age but also administrative and legislative hearings and proceedings. I would suggest, therefore, that this would be an appropriate time for the Subcommittee to consider amending the present perjury statute, 18 U.S.C. 1621, and thereby, by express language abolish the peculiar rules of evidence applicable to perjury generally in all types of proceedings to which the present statute is presently applicable.

The Department of Justice favors the enactment of Title V's provision which would allow the Government to take depositions for the purpose of preserving the testimony of Government witnesses, whenever it is in the interest of justice, after the filing of an indictment or information. The provision contains adequate procedural safeguards to protect the defendant's rights under the Sixth Amendment to representation by counsel and confrontation of witnesses by allowing him an opportunity to be present with counsel and to cross-examine the deponent, and also requires the Government to make available for the use of the defendant at the time of the examination any statement of the witness in the Government's possession which it would be required to make available to the defendant under the Jencks Act, 18 U.S.C. 3500, if the witness were testifying at the trial. The deposition, of course, would be admissible in evidence at the trial in the event the witness is dead, ill, out of the United States, or the Government is unable to procure his appearance by subpoena.

This extension to the Government of a right that a defendant in a criminal trial already enjoys under Rule 15 of the Federal Rules of Criminal Procedure should prove to be an extremely useful tool in the effective trial of all criminal cases, but particularly in organized crime cases where there is a substantial danger that the witnesses will not be available at the time of the trial.

The Department wholeheartedly supports the theory behind Title VI, which is that witnesses in organized crime cases need physical protection against reprisals from the members of organized crime against whom they testify. The evidence is abundant that members of organized crime syndicates will ruthlessly eliminate anyone who stands in the way of success in any criminal enterprise, especially those who betray the secrets of the syndicate by testifying in criminal proceedings. As noted in our written comments, however, we believe that instead of limiting the Department to the renting, purchasing, and constructing of housing facilities, a broader range of uses for the expenditure of funds in this area should be considered, such as, for example, the salaries and expenses of the United States Marshal's office which provides protection for most such witnesses. In order to achieve the necessary flexibility to deal adequately with this problem, therefore, we believe there should be authorization of appropriations for the care and protection of such witnesses to be used in whatever manner is deemed most useful under the special circumstances of each case.

The Bureau of the Budget and the Department of Justice have undertaken a study of the potential costs of Title VI in response to your letter of March 17, 1969, to the Director of the Budget Bureau, Mr. Chairman, and you will be advised of the results of this study as soon as it is completed. In the meantime, therefore, we believe it desirable that the bill not specify a particular appropriation authorization or limit the authorization to a single fiscal year. In view of the enormity of the costs and other practical problems involved in the protection of witnesses, the Department does not believe that it should assume the responsibility for the protection of state witnesses and feels that this responsibility should be assumed by the states. We would not, however, be opposed to granting the Attorney General authority to offer the use of housing facilities, on a reimbursable basis, in limited situations where the states cannot provide adequate facilities to their witnesses, provided all other arrangements and expenses for the protection and care of such witnesses are made and borne by the states.

The Department also favors enactment of the provision in Title VII, relating to the admissibility in evidence of the declarations of co-conspirators in criminal conspiracy cases, which would codify in all but one respect the present law on this subject. All aspects of the present rule are retained, save the requirement that the declaration be in "furtherance" of the objectives of the conspiracy, in lieu of which there is substituted the requirement that such a declaration must "relate to the existence or execution" of the conspiracy, and that "there are in existence facts and circumstances from which its trustworthiness may be inferred." We believe there are several sound reasons why the element of "trustworthiness" of relevant evidence should be substituted for the "furtherance"

requirement. First, the ambiguity of the furtherance requirement has caused considerable difficulty in the admission of testimony in conspiracy prosecutions, and a narrow construction of the term results in the exclusion of important, relevant evidence. Second, there is a portent in several recent Supreme Court cases, 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-conspirators' statements based on agency principles. Since these cases, however, indicate that the right to confrontation under the Sixth Amendment still permits some traditional hearsay exceptions, based on necessity and trustworthiness, this would seem to be a prudent time to discard the furtherance requirement which is based on agency principles and to shift the basis of the exception to trustworthiness.

The Department believes that a procedure for imposing increased penalties on special classes of offenders is desirable. Because of the many serious constitutional problems involved, however, such a procedure must be worked out with great care. In our judgment the special offender sentencing provisions of Title VIII raise serious problems in three general areas-specificity of definitions for categories of offenders, procedures for making determinations, and the appeal provisions. Numerous suggestions for remedying these defects have been set forth in our written comments on this provision of S. 30, and we stand ready to assist the Subcommittee in solving these problems and attempting to draft a fair and effective special offender sentencing provision which will not run afoul of the Constitution.

S. 2022

Before you is a bill which is designed to bring to bear on the vast business of illegal gambling a substantially increased effort on the part of Federal law enforcement officers. Title I of the bill would make it a Federal crime to devise or participate in a scheme to obstruct the enforcement of state and local criminal laws in order to promote an illegal gambling business, and Title II would make it a Federal crime to participate in such an illegal business.

It is not the intent of this bill to preempt local law enforcement, but it is vital, in the judgment of the Department of Justice, that we expand the available forces in the fight against this pervasive and pernicious enterprise. To this end we have defined, for purposes of both titles, an illegal gambling business as one which is in violation of state or local law, which involves five or more persons who operate, participate in or derive revenue from it, and which either has been in operation for longer than 30 days or has a single day's gross revenue of $2,000 or more. We believe that this standard will insure that the Federal effort is directed only at the more important gambling operations-those in which there may clearly be said to be a strong Federal interest.

In his message to Congress the President emphasized particularly the danger involved in the spread of organized gambling, and there remains no doubt that the vast amounts of money which flow into the coffers of organized crime as a result of its control over this activity give to the professional criminal an extremely potent weapon for evil. Perhaps most importantly, we who have dealt with the problem of organized crime are faced with the unescapable fact that a substantial part of the gamblers' revenue is devoted to the subversion of law enforcement, and it is to this problem that we have addressed ourselves in Title I of this bill.

There can be little question that illegal gambling has a substantial effect on interstate commerce. It uses the facilities of interstate commerce, its profits are distributed in interstate commerce, and its paraphernalia is shipped in interstate commerce. Nor can there be any question that the bribery of state and local law enforcement officials is a necessary element to the success of any gambling operation-almost an ordinary business expense. As has been said many times, no large scale gambling enterprise can exist without the knowledge and thus without the acquiescence of local police and prosecutors. It is not pleasant to contemplate that, in cities and towns all over the country, the persons charged with the protection of the public safety have abdicated that responsibility. But however unpleasant that thought may be, we cannot blind ourselves to the reality that such corruption exists on all levels in small towns and large cities. Two examples culled from many, many such instances in our files will suffice to indicate the scope of the problem which faces us.

In deciding what case histories would most effectively bring home to this committee the nature of the offense which this proposed statute is intended to deal with, I thought it most important to highlight one aspect of the problem which is paricularly troublesome: that is, the stultifying effect on Federal-state cooperation in the campaign against organized gambling. Indeed, the inability of Federal agencies properly to enforce the statutes within their jurisdiction is, at the very least, an important basis for Congress' authority to take action in this area. First, I wish to direct your attention to one of the largest cities in the South, a city which has an open history of police corruption over the past eighteen years. Shortly after passage of the wagering tax laws in 1951 efforts were made by agents of the Internal Revenue Service to coordinate their activities with the city's vice squad, but after a large percentage of the joint raids were unsuccessful, investigation disclosed that the vice squad members, almost to a man, were being paid off by lottery operators and bookmakers. Federal authorities were unable to develop viable tax evasion cases, and in the local trials of the police officers involved numerous members of the police force came forward to testify that they would not believe either the Federal or state officers who testified for the prosecution. None of the local policemen were convicted.

Following these revelations of police corruption, an unsuccessful effort was made to establish a joint state-city gambling squad, and after a number of unsuccessful attempts at cooperation the Internal Revenue Service ceased its efforts in that direction. During the early 1960's it became commonplace for IRS agents to discover, when making gambling raids, extensive lists of payoffs, and in 1964 it was learned that two city detectives were actually operating a lottery. A plan to infiltrate this operation was discussed with the local prosecutor, but he declined to cooperate and immediately disclosed the plan to city officials. As a result police payoffs were made with a great deal more care and enforcement efforts correspondingly made more difficult. Efforts at cooperation continue to be made sporadically but unsuccessfully. In one of the latest joint raids, the lottery operators told the searching officers that they were expected.

This situation, although perhaps better publicized, is typical. If anything the passive interference with Federal authorities is harmless when compared to the active obstruction which recently occurred in a major midwestern city. There, a grand jury investigation conducted by Organized Crime and Racketeering Section attorneys uncovered evidence that local numbers operators had almost every member of the city's vice squad on their payroll. Low-level officers were reportedly receiving $250 per month and their superiors as much as $500. The involvement of the police went so far as to include pressure by the chief of the squad put on a dissident gambler to bring him in line with his fellow numbers operators. Although this bill involves a unique step forward in Federal involvement in this area, there can be no question but that Title I of this bill is well founded in the constitutional powers afforded this body. Testimony already given before this Committee in recent months, 1961 and in 1950 establishes conclusively that without interstate commerce organized gambling cannot exist. The law is clear that once a general activity is found by Congress to have an impact on interstate commerce, legislation may be directed at only one facet of that activity even if its impact is not so immediate. In Wickard v. Filburn, 317 U.S. 111 (1942), Mr. Justice Jackson, writing for a unanimous Court, rejected the argument that Congress had exceeded its authority under the commerce clause in regulating wheat which was not intended to leave the state in which it was produced:

"But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect'." 317 U.S. at 125.

Of similar import are two recent decisions of the Supreme Court involving Title II of the Civil Rights Act of 1964: Heart of Atlanta Hotel v. United States, 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294 (1964).

Applying these principles to the bill before you, it is clear that Congress has the power to prohibit interference with the enforcement of state and local laws when that interference is aimed at the promotion of illegal gambling. A fortiori, it has the power to prohibit the illegal gambling business itself.

Title II of S. 2022, which would make it a Federal crime to engage in an illegal gambling business, will provide a much needed weapon in the fight against organized crime by filling a loophole that presently prevents Federal prosecution of

huge gambling rings whose activities are of legitimate concern to the Federal government. Under existing Federal legislation (18 U.S.C. Sections 1084, 1952, 1953), interstate travel or use of an interstate facility must be proved as part of each case. Under S. 2022, the need for such proof would be obviated on the basis of congressional findings that illegal gambling as a whole has an adverse effect upon interstate commerce and its facilities.

Existing Federal statutes which deal with the interstate aspects of gambling are not broad enough to reach all gambling which is of legitimate concern to the United States. Despite these statutes and despite efforts made to date by both the Federal and the state governments, gambling continues to exist on a large scale to the benefit of organized crime and the detriment of the American people. A more effective effort must be mounted to eliminate illegal gambling. In that effort the Federal government must be able not only to deny the use of the facilities of interstate commerce to the daily activities of gamblers-as it can do under existing statutes-but also to directly prohibit substantial enterprises of gambling and the attendant corruption of state officials.

By supplementing existing Federal legislation in this manner and eliminating the requirement that an interstate element be proved in each case, investigative manpower requirements will be lessened and, more important, investigations that were thwarted and cases that could not be prosecuted in Federal courts for lack of proof of a specific interstate element would be put within the Federal jurisdiction. Under existing legislation, many Federal investigations of gambling operations end with no indictments because of the lack of evidence of an interstate element. For example, in Brooklyn, a long-term Strike Force investigation ended in the indictment of only three out of twenty suspects because of the absence of evidence of an interstate activity by the other seventeen. The three who were indicted for violations of 18 U.S.C. Section 1952, were involved with seventeen others in running a multimillion dollar gambling operation (horse bets and numbers) in the Eastern District of New York (Queens, Long Island and Brooklyn). The only interstate travel that could be proved was the travel of the three who were indicted from their homes in New Jersey to work in New York. The gambling operation itself involved no interstate travel and the other seventeen, who all lived in New York, cannot, therefore, be prosecuted Federally despite their known participation in this huge gambling operation.

This situation illustrates a very common problem in New York State. Gambling in New York can be operated without obtaining information, paraphernalia or personnel from out-of-state. Local race tracks and horse race results on which winning numbers can be based abound; total daily bond and stock sales as reported by the New York Stock Exchange-if used as the source of the winning number—are also locally available; and the required paraphernalia and organized crime operatives exist in most urban areas of New York so as to allow essentially local gambling. Thus, the existing Federal statutes are largely inapplicable to gambling in New York State. 18 U.S.C. Section 1084 outlaws the interstate transmission of wagering information, but, as pointed out above, no information need be transmitted from out-of-state to operate a gambling enterprise in New York as sources for a winning number are locally available. Similarly 18 U.S.C. Section 1953, which prohibits interstate transportation of wagering paraphernalia, is not applicable because all such equipment is locally available. 18 U.S.C. Section 1952 may be used but quite often involves very difficult problems of proof of the interstate element.

But S. 2022 would be useful in more states than New York. Very few numbers operations have been prosecuted at a Federal level because very seldom are state lines crossed unless the city is on a border between two states, and, if state lines are crossed, the evidentiary problems make Federal prosecution virtually impossible. Thus, in Chicago, a city not on state borders, the FBI has conducted intensive investigations only to find that no interstate element could be proved. They have turned the results of their investigations over to the Chicago police, who have made raids on several gambling operations as a result. Also in Columbus, Ohio, a numbers operator who grosses $15,000 to $20,000 per day, cannot be tried in Federal court because the use of a facility of interstate commerce cannot be proved and in another Ohio city there is ample proof of payments of bribes to local police by a numbers operator, but because he waits until the stock exchange number is published in the local newspapers and does not get the information via the telephone, no Federal violation can be proved.

Yet in all these cases, there is an obvious effect on interstate commerce and Federal prosecutions and investigations should not be frustrated by the requirement of proof of a specific interstate effect in each case. S. 2022 would eliminate this obstacle to Federal investigations and prosecutions.

For all these reasons, I urge your consideration and passage of S. 2022.

S. 974

I would next like to discuss S. 974, a bill to create a position of Assistant Attorney General for Organized Crime, which was introduced on February 7, 1969, by Senator Tydings. In his testimony before this subcommittee on March 18. Attorney General Mitchell stated that we have been studying the merits of various proposals involving an effectively structured organization dealing with organized crime, including the creation of a separate organized crime division, or the consolidation of all of the criminal activities of the Department of Justice, including the Tax and Antitrust Divisions, in one new division whatever it might be called. This same general subject is also being considered by the newly appointed Advisory Council on Executive Organization which the President in his special message to the Congress on organized crime of April 23, 1969, directed to examine the effectiveness of the Executive Branch in combatting crime-in particular, organized crime. Pending the results of this study, therefore, we request that consideration of S. 974 be delayed. [See p. 391.]

It should be pointed out that there are inherent organizational difficulties in any plan of organization which takes the organized crime intelligence, cases, defendants and materials out of the functional sections to which they would normally be assigned and sets up a special organizational unit to handle the particular defendants, irrespective of the particular crime under investigation. The immediate effect of this is to create two separate units having jurisdiction of the same subject matter; for instance, most mail fraud cases go to the Fraud Section but those involving organized crime go to the Organized Crime Section. Someone has to make a decision, and in order to keep the Fraud Section and the Organized Crime Section working in smooth harmony, this work has to be closely correlated. It is the present feeling of the Department that this correlation and coordination can best be done by leaving the organized criminal work in the present Criminal Division. The effect of creating a special division will be to transfer the coordination of all criminal work to the level of the Deputy's office and will make necessary the creation of an additional staff section in the Deputy's office.

While it is good to emphasize the organized crime work by dignifying this work in the Organizational scheme of the Department of Justice, it is thought that the danger of competing offices having jurisdiction of the same subject matter will more than offset the advantages. This is particularly true with increases in the Strike Forces or field offices devoted to organized crime work, and great care must be taken that these do not become competing prosecutorial offices to those of the United States Attorneys.

It is the determined purpose of this Administration to have the Organized Crime Section of the Criminal Division work in closer harmony with the Criminal Division than it has in the past and to have the Strike Forces or field offices of the Organized Crime Section work in close connection and close harmony with the United States Attorneys. For these and other reasons, it is respectfully requested that consideration of S. 974 be deferred until the Attorney General has completed his plans for the reorganization of all of the criminal work of the Justice Department, including that now performed by the Tax and Antitrust Divisions.

S. 975

S. 975, a bill to provide for compelling testimony in certain cases, was introduced on February 7, 1969, by Senator Tydings. This immunity provision is somewhat narrower than that contained in either S. 30 or S. 2122, since it would apply only to violations of Title 18, United States Code, rather than to all violations of Federal law as do S. 30 and S. 2122. It would also bar absolutely any prosecution for or on account of any matter as to which testimony is compelled, rather than merely prohibit the use of the compelled testimony and its fruits as do the immunity provisions of S. 30 and S. 2122.