I
103D CONGRESS
1ST SESSION
H. R. 3135
To amend title 18, United States Code, to provide a death penalty for
the murder of foreign visitors.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 27, 1993
Mr. GEKAS introduced the following bill; which was referred to the Committee
on the Judiciary
A BILL
To amend title 18, United States Code, to provide a death
penalty for the murder of foreign visitors.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Foreign Tourist Pro-
tection Act of 1993’’.
SEC. 2. DEATH PENALTY PROCEDURES.
(a) IN GENERAL.—Chapter 51 of title 18, United
States Code, is amended by adding at the end the follow-
ing:
‘‘§ 1118. Protection of foreign tourists and visitors
‘‘(a) IN GENERAL.—Whoever kills an individual
who—
‘‘(1) is not a national of the United States;
‘‘(2) is legally in the United States, as a tourist
or otherwise; and
‘‘(3) does not have the right permanently to re-
side in the United States;
shall be punished as provided in sections 1111 and 1112
of this title, except that if the killing is a murder in the
first degree, the defendant shall also be subject to the
death penalty under this section. No person may be sen-
tenced to death under this section who was less than 18
years of age at the time of the offense or who is mentally
retarded.
‘‘(b) FACTORS TO BE CONSIDERED IN DETERMINING
WHETHER A SENTENCE OF DEATH IS JUSTIFIED.—
‘‘(1) MITIGATING
FACTORS.—In determining
whether a sentence of death is justified, the jury, or
if there is no jury, the court, shall consider each of
the following mitigating factors and determine
which, if any, exist:
‘‘(A) MENTAL CAPACITY.—The defendant’s
mental capacity to appreciate the wrongfulness
of his conduct or to conform his conduct to the
requirements of law was significantly impaired,
regardless of whether the capacity was so im-
paired as to constitute a defense to the charge.
‘‘(B) DURESS.—The defendant was under
unusual and substantial duress, regardless of
whether the duress was of such a degree as to
constitute a defense to the charge.
‘‘(C) 
PARTICIPATION
IN
OFFENSE
MINOR.—The defendant’s participation in the
offense, which was committed by another, was
relatively minor, regardless of whether the par-
ticipation was so minor as to constitute a de-
fense to the charge.
‘‘(D) NO
SIGNIFICANT
CRIMINAL
HIS-
TORY.—The defendant did not have a signifi-
cant history of other criminal conduct.
‘‘(E) DISTURBANCE.—The defendant com-
mitted the offense under severe mental or emo-
tional disturbance.
‘‘(F) VICTIM’S CONSENT.—The victim con-
sented to the criminal conduct that resulted in
the victim’s death.
The jury, or if there is no jury, the court, shall consider
whether any other aspect of the defendant’s background,
character or record or any other circumstance of the of-
fense that the defendant may proffer as a mitigating fac-
tor exists.
‘‘(2) AGGRAVATING FACTORS.—In determining
whether a sentence of death is justified, the jury, or
if there is no jury, the court, shall consider each of
the following aggravating factors and determine
which, if any, exist:
‘‘(A) CONDUCT OCCURRED DURING COM-
MISSION OF SPECIFIED CRIMES.—The conduct
resulting in death occurred during the commis-
sion or attempted commission of, or during the
immediate flight from the commission of, an of-
fense under section 32 (destruction of aircraft
or aircraft facilities), section 33 (destruction of
motor vehicles or motor vehicle facilities), sec-
tion 36 (violence at international airports), sec-
tion 751 (prisoners in custody of institution or
officer), section 844(d) (transportation of explo-
sives in interstate commerce for certain pur-
poses), section 844(f) (destruction of Govern-
ment property by explosives), section 844(i)
(destruction of property affecting interstate
commerce by explosives), section 1116 (killing
or attempted killing of diplomats), section 1201
(kidnapping), section 1203 (hostage taking),
section 1992 (wrecking trains), section 2332
(terrorism), or section 902 (i) or (n) of the
Federal Aviation Act of 1958, as amended (49
U.S.C. App. 1472 (i) or (n) (aircraft piracy)).
‘‘(B) INVOLVEMENT OF FIREARM OR PRE-
VIOUS
CONVICTION
OF
VIOLENT
FELONY
IN-
VOLVING FIREARM.—The defendant—
‘‘(i) during and in relation to the com-
mission of the offense or in escaping or at-
tempting to escape apprehension used or
possessed a firearm as defined in section
921 of this title; or
‘‘(ii) has previously been convicted of
a Federal or State offense punishable by a
term of imprisonment of more than one
year, involving the use of attempted or
threatened use of a firearm, as defined in
section 921 of this title, against another
person.
‘‘(C) PREVIOUS CONVICTION OF OFFENSE
FOR WHICH A SENTENCE OF DEATH OR LIFE
IMPRISONMENT
WAS
AUTHORIZED.—The de-
fendant has previously been convicted of an-
other Federal or State offense resulting in the
death of a person, for which a sentence of life
imprisonment or death was authorized by stat-
ute.
‘‘(D) PREVIOUS
CONVICTION
OF
OTHER
SERIOUS OFFENSES.—The defendant has pre-
viously been convicted of two or more Federal
or State offenses, each punishable by a term of
imprisonment of more than one year, committed
on different occasions, involving the importa-
tion, manufacture, or distribution of a con-
trolled 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.
‘‘(E) GRAVE
RISK
OF
DEATH
TO
ADDI-
TIONAL PERSONS.—The defendant, in the com-
mission of the offense or in escaping or at-
tempting to escape apprehension, knowingly
created a grave risk of death to one or more
persons in addition to the victim of the offense.
‘‘(F) HEINOUS, CRUEL, OR
DEPRAVED
MANNER OF COMMISSION.—The defendant com-
mitted the offense in an especially heinous,
cruel, or depraved manner in that it involved
torture or serious physical abuse to the victim.
‘‘(G) PROCUREMENT OF OFFENSE BY PAY-
MENT.—The defendant procured the commis-
sion of the offense by payment, or promise of
payment, of anything of pecuniary value.
‘‘(H) COMMISSION OF THE OFFENSE FOR
PECUNIARY
GAIN.—The defendant committed
the offense as consideration for the receipt, or
in the expectation of the receipt, of anything of
pecuniary value.
‘‘(I) 
SUBSTANTIAL
PLANNING
AND
PREMEDITATION.—The defendant committed
the offense after substantial planning and
premeditation.
‘‘(J) VULNERABILITY
OF
VICTIM.—The
victim was particularly vulnerable due to old
age, youth, infirmity, or inability to commu-
nicate in or understand English.
The jury, or if there is no jury, the court, may consider
whether any other aggravating factor exists.
‘‘(c) SPECIAL HEARING TO DETERMINE WHETHER
A SENTENCE OF DEATH IS JUSTIFIED.—
‘‘(1) NOTICE
BY
THE
GOVERNMENT.—When-
ever the Government intends to seek the death pen-
alty for an offense under this section, the attorney
for the Government, a reasonable time before the
trial, or before acceptance by the court of a plea of
guilty, or at such time thereafter as the court may
permit upon a showing of good cause, shall sign and
file with the court, and serve on the defendant, a no-
tice that the Government in the event of conviction
will seek the sentence of death. The notice shall set
forth the aggravating factor or factors enumerated
in this section, and any other aggravating factor not
specifically enumerated in this section, that the Gov-
ernment, if the defendant is convicted, will seek to
prove as the basis for the death penalty. The factors
for which notice is provided under this subsection
may include factors concerning the effect of the of-
fense on the victim and the victim’s family. The
court may permit the attorney for the Government
to amend the notice upon a showing of good cause.
‘‘(2) HEARING BEFORE A COURT OR JURY.—
When the attorney for the Government has filed a
notice under paragraph (1) and the defendant is
found guilty of an offense under this section, 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 sen-
tencing hearing to determine the punishment to be
imposed. Before such a hearing, no presentence re-
port shall be prepared by the United States Proba-
tion Service, notwithstanding the provisions of the
Federal Rules of Criminal Procedure. The hearing
shall be conducted—
‘‘(A) before the jury that determined the
defendant’s guilt;
‘‘(B) before a jury impaneled for the pur-
pose of the hearing if—
‘‘(i) the defendant was convicted upon
a plea of guilty;
‘‘(ii) the defendant was convicted after
a trial before the court sitting without a
jury;
‘‘(iii) the jury that determined the de-
fendant’s guilt was discharged for good
cause; or
‘‘(iv) after initial imposition of a sen-
tence under this section, reconsideration of
the sentence under the section is nec-
essary; or
‘‘(C) before the court alone, upon motion
of the defendant and with the approval of the
attorney for the Government.
A jury impaneled pursuant to subparagraph (B)
shall consist of 12 members, unless, at any time be-
fore the conclusion of the hearing, the parties stipu-
late, with the approval of the court, that it shall con-
sist of a lesser number.
‘‘(3) PROOF OF MITIGATING AND AGGRAVATING
FACTORS.—At the hearing, information may be pre-
sented as to—
‘‘(A) any matter relating to any mitigating
factor listed in this section and any other miti-
gating factor; and
‘‘(B) any matter relating to any aggravat-
ing factor listed in this section for which notice
has been provided under paragraph (1) and (if
information is presented relating to such a list-
ed factor) any other aggravating factor for
which notice has been so provided.
The information presented may include the trial
transcript and exhibits. Any other information rel-
evant to such mitigating or aggravating factors may
be presented by either the Government or the de-
fendant. The information presented by the Govern-
ment in support of factors concerning the effect of
the offense on the victim and the victim’s family
may include oral testimony, a victim impact state-
ment that identifies the victim of the offense and the
nature and extent of harm and loss suffered by the
victim and the victim’s family, and other relevant in-
formation. Information is admissible regardless of its
admissibility under the rules governing admission of
evidence at criminal trials, except that information
may be excluded if its probative value is outweighed
by the danger of creating unfair prejudice, confusing
the issues, or misleading the jury. The attorney for
the Government and for 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 informa-
tion to establish the existence of any aggravating or
mitigating factor, and as to the appropriateness in
that case of imposing a sentence of death. The attor-
ney for the Government shall open the argument.
The defendant shall be permitted to reply. The Gov-
ernment shall then be permitted to reply in rebuttal.
The burden of establishing the existence of an ag-
gravating factor is on the Government, and is not
satisfied unless the existence of such a factor is es-
tablished beyond a reasonable doubt. The burden of
establishing the existence of any mitigating factor is
on the defendant, and is not satisfied unless the ex-
istence of such a factor is established by a prepon-
derance of the evidence.
court shall recommend a sentence of death if it
unanimously finds at least one aggravating factor
and no mitigating factor or if it finds one or more
aggravating factors which outweigh any mitigating
factors. 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.
‘‘(6) SPECIAL PRECAUTION TO ASSURE AGAINST
DISCRIMINATION.—In a hearing held before a jury,
the court, before the return of a finding under para-
graph (5), shall instruct the jury that, in considering
whether a sentence of death is justified, it shall not
be influenced by prejudice or bias relating to the
race, color, religion, national origin, or sex of the de-
fendant or of any victim and that the jury is not to
recommend a sentence of death unless it has con-
cluded that it would recommend a sentence of death
for the crime in question no matter what the race,
color, religion, national origin, or sex of the defend-
ant or of any victim may be. The jury, upon return
of a finding under paragraph (5), shall also return
to the court a certificate, signed by each juror, that
prejudice or bias relating to the race, color, religion,
national origin, or sex of the defendant or any victim
was not involved in reaching his or her individual de-
cision and that the individual juror would have made
the same recommendation regarding a sentence for
the crime in question no matter what the race, color,
religion, national origin, or sex of the defendant or
any victim may be.
‘‘(d) IMPOSITION OF A SENTENCE OF DEATH.—Upon
the recommendation under section 3593(e) that a sentence
of death be imposed, the court shall sentence the defend-
ant to death. Otherwise the court shall impose a sentence,
other than death, authorized by law. Notwithstanding any
other provision of law, if the maximum term of imprison-
ment for the offense is life imprisonment, the court may
impose a sentence of life imprisonment without the possi-
bility of release.
‘‘(e) REVIEW OF A SENTENCE OF DEATH.—
‘‘(1) APPEAL.—In a case in which a sentence of
death is imposed, the sentence shall be subject to re-
view by the court of appeals upon appeal by the de-
fendant. Notice of appeal of the sentence must be
filed within the time specified for the filing of a no-
tice of appeal of the judgment of conviction. An ap-
peal of the sentence under this section may be con-
solidated with an appeal of the judgment of convic-
tion and shall have priority over all other cases.
‘‘(2) REVIEW.—The court of appeals shall re-
view the entire record in the case, including—
‘‘(A) the evidence submitted during the
trial;
‘‘(B) the information submitted during the
sentencing hearing;
‘‘(C) the procedures employed in the sen-
tencing hearing; and
‘‘(D) the special findings returned under
this section.
‘‘(3) DECISION AND DISPOSITION.—
‘‘(A) If the court of appeals determines
that—
‘‘(i) the sentence of death was not im-
posed under the influence of passion, prej-
udice, or any other arbitrary factor;
‘‘(ii) the evidence and information
support the special findings of the exist-
ence of an aggravating factor or factors;
and
‘‘(iii) the proceedings did not involve
any other prejudicial error requiring rever-
sal of the sentence that was properly pre-
served for and raised on appeal;
it shall affirm the sentence.
‘‘(B) In any other case, the court of ap-
peals shall remand the case for reconsideration
under this section or for imposition of another
authorized sentence as appropriate, except that
the court shall not reverse a sentence of death
on the ground that an aggravating factor was
invalid or was not supported by the evidence
and information if at least one aggravating fac-
tor required to be considered under this section
remains which was found to exist and the court,
on the basis of the evidence submitted at trial
and the information submitted at the sentenc-
ing hearing, finds no mitigating factor or finds
that the remaining aggravating factor or factors
which were found to exist outweigh any mitigat-
ing factors.
‘‘(C) The court of appeals shall state in
writing the reasons for its disposition of an ap-
peal of a sentence of death under this section.
‘‘(f) 
IMPLEMENTATION
OF
A
SENTENCE
OF
DEATH.—
‘‘(1) IN
GENERAL.—A person who has been
sentenced to death under this section shall be com-
mitted to the custody of the Attorney General until
exhaustion of the procedures for appeal of the judg-
ment of conviction and for review of the sentence.
When the sentence is to be implemented, the Attor-
ney 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 such
State does not provide for implementation of a sen-
tence of death, the court shall designate another
State, the law of which does so provide, and the sen-
tence shall be implemented in the manner prescribed
by such law.
‘‘(2) SPECIAL
BARS
TO
EXECUTION.—A sen-
tence of death shall not be carried out upon a person
who lacks the mental capacity to understand the
death penalty and why it was imposed on that per-
son, or upon a woman while she is pregnant.
‘‘(3) EMPLOYEES
MAY
DECLINE
TO
PARTICI-
PATE.—No employee of any State department of
corrections, the Federal Bureau of Prisons, or the
United States Marshals Service, and no employee
providing services to that department, bureau, or
service under contract shall be required, as a condi-
tion of that employment or contractual obligation, to
be in attendance at or to participate in any execu-
tion carried out under this section if such participa-
tion is contrary to the moral or religious convictions
of the employee. For purposes of this subsection, the
term ‘participate in any execution’ includes personal
preparation of the condemned individual and the ap-
paratus used for the execution, and supervision of
the activities of other personnel in carrying out such
activities.
‘‘(g) USE OF STATE FACILITIES.—A United States
Marshal charged with supervising the implementation of
a sentence of death may use appropriate State or local
facilities for the purpose, may use the services of an appro-
priate State or local official or of a person such an official
employs for the purpose, and shall pay the costs thereof
in an amount approved by the Attorney General.
‘‘(h) APPOINTMENT OF COUNSEL.—
‘‘(1) REPRESENTATION OF INDIGENT DEFEND-
ANTS.—Notwithstanding any other provision of law,
this section shall govern the appointment of counsel
for any 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,
where 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 one of the
conditions specified in subsection (h)(2) has oc-
curred.
‘‘(2) REPRESENTATION BEFORE FINALITY OF
JUDGMENT.—A defendant within the scope of this
section shall have counsel appointed for trial rep-
resentation as provided in section 3005 of this title.
At least one 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 ten days of receipt of such notice,
the district court shall proceed to make a determina-
tion whether the defendant is eligible under this sec-
tion for appointment of counsel for subsequent pro-
ceedings. On the basis of the determination, the
court shall issue an order—
‘‘(A) appointing one or more counsel to
represent 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 subsection shall
be different from the counsel who represented the
defendant at trial and on direct review unless the
defendant and counsel request a continuation or re-
newal 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 section, at least
one counsel appointed for trial representation must
have been admitted to the bar for at least five years
and have at least three years of experience in the
trial of felony cases in the Federal district courts. If
new counsel is appointed after judgment, at least
one counsel so appointed must have been admitted
to the bar for at least five years and have at least
three years of experience in the litigation of felony
cases in the Federal courts of appeals or the Su-
preme Court. The court, for good cause, may ap-
point counsel who does not meet these standards,
but whose background, knowledge, or experience
would otherwise enable him or her to properly rep-
resent the defendant, with due consideration of the
seriousness of the penalty and the nature of the liti-
gation.
‘‘(5) APPLICABILITY
OF
CRIMINAL
JUSTICE
ACT.—Except as otherwise provided in this section,
the provisions of section 3006A of this title shall
apply to appointments under this section.
‘‘(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. This limitation shall not preclude
the appointment of different counsel at any stage of
the proceedings.
‘‘(i) COLLATERAL ATTACK ON JUDGMENT IMPOSING
SENTENCE OF DEATH.—
‘‘(1) TIME
FOR
MAKING
SECTION
2255
MO-
TION.—In a case in which sentence of death has
been imposed, and the judgment has become final as
described in subsection (g)(3), a motion in the case
under section 2255 of title 28, United States Code,
must be filed within 90 days of the issuance of the
order relating to appointment of counsel under sub-
section (g)(3) of this title. The court in which the
motion is filed, for good cause shown, may extend
the time for filing for a period not exceeding 60
days. A motion described in this section shall have
priority over all noncapital matters in the district
court, and in the court of appeals on review of the
district court’s decision.
‘‘(2) STAY OF EXECUTION.—The execution of a
sentence of death shall be stayed in the course of di-
rect review of the judgment and during the litigation
of an initial motion in the case under section 2255
of title 28. The stay shall run continuously following
imposition of the sentence, and shall expire if—
‘‘(A) the defendant fails to file a motion
under section 2255 of title 28, within the time
specified in subsection (a), or fails to make a
timely application for court of appeals review
following the denial of such motion by a district
court;
‘‘(B) upon completion of district court and
court of appeals review under section 2255 of
title 28, the motion under that section is denied
and (i) the time for filing a petition for certio-
rari has expired and no petition has been filed;
(ii) a timely petition for certiorari was filed and
the Supreme Court denied the petition; or (iii)
a timely petition for certiorari was filed and
upon consideration of the case, the Supreme
Court disposed of it in a manner that left the
capital sentence undisturbed; or
‘‘(C) before a district court, in the pres-
ence of counsel and after having been advised
of the consequences of his decision, the defend-
ant waives the right to file a motion under sec-
tion 2255 of title 28.
‘‘(3) FINALITY
OF
THE
DECISION
ON
RE-
VIEW.—If one of the conditions specified in sub-
section (b) has occurred, no court thereafter shall
have the authority to enter a stay of execution or
grant relief in the case unless—
‘‘(A) the basis for the stay and request for
relief is a claim not presented in earlier pro-
ceedings;
‘‘(B) the failure to raise the claim was (i)
the result of governmental action in violation of
the Constitution or laws of the United States;
(ii) the result of the Supreme Court recognition
of a new Federal right that is retroactively ap-
plicable; or (iii) based on a factual predicate
that could not have been discovered through the
exercise of reasonable diligence in time to
present the claim in earlier proceedings; and
‘‘(C) the facts underlying the claim would
be sufficient, if proven, to undermine the
court’s confidence in the determination of guilt
on the offense or offenses for which the death
penalty was imposed.’’.
(b) CLERICAL AMENDMENT.—The table of sections
at the beginning of chapter 51 of title 18, United States
Code, is amended by adding at the end the following:
‘‘1118. Protection of foreign tourists and visitors.’’.