One, would a local police officer who accepted a bribe to refuse to enforce State law be a coconspirator in the violation of title II?

Mr. WILSON. NO; he probably could not be. General conspiracy law today probably would not include the one-bribe situation.

What this statute envisioned, however, is a blockage of the law, where the law is not enforced either in an area or against individuals by reason of bribery. Our experience has been that rackets like policy games that are in daily operation require systematic bribery. So it would envision generally the cases involving either most of the enforcement officers in an area or some blockage fairly high up in the police department.

Senator MCCLELLAN. What is the difference under your proposed section 1511, title I, between "devising or participating in a scheme," and "conspiring"?

Mr. WILSON. Well, the purpose of that language is to broaden the word "conspire" to include a situation, for instance, where you could trace some of the profits of a scheme of a gambling enterprise into a given individual, but couldn't ever put him in the room where conversations or other acts of conspiracy occurred.

Senator MCCLELLAN. What you are doing is saying that if you accept the fruits or benefits of that conspiracy you would be guilty? Mr. WILSON. Yes, sir. As you probably know, in the biggest gambling rackets it is relatively easy to make cases against the street sellers, and clear up through the bookkeeping department, but through the use of carriers and banking connections it is sometimes very difficult to develop proof against the person who is the most guilty, that is the top proprietor, because he isolates himself from it rather effectively. This would provide broader language which would permit us to go after the big ones with a lessor degree of proof than in conspiracy.

Senator MCCLELLAN. In other words, if they get a take out of it, whether or not they participated in the actual activity, it would make no difference, they would be guilty?

Mr. WILSON That is the intent of the language.

Senator MCCLELLAN. Someone might start something down here, and get it going, but then outsiders step in and say, "Well, we are going to take a part of it." They should be included, too.

Mr. WILSON. And conceivably might not either have been a party to it or known about it in the sense of knowing the mechanics of it-at least to the extent that you could prove it.

Senator MCCLELLAN. But if they step in and get the benefits or the fruits from it, then they are guilty?

Mr. WILSON. That is the meaning of the language.

Senator MCCLELLAN. That is what you are getting at?

Mr. WILSON. Yes, sir.

Senator MCCLELLAN. I take it that you hope this legislation dealing with gambling will strike at the economic basis of organized crime. Now, would it be helpful to add to S. 2022 a forfeiture provision that would cover the equipment, adding machines, and money used in operating the illegal business establishment?

Mr. WILSON. I think it would, yes.

Senator MCCLELLAN. Give us some thoughts on this.

Mr. WILSON. Well, we will do that and submit some language on that (See p. 412.)

Senator MCCLELLAN. As you are aware, the Texas Revised Civil Statutes under articles 4665 and 4667 of 1960 permit the issuance of an injunction for padlocking of buildings in which an illegal gambling enterprise operates. Do you think the addition of such a provision to S. 2022 on the part of the Federal Government would be helpful?

Mr. WILSON. Well, my immediate reaction is that it would. I am very familiar with that Texas statute, having been attorney general there. The Texas attorney general has no criminal jurisdiction at all, and I had formerly been a local prosecutor, district attorney.

Senator MCCLELLAN. You had no criminal jurisdiction as attorney general?

Mr. WILSON. No, not at all. We closed a casino in Dallas using civil process only. We had no criminal process, and the local criminal officials were entirely uninterested in any type of effort in that direction.

We used the injunctive process on the buildings-one of the remedies for contempt is the so-called padlocking or closing of the building. We found that to be a most effective device against casino-type gambling. It would not, of course, operate against mobile operations like sports gambling or policy gambling or things of that nature.

But the civil injunction is actually a very effective law enforcement remedy. It could be expanded in many areas, not just gambling, but in some other areas. We found it to be very effective.

Senator MCCLELLAN. I may very well want later to submit some other questions to you. I have several more here but I don't want to take the time now.

Mr. WILSON. We are so interested in the subject matter that we will be more than willing to give any written answers that we can.

Senator MCCLELLAN. I know you will. Your Department has been very cooperative with this committee, and I want to express my appreciation to the Attorney General, and to you and all your staff for the cooperation we are receiving.

There is now, it seems to me and I have stated this publicly-a real purpose and desire on the part of the Department of Justice and the Judiciary Committee-this branch of it, at least, this subcommitteeto cooperate and work harmoniously together to the end that we enact legislation in this field that will be effective, that is within the framework of the Constitution, and which is needed in this of our critical crime situation.

I am very grateful for and welcome the assistance we are getting from the Justice Department.

Mr. WILSON. Thank you.

Senator McCLELLAN. Senator Hruska.

Senator HRUSKA. I have just two or three questions. Mr. Wilson, Congress enacted sections 1084 and 1952 of title 18, United States Code, prohibiting the use of telephones in interstate commerce in furtherance of illegal gambling operations. What investigative problems have been experienced under that existing law?

Mr. PETERSEN. Under 1084, which prohibits the transmission of gambling information in interstate commerce, up until January 20 the great difficulty has been proof of the conversations. The Katz1

1 Katz v. United States, 389 U.S. 347 (1967).

case decided in the Supreme Court is a classic example where we put a listening device on the outside of the telephone booth and attempted to prove the conversation, and the court held that was an invasion of privacy. There is difficulty in obtaining proof of conversation under 1084.

Under 1953, we are dealing with an interstate transportation of gambling paraphernalia. Of course, we have had some luck in that area, but primarily our reliance is 18 U.S.C. 1952. Under that statute we have to prove the use of an interstate facility, mail, telephone, or what have you, and it has been in that area of proving the interstate element that we have had our greatest difficulty. We can't open the mail.

You can institute a mail check, that is to say to whom letters are addressed and from whence they came, but it doesn't establish the nature of the information being transmitted. The same thing is true with the use of a telephone, and there is great use of the telephone in gambling.

In gambling, we haven't been able to prove the conversations. We have such situations now, and perhaps I will illustrate it.

There is a widespread gambling operation in a capital of one of our States, and corruption, massive corruption, on the part of local officials. We went into the investigation with the Internal Revenue Service under the wagering tax laws. They were subsequently declared to be unenforceable. We had one case in which there was an interstate element. We prosecuted that successfully.

After the Wagering Tax Act was thrown out we were reduced to proceeding on those cases under the income tax law.

Now, it is one thing to establish an income tax case based on one $5,000 payment to a corrupt police officer-you can establish that. It is quite another thing to establish the tax case based on payments of $100 a week, which you may not be able to prove. They can hide that much money. We also have had a great deal of difficulty in establishing jurisdiction in current investigations. We have continued to investigate, and we finally found in one case the jurisdictional peg under 18 U.S.C. 1952. But all of that could have been circumvented and shortcut if we had had a statute which would enable us to operate on that gambling enterprise as it existed-that is, a numbers operation in a major city assisted by local police officers, protected by local police officers, with indeed affirmative action of obstruction of justice and obstrution of Federal investigation if we had had the jurisdiction to

act.

But this business of being able to prove what we know, that gambling does affect interstate commerce, has been the difficulty.

Senator HRUSKA. Do you feel that the proof of the size and duration of a gambling operation as it is defined in S. 2022 would be as difficult to establish as proof of an interstate "link" in that type of operation?

Mr. PETERSEN. No; I don't think so. With respect to proof of duration, conceivably that could be very difficult, 30 days' proof, every day for a 30-day period might be very difficult. Even gamblers take a day off occasionally. But the $2,000 in any given day, based on our experience, we think we can prove.

If we can't establish $2,000 it is obviously not a Federal case. We ought not to be involved in it.

Most of these instances, given probable cause to raid a gambling establishment which we have been able to observe, we know it has been operating for 4 or 5 days a week, seizing the records that exist, we have been able to come up with better than $2,000 a day in most all of our

cases.

Senator HRUSKA. Of course, that 30-day operation or gross revenue of $2,000, that is in the alternative?

Mr. PETERSEN. In the alternative; yes, sir.

Senator HRUSKA. So that on any given day, without reference to continuance for 30 days the Government can establish gross revenues of $2,000 for Federal jurisdiction under this bill.

Mr. PETERSEN. That is right. My guess is we will rely on the monetary amount.

Senator HRUSKA. The Omnibus Crime Act of 1968 authorized wire tapping. Will this power facilitate your task of enforcement in the gambling area?

Mr. PETERSEN. Yes, it will; but it has been, and perhaps properly so, a very difficult statute to operate under. You require more for a warrant under that statute than you do for a search warrant. It is difficult, and I am not suggesting that it should not be, but it is going to take some time for us to develop our experience with it.

We have been processing very cautiously, and only in those cases where we are absolutely sure of ourselves in each step, and indeed there is some educational process going on. The enforcement agent doesn't really realize at this point the full significance of it.

As time goes on and we use it more and more they will become more familiar with it and it will be an assistance. Indeed, it might be a substitute for some of the proposals that we make here. But we are unwilling to make that judgment. We are looking for tools and assistance, and while all of these things may be of help, the simple fact is none of them are going to be panacea.

Senator HRUSKA. When you refer to the authorized wire tapping as being difficult, would you say it is a statute that is needlessly difficult? We are dealing in a difficult field now. We have at the table here one of the outstanding authorities in the field, Mr. Blakey. I thought he did an outstanding job in drafting it. But we were aware that it was a difficult field at the time it was enacted. Would you like to comment on that?

Mr. PETERSEN. Well, sure, before it was enacted I worked with Professor Blakey, to whom you are referring there, extensively. I was quite in agreement with him that all of these restrictions are needed. Indeed, as I read Berger,1 they were required, I am sure we all agree with that. Now that we have the statute I wish it were not so restrictive, but professionally speaking, I think those restrictions are the price of constitutionality, and that is really what we need.

Mr. WILSON. Some of the difficulties have arisen since the passage in the form of the Spinelli case and others which of course would go to what you would have to have before you obtain the warrant.

1 Berger v. State of New York, 388 U.S. 41 (1967). 2 Spinelli v. United States, 393 U.S. 410 (1969).

Senator HRUSKA. Well, thank you, Mr. Chairman. That is all the questions I have at this time.

Senator MCCLELLAN. Thank you, Senator.

Mr. Blakey wishes to ask a question.

Mr. BLAKEY. Mr. Petersen, you have raised a question about the enforceability of the gambling as a business act. I am particularly concerned about the possible implication of the Spinelli and other cases dealing with probable cause in the enforcement of this statute. I wondered if it would be helpful if we could draft language which would create a presumption of the $2,000-a-day take based on your experience, not for the purpose of guilt, but for the purpose of securing search warrants. I am concerned that the statute as it is drafted may present very difficult search warrant problems. I have a hard time now figuring out what kind of evidence would be available to you that would let you prove your jurisdictional peg.

I am terribly concerned that the present bill might be worthwhile as a statute solely to prosecute with after investigations are made under other statutes and that you might have your interstate problems in the end anyway.

Mr. PETERSEN. You hit upon a good point. A presumption might be helpful in that regard. Frankly, we have been hopeful that we would be able to establish by informant testimony, even that within the test of Spinelli. "Yes, I worked for the operation and I turned in $300 a day and there are 20 other fellows in the operation, too." That type of informant information I think would enable us to proceed, provided we could establish the reliability of the informant. It is a problem.

Senator MCCLELLAN. Is it possible now? As Spinelli is strictly construed, is it possible to get a search warrant without practically establishing guilt beyond a reasonable doubt?

Mr. PETERSEN. I have to say it is, Senator. It is more difficult and it has been of a real concern, particularly in the application of title III warrants. It has also been a concern because we have had to develop so much information with respect to the informant that you sometimes risk disclosing the informant's identity. It imposes a high standard indeed.

I hope we are wrong in suggesting we must have evidence beyond a reasonable doubt.

Senator MCCLELLAN. Is it possible to meet that standard? Is it practical to meet it?

Mr. PETERSEN. I would have to answer that "Yes," because we have met it in several warrant situations. Yes.

your

Senator MCCLELLAN. Have those warrants been sustained? Has probable cause been sustained, that is to say, what you took to be "probable cause"?

Mr. PETERSEN. Not yet, and I am in danger of being reversed, yes. Senator MCCLELLAN. I thought the Court went pretty far in the Spinelli case. Probable cause doesn't mean an actual fact; it is just a "probability."

Mr. PETERSEN. The thing that concerns us about Spinelli, as I read it, is that it indicates that the corroborative evidence has to go to criminality, and that takes it a level above what we thought the rule