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 (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. Teras, 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 narcoties, 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 special 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,

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 enforcement 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 2— Organized 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

language, that a grand jury be impaneled in each district in which the Attorney General certifies in writing to the chief judge of the district that in his judgment such a special grand jury is necessary because of major organized crime activity in the district.

The Department is opposed to the provision which would allow the grand jury to petition the Attorney General to replace an attorney, agent or investigator if dissatisfied with his performance, on the grounds that it is unnecessary since sufficient control over such personnel already exists in the Department, that it might well tend to unduly limit the discretion of attorneys charged with the investigation of sensitive or unpopular matters, and that it could also be expected to invite the making of unfounded, though perhaps good faith, complaints in those close or hard cases where the layman grand jury refuses to accept the sound legal judgment of an experienced prosecutor that the evidence is sufficient or insufficient, as the case may be, as a basis for an indictment. In lieu of the immunity proposal contained in Title II of S. 30, the Department recommends enactment of the immunity proposal of the National Commission on Reform of Federal Criminal Laws which you introduced in the Senate on May 12, 1969, Mr. Chairman, on behalf of yourself and Senators Hruska and Ervin as S. 2122. The Department's chief reason for preferring the National Commission's immunity proposal is that, unlike the proposal contained in Title II of S. 30, which is limited to grand jury or court proceedings, it would create a single integrated immunity provision applicable to grand jury-court proceedings; formal administrative hearings by an independent agency or within the executive branch; and Congressional investigations. Another important reason for supporting this proposal is its provision for notice to a central law enforcement point, the Attorney General, as a means of attempting to minimize the possibility that a conferment of immunity by one agency may conflict with the interests of another agency. I will comment on S. 2122 in greater detail at a later point in my statement.

Title III, dealing with the summary punishment of recalcitrant witnesses who refuse without just cause to comply with an order of the court to give testimony in grand jury or court proceedings, seeks to codify the civil contempt aspects of existing case law in this area, Shillitani v. United States, 384 U.S. 364 (1966), and we strongly favor this proposal. Since under the principles governing civil contempt a witness can no longer be confined when the court proceeding is concluded or the grand jury discharged, we have suggested that this limitation be spelled out in the statute by adding at the end of the proposal the following language: "but in no event shall such period of confinement exceed the life of the court proceeding or of the term of the grand jury before which such failure or refusal to comply with the court order occured." With respect to the provision of this Title which would deny bail pending appeal of an order of confinement under this proposal, we have also suggested that in order to take into account the exceptional case where substantial grounds for appeal may exist, it would be in the interests of justice to place a time limit of thirty days from the date of appeal for disposition of such an appeal.

Title IV would create an additional felony provision for perjury or subornation of perjury before a court or grand jury. The theory behind this proposal apparently is that since a new offense is created, the old common law rules of evidence applicable to perjury prosecutions generally, the two witness and direct evidence rules, would not be applicable to this new offense. The Department agrees with the recommendation of the President's Commission on Law Enforcement and Administration of Justice that abolition of these outmoded, restrictive evidentiary rules is desirable, but we question whether the form of the proposed provision is adequate to accomplish the reform sought. We believe that legislation abrogation of these rules requires specific language in the statute and we have, therefore, suggested appropriate language which would achieve this objective. The Department also favors the provision of this proposal which would, in cases of inconsistent statements under oath, relieve the Government of the necessity of proving which one is false, and allow the prosecutor to plead and prove the case in the alternative and thus show the falsity by logical inconsistency.

As was pointed out in our written comments, this provision is not as inclusive as the present Federal perjury statute in that it is specifically limited to "any trial, hearing, or proceedings before any court or grand jury," and thus not only are pre-trial depositions, affidavits, and certificates excluded from its cover