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The Bureau of the Budget and the Department of Justice have undertaken a study of the potential costs of Title VI in response to Senator McClellan's letter of March 17, 1969 to the Director of the Bureau. While that study is not yet completed, we believe it desirable that the bill not specify a particular appropriation authorization amount or limit the authorization to a single fiscal year. It is also noted that this Title speaks in general terms of providing such protected facilities to witnesses and potential witnesses in "investigations which might lead to legal proceedings." In view of the enormity of the expenses involved in the care and protection of witnesses and informants in this area generally, we do not wish this Title to be construed as shifting the responsibility for the expenses of informants which are presently being borne by the several investigative agencies of the Government, including the Federal Bureau of Investigation, the Internal Revenue Service, the Bureau of Narcotics and Dangerous Drugs, and others.

Finally, it is noted that this Title authorizes the Attorney General to provide secure and safe housing facilities for the use of both state and Federal witnesses. In view of the enormity of the costs and other practical problems involved in the protection of witnesses, the Department believes it to be inappropriate for it to assume the responsibility for the protection of state witnesses and feels that this responsibility should be assumed by the states. While, therefore, we do not believe that the Attorney General should be authorized to provide for the care and protection of state witnesses, we would not be opposed to granting him authority to offer the use of housing facilities, on a reimbursable basis, in limited situations where the states cannot provide adequate facilities to its witnesses, provided all other arrangements and expenses for the protection and care of such witnesses, such as guards, subsistence, medical care, etc., are made and borne by the states.

TITLE VII-DECLARATION OF CO-CONSPIRATORS

This Title would amend Chapter 223 of Title 18, United States Code, by adding at the end thereof a new Section 3502, "Admissions of co-conspirators".

This provision woud make admissible into evidence in a criminal action in which it is alleged that two or more defendants participated as co-conspirators in the commission of a criminal offense, an extrajudicial declaration made by one such defendant against any other defendant if the court determines that: (1) the declaration was made by the defendant during his participation in the conspiracy, (2) there are in existence facts and circumstances from which its trustworthiness may be inferred, (3) the declaration relates to the existence or execution of the conspiracy, and (4) the declaration was made during the time in which such other defendant participated in the conspiracy.

This provision appears to codify in all but one respect the present law as to the admissibility in evidence of the declarations of co-conspirators in conspiracy cases. All aspects of the present rule are retained save the requirement of “furtherance". In lieu of this, there is substituted the requirement that such a declaration must "relate to the existence or execution" of the conspiracy, and that to render it admissible the court must find that "there are in existence facts and circumstances from which its trustworthiness may be inferred".

The "conspirator's hearsay exception" is a firmly established exception to the general rule against the use of hearsay to establish criminal liability. Krulewitch v. United States, 336 U.S. 440, 443 (1949). The exception has come to rest in American jurisprudence on agency principles, as articulated by Mr. Justice Storey in United States v. Gooding, 25 U.S. (12 Wheat.) 460, 469 (1827), and the exception remains as yet unquestioned by the Supreme Court. See Bruton v. United States, 391 U.S. 123, 128 N.3 (1968).

The rationale behind this proposed change apparently is that the "furtherance" requirement of this exception is of somewhat ill defined meaning, but apparently an outgrowth of the agency rationale which is sometimes stated in terms of res gestae language, but which many other courts interpret so broadly as to apply to anything that relates to the conspiracy. Since this reduces the requirement to relevancy, and since all evidence must be relevant, it is reasoned that the "furtherance" requirement is thus eliminated in substance if not in form. This being so, it is felt that something more, namely, the element of trustworthiness should be required.

The logic of this argument is quite compelling, and the substitution of the element of trustworthiness of relevant evidence for the furtherance requirement

would appear to be not only more realistic in terms of current judicial interpretation but also more consistent with the policy behind this exception to the general rule of exclusion of hearsay evidence.

Criminal law conspiracy principles have been most effective in organized crime prosecutions, and there can be no doubt that the "co-conspirator's hearsay exception" has been a vital factor in their success. The continued vitality of this co-conspirator rule is absolutely essential in conspiracy prosecutions of all types. Since the agency rationale which currently supports this exception is subject to increasing criticism by the courts and by the authorities in the field, it would seem only prudent to move away from this rationale toward a more realistic basis for the exception, that is from agency to trustworthiness. The movement to eliminate the furtherance requirement began with Professor Morgan's examination of the soundness of the vicarious liability rationale in an article in 42 Harvard Law Review 461 (1929). As a result of Professor Morgan's article the furtherance requirement was eliminated both in the Uniform Rules of Evidence, Rule 63(9), and in the Model Code of Evidence, Rule 508(b). It has also been approved by Professor McCormick, Evidence, Section 244 (1964).

The ambiguity of the furtherance requirement has caused considerable difficulty in the admission of testimony in conspiracy prosecutions, and more often than not a narrow construction of the term results in the exclusion of the Government's evidence. Few opportunities for appelate review of the principle have been occasioned since the Government has no right of appeal.

On the other hand, a conflict among the Circuit Courts exists in the cases of United States v. Birnbaum, 337 F. 2d 490 (C.A. 2, 1964), where Judge Lumbard applies a strict agency construction to the furtherance requirement, and in International Indemnity Company v. Lehman, 28 F. 2d 1 (C.A. 7, 1928), cert. denied, 278 U.S. 648, which is classically cited for the virtual abandonment of the furtherance requirement in favor of the test of relevancy.

In view of these authorities then, and in view of the apparent reality that many courts have discarded the furtherance requirement in favor of relevancy, it would seem that this is an appropriate time to codify this principle. Perhaps an even more cogent reason for discarding the furtherance requirement which is based on agency and shifting the basis of the exception to trustworthiness, however, is the portent in several recent Supreme Court decisions, Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965); Barber v. Page, 390 U.S. 719 (1968); and Bruton v. United States, 391 U.S. 123 (1968), that the Supreme Court may be moving towards re-examination of the present theory sustaining the admissibility of co-conspirator's statements based on agency principles. These cases, while dealing with co-conspirator's statements sought to be admitted after the termination of the conspiracy, indicate that the right to confrontation under the Sixth Amendment still permits some traditional hearsay exceptions, based upon necessity and trustworthiness. In view of these decisions, therefore, it would seem that this would be a prudent time to enact this provision.

TITLE VIII-SPECIAL OFFENDER SENTENCING

Title VIII would amend Chapter 227 of Title 18, United States Code, by adding at the end thereof four new Sections (Sections 3575-3578) dealing with the punishment of special classes of offenders.

This Title provides, upon conviction of a felony, for increased punishment for three categories of special offenders-habitual offenders, professional offenders, and organized crime offenders. Habitual offenders are defined as those with two or more previous felony convictions. Professional offenders and organized crime offenders are defined at greater length, but less precisely. In each case the United States Attorney must give notice to the defendant prior to trial that he intends to proceed against him as a special offender. If the trial results in a conviction, there is a subsequent hearing to determine whether the defendant is a special offender. If the court determines that he is, the defendant may be sentenced to up to thirty years imprisonment and is not eligible for suspension of sentence, parole, or remission, or reduction of the sentence for any cause until he has served at least two-thirds of the term imposed. Sentences will be subject to appellate review by either the Government or the defendant and the appellate court may increase or decrease the sentence. Finally, in sentencing under these provisions the court is allowed to receive and consider any and all evidence without regard to the manner in which such evidence was obtained.

The imposition of increased penalties for special classes of offenders is a procedure which has been approved for some time, and the Department believes that such a procedure is desirable. Title VIII, however, as presently drafted. raises serious problems in three general areas-specificity of definitions for categories of offenders, procedures for making determinations, and the appeal provisions.

As to the first, Title VIII adequately defines a habitual offender and gives adequate notice for hearing on the recidivist issue in line with state statutes which have been held constitutional. Epperson v. United States, 371 F. 2d 956 (1967); Kendrick v. United States, 238 F. 2d 34 (1957); Rider v. Crouse, 357 F 2d 317 (1966); Byers v. Crouse, 339 F. 2d 550 (1964); Oylers v. Boles, 368 U.S. 448 (1962).

The definition of professional offender appears to be so vague as possibly to violate due process. Lanzetta v. New Jersey, 306 U.S. 451 (1939). It includes no limits and can easily be read to include any criminal. Such a category is too broad and may be held to violate not only due process but the equal protection clause as well because of a lack of justifiable distinction warranting extra punishment for this category of offenders. In addition, increasing the punishment for this category seems to be punishing status and not a particular criminal act, which was held unconstitutional in Robinson v. California, 370 U.S. 660 (1962). But see Lanzetta (supra) which indicated a person could be punished for being a gangster (status) if the definition was not too vague. And see Powell v. Texas, 392 U.S. 514 (1968) which held that a chronic alcoholic could be punished for being in a public place (status plus overt act).

In order to withstand a constitutional attack on grounds of vagueness, therefore, it is felt that the definition of professional offender must be made more specific and must emphasize a pattern of specific past criminal activity and conduct in opposition to the legal structure of society as a whole, rather than emphasis on his income from a source other than legal. This could perhaps best be approached by adopting the approach taken in the Model Sentencing Act which allows for extended sentences for dangerous offenders on grounds, inter alia that: (c) The defendant is being sentenced for the crime of extortion, compulsory prostitution, selling or knowingly and unlawfully transporting narcotics, or other felony, committed as part of a continuing criminal activity in concert with one or more persons.

The definition of organized crime offender, on the other hand, is much more specific than professional offender and does not appear so vague as to violate due process, and appears to define the type of person sought to be covered by this Title with a fair amount of accuracy.

It is suggested that one method of solving the problem would be to develop a single definition for both professional offender and organized crime offender which would comprehend any person convicted of a felony involving extortion. narcotics, gambling, prostitution, bribery, etc., or other felony, which was committed as part of a continuing illegal business or activity in which he acted in concert with one or more persons and occupied a position of organizer or other supervisory or management position, or was an executor of violence. This approach would adopt in part the criteria set forth in the above-quoted reference to the Model Sentencing Act.

The second objection to this Title is that the procedures for making a determination may also violate due process. Although there is a provision for a hearing, the court is evidently not limited to the evidence submitted during the trial and the hearing in determining whether or not the defendant is a spe cial offender, since the determination may be made on the basis of the presentence report to which the defendant apparently would not have access. Similarly, it is pointed out that no attempt is made to define the defendant's right to be informed of and to refute the evidence on which the court's determination is made. Nor is the court apparently required to make any written findings other than the conclusory finding on which the extended sentence is based.

We believe there is a substantial risk that this procedure would be held to violate due process under the rule announced in Specht v. Patterson, 386 U.S.| 605 (1967). In that case which dealt with a post-conviction proceeding under a state Sex Offenders Act, the court said:

Due process, in other words, requires that [the defendant] be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examination, and to offer evidence of his own. And there must be findings adequate to make meaningful an appeal that is allowed. 386 U.S. at 610.

While it is not entirely certain that all of these procedures would be required prior to the imposition of an extended penalty for a specific crime (as distinguished from a sex offender commitment that is triggered by, but separate from, the conviction for a crime), it is probable that more is required before imposing an extended sentence than is necessary to ordinary sentencing procedure. Short of a full jury trial, it is not clear what the procedural requirements for extended sentencing are.

In order to strengthen the procedures of this proposal against successful constitutional attack, it is suggested that it be amended to provide the following procedural safeguards in addition to its provisions for notice and hearing: (1) a requirement that the defendant be furnished a copy of the presentence report with the names of confidential sources deleted where necessary; (2) the right to counsel and opportunity to cross-examine any witnesses presented by the Government; (3) the right to compulsory attendance of witnesses on the defendant's behalf; (4) a requirement that the court state the basis for imposition of extended sentence.

On the other hand, it is not felt that either a public hearing or strict adherance to the rules of evidence is required. The imposition of sentence on the basis of a preponderance of the evidence also appears to be consistent with due process.

The lack of direct precedent makes it virtually impossible to predict whether these procedures would survive constitutional challenge. On balance they seem fair and consistent with the due process requirements outlined in Specht (supra), and it is certainly arguable that they meet the necessary constitutional requirements.

The third problem with this Title is in connection with proposed Section 3577 which provides for appellate review of sentence by both the Government and the defendant, and allows an increase of sentence when either the Government or the defendant appeals.

Two constitutional problems at issue here are the double jeopardy question involved in allowing an appeal by the prosecutor, and the due process question involved in allowing an increase of sentence where the defendant appeals.

As to the first, while recent authorities appear to cast some doubt on the constitutionality of this provision, cf. Patton v. North Carolina, 381 F. 2d. 636, 645-46 (C.A. 4, 1967), cert. denied, 390 U.S. 905 (1968) and Whaley v. North Carolina, 379 F. 2d 221 (C.A. 4, 1967), the Supreme Court has upheld an increase in sentence following an appeal by the defendant in at least three cases: Flemister v. United States, 207 U.S. 372 (1911); Ocampo v. United States, 234 U.S. 91 (1914); Stroud v. United States, 251 U.S. 15 (1919). Consequently, it would seem that if these cases are still good law today then the Government should be able to seek an increase in sentence on appeal without violating either due process or the Fifth Amendment ban on double jeopardy.

The constitutional issue of whether a defendant may be given an increased sentence when he appeals may be decided in two cases now on the docket of the Supreme Court. In these cases, North Carolina v. Pearce, No. 413, 1968 Term, and Simpson v. Rice, No. 418, 1968 Term, the issue is squarely presented whether a defendant may be given an increased sentence after his first sentence has been set aside for one reason or another.

In order to avoid the question of due process posed by this provision, it is suggested that this proposal be amended to provide that if the Government fails to exercise its right of appeal within a specified number of days, e.g., ten days, then no increase of sentence may be allowed upon appeal by the defendant after the Government has exercised its option whether to appeal or not.

Senator MCCLELLAN. Mr. Wilson we welcome you this afternoon. We appreciate your cooperation and your presence here. You have with you two members of your staff, do you not?

Mr. WILSON. Yes, sir. Mr. Henry Petersen, my deputy, and Mr. William Lynch, Chief of the Organized Crime Section. Senator MCCLELLAN. Thank you very much.

Mr. Wilson, I see you have a prepared statement, a rather lengthy statement. I would be glad if you would make any brief comments,

30-902-69-25

and then if it is satisfactory with you, let you insert your prepared statement in the record in full at this point. You may highlight your statement, and let us ask you some questions as you proceed.

Is that satisfactory?

Mr. WILSON. Yes, sir; I think that is the way to handle it. (The complete statement of Mr. Wilson follows:)

TESTIMONY OF ASSISTANT ATTORNEY GENERAL WILL WILSON

Mr. Chairman, you may recall that I accompanied Attorney General Mitchell when he appeared before the Subcommittee on March 18 of this year in support of the objectives of S. 30. At that time the Attorney General agreed to send the Subcommittee at a later date a detailed written analysis of the Department's views on S. 30, and to make available a representative of the Department to testify regarding these views. The Department's written comments on S. 30 were sent to you, Mr. Chairman, on May 8, and I am appearing today at the invitation of the Subcommittee as the official representative of the Department of Justice to testify on this matter. In addition to S. 30, Mr. Chairman, I am also prepared to comment on a number of other bills dealing with the control of organized crime, including S. 974, S. 975, S. 976, S. 1623, S. 1624, S. 1861, S. 2022, and S. 2122.

Pursuant to your request of the Attorney General during his appearance on March 18, we have examined the charts summarizing the Federal law enforce ment effort against organized crime since 1960, which were printed in the Congressional Record as exhibits to your speech in the Senate on March 11, 1969. on the subject of organized crime in the United States, and have made certain corrections and revisions of the statistics reflected on Chart 3 of Exhibit 2Organized Crime Section Indictments which should make this Exhibit more accurate according to the best information in our files. I would like to submit a memorandum containing these corrections as an exhibit to my testimony.

Pursuant to your request of the Attorney General, we have also prepared a memorandum comparing the composition of the major families of the Cosa Nostra as it existed in 1960 with its composition at the present time, and a memorandum listing the number of Cosa Nostra members indicted and convicted during the period 1960 through March 1969. I would also like to submit these memoranda as exhibits to my testimony.

With respect to S. 30, Mr. Chairman, I think it would perhaps be most helpful for me to highlight both those areas of the bill which we support most strongly and those which we likewise oppose most strongly.

We are generally in favor of the various changes in the law affecting the summoning, terms, and powers of grand juries which Title I would effect, such as allowing the grand jury to select its own foreman and deputy foreman, to extend its term for additional periods of six months, not to exceed a total of 36 months, and to petition the court to impanel an additional grand jury upon a showing of need. We also favor the revival of the grand jury's historic report making power, as narrowly circumscribed in this proposal, as being in the interest of good and effective government, but we urge that this provision be amended to provide for an additional category of reports, namely on organized crime conditions in the district which would not be critical of an identified or identifiable person. In order that the regular business of the grand jury may be conducted with dispatch and without interruption, and in secrecy, we also urge that the provision be amended to provide for the issuing of any report only upon the conclusion of the grand jury's term.

With respect to the proposed amendment of 18 U.S.C. 3322, which presently provides that "The Court shall order one or more grand juries to be summoned at such times as the public interest requires," to require the convening of a grand jury at least once during each eighteen month period, by each district court, we are not aware that any serious problem exists in this regard in any district. The difficulty we have experienced in some districts, however, is obtaining a sufficient number of grand juries to accommodate the general needs of the district and the needs of the typically lengthy grand jury investigation. To remedy this problem we strongly recommend as an alternate proposal that present Section 3322 of Title 18 be amended to provide, in addition to its present

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