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United States Department of Justice

ASSISTANT ATTORNEY GENERAL

CRIMINAL DIVISION
WASHINGTON, D.C. 20530

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.

Sincerely,

Pliling fyran

Philip B. Heymann
Assistant Attorney General

Criminal Division

Enclosure

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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

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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". Final Report,
$702 (2).

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. I am unaware of any basis for a contention that the present entrapment doctrine 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. This may be done, of course, by merely leaving the matter to existing case law, as in S.1437. If, however, the Subcommittee is desirous of codifying the exis-ing 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, it appears to me, accurately restates the present law on entrapment, as follows:

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.

al ROGER A. PAULEY, Director office of Legislatiøn Criminal Division

90-231 O

82 -- 42

As Iron GONCHAL

Cm Dision

Department of Justice

Washington 20530

August 16, 1978

The Honorable James R. Mann
Chairman, Subcommittee on Criminal

Justice, Committee on the Judiciary
House of Representatives
Washington, D.C. 20515

Dear Mr. Chairman:

Enclosed pursuant to your oral request to representatives of the Criminal Division is a Department of Justice memorandum analyzing the relationship between 18 U.S.C. 2385, the Smith Act, and 18 U.S.C. 2383 and 2384, with particular attention to the question whether there would be a loss of prosecutive ability if the former statute were repealed.

Your Subcommittee's staff has also asked to be advised whether in the view of the Department of Justice it would be appropriate to repeal 18 U.S.C. 2386, a complex registration statute applicable primarily to organizations an aim of which is the forcible overthrow of the government of the United States or a State or political subdivision thereof. To the best of our knowledge there has never been a successful prosecution under this law. Moreover, the statute has, in effect, been nullified by judicial rulings on similar legislation, which indicate that the provisions of 18 U.S.c. 2386 are in conflict with the Fifth Amendment privilege against compulsory self-incrimination. See, e.g., Albertson v. SACB, 382 U.S. 70 (1965); Communist Party v. United States, 384 F.2d 957 (D.C. Cir, 1967). Accordingly, in our judgment, it would be appropriate to repeal 18 U.S.c. 2386 as unenforceable.

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Comparison of 18 U.S.c. S 2383 (Rebellion or Insurrection) and s 2384 (Seditious Conspiracy) with 5 2385. (the Smith Act)

This memorandum addresses the question of whether 18 U.S.C. S 2383, inciting or engaging in rebellion or insurrection, and 18 U.S.C. S 2384, seditious conspiracy, when taken together substantially enable the government to reach the same kinds of activity as covered by 18 U.S.c. S 2385, the Smith Act, so that if the Smith Act were abolished and sections 2383 and 2384 retained, there would be no impairment of the government's ability to prosecute activity aimed at the forcible overthrow of the government.

Discussion

Generally, it can be said that all three statutes are concerned with averting the same kind of danger efforts to overthrow the government by force. C. 45 C.J.S., Insurrection and Rebellion s 2. But the wording of each statute is different and each would seem to be aimed at particular kinds of activity. The most obvious difference between the three is that section 2383 prohibits only a substantive offense; it has no conspiracy clause. Any conspiracy to incite or engage in a rebellion or insurrection would have to be prosecuted under the general conspiracy statute, 18 U.S.C. S 371. On the other hand, section 2384 is only a conspiracy statute, and has no provision for a substantive offense. The Smith Act, however, prohibits not only the substantive violation of the Act, but conspiracy to violate the Act as well.

The penalty provisions of s 2383 are much less severe than those of S 2384 and § 2385. Violations of S 2383 are punishable by 10 years imprisonment and/or $10,000, and conspiracy to violate that statute under section 371 is

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