MEASURES RELATING TO ORGANIZED CRIME TUESDAY, MARCH 25, 1969 U.S. SENATE, SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to call, at 10 o'clock a.m., in room 2228, New Senate Office Building, Senator John L. McClellan (chairman of the subcommittee), presiding. Present: Senators McClellan and Thurmond. Also present: G. Robert Blakey, Chief Counsel; Russell M. Coombs, Thomas M. Gunn, Emon A. Mahony, James C. Wood, Assistant Counsel; and Mrs. Mabel A. Downey, clerk. Senator MCCLELLAN. Very well, we will proceed. Mr. Broderick, will you come around, please, and just have a seat. Will you identify yourself for the record, please, sir? STATEMENT OF VINCENT L. BRODERICK, CHAIRMAN, COMMITTEE ON FEDERAL LEGISLATION, NEW YORK COUNTY LAWYERS' ASSOCIATION Mr. BRODERICK. Yes, sir. My name is Vincent L. Broderick, and I am chairman of the Committee on Federal Legislation of the New York County Lawyers' Association. Senator MCCLELLAN. Very well. Do you have a prepared statement? Mr. BRODERICK. Yes, I do, sir. I have submitted a report of our committee, Mr. Chairman, together with a report on the general area of crime which our committee prepared in 1968, and I ask that these reports of the committee be made a part of the record, and then I would like in my testimony briefly to touch on the highlights of our committee's position. Senator MCCLELLAN. Are these Report Nos. F-2 and F-9? Mr. BRODERICK. That is correct. Senator MCCLELLAN. From the New York County Lawyers' Association? Mr. BRODERICK. Yes, sir. Senator MCCLELLAN. Very well, the report on the proposed Organized Crime Control Act of 1969 Mr. BRODERICK. That is correct. Senator MCCLELLAN. And you ask that that be printed in the record in full at this point? Mr. BRODERICK. Yes, I do. Senator MCCLELLAN. They will be printed in the record at this point. (The report referred to follows:) [From the New York County Lawyers' Association, Committee on Federal Legislation, Report No. F-2, April 1969] REPORT ON THE PROPOSED ORGANIZED CRIME CONTROL ACT OF 1969 S. 30, 91st Cong., 2d Sess. (1969) contains eight Titles seeking to strengthen federal law enforcement. Several of its provisions are in accord with the recommendations of this Committee in its report of October, 1968 on legislation to strengthen fairness and effectiveness of law enforcement.' A copy of this report is submitted herewith. In our view the general purpose of the bill is sound, and we approve many of its provisions. In our judgment, however, many of its provisions require revision: others we cannot approve. We also suggest, in this report, additional matters which might be considered for inclusion. FINDINGS AND STATEMENT OF POLICY OF S. 30 The findings contained in the preamble of S. 30 refer to "defects in the evidencegathering process" and strengthening of our legal tools for that purpose. In this respect, we beleive that procedures for interrogation and for search and seizure require further attention and we urge consideration of the recommendations contained in our report of October 1968 on these subjects.2 TITLE I-GRAND JURY POWERS AND DUTIES We approve the provisions of Title I of S. 30 which would extend the maximum term of Grand Juries, expedite the empanelling of additional Grand Juries when necessary, and permit Grand Juries to make reports "proposing recommendations for legislative, executive or administrative actions in the public interest" when such reports do not attack identifiable persons. We do not, however, see a demonstrated need for permitting Grand Juries to file presentments accusing specified individuals of noncriminal misconduct. Such recommendations would necessarily be based upon a one-sided presentation of evidence, even though the individual concerned may appear before the Grand Jury. We are also reluctant to see the Courts become involved in evaluating evidence presented before Grand Juries as the bill would require them to do if the presentments were to be made public. In our view the benefits to be gained by such presentments against individuals are outweighed by the dangers involved and the cumbersomeness of the procedures established by the bill to attempt to reduce these dangers. We would therefore eliminate these sections from Title I. Likewise, we see no necessity to provide specific statutory authority for Grand Juries to complain to the Attorney General regarding ineffective work by prosecutors or investigators. In our judgment they already have this power. And we believe it would be unwise specifically to require the Attorney General to act on all such complaints, which may or may not have merit. We would therefore delete these references from Title I as well. TITLE II-IMMUNITY Title II of the bill provides that a witness may be compelled to testify, over a claim of the privilege against self-incrimination in a federal investigation or proceeding, upon authorization by the Attorney General, with provision that the testimony so compelled or its fruits may not be used against the witness. This provision is in accord with the recommendation in Part III, p. 10–12 of our October 1968 report, and in our view would be valid under the principles laid down in Murphy v. Waterfront Commission, 378 U.S. 52 (1964), where the Court held 1 Portions of our report are set forth in the January 1969 Bulletin of the Committee on Federal Legislation, New York State Bar Association, Part I, p. 3-16. See Committee on Criminal Law, Federal Bar Association of New York, New Jersey and Connecticut. "New Approaches to Enforcement of the Fourth Amendment," 3 Criminal Law Bulletin 630 (Nov. 1967); Givens, "Reconciling the Fifth Amendment with the New for More Effective Law Enforcement," 52 A.B.A.J. 443 (May 1966); Note, "Procedural Protections of the Criminal Defendant," 78 Harv. L. Rev. 426, 445-49 (1964); Bulletin of the Committee on Federal Legislation, New York State Bar Association, Part I, p. 7-10, 13-15 (Jan. 1969). that testimony could be compelled under state immunity statutes even though the state could not preclude federal prosecution, because the Court held the compelled testimony or its fruits could not be used against the witness in such a federal prosecution if brought. Present statutes giving blanket immunity to witnesses even against prosecution based on entirely extrinsic evidence are a "gratuity to crime" in view of the Murphy v. Waterfront Commission ruling and should be superseded by provisions such as those in Title II of S. 30. We believe that the provisions in Title II that the Attorney General must specifically authorize all proceedings under the Title are extremely important, inasmuch as otherwise testimony might be compelled in such a manner as to prejudice pending cases by requiring a hearing as to the source of much evidence in such pending cases even though the compelled testimony could not in fact be used. Title II as proposed should be amended to provide that, where a witness is to be questioned under the authority of Title II, he may be informed of the applicability of Title II, at or before the time he is questioned, in which event other "automatic" immunity statutes would be superseded. This is important inasmuch as under present law a witness called in certain types of cases receives blanket immunity even where he does not invoke the privilege against self-incrimination.* The suggested amendment to Title II would prevent this anomaly. TITLE III-RECALCITRANT WITNESSES Title III of the bill provides that where a witness fails or refuses to comply with an order of a court to testify in court or before a grand jury, the court may summarily order him confined until he is willing to testify. We approve that aspect of Title III which would permit a witness to be held until he is willing to testify. We cannot approve, however, the summary incarceration of a witness without notice, counsel, hearing and the other procedural safeguards associated with due process, merely upon the failure of the witness to testify being "brought to" the "attention" of a Court. In our view the ordinary procedures for determining guilt should apply here as in cases of other violations of court orders. Bail pending appeal may properly be denied at present where the appeal is frivolous. The question of bail pending appeal should be handled as in other cases. We see no need for a statutory exclusion of all bail in such cases. TITLE IV-FALSE STATEMENTS Title IV of S. 30 would abolish the requirement that two witnesses establish the falsity of a perjurious statement by making the penalties for false statements to governmental agencies generally, which contain no such requirement (18 U.S.C. § 1001), applicable to false statements before a Grand Jury or court. We see no reason for this anomaly and approve this change, if the false statement is material. Likewise we approve the provision that inconsistent statements may be used to establish falsity without proving which one is true. The provision that an admission of falsehood in "the same continuous trial" bars prosecution, however, should be expanded to refer to "the same continuous trial, hearing, or proceeding" to encompass Grand Jury investigations and court proceedings other than trials, as well as trials. TITLE V-DEPOSITIONS Title V of S. 30 would permit the Government to obtain a deposition of a witness in a criminal case, with the defense entitled to be present and crossexamine the witness, to protect against situations where the witness is afraid of reprisals prior to trial. This would preserve the basic rights of confrontation and we approve the change as desirable. We believe, however, that caution is in order in granting such depositions inasmuch as they deprive the trier of the facts of the opportunity to observe the demeanor of the witness, often of great aid in assessing his credibility. The court should also be empowered to grant relief from unduly burdensome discovery. 3 Shapiro v. United States, 335 U.S. 1, 7, 15 (1948). See United States v. Monia, 317 U.S. 424, 425 (1943); 15 U.S.C. § 32, 49, 155; 18 U.S.C. § 835; 26 U.S.C. § 4874; 46 U.S.C. § 827, 49 U.S.C. § 9, 43, 46-48; 50 U.S.C. App. 1896. TITLE VI-FACILITIES FOR HOUSING GOVERNMENT WITNESSES Title VI is also designed to deal with intimidation of witnesses. It would provide that the Attorney General may arrange for housing and protection of such witnesses and their families in order to prevent reprisals against them. We recognize that this is indispensable to the safety of witnesses in important cases and therefore support the enactment of Title VI. However, there is a danger that continuous Government custody of a witness and his family may lead the witness, in an excessive desire to please those responsible for his welfare, to color his testimony, perhaps without the knowledge of the prosecutor. To lessen this risk, we believe that (a) the procedure should be applied with caution and only where clearly necessary to protect the witness, (b) the defense should be notified when this procedure is used concerning a witness to testify at a trial, and defense counsel should also be entitled to take the deposition before trial of witnesses so housed, (c) the number of persons so housed should be reported to Congress annually, and (d) the matter should be a proper subject for cross-examination at trial. For the purpose of protecting witnesses, we believe that it is also desirable to protect federal witnesses in federal proceedings of all kinds against threats by amending 18 U.S.C. § 1503 to accomplish this. TITLE VII-ADMISSIBILITY OF DECLARATIONS OF CO-CONSPIRATORS Title VII of S. 30 restates the generally accepted rule that declarations of conspirators in furtherance of a conspiracy are admissible in evidence against all persons then parties to the conspiracy in appropriate cases. In the absence of indications that the courts are refusing to admit such evidence in a significant number of cases, we doubt the necessity of this legislative restatement of a rule of evidence and would not recommend its adoption. TITLE VIII-SPECIAL OFFENDER SENTENCING Title VIII would permit greater sentences than those now authorized to be imposed on certain multiple offenders and others found after hearing to be "professional offenders" or "organized crime offenders." We do not approve these provisions. There is little evidence that the many-time-loser statutes in the various states have been effective in deterring recidivism or that a similar federal statute would be helpful. Rather, we urge greater attention to the sentences now given by the courts within the authority they now have, and a Congressional study of the adequacy of sentences in serious cases, perhaps leading to recommended but not mandatory sentences for various types of cases. The fines now authorized, e.g., $1000 for mail fraud (18 U.S.C. § 1341) are also often absurdly low and outdated. Recommendations in these and other respects are set forth in Part VII, p. 14-15 of our October 1968 report." The provisions of Title VIII which would authorize greater sentences for "professional" and "organized crime" offenders run afoul of the American distaste for "crimes of status" which punish a person for what he is rather than for what he is proved to have done. We believe that this is dangerously subject to abuse and urge its deletion from the bill. CONCLUSION With the exceptions indicated, we believe that S. 30 would represent a constructive step forward in fairness and effectiveness of law enforcement. We urge its revision in the respects indicated, and the consideration of additional steps as set forth in this report. Respectfully submitted, Vincent L. Broderick, chairman; Richard A. Givens, secretary; Alan See also Committee on Criminal Law, Federal Bar Association of New York, New Jersey and Connecticut, "New Approaches to Sentencing," 3 Criminal Law Bulletin 682 (Dec. 1967). |