We have asked the Department of Justice to report to you, separately, on the issue you raised concerning the Government's liability for failure to protect witnesses. The enclosed tabulation, which was developed from data provided by the Department of Justice and the Treasury Department, responds to your request for a third study showing the cost of present Federal witness protection efforts. I hope you will find this information helpful in your final drafting of S. 30 Sincerely, PHILLIP S. HUGHES, ESTIMATED. COSTS OF FEDERAL WITNESS PROTECTION, FISCAL YEARS 1967, 1968, AND 1969 Chief Counsel, U.S. Senate, Committee on the Judiciary, Subcommittee on Criminal Laws and Procedures, Washington, D.C. DEAR MR. BLAKEY: Thank you for your letter of July 16. I have exhaustively stated my views on the general subject matter of S. 2292 in numerous briefs filed with the Supreme Court in both the Ivanov and Alderman cases. As you undoubtedly know, I argued each of these cases two times before the Court and the subject was again intensively treated. As I informed you earlier, I regret exceedingly that I do not have additional copies of the documents which we prepared in connection with those cases. We had so many requests from all over the country for copies of our materials in those cases that we were left with only single office copies. My commitments do not permit my giving the time to analyzing in writing S. 2292. However, I will be glad to meet with you at any mutually convenient time and tell you what I think of this proposed legislation. Very truly yours, EDWARD BENNETT WILLIAMS. SIXTY-THIRD ANNUAL MEETING, NATIONAL ASSOCIATION OF ATTORNEYS GENERAL, JUNE 21-25, 1969, VIRGIN ISLE HILTON, ST. THOMAS, V.I. ORGANIZED CRIME Whereas the members of this Association are directly involved in curbing the efforts of organized crime to expand its income, and its influence and control over legitimate business; and Whereas this Association, recognizes the need for all levels of government, whether local, state or federal, to join together and to cooperate in ferreting out and destroying the sources of income of organized crime; and Whereas this Association recognizes and appreciates the concerted action underway and planned by the United States Department of Justice in the fight against organized crime; Now, therefore, be it Resolved, That the 63rd Annual Meeting of the National Association of Attorneys General in St. Thomas, Virgin Islands reassert its interest and concern in the continuing fight in the field of organized crime; that we work with all levels of government and all branches of law enforcement in creating a total effort; and be it further Resolved, That the members of this Association, jointly and severally, exchange information of desirable leglislation to control organized crime, and that the members and the Association offer vigorous support to the efforts of the Department of Justice in this field Hon. JAMES O. EASTLAND, THE GENERAL COUNSEL OF THE TREASURY, Chairman, Committee on the Judiciary, DEAR MR. CHAIRMAN: Reference is made to your request for the views of this Department on S. 1861, to amend title 18, United States Code, to prohibit the infiltration or management of legitimate organizations by racketeering activity or the proceeds of racketeering activity, where interstate or foreign commerce is affected, and for other purposes. The bill would make applicable to racketeering activities certain equitable remedies developed in antitrust law for the purpose of preventing the infiltration of legitimate organizations by racketeers. The Department is in general agreement with this objective. We have, however, the following recommendations with regard to specific provisions of the bill. Section 2(a) of the bill would add a new chapter 96 to title 18 of the United States Code. The proposed section 1961 (6) of title 18 would define the term "pattern of racketeering" to include at least one act occurring after the effective date of the chapter. For clarification, we recommend that "of racketeering activity" be inserted after "act" on page 5, line 4. The proposed section 1961 (11) would define the term "racketeering investigator" to mean any attorney or investigator employed by the Department of Justice who is charged with the duty of enforcing or carrying into effect the proposed chapter. Since section 1961 (1) would include in the definition of the term "racketeering activity" any act which is indictable under sections 471, 472, and 473 of title 18 (relating to counterfeiting), the Department recommends that the definition of "racketeering investigator" in section 1961 (11) be expanded to include “any attorney or investigator employed by the Department of the Treasury." The U.S. Secret Service of this Department has investigative jurisdiction over crimes relating to counterfeiting of coins, obligations, and other securities of the United States, and of course, the Treasury is engaged in the drive against organized crime on a full partnership basis with the Department of Justice. Those agents of the Secret Service serving on Strike Forces, for example, and conducting counterfeiting investigations would certainly be properly called "racketeering investigators." Section 1963 (c), in providing for forfeiture of property, would also provide on page 8, lines 6-10: "Such duties as are imposed upon the collector of customs or any other person with respect to the disposition of property under the customs larcs shall be performed under this chapter by the Attorney General, or any Assistant Attorney General designated by the Attorney General." [Emphasis added] The Department objects to this provision and recommends the following language in lieu thereof: "Such duties as are imposed upon customs officers or any other person with respect to the disposition of property under the customs laws shall be performed under this chapter by the Secretary of the Treasury or his delegate." In section 1962, page 6, line 10, the word "by" should read "of". In section 1967, page 11, line 25, "self-discrimination," should apparently read "self-incrimination". Section 1968(a)(7) would provide that a "racketeering investigator" shall serve as such upon designation by the Attorney General. Thereafter, subparagraph (iii) would provide on page 16, lines 6-11: "While in the possession of the custodian, no material so produced shall be available for examination, without the comment of the person who produced such material, by any individual other than a duly authorized officer, member, or employee of the Department of Justice." [Emphasis added] Consistent with the above recommendation that "racketeering investigator" be defined to include Treasury agents who would as such be eligible for designation by the Attorney General as racketeer document custodians, and consistent with the status of the Treasury Department as a full partner of the Department of Justice in the drive against organized crime, the language of subparagraph (iii) should be modified so as to include "any duly authorized officer, member, or employee of the Department of the Treasury." This would also require that subparagraph (v), page 17, line 17, be amended to insert "or Department of the Treasury" following "Department of Justice". The Department has been advised by the Bureau of the Budget that there is no objection from the standpoint of the administration's program to the submission of this report to your committee. DEAR MR. CHAIRMAN: This is in response to your letter of April 28, requesting the views of the Small Business Administration on S. 1861. S. 1861 is designed to combat the infiltration of legitimate business by organized crime. In substance, the bill would make it unlawful for any person to invest in such a business any money knowingly derived by him from "racketeering activity," as that term is defined therein. Criminal penalties and civil remedies would be established. It is hardly necessary to say that we have strong sympathy with the objectives of this legislation. However we are not qualified to evaluate the merits of the specific means proposed in the bill for the achievement of these objectives. With respect to that aspect of S. 1861, we would be guided by the views of the Department of Justice. The Bureau of the Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program. Sincerely, HILARY SANDOVAL, Jr., Hon. JAMES O. EASTLAND, OFFICE OF THE DEPUTY ATTORNEY GENERAL, Chairman, Committee on the Judiciary, DEAR SENATOR: This is in response to your request for the views of the Department of Justice on S. 2292, a bill "to amend Chapter 223, title 18, United States Code, to regulate litigation concerning sources of evidence, and for other purposes." The bill would add a Section 3503 to Title 18. Subsection (a) of Section 3503 would preclude a court's consideration of a defendant's claim that evidence is inadmissible as derived from an allegedly illegal act, if the event to which the evidence relates occurred more than five years after the allegedly illegal act. Subsection (b) of Section 3503 would preclude a court from ordering the disclosure to a defendant of information illegally obtained by the government, unless the court first finds that the information may be relevant to the determination of the admissibility of evidence and that the disclosure is in the interest of justice. We strongly favor the enactment of the provisions of Section 3503 (a). We also favor the enactment of an expanded section incorporating a modified version of the provisions of Section 3503(b), recognizing that its primary value will lie in its near-term application. We suggest, however, that the general scope of the bill be modified so that the illegal acts encompassed by it include only unlawful electronic eavesdroppings or wiretappings. As presently drafted, the bill may be interpreted to cover unlawfully-obtained confessions. Since the primary concern prompting the proposed legislation stems from the current status of the law applicable to hearings on electronic surveillance matters, and since Fifth Amendment considerations may be expected to raise independent problems, it appears that a limitation in scope would permit the accomplishment of the principal purpose of the legislation while rendering it less susceptible to collateral difficulties. If the illegal acts encompassed by the bill are so limited, it would appear appropriate that the provisions be enacted as an amendment to the current Section 2518 (10) (a), rather than as a separate section. Section 2518 (10) (a) is directed to the same general problem, and currently contains one of the express provisions of the proposed Section 3503(b). For the sake of convenience, however, we will address our following comments to the provisions of the proposed bill in its present format. SECTION 3503 (a) Section 3503 (a) provides that no claim shall be considered that evidence of an event is inadmissible on the ground that such evidence was come at by exploitation of an allegedly illegal act, if such event occurred more than five years after such allegedly illegal act. The factual situation which would be reached by the subsection is a very limited one. From the reference to evidence "come at by exploitation" of an illegality, the phrase employed by the Supreme Court in Wong Sun v. United States, 371 U.S. 471, 488, and from the remarks of Senator McClellan in introducing S. 2292 on May 29, 1969, we understand that this subsection is not intended to apply to evidence obtained directly through an illegal act, but is intended instead to apply only to evidence allegedly discovered through leads developed from directlyobtained evidence. Consequently, the subsection as written would preclude a defendant from challenging the source of government evidence in very few situations. A defendant would still be able to challenge the admissibility of all evidence allegedly obtained directly through an illegal act. A defendant would still be able to challenge the admissibility of all evidence allegedly obtained indirectly through an illegal act where the event to which the evidence relates has occurred prior to the illegality. A defendant would still be able to challenge the admissibility of all evidence obtained indirectly through an illegal act even in the situation where the illegality precedes the event to which the evidence relates, as long as the intervening period is less than five years. The limited factual situation in which the subsection would preclude a defendant from obtaining a hearing on a claim that evidence was unlawfully obtained, is a situation where a defendant's chance of establishing taint is highly remote at best. Where government evidence is claimed by a defendant to have been indirectly derived from an illegal act, and thus to be inadmissible as "fruit of the poisonous tree", the government may avoid suppression by making either of two showings. First, it may demonstrate that knowledge of the same evidence was also gained from an independent source. Costello v. United States, 365 U.S. 265, 280; Nardone v. United States, 308 U.S. 338, 341; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392. Second, even if there was in fact a causal connection between the obtaining of the evidence and the original illegality, the government may demonstrate that the relationship between the two had become attenuated as to dissipate the taint. Alderman v. United States, 394 U.S. 165, 180-181; Wong-Sun v. United States, 371 U.S. 471, 487; Nardone v. United States, supra, at 341. Where a surveillance is found to have been unlawful, the Federal government has always made every effort to ensure that no evidence thereby obtained, either directly or indirectly, is ever used in a criminal prosecution. Consequently, in cases where a crime is committed and then an unlawful surveillance occurs, the government has almost always been able to show that the derivation of allegedly tainted evidence in fact was either independent or attenuated. In cases where an unlawful surveillance precedes the commission of the crime involved, there is a substantially reduced likelihood that the former would have led to evidence of the latter, and the decided cases reflect this. See, e.g., Desist v. United States, 394 U.S. 244, 247 n. 5; United States v. Clay, (S.D. Tex., Cr. No. 67-H-94, decided July 14, 1969). In cases where an unlawful surveillance precedes the commission of the charged offense by a period of time of five years or more, the chance that the surveillance led to profferred evidence of the offense is highly impossible. We are aware of no such case where evidence offered by the government was found to be tainted. As a practical matter, evidence obtained through a surveillance five years before a charged offense can provide, as to that offense, only general background information concerning the perpetrator-the kind of general information that is usually duplicated by similar information from several independent sources over such a protracted period of time, at least when the subject is one of continuing interest to law enforcement officials as in most such situations. In any event, whether or not similar evidence is accumulated from independent sources over the five-year period, the passage of time itself has such an attenuating effect that any causal thread between the old illegality and the evidence of the later offense can hardly be found to demonstrate an "exploitation" of illegality within the meaning of Wong Sun. In view of the limited situation covered by the subsection, and the high degree of improbability that a defendant would be able to establish in such a situation that proferred evidence was tainted, the subsection will very seldom, if ever, permit the introduction of evidence which could not have been found admissible under prior law. Consequently, the practical effect of the subsection will not be to avoid limitations on admissibility, but only to avoid fruitless hearngs on admissibility. Such hearings, in the factual circumstances reached by the proposed statute, appear to be sought more often for purposes of delay than for legitimate purposes. By avoiding the costs in time and manpower that such hearings can be expected to require in the future, the proposed subsection could substantially promote the efficient administration of justice and yet impinge to a minimum upon the availability of hearings for good-faith claims. Since the principal, underlying reason for enacting this subsection is the inherent baselessness of claims of evidentiary taint when five years has passed between the illegality and the offense, we suggest that a more specific finding be made on this point. Section 1(3) now sets forth a finding "that when such claims concern evidence of events occurring years after the allegedly illegal acts, those consequences of litigation and disclosure are aggravated and the claims seldom appear valid and often cannot reliably be determined." This could be read as a legislative finding that there are some valid claims that the proposed Section 3503 (a) would sacrifice to the need for judicial economy. As noted previously, we are aware of no prior cases where evidence of events has been held to have been tainted by illegal acts which occurred five years or more before the events in question. We suggest, therefore, that the phrase "seldom appear valid and" be deleted from Section 1(3). We also suggest that a subsection (4) should be added to Section 1 of S. 2292, stating "that experience has shown that when the allegedly illegal acts have occurred more than five years prior to the event in question, there is virtually no likelihood that the evidence offered to prove the event has been come at by the exploitation of that illegality." |