tive. But courts are authorized, indeed required, to decree relief effective to redress the violators, whatever the adverse effect of such a decree on private interests. Divestiture is itself an equitable remedy designed to protect the public interest.

If the Court concludes that other measures will not be effective to redress a violation and that complete divestiture is a necessary element of effective relief, the Government cannot be denied the latter remedy because economic hardship, however severe, may result.

It must be remembered that the Court here was speaking of remedying an economic concentration of power, which potentially might have an adverse effect upon our economy. Title IX attacks a far more heinous threat, the use of force, threats of force, enforcement of illegal debts, and corruption in the acquisition or operation of business. If DuPont and other related companies can be forced to rid themselves of General Motors ownership, almost without regard for the economic consequences, then it must surely follow that the removal of criminal elements from the organizations of our society by divestiture is justified. The situation may be said to cry for legislation to accomplish that result. The criminal surely can lose his right to own or hold office in a business or other enterprise as easily as can the essentially honest, but potentially too powerful, businessman.

These provisions should effectively remove the criminal figure from the particular corrupt organization. In a like manner, through a remedy such as the prohibition of engaging in the same kind of activity in the future, the criminal element will not only be removed from an area of activity, they will also be prohibited from using the know-how acquired to start the same type of business or other organization again under a different name.

Here, too, the antitrust laws furnish ample precedent for the use of this sort of civil remedy. In United States v. Grinnel Corp., 384 U.S. 563, 579 (1966), the district court had decreed that one Fleming should be enjoined from working for any of the corporate defendants to an antitrust suit because of constant flouting of the antitrust laws, even though no predatory practices were found to exist. The Court, while it reversed on a factual aspect of the case, acknowledged that the remedy was available if appropriate facts were found:

Defendants urge and the Government concedes that the barring of Mr. Fleming from the employment of any of the defendants is unduly harsh and quite unnecessary on this record. While relief of that kind may be appropriate where the predatory conduct is conspicuous, we cannot see that any such case was made out on this record.

If predatory conduct may be made the basis for such a prohibition, then surely murder, extortion, and other crimes are more than equal grounds for the prohibition.

In each of these illustrative cases, the courts have emphasized that the prohibition is not a penalty against any individual. It is instead a protection of the public against parties engaging in certain types of businesses after they have shown that they are likely to run the organization in a manner detrimental to the public interest. In the spirit of this background, Title IX, it must be again emphasized, is remedial rather than penal. It is based upon the judgment that parties who conduct organizations affecting interstate commerce through a pattern of criminal activity are acting contrary to the public interest. To protect the public, these individuals must be prohibited from continuing to engage in this type of activity in any capacity.

Finally, the Department of Justice had this to say of the civil aspects of Title IX:

These time-tested remedies . . . should enable the Government to intervene in many situations which are not susceptible to proof of a criminal violation. Thus, in contrast to a criminal proceeding, the civil procedure

with its lesser standard of proof, non-jury adjudication process, amendment of pleadings, etc., will provide a valuable new method of attacking the evil aimed at in this bill. The relief offered by these equitable remedies would also seem to have a greater potential than that of the penal sanctions for actually removing the criminal figure from a particular organization and enjoining him from engaging in similar activity. Finally, these remedies are flexible, allowing of several alternate courses of action for dealing with a particular type of predatory activity, and they may also be effectively monitored by the Court to insure that its decrees are not violated. (Footnotes omitted.)

The Committee specifically reendorses these views.

In the first case litigated under 18 U.S.C. 1964, the Seventh Circuit in United States v. Cappetto, upheld the constitutionality of 18 U.S.C. 1964. The court in Cappetto stated:

...

It has thus been settled . . . that acts which may be prohibited by Congress may be made the subject of both criminal and civil proceedings, and the prosecuting arm of the government may be authorized to elect whether to bring a civil or criminal action, or both. A civil proceeding to enjoin those acts is not rendered criminal in character by the fact. that the acts also are punishable as crimes.*

The court recognized that the relief authorized by 18 U.S.C. 1964 is similar to the relief granted in antitrust cases under the Sherman and Clayton Acts. While the conditions under which an injunction will be issued pursuant to section 1964 are to be determined by the principles that govern the granting of equitable relief, the court found that Congress intended to dispense with the govern

515 U.S.C. 4, 25; see United States v. Cappetto, supra note 3, at 1357.

6 Id. at 1358.

Section 4012.

ment's requirement of showing irreparable injury or inadequacy of the remedy at law. Furthermore, since an action under 18 U.S.C. 1964 is civil in nature, the burden of proof for the government is the lesser standard of preponderance of the evidence as opposed to the higher standard of beyond a reasonable doubt required in criminal cases. Similarly, the government has a right to discovery under the Federal Rules of Civil Procedure and where the government grants use immunity pursuant to 18 U.S.C. 6002 and 6003,9 the defendant cannot refuse to comply with the discovery orders on the ground that this violates his Fifth Amendment right against self incrimination.10

2. Provisions of S. 1, as Reported

Section 4011, for the most part, carries forward the provisions presently found in 18 U.S.C. 1964.

Subsection (a) provides that the Attorney General may initiate a civil proceeding to prevent and restrain offenses under three organized crime offenses set forth by the Code."

Subsection (b) grants jurisdiction to the United States District Courts to hear proceedings brought under this section. In addition, it provides that any such action is to be handled in an expeditious manner by the court.

Subsection (c) authorizes the court to enter restraining orders or injunctions, require performance bonds, or take other appropriate action to prevent frustration of the aims of this subchapter.

Subsection (1) provides for collateral estoppel as between related criminal judgments and civil actions. Thus, where a defendant had been convicted of violating section 1801, 1802, or 1803 of the Code, the conviction, operating as a final judgment or decree rendered in favor of the United States, estops the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding brought by the United States.

Subsection (e) contains broad remedial provisions which the court may utilize in cleansing organizations from the influences of organized crime. Although certain specific remedies are enumerated, the list is not exhaustive, and the only limit on remedies is that they accomplish the aim set out of removing the corrupting influence while making due provisions for the rights of innocent persons.

SECTION 4012. CIVIL RESTRAINT PROCEDURE

1. Present Federal Law

This section combines into one provision statutes that are presently contained in sections 1965, 1966, and 1967 of title 18 and sets out the rules concerning venue, the issuance of process, and the service of process for proceedings brought under section 4011. These provisions. are patterned after similar provisions in the antitrust field.i2 In addition, the section provides a procedure for expediting actions brought under section 4011.

7 Id. at 1358-1359.

8 Id. at 1357.

See subchapter B of chapter 31.

10 United States v. Capetto, supra note 3 at 1359.

11Sections 1801 (Operating a Racketeering Syndicate), 1802 (Racketeering), and 1803 (Washing Racketeering Proceeds).

12 See 15 U.S.C. 5, 15a, 23, 1314 (a).

Section 4013.

2. Provisions of S. 1, as Reported

Subsection (a) establishes venue wherever the defendant resides, is found, has an agent, or transacts his affairs, without regard to the amount in controversy, and subsection (b) provides nationwide service of process on parties, if the ends of justice require it.

Subsection (c) provides nationwide subpoena power for witnesses. However, a court order on good cause shown is required for issuance of a subpoena if the witness resides more than 100 miles from the court. In addition, this subsection provides for service of process wherever the person is found, resides, has an agent, or transacts affairs.

Subsection (d) provides a procedure whereby the Attorney General may obtain the expeditious processing of those cases which are, in his opinion, cases of general public importance. The judge designated to hear such a case is directed to hold a hearing as soon as practicable and to participate in the hearing and determination of the cause.

Subsection (e) provides that the court in its discretion may conduct the proceedings, including the taking of depositions, in open or closed session after taking into consideration the rights of the persons affected.

The Committee believes that the broad provisions set out in section 4012 are required by the nationwide nature of organized crime activities and its widespread efforts to infiltrate legitimate business organizations.

SECTION 4013. CIVIL INVESTIGATIVE DEMAND

1. Present Federal Law

This section carries forward one of the innovative approaches established by the Organized Crime Control Act of 1970. In that act, Congress recognized that the infiltration of legitimate businesses by organized crime presented more than a problem in the administration of criminal justice. To attack this problem, Congress decided that the traditional criminal remedies were not sufficient and that new remedies were needed. Congress thus provided for civil remedies in the organized crime field which were patterned after the time tested remedies in the antitrust laws. One of these remedies which has proved particularly successful in the antitrust field is the civil investigative demand which is the civil counterpart of the grand jury. Congress thus enacted 18 U.S.C. 1968 which provides for a civil investigative demand in organized crime cases if the Attorney General has reason to believe that any person or enterprise under investigation may be in possession of documentary material relevant to a civil racketeering investigation. In such cases, he may, prior to the institution of a civil proceeding, issue in writing and cause to be served on the person or enterprise, a civil investigative demand requiring such person or enterprise to produce the material for examination.

2. Provisions of S. 1, as Reported

Section 4013 substantially reenacts 18 U.S.C. 1968. Except for minor word changes, there are only two substantive changes. 18 U.S.C.

1968 (c) (2), which provides that no demand shall "require the production of any documentary evidence which would be privileged from disclosure if demanded by a subpoena duces tecum," has been eliminated since such a demand would obviously be unreasonable and is thus covered by 18 U.S.C. 1968 (c) (1), now subsection (b) of 4013. In addition, 18 U.S.C. 1968 (d) (7), which provides for the appointment of a successor custodian in the event of the death or disability of the designated custodian, is eliminated since it is implicit in the power of the Attorney General to designate a custodian that he has, in addition, the authority to designate a substitute custodian if the need should arise.

Subsection (a) of section 4013 sets forth the circumstances in which the Attorney General may issue a civil investigative demand and designates the material that the demand is to contain, and subsection (b) provides that no civil investigative demand is to contain any requirement that could be held to be unreasonable if contained in a subpoena duces tecum. This subsection will cover the limitations. which were formerly in 18 U.S.C. 1968 (c) (1) and (2).

Subsection (c) contains broad provisions for service of process and permits not only personal service, but service upon the person's agent or any other person authorized by law to receive service of process on behalf of the person as well. Service can be made at the principal office or place of business of the person or an executed copy can be sent by registered or certified mail to the person's principal office or place of business.

Subsection (d) directs the Attorney General to appoint a person to serve as document custodian. This section also provides that the person to whom a civil investigative demand was issued must make the material available for inspection by the custodian at the person's place of business or some other place mutually agreed upon. The custodian is responsible for any material delivered to him and no one except the Attorney General is permitted to inspect the material without the consent of the person who produced the material.13 Upon the completion of the investigation or any proceedings arising therefrom, the custodian is to return to the person any material which has not passed into control of a court or grand jury. If no proceeding has been instituted within a reasonable time after completion of the examination and analysis of the evidence, the person who produced the material is entitled, upon written demand made upon the Attorney General, to the return of all the material produced by him.

Subsection (e) provides a procedure and the circumstances under which the Attorney General may seek an enforcement order when the person who is the subject of a civil investigative demand refuses to cooperate. In addition, the subsection provides that a person who has received a civil investigative demand may seek to have it modified or set aside within twenty days after receiving the demand.

Subsection (f) grants jurisdiction to the United States district courts to hear and determine any matter arising under the provisions of this section.

13 Under section 111, the term "Attorney General" includes any officer of the Department of Justice authorized to act for or on behalf of the Attorney General.