3. Provisions of S. 1, as Reported

Section 3115.

No change in the substance of current law is contemplated or intended by section 3114. The word "subpoenaed" is substituted for the word "called" in section 6005 as was done in sections 3112 and 3113.

As in both sections 3112 and 3113, and in the current general immunity provisions," it is intended that an immunity order can be issued prospectively, that is, before the witness has been called to appear and before he has invoked his privilege against self-incrimination. However, the order will not be effective until the witness has invoked his privilege on Fifth Amendment grounds and has been informed of the order by the officer presiding over the proceeding.

SECTION 3115. DEFINITIONS FOR SUBCHAPTER B

1. In General

Section 3115(a) defines a list of the Federal agencies which are intended to be encompassed by the term "agency of the United States" as used in sections 3111 (a) (2) and 3113. Substantially the list encompasses the executive and military departments of the government, as defined in 5 U.S.C. 101-102, and the independent regulatory agencies. Section 3115 (b) provides that "court of the United States" includes the Superior Court and the Court of Appeals of the District of Columbia.

2. Present Federal Law

18 U.S.C. 6001 contains a definition of terms used in the subsequent sections of the general immunity statute. In addition to defining "agency of the United States" and "court of the United States," the section also defines "other information," and "proceeding before an agency of the United States."

3. Provisions of S. 1, as Reported

Section 3115, as supplemented by the general definitions section of the Code, does not make any substantive changes in the current statute. Section 3115 (a) deletes the Subversive Activities Control Board, which has been abolished, from the list of agencies and adds the National Credit Union Administration, created by Public Law 91-468 and authorized by that Act to afford witnesses called before it immunity from prosecution. That Act does not require the National Credit Union Administration to seek approval from the Attorney General before granting immunity. The authority of that Administration to grant use immunity is conformed to that of other agencies, including requiring Department of Justice approval, by its inclusion in the definition of an "agency of the United States." and by the repeal of the current immunity provision of the Act creating the National Credit Union Administration in section 350 (b) of this bill.s

618 U.S.C. 6001-6005.

7 Section 111.

8 That Act provided that the National Credit Union Administration could issue "transactional" immunity instead of "use" immunity, The type of immunity that an agency can grant has been limited to "use" immunity under this subchapter to avoid an anomalous situation.

"Court of the United States" is generally defined in section 111 of the Code, but does not include the Superior Court or the Court of Appeals of the District of Columbia, both of which are included in the definition in 18 U.S.C. 6001 (4). The definition in section 3115 (b) fills the omission in order to provide for immunity in court or grand jury proceedings before those courts. As under current law, an order compelling the testimony of witnesses or the production of information in proceedings before those courts, as in all other courts, may issue only from the District Court for the judicial district in which the proceeding is to take place.

The definition of "other information" is not required in view of the absence of that term in section 3111 et seq., which substitutes therefor the phrase, "record, document, or other object." That phrase is intended to be synonymous with the term "other information" as defined in 18 U.S.C. 6001 (2).

"Proceeding before an agency of the United States" is defined in 18 U.S.C. 6001(3). Since the term "official proceeding" is defined in section 111 of the Code, further definition in section 3115 is not required. The absence of authority to issue subpoenas as an element of the definition of "official proceeding" is accounted for by substituting the word, "subpoenaed" instead of "called" in sections 3112 through 3114, thus conforming the provisions of this subchapter to the intent of 18 U.S.C. sections 6003 through 6005.

SUBCHAPTER C.-PROTECTION OF WITNESSES

(Sections 3121-3123)

This subchapter codifies the provisions on protection of witnesses enacted as Title V of the Organized Crime Control Act of 1970. That title was not enacted as part of title 18 and presently appears in headnote fashion in chapter 223 of title 18 just preceding 18 U.S.C. 3481. The Committee has included this subchapter to bring the provisions of Title V of the 1970 Act into the title 18 chapter dealing with ancillary investigative authority where it logically belongs. The subchapter continues the basic theory behind Title V of the Organized Crime Control Act of 1970-insuring that witnesses in organized crime cases are produced alive and unintimidated before grand juries and at trial. The Committee endorses the statement on Title V that appeared in the Senate Report on S. 30,1 the Senate bill which became the Organized Crime Control Act of 1970, as follows:2

Each step in the evidence gathering process... moves toward the production of live testimony, testimony that is necessary to bring criminal sanctions into play in the fight

918 U.S.C. 6001 (2).

1 P.L. 91-452, 84 Stat. 933.

2 S. Rept. 91-617, 91st Cong., 1st Sess. (1969) pp. 59-60.

against organized crime. Criminal sanctions, in short, do not enforce themselves. Obtaining testimony, however, is only part of the problem. The Attorney General testified in 1965 that even after cases had been developed, it was necessary to forego prosecution hundreds of times because key witnesses would not testify for fear of being murdered. Tampering with witnesses is one of organized crime's most effective counter weapons. Indeed, the Attorney General indicated that such fear was not unjustified; he testified that the Department, in its organized crime program, lost more than 25 informants between 1961 and 1965. It was in this context, therefore, that the President's Crime Commission tragically concluded:

No jurisdiction has made adequate provision for protecting witnesses in organized crime cases from reprisal. In a few instances where guards are provided, resources require their withdrawal shortly after the particular trial terminates. On a case-to-case basis, governments have helped witnesses find jobs in other sections of the country or have even helped them to emigrate. The difficulty of obtaining witnesses because of the fear of reprisal could be countered somewhat if governments had established systems for protecting cooperative witnesses.

The Federal Government should establish residential facilities for the protection of witnesses desiring such assistance during the pendency of organized crime litigation.

After trial, the witness should be permitted to remain at the facility so long as he needs to be protected.

The Committee has concluded that four years of experience with witness protection under the 1970 act has amply proven both the necessity and utility of such provisions. Indeed, the ability to offer protection to witnesses is virtually an absolute requirement to an effective campaign against organized crime.

SECTION 3121. FACILITIES FOR WITNESS PROTECTION

Section 3121 of S. 1, as reported, continues the current law authority of the Attorney General to provide protection and security for witnesses and their immediate families in proceedings brought against persons involved in organized crime. Several changes have been made. First, under current law the protection may be offered where the proceedings have been instituted against a person alleged to have participated in an "organized crime activity." The Committee feels that the term "organized crime activity" is too broad and fails to give sufficient guidance to the Attorney General in the implementation of this statute. Accordingly, the Committee has substituted a more precise term. Under section 3121 witness protection may be provided in official proceedings "instituted against a person alleged to have engaged in racketeering activity or offenses similar in nature, or involving offenses the investigation or prosecution of which is likely to cause the commission of an offense described in section 1324 (Retaliating

Section 3122.

Section 3123.

against a Witness or an Informant)." The term "racketeering activity" is defined in section 1804(f) and is made applicable to this subchapter by section 3123. It contains a specific listing of the most serious State and Federal offenses including those that most often involve organized crime offenders. The use of the term "offenses similar in nature" is included to make certain that an offense similar to those enumerated in section 1805 (f), but not included therein, can be the basis of Federal witness protection where justified. The reference to section 1324 insures completeness of coverage. Clearly, the offense set forth in that section is precisely the type of conduct against which this subchapter seeks to afford protection for witnesses and potential witnesses and their immediate families.

Second, the Committee has substituted the term "official proceeding," which is defined in section 111, for the current law term “legal proceedings." This change is intended to make the generally defined Code term applicable to this statute and is in no way intended to limit the reach of the current language. In particular, the Committee intends that the statute remain applicable in civil and administrative proceedings, where warranted, as well as in criminal proceedings. The term "official proceeding" is intended to achieve this result.

SECTION 3122. REIMBURSEMENT FOR WITNESS PROTECTION EXPENSES

This section continues the existing authority of the Attorney General to make Federal witness protection facilities available to State or local governments conditioned, in his discretion, upon reimbursement of the costs involved.

SECTION 3123. DEFINITIONS FOR SUBCHAPTER C

There are two definitions set forth in subchapter C. One, "racketeering activity," has already been discussed. The other, "government," is defined to make it clear that the term includes both a State and local government as well as the Federal government. This definition conforms to that contained in current law.

SUBCHAPTER D.-PAYMENT OF REWARDS

Present Federal Law

(Section 3131)

Current title 18 provides for the offering and paying of rewards for the apprehension of offenders under two separate statutes. 18 U.S.C. 3059 is a general statute permitting the Attorney General to offer a $25,000 reward for the capture of a person charged with any Federal or State felony and a like amount for information leading to such person's arrest. 18 U.S.C. 1751, the statute dealing with Presidential assassination, kidnapping, and assault, has in subsection (g) a provi

sion authorizing the Attorney General to pay an amount up to $100,000 for information and services concerning a violation of that section.

SECTION 3131. REWARDS FOR APPREHENDING OFFENDERS

Although rewards for assistance in apprehending offenders are apparently rarely used, the Committee has concluded that they can serve a useful function in aiding law enforcement efforts. This can be especially true in highly publicized cases where an easily identifiable person is a fugitive from justice.

Section 3131 is an amalgam of the provisions of 18 U.S.C. 1751 and 3059. The Committee decided that it was anomalous to have two separate reward sections in the Code one dealing with all felonies and the second concerning one specific felony. The Committee has chosen the higher figure of $100,000, now contained in the specific statute, 18 U.S.C. 1751, as the applicable maximum for rewards in all cases. This higher sum was chosen in recognition of the personal danger that must occasionally be risked when a citizen comes forward to identify a wanted criminal. The sum of $100,000 is, of course, a maximum and thus will enable the Attorney General to choose an appropriate amount up to the maximum depending on the nature of the offense and the offender.

As is the case under 18 U.S.C. 3059, the Attorney General is authorized to offer a reward if the offense arises under State as well as Federal law. Although Federal rewards in State cases will be rare occurrences, the Committee feels that the authority to offer such rewards should exist for the infrequent case where one is warranted, and as an expression of a major goal of all Federal criminal law-the affording of assistance to State officials in law enforcement matters. The section sets out the basis for the offering of the reward with more specificity than does current law. For instance, 18 U.S.C. 1751 refers to rewards for information and services concerning a violation of the section and 18 U.S.C. 3059 permits the offering of rewards for the capture of a wanted person or for information leading to such person's arrest. Section 3131 combines both these approaches by permitting rewards for the capture of an offender as well as for information leading to his arrest and conviction. The latter phrase would permit a reward to be paid to a citizen who came forward with information after the initial arrest of the offender which could be used at the subsequent trial. This latter coverage, while arguably present under current 18 U.S.C. 1751, is clearly not possible under 18 U.S.C. 3059.

The Committee intends that the phrase "the Attorney General may offer and pay" be interpreted to permit the payment in appropriate cases of a reward after a citizen has acted to assist law enforcement even though no offer was made in advance.

The provision of 18 U.S.C. 1751 that bars payment of a reward to a public servant who gave information or participated in the apprehension of a wanted person while engaging in the performance of his official duties has been included in section 3131. The purpose

1 The Committee has been informed that the last time a reward was authorized under 18 U.S.C. 3059 was in 1961 when Attorney General Kennedy authorized a $10,000 reward "for information leading to the arrest or conviction of anyone for violating any federal statute in any actual, attempted, or planned hijacking of aircraft."