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18 USC§ 3144 allows for the detention of a material witness: a person who is material in a criminal proceeding whose presence is impracticable to secure by subpoena. Under these circumstances the witness may be arrested on a showing of probable cause to believe both elements above exist. Although a court has held that a grand jury constitutes a criminal proceeding for which a material witness warrant may issue, In the matter of the Petition of Bacon v. US, 449 F.2d 933 (9th Cir. 1971). However, the district court for the Southern District of New York departed from the ninth circuit’s analysis in Bacon and held that the detainment of a material witness under 18 U.S.C. § 3144 does not apply to grand jury proceedings. US v.Awadallah, 202 F.Supp.2d 55 (S.D.N.Y. 2002) [September 11 detainee].

The District Court found that the language of 18 U.S.C. § 3144 specifically the phrase “criminal proceeding” did not include a grand jury proceeding. US v. Awadallah, 202 F.Supp 2d 55, 62 (S.D. N.Y. 2002). The language of the statute, according to the District Court, was meant for an adversarial proceeding, which is not the case in a grand jury. US

  1. Awadallah, 202 F.Supp 2d 55, 62 (S.D.N.Y. 2002). Furthermore, since it is up to a judge to decide if a witness is a material witness, it is difficult for a judge to make that determination in a grand jury proceeding, which is secret. US v. Awadallah, 202 F. Supp 2d 55, 63 (S.D. N.Y. 2002). Finally, the factors listed in 18 U.S.C §3142 that the judge must take into account when determining if a witness is material or not3, are only relevant if an offense might have been committed or not. US v. Awadallah, 202 F.Supp 2d 55, 65 (S.D. N.Y. 2002).

However, in In Re the Application of the United States for a Material Witness Warrant, 213 F.Supp. 2d 287  (S.D. N.Y. July, 2002), the District Court declined to follow U.S. v. Awadallah, and relied on Bacon v. United States, 449 F.2d 933 (9th Cir. 1971) in reaching its decision that 3144 did apply to grand jury witnesses. In Re the Application of the United States for a Material Witness Warrant, 213 F.Supp. 2d 287 (S.D. N.Y. July, 2002). The District Court deemed that “[T]he relevant language in what is now section 3144 was interpreted in Bacon to include grand jury witnesses, and that language was reenacted as part of the current statute. A well recognized canon of statutory construction requires that a court deem congress both to have been aware of such existing appellate authority, and to have intended reenacted language to mean what that authority said it meant4. In Re the Application of the United States for a Material Witness Warrant, 213 F.Supp. 2d 287 (S.D. N.Y. July, 2002). Furthermore, the district Court reasoned that a judge could determine the materiality of a witness, “based on the representation of the prosecutor…[or] sealed submissions” and that the difficulty of determining materiality was not necessarily easier in a grand jury context than in a trial. In Re the Application of the United States for a Material Witness Warrant, 213 F.Supp. 2d 287 (S.D. N.Y. July, 2002).


Although U.S. v. Awadallah was subsequently reversed in the Second Circuit, 349 F.3d 42 (2d Cir. 2003), the Second Circuit has seemingly softened its stance, recognizing that material witness warrants are capable of being abused, and that consequently the Fourth

3 1) The nature and circumstances of the offense charged…2) the weight of the evidence against the person; 3) the history and characteristics of the person; 4) the nature and seriousness of the danger to any person …that would be posed by the person’s release. 18 U.S.C § 3141.

4 In regard to legislative history, the Court found that there was “direct evidence that a relevant Congressional committee, and anyone who read its report, was aware of Bacon’s holding, and also that the new statute would apply to grand jury proceedings. [S.Rep. No. 98-225, at 28, n.88 (1983).]” In Re the Application of the United States for a Material Witness Warrant, F.Supp. 2d_ (S.D. N.Y. July, 2002).

Amendment governs their issuance. Simon v. City of N.Y., 893 F.3d 83, 97 (2d Cir. 2018) (“Any warrant must be executed in reasonable conformity with its terms – a rule so integral to Fourth Amendment doctrine that we are untroubled that no case has previously applied it to a material witness warrant. See, e.g. Matias, 836 F.2d at 747; O’Rourke, 875 F.2d at 1474-75”).

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