II 

114TH CONGRESS 

2D SESSION S. 3441 

To provide for the vacating of certain convictions and expungement of certain 

arrests of victims of human trafficking. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 28, 2016 

Mrs. GILLIBRAND (for herself and Mr. PORTMAN) introduced the following 

bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To provide for the vacating of certain convictions and 

expungement of certain arrests of victims of human trafficking. 

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 ‘‘Trafficking Survivors 

5 Relief Act of 2016’’. 

6 SEC. 2. FEDERAL EXPUNGEMENT FOR VICTIMS OF TRAF7 FICKING. 

8 (a) IN GENERAL.—Chapter 237 of title 18, United 

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


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1 ‘‘§ 3772. Motion to vacate; expungement; mitigating 

2 factors 

3 ‘‘(a) DEFINITIONS.—In this section— 

4 ‘‘(1) the term ‘child’ means an individual who 

5 has not attained 18 years of age; 

6 ‘‘(2) the term ‘covered offense’— 

7 ‘‘(A) means a Federal offense that is not— 

8 ‘‘(i) a violent crime; or 

9 ‘‘(ii) an offense of which a child was 

10 a victim; and 

11 ‘‘(B) includes— 

12 ‘‘(i) a conspiracy to commit an offense 

13 described in subparagraph (A)(i) of which 

14 a child was not a victim; and 

15 ‘‘(ii) a conspiracy to commit an of16 fense described in subparagraph (A)(ii) 

17 that is not a violent crime; 

18 ‘‘(3) the term ‘covered prisoner’ means an indi19 vidual who— 

20 ‘‘(A) was convicted of a noncovered offense 

21 before the date of enactment of this section; 

22 ‘‘(B) was sentenced to a term of imprison23 ment for the noncovered offense; and 

24 ‘‘(C) is imprisoned under such term of im25 prisonment; 

26 ‘‘(4) the term ‘eligible entity’ includes— 


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1 ‘‘(A) a legal aid society or legal services or2 ganization that provides indigent legal services; 

3 ‘‘(B) a nonprofit organization that provides 

4 legal services to victims of trafficking; and 

5 ‘‘(C) a public defender’s office; 

6 ‘‘(5) the terms ‘employee’ and ‘officer’ have the 

7 meanings given the terms in section 2105 of title 5; 

8 ‘‘(6) the term ‘Federal offense’ means an of9 fense that is punishable under Federal law or the 

10 laws of the District of Columbia; 

11 ‘‘(7) the term ‘noncovered offense’— 

12 ‘‘(A) means a Federal offense that is a vio13 lent crime; 

14 ‘‘(B) does not include a Federal offense 

15 that is a violent crime of which a child was a 

16 victim; and 

17 ‘‘(C) includes a conspiracy to commit an 

18 offense described in subparagraph (B); 

19 ‘‘(8) the term ‘victim of trafficking’ has the 

20 meaning given that term in section 103 of the Traf21 ficking Victims Protection Act of 2000 (22 U.S.C. 

22 7102); and 

23 ‘‘(9) the term ‘violent crime’ has the meaning 

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1 tice and Delinquency Prevention Act of 1974 (42 

2 U.S.C. 5603). 

3 ‘‘(b) MOTIONS TO VACATE CONVICTIONS OR EX4 PUNGE ARRESTS.— 

5 ‘‘(1) IN GENERAL.— 

6 ‘‘(A) CONVICTIONS OF COVERED OF7 FENSES.—A person convicted of any covered of8 fense (or an eligible entity representing such a 

9 person) may move the court which imposed the 

10 sentence for the covered offense to vacate the 

11 judgment of conviction if the covered offense 

12 was committed as a direct result of the person 

13 having been a victim of trafficking. 

14 ‘‘(B) ARRESTS FOR COVERED OF15 FENSES.—A person arrested for any covered of16 fense (or an eligible entity representing such a 

17 person) may move the district court for the dis18 trict and division embracing the place where the 

19 person was arrested to expunge all records of 

20 the arrest if the conduct or alleged conduct of 

21 the person which resulted in the arrest was di22 rectly related to the person having been a vic23 tim of trafficking. 

24 ‘‘(C) ARRESTS FOR NONCOVERED OF25 FENSES.—A person arrested for any noncovered 


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1 offense (or an eligible entity representing such 

2 a person) may move the district court for the 

3 district and division embracing the place where 

4 the person was arrested to expunge all records 

5 of the arrest if— 

6 ‘‘(i) the conduct or alleged conduct of 

7 the person which resulted in the arrest was 

8 directly related to the person having been 

9 a victim of trafficking; and 

10 ‘‘(ii)(I) the person is acquitted of the 

11 noncovered offense; 

12 ‘‘(II) the government does not pursue 

13 or dismisses criminal charges against the 

14 person for the noncovered offense; or 

15 ‘‘(III)(aa) the charges against the per16 son for the noncovered offense are reduced 

17 to an offense that is a covered offense; and 

18 ‘‘(bb) the person is acquitted of the 

19 covered offense, the government does not 

20 pursue or dismisses criminal charges 

21 against the person for the covered offense, 

22 or any subsequent conviction of the cov23 ered offense is vacated. 

24 ‘‘(2) CONTENTS OF MOTION.—A motion de25 scribed in paragraph (1) shall— 


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1 ‘‘(A) be in writing; 

2 ‘‘(B) describe any supporting evidence; 

3 ‘‘(C) state the offense; and 

4 ‘‘(D) include copies of any documents 

5 showing that the movant is entitled to relief 

6 under this section. 

7 ‘‘(3) HEARING.— 

8 ‘‘(A) MANDATORY HEARING.— 

9 ‘‘(i) MOTION IN OPPOSITION.—Not 

10 later than 30 days after the date on which 

11 a motion is filed under paragraph (1), the 

12 Government may file a motion in opposi13 tion of the motion filed under paragraph 

14 (1). 

15 ‘‘(ii) MANDATORY HEARING.—If the 

16 Government files a motion described in 

17 clause (i), not later than 15 days after the 

18 date on which the motion is filed, the court 

19 shall hold a hearing on the motion. 

20 ‘‘(B) DISCRETIONARY HEARING.—If the 

21 Government does not file a motion described in 

22 subparagraph (A)(i), the court may hold a 

23 hearing on the motion not later than 45 days 

24 after the date on which a motion is filed under 

25 paragraph (1). 


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1 ‘‘(4) FACTORS.— 

2 ‘‘(A) VACATING CONVICTIONS OF COVERED

3 OFFENSES.—The court may grant a motion 

4 under paragraph (1)(A) if, after notice to the 

5 Government and an opportunity to be heard, 

6 the court finds, by clear and convincing evi7 dence, that— 

8 ‘‘(i) the movant was convicted of a 

9 covered offense; and 

10 ‘‘(ii) the participation in the covered 

11 offense by the movant was a direct result 

12 of the movant having been a victim of traf13 ficking. 

14 ‘‘(B) EXPUNGING ARRESTS FOR COVERED

15 OFFENSES.—The court may grant a motion 

16 under paragraph (1)(B) if, after notice to the 

17 Government and an opportunity to be heard, 

18 the court finds, by clear and convincing evi19 dence, that— 

20 ‘‘(i) the movant was arrested for a 

21 covered offense; and 

22 ‘‘(ii) the conduct or alleged conduct 

23 which resulted in the arrest was directly 

24 related to the movant having been a victim 

25 of trafficking. 


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1 ‘‘(C) EXPUNGING ARRESTS FOR NON2 COVERED OFFENSES.—The court may grant a 

3 motion under paragraph (1)(C) if, after notice 

4 to the Government and an opportunity to be 

5 heard, the court finds, by clear and convincing 

6 evidence, that— 

7 ‘‘(i) the movant was arrested for a 

8 noncovered offense and the conduct or al9 leged conduct which resulted in the arrest 

10 was directly related to the movant having 

11 been a victim of trafficking; and 

12 ‘‘(ii)(I) the person is acquitted of the 

13 noncovered offense; 

14 ‘‘(II) the government does not pursue 

15 or dismisses criminal charges against the 

16 person for the covered offense; or 

17 ‘‘(III)(aa) the charges against the per18 son for the noncovered offense are reduced 

19 to a covered offense; and 

20 ‘‘(bb) the person is acquitted of the 

21 covered offense, the government does not 

22 pursue or dismissed criminal charges 

23 against the person for the covered offense, 

24 or any subsequent conviction of that cov25 ered offense is vacated. 


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1 ‘‘(5) SUPPORTING EVIDENCE.— 

2 ‘‘(A) REBUTTABLE PRESUMPTION.—For 

3 purposes of this section, there shall be a rebut4 table presumption that the movant is a victim 

5 of trafficking if the movant includes in the mo6 tion— 

7 ‘‘(i) a copy of an official record, cer8 tification, or eligibility letter from a Fed9 eral, State, tribal, or local proceeding, in10 cluding an approval notice or an enforce11 ment certification generated from a Fed12 eral immigration proceeding, that shows 

13 that the movant was a victim of traf14 ficking, including a victim of a trafficker 

15 charged with a violation of chapter 77; or 

16 ‘‘(ii) an affidavit or sworn testimony 

17 from a trained professional staff member 

18 of a victim services organization, an attor19 ney, a member of the clergy, or a medical 

20 or other professional from whom the mov21 ant has sought assistance in addressing 

22 the trauma associated with being a victim 

23 of trafficking. 

24 ‘‘(B) OTHER EVIDENCE.— 


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1 ‘‘(i) IN GENERAL.—For purposes of 

2 this section, in determining whether the 

3 movant is a victim of trafficking, the court 

4 may consider any other evidence the court 

5 determines is of sufficient credibility and 

6 probative value, including an affidavit or 

7 sworn testimony of the movant. 

8 ‘‘(ii) AFFIDAVIT OR SWORN TESTI9 MONY OF MOVANT SUFFICIENT EVI10 DENCE.—The affidavit or sworn testimony 

11 of the movant described in clause (i) shall 

12 be sufficient evidence to vacate a convic13 tion or expunge an arrest under this sec14 tion if the court determines that— 

15 ‘‘(I) the affidavit or sworn testi16 mony is credible; and 

17 ‘‘(II) no other evidence is readily 

18 available. 

19 ‘‘(6) CONVICTION OR ARREST OF OTHER PER20 SONS NOT REQUIRED.—It shall not be necessary 

21 that any person other than the movant be convicted 

22 of or arrested for a covered offense before the mov23 ant may file a motion under paragraph (1). 

24 ‘‘(7) DENIAL OF MOTION.— 


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1 ‘‘(A) IN GENERAL.—If the court denies a 

2 motion filed under paragraph (1), the denial 

3 shall be without prejudice. 

4 ‘‘(B) REASONS FOR DENIAL.—If the court 

5 denies a motion filed under paragraph (1), the 

6 court shall state the reasons for the denial in 

7 writing. 

8 ‘‘(C) REASONABLE TIME TO CURE DEFI9 CIENCIES IN MOTION.—If the motion was de10 nied due to a curable deficiency in the motion, 

11 the court shall allow the movant sufficient time 

12 for the movant to cure the deficiency. 

13 ‘‘(8) APPEAL.—An order granting or denying a 

14 motion under this section may be appealed in ac15 cordance with section 1291 of title 28 and section 

16 3731 of this title. 

17 ‘‘(c) VACATUR OF CONVICTIONS.— 

18 ‘‘(1) IN GENERAL.—If the court grants a mo19 tion to vacate a conviction under subsection (b), the 

20 court shall immediately vacate the conviction for 

21 cause, set aside the verdict and enter a judgment of 

22 acquittal, and enter an expungement order that di23 rects that there be expunged from all official records 

24 all references to— 


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1 ‘‘(A) the arrest of the person for the cov2 ered offense; 

3 ‘‘(B) the institution of criminal pro4 ceedings against the person relating to the cov5 ered offense; and 

6 ‘‘(C) the results of the proceedings. 

7 ‘‘(2) EFFECT.—If a conviction is vacated under 

8 an order entered under paragraph (1)— 

9 ‘‘(A) the conviction shall not be regarded 

10 as a conviction under Federal law and the per11 son for whom the conviction was vacated shall 

12 be considered to have the status occupied by the 

13 person before the arrest or the institution of the 

14 criminal proceedings related to such conviction; 

15 and 

16 ‘‘(B) no alien may be removed, determined 

17 to be inadmissible, or lose any immigration ben18 efit because of such conviction, arrest, or insti19 tution of criminal proceedings. 

20 ‘‘(d) EXPUNGEMENT OF ARRESTS.— 

21 ‘‘(1) IN GENERAL.—If the court grants a mo22 tion to expunge an arrest under subsection (b), the 

23 court shall immediately enter an expungement order 

24 that directs that there be expunged from all official 

25 records all references to— 


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1 ‘‘(A) the arrest of the person for the cov2 ered offense; 

3 ‘‘(B) the institution of any criminal pro4 ceedings against the person relating to the cov5 ered offense; and 

6 ‘‘(C) the results of the proceedings, if any. 

7 ‘‘(2) EFFECT.—If an arrest is expunged under 

8 an order entered under paragraph (1)— 

9 ‘‘(A) the arrest shall not be regarded as an 

10 arrest under Federal law and the person for 

11 whom the arrest is expunged shall be consid12 ered to have the status occupied by the person 

13 before the arrest or the institution of the crimi14 nal proceedings related to such arrest, if any; 

15 and 

16 ‘‘(B) no alien may be removed, determined 

17 to be inadmissible, or lose any immigration ben18 efit because of arrest or institution of criminal 

19 proceedings, if any. 

20 ‘‘(e) MITIGATING FACTORS.— 

21 ‘‘(1) IN GENERAL.—The court which imposed 

22 sentence for a noncovered offense upon a covered 

23 prisoner may reduce the term of imprisonment for 

24 the noncovered offense— 


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1 ‘‘(A) upon motion by a covered prisoner, 

2 the Director of the Bureau of Prisons, or the 

3 court’s own motion; 

4 ‘‘(B) after notice to the Government; 

5 ‘‘(C) after considering— 

6 ‘‘(i) the factors set forth in section 

7 3553(a); 

8 ‘‘(ii) the nature and seriousness of the 

9 danger to any person; and 

10 ‘‘(iii) the community, or any crime 

11 victims; and 

12 ‘‘(D) if the court finds, by clear and con13 vincing evidence, that the covered prisoner com14 mitted the noncovered offense as a direct result 

15 of the covered prisoner having been a victim of 

16 trafficking. 

17 ‘‘(2) REBUTTABLE PRESUMPTION.—For the 

18 purposes of this subsection, there shall be a rebutta19 ble presumption that a covered prisoner is a victim 

20 of trafficking if the covered prisoner provides— 

21 ‘‘(A) a copy of an official record, certifi22 cation, or eligibility letter from a Federal, 

23 State, tribal, or local proceeding, including an 

24 approval notice or an enforcement certification 

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1 ceeding, that shows that the covered prisoner 

2 was a victim of trafficking, including a victim 

3 of a trafficker charged with a violation of chap4 ter 77; or 

5 ‘‘(B) an affidavit or sworn testimony from 

6 a trained professional staff member of a victim 

7 services organization, an attorney, a member of 

8 the clergy, or a medical or other professional 

9 from whom the covered prisoner has sought as10 sistance in addressing the trauma associated 

11 with being a victim of trafficking. 

12 ‘‘(3) REQUIREMENT.—Any proceeding under 

13 this subsection shall be subject to section 3771. 

14 ‘‘(4) PARTICULARIZED INQUIRY.—For any mo15 tion under paragraph (1), the Government shall con16 duct a particularized inquiry of the facts and cir17 cumstances of the original sentencing of the covered 

18 prisoner in order to assess whether a reduction in 

19 sentence would be consistent with this section. 

20 ‘‘(f) ADDITIONAL ACTIONS BY COURT.—The court 

21 may, upon granting a motion under this section take such 

22 additional action as the court determines is appropriate. 

23 ‘‘(g) CONFIDENTIALITY OF MOVANT.— 


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1 ‘‘(1) IN GENERAL.—A motion under this sec2 tion and any documents, pleadings, or orders relat3 ing to the motion shall be filed under seal. 

4 ‘‘(2) INFORMATION NOT AVAILABLE FOR PUB5 LIC INSPECTION.—No officer or employee may make 

6 any report, paper, picture, photograph, court file or 

7 other document, in the custody or possession of the 

8 officer or employee, that identifies the movant avail9 able for public inspection. 

10 ‘‘(h) APPLICABILITY.—This section shall apply to any 

11 conviction or arrest occurring before, on, or after the date 

12 of enactment of this section.’’. 

13 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

14 The table of sections of chapter 237 of title 18, United 

15 States Code, is amended by adding at the end the fol16 lowing: 

‘‘3772. Motion to vacate; expungement; mitigating factors.’’. 

Æ 


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