I
103D CONGRESS
1ST SESSION
H. R. 3558
To provide Federal penalties for drive-by shootings.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 19, 1993
Mr. FRANKS of Connecticut introduced the following bill; which was referred
to the Committee on the Judiciary
A BILL
To provide Federal penalties for drive-by shootings.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. DRIVE-BY SHOOTING IN CONNECTION WITH
MAJOR DRUG OFFENSE.
(a) OFFENSE.—
(1)
IN
GENERAL.—Chapter
of
title
18,
United States Code, is amended by adding at the
end the following new section:
‘‘§ 36. Drive-by shooting
‘‘(a) DEFINITION.—In this section, ‘major drug
offense’ means—
‘‘(1) PREVIOUS ESPIONAGE OR TREASON CON-
VICTION.—The defendant has previously been con-
victed of another offense involving espionage or trea-
son for which a sentence of life imprisonment or
death was authorized by statute.
‘‘(2) RISK OF SUBSTANTIAL DANGER TO NA-
TIONAL SECURITY.—In the commission of the of-
fense the defendant knowingly created a grave risk
to the national security.
‘‘(3) RISK
OF
DEATH
TO
ANOTHER.—In the
commission of the offense the defendant knowingly
created a grave risk of death to another person.
The jury, or if there is no jury, the court, may consider
whether any other aggravating factor exists.
‘‘(c) AGGRAVATING FACTORS FOR HOMICIDE AND
FOR ATTEMPTED MURDER OF THE PRESIDENT.—In de-
termining whether a sentence of death is justified for an
offense described in section 3591 (2) or (6), the jury, or
if there is no jury, the court, shall consider each of the
following aggravating factors and determine which, if any,
exist:
‘‘(1) DEATH
OCCURRED
DURING
COMMISSION
OF ANOTHER CRIME.—The death occurred during
the commission or attempted commission of, or dur-
ing the immediate flight from the commission of, an
offense under section 751 (prisoners in custody of
institution or officer), section 794 (gathering or de-
livering defense information to aid foreign govern-
ment), section 844(d) (transportation of explosives
in interstate commerce for certain purposes), section
844(f) (destruction of Government property by ex-
plosives), section 1118 (prisoners serving life term),
section 1201 (kidnapping), or section 2381 (treason)
of this title, section 1826 of title 28 (persons in cus-
tody as recalcitrant witnesses or hospitalized follow-
ing a finding of not guilty only by reason of insan-
ity), or section 902 (i) or (n) of the Federal Aviation
Act of 1958 (49 U.S.C. 1472 (i) and (n) (aircraft
piracy)).
‘‘(2) INVOLVEMENT OF FIREARM OR PREVIOUS
CONVICTION OF VIOLENT FELONY INVOLVING FIRE-
ARM.—The defendant—
‘‘(A) during and in relation to the commis-
sion of the offense or in escaping apprehension
used or possessed a firearm (as defined in sec-
tion 921); or
‘‘(B) has previously been convicted of a
Federal or State offense punishable by a term
of imprisonment of more than 1 year, involving
the use or attempted or threatened use of a
firearm (as defined in section 921) against an-
other person.
‘‘(3) PREVIOUS CONVICTION OF OFFENSE FOR
WHICH A SENTENCE OF DEATH OR LIFE IMPRISON-
MENT WAS AUTHORIZED.—The defendant has pre-
viously been convicted of another Federal or State
offense resulting in the death of a person, for which
a sentence of life imprisonment or death was author-
ized by statute.
‘‘(4) PREVIOUS CONVICTION OF OTHER SERI-
OUS OFFENSES.—The defendant has previously been
convicted of 2 or more Federal or State offenses,
each punishable by a term of imprisonment of more
than 1 year, committed on different occasions, in-
volving the importation, manufacture, or distribution
of a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802))
or the infliction of, or attempted infliction of, serious
bodily injury or death upon another person.
‘‘(5) GRAVE RISK OF DEATH TO ADDITIONAL
PERSONS.—The defendant, in the commission of the
offense or in escaping apprehension, knowingly cre-
ated a grave risk of death to 1 or more persons in
addition to the victim of the offense.
‘‘(6) HEINOUS, CRUEL, OR DEPRAVED MANNER
OF COMMISSION.—The defendant committed the of-
fense in an especially heinous, cruel, or depraved
manner in that it involved torture or serious physical
abuse to the victim.
‘‘(7) PROCUREMENT
OF
OFFENSE
BY
PAY-
MENT.—The defendant procured the commission of
the offense by payment, or promise of payment, of
anything of pecuniary value.
‘‘(8) COMMISSION OF THE OFFENSE FOR PECU-
NIARY GAIN.—The defendant committed the offense
as consideration for the receipt, or in the expectation
of the receipt, of anything of pecuniary value.
‘‘(9) 
SUBSTANTIAL
PLANNING
AND
PREMEDITATION.—The defendant committed the of-
fense after substantial planning and premeditation.
‘‘(10) VULNERABILITY OF VICTIM.—The victim
was particularly vulnerable due to old age, youth, or
infirmity.
‘‘(11) TYPE
OF
VICTIM.—(A) The defendant
committed the offense against—
‘‘(i) the President of the United States, the
President-elect, the Vice President, the Vice
President-elect, the Vice President-designate,
or, if there is no Vice President, the officer next
in order of succession to the office of the Presi-
dent of the United States, or any person who
is acting as President under the Constitution
and laws of the United States;
‘‘(ii) a chief of state, head of government,
or the political equivalent, of a foreign nation;
‘‘(iii) a foreign official described in section
1116(b)(3)(A), if the official is in the United
States on official business; or
‘‘(iv) a public servant who is a Federal
judge, a Federal law enforcement officer, an
employee (including a volunteer or contract em-
ployee) of a Federal prison, or an official of the
Federal Bureau of Prisons—
‘‘(I) while the public servant is en-
gaged in the performance of the public
servant’s official duties;
‘‘(II) because of the performance of
the public servant’s official duties; or
‘‘(III) because of the public servant’s
status as a public servant.
‘‘(B) For purposes of this paragraph—
‘‘(i) the terms ‘President-elect’ and ‘Vice
President-elect’ mean persons that are the ap-
parent successful candidates for the offices of
President and Vice President, respectively, as
ascertained from the results of the general elec-
tions held to determine the electors of President
and Vice President in accordance with sections
1 and 2 of title 3, United States Code;
‘‘(ii) the term ‘Federal law enforcement of-
ficer’ means a public servant authorized by law
or by a government agency or Congress to con-
duct or engage in the prevention, investigation,
or prosecution of an offense;
‘‘(iii) the term ‘Federal prison’ means a
Federal correctional, detention, or penal facility,
Federal community treatment center, or Fed-
eral halfway house, or any such prison operated
under contract with the Federal Government;
and
‘‘(iv) the term ‘Federal judge’ means a ju-
dicial officer of the United States (including a
justice of the Supreme Court and a magistrate).
The jury, or if there is no jury, the court, may consider
whether any other aggravating factor exists.
‘‘§ 3593. Special hearing to determine whether a sen-
tence of death is justified
‘‘(a) NOTICE BY THE GOVERNMENT.—When the Gov-
ernment intends to seek the death penalty for an offense
described in section 3591, the attorney for the Govern-
ment, a reasonable time before the trial, or before accept-
ance by the court of a plea of guilty, or at such time there-
after as the court may permit upon a showing of good
cause, shall sign and file with the court, and serve on the
defendant, a notice—
‘‘(1) that the Government in the event of con-
viction will seek the sentence of death; and
‘‘(2) setting forth the aggravating factor or fac-
tors enumerated in section 3592 and any other ag-
gravating factor not specifically enumerated in sec-
tion 3592, that the Government, if the defendant is
convicted, will seek to prove as the basis for the
death penalty.
The court may permit the attorney for the Government
to amend the notice upon a showing of good cause.
‘‘(b) HEARING BEFORE A COURT OR JURY.—When
the attorney for the Government has filed a notice as re-
quired under subsection (a) of this section and the defend-
ant is found guilty of an offense described in section 3591,
the judge who presided at the trial or before whom the
guilty plea was entered, or another judge if that judge is
unavailable, shall conduct a separate sentencing hearing
to determine the punishment to be imposed. Before such
a hearing, no presentence report shall be prepared by the
United States Probation Service, notwithstanding the
Federal Rules of Criminal Procedure. The hearing shall
be conducted—
‘‘(1) before the jury that determined the de-
fendant’s guilt;
‘‘(2) before a jury impaneled for the purpose of
the hearing if—
‘‘(A) the defendant was convicted upon a
plea of guilty;
‘‘(B) the defendant was convicted after a
trial before the court sitting without a jury;
‘‘(C) the jury that determined the defend-
ant’s guilt was discharged for good cause; or
‘‘(D) after initial imposition of a sentence
under this section, reconsideration of the sen-
tence under the section is necessary; or
‘‘(3) before the court alone, upon motion of the
defendant and with the approval of the attorney for
the Government.
A jury impaneled pursuant to paragraph (2) shall consist
of 12 members, unless, at any time before the conclusion
of the hearing, the parties stipulate, with the approval of
the court, that it shall consist of a lesser number.
‘‘(c) PROOF OF MITIGATING AND AGGRAVATING FAC-
TORS.—At the hearing, information may be presented con-
cerning—
‘‘(1) any matter relating to any mitigating fac-
tor listed in section 3592 and any other mitigating
factor; and
‘‘(2) any matter relating to any aggravating
factor listed in section 3592 for which notice has
been provided under subsection (a)(2) and (if infor-
mation is presented relating to such a listed factor)
any other aggravating factor for which notice has
been so provided.
Information presented may include the trial transcript and
exhibits. Any other information relevant to such mitigat-
ing or aggravating factors may be presented by either the
Government or the defendant, regardless of its admissibil-
ity under the rules governing admission of evidence at
criminal trials, except that information may be excluded
if its probative value is outweighed by the danger of creat-
ing unfair prejudice, confusing the issues, or misleading
the jury. The Government and the defendant shall be per-
mitted to rebut any information received at the hearing
and shall be given fair opportunity to present argument
as to the adequacy of the information to establish the ex-
istence of any aggravating or mitigating factor and as to
the appropriateness in that case of imposing a sentence
of death. The Government shall open the argument. The
defendant shall be permitted to reply. The Government
shall then be permitted to reply in rebuttal. The burden
of establishing the existence of an aggravating factor is
on the Government, and it is not satisfied unless the exist-
ence of such a factor is established beyond a reasonable
doubt. The burden of establishing the existence of any
mitigating factor is on the defendant, and it is not satis-
fied unless the existence of such a factor is established
by a preponderance of the evidence.
‘‘(d) RETURN OF SPECIAL FINDINGS.—The jury, or
if there is no jury, the court, shall consider all the informa-
tion received during the hearing. It shall return special
findings identifying any aggravating factor or factors set
forth in section 3592 found to exist and any other aggra-
vating factor for which notice has been provided under
subsection (a) found to exist. A finding with respect to
a mitigating factor may be made by 1 or more members
of the jury, and any member of the jury who finds the
existence of a mitigating factor may consider such factor
established for purposes of this section regardless of the
number of jurors who concur that the factor has been es-
tablished. A finding with respect to any aggravating factor
must be unanimous. If no aggravating factor set forth in
section 3592 is found to exist, the court shall impose a
sentence other than death authorized by law.
‘‘(e) RETURN OF A FINDING CONCERNING A SEN-
TENCE OF DEATH.—If, in the case of—
‘‘(1) an offense described in section 3591(1), an
aggravating factor required to be considered under
section 3592(b) is found to exist; or
‘‘(2) an offense described in section 3591 (2) or
(6), an aggravating factor required to be considered
under section 3592(c) is found to exist,
the jury, or if there is no jury, the court, shall then con-
sider whether the aggravating factor or factors found to
exist outweigh any mitigating factor or factors. The jury,
or if there is no jury, the court, shall recommend a sen-
tence of death if it unanimously finds at least 1 aggravat-
ing factor and no mitigating factor or if it finds 1 or more
aggravating factors which outweigh any mitigating fac-
tors. In any other case, it shall not recommend a sentence
of death. The jury shall be instructed that it must avoid
any influence of sympathy, sentiment, passion, prejudice,
or other arbitrary factors in its decision and should make
such a recommendation as the information warrants.
‘‘(f) SPECIAL PRECAUTION TO ENSURE AGAINST
DISCRIMINATION.—In a hearing held before a jury, the
court, before the return of a finding under subsection (e),
court may impose a sentence of life imprisonment without
the possibility of release or furlough.
‘‘§ 3595. Review of a sentence of death
‘‘(a) APPEAL.—In a case in which a sentence of death
is imposed, the sentence shall be subject to review by the
court of appeals upon appeal by the defendant. Notice of
appeal of the sentence must be filed within the time speci-
fied for the filing of a notice of appeal of the judgment
of conviction. An appeal of the sentence under this section
may be consolidated with an appeal of the judgment of
conviction and shall have priority over all other cases.
‘‘(b) REVIEW.—The court of appeals shall review the
entire record in the case, including—
‘‘(1) the evidence submitted during the trial;
‘‘(2) the information submitted during the sen-
tencing hearing;
‘‘(3) the procedures employed in the sentencing
hearing; and
‘‘(4) the special findings returned under section
3593(d).
‘‘(c) DECISION AND DISPOSITION.—
‘‘(1) If the court of appeals determines that—
‘‘(A) the sentence of death was not im-
posed under the influence of passion, prejudice,
or any other arbitrary factor; and
‘‘(B) the evidence and information support
the special findings of the existence of an ag-
gravating factor or factors,
it shall affirm the sentence.
‘‘(2) In any other case, the court of appeals
shall remand the case for reconsideration under sec-
tion 3593 or for imposition of another authorized
sentence as appropriate.
‘‘(3) The court of appeals shall state in writing
the reasons for its disposition of an appeal of sen-
tence of death under this section.
‘‘§ 3596. Implementation of a sentence of death
‘‘(a) IN GENERAL.—A person who has been sen-
tenced to death pursuant to this chapter shall be commit-
ted to the custody of the Attorney General until exhaus-
tion of the procedures for appeal of the judgment of con-
viction and for review of the sentence. When the sentence
is to be implemented, the Attorney General shall release
the person sentenced to death to the custody of a United
States marshal, who shall supervise implementation of the
sentence in the manner prescribed by the law of the State
in which the sentence is imposed. If the law of that State
does not provide for implementation of a sentence of
death, the court shall designate another State, the law of
which does so provide, and the sentence shall be imple-
mented in the manner prescribed by that law.
‘‘(b) IMPAIRED MENTAL CAPACITY, AGE, OR PREG-
NANCY.—A sentence of death shall not be carried out upon
a person who is under 18 years of age at the time the
crime was committed. A sentence of death shall not be
carried out upon a person who is mentally retarded. A sen-
tence of death shall not be carried out upon a person who,
as a result of mental disability—
‘‘(1) cannot understand the nature of the pend-
ing proceedings, what the person was tried for, the
reason for the punishment, or the nature of the
punishment; or
‘‘(2) lacks the capacity to recognize or under-
stand facts that would make the punishment unjust
or unlawful or lacks the ability to convey such infor-
mation to counsel or to the court.
A sentence of death shall not be carried out upon a woman
while she is pregnant.
‘‘(c) EMPLOYEES MAY DECLINE TO PARTICIPATE.—
No employee of any State department of corrections or
the Federal Bureau of Prisons and no employee providing
services to that department or bureau under contract shall
be required, as a condition of that employment or contrac-
tual obligation, to be in attendance at or to participate
in any execution carried out under this section, if such
participation is contrary to the moral or religious convic-
tions of the employee. For purposes of this subsection, the
term ‘participate in any execution’ includes personal prep-
aration of the condemned individual and the apparatus
used for the execution, and supervision of the activities
of other personnel in carrying out such activities.
‘‘§ 3597. Use of State facilities
‘‘A United States marshal charged with supervising
the implementation of a sentence of death may use appro-
priate State or local facilities for the purpose, may use
the services of an appropriate State or local official or of
a person such as an official employed for the purpose, and
shall pay the costs thereof in an amount approved by the
Attorney General.
‘‘§ 3598. Appointment of counsel
‘‘(a) FEDERAL CAPITAL CASES.—
‘‘(1) REPRESENTATION OF INDIGENT DEFEND-
ANTS.—Notwithstanding any other law, this sub-
section shall govern the appointment of counsel for
a defendant against whom a sentence of death is
sought, or on whom a sentence of death has been
imposed, for an offense against the United States,
when the defendant is or becomes financially unable
to obtain adequate representation. Such a defendant
shall be entitled to appointment of counsel from the
commencement of trial proceedings until 1 of the
conditions specified in section 3599(b) has occurred.
‘‘(2) REPRESENTATION BEFORE FINALITY OF
JUDGMENT.—A defendant within the scope of this
subsection shall have counsel appointed for trial rep-
resentation as provided in section 3005. At least 1
counsel so appointed shall continue to represent the
defendant until the conclusion of direct review of the
judgment, unless replaced by the court with other
qualified counsel.
‘‘(3) REPRESENTATION
AFTER
FINALITY
OF
JUDGMENT.—When a judgment imposing a sentence
of death has become final through affirmance by the
Supreme Court on direct review, denial of certiorari
by the Supreme Court on direct review, or expiration
of the time for seeking direct review in the court of
appeals or the Supreme Court, the Government shall
promptly notify the district court that imposed the
sentence. Within 10 days after receipt of the notice,
the district court shall proceed to make a determina-
tion whether the defendant is eligible under this sub-
section for appointment of counsel for subsequent
proceedings. On the basis of the determination, the
court shall issue an order—
‘‘(A) appointing 1 or more counsel to rep-
resent the defendant upon a finding that the
defendant is financially unable to obtain ade-
quate representation and wishes to have counsel
appointed or is unable competently to decide
whether to accept or reject appointment of
counsel;
‘‘(B) finding, after a hearing if necessary,
that the defendant rejected appointment of
counsel and made the decision with an under-
standing of its legal consequences; or
‘‘(C) denying the appointment of counsel
upon a finding that the defendant is financially
able to obtain adequate representation. Counsel
appointed pursuant to this paragraph shall be
different from the counsel who represented the
defendant at trial and on direct review unless
the defendant and counsel request a continu-
ation or renewal of the earlier representation.
‘‘(4) STANDARDS FOR COMPETENCE OF COUN-
SEL.—In relation to a defendant who is entitled to
appointment of counsel under this subsection, at
least 1 counsel appointed for trial representation
must have been admitted to the bar for at least 5
years and have at least 3 years of experience in the
trial of felony cases in Federal district court. If new
counsel is appointed after judgment, at least one
counsel so appointed must have been admitted to the
bar for at least 5 years and have at least 3 years
of experience in the litigation of felony cases in the
Federal courts of appeals or the Supreme Court.
The court, for good cause, may appoint counsel who
does not meet these standards, but whose back-
ground, knowledge, or experience would otherwise
enable counsel to properly represent the defendant,
with due consideration of the seriousness of the pen-
alty and the nature of the litigation.
‘‘(5) APPLICABILITY
OF
CRIMINAL
JUSTICE
ACT.—Except as otherwise provided in this sub-
section, section 3006A shall apply to appointments
under this subsection.
‘‘(6) CLAIMS OF INEFFECTIVENESS OF COUN-
SEL.—The ineffectiveness or incompetence of coun-
sel during proceedings on a motion under section
2255 of title 28 in a capital case shall not be a
ground for relief from the judgment or sentence in
any proceeding. The limitation in the preceding sen-
tence shall not preclude the appointment of different
counsel at any stage of the proceedings.
‘‘(b) STATE CAPITAL CASES.—The laws of the
United States shall not be construed to impose any re-
quirement with respect to the appointment of counsel in
any proceeding in a State court or other State proceeding
in a capital case, other than any requirement imposed by
the Constitution of the United States. In a proceeding
under section 2254 of title 28 relating to a State capital
case, or any subsequent proceeding on review, appoint-
ment of counsel for a petitioner who is or becomes finan-
cially unable to afford counsel shall be in the discretion
of the court, except as provided by a rule promulgated by
the Supreme Court pursuant to statutory authority. Such
appointment of counsel shall be governed by section
3006A.
‘‘§ 3599. Collateral attack on judgment imposing sen-
tence of death
‘‘(a) TIME FOR MAKING SECTION 2255 MOTION.—
In a case in which a sentence of death has been imposed
and the judgment has become final under section
3598(a)(3), a motion in the case under section 2255 of
title 28 shall be filed within 90 days after the issuance
of the order relating to appointment of counsel under sec-
tion 3598(a)(3). The court in which the motion is filed,
for good cause, may extend the time for filing for a period
not exceeding 60 days. A motion described in this section
Supreme Court disposed of it in a manner that
left the capital sentence undisturbed; or
‘‘(3) before a district court, in the presence of
counsel and after having been advised of the con-
sequences of the decision, the defendant waives the
right to file a motion under section 2255 of title 28.
‘‘(c) FINALITY OF THE DECISION ON REVIEW.—If 1
of the conditions specified in subsection (b) has occurred,
no court shall have the authority to enter a stay of execu-
tion or grant relief in the case unless—
‘‘(1) the basis for the stay and request for relief
is a claim not presented in earlier proceedings;
‘‘(2) the failure to raise the claim is—
‘‘(A) the result of governmental action in
violation of the Constitution or laws of the
United States;
‘‘(B) the result of the Supreme Court rec-
ognition of a new Federal right that is retro-
actively applicable; or
‘‘(C) based on a factual predicate that
could not have been discovered through the ex-
ercise of reasonable diligence in time to present
the claim in earlier proceedings; and
‘‘(3) the facts underlying the claim would be
sufficient, if proven, to undermine the court’s con-
fidence in the determination of guilt on the offense
or offenses for which the death penalty was
imposed.’’.
(2) CLERICAL
AMENDMENT.—The table of
parts at the beginning of part II of title 18, United
States Code, is amended by inserting after the item
relating to chapter 227 the following new item:
‘‘228. Death penalty procedures ................................................... 3591’’.
Æ
HR 3558 IH——2