[Congressional Record Volume 142, Number 62 (Tuesday, May 7, 1996)]
[House]
[Pages H4494-H4500]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  REGARDING WITNESS RETALIATION, WITNESS TAMPERING, AND JURY TAMPERING

  The SPEAKER pro tempore (Mr. Hobson). Pursuant to House Resolution 
422 and rule XXIII, the Chair declares the House in the Committee of 
the Whole House on the State of the Union for the consideration of the 
bill, H.R. 3120.

                              {time}  2205


                     in the committee of the whole

  Accordingly the House resolved itself into the Committee of the Whole 
House on the State of the Union for the consideration of the bill (H.R. 
3120) to amend title 18, United States Code, with respect to witness 
retaliation, witness tampering, and jury tampering, with Mr. LaTourette 
in the chair.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to the rule, the bill is considered 
as having been read the first time.
  Under the rules the gentleman from Florida [Mr. McCollum] and the 
gentleman from Michigan [Mr. Conyers] will each be recognized for 30 
minutes.
  The Chair recognizes the gentleman from Florida [Mr. McCollum].
  Mr. McCOLLUM. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, in recent years, criminal sentences have increased in 
response to the scourge of drugs and violent crime, yet the penalties 
for retaliating against or tampering with witnesses, jurors, and court 
officials in criminal cases have remained unchanged. Some Federal and 
State prosecutors blame witness intimidation and juror tampering for 
the falling conviction rates in some parts of the country. Indeed, 
under current law, a defendant facing a Federal criminal sentence of 10 
years or more may believe he or she is better off trying to influence 
the outcome of the trial by intimidating a witness, or tampering with a 
juror or court officer, because the maximum punishment for such crime 
is generally 10 years in prison.

[[Page H4495]]

  In order to deter criminals and their associates from attempting to 
illegally influence the outcome of a criminal trial, H.R. 3120, 
introduced by the gentleman from Pennsylvania [Mr. Fox], increases the 
penalty for witness intimidation, and tampering with a juror or court 
official, so that it equals the maximum penalty of incarceration for 
the crime being tried in the case. As a result, criminals will no 
longer be tempted to illegally influence their trial in the hope that, 
even if caught, their punishment for the act of intimidation or 
tampering will be less than what they would have faced had they been 
convicted on the original charges. Specifically, this bill makes three 
specific amendments to the Federal criminal law.
  First, this bill amends the title 18 provisions relating to 
retaliation against witnesses, victims, or informants. Current law 
provides for a maximum penalty of 10 years imprisonment for persons 
convicted of this crime. This bill will amend that law to provide that 
if the retaliation occurred because of attendance at a criminal trial, 
the maximum punishment will be the higher of that in the present 
statute, or the maximum term of imprisonment for any offense charged in 
the criminal case to which the retaliation related.
  Second, this bill would amend the title 18 provision relating to 
tampering with a witness, victim, or informant. Current law provides 
for a maximum penalty of 10 years if the act involves intimidation or 
the threat of physical force--not involving death--or 1 year if the act 
constitutes ``harassment.'' This bill would provide that if the offense 
occurred in connection with a criminal trial, the maximum punishment 
will be the higher of that provided by the present statute or the 
maximum term of imprisonment for any offense charged in the criminal 
case in question.
  Finally, this bill would amend the title 18 provision relating to 
jury tampering and influencing or injuring court officials. Under 
current law the maximum punishment is 10 years imprisonment, unless the 
tampering or influence involved killing a person, in which case the 
punishment is death. This bill provides that if the offense occurred in 
connection with a criminal trial and involved the use of physical force 
or threat of physical force, the maximum punishment will be the higher 
of that provided by the present statute or the maximum term of 
imprisonment for any offense charged in the criminal case in question.
  Mr. Chairman, the integrity of the criminal justice system is vital 
to public safety. Defendants must believe that any attempt to affect 
the rule of law by undermining the judicial process will be punished 
severely. This bill will help deter acts which would undermine the 
workings of the criminal justice system.
  Mr. Chairman, I reserve the balance of my time.
  Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume, 
but merely to initiate a discussion around this measure by pointing out 
that we have a rather large-size problem about drafting.
  Mr. Chairman, this bill carries with is some incredible possibilities 
in that those who might interfere with witnesses could be subject to 
the same underlying penalties of a defendant, for example, the death 
penalty, but the defendant might be acquitted, and someone who was 
guilty of jury tampering could face the death penalty.
  What I am saying, Mr. Chairman, is that if we decide to increase the 
penalties for witness retaliation, jury tampering, it should be done on 
a much more rational basis than the one that has been dumped into this 
measure. I think we really may want to examine this measure much more 
closely than we have at the committee level.
  Mr. Chairman, I yield such time as he may consume to the gentleman 
from North Carolina [Mr. Watt].
  Mr. WATT of North Carolina. Mr. Chairman, I thank the gentleman for 
yielding time to me.
  Mr. Chairman, again, this is one of those bills that the general 
purpose one finds hard to argue with but, again, the drafting leaves 
some of us shuddering at the potential consequences of where we might 
end up. I want to point out two or three different concerns that we 
have with the bill. I had considered the possibility of trying to offer 
some amendments to address some of these items, but given what happened 
on the last bill, I do not want to tax the patience of my colleagues, 
so I just want to point these things out so that Members will know some 
of the concerns about the bill.
  First of all, Mr. Chairman, I think the bill is unnecessary. There 
are underlying statutes which already provide severe penalties for 
witness or jury tampering and retaliation. Section 1503 provides for a 
penalty of up to 20 years and a fine for jury tampering. Section 1512 
provides for the death penalty for murdering a witness to prevent his 
or her testimony at trial. Section 1513 provides the death penalty for 
murdering a witness in retaliation for his or her testimony at trial. 
So there are already severe penalties in the law for jury tampering and 
witness tampering, and for retaliation.
  However, the more troubling aspect of this bill is that it would hold 
a violate, or a person engaged in jury tampering or retaliation, liable 
for a crime that he or she had absolutely nothing to do with and no 
connection to, and it would do it in a way that really fails to 
distinguish between people who engage in serious misconduct and people 
who do not engage in serious misconduct.

                              {time}  2215

  This is not your typical co-conspirator kind of situation. If you are 
involved in a conspiracy, you are already a part of the underlying 
crime.
  The link here is that we are going to give you the same penalty that 
is charged in the underlying crime if you try to get involved with a 
jury or a witness in that case, and sometimes that just may not be 
justified.
  Mr. Chairman, let me kind of play out the example that is an extreme 
example but a realistic example of what could happen under this bill.
  Let us assume that we have a criminal case in which there are two 
defendants. One of those defendants is charged with some small offense. 
The second defendant is charged with a very, very serious offense. Both 
of these defendants may be tried together at the trial of the 
underlying offenses. If I, having no connection with either the minor 
offense or the major offense, decide that I would like to help my 
brother who is charged with the minor offense by trying to encourage a 
witness not to testify against my brother who is charged with the minor 
offense, or if I tamper with the jury to help my brother who is charged 
with the minor offense, then I end up being subjected to the same 
penalties as if I had tampered with the jury or tried to influence a 
witness in connections with the major offense.
  So, Mr. Chairman, there is absolutely no distinction in this bill for 
very different kinds of conduct for which there should be distinctions 
drawn.
  If I engage in jury tampering or witness tampering by sitting in the 
courtroom and casting a dirty or intimidating look at somebody, the 
prosecutor has the discretion to charge me with an offense that could 
subject me to life imprisonment, I think actually would subject me to 
the death penalty, even though the gentleman from Florida [Mr. 
McCollum] denies that this bill is intended to do that.
  So there are serious drafting problems in this bill, and we tried to 
address those in the committee. We tried to offer amendments that would 
have made the kinds of distinctions between somebody who is tampering 
with a jury or tampering with a witness in a case which is a minor 
offense as opposed to someone who is doing the same thing in a case 
that might justify the death penalty or life imprisonment. My 
colleagues on the other side say, ``Well, we don't care about that. We 
just want to be hard on crime. We want to have that reputation for 
being hard on crime. This is a tough year.''
  So we are back here with one of these bills that superficially is a 
good idea but is drawn in such a way and so broadly that it ceases to 
be rational in its potential application. Apparently we just do not 
care.
  Mr. Chairman, my colleagues on the committee rejected amendment after 
amendment that would have made this a better bill, that would have 
allowed there to be bipartisan support, or strong support for this 
bill. They simply did not care.
  So, I cannot let this go without expressing severe reservations I 
have

[[Page H4496]]

about this bill, not the general underlying intent of the bill, which I 
think is good; but its failure to discriminate between bad actors and 
worse actors and not-so-bad actors is contrary to sound public policy. 
My colleagues need to be aware of that.
  Mr. McCOLLUM. Mr. Chairman, I yield myself 2 minutes.
  I simply want to respond to what I know are genuine concerns my 
colleagues have expressed about what the language of this bill is and 
what it does, but I believe that their concerns are not with merit. The 
bill itself has explicit language in it that any reasonable 
interpretation would see that it does not contain a chance whatsoever, 
that anybody could get the death penalty because they violated this 
particular bill.
  Mr. Chairman, what it says is if the retaliation, or if the offense 
occurred because of attendance at or testimony in a criminal case, the 
maximum term of imprisonment which may be imposed for the offense under 
this section shall be the higher of that otherwise provided by law or 
the maximum term that could have been imposed for any offense charged 
in such case. And that is repeated three times in the bill for the 
three different parts of the criminal code which this applies to, that 
exact same language.
  We are talking about the maximum term of imprisonment. That is the 
most, the greatest amount of punishment that anybody could receive is 
the maximum term of imprisonment that the underlying crime would have 
imposed if the person who was on trial at the time the jury tampering, 
the witness tampering had occurred had been convicted and been 
sentenced. That does not contemplate the death penalty.
  Mr. Chairman, I might also add that I believe the severity of this 
punishment is warranted. We are not convicting somebody of the 
underlying crime when they are tampering. They are indeed being 
convicted of those existing Federal crimes that have been on the books 
for many years, for witness tampering and jury tampering and 
intimidation. We need to send a message that, when you do that kind of 
crime, you are going to get punished for that crime, for the jury 
tampering and the witness tampering in a very severe manner.
  We are simply using what the gentleman from Pennsylvania [Mr. Fox] 
has creatively come up with, and that is the maximum punishment for the 
underlying crime as the crime for these crimes. But there is no new 
crime somebody is being convicted of.
  Mr. Chairman, I yield such time as he may consume to the gentleman 
from Pennsylvania [Mr. Fox], who is the author of this bill.
  Mr. FOX of Pennsylvania. Mr. Chairman, I rise today to speak on 
behalf of the bill, H.R. 3120, which addresses in my legislation three 
of the important issues facing the American judicial system, jury and 
witness tampering and witness retaliation.
  An overlooked shortcoming of our criminal statutes has allowed these 
three offenses to create opportunities and incentives for criminals in 
this country. I believe the legislation will close this loophole, 
provide prosecutors with additional leverage in combating criminals, 
and ensure that justice in our courts may not be impeded by additional 
criminal activity.
  Currently, tampering in a Federal court can bring sentences which may 
be significantly less than those which come with serious crimes such as 
first and second degree murder, kidnaping, air piracy and drug 
trafficking. Over the years, as Federal penalties for these crimes have 
increased, the penalties for tampering with a witness or jury have 
failed to keep pace. This discrepancy has thereby created an incentive 
for individuals standing trial to attempt to intimidate witnesses and 
jurors or to offer a bribe.
  The need for the bill, Mr. Chairman, was outlined well in a Wall 
Street Journal story in January of 1995 where it detailed the 
proliferation of tampering and intimidation cases throughout the 
country. Take, for example the case of Newark, New Jersey, in 1988 
where 20 defendants stood trial on charges of racketeering in 
connection with their alleged membership in a well-known crime family. 
All 20 defendants were acquitted. However, in 1994 two of the 
defendants pleaded guilty to jury tampering after co-defendants in a 
separate case turned them in. Instead of being able to apply a sentence 
equal to that of the original crime, those two defendants benefited 
from the present system and faced lesser sentences for the jury 
tampering offense. What is worse than a case like this is that the most 
successful tampering goes unnoticed, or at least unprosecuted, leading 
to the acquittals of dangerous criminals, high number of unsolved 
cases, and a perceived failure of our own justice system.
  The bill before Members today is the combined version of three bills 
I had previously introduced in H.R. 1143, 1144 and 1145. Those three 
bills had garnered broad bipartisan support including the chairman and 
ranking member of the full Judiciary Committee as well as the chairman 
and ranking member of the Subcommittee on Crime. We appreciate the 
gentleman from Michigan who was an original cosponsor of those pieces 
of legislation and a special thanks of course to the gentleman from 
Florida [Mr. McCollum] who has shepherded the legislation and given us 
a great deal of advice on the bill as it relates to his own experience 
in working with crime prevention and in making sure we move legislation 
like this forward.
  I thank those four of my distinguished colleagues as well as the 
other cosponsors of this legislation and the committee staff for their 
support and diligence in working the bill to the floor. I am certain 
that by equating the penalties for these crimes with the potential 
sentences for other Federal crimes, this legislation creates a 
disincentive for those facing stiff sentences for egregious offenses to 
tamper with a jury or intimidate a witness.
  As a former assistant district attorney in Montgomery County, 
Pennsylvania, I have experienced firsthand the frustration that is 
faced by citizens and members of the criminal justice system when cases 
go unsolved because witnesses will not step forward. Recently in my own 
home district a burglary suspect was arrested after returning a car to 
a rental agency. While in the country correctional facility, the 
suspect placed 15 threatening phone calls to a rental agency employee 
to keep her from testifying against him. Police said that the suspect 
made the calls through a third party who set up a conference call. The 
warden is now correcting the procedural problem of phone use but we as 
legislators need to do what we can to eliminate the incentive to 
tamper.

  I empathize with distinguished prosecutors such as Montgomery County 
District Attorney Michael Marino and District Attorney Lynne Abraham of 
Philadelphia who daily face the challenges posed by both jury and 
witness tampering and witness retaliation. Both have endorsed this 
legislation as well as the National District Attorneys Association and 
the Pennsylvania District Attorneys Association. I also should note, 
Mr. Chairman, that the Department of Justice has stated its support for 
this penalty enhancement which, in their words, ``is clearly and 
rationally designed to deter the commission of this type of offense'' 
and being appropriate, is not overly broad.
  At the State level we believe the penalties for jury tampering can 
vary state to state, from less than a year up to 7 years. District 
Attorney Abraham recently blamed witness intimidation as a chief cause 
of the high number of unsolved homicides in Philadelphia. Twenty years 
ago Philadelphia police solved 86 percent of homicides but last year 
that number was down to 58 percent. District Attorney Abraham has 
blamed the trend primarily on a growing lack of cooperation from 
witnesses fearing retribution from criminals. I am particularly hopeful 
that the legislation before members today will set a standard for the 
States to follow and lead to greater uniformity nationwide for 
tampering penalties, increased security for jurors and witnesses, and a 
more effective system of justice for all.
  In that light I am speaking out today to each of the States to 
reexamine their sentences for tampering offenses.
  Mr. Chairman, I urge that the House pass this corrective legislation 
to protect witnesses, jurors, victims and the justice system that we so 
much cherish.
  Mr. CONYERS. Mr. Chairman, I yield such time as he may consume to the 
gentleman from California [Mr. Becerra].

[[Page H4497]]

  Mr. BECERRA. I thank the gentleman for yielding time.
  Mr. Chairman, I believe the gentleman from North Carolina stated very 
eloquently the problems with this particular legislation. Let me again 
begin by stating, as I believe I did in the previous bill, that the 
idea here behind this legislation is a good one. I support the stated 
objective of H.R. 3120. If someone, it can be proven, violated the law 
by tampering with a juror or a witness in order to try to help out a 
defendant, that person should be penalized. If the penalties that we 
have under current law for the specific crime of jury tampering or 
witness tampering do not seem to be commensurate to the type of offense 
that may have been committed in tampering and perhaps helping someone 
get off without penalty, then we should consider extending the 
violation of law and the penalties thereby to that person who tampered 
with a juror or with a witness. Where this legislation loses me is in 
its scope. It overreaches. We had the discussion in committee, and I 
respect the gentleman from Florida's position that it does not, but it 
does in two respects.

                              {time}  2230

  First, I would disagree with the gentleman from Florida that in fact 
the language in the bill is clear that no one could face the death 
penalty. I think it is very ambiguous as to whether someone could face 
the death penalty under this legislation for having tampered with a 
juror or a witness.
  In fact, it probably can be cured fairly readily with some language 
that made it clear that when we have language that talks about the 
maximum term that could have been imposed for any offense charged in 
such case, if it were to be clear that it would include any term other 
than the death penalty, that would make it very clear that the previous 
language where it talks about the maximum term of imprisonment is meant 
to exclude the death penalty.
  But that is not my biggest concern, because it is the fact that you 
can get to that stage which concerns me, and that is what I would like 
to focus the rest of my remarks with regard to this legislation on.
  It seems to me that in trying to penalize someone for having done the 
misdeed, and it is a terrible misdeed, of trying to help someone get 
off in a prosecution by tampering with a witness, threatening a juror, 
or anything like that, that we go beyond that sensibility that we try 
to maintain in our judicial system, and is some cases we mock justice 
by saying that someone who may have tampered with a juror or with a 
witness in an effort to try to help someone in a low-level offense that 
may be related in a case with a number of other offenses, including 
very high level offenses, for example, first degree murder, that that 
individual that tampered with the juror, and, remember, tampering could 
be offering an incentive to someone, a juror or a witness, that that 
person all of a sudden can face the same penalty that that criminal 
defendant that may have killed five people is facing, of either the 
death penalty or imprisonment without the possibility of parole.
  Mr. Chairman, let me see if I can try to come up with an example that 
makes it a little bit clearer what I am trying to say. We tried to do 
this in committee, and I know to some degree folks get lost.
  But if you have an individual, let us call him Joe, involved in a 
crime, let us say he is out there with some friends, and his friends 
tell him to come along, they are going to get some cash. They need some 
money, so they are going to stop by and rob a convenience store. Joe 
has no idea that his friends may do anything more than just try to get 
some quick cash.
  Say one of Joe's friends does the worst thing of all and kills the 
guy in the convenience store working there, the clerk. That individual 
who did the shooting is now subject to first degree murder charges, 
and, because Joe may have been, let us say, in the car driving at the 
time, waiting for these guys to come back out, he, as a result of the 
felony murder, is also subject to up to the death penalty for that 
first degree murder.
  That is rightfully so. He participated, maybe not totally knowingly, 
but he participated in a crime that could have and did in fact, lead to 
the death of an individual.
  So, now Joe goes home and he tells his mother he has to flee the law 
because he just did a bad thing. He does not necessarily explain to his 
mother what he did. Let us say his mother tries to harbor him for a few 
days. Now she has abetted a first degree murder defendant. She can be 
charged with having abetted a criminal defendant.
  Now, let us say all these folks get charged in the same case, 
including the mother, because she tried to protect her son before maybe 
even she even turned him in. Somehow she is involved in a low level 
offense.

  Mr. Chairman, let us say Joe's father is totally broken up by this. 
His son is now subject to first degree murder charges, his wife tried 
to abet her son, and so now he sees his son and his wife facing 
criminal charges. Say he goes and speaks to a witness and says, ``My 
wife didn't mean it; can't you have mercy? Let her go. Judge, do 
whatever you have to do with my son, just be fair,'' et cetera, et 
cetera.
  The witness comes back and tells the prosecutor, ``You know what? 
Joe's father tried to talk me into helping Joe's mother in this case so 
she would be let go and I wouldn't testify against her.''
  What penalty should he pay? Well, we have the current law that says 
anyone who tampers with a jury or witness can face criminal punishment. 
That is already in existing law. Joe's father can face penalties for 
witness tampering or jury tampering right now. But this bill says that 
Joe's father, because he went to the witness or a juror and said ``Help 
my wife out, she didn't really know what she was getting into,'' that 
Joe's father now can face the same first degree murder penalties that 
Joe faces, and, really, that the gunman who did the killing faces for 
what was done?
  Now, Joe's father may have been trying to help his wife get off of a 
small offense, and it was wrong, and he should be penalized, But should 
he now face the death penalty or life imprisonment without possibility 
of parole because he tried to help his wife out? Most people I think 
would say no. But this bill says yes, he can.
  Mr. Chairman, I would not mind seeing Joe's father charged with 
something similar to what his wife was being charged with if it was 
greater in penalty than what he faced exclusively under our witness or 
juror tampering laws right now. But I do not believe Joe's father 
should have to now go before a jury that may decide to give him the 
death penalty. I do not think most juries would, to begin with, and I 
do not think we ever really get to that stage very often. But because 
we do not think anyone would go to that extreme, it does not mean we 
should legislate to those extremes, and we should not legislate to the 
point where we mock justice and sensibility. That is where we are 
heading.
  I do not know if this runs afoul of the Constitution as something 
approaching cruel and unusual punishment. I certainly think that we 
could have corrected this in committee, and it still can be corrected, 
to make it clear that we can relate the punishment for those who tamper 
with witnesses and jurors to those crimes that are related to the 
person they were trying to help get off, those defendants they were 
trying to help get off from criminal penalties.
  But this goes a little bit beyond, not a little bit, quite a bit 
beyond, and I think it is unfortunate that the drafting of this 
legislation makes it very difficult for someone who really takes the 
time to read this bill to support it.
  Otherwise it would be a good bill. If it was connected to the 
purpose, I think we could find we could get total support. As I said 
before, it is unfortunate the drafting was not done very well.
  Mr. McCOLLUM. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, I know the gentleman from California is very genuine in 
his comments. He made similar comments and concerns expressed in the 
committee when we considered this bill, but I believe the illustration 
the gentleman gave in and of itself is flawed in terms of what the 
legislation that we are here dealing with today would do.
  First of all, I think it is the very, very situation in which you 
would find joint trials involving the more minor offense, the aiding 
and abetting and so forth at one time which could conceivably mean when 
somebody tampers or

[[Page H4498]]

intimidates a juror or a witness in a case because they were concerned 
with the lesser offense, they could wind up, because there were several 
joint defendants or codefendants, getting a much more serious penalty 
than would be justified for the maximum sentence for the one defendant 
they were concerned about when they went and messed around with him.
  Frankly, for that particular illustration, I am not terribly 
concerned about that, because I think if somebody goes and messes with 
a juror or tries to do the kind of witness tampering we would prohibit 
under this bill that the gentleman from Pennsylvania [Mr. Fox] has 
drafted, then I think that it does not make much difference what the 
underlying crime is. If they are doing that, we need to send a very 
tough message out there and say, ``Look, you are doing that. Even if it 
was a lesser crime, and you are going to get a really tough punishment 
because you are being tried with some codefendant with a greater crime 
and therefore your sentence will be greater, then so be it.'' It is a 
bigger message that goes not there and says if you mess around, you are 
going to get yourself in really deep, deep, deep trouble if you are 
messing with a witness or juror.
  Second, the illustration you gave about the issue of the tampering 
that occurred would not be actually covered by this particular 
underlying bill we are dealing with today. If it were a juror, there 
was no force or physical intimidation being used in your illustration. 
That is what is required to get this bill going with respect to the 
increased penalties with respect to a jury tampering situation. There 
has to be physical force or the threat of physical force to do that.
  With respect to somebody attempting to tamper with a witness or 
victim or an informant, this is based on the underlying statute, 
section 1512 of title 18, you have to knowingly use intimidation or 
physical force or threaten or corruptly persuade another person or 
attempt to do so or engage in misleading conduct toward another person 
with the intent to influence, delay, et cetera. Just talking to a 
witness, just talking with a victim or informant and saying, ``Gosh, my 
son was a good guy, he really didn't do anything that wrong,'' or the 
way you went about it, I do not believe that person would be covered.
  I get your point. I do not agree with it. But I thought we ought to 
make it very clear that the illustration, as mild as you were making 
that tampering, probably would not be a crime in any event. But if it 
were truly tampering, truly intimidation under either the juror, 
physical threat definition of the current law or under the corrupting 
as well as physical threat interpretation of current law dealing with 
the witness tampering provisions, I think that the sentence we are 
putting out in this bill is very justified to deter that kind of 
activity across the board nationally, and society as a whole will 
benefit by having that deterrence placed in the law we are going to do 
tonight in this bill, and that is by placing into law a provision that 
says if you tamper with a jury or tamper with a witness in a Federal 
trial, you are going to subject yourself to precisely the same penalty 
that is there and existed for the defendant or the accused and in that 
underlying trial, except, and I think this is very clear, and I realize 
some of my colleagues over there do not want to think it is so clear, 
but it is very clear you could not get the death penalty under this 
bill that is being considered tonight that the gentleman from 
Pennsylvania [Mr. Fox] wrote. But you could get the maximum 
imprisonment term under the wording of this bill that the accused could 
get. I think that is very appropriate.
  Mr. Chairman, I reserve the balance of my time.
  Mr. CONYERS. Mr. Chairman, I have no further requests for time, and I 
reserve my time.
  Mr. McCOLLUM. Mr. Chairman, I yield 2 minutes to the gentleman from 
Pennsylvania [Mr. Fox], the author of the bill, who wishes to respond a 
little further.
  Mr. FOX of Pennsylvania. Mr. Chairman, in relationship to the 
comments made by the gentleman from California, and I do appreciate his 
sincerity of purpose and interest in this subject, and I know the 
gentleman shares, as well as the Members on both sides of the aisle, 
the interests of making sure we protect victims and also have fair 
trials.
  When it comes to the situation discussing about Joe, obviously under 
the coconspiracy rule, all those in the conspiracy, regardless of 
whether or not they pull the trigger are involved and of course would 
be felony murder to all. Obviously the mother is aiding and abetting. 
The father in this case takes justice in his own hand. Albeit we have 
sympathy for a father whose son has committed a felonious crime and 
been involved with something certainly very upsetting to the family, we 
know that under our system of justice, he had an alternative, and that 
alternative was to go to court at the time of sentencing and make his 
plea for clemency for his son. Obviously the mother's case is de 
minimis as far as the court is concerned, because she did not really 
get involved in the major offense.
  I think Mr. McCollum is very clear when he spoke of the face that in 
this case, in this bill, there is no death penalty that would apply. 
What we are trying to do is look out for the victims in the United 
States, and that is to make sure we have fair trials and that those who 
commit felonies have to answer them in a court of law.
  It also should be pointed out for the Record we were very much 
persuaded by the cogent arguments of the gentleman from North Carolina 
[Mr. Watt], at the time of the subcommittee hearing, and we accepted 
one of his amendments, which, by the way, does add some very important 
language to make sure that this case would apply where we have a 
criminal defendant involved with tampering which involves a threat of 
physical force. That clarification was a very important amendment which 
I think was an improving amendment, which shows the bipartisan spirit 
with which the gentleman from Florida [Mr. McCollum] and the committee 
and the gentleman from Michigan [Mr. Conyers] and others moved forward 
in making this legislation hopefully a reality.
  I believe that the prosecutors who we are dealing with here want to 
make sure we have a fair bill and the Justice Department that carefully 
looks over legislation has endorsed it.

                              {time}  2245

  Mr. McCOLLUM. Mr. Chairman, I have no further requests for time, and 
I reserve the balance of my time.
  Mr. CONYERS. Mr. Chairman, I yield such time as he may consume to the 
gentleman from California [Mr. Becerra].
  Mr. BECERRA. Mr. Chairman, I was looking through the code book to try 
to see if I could understand what the gentleman from Florida was saying 
with regard to my example. The gentleman from Florida said that it 
would only apply if there were a case of physical force in the jury 
tampering or witness tampering. I failed to find the exclusion or the 
requirement that there be physical tampering.
  It can include a number of things which would provide for 
intimidation and physical force, but that is not a requirement within 
the statute. So it could include a number of other things.
  Mr. McCOLLUM. Mr. Chairman, will the gentleman yield?
  Mr. BECERRA. I yield to the gentleman from Florida.
  Mr. McCOLLUM. Mr. Chairman, the way that this is worded in the bill 
with respect to the question of jury tampering limits it to physical 
force. Part of that was the amendment that was offered by the gentleman 
from North Carolina [Mr. Watt] in the full committee. So, if the 
gentleman is dealing with the witness tampering, that is not the story. 
But jury tampering very clearly is only physical force.
  Mr. BECERRA. Mr. Chairman, so the example that I gave still applies, 
that there is not always a need for physical force in order for these 
enhanced penalties to attach. I think the gentleman left the impression 
that, unless someone went out there and committed physical force, that 
witness or juror tampering could not include the enhanced penalties.
  Mr. McCOLLUM. Mr. Chairman, if the gentleman will continue to yield, 
under the tampering with a witness under existing law, the language I 
was reading from the statute says, uses intimidation or physical force, 
threatens or corruptly persuades, which I would

[[Page H4499]]

interpret to mean bribery in some other way, another person, or 
attempts to do so, or engages in misleading conduct towards another 
person. Those are the prerequisites.
  I just thought that the gentleman's point is well made. There are 
other things besides physical force. But I thought that the 
illustration the gentleman gave would have been a father talking with a 
witness without any offering of a bribe or any intimidation the way the 
gentleman described it. That is a mild enough version that I do not 
think we could get the fellow on the underlying crime. That is all.
  Mr. BECERRA. I appreciate the gentleman's comments. I want to make 
sure it is clear that what the gentleman has said to try to further 
explain makes it clear that you do not have to have only physical force 
in to face these particular enhanced penalties, that you can engage in 
misleading conduct. If that father had engaged in misleading conduct to 
try to help his wife be relieved of the penalties in a criminal 
prosecution, he still could face not the penalties that relate to 
witness or jury tampering under current law and not just the penalties 
that his wife may have faced, which may have been greater penalties 
than what he would face under the current juror or witness tampering 
laws, but he could face the penalties that some kid unknown to him 
faces for having shot that convenience store clerk, which could be 
first degree murder and therefore the death penalty.
  What I am just trying to make clear is there is a disconnect between 
what this bill ultimately can do and I believe what the gentleman is 
trying to do. I believe the gentleman from Pennsylvania [Mr. Fox], is 
onto something that is crucial. That is to make sure that, if someone 
is going to tamper with a witness or with a juror or retaliate, that we 
penalize them. And if we find that the penalties under current law for 
that type of activity tampering are too minimal, then maybe we should 
attach to them penalties that relate to the tampering they did, but 
keep it consistent.
  If that person tried to tamper to try to help someone who was a low 
level offender, make sure they pay the price that the low level 
offender would have paid, not the price that someone totally perhaps 
unrelated to that person faces. I think, if he had done that, I have no 
problems with it whatsoever. But it just goes beyond, I think it 
overreaches, and it makes it very difficult to believe that we would 
really want to say this in our statutes.
  My only problem is, again, it is not with the intent. It is that we 
are passing laws here, and what we are saying to the people of this 
country, quite honestly to the history of the United States, is that we 
are trying to do the best by America. And it does not seem to me the 
best thing to do for America is to pass laws that ultimately someone is 
going to say, whoa, we have to redefine this and go back into it.
  Mr. McCOLLUM. Mr. Chairman, I have no further speakers, and I reserve 
the balance of my time to close.
  Mr. CONYERS. Mr. Chairman, I yield back to the balance of my time.
  Mr. McCOLLUM. Mr. Chairman, I yield myself such time as I may consume 
to close.
  I will not spend much of that time doing it. I would like to point 
out to my colleagues that the circumstances that we are developing 
about these various scenarios could well be taken care of, and I hope 
they will be, if there are mitigating extenuating circumstances by the 
Sentencing Commission. What we are passing tonight is a much more 
severe maximum penalty. But we are not in any way preventing the 
Sentencing Commission from coming along as we would anticipate they 
would do and suggesting that there would be something lesser given in 
those situations where there were extenuating mitigating circumstances, 
perhaps those types of things involving cases where there are more than 
one accused being tried at one time or some unusual circumstances such 
as the gentleman from California was describing.
  Mr. Chairman, the bottom line though is that what we are doing 
tonight, the really significant thing we are doing by passing this 
bill, and I certainly urge its adoption, is what the gentleman from 
Pennsylvania [Mr. Fox] was creative enough to come forward with. This 
is to send a message to those who would commit jury tampering and 
witness tampering that, if they commit that, they are really going to 
get the book thrown at them. This is not something you do, that this is 
taken as seriously as a lot of other very, very serious crimes are 
taken, and that they could serve a lot of time in jail because they are 
doing that, not just the maximum 10 years we have today.
  They could serve 30 years or 40 years or 50 years or longer in jail 
if they commit witness tampering and jury tampering in a Federal trial. 
That is the significance of what is being done today. We are saying 
that the maximum penalty in witness tampering and jury tampering in a 
Federal trial after this becomes law will be the maximum of the 
underlying crime for which the accused in the case being tried is 
charged.
  I would urge my colleagues to accept it. Again, I commend the 
gentleman from Pennsylvania for offering this. I think it is a very 
constructive and appropriate new deterrent in the Federal criminal 
justice system.
  Mr. Chairman, I yield back the balance of my time.
  Mr. BEREUTER. Mr. Chairman, this Member rises today in support of 
H.R. 3120, legislation to prevent jury and witness tampering and 
witness retaliation.
  This Member was a cosponsor of each of these separate bills as they 
were originally introduced by the gentleman from Pennsylvania [Mr. Fox] 
before they were placed in one piece of legislation and also a 
cosponsor of the H.R. 3019. Existing penalties for these crimes do not 
create a deterrent for criminals often facing life imprisonment or the 
death penalty for their crimes. Criminals will risk a small fine in 
order to be declared not guilty.
  A Nebraska jury tampering case, involving the murder trial of Roger 
Bjorklund in 1993, demonstrates the need for changes in the Federal 
jury tampering law. We have no teeth in our jury tampering laws. The 
present weak laws actually encourage accused individuals to interfere 
with a jury or witnesses. They have very little to lose. This is a 
loophole that must be closed.
  Mr. Chairman, this Member urges his colleagues to support this 
important measure.
  Mr. DOYLE. Mr. Chairman, whether in the national spotlight or in our 
hometown, attempts to derail law enforcement investigations and 
influence judicial decisions through coercion is increasingly becoming 
the criminal's preferred line of defense. No longer is the arm of 
intimidation restricting itself to organized crime. When individuals 
employ this type of behavior in a small or close knit community, the 
effect of the manipulation can literally freeze that neighborhood's 
sense of community in its tracks. When individuals successfully 
exercise intimidation in the courtroom, we are in danger of knowingly 
forfeiting an inalienable right; the right to a fair trial.
  I realize the limited effect deterrents such as the provisions of 
H.R. 3120 can have if they are not enforced. It is my hope however, 
that the message of H.R. 3120 will bolster law enforcement's efforts 
and will break through to individuals who might otherwise resort to 
witness and jury tampering tactics. It is also my hope that this 
legislation will sound a voice of support and encouragement to 
individuals who are a witness to, or victim of crime. In order for our 
communities to be safe environments, we must make it clear that every 
individual is equally important and deserves protection. An aware and 
involved resident is our best tool to preventing and combating crime.
  As a cosponsor of the original components of this bill, H.R. 1143, 
H.R. 1144, and H.R. 1145, I strongly believe that increasing the 
maximum sentence for individuals convicted of tempering or harassing 
juries and witnesses in criminal cases is a reasonable and just 
response to such actions. I urge my colleagues to support final passage 
of H.R. 3120, the Increased Punishment for Witness and Jury Tampering 
Act.
  The CHAIRMAN. All time for general debate has expired.
  Pursuant to the rule, the committee amendment in the nature of a 
substitute printed in the bill is considered as an original bill for 
the purpose of amendment and is considered as having been read.
  The text of the committee amendment in the nature of a substitute is 
as follows:

                               H.R. 3120

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled, That 
     title 18, United States Code, is amended--
       (1) in section 1513--
       (A) by redesignating subsection (c) as subsection (d); and
       (B) by adding at the end the following:
       ``(c) If the retaliation occurred because of attendance at 
     or testimony in a criminal case, the maximum term of 
     imprisonment

[[Page H4500]]

     which may be imposed for the offense under this section shall 
     be the higher of that otherwise provided by law or the 
     maximum term that could have been imposed for any offense 
     charged in such case.'';
       (2) in section 1512, by adding at the end the following:
       ``(i) If the offense under this section occurs in 
     connection with a trial of a criminal case, the maximum term 
     of imprisonment which may be imposed for the offense shall be 
     the higher of that otherwise provided by law or the maximum 
     term that could have been imposed for any offense charged in 
     such case,''; and
       (3) in section 1503(a), by adding at the end the following: 
     ``If the offense under this section occurs in connection with 
     a trial of a criminal case, and the act in violation of this 
     section involves the threat of physical force or physical 
     force, the maximum term of imprisonment which may be imposed 
     for the offense shall be the higher of that otherwise 
     provided by law or the maximum term that could have been 
     imposed for any offense charged in such case.''.

  The CHAIRMAN. During consideration of the bill for amendment, the 
chairman of the Committee of the Whole may accord priority in 
recognition to a Member offering an amendment that he has preprinted in 
the designated place in the Congressional Record. Those amendments will 
be considered as having been read.
  Pursuant to the order of the House of today, the chairman of the 
Committee of the Whole House may postpone until a time during further 
consideration in the Committee of the Whole a request for a recorded 
vote on any amendment and may reduce to not less than 5 minutes the 
time for voting by electronic device on any postponed question that 
immediately follows another vote by electric device without intervening 
business, provided that the time for voting by electronic device on the 
first in any series of questions shall not be less than 15 minutes.
  Are there any amendments to the bill?
  If not, the question is on the committee amendment in the nature of a 
substitute.
  The committee amendment in the nature of a substitute was agreed to.
  The CHAIRMAN. Under the rule, the Committee rises.
  Accordingly the Committee rose, and the Speaker pro tempore (Mr. 
Shadegg) having assumed the chair, Mr. LaTourette, chairman of the 
Committee of the Whole House on the State of the Union, reported that 
that Committee, having had under consideration the bill (H.R. 3120) to 
amend title 18, United States Code, with respect to witness 
retaliation, witness tampering and jury tampering, pursuant to House 
Resolution 422, he reported the bill back to the House with an 
amendment adopted by the Committee of the Whole.
  The SPEAKER pro tempore. Under the rule, the previous question is 
ordered.
  The question is on the committee amendment in the nature of a 
substitute.
  The committee amendment in the nature of a substitute was agreed to.
  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, was read 
the third time, and passed, and a motion to reconsider was laid on the 
table.

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