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consideration by this Subcommittee. Accordingly, we urge that future hearings be held to consider this proposal in depth before the Subcommittee acts upon it.* The ACLU will be happy to present its views in detail in the event such an opportunity is afforded. At this point, however, we must confine ourselves to some general observations concerning problems we have been able to identify. First and foremost we are concerned by the enormous and virtually unlimited breadth of the criminal provisions of the proposed legislation. Don Cressy, in his exhaustive study of organized crime, "Theft of the Nation," identifies the expansion into areas of legitimate enterprise by members of organized crime as a major threat to our institutions. Whether members of criminal syndicates acquire interest and control in legitimate business by illegitimate or by legiti mate means and then operate these either illegitimately or legitimately there can be little doubt that the brutal and strong-arm tactics characteristic of organized crime aid in this take-over and perpetuate the growing economic strength of criminal organizations. Moreover individual convictions have proven unable to demolish the structure of the ongoing organizations which they run. Nevertheless, however laudable the intent of S. 1861 to deny the opportunity for legitimate investment of the proceeds of organized crime and to close the door on opportunities for participation in legitimate enterprise by those who engage or have engaged in criminal activity, this bill fails to propertly confine its reach to those limited aims. Like many Sections of S. 30, which we have previously discussed in detail, the substantive sections of S. 1861, would be applicable in areas far removed from that which we traditionally define as "organized crime." Thus, while we cannot minimize the seriousness of the problem at which this legislation is aimed, we must object that the means proposed for dealing therewith are improper and potentially dangerous. There is no guarantee nor reason to assume that in times of stress, or where the aim seems laudable, S. 1861 would not be used in areas far removed from what we know as organized crime.

Section 2 of 1861 defines the term "racketeering activity" as, among other things,

(a) Any act involving the danger of violence to life, limb or property, indictable under state or federal law and punishment by imprisonment for more than one year;

In effect this makes every state or federal felony potentially within the purview of the statute.

Section 1962 then provides,

(a) It shall be unlawful for any person who has knowingly received any income derived directly or indirectly, from a pattern of racketting activities to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in or the activities of which affect, interstate or foreign commerce.

In other words, the proceeds, whether direct or indirect, of any racketeering activity, including and any every state or federal felony, cannot as a practical matter be used or invested in any business enterprise. Sections (b) and (c) then prohibit engaging in "racketeering activity" to acquire or maintain any business enterprise or to participate in the conduct of such enterprise by "racketeering activity" if one is an employee thereof. While the latter sections may raise questions of vagueness of definition and so forth-i.e., what is directly or indirectly-Section (a) is particularly troublesome. The following hypothetical examples clearly indicate the potential reach of his provision outside the area of "organized crime" and underline the possibilities of its abuse as an instrument of oppression in many areas involving group activity.

Last year's massive anti-war demonstration at the Pentagon resulted in a number of arrests for acts involving the danger of violence to life, limb or property indictable under state or federal law and punishable by imprisonment for more than one year. As a result of this demonstration, novelist Norman Mailer has written a Pulitzer Prize winning book describing the events of that day. Had S. 1861 been law at the time of that demonstration it could have been applied to require Mr. Mailer to forfeit any income derived from the sale and publication of that book as well as from any lecturing and so forth regarding it, for offenses of the kind which resulted from the demonstrations in connection with the anti-war protest movement could fall within the definition of pattern of racketeering activity of the bill. Furthermore, Mr. Mailer by investing the income received from the sale of his book in a business enterprise could subject

*An opportunity was extended for the submission of additional views by letter for inclusion in the record; it was declined.

himself to prosecution which would result in up to a $10,000 fine and/or 20 years in prison. Similarly, the lawyers representing those convicted of offenses in this regard might subject themselves to penalties by investing the fee received for their representation. Arguably such fee was indirectly derived from a pattern of racketeering activity.

James Simon Kunen, a 19 year old Columbia University student has written a new book entitled the "Strawberry Statement" describing his participation in the campus disorders which racked Columbia University a year ago April. This was a group activity which resulted in arrests, involved the danger of violence to property, and involved offenses for which imprisonment for more than a year was possible. Under S. 1861, Mr. Kunen could not lawfully invest any of the proceeds from his book. Whatever one may think of the offenses or the offenders in these hypotheticals, and questions of whether or not their activity is in any way protected by constitutional guarantees aside, it is clear that this proposed legislation is in no way intended to subject them to the penalties described. Nevertheless, there is absolutely nothing in the bill to prevent them from being so used. The corner grocer accepts money for food from individuals known to be involved with a criminal syndicate who patronized his store. He knows that money is derived from illegal activities. Must he refuse to sell his wares, or inquire specifically as to where his customer got the money, on pain of subjecting himself to forfeiture or fine or imprisonment when he subsequently invests that money. Punishment for aiding and abetting involves a stake in the venture under United States v. Falcone, 109 F.2d 579 (2nd Cir. 1939), aff'd, 311 U.S. 205 (1940). Here the same result is reached without regard to any interest or stake on the part of the grocer. The same may be said for the doctor who treats the suspect individual or anyone else who provides him with services.

Moreover there are difficulties with both the prohibition and penalty provided even in the context of what is classicly termed organized crime. It is certainly clear that not all income which can be defined as derived "directly or indirectly" from a pattern of racketeering activity should be subject to forfeiture and that anyone knowingly receiving such income should be subjected to penalties provided without regard to the circumstances of his receipt thereof.

For example, if a lawyer is retained to defend an individual charged with an organized crime offense, and is paid in cash for his services, surely he has reason to know that the money with which he is paid may be or has been directly or indirectly derived from racketeering activity. Indeed he may know this to a certainty just as he may know that his client is guilty. Nevertheless under our law, even the guilty are entitled to an adequate defense. Yet this legislation would require this lawyer or any lawyer either to refuse to undertake the defense or accept the fee on pain of forfeiture and criminal indictment. Whatever the ethical considerations involved in whether a lawyer undertakes a given case, it is not the proper role of the Congress to legislate what amounts to a virtual denial of the right to counsel of one's choice to any one engaged in organized crime activity or reduce him to the situation where he has no choice save to rely on appointed counsel.

We do not argue that any of these problems are necessarily going to arise. We do feel, however, that the danger of problems of this kind is sufficient to cast doubt on the legislation. The requirement of "knowing," that the income involved is derived from a pattern of racketeering activity is in itself insufficient to guard against this kind of abuse.

Turning now to the proposed new civil remedies contained in this bill, the following observations are pertinent.

First, proposed new Section 1962 would provide for court-ordered divestiture or dissolution of business enterprises acquired and/or maintained by means of illegal racketeering activity. Its underlying theory is analogous to that used to justify remedies of this kind in the field of anti-trust law. It is premised on the notion that use of illegally acquired income and illegal methods to acquire and maintain an ongoing business enterprise gives that enterprise an unfair competitive advantage so that as a matter of sound economic and social policy divestiture or dissolution is justified in order to preserve the freedom of the marketplace. As we have indicated, this proposal is unique and not without merit and we believe that its possibilities should be carefully and fully explored. Nevertheless we think it unwise at this time to uncritically adopt the provision as written, for the same problems of vagueness of definition and potential breadth of application which we raised in connection with the bill's criminal

provisions arise here inasmuch as the civil remedies incorporate by reference their description of the "unlawful" activity involved.

Also of concern is proposed new Section 1967 which provides that in the taking of depositions for use in civil actions under the bill "the proceedings shall be open to the public as freely as our trials in open court, and no order excluding the public from attendance at any such proceeding shall be made or enforced." It also provides for immunity to be given to secure testimony and documentary evidence with regard to such civil proceeding when "necessary to the public interest."

It seems clear that this provision with its prohibition on court orders excluding the public is intended to permit "exposure for exposure's sake." This is both a violation of the right of privacy and derogation of the Fifth Amendment privilege which although strictly speaking, not generally applicable in civil proceedings, we believe in principle protects individuals against compulsion to reveal embarrassing and private facts. Our views in this regard are set forth at length in the section regarding S. 30, in which we discussed immunity provisions. The Supreme Court has rightly condemned exposure for the sake of exposure as a means of punishing individuals by subjecting them to the calumny of the community where insufficient evidence for indictment exists. See, Watkins v. United States, 354 U.S. 178 (1957).

Proposed Section 1968 dealing with investigations seems unwarranted and dangerous. This section establishes a procedure for "civil investigative demands" under which the Attorney General or the person whom he designates, prior to the institution of any civil or criminal proceeding may issue a demand that a person produce materials for examination. The Attorney General merely is required to have "reason to believe that any person or enterprise under investigation may be in possession, custody or control of any documentary material relevant to a civil racketeering investigation." On demand, the person or enterprise must produce the materials sought which government investigators are then free to fine-comb for evidence of any kind. Although initially the material must be "relevant" to a civil racketeering investigation that is hardly a difficult standard to meet. In addition, it is apparently contemplated that the material may ultimately be used in both criminal and civil cases. Subsection 4 of Section 1968 provides that when any attorney has been designated to appear on behalf of the United States before any court or grand jury in any case or proceeding involving any alleged violation of this chapter, the custodian may deliver to such attorney such documentary material in possession of the custodian as such attorney determines to be required for use in the presentation of such case or proceeding on behalf of the United States. This utterly destroys the Fifth Amendment privilege with regard to this material in a subsequent criminal proceeding, and we believe is clearly unconstitutional. Just this week, the Supreme Court agreed to hear United States v. Kordel (No. 2191) in which this very issue is raised. It would, therefore, appear to be most foolhardy for Congress to rush to pass this legislation while a kingpen in its theory is being considered by the Court.

Specific circumstances aside, the entire procedure is in our view, improper, whether or not the demanded material is authorized to be used solely in connection with civil proceedings. The section amounts to authorization of fishing expeditions by the government. There is nothing to prevent, for example, the Attorney General or Assistant Attorney General appointed by him, from demanding business records in dragnet fashion from all persons in a given community suspect of underworld connections and the finecombing these records in the hopes of "hitting pay dirt." Not only does this do violence to the constitutionally protected right of privacy, but it also makes the Fifth Amendment privilege virtually meaningless. As long ago as 1886, the Supreme Court said in Boyd v. United States.

"And any compulsory discovery by exorting the party's oath, or compelling the production of his private books and papers to convict him of a crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom." 116 U.S. 616, 613-32.

When such records have been combed for information, it is likely that sufficient leads can be obtained so that evidence can be gathered without the need to compel testimony from the person involved or other unwilling witnesses. And as we have stated, nothing bars the future use of such evidence in future proceedings under the statute whether civil or criminal.

Moreover, no court order is required for the issuance of a civil investigative demand. The individual from whom information is demanded can either refuse to comply, in which case the government may go into court to seek an order forcing compliance, or institute proceedings seeking to have the demands set aside. This places the burden on the individual to justify non-compliance rather than the government to justify its demand. The individual must prove either that the information sought is privileged or that the government is seeking it for an unjustifiable reason-a burden which more properly should rest on the government. Obviously the opportunity for government harassment of individuals inherent in this procedure are limited only by the ingenuity of those who seek to invoke it.

CONCLUSION

The concern of those who have sponsored and introduced the bills which are the subject of these hearings on crime, particularly organized crime, is admirable. Certainly the problems of our society are never solved by the apathetic nor by those who choose to ignore them.

A great deal of imaginative ingenuity is evident in many of the bills-and their authors are to be commended for their creativity and industry. We do not intend to make light of either quality in our analyses. Nevertheless, we believe that adequate consideration has not been given to constitutional safeguards. If these safeguards appear at times to stand in the way of obtaining convictions of those who are felt to be clearly guilty of a pattern of criminal conduct, then so be it. It's price that a free society may have to pay.

Justice Stewart said it well in discussing two constitutional protections: "(T) he Fifth Amendment's privilege against self incrimination is not an adjunct to the ascertainment of truth. The privilege, like the guarantees of the Fourth Amendment, stands as a protection of quite different constitutional values-values reflecting the concern of our society for the right of each individual to be let alone. To recognize this is no more than to accord those values undiluted respect." Tehan v. Schott, 382 U.S. 406 at 415-6 (1966).

Organized crime, it is conceded is a grave problem and a threat, but in meeting that threat, the wise words of Justice Brandeis should be constantly kept in mind:

"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding." Dissenting, Olmstead v. United States, 277 U.S. 438, 485 (1928).

Mr. SPEISER. The number of bills before the committee is responsible for the length of my statement.

Senator MCCLELLAN. I can understand that. We are actually considering about seven or eight in these hearings.

Mr. SPEISER. I have not covered all of those bills in my submitted statement, and I would like to know how long the record will be open, because I think there are some additional comments that should be made on some of the other bills considered. (See p. 489.)

Senator MCCLELLAN. Very well.

Mr. SPEISER. In appearing before the committee on bills of this kind, which are aimed at organized crime, let me make clear our interest. We concede that crime, organized crime, is a major problem in our society, and we think that it is certainly far better for the Congress to give serious thought to how to attack the problem than to be apathetic about the problem: yet we find ourselves in the position of being critical of almost all of the proposals, and of each section of Senate bill 30, which is the omnibus bill which is primarily before the committe, because we think that not enough consideration has been given to constitutional rights in the desire to get at organized crime. It is all too easy when serious threats to our society arise to suggest the bending, the repealing, perhaps, or the changing of traditional

conditional guarantees. We feel that this is a self-defeating kind of method and that the constitutional guarantees which have stood us in good stead during our past history should not be lightly set aside. Bills aimed at one danger have an unfortunate habit of being utilized against others. There is no guarantee, when bills are broadly written or are vague in their definitions or are all encompassing, that although they are aimed at organized crime, they may not be utilized against those accused of being engaged in other than organized criminal activities; they may very well be used in that way.

It is for that reason we have made this lengthy analysis and have raised constitutional objections. We hope our analysis will be of help to the committee.

It seems to me there is some value, when a committee suggests new and imaginative legislation, and much of this is imaginative, in having the benefit of those who find some contitutional difficulties, so that you can focus your attention on those and see if there is a method around those problems or some other method that could be utilized which would not have the same problem.

We agree that there should be a commitment in our society, a fullscale commitment, as was suggested by the President's Commission, to destroy the power of organized crime. But where we take issue is in the belief that our society can be as efficient as organized crime. Senator MCCLELLAN. Our society can be as efficient?

Mr. SPEISER. As efficient as organized crime in seeking to destroy it. Mr. BLAKEY. Mr. Speiser, don't you think that in context the remark of the President's Crime Commission was referring not to the methods, but rather to the goals to be achieved, that is, that we should be, as a society, as successful in having our citizens free from the perpetration of crime as organized crime is today successful in perpetrating crime? It seems to me there is nothing inconsistent with a free society having a commitment toward the elimination of that degree of crime inconsistent with a free society.

Mr. SPEISER. With that limitation, then, I agree that is something I can find no quarrel with. I am just not sure that is what is meant by it. With your explanation I could readily accept that if we had as much of a commitment and put as much of our resources and energy into fighting organized crime as organized crime puts into furthering its own ends, perhaps we could put it to rest or at least attack the problem. Senator MCCLELLAN. We don't want to adopt some of their enforcement tactics.

Mr. SPEISER. No, nor do I find anything in the bill that would suggest that.

Senator MCCLELLAN. We don't think the bill goes that far.
Mr. SPEISER. Agreed, Mr. Chairman.

Senator MCCLELLAN. Organized crime can be pretty efficient. There is no appeal from their judgment as to what will happen if you violate their rules.

Mr. SPEISFR. I quite agree, and hardly any due process to speak of.
Senator MCCLELLAN. No, they don't have much due process.
Very well, you may proceed.

Mr. SPEISER. We do support some measures. Last year the. Congress passed the Omnibus Crime Control and Safe Streets Act. We sup

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