S. 1739. A bill to amend the material witness statute to strengthen................

Congressional Record: September 21, 2005 (Senate)
Page S10296-S10303




STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. LEAHY:
S. 1739. A bill to amend the material witness statute to strengthen
procedural safeguards, and for other purposes; to the Committee on the
Judiciary.
Mr. LEAHY. Mr. President, under the Federal material witness statute
our government is authorized to arrest a witness in order to secure his
testimony in a criminal proceeding. In order to obtain a material
witness warrant, the government must establish that the witness has
information that is material to a criminal proceeding, and that it may
become impracticable to secure the witness's presence at the proceeding
by a subpoena. Once arrested, a material witness may be detained for a
reasonable period, until his testimony can be secured by deposition or
appearance in court.
The material witness law was intended to ensure the appearance of
witnesses in those rare cases where they might otherwise flee to avoid
testifying in a criminal proceeding. This authority is an important
tool for our government's law enforcement duties, but it must be
exercised responsibly. As the Court of Appeals for the Second Circuit
noted in 2003, in the case of United States v. Awadallah, ``It would be
improper for the government to use [the material witness statute] for
other ends, such as the detention of persons suspected of criminal
activity for which probable cause has not yet been established.'' Since
September 11, 2001, however, that is exactly what the government has
been doing. Indeed, senior Administration officials, including our
current Attorney General, have admitted that the government routinely
uses material witness warrants to detain suspects in the so-called war
on terror.
A report released this summer by Human Rights Watch and the American
Civil Liberties Union identifies 70 men, including more than a dozen
citizens, whom the Department of Justice

[[Page S10297]]

arrested as material witnesses in connection with its terrorism
investigations. Many were never brought before a court or grand jury to
testify for the simple reason that they were viewed not as witnesses,
but as suspects. The evidence against these suspects was often flimsy
at best, and would never have sufficed for criminal arrest and pre-
trial detention. This twisting of a narrow law designed to secure
testimony into a broad preventive detention authority has resulted in
some notorious abuses.
Just days after 9/11, the FBI arrested eight Egyptian-born men in
Evansville, IN--one a naturalized American citizen--as material
witnesses, based on a bogus tip that they planned to fly a plane into
the Sears Tower in Chicago. The men were held for more than a week in
solitary confinement before being released. Many months later, the FBI
issued a rare public apology to these men. That apology, while
necessary, could not repair the damage that had been done to them and
their families in the form of lost business, tainted reputations, and
the accusing stares of their friends and neighbors.
The case of Abdallah Higazy further highlights the danger that can
occur when this authority is abused. Shortly after 9/11, the 30-year-
old Egyptian graduate student with a valid visa, was picked up after a
security guard at a hotel located across the street from Ground Zero
claimed to have found an aviation radio in the room where Higazy had
stayed on 9/11. Higazy was held for more than a month in solitary
confinement until he ultimately confessed that the radio was his.
Higazy was then charged with lying to the FBI for initially denying
possession of the radio. These charges were dropped after the true
owner of the radio, an American pilot, went to the hotel to claim it.
In another, higher profile case in May 2004, Portland attorney
Brandon Mayfield was arrested as a material witness in connection with
the Madrid train bombing. An email sent from the Portland FBI office to
the Los Angeles FBI office the day before Mayfield's arrest refers to
him as a ``Moslem convert'' and notes as a ``problem'' that there was
not enough evidence to arrest him for a crime. After spending two weeks
in prison, Mayfield was released and the FBI was expressing regret
about the erroneous fingerprint match that led to his arrest.
These and other examples of post-9/11 misuse of the material witness
statute are documented in the HRW/ACLU report. As the report shows,
such misuse does more than just circumvent the requirement of probable
cause for a criminal arrest. Suspects arrested as material witnesses
are denied the basic protections guaranteed to criminal defendants,
including the right to view any exculpatory evidence and to be able to
challenge the basis for their arrest and incarceration. The report
concludes that the misuse of the material witness law ``threatens U.S.
citizens and non-citizens alike because it reflects a lowering of the
standards designed to protect everyone from arbitrary and unreasonable
arrest and detention.''
The bill I introduce today will ensure that the material witness law
is used only for the narrow purpose that Congress originally intended,
to obtain testimony, and not to hold criminal suspects without charge
when probable cause is lacking.
First, the bill raises the standard that the government must meet to
obtain a material witness warrant. Under current law, a judge may order
the arrest of a material witness if there is probable cause to believe
that securing his presence by subpoena may become ``impracticable.''
Under the bill, there must be probable cause to believe that the
witness has been served with a subpoena and failed or refused to appear
as required, or clear and convincing evidence that the service of a
subpoena is likely to result in the person fleeing or cannot adequately
secure the appearance of the person as required.
Second, the bill imports several due process safeguards from the
Federal Rules of Criminal Procedure relating to the arrest and
arraignment of criminal defendants. Among other things, the bill
requires that a material witness warrant specify that the testimony of
the witness is sought in a criminal case or grand jury proceeding, and
command that the witness be arrested and brought to court without
unnecessary delay. The warrant must also inform the witness of his
right to retain counselor or request that one be appointed. The right
to counsel is already guaranteed to material witnesses under the
Criminal Justice Act, 18 U.S.C. 3006A(a)(1)(g), and protects the
witness from erroneous, unnecessary, and prolonged incarceration.
The bill further provides that, upon arresting a material witness,
the government must provide him with a copy of the warrant or inform
him of the warrant's existence and purpose. A material witness must be
brought before a judge ``without unnecessary delay''--a term that has
been strictly interpreted when applied to the criminally accused. The
initial appearance must be in the district of arrest or an adjacent
district. At the initial appearance, the judge must inform the witness
of the basis for his arrest and of his right to counsel. The judge must
also allow the witness a reasonable opportunity to consult with
counsel. The judge must then determine whether the witness should be
released or detained pending the taking of his testimony.
Third, the bill establishes clear procedures for material witness
detention hearings. Current law provides that material witnesses shall
be treated in accordance with 18 U.S.C. 3142, which governs the release
or detention of defendants pending trial. Section 3142, however,
contains many factors that are not applicable to material witnesses.
For example, courts have held that a material witness may not be
detained on the basis of dangerousness. (See Awadallah, 349 F.3d at 63
n.15.) The bill clarifies that in detention hearings for material
witnesses, flight risk is the only relevant factor. A court shall order
a material witness detained only if no condition or combination of
conditions will reasonably assure the appearance of the witness as
required. As under current law, no witness may be detained because of
inability to comply with any condition of release if the testimony of
such witness can adequately be secured by deposition. In determining
whether a material witness should be released or detained, the court
shall take into account the available information concerning the
history and characteristics of the witness, and may also consider
challenges to the basis of the warrant.
Fourth, the bill establishes the ``clear and convincing evidence''
standard used in other civil detention contexts for material witness
detentions. Few courts have directly examined what standard of proof
should be required of the government to demonstrate that no conditions
of release can reasonably assure a witness's appearance. While the
lower ``preponderance of the evidence'' standard may suffice for pre-
trial detention of defendants who pose a risk of flight, in the case of
defendants there has also been a finding of probable cause to believe
the person committed a crime. In the case of a witness, where there is
no probable cause to believe the person committed a crime, the usual
grounds for fearing flight--the defendant's aversion to risking a
guilty verdict and attendant sentencing--are not present.
Fifth, the bill imposes reasonable but firm time limits on the
detention of material witnesses. Current law sets no firm limit on how
long a witness may be incarcerated before being presented in a criminal
proceeding or released. This has resulted, according to the recent
report, in many witnesses enduring imprisonment for two or more months,
and in one case for more than a year. Under my bill, a material witness
may initially be held for not more than five days, or until his
testimony can adequately be secured, whichever is earlier. That period
may be extended for additional periods of up to five days, upon a
showing of good cause for why the testimony could not adequately be
secured during the previous five-day period. The total period of
detention may not exceed 10 days for a grand jury witness, or 30 days
for a trial witness, and in no case may a witness be held any longer
than necessary to secure his testimony.
Sixth, in recognition of the fact that material witnesses are not
charged with any offense, the bill requires that they be held in a
corrections facility that is separate, to the extent practicable, from
persons charged with or convicted of a criminal offense, and under the
least restrictive conditions possible.

[[Page S10298]]

Finally, to facilitate congressional oversight, the bill requires the
Justice Department to report annually on the use of the material
witness law. Since 9/11, the Department has withheld information
relating to material witnesses on the theory--in my view, a flawed
theory--that such information is covered by the grand jury secrecy
rule. It is hard to imagine how the release of generalized data, such
as the aggregate number of people detained as material witnesses, could
damage any reputational interest or any of the other interests
protected by Rule 6(e).
The recent, detailed report on post-9/11 uses of the material witness
statute leaves no doubt that the law has been bent out of shape, with
real consequences for citizens and non-citizens alike. My bill will
restore the law to its original purpose and prevent future abuses. I
urge its speedy passage.
I ask unanimous consent that the text of the bill be included in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1739

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

SECTION 1. RELEASE OR DETENTION OF A MATERIAL WITNESS.

(a) Amendments to Title 18.--Section 3144 of title 18,
United States Code, is amended to read as follows:

``Sec. 3144. Release or detention of a material witness

``(a) Arrest of Material Witness.--
``(1) In general.--A judicial officer may order the arrest
of a person as a material witness, if it appears from an
affidavit filed by a party in a criminal case before a court
of the United States, or by an attorney for the Government in
a matter occurring before a Federal grand jury, that there is
probable cause to believe that--
``(A) the testimony of such person is material in such case
or matter; and
``(B) the person has been served with a summons or subpoena
and failed or refused to appear as required.
``(2) Exception.--A judicial officer may waive the summons
or subpoena requirement described in paragraph (1)(B), if the
judicial officer finds by clear and convincing evidence that
the service of a summons or subpoena--
``(A) is likely to result in the person fleeing; or
``(B) cannot adequately secure the appearance of the person
as required.
``(b) Warrant for Material Witness.--
``(1) Requirements.--A warrant issued under subsection (a)
shall--
``(A) contain the name of the material witness or, if the
name of such witness is unknown, a name or description by
which the witness can be identified with reasonable
certainty;
``(B) specify that the testimony of the witness is sought
in a criminal case or grand jury proceeding;
``(C) command that the witness be arrested and brought
without unnecessary delay before a judicial officer;
``(D) inform the witness of the witness's right to retain
counsel or to request that counsel be appointed if the
witness cannot obtain counsel; and
``(E) be signed by a judicial officer.
``(2) Execution of warrant.--
``(A) Arrest of witness.--A warrant issued under subsection
(a) shall be executed by arresting the material witness.
``(B) Warrant to be provided to witness.--
``(i) In general.--Upon arrest, an officer possessing the
warrant shall show such warrant to the material witness.
``(ii) Warrant not in possession of arresting officer.--If
an officer does not possess the warrant at the time of arrest
of a material witness, an officer--

``(I) shall inform the witness of the existence and purpose
of the warrant; and
``(II) at the request of the witness, shall provide the
warrant to the witness as soon as possible.

``(3) Return of warrant.--
``(A) After execution.--After executing a warrant issued
under subsection (a), an officer shall return the warrant to
the judicial officer before whom the material witness is
brought in accordance with subsection (c).
``(B) Unexecuted warrant.--At the request of an attorney
for the United States Government, an unexecuted warrant shall
be brought back to and canceled by a judicial officer.
``(c) Initial Appearance.--
``(1) Appearance upon arrest.--A material witness arrested
pursuant to a warrant issued under subsection (a) shall be
brought without unnecessary delay before a judicial officer.
``(2) Place of initial appearance.--The initial appearance
of a material witness arrested pursuant to a warrant issued
under subsection (a) shall be--
``(A) in the district of arrest; or
``(B) in an adjacent district if--
``(i) the appearance can occur more promptly there; or
``(ii) the warrant was issued there and the initial
appearance will occur on the day of the arrest.
``(3) Procedures.--At the initial appearance described in
paragraph (2), a judicial officer shall--
``(A) inform a material witness of--
``(i) the warrant against the witness, and the application
and affidavit filed in support of the warrant; and
``(ii) the witness's right to retain counsel or to request
that counsel be appointed if the witness cannot obtain
counsel;
``(B) allow the witness a reasonable opportunity to consult
with counsel;
``(C) release or detain the witness as provided by
subsection (d); and
``(D) if the initial appearance occurs in a district other
than where the warrant issued, transfer the witness to such
district, provided that the judicial officer finds that the
witness is the same person named in the warrant.
``(d) Release or Detention.--
``(1) In general.--Upon the appearance before a judicial
officer of a material witness arrested pursuant to a warrant
issued under subsection (a), the judicial officer shall order
the release or detention of such witness.
``(2) Release.--
``(A) In general.--A judicial officer shall order the
release of a material witness arrested pursuant to a warrant
issued under subsection (a) on personal recognizance or upon
execution of an unsecured appearance bond under section
3142(b), or on a condition or combination of conditions under
section 3142(c), unless the judicial officer determines by
clear and convincing evidence that such release will not
reasonably assure the appearance of the witness as required.
``(B) Testimony secured by deposition.--No material witness
may be detained because of the inability of the witness to
comply with any condition of release if the testimony of such
witness can adequately be secured by deposition.
``(3) Detention.--
``(A) No reasonable assurance of appearance.--If, after a
hearing pursuant to the provisions of section 3142(f)(2), a
judicial officer finds by clear and convincing evidence that
no condition or combination of conditions will reasonably
assure the appearance of a material witness as required by
this section, such judicial officer may order that the
witness be detained for a period not to exceed 5 days, or
until the testimony of the witness can adequately be secured
by deposition or by appearance before the court or grand
jury, whichever is earlier.
``(B) Extension of detention.--
``(i) In general.--Subject to clause (ii), upon the motion
of a party (or an attorney for the United States Government
in a matter occurring before a Federal grand jury), the
period of detention under subparagraph (A) may be extended
for additional periods of up to 5 days, or until the
testimony of a material witness can adequately be secured by
deposition or by appearance before the court or grand jury,
whichever is earlier.
``(ii) Limit.--The total period of detention under this
subparagraph may not exceed--

``(I) 30 days, where the testimony of the witness is sought
in a criminal case; or
``(II) 10 days, where the testimony of the witness is
sought in a grand jury proceeding.

``(C) Good cause required.--A motion under subparagraph (B)
shall demonstrate good cause for why the testimony of a
material witness could not adequately be secured by
deposition or by appearance before the court or grand jury
during the previous 5-day period.
``(4) Factors to be considered.--A judicial officer, in
determining whether a material witness should be released or
detained--
``(A) shall take into account the available information
concerning the history and characteristics of the witness,
including the information described in section 3142(g)(3)(A);
and
``(B) may consider challenges to the basis of the warrant.
``(5) Contents of release order.--A release order issued
under paragraph (2) shall comply with the requirements of
paragraphs (1) and (2)(B) of section 3142(h).
``(6) Contents of detention order.--A detention order
issued under paragraph (3) shall comply with the requirements
of section 3142(i), provided that a judicial officer shall
direct that a material witness be held--
``(A) in a facility separate and apart, to the extent
practicable, from persons charged with or convicted of a
criminal offense; and
``(B) under the least restrictive conditions possible.
``(e) Report.--
``(1) In general.--Notwithstanding any other provision of
law, the Attorney General shall provide to the Committees on
the Judiciary of the Senate and the House of Representatives
an annual report regarding the use of this section by the
United States Government during the preceding 1-year period.
``(2) Content of report.--A report required under paragraph
(1) shall include--
``(A) the number of warrants sought under subsection (a),
and the number either granted or denied;
``(B) the number of material witnesses arrested pursuant to
a warrant issued under subsection (a) whose testimony was not
secured by deposition or by appearance before the court or
grand jury, and the reasons therefore; and
``(C) the average number of days that material witnesses
arrested pursuant to a warrant issued under subsection (a)
were detained.''.

[[Page S10299]]

(b) Amendment to Federal Rules of Civil Procedure.--Rule
46(h) of the Federal Rules of Criminal Procedure is amended
to read as follows:
``(h) Supervising Detention Pending Trial.--To eliminate
unnecessary detention, the court must supervise the detention
within the district of any defendants awaiting trial and of
any persons held as material witnesses.''.

Rule One: Do not ignore a subpoena.

Rules for responding to subpoenas
By Phyllis Garrison, Esq.

Published January 2000

React to this article in the Discussion Forum.
Lawyer’s yore in Indianapolis, Indiana has it that there was an infamous physician who absolutely refused to honor a subpoena and testify at court. The judge would send the sheriff to fetch Dr. "No." But the presence of the law did not even slow the good doctor down. He would lock the front door and bolt out the back, escaping in his car. Naturally, this ploy only worked once or twice. Eventually the sheriff learned to post a deputy at the back door. Dr. No was collected and taken to court to testify. It is told that once on the witness stand, he was a cooperative and knowledgeable witness.
Recently a young psychologist was served with a subpoena for a minor patient’s mental health record. In deference to the duty to hold the patient’s mental health record confidential, she refused to supply the record. The attorney seeking the record sent her an authorization for release of the record signed by the patient’s father, the non-custodial parent. She sought the legal advice of lay persons and an attorney for her insurance carrier. Everyone advised her not to release the records until the court so ordered.

The attorney scheduled a hearing on the matter. At the hearing the judge found the psychologist in contempt and ordered her to pay $700 in legal fees to the attorney seeking the record, for forcing him to request and prepare for a hearing on the matter unnecessarily. The law in the state in which the psychologist practiced stated custodial and non-custodial parents have equal access to his/her child’s health records. A health care provider was bound to release the child’s mental health records when served with the father’s authorization. Ignorance of the law was no excuse.

Physicians rightly complain that they are served with subpoenas for court testimony with little or no warning and without consideration of the physician’s obligation to his or her scheduled patients. Further, physicians are often asked for health records without proper authorization, forcing a decision to withhold the records, violate the patient-physician privilege of confidentiality, or consult an attorney. If the wrong decision is made, the physician risks contempt orders or a lawsuit filed by the patient. Some situations are complicated and will require advice of counsel. However, what follows are three simple rules which when put to use, will allow the physician to assess the situation and proceed in a lawful manner sometimes without consulting legal counsel.

Rule One: Do not ignore a subpoena. If properly issued and served, a subpoena has the full force of the law behind it. The first step is to determine whether you have a proper subpoena or a court order. A subpoena is a piece of paper, often a form, which is signed or stamped by the clerk of court or an attorney. Almost anyone can obtain a form subpoena stamped with the court clerk’s signature. An attorney can create a subpoena on a word processor. A subpoena differs from a court order. A court order has a case or cause number in the heading, is signed by a judge and is usually stamped "Filed," with the file date. It is important to know the difference in order to assess how to proceed. Courts have generally held that "bare" subpoenas are insufficient to obtain confidential medical records.

The next step is to determine whether the subpoena was properly served. In order for the service to be ironclad, it should be handed to the physician by a sheriff or other officer of the court. Then and only then can the person who served the subpoena testify in court that the physician received it. However, many subpoenas are served by regular or certified mail sent to the physician’s office. Someone other than the physician signs the return receipt. Arguably, at that point, no one can prove that the physician actually received the subpoena if the physician states he did not receive it. However, once the physician has actual knowledge of the subpoena, he would be committing perjury if he stated under oath that he did not receive it. The best course when a subpoena comes into one’s hands is to deal with it.

Rule Two: Do communicate and cooperate. Much time and frustration can be saved if the parties talk to one another. Ideally, the attorney should call the physician prior to serving a subpoena, talk to him or her about what testimony can be anticipated and make arrangements for dates and times that are as convenient as possible for the physician to appear at the trial. Unfortunately, many times lawyers serve first and talk later. One wonders at the wisdom of such behavior because it most likely will alienate the physician witness whose cooperation the attorney needs. To be fair, there are times and circumstances when the attorney cannot contact the physician prior to serving the subpoena, such as in the case of emergency hearings or a last minute discovery that the physician’s testimony is needed.

When the attorney has not contacted the physician, the physician should call the attorney. Perhaps the physician does not have the information the attorney seeks or cannot give an opinion that would be favorable to the patient’s case. The attorney may voluntarily withdraw the subpoena or excuse the physician from testifying. Inquire as to whether the patient’s records can be used instead of the physician’s testimony. Attorneys can stipulate that the patient’s records will be part of the court’s record, making the physician’s presence to introduce those records unnecessary.

Many times the attorney can and will arrange for the physician’s testimony to be taken in the form of a video deposition. This deposition can then be played in court for the judge or jury in lieu of the physician’s presence. Taped testimony allows for flexibility in the trial schedule and prevents multiple appearances if the trial is postponed at the last minute. If a video deposition is not possible, the physician can negotiate the most convenient time for his or her appearance. If the physician is truly unavailable for the hearing or trial, this should be communicated so that a continuance can be sought.

Cooperation takes all parties. If the matter cannot be resolved, then the physician may be forced to take legal action to have the subpoena quashed or the matter continued. An attorney can file an objection to the subpoena for several reasons, some of which will be discussed later. It is possible to have a subpoena quashed for the reason that it is unduly burdensome or unreasonable. This is often the case when the physician’s testimony is required in two days and he or she has scheduled patients or surgery.

Rule Three: Always consider the confidentiality of the patient’s records. The physician-patient privilege against disclosure of information the physician obtains as a result of the physician-patient relationship is ancient. This privilege belongs to the patient. However, the physician has the legal duty to invoke the privilege on behalf of the patient. It includes both written and unwritten information. A subpoena does not overcome the patient’s right to confidentiality. Therefore, whenever a physician receives a subpoena for records, (sometimes called a subpoena duces tecum) or for an appearance and testimony about the patient, the first consideration is whether the patient has consented to the release of the information sought. Even if the patient’s own attorney has requested the information, the physician must first be satisfied that the patient has consented to the disclosure.

The best way to verify that the patient consents to the physicians disclosure of information, in spoken or written form, is by obtaining an authorization for release of the information signed by the patient. This authorization should state specifically what information is to be released and to whom. It is also helpful if the release states the purpose of the disclosure. A physician can be assured that the release is intended to cover court proceedings if it states that, "the information is to be released to my attorney for use in my lawsuit against X." However, if the physician is only directed by the release to give the information to an attorney, the physician is not responsible for what the attorney does with that information.

A physician may obtain the consent of the patient verbally. This conversation should be recorded in the medical record at or near the time it occurs. State laws contain exceptions to the need for a patient’s release, i.e., in the case of child abuse or a grand jury investigation. An attorney may need to be consulted as to whether the subpoena falls into an exception to the need for a patient’s consent or court order. Further, a court may order the physician to release information about a patient, in spite of the patient’s objection. Such a determination would be made by a judge after review of the relevancy of the records to the lawsuit or, in the case of mental health or dangerous communicable disease information, after a hearing on the matter.

If a physician has not been satisfied that the patient consents to the release of confidential information, he or she should raise the issue in court before any questions about the patient are answered. At times the judge will consider the matter immediately and order the physician to proceed to testify. In such an instance, the physician must honor the judge’s order. If the subpoena is for records and the physician does not have his patient’s consent to release the records, the only way the physician can raise that objection is by filing it in writing with the court. Most often an attorney should be consulted to file a motion to quash the subpoena for lack of the patient’s authorization to release the records.

Note that in the case of written records, the subpoena or accompanying court papers may give a deadline for production of the records or filing of an objection. If no date for production is given, the physician usually has 30 days to produce the records or file an objection.

There is one other important point about written records. In the case of health records other than mental health, substance abuse or dangerous communicable disease records, the subpoena may be served with a motion to produce and an order for production signed by a judge. If these last two documents accompany the subpoena, the records may be produced without the patient’s consent. This means that everyone in the lawsuit, including the judge, has had notice of the request, no one has objected, the court has considered the matter, and ordered the release of the records. The only thing worse than ignoring a subpoena is ignoring a court order.

If the records sought are those for treatment of alcohol or drug abuse, they are not to be released without the patient’s consent or a court order issued after a hearing is held on the matter. The release of alcohol and drug abuse records is governed by federal law. Mental health records and those concerning dangerous communicable diseases may also require a court hearing to determine whether the records should be released without the patient’s consent. State laws differ as to the procedure to be followed, but most states require more than a subpoena or even a court order, issued without a hearing, in order to release these kinds of health records.

These rules and comments are not meant to exhaust all issues that may arise with respect to subpoenas and other requests for confidential records. State laws vary. The facts of any given situation are unique and may not have been anticipated here. They are, however, a practical start.

Phyllis Garrison, Esq., is a member of Bose McKinney & Evans’ Health Law Practice Group in Indianapolis, Indiana

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