United States Department of Justice ASSISTANT ATTORNEY GENERAL CRIMINAL DIVISION MAY 14,1979 Honorable Robert F. Drinan House of Representatives 2542 Rayburn House Office Building Washington, D.C. 20515 Dear Congressman Drinan: I understand that, at a recent session of the Subcommittee on Criminal Justice during which the extortion offense (section 1722) of S.1437 was considered, it was tentatively determined to eliminate subsection (a) (2) codifying the current Hobbs Act offense of obtaining property "under color of official right". The Subcommittee's decision, I further am advised, was the result of a brief discussion and a representation by counsel presenting the subject matter to the Subcommittee that the offense was redundant and was subsumed under section 1723 (a) (6) (Blackmail) of the Code. I strongly urge the Subcommittee to reconsider its decision and to restore the "under color of official right" offense to the Code. As the Senate Report observes, and as I personally can attest, "this offense has proven in recent years to be of significant utility in ferreting out and punishing official corruption". Report, p. 629. Although the contours of the offense are not obvious from the phrase "under color of official right", a large body of clarifying case law has arisen around the provision, and it is currently a well understood, as well as one of the most effective, prosecutive tools in the federal anti-corruption arsenal. The representation that this offense is covered by section 1723 (a) (6) (Blackmail) is inaccurate because, among other things, that offense (which is designed to carry forward other federal statutes, i.e., 18 U.S.C. 872 and 26 U.S.C. 7214 (a)), is limited by the concept of "official action", a defined term referring to action of a discretionary nature. Thus, the blackmail offense would not reach a payment to a public official in which the underlying threat was to take or withhold some ministerial action, such as failing to issue a permit for which the legal requirements had been met. More fundamentally, the blackmail offense does not come with the same judicial gloss associated with Log 5/14 the "under color of official right" branch of the Hobbs Act, which removes the necessity of proving in each case of improper receipt of property by a public official that there was a wrongful use of actual or threatened force, violence, or fear. See, e.g., United States v. Kenny, 462 F.2d 1205, 1229 (3rd Cir. 1972), cert. denied, 409 U.S. 914 (1973); United States v. Meyers, 529 F.2d 1033 (7th Cir. 1976). Since your effort is in part to modernize the federal criminal laws, it is easy to understand the temptation to rid the law of an offense, such as the "under color of official right" statute, which harks back to early common law and which is drafted in a manner different from most other provisions in the Code which reflect a more contemporary style. Nevertheless, in this case the advantages of retaining the current form of words, and certainly the offense itself, seem to me to far outweigh the arguments for deletion. It may be of some interest and significance in your consideration of this issue that in 1976 the Senate Subcommittee on Criminal Laws at one point, for apparently similar reasons as those which prompted your Subcommittee's action, opted to delete the "under color of official right offense". My then predecessor, the present Governor of Pennsylvania, wrote to Senator McClellan stressing the "importance of the 'under color of official right' offense to this Department's current efforts to root out corruption" and urging its restoration. See Letter from Assistant Attorney General Thornburgh to Senator McClellan, reprinted in volume XIII of the Hearings on S.1437 before the Senate Subcommittee on Criminal Laws, at pages 9240-9241. Shortly thereafter, the Senate Subcommittee reinstated the offense, and it has remained in all subsequent versions of the Senate bill. I hope that, on further consideration, your Subcommittee will arrive at a like conclusion. United States Department of Justice ASSISTANT ATTORNEY GENERAL CRIMINAL DIVISION March 13, 1979 The Honorable Robert F. Drinan United States House of Representatives Washington, D.C. Dear Congressman Drinan: The enclosed memo from Roger Pauley largely reflects my views on the entrapment issue, but I would like to add a personal note. Years of analyzing the matter convince me that there is at least as much to be said conceptually and practically for the prevailing federal entrapment rule as for its alternative. But even if there were not, the fact that our courts, investigators, prosecutors, and defense attorneys have learned how to work with it towards just and fair results leads me to strongly urge its retention. I think a change now would be a needless source of uncertainty in a difficult area that has "worked itself clean" in the criminal law. I appreciate the opportunity to express my views on the matter. Enclosure Sincerely Plicking Hargmann Philip B. Heymann Criminal Division The Subcommittee on Criminal Justice recently determined, on a tentative basis, to adopt the formulation of the entrapment defense as set forth in section 702 of the Brown Commission's Final Report. As you know, the Supreme Court has consistently rejected, over a period of nearly fifty years, the view of entrapment embodied in the Final Report, and I am concerned because enactment of this minority view could pose a serious threat to the federal government's ability successfully to investigate and prosecute a variety of clandestine criminal conduct, including particularly narcotics and organized crime offenses. This is so because the minority formulation does not consider the predisposition of the defendant to commit the crime to be relevant and instead focusses solely upon the nature of the inducements offered by the law enforcement agent. As the Supreme Court has observed, however, with respect to this view, it does not seem "particularly desirable for the law to grant complete immunity from prosecution to one who himself planned to commit a crime, and then committed it, simply because government undercover agents subjected him to inducements which might have seduced a hypothetical individual who was not so predisposed." United States v. Russell, 411 U.S. 423, 434 (1973). The gathering of evidence against known or suspected traffickers in narcotics or against the well insulated leaders of organized criminal enterprises frequently requires government agents, operating undercover, to gain the confidence of these offenders, through their seemingly willing participation or assistance in furthering a course of criminal conduct. Under the existing formulation of the entrapment defense, such investigative activities do not constitute entrapment and thus do not allow a defendant to escape liability for his crimes, so long as the government can show that the defendant was "predisposed" to commit the offense and was therefore not induced to do so by the encouragement or facilities furnished by its agent. Under the formulation contained in the Brown Buy U.S. Savings Bonds Regularly on the Payroll Savings Plan U.S. Government Printing Office 1977-241-530/3474 OPTIONAL FORM NO. 10 (REV. 7-76) GSA FPMR (41 CFR) 101-11.6 5010-112 Commission's Final Report, however, such vital investigative techniques might well be deemed unlawful and result in the dismissal of the indictment or in the defendant's acquittal, since they are techniques which are specifically designed to take account of a particular defendant's predisposition to commit the crime, and might not withstand scrutiny gauged by the standard of whether they would be reasonable if utilized with respect to "normally law-abiding persons". $702 (2). Final Report, Moreover, a change of the magnitude proposed, from longestablished federal decisional law to the minority view expressed in the Final Report, should bear the burden of persuasion as to the need for such a dramatic change. basis for a contention that the present entrapment doctrine I am unaware of any has countenanced or fostered the development of federal law enforcement techniques that pose a threat to individual liberties. Moreover, such a change to the Brown Commission formulation would have an extremely unsettling impact on the law and on federal investigative agencies such as the FBI and DEA, since the Brown Commission test, which depends on judges' notions of what conduct would be likely to induce "normally law-abiding persons" to commit crimes, is necessarily subjective, and it would take years, if not decades, for the appellate courts to create, through case by case adjudications, a clear understanding of the line between permissible and forbidden conduct. I urge, therefore, that you recommend that the Subcommittee reconsider its prior decision and adopt the prevailing federal doctrine governing the entrapment issue. course, by merely leaving the matter to existing case law, as This may be done, of in S.1437. If, however, the Subcommittee is desirous of codifying the existing defense, it may wish to have recourse to the first sentence of section 531 of H. R. 6046 of the 93rd Congress (identical to S. 1400), which, restates the present law on entrapment, as follows: it appears to me, accurately It is a defense to a prosecution under any federal statute that the defendant was not predisposed to commit the offense charged and did so solely as a result of active inducement by a law enforcement officer or person acting as an agent of a law enforcement agency. ROGER A. PAULEY, Director Office of Legislation Criminal Division 90-231 082 42 |