While it is not entirely certain that all of these procedures would be required prior to the imposition of an extended penalty for a specific crime (as distinguished from a sex offender commitment that is triggered by, but separate from, the conviction for a crime), it is probable that more is required before imposing an extended sentence than is necessary to ordinary sentencing procedure. Short of a full jury trial, it is not clear what the procedural requirements for extended sentencing are.

In order to strengthen the procedures of this proposal against successful constitutional attack, it is suggested that it be amended to provide the following procedural safeguards in addition to its provisions for notice and hearing: (1) a requirement that the defendant be furnished a copy of the presentence report with the names of confidential sources deleted where necessary; (2) the right to counsel and opportunity to cross-examine any witnesses presented by the Government; (3) the right to compulsory attendance of witnesses on the defendant's behalf; (4) a requirement that the court state the basis for imposition of extended sentence.

On the other hand, it is not felt that either a public hearing or strict adherance to the rules of evidence is required. The imposition of sentence on the basis of a preponderance of the evidence also appears to be consistent with due process.

The lack of direct precedent makes it virtually impossible to predict whether these procedures would survive constitutional challenge. On balance they seem fair and consistent with the due process requirements outlined in Specht (supra), and it is certainly arguable that they meet the necessary constitutional requirements.

The third problem with this Title is in connection with proposed Section 3577 which provides for appellate review of sentence by both the Government and the defendant, and allows an increase of sentence when either the Government or the defendant appeals.

Two constitutional problems at issue here are the double jeopardy question involved in allowing an appeal by the prosecutor, and the due process question involved in allowing an increase of sentence where the defendant appeals.

As to the first, while recent authorities appear to cast some doubt on the constitutionality of this provision, cf. Patton v. North Carolina, 381 F. 2d. 636, 645-46 (C.A. 4, 1967), cert. denied, 390 U.S. 905 (1968) and Whaley v. North Carolina, 379 F. 2d 221 (C.A. 4, 1967), the Supreme Court has upheld an increase in sentence following an appeal by the defendant in at least three cases: Flemister v. United States, 207 U.S. 372 (1911); Ocampo v. United States, 234 U.S. 91 (1914); Stroud v. United States, 251 U.S. 15 (1919). Consequently, it would seem that if these cases are still good law today then the Government should be able to seek an increase in sentence on appeal without violating either due process or the Fifth Amendment ban on double jeopardy.

The constitutional issue of whether a defendant may be given an increased sentence when he appeals may be decided in two cases now on the docket of the Supreme Court. In these cases, North Carolina v. Pearce, No. 413, 1968 Term, and Simpson v. Rice, No. 418, 1968 Term, the issue is squarely presented whether a defendant may be given an increased sentence after his first sentence has been set aside for one reason or another.

In order to avoid the question of due process posed by this provision, it is suggested that this proposal be amended to provide that if the Government fails to exercise its right of appeal within a specified number of days, e.g., ten days, then no increase of sentence may be allowed upon appeal by the defendant after the Government has exercised its option whether to appeal or not.

Senator MCCLELLAN. Mr. Wilson we welcome you this afternoon. We appreciate your cooperation and your presence here. You have with you two members of your staff, do you not?

Mr. WILSON. Yes, sir. Mr. Henry Petersen, my deputy, and Mr. William Lynch, Chief of the Organized Crime Section." Senator MCCLELLAN. Thank you very much.

Mr. Wilson, I see you have a prepared statement, a rather lengthy statement. I would be glad if you would make any brief comments,

30-902-69- -25

and then if it is satisfactory with you, let you insert your prepared statement in the record in full at this point. You may highlight your statement, and let us ask you some questions as you proceed.

Is that satisfactory?

Mr. WILSON. Yes, sir; I think that is the way to handle it. (The complete statement of Mr. Wilson follows:)

TESTIMONY OF ASSISTANT ATTORNEY GENERAL WILL WILSON

Mr. Chairman, you may recall that I accompanied Attorney General Mitchell when he appeared before the Subcommittee on March 18 of this year in support of the objectives of S. 30. At that time the Attorney General agreed to send the Subcommittee at a later date a detailed written analysis of the Department's views on S. 30, and to make available a representative of the Department to testify regarding these views. The Department's written comments on S. 30 were sent to you, Mr. Chairman, on May 8, and I am appearing today at the invitation of the Subcommittee as the official representative of the Department of Justice to testify on this matter. In addition to S. 30, Mr. Chairman, I am also prepared to comment on a number of other bills dealing with the control of organized crime, including S. 974, S. 975, S. 976, S. 1623, S. 1624, S. 1861, S. 2022, and S. 2122.

Pursuant to your request of the Attorney General during his appearance on March 18, we have examined the charts summarizing the Federal law enforce ment effort against organized crime since 1960, which were printed in the Congressional Record as exhibits to your speech in the Senate on March 11, 1969. on the subject of organized crime in the United States, and have made certain corrections and revisions of the statistics reflected on Chart 3 of Exhibit 2— Organized Crime Section Indictments which should make this Exhibit more accurate according to the best information in our files. I would like to submit a memorandum containing these corrections as an exhibit to my testimony.

Pursuant to your request of the Attorney General, we have also prepared a memorandum comparing the composition of the major families of the Cosa Nostra as it existed in 1960 with its composition at the present time, and a memorandum listing the number of Cosa Nostra members indicted and convicted during the period 1960 through March 1969. I would also like to submit these memoranda as exhibits to my testimony.

With respect to S. 30, Mr. Chairman, I think it would perhaps be most helpful for me to highlight both those areas of the bill which we support most strongly and those which we likewise oppose most strongly.

We are generally in favor of the various changes in the law affecting the summoning, terms, and powers of grand juries which Title I would effect, such as allowing the grand jury to select its own foreman and deputy foreman, to extend its term for additional periods of six months, not to exceed a total of 36 months, and to petition the court to impanel an additional grand jury upon a showing of need. We also favor the revival of the grand jury's historic report making power, as narrowly circumscribed in this proposal, as being in the interest of good and effective government, but we urge that this provision be amended to provide for an additional category of reports, namely on organized crime conditions in the district which would not be critical of an identified or identifiable person. In order that the regular business of the grand jury may be conducted with dispatch and without interruption, and in secrecy, we also urge that the provision be amended to provide for the issuing of any report only upon the conclusion of the grand jury's term.

With respect to the proposed amendment of 18 U.S.C. 3322, which presently provides that "The Court shall order one or more grand juries to be summoned at such times as the public interest requires," to require the convening of a grand jury at least once during each eighteen month period, by each district court, we are not aware that any serious problem exists in this regard in any district. The difficulty we have experienced in some districts, however, is obtaining a sufficient number of grand juries to accommodate the general needs of the district and the needs of the typically lengthy grand jury investigation. To remedy this problem we strongly recommend as an alternate proposal that present Section 3322 of Title 18 be amended to provide, in addition to its present

language, that a grand jury be impaneled in each district in which the Attorney General certifies in writing to the chief judge of the district that in his judgment such a special grand jury is necessary because of major organized crime activity in the district.

The Department is opposed to the provision which would allow the grand jury to petition the Attorney General to replace an attorney, agent or investigator if dissatisfied with his performance, on the grounds that it is unnecessary since sufficient control over such personnel already exists in the Department, that it might well tend to unduly limit the discretion of attorneys charged with the investigation of sensitive or unpopular matters, and that it could also be expected to invite the making of unfounded, though perhaps good faith, complaints in those close or hard cases where the layman grand jury refuses to accept the sound legal judgment of an experienced prosecutor that the evidence is sufficient or insufficient, as the case may be, as a basis for an indictment. In lieu of the immunity proposal contained in Title II of S. 30, the Department recommends enactment of the immunity proposal of the National Commission on Reform of Federal Criminal Laws which you introduced in the Senate on May 12, 1969, Mr. Chairman, on behalf of yourself and Senators Hruska and Ervin as S. 2122. The Department's chief reason for preferring the National Commission's immunity proposal is that, unlike the proposal contained in Title II of S. 30, which is limited to grand jury or court proceedings, it would create a single integrated immunity provision applicable to grand jury-court proceedings; formal administrative hearings by an independent agency or within the executive branch; and Congressional investigations. Another important reason for supporting this proposal is its provision for notice to a central law enforcement point, the Attorney General, as a means of attempting to minimize the possibility that a conferment of immunity by one agency may conflict with the interests of another agency. I will comment on S. 2122 in greater detail at a later point in my statement.

Title III, dealing with the summary punishment of recalcitrant witnesses who refuse without just cause to comply with an order of the court to give testimony in grand jury or court proceedings, seeks to codify the civil contempt aspects of existing case law in this area, Shillitani v. United States, 384 U.S. 364 (1966), and we strongly favor this proposal. Since under the principles governing civil contempt a witness can no longer be confined when the court proceeding is concluded or the grand jury discharged, we have suggested that this limitation be spelled out in the statute by adding at the end of the proposal the following language: “but in no event shall such period of confinement exceed the life of the court proceeding or of the term of the grand jury before which such failure or refusal to comply with the court order occured." With respect to the provision of this Title which would deny bail pending appeal of an order of confinement under this proposal, we have also suggested that in order to take into account the exceptional case where substantial grounds for appeal may exist, it would be in the interests of justice to place a time limit of thirty days from the date of appeal for disposition of such an appeal.

Title IV would create an additional felony provision for perjury or subormation of perjury before a court or grand jury. The theory behind this proposal apparently is that since a new offense is created, the old common law rules of evidence applicable to perjury prosecutions generally, the two witness and direct evidence rules, would not be applicable to this new offense. The Department agrees with the recommendation of the President's Commission on Law Enforcement and Administration of Justice that abolition of these outmoded, restrictive evidentiary rules is desirable, but we question whether the form of the proposed provision is adequate to accomplish the reform sought. We believe that legislation abrogation of these rules requires specific language in the statute and we have, therefore, suggested appropriate language which would achieve this objective. The Department also favors the provision of this proposal which would, in cases of inconsistent statements under oath, relieve the Government of the necessity of proving which one is false, and allow the prosecutor to plead and prove the case in the alternative and thus show the falsity by logical inconsistency.

As was pointed out in our written comments, this provision is not as inclusive as the present Federal perjury statute in that it is specifically limited to "any trial, hearing, or proceedings before any court or grand jury," and thus not only are pre-trial depositions, affidavits, and certificates excluded from its cover

age but also administrative and legislative hearings and proceedings. I would suggest, therefore, that this would be an appropriate time for the Subcommittee to consider amending the present perjury statute, 18 U.S.C. 1621, and thereby, by express language abolish the peculiar rules of evidence applicable to perjury generally in all types of proceedings to which the present statute is presently applicable.

The Department of Justice favors the enactment of Title V's provision which would allow the Government to take depositions for the purpose of preserving the testimony of Government witnesses, whenever it is in the interest of justice, after the filing of an indictment or information. The provision contains adequate procedural safeguards to protect the defendant's rights under the Sixth Amendment to representation by counsel and confrontation of witnesses by allowing him an opportunity to be present with counsel and to cross-examine the deponent, and also requires the Government to make available for the use of the defendant at the time of the examination any statement of the witness in the Government's possession which it would be required to make available to the defendant under the Jencks Act, 18 U.S.C. 3500, if the witness were testifying at the trial. The deposition, of course, would be admissible in evidence at the trial in the event the witness is dead, ill, out of the United States, or the Government is unable to procure his appearance by subpoena.

This extension to the Government of a right that a defendant in a criminal trial already enjoys under Rule 15 of the Federal Rules of Criminal Procedure should prove to be an extremely useful tool in the effective trial of all criminal cases, but particularly in organized crime cases where there is a substantial danger that the witnesses will not be available at the time of the trial.

The Department wholeheartedly supports the theory behind Title VI, which is that witnesses in organized crime cases need physical protection against reprisals from the members of organized crime against whom they testify. The evidence is abundant that members of organized crime syndicates will ruthlessly eliminate anyone who stands in the way of success in any criminal enterprise, especially those who betray the secrets of the syndicate by testifying in criminal proceedings. As noted in our written comments, however, we believe that instead of limiting the Department to the renting, purchasing, and constructing of housing facilities, a broader range of uses for the expenditure of funds in this area should be considered, such as, for example, the salaries and expenses of the United States Marshal's office which provides protection for most such witnesses. In order to achieve the necessary flexibility to deal adequately with this problem, therefore, we believe 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.

The Bureau of the Budget and the Department of Justice have undertaken a study of the potential costs of Title VI in response to your letter of March 17, 1969, to the Director of the Budget Bureau, Mr. Chairman, and you will be advised of the results of this study as soon as it is completed. In the meantime, therefore, we believe it desirable that the bill not specify a particular appropriation authorization or limit the authorization to a single fiscal year.

In view of the enormity of the costs and other practical problems involved in the protection of witnesses, the Department does not believe that it should assume the responsibility for the protection of state witnesses and feels that this responsibility should be assumed by the states. We would not, however, be opposed to granting the Attorney General authority to offer the use of housing facilities, on a reimbursable basis, in limited situations where the states cannot provide adequate facilities to their witnesses, provided all other arrangements and expenses for the protection and care of such witnesses are made and borne by the states.

The Department also favors enactment of the provision in Title VII, relating to the admissibility in evidence of the declarations of co-conspirators in criminal conspiracy cases, which would codify in all but one respect the present law on this subject. All aspects of the present rule are retained, save the requirement that the declaration be in "furtherance" of the objectives of the conspiracy, in lieu of which there is substituted the requirement that such a declaration must "relate to the existence or execution" of the conspiracy, and that "there are in existence facts and circumstances from which its trustworthiness may be inferred." We believe there are several sound reasons why the element of "trustworthiness" of relevant evidence should be substituted for the "furtherance"

requirement. First, the ambiguity of the furtherance requirement has caused considerable difficulty in the admission of testimony in conspiracy prosecutions, and a narrow construction of the term results in the exclusion of important, relevant evidence. Second, there is a portent in several recent Supreme Court cases, 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-conspirators' statements based on agency principles. Since these cases, however, indicate that the right to confrontation under the Sixth Amendment still permits some traditional hearsay exceptions, based on necessity and trustworthiness, this would seem to be a prudent time to discard the furtherance requirement which is based on agency principles and to shift the basis of the exception to trustworthiness.

The Department believes that a procedure for imposing increased penalties on special classes of offenders is desirable. Because of the many serious constitutional problems involved, however, such a procedure must be worked out with great care. In our judgment the special offender sentencing provisions of Title VIII raise serious problems in three general areas-specificity of definitions for categories of offenders, procedures for making determinations, and the appeal provisions. Numerous suggestions for remedying these defects have been set forth in our written comments on this provision of S. 30, and we stand ready to assist the Subcommittee in solving these problems and attempting to draft a fair and effective special offender sentencing provision which will not run afoul of the Constitution.

S. 2022

Before you is a bill which is designed to bring to bear on the vast business of illegal gambling a substantially increased effort on the part of Federal law enforcement officers. Title I of the bill would make it a Federal crime to devise or participate in a scheme to obstruct the enforcement of state and local criminal laws in order to promote an illegal gambling business, and Title II would make it a Federal crime to participate in such an illegal business.

It is not the intent of this bill to preempt local law enforcement, but it is vital, in the judgment of the Department of Justice, that we expand the available forces in the fight against this pervasive and pernicious enterprise. To this end we have defined, for purposes of both titles, an illegal gambling business as one which is in violation of state or local law, which involves five or more persons who operate, participate in or derive revenue from it, and which either has been in operation for longer than 30 days or has a single day's gross revenue of $2,000 or more. We believe that this standard will insure that the Federal effort is directed only at the more important gambling operations-those in which there may clearly be said to be a strong Federal interest.

In his message to Congress the President emphasized particularly the danger involved in the spread of organized gambling, and there remains no doubt that the vast amounts of money which flow into the coffers of organized crime as a result of its control over this activity give to the professional criminal an extremely potent weapon for evil. Perhaps most importantly, we who have dealt with the problem of organized crime are faced with the unescapable fact that a substantial part of the gamblers' revenue is devoted to the subversion of law enforcement, and it is to this problem that we have addressed ourselves in Title I of this bill.

There can be little question that illegal gambling has a substantial effect on interstate commerce. It uses the facilities of interstate commerce, its profits are distributed in interstate commerce, and its paraphernalia is shipped in interstate commerce. Nor can there be any question that the bribery of state and local law enforcement officials is a necessary element to the success of any gambling operation-almost an ordinary business expense. As has been said many times, no large scale gambling enterprise can exist without the knowledge and thus without the acquiescence of local police and prosecutors. It is not pleasant to contemplate that, in cities and towns all over the country, the persons charged with the protection of the public safety have abdicated that responsibility. But however unpleasant that thought may be, we cannot blind ourselves to the reality that such corruption exists on all levels in small towns and large cities. Two examples culled from many, many such instances in our files will suffice to indicate the scope of the problem which faces us.