his judgment, 99 percent of the Cosa Nostra figures have been convicted? I am sorry. I didn't quite understand that.

Mr. BELLOWS. My impression is that, in my city, I don't know of anybody with the exception of Mr. Accardo, who was found not guilty on a charge that I think was unwise to bring. It involved the expenditure of the use of the car. It involved $3,000. But with the exception of that, it seems like everyone who has been described as a "mobster" or "racketeer" or "organization criminal" has been convicted.

Mr. POFF. You see, Mr. Bellows, we need to determine first of all if there is such a thing as organized crime. And I believe you can see that there is, and if so, its dimensions and nature. Having resolved those questions, we have to ask ourselves whether the present body of the law is equal to the challenge that is posed.

In the Nation at large, would you think that most of the Cosa Nostra figures have been charged and/or convicted under the laws that we have today?

Mr. BELLOWS. I don't know the answer to that.

Mr. POFF. It is an inexact science, of course. But the information supplied to the Senate committee, for whatever it may be worth, was that in the Nation 68 percent of those who were charged were convicted.

What is perhaps more significant, in a period of about 10 years, according to this information-that is, a period between 1960 and March 1969-only about 612 percent of Cosa Nostra members were even indicted. Fewer than 52 percent were actually tried. And only about 31% percent were convicted of any Federal crime in that entire 10-year period.

I simply suggest that this is a most legitimate predicate for the consideration by this committee of new tools of law enforcement against this specific challenge, which I suggest is peculiarly within the jurisdiction of the Federal Government.

Would not the witness agree?

Mr. BELLOWS. Yes, I agree with you.

Again, I think we have new tools at this time to do a job of convicting those who violate the law. But if there are any additional tools that can be conceived, I am for it. It is just that I have certain objections to this proposed bill. If they can be remedied and if they can be useful, I am for it.

Mr. POFF. With reference to the action of the ABA-and, hopefully, to eliminate the significance of what action was taken last weekend-I believe it is important to retrace the history of ABA action with respect to the constituent parts of S. 30.

In years past, isn't it true that the ABA, acting through its house of delegates, approved transaction immunity in witness-immunity legislation?

Mr. BELLOWS. Yes, that is true.

Mr. POFF. That was some time ago. Do you recall whether you were a member of the section at that time?

Mr. BELLOWS. I am not sure.

Mr. POFF. I understand, however, that today you favor transaction immunity and you feel that it is useful to consolidate, to some 50, witness-immunity statutes we have on the Federal books today.

Further, pursuing this line of thought, the house of delegates, I believe and I would not want to fix the date-proposed legislation on at least one occasion to abolish the two-witness and the directevidence rules in Federal perjury prosecutions. Isn't that correct? Mr. BELLOWS. I think I have been told that. I am not sure I remember it.

Mr. Poff. But, as I understand your testimony, you are opposed to that.

Mr. BELLOWS. I am opposed, yes, I am.

Mr. PoFF. It is within the last several months, I think, that the American Bar Association has recommended Federal jurisdiction over gambling conducted in violation of State laws in the course of a business involving at least five participants and a large daily gross intake.

Is the witness aware of that position?

Mr. BELLOWS. Yes, I am.

Mr. POFF. Did the witness participate in that decision?

Mr. BELLOWs. No.

Mr. POFF. If you had participated, what would have been your position?

Mr. BELLOWS. I am a little concerned about Federal jurisdiction if five men gamble in their home. Is it a business? I wonder whether or not there is Federal jurisdiction. That is my only problem.

I just want the committee to know I am against gambling, syndicated gambling, vice of all kinds. But I am concerned about Federal jurisdiction and the constitutionality of certain provisions.

Mr. POFF. I might take exception to your characterization of gambling as a vice. It is looked upon in somewhat a different light.

(At this point Mr. Rodino assumed the chair.)

Mr. PoFF. Still, with reference to ABA action, I think the house of delegates has approved the substance of the "corrupt-organizations" title, title IX of the bill. And, as I understand it, the witness feels that there is some utility in such an innovative approach.

Mr. BELLOWS. Yes, there is. I know what the thrust is. They may not have stated it, perhaps, the way it could have been done.

It should have stated directly what they really wanted to do. It is to keep the racketeer out of the legitimate businesses. Maybe this is the only way. But I think somewhere it is hidden. I think a better job of draftsmanship can be done here.

Mr. POFF. Then, finally, in this line of interrogation, Mr. Chairman, the ABA house of delegates has approved standards relating to sentencing alternatives and procedures, and appellate review of sentences. I don't want to imply that what the ABA has recommended is equivalent to title X, but it is a similar thrust, as I recall.

Would you agree?

Mr. BELLOWS. Do you mean on appeal of sentences?

Mr. POFF. No, on the concept of extending the sentence, a concept originally endorsed by the President's Crime Commission, and that of appellate review of sentences.

Mr. BELLOWS. Yes, but there are more safeguards under the standards than there are here.

Mr. POFF. I am not quite certain that in your oral testimony you dealt precisely and definitively with this phase of title II. But, to quote

from your formal statement concerning title II, you take exception "because it does not grant the full immunity that must be given in order to deprive a person of his privilege against self-incrimination."

This committee has already acted upon witness-immunity legislation similar to that found in title II, and the bill is now pending before the Rules Committee. Hopefully, it soon will be scheduled for floor action.

But with reference to your points, do you mean to say that in your judgment the use-immunity concept does not fully displace the right guaranteed in the Fifth Amendment?

Mr. BELLOWS. There is a difference between the use and the transactional, because if immunity is given with the transactional, that is the end of it. The man can't be tried. But where it merely provides against the use of the statement, than from a so-called independent source, the man could be tried for that offense.

My point is that a man isn't likely to want to give a statement, to divulge information where he might think that they will take his statement, and they will block him in, and then from an independent source they will find evidence and then try him on that.

So he will say, "I am between the devil and the deep blue sea. I won't make any statement."

Mr. POFF. Your objection is not constitutional but operational?
Mr. BELLOWS. I think maybe it is both, but it is operational, any-

way.

Mr. POFF.Do you think that the Fifth Amendment requires the Federal statute to guarantee transactional immunity as distinguished from use immunity?

Mr. BELLOWs. I don't think so. I think that the Counselman case took care of that situation, if I am not mistaken.

Mr. POFF. I am afraid you misunderstood my question, because your response would indicate that you do think so. You do think that, if you refer to and rely upon Counselman, that the Constitution requires transaction immunity rather than use immunity?

Mr. BELLOWS. I think the Constitution requires transactional immunity.

Mr. POFF. Is the gentleman familiar with the recent Supreme Court decision in the case of Murphy v. Waterfront Commission?

Mr. BELLOWs. Yes.

Mr. POFF. May I read excerpts from the opinions in that case for the purpose of asking the next question?

Beginning at page 79 of the majority opinion found in 378 U.S.:

We hold the Constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under Federal law unless the compelled testimony and its fruits cannot be used in any manner by Federal officials in connection with the criminal prosecution against him.

Quoting again from a footnote to the majority opinion written by Mr. Justice Goldberg:

The Federal authorities have the burden of showing that their evidence is not tainted by establishing an independent legitimate source for the disputed evidence.

One sentence lifted from a concurring opinion by Mr. Justice White:

The immunity must be as broad as possible but not normally as broad as the privilege against self-incrimination.

There are other cases making similar announcements by the Supreme Court. In addition, there are a number of quite recent decisions of courts of last resort of several States which are to the same effect: namely, that use immunity does satisfy the Fifth Amendment.

Would the witness care to comment?

Mr. BELLOWS. Only this. I am not ready to argue the cases that you cited, except to say that in the Murphy case the Court wasn't faced with the problem of absolute immunity, which was the question in the Counselman case. But it was rather the problem of Federal and State relationship.

The Court in the Murphy case stated that no explicit grant of Federal immunity was necessary.

I am not ready to go beyond that statement to discuss that phase of it.

Mr. PoFF. I don't mean to ask an unfair question. I realize that it is a little unfair, even though not intended, to quote from cases which the witness does not have readily available.

Mr. BELLOWS. It is a good question, but I am not ready to say any more than what I have said.

Mr. POLK. Will the gentleman yield?

Mr. POFF. I vield.

Mr. POLK. Mr. Bellows, let me simply try to clarify your last response. I don't want to go beyond your statement.

But would your response that the Fifth Amendment privilege means something less for the States than it does for the Federal Government

Mr. BELLOWs. I don't think so.

Mr. POLK. Then I did not understand your response to Mr. Poff. I thought it was that in the Counselman case we had a simple question of what the Fifth Amendment meant, but in the Murphy case we had a problem with the dual-sovereignty question because a State government was involved and the Federal Government was involved.

I took your response to mean that because we had the two sovereignties involved the standard would be something less. I took it you meant that because a State government was involved, the Fifth Amendment applied less stringently than it did in the purely Federal context of the Counselman case.

Mr. BELLOWS. I am not really ready to discuss the difference there. Mr. POLK. You were not intending to make such a point?

Mr. BELLOWS. I just tried to bring out that there was a different point involved in the Murphy case.

Mr. POLK. I was wondering if the distinction you were making was relevant.

Mr. BELLOWS. I am not in a position to discuss that.

Mr. POFF. If I may respect fully suggest that while, of course, there is a distinction in that the Counselman case involved a Federal witness-immunity statute and the Murphy case involved a State statute, the court was dealing in both with the same issue, namely: whether merely use immunity may displace the Fifth Amendment privilege or whether the Fifth Amendment requires transactional immunity to displace the privilege.

So I suggest that the factual differences have no consequences in the meaning of the court's decision in Murphy.

If I may proceed to another point, in your formal statement, on page 6, you say:

"The Federal courts should retain the power to release an appealing contemnor on bail pending appeal."

Of course, title III does not strike the power to release on appeal. It does recognize the realities of what has gone before and what is likely to occur in the future. But it does, I submit, permit release on appeal, if there is a substantial possibility of reversal. Would the witness care to comment?

Mr. BELLOWS. That is a departure from your present rule. It changes the burden to show that the case is going to be reversed. Mr. POFF. The witness has reference, I am sure, to rule 46 (a) (2). I call the witness' attention to the fact that this rule has to do with appeals in criminal cases.

What is involved in this title is an appeal from a civil contempt. Don't you think it is possible to make distinctions between the burdens in those two cases?

Mr. BELLOWS. While it is civil contempt, the man is in jail and it becomes punitive if he is in there for as long a time as he can be there,

36 months.

I see no good reason why an appellate court or the trial court or both couldn't release the contemnor pending appeal. There is no harm. He isn't going to run. It isn't going to make him change his position.

Mr. POFF. Then if released pending appeal, if the appellate court sustained the action of the trial court, would he be returned to custody? Mr. BeLLows. Yes, he would.

Mr. POFF. Yes, he would, because the function of custody in the civil contempt process is coercive, not punitive, isn't this so?

Mr. BELLOWS. It is coercive, yes.

Mr. POFF. The case to which rule 46 applies has to do with confinement which is punitive.

If it is to be effective and coercive, then I suggest that it is altogether proper to consider a different burden when considering eligibility for bail.

Mr. BELLOWS. I can see two ways of looking at it. It is just that my own feeling is that there may be good reason for a man to be a recalcitrant witness. There may be times when a man can. There ought to be a chance to an appeal. But there can be, I am sure, two points of view on this.

Mr. POFF. Yes.

With reference to the perjury title, you inquired rhetorically in your prepared statement as to what possible conduct or fact situation is meant to be made a crime that would encompass testimony before a U.S. court or grand jury and still be conducted outside of the United States.

What is your concern in that area?

Mr. BELLOWS. It is just a question of draftsmanship and the reason why it refers to conduct outside the United States.

Mr. POFF. Has the witness tried perjury cases? I am sure he has. Mr. BELLOWs. I have.

Mr. POFF. You are familiar with the Federal law on the same, then?

Mr. BELLOWs. I believe so.