§ 3591. Sentence of death

• (a) A defendant who has been found guilty of—
  • (1) an offense described in section 794 or section 2381; or
  • (2) any other offense for which a sentence of death is provided, if the defendant, as determined beyond a reasonable doubt at the hearing under section 3593—
    • (A) intentionally killed the victim;
    • (B) intentionally inflicted serious bodily injury that resulted in the death of the victim;
    • (C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or
    • (D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act,
• (b) A defendant who has been found guilty of—
  • (1) an offense referred to in section 408(c)(1) of the Controlled Substances Act ( 21 U.S.C. 848(c)(1) ), committed as part of a continuing criminal enterprise offense under the conditions described in subsection (b) of that section which involved not less than twice the quantity of controlled substance described in subsection (b)(2)(A) or twice the gross receipts described in subsection (b)(2)(B); or
  • (2) an offense referred to in section 408(c)(1) of the Controlled Substances Act ( 21 U.S.C. 848(c)(1) ), committed as part of a continuing criminal enterprise offense under that section, where the defendant is a principal administrator, organizer, or leader of such an enterprise, and the defendant, in order to obstruct the investigation or prosecution of the enterprise or an offense involved in the enterprise, attempts to kill or knowingly directs, advises, authorizes, or assists another to attempt to kill any public officer, juror, witness, or members of the family or household of such a person,

§ 3592. Mitigating and aggravating factors to be considered in determining whether a sentence of death is justified

• (a) In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor, including the following:
  • (1) The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.
  • (2) The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.
  • (3) The defendant is punishable as a principal in the offense, which was committed by another, but the defendant’s participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.
  • (4) Another defendant or defendants, equally culpable in the crime, will not be punished by death.
  • (5) The defendant did not have a significant prior history of other criminal conduct.
  • (6) The defendant committed the offense under severe mental or emotional disturbance.
  • (7) The victim consented to the criminal conduct that resulted in the victim’s death.
  • (8) Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.
• (b) In determining whether a sentence of death is justified for an offense described in section 3591(a)(1), the jury, or if there is no jury, the court, shall consider each of the following aggravating factors for which notice has been given and determine which, if any, exist:
  • (1) The defendant has previously been convicted of another offense involving espionage or treason for which a sentence of either life imprisonment or death was authorized by law.
  • (2) In the commission of the offense the defendant knowingly created a grave risk of substantial danger to the national security.
  • (3) In the commission of the offense the defendant knowingly created a grave risk of death to another person.
• (c) In determining whether a sentence of death is justified for an offense described in section 3591(a)(2), the jury, or if there is no jury, the court, shall consider each of the following aggravating factors for which notice has been given and determine which, if any, exist:
  • (1) The death, or injury resulting in death, occurred during the commission or attempted commission of, or during the immediate flight from the commission of, an offense under section 32 (destruction of aircraft or aircraft facilities), section 33 (destruction of motor vehicles or motor vehicle facilities), section 37 (violence at international airports), section 351 (violence against Members of Congress, Cabinet officers, or Supreme Court Justices), an offense under section 751 (prisoners in custody of institution or officer), section 794 (gathering or delivering defense information to aid foreign government), section 844(d) (transportation of explosives in interstate commerce for certain purposes), section 844(f) (destruction of Government property by explosives), section 1118 (prisoners serving life term), section 1201 (kidnapping), section 844(i) (destruction of property affecting interstate commerce by explosives), section 1116 (killing or attempted killing of diplomats), section 1203 (hostage taking), section 1992 1 1 See References in Text note below. (wrecking trains), section 2245 (offenses resulting in death), section 2280 (maritime violence), section 2281 (maritime platform violence), section 2332 (terrorist acts abroad against United States nationals), section 2332a (use of weapons of mass destruction), or section 2381 (treason) of this title, or section 46502 of title 49 , United States Code (aircraft piracy).
  • (2) For any offense, other than an offense for which a sentence of death is sought on the basis of section 924(c), the defendant has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm (as defined in section 921) against another person.
  • (3) The defendant has previously been convicted of another Federal or State offense resulting in the death of a person, for which a sentence of life imprisonment or a sentence of death was authorized by statute.
  • (4) The defendant has previously been convicted of 2 or more Federal or State offenses, punishable by a term of imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person.
  • (5) The defendant, in the commission of the offense, or in escaping apprehension for the violation of the offense, knowingly created a grave risk of death to 1 or more persons in addition to the victim of the offense.
  • (6) The defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim.
  • (7) The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.
  • (8) The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.
  • (9) The defendant committed the offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism.
  • (10) The defendant has previously been convicted of 2 or more State or Federal offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the distribution of a controlled substance.
  • (11) The victim was particularly vulnerable due to old age, youth, or infirmity.
  • (12) The defendant had previously been convicted of violating title II or III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 for which a sentence of 5 or more years may be imposed or had previously been convicted of engaging in a continuing criminal enterprise.
  • (13) The defendant committed the offense in the course of engaging in a continuing criminal enterprise in violation of section 408(c) of the Controlled Substances Act ( 21 U.S.C. 848(c) ), and that violation involved the distribution of drugs to persons under the age of 21 in violation of section 418 of that Act ( 21 U.S.C. 859 ).
  • (14) The defendant committed the offense against—
    • (A) the President of the United States, the President-elect, the Vice President, the Vice President-elect, the Vice President-designate, or, if there is no Vice President, the officer next in order of succession to the office of the President of the United States, or any person who is acting as President under the Constitution and laws of the United States;
    • (B) a chief of state, head of government, or the political equivalent, of a foreign nation;
    • (C) a foreign official listed in section 1116(b)(3)(A), if the official is in the United States on official business; or
    • (D) a Federal public servant who is a judge, a law enforcement officer, or an employee of a United States penal or correctional institution—
      • (i) while he or she is engaged in the performance of his or her official duties;
      • (ii) because of the performance of his or her official duties; or
      • (iii) because of his or her status as a public servant.
  • (15) In the case of an offense under chapter 109A (sexual abuse) or chapter 110 (sexual abuse of children), the defendant has previously been convicted of a crime of sexual assault or crime of child molestation.
  • (16) The defendant intentionally killed or attempted to kill more than one person in a single criminal episode.
• (d) In determining whether a sentence of death is justified for an offense described in section 3591(b), the jury, or if there is no jury, the court, shall consider each of the following aggravating factors for which notice has been given and determine which, if any, exist:
  • (1) The defendant has previously been convicted of another Federal or State offense resulting in the death of a person, for which a sentence of life imprisonment or death was authorized by statute.
  • (2) The defendant has previously been convicted of two or more Federal or State offenses, each punishable by a term of imprisonment of more than one year, committed on different occasions, involving the importation, manufacture, or distribution of a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 )) or the infliction of, or attempted infliction of, serious bodily injury or death upon another person.
  • (3) The defendant has previously been convicted of another Federal or State offense involving the manufacture, distribution, importation, or possession of a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 )) for which a sentence of five or more years of imprisonment was authorized by statute.
  • (4) In committing the offense, or in furtherance of a continuing criminal enterprise of which the offense was a part, the defendant used a firearm or knowingly directed, advised, authorized, or assisted another to use a firearm to threaten, intimidate, assault, or injure a person.
  • (5) The offense, or a continuing criminal enterprise of which the offense was a part, involved conduct proscribed by section 418 of the Controlled Substances Act ( 21 U.S.C. 859 ) which was committed directly by the defendant.
  • (6) The offense, or a continuing criminal enterprise of which the offense was a part, involved conduct proscribed by section 419 of the Controlled Substances Act ( 21 U.S.C. 860 ) which was committed directly by the defendant.
  • (7) The offense, or a continuing criminal enterprise of which the offense was a part, involved conduct proscribed by section 420 of the Controlled Substances Act ( 21 U.S.C. 861 ) which was committed directly by the defendant.
  • (8) The offense involved the importation, manufacture, or distribution of a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 )), mixed with a potentially lethal adulterant, and the defendant was aware of the presence of the adulterant.

§ 3593. Special hearing to determine whether a sentence of death is justified

• (a) If, in a case involving an offense described in section 3591, the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified under this chapter, the attorney shall, a reasonable time before the trial or before acceptance by the court of a plea of guilty, sign and file with the court, and serve on the defendant, a notice—
  • (1) stating that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the government will seek the sentence of death; and
  • (2) setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death.
• (b) If the attorney for the government has filed a notice as required under subsection (a) and the defendant is found guilty of or pleads guilty to an offense described in section 3591, the judge who presided at the trial or before whom the guilty plea was entered, or another judge if that judge is unavailable, shall conduct a separate sentencing hearing to determine the punishment to be imposed. The hearing shall be conducted—
  • (1) before the jury that determined the defendant’s guilt;
  • (2) before a jury impaneled for the purpose of the hearing if—
    • (A) the defendant was convicted upon a plea of guilty;
    • (B) the defendant was convicted after a trial before the court sitting without a jury;
    • (C) the jury that determined the defendant’s guilt was discharged for good cause; or
    • (D) after initial imposition of a sentence under this section, reconsideration of the sentence under this section is necessary; or
  • (3) before the court alone, upon the motion of the defendant and with the approval of the attorney for the government.
• (c) Notwithstanding rule 32 of the Federal Rules of Criminal Procedure, when a defendant is found guilty or pleads guilty to an offense under section 3591, no presentence report shall be prepared. At the sentencing hearing, information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under section 3592. Information presented may include the trial transcript and exhibits if the hearing is held before a jury or judge not present during the trial, or at the trial judge’s discretion. The defendant may present any information relevant to a mitigating factor. The government may present any information relevant to an aggravating factor for which notice has been provided under subsection (a). Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. For the purposes of the preceding sentence, the fact that a victim, as defined in section 3510, attended or observed the trial shall not be construed to pose a danger of creating unfair prejudice, confusing the issues, or misleading the jury. The government and the defendant shall be permitted to rebut any information received at the hearing, and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any aggravating or mitigating factor, and as to the appropriateness in the case of imposing a sentence of death. The government shall open the argument. The defendant shall be permitted to reply. The government shall then be permitted to reply in rebuttal. The burden of establishing the existence of any aggravating factor is on the government, and is not satisfied unless the existence of such a factor is established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the information.
• (d) The jury, or if there is no jury, the court, shall consider all the information received during the hearing. It shall return special findings identifying any aggravating factor or factors set forth in section 3592 found to exist and any other aggravating factor for which notice has been provided under subsection (a) found to exist. A finding with respect to a mitigating factor may be made by 1 or more members of the jury, and any member of the jury who finds the existence of a mitigating factor may consider such factor established for purposes of this section regardless of the number of jurors who concur that the factor has been established. A finding with respect to any aggravating factor must be unanimous. If no aggravating factor set forth in section 3592 is found to exist, the court shall impose a sentence other than death authorized by law.
• (e) If, in the case of—
  • (1) an offense described in section 3591(a)(1), an aggravating factor required to be considered under section 3592(b) is found to exist;
  • (2) an offense described in section 3591(a)(2), an aggravating factor required to be considered under section 3592(c) is found to exist; or
  • (3) an offense described in section 3591(b), an aggravating factor required to be considered under section 3592(d) is found to exist,
• (f) In a hearing held before a jury, the court, prior to the return of a finding under subsection (e), shall instruct the jury that, in considering whether a sentence of death is justified, it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of any victim may be. The jury, upon return of a finding under subsection (e), shall also return to the court a certificate, signed by each juror, that consideration of the race, color, religious beliefs, national origin, or sex of the defendant or any victim was not involved in reaching his or her individual decision and that the individual juror would have made the same recommendation regarding a sentence for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or any victim may be.

§ 3594. Imposition of a sentence of death

Upon a recommendation under section 3593(e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release.

§ 3595. Review of a sentence of death

• (a) In a case in which a sentence of death is imposed, the sentence shall be subject to review by the court of appeals upon appeal by the defendant. Notice of appeal must be filed within the time specified for the filing of a notice of appeal. An appeal under this section may be consolidated with an appeal of the judgment of conviction and shall have priority over all other cases.
• (b) The court of appeals shall review the entire record in the case, including—
  • (1) the evidence submitted during the trial;
  • (2) the information submitted during the sentencing hearing;
  • (3) the procedures employed in the sentencing hearing; and
  • (4) the special findings returned under section 3593(d).
• (c)
  • (1) The court of appeals shall address all substantive and procedural issues raised on the appeal of a sentence of death, and shall consider whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor and whether the evidence supports the special finding of the existence of an aggravating factor required to be considered under section 3592.
  • (2) Whenever the court of appeals finds that—
    • (A) the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
    • (B) the admissible evidence and information adduced does not support the special finding of the existence of the required aggravating factor; or
    • (C) the proceedings involved any other legal error requiring reversal of the sentence that was properly preserved for appeal under the rules of criminal procedure,
  • (3) The court of appeals shall state in writing the reasons for its disposition of an appeal of a sentence of death under this section.

§ 3596. Implementation of a sentence of death

• (a) A person who has been sentenced to death pursuant to this chapter shall be committed to the custody of the Attorney General until exhaustion of the procedures for appeal of the judgment of conviction and for review of the sentence. When the sentence is to be implemented, the Attorney General shall release the person sentenced to death to the custody of a United States marshal, who shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed. If the law of the State does not provide for implementation of a sentence of death, the court shall designate another State, the law of which does provide for the implementation of a sentence of death, and the sentence shall be implemented in the latter State in the manner prescribed by such law.
• (b) A sentence of death shall not be carried out upon a woman while she is pregnant.
• (c) A sentence of death shall not be carried out upon a person who is mentally retarded. A sentence of death shall not be carried out upon a person who, as a result of mental disability, lacks the mental capacity to understand the death penalty and why it was imposed on that person.

§ 3597. Use of State facilities

• (a) A United States marshal charged with supervising the implementation of a sentence of death may use appropriate State or local facilities for the purpose, may use the services of an appropriate State or local official or of a person such an official employs for the purpose, and shall pay the costs thereof in an amount approved by the Attorney General.
• (b) No employee of any State department of corrections, the United States Department of Justice, the Federal Bureau of Prisons, or the United States Marshals Service, and no employee providing services to that department, bureau, or service under contract shall be required, as a condition of that employment or contractual obligation, to be in attendance at or to participate in any prosecution or execution under this section if such participation is contrary to the moral or religious convictions of the employee. In this subsection, “participation in executions” includes personal preparation of the condemned individual and the apparatus used for execution and supervision of the activities of other personnel in carrying out such activities.

§ 3598. Special provisions for Indian country

Notwithstanding sections 1152 and 1153, no person subject to the criminal jurisdiction of an Indian tribal government shall be subject to a capital sentence under this chapter for any offense the Federal jurisdiction for which is predicated solely on Indian country (as defined in section 1151 of this title ) and which has occurred within the boundaries of Indian country, unless the governing body of the tribe has elected that this chapter have effect over land and persons subject to its criminal jurisdiction.

§ 3599. Counsel for financially unable defendants

• (a)
  • (1) Notwithstanding any other provision of law to the contrary, in every criminal action in which a defendant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services at any time either—
    • (A) before judgment; or
    • (B) after the entry of a judgment imposing a sentence of death but before the execution of that judgment;
  • (2) In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).
• (b) If the appointment is made before judgment, at least one attorney so appointed must have been admitted to practice in the court in which the prosecution is to be tried for not less than five years, and must have had not less than three years experience in the actual trial of felony prosecutions in that court.
• (c) If the appointment is made after judgment, at least one attorney so appointed must have been admitted to practice in the court of appeals for not less than five years, and must have had not less than three years experience in the handling of appeals in that court in felony cases.
• (d) With respect to subsections (b) and (c), the court, for good cause, may appoint another attorney whose background, knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation.
• (e) Unless replaced by similarly qualified counsel upon the attorney’s own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.
• (f) Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor under subsection (g). No ex parte proceeding, communication, or request may be considered pursuant to this section unless a proper showing is made concerning the need for confidentiality. Any such proceeding, communication, or request shall be transcribed and made a part of the record available for appellate review.
• (g)
  • (1) Compensation shall be paid to attorneys appointed under this subsection 1 1 So in original. Probably should be “section”. at a rate of not more than $125 per hour for in-court and out-of-court time. The Judicial Conference is authorized to raise the maximum for hourly payment specified in the 2 2 So in original. Probably should be “this”. paragraph up to the aggregate of the overall average percentages of the adjustments in the rates of pay for the General Schedule made pursuant to section 5305 3 3 So in original. Probably should be “5303”. of title 5 on or after such date. After the rates are raised under the preceding sentence, such hourly range may be raised at intervals of not less than one year, up to the aggregate of the overall average percentages of such adjustments made since the last raise under this paragraph.
  • (2) Fees and expenses paid for investigative, expert, and other reasonably necessary services authorized under subsection (f) shall not exceed $7,500 in any case, unless payment in excess of that limit is certified by the court, or by the United States magistrate judge, if the services were rendered in connection with the case disposed of entirely before such magistrate judge, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit. The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.
  • (3) The amounts paid under this paragraph 4 4 So in original. Probably should be “subsection”. for services in any case shall be disclosed to the public, after the disposition of the petition.

§ 3600. DNA testing

• (a) Upon a written motion by an individual sentenced to imprisonment or death pursuant to a conviction for a Federal offense (referred to in this section as the “applicant”), the court that entered the judgment of conviction shall order DNA testing of specific evidence if the court finds that all of the following apply:
  • (1) The applicant asserts, under penalty of perjury, that the applicant is actually innocent of—
    • (A) the Federal offense for which the applicant is sentenced to imprisonment or death; or
    • (B) another Federal or State offense, if—
      • (i) evidence of such offense was admitted during a Federal sentencing hearing and exoneration of such offense would entitle the applicant to a reduced sentence or new sentencing hearing; and
      • (ii) in the case of a State offense—
        • (I) the applicant demonstrates that there is no adequate remedy under State law to permit DNA testing of the specified evidence relating to the State offense; and
        • (II) to the extent available, the applicant has exhausted all remedies available under State law for requesting DNA testing of specified evidence relating to the State offense.
  • (2) The specific evidence to be tested was secured in relation to the investigation or prosecution of the Federal or State offense referenced in the applicant’s assertion under paragraph (1).
  • (3) The specific evidence to be tested—
    • (A) was not previously subjected to DNA testing and the applicant did not knowingly fail to request DNA testing of that evidence in a prior motion for postconviction DNA testing; or
    • (B) was previously subjected to DNA testing and the applicant is requesting DNA testing using a new method or technology that is substantially more probative than the prior DNA testing.
  • (4) The specific evidence to be tested is in the possession of the Government and has been subject to a chain of custody and retained under conditions sufficient to ensure that such evidence has not been substituted, contaminated, tampered with, replaced, or altered in any respect material to the proposed DNA testing.
  • (5) The proposed DNA testing is reasonable in scope, uses scientifically sound methods, and is consistent with accepted forensic practices.
  • (6) The applicant identifies a theory of defense that—
    • (A) is not inconsistent with an affirmative defense presented at trial; and
    • (B) would establish the actual innocence of the applicant of the Federal or State offense referenced in the applicant’s assertion under paragraph (1).
  • (7) If the applicant was convicted following a trial, the identity of the perpetrator was at issue in the trial.
  • (8) The proposed DNA testing of the specific evidence may produce new material evidence that would—
    • (A) support the theory of defense referenced in paragraph (6); and
    • (B) raise a reasonable probability that the applicant did not commit the offense.
  • (9) The applicant certifies that the applicant will provide a DNA sample for purposes of comparison.
  • (10) The motion is made in a timely fashion, subject to the following conditions:
    • (A) There shall be a rebuttable presumption of timeliness if the motion is made within 60 months of enactment of the Justice For All Act of 2004 or within 36 months of conviction, whichever comes later. Such presumption may be rebutted upon a showing—
      • (i) that the applicant’s motion for a DNA test is based solely upon information used in a previously denied motion; or
      • (ii) of clear and convincing evidence that the applicant’s filing is done solely to cause delay or harass.
    • (B) There shall be a rebuttable presumption against timeliness for any motion not satisfying subparagraph (A) above. Such presumption may be rebutted upon the court’s finding—
      • (i) that the applicant was or is incompetent and such incompetence substantially contributed to the delay in the applicant’s motion for a DNA test;
      • (ii) the evidence to be tested is newly discovered DNA evidence;
      • (iii) that the applicant’s motion is not based solely upon the applicant’s own assertion of innocence and, after considering all relevant facts and circumstances surrounding the motion, a denial would result in a manifest injustice; or
      • (iv) upon good cause shown.
    • (C) For purposes of this paragraph—
      • (i) the term “incompetence” has the meaning as defined in section 4241 of title 18 , United States Code;
      • (ii) the term “manifest” means that which is unmistakable, clear, plain, or indisputable and requires that the opposite conclusion be clearly evident.
• (b)
  • (1) Upon the receipt of a motion filed under subsection (a), the court shall—
    • (A) notify the Government;
    • (B) allow the Government a reasonable time period to respond to the motion; and
    • (C) order the Government to—
      • (i) prepare an inventory of the evidence related to the case; and
      • (ii) issue a copy of the inventory to the court, the applicant, and the Government.
  • (2) To the extent necessary to carry out proceedings under this section, the court shall direct the Government to preserve the specific evidence relating to a motion under subsection (a).
  • (3) The court may appoint counsel for an indigent applicant under this section in the same manner as in a proceeding under section 3006A(a)(2)(B).
• (c)
  • (1) The court shall direct that any DNA testing ordered under this section be carried out by the Federal Bureau of Investigation.
  • (2) Notwithstanding paragraph (1), the court may order DNA testing by another qualified laboratory if the court makes all necessary orders to ensure the integrity of the specific evidence and the reliability of the testing process and test results.
  • (3) The costs of any DNA testing ordered under this section shall be paid—
    • (A) by the applicant; or
    • (B) in the case of an applicant who is indigent, by the Government.
• (d) In any case in which the applicant is sentenced to death—
  • (1) any DNA testing ordered under this section shall be completed not later than 60 days after the date on which the Government responds to the motion filed under subsection (a); and
  • (2) not later than 120 days after the date on which the DNA testing ordered under this section is completed, the court shall order any post-testing procedures under subsection (f) or (g), as appropriate.
• (e)
  • (1)
    • (A) The results of any DNA testing ordered under this section shall be simultaneously disclosed to the court, the applicant, and the Government.
    • (B)
      • (i) If a DNA profile is obtained through testing that excludes the applicant as the source and the DNA complies with the Federal Bureau of Investigation’s requirements for the uploading of crime scene profiles to the National DNA Index System (referred to in this subsection as “NDIS”), the court shall order that the law enforcement entity with direct or conveyed statutory jurisdiction that has access to the NDIS submit the DNA profile obtained from probative biological material from crime scene evidence to determine whether the DNA profile matches a profile of a known individual or a profile from an unsolved crime.
      • (ii) The results of a search under clause (i) shall be simultaneously disclosed to the court, the applicant, and the Government.
  • (2) The Government shall submit any test results relating to the DNA of the applicant to NDIS.
  • (3)
    • (A) If the DNA test results obtained under this section are inconclusive or show that the applicant was the source of the DNA evidence, the DNA sample of the applicant may be retained in NDIS.
    • (B) If the DNA test results obtained under this section exclude the applicant as the source of the DNA evidence, and a comparison of the DNA sample of the applicant results in a match between the DNA sample of the applicant and another offense, the Attorney General shall notify the appropriate agency and preserve the DNA sample of the applicant.
    • (C) If the DNA test results obtained under this section exclude the applicant as the source of the DNA evidence, and a comparison of the DNA sample of the applicant does not result in a match between the DNA sample of the applicant and another offense, the Attorney General shall destroy the DNA sample of the applicant and ensure that such information is not retained in NDIS if there is no other legal authority to retain the DNA sample of the applicant in NDIS.
• (f)
  • (1) If DNA test results obtained under this section are inconclusive, the court may order further testing, if appropriate, or may deny the applicant relief.
  • (2) If DNA test results obtained under this section show that the applicant was the source of the DNA evidence, the court shall—
    • (A) deny the applicant relief; and
    • (B) on motion of the Government—
      • (i) make a determination whether the applicant’s assertion of actual innocence was false, and, if the court makes such a finding, the court may hold the applicant in contempt;
      • (ii) assess against the applicant the cost of any DNA testing carried out under this section;
      • (iii) forward the finding to the Director of the Bureau of Prisons, who, upon receipt of such a finding, may deny, wholly or in part, the good conduct credit authorized under section 3632 on the basis of that finding;
      • (iv) if the applicant is subject to the jurisdiction of the United States Parole Commission, forward the finding to the Commission so that the Commission may deny parole on the basis of that finding; and
      • (v) if the DNA test results relate to a State offense, forward the finding to any appropriate State official.
  • (3) In any prosecution of an applicant under chapter 79 for false assertions or other conduct in proceedings under this section, the court, upon conviction of the applicant, shall sentence the applicant to a term of imprisonment of not less than 3 years, which shall run consecutively to any other term of imprisonment the applicant is serving.
• (g)
  • (1) Notwithstanding any law that would bar a motion under this paragraph as untimely, if DNA test results obtained under this section exclude the applicant as the source of the DNA evidence, the applicant may file a motion for a new trial or resentencing, as appropriate. The court shall establish a reasonable schedule for the applicant to file such a motion and for the Government to respond to the motion.
  • (2) The court shall grant the motion of the applicant for a new trial or resentencing, as appropriate, if the DNA test results, when considered with all other evidence in the case (regardless of whether such evidence was introduced at trial), establish by compelling evidence that a new trial would result in an acquittal of—
    • (A) in the case of a motion for a new trial, the Federal offense for which the applicant is sentenced to imprisonment or death; and
    • (B) in the case of a motion for resentencing, another Federal or State offense, if evidence of such offense was admitted during a Federal sentencing hearing and exoneration of such offense would entitle the applicant to a reduced sentence or a new sentencing proceeding.
• (h)
  • (1) Nothing in this section shall affect the circumstances under which a person may obtain DNA testing or post-conviction relief under any other law.
  • (2) Nothing in this section shall provide a basis for relief in any Federal habeas corpus proceeding.
  • (3) A motion under this section shall not be considered to be a motion under section 2255 for purposes of determining whether the motion or any other motion is a second or successive motion under section 2255.

§ 3600A. Preservation of biological evidence

• (a) Notwithstanding any other provision of law, the Government shall preserve biological evidence that was secured in the investigation or prosecution of a Federal offense, if a defendant is sentenced to imprisonment for such offense.
• (b) For purposes of this section, the term “biological evidence” means—
  • (1) a sexual assault forensic examination kit; or
  • (2) semen, blood, saliva, hair, skin tissue, or other identified biological material.
• (c) Subsection (a) shall not apply if—
  • (1) after a conviction becomes final and the defendant has exhausted all opportunities for direct review of the conviction, the defendant is notified that the biological evidence may be destroyed and the defendant does not file a motion under section 3600 within 180 days of receipt of the notice;
  • (2)
    • (A) the evidence must be returned to its rightful owner, or is of such a size, bulk, or physical character as to render retention impracticable; and
    • (B) the Government takes reasonable measures to remove and preserve portions of the material evidence sufficient to permit future DNA testing; or
  • (3) the biological evidence has already been subjected to DNA testing under section 3600 and the results included the defendant as the source of such evidence.
• (d) Nothing in this section shall preempt or supersede any statute, regulation, court order, or other provision of law that may require evidence, including biological evidence, to be preserved.
• (e) Not later than 180 days after the date of enactment of the Innocence Protection Act of 2004, the Attorney General shall promulgate regulations to implement and enforce this section, including appropriate disciplinary sanctions to ensure that employees comply with such regulations.
• (f) Whoever knowingly and intentionally destroys, alters, or tampers with biological evidence that is required to be preserved under this section with the intent to prevent that evidence from being subjected to DNA testing or prevent the production or use of that evidence in an official proceeding, shall be fined under this title, imprisoned for not more than 5 years, or both.
• (g) Nothing in this section shall provide a basis for relief in any Federal habeas corpus proceeding.