Minor and miscellaneous bills : hearing before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 1241, H.R. 1533, H.R. 1552, H.R. 2359, and H.R. 2360, September 28, 1995 (Volume Pt. 2) online

registration systems, and will provide mechanisms for ensuring
that address information is kept up to date when the offender
moves elsewhere in the state or to another state.

However, implementation of these tracking systems will
depend on compliance by the various states with these aspects of
the Jacob Wetterling system. As states comply with Jacob
Wetterling, the resulting databases would be maintained at the
state level .

Currently, the FBI is working with its Criminal Justice
Information Services (CJIS) Advisory Policy Board, which advises
the Director on criminal justice and law enforcement agency



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matters, to establieh a Sex Offender Registration Index in the
National Crime Information Center (NCIC) . The FBI is working on
additional technical and legal research related to this expansion
of the NCIC 2000 "Individuals on Supervised Release" database,
and expansion of NCIC 2000 to include a category of records for
persons registered under the requirements of the Jacob Wetterling
Act. We anticipate implementation of the Sex Offender
Registration Index in NCIC 2000 sometime after 1999.

H.R. 24S3 - The Fugitive Detention Act

This bill would amend 18 U.S.C. § 3161, relating to speedy
trial time limits, by providing that, with regard to a defendant
who was a fugitive from justice, the existing time limitations
for commencement of trial shall be further extended by 6 days
for each year that the court determines the defendant was a
fugitive .

We appreciate the purpose of the bill to ensure that
fugitives are not rewarded for their flight by making prosecution
difficult- However, the proposal may have the potential for
providing unnecessary additional time. Under certain
circumstances, 18 U.S.C. §3161 (k) could provide an adequate
extension of the time limitations when a defendant fails to
appear for trial, by in effect restarting the clock so that the
government gets 70 days in which to bring the individual to
trial. Under other circumstances in which a defendant's flight
has given rise to unusually difficult problems for the government
in reassembling its evidence, some further extension clearly is
warranted. We would be pleased to work with the Subcommittee and
the bill's sponsor on this important issue.

H.R. 2607 - Veterans' Maxnoriale Protection Act

H.R. 2607, which appears to be modeled on 18 U.S.C. 1361,
would add a new section 1368 of title 18 punishing whoever "on
public property" willfully injures or commits any depredation
against any structure, statute, plaque, or monument commemorating
the service of any person in the United States armed forces. We,
ot course, agree with the underlying motivation behind the bill;
that the memories of those who have sacrificed and served this
Nation should forever be treated with respect.

The Subcommittee should consider the following. To the
extent that veterans' memorials are United States property or are
on land over which there is federal criminal jurisdiction,
willful damage or depredation of such memorialB ia already
subject to federal prosecution under 18 U.S.C. 1361 or the
Assimilative Crimea Act, IB U.S.C. 13. By "on public property",
therefore, we surmise that the bill is intended to reach those
memorials that are on property belonging to a state or
subdivision thereof. Assuming that to be the case, the



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Subcommittee should assess whether the nature of the property in
question is a sufficient basis for the assertion of federal
jurisdiction, absent some other federal nexus such as the offense
having an adverse effect on interstate commerce. Moreover, we
are unaware of any problem with respect to current law
enforcement efforts involving this type of offense. Federal
agents are likely to be far less accessible to the scene than
local authorities and less knowledgeable about the activities of
the possible perpetrators in a local community.

H.R. 2641 - The XT&ited States Marshals Service la^rovenents Act

H.R. 2641 would amend 28 U.S.C. § 561(c) to authorize the
Director of the Marshals Service to appoint U.S. Marshals from
the competitive civil service. Marshals thus would be career law
enforcement officers who had risen through the ranks of the
Marshals Service. The provision would take effect in the year
2000. Until that time, Marshals would continue to be appointed
by the President with the advice and consent of the Senate as
they have been since the earliest days of our nation.

We support the thrust of the bill, which is consistent with
a recommendation from the National Performance Review. We would,
however, none a constitutional concern with the specific language
of H.R. 2641. The bill should provide for appointment of
Marshals by the Attorney General rather than the Director of the
Marshals Service. Courts have held that Marshals are "officers
of the United States" in the Constitutional sense. Under the
Appointments Clause of the Constitution, such officers must be
appointed by the President, courts of law, or heads of
Departments .

Appointment of Marshals by the Attorney General would result
in naming as Marshals persons who have demonstrated outstanding
law enforcement and administrative expertise through a career in
the Service. Although politically appointed Marshals have long
served the Nation with dedication and integrity, today the multi-
faceted law enforcement mieaions of the Marshals Service -
involving such matters as judicial security, fugitive
apprehension, prisoner transportation, witness protection, and
disposal of seized assets - require that its field offices, like
Lhose of other law enforcement agencies, be headed by career law
enforcement officers.



H.R. 2803 - Anti-Car Theft IiDprov«niant8 Act

This bill would amend 49 U.S.C. §§ 30501 - 30505 so as to
transfer primary responsibility for the operation of the National
Automobile Title Information System (NATIS) from the Secretary of
Transportation to the Attorney General. The bill also would



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expand the scope of the system to include "passenger motor
vehicles" as defined in 49 U.S.C. § 32101(10), ae well as
"automobiles" as defined in 49 U.S.C. § 32901(a). Accordingly,
the bill would change the name of the system to the National
Motor Vehicle Title Information System.

In our view, an effective motor vehicle titling information
system would deter auto theft by reducing the opportunity for car
thieves to buy the "junk," "salvage," "rebuilt" or other branded
titles to wrecked automobiles, switch the VIN plates from the
wrecks to similar make/model stolen automobiles, and then obtain
apparently clean or "washed" titles to the stolen vehicles in
other jurisdictions. The system also would deter consumer fraud
by preventing unscrupulous auto-rebuilders from obtaining clean
or "washed" titles to rebuilt wrecks.

The Department of Justice does not object to the concept of
a transfer of primary responsibility for operating NATIS from the
Secretary of Transportation to the Attorney General. However, we
understand that the Department of Transportation, in cooperation
with the American Association of Motor Vehicle Administrators, is
conducting a pilot study of the system. In view of the ongoing
pilot study, a transfer of primary responsibility for operating
the system at this time may be counterproductive and could cause
delays in implementation. We further understand that
implementation of the system has been impeded by lack of funding.
We assume that a transfer of primary responsibility foi- the
operation of KATIS to the Attorney General will include funding
adequate to establish an effective system.

Sections 5 and 6 of the bill provide for immunity from civil
liability for any person performing any activity in good faith
and with the reasonable belief that such activity was in
accordance with 49 U.S.C. §§ 30502-30504 and 33109-33111. We
support these immxinity provisions .

E.R. 2B04 - Xir Bag Harking

This bill would amend 49 U.S.C. § 33101(6) by adding air
bags to the list of major parts of passenger motor vehicles
subject to the Department of Transportation's theft prevention
program. This program requires manufacturers to mark designated
major parts of certain passenger motor vehicles with
identification numbers. The Department supports this bill, which
will enhance efforts to deter motor vehicle theft and "chop shop"
operations .



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H.R. 2974 - Crimes Against Children and Blderly Persons
Punlsfament and Prevention Act

H.R. 2974 would direct the Sentencing CommiBBion to increase
by five levels (or generally more than fifty percent) the
sentence for certain crimes of violence committed againet victims
65 years of age or older or 11 years of age or younger. The
impetus for the legislation evidently stems from the fact that
the Sentencing Commission took virtually no action in response to
the enactment by Congress of section 240002 of the Violent Crime
Control and Law Enforcement Act of 1994 (VCCLEA) . That provision
had directed the Commission to "ensure that the applicable
guideline range for a defendant convicted of a crime of violence
against an elderly victim is sufficiently stringent to deter such
a crime, to protect the public from additional crimes of such a
defendant, and to adequately reflect the heinous nature of such
an offense." The Commission determined to make no amendment of
the guidelines pursuant to this provision,' evidently concluding
that the guidelines already provided an adequate adjustment for
crimes against elderly victims, through section 3A1 . 1 of the
guidelines, dating from 1990, which directs a court to increase
the sentence by two levels if "the defendant knew or should have
known that a victim of the offense was unusually vulnerable due
to age, physical or mental condition, or that a victim was
otherwise particularly susceptible to the criminal conduct . "

Victims of crime who are particularly vulnerable due to
advanced age or youth deserve special protection under the law.
In light of the current guidelines covering all vulnerable
victims, we have several suggestions to improve this proposal:

First, we share the Commission's belief, reflected in the
scope of section 3A1.1, that all vulnerable victims should
receive comparable protection. A person who assaults a disabled
thirty year old victim should not be treated more leniently than
one who assaults a physically robust elderly victim.

Second, the list of violent crimes as defined in H.R. 2974
is incomplete. It covers only ten enumerated violent offenses
for which there is federal jurisdiction based largely on their
commission in the special maritime and territorial jurisdiction
of the United States, and omits far more frequently prosecuted
violent offenses such as bank and postal robbery (18 U.S.C. 2113,



-'â– The Commission amended its commentary to suggest that an
upward departure from the guidelines might be warranted if the
offense were the second such crime by the defendant against a
vulnerable victim, but departures are wholly discretionary.



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2114) .* We see no reason why the generic definition of "crime of
violence" in 18 U.S.C. §16 should not be applicable here.

Third, we believe that requiring some knowledge of the
victim's vulnerable status, as does the current guideline, is
preferable to requiring a penalty increase triggered solely by
the fact of the victim's age or vulnerability.

Finally, we believe that mandating that the Commission
increase its guidelines by a specific level may be unnecessary.
We would prefer that the bill mandate the Commission provide an
appropriate further increase in section 3A1.1, but confer more
discretion on the Commission as to the precise degree of penalty
enhancement to be imposed.

We look forward to the opportunity to work with the
Subcommittee to provide greater protection to all vulnerable
victims, including those specifically enumerated in H.R. 2974.

H.R. 2980 - Interstate Stalking Pxinishment and Prevention Act

The proposed Interstate Stalking Punishment and Prevention
Act of 1996 would enact an interstate stalking offense (proposed
18 U.S.C. 2261A) . The proposed offense is modeled on the
existing interstate domestic violence offense, 18 U.S.C. 2261.
It would specifically cover traveling across a state line or
entering or leaving Indian country with the intent to injure or
harass another person, where the actor in the course of. or ae a
result of , such travel places that person in reasonable fear of
death or serious bodily injury to the person or an immediate
family member. The authorized penalties would be the same as
those provided in 18 U.S.C. 2261.

In addition to proposing the new interstate stalking
offense, the bill corrects a drafting problem in 18 U.S.C. 2262
(relating to interstate violations of protection orders) . As
currently drafted, the penalty provisions in 18 U.S.C. 2262 are
facially narrower than the scope of the offense it defines, since
the penalty provisions refer to harm to the offender's spouse or
intimate partner, but the offense defined in subsection (a) could
be premised on violation of a protection order issued for the
benefit of any person. The bill corrects this problem by
substituting references to the "victim" in the penalty provisions
for references to "spouse or intimate partner."

The Department of Justice supports the enactment of this
legislation. In essence, it fills a gap in existing federal law.



^We recognize that section 240002 of the VCCLEA, which the
draft bill would amend, was similarly drafted.



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which reaches interstate domestic violence (under 18 U.S.C. 2261)
and interstate violations of protection orders (under 18 U.SC.
2262) , but does not cover essentially similar types of conduct
where the victim has not had an intimate relationship with the
offender and has not obtained a protection order. Since the
scope of the proposed offense is generally limited to cases
involving interstate movement of the offender, we do not believe
that it will result in an excessive extension of federal
jurisdiction or undermine state responsibility. Rather, like the
existing offenses in 18 U.S.C. 2261-62, it will provide a
supplementary measure for cases where the interstate nature of
the offense may create difficulties for effective state
investigation and prosecution.

In terms of drafting, we suggest the following corrections
or refinements: (1) It would be advisable to add to 18 U.S.C.
2266 a definition of "harass," a term that appears without
definition in 18 U.S.C. 2261 and proposed 18 U.S.C. 2261A. We
would be pleased to work with the sponsors to devise an
appropriate definition. (2) For consistency with the
corresponding language in 18 U.S.C. 2261(a)(1), proposed 18
U.S.C. 2261A should say "with the intent to injure, harass, or
intimidate" rather than "with the intent to injure or harass."
(3) The term "serious bodily injury" should be defined. This is
a term often used in title 18, and its existing definition could
be incorporated by reference by adding " (as defined in section
1365(g)(3) of this title)" after "serious bodily injury" in
proposed 18 U.S.C. 2261A. (4) The phrase "of this title" should
be inserted after "section 115" in proposed 18 U.S.C. 2261A.
(5) The item for chapter llOA in the table of chapters for title
18, United States Code, should be amended to reflect the change
in the chapter heading proposed in the bill (from "domestic
violence" to "domestic violence and stalking").

H.R. 2996 - The Law Enforcement and Industrial Security
Cooperation Act

This bill would create a Commission, composed of 12 members
appointed by the majority and minority leadership of the House of
Representatives and the Senate, as well as a Commission staff and
an Advisory Board appointed by various interests. The proposed
structure would be tasked with studying issues of public-private
cooperation in law enforcement, recommending revisions in
federal, state, and local laws to the Congress to promote such
cooperation, and otherwise encouraging such cooperation. The
Commission would make a final report to Congress after two years.
Financing of the Commission would come from private funds and
gifts .

It is important to note that public and private interests
are currently participating in numerous efforts to improve
public-private cooperation in law enforcement. Federal law
enforcement agencies already support and benefit from many



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private and pxiblic efforts in this area, by conducting research,
sharing information at conferences, and coordinating enforcement
programs. For example, federal representatives participate in
the National Cargo Security Council, a coalition created to
improve safety and security in commercial shipping. We are
similarly actively engaged in cooperative security planning
efforts in the high technology and computer crime area.

We support the goals of this bill and want to work with the
Subcommittee and the bill ' s sponsor regarding some of the
specific provisions proposed. The nature of the effort does not
suggest any need for the proposed authority to administer oaths
or require testimony by subpoena. The goal of cooperation in
preventing the victimization of commercial interests is not
controversial and does not involve adversarial interests. We are
not aware of any need to siibpoena individuals or "evidence."

The role proposed for federal agencies is potentially very
burdensome. At a minimum, reimbursement for personnel detailed
with the consent of their employing agency should be required.
Further, personnel already engaged in successful cooperative law
enforcement efforts should not be diverted from such assignments
in order to staff this new initiative. Similarly, any
information demand from the Commission should be evaluated from
the perspective of the burden which compliance will place upon
the affected agency and upon its ongoing cooperative law
enforcement efforts.

The proposals for financial assistance from corporate,
private, and other non-governmental interests clearly raise
concerns since the effort is likely to lead to legislative
proposals and other governmental action. Commission authority to
accept, use, and dispose of gifts raises similar concerns
regarding the potential creation of a conflict of interest or the
appearance of a conflict of interest.

Again, we are pleased to assist the Subcommittee's
consideration of these bills. Please do not hesitate to contact
me if you need any additional assistance.



^sincerely, I \



Andrew Fois



Assistant Attorney General



The Honorable Charles Schumer
Ranking Minority Member



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Mr. Di Gregory. The first H.R. 1143, H.R. 1144, and H.R. 1145,
those bills dealing with retaliation against witnesses, witness tam-
pering and jury tampering, the Department believes that these of-
fenses are serious threats to the integrity of the criminal justice
process. The enhancement of penalties as proposed in these bills is
designed to deter the commission of these types of crimes and we
therefore support these proposals.

H.R. 2092, the Private Security Officer Quality Assurance Act,
enhancing the oversight and regulation of private security officers
is a laudable and important goal which we support. However, our
principal concern regarding this proposal relates to the provisions
allowing background checks for private security officers directly
through the FBI.

H.R. 2137, Megan's law, H.R. 2137 would require the release of
relevant information to protect the public from child molesters and
other sexually violent offenders. The Department of Justice sup-
ports the enactment of this legislation. Where a State has informa-
tion through its registration system concerning a child molester or
other sexually violent criminal who poses a continuing danger to
others, the State should not withhold this information from persons
who need it for the security of themselves and their families.

The Fugitive Detention Act, H.R. 2453, we appreciate the pur-
pose of this bill to ensure that fugtives are not rewarded for their
flight by making prosecution difficult. There is already, as Mr.
Frank alluded to, a statutory mechanism for providing extension of
time limitations when a defendant fails to appear for trial by, in
effect, restarting the clock so that the Government gets 70 days in
which to bring the individual to trial. However, under some cir-
cumstances a further extension would clearly be warranted, and as
we informed Mr. Frank earlier today, we would be happy to work
with the subcommittee and Mr. Frank on this important issue.

The Veterans Memorials Protection Act, H.R. 2607, we agree
with the underlying motivation behind the bill, that the memories
of those who have served — sacrificed and served this Nation should
forever be treated with respect. And we are outraged at the dese-
cration which occur. The bill's coverage is presumably intended to
reach those memorials that are on property belonging to a State or
subdivision, and in light of this, we simply suggest that the com-
mittee consider whether the nature of the property in question is
a sufficient basis for the assertion of Federal jurisdiction absent
some other nexus and whether State governments and local gov-
ernments are fulfilling their responsibilities in enforcing their
criminal laws with respect to vandalism and the discretion of these
properties.

H.R. 2587, the War Crimes Act, this bill would create in title 18
of the United States Code, a new chapter dealing with war crimes.
Because this proposal is the subject of interagency discussions, I
am unable to provide comments on the bill at this time, but I do
believe that we will be able to provide our bills on this— our views
on this bill, excuse me, very soon.

H.R. 2641, the U.S. Marshals Service Improvements Act, H.R.
2641 would authorize the Director of the Marshals Service to ap-
point U.S. marshals from the competitive civil service. Marshals
thus would be career law enforcement officers who had risen



125

through the ranks of the service. We support the thrust of this bill.
We would, however, note that constitutional considerations require
that the appointment of marshals should be by the Attorney Gen-
eral rather than the Director of the Marshals Service.

The Federal Mandatory Drug Treatment and Prison Act, H.R.
2650, we are currently reviewing the changes provided in this bill
and we were unable to finalize our views on this proposal prior to
the hearing. We will forward our comments to the subcommittee
shortly, and as a matter of fact, we discussed this bill yesterday,
and if I may, on a personal note, at least regarding my personal
experience as a prosecutor in Florida, Mr. Chairman, Mr. Barr, Mr.
Heineman, I was always concerned when the Florida Sentencing
Guidelines allowed, for example, the burglar who claimed he had
a drug abuse problem to receive a downward departure in his sen-
tence because of that problem, when the burglar who did not was
not eligible for that claim. So I personally have a similar concern
that you have. But as I said, we are continuing to discuss this and
we hope to have our views to you shortly.

H.R. 2803, the Anti-Car Theft Improvements Act, this bill would
transfer primary responsibility for the operation of the National
Automobile Title Information System from the Secretary of Trans-
portation to the Attorney General. The Department of Justice does
not object to the concept of a transfer of primary responsibility for
operating NATIS fi'om the Secretary to the Attorney General. We
are concerned that a transfer at this time may cause additional
delay in the system's implementation.

Airbag Marking, H.R. 2804, we support this bill which adds air-
bags to the list of major parts of passenger motor vehicles subject
to the Department of Transportation's Theft Prevention Program.

H.R. 2974, Crimes Against Children and Elderly Persons Punish-
ment and Prevention Act, H.R. 2974 would direct the Sentencing
Commission to increase by five levels or generally more than 50
percent the sentence of the — the sentence for certain crimes of vio-
lence committed against victims 65 years of age or older, or 11
years of age or younger.

Victims of crime who are particularly vulnerable due to advanced
age or youth deserve special protection under the law. In light of
the already existing g^delines covering all vulnerable victims we
have certainly suggestions that we suggest would improve this pro-
posal and those are contained in the views letter that has been
submitted to you.