utilize the useful materials discovered in the rather limited number of cases where such surveillance has been used. This forced revelation also might well endanger the national security in the opinion of the prosecutor and therefore compel a decision not to use it. Certainly if it is used, I should think protective housing would be a feature that could be very important because even if the decision were made to use it there might be the need to invoke this protection in organized crime matters where the protective housing would not apply to the other persons menaced in the revelation. Senator TYDINGS. It might be, Mr. Chairman, that you might want to extend the classification of those who could be afforded protection. I would think that a U.S. Attorney or the Assistant Attorney General, either one, should provide protection or housing for a witness in such a case even if he wasn't directly implicated, if the U.S. Attorney felt that his life might be endangered by reason of the investigation or the prosecution which has taken place. Senator SCOTT. The next is on page 11, the provision of immunity section which I very much favor incidentally in principle, except that S. 975, as you state, provides that there shall be no prosecutions as against the S. 30 provision that evidence be or may not be used in subsequent prosecutions. I have read your reasons for this, but I rather wonder why it would not be preferable to permit the Attorney General to retain his options by Senator TYDINGS. I don't think Senator SCOTT. By providing assurance if he desires it there will be no prosecution or providing alternative assurance. 1 Senator TYDINGS. I don't think as a practical matter, Senator Scott, insofar as subsequent prosecutions that it will make too much difference whether you follow my proposal, which is the traditional line of immunity, that is prohibiting prosecution for the acts revealed, and that follows the Counselman v. Hitchcock Supreme Court case, or whether you follow the McClellan proposal which basically says that you can't use a specific statement made. I understand his reasoning is based on the Malloy v. Hogan 2 case, but I think as a practical matter it wouldn't make a great deal of difference because it is only in a rare instance where it can be shown that the evidence was independently arrived at. Let's say there is a prosecution against the witness to whom you granted immunity. It would be a rare instance where it could be shown that the evidence was independently arrived at and was not arrived at by reason of the testimony he gave as a result of the immunity provision. I would think that any witness testifying under the statute, either the McClellan proposal or mine, specifically the McClellan proposal, would be expected to reveal sufficient information, if he had a good lawyer, to make it absolutely impossible to prosecute him. You know if he is going to make a statement he would make a complete and absolute statement, so I think that as a practical matter it doesn't make a great deal of difference whether you use my proposal or Senator McClellan's. I provided the traditional constitutional line of the Counselman v. Hitchcock case, but as I indicated to Senator McClellan, I think that is something which your subcommittee should discuss and come out with what you think is the best proposal. 1 Counselman v. Hitchcock, 142 U.S. 547 (1892). 2 Malloy v. Hogan, 378 U.S. 1 (1964). Senator SCOTT. Your proposal is that the fruit of the poisonous tree would still be there? Senator TYDINGS. That is right. As a practical matter it wouldn't be very different. Let's say the organization didn't want the witness to testify. They might say then the immunity thing is really phony because they can still prosecute because they can get evidence from another source. That might be the weight or the little answer which might keep that witness from utilizing the immunity provision. If you say you can't be prosecuted for acts revealed in your testimony, then he has no reason not to cooperate and testify. Senator SCOTT. Now, on page 12 you refer to your final bill of those you are discussing, S. 976, where there is a counterpart in S. 30, authority of the judge to commit persons who have been convicted of a crime that you find has been part of an ongoing scheme of organized criminal activity to terms up to 30 years of imprisonment. We are taking some more testimony on that later today I understand, but are you yourself satisfied as to the constitutionality of that? Senator TYDINGS. Yes, provided I would say, Senator Scott, that we have an appellate review of the sentence. As long as there is, I am satisfied. I feel very strongly that the deterrent here could conceivably be of the most effective deterrent of all. In all the studying and the reading and the work that I have done in this field of organized crime, I find whenever you are fortunate enough to get the evidence and bring the evidence in the court, to protect your witnesses, and to effectively prosecute a leader in the family of La Cosa Nostra, and he is sentenced, that there is an amazing effect. I mean it has a real deterrent effect. Senator MCCLELLAN. Kind of a chilling effect on the whole operation? Senator TYDINGS. Yes, it certainly is. It is a positive type of deterrent. I think it is one area where I am absolutely satisfied that the deterrent works. Senator SCOTT. I think it is a very impressive remedy if you have no constitutional doubts on it. Do you happen to know whether there is any statistics showing that the old Baumes law actually works in New York State: life term for fourth time offender? Senator TYDINGS. No, I don't know whether there is any empirical data and if there is I don't know about it, so the answer is "Ño” to both questions. Senator SCOTT. Now finally, I don't want to spend too much time inveighing against the Supreme Court which is a highly popular exercise with all lawyers, but I do want to express great concern about that decision where the Court, in its justifiable concern for the rights of defendants, would seem to have imperiled the lives of a great many innocent people. I hope that matter is reviewed as the Attorney General has indicated. I hope that a wiser decision will emerge from the collective cerebral activity of the judiciary, and if not, I intend to wait patiently until other judges ascend to that high post in the hope that wisdom may yet prevail. But this is a dangerous de cision, as I see it, and much more dangerous than some of those frequently criticized. Where we seek to make corrections in the law, we hope the Supreme Court will honor our intent as well as our statutes. Senator TYDINGS. Yes, sir. Senator Scort. That is all I have to say unless you want to comment on that view. Senator TYDINGS. No, I have no comment. Senator Scorr. Thank you, Mr. Chairman. Senator MCCLELLAN. Senator, thank you very much. I appreciate your offering these bills, and especially I appreciate the comments with respect to S. 30, and the bill that you have introduced along the same line with respect to sentencing. You may have a better idea about it. We certainly appreciate it, and it will be considered. And your bill to establish the Special Assistant Attorney General Senator TYDINGS. Assistant Attorney General Criminal Division, in the Department of Justice. Senator MCCLELLAN (continuing). —will also receive the committee's earnest attention. Senator TYDINGS. Thank you very much. Senator MCCLELLAN. Thank you very much. STATEMENT OF PAUL J. CURRAN, CHAIRMAN, NEW YORK STATE Senator MCCLELLAN. Mr. Curran, come around please, sir. Good morning, gentlemen. Be seated. Will you identify yourself and also your associates with you? Mr. CURRAN. Yes, Senator. My name is Paul J. Curran. I am the chairman of the New York State Commission of Investigation. On my left, Senator, your right, is Judge Edward S. Silver, former District Attorney of Kings County and Surrogate of Kings County and now a member of the State commission of investigations; on my right and on your left is Deputy Commissioner Nathan Skolnik of the State commission of investigations. Thank you, Mr. Chairman. I am pleased to appear here today on behalf of the New York State Commission of Investigation in response to this committee's invitation to testify regarding Senate bill S. 30, the proposed Organized Crime Control Act of 1969 which has been introduced by the chaiman, Senator McClellan, and by Senator Ervin and Senator Hruska. We appreciate the invitation, and we also appreciate the work of this committee and your diligence, Mr. Chairman, in attacking, over a long period of time, organized crime and criminals. We believe that this has been a very significant contribution to the public interest. Although the members of this committee are undoubtedly familiar with our commission a brief summary of our background may be appropriate. It may be interesting to mention at the outset that our statutory commission, the first of its kind in the country, celebrated its 10th anniversary last May 1, 1968. Throughout its almost 11-year life, organized crime and its control have been major objects of the commission's attention. In fact, the statute establishing this commission, section 2, provides, in pertinent part, as follows: 1. The commission shall have the duty and power to conduct investigations in connection with: (a) The faithful execution and effective enforcement of the laws of the State, with particular reference but not limited to organized crime and racketeering: Accordingly, this commission has always had a keen and continuing interest in all forms of organized criminal activities. Our very first major investigation, referred to by Senator Tydings, involved the notorious Apalachin convention of November 14, 1957, which was attended by high ranking racketeers from all parts of the United States and even from outside our country. Thereafter, this commission conducted extensive investigations of syndicated gambling in central New York and in Westchester County, among other places, and also investigated the relationship of racketeers with certain police personnel in several of the largest cities in New York State. The commission also conducted other investigations which revealed racketeer connections with loan sharking and bingo. In 1967, we brough to light evidence of racketeer infiltration in the air freight industry, particularly at Kennedy International Airport. Last June, we disclosed the racketcer interests in Mason Tender Union locals in New York City. Only last week, on March 12, the commission concluded a public hearing concerning its investigation of racketeer infiltration in legitimate business. Undoubtedly, this committee has read or heard about it in the news media. The public hearings held in connection with all of these investigations, which I have just mentioned, informed the public, most vividly, of the insidious operations of organized criminal syndicates in those areas. Despite all the efforts thus far made by various law enforcement agencies, it must be acknowledged that organized criminal activities continue. Much has been and is being accomplished by Federal and local authorities to slow the growth of organized crime. Nevertheless, it is plainly still very much alive and moving out in new directions. From gambling, narcotics, and loan sharking it has extended its tentacles into the field of commerce and industry. It has utilized its vast resources to infiltrate diverse kinds of legitimate businesses. In our investigations, the commission has found that the means used by racketeers to penetrate and to gain control of legitimate business, or simply to engage in extortion, ranged from old-fashioned muscle and violence to such more sophisticated techniques as using a big underworld name as a salesman, or merely mentioning such a name as being connected with a particular company, or "borrowing" money with no intention of every repaying the "loan." Of course, many other techniques were and are utilized. În one of the situations presented at our most recent public hearing, this shocking evidence was disclosed. In the fall of 1967, a businessman whose company is located on Long Island, N.Y., received a telephone call from a man he knew, who said he had someone who was interested in purchasing stock in the businessman's company. An appointment was made early one evening to explore this further. This was to be at the businessman's office. When the acquaintance arrived he was acocmpanied by a well-known Long Island racketeer, with a record of crime and violence, and several of his cohorts. The businessman was "roughed up" and then, with a pistol at his head, literally, and his family threatened, he was compelled to sign a corporate check payable to cash for $25,000. This payment was made under the pretense of settling some alleged preexisting claim which the Long Island racketeer insisted he had against someone whom he believed was associated with the businessman. The businessman, after signing the check at his office, then was taken to a motel, under guard, for the night. The next morning he was taken to his bank where he cashed the check and turned the cash over to the hoodlums. The story does not end here but only begins, although I shall mention the remainder very briefly. In fear that these hoodlums would return for more money, this businessman sought aid from a notorious underworld figure located in the Borough of the Bronx, New York City. There, apparently, he was given assurance that something could be done for him. Before long, the businessman had transferred 25,000 shares of stock in his company (then worth about $500,000) to a corporation controlled and operated by the racketeer and his henchmen, and also made various "loans" to them, all totaling well over $1 million. This high and staggering cost of protection was, in the words of the businessman, paid to keep the hoodlums of Long Island off the businessman's back. The details of what occurred in this case are so bizarre that fiction writers would be hard pressed to match such a story. We believe that Gov. Nelson A. Rockefeller of the State of New York accurately appraised the problem of organized crime in his opening address to the conference on crime, which he called in New York City on April 21, 1966, when he said: Though far less flamboyant than it was in the days of Al Capone and John Dillinger, organized crime today is vastly more powerful and dangerous than ever before. Its corrosive effects present a most serious threat to the community in all aspects of life. It is with this knowledge and on the basis of our experiences, that we should like to offer our views with respect to certain provisions of the proposed S. 30. Although all of us here today have had past experience as Federal prosecutors, we will limit our comments to the immunity, perjury, and contempt aspects of S. 30. We do so not because we disagree with the other portions of the bill but simply because we believe that these other areas deal primarily with matters of Federal law in which the Commission is not directly involved. As we all well know, the battle against organized crime is a most vexing one. Law enforcement officials must be given every possible legislative assistance in this difficult task. In this connection, it must be remembered that the first step in the process of prosecuting and convicting a racketeer is the grand jury investigation. For a grand jury investigation to be effective and fruitful, it must develop evidence of the crime or crimes under investigation. The usual stumbling block, the invariable stumbling block to such investigations, is the failure to obtain evidence from witnesses. |