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105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    105-142
_______________________________________________________________________


 
               VETERANS' CEMETERY PROTECTION ACT OF 1997
                                _______
                                

 June 21, 1997.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


   Mr. McCollum, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 1532]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 1532) to amend title 18, United States Code, to create 
criminal penalties for theft and willful vandalism at national 
cemeteries, having considered the same, report favorably 
thereon with amendments and recommend that the bill as amended 
do pass.
  The amendments are as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Veterans' Cemetery Protection Act of 
1997''.

SEC. 2. SENTENCING FOR VANDALISM AT NATIONAL CEMETERIES.

  (a) General Rule.--Pursuant to its authority under section 994 of 
title 28, United States Code, the United States Sentencing Commission 
shall review and amend the sentencing guidelines to provide a 
sentencing enhancement for any offense against any property of a 
national cemetery--
          (1) by at least 4 levels if the offense involves the willful 
        injury to or depredation against such property, and
          (2) by at least 6 levels if the offense involves the knowing 
        theft, conversion, or unlawful sale or disposition of such 
        property.
  (b) Commission Duty.--In carrying out subsection (a), the Sentencing 
Commission shall ensure that the sentences, guidelines, and policy 
statements for offenders convicted of offenses described in subsection 
(a) are appropriately severe and reasonably consistent with other 
relevant directives and with other guidelines.
  (c) Definition.--For the purposes of this section, the term 
``national cemetery'' means a cemetery in the National Cemetery System 
established under section 2400 of title 38 and a cemetery under the 
jurisdiction of the Secretary of the Army, the Secretary of the Navy, 
the Secretary of the Air Force, or the Secretary of the Interior.

  Amend the title so as to read:

      A bill to direct the United States Sentencing Commission 
to provide sentencing enhancement for offenses against property 
at national cemeteries.

                          purpose and summary

    The purpose of H.R. 1532, the ``Veterans'' Cemetery 
Protection Act of 1997,'' is to increase penalties for offenses 
against property of a national cemetery. The bill, as 
introduced, would have amended Chapter 91 of title 18, United 
States Code, to create a new federal crime of ``vandalism and 
theft at national cemeteries.'' The new offense, which mirrored 
an already existing prohibition on destruction of federal 
property, included the potential for lengthy prison sentences, 
thereby increasing the relatively light penalties currently 
imposed on persons convicted of such offenses. In lieu of 
creating this new federal statute to address the problem of 
inadequate punishment, the Committee adopted a substitute 
amendment which directs the United States Sentencing Commission 
to increase penalties for offenses against national cemetery 
property. As amended, H.R. 1532 requires the Sentencing 
Commission to review and amend the sentencing guidelines to 
provide a sentencing enhancement for any offense against any 
property of a national cemetery: the increase shall be at least 
4 levels for wilful injury to or depredation against such 
property, and at least six levels for the knowing theft, 
conversion or unlawful sale or disposition of such property.
    The term national cemetery is defined as a cemetery within 
the ``National Cemetery System'' established under Sec. 2400 of 
title 38, United States Code. It also includes any cemetery 
under the jurisdiction of the Secretary of the Interior, or the 
Secretaries of the Army, Navy or Air Force.

                background and need for the legislation

    There are currently 114 cemeteries within the National 
Cemetery System (NCS), operated by the Department of Veterans 
Affairs. 1 The NCS maintains the grounds, structures 
and roads of these national shrines. In 1996, the NCS serviced 
more than two million grave sites, and experienced an average 
increase rate of 152 new grave sites daily. Moreover, the NCS 
expects the cumulative number of graves maintained to increase 
from 2.2 million in 1997 to 2.37 million in 2000. The long-term 
projections estimate more than three million graves by the year 
2010.
---------------------------------------------------------------------------
    \1\ Since cemeteries within the National Cemetery System are 
operated and maintained by the Department of Veterans Affairs, they are 
considered federal property. As the Justice Department noted in 
comments regarding H.R. 1532, ``we believe that the federal control of 
the cemeteries to which this legislation applies establishes an 
adequate federal nexus to support federal jurisdiction.'' Letter from 
Andrew Fois, Assistant Attorney General, Department of Justice, to Bill 
McCollum, Chairman, Subcommittee on Crime, Committee on the Judiciary 
(June 11, 1997) (attached in Agency Views).
---------------------------------------------------------------------------
    State and local authorities play an important role in 
assisting the NCS with maintaining order and control over such 
a vast amount of grave sites and property. Most crimes at 
national cemeteries are minor, and are prosecuted pursuant to 
the concurrent jurisdiction of State or local law enforcement 
agencies. Local investigation and prosecution may be preferred 
for a myriad of reasons: perpetrators may have a history of 
similar offenses committed locally, and thus would be familiar 
to local law enforcement; local police will likely have a 
quicker response time; and perpetrators may be in violation of 
parole for State convictions, which could offer additional 
charges for prosecutors. As the Justice Department noted in 
comments to H.R. 1532, ``Even when federal criminal 
jurisdiction exists, federal authorities should be expected to 
defer to local investigation and prosecution if certain 
conditions favor state or local criminal justice response.''
    There are, however, serious criminal incidents against 
national cemetery property which clearly justify a federal 
response. Between January 1, 1995 and May 31, 1997, there were 
twenty-one acts of vandalism against national cemetery property 
which resulted in damages over $1,000. 2
---------------------------------------------------------------------------
    \2\ The Committee also notes the tragic murder of a National 
Cemetery System caretaker on May 5, 1997. This crime is being 
investigated by both federal and State authorities.
---------------------------------------------------------------------------
    One of the most egregious acts was an attack against the 
National Memorial Cemetery of the Pacific in Honolulu, Hawaii, 
on April 20, 1997. Vandals defaced all twenty-two walls of the 
Columbarium Courts at the cemetery with red-painted racist and 
profane statements. The Columbaria contained the remains of 
thousands of veterans, spouses and dependants. The vandals also 
desecrated the chapel, grave markers and the Courts of the 
Missing, which are tablets inscribed with the names of those 
missing-in-action. Repair costs are currently at $12,800 and 
are expected to rise. 3 Other outrageous incidents 
include theft of tools and several hundred flag poles from 
Calverton National Cemetery--replacement costs were more than 
$18,000. At Wood National Cemetery, vandals stole snow blowers 
and set fire to the property--repairs cost approximately 
$25,000. At Culpeper National Cemetery, headstones, roadways 
and shelters on the cemetery property were spray painted with 
swastikas and satanic symbols. These are just a few examples of 
crimes where federal action is not only proper, it is critical.
---------------------------------------------------------------------------
    \3\  See, Report on Vandalism At National Cemeteries From January 
1, 1995 to May 31, 1997 (attached in Agency Views).
---------------------------------------------------------------------------
    Attacks on National Cemeteries assault America's heritage, 
and the courageous sacrifice of its citizens. Such 
unconscionable acts insult the memories of the brave men and 
women who fought to protect the freedoms cherished by all 
Americans. The federal response to such cowardly criminal acts 
should be swift and strong.
    H.R. 1532, the ``Veterans'' Cemetery Protection Act,'' 
ensures that vandals who deface and destroy the hallowed ground 
of a National Cemetery will be appropriately punished. By 
directing the Sentencing Commission to increase penalties for 
such crimes, thieves and vandals will learn that the United 
States does not tolerate attacks against national symbols of 
peace and courage. The Committee expects the Sentencing 
Commission to ensure that the guidelines and policy statements 
for convicted offenders are reasonably consistent with other 
directives, avoid duplicative punishment for substantially 
similar offenses and take into account any aggravating or 
mitigating factors.
    This legislation is supported by the Non Commissioned 
Officers Association (NCOA), the Enlisted Association of the 
National Guard of the United States (EANGUS), the Fleet Reserve 
Association, and The American Legion.

                                HEARINGS

    No hearings were held on H.R. 1532.

                        COMMITTEE CONSIDERATION

    On June 12, 1997, the Subcommittee on Crime met in open 
session and ordered reported the bill H.R. 1532, as amended, by 
voice vote, a quorum being present. On June 18, 1997, the 
Committee met in open session and ordered reported favorably 
the bill H.R. 1532, without amendment, by voice vote, a quorum 
being present.

                         VOTE OF THE COMMITTEE

    There were no recorded votes.

                      COMMITTEE OVERSIGHT FINDINGS

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT FINDINGS

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               NEW BUDGET AUTHORITY AND TAX EXPENDITURES

    Clause 2(l)(3)(B) of House rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 1532, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974.

H.R. 1532--Veterans' Cemetery Protection Act of 1997

    CBO estimates that enacting H.R. 1532 would result in 
additional costs to the federal government to accommodate 
prisoners for longer periods of time. We estimate that the cost 
of enacting this bill would be less than $500,000 annually for 
fiscal years 1997 through 2002, subject to the availability of 
appropriated funds. Enacting H.R. 1532 could lead to an 
increase in direct spending and receipts; therefore, pay-as-
you-go procedures would apply. However, CBO estimates that any 
increases in direct spending and receipts would likely be 
significantly less than $500,000 annually.
    H.R. 1532 would direct the United States Sentencing 
Commission to increase penalties recommended for offenses 
against property at national cemeteries. The commission has 
assigned each federal crime a base offense level, numbered from 
1 to 43, which corresponds to a certain recommended length of 
imprisonment, with higher numbers reflecting longer prison 
terms. The bill would direct the commission to amend the 
federal sentencing guidelines for property offenses at national 
cemeteries to increase the base offense level by at least 4 
levels if the offense involves vandalism of national cemetery 
property and at least 6 levels if the offense involves theft of 
national cemetery property.
    According to the U.S. Sentencing Commission, the bill's 
provisions would affect fewer than 100 individuals per year. 
Enacting H.R. 1532 would increase the average sentence by about 
9 months. Assuming no significant change in the number of 
annual convictions, CBO estimates that additional costs of 
longer prison sentences would be less than $500,000 a year for 
at least the next five fiscal years, subject to the 
availability of appropriated funds.
    Because the maximum fine for an offense increases as the 
offense level increases, the bill's sentencing enhancements 
also could result in increased criminal fines. Therefore, 
enacting H.R. 1532 could increase governmental receipts through 
greater fine collections. However, CBO estimates that any such 
increase would be significantly less than $500,000 annually. 
Criminal fines would be deposited in the Crime Victims Fund and 
would be spent the following year. Thus, direct spending from 
the fund would match the increase in revenues with a one-year 
lag.
    H.R. 1532 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act of 
1995. While this bill directs the United States Sentencing 
Commission to provide sentencing enhancements for vandalism 
committed at national cemeteries and prosecuted under federal 
law, state and local authority would remain unchanged.
    The CBO staff contacts for this estimate are Kristen Layman 
(for federal costs), and Leo Lex (for the state and local 
impact). This estimate was approved by James R. Horney for Paul 
N. Van de Water, Assistant Director for Budget Analysis.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Pursuant to rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8 of the Constitution.

                      SECTION-BY-SECTION ANALYSIS

    Section 1. Short Title. This section states that the short 
title of the bill is the ``Veterans' Cemetery Protection Act of 
1997.''
    Sec. 2. Sentencing For Vandalism At National Cemeteries. 
This section directs the U.S. Sentencing Commission to review 
and amend the sentencing guidelines to provide a sentencing 
enhancement for any offense against any property of a national 
cemetery--by at least 4 levels if the offense involves the 
willful injury to or depredation against such property, and by 
at least 6 levels if the offense involves the knowing theft, 
conversion, or unlawful sale or disposition of such property. 
Rather than create a new federal crime, this instruction to the 
Sentencing Commission ensures an effective and direct response 
to criminal acts against national cemetery property.
    This section also instructs the Sentencing Commission to 
ensure that the sentences, guidelines and policy statements for 
convicted offenders are appropriately severe and reasonably 
consistent with other directives. The Committee expects the 
Sentencing Commission to implement the directives in a manner 
which fulfills the purposes of sentencing as set forth in 
Sec. 3553(a)(2) of title 18, United States Code.
    Finally, this section defines a ``national cemetery'' as a 
cemetery within the ``National Cemetery System,'' established 
under Sec. 2400 of title 38, United States Code. The term 
``national cemetery'' also includes cemeteries under the 
direction of the Secretary of the Interior, or the Secretaries 
of the Army, Navy or Air Force. This language makes clear that 
H.R. 1532 only applies to federal lands.

                              AGENCY VIEWS

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                     Washington, DC, June 11, 1997.
Hon. Bill McCollum,
Chairman, Subcommittee on Crime, Committee on the Judiciary, House of 
        Representatives, Washington, DC.
    Dear Mr. Chairman: The purpose of this letter is to provide 
you with the views of the Department of Justice concerning 
various law enforcement related legislative proposals now under 
consideration by the Subcommittee. We note that certain of 
these proposals are similar or identical to bills on which the 
Department submitted written comments in the 104th Congress.

H.R. 1532

    H.R. 1532, the ``Veterans' Cemetery Protection Act of 
1997,'' would create in title 18, United States Code, a new 
section 1865, ``Vandalism and theft at national cemeteries,'' 
at the conclusion of chapter 91 (Public Lands). The proposed 
new section, which appears to be modeled on 18 U.S.C. 
Sec. 1361, ``Government property or contracts,'' would punish 
whoever ``willfully injures or commits any depredation against 
any property of a national cemetery, or attempts to commit'' 
such offenses. Stealing or knowingly converting to personal use 
any property of a national cemetery, receiving, concealing, or 
retaining such property with the intent of converting that 
property for personal gain with knowledge of its stolen nature, 
and selling, conveying, or disposing of such property without 
authorization are also prohibited.
    The Department of Justice supports the goal of H.R. 1532 to 
deter vandalism and theft at national cemeteries, though we 
recommend some modification of the proposed sanctions in the 
interest of consistency with existing theft of property offense 
penalties, and certain technical revisions, as described below, 
to clarify the coverage of ``attempt'' offenses.
    Jurisdiction. Since ``national cemeteries'' as defined 
within the draft bill are United States property, or are on 
land over which there is federal criminal jurisdiction, willful 
damage or depredation of such facilities and theft of 
government property from such facilities are generally already 
subject to federal prosecution pursuant to 18 U.S.C. 
Sec. Sec. 641 (theft of government property), 1361 (destruction 
of government property), 1363 (destruction of property within 
the special maritime and territorial jurisdiction of the United 
States), or 13 (the Assimilative Crimes Act). While past 
service in the United States armed forces of the veterans 
buried at such facilities might not alone constitute a 
sufficient constitutional basis for the assertion of federal 
jurisdiction, we believe that the federal control of the 
cemeteries to which this legislation applies establishes an 
adequate federal nexus to support federal jurisdiction.
    ``Attempt'' Coverage. Although the coverage of attempted 
offenses follows the approach of 18 U.S.C. Sec. 1361 in 
discussing the value of ``attempted damage,'' we believe that 
the approach of 18 U.S.C. Sec. 1366(a), in addressing damage 
which ``in fact exceeds [the designated amount] or would if the 
attempted offense had been completed'' is more precise, and 
thus preferable. Accordingly, we recommend that ``damage or 
attempted damage to such property exceeds the sum of $1000'' in 
(a)(1) of the bill be replaced with ``actual damage exceeds 
$1000 or would have exceeded $1000 if the attempted offense had 
been completed'' and that (a)(2) be revised in a consistent 
fashion.
    Sanctions. The theft and related receipt, concealment, and 
possession components of the bill provide a maximum sanction of 
15 years' incarceration, regardless of the value of the 
property involved. This sanction exceeds 18 U.S.C. Sec. 641's 
maximum sentences of 10 years' incarceration for property worth 
more than $1000, and of one year's incarceration for offenses 
involving property worth $1000 or less. We recommend that the 
maximum sentences provided in H.R. 1532 be made consistent with 
those in section 641 to avoid creating a distinction in which 
offenses involving national cemetery property are subject to 
more severe penalties than offenses involving most other 
Federal Government property, including theft or destruction of 
our nation's most important historical papers and monuments.
    Concurrent Jurisdiction Enforcement. Although the 
Department does not oppose the emphasis upon federal criminal 
justice response which H.R. 1532 seeks to establish for 
desecration and other crimes against graves at national 
cemeteries, it is important to recognize the vital continuing 
role of state and local law enforcement agencies in responding 
to such criminal conduct. State and local criminal laws also 
apply to offenses within the scope of H.R. 1532 if those 
offenses are committed at facilities subject to concurrent 
jurisdiction or if those offenses involve prohibited receipt, 
concealment, sale, or other disposal of property stolen from a 
national cemetery to the extent that such conduct occurs beyond 
federal facilities.
    Even when federal criminal jurisdiction exists, federal 
authorities should be expected to defer to local investigation 
and prosecution if certain conditions favor state or local 
criminal justice response. For example, there are many more 
state and local police than federal agents, and thus the local 
law enforcement response to such incidents may be faster, and 
involve a greater range of available resources in the immediate 
vicinity. Local police are often more knowledgeable about the 
activities of the possible perpetrators of such vandalism 
offenses, since those perpetrators may have previous local 
criminal justice contacts involving similar or other criminal 
conduct. A perpetrator may even have probationary or other 
judicially imposed status in the state or local criminal 
justice system, which status will offer additional and more 
prompt sanctions when raised in conjunction with new charges.
          * * * * * * *
    Thank you for the opportunity to comment on this matter. 
The Office of Management and Budget has advised that there is 
no objection to this report from the standpoint of the 
Administration's program. Please let us know if we may be of 
additional assistance in connection with this or any other 
matter.
            Sincerely,
                                               Andrew Fois,
                                        Assistant Attorney General.

              REPORT ON VANDALISM/CRIME AT NATIONAL CEMETERIES FROM JANUARY 1, 1995 TO MAY 31, 1997             
----------------------------------------------------------------------------------------------------------------
                                                         Brief description (only                                
  Date of vandalism    Location (NC=National Cemetery)     damages over $1000)          Estimated cost \1\      
----------------------------------------------------------------------------------------------------------------
Feb--95..............  Eagle Point NC, OR.............  Theft of window sprayer   $1,025.                       
                                                         and turf.                                              
Mar--95..............  Calverton NC, NY...............  Break-in/theft: Ford      Estimated $35,000 (recovered  
                                                         tractor, Dumptruck and    next day with the help of    
                                                         trailer.                  community and police).       
Oct--95..............  Los Angeles NC, CA.............  Break-in and theft......  $5,000.                       
Oct--95..............  Springfield NC, MO.............  College student removed   $1,000.                       
                                                         the U.S. flag from the                                 
                                                         staff, draped it around                                
                                                         him, ran down street,                                  
                                                         broke a flag light in                                  
                                                         the process.                                           
Nov--95..............  Calverton NC, NY...............  Chain on gate cut, chain  $1,400.                       
                                                         link fence cut,                                        
                                                         aluminum floral sign                                   
                                                         posts stolen, aluminum                                 
                                                         ramp stolen.                                           
Dec--95..............  Wood NC, WI....................  Quonset hut burned, snow  $25,000.                      
                                                         blowers stolen.                                        
Mar--96..............  Eagle Point NC, OR.............  Vandalism and theft of    $2,050.                       
                                                         pressure washer, garage                                
                                                         door damage, flags                                     
                                                         stolen, chemicals,                                     
                                                         battery and ladder.                                    
Jun--96..............  Riverside NC, CA...............  428 flat markers taken;   $6,825.                       
                                                         300 were taken from the                                
                                                         warehouse and 128 from                                 
                                                         graves, 128 were                                       
                                                         replaced.                                              
Jul--96..............  Culpeper NC, NY................  Six headstones,           $1,532.                       
                                                         stonewall roadway and                                  
                                                         interment shelter spray                                
                                                         painted (swastika and                                  
                                                         satanic symbols).                                      
Jul--96..............  Wood NC, WI....................  Fire damage vase          $1,000.                       
                                                         container box, water                                   
                                                         gazebo, trees & shrubs.                                
Feb--97..............  Fort Smith NC, AR..............  Trailer containing        $2,500 approximate.           
                                                         cemetery equipment was                                 
                                                         broken into and string                                 
                                                         trimmers were stolen.                                  
Feb--97..............  Chattanooga NC, TN.............  Vehicle driven into       $2,300 repair.                
                                                         fence break ins.                                       
Mar--97..............  Florida NC, FL.................  Three vehicles broken     $2,400 repair.                
                                                         into causing damage.                                   
Mar--97..............  Calverton NC, NY...............  Service area broken       $3,200.                       
                                                         into, eleven padlocks                                  
                                                         cut, two cushman                                       
                                                         trucksters damaged, one                                
                                                         electric hoist stolen.                                 
Mar--97..............  Calverton NC, NY...............  Three hundred & forty     $18,374.                      
                                                         flag poles stolen,                                     
                                                         various tools stolen.                                  
Mar--97..............  Calverton NC, NY...............  Five hundred bronze       $3,800.                       
                                                         plaques stolen.                                        
Apr--97..............  Wood NC, WI....................  Nineteen headstones       $1,426.                       
                                                         painted.                                               
Apr--97..............  Marietta NC, GA................  Five headstones were      $1,295.                       
                                                         tipped over and                                        
                                                         damaged, two headstones                                
                                                         were spray painted--all                                
                                                         replaced.                                              
Apr--97..............  National Memorial Cemetery of    Vandalism...............  $12,837.00 to date (more will 
                        the Pacific NC, HI.                                        be expended).                
May--97..............  Golden Gate NC, CA.............  Vandalism; flags stolen   $1,400.                       
                                                         and halyard cut.                                       
May--97..............  Beverly NC, NJ.................  Flag poles bent to        $4,358.                       
                                                         ground, shrubs broken,                                 
                                                         four benches pulled out                                
                                                         of concrete base.                                      
----------------------------------------------------------------------------------------------------------------
\1\ Only Cemeteries with damages over $1,000 included in listing.                                               
\2\ March 95 theft at Calverton not included in total since stolen materials were recovered.                    
                                                                                                                
Summary of Vandalism/crime at National Cemeteries:                                                              
1. 21 incidents at 114 National Cemeteries with over $1,000 in damages totaling $98,721 (Incidents include theft
  of equipment, theft of markers, headstones, flags and flag poles, miscellaneous vandalism and damage to       
  facilities, graffiti)                                                                                         
2. 56 plus incidents at 114 National Cemeteries with under $1,000 in damages totaling $15,186 (Incidents include
  vandalism, theft, damage to Government property including buildings, fences, vehicles, headstones, markers,   
  flag poles and land, graffiti)                                                                                
3. The above report does not include an estimate of personal property (purses, etc.) stolen from private        
  vehicles within national Cemeteries.                                                                          
4. 3 incidents of non-vandalism/crime at National Cemeteries include:                                           
a. Jan. 97 Richmond NC, VA--Bank robbery across street from Lodge--National Cemetery declared crime scene.      
b. Apr. 97 Finns Point NC, NJ--Cemetery caretaker killed while closing cemetery at end of day.                  
c. Feb. 97 Baton Rouge NC, LA--Kidnapped victim brought to National Cemetery, raped on premises and left.