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. Sincerely, Ня дведжаны PHILIP B. HEYMANN Assistant Attorney General 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. Sincerely, Enclosure Звужат Philip B. Heymann 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 QU.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 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 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, 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. Pau ROGER A. PAULEY, Director Criminal Division 90-231 082 42 ASPSTANT ATTORNEY GENERAL CRIMINAL DIVISION Bepartment of Justice 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. |