[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.
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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.
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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.
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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
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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].
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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.
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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
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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.
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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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