I
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 inves-
tigative demands, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives 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:
‘‘§ 3016. Civil investigative demands
‘‘(a) For purposes of this section—
son 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 in-
vestigation and the provision of this chapter applica-
ble thereto;
‘‘(B) if it is a demand for production of docu-
mentary material—
‘‘(i) describe the class or classes of docu-
mentary material to be produced thereunder
with such definiteness and certainty as to per-
mit 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 assem-
bled 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 tes-
timony—
‘‘(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 submit-
ted.
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 an-
swers 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 re-
quests 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 dis-
covery to any person. Disclosure of any product of discov-
ery pursuant to any such express demand does not con-
stitute 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 jurisdic-
tion 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 coun-
try. 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 Dis-
trict 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 peti-
tion filed under subsection (d) may be made upon a part-
nership, 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 au-
thorized by appointment or by law to receive service
of process on behalf of such partnership, corpora-
tion, association or entity;
‘‘(ii) delivering a duly executed copy thereof to
the principal office or place of business of the part-
nership, 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, cor-
poration, 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 resi-
dence 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 accom-
panied by the return post office receipt of delivery of such
demand.
‘‘(7) The production of documentary material in re-
sponse 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 de-
mand and in the possession, custody, or control of the per-
son 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 certifi-
cate, in such form as the demand designates, by the per-
son, if a natural person, to whom the demand is directed
or, if not a natural person, by a person or persons respon-
sible for answering each interrogatory, to the effect that
all information required by the demand and in the posses-
sion, 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 testi-
mony is fully transcribed, the officer before whom the tes-
timony is taken shall promptly transmit a copy of the
transcript of the testimony to the custodian.
‘‘(B) The officer conducting the examination shall ex-
clude from the place where the examination is held all
other persons except the person being examined, his coun-
sel, 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 pursu-
ant 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 of-
ficer shall afford the witness (who may be accompanied
by counsel) a reasonable opportunity to examine the tran-
script, and the transcript shall be read to or by the wit-
ness, 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 rea-
sonable 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 de-
mand for oral testimony pursuant to this section may be
accompanied, represented, and advised by counsel. Coun-
sel 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 ques-
tion, 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 ques-
tion, 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 addi-
tional 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 sub-
section (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 in-
terrogatories, 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 Depart-
ment of Justice under regulations which shall be promul-
gated by the Postal Service. Notwithstanding subpara-
graph (C), such material, answers, and transcripts may
be used by any such official employee, or agent in connec-
tion 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. Noth-
ing in this section shall prevent disclosure to either body
of the Congress or to any authorized committee or sub-
committee 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 inter-
rogatories shall be available for examination by the
person who produced such material or answers, or
by any duly authorized representative of such per-
son; and
‘‘(ii) transcripts of oral testimony shall be avail-
able 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 ap-
pear before any court, grand jury, or agent of a Federal
administrative or regulatory agency in any case or pro-
ceeding, the custodian of any documentary material, an-
swers 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, an-
swers 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 ma-
terial, answers, or transcripts may only be used by the
Commission in such manner and subject to such condi-
tions 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 reg-
ulatory agency involving such material, has been
completed, or
‘‘(B) no case or proceeding, in which such ma-
terial 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 inves-
tigation,
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 Post-
al Service pursuant to paragraph (3) which has not passed
into the control of any court, grand jury, or agency
he shall not be held responsible for any default or derelic-
tion 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 repro-
duction 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 judi-
cial 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 writ-
ing, subsequent to service, by an agent named in the de-
mand, 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 re-
sides, 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 judi-
cial district in which the proceeding in which such
discovery was obtained is or was last pending.
‘‘(B) The time allowed for compliance with the de-
mand 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 de-
mand 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 sec-
tion, 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, compli-
ance 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 testi-
mony given by any person in compliance with any such
demand, such person, and in the case of an express de-
mand 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 re-
quiring 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 sec-
tion. 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 applica-
tion 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 sec-
tions 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:
‘‘§ 1505. Obstruction of proceedings before depart-
ments, agencies and committees
‘‘Whoever, with intent to avoid, evade, prevent, or ob-
struct compliance, in whole or in part, with any civil inves-
tigative demand duly and properly made under the Anti-
trust Civil Process Act or section 3016 of title 39, willfully
withholds, misrepresents, removes from any place, con-
ceals, 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 exer-
cise of the power of inquiry under which such inquiry or
investigation is being had by either House, or any commit-
tee of either House or any joint committee of the Con-
gress—
shall be fined not more than $5,000 or impris-
oned 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 at-
tempts 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 para-
graph (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 busi-
ness, receives mail, or into which the defendant sends
mail.’’; and
(4) by amending subsection (c) to read as fol-
lows:
‘‘(c) All penalties collected under authority of this
section shall be paid into the Postal Service Fund, estab-
lished 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 in-
volves 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 prelimi-
nary injunctive relief under this section upon a showing
of probable cause to believe that such violation is occur-
ring, 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 re-
dressed 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 vio-
lation, 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 ad-
minister such restraining order.’’.