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The original documents are located in Box 14, folder "Federal Criminal Code" of the
Philip Buchen Files at the Gerald R. Ford Presidential Library.
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18 U.S.C. 8 1001. Statements or entries generally.
Whoever, in any matter within the jurisdiction of any
department or agency of the United States knowingly and willfully
falsifies, conceals or covers up by any trick, scheme, or device
a material fact, or makes any false, fictitious or fraudulent
statements or representations, or makes or uses any false
writing or document knowing the same to contain any false,
fictitious or fraudulent statement or entry, shall be fined not
more than $10,000 or imprisoned not more than five years, or
both. (June 25, 1948, ch. 645, 62 Stat. 749.)
YURDO is LIBRARY QERVLD
THE WHITE HOUSE
WASHINGTON
November 26, 1974
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
KEN LAZARUS
SUBJECT:
Federal Criminal Code Project
This is to outline the background and status of efforts to codify our
Federal criminal laws and to recommend certain White House
initiatives in support of the project.
The Deficiencies
of Current Law
Although there have been several consolidations and technical
revisions of Federal criminal law (title 18, United States Code) over
the years (1877, 1909 and 1948), the United States, unlike many of
the States and most of the other countries of the world, has never
enacted a true "criminal code. 11 Laws have been drafted to deal
with diverse problems on an ad hoc basis. It is not surprising then
that our body of criminal law on the Federal level is a haphazard
hodgepodge of conflicting, contradictory and imprecise laws piled
one upon the other with little relevance to each other or to the state
of criminal law as a whole.
The failure to revise and reform our criminal laws has posed a
number of acute problems. The first is uncertainty in the law. In
some areas, the courts of appeals are divided and enforce a different
"federal" law depending on the circuit. A prime example in this
regard is the insanity defense. It is possible to identify at least five
different formulas for insanity used in the eleven circuits. Uncer-
tainty results also in different interpretations of the same word
depending on the statute in which it is used. For example, the word
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"willful" has some 78 interpretations. A willful act can be one that
is done "voluntarily" in some statutes, an act that is done "with a
bad purpose" in others and in one case, an act that is done with
"a cruel and malignant heart" --whatever that may mean.
Inconsistencies, loopholes and unnecessary technicalities also result
from the present hodgepodge of laws. We now have about 80 Federal
statutes dealing with theft -- the definition of the offense depends on
the jurisdictional basis, whether it is theft of government property,
theft of the mails or theft from interstate commerce.
Other problems arise due to the fact that our laws define an offense
in terms of the jurisdiction. For example, under some interpretations,
a person does not commit theft of property moving interstate under
present federal statutes unless he knew it was traveling interstate.
Even if a person stole property in interstate commerce, he could
avoid the Federal charge if he could show he didn't know it was moving
in interstate commerce. This is a classic example of the guilty going
free because of a technicality irrelevant to the offense. Never-used
statutes also clutter up our law, e.g., operating a pirate ship on
behalf of a "foreign prince"; detaining a United States carrier pigeon;
and seducing a female steamship passenger, all statutes still on the
books.
The sentencing scheme of our current laws is also erratic. Robbery
of a bank carries 20 years while robbery of a post office carries
10 years.
In short, the Federal penal law as a whole reflects neglect. Because
of its lack of clarity, consistency and comprehensiveness, it tends
to detract from our system of justice.
The History
of the Codification Effort
Efforts to codify Federal criminal law can be traced back to the
work of the American Law Institute which, in 1952, began the planning
and drafting of a "Model Penal Code. "
In 1962, the ALI published the "Proposed Official Draft of a Model
Penal Code. Immediately thereafter, modern criminal codes were
passed in Illinois (1962), Minnesota (1963), New Mexico (1963) and
Wisconsin (1965).
3
The next major step in the lineal progression toward a Federal
criminal code, was the development of the New York Revised Penal
Law in 1965.
The next key step was taken by the Congress itself in 1966. In that
year Public Law 89-801 was enacted, creating a "National Commission
on Reform of Federal Criminal Laws, " called, after its Chairman,
former Governor Edmund G. "Pat" Brown of California, the "Brown
Commission. 11 The Commission was charged by the Congress to:
Make a full and complete review and study of the statutory
and case law of the United States which constitutes the Fed-
eral system of criminal justice for the purpose of formu-
lating and recommending to the Congress legislation which
would improve the Federal system of criminal justice. It
shall be the further duty of the Commission to make recom-
mendations for revision and recodification of the criminal
laws of the United States, including the repeal of unneces-
sary or undesirable statutes and such changes in the penalty
structure as the Commission may feel will better serve the
ends of justice.
*
The Commission prepared its own draft recommendations, which
also made important improvements, but followed lineally from the
earlier works. The product of nearly three years of deliberation by
the Commission, the recommendations were submitted to the Congress
and the President on January 7, 1971, in the form of a Final Report.
The Report, some 364 pages in length, was tendered not as a final
product but, as the Commission noted in its letter of transmittal, as
a "work basis" to facilitate congressional choices.
On January 16, 1971, former President Nixon issued a statement
commending the Brown Commission for its labors and directing the
Department of Justice in a simultaneous memorandum to establish
a special team of attorneys within the Department to work closely
with appropriate congressional committees and their staffs through
the evaluation and recommendation process.
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On February 1, 1971, the Senate Subcommittee on Criminal Laws
and Procedures (McClellan - Chairman; Hruska - ranking) began
hearings and studies on the recommendations of the Commission.
Legislative Developments
A. Senate
During the 92nd Congress, the Criminal Laws Subcommittee
held extensive hearings on the subject of a Federal Criminal Code
which resulted in the introduction of S. 1 (by Senator McClellan)
upon the opening of the 93rd Congress in 1973. S. 1 thus was largely
the work of the Subcommittee staff.
In response to the President's directive to propose a thorough-
going revision of the Federal criminal code, the Attorney General
assembled a team of Department of Justice attorneys, most of whom
had extensive trial and appellate experience in Federal courts, into
a Criminal Code Revision Unit within the Department of Justice.
By early 1973, the Unit had drafted S. 1400 (by Senator Hruska),
as a bill to "reform, revise, and codify the substantive criminal
law of the United States
II
The Criminal Laws Subcommittee recently concluded hearings on
a Federal criminal code. The total hearing record which has been
compiled over the last four years totals over 8, 000 pages of testimony,
statements and exhibits in 14 volumes.
The Subcommittee staff and the Department of Justice have also
completed a compromise version bill (S. 1 as amended) and accompany-
ing committee report, hopefully embodying some worthwhile new
provisions and the best features of both S. 1 and S. 1400 as introduced,
as well as the Final Report of the Brown Commission. This bill
(approximately 800 pages in length -- the longest in history) and
committee report (approximately 2, 000 pages in three volumes) will
serve as the basis for anticipated Senate action early next year. The
S. 1 designation has been reserved for this purpose in the 94th
Congress.
B. House
The bill is within the jurisdiction of the Hungate Judiciary Sub-
committee on Criminal Justice which has only monitored the progress
FORD
of the project to date. Hearings are anticipated to open early in the
next session.
CERAED
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Format of the Proposed Code
S. 1, as amended, is divided into two titles. Title I consists of five
parts that interlock with each other.
Part 1 embodies the general provisions and principles of the Code.
Included in this part are chapters on jurisdiction, culpability,
complicity and defenses.
Part 2 consists of all the offenses defined in the Code. Each offense
is defined in such a way that the reader knows: (1) the elements of
the offense; (2) the requisite state of mind (culpability); (3) the
circumstances under which the Federal government can prosecute the
offender (jurisdiction); and (4) the sentence for violation of the
offense (grading).
In order to determine whether the circumstances warrant prosecution,
a reader must engage in the following analysis:
-- What are the elements of the offense?
- - What is the state of mind, i.e., mens rea, that the offender
must have with respect to each element? Following the
approach of the National Commission, S. 1, as amended,
does not contain the requisite state of mind in the definition
of the offense. Instead, the state of mind is governed by
the general principles of Chapter 3.
-- Does the accused have a defense to the prosecution? Chapter
5 of Part 1 (General Principles) embodies available defenses.
- - Does the Federal government have jurisdiction to prose-
cute? Each offense contains a jurisdictional subsection
stating the circumstances under which Federal jurisdiction
exists.
- What is the sentence for violating the offense? Each section
defining an offense contains a subsection stating the category
of sentence (classes of grading) that may be imposed.
Part 3 embodies all the sentencing provisions. It defines the classes
of grading and states what types of sanctions may be imposed, e.g.
probation, parole, imprisonment, fines, etc.
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Part 4 contains the procedural sections of existing Title 18 and all of
the Federal Rules of Criminal Procedure. It should be noted at this
point that the Rules that are incorporated in S. 1, as amended, are
those recently promulgated by the Supreme Court. These rules are
now scheduled to go into effect August 1, 1975, unless Congress
determines otherwise.
Part 5 contains provisions on ancillary private civil remedies, such
as civil actions against racketeering offenders.
Title II embodies the conforming amendments for those offenses
appearing outside Title 18.
Overview of the Proposed Code
Part I. Chapter 1. General Provisions.
This chapter contains general provisions such as the
principles of construction and general definitions.
Chapter 2. Jurisdiction.
Chapter 2 introduces the general treatment of Federal juris-
diction. The Committee Print continues the concept of the National
Commission's Final Report, S. 1 and S. 1400 that offenses should be
defined in terms of the underlying misconduct (e.g., kidnapping) and
that the basis for Federal jurisdiction should be specified separately
(e.g., transporting the victim across a state line). The basis for
Federal jurisdiction would not be an element of the offense as such
but would be proved to the court beyond a reasonable doubt.
Two aspects of Federal jurisdiction in the Commission's
Final Report generated controversy on the subject.
First, the Final Report consolidated circumstances giving
rise to Federal jurisdiction into twelve broad jurisdictional bases,
which were then applied by reference in the penal section. Although
these bases were loosely modeled after examples in present Federal
law, the consolidation generally resulted in substantial expansions of
Federal jurisdiction and less often in contraction of Federal juris-
diction without a rationale for doing SO. In order to avoid these
problems, the bill as amended describes expressly in each penal
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7
section the Federal jurisdiction applicable to the ∞ nduct. This
approach adopts a drafting technique which permits a precise
duplication, expansion or contraction of present law on an offense-
by-offense basis.
Second, the Commission's Report contained a jurisdictional
base under which Federal jurisdiction could be asserted over criminal
conduct simply because it occurred in the course of any other offense
over which Federal jurisdiction existed. This so-called "ancillary
jurisdiction" concept if applied generally to every offense would lead
to a large expansion in Federal jurisdiction. The concept is retained
in the Committee print but is limited extremely in its application by
listing in the jurisdictional part of appropriate penal sections those
offenses which may confer derivative Federal jurisdiction for the
particular offense. For example, reference to the jurisdictional
subsection for murder indicates that there is Federal jurisdiction
over all murders that occur during the commission of a Federal
kidnapping. This approach essentially meets the objections of those
critical of the Commission's Final Report.
Chapter 3. Culpable States of Mind.
This chapter defines the specific mental states (the "mens
rea" elements) that are used throughout the Code in defining an offense.
The current Title 18 uses 79 different terms to define the requisit e
mental state. This chapter reduces the number of terms used to
describe the state of mind to four: intentionally, knowingly, reck-
lessly or negligently. The simplification should permit far more
clarity and uniformity of interpretation.
Chapter 4. Complicity.
This chapter sets forth those circumstances under which
a person may be criminally liable for the acts of another. For
example, the accomplice liability section codifies the doctrine of
Pinkerton v. United States, making a co-conspirator guilty of each
specific offense committed in furtherance of the criminal conspiracy
and as a reasonably foreseeable consequence of the conspiracy.
One significant section in this chapter is the organizational
liability provision. It makes an organization (defined to include
unions and associations as well as corporations) liable for the acts
of its agent committed within his express, implied or apparent
authority.
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8
Chapter 5. Bars and Defenses to Prosecution.
For the first time in Federal law, general defenses to
prosecution are codified. Except for the defense of insanity, the
codified defenses reflect present law in the majority of jurisdictions.
The chapter includes such defenses as insanity, entrapment, intoxi-
cation, duress, exercise of public duty, self-defense and official
misstatement of law. Other than insanity, the defenses that have
drawn the most comment are entrapment, public duty, official
misstatement of law and use of deadly force.
1. Insanity Defense (Section 522). At present there is no
Federal statute defining the insanity defense. As a result, the
formulation of the defense has been left to the courts. Uncertainty
and a lack of uniformity have been the consequences. Where the type
of insanity test adopted by a court of appeals can be discerned, it
is possible to discover at least five different formulas used in the
11 circuits.
S. 1400 and S. 1, as originally introduced, adopted
different approaches. The S. 1400 revision, which the Committee
Print adopts, would permit insanity to serve as a defense to a
prosecution only if the insanity precludes a finding of the existence
of the required mens rea, the state of mind element. In other words,
a defendant could not be convicted if his mental disease or defect
negated the requisite state of mind. This proposal would hold all
responsible for their criminal acts if done with the requisite criminal
intent. Thus, the focus of initial inquiry in criminal trials would be
on such questions as "Did the defendant intend to hijack an aircraft?"
in case of air piracy, rather than "Could the defendant know right
from wrong; could he control his behavior Assuming the intent
to hijack the aircraft and the requisite conduct, the defendant would
be convicted and the question at the time of sentencing would be
whether to commit the defendant to prison, to a mental hospital,
or to some other program.
In contrast, the S. 1 approach focused on the question of
whether the defendant had such a mental disease or defect that he
lacked substantial capacity to appreciate the character of his conduct
or to control his conduct. This is the standard developed by the
American Law Institute.
tuno
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The real difference between the two approaches is that
under S. 1400 the defendant would be convicted and then sent either
to prison or a mental hospital. By contrast, under the S. 1 approach
he would be found not guilty by reason of insanity and, under civil
commitment proceedings, sent to a mental hospital.
2. Entrapment (Section 551). With respect to entrapment,
the print adopts the majority view of the Supreme Court on the defense.
If a defendant exhibits a predisposition to commit the offense, the
defense will not prevail. Where, however, the police encourage the
commission of crimes that would not otherwise be committed in order
to make an arrest and obtain a conviction, the defendant can success-
fully assert the defense.
3. Execution of Public Duty (Section 541). The defense of
"execution of public duty" incorporates in one section many Federal
laws which permit public servants to act in certain ways in the execu-
tion of their official duties. Under this provision, for example, it
would be a defense to a charge of theft that the defendant was a
marshal levying execution on a shipment of goods in interstate
commerce. Wiretapping under court order would also be excluded
from the prohibition against the interception of private communications.
4. Official Misstatement of Law (Section 552). The defense
of "official misstatement of law" is a common law defense that is
codified by the bill. Under this provision, if an official erroneously
informs a person that it is legal to engage in certain conduct, the
actor cannot be prosecuted for such conduct. Some witnesses criticized
this provision because it could authorize an official to immunize the
conduct of another official by telling the latter that he may legally
engage in certain conduct that is later deemed to be illegal. In order
to avoid such collusion, the section has been amended to require a
public announcement, either orally or in writing, that the law is being
officially interpreted so that certain conduct is not criminal in nature.
5. Protection of Persons or Property (Sections 542 and 543).
The basic standards for the use of deadly force are the following: (1)
the use of deadly force in self-protection or in protection of another is
justified only if necessary to avoid a risk of death or serious bodily
injury; (2) deadly force is not justified in defense of property; (3)
availability of the defense depends upon apparent necessity; (4) the
general test of necessity is what is reasonably required under the
is
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circumstances viewed from the standpoint of the defendant; (5) retreat
is not a duty, but the opportunity to retreat is made a circumstance to
consider in evaluating the reasonableness of the defendant's belief in
the necessity of using deadly force; and (6) the mistake-of-fact doctrine
applies to the defense.
Part II. Chapter 10. Offenses of General Applicability.
This Chapter codifies the attempt, conspiracy and solicita-
tion offenses. There is under currentlaw no Federal attempt statute
of general applicability, although many of the individual offenses
contain attempt provisions. This section makes it an offense to
attempt to commit any Federal crime. The attempted offense in most
instances carries the same penalty as the completed offense on the
theory that a defendant who begins to commit an offense should not
benefit from a happenstance causing its interruption. Nevertheless,
to encourage the abandonment of a criminal enterprise, a voluntary,
complete and effective avoidance of the offense constitutes an
affirmative defense.
The conspiracy section reflects current law, as developed
through judicial interpretations of the present general conspiracy
statute. It includes a provision making a co-conspirator liable for
substantive offenses committed by other co-conspirators in furtherance
of the conspiracy.
With the exception of subornation of perjury, there is no
solicitation offense in current Federal law. The Brown Commission
recommended a general offense covering the solicitation of another
to commit any Federal offense, an approach adopted in S. 1, as
amended.
Chapter 11. Offenses Involving National Defense.
Chapter 11 deals with the offenses involving the national
defense. Essentially it consists of the provisions concerning treason,
sabotage, espionage, and their related subordinate offenses. Despite
the great amount of attention focused on several of these provisions
during the hearings, for the most part they simply codify existing
statute and case law. However, admittedly, there are some areas in
which the law is being modified.
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Section 1104, for example, makes it an offense for a person
to engage in "paramilitary" activities. This section penalizes the
use of weapons by a group of persons for the purpose of taking over a
government function or a government agency. No comparable provision
exists in current law.
Section 1124, which prohibits the disclosure of classified
information, is another section where current law has been modified
and which received close scrutiny in the hearings. This section
makes it an offense for a person in authorized possession of classified
information to knowingly communicate such information to a person not
authorized to receive it. As originally drafted, it was not a defense
to the crime that the information was improperly classified. The
rationale behind this approach was that an adequate remedy existed for
correcting inappropriate classifications outside the Code, i.e. the
recent administrative review procedures created by Executive Order.
As a result of the hearings on the bills, three changes have
been made in the Committee Print. First, a complete bar to prosecu-
tion would become operative if there were not in existence at the time
of the offense an agency and procedures to provide for the review of
classifications. Second, an appropriate government official would
have to certify prior to prosecution that the classification which was
violated was correct.
Third, an affirmative defense is created that would be
applicable in instances where the defendant has exhausted his remedies
under the administrative review provisions and has not communicated
the classified information to a foreign agent or for anything of value.
If, and only if, these requirements are met would the defendant be
allowed to litigate the appropriateness of the classification.
Furthermore, it should be pointed out that a recipient of
the classified information, such as a newsman, is not subject to
prosecution under section 1124. The scope of the offense was
restricted in this way so as to avoid what some witnesses felt was
an encroachment on the freedom of the press.
Chapter 12. Offenses Involving International Affairs.
This chapter is divided into two subchapters. The first
subchapter encompasses those offenses that pertain to foreign relations,
such as disclosing a foreign code or engaging in an unlawful international
MANALD
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transaction. The second subchapter covers offenses involving immigra-
tion, naturalization, and passports, such as unlawful entry into the
United States or improper use of a passport. The offenses covered
here are basically a codification of present law without major change.
Chapter 13. Offenses Involving Government Processes.
The offenses encompassed by this chapter are those that
constitute obstructions of Government functions, whether they be
obstructions of justice, contempt offenses, offenses involving false
statement, or offenses involving official corruption. For the most
part, the chapter reflects current law. However, certain reforms
are introduced.
Current law contains an offense of conspiracy to defraud
the Government but no substantive offense of defrauding the Government.
The current offense has therefore been subject to criticism for punish-
ing a conspiracy to commit an act that is not in itself punishable.
Section 1301 establishes the substantive offense of defrauding the
Government.
Section 1312 gears the punishment for bail jumping to the
nature of the underlying offense. Thus, it will be punished as a felony
if the defendant is awaiting trial for a felony, but as a misdemeanor
if the underlying offense is a misdemeanor. This reduces the incentive
to jump bail in the hope of facing a reduced penalty after sufficient time
has passed that the Government's case has grown stale.
Current law covers tampering with witnesses and informants
by means of force or threats only in a vague obstruction of justice
statute. Section 1323 spells out the prohibited conduct in detail, at
the same time including a catch-all clause to insure that the coverage
of current law is maintained.
Current law does not make perjury an offense if the false
swearing is not material. Section 1342 changes that rule by making
such false swearing a misdemeanor. This provision reflects the
recognition that such dishonesty should be punished regardless of its
materiality.
Section 1343 consolidates in one statute the numerous false
statement statutes scattered throughout the United States Code -- 47
in title 18 alone. Oral false statements as well as written ones are
covered by the section.
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Finally, under Section 1356 public servants are prohibited
from using their own official actions or information gained because of
their position for private gain while they remain public servants or
for one year after they leave public service. As a statute of general
applicability, this offense is new to Federal law.
Chapter 14. Offenses Involving Taxation.
This chapter would incorporate Federal criminal tax offenses
currently contained in the Internal Revenue Code of 1954 (Title 26,
United States Code). This approach was suggested by the Brown
Commission and also adopted by both S. 1 and S. 1400. This is con-
sistent with a fundamental precept of codification requiring that all
felony offenses be included in Title 18.
The chapter is divided into two subchåpters. The first sub-
chapter would cover internal revenue offenses and the second subchapter
would contain customs offenses.
Chapter 14 generally recodifies existing law. However, one
particularly significant change is introduced with respect to prosecutions
for tax evasion ($1401). Under existing law, a successful tax evasion
prosecution requires a "net" tax deficiency. Thus, if one were to
intentionally understate his income with the intent to evade taxes but,
due to oversight or neglect, fail to take available deductions adequate
to offset the undeclared income, the case against him would fail.
Section 1401, read together with Section 1001 (Attempts),
eliminates the "net" deficiency requirement. Thus, a taxpayer could
be prosecuted for understating his income with a criminal intent, despite
the fact that no tax was actually due and owing because of overlooked
deductions.
It should be noted that the sanction for offenses where there
is no "net" deficiency is a class E felony (3 years). However, if there
exists a "net" deficiency of $100, 000 or less, the penalty is a class D
felony (7 years); where a "net" deficiency in excess of $100,000 exists,
the sanction is upgraded to a class C felony (15 years).
Chapter 15. Offenses Involving Individual Rights.
This chapter covers offenses involving civil rights, political
rights, and privacy.
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Civil Rights. Basic coverage of present civil rights statutes
is retained, with express language to encompass sex discrimination.
The current statute covering conspiracy to deprive a person of his
civil rights under color of law is modified to make it clear that the
criminal state of mind required for the offense applies to the conduct
which deprives a person of a right under the Constitution and law of
the United States and does not impose a further requirement that the
defendant specifically intend to infringe a federally guaranteed right.
Other sections carry forward the coverage of the Civil Rights Act
of 1968.
The civil rights provisions also represent an excellent
example of use of ancillary federal jurisdiction as a grading mechanism.
The basic offenses are generally graded as Class A misdemeanors
(1 year); however, federal jurisdiction also exists for serious crimes
against persons and property committed in the course of such offenses.
Thus, a civil rights offense involving murder would permit federal
prosecution for murder. This treatment is similar in concept to the
grading provided in present 18 U.S.C. 245.
Privacy. Section 1524 of the Committee Print, although
primarily intended to protect information furnished to the government
by private citizens as a duty or to obtain a federal benefit, is framed
in terms broad enough to prohibit grant jury leaks by grand jurors or
government employees. Prosecution for grand jury leaks now is limited
to the contempt provisions.
Wiretapping. Due to the recent vintage of the wiretap and
surveillance provisions and the controversy that surrounds the subject,
the Committee Print carries present law provisions forward without
substantive change.
Election Offenses. Section 1511 for the first time in Federal
law provides a specific statute covering voting fraud. Heretofore, voting
fraud in connection with a Federal election could be reached only under
the general civil rights conspiracy statute.
The basic offenses applicable to obstruction or influencing
elections are primarily directed at elections of Federal officers.
However, the print would for the first time in Federal law permit
Federal prosecution for such conduct ostensibly directed at the election
of a State or local official if it is a mixed election, that is, an election
involving candidates for both Federal and State or local offices.
?
runu
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Chapter 16. Offenses Against the Person.
This chapter contains all of the offenses which protect the
person as an individual. Included here are such offenses as murder,
manslaughter, maiming, reckless endangerment, kidnapping, aircraft
hijacking, and rape. By and large, while the chapter clarifies and
simplifies the basic offenses, no substantial changes are made. Two
offenses that are innovative, however, are rape and reckless endangerment.
The offense of rape, and the other sexual offenses in the
sections that follow, apply without distinction as to the sex of the offender
or of the victim; forcible sodomy is included in the definition of the
offense. It might be noted that the Committee Print statutory rape
provision (Section 1643) can be committed by females but eliminates
consensual acts between peers from the traditional offense. No
particularized evidentiary requirements, corroboration requirements,
or instruction requirements are included, nor is there any defense or
grading distinction based upon the promiscuity of the victim.
The reckless endangerment provision is new to Federal law.
It provides for an increased penalty for engaging in any criminal
conduct which recklessly endangers the life of another. This section
can be used in the environmental area. If a defendant pollutes the
environment in such a way that it recklessly places or may place
another person in danger of death or serious bodily harm, he can be
prosecuted under this section. It should be noted that other environmental
measures which contain criminal penalties, such as the Clean Air Act,
are retained outside Title 18.
Chapter 17. Offenses Against Property.
Chapter 17 incorporates and consolidates the many varied
property offenses found throughout the United States Code into some 31
sections. It is in this chapter that the provisions relating to arson,
burglary, securities violations and their related offenses are found.
It is also in this chapter, perhaps more than in any other, that the
consolidation and reduction of unnecessarily repetitious offenses, one
of the significant benefits of codification, can be found. By separating
the jurisdictional element from the definition of the substantive
offense, for example, Section 1731 is able to incorporate the 70-odd
theft provisions under current law into a single section. For the most
part, Chapter 17 incorporates current law in the area of property
offenses, but some notable reforms are also accomplished.
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Section 1722, defining the offense of extortion, is designed
to correct a "loophole" with regard to the conduct of labor
unions in collective bargaining disputes arising out of the recent
Supreme Court decision in United States V. Enmons. In that
case, the Court held that the Hobbs Act, which prohibits the
obstruction of interstate commerce by extortion, was not applicable
to otherwise extortionate conduct when that conduct was used to
obtain a legitimate goal of collective bargaining. Specifically, the
threats of a union leader to blow up a power substation were held
not to form the basis for a prosecution under the Act where the
reason for this threat was to coerce an employer into meeting the
union's concededly legitimate demands for higher wages. Such an
interpretation is inconsistent with the construction under other
Federal extortion provisions and essentially creates a Federal
"claim of right" defense. Section 1722 focuses on the means used
rather than the ends sought and would bring such conduct within the
definition of extortion.
In addition to consolidating the various theft offenses as
noted above, Section 1731 is expanded to cover the theft of services,
intangibles and intellectual property as well as tangible goods.
Section 1734 makes it an offense to execute a scheme to
defraud. The significance of this section lies in its relationship to
the procedural part of the code, where a new statutory injunction
remedy is provided to restrain violations, a remedy that should
be of considerable importance in protecting potential victims of
"white collar" crime. Such a remedy would parallel the effective
injunctive relief that has long been available for violations of the
fraud provisions of the Securities and Exchange Act.
Another significant reform with application to the labor
movement is found in Section 1752, which defines the offense of
labor bribery. Under current law, it is an offense to accept money,
i.e., a "bribe", to manipulate certain union funds but not others.
This situation has largely arisen because of the inability of the law
to keep up with the various funds being created by labor unions.
Thus, although it is a Federal crime for a pension and welfare
official to accept a bribe, that prohibition is currently not applicable
to those managing other trust funds for employee benefits.
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Section 1752 would extend the Federal law in this area to effectively
cover any labor union asset or fund.
Chapter 18. Offenses Involving Public Order, Safety,
Health and Welfare
This chapter is divided into seven subchapters.
Subchapter A incorporates a series of organized crime
offenses which generally mirror current law under the Organized
Crime Control Act of 1970. However, several innovations are
worthy of note. First, a distinction is made between simple
"racketeering" and "operating" a racketeering syndicate -- the
former is punished at a C felony level (15 years) and the latter at
a B felony level (30 years). Secondly, a new offense entitled
"Washing Racketeering Proceeds" ($ 1803) is created to proscribe
the takeover of legitimate businesses with the proceeds of a
racketerring enterprise. Finally, Federal loansharking laws are
strengthened to reach extortionate and grossly usurious credit
transactions, which in present 18 U. S. C. 892 are stated in terms
of a prima facie case for proving an extortionate extension of credit.
Subchapter B contains the various Federal drug offenses.
Grading distinctions are made based upon the nature of the drug
involved and the defendant's role as a trafficker or simple possessor.
Most notable are the setting of the penalty for simple possession of
marihuana at a Class C misdemeanor (30 days -- Section 1813) and
provision for mandatory minimum sentences for trafficking in drugs.
(Section 1811).
As to mandatory minimums, current law provides for
mandatory minimum sentences with respect to two categories of
crime: certain drug trafficking offenses and the commission of an
offense involving a firearm.
A mandatory minimum sentence is a minimum term of
imprisonment that must be imposed upon a convicted defendant.
Current law precludes the possibility of parole. The Committee
Print maintains the imposition of mandatory minimums with respect
:
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to the firearms and drug offenses but tempers the effect of this
provision by not precluding the possibility of parole.
This approach would recognize the gravity of the offenses
involved but would also provide enough flexibility to guarantee
that unduly harsh treatment would not be imposed upon rehabilitated
convicts.
Subchapter C codifies existing penal provisions involving
firearms and explosives. As noted above, mandatory minimum
sentences are retained for certain firearms offenses (Section 1823).
Supchapter D generally maintains the substance of existing
Federal law concerning riots.
Supchapter E covers gambling, obscenity and prostitution
offenses.
Section 1842 generally codifies current law consistent with
recent Supreme Court decisions respecting obscenity. The section
proscribes any dissemination of obscene material to a minor or to
any person in a manner affording no opportunity to avoid exposure
to such material. In addition, it proscribes the commercial
distribution of obscene material as defined in the section in those
instances where such distribution is in violation of state law. This
treatment of commercial distribution is parallel to similar Federal
gambling prohibitions and recognizes the States as the primary law
enforcement authority in obscenity. The Supreme Court recently
held that obscenity is determined by local, not national, standards.
With respect to gambling and prostitution, the Code seeks
to reach the operators of a gambling or prostitution ring but leaves
lesser offenses in this area to state law.
The balance of Chapter 18 covers public health offenses and
certain other relatively minor miscellaneous offenses such as a
new Federal disorderly conduct provision.
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Part III. Sentences.
It is in Part III that the sentencing scheme for the entire
United States Code, and not merely title 18, is set out. The
sentencing structure is designed to attain the four goals for any
criminal sanction that are set out in the very first section of the
Code. These goals are: (1) the assurance of just punishment for
criminal conduct; (2) the deterrence of such conduct; (3) the
protection of the public from persons who engage in such conduct;
and (4) the correction and rehabilitation of persons who engage in
such conduct. In an attempt to achieve these goals, Part III
establishes a system of probation, fines and imprisonment
applicable to both individuals and corporate entities. The death
sentence is available for persons convicted of murder, treason,
espionage or sabotage.
Chapter 20. General Provisions.
Chapter 20 sets out the general provisions applicable to the
sentencing of criminal defendants. Authorized sentences for
individual (probation, fine, imprisonment, or death) and corporate
defendants (probation or fine) are described. Provision is made
for the preparation of presentence reports and appellate review of
sentences.
Worthy of note is Section 2004, which creates a new criminal
sanction whereby an individual who has been found guilty of an
offense involving fraud or other deceptive practices, or an organization
that has been found guilty of any criminal offense, may be ordered
by the court to give notice of its conviction to those persons who are
affected by the conviction or who are financially interested in the
subject matter of the offense.
Chapter 21. Probation.
Chapter 21 provides for the probation of criminal defendants.
This chapter sets out the provisions for its imposition, the conditions
that may be attached to it and a section providing for its revocation.
Section 2103, which describes the conditions that may be attached to
probation, essentially enables a court to condition probation in any
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manner that might be conducive to the rehabilitation of the offender.
It sets forth a number of conditions to serve as examples of the
type of resourceful probationary measures that may be taken,
e. g., meet family responsibilities, participate in community
programs, etc.
Chapter 22. Fines.
Chapter 22 is composed of four sections that establish the
system of fines that may be imposed under the new title 18.
Under the Committee Print, a sentence to a fine may be
imposed in addition to any other sentence. Perhaps the most
notable feature of the fine provisions is the establishment of a
different level of fines for individuals and corporations. An
individual may be fined up to $100,000; while a corporation may
be fined up to $500, 000. Since corporations are almost always
possessed of greater assets than individuals, such a differentiation
is appropriate. Also noteworthy is the alternative fine authorized
by the Code. This provision is applicable to defendants who have
derived pecuniary gain from or have caused loss to a victim by
their offense. Such defendants may be fined up to twice the gain
derived or twice the loss caused, whichever is the greater.
Chapter 23. Imprisonment.
This chapter contains those sections of the Code governing
the sentence of imprisonment. Under the new sentencing system,
imprisonment may run from a maximum of life for a Class A
felony to no more than three years for a Class E felony; from not
more than one year for a Class A misdemeanor to a maximum of
thirty days for a Class C misdemeanor; and to no more than five
days for an infraction.
The chapter sets out the criteria to be imposed in determining
a sentence of imprisonment and the rules that will govern the
imposition of concurrent or consecutive sentences. Of particular
note is the retention and codification of provisions that permit an
extended term of imprisonment for "dangerous special offenders. "
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Chapter 24. Death Sentence.
This chapter, composed of three sections, sets out the
procedure to be utilized in determining whether or not the
sentence of death shall be imposed for those offenses for which
it is provided. The Code adopts the procedure established by
S. 1401, as that bill was passed by the Senate in March 1974.
Thus, it provides for a bifurcated or two-stage trial with its
separate sentencing hearing. It also sets out the specific
aggravating and mitigating factors that must be found to be
present or absent for the sentence of death to be imposed. If
one or more of the designated aggravating factors and none of
the mitigating factors is found to exist, the death sentence must
be imposed. If, on the other hand, none of the aggravating factors
or one or more of the mitigating factors is found to be present,
the penalty may not be imposed.
Part IV. Criminal Justice Administration and Procedure.
This part, composed of Chapters 30-38, codifies existing
procedural sections of Title 18. Four innovations are worthy of
note in this context.
Supchapter A of Chapter 36 codifies the Federal Juvenile
Delinquency Act and adopts the procedural changes recently
passed by the Senate as the McClellan amendment to S. 821, the
Juvenile Justice and Delinquency Prevention Act of 1974, which
became Public Law 93-445 on September 7, 1974.
Supchapter B of Chapter 36 provides for the first time in
Federal law a civil commitment procedure applicable to individuals
found innocent of a Federal crime by reason of a defense of
insanity. Under current law, no opportunity for Federal treatment
of such individuals is available since the only available civil
commitment procedures are found in State law.
Subchapter C of Chapter 37 of the Committee Print would
provide for appellate review of criminal sentences in Federal courts.
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This is accomplished by statute rather than amendment to the
rules of criminal procedure. Section 3725 provides for so-called
"two-way review" -- by the prosecutor and/or by the defendant.
The standard upon review is "clearly unreasonable". An appeal
is not a matter of right but of grace, i.e., the government and
defendant are granted authority to file leave to appeal which may
be granted or denied by the appellate court.
An appeal would lie in the circuit court and thereafter the
Supreme Court. Only sentences imposed upon conviction of a
felony which involve imprisonment for a term in excess of one-
fifth of the authorized maximum would be appealable by the
defendant.
Section 3812 establishes new Federal lien provisions
applicable to unpaid criminal fines which parallel the statutory lien
treatment of unpaid Federal taxes. This should operate to guarantee
greater compliance with imposed Federal criminal fines.
Part V. Ancillary Civil Proceedings.
This part (Chapters 40 and 41) contains two innovations
which deserve attention.
Section 4021 establishes a new civil injunction remedy which
would be available in mail fraud proceedings. S. 1 contained a much
broader authorization for utilization of the injunction remedy.
Supchapter B of Chapter 41 incorporates a new program of
limited compensation to victims of Federal crimes. These provisions
authorize a civil court action against a revolving fund to be
established on the books of the United States Treasury to compensate
the innocent victims of violent crimes for personal injury which
they may incur as the result of a specified crime.
The section is limited to the Federal level, i.e., Federal
compensation to victims of Federal crimes. There is no authorization
for appropriations provided. It is anticipated that demands against
the fund would be satisfied from increased fine levels, dividends
to be declared by the Federal Prisons Industries Board and private
contributions.
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White House Initiatives
In considering the appropriate role of the White House in the
development of the code, four points should be borne in mind.
First, the code is a government-wide project and not merely the
concern of the Department of Justice. Although Justice has served
a primary role in its development to date, the code will ultimately
impact on virtually every agency of the Federal government.
Secondly, to the extent that the code constitutes a public statement
of the Administration on virtually every criminal justice issue facing
the nation today, it should be reflective of President Ford's views.
Thirdly, the bill has historical significance especially in view of
the President's background as a lawyer. Finally, although a code is
a possibility in the 94th Congress, as a practical matter success will
require White House support for the effort.
Therefore, it would appear that we have some interest in
shaping the content of the code as it may reflect on the President and
in providing whatever assistance may be desirable and practicable in
moving it through the Congress.
At the present time, we can lay a groundwork for our
participation in the development of a code over the next few years.
First, the matter should be covered in the State of the Union as follows:
(1) the need for codification should be endorsed; (2) the necessity of
maintaining the integrity of the code in the face of efforts to frac-
tionalize it should be emphasized; (3) the President should call for
the logical development and refinement of the Senate bill by the House
as opposed to a de novo review of the effort; and (4) the President
should indicate that, as he continues to be advised on various issues
presented by the code, he will communicate his views to the appropriate
committees of Congress.
We should also arrange to meet with Larry Silberman and
Ron Gainer (Code Unit at Justice) in order to reconsider major issues
presented by the code and to discuss the possibilities for White House
assistance. In this latter regard, it is extremely important that
efforts be made to ensure that new appointments to the Hungate Sub-
committee on the Republican side provide some balance to the
membership.
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Attachment
Attached is a draft statement on the code project for possible
inclusion in the State of the Union message. The draft was done
by Justice and does not cover every point which I have noted above.
However, it is a good- starting point and should give you a feel
for the rhetoric in this area.
Closing Note
Would you like me to arrange a meeting on this subject with Larry
Silberman and others at Justice in order to explore our appropriate
role in the development of this project?
$. FORD LIST
The problem of crime in our country continues to be of serious
concern. Increasingly it touches the lives of each of us. While the
control of crime is a matter primarily of State responsibility under our
Constitution, there are several areas in which it is the principal
responsibility of the Federal Government and many other areas in which it
is the responsibility of the Federal Government to augment the efforts of
the States when it becomes necessary.
Several legislative approaches to the problem of crime have been
tried by the Federal Government. Some have helped to alleviate the problem;
some have not. Those attempts that have sought to improve the law itself
have, on occasion, produced notable advances. But all such past attempts by
the Congress have suffered from the fact that, no matter how well-intended
or how well-designed, they constituted a piecemeal approach to the problem.
We are still left in a situation where one of the most time-consuming
aspects of the criminal justice process is in determining what the law is.
If the entire body of criminal law could be clarified and simplified, the
time of judges and prosecutors and defense counsel could be devoted to the
handling of a greater number of cases fairly and expeditiously rather than
engaging in endless litigation on fine points of legal interpretation.
Piecemeal repair and improvement has proved to be inadequate.
What is needed instead is a complete overhaul of the Federal criminal laws.
A major overhaul of a significant segment of the criminal law has
recently been achieved by Congress's passage of the Federal Rules of Evidence.
The Judiciary Committees of the House of Representatives and the Senate VEFORD
GERALD LISA
to be commended, together with the Judicial Conference, for the painstaking
work that has at last codified this large body of law. But even this area
is only a fraction of the Federal criminal law that requires overall revision
and reform.
I propose as a major goal of this Congress the passage of an
entirely new Federal criminal code.
The stage has been set for such a monumental reform. In 1966,
largely through the efforts of then-Congressman Richard Poff, the Congress
established a commission to evaluate means of reforming the Federal criminal
laws. The commission was formed, and, after three years' work under the
chairmanship of former Governor Brown of California, it recommended to the
Congress a "work basis" for a new Federal criminal code. After two years
of Senate Judiciary Committee hearings on the subject, Senators McClellan,
Hruska, and Ervin introduced a bill encompassing a complete new code.
Thereafter, that Committee held extensive hearings for two more years, it
worked closely with attorneys representing all departments and agencies of
the Executive Branch, and last October it produced a revised version of
the bill to create a new code.
The version of the code contained in the revised Senate bill is,
I believe, markedly superior to all previous formulations. It will clarify
the law, simplify the law, and improve the law -- and, by doing so, it will
make the law more effective against criminal conduct at all levels. It will
make the law more effective against those who engage in organized criminal
enterprises, and against those who deprive others of their constituti Gally
FORD
guaranteed civil rights; against those who attempt to corrupt our governmental
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and political processes, and against those who seek to circumvent the law
for personal gain; against those who engage in crimes of violence, and against
those who unlawfully deposit poisonous industrial wastes into the Nation's
rivers and streams; against those who engage in terrorist activities, and
against those who prey upon the poor through fraudulent schemes and usurious
loans. It will make the law more effective against all forms of criminal
activities.
In a work of this scope -- a scope that embodies all aspects of
the criminal laws -- not everyone will agree with every provision. But I
think everyone can agree that the bill is a monumental improvement over the
existing state of the law. The bill is the product of constructive
bipartisan effort. It has my support and the support of this Administration,
and it deserves the support of the Congress. I can think of no more
appropriate a gift that the Congress might give the Nation, on the
two-hundreth anniversary of its birth, than a modern body of laws balancing
in a sensitive and sensible fashion the rights of free citizens with the
needs of a free society. I pledge to the Congress the full efforts of this
Administration to help make the promise of such a gift a reality.
FURO is BERRID LIBRARY
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THE WHITE HOUSE
WASHINGTON
Date
7/31/75
TO:
PHIL BUCHEN
FROM:
KEN LAZARUS
ACTION:
Approval/Signature
Comments/Recommendations
Prepare Response
Please Handle
X
For Your Information
File
REMARKS:
P.
FORD LIBRASE
THE PRESIDENT'S REMARKS UPON SIGNING
H. R. 6799 INTO LAW
July 31, 1975
I am signing into law today H. R. 6799, the Federal Rules
of Criminal Procedure Amendments Act of 1975.
The amendments, some of which have been worked on for
more than five years, make important changes in several existing
rules and add some new ones. The overall effect of this
legislation is to improve the efficiency of the Federal criminal
justice system and to enhance the fairness of criminal trials.
These goals are accomplished primarily through new Rules
providing for increased pretrial discovery to both the prosecution
and the defense of information necessary to the preparation of the
case, and through new provisions governing the acceptance of
guilty pleas and regulating, for the first time, the process of
plea bargaining.
My heartfelt thanks are extended to the Judicial Conference
of the United States which drafted the basic proposals, to the
members of the bench and bar who contributed their wisdom and
expertise, and to the members of the Congressional committees who
devoted so much effort to resolving the difficult choices which were
presented.
I am sure that these amendments will further advance
GERRID Lb the FORD LIBRARY
Federal system of criminal justice.
Wednesday 7/30/75
3:45 Ken has shown the Memo for the President to Rod Hills
and he thought it was O.K. Mr. Hills initiated it.
Ken has taken it down to Jim Connor. The bill should
be here about 5 o'clock. Do you want to wait and
look at the bill when you return?
Or shall someone
read it to you?
The paper has to be on its way by
7 this evening.
Connor will get the paper and
the bill together to send on -- but can be changed if you
have a problem.
Last paragraph says the Attorney General, Jim Cannon,
Jack Marsh and Jim Lynn all recommend. Ken has
checked with all of them.
Suggests I send copies to all of them --particularly
Dick Parsons.
4:30 Ken said there will be a note inserted at the top of the memo
indicating they would like to have the bill signed as soon as
possible, which would be July 31 (Helsinki time -- 12 a.m. 8/1 our time)
The bill should be down here by 5 o'clock.
5:45 Gave the me ssage to Wilderotter, who is going to convey it
to Mr. Buchen.
He will call back if ther e's a problem.
If we don't hear back, we can assume it's O.K.
(Told him Lazarus said basically there's just the change of signing
date -- now it would be signed July 31 rather than August 1 --
then there would be no need to note the actual time and place on the
bill itself.)
FORD i LIBRARY GENALD
Copy for
THE WHITE HOUSE
Mr. Bucken
WASHINGTON
July 30, 1975
MEMORANDUM FOR THE PRESIDENT
THROUGH:
PHILIP BUCHEN by R.H.
FROM:
KENNETH LAZARUS
SUBJECT:
Enrolled Bill: H.R. 6799, the Federal Rules
of Criminal Procedure Amendments Act of 1975
This is to present the referenced bill for your immediate
attention. In order to be absolutely certain that it is
effective, the measure must be signed into law before August
1 (Washington time) -- 6:00 A.M., Friday, August 1 (Helsinki
time).
Background
1. Enabling Acts. 18 U.S.C. Sections 3402, 3771 and 3772
constitute the Federal criminal rules enabling acts. By
these provisions, the United States Supreme Court is empowered
to promulgate rules of practice and procedure to govern criminal
proceedings in our various Federal courts. The authority of
the Supreme Court to promulgate such rules is limited, however,
by a reserved power of Congress to disapprove any promulgated
rule within a period of 90 days from the date of transmission to
Congress or the prescribed effective date of the rule whichever
is later. Moreover, the Congress is, of course, empowered to
affirmatively legislate in this area at any time.
2. 1974 Criminal Rules. By order dated April 22, 1974, the
Chief Justice transmitted to Congress a package of proposed
changes to the Federal Rules of Criminal Procedure which were
to take effect on August 1, 1974, absent Congressional disapproval.
3. Delayed Effective Date. Pub. L. 93-361, July 30, 1974, 88
Stat. 397 provided that the effective date of the proposed changes
to the Federal Rules of Criminal Procedure which were embraced by
the Supreme Court order of April 22, 1974, was postponed until
August 1, 1975.
4. Enrolled Bill. H.R. 6799 contains a series of desirable
amendments to the Rules as promulgated by the Supreme Court
GERALD LIBRARY
2
on April 22, 1974. However, in order to be absolutely cer-
tain that they are carried into effect, it is necessary to
secure Presidential approval of the legislation before August
1, 1975. Approval on August 1 could, create considerable
confusion and litigation. Approval after August 1 could
be a complete nullity as the Rules promulgated on April
22, 1. 1974, are deisgned to automatically take effect on August
Discussion
The Department of Justice strongly supported most of the
amendments (and all of the major ones) contained in H.R. 6799.
Two provisions are worthy of mention here.
1. Rules 4 and 9. The enrolled bill rejects the Supreme
Court's proposal to transfer the discretion as to whether to
use an arrest warrant or a summons, now exercised by United
States Attorneys, to the district courts. In the view of
the Department, the Court's proposal, because of its tendency
to increase the use of a summons, thereby alerting a person
that a criminal charge is imminent, would have exacerbated
the problem of fugitivity as well as caused a loss of in-
criminating evidence.
2. Rule 16. The enrolled bill also rejects the Supreme
Court's proposal to provide for mandatory pre-trial dis-
closure of government witnesses. The Court's proposal
portended an increase in witness intimidation, assault and
assassination, as well as an aggravation of the already
difficult task of obtaining witness cooperation. In
this area, too, the bill would leave current law intact.
H.R. 30. 6799 passed the House and Senate by voice vote on July
Recommendation
Due to the press of time, it was not possible to process this
measure in the normal fashion. However, the Attorney General,
Jim Cannon, Jack Marsh, Jim Lynn and Counsel's Office recommend
you sign the subject bill into law as soon as possible and not
later than 6:00 A.M., Friday August 1 (Helsinki Time).
FORD
is
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LIBRARY
THE WHITE HOUSE
WASHINGTON
July 29, 1975
MEMO FOR:
PHIL BUCHEN
FROM:
KEN LAZARUS
Attached is a draft memorandum on the
criminal rules legislation.
You should receive the letter from the Attorney
General which is referred to at page 2 early
tomorrow morning.
Bob Linder advises me that he has requested
OMB to prepare the memo referred to on
page 2.
I have done what is possible to ensure that the
enrolled bill will be presented to the White House
as soon as humanly possible and will continue
to keep on top of Congressional action.
The memo at page 3 indicates that Cannon, Marsh
and Lynn concur in the recommendation of the
Attorney General and Counsel's Office. This
has not yet been obtained and you might take the
opportunity of tomorrow morning's staff meeting
to secure their approval.
LIBRARY
Attachment
THE WHITE HOUSE
WASHINGTON
DRAFT
July 29, 1975
MEMORANDUM FOR THE PRESIDENT
THROUGH:
PHILIP BUCHEN
FROM:
KEN LAZARUS
SUBJECT:
Enrolled Bill: H.R. 6799, the Federal Rules
of Criminal Procedure Amendments Act of 1975
This is to present the referenced bill for your immediate attention.
In order to be effective, the measure must be signed into law before
August 2 (Washington time) -- 6:00 A. M., Saturday, August 2
(Helsinki time).
Background
1. Enabling Acts. 18 U.S.C. Sections 3402, 3771 and 3772
constitute the Federal criminal rules enabling acts. By these
provisions, the United States Supreme Court is empowered to
promulgate rules of practice and procedure to govern criminal
proceedings in our various Federal courts. The authority of
the Supreme Court to promulgate such rules is limited, however,
by a reserved power of Congress to disapprove any promulgated
rule within a period of 90 days from the date of transmission to
Congress or the prescribed effective date of the rule whichever
is later. Moreover, the Congress is, of course, empowered to
affirmatively legislate in this area at any time.
2. 1974 Criminal Rules. By order dated April 22, 1974, the
Chief Justice transmitted to Congress a package of proposed
changes to the Federal Rules of Criminal Procedure which were
to take effect on August 1, 1974, absent Congressional disapproval.
3. Delayed Effective Date. Pub. L. 93-361, July 30, 1974, 88
Stat. 397 provided that the effective date of the proposed changes to
the Federal Rules of Criminal Procedure which were embraced byoko
the Supreme Court order of April 22, 1974, was postponed until
August 1, 1975.
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4. Enrolled Bill. H.R. 6799 contains a series of desirable
amendments to the Rules as promulgated by the Supreme Court
on April 22, 1974. However, in order to ensure that they become
effective, it is necessary to secure Presidential approval of the
legislation by August 1, 1975. Approval after August 1 would,
at a minimum, create considerable confusion and litigation. Indeed,
subsequent approval could be a complete nullity as the Rules
promulgated on April 22, 1974, automatically take effect on August 1.
Discussion
The Department of Justice strongly supported most of the
amendments (and all of the major ones) contained in H. R. 6799
(see letter from the Attorney General at Tab A). Two provisions
are worthy of mention here.
1.
Rules 4 and 9. The enrolled bill rejects the Supreme Court's
proposal to transfer the discretion as to whether to use an arrest
warrant or a summons, now exercised by United States Attorneys,
to the district courts. In the view of the Department, the Court's
proposal, because of its tendency to increase the use of a summons,
thereby alerting a person that a criminal charge is imminent,
would have exacerbated the problem of fugitivity as well as caused
a loss of incriminating evidence.
2. Rule 16. The enrolled bill also rejects the Supreme Court's
proposal to provide for mandatory pre-trial disclosure of government
witnesses. The Court's proposal portended an increase in witness
intimidation, assault and assassination, as well as an aggravation
of the already difficult task of obtaining witness cooperation. In
this area, too, the bill would leave current law intact.
Recommendation
Due to the press of time, it was not possible to process this measure
in the normal fashion. However, an OMB memorandum is attached
for additional information (Tab B).
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The Attorney General, Jim Cannon, Jack Marsh, Jim Lynn
and Counsel's Office recommend you sign the subject bill into
law as soon as possible and not later than 6:00 A. M., Saturday,
August 2 (Helsinki time).
Additionally, in view of the possibility that the timing of the
legislation vis-a-vis the Court's Rules may someday be the subject
of litigation, I suggest that you also note the exact time, date and
location on the enrolled bill and have your approval witnessed by
a member of the staff who would then be available to provide the
Department of Justice with an appropriate affidavit.
GERALD R. FORD
OFFICE OF
THE ATTORNEY GENERAL
FROM DONNA JUSTITIA
7/29/75
Ken:
If we have this signed, is this
sufficient?
Doug Marvin
13
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Office of the Attorney General
TRO
SEQUITURE
DONATE
Washington, D. C.
JUSTITIS
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D.C. 20500
Dear Mr. Buchen:
I am writing to you in regard to H.R. 6799, the "Federal Rules of
Criminal Procedure Amendments Act of 1975," which I am advised will be
enacted by the Congress on July 30 or 31, 1975.
In brief, the background of the bill is that in April of 1974, the
Supreme Court promulgated a series of amendments to the Federal Rules of
Criminal Procedure pursuant to 18 U.S.C. 3771 and 3772. The amendments
were to become effective on August 1, 1974. In order to give itself time
to consider the amendments, Congress enacted a statute deferring the
effective date of the proposed amendments to August 1, 1975 (P.L. 93-361).
The present legislation, H.R. 6799, is the result of that congressional
consideration and embodies several significant modifications favorable to the
Department of Justice. These include rejection of the Court proposals (1) to
transfer the discretion as to whether to use an arrest warrant or a summons,
now exercised by United States Attorneys under Rules 4 and 9, to the district
courts, and (2) to provide for mandatory pre-trial disclosure of government
witnesses. The bill leaves current law intact in both these areas. In the
view of the Department, the first proposal, because of its tendency to increase
the use of a summons, thereby alerting a person that a criminal charge is
imminent, would have exacerbated the problem of fugitivity as well as caused
a loss of incriminating evidence. The second proposal was even more serious
and portended an increase in witness intimidation, assault, and assassination,
as well as an aggravation of the already difficult task of obtaining witness
cooperation. In addition to the foregoing aspects, the bill contains positive
features, including new Rules setting forth procedures governing plea bargaining
and for notification to the government in advance of trial of a defendant's
intent to offer a defense of alibi or insanity. The Department of Justice
strongly supported most of the amendments (and all of the major ones) made
by Congress to the pending Rules.
CORD
GERAL
LIBRAST
- 2 -
There is, however, a serious problem concerning the time in which the
legislation must be signed by the President to be effective. As previously
indicated, unless superseded by law, the Supreme Court's proposed Rules will
automatically take effect on August 1, 1975. It is uncertain, due to the
ambiguous wording of H.R. 6799, whether if approved after August 1, 1975,
the bill would be deemed to supersede the then in force Supreme Court
proposals, and whether, if so, the Court's proposals would nonetheless
remain in effect until December 1, 1975, the effective date of H.R. 6799.
It seems evident, in any event, that approval after August 1 would create
considerable confusion and litigation. To ensure, therefore, that the
fruits of H.R. 6799 are not lost or delayed, I urge you to make every effort
to secure Presidential approval of the legislation by August 1, 1975. All
legal problems could clearly be avoided if Presidential approval on July 31,
(OF)
1975, were obtained. However, if this proves impossible, it is my understanding
that the President's approval of the bill at any time on August 1 would be
deemed retroactive to the first instant of that date and accordingly would be
about. sufficient to prevent the adverse consequences mentioned above from coming
(Washington
Sincerely,
Edward H. Levi
Attorney General
LIBRARY
THE PRESIDENT'S REMARKS UPON SIGNING
H. R. 6799 INTO LAW
July 31, 1975
I am signing into law today H. R. 6799, the Federal Rules
of Criminal Procedure Amendments Act of 1975.
The amendments, some of which have been worked on for
more than five years, make important changes in several existing
rules and add some new ones. The overall effect of this
legislation is to improve the efficiency of the Federal criminal
justice system and to enhance the fairness of criminal trials.
These goals are accomplished primarily through new Rules
providing for increased pretrial discovery to both the prosecution
and the defense of information necessary to the preparation of the
case, and through new provisions governing the acceptance of
guilty pleas and regulating, for the first time, the process of
plea bargaining.
My heartfelt thanks are extended to the Judicial Conference
of the United States which drafted the basic proposals, to the
members of the bench and bar who contributed their wisdom and
expertise, and to the members of the Congressional committees who
devoted so much effort to resolving the difficult choices which were
presented.
I am sure that these amendments will further advance the
Federal system of criminal justice.
LIBRARY GERALD ? FORD
THE PRESIDENT'S REMARKS UPON SIGNING
H. R. 6799 INTO LAW
July 31, 1975
I am signing into law today H. R. 6799, the Federal Rules
of Criminal Procedure Amendments Act of 1975.
The amendments, some of which have been worked on for
more than five years, make important changes in several existing
rules and add some new ones. The overall effect of this
legislation is to improve the efficiency of the Federal criminal
justice system and to enhance the fairness of criminal trials.
These goals are accomplished primarily through new Rules
providing for increased pretrial discovery to both the prosecution
and the defense of information necessary to the preparation of the
case, and through new provisions governing the acceptance of
guilty pleas and regulating, for the first time, the process of
plea bargaining.
My heartfelt thanks are extended to the Judicial Conference
of the United States which drafted the basic proposals, to the
members of the bench and bar who contributed their wisdom and
expertise, and to the members of the Congressional committees who
devoted so much effort to resolving the difficult choices which were
presented.
I am sure that these amendments will further advance the
&
Federal system of criminal justice.
FORD
GERALD
LIBRAMY
THE PRESIDENT'S REMARKS UPON SIGNING
H. R. 6799 INTO LAW
July 31, 1975
I am signing into law today H. R. 6799, the Federal Rules
of Criminal Procedure Amendments Act of 1975.
The amendments, some of which have been worked on for
more than five years, make important changes in several existing
rules and add some new ones. The overall effect of this
legislation is to improve the efficiency of the Federal criminal
justice system and to enhance the fairness of criminal trials.
These goals are accomplished primarily through new Rules
providing for increased pretrial discovery to both the prosecution
and the defense of information necessary to the preparation of the
case, and through new provisions governing the acceptance of
guilty pleas and regulating, for the first time, the process of
plea bargaining.
My heartfelt thanks are extended to the Judicial Conference
of the United States which drafted the basic proposals, to the
members of the bench and bar who contributed their wisdom and
expertise, and to the members of the Congressional committees who
devoted so much effort to resolving the difficult choices which were
presented.
I am sure that these amendments will further advance the
Federal system of criminal justice.
THE PRESIDENT'S REMARKS UPON SIGNING
H. R. 6799 INTO LAW
July 31, 1975
I am signing into law today H. R. 6799, the Federal Rules
of Criminal Procedure Amendments Act of 1975.
The amendments, some of which have been worked on for
more than five years, make important changes in several existing
rules and add some new ones. The overall effect of this
legislation is to improve the efficiency of the Federal criminal
justice system and to enhance the fairness of criminal trials.
These goals are accomplished primarily through new Rules
providing for increased pretrial discovery to both the prosecution
and the defense of information necessary to the preparation of the
case, and through new provisions governing the acceptance of
guilty pleas and regulating, for the first time, the process of
plea bargaining.
My heartfelt thanks are extended to the Judicial Conference
of the United States which drafted the basic proposals, to the
members of the bench and bar who contributed their wisdom and
expertise, and to the members of the Congressional committees who
devoted so much effort to resolving the difficult choices which were
presented.
I am sure that these amendments will further advance the
Federal system of criminal justice.
THE PRESIDENT'S REMARKS UPON SIGNING
H. R. 6799 INTO LAW
July 31, 1975
I am signing into law today H. R. 6799, the Federal Rules
of Criminal Procedure Amendments Act of 1975.
The amendments, some of which have been worked on for
more than five years, make important changes in several existing
rules and add some new ones. The overall effect of this
legislation is to improve the efficiency of the Federal criminal
justice system and to enhance the fairness of criminal trials.
These goals are accomplished primarily through new Rules
providing for increased pretrial discovery to both the prosecution
and the defense of information necessary to the preparation of the
case, and through new provisions governing the acceptance of
guilty pleas and regulating, for the first time, the process of
plea bargaining.
My heartfelt thanks are extended to the Judicial Conference
of the United States which drafted the basic proposals, to the
members of the bench and bar who contributed their wisdom and
expertise, and to the members of the Congressional committees who
devoted so much effort to resolving the difficult choices which were
presented.
is
rond
I am sure that these amendments will further advance the
LIBRAR,
Federal system of criminal justice.
THE PRESIDENT'S REMARKS UPON SIGNING
H. R. 6799 INTO LAW
July 31, 1975
I am signing into law today H. R. 6799, the Federal Rules
of Criminal Procedure Amendments Act of 1975.
The amendments, some of which have been worked on for
more than five years, make important changes in several existing
rules and add some new ones. The overall effect of this
legislation is to improve the efficiency of the Federal criminal
justice system and to enhance the fairness of criminal trials.
These goals are accomplished primarily through new Rules
providing for increased pretrial discovery to both the prosecution
and the defense of information necessary to the preparation of the
case, and through new provisions governing the acceptance of
guilty pleas and regulating, for the first time, the process of
plea bargaining.
My heartfelt thanks are extended to the Judicial ,Conference
of the United States which drafted the basic proposals, to the
members of the bench and bar who contributed their wisdom and
expertise, and to the members of the Congressional committees who
devoted so much effort to resolving the difficult choices which were
presented.
is
tuko
RALD
I am sure that these amendments will further advance the
LIBRARY
Federal system of criminal justice.
Wednesday 7/30/75
3:45 Ken has shown the Memo for the President to Rod Hills
and he thought it was O.K. Mr. Hills initiated it.
Ken has taken it down to Jim Connor. The bill should
be here about 5 o'clock. Do you want to wait and
look at the bill when you return?
Or shall someone
read it to you?
The paper has to be on its way by
7 this evening.
Connor will get the paper and
the bill together to send on -- but can be changed if you
have a problem.
Last paragraph says the Attorney General, Jim Cannon,
Jack Marsh and Jim Lynn all recommend, Ken has
checked with all of them.
Suggests I send copies to all of them --particularly
Dick Parsons.
4:30 Ken said there will be a note inserted at the top of the memo
indicating they would like to have the bill signed as soon as
possible, which would be July 31 (Helsinki time -- 12 a.m. 8/1 our time)
The bill should be down here by 5 o'clock.
5:45 Gave the me ssage to Wilderotter, who is going to convey it
to Mr. Buchen.
He will call back if ther e's a problem.
If we don't hear back, we can assume it's O.K.
(Told him Lazarus said basically there's just the change of signing
date -- now it would be signed July 31 rather than August 1 --
then there would be no need to note the actual time and place on the
bill itself.)
:
FORD
GERALD
LIBRARY
THE WHITE HOUSE
WASHINGTON
July 30, 1975
MEMORANDUM FOR THE PRESIDENT
THROUGH:
PHILIP BUCHEN
ly R. H.
FROM:
KENNETH LAZARUS
SUBJECT:
Enrolled Bill: H.R. 6799, the Federal Rules
of Criminal Procedure Amendments Act of 1975
This is to present the referenced bill for your immediate
attention. In order to be absolutely certain that it is
effective, the measure must be signed into law before August
1 (Washington time) -- 6:00 A.M., Friday, August 1 (Helsinki
time)
Background
1. Enabling Acts. 18 U.S.C. Sections 3402, 3771 and 3772
constitute the Federal criminal rules enabling acts. By
these provisions, the United States Supreme Court is empowered
to promulgate rules of practice and procedure to govern criminal
proceedings in our various Federal courts. The authority of
the Supreme Court to promulgate such rules is limited, however,
by a reserved power of Congress to disapprove any promulgated
rule within a period of 90 days from the date of transmission to
Congress or the prescribed effective date of the rule whichever
is later. Moreover, the Congress is, of course, empowered to
affirmatively legislate in this area at any time.
2. 1974 Criminal Rules. By order dated April 22, 1974, the
Chief Justice transmitted to Congress a package of proposed
changes to the Federal Rules of Criminal Procedure which were
to take effect on August 1, 1974, absent Congressional disapproval.
3. Delayed Effective Date. Pub. L. 93-361, July 30, 1974, 88
Stat. 397 provided that the effective date of the proposed changes
to the Federal Rules of Criminal Procedure which were embraced by
the Supreme Court order of April 22, 1974, was postponed until
August 1, 1975.
4. Enrolled Bill. H.R. 6799 contains a series of desirable
amendments to the Rules as promulgated by the Supreme Court
BERAND
LIBRARY
2
on April 22, 1974. However, in order to be absolutely cer-
tain that they are carried into effect, it is necessary to
1, 1975. Approval on August 1 could, create considerable
secure Presidential approval of the legislation before August
confusion and litigation. Approval after August 1 could
be a complete nullity as the Rules promulgated on April
1. 22, 1974, are deisgned to automatically take effect on August
Discussion
The Department of Justice strongly supported most of the
amendments (and all of the major ones) contained in H.R. 6799.
Two provisions are worthy of mention here.
1. Rules 4 and 9. The enrolled bill rejects the Supreme
Court's proposal to transfer the discretion as to whether to
use an arrest warrant or a summons, now exercised by United
States Attorneys, to the district courts. In the view of
the Department, the Court's proposal, because of its tendency
the increase the use of a summons, thereby alerting a person
that a criminal charge is imminent, would have exacerbated
the problem of fugitivity as well as caused a loss of in-
cximinating evidence.
22. Rule 16. The enrolled bill also rejacts the Supreme
Court's proposal to provide for mandatory pre-trial dis-
closure of government witnesses. The Court's proposal
purtended an increase in witness intimidation, assault and
assassination, as well as an aggravation of the already
difficult task of obtaining witness cooperation. In
this area, too, the bill would leave current law intact.
H.R. 6799 passed the House and Senate by voice vote on July
330.
Recommendation
Due to the press of time, it was not possible to process this
measure in the normal fashion. However, the Attorney General,
Jhim Cannon, Jack Marsh, Jim Lynn and Counsel's Office recommend
you sign the subject bill into law as soon as possible and not
later than 6:00 A.M., Friday August 1 (Helsinki Time).
GERALD
LIBRARY
THE WHITE HOUSE
WASHINGTON
July 30, 1975
MEMORANDUM FOR THE PRESIDENT
THROUGH:
PHILIP BUCHEN
ly R. H.
FROM:
KENNETH LAZARUS
SUBJECT:
Enrolled Bill: H.R. 6799, the Federal Rules
of Criminal Procedure Amendments Act of 1975
This is to present the referenced bill for your immediate
attention. In order to be absolutely certain that it is
effective, the measure must be signed into law before August
1 (Washington time) -- 6:00 A.M., Friday, August 1 (Helsinki
time).
Background
1. Enabling Acts. 18 U.S.C. Sections 3402, 3771 and 3772
constitute the Federal criminal rules enabling acts. By
these provisions, the United States Supreme Court is empowered
to promulgate rules of practice and procedure to govern criminal
proceedings in our various Federal courts. The authority of
the Supreme Court to promulgate such rules is limited, however,
by a reserved power of Congress to disapprove any promulgated
rule within a period of 90 days from the date of transmission to
Congress or the prescribed effective date of the rule whichever
is later. Moreover, the Congress is, of course, empowered to
affirmatively legislate in this area at any time.
2. 1974 Criminal Rules. By order dated April 22, 1974, the
Chief Justice transmitted to Congress a package of proposed
changes to the Federal Rules of Criminal Procedure which were
to take effect on August 1, 1974, absent Congressional disapproval.
3. Delayed Effective Date. Pub. L. 93-361, July 30, 1974, 88
Stat. 397 provided that the effective date of the proposed changes
to the Federal Rules of Criminal Procedure which were embraced by
the Supreme Court order of April 22, 1974, was postponed until
August 1, 1975.
4. Enrolled Bill. H.R. 6799 contains a series of desirable
amendments to the Rules as promulgated by the Supreme Court
LIBRARY
2
on April 22, 1974. However, in order to be absolutely cer-
tain that they are carried into effect, it is necessary to
secure Presidential approval of the legislation before August
1, 1975. Approval on August 1 could, create considerable
confusion and litigation. Approval after August 1 could
be a complete nullity as the Rules promulgated on April
22, 1. 1974, are deisgned to automatically take effect on August
Discussion
The Department of Justice strongly supported most of the
amendments (and all of the major ones) contained in H.R. 6799.
Two provisions are worthy of mention here.
1. Rules 4 and 9. The enrolled bill rejects the Supreme
Court's proposal to transfer the discretion as to whether to
use an arrest warrant or a summons, now exercised by United
States Attorneys, to the district courts. In the view of
the Department, the Court's proposal, because of its tendency
to increase the use of a summons, thereby alerting a person
that a criminal charge is imminent, would have exacerbated
the problem of fugitivity as well as caused a loss of in-
criminating evidence.
2. Rule 16. The enrolled bill also rejects the Supreme
Court's proposal to provide for mandatory pre-trial dis-
closure of government witnesses. The Court's proposal
portended an increase in witness intimidation, assault and
assassination, as well as an aggravation of the already
difficult task of obtaining witness cooperation. In
this area, too, the bill would leave current law intact.
H.R. 6799 passed the House and Senate by voice vote on July
30.
Recommendation
Due to the press of time, it was not possible to process this
measure in the normal fashion. However, the Attorney General,
Jim Cannon, Jack Marsh, Jim Lynn and Counsel's Office recommend
you sign the subject bill into law as soon as possible and not
later than 6:00 A.M., Friday August 1 (Helsinki Time).
LIBRARY

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"ocrText": "The original documents are located in Box 14, folder \"Federal Criminal Code\" of the\nPhilip Buchen Files at the Gerald R. Ford Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nDigitized from Box 14 of the Philip Buchen Files at the Gerald R. Ford Presidential Library\n18 U.S.C. 8 1001. Statements or entries generally.\nWhoever, in any matter within the jurisdiction of any\ndepartment or agency of the United States knowingly and willfully\nfalsifies, conceals or covers up by any trick, scheme, or device\na material fact, or makes any false, fictitious or fraudulent\nstatements or representations, or makes or uses any false\nwriting or document knowing the same to contain any false,\nfictitious or fraudulent statement or entry, shall be fined not\nmore than $10,000 or imprisoned not more than five years, or\nboth. (June 25, 1948, ch. 645, 62 Stat. 749.)\nYURDO is LIBRARY QERVLD\nTHE WHITE HOUSE\nWASHINGTON\nNovember 26, 1974\nMEMORANDUM FOR:\nPHIL BUCHEN\nFROM:\nKEN LAZARUS\nSUBJECT:\nFederal Criminal Code Project\nThis is to outline the background and status of efforts to codify our\nFederal criminal laws and to recommend certain White House\ninitiatives in support of the project.\nThe Deficiencies\nof Current Law\nAlthough there have been several consolidations and technical\nrevisions of Federal criminal law (title 18, United States Code) over\nthe years (1877, 1909 and 1948), the United States, unlike many of\nthe States and most of the other countries of the world, has never\nenacted a true \"criminal code. 11 Laws have been drafted to deal\nwith diverse problems on an ad hoc basis. It is not surprising then\nthat our body of criminal law on the Federal level is a haphazard\nhodgepodge of conflicting, contradictory and imprecise laws piled\none upon the other with little relevance to each other or to the state\nof criminal law as a whole.\nThe failure to revise and reform our criminal laws has posed a\nnumber of acute problems. The first is uncertainty in the law. In\nsome areas, the courts of appeals are divided and enforce a different\n\"federal\" law depending on the circuit. A prime example in this\nregard is the insanity defense. It is possible to identify at least five\ndifferent formulas for insanity used in the eleven circuits. Uncer-\ntainty results also in different interpretations of the same word\ndepending on the statute in which it is used. For example, the word\nLIBRARY\n2\n\"willful\" has some 78 interpretations. A willful act can be one that\nis done \"voluntarily\" in some statutes, an act that is done \"with a\nbad purpose\" in others and in one case, an act that is done with\n\"a cruel and malignant heart\" --whatever that may mean.\nInconsistencies, loopholes and unnecessary technicalities also result\nfrom the present hodgepodge of laws. We now have about 80 Federal\nstatutes dealing with theft -- the definition of the offense depends on\nthe jurisdictional basis, whether it is theft of government property,\ntheft of the mails or theft from interstate commerce.\nOther problems arise due to the fact that our laws define an offense\nin terms of the jurisdiction. For example, under some interpretations,\na person does not commit theft of property moving interstate under\npresent federal statutes unless he knew it was traveling interstate.\nEven if a person stole property in interstate commerce, he could\navoid the Federal charge if he could show he didn't know it was moving\nin interstate commerce. This is a classic example of the guilty going\nfree because of a technicality irrelevant to the offense. Never-used\nstatutes also clutter up our law, e.g., operating a pirate ship on\nbehalf of a \"foreign prince\"; detaining a United States carrier pigeon;\nand seducing a female steamship passenger, all statutes still on the\nbooks.\nThe sentencing scheme of our current laws is also erratic. Robbery\nof a bank carries 20 years while robbery of a post office carries\n10 years.\nIn short, the Federal penal law as a whole reflects neglect. Because\nof its lack of clarity, consistency and comprehensiveness, it tends\nto detract from our system of justice.\nThe History\nof the Codification Effort\nEfforts to codify Federal criminal law can be traced back to the\nwork of the American Law Institute which, in 1952, began the planning\nand drafting of a \"Model Penal Code. \"\nIn 1962, the ALI published the \"Proposed Official Draft of a Model\nPenal Code. Immediately thereafter, modern criminal codes were\npassed in Illinois (1962), Minnesota (1963), New Mexico (1963) and\nWisconsin (1965).\n3\nThe next major step in the lineal progression toward a Federal\ncriminal code, was the development of the New York Revised Penal\nLaw in 1965.\nThe next key step was taken by the Congress itself in 1966. In that\nyear Public Law 89-801 was enacted, creating a \"National Commission\non Reform of Federal Criminal Laws, \" called, after its Chairman,\nformer Governor Edmund G. \"Pat\" Brown of California, the \"Brown\nCommission. 11 The Commission was charged by the Congress to:\nMake a full and complete review and study of the statutory\nand case law of the United States which constitutes the Fed-\neral system of criminal justice for the purpose of formu-\nlating and recommending to the Congress legislation which\nwould improve the Federal system of criminal justice. It\nshall be the further duty of the Commission to make recom-\nmendations for revision and recodification of the criminal\nlaws of the United States, including the repeal of unneces-\nsary or undesirable statutes and such changes in the penalty\nstructure as the Commission may feel will better serve the\nends of justice.\n*\nThe Commission prepared its own draft recommendations, which\nalso made important improvements, but followed lineally from the\nearlier works. The product of nearly three years of deliberation by\nthe Commission, the recommendations were submitted to the Congress\nand the President on January 7, 1971, in the form of a Final Report.\nThe Report, some 364 pages in length, was tendered not as a final\nproduct but, as the Commission noted in its letter of transmittal, as\na \"work basis\" to facilitate congressional choices.\nOn January 16, 1971, former President Nixon issued a statement\ncommending the Brown Commission for its labors and directing the\nDepartment of Justice in a simultaneous memorandum to establish\na special team of attorneys within the Department to work closely\nwith appropriate congressional committees and their staffs through\nthe evaluation and recommendation process.\nFORD LIBRARY & CERALD\n4\nOn February 1, 1971, the Senate Subcommittee on Criminal Laws\nand Procedures (McClellan - Chairman; Hruska - ranking) began\nhearings and studies on the recommendations of the Commission.\nLegislative Developments\nA. Senate\nDuring the 92nd Congress, the Criminal Laws Subcommittee\nheld extensive hearings on the subject of a Federal Criminal Code\nwhich resulted in the introduction of S. 1 (by Senator McClellan)\nupon the opening of the 93rd Congress in 1973. S. 1 thus was largely\nthe work of the Subcommittee staff.\nIn response to the President's directive to propose a thorough-\ngoing revision of the Federal criminal code, the Attorney General\nassembled a team of Department of Justice attorneys, most of whom\nhad extensive trial and appellate experience in Federal courts, into\na Criminal Code Revision Unit within the Department of Justice.\nBy early 1973, the Unit had drafted S. 1400 (by Senator Hruska),\nas a bill to \"reform, revise, and codify the substantive criminal\nlaw of the United States\nII\nThe Criminal Laws Subcommittee recently concluded hearings on\na Federal criminal code. The total hearing record which has been\ncompiled over the last four years totals over 8, 000 pages of testimony,\nstatements and exhibits in 14 volumes.\nThe Subcommittee staff and the Department of Justice have also\ncompleted a compromise version bill (S. 1 as amended) and accompany-\ning committee report, hopefully embodying some worthwhile new\nprovisions and the best features of both S. 1 and S. 1400 as introduced,\nas well as the Final Report of the Brown Commission. This bill\n(approximately 800 pages in length -- the longest in history) and\ncommittee report (approximately 2, 000 pages in three volumes) will\nserve as the basis for anticipated Senate action early next year. The\nS. 1 designation has been reserved for this purpose in the 94th\nCongress.\nB. House\nThe bill is within the jurisdiction of the Hungate Judiciary Sub-\ncommittee on Criminal Justice which has only monitored the progress\nFORD\nof the project to date. Hearings are anticipated to open early in the\nnext session.\nCERAED\nLIBRARY\n5\nFormat of the Proposed Code\nS. 1, as amended, is divided into two titles. Title I consists of five\nparts that interlock with each other.\nPart 1 embodies the general provisions and principles of the Code.\nIncluded in this part are chapters on jurisdiction, culpability,\ncomplicity and defenses.\nPart 2 consists of all the offenses defined in the Code. Each offense\nis defined in such a way that the reader knows: (1) the elements of\nthe offense; (2) the requisite state of mind (culpability); (3) the\ncircumstances under which the Federal government can prosecute the\noffender (jurisdiction); and (4) the sentence for violation of the\noffense (grading).\nIn order to determine whether the circumstances warrant prosecution,\na reader must engage in the following analysis:\n-- What are the elements of the offense?\n- - What is the state of mind, i.e., mens rea, that the offender\nmust have with respect to each element? Following the\napproach of the National Commission, S. 1, as amended,\ndoes not contain the requisite state of mind in the definition\nof the offense. Instead, the state of mind is governed by\nthe general principles of Chapter 3.\n-- Does the accused have a defense to the prosecution? Chapter\n5 of Part 1 (General Principles) embodies available defenses.\n- - Does the Federal government have jurisdiction to prose-\ncute? Each offense contains a jurisdictional subsection\nstating the circumstances under which Federal jurisdiction\nexists.\n- What is the sentence for violating the offense? Each section\ndefining an offense contains a subsection stating the category\nof sentence (classes of grading) that may be imposed.\nPart 3 embodies all the sentencing provisions. It defines the classes\nof grading and states what types of sanctions may be imposed, e.g.\nprobation, parole, imprisonment, fines, etc.\nFOND\nGERALD\nLIBRARY\n6\nPart 4 contains the procedural sections of existing Title 18 and all of\nthe Federal Rules of Criminal Procedure. It should be noted at this\npoint that the Rules that are incorporated in S. 1, as amended, are\nthose recently promulgated by the Supreme Court. These rules are\nnow scheduled to go into effect August 1, 1975, unless Congress\ndetermines otherwise.\nPart 5 contains provisions on ancillary private civil remedies, such\nas civil actions against racketeering offenders.\nTitle II embodies the conforming amendments for those offenses\nappearing outside Title 18.\nOverview of the Proposed Code\nPart I. Chapter 1. General Provisions.\nThis chapter contains general provisions such as the\nprinciples of construction and general definitions.\nChapter 2. Jurisdiction.\nChapter 2 introduces the general treatment of Federal juris-\ndiction. The Committee Print continues the concept of the National\nCommission's Final Report, S. 1 and S. 1400 that offenses should be\ndefined in terms of the underlying misconduct (e.g., kidnapping) and\nthat the basis for Federal jurisdiction should be specified separately\n(e.g., transporting the victim across a state line). The basis for\nFederal jurisdiction would not be an element of the offense as such\nbut would be proved to the court beyond a reasonable doubt.\nTwo aspects of Federal jurisdiction in the Commission's\nFinal Report generated controversy on the subject.\nFirst, the Final Report consolidated circumstances giving\nrise to Federal jurisdiction into twelve broad jurisdictional bases,\nwhich were then applied by reference in the penal section. Although\nthese bases were loosely modeled after examples in present Federal\nlaw, the consolidation generally resulted in substantial expansions of\nFederal jurisdiction and less often in contraction of Federal juris-\ndiction without a rationale for doing SO. In order to avoid these\nproblems, the bill as amended describes expressly in each penal\nBERRED FORD\n7\nsection the Federal jurisdiction applicable to the ∞ nduct. This\napproach adopts a drafting technique which permits a precise\nduplication, expansion or contraction of present law on an offense-\nby-offense basis.\nSecond, the Commission's Report contained a jurisdictional\nbase under which Federal jurisdiction could be asserted over criminal\nconduct simply because it occurred in the course of any other offense\nover which Federal jurisdiction existed. This so-called \"ancillary\njurisdiction\" concept if applied generally to every offense would lead\nto a large expansion in Federal jurisdiction. The concept is retained\nin the Committee print but is limited extremely in its application by\nlisting in the jurisdictional part of appropriate penal sections those\noffenses which may confer derivative Federal jurisdiction for the\nparticular offense. For example, reference to the jurisdictional\nsubsection for murder indicates that there is Federal jurisdiction\nover all murders that occur during the commission of a Federal\nkidnapping. This approach essentially meets the objections of those\ncritical of the Commission's Final Report.\nChapter 3. Culpable States of Mind.\nThis chapter defines the specific mental states (the \"mens\nrea\" elements) that are used throughout the Code in defining an offense.\nThe current Title 18 uses 79 different terms to define the requisit e\nmental state. This chapter reduces the number of terms used to\ndescribe the state of mind to four: intentionally, knowingly, reck-\nlessly or negligently. The simplification should permit far more\nclarity and uniformity of interpretation.\nChapter 4. Complicity.\nThis chapter sets forth those circumstances under which\na person may be criminally liable for the acts of another. For\nexample, the accomplice liability section codifies the doctrine of\nPinkerton v. United States, making a co-conspirator guilty of each\nspecific offense committed in furtherance of the criminal conspiracy\nand as a reasonably foreseeable consequence of the conspiracy.\nOne significant section in this chapter is the organizational\nliability provision. It makes an organization (defined to include\nunions and associations as well as corporations) liable for the acts\nof its agent committed within his express, implied or apparent\nauthority.\nFUNN\n8\nChapter 5. Bars and Defenses to Prosecution.\nFor the first time in Federal law, general defenses to\nprosecution are codified. Except for the defense of insanity, the\ncodified defenses reflect present law in the majority of jurisdictions.\nThe chapter includes such defenses as insanity, entrapment, intoxi-\ncation, duress, exercise of public duty, self-defense and official\nmisstatement of law. Other than insanity, the defenses that have\ndrawn the most comment are entrapment, public duty, official\nmisstatement of law and use of deadly force.\n1. Insanity Defense (Section 522). At present there is no\nFederal statute defining the insanity defense. As a result, the\nformulation of the defense has been left to the courts. Uncertainty\nand a lack of uniformity have been the consequences. Where the type\nof insanity test adopted by a court of appeals can be discerned, it\nis possible to discover at least five different formulas used in the\n11 circuits.\nS. 1400 and S. 1, as originally introduced, adopted\ndifferent approaches. The S. 1400 revision, which the Committee\nPrint adopts, would permit insanity to serve as a defense to a\nprosecution only if the insanity precludes a finding of the existence\nof the required mens rea, the state of mind element. In other words,\na defendant could not be convicted if his mental disease or defect\nnegated the requisite state of mind. This proposal would hold all\nresponsible for their criminal acts if done with the requisite criminal\nintent. Thus, the focus of initial inquiry in criminal trials would be\non such questions as \"Did the defendant intend to hijack an aircraft?\"\nin case of air piracy, rather than \"Could the defendant know right\nfrom wrong; could he control his behavior Assuming the intent\nto hijack the aircraft and the requisite conduct, the defendant would\nbe convicted and the question at the time of sentencing would be\nwhether to commit the defendant to prison, to a mental hospital,\nor to some other program.\nIn contrast, the S. 1 approach focused on the question of\nwhether the defendant had such a mental disease or defect that he\nlacked substantial capacity to appreciate the character of his conduct\nor to control his conduct. This is the standard developed by the\nAmerican Law Institute.\ntuno\nGERALD\n9\nThe real difference between the two approaches is that\nunder S. 1400 the defendant would be convicted and then sent either\nto prison or a mental hospital. By contrast, under the S. 1 approach\nhe would be found not guilty by reason of insanity and, under civil\ncommitment proceedings, sent to a mental hospital.\n2. Entrapment (Section 551). With respect to entrapment,\nthe print adopts the majority view of the Supreme Court on the defense.\nIf a defendant exhibits a predisposition to commit the offense, the\ndefense will not prevail. Where, however, the police encourage the\ncommission of crimes that would not otherwise be committed in order\nto make an arrest and obtain a conviction, the defendant can success-\nfully assert the defense.\n3. Execution of Public Duty (Section 541). The defense of\n\"execution of public duty\" incorporates in one section many Federal\nlaws which permit public servants to act in certain ways in the execu-\ntion of their official duties. Under this provision, for example, it\nwould be a defense to a charge of theft that the defendant was a\nmarshal levying execution on a shipment of goods in interstate\ncommerce. Wiretapping under court order would also be excluded\nfrom the prohibition against the interception of private communications.\n4. Official Misstatement of Law (Section 552). The defense\nof \"official misstatement of law\" is a common law defense that is\ncodified by the bill. Under this provision, if an official erroneously\ninforms a person that it is legal to engage in certain conduct, the\nactor cannot be prosecuted for such conduct. Some witnesses criticized\nthis provision because it could authorize an official to immunize the\nconduct of another official by telling the latter that he may legally\nengage in certain conduct that is later deemed to be illegal. In order\nto avoid such collusion, the section has been amended to require a\npublic announcement, either orally or in writing, that the law is being\nofficially interpreted so that certain conduct is not criminal in nature.\n5. Protection of Persons or Property (Sections 542 and 543).\nThe basic standards for the use of deadly force are the following: (1)\nthe use of deadly force in self-protection or in protection of another is\njustified only if necessary to avoid a risk of death or serious bodily\ninjury; (2) deadly force is not justified in defense of property; (3)\navailability of the defense depends upon apparent necessity; (4) the\ngeneral test of necessity is what is reasonably required under the\nis\nFORU\nGERALD\n1\n10\ncircumstances viewed from the standpoint of the defendant; (5) retreat\nis not a duty, but the opportunity to retreat is made a circumstance to\nconsider in evaluating the reasonableness of the defendant's belief in\nthe necessity of using deadly force; and (6) the mistake-of-fact doctrine\napplies to the defense.\nPart II. Chapter 10. Offenses of General Applicability.\nThis Chapter codifies the attempt, conspiracy and solicita-\ntion offenses. There is under currentlaw no Federal attempt statute\nof general applicability, although many of the individual offenses\ncontain attempt provisions. This section makes it an offense to\nattempt to commit any Federal crime. The attempted offense in most\ninstances carries the same penalty as the completed offense on the\ntheory that a defendant who begins to commit an offense should not\nbenefit from a happenstance causing its interruption. Nevertheless,\nto encourage the abandonment of a criminal enterprise, a voluntary,\ncomplete and effective avoidance of the offense constitutes an\naffirmative defense.\nThe conspiracy section reflects current law, as developed\nthrough judicial interpretations of the present general conspiracy\nstatute. It includes a provision making a co-conspirator liable for\nsubstantive offenses committed by other co-conspirators in furtherance\nof the conspiracy.\nWith the exception of subornation of perjury, there is no\nsolicitation offense in current Federal law. The Brown Commission\nrecommended a general offense covering the solicitation of another\nto commit any Federal offense, an approach adopted in S. 1, as\namended.\nChapter 11. Offenses Involving National Defense.\nChapter 11 deals with the offenses involving the national\ndefense. Essentially it consists of the provisions concerning treason,\nsabotage, espionage, and their related subordinate offenses. Despite\nthe great amount of attention focused on several of these provisions\nduring the hearings, for the most part they simply codify existing\nstatute and case law. However, admittedly, there are some areas in\nwhich the law is being modified.\nBERALD\n11\nSection 1104, for example, makes it an offense for a person\nto engage in \"paramilitary\" activities. This section penalizes the\nuse of weapons by a group of persons for the purpose of taking over a\ngovernment function or a government agency. No comparable provision\nexists in current law.\nSection 1124, which prohibits the disclosure of classified\ninformation, is another section where current law has been modified\nand which received close scrutiny in the hearings. This section\nmakes it an offense for a person in authorized possession of classified\ninformation to knowingly communicate such information to a person not\nauthorized to receive it. As originally drafted, it was not a defense\nto the crime that the information was improperly classified. The\nrationale behind this approach was that an adequate remedy existed for\ncorrecting inappropriate classifications outside the Code, i.e. the\nrecent administrative review procedures created by Executive Order.\nAs a result of the hearings on the bills, three changes have\nbeen made in the Committee Print. First, a complete bar to prosecu-\ntion would become operative if there were not in existence at the time\nof the offense an agency and procedures to provide for the review of\nclassifications. Second, an appropriate government official would\nhave to certify prior to prosecution that the classification which was\nviolated was correct.\nThird, an affirmative defense is created that would be\napplicable in instances where the defendant has exhausted his remedies\nunder the administrative review provisions and has not communicated\nthe classified information to a foreign agent or for anything of value.\nIf, and only if, these requirements are met would the defendant be\nallowed to litigate the appropriateness of the classification.\nFurthermore, it should be pointed out that a recipient of\nthe classified information, such as a newsman, is not subject to\nprosecution under section 1124. The scope of the offense was\nrestricted in this way so as to avoid what some witnesses felt was\nan encroachment on the freedom of the press.\nChapter 12. Offenses Involving International Affairs.\nThis chapter is divided into two subchapters. The first\nsubchapter encompasses those offenses that pertain to foreign relations,\nsuch as disclosing a foreign code or engaging in an unlawful international\nMANALD\n12\ntransaction. The second subchapter covers offenses involving immigra-\ntion, naturalization, and passports, such as unlawful entry into the\nUnited States or improper use of a passport. The offenses covered\nhere are basically a codification of present law without major change.\nChapter 13. Offenses Involving Government Processes.\nThe offenses encompassed by this chapter are those that\nconstitute obstructions of Government functions, whether they be\nobstructions of justice, contempt offenses, offenses involving false\nstatement, or offenses involving official corruption. For the most\npart, the chapter reflects current law. However, certain reforms\nare introduced.\nCurrent law contains an offense of conspiracy to defraud\nthe Government but no substantive offense of defrauding the Government.\nThe current offense has therefore been subject to criticism for punish-\ning a conspiracy to commit an act that is not in itself punishable.\nSection 1301 establishes the substantive offense of defrauding the\nGovernment.\nSection 1312 gears the punishment for bail jumping to the\nnature of the underlying offense. Thus, it will be punished as a felony\nif the defendant is awaiting trial for a felony, but as a misdemeanor\nif the underlying offense is a misdemeanor. This reduces the incentive\nto jump bail in the hope of facing a reduced penalty after sufficient time\nhas passed that the Government's case has grown stale.\nCurrent law covers tampering with witnesses and informants\nby means of force or threats only in a vague obstruction of justice\nstatute. Section 1323 spells out the prohibited conduct in detail, at\nthe same time including a catch-all clause to insure that the coverage\nof current law is maintained.\nCurrent law does not make perjury an offense if the false\nswearing is not material. Section 1342 changes that rule by making\nsuch false swearing a misdemeanor. This provision reflects the\nrecognition that such dishonesty should be punished regardless of its\nmateriality.\nSection 1343 consolidates in one statute the numerous false\nstatement statutes scattered throughout the United States Code -- 47\nin title 18 alone. Oral false statements as well as written ones are\ncovered by the section.\nRALD\n13\nFinally, under Section 1356 public servants are prohibited\nfrom using their own official actions or information gained because of\ntheir position for private gain while they remain public servants or\nfor one year after they leave public service. As a statute of general\napplicability, this offense is new to Federal law.\nChapter 14. Offenses Involving Taxation.\nThis chapter would incorporate Federal criminal tax offenses\ncurrently contained in the Internal Revenue Code of 1954 (Title 26,\nUnited States Code). This approach was suggested by the Brown\nCommission and also adopted by both S. 1 and S. 1400. This is con-\nsistent with a fundamental precept of codification requiring that all\nfelony offenses be included in Title 18.\nThe chapter is divided into two subchåpters. The first sub-\nchapter would cover internal revenue offenses and the second subchapter\nwould contain customs offenses.\nChapter 14 generally recodifies existing law. However, one\nparticularly significant change is introduced with respect to prosecutions\nfor tax evasion ($1401). Under existing law, a successful tax evasion\nprosecution requires a \"net\" tax deficiency. Thus, if one were to\nintentionally understate his income with the intent to evade taxes but,\ndue to oversight or neglect, fail to take available deductions adequate\nto offset the undeclared income, the case against him would fail.\nSection 1401, read together with Section 1001 (Attempts),\neliminates the \"net\" deficiency requirement. Thus, a taxpayer could\nbe prosecuted for understating his income with a criminal intent, despite\nthe fact that no tax was actually due and owing because of overlooked\ndeductions.\nIt should be noted that the sanction for offenses where there\nis no \"net\" deficiency is a class E felony (3 years). However, if there\nexists a \"net\" deficiency of $100, 000 or less, the penalty is a class D\nfelony (7 years); where a \"net\" deficiency in excess of $100,000 exists,\nthe sanction is upgraded to a class C felony (15 years).\nChapter 15. Offenses Involving Individual Rights.\nThis chapter covers offenses involving civil rights, political\nrights, and privacy.\nWERNLD\n14\nCivil Rights. Basic coverage of present civil rights statutes\nis retained, with express language to encompass sex discrimination.\nThe current statute covering conspiracy to deprive a person of his\ncivil rights under color of law is modified to make it clear that the\ncriminal state of mind required for the offense applies to the conduct\nwhich deprives a person of a right under the Constitution and law of\nthe United States and does not impose a further requirement that the\ndefendant specifically intend to infringe a federally guaranteed right.\nOther sections carry forward the coverage of the Civil Rights Act\nof 1968.\nThe civil rights provisions also represent an excellent\nexample of use of ancillary federal jurisdiction as a grading mechanism.\nThe basic offenses are generally graded as Class A misdemeanors\n(1 year); however, federal jurisdiction also exists for serious crimes\nagainst persons and property committed in the course of such offenses.\nThus, a civil rights offense involving murder would permit federal\nprosecution for murder. This treatment is similar in concept to the\ngrading provided in present 18 U.S.C. 245.\nPrivacy. Section 1524 of the Committee Print, although\nprimarily intended to protect information furnished to the government\nby private citizens as a duty or to obtain a federal benefit, is framed\nin terms broad enough to prohibit grant jury leaks by grand jurors or\ngovernment employees. Prosecution for grand jury leaks now is limited\nto the contempt provisions.\nWiretapping. Due to the recent vintage of the wiretap and\nsurveillance provisions and the controversy that surrounds the subject,\nthe Committee Print carries present law provisions forward without\nsubstantive change.\nElection Offenses. Section 1511 for the first time in Federal\nlaw provides a specific statute covering voting fraud. Heretofore, voting\nfraud in connection with a Federal election could be reached only under\nthe general civil rights conspiracy statute.\nThe basic offenses applicable to obstruction or influencing\nelections are primarily directed at elections of Federal officers.\nHowever, the print would for the first time in Federal law permit\nFederal prosecution for such conduct ostensibly directed at the election\nof a State or local official if it is a mixed election, that is, an election\ninvolving candidates for both Federal and State or local offices.\n?\nrunu\nBENAED\nLIGHART\n15\nChapter 16. Offenses Against the Person.\nThis chapter contains all of the offenses which protect the\nperson as an individual. Included here are such offenses as murder,\nmanslaughter, maiming, reckless endangerment, kidnapping, aircraft\nhijacking, and rape. By and large, while the chapter clarifies and\nsimplifies the basic offenses, no substantial changes are made. Two\noffenses that are innovative, however, are rape and reckless endangerment.\nThe offense of rape, and the other sexual offenses in the\nsections that follow, apply without distinction as to the sex of the offender\nor of the victim; forcible sodomy is included in the definition of the\noffense. It might be noted that the Committee Print statutory rape\nprovision (Section 1643) can be committed by females but eliminates\nconsensual acts between peers from the traditional offense. No\nparticularized evidentiary requirements, corroboration requirements,\nor instruction requirements are included, nor is there any defense or\ngrading distinction based upon the promiscuity of the victim.\nThe reckless endangerment provision is new to Federal law.\nIt provides for an increased penalty for engaging in any criminal\nconduct which recklessly endangers the life of another. This section\ncan be used in the environmental area. If a defendant pollutes the\nenvironment in such a way that it recklessly places or may place\nanother person in danger of death or serious bodily harm, he can be\nprosecuted under this section. It should be noted that other environmental\nmeasures which contain criminal penalties, such as the Clean Air Act,\nare retained outside Title 18.\nChapter 17. Offenses Against Property.\nChapter 17 incorporates and consolidates the many varied\nproperty offenses found throughout the United States Code into some 31\nsections. It is in this chapter that the provisions relating to arson,\nburglary, securities violations and their related offenses are found.\nIt is also in this chapter, perhaps more than in any other, that the\nconsolidation and reduction of unnecessarily repetitious offenses, one\nof the significant benefits of codification, can be found. By separating\nthe jurisdictional element from the definition of the substantive\noffense, for example, Section 1731 is able to incorporate the 70-odd\ntheft provisions under current law into a single section. For the most\npart, Chapter 17 incorporates current law in the area of property\noffenses, but some notable reforms are also accomplished.\nBERALD\n16\nSection 1722, defining the offense of extortion, is designed\nto correct a \"loophole\" with regard to the conduct of labor\nunions in collective bargaining disputes arising out of the recent\nSupreme Court decision in United States V. Enmons. In that\ncase, the Court held that the Hobbs Act, which prohibits the\nobstruction of interstate commerce by extortion, was not applicable\nto otherwise extortionate conduct when that conduct was used to\nobtain a legitimate goal of collective bargaining. Specifically, the\nthreats of a union leader to blow up a power substation were held\nnot to form the basis for a prosecution under the Act where the\nreason for this threat was to coerce an employer into meeting the\nunion's concededly legitimate demands for higher wages. Such an\ninterpretation is inconsistent with the construction under other\nFederal extortion provisions and essentially creates a Federal\n\"claim of right\" defense. Section 1722 focuses on the means used\nrather than the ends sought and would bring such conduct within the\ndefinition of extortion.\nIn addition to consolidating the various theft offenses as\nnoted above, Section 1731 is expanded to cover the theft of services,\nintangibles and intellectual property as well as tangible goods.\nSection 1734 makes it an offense to execute a scheme to\ndefraud. The significance of this section lies in its relationship to\nthe procedural part of the code, where a new statutory injunction\nremedy is provided to restrain violations, a remedy that should\nbe of considerable importance in protecting potential victims of\n\"white collar\" crime. Such a remedy would parallel the effective\ninjunctive relief that has long been available for violations of the\nfraud provisions of the Securities and Exchange Act.\nAnother significant reform with application to the labor\nmovement is found in Section 1752, which defines the offense of\nlabor bribery. Under current law, it is an offense to accept money,\ni.e., a \"bribe\", to manipulate certain union funds but not others.\nThis situation has largely arisen because of the inability of the law\nto keep up with the various funds being created by labor unions.\nThus, although it is a Federal crime for a pension and welfare\nofficial to accept a bribe, that prohibition is currently not applicable\nto those managing other trust funds for employee benefits.\nBERALD\n17\nSection 1752 would extend the Federal law in this area to effectively\ncover any labor union asset or fund.\nChapter 18. Offenses Involving Public Order, Safety,\nHealth and Welfare\nThis chapter is divided into seven subchapters.\nSubchapter A incorporates a series of organized crime\noffenses which generally mirror current law under the Organized\nCrime Control Act of 1970. However, several innovations are\nworthy of note. First, a distinction is made between simple\n\"racketeering\" and \"operating\" a racketeering syndicate -- the\nformer is punished at a C felony level (15 years) and the latter at\na B felony level (30 years). Secondly, a new offense entitled\n\"Washing Racketeering Proceeds\" ($ 1803) is created to proscribe\nthe takeover of legitimate businesses with the proceeds of a\nracketerring enterprise. Finally, Federal loansharking laws are\nstrengthened to reach extortionate and grossly usurious credit\ntransactions, which in present 18 U. S. C. 892 are stated in terms\nof a prima facie case for proving an extortionate extension of credit.\nSubchapter B contains the various Federal drug offenses.\nGrading distinctions are made based upon the nature of the drug\ninvolved and the defendant's role as a trafficker or simple possessor.\nMost notable are the setting of the penalty for simple possession of\nmarihuana at a Class C misdemeanor (30 days -- Section 1813) and\nprovision for mandatory minimum sentences for trafficking in drugs.\n(Section 1811).\nAs to mandatory minimums, current law provides for\nmandatory minimum sentences with respect to two categories of\ncrime: certain drug trafficking offenses and the commission of an\noffense involving a firearm.\nA mandatory minimum sentence is a minimum term of\nimprisonment that must be imposed upon a convicted defendant.\nCurrent law precludes the possibility of parole. The Committee\nPrint maintains the imposition of mandatory minimums with respect\n:\nFOKO\nGERALD\nLIBRARY\n18\nto the firearms and drug offenses but tempers the effect of this\nprovision by not precluding the possibility of parole.\nThis approach would recognize the gravity of the offenses\ninvolved but would also provide enough flexibility to guarantee\nthat unduly harsh treatment would not be imposed upon rehabilitated\nconvicts.\nSubchapter C codifies existing penal provisions involving\nfirearms and explosives. As noted above, mandatory minimum\nsentences are retained for certain firearms offenses (Section 1823).\nSupchapter D generally maintains the substance of existing\nFederal law concerning riots.\nSupchapter E covers gambling, obscenity and prostitution\noffenses.\nSection 1842 generally codifies current law consistent with\nrecent Supreme Court decisions respecting obscenity. The section\nproscribes any dissemination of obscene material to a minor or to\nany person in a manner affording no opportunity to avoid exposure\nto such material. In addition, it proscribes the commercial\ndistribution of obscene material as defined in the section in those\ninstances where such distribution is in violation of state law. This\ntreatment of commercial distribution is parallel to similar Federal\ngambling prohibitions and recognizes the States as the primary law\nenforcement authority in obscenity. The Supreme Court recently\nheld that obscenity is determined by local, not national, standards.\nWith respect to gambling and prostitution, the Code seeks\nto reach the operators of a gambling or prostitution ring but leaves\nlesser offenses in this area to state law.\nThe balance of Chapter 18 covers public health offenses and\ncertain other relatively minor miscellaneous offenses such as a\nnew Federal disorderly conduct provision.\nBERALD\n19\nPart III. Sentences.\nIt is in Part III that the sentencing scheme for the entire\nUnited States Code, and not merely title 18, is set out. The\nsentencing structure is designed to attain the four goals for any\ncriminal sanction that are set out in the very first section of the\nCode. These goals are: (1) the assurance of just punishment for\ncriminal conduct; (2) the deterrence of such conduct; (3) the\nprotection of the public from persons who engage in such conduct;\nand (4) the correction and rehabilitation of persons who engage in\nsuch conduct. In an attempt to achieve these goals, Part III\nestablishes a system of probation, fines and imprisonment\napplicable to both individuals and corporate entities. The death\nsentence is available for persons convicted of murder, treason,\nespionage or sabotage.\nChapter 20. General Provisions.\nChapter 20 sets out the general provisions applicable to the\nsentencing of criminal defendants. Authorized sentences for\nindividual (probation, fine, imprisonment, or death) and corporate\ndefendants (probation or fine) are described. Provision is made\nfor the preparation of presentence reports and appellate review of\nsentences.\nWorthy of note is Section 2004, which creates a new criminal\nsanction whereby an individual who has been found guilty of an\noffense involving fraud or other deceptive practices, or an organization\nthat has been found guilty of any criminal offense, may be ordered\nby the court to give notice of its conviction to those persons who are\naffected by the conviction or who are financially interested in the\nsubject matter of the offense.\nChapter 21. Probation.\nChapter 21 provides for the probation of criminal defendants.\nThis chapter sets out the provisions for its imposition, the conditions\nthat may be attached to it and a section providing for its revocation.\nSection 2103, which describes the conditions that may be attached to\nprobation, essentially enables a court to condition probation in any\n&\nFORD\nGERALD\nLIBRARY\n20\nmanner that might be conducive to the rehabilitation of the offender.\nIt sets forth a number of conditions to serve as examples of the\ntype of resourceful probationary measures that may be taken,\ne. g., meet family responsibilities, participate in community\nprograms, etc.\nChapter 22. Fines.\nChapter 22 is composed of four sections that establish the\nsystem of fines that may be imposed under the new title 18.\nUnder the Committee Print, a sentence to a fine may be\nimposed in addition to any other sentence. Perhaps the most\nnotable feature of the fine provisions is the establishment of a\ndifferent level of fines for individuals and corporations. An\nindividual may be fined up to $100,000; while a corporation may\nbe fined up to $500, 000. Since corporations are almost always\npossessed of greater assets than individuals, such a differentiation\nis appropriate. Also noteworthy is the alternative fine authorized\nby the Code. This provision is applicable to defendants who have\nderived pecuniary gain from or have caused loss to a victim by\ntheir offense. Such defendants may be fined up to twice the gain\nderived or twice the loss caused, whichever is the greater.\nChapter 23. Imprisonment.\nThis chapter contains those sections of the Code governing\nthe sentence of imprisonment. Under the new sentencing system,\nimprisonment may run from a maximum of life for a Class A\nfelony to no more than three years for a Class E felony; from not\nmore than one year for a Class A misdemeanor to a maximum of\nthirty days for a Class C misdemeanor; and to no more than five\ndays for an infraction.\nThe chapter sets out the criteria to be imposed in determining\na sentence of imprisonment and the rules that will govern the\nimposition of concurrent or consecutive sentences. Of particular\nnote is the retention and codification of provisions that permit an\nextended term of imprisonment for \"dangerous special offenders. \"\nFORD\nGERALD\nLIBRARIT\n21\nChapter 24. Death Sentence.\nThis chapter, composed of three sections, sets out the\nprocedure to be utilized in determining whether or not the\nsentence of death shall be imposed for those offenses for which\nit is provided. The Code adopts the procedure established by\nS. 1401, as that bill was passed by the Senate in March 1974.\nThus, it provides for a bifurcated or two-stage trial with its\nseparate sentencing hearing. It also sets out the specific\naggravating and mitigating factors that must be found to be\npresent or absent for the sentence of death to be imposed. If\none or more of the designated aggravating factors and none of\nthe mitigating factors is found to exist, the death sentence must\nbe imposed. If, on the other hand, none of the aggravating factors\nor one or more of the mitigating factors is found to be present,\nthe penalty may not be imposed.\nPart IV. Criminal Justice Administration and Procedure.\nThis part, composed of Chapters 30-38, codifies existing\nprocedural sections of Title 18. Four innovations are worthy of\nnote in this context.\nSupchapter A of Chapter 36 codifies the Federal Juvenile\nDelinquency Act and adopts the procedural changes recently\npassed by the Senate as the McClellan amendment to S. 821, the\nJuvenile Justice and Delinquency Prevention Act of 1974, which\nbecame Public Law 93-445 on September 7, 1974.\nSupchapter B of Chapter 36 provides for the first time in\nFederal law a civil commitment procedure applicable to individuals\nfound innocent of a Federal crime by reason of a defense of\ninsanity. Under current law, no opportunity for Federal treatment\nof such individuals is available since the only available civil\ncommitment procedures are found in State law.\nSubchapter C of Chapter 37 of the Committee Print would\nprovide for appellate review of criminal sentences in Federal courts.\nFORD\nBERALD\nLIBRARY\n22\nThis is accomplished by statute rather than amendment to the\nrules of criminal procedure. Section 3725 provides for so-called\n\"two-way review\" -- by the prosecutor and/or by the defendant.\nThe standard upon review is \"clearly unreasonable\". An appeal\nis not a matter of right but of grace, i.e., the government and\ndefendant are granted authority to file leave to appeal which may\nbe granted or denied by the appellate court.\nAn appeal would lie in the circuit court and thereafter the\nSupreme Court. Only sentences imposed upon conviction of a\nfelony which involve imprisonment for a term in excess of one-\nfifth of the authorized maximum would be appealable by the\ndefendant.\nSection 3812 establishes new Federal lien provisions\napplicable to unpaid criminal fines which parallel the statutory lien\ntreatment of unpaid Federal taxes. This should operate to guarantee\ngreater compliance with imposed Federal criminal fines.\nPart V. Ancillary Civil Proceedings.\nThis part (Chapters 40 and 41) contains two innovations\nwhich deserve attention.\nSection 4021 establishes a new civil injunction remedy which\nwould be available in mail fraud proceedings. S. 1 contained a much\nbroader authorization for utilization of the injunction remedy.\nSupchapter B of Chapter 41 incorporates a new program of\nlimited compensation to victims of Federal crimes. These provisions\nauthorize a civil court action against a revolving fund to be\nestablished on the books of the United States Treasury to compensate\nthe innocent victims of violent crimes for personal injury which\nthey may incur as the result of a specified crime.\nThe section is limited to the Federal level, i.e., Federal\ncompensation to victims of Federal crimes. There is no authorization\nfor appropriations provided. It is anticipated that demands against\nthe fund would be satisfied from increased fine levels, dividends\nto be declared by the Federal Prisons Industries Board and private\ncontributions.\n&\nFORD\nGERALD\nLIBRARY\n23\nWhite House Initiatives\nIn considering the appropriate role of the White House in the\ndevelopment of the code, four points should be borne in mind.\nFirst, the code is a government-wide project and not merely the\nconcern of the Department of Justice. Although Justice has served\na primary role in its development to date, the code will ultimately\nimpact on virtually every agency of the Federal government.\nSecondly, to the extent that the code constitutes a public statement\nof the Administration on virtually every criminal justice issue facing\nthe nation today, it should be reflective of President Ford's views.\nThirdly, the bill has historical significance especially in view of\nthe President's background as a lawyer. Finally, although a code is\na possibility in the 94th Congress, as a practical matter success will\nrequire White House support for the effort.\nTherefore, it would appear that we have some interest in\nshaping the content of the code as it may reflect on the President and\nin providing whatever assistance may be desirable and practicable in\nmoving it through the Congress.\nAt the present time, we can lay a groundwork for our\nparticipation in the development of a code over the next few years.\nFirst, the matter should be covered in the State of the Union as follows:\n(1) the need for codification should be endorsed; (2) the necessity of\nmaintaining the integrity of the code in the face of efforts to frac-\ntionalize it should be emphasized; (3) the President should call for\nthe logical development and refinement of the Senate bill by the House\nas opposed to a de novo review of the effort; and (4) the President\nshould indicate that, as he continues to be advised on various issues\npresented by the code, he will communicate his views to the appropriate\ncommittees of Congress.\nWe should also arrange to meet with Larry Silberman and\nRon Gainer (Code Unit at Justice) in order to reconsider major issues\npresented by the code and to discuss the possibilities for White House\nassistance. In this latter regard, it is extremely important that\nefforts be made to ensure that new appointments to the Hungate Sub-\ncommittee on the Republican side provide some balance to the\nmembership.\nFORD\nBERALD\nLIBRARY\n24\nAttachment\nAttached is a draft statement on the code project for possible\ninclusion in the State of the Union message. The draft was done\nby Justice and does not cover every point which I have noted above.\nHowever, it is a good- starting point and should give you a feel\nfor the rhetoric in this area.\nClosing Note\nWould you like me to arrange a meeting on this subject with Larry\nSilberman and others at Justice in order to explore our appropriate\nrole in the development of this project?\n$. FORD LIST\nThe problem of crime in our country continues to be of serious\nconcern. Increasingly it touches the lives of each of us. While the\ncontrol of crime is a matter primarily of State responsibility under our\nConstitution, there are several areas in which it is the principal\nresponsibility of the Federal Government and many other areas in which it\nis the responsibility of the Federal Government to augment the efforts of\nthe States when it becomes necessary.\nSeveral legislative approaches to the problem of crime have been\ntried by the Federal Government. Some have helped to alleviate the problem;\nsome have not. Those attempts that have sought to improve the law itself\nhave, on occasion, produced notable advances. But all such past attempts by\nthe Congress have suffered from the fact that, no matter how well-intended\nor how well-designed, they constituted a piecemeal approach to the problem.\nWe are still left in a situation where one of the most time-consuming\naspects of the criminal justice process is in determining what the law is.\nIf the entire body of criminal law could be clarified and simplified, the\ntime of judges and prosecutors and defense counsel could be devoted to the\nhandling of a greater number of cases fairly and expeditiously rather than\nengaging in endless litigation on fine points of legal interpretation.\nPiecemeal repair and improvement has proved to be inadequate.\nWhat is needed instead is a complete overhaul of the Federal criminal laws.\nA major overhaul of a significant segment of the criminal law has\nrecently been achieved by Congress's passage of the Federal Rules of Evidence.\nThe Judiciary Committees of the House of Representatives and the Senate VEFORD\nGERALD LISA\nto be commended, together with the Judicial Conference, for the painstaking\nwork that has at last codified this large body of law. But even this area\nis only a fraction of the Federal criminal law that requires overall revision\nand reform.\nI propose as a major goal of this Congress the passage of an\nentirely new Federal criminal code.\nThe stage has been set for such a monumental reform. In 1966,\nlargely through the efforts of then-Congressman Richard Poff, the Congress\nestablished a commission to evaluate means of reforming the Federal criminal\nlaws. The commission was formed, and, after three years' work under the\nchairmanship of former Governor Brown of California, it recommended to the\nCongress a \"work basis\" for a new Federal criminal code. After two years\nof Senate Judiciary Committee hearings on the subject, Senators McClellan,\nHruska, and Ervin introduced a bill encompassing a complete new code.\nThereafter, that Committee held extensive hearings for two more years, it\nworked closely with attorneys representing all departments and agencies of\nthe Executive Branch, and last October it produced a revised version of\nthe bill to create a new code.\nThe version of the code contained in the revised Senate bill is,\nI believe, markedly superior to all previous formulations. It will clarify\nthe law, simplify the law, and improve the law -- and, by doing so, it will\nmake the law more effective against criminal conduct at all levels. It will\nmake the law more effective against those who engage in organized criminal\nenterprises, and against those who deprive others of their constituti Gally\nFORD\nguaranteed civil rights; against those who attempt to corrupt our governmental\nLIBRAR\n-2-\nand political processes, and against those who seek to circumvent the law\nfor personal gain; against those who engage in crimes of violence, and against\nthose who unlawfully deposit poisonous industrial wastes into the Nation's\nrivers and streams; against those who engage in terrorist activities, and\nagainst those who prey upon the poor through fraudulent schemes and usurious\nloans. It will make the law more effective against all forms of criminal\nactivities.\nIn a work of this scope -- a scope that embodies all aspects of\nthe criminal laws -- not everyone will agree with every provision. But I\nthink everyone can agree that the bill is a monumental improvement over the\nexisting state of the law. The bill is the product of constructive\nbipartisan effort. It has my support and the support of this Administration,\nand it deserves the support of the Congress. I can think of no more\nappropriate a gift that the Congress might give the Nation, on the\ntwo-hundreth anniversary of its birth, than a modern body of laws balancing\nin a sensitive and sensible fashion the rights of free citizens with the\nneeds of a free society. I pledge to the Congress the full efforts of this\nAdministration to help make the promise of such a gift a reality.\nFURO is BERRID LIBRARY\n-3-\nTHE WHITE HOUSE\nWASHINGTON\nDate\n7/31/75\nTO:\nPHIL BUCHEN\nFROM:\nKEN LAZARUS\nACTION:\nApproval/Signature\nComments/Recommendations\nPrepare Response\nPlease Handle\nX\nFor Your Information\nFile\nREMARKS:\nP.\nFORD LIBRASE\nTHE PRESIDENT'S REMARKS UPON SIGNING\nH. R. 6799 INTO LAW\nJuly 31, 1975\nI am signing into law today H. R. 6799, the Federal Rules\nof Criminal Procedure Amendments Act of 1975.\nThe amendments, some of which have been worked on for\nmore than five years, make important changes in several existing\nrules and add some new ones. The overall effect of this\nlegislation is to improve the efficiency of the Federal criminal\njustice system and to enhance the fairness of criminal trials.\nThese goals are accomplished primarily through new Rules\nproviding for increased pretrial discovery to both the prosecution\nand the defense of information necessary to the preparation of the\ncase, and through new provisions governing the acceptance of\nguilty pleas and regulating, for the first time, the process of\nplea bargaining.\nMy heartfelt thanks are extended to the Judicial Conference\nof the United States which drafted the basic proposals, to the\nmembers of the bench and bar who contributed their wisdom and\nexpertise, and to the members of the Congressional committees who\ndevoted so much effort to resolving the difficult choices which were\npresented.\nI am sure that these amendments will further advance\nGERRID Lb the FORD LIBRARY\nFederal system of criminal justice.\nWednesday 7/30/75\n3:45 Ken has shown the Memo for the President to Rod Hills\nand he thought it was O.K. Mr. Hills initiated it.\nKen has taken it down to Jim Connor. The bill should\nbe here about 5 o'clock. Do you want to wait and\nlook at the bill when you return?\nOr shall someone\nread it to you?\nThe paper has to be on its way by\n7 this evening.\nConnor will get the paper and\nthe bill together to send on -- but can be changed if you\nhave a problem.\nLast paragraph says the Attorney General, Jim Cannon,\nJack Marsh and Jim Lynn all recommend. Ken has\nchecked with all of them.\nSuggests I send copies to all of them --particularly\nDick Parsons.\n4:30 Ken said there will be a note inserted at the top of the memo\nindicating they would like to have the bill signed as soon as\npossible, which would be July 31 (Helsinki time -- 12 a.m. 8/1 our time)\nThe bill should be down here by 5 o'clock.\n5:45 Gave the me ssage to Wilderotter, who is going to convey it\nto Mr. Buchen.\nHe will call back if ther e's a problem.\nIf we don't hear back, we can assume it's O.K.\n(Told him Lazarus said basically there's just the change of signing\ndate -- now it would be signed July 31 rather than August 1 --\nthen there would be no need to note the actual time and place on the\nbill itself.)\nFORD i LIBRARY GENALD\nCopy for\nTHE WHITE HOUSE\nMr. Bucken\nWASHINGTON\nJuly 30, 1975\nMEMORANDUM FOR THE PRESIDENT\nTHROUGH:\nPHILIP BUCHEN by R.H.\nFROM:\nKENNETH LAZARUS\nSUBJECT:\nEnrolled Bill: H.R. 6799, the Federal Rules\nof Criminal Procedure Amendments Act of 1975\nThis is to present the referenced bill for your immediate\nattention. In order to be absolutely certain that it is\neffective, the measure must be signed into law before August\n1 (Washington time) -- 6:00 A.M., Friday, August 1 (Helsinki\ntime).\nBackground\n1. Enabling Acts. 18 U.S.C. Sections 3402, 3771 and 3772\nconstitute the Federal criminal rules enabling acts. By\nthese provisions, the United States Supreme Court is empowered\nto promulgate rules of practice and procedure to govern criminal\nproceedings in our various Federal courts. The authority of\nthe Supreme Court to promulgate such rules is limited, however,\nby a reserved power of Congress to disapprove any promulgated\nrule within a period of 90 days from the date of transmission to\nCongress or the prescribed effective date of the rule whichever\nis later. Moreover, the Congress is, of course, empowered to\naffirmatively legislate in this area at any time.\n2. 1974 Criminal Rules. By order dated April 22, 1974, the\nChief Justice transmitted to Congress a package of proposed\nchanges to the Federal Rules of Criminal Procedure which were\nto take effect on August 1, 1974, absent Congressional disapproval.\n3. Delayed Effective Date. Pub. L. 93-361, July 30, 1974, 88\nStat. 397 provided that the effective date of the proposed changes\nto the Federal Rules of Criminal Procedure which were embraced by\nthe Supreme Court order of April 22, 1974, was postponed until\nAugust 1, 1975.\n4. Enrolled Bill. H.R. 6799 contains a series of desirable\namendments to the Rules as promulgated by the Supreme Court\nGERALD LIBRARY\n2\non April 22, 1974. However, in order to be absolutely cer-\ntain that they are carried into effect, it is necessary to\nsecure Presidential approval of the legislation before August\n1, 1975. Approval on August 1 could, create considerable\nconfusion and litigation. Approval after August 1 could\nbe a complete nullity as the Rules promulgated on April\n22, 1. 1974, are deisgned to automatically take effect on August\nDiscussion\nThe Department of Justice strongly supported most of the\namendments (and all of the major ones) contained in H.R. 6799.\nTwo provisions are worthy of mention here.\n1. Rules 4 and 9. The enrolled bill rejects the Supreme\nCourt's proposal to transfer the discretion as to whether to\nuse an arrest warrant or a summons, now exercised by United\nStates Attorneys, to the district courts. In the view of\nthe Department, the Court's proposal, because of its tendency\nto increase the use of a summons, thereby alerting a person\nthat a criminal charge is imminent, would have exacerbated\nthe problem of fugitivity as well as caused a loss of in-\ncriminating evidence.\n2. Rule 16. The enrolled bill also rejects the Supreme\nCourt's proposal to provide for mandatory pre-trial dis-\nclosure of government witnesses. The Court's proposal\nportended an increase in witness intimidation, assault and\nassassination, as well as an aggravation of the already\ndifficult task of obtaining witness cooperation. In\nthis area, too, the bill would leave current law intact.\nH.R. 30. 6799 passed the House and Senate by voice vote on July\nRecommendation\nDue to the press of time, it was not possible to process this\nmeasure in the normal fashion. However, the Attorney General,\nJim Cannon, Jack Marsh, Jim Lynn and Counsel's Office recommend\nyou sign the subject bill into law as soon as possible and not\nlater than 6:00 A.M., Friday August 1 (Helsinki Time).\nFORD\nis\nGERALD\nLIBRARY\nTHE WHITE HOUSE\nWASHINGTON\nJuly 29, 1975\nMEMO FOR:\nPHIL BUCHEN\nFROM:\nKEN LAZARUS\nAttached is a draft memorandum on the\ncriminal rules legislation.\nYou should receive the letter from the Attorney\nGeneral which is referred to at page 2 early\ntomorrow morning.\nBob Linder advises me that he has requested\nOMB to prepare the memo referred to on\npage 2.\nI have done what is possible to ensure that the\nenrolled bill will be presented to the White House\nas soon as humanly possible and will continue\nto keep on top of Congressional action.\nThe memo at page 3 indicates that Cannon, Marsh\nand Lynn concur in the recommendation of the\nAttorney General and Counsel's Office. This\nhas not yet been obtained and you might take the\nopportunity of tomorrow morning's staff meeting\nto secure their approval.\nLIBRARY\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nDRAFT\nJuly 29, 1975\nMEMORANDUM FOR THE PRESIDENT\nTHROUGH:\nPHILIP BUCHEN\nFROM:\nKEN LAZARUS\nSUBJECT:\nEnrolled Bill: H.R. 6799, the Federal Rules\nof Criminal Procedure Amendments Act of 1975\nThis is to present the referenced bill for your immediate attention.\nIn order to be effective, the measure must be signed into law before\nAugust 2 (Washington time) -- 6:00 A. M., Saturday, August 2\n(Helsinki time).\nBackground\n1. Enabling Acts. 18 U.S.C. Sections 3402, 3771 and 3772\nconstitute the Federal criminal rules enabling acts. By these\nprovisions, the United States Supreme Court is empowered to\npromulgate rules of practice and procedure to govern criminal\nproceedings in our various Federal courts. The authority of\nthe Supreme Court to promulgate such rules is limited, however,\nby a reserved power of Congress to disapprove any promulgated\nrule within a period of 90 days from the date of transmission to\nCongress or the prescribed effective date of the rule whichever\nis later. Moreover, the Congress is, of course, empowered to\naffirmatively legislate in this area at any time.\n2. 1974 Criminal Rules. By order dated April 22, 1974, the\nChief Justice transmitted to Congress a package of proposed\nchanges to the Federal Rules of Criminal Procedure which were\nto take effect on August 1, 1974, absent Congressional disapproval.\n3. Delayed Effective Date. Pub. L. 93-361, July 30, 1974, 88\nStat. 397 provided that the effective date of the proposed changes to\nthe Federal Rules of Criminal Procedure which were embraced byoko\nthe Supreme Court order of April 22, 1974, was postponed until\nAugust 1, 1975.\nGERAL\nLIBRARY\n- 2 -\n4. Enrolled Bill. H.R. 6799 contains a series of desirable\namendments to the Rules as promulgated by the Supreme Court\non April 22, 1974. However, in order to ensure that they become\neffective, it is necessary to secure Presidential approval of the\nlegislation by August 1, 1975. Approval after August 1 would,\nat a minimum, create considerable confusion and litigation. Indeed,\nsubsequent approval could be a complete nullity as the Rules\npromulgated on April 22, 1974, automatically take effect on August 1.\nDiscussion\nThe Department of Justice strongly supported most of the\namendments (and all of the major ones) contained in H. R. 6799\n(see letter from the Attorney General at Tab A). Two provisions\nare worthy of mention here.\n1.\nRules 4 and 9. The enrolled bill rejects the Supreme Court's\nproposal to transfer the discretion as to whether to use an arrest\nwarrant or a summons, now exercised by United States Attorneys,\nto the district courts. In the view of the Department, the Court's\nproposal, because of its tendency to increase the use of a summons,\nthereby alerting a person that a criminal charge is imminent,\nwould have exacerbated the problem of fugitivity as well as caused\na loss of incriminating evidence.\n2. Rule 16. The enrolled bill also rejects the Supreme Court's\nproposal to provide for mandatory pre-trial disclosure of government\nwitnesses. The Court's proposal portended an increase in witness\nintimidation, assault and assassination, as well as an aggravation\nof the already difficult task of obtaining witness cooperation. In\nthis area, too, the bill would leave current law intact.\nRecommendation\nDue to the press of time, it was not possible to process this measure\nin the normal fashion. However, an OMB memorandum is attached\nfor additional information (Tab B).\nGERALD\nLIBRARY\n- 3 -\nThe Attorney General, Jim Cannon, Jack Marsh, Jim Lynn\nand Counsel's Office recommend you sign the subject bill into\nlaw as soon as possible and not later than 6:00 A. M., Saturday,\nAugust 2 (Helsinki time).\nAdditionally, in view of the possibility that the timing of the\nlegislation vis-a-vis the Court's Rules may someday be the subject\nof litigation, I suggest that you also note the exact time, date and\nlocation on the enrolled bill and have your approval witnessed by\na member of the staff who would then be available to provide the\nDepartment of Justice with an appropriate affidavit.\nGERALD R. FORD\nOFFICE OF\nTHE ATTORNEY GENERAL\nFROM DONNA JUSTITIA\n7/29/75\nKen:\nIf we have this signed, is this\nsufficient?\nDoug Marvin\n13\nLIBRARY\nOffice of the Attorney General\nTRO\nSEQUITURE\nDONATE\nWashington, D. C.\nJUSTITIS\nHonorable Philip W. Buchen\nCounsel to the President\nThe White House\nWashington, D.C. 20500\nDear Mr. Buchen:\nI am writing to you in regard to H.R. 6799, the \"Federal Rules of\nCriminal Procedure Amendments Act of 1975,\" which I am advised will be\nenacted by the Congress on July 30 or 31, 1975.\nIn brief, the background of the bill is that in April of 1974, the\nSupreme Court promulgated a series of amendments to the Federal Rules of\nCriminal Procedure pursuant to 18 U.S.C. 3771 and 3772. The amendments\nwere to become effective on August 1, 1974. In order to give itself time\nto consider the amendments, Congress enacted a statute deferring the\neffective date of the proposed amendments to August 1, 1975 (P.L. 93-361).\nThe present legislation, H.R. 6799, is the result of that congressional\nconsideration and embodies several significant modifications favorable to the\nDepartment of Justice. These include rejection of the Court proposals (1) to\ntransfer the discretion as to whether to use an arrest warrant or a summons,\nnow exercised by United States Attorneys under Rules 4 and 9, to the district\ncourts, and (2) to provide for mandatory pre-trial disclosure of government\nwitnesses. The bill leaves current law intact in both these areas. In the\nview of the Department, the first proposal, because of its tendency to increase\nthe use of a summons, thereby alerting a person that a criminal charge is\nimminent, would have exacerbated the problem of fugitivity as well as caused\na loss of incriminating evidence. The second proposal was even more serious\nand portended an increase in witness intimidation, assault, and assassination,\nas well as an aggravation of the already difficult task of obtaining witness\ncooperation. In addition to the foregoing aspects, the bill contains positive\nfeatures, including new Rules setting forth procedures governing plea bargaining\nand for notification to the government in advance of trial of a defendant's\nintent to offer a defense of alibi or insanity. The Department of Justice\nstrongly supported most of the amendments (and all of the major ones) made\nby Congress to the pending Rules.\nCORD\nGERAL\nLIBRAST\n- 2 -\nThere is, however, a serious problem concerning the time in which the\nlegislation must be signed by the President to be effective. As previously\nindicated, unless superseded by law, the Supreme Court's proposed Rules will\nautomatically take effect on August 1, 1975. It is uncertain, due to the\nambiguous wording of H.R. 6799, whether if approved after August 1, 1975,\nthe bill would be deemed to supersede the then in force Supreme Court\nproposals, and whether, if so, the Court's proposals would nonetheless\nremain in effect until December 1, 1975, the effective date of H.R. 6799.\nIt seems evident, in any event, that approval after August 1 would create\nconsiderable confusion and litigation. To ensure, therefore, that the\nfruits of H.R. 6799 are not lost or delayed, I urge you to make every effort\nto secure Presidential approval of the legislation by August 1, 1975. All\nlegal problems could clearly be avoided if Presidential approval on July 31,\n(OF)\n1975, were obtained. However, if this proves impossible, it is my understanding\nthat the President's approval of the bill at any time on August 1 would be\ndeemed retroactive to the first instant of that date and accordingly would be\nabout. sufficient to prevent the adverse consequences mentioned above from coming\n(Washington\nSincerely,\nEdward H. Levi\nAttorney General\nLIBRARY\nTHE PRESIDENT'S REMARKS UPON SIGNING\nH. R. 6799 INTO LAW\nJuly 31, 1975\nI am signing into law today H. R. 6799, the Federal Rules\nof Criminal Procedure Amendments Act of 1975.\nThe amendments, some of which have been worked on for\nmore than five years, make important changes in several existing\nrules and add some new ones. The overall effect of this\nlegislation is to improve the efficiency of the Federal criminal\njustice system and to enhance the fairness of criminal trials.\nThese goals are accomplished primarily through new Rules\nproviding for increased pretrial discovery to both the prosecution\nand the defense of information necessary to the preparation of the\ncase, and through new provisions governing the acceptance of\nguilty pleas and regulating, for the first time, the process of\nplea bargaining.\nMy heartfelt thanks are extended to the Judicial Conference\nof the United States which drafted the basic proposals, to the\nmembers of the bench and bar who contributed their wisdom and\nexpertise, and to the members of the Congressional committees who\ndevoted so much effort to resolving the difficult choices which were\npresented.\nI am sure that these amendments will further advance the\nFederal system of criminal justice.\nLIBRARY GERALD ? FORD\nTHE PRESIDENT'S REMARKS UPON SIGNING\nH. R. 6799 INTO LAW\nJuly 31, 1975\nI am signing into law today H. R. 6799, the Federal Rules\nof Criminal Procedure Amendments Act of 1975.\nThe amendments, some of which have been worked on for\nmore than five years, make important changes in several existing\nrules and add some new ones. The overall effect of this\nlegislation is to improve the efficiency of the Federal criminal\njustice system and to enhance the fairness of criminal trials.\nThese goals are accomplished primarily through new Rules\nproviding for increased pretrial discovery to both the prosecution\nand the defense of information necessary to the preparation of the\ncase, and through new provisions governing the acceptance of\nguilty pleas and regulating, for the first time, the process of\nplea bargaining.\nMy heartfelt thanks are extended to the Judicial Conference\nof the United States which drafted the basic proposals, to the\nmembers of the bench and bar who contributed their wisdom and\nexpertise, and to the members of the Congressional committees who\ndevoted so much effort to resolving the difficult choices which were\npresented.\nI am sure that these amendments will further advance the\n&\nFederal system of criminal justice.\nFORD\nGERALD\nLIBRAMY\nTHE PRESIDENT'S REMARKS UPON SIGNING\nH. R. 6799 INTO LAW\nJuly 31, 1975\nI am signing into law today H. R. 6799, the Federal Rules\nof Criminal Procedure Amendments Act of 1975.\nThe amendments, some of which have been worked on for\nmore than five years, make important changes in several existing\nrules and add some new ones. The overall effect of this\nlegislation is to improve the efficiency of the Federal criminal\njustice system and to enhance the fairness of criminal trials.\nThese goals are accomplished primarily through new Rules\nproviding for increased pretrial discovery to both the prosecution\nand the defense of information necessary to the preparation of the\ncase, and through new provisions governing the acceptance of\nguilty pleas and regulating, for the first time, the process of\nplea bargaining.\nMy heartfelt thanks are extended to the Judicial Conference\nof the United States which drafted the basic proposals, to the\nmembers of the bench and bar who contributed their wisdom and\nexpertise, and to the members of the Congressional committees who\ndevoted so much effort to resolving the difficult choices which were\npresented.\nI am sure that these amendments will further advance the\nFederal system of criminal justice.\nTHE PRESIDENT'S REMARKS UPON SIGNING\nH. R. 6799 INTO LAW\nJuly 31, 1975\nI am signing into law today H. R. 6799, the Federal Rules\nof Criminal Procedure Amendments Act of 1975.\nThe amendments, some of which have been worked on for\nmore than five years, make important changes in several existing\nrules and add some new ones. The overall effect of this\nlegislation is to improve the efficiency of the Federal criminal\njustice system and to enhance the fairness of criminal trials.\nThese goals are accomplished primarily through new Rules\nproviding for increased pretrial discovery to both the prosecution\nand the defense of information necessary to the preparation of the\ncase, and through new provisions governing the acceptance of\nguilty pleas and regulating, for the first time, the process of\nplea bargaining.\nMy heartfelt thanks are extended to the Judicial Conference\nof the United States which drafted the basic proposals, to the\nmembers of the bench and bar who contributed their wisdom and\nexpertise, and to the members of the Congressional committees who\ndevoted so much effort to resolving the difficult choices which were\npresented.\nI am sure that these amendments will further advance the\nFederal system of criminal justice.\nTHE PRESIDENT'S REMARKS UPON SIGNING\nH. R. 6799 INTO LAW\nJuly 31, 1975\nI am signing into law today H. R. 6799, the Federal Rules\nof Criminal Procedure Amendments Act of 1975.\nThe amendments, some of which have been worked on for\nmore than five years, make important changes in several existing\nrules and add some new ones. The overall effect of this\nlegislation is to improve the efficiency of the Federal criminal\njustice system and to enhance the fairness of criminal trials.\nThese goals are accomplished primarily through new Rules\nproviding for increased pretrial discovery to both the prosecution\nand the defense of information necessary to the preparation of the\ncase, and through new provisions governing the acceptance of\nguilty pleas and regulating, for the first time, the process of\nplea bargaining.\nMy heartfelt thanks are extended to the Judicial Conference\nof the United States which drafted the basic proposals, to the\nmembers of the bench and bar who contributed their wisdom and\nexpertise, and to the members of the Congressional committees who\ndevoted so much effort to resolving the difficult choices which were\npresented.\nis\nrond\nI am sure that these amendments will further advance the\nLIBRAR,\nFederal system of criminal justice.\nTHE PRESIDENT'S REMARKS UPON SIGNING\nH. R. 6799 INTO LAW\nJuly 31, 1975\nI am signing into law today H. R. 6799, the Federal Rules\nof Criminal Procedure Amendments Act of 1975.\nThe amendments, some of which have been worked on for\nmore than five years, make important changes in several existing\nrules and add some new ones. The overall effect of this\nlegislation is to improve the efficiency of the Federal criminal\njustice system and to enhance the fairness of criminal trials.\nThese goals are accomplished primarily through new Rules\nproviding for increased pretrial discovery to both the prosecution\nand the defense of information necessary to the preparation of the\ncase, and through new provisions governing the acceptance of\nguilty pleas and regulating, for the first time, the process of\nplea bargaining.\nMy heartfelt thanks are extended to the Judicial ,Conference\nof the United States which drafted the basic proposals, to the\nmembers of the bench and bar who contributed their wisdom and\nexpertise, and to the members of the Congressional committees who\ndevoted so much effort to resolving the difficult choices which were\npresented.\nis\ntuko\nRALD\nI am sure that these amendments will further advance the\nLIBRARY\nFederal system of criminal justice.\nWednesday 7/30/75\n3:45 Ken has shown the Memo for the President to Rod Hills\nand he thought it was O.K. Mr. Hills initiated it.\nKen has taken it down to Jim Connor. The bill should\nbe here about 5 o'clock. Do you want to wait and\nlook at the bill when you return?\nOr shall someone\nread it to you?\nThe paper has to be on its way by\n7 this evening.\nConnor will get the paper and\nthe bill together to send on -- but can be changed if you\nhave a problem.\nLast paragraph says the Attorney General, Jim Cannon,\nJack Marsh and Jim Lynn all recommend, Ken has\nchecked with all of them.\nSuggests I send copies to all of them --particularly\nDick Parsons.\n4:30 Ken said there will be a note inserted at the top of the memo\nindicating they would like to have the bill signed as soon as\npossible, which would be July 31 (Helsinki time -- 12 a.m. 8/1 our time)\nThe bill should be down here by 5 o'clock.\n5:45 Gave the me ssage to Wilderotter, who is going to convey it\nto Mr. Buchen.\nHe will call back if ther e's a problem.\nIf we don't hear back, we can assume it's O.K.\n(Told him Lazarus said basically there's just the change of signing\ndate -- now it would be signed July 31 rather than August 1 --\nthen there would be no need to note the actual time and place on the\nbill itself.)\n:\nFORD\nGERALD\nLIBRARY\nTHE WHITE HOUSE\nWASHINGTON\nJuly 30, 1975\nMEMORANDUM FOR THE PRESIDENT\nTHROUGH:\nPHILIP BUCHEN\nly R. H.\nFROM:\nKENNETH LAZARUS\nSUBJECT:\nEnrolled Bill: H.R. 6799, the Federal Rules\nof Criminal Procedure Amendments Act of 1975\nThis is to present the referenced bill for your immediate\nattention. In order to be absolutely certain that it is\neffective, the measure must be signed into law before August\n1 (Washington time) -- 6:00 A.M., Friday, August 1 (Helsinki\ntime)\nBackground\n1. Enabling Acts. 18 U.S.C. Sections 3402, 3771 and 3772\nconstitute the Federal criminal rules enabling acts. By\nthese provisions, the United States Supreme Court is empowered\nto promulgate rules of practice and procedure to govern criminal\nproceedings in our various Federal courts. The authority of\nthe Supreme Court to promulgate such rules is limited, however,\nby a reserved power of Congress to disapprove any promulgated\nrule within a period of 90 days from the date of transmission to\nCongress or the prescribed effective date of the rule whichever\nis later. Moreover, the Congress is, of course, empowered to\naffirmatively legislate in this area at any time.\n2. 1974 Criminal Rules. By order dated April 22, 1974, the\nChief Justice transmitted to Congress a package of proposed\nchanges to the Federal Rules of Criminal Procedure which were\nto take effect on August 1, 1974, absent Congressional disapproval.\n3. Delayed Effective Date. Pub. L. 93-361, July 30, 1974, 88\nStat. 397 provided that the effective date of the proposed changes\nto the Federal Rules of Criminal Procedure which were embraced by\nthe Supreme Court order of April 22, 1974, was postponed until\nAugust 1, 1975.\n4. Enrolled Bill. H.R. 6799 contains a series of desirable\namendments to the Rules as promulgated by the Supreme Court\nBERAND\nLIBRARY\n2\non April 22, 1974. However, in order to be absolutely cer-\ntain that they are carried into effect, it is necessary to\n1, 1975. Approval on August 1 could, create considerable\nsecure Presidential approval of the legislation before August\nconfusion and litigation. Approval after August 1 could\nbe a complete nullity as the Rules promulgated on April\n1. 22, 1974, are deisgned to automatically take effect on August\nDiscussion\nThe Department of Justice strongly supported most of the\namendments (and all of the major ones) contained in H.R. 6799.\nTwo provisions are worthy of mention here.\n1. Rules 4 and 9. The enrolled bill rejects the Supreme\nCourt's proposal to transfer the discretion as to whether to\nuse an arrest warrant or a summons, now exercised by United\nStates Attorneys, to the district courts. In the view of\nthe Department, the Court's proposal, because of its tendency\nthe increase the use of a summons, thereby alerting a person\nthat a criminal charge is imminent, would have exacerbated\nthe problem of fugitivity as well as caused a loss of in-\ncximinating evidence.\n22. Rule 16. The enrolled bill also rejacts the Supreme\nCourt's proposal to provide for mandatory pre-trial dis-\nclosure of government witnesses. The Court's proposal\npurtended an increase in witness intimidation, assault and\nassassination, as well as an aggravation of the already\ndifficult task of obtaining witness cooperation. In\nthis area, too, the bill would leave current law intact.\nH.R. 6799 passed the House and Senate by voice vote on July\n330.\nRecommendation\nDue to the press of time, it was not possible to process this\nmeasure in the normal fashion. However, the Attorney General,\nJhim Cannon, Jack Marsh, Jim Lynn and Counsel's Office recommend\nyou sign the subject bill into law as soon as possible and not\nlater than 6:00 A.M., Friday August 1 (Helsinki Time).\nGERALD\nLIBRARY\nTHE WHITE HOUSE\nWASHINGTON\nJuly 30, 1975\nMEMORANDUM FOR THE PRESIDENT\nTHROUGH:\nPHILIP BUCHEN\nly R. H.\nFROM:\nKENNETH LAZARUS\nSUBJECT:\nEnrolled Bill: H.R. 6799, the Federal Rules\nof Criminal Procedure Amendments Act of 1975\nThis is to present the referenced bill for your immediate\nattention. In order to be absolutely certain that it is\neffective, the measure must be signed into law before August\n1 (Washington time) -- 6:00 A.M., Friday, August 1 (Helsinki\ntime).\nBackground\n1. Enabling Acts. 18 U.S.C. Sections 3402, 3771 and 3772\nconstitute the Federal criminal rules enabling acts. By\nthese provisions, the United States Supreme Court is empowered\nto promulgate rules of practice and procedure to govern criminal\nproceedings in our various Federal courts. The authority of\nthe Supreme Court to promulgate such rules is limited, however,\nby a reserved power of Congress to disapprove any promulgated\nrule within a period of 90 days from the date of transmission to\nCongress or the prescribed effective date of the rule whichever\nis later. Moreover, the Congress is, of course, empowered to\naffirmatively legislate in this area at any time.\n2. 1974 Criminal Rules. By order dated April 22, 1974, the\nChief Justice transmitted to Congress a package of proposed\nchanges to the Federal Rules of Criminal Procedure which were\nto take effect on August 1, 1974, absent Congressional disapproval.\n3. Delayed Effective Date. Pub. L. 93-361, July 30, 1974, 88\nStat. 397 provided that the effective date of the proposed changes\nto the Federal Rules of Criminal Procedure which were embraced by\nthe Supreme Court order of April 22, 1974, was postponed until\nAugust 1, 1975.\n4. Enrolled Bill. H.R. 6799 contains a series of desirable\namendments to the Rules as promulgated by the Supreme Court\nLIBRARY\n2\non April 22, 1974. However, in order to be absolutely cer-\ntain that they are carried into effect, it is necessary to\nsecure Presidential approval of the legislation before August\n1, 1975. Approval on August 1 could, create considerable\nconfusion and litigation. Approval after August 1 could\nbe a complete nullity as the Rules promulgated on April\n22, 1. 1974, are deisgned to automatically take effect on August\nDiscussion\nThe Department of Justice strongly supported most of the\namendments (and all of the major ones) contained in H.R. 6799.\nTwo provisions are worthy of mention here.\n1. Rules 4 and 9. The enrolled bill rejects the Supreme\nCourt's proposal to transfer the discretion as to whether to\nuse an arrest warrant or a summons, now exercised by United\nStates Attorneys, to the district courts. In the view of\nthe Department, the Court's proposal, because of its tendency\nto increase the use of a summons, thereby alerting a person\nthat a criminal charge is imminent, would have exacerbated\nthe problem of fugitivity as well as caused a loss of in-\ncriminating evidence.\n2. Rule 16. The enrolled bill also rejects the Supreme\nCourt's proposal to provide for mandatory pre-trial dis-\nclosure of government witnesses. The Court's proposal\nportended an increase in witness intimidation, assault and\nassassination, as well as an aggravation of the already\ndifficult task of obtaining witness cooperation. In\nthis area, too, the bill would leave current law intact.\nH.R. 6799 passed the House and Senate by voice vote on July\n30.\nRecommendation\nDue to the press of time, it was not possible to process this\nmeasure in the normal fashion. However, the Attorney General,\nJim Cannon, Jack Marsh, Jim Lynn and Counsel's Office recommend\nyou sign the subject bill into law as soon as possible and not\nlater than 6:00 A.M., Friday August 1 (Helsinki Time).\nLIBRARY"
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