Order Code RL33884
Court Security Improvement Act of 2007:
A Legal Analysis of H.R. 660/S. 378
February 14, 2007
Charles Doyle
Senior Specialist
American Law Division
Court Security Improvement Act of 2007: A Legal
Analysis of H.R. 660/S. 378
Summary
The proposals of the Court Security Improvement Act of 2007, H.R. 660/S. 378,
fall within one of four categories. Some amend existing federal criminal law. It
increases the penalties for manslaughter committed during the course of an
obstruction of justice and for witness intimidation and retaliation. It creates new
federal crimes proscribing (1) the use of nuisance liens and encumbrances to harass
federal officials; (2) the public disclosure of personal, identifying information
concerning federal officials in order to intimidate them or incite crimes of violence
against them; and (3) the possession of dangerous weapons in federal courthouses.
A second category seeks to improve implementation of judicial security
measures through increased appropriations, enhanced security for the Tax Court,
explicit provisions for consultation between the Department of Justice and the
Judicial Conference relating to court security, a report on concerns for the safety of
federal prosecutors, and a revival of authority to redact information from certain
publicly available judicial financial disclosure statements.
A third authorizes grants for state witness protection programs; for increased
security of state, territorial and tribal courts; and for acquisition of armored vests for
state court officials.
The fourth category consists of proposals whose relation to security may appear
more tangential: procurement authority for the United States Sentencing
Commission; life insurance costs for bankruptcy, magistrate, and territorial judges;
appointment and en banc participation for senior judges; and revival of the
appropriations authorization for the Office of Government Ethics.
This report is available in an abridged version – stripped of its footnotes, and
most of its citations to authority – as CRS Report RS22607, Court Security
Improvement Act of 2007: H.R. 660/S. 378 in Brief, by Charles Doyle.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Existing Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Judges, Officers and Employees . . . . . . . . . . . . . . . . . . . . . . . . 2
H.R. 660/S. 378 Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Federal Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
H.R. 660/S. 378 Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Federal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Means of Obstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
H.R. 660/S. 378 Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Implementation of Judicial Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Responsibilities of the Marshals Service . . . . . . . . . . . . . . . . . . . . . . . 10
H.R. 660/S. 378 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Grants to the States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Witness Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
State and Tribal Court Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
U.S. Sentencing Commission Procurement Authority . . . . . . . . . . . . . 14
Life Insurance Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Assignment of Senior Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Appointment of Magistrates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Authorization of the Office of Government Ethics . . . . . . . . . . . . . . . 19
Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
18 U.S.C. 1114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
18 U.S.C. 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
18 U.S.C. 1201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
18 U.S.C. 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
18 U.S.C. 1512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
18 U.S.C. 1513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
18 U.S.C. 1503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
18 U.S.C. 1505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
18 U.S.C. 930 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Court Security Improvement Act of 2007: A
Legal Analysis of H.R. 660/S. 378
Introduction
The Chairmen of the House and Senate Judiciary Committees have introduced
the Court Security Improvement Act of 2007, H.R. 660/S. 3781 that mirrors
legislation that passed the Senate at the close of the 109th Congress.2 The bill consists
of four components: adjustments to applicable provisions of criminal law,
reenforcement of the authority and oversight features of the law governing federal
judicial security, grant programs to facilitate increased security for the judiciary of
the states, and miscellaneous provisions whose relation to judicial security might
initially appear remote. This is a brief discussion of the legal background of each
component.
Existing Criminal Law
Existing federal criminal law seeks to ensure the safety and integrity of federal
judicial and other official proceedings by proscribing threats and violence (1) against
federal personnel, (2) against witnesses at officials features, and (3) against federal
proceedings and facilities.
1 H.R. 660 and S. 378 as introduced appear to be identical with two exceptions. In Sections
105 and 301, H.R. 660 authorizes appropriations for the fiscal years 2006 through 2011;
while in those same sections, S. 378 authorizes appropriations for fiscal years 2007 through
2011. Since the bills are virtually the same, we have referred to them as a single bill.
2 Each House approved a different version of a judicial security bill, H.R. 1751 (109th
Cong.) in the last Congress, 151 Cong.Rec. H10108 (daily ed. Nov. 6, 2005); 152 Cong.Rec.
S11387 (daily ed. Dec. 6, 2006). Each had earlier held hearings and several related bills had
been introduced on either side of the Hill, Secure Access to Justice and Court Protection Act
of 2005: Hearing Before the Crime, Terrorism and Homeland Security Subcomm. on the
House Comm. on the Judiciary, 109th Cong., 1st Sess. (2005); Protecting the Judiciary at
Home and in the Courthouse: Hearing Before the Senate Comm. on the Judiciary, 109th
Cong., 1st Sess. (2005); see also H.Rept. 109-271 (2005). The prepared statements of
witnesses at a Senate Judiciary Committee hearing entitled Judicial Security and
I n d e p e n d e n c e h e l d e a r l y i n 1 1 0 t h C o n g r e s s a r e a v a i l a b l e a t
[http://judiciary.senate.gov/schedule_all.cfm].
For a discussion of the various court security bills in the 109th Congress see CRS
Report RL33473, Judicial Security: Comparison of Legislation in the 109th Congress, by
Nathan James; for a discussion of some of policy considerations raised by legislative
proposals in the 109th Congress, see CRS Report RL33464, Judicial Security:
Responsibilities and Current Issues, by Lorraine H. Tong.
CRS-2
Federal Judges, Officers and Employees.
It is a federal crime to:
! assault, kidnap or kill a federal judge during or on account of the
performance of his or her duties;3 or
! assault, kidnap, or murder of an immediate member of a federal
judge’s family with the intent to obstruct (or retaliate for) the judge’s
performance of his or her duties;4 or
! assault, kidnap, or murder a former federal judge or member of his
or her family on account of the performance of judge’s duties;5 or
! threaten, attempt, or conspire to do so.6
Moreover, the proscriptions are not limited to federal judges. They protect
federal law enforcement officers as well as prosecutors and in fact protect any federal
officer or employee or anyone assisting them, as long as the threat, assault, kidnaping
or killing has the necessary connection (during or on account of) to the performances
3 18 U.S.C. 1114 (killing federal officers or employees or those assisting them); 18 U.S.C.
111 (assaulting, intimidating or interfering with individuals designated in Section 1114); 18
U.S.C. 1201(a)(5)(kidnaping an officer or employee designated in Section 1114)(the text
of Sections 1114, 111, and 1201 are appended). Assault, kidnaping and murder are state
crimes. The fact they are committed against federal officials simply means that in most
instances they may be prosecuted in federal court or in the courts of the state where the
offense occurs or in both, Bartkus v. Illinois, 359 U.S. 121, 127-39 (1959); Abbate v. United
States, 359 U.S. 187, 195-96 (1959)(successive state and federal prosecutions for the same
conduct offends neither the Constitution’s due process clause nor its double jeopardy
clause). As a matter of policy, the United States will only initiate a dual prosecution under
special circumstances, United States Attorneys’ Manual §9-2.031 (Dec. 2006), and a few
states have statutory limitations on successive federal-state prosecutions, see e.g.,
Colo.Rev.Stat. §18-1-303(1)(a); Del.Code Ann. tit. 11, §209(1); Haw.Rev.Stat. §701-
112(1).
4 18 U.S.C. 115(a)(influencing, impeding, or retaliating against a federal official protected
by Section 1114 by threatening or injuring a family member)(the text of Section 115 is
appended).
5 18 U.S.C. 115(b)(assaults, kidnappings, and murders committed in retaliating against a
former official protected by Section 1114 or a member of his or her immediate family).
6 18 U.S.C. 1114 (attempted murder of federal officers or employees or those assisting
them); 18 U.S.C. 111 (forcible interference of those protected under Section 1114); 18
U.S.C. 1201 (attempts and conspiracies to kidnap); 18 U.S.C. 115 (threats against federal
officers or employees, former officers or employees, or their families; and attempts or
conspiracy to assault, kidnap or murder them); 18 U.S.C. 371 (conspiracy to commit a
federal offense).
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of federal duties.7 The penalties for the offenses are calibrated according to the
seriousness of the obstructing offense.8
H.R. 660/S. 378 Proposals.
Section 1114 (killing federal officers and employees, etc.) adopts by cross
reference the penalties of 18 U.S.C. 1112 (manslaughter in the special maritime and
territorial jurisdiction) when the offense involves manslaughter committed against
federal judges, officials or employees. H.R. 660/S. 378 (§207) increases the
maximum penalty for manslaughter committed in violation of Section 1114 by
increasing the penalties under 18 U.S.C. 1112. In the case of voluntary
manslaughter, the term of imprisonment goes from not more than 10 years to not
more than 20 years, and in the case of involuntary manslaughter from not more than
6 years to not more than 10 years.
Several other federal statutes also adopt the penalty structure of Section 1112
by cross-reference. Consequently, when H.R. 660/S. 378 enhances sanctions of
Section 1112 it increases the penalties for manslaughter in violation of both Sections
1112 and 1114, but also manslaughter committed:
! against a Member of Congress, a senior executive branch official, or,
a Supreme Court Justice;9
! in connection with a federal offense that involves the use or
possession of armor piercing ammunition during and furtherance of
the offense;10
7 18 U.S.C. 1114; 18 U.S.C. 1201; 18 U.S.C. 111; 18 U.S.C. 115.
8 1st degree murder: death or imprisonment for life, 18 U.S.C. 1114, 115, 1111; 2d degree
murder: imprisonment for any term of years or for life, 18 U.S.C. 1114, 115, 1111;
attempted murder: imprisonment for not more than 20 years, 18 U.S.C. 1114, 115, 1113;
conspiracy to murder: imprisonment for any term of years or for life, 18 U.S.C. 1114, 115,
1117; voluntary manslaughter: imprisonment for not more than 10 years, 18 U.S.C. 1114,
1112; involuntary manslaughter: imprisonment for not more than 6 years, id.; attempted
manslaughter: imprisonment for not more than 7 years, 18 U.S.C. 1114, 115, 1113;
kidnaping: imprisonment for any term of years or for life, 18 U.S.C. 1201, 115; attempted
kidnaping: imprisonment for not more than 20 years, id.; conspiracy to kidnap:
imprisonment for any term of years or for life, id.; simple assault: imprisonment for not
more than 1 year, 18 U.S.C. 111, 115; assault with a dangerous weapon or causing injury:
imprisonment for not more than 20 years, id.; other assaults: imprisonment for not more
than 8 years, id.; conspiracy to assault: imprisonment for not more than 5 years, 18 U.S.C.
371; threatening to murder or kidnap: imprisonment for not more than 10 years, 18 U.S.C.
115; threatening to assault: imprisonment for not more than 6 years, id.
Sentences noted in bold here and elsewhere are those H.R. 660/S. 378 would increase.
9 18 U.S.C. 351.
10 18 U.S.C. 924(c)(5)(B).
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! in connection with the possession of a firearm or dangerous weapon
in a federal facility;11
! against protected diplomatic officials;12
! against an American by an American overseas;13
! in the course of an obstruction of justice in violation of 18 U.S.C.
1503, 1512, or 1513;14
! against the President, Vice-President, or senior executive branch
officials.15
Federal Witnesses.
Federal obstruction of justice statutes protect witnesses and potential witnesses
in federal judicial, Congressional and administrative proceedings by outlawing
murder, assault and threats intended to prevent or influence a witness’ testimony or
to retaliate for past testimony, 18 U.S.C. 1512 and 1513. The penalties for murder,
manslaughter and attempted murder of federal witnesses under Sections 1512 and
1513 are the same as when those crimes are committed against federal officials, but
the penalties for assault and conspiracy are a bit more severe.16
H.R. 660/S. 378 Proposals.
In addition to the penalty increases occurring when the bill changes the Section
1112 manslaughter penalties that apply to manslaughter committed in violation of
Sections 1512 and 1513 (from imprisonment for not more than 10 years to
11 18 U.S.C. 930.
12 18 U.S.C. 1116.
13 18 U.S.C. 1119.
14 18 U.S.C. 1503, 1512, 1513 (text is appended).
15 18 U.S.C. 1751.
16 1st degree murder: death or imprisonment for life, 18 U.S.C. 1512(a). 1513(a), 1111; 2d
degree murder: imprisonment for any term of years or for life, id.; attempted murder:
imprisonment for not more than 20 years, 18 U.S.C. 1512(a), 1513(a); conspiracy to murder:
imprisonment for any term of years or for life, 18 U.S.C. 1512(a). 1513(a), 1111; voluntary
manslaughter: imprisonment for not more than 10 years, 18 U.S.C. 1512(a). 1513(a), 1112;
involuntary manslaughter: imprisonment for not more than 6 years, id.; use of physical force
to obstruct: imprisonment for not more than 20 years, 18 U.S.C. 1512(a); attempted use of
physical force to obstruct: imprisonment for not more than 20 years, id.; conspiracy to use
of physical force to obstruct: imprisonment for not more than 20 years, id.; use of threats
to obstruct: imprisonment for not more than 10 years, 18 U.S.C. 1512(a), (b); causing injury
or damage to retaliate: imprisonment for not more than 10 years, 18 U.S.C. 1513(b);
conspiracy or attempt to cause retaliatory injury or damage: imprisonment for not more
than 10 years, 18 U.S.C. 1513(b), (e); obstructive harassment: imprisonment for not more
than 1 years,18 U.S.C. 1512(d).
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imprisonment for not more than 20 years for voluntary manslaughter; and from not
more than 6 years to not more than 10 years for involuntary manslaughter), H.R.
660/S. 378 (§§205, 206) boosts the maximum penalties for witness tampering or
retaliation in violation of 18 U.S.C. 1512 or 1513 when the offense involves the use
of physical force from 20 years to 30 years; when it involves the threat of the use of
physical force from 10 years to 20 years; and for harassment from 1 year to 3 years.
Section 204 of H.R. 660/S. 378 adds a venue provision to the witness retaliation
offenses in 18 U.S.C. 1513 purporting to permit prosecution of offenses under the
section either in the place where the violation occurs or in place where the
proceeding occurs. Section 1512 already contains a similar provision.17
The Constitution may confine Section 204’s reach and that of the comparable
provision in Section 1512.18 The Constitution provides that the “trial of all crimes
... shall be held in state where the said crime shall have been committed,”19 and in
“all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by a jury of the state and district wherein the crime shall have been
committed.”20 The Supreme Court has indicated that the prosecution of offenses,
other than where one of its “conduct elements” occurs, poses serious constitutional
problems under these provisions.21
Federal Proceedings.
Federal obstruction of justice law also prohibits the use of force or threats to
obstruct or to endeavor to obstruct the “due administration of justice” in federal
17 18 U.S.C. 1512(h).
18 The extraterritorial jurisdiction feature was enacted when Section 1512 was first
approved in 1982, 96 Stat. 1250 (1982), before Congress had the benefit of the Supreme
Court decision which called its reach into question.
19 U.S. Const. Art. III, §2.
20 U.S. Const. Amend. VI.
21 “In sum, we interpret §924(c)(1) to contain two distinct conduct elements – as is relevant
to this case, the ‘using or carrying’ of a gun and the commission of a kidnaping. [By way of
comparison, last Term in United States v. Cabrales, 524 U.S. 1 (1998), we considered
whether venue for money laundering, in violation of 18 U.S.C. 1956(a)(1)(B)(ii) and 1957,
was proper in Missouri, where the laundered proceeds were unlawfully generated, or rather,
only in Florida, where the prohibited laundering transactions occurred. As we interpreted
the laundering statutes at issue, they did not proscribe ‘the anterior criminal conduct that
yielded the funds allegedly laundered, Cabrales, 524 U.S. at 7. The existence of criminally
generated proceeds was a circumstance element of the offense but the proscribed conduct
– defendant’s money laundering activity – occurred ‘after the fact’ of an offense begun and
completed by others.’],” United States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999)
(footnote 4 of the Court’s opinion in brackets); see also, United States v. Bowens, 224 F.3d
302, 308-11 (4th Cir. 2000)(finding that Cabrales and Rodriguez-Moreno precluded
prosecution for harboring a fugitive in the district where the arrest warrant was issued when
the harboring (the conduct element) occurred exclusively elsewhere).
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courts22 or to obstruct Congressional or administrative proceedings.23 Obstruction
of Congressional and administrative proceedings carries a flat sanction of
imprisonment for not more than 5 years (not more than 8 years if the proceedings
involve international or domestic terrorism). Penalties for the obstruction of federal
judicial proceedings are more structured, particularly if a killing occurs.24
Other than the change attributable to the manslaughter amendments in Section
1112 mentioned earlier, the bill leaves sentencing under Section 1503 as it finds it.
Means of Obstruction.
Beyond the proscriptions addressed to the use of violence against federal
officials, witnesses and proceedings, there are federal criminal prohibitions directed
at the misuse of firearms, explosives and other dangerous instrumentalities that may
be implicated by a breach of court security. For example, the use of explosives as the
means of obstruction may trigger a federal proscription that outlaws damaging federal
property with explosives, one that exposes offenders to imprisonment for not less
than 7 nor more than 40 years if the offense involves a substantial risk of injury; to
imprisonment for not less than 20 years or for life (and possible to the death penalty)
if the offense results in death; and to imprisonment for not less 5 not more than 20
years in all other instances.25
When firearms are the violent obstructive means employed, a second statute
calls for imposition of a progression of mandatory minimum terms of imprisonment
based on the type and manner of firearm use. Under its provisions when a firearm
is used or carried during and in furtherance of a federal crime violence, a mandatory
minimum term of imprisonment of 5 years is imposed; and the mandatory minimum
is 7 years, if the firearm is brandished; 10 years, if it is discharged; 10 years, if it is
a short-barreled shotgun or short-barreled rifle; 30 years, if it is a machine gun or
fitted with a silencer; 25 years, if the offender has a prior conviction under the
section; and life imprisonment, if the offender has such a prior conviction and the
firearm is a machine gun or fitted with a silencer.26
A third federal provision, 18 U.S.C. 930, outlaws the use of a firearm or other
dangerous weapon in a fatal attack in a federal facility. It adopts by cross reference
the penalties assigned elsewhere for murder, manslaughter, attempted murder or
22 18 U.S.C. 1503 (text is appended).
23 18 U.S.C. 1505 (text is appended).
24 1st degree murder: death or imprisonment for life, 18 U.S.C. 1503(b)(1), 1111; 2d degree
murder: imprisonment for any term of years or for life, id.; attempted murder:
imprisonment for not more than 20 years, 18 U.S.C. 1503(b)(2); voluntary manslaughter:
imprisonment for not more than 10 years, 18 U.S.C. 1503(b)(1), 1112; involuntary
manslaughter: imprisonment for not more than 6 years, id.; obstruction involving a juror in
A/ B felony case: imprisonment for not more than 20 years, 18 U.S.C. 1503(b)(2); other
violations of 1503: imprisonment for not more than 10 years, 18 U.S.C. 1503(b)(3).
25 18 U.S.C. 844(f).
26 18 U.S.C. 924(c).
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manslaughter, and conspiracy to murder of manslaughter.27 The same statute
punishes possession or attempted possession of a firearm or dangerous weapon
within a federal facility with intent to use it there with imprisonment for not more
than 5 years,28 simple possession of a firearm or dangerous weapon within a federal
facility other than a federal courthouse with imprisonment for not more than 1 year,29
and simple possession or attempted possession of a firearm within a federal
courthouse with imprisonment for not more than 2 years.30
H.R. 660/S. 378 Proposals.
Dangerous Weapons. H.R. 660/S. 378 (§203) amends the proscription for
simple courthouse firearm possession found in Section 930(e) to include possession
of other dangerous weapons as well. The possession with intent proscription already
includes coverage of both firearms and dangerous weapons. The existing statute has
a definition that excludes small pocket knives from the term “dangerous weapon.”31
Yet, it describes such weapons as any item capable of inflicting serious injury. When
used to describe the objects that may be impermissibly used in an assault, its breadth
is understandable. In such circumstances, it has been understood to include shoes,32
belts,33 rings,34 chairs,35 desks,36 teeth,37 screwdrivers,38 and a host of other ordinarily
innocent objects that could be misused to inflict serious injury. When the definition
makes it crime to possess such items in a federal courthouse regardless of how
innocently they are used, practical problems may arise. It seems unlikely that the
drafters intended to limit federal courthouse access to the barefoot and toothless. On
the other hand, if the courts read the definition out of the statute for purposes of
simple courthouse possession prosecutions, they may take the small knife exception
with it and be left to their own devices to define what constitutes a dangerous
27 18 U.S.C. 930(c)(incorporating the penalty provisions from 18 U.S.C. 1111 (murder),
1112 (manslaughter), 1113 (attempted murder or manslaughter), and 1117 (conspiracy to
murder). And as a consequence, finds its manslaughter sanctions enhanced by virtue of the
bill’s amendments to Section 1112. The text of Section 930 is appended.
28 18 U.S.C. 930(b).
29 18 U.S.C. 930(a).
30 18 U.S.C. 930(e).
31 “The term ‘dangerous weapon’ means a weapon, device, instrument, material, or
substance, animate or inanimate, that is used for, or is readily capable of, causing death or
serious bodily injury, except that such term does not include a pocket knife with a blade of
less than 2 1/2 inches in length,” 18 U.S.C. 930(g)(2).
32 United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994).
33 Id.
34 United States v. Serrata, 425 F.3d 886, 910 (10th Cir. 2005).
35 United States v. Johnson, 324 F.2d 264, 266 (4th Cir. 1963).
36 United States v. Gholston, 932 F.2d 904, 904-905 (11th Cir. 1991).
37 United States v. Sturgis, 48 F.3d 784, 788 (4th Cir. 1995).
38 United States v. Lavender, 224 F.3d 939, 941 (9th Cir. 2000).
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weapon. The same incongruity, however, appears to have escaped notice in the case
of simple possession of a dangerous weapon in a federal facility other than a federal
courthouse.
Harassing Federal Officials with False Liens. Retaliation against federal
officials in the past has sometimes taken the form of filing false liens and other legal
nuisance actions against their property. Such obstructions have been prosecuted
under federal statutes that prohibit obstruction of the due administration of justice (18
U.S.C. 1503)39 or that prohibit conspiracy to retaliate against federal officials by
inflicting economic damage (18 U.S.C. 372).40 These statutes are not without
limitation, however, since most courts insist that a prosecution under Section 1503
requires that the misconduct occur during the pendency of a judicial proceeding41 and
that a prosecution under Section 372 requires a conspiracy, that is, a scheme of two
or more defendants.42
H.R. 660/S. 378 (§201) makes it a separate federal crime, punishable by
imprisonment for not more than 10 years, to knowingly file a false lien or similar
encumbrance against the property of a federal officer or employee on account of the
performance of his or her federal duties, proposed 18 U.S.C. 1521.
39 United States v. Joiner, 418 F.3d 863, 867-68 (8th Cir. 2005) (upholding conviction for
filing false property liens against the judge and prosecutors involved in the defendant’s
earlier drug prosecution); United States v. McBride, 362 F.3d 360, 372 (6th Cir.
2004)(upholding conviction for filing false bankruptcy petitions against the judge who was
trying a tax case against the defendant’s girl friend); United States v. Fleming, 215 F.3d 930,
932-38 (9th Cir. 2000) (upholding conviction for filing a $10 million lien against the property
of the judge who had dismissed his civil suit). Violations of Section 1503 are punishable
by imprisonment for not more than 10 years.
40 United States v. Joiner, 418 F.3d 863, 867 (8th Cir. 2005) (upholding conviction for filing
false property liens against the judge and prosecutors involved in the earlier drug
prosecution of one of the defendants); United States v. Boos, 166 F.3d 1222 (10th Cir.
1999)(upholding conviction for filing false property liens against Internal Revenue Service
agents who tried to collect taxes from one of the defendants). Violations of Section 372 are
punishable by imprisonment for not more than 6 years. There is a separate “due
administration” clause, 26 U.S.C. 7212, that applies when such schemes are used to obstruct
the due administration of the Internal Revenue Code, see e.g., United States v. Kassouf, 144
F.3d 952, 954-56 (6th Cir. 1998).
41 United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006); United States v. Weber,
320 F.3d 1047, 1050 (9th Cir. 2003); United States v. Fassnacht, 332 F.3d 440, 447 (7th Cir.
2003); United States v. Steele, 241 F.3d 302, 304-5 (3d Cir. 2001); United States v. Sharpe,
193 F.3d 852, 864 (5th Cir. 1999); United States v. Layne, 192 F.3d 556, 572 (6th Cir. 1999);
United States v. Frankhauser, 80 F.3d 641, 650-51 (1st Cir. 1966); United States v. Littleton,
76 F.3d 614, 618-19 (4th Cir. 1996); contra, United States v. Novak, 217 F.3d 566, 571-72
(8th Cir. 2000); see also United States v. Vaghela, 169 F.3d 729, 732-34 (11th Cir.
1999)(pendency not necessarily required in cases of conspiracy to violate Section 1503);
United States v. Bruno, 383 F.3d 65,87 (2d Cir. 2004)(proceedings need not be pending but
there must be evidence from which to infer that they were anticipated in the case of a
conspiracy to violate Section 1503).
42 United States v. Joiner, 418 F.3d 863, 867 (8th Cir. 2005).
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Aiding the Intimidation of Federal Officials. It is a federal crime to
threaten to kill, kidnap or assault a federal officer or employee, a retired federal
officer or employee, or a member of their immediate family to impede or on account
the performance of their federal duties.43 It is likewise a federal offense to threaten
a witness or potential witness in a federal proceeding in order to impede or retaliate
for their performance as a witness.44 And it is a federal crime to threaten federal
grand or petit jurors in order to impede or influence their service.45 Moreover,
anyone who aids or abets the commission of these or of any other federal crime is
criminally liable to the same extent as the individual who actually commits them.46
Liability for aiding or abetting, however, can only be incurred upon the commission
of the underlying offense.47
Section 202 of H.R. 660/S. 378 makes it a federal crime to make publicly
available certain identifying information such as home addresses, telephone numbers,
and social security numbers48 of federal officials, employees, witnesses, and jurors
(grand and petite) either (1) with the intent to threaten, intimidate, or incite a crime
of violence against such individuals or members of their immediate families, or (2)
with the intent and knowledge that the information will be used for such purpose,
proposed 18 U.S.C. 118. Offenders are subject to a term of imprisonment for not
more than 5 years, id. There is no requirement that the victims be targeted on
account of their federal or family status, that any incited violence be imminent, or
that the information be publicly unavailable otherwise.
First Amendment considerations may color the proposal’s application. The First
Amendment has been held to prohibit the punishment of a newspaper for publishing
the name of rape victim when her identity was otherwise available as a matter of
public record.49 And it has been held to preclude punishing a newspaper for
publishing the name of a juvenile subject to delinquency proceedings when it
43 18 U.S.C. 115. Violations are punishable by imprisonment for not more than 10 years
(not more than 6 years if the threat is simply a threat to commit an assault).
44 18 U.S.C. 1512, 1513. Violations are punishable by imprisonment for not more than 10
years, and H.R. 660/S. 378 increases the maximum to not more than 20 years when the
threat involves the threat of physical injury.
45 18 U.S.C. 1503. Violations here too are punishable by imprisonment for not more than
10 years.
46 18 U.S.C. 2. In order to aid or abet the offense of another, the defendant must associate
himself with the venture, participate or assist in some way, and thereby seek to contribute
to its success, United States v. Ibarra-Zelaya, 465 F.3d 596, 603 (5th Cir. 2006); United
States v. Isaac-Sigala, 448 F.3d 1206, 1213 (10th Cir. 2006); United States v. Blood, 435
F.3d 612, 623 (6th Cir. 2006).
47 United States v. Lo, 447 F.3d 1212, 1227 (9th Cir. 2006); United States v. Reifler, 446
F.3d 65, 96 (2d Cir. 2006); United States v. Wasserson, 418 F.3d 225, 233 (3d Cir. 2005).
48 More exactly, the information includes social security numbers, home addresses, home
telephone numbers, mobile telephone numbers, personal e-mail addresses, and home fax
numbers identifiable to a federal officer, employee, witness, juror or member of their
immediate family, proposed 18 U.S.C. 118(b)(1).
49 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 496 (1975).
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obtained the information lawfully.50 On the other hand, neither true threats nor
incitement to immediate criminal action are entitled to First Amendment protection.51
Moreover, in a somewhat analogous case, the Ninth Circuit found a want of First
Amendment protection for “true threats” in the form of “wanted” bulletins, posted
on the Internet, that listed the pictures, names and address of various doctors after
other doctors similarly identified in previous bulletins had been murdered.52
The proposed statute prohibits disclosure of identifying information only where
publication is intended to threaten or incite violence or is intended to be used for such
purposes. Proof of such an intent is likely to require evidence that demonstrates the
existence of a true threat or the incitement of an immediate crime of violence and
therefore satisfies First Amendment concerns.
Implementation of Judicial Security
Responsibilities of the Marshals Service.
The United States Marshals Service is located in the Department of Justice.53
The Director of the Marshals Service and the Marshals for each of the 94 judicial
districts and for the Superior Court of the District of Columbia are appointed by the
President, with the advice and consent of the Senate.54 Marshals serve four year
terms at the pleasure of the President.55 Marshals are responsible for the security of
the U.S. District Courts, U.S. Courts of Appeal and Court of International Trade
sitting in their districts, and for the execution of warrants, subpoenas and other
process of those courts.56 The Marshals are also responsible for the protection of
50 Smith v. Daily Mail Publishing Co., 443 U.S. 97, 105-106 (1979).
51 Virginia v. Black, 538 U.S. 343, 359 (2003)(parallel citations and parentheticals omitted)
(“‘the constitutional guarantees of free speech and free press do not permit a state to forbid
or proscribe advocacy of the use of force or of law violation except where such advocacy
is directed to inciting or producing imminent lawless action and is likely to incite or produce
such action.’ Brandenberg v. Ohio, 395 U.S. 444, 447 (1969). And the First Amendment
also permits a state to ban a ‘true threat’ Watts v. United States, 394 U.S. 705, 708 (1969)”).
52 Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058, 1063 (9th Cir.
2002).
53 28 U.S.C. 561(a).
54 28 U.S.C. 561(a), (c). Subsection 561(i) lists a fairly restrictive list of qualifications
each Marshal “should have.” The provision was added to the USA PATRIOT Improvement
and Reauthorization Act in conference, see H.Rep. 109-333, at 109 (2005), and it is unclear
whether it was intended to establish necessary qualifications or simply as an aspirational
standard.
55 28 U.S.C. 561(d).
56 28 U.S.C. 566(a),(b),(c).
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witnesses,57 the asset forfeiture program,58 and the arrest of fugitives from federal
law.59
H.R. 660/S. 378.
Additional Authorizations. Section 105 of H.R. 660/S. 378 calls for $20
million in addition authorization of appropriations for each fiscal year through 2011
in order to hire additional marshals to provide security for federal judges and
assistant United States attorneys and to augment the resources of the Marshals
Service’s Office of Protective Intelligence.
In a related matter, the President’s budget for FY2008 indicates that the
Administration will request additional appropriations for the Marshals Service of
$25.7 million “for investigating threats against the Judiciary, high-threat trial
security, judicial security in the Southwest Border district offices, and enforcement
of the Adam Walsh Child Protection and Safety Act.”60
Security for Tax Court Activities. The Marshals Service is authorized to
provide security and service of process for the federal District Courts, Courts of
Appeal and the Court of International Trade. Section 104 of H.R. 660/S. 378
expands those responsibilities to “any other court as provided by law,” proposed 28
U.S.C. 566(a). It also bolsters the authority to serve the Tax Court, the one court that
appears to fit the “any other court as provided by law” description.61 Section 7456
of the Internal Revenue Code (26 U.S.C. 7456) ends with the instruction that, “The
United States marshal for any district in which the Tax Court is sitting shall, when
requested by the chief judge of the Tax Court, attend any session of the Tax Court in
such district.” The bill amends the section include an explicit instruction to provide
security for the Court, its judges, personnel, witnesses, and other participants in its
proceedings.62
Coordination with the Judicial Conference. The Judicial Conference of
the United States oversees the rules and conditions under which the federal courts
57 28 U.S.C. 566(e); 18U.S.C. 3521-3528; 28 C.F.R. §0.111(c).
58 28 U.S.C. 524(c); 28 C.F.R. §0.111(i).
59 28 U.S.C. 566(e).
60 Section 632 of the Adam Walsh Child Protection and Safety Act of 2006, P.L. 109-248,
120 Stat.641-42 (2006), 42 U.S.C. 16989, authorizes appropriations of $5 million for
FY2008 to enable the Marshals Service to establish a Fugitive Safe Surrender Program.
61 Other federal courts include the Supreme Court, Federal Court of Claims, the Court of
Appeals for the Armed Forces, and the Court of Appeals for Veterans Claims.
62 “ ... The United States marshal for any district in which the Tax Court is sitting ... may
otherwise provide for the security of the Tax Court, including the personal protection of Tax
Court judges, court officers, witnesses, and other threatened person in the interests of
justice, where criminal intimidation impedes on the functioning of the judicial process or
any other official proceeding,”proposed 26 U.S.C. 7456(c).
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operate.63 Section 101 of H.R. 660/S. 378 amends the organic statutes for the
Marshals Service and the Judicial Conference to ensure regular consultation between
the two concerning the judicial security, assessment of threats against members of the
judiciary and protection of judicial personnel.64
Safety of Federal Prosecutors. Like federal judges, federal prosecutors
have been the subject of both threats and plots to kill them.65 Neither have express
authority to carry firearms in the performance of their duties. Marshals and deputy
marshals, on the other hand, do have such express authority.66 And prosecutors, at
least, can be deputized as deputy marshals, a process that carries with it the authority
of the office, i.e., the authority to carry a firearm.67
Section 401 of H.R. 660/S. 378 directs the Attorney General to report to the
House and Senate Judiciary Committees within 90 days on the security of federal
prosecutors. The report must include:
! the extent and a description of the threats made against federal
prosecutors,
! the steps taken for their security,
! the number of prosecutors deputized in response to such threats,
! the policies governing the practices of Department attorneys with
state firearm licenses,
! the security consequences of the considerations under which threaten
prosecutors must perform such as after hours work and parking
priorities,
! a discussion of related training available to prosecutors,
! the identity of the officials responsible for the development of
Department policies to deal with such matters, and
! the role of the Marshals Service and other Department security
components in such matters.
Redacted Financial Disclosure Statements. The Ethics in Government
Act requires federal judges, Members of Congress, and senior officials in the
63 28 U.S.C. 331.
64 Proposed 28 U.S.C. 566(i); proposed 28 U.S.C. 331.
65 United States v. Bonner, 85 F.3d 522, 523 (11th Cir. 1996).
66 18 U.S.C. 3053; 28 U.S.C. 566(d); see also 28 U.S.C. 564 (marshals, deputy marshals and
other officials designated by the Director of the Marshal Service enjoy the authority of a
sheriff under the laws of the state in which they perform their duties).
67 28 C.F.R. §0.112; 28 U.S.C. 561(f).
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legislative, executive and judicial branches to file publicly available financial
disclosure reports.68 Concerned that information contained in the financial disclosure
statements of federal judges might be misused in efforts to threaten or intimidate
them,69 Congress temporarily authorized the redaction of certain information from
the financial disclosure statements of certain federal judges in a provision that has
since expired.70 There has been no similar provision for Members of Congress or
senior officials in the legislative or executive branches.
Sections 102 and 103 of H.R. 660/S. 378 temporarily revive the provision until
December 31, 2009, and permit concern for the safety of a judge’s family as well as
that of the judge to trigger redaction, but require more explicit criteria in related
reports to Congress.71
Grants to the States
Witness Protection.
Part H of the Violent Crime Control and Law Enforcement Act of 1994, 42
U.S.C. 13861-13868, authorizes community-based grants for state, territorial, and
68 5 U.S.C.App. 101-111.
69 144 Cong.Rec. 26270 (1998)(remarks of Senator Leahy).
70 5 U.S.C.App. 105(b)(3)(text quoted below with H.R. 660/S. 378 proposed changes).
71 Proposed 5 U.S.C.App. 105(b)(3)(language to be added by H.R. 660/S. 378 italics) (“(A)
This section does not require the immediate and unconditional availability of reports filed
by an individual described in Section 109(8) or 109(10) of this act [relating to judges and
certain judicial branch employees] if a finding is made by the Judicial Conference, in
consultation with United States Marshal[s] Service, that revealing personal and sensitive
information could endanger that individual or a family member of that individual. (B) A
report may be redacted pursuant to this paragraph only – (i) to the extent necessary to
protect the individual who filed the report or a family member of that individual; and (ii) for
as long as the danger to such individual exists. (C) The Administrative Office of the United
States Courts shall submit to the Committees on the Judiciary of the House of
Representatives and of the Senate an annual report with respect to the operation of this
paragraph including – (i) the total number of reports redacted pursuant to this paragraph; (ii)
the total number of individuals whose reports have been redacted pursuant to this paragraph;
and (iii) the types of threats against individuals whose reports are redacted, if appropriate;
(iv) the nature or type of information redacted; (v) what steps or procedures are in place
to ensure that sufficient information is available to litigants to determine if there is a
conflict of interest; (vi) principles used to guide implementation of redaction authority; and
(vii) any public complaints received in regards to redaction. (D) The Judicial Conference,
in consultation with the Department of Justice, shall issue regulations setting forth the
circumstances under which redaction is appropriate under this paragraph and the procedures
for redaction. (E) This paragraph shall expire on December 31, 2005 2009, and apply to
filings through calendar year 2005 2009”).
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tribal prosecutors.72 Appropriations were last authorized for FY2000, 42 U.S.C.
13867.
Section 301 of H.R. 660/S. 378 amends Part H to include state witness
protection programs and authorizes appropriations for Part H of $20 million for each
fiscal year through 2011, proposed 42 U.S.C. 13862, 13867.
State and Tribal Court Security.
Sections 515 and 516 of Title I of the Omnibus Crime and Safe Streets Act of
1968 authorizes discretionary Bureau of Justice Assistance Correctional Options
grants, 42 U.S.C. 3762a, 3762b. Section 2501 of Title I authorizes a matching grant
program to purchase armored vests for state, territorial and tribal law enforcement
officers, 42 U.S.C. 3796ll to 3796ll-2.
Section 302 of H.R. 660/S. 378 amends Sections 515 and 516 to permit 10 per
cent of the funds appropriated for grants under those sections to be available for
grants to improve security for state, territorial, or tribal court systems with priority
to be given to those demonstrating the greatest need, proposed 42 U.S.C. 3762a,
3762b. To accommodate the new allotment, the percent of appropriations available
for corrections alternatives would be reduced from 80 percent to 70 percent of the
funds appropriated, proposed 42 U.S.C. 3762b.
Section 320 also amends Section 2501 of the Omnibus Crime Control and Safe
Streets Act to include matching grants for the purchase of armored vests for state and
territorial court officers, proposed 42 U.S.C. 3796ll.
Section 302 further permits the Attorney General to require when appropriate
that state, territorial or tribal applicants for grants under programs administered by
the Department of Justice show that they have considered the security needs of their
judicial branch following consultation with judicial and law enforcement authorities.
Miscellaneous Provisions
U.S. Sentencing Commission Procurement Authority.
The United States Sentencing Commission was established in 1984 as an
independent entity located within the judicial branch.73 Its purpose is to promulgate
sentencing guidelines for use by federal courts in criminal cases.74 Those guidelines,
once binding upon the courts, are now simply advisory, although the courts must
continue to consider them and the guidelines continue to carry considerable
72 “State” is generally defined to include any state, the District of Columbia, the
Commonwealths of Puerto Rico and the Northern Mariana Islands, American Samoa, Guam,
and the United States Virgin Islands, see e.g., 42 U.S.C. 13868, 3791, 3796ll-2.
73 P.L. 98-473, 98 Stat. 2017 (1984), 28 U.S.C. 991.
74 28 U.S.C. 994.
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persuasive force.75 The Commission may enter into contracts in fulfillment of its
responsibilities.76
As a general rule, appropriated funds are available for obligation under contract
or otherwise only during the fiscal year for which they were appropriated.77 There
are several exceptions to the general rule. For example, the heads of executive
agencies may contract for services that begin in one fiscal year and end in the next.78
They may also enter into multi-year contracts.79 And with sufficient security, they
may make advance payments on contract obligations to be fulfilled at a later date.80
In the legislative branch, the Administrative Office of the United States Courts enjoys
similar authority.81 Section 501 of H.R. 660/S. 378 temporarily grants the Sentencing
Commission comparable authority, proposed 28 U.S.C. 995(f)(expiring on
September, 30, 2010).
Life Insurance Costs.
Judges of the United States Courts of Appeal and United States District Courts
serve during good behavior,82 which ordinarily means for life. When they reach 65
years of age with at least 15 years of service or at such later date as their age and
years of service equal 80 years, they may remain in active service, they may retire at
an annuity equal to their salary on the date of retirement, or they may retire to senior
status.83 Judges in senior status continue to serve but are considered to have left
office for vacancy purposes so that replacements may be appointed.84 Senior judges
receive full salary, including any pay increases or adjustments given judges on active
service, as long as they essentially carry at least the equivalent of 25% of the
workload of a full time member of the court.85
When the Office of Personnel Management announced premium increases for
District and Appeals Court judges in 1999, the judges and the Administrative Office
objected that the increase would operate as a disincentive to service on senior
75 United States v. Booker, 544 U.S. 220, 264-65 (2005).
76 28 U.S.C. 995(a)(6).
77 United States General Accounting Office [now the Government Accountability Office],
I Principles of Federal Appropriations Law 5-4 (2d ed. 2004), available on Feb. 9, 2007 at
[http://www.gao.gov/special.pubs/d04261sp.pdf].
78 41 U.S.C. 253l.
79 41 U.S.C. 254c.
80 41 U.S.C. 255.
81 28 U.S.C. 604(g)(4).
82 U.S. Const. Art. III, §1.
83 28 U.S.C. 371.
84 28 U.S.C. 371(b), (d).
85 28 U.S.C. 371(e).
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status.86 The appropriations legislation for that year included a provision now found
in 28 U.S.C. 604(a)(5):
The Director ... shall ... pay on behalf of Justices and judges of the United
States appointed to hold office during good behavior, aged 65 or over, any
increases in the cost of Federal Employees’ Group Life Insurance imposed after
April 24, 1999, including any expenses generated by such payments, as
authorized by the Judicial Conference of the United States.
Similar provisions have been made for judges of the Tax Court87 and the Court
of Federal Claims,88 judges who serve 15 year terms.89 They may be recalled to
perform judicial duties for periods up to 90 days a year.90
Similar provisions have been made for judges of the Tax Court91 and the Court
of Federal Claims,92 judges who serve 15 year terms.93 They may be recalled to
perform judicial duties for periods up to 90 days a year.94
Section 502 of H.R. 660/S. 378 makes this provision applicable to bankruptcy
judges, magistrate judges, and district court judges in Guam, the Northern Mariana
Islands and the United States Virgin Islands, none of whom enjoy life tenure.
Bankruptcy judges are appointed for 14 year terms;95 magistrate judges, 8 year
terms;96 and the territorial district judges, 10 year terms.97 While they do enjoy an
option not exactly comparable to senior status for judges who enjoy life time tenure
– prior to retirement they may be reappointed and thereafter they may be recalled to
service.98
86 31 Third Branch 4 (May, 1999), available on February 9, 2007 at
[http://www.uscourts.gov/ttb/may99ttb/insurance.html].
87 26 U.S.C. 7472.
88 28 U.S.C. 179(c), 5 U.S.C. 8701(a)(5).
89 28 U.S.C. 172, 26 U.S.C. 7443(e).
90 28 U.S.C. 178(d), 26 U.S.C. 7447(c).
91 26 U.S.C. 7472.
92 28 U.S.C. 179(c), 5 U.S.C. 8701(a)(5).
93 28 U.S.C. 172, 26 U.S.C. 7443(e).
94 28 U.S.C. 178(d), 26 U.S.C. 7447(c).
95 28 U.S.C. 152.
96 28 U.S.C. 631 (full time magistrate judges serve 8 years; part time magistrate judges
serve 4 year terms).
97 48 U.S.C. 1424b, 1614, 1821.
98 28 U.S.C. 375 (bankruptcy and magistrate judges); 28 U.S.C. 373 (territorial judges who
may elect to become senior judges upon retirement and thus become eligible for recall
regardless of whether they are ever summoned).
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Assignment of Senior Judges.
The chief judges of the various United States Courts of Appeal or the various
circuit judicial councils may designate and assign senior judges to perform judicial
duties within the circuit.99 As a general matter, senior judges who are designated and
assigned enjoy all of the powers of the court, circuit or district to which they are
assigned, except for the power to permanently designate a publisher for legal notices
or depository of funds or “to appoint any person to a statutory position.”100
Federal statutes describe the appointment authority for several positions in the
judicial branch. Bankruptcy judges are appointed by the circuit Court of Appeals,101
who also appoint their clerks102 and librarians;103 circuit judges appoint their own law
clerks and secretaries;104 and circuit chief justices appoint senior staff attorneys.105
Magistrate judges are appointed by the district court judges,106 who also appoint their
clerks107 and court reporters;108 individual judges appoint their own bailiffs,109 law
clerks and secretaries.110
Beyond the explicit exceptions and the general rule notwithstanding, there are
several powers that only a judge in “regular active service” and no a senior judge
may exercise. Thus, only a judge in regular active service may serve as a chief judge
of a federal district or circuit.111 The decision to present an appeal to all of the judges
of a particular circuit (to grant a hearing or rehearing en banc) is made by a majority
vote of the judges of that circuit who are in regular active service.112 A senior judge
may participate in an en banc appeal only if he or she was a member of the panel that
99 28 U.S.C. 294. The United States is divided into twelve appellate circuits each with a
Court of Appeals generally responsible for appeals from the United States district courts
within its assigned geographical area; a thirteenth, the Court of Appeals for the Federal
Circuit, has topical appellate jurisdiction over patents, copyright, trademark, and claims
questions no matter where in the United States they arise, 28 U.S.C. 41, 1295.
100 28 U.S.C. 296.
101 28 U.S.C. 152.
102 28 U.S.C. 711.
103 28 U.S.C. 713.
104 28 U.S.C. 712.
105 28 U.S.C. 715.
106 28 U.S.C. 631.
107 28 U.S. 751.
108 28 U.S.C. 753.
109 28 U.S.C. 755.
110 28 U.S.C. 752.
111 28 U.S.C. 45(a), 133(a).
112 28 U.S.C. 46(c); F.R.App.P 35(a).
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initially decided the case being heard en banc.113 Senior judges may serve on the
United States Sentencing Commission and on the Board of the Federal Judicial
Center.114 They may serve as well as members of the Judicial Conference of the
United States, the rule propounding body for the federal courts.115 They may also sit
on the judicial councils for their circuits, the local rule making authority for the
circuit, but the number of members of such councils and their terms of service are
determined by a majority vote of the judges in regular active service in the circuit.116
Section 503 of H.R. 660/S. 378 amends 28 U.S.C. 296 to declare that senior
judges “when designated and assigned to the court to which such was appointed,
shall have all the powers of a judge of that court, including participation in
appointment of court officers and magistrates, rulemaking, governance, and
administrative matters,” proposed 28 U.S.C. 296. Although the amendment might
under other circumstances be thought to extend merely to those judicial powers and
tasks for which there is no contrary instruction by statute or rule, the specific mention
of the appointment of magistrate seems to preclude such a construction. It would
presumably override the circuit court en banc limitations as well.
Appointment of Magistrates.
Magistrate judges are appointed pursuant to a statute that declares that, “the
judges of each United States district court and the district courts of the Virgin Islands,
Guam, and the Northern Mariana Islands shall appoint United States magistrate
judges...” 28 U.S.C. 631(a). H.R. 660/S. 378 amends this language to add, after “the
Northern Mariana Islands”, the parenthetical “(including any judge in regular active
service and any judge who has retired from regular active service under Section
371(b) of this title, when designed and assigned to the court to which such judge was
appointed)”.
The amendment may present an interpretative challenge. The problem is that
only United States district court judges retire under Section 371(b); the judges in the
Virgin Islands, Guam and the Northern Mariana Islands retire under Section 373. So
does the amendment intend to add only senior United States district court judges to
the core of judges who may participate in the decision to appoint magistrate judges
for their districts; probably, but that intent would have been more clearly
demonstrated if the parenthetical had been added immediately after the phrase
“United States district court.” Such a reading might be thought to render the
amendment redundant since the prior section of H.R. 660/S. 378 vests senior judges
with share in the appointment of magistrate judges for their districts, but it can also
be read as simply confirming the operation of the previous section.
113 Id. Most appeals are heard and decided by a panel of three circuit court judges; such
panels may include a senior judge, 28 U.S.C. 46.
114 28 U.S.C. 991, 621.
115 28 U.S.C. 331.
116 28 U.S.C. 332.
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Or does the amendment intend to permit both United States district court senior
judges who retired under Section 371(b) and territorial judges who retired under
Section 373 to participate in the appointment magistrate judges of their courts;
possibly, but read literally it would mean that territorial judges could participate as
long as they had elected eligibility for senior status upon retirement regardless of
whether they had been actually recalled.
Or does the amendment intend only to permit appointment by a senior judge in
the district court of the Northern Mariana Islands who retired under Section 373; very
unlikely, for while it is perhaps the most grammatically faithful reading, it would
mean affording a senior judge of the Northern Mariana Islands authority that is
denied the other territorial district courts. Moreover, senior judges of the Northern
Mariana Islands retire under Section 373 rather than 371 as stated in the amendment.
Authorization of the Office of Government Ethics.
The authorization of appropriations for the Office of Government Ethics expired
at the end of FY2006. Section 505 of H.R. 660/S. 378 revives the authorization of
appropriations through FY2011. The authorization of appropriations is usually the
expression of a present intent to pass a future corresponding appropriation.117 The
absence of such an authorization ordinarily precludes no subsequent appropriation.118
The presence of such an authorization ordinarily guarantees no subsequent
appropriation.
Appendices
18 U.S.C. 1114.
Whoever kills or attempts to kill any officer or employee of the United States or of any agency
in any branch of the United States Government (including any member of the uniformed services)
while such officer or employee is engaged in or on account of the performance of official duties, or
any person assisting such an officer or employee in the performance of such duties or on account of
that assistance, shall be punished –
(1) in the case of murder, as provided under Section 1111;
(2) in the case of manslaughter, as provided under Section 1112; or
(3) in the case of attempted murder or manslaughter, as provided in Section 1113.
18 U.S.C. 111.
(a) In general.– Whoever–
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person
designated in Section 1114 of this title while engaged in or on account of the performance of official
duties; or
117 Congress may of course simultaneously enact both an authorization of appropriation and
an appropriation for the same purpose; for discussion of the distinction between
authorization of appropriations and appropriations, see United States General Accounting
Office [now the Government Accountability Office], I Principles of Federal Appropriations
Law 2-40 to 2-42 (2d ed. 2004), available on February 9, 2007 at
[http://www.gao.gov/special.pubs/d04261sp.pdf].
118 Such an appropriations measure, however, may be subject to a point of order, House R.
XXI, cl.2.
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(2) forcibly assaults or intimidates any person who formerly served as a person designated in
Section 1114 on account of the performance of official duties during such person's term of service,
shall, where the acts in violation of this section constitute only simple assault, be fined under this title
or imprisoned not more than one year, or both, and in all other cases, be fined under this title or
imprisoned not more than 8 years, or both.
(b) Enhanced penalty.– Whoever, in the commission of any acts described in subsection (a), uses
a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to
do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or
imprisoned not more than 20 years, or both.
18 U.S.C. 1201.
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away
and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent
thereof, when ... (5) the person is among those officers and employees described in Section 1114 of
this title and any such act against the person is done while the person is engaged in, or on account of,
the performance of official duties;
shall be punished by imprisonment for any term of years or for life and, if the death of any person
results, shall be punished by death or life imprisonment.
* * *
(c) If two or more persons conspire to violate this section and one or more of such persons do
any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any
term of years or for life.
(d) Whoever attempts to violate subsection (a) shall be punished by imprisonment for not more
than twenty years.
* * *
18 U.S.C. 115.
(a)(1) Whoever –
(A) assaults, kidnaps, or murders, or attempts or conspires to kidnap or murder, or
threatens to assault, kidnap or murder a member of the immediate family of a United States
official, a United States judge, a Federal law enforcement officer, or an official whose killing
would be a crime under Section 1114 of this title; or
(B) threatens to assault, kidnap, or murder, a United States official, a United States judge,
a Federal law enforcement officer, or an official whose killing would be a crime under such
section,
with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer
while engaged in the performance of official duties, or with intent to retaliate against such official,
judge, or law enforcement officer on account of the performance of official duties, shall be punished
as provided in subsection (b).
(2) Whoever assaults, kidnaps, or murders, or attempts or conspires to kidnap or murder, or
threatens to assault, kidnap, or murder, any person who formerly served as a person designated in
paragraph (1), or a member of the immediate family of any person who formerly served as a person
designated in paragraph (1), with intent to retaliate against such person on account of the performance
of official duties during the term of service of such person, shall be punished as provided in subsection
(b).
(b)(1) An assault in violation of this section shall be punished as provided in Section 111 of this
title.
(2) A kidnapping, or attempted kidnapping of, or a conspiracy to kidnap, a person in violation
of this section shall be punished as provided in Section 1201 of this title for the kidnapping, attempted
kidnapping, or conspiracy to kidnap of a person described in Section 1201(a)(5) of this title.
(3) A murder, attempted murder, or conspiracy to murder in violation of this section shall be
punished as provided in Sections 1111, 1113, and 1117 of this title.
(4) A threat made in violation of this section shall be punished by a fine under this title or
imprisonment for a term of not more than 10 years, or both, except that imprisonment for a threatened
assault shall not exceed 6 years.
(c) As used in this section, the term –
(1) “Federal law enforcement officer” means any officer, agent, or employee of the United States
authorized by law or by a Government agency to engage in or supervise the prevention, detection,
investigation, or prosecution of any violation of Federal criminal law;
(2) “immediate family member” of an individual means--
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(A) his spouse, parent, brother or sister, child or person to whom he stands in loco parentis; or
(B) any other person living in his household and related to him by blood or marriage;
(3) “United States judge” means any judicial officer of the United States, and includes a justice
of the Supreme Court and a United States magistrate judge; and
(4) “United States official” means the President, President-elect, Vice President, Vice
President-elect, a Member of Congress, a member-elect of Congress, a member of the executive
branch who is the head of a department listed in 5 U.S.C. 101, or the Director of the Central
Intelligence Agency.
(d) This section shall not interfere with the investigative authority of the United States Secret
Service, as provided under Sections 3056, 871, and 879 of this title
18 U.S.C. 1512.
(a)(1) Whoever kills or attempts to kill another person, with intent to –
(A) prevent the attendance or testimony of any person in an official proceeding;
(B) prevent the production of a record, document, or other object, in an official proceeding; or
(C) prevent the communication by any person to a law enforcement officer or judge of the
United States of information relating to the commission or possible commission of a Federal offense
or a violation of conditions of probation, parole, or release pending judicial proceedings;
shall be punished as provided in paragraph (3).
(2) Whoever uses physical force or the threat of physical force against any person, or attempts
to do so, with intent to –
(A) influence, delay, or prevent the testimony of any person in an official proceeding;
(B) cause or induce any person to –
(i) withhold testimony, or withhold a record, document, or other object, from an official
proceeding;
(ii) alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability
of the object for use in an official proceeding;
(iii) evade legal process summoning that person to appear as a witness, or to produce a record,
document, or other object, in an official proceeding; or
(iv) be absent from an official proceeding to which that person has been summoned by legal
process; or
(C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the
United States of information relating to the commission or possible commission of a Federal offense
or a violation of conditions of probation, supervised release, parole, or release pending judicial
proceedings;
shall be punished as provided in paragraph (3).
(3) The punishment for an offense under this subsection is –
(A) in the case of murder (as defined in Section 1111), the death penalty or imprisonment for
life, and in the case of any other killing, the punishment provided in Section 1112;
(B) in the case of –
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person; imprisonment for not more
than 20 years; and
(C) in the case of the threat of use of physical force against any person, imprisonment for not
more than 10 years.
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or
attempts to do so, or engages in misleading conduct toward another person, with intent to –
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to –
(A) withhold testimony, or withhold a record, document, or other object, from an official
proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or
availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record,
document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal
process; or
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the
United States of information relating to the commission or possible commission of a Federal offense
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or a violation of conditions of probation supervised release,, parole, or release pending judicial
proceedings;
shall be fined under this title or imprisoned not more than ten years, or both.
(c) Whoever corruptly –
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do
so, with the intent to impair the object's integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or
dissuades any person from –
(1) attending or testifying in an official proceeding;
(2) reporting to a law enforcement officer or judge of the United States the commission or
possible commission of a Federal offense or a violation of conditions of probation supervised release,
parole, or release pending judicial proceedings;
(3) arresting or seeking the arrest of another person in connection with a Federal offense; or
(4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought
or instituted, or assisting in such prosecution or proceeding;
or attempts to do so, shall be fined under this title or imprisoned not more than one year, or both.
(e) In a prosecution for an offense under this section, it is an affirmative defense, as to which
the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted
solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the
other person to testify truthfully.
(f) For the purposes of this section –
(1) an official proceeding need not be pending or about to be instituted at the time of the offense;
and
(2) the testimony, or the record, document, or other object need not be admissible in evidence
or free of a claim of privilege.
(g) In a prosecution for an offense under this section, no state of mind need be proved with
respect to the circumstance –
(1) that the official proceeding before a judge, court, magistrate judge, grand jury, or
government agency is before a judge or court of the United States, a United States magistrate judge,
a bankruptcy judge, a Federal grand jury, or a Federal Government agency; or
(2) that the judge is a judge of the United States or that the law enforcement officer is an officer
or employee of the Federal Government or a person authorized to act for or on behalf of the Federal
Government or serving the Federal Government as an adviser or consultant.
(h) There is extraterritorial Federal jurisdiction over an offense under this section.
(i) A prosecution under this section or Section 1503 may be brought in the district in which the
official proceeding (whether or not pending or about to be instituted) was intended to be affected or
in the district in which the conduct constituting the alleged offense occurred.
(j) If the offense under this section occurs in connection with a trial of a criminal case, the
maximum term of imprisonment which may be imposed for the offense shall be the higher of that
otherwise provided by law or the maximum term that could have been imposed for any offense
charged in such case.
(k) Whoever conspires to commit any offense under this section shall be subject to the same
penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
18 U.S.C. 1513.
(a)(1) Whoever kills or attempts to kill another person with intent to retaliate against any person
for –
(A) the attendance of a witness or party at an official proceeding, or any testimony given or any
record, document, or other object produced by a witness in an official proceeding; or
(B) providing to a law enforcement officer any information relating to the commission or
possible commission of a Federal offense or a violation of conditions of probation supervised release,
parole, or release pending judicial proceedings,
shall be punished as provided in paragraph (2).
(2) The punishment for an offense under this subsection is –
(A) in the case of a killing, the punishment provided in Sections 1111 and 1112; and
(B) in the case of an attempt, imprisonment for not more than 20 years.
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(b) Whoever knowingly engages in any conduct and thereby causes bodily injury to another
person or damages the tangible property of another person, or threatens to do so, with intent to retaliate
against any person for –
(1) the attendance of a witness or party at an official proceeding, or any testimony given or any
record, document, or other object produced by a witness in an official proceeding; or
(2) any information relating to the commission or possible commission of a Federal offense or
a violation of conditions of probation supervised release, parole, or release pending judicial
proceedings given by a person to a law enforcement officer;
or attempts to do so, shall be fined under this title or imprisoned not more than ten years, or both.
(c) If the retaliation occurred because of attendance at or testimony in a criminal case, the
maximum term of imprisonment which may be imposed for the offense under this section shall be the
higher of that otherwise provided by law or the maximum term that could have been imposed for any
offense charged in such case.
(d) There is extraterritorial Federal jurisdiction over an offense under this section.
(e) Whoever knowingly, with the intent to retaliate, takes any action harmful to any person,
including interference with the lawful employment or livelihood of any person, for providing to a law
enforcement officer any truthful information relating to the commission or possible commission of any
Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.
(e) Whoever conspires to commit any offense under this section shall be subject to the same
penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
18 U.S.C. 1503. (emphasis added)
(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication,
endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of
the United States, or officer who may be serving at any examination or other proceeding before any
United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures
any such grand or petit juror in his person or property on account of any verdict or indictment assented
to by him, or on account of his being or having been such juror, or injures any such officer, magistrate
judge, or other committing magistrate in his person or property on account of the performance of his
official duties, or 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
administration of justice, shall be punished as provided in subsection (b). If the offense under this
section occurs in connection with a trial of a criminal case, and the act in violation of this section
involves the threat of physical force or physical force, the maximum term of imprisonment which may
be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term
that could have been imposed for any offense charged in such case.
(b) The punishment for an offense under this section is –
(1) in the case of a killing, the punishment provided in Sections 1111 and 1112;
(2) in the case of an attempted killing, or a case in which the offense was committed against a
petit juror and in which a class A or B felony was charged, imprisonment for not more than 20 years,
a fine under this title, or both; and
(3) in any other case, imprisonment for not more than 10 years, a fine under this title, or both.
18 U.S.C. 1505.
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, 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 the 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 any pending proceeding is being had before any department or
agency of the United States, or the due and proper exercise of the power of inquiry under which any
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 under this title, imprisoned not more than 5 years or, if the offense involves
international or domestic terrorism (as defined in Section 2331), imprisoned not more than 8 years,
or both.
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18 U.S.C. 930.
(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present
a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or
attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.
(b) Whoever, with intent that a firearm or other dangerous weapon be used in the commission
of a crime, knowingly possesses or causes to be present such firearm or dangerous weapon in a Federal
facility, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or
both.
(c) A person who kills any person in the course of a violation of subsection (a) or (b), or in the
course of an attack on a Federal facility involving the use of a firearm or other dangerous weapon, or
attempts or conspires to do such an act, shall be punished as provided in Sections 1111, 1112, 1113,
and 1117.
(d) Subsection (a) shall not apply to –
(1) the lawful performance of official duties by an officer, agent, or employee of the United
States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise
the prevention, detection, investigation, or prosecution of any violation of law;
(2) the possession of a firearm or other dangerous weapon by a Federal official or a member of
the Armed Forces if such possession is authorized by law; or
(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to
hunting or other lawful purposes.
(e)(1) Except as provided in paragraph (2), whoever knowingly possesses or causes to be present
a firearm in a Federal court facility, or attempts to do so, shall be fined under this title, imprisoned not
more than 2 years, or both.
(2) Paragraph (1) shall not apply to conduct which is described in paragraph (1) or (2) of
subsection (d).
(f) Nothing in this section limits the power of a court of the United States to punish for contempt
or to promulgate rules or orders regulating, restricting, or prohibiting the possession of weapons within
any building housing such court or any of its proceedings, or upon any grounds appurtenant to such
building.
(g) As used in this section:
(1) The term “Federal facility” means a building or part thereof owned or leased by the Federal
Government, where Federal employees are regularly present for the purpose of performing their
official duties.
(2) The term “dangerous weapon” means a weapon, device, instrument, material, or substance,
animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury,
except that such term does not include a pocket knife with a blade of less than 2 ½ inches in length.
(3) The term “Federal court facility” means the courtroom, judges' chambers, witness rooms,
jury deliberation rooms, attorney conference rooms, prisoner holding cells, offices of the court clerks,
the United States attorney, and the United States marshal, probation and parole offices, and adjoining
corridors of any court of the United States.
(h) Notice of the provisions of subsections (a) and (b) shall be posted conspicuously at each
public entrance to each Federal facility, and notice of subsection (e) shall be posted conspicuously at
each public entrance to each Federal court facility, and no person shall be convicted of an offense
under subsection (a) or (e) with respect to a Federal facility if such notice is not so posted at such
facility, unless such person had actual notice of subsection (a) or (e), as the case may be.