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[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3441 Introduced in Senate (IS)]

<DOC>

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Trafficking Survivors Relief Act of 
2016''.

SEC. 2. FEDERAL EXPUNGEMENT FOR VICTIMS OF TRAFFICKING.

    (a) In General.--Chapter 237 of title 18, United States Code, is 
amended by adding at the end the following:
``Sec. 3772. Motion to vacate; expungement; mitigating factors
    ``(a) Definitions.--In this section--
            ``(1) the term `child' means an individual who has not 
        attained 18 years of age;
            ``(2) the term `covered offense'--
                    ``(A) means a Federal offense that is not--
                            ``(i) a violent crime; or
                            ``(ii) an offense of which a child was a 
                        victim; and
                    ``(B) includes--
                            ``(i) a conspiracy to commit an offense 
                        described in subparagraph (A)(i) of which a 
                        child was not a victim; and
                            ``(ii) a conspiracy to commit an offense 
                        described in subparagraph (A)(ii) that is not a 
                        violent crime;
            ``(3) the term `covered prisoner' means an individual who--
                    ``(A) was convicted of a noncovered offense before 
                the date of enactment of this section;
                    ``(B) was sentenced to a term of imprisonment for 
                the noncovered offense; and
                    ``(C) is imprisoned under such term of 
                imprisonment;
            ``(4) the term `eligible entity' includes--
                    ``(A) a legal aid society or legal services 
                organization that provides indigent legal services;
                    ``(B) a nonprofit organization that provides legal 
                services to victims of trafficking; and
                    ``(C) a public defender's office;
            ``(5) the terms `employee' and `officer' have the meanings 
        given the terms in section 2105 of title 5;
            ``(6) the term `Federal offense' means an offense that is 
        punishable under Federal law or the laws of the District of 
        Columbia;
            ``(7) the term `noncovered offense'--
                    ``(A) means a Federal offense that is a violent 
                crime;
                    ``(B) does not include a Federal offense that is a 
                violent crime of which a child was a victim; and
                    ``(C) includes a conspiracy to commit an offense 
                described in subparagraph (B);
            ``(8) the term `victim of trafficking' has the meaning 
        given that term in section 103 of the Trafficking Victims 
        Protection Act of 2000 (22 U.S.C. 7102); and
            ``(9) the term `violent crime' has the meaning given that 
        term in section 103 of the Juvenile Justice and Delinquency 
        Prevention Act of 1974 (42 U.S.C. 5603).
    ``(b) Motions To Vacate Convictions or Expunge Arrests.--
            ``(1) In general.--
                    ``(A) Convictions of covered offenses.--A person 
                convicted of any covered offense (or an eligible entity 
                representing such a person) may move the court which 
                imposed the sentence for the covered offense to vacate 
                the judgment of conviction if the covered offense was 
                committed as a direct result of the person having been 
                a victim of trafficking.
                    ``(B) Arrests for covered offenses.--A person 
                arrested for any covered offense (or an eligible entity 
                representing such a person) may move the district court 
                for the district and division embracing the place where 
                the person was arrested to expunge all records of the 
                arrest if the conduct or alleged conduct of the person 
                which resulted in the arrest was directly related to 
                the person having been a victim of trafficking.
                    ``(C) Arrests for noncovered offenses.--A person 
                arrested for any noncovered offense (or an eligible 
                entity representing such a person) may move the 
                district court for the district and division embracing 
                the place where the person was arrested to expunge all 
                records of the arrest if--
                            ``(i) the conduct or alleged conduct of the 
                        person which resulted in the arrest was 
                        directly related to the person having been a 
                        victim of trafficking; and
                            ``(ii)(I) the person is acquitted of the 
                        noncovered offense;
                            ``(II) the government does not pursue or 
                        dismisses criminal charges against the person 
                        for the noncovered offense; or
                            ``(III)(aa) the charges against the person 
                        for the noncovered offense are reduced to an 
                        offense that is a covered offense; and
                            ``(bb) the person is acquitted of the 
                        covered offense, the government does not pursue 
                        or dismisses criminal charges against the 
                        person for the covered offense, or any 
                        subsequent conviction of the covered offense is 
                        vacated.
            ``(2) Contents of motion.--A motion described in paragraph 
        (1) shall--
                    ``(A) be in writing;
                    ``(B) describe any supporting evidence;
                    ``(C) state the offense; and
                    ``(D) include copies of any documents showing that 
                the movant is entitled to relief under this section.
            ``(3) Hearing.--
                    ``(A) Mandatory hearing.--
                            ``(i) Motion in opposition.--Not later than 
                        30 days after the date on which a motion is 
                        filed under paragraph (1), the Government may 
                        file a motion in opposition of the motion filed 
                        under paragraph (1).
                            ``(ii) Mandatory hearing.--If the 
                        Government files a motion described in clause 
                        (i), not later than 15 days after the date on 
                        which the motion is filed, the court shall hold 
                        a hearing on the motion.
                    ``(B) Discretionary hearing.--If the Government 
                does not file a motion described in subparagraph 
                (A)(i), the court may hold a hearing on the motion not 
                later than 45 days after the date on which a motion is 
                filed under paragraph (1).
            ``(4) Factors.--
                    ``(A) Vacating convictions of covered offenses.--
                The court may grant a motion under paragraph (1)(A) if, 
                after notice to the Government and an opportunity to be 
                heard, the court finds, by clear and convincing 
                evidence, that--
                            ``(i) the movant was convicted of a covered 
                        offense; and
                            ``(ii) the participation in the covered 
                        offense by the movant was a direct result of 
                        the movant having been a victim of trafficking.
                    ``(B) Expunging arrests for covered offenses.--The 
                court may grant a motion under paragraph (1)(B) if, 
                after notice to the Government and an opportunity to be 
                heard, the court finds, by clear and convincing 
                evidence, that--
                            ``(i) the movant was arrested for a covered 
                        offense; and
                            ``(ii) the conduct or alleged conduct which 
                        resulted in the arrest was directly related to 
                        the movant having been a victim of trafficking.
                    ``(C) Expunging arrests for noncovered offenses.--
                The court may grant a motion under paragraph (1)(C) if, 
                after notice to the Government and an opportunity to be 
                heard, the court finds, by clear and convincing 
                evidence, that--
                            ``(i) the movant was arrested for a 
                        noncovered offense and the conduct or alleged 
                        conduct which resulted in the arrest was 
                        directly related to the movant having been a 
                        victim of trafficking; and
                            ``(ii)(I) the person is acquitted of the 
                        noncovered offense;
                            ``(II) the government does not pursue or 
                        dismisses criminal charges against the person 
                        for the covered offense; or
                            ``(III)(aa) the charges against the person 
                        for the noncovered offense are reduced to a 
                        covered offense; and
                            ``(bb) the person is acquitted of the 
                        covered offense, the government does not pursue 
                        or dismissed criminal charges against the 
                        person for the covered offense, or any 
                        subsequent conviction of that covered offense 
                        is vacated.
            ``(5) Supporting evidence.--
                    ``(A) Rebuttable presumption.--For purposes of this 
                section, there shall be a rebuttable presumption that 
                the movant is a victim of trafficking if the movant 
                includes in the motion--
                            ``(i) a copy of an official record, 
                        certification, or eligibility letter from a 
                        Federal, State, tribal, or local proceeding, 
                        including an approval notice or an enforcement 
                        certification generated from a Federal 
                        immigration proceeding, that shows that the 
                        movant was a victim of trafficking, including a 
                        victim of a trafficker charged with a violation 
                        of chapter 77; or
                            ``(ii) an affidavit or sworn testimony from 
                        a trained professional staff member of a victim 
                        services organization, an attorney, a member of 
                        the clergy, or a medical or other professional 
                        from whom the movant has sought assistance in 
                        addressing the trauma associated with being a 
                        victim of trafficking.
                    ``(B) Other evidence.--
                            ``(i) In general.--For purposes of this 
                        section, in determining whether the movant is a 
                        victim of trafficking, the court may consider 
                        any other evidence the court determines is of 
                        sufficient credibility and probative value, 
                        including an affidavit or sworn testimony of 
                        the movant.
                            ``(ii) Affidavit or sworn testimony of 
                        movant sufficient evidence.--The affidavit or 
                        sworn testimony of the movant described in 
                        clause (i) shall be sufficient evidence to 
                        vacate a conviction or expunge an arrest under 
                        this section if the court determines that--
                                    ``(I) the affidavit or sworn 
                                testimony is credible; and
                                    ``(II) no other evidence is readily 
                                available.
            ``(6) Conviction or arrest of other persons not required.--
        It shall not be necessary that any person other than the movant 
        be convicted of or arrested for a covered offense before the 
        movant may file a motion under paragraph (1).
            ``(7) Denial of motion.--
                    ``(A) In general.--If the court denies a motion 
                filed under paragraph (1), the denial shall be without 
                prejudice.
                    ``(B) Reasons for denial.--If the court denies a 
                motion filed under paragraph (1), the court shall state 
                the reasons for the denial in writing.
                    ``(C) Reasonable time to cure deficiencies in 
                motion.--If the motion was denied due to a curable 
                deficiency in the motion, the court shall allow the 
                movant sufficient time for the movant to cure the 
                deficiency.
            ``(8) Appeal.--An order granting or denying a motion under 
        this section may be appealed in accordance with section 1291 of 
        title 28 and section 3731 of this title.
    ``(c) Vacatur of Convictions.--
            ``(1) In general.--If the court grants a motion to vacate a 
        conviction under subsection (b), the court shall immediately 
        vacate the conviction for cause, set aside the verdict and 
        enter a judgment of acquittal, and enter an expungement order 
        that directs that there be expunged from all official records 
        all references to--
                    ``(A) the arrest of the person for the covered 
                offense;
                    ``(B) the institution of criminal proceedings 
                against the person relating to the covered offense; and
                    ``(C) the results of the proceedings.
            ``(2) Effect.--If a conviction is vacated under an order 
        entered under paragraph (1)--
                    ``(A) the conviction shall not be regarded as a 
                conviction under Federal law and the person for whom 
                the conviction was vacated shall be considered to have 
                the status occupied by the person before the arrest or 
                the institution of the criminal proceedings related to 
                such conviction; and
                    ``(B) no alien may be removed, determined to be 
                inadmissible, or lose any immigration benefit because 
                of such conviction, arrest, or institution of criminal 
                proceedings.
    ``(d) Expungement of Arrests.--
            ``(1) In general.--If the court grants a motion to expunge 
        an arrest under subsection (b), the court shall immediately 
        enter an expungement order that directs that there be expunged 
        from all official records all references to--
                    ``(A) the arrest of the person for the covered 
                offense;
                    ``(B) the institution of any criminal proceedings 
                against the person relating to the covered offense; and
                    ``(C) the results of the proceedings, if any.
            ``(2) Effect.--If an arrest is expunged under an order 
        entered under paragraph (1)--
                    ``(A) the arrest shall not be regarded as an arrest 
                under Federal law and the person for whom the arrest is 
                expunged shall be considered to have the status 
                occupied by the person before the arrest or the 
                institution of the criminal proceedings related to such 
                arrest, if any; and
                    ``(B) no alien may be removed, determined to be 
                inadmissible, or lose any immigration benefit because 
                of arrest or institution of criminal proceedings, if 
                any.
    ``(e) Mitigating Factors.--
            ``(1) In general.--The court which imposed sentence for a 
        noncovered offense upon a covered prisoner may reduce the term 
        of imprisonment for the noncovered offense--
                    ``(A) upon motion by a covered prisoner, the 
                Director of the Bureau of Prisons, or the court's own 
                motion;
                    ``(B) after notice to the Government;
                    ``(C) after considering--
                            ``(i) the factors set forth in section 
                        3553(a);
                            ``(ii) the nature and seriousness of the 
                        danger to any person; and
                            ``(iii) the community, or any crime 
                        victims; and
                    ``(D) if the court finds, by clear and convincing 
                evidence, that the covered prisoner committed the 
                noncovered offense as a direct result of the covered 
                prisoner having been a victim of trafficking.
            ``(2) Rebuttable presumption.--For the purposes of this 
        subsection, there shall be a rebuttable presumption that a 
        covered prisoner is a victim of trafficking if the covered 
        prisoner provides--
                    ``(A) a copy of an official record, certification, 
                or eligibility letter from a Federal, State, tribal, or 
                local proceeding, including an approval notice or an 
                enforcement certification generated from a Federal 
                immigration proceeding, that shows that the covered 
                prisoner was a victim of trafficking, including a 
                victim of a trafficker charged with a violation of 
                chapter 77; or
                    ``(B) an affidavit or sworn testimony from a 
                trained professional staff member of a victim services 
                organization, an attorney, a member of the clergy, or a 
                medical or other professional from whom the covered 
                prisoner has sought assistance in addressing the trauma 
                associated with being a victim of trafficking.
            ``(3) Requirement.--Any proceeding under this subsection 
        shall be subject to section 3771.
            ``(4) Particularized inquiry.--For any motion under 
        paragraph (1), the Government shall conduct a particularized 
        inquiry of the facts and circumstances of the original 
        sentencing of the covered prisoner in order to assess whether a 
        reduction in sentence would be consistent with this section.
    ``(f) Additional Actions by Court.--The court may, upon granting a 
motion under this section take such additional action as the court 
determines is appropriate.
    ``(g) Confidentiality of Movant.--
            ``(1) In general.--A motion under this section and any 
        documents, pleadings, or orders relating to the motion shall be 
        filed under seal.
            ``(2) Information not available for public inspection.--No 
        officer or employee may make any report, paper, picture, 
        photograph, court file or other document, in the custody or 
        possession of the officer or employee, that identifies the 
        movant available for public inspection.
    ``(h) Applicability.--This section shall apply to any conviction or 
arrest occurring before, on, or after the date of enactment of this 
section.''.
    (b) Technical and Conforming Amendment.--The table of sections of 
chapter 237 of title 18, United States Code, is amended by adding at 
the end the following:

``3772. Motion to vacate; expungement; mitigating factors.''.
                                 <all>
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