If we can't establish $2,000 it is obviously not a Federal case. We ought not to be involved in it. Most of these instances, given probable cause to raid a gambling establishment which we have been able to observe, we know it has been operating for 4 or 5 days a week, seizing the records that exist, we have been able to come up with better than $2,000 a day in most all of our cases. Senator HRUSKA. Of course, that 30-day operation or gross revenue of $2,000, that is in the alternative? Mr. PETERSEN. In the alternative; yes, sir. Senator HRUSKA. So that on any given day, without reference to continuance for 30 days the Government can establish gross revenues of $2,000 for Federal jurisdiction under this bill. Mr. PETERSEN. That is right. My guess is we will rely on the monetary amount. Senator HRUSKA. The Omnibus Crime Act of 1968 authorized wire tapping. Will this power facilitate your task of enforcement in the gambling area? Mr. PETERSEN. Yes, it will; but it has been, and perhaps properly so, a very difficult statute to operate under. You require more for a warrant under that statute than you do for a search warrant. It is difficult, and I am not suggesting that it should not be, but it is going to take some time for us to develop our experience with it. We have been processing very cautiously, and only in those cases where we are absolutely sure of ourselves in each step, and indeed there is some educational process going on. The enforcement agent doesn't really realize at this point the full significance of it. As time goes on and we use it more and more they will become more familiar with it and it will be an assistance. Indeed, it might be a substitute for some of the proposals that we make here. But we are unwilling to make that judgment. We are looking for tools and assistance, and while all of these things may be of help, the simple fact is none of them are going to be a panacea. Senator HRUSKA. When you refer to the authorized wire tapping as being difficult, would you say it is a statute that is needlessly difficult? We are dealing in a difficult field now. We have at the table here one of the outstanding authorities in the field, Mr. Blakey. I thought he did an outstanding job in drafting it. But we were aware that it was a difficult field at the time it was enacted. Would you like to comment on that? Mr. PETERSEN. Well, sure, before it was enacted I worked with Professor Blakey, to whom you are referring there, extensively. I was quite in agreement with him that all of these restrictions are needed. Indeed, as I read Berger,1 they were required, I am sure we all agree with that. Now that we have the statute I wish it were not so restrictive, but professionally speaking, I think those restrictions are the price of constitutionality, and that is really what we need. Mr. WILSON. Some of the difficulties have arisen since the passage in the form of the Spinelli case and others which of course would go to what you would have to have before you obtain the warrant. 1 Berger v. State of New York, 388 U.S. 41 (1967). 2 Spinelli v. United States, 393 U.S. 410 (1969). Senator HRUSKA. Well, thank you, Mr. Chairman. That is all the questions I have at this time. Senator MCCLELLAN. Thank you, Senator. Mr. Blakey wishes to ask a question. Mr. BLAKEY. Mr. Petersen, you have raised a question about the enforceability of the gambling as a business act. I am particularly concerned about the possible implication of the Spinelli and other cases dealing with probable cause in the enforcement of this statute. I wondered if it would be helpful if we could draft language which would create a presumption of the $2,000-a-day take based on your experience, not for the purpose of guilt, but for the purpose of securing search warrants. I am concerned that the statute as it is drafted may present very difficult search warrant problems. I have a hard time now figuring out what kind of evidence would be available to you that would let you prove your jurisdictional peg. I am terribly concerned that the present bill might be worthwhile as a statute solely to prosecute with after investigations are made under other statutes and that you might have your interstate problems in the end anyway. Mr. PETERSEN. You hit upon a good point. A presumption might be helpful in that regard. Frankly, we have been hopeful that we would be able to establish by informant testimony, even that within the test of Spinelli. “Yes, I worked for the operation and I turned in $300 a day and there are 20 other fellows in the operation, too." That type of informant information I think would enable us to proceed, provided we could establish the reliability of the informant. It is a problem. Senator MCCLELLAN. Is it possible now? As Spinelli is strictly construed, is it possible to get a search warrant without practically establishing guilt beyond a reasonable doubt? Mr. PETERSEN. I have to say it is, Senator. It is more difficult and it has been of a real concern, particularly in the application of title III warrants. It has also been a concern because we have had to develop so much information with respect to the informant that you sometimes risk disclosing the informant's identity. It imposes a high standard indeed. I hope we are wrong in suggesting we must have evidence beyond a reasonable doubt. Senator MCCLELLAN. Is it possible to meet that standard? Is it practical to meet it? Mr. PETERSEN. I would have to answer that "Yes," because we have met it in several warrant situations. Yes. Senator MCCLELLAN. Have those warrants been sustained? Has your probable cause been sustained, that is to say, what you took to be "probable cause"? Mr. PETERSEN. Not yet, and I am in danger of being reversed, yes. Senator MCCLELLAN. I thought the Court went pretty far in the Spinelli case. Probable cause doesn't mean an actual fact; it is just a "probability." Mr. PETERSEN. The thing that concerns us about Spinelli, as I read it, is that it indicates that the corroborative evidence has to go to criminality, and that takes it a level above what we thought the rule would be in Draper v. United States, where you could rest on probabilities rather than specifically pointing to criminality. Senator MCCLELLAN. Yes, sir. Mr. WILSON. Mr. Chairman, one thing you can say is that the Spinelli case has resulted in a number of warrants not being applied for which otherwise would have been, and where crimes might have been solved had the warrant been available. Senator MCCLELLAN. Is that another or further handicap to law enforcement? Mr. WILSON. Well, it has made the process more restricted and more difficult in that sense. In that sense it is a handicap. Senator MCCLELLAN. It made law enforcement more difficult? Senator MCCLELLAN. From my view point, "probable cause" is when you have good reason to believe, based on the facts stated in the affidavit supporting the warrant, that such and such is the case. Mr. WILSON. The Spinelli case has been a handicap in the area I mentioned before of the integrity of government employees. Where you have a situation where there is a valid suspicion of the integrity of an official, and some type of warrant might be of help, like a wire tap warrant, and you have got every reason to believe that you have access to the conversations, then with a warrant you could establish either a dereliction of duty or a bribery. But you have to have proof of the crime itself before you can get the warrant, in effect. So it makes it very difficult in the area of bribery. Senator MCCLELLAN. It seems to me that is most effective. You have got to establish the fact that a crime is being committed. Mr. WILSON. Well, it can be said that while it is not true all the way, it does limit the use of warrants to gathering evidence to buttress up a case you already have. Senator MCCLELLAN. Very well. Mr. Hruska? Senator HRUSKA. Mr. Chairman, I have a couple of questions on S. 1624. This S. 1624 would prohibit disclosure of information furnished to the Internal Revenue Service by gamblers to other law-enforcement agencies. Quite frequently the same gamblers are being investigated by different agencies, and the Justice Department strike force concept, for example, is designed to eliminate this duplicity of effort. How would you intend to handle the information collected by the Internal Revenue Service in strike force related cases? Mr. PETERSEN. For me, Senator? Senator HRUSKA. Yes. Mr. PETERSEN. First of all, I think that we would reverse the process that we employed in the past. In the past, people would say to the Internal Revenue Service: Give us your list of gamblers and then we will see whether or not they are in violation of other statutes or what have you." I think under this provision we simply reverse that process. We say to the Internal Revenue Service: Here are 100 people in this district whom we have identified as being engaged in the business of gambling. Check your records. Are they in violation of the tax law? 1 358 U.S. 307 (1959). If they are in violation of the law then that is your business. You pursue that to determine whether or not they have filed the proper amount of tax, whether they have understated this amount of tax, if there is a sufficient basis for that." If on the other hand they have not registered and they have not paid the tax, then I think they are fair game, because the statute protects only those who file information with the Service. It doesn't protect those who do not. So for those who have not filed-and there we are talking about I think the majority of illegal gambling operators-I don't think we are going to have any problems with disclosure, because they haven't disclosed anything. Senator HRUSKA. Will the provision in that bill prohibiting disclosure of information impair the Internal Revenue Service participation in a strike force? Mr. PETERSEN. No; I don't think it will. It will simply require that they not disclose certain information to the strike force. To that extent that will be a cutoff to a certain degree of intelligence, and that is an impairment of what we have been doing in the past. Once again it is the price of constitutionality, and we are willing to accept that limitation in getting the manpower effect which will come with the enforcement of the gambling laws. Senator HRUSKA. Thank you very much. Senator MCCLELLAN. With respect to S. 2122, the Crime Commission's general immunity bill, if the Congress should adopt this bill, and it should repeal the existing immunity statutes, will we be running a risk that the Supreme Court will ultimately decide that Murphy v. Waterfront Commission analysis is incorrect? 1 Mr. WILSON. Yes, sir; we would run that risk. If they knocked it out, we have all our immunity in one bag, in effect, there wouldn't be any immunity available until Congress could come back with additional legislation. There would be a period of time when we would not have it available. Senator MCCLELLAN. How seriously would that injure your work? Mr. WILSON. It would be a major handicap for the period of time involved, because the immunity statute is perhaps one of our best weapons. So, for however long it took Congress to come back with new legislation, it would be a big handicap for that period. Senator MCCLELLAN. And it might also have some impact on cases that had been developed in the meantime? Mr. WILSON. Yes, it would. It would do that. Senator MCCLELLAN. Do you think it would be advisable to postpone the effective date of the repealing provision for a period of time to permit the testing of the new theory? Mr. WILSON. Well, I don't immediately react on what the constitutional effect of not repealing the old ones would be, but leaving aside any impairment of constitutionality, I can see no Senator MCCLELLAN. You might give some thought to that so we will not let a gap occur. Mr. WILSON. You couldn't have two statutes in conflict. Senator MCCLELLAN. Why would there be any conflict between them? 1 378 U.S. 52 (1964). Mr. WILSON. Some of the immunity statutes now give full immunity, and this one would give only limited immunity for the same set of facts. Senator MCCLELLAN. Well, you could proceed-you could explicitly elect which statute to proceed under. Mr. WILSON. It might do it. Senator MCCLELLAN. And if the latter were held unconstitutional, then you would still have the other one to fall back on. That way you would not have a gap of time. Mr. PETERSEN. May I add, Senator, that we are in agreement with you, and the committee staff, that your reading of Murphy is correct, that is to say, that immunity may be offered only in regard to use of the testimony or any leads derived from the testimony given under compulsion. We think that is a correct reading of Murphy v. Waterfront. We think that is constitutional. It might be advisable to have that safety provision in there, that is to say, a delayed repeal provision which would become effective either at a day certain or when the Supreme Court rules on the issue that is presented under the Murphy case. Senator MCCLELLAN. That is something for us to be thinking about as we try to develop this legislation. Now, on S. 1623 and S. 1861, which deals with the infiltration of legitimate organization for racketeering activities, I note with gratification that the Department supports the broad objectives of S. 1861. I take it, however, that at the present stage of your investigation you prefer the provisions of S. 1861 over the provisions of S. 1623, since each of the objections that you noted to S. 1623 are met in the provisions of 1861; is that correct? Mr. WILSON. Yes, sir. Senator MCCLELLAN. So you would prefer 1861? Mr. WILSON. Yes, sir. Senator MCCLELLAN. If we have an omnibus bill we could incorporate S. 1861 in that measure? Mr. WILSON. Yes. Senator MCCLELLAN. I note, too, that the Department has organized a task force which is working in cooperation with the members of the subcommittee staff. We will be looking forward to receiving your comments, then, on S. 1861 at the end of 3 weeks, as you suggested a while ago. (The following letter was subsequently received:) Hon. JOHN L. MCCLELLAN, OFFICE OF THE DEPUTY ATTORNEY GENERAL, Chairman, Subcommittee on Criminal Laws and Procedures, DEAR SENATOR: This is in response to your request for the Department of Justice's views on S. 1861 a bill designed to prohibit the infiltration of legitimate organizations by racketeers. As you were advised by Assistant Attorney General Will Wilson during his appearance before the subcommittee on June 3, 1969, the Department had initiated an intensive study of this bill. This study is now completed, and I am submitting to you the Department's views on this bill's innovative approach to the problem of racketeer infiltration of legitimate business. The Department favors the objectives of S. 1861, and believes that with some possible revisions its combination of criminal penalties and civil remedies, which |