
imposed by this section upon his predecessor in office with regard 
thereto, except that he shall not be held responsible for any default 
or dereliction which occurred prior to his designation.
    ``(d)(1) Whenever any person fails to comply with any civil 
investigative demand duly served upon him under subsection (b) or 
whenever satisfactory copying or reproduction of any material cannot be 
done and such person refuses to surrender such material, the Postal 
Service may file, in the district court of the United States for any 
judicial district in which such person resides, is found, or transacts 
business, and serve upon such person a petition for an order of such 
court for the enforcement of this section.
    ``(2)(A) Within 20 days after the service of any such demand upon 
any person, or at any time before the return date specified in the 
demand, whichever period is shorter, or within such period exceeding 20 
days after service or in excess of such return date as may be 
prescribed in writing, subsequent to service, by an agent named in the 
demand, such person may file and serve upon such agent, and in the case 
of an express demand for any product of discovery upon the person from 
whom such discovery was obtained, a petition for an order modifying or 
setting aside such demand--
            ``(i) in the district court of the United States for the 
        judicial district within which such person resides, is found, 
        or transacts business; or
            ``(ii) in the case of a petition addressed to an express 
        demand for any product of discovery, only in the district court 
        of the United States for the judicial district in which the 
        proceeding in which such discovery was obtained is or was last 
        pending.
    ``(B) The time allowed for compliance with the demand in whole or 
in part as deemed proper and ordered by the court shall not run during 
the pendency of such petition in the court, except that such person 
shall comply with any portions of the demand not sought to be modified 
or set aside. Such petition shall specify each ground upon which the 
petitioner relies in seeking such relief and may be based upon any 
failure of such demand to comply with the provisions of this section or 
upon any constitutional or other legal right or privilege of such 
person.
    ``(3) Whenever any such demand is an express demand for any product 
of discovery, the person from whom such discovery was obtained may 
file, at any time prior to compliance with such express demand, in the 
district court of the United States for the judicial district in which 
the proceeding in which such discovery was obtained is or was last 
pending, and serve upon any agent named in the demand and upon the 
recipient of the demand, a petition for an order of such court 
modifying or setting aside those portions of the demand requiring 
production of any such product or discovery. Such petition shall 
specify each ground upon which the petitioner relies in seeking such 
relief and may be based upon any failure of such portions of the demand 
to comply with the provisions of this section, or upon any 
constitutional or other legal right or privilege of the petitioner. 
During the pendency of such petition, the court may stay, as it deems 
proper, compliance with the demand and the running of the time allowed 
for compliance with the demand.
    ``(4) At any time during which any custodian is in custody or 
control of any documentary material or answers to interrogatories 
delivered, or transcripts of oral testimony given by any person in 
compliance with any such demand, such person, and in the case of an 
express demand for any product of discovery, the person from whom such 
discovery was obtained, may file, in the district court of the United 
States for the judicial district within which the office of such 
custodian is situated, and serve upon such custodian, a petition for an 
order of such court requiring the performance by such custodian of any 
duty imposed upon him by this section.
    ``(5) Whenever any petition is filed in any district court of the 
United States under this section, such court shall have jurisdiction to 
hear and determine the matter so presented, and to enter such order or 
orders as may be required to carry into effect the provisions of this 
section. Any final order so entered shall be subject to appeal pursuant 
to section 1291 of title 28. Any disobedience of any final order 
entered under this section by any court shall be punished as a contempt 
thereof.
    ``(6) To the extent that such rules may have application and are 
not inconsistent with the provisions of this section, the Federal Rules 
of Civil Procedure shall apply to any petition under this section.
    ``(7) Any documentary material, answers to written interrogatories, 
or transcripts of oral testimony provided pursuant to any demand issued 
under this section shall be exempt from disclosure under section 552 of 
title 5.''.
    (b) Conforming Amendment.--The table of sections for chapter 30 of 
title 39, United States Code, is amended by adding at the end the 
following:

``3016. Civil investigative demands.''.

SEC. 2. OBSTRUCTION OF PROCEEDINGS.

    Section 1505 of title 18, United States Code, is amended to read as 
follows:
``Sec. 1505. Obstruction of proceedings before departments, agencies 
              and committees
    ``Whoever, with intent to avoid, evade, prevent, or obstruct 
compliance, in whole or in part, with any civil investigative demand 
duly and properly made under the Antitrust Civil Process Act or section 
3016 of title 39, willfully withholds, misrepresents, removes from any 
place, conceals, covers up, destroys, mutilates, alters, or by other 
means falsifies any documentary material, answers to written 
interrogatories, or oral testimony, which is subject of such demand; or 
attempts to do so or solicits another to do so; or
    ``Whoever corruptly, or by threats or force, or by any threatening 
letter or communication influences, obstructs, or impedes or endeavors 
to influence, obstruct, or impede the due and proper administration of 
the law under which such proceeding is being had before such department 
or agency of the United States, or the due and proper exercise of the 
power of inquiry under which such inquiry or investigation is being had 
by either House, or any committee of either House or any joint 
committee of the Congress--
            shall be fined not more than $5,000 or imprisoned not more 
        than 5 years, or both.''.

SEC. 3. CIVIL PENALTIES.

    Section 3012 of title 39, United States Code, is amended--
            (1) by amending paragraph (1) of subsection (a) to read as 
        follows:
            ``(1) who, through the use of the mail or any 
        instrumentality of interstate commerce, evades or attempts to 
        evade the effect of an order issued under section 3005(a)(1) or 
        3005(a)(2);'';
            (2) by amending subsection (b)(1) to read as follows:
    ``(b)(1) Whenever, on the basis of any information available to it, 
the Postal Service believes that any person has engaged, or is 
engaging, in conduct described by paragraph (1), (2) or (3) of 
subsection (a), the Postal Service may, under the provisions of section 
409(d), commence a civil action to enforce the civil penalties 
established by such subsection. Any such action shall be brought in the 
district court of the United States for the district in which the 
defendant resides or receives mail.'';
            (3) by adding at the end of subsection (b) the following:
    ``(3) Any civil action commenced this subsection may be brought in 
the district court of the United States for any district in which the 
defendant resides, conducts business, receives mail, or into which the 
defendant sends mail.''; and
            (4) by amending subsection (c) to read as follows:
    ``(c) All penalties collected under authority of this section shall 
be paid into the Postal Service Fund, established by section 2003.''.

SEC. 4. INJUNCTIONS AGAINST FRAUD.

    Section 1345 of title 18, United States Code, is amended--
            (1) by amending subsection (a)(1) to read as follows:
    ``(a)(1) If a person is--
            ``(A) violating or about to violate this chapter or section 
        287, 371 (insofar as such violation involves a conspiracy to 
        defraud the United States or any agency thereof), or 1001 of 
        this title; or
            ``(B) committing or about to commit a banking law violation 
        (as defined in section 3322(d) of this title), the Attorney 
        General may commence a civil action in any Federal court to 
        enjoin such violation.
The Attorney General may obtain temporary and preliminary injunctive 
relief under this section upon a showing of probable cause to believe 
that such violation is occurring, or is about to occur. Permanent 
relief shall be granted when a violation is established by a 
preponderance of the evidence. A violation may be deemed to be 
occurring or about to occur, within the meaning of this section, for as 
long as victims of any such violation have not been redressed and the 
statute of limitations on the violation has not expired.''; and
            (2) by amending paragraph (2) of subsection (a) to read as 
        follows:
    ``(2) If a person is alienating or disposing of property, or 
intends to alienate or dispose of property, obtained as a result of a 
banking law violation (as defined in section 3322(d) of this title) or 
a violation described in paragraph (1) (A) or (B), or property which is 
traceable to such violation, the Attorney General may commence a civil 
action in any Federal court--
            ``(A) to enjoin such alienation or disposition of property; 
        or
            ``(B) for a restraining order to--
                    ``(i) prohibit any person from withdrawing, 
                transferring, removing, dissipating, or disposing of 
                any such property or property of equivalent value; and
                    ``(ii) appoint a temporary receiver to administer 
                such restraining order.''.

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HR 4071 IH----2
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