We have some doubt, however, that the form of the proposed provision is adequate to accomplish the objective sought. Instead of amending the present perjury statute, this provision creates a separate crime, yet one nearly indistinguishable from perjury and it is feared that the courts are likely to conclude that the new crime is so similar to perjury that the same restrictive evidentiary rules must apply. Cf. United States v. Hammer, 271 U.S. 620 (1926). Consequently, we believe that legislative abrogation of these evidentiary rules requires specific language in the statute. In order to accomplish this objective, therefore. we suggest that this proposal be amended by adding at the end thereof the following new subsection (e) as follows:

(e) In any prosecution brought under this Section, the falsity of the statement or testimony set forth in the indictment or information may be established by the uncorroborated testimony of one witness, or by circumstantial evidence alone.

It is noted that subsection (a) of the false statement provision omits the requirement of materiality, but that subsection (d) thereof specifically mentions "material to the issue or point in question." We believe subsection (a) should be amended to include the word "material" since we do not believe that false statements as to immaterial matters should be punishable.

Subsection (d) of this provision would, in cases of inconsistent statements under oath, relieve the Government of the necessity of proving which one is false as is now required by such cases as McWhorter v. United States, 193 F. 2d 982, 983-84 (C.A. 5, 1952). Since, however, in light of the opinion in United States v. Goldberg, 290 F. 2d 729, 734 (C.A. 2, 1961), McWhorter may not be good law today, we can see no objection to overruling this by statute. Under this provision the prosecutor by being allowed to plead and prove the case in the alternative may show the falsity by logical inconsistency. In United States v. Buckner, 118 F. 2d 468 (C.A. 2, 1961), the court declared:

It seems strange that in the federal courts an indictment for perjury may not yet be drawn in the alternative and that there may not be a conviction for deliberately making oath to contradictory statements unless the prosecutor shows which of the statements was false.

It is noted that subsection (d) is limited to statements made "in the same continuous trial." We would suggest that this be broadened to include the phrase "or same continuous grand jury proceedings" since the interest in obtaining truth is no less before the grand jury than at trial. Such an amendment, moreover, would be consistent with the tenor and policy of S. 30's emphasis on strong and effective grand jury proceedings. It would also be consistent with Title IV itself which in all other places concerns itself with petit and grand jury proceedings.

Finally, it is noted that this provision is not as inclusive as the present Federal perjury statute in that subsection (a) is limited specfically to "any trial, hearing, or proceeding before any court or grand jury" and thus not only are pre-trial depositions, affidavits, and certificates excluded but also administrative and legislative hearings or proceedings. The Committee may wish to consider whether it would not be appropriate at this time to amend the present perjury statute, 18 U.S.C. 1621, and thereby by express language abolish the peculiar evidentiary rules applicable to perjury generally in all types of proceedings to which the statute is presently applicable.

TITLE V-DEPOSITIONS

Title V would amend Chapter 223 of Title 18, United States Code, by adding at the end thereof a new Section 3501, “Depositions". This provision would allow the Government to take depositions for the purpose of preserving the testimony of Government witnesses. The depositions would be taken after the filing of an indictment or information, and the defendant would be given an opportunity to be present with counsel and to cross-examine the witness. The deposition would be admissible in evidence at the trial, subject to the rules of admissibility of evidence, in the event the appearance of the witness cannot be obtained because the witness is dead, or is out of the United States, or is unable to attend or testify because of sickness, or the Government has been unable to procure the attendance of the witness by subpoena. Provision is also made for the payment

by the Government to the defendant's attorney and to a defendant not in custody, expenses of travel and subsistence for attendance at the examination. The Government is also required to make available to the defendant for his examination and use at the taking of the deposition of any statement of the witness being deposed which is in the possession of the Government and which the Government would be required to make available if the witness were testifying at the trial. This provision extends to the Government a right that a defendant in a criminal case already enjoys under existing law under Rule 15, Federal Rules of Criminal Procedure. Although there is no direct authority in the matter, the extension of this right to the Government should not itself run afoul of the Constitution. Where, as in this provision, the defendant's Sixth Amendment rights to representation by counsel and confrontation of witnesses are well preserved by allowing an opportunity to be present with counsel and to cross-examine the deponent, this provision should pass constitutional muster, Mattox v. United States, 156 U.S. 237 (1895). See Pointer v. Texas, 380 U.S. 400, 407 (1965); Motes v. United States, 178 U.S. 458, 472 (1900); Jones v. California, 178 F. 2d 458, 472 (C.A. 9, 1966).

It is noted that proposed Section 3501 contains one important provision not included under Rule 15. Thus, under Rule 15, while a defendant can depose any necessary witness who might not be able to attend the trial, he has no right to inspect the statements of a prospective witness before trial. United States v. Berman, 24 F.R.D. 26 (1959); Johnson v. United States, 260 F. 2d 345 (1958). However, under 18 U.S.C. 3500, the defendant can get such statements after the witness has testified on direct examination. Under the proposed bill if the Government deposes a prospective witness, it must make available for the use of the defendant at the time of the examination any statement of the witness in the possession of the Government which it would be required to make available to the defendant if the witness were testifying at the trial. It is felt that this requirement is necessary to protect the defendant's right to effective crossexamination of the witness.

We feel that this provision's extension of the right to take depositions to the Government will provide an extremely useful tool in the effective trial of all criminal cases, but particularly in those involving organized crime cases where there is a substantial danger that the witnesses will not be available at the time of trial.

TITLE VI-PROTECTED FACILITIES FOR HOUSING GOVERNMENT WITNESSES

Title VI authorizes the Attorney General to rent, purchase, or construct such facilities as are necessary to provide secure and safe housing for Government witnesses and potential Government witnesses and their families in legal proceedings and investigations against persons alleged to have participated in organized criminal activity. It also provides that the Attorney General may offer the use of these facilities to such persons when in his judgment their testimony or willingness to testify would place them in jeopardy through illegal efforts to prevent them from testifying or punish them for testifying. It also defines "Government" to mean either the Federal or State Government, thus bringing within its scope witnesses in state proceedings. An appropriation of $1,000,000 is authorized for the fiscal year ending June 30, 1969, for carrying out this proposal.

The question of protecting Government witnesses is not one of law but of practicality. In view of the nature of organized crime there can be no doubt regarding the need for protection of witnesses. In pursuit of its ends the members of organized crime syndicates will ruthlessly eliminate anyone who stands in the way of success in any criminal enterprise and will destroy anyone who betrays the secrets of the syndicate.

While the Department wholeheartedly supports the theory behind Title VI, we believe that instead of limiting the Department to the renting, purchasing, and constructing of housing facilities, the Congress should consider a broader range of uses for the expenditure of funds in this area. The most substantial item which should be allowed for is perhaps the salaries and expenses of the United States Marshal's office which provides protection for most such witnesses. In addition, we believe that 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. Such a provision would provide the necessary flexibility to adequately deal with this problem.

The Bureau of the Budget and the Department of Justice have undertaken a study of the potential costs of Title VI in response to Senator McClellan's letter of March 17, 1969 to the Director of the Bureau. While that study is not yet completed, we believe it desirable that the bill not specify a particular appropriation authorization amount or limit the authorization to a single fiscal year. It is also noted that this Title speaks in general terms of providing such protected facilities to witnesses and potential witnesses in "investigations which might lead to legal proceedings." In view of the enormity of the expenses involved in the care and protection of witnesses and informants in this area generally, we do not wish this Title to be construed as shifting the responsibility for the expenses of informants which are presently being borne by the several investigative agencies of the Government, including the Federal Bureau of Investigation, the Internal Revenue Service, the Bureau of Narcotics and Dangerous Drugs, and others.

Finally, it is noted that this Title authorizes the Attorney General to provide secure and safe housing facilities for the use of both state and Federal witnesses. In view of the enormity of the costs and other practical problems involved in the protection of witnesses, the Department believes it to be inappropriate for it to assume the responsibility for the protection of state witnesses and feels that this responsibility should be assumed by the states. While, therefore, we do not believe that the Attorney General should be authorized to provide for the care and protection of state witnesses, we would not be opposed to granting him authority to offer the use of housing facilities, on a reimbursable basis, in limited situations where the states cannot provide adequate facilities to its witnesses, provided all other arrangements and expenses for the protection and care of such witnesses, such as guards, subsistence, medical care, etc., are made and borne by the states.

TITLE VII-DECLARATION OF CO-CONSPIRATORS

This Title would amend Chapter 223 of Title 18, United States Code, by adding at the end thereof a new Section 3502, "Admissions of co-conspirators".

This provision woud make admissible into evidence in a criminal action in which it is alleged that two or more defendants participated as co-conspirators in the commission of a criminal offense, an extrajudicial declaration made by one such defendant against any other defendant if the court determines that: (1) the declaration was made by the defendant during his participation in the conspiracy, (2) there are in existence facts and circumstances from which its trustworthiness may be inferred, (3) the declaration relates to the existence or execution of the conspiracy, and (4) the declaration was made during the time in which such other defendant participated in the conspiracy.

This provision appears to codify in all but one respect the present law as to the admissibility in evidence of the declarations of co-conspirators in conspiracy cases. All aspects of the present rule are retained save the requirement of "furtherance". In lieu of this, there is substituted the requirement that such a declaration must "relate to the existence or execution" of the conspiracy, and that to render it admissible the court must find that "there are in existence facts and circumstances from which its trustworthiness may be inferred".

The "conspirator's hearsay exception" is a firmly established exception to the general rule against the use of hearsay to establish criminal liability. Krulewitch v. United States, 336 U.S. 440, 443 (1949). The exception has come to rest in American jurisprudence on agency principles, as articulated by Mr. Justice Storey in United States v. Gooding, 25 U.S. (12 Wheat.) 460, 469 (1827), and the exception remains as yet unquestioned by the Supreme Court. See Bruton v. United States, 391 U.S. 123, 128 N.3 (1968).

The rationale behind this proposed change apparently is that the "furtherance" requirement of this exception is of somewhat ill defined meaning, but apparently an outgrowth of the agency rationale which is sometimes stated in terms of res gestae language, but which many other courts interpret so broadly as to apply to anything that relates to the conspiracy. Since this reduces the requirement to relevancy, and since all evidence must be relevant, it is reasoned that the "furtherance" requirement is thus eliminated in substance if not in form. This being so, it is felt that something more, namely, the element of trustworthiness should be required.

The logic of this argument is quite compelling, and the substitution of the element of trustworthiness of relevant evidence for the furtherance requirement

would appear to be not only more realistic in terms of current judicial interpretation but also more consistent with the policy behind this exception to the general rule of exclusion of hearsay evidence.

Criminal law conspiracy principles have been most effective in organized crime prosecutions, and there can be no doubt that the "co-conspirator's hearsay exception" has been a vital factor in their success. The continued vitality of this co-conspirator rule is absolutely essential in conspiracy prosecutions of all types. Since the agency rationale which currently supports this exception is subject to increasing criticism by the courts and by the authorities in the field, it would seem only prudent to move away from this rationale toward a more realistic basis for the exception, that is from agency to trustworthiness. The movement to eliminate the furtherance requirement began with Professor Morgan's examination of the soundness of the vicarious liability rationale in an article in 42 Harvard Law Review 461 (1929). As a result of Professor Morgan's article the furtherance requirement was eliminated both in the Uniform Rules of Evidence, Rule 63(9), and in the Model Code of Evidence, Rule 508(b). It has also been approved by Professor McCormick, Evidence, Section 244 (1964).

The ambiguity of the furtherance requirement has caused considerable difficulty in the admission of testimony in conspiracy prosecutions, and more often than not a narrow construction of the term results in the exclusion of the Government's evidence. Few opportunities for appelate review of the principle have been occasioned since the Government has no right of appeal.

On the other hand, a conflict among the Circuit Courts exists in the cases of United States v. Birnbaum, 337 F. 2d 490 (C.A. 2, 1964), where Judge Lumbard applies a strict agency construction to the furtherance requirement, and in International Indemnity Company v. Lehman, 28 F. 2d 1 (C.A. 7, 1928), cert. denied, 278 U.S. 648, which is classically cited for the virtual abandonment of the furtherance requirement in favor of the test of relevancy.

In view of these authorities then, and in view of the apparent reality that many courts have discarded the furtherance requirement in favor of relevancy, it would seem that this is an appropriate time to codify this principle. Perhaps an even more cogent reason for discarding the furtherance requirement which is based on agency and shifting the basis of the exception to trustworthiness, however, is the portent in several recent Supreme Court decisions, 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-conspirator's statements based on agency prin ciples. These cases, while dealing with co-conspirator's statements sought to be admitted after the termination of the conspiracy, indicate that the right to confrontation under the Sixth Amendment still permits some traditional hearsay exceptions, based upon necessity and trustworthiness. In view of these decisions, therefore, it would seem that this would be a prudent time to enact this provision.

TITLE VIII-SPECIAL OFFENDER SENTENCING

Title VIII would amend Chapter 227 of Title 18, United States Code, by adding at the end thereof four new Sections (Sections 3575-3578) dealing with the punishment of special classes of offenders.

This Title provides, upon conviction of a felony, for increased punishment for three categories of special offenders-habitual offenders, professional offenders, and organized crime offenders. Habitual offenders are defined as those with two or more previous felony convictions. Professional offenders and organized crime offenders are defined at greater length, but less precisely. In each case the United States Attorney must give notice to the defendant prior to trial that he intends to proceed against him as a special offender. If the trial results in a conviction, there is a subsequent hearing to determine whether the defendant is a special offender. If the court determines that he is, the defendant may be sentenced to up to thirty years imprisonment and is not eligible for suspension of sentence, parole, or remission, or reduction of the sentence for any cause until he has served at least two-thirds of the term imposed. Sentences will be subject to appellate review by either the Government or the defendant and the appellate court may increase or decrease the sentence. Finally, in sentencing under these provisions the court is allowed to receive and consider any and all evidence without regard to the manner in which such evidence was obtained.

The imposition of increased penalties for special classes of offenders is a procedure which has been approved for some time, and the Department believes that such a procedure is desirable. Title VIII, however, as presently drafted, raises serious problems in three general areas-specificity of definitions for categories of offenders, procedures for making determinations, and the appeal provisions.

As to the first, Title VIII adequately defines a habitual offender and gives adequate notice for hearing on the recidivist issue in line with state statutes which have been held constitutional. Epperson v. United States, 371 F. 2d 956 (1967); Kendrick v. United States, 238 F. 2d 34 (1957) ; Rider v. Crouse, 357 F. 2d 317 (1966); Byers v. Crouse, 339 F. 2d 550 (1964); Oylers v. Boles, 368 U.S. 448 (1962).

The definition of professional offender appears to be so vague as possibly to violate due process. Lanzetta v. New Jersey, 306 U.S. 451 (1939). It includes no limits and can easily be read to include any criminal. Such a category is too broad and may be held to violate not only due process but the equal protection clause as well because of a lack of justifiable distinction warranting extra punishment for this category of offenders. In addition, increasing the punishment for this category seems to be punishing status and not a particular criminal act, which was held unconstitutional in Robinson v. California, 370 U.S. 660 (1962). But see Lanzetta (supra) which indicated a person could be punished for being a gangster (status) if the definition was not too vague. And see Powell v. Texas, 392 U.S. 514 (1968) which held that a chronic alcoholic could be punished for being in a public place (status plus overt act).

In order to withstand a constitutional attack on grounds of vagueness, therefore, it is felt that the definition of professional offender must be made more specific and must emphasize a pattern of specific past criminal activity and conduct in opposition to the legal structure of society as a whole, rather than emphasis on his income from a source other than legal. This could perhaps best be approached by adopting the approach taken in the Model Sentencing Act which allows for extended sentences for dangerous offenders on grounds, inter alia that: (c) The defendant is being sentenced for the crime of extortion, compulsory prostitution, selling or knowingly and unlawfully transporting narcotics, or other felony, committed as part of a continuing criminal activity in concert with one or more persons.

The definition of organized crime offender, on the other hand, is much more specific than professional offender and does not appear so vague as to violate due process, and appears to define the type of person sought to be covered by this Title with a fair amount of accuracy.

It is suggested that one method of solving the problem would be to develop a single definition for both professional offender and organized crime offender which would comprehend any person convicted of a felony involving extortion, narcotics, gambling, prostitution, bribery, etc., or other felony, which was committed as part of a continuing illegal business or activity in which he acted in concert with one or more persons and occupied a position of organizer or other supervisory or management position, or was an executor of violence. This approach would adopt in part the criteria set forth in the above-quoted reference to the Model Sentencing Act.

The second objection to this Title is that the procedures for making a determination may also violate due process. Although there is a provision for a hearing, the court is evidently not limited to the evidence submitted during the trial and the hearing in determining whether or not the defendant is a special offender, since the determination may be made on the basis of the presentence report to which the defendant apparently would not have access. Similarly, it is pointed out that no attempt is made to define the defendant's right to be informed of and to refute the evidence on which the court's determination is made. Nor is the court apparently required to make any written findings other than the conclusory finding on which the extended sentence is based.

We believe there is a substantial risk that this procedure would be held to violate due process under the rule announced in Specht v. Patterson, 386 U.S. 605 (1967). In that case which dealt with a post-conviction proceeding under a state Sex Offenders Act, the court said:

Due process, in other words, requires that [the defendant] be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examination, and to offer evidence of his own. And there must be findings adequate to make meaningful an appeal that is allowed. 386 U.S. at 610.