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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Testimony Approval\nBox: 53\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nMEMORANDUM\nTHE WHITE HOUSE\nWASHINGTON\nJuly 11, 1983\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS are\nSUBJECT:\nDraft Statement Before Members of\nSubcommittee on Alcoholism and Drug\nAbuse on DEA's Views on \"Look-Alike Drugs\"\nA representative of DEA (as yet unidentified) proposes to\ndeliver the above-referenced statement on July 14. The\ntestimony concerns \"look-alike\" drugs, which are legal,\nnon-controlled substances designed and marketed to resemble\ncontrolled substances and mimicking their effect, though on\na smaller scale. For example, a typical \"look-alike\" is a\nlegitimate caffeine capsule with the same shape and coloring\nas a popular, illegal \"speed\" capsule. The testimony notes\nthree general problems with the \"look-alike\" industry: (1)\n\"look-alikes\" can be abused when taken in large quantities,\n(2) they contribute to acceptance of the view that drugs\nshould be consumed not for medicinal purposes but for\npleasure, and (3) serious consequences attend the confusion\nbetween \"look-alikes\" and the real things -- e.g., someone\naccustomed to taking six caffeine \"look-alike\" tablets could\neasily kill himself if he took six of the speed tablets the\n\"look-alikes\" were designed to resemble.\nThe testimony notes DEA's success in promulgating a model\nact addressed to the \"look-alike\" problem, its efforts to\neducate appropriate officials concerning the problem, the\nrole of the legitimate pharmaceutical industry in declining\norders to produce \"look-alikes,\" and inter-agency\ncooperative efforts. In general the testimony urges caution\nin addressing the problem through federal legislation.\nThe second sentence on page 6 bemoans the fact that \"no\nsingle Federal agency has jurisdiction over all facets of\nthis drug abuse problem.\" Such language plays directly into\nthe hands of those who support creation of a drug czar, and\ncould be very embarrassing to the Administration should this\ndebate be joined anew. We should recommend deletion of the\nsentence.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nJuly 11, 1983\nMEMORANDUM FOR GREGORY JONES\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nDraft Statement Before Members of\nSubcommittee on Alcoholism and Drug\nAbuse on DEA's Views on \"Look-Alike Drugs\"\nCounsel's Office has reviewed the above-referenced draft\ntestimony. The second sentence on page 6 should be deleted,\nsince it plays into the hands of those who favor creation of\na \"drug czar\" with jurisdiction over all aspects of the drug\nabuse problem, something the Administration has strongly\nopposed. We have no other objections.\nFFF:JGR:aw 7/11/83\nCC: FFFielding\nJGRoberts\nSubj.\nChron\nID #.\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\nD\nOUTGOING\n*H - INTERNAL\nI INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nGREG JONES\nMI Mall Report\nUser Codes: (A)\n(B)\n(C)\nSubject: Draft Stalement before Members 8 Subcommittee\non alcoholism and Drug abuse h DEA'S views on\nbok-alike drugs\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCUHollend\nORIGINATOR 83,07,11\n/\n/\nReferral Note:\nWAT18\nA 8307,11\n5 83,07,13\nReferral Note:\n/ /\n/ /\nReferral Note:\n/\n/\n/ 1\nReferral Note:\n/\n/\n/\n/\nReferral Note:\nACTION CODES:\nDISPOSTTION LODES:\nA - Appropriate Action\n1 - Info Copy Only/No Action Necessary\nWA Answered\nc Completed\nc Comment/Recommendation\nR Direct Reply W/Copy\nMB -Non-Special Referral\nIS Suspended\nD Draft Response\nS For Signature\nF Furnish Fact Sheet\nX -Interim:Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response ****itials of Signer\nCode\nCompletion Date Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming latter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nUKALN\nJuly 14, 1983\nChairman Humphrey and Members of the Subcommittee on Alcoholism and Drug Abuse:\nThank you for this opportunity to provide you with DEA's views on the\nstatus of the problem of look-alike drugs. Over the past two years much has\nbeen done at the federal and state levels to attempt to bring this activity\nunder control. From DEA's perspective, these initiatives have had a\nsignificant impact on the look-alike problem. The precipitous growth of this\nphenomenom seen in 1980 and 1981 has been arrested and, in a number of areas,\nthere has been a substantial decline in the availability of look-alikes. I\nhasten to add however that a problem remains, albeit in a different form and\nof a smaller magnitude. We are faced with a dynamic situation in which some\nof those involved appear willing and capable of adapting rather than going out\nof business. Because of the combined Federal and State attack, the look-alike\nindustry has changed considerably over the past two years; so much so that if\nlegislation were passed based on the problem as it existed in 1981, most of\ntoday's problem would fall outside its scope. The changing nature of the\nproblem makes it magnitude difficult to assess. Nevertheless, I will attempt\nto characterize the look-alike situation as I see it today and then describe\nthe actions taken by DEA, their impact and our future direction.\nNature of the Look-Alike Problem\nIn spite of the sudden explosive growth of this problem, look-alikes have\nbeen around for a number of years. In the mid-seventies, an organization known\nas Peashooter was selling bogus amphetamines to truck drivers in many Southern\nstates. The head of this organization eventually started his own company\ndevoted solely to the production and distribution of look-alikes.\nDRAFT\nBy 1980, this phenomenon had spread across the nation. By 1981 it was\nestimated that at least 10 companies were manufacturing look-alikes and over\n200 wholesalers were distributing them. During 1979 and 1980 DEA laboratories\nanalyzed 1462 exhibits and over 500,000 dosage units of look-alikes.\nDuring this period the term look-alikes referred to tablets, capsules or\nother substances containing noncontrolled, over-the-counter (OTC) ingredients,\nwhich closely resembled well-known, highly abused controlled drug products.\nDistributors were advertising these products as the legal way to get high,\ndirectly implying that the look-alikes could be sold as controlled substances.\nThe look-alikes were sold in containers without proper labels, warnings or\ndescriptions of the contents. Quality control was virtually nonexistent.\nUnethical entrepreneurs were making huge profits by using loopholes in\nsociety's legal and regulatory apparatus to peddle drugs and the concept of\ndrug abuse to the nation's youth.\nIn late 1981 the Federal and state governments became actively involved\nin the battle against look-alikes. Some of the regulatory loopholes were\nclosed but unfortunately others were found. Today the problem we face refers\npredominantly to those products which, although not manufactured to closely\nresemble controlled drug products, are promoted in the same manner and contain\nthe same ingredients as those resembling controlled products. Many of the\nlook-alike products, at least at the manufacturer level, are now sold in\nproperly labelled containers with appropriate warnings. Usually the active\ningredients and their quantities are identified on the label. Many of the\nlook-alikes bear trademarks which the manufacturers say prevent them from being\nconfused with other products. Further some of the look-alikes are imprinted\nwith National Drug Code (NDC) numbers and have specific brand names.\nDRAFT,\nThey are advertised as stimulants, diet aids, appetite suppressants,\ndecongestants and sleep aids. Generally, the more recent generations of\nlook-alikes are not overtly represented as controlled products.\nOnce these products reach the street, or retail level user, however, they\nare may be removed from their labelled bottles and contain no warnings or\nprecautions about their use. The message to the user is the same as with the\noriginal look-alikes: that drugs should be used for thrills and not solely\nfor legitimate medical reasons. Despite all the publicity surrounding look-\nalikes, there appears to be a number of people who still perceive them to be\nreal controlled substances. Still others who are well aware of the contents\nand effects of look-alikes, continue to abuse them. In either case look-alike\nstimulants mimic the appearance or effects of amphetamine-type products and\ngenerally contain one or more of the following OTC ingredients: caffeine,\nephedrine, pseudoephedrine and phenylpropanolamine. The depressant look-alikes\nmimic the appearance or effects of sedative or hypnotic drugs such as Quaalude,\nValium and Librium and generally contain combinations of the following\ningredients: acetaminophen, salicylamide, doxylamine and chlorpheniramine.\nDRAFT.\nAlthough they are legitimately used as nasal decongestants, analgesics,\nor for the relief of cold, allergy or asthma symptoms, the look-alike\ningredients can produce mild stimulant or depressant effects and have caused\nserious injury to those who ingest large quantities. Moreover, many use\nlook-alikes along with alcohol. There have been several documented reports\nof cerebral hemmorrhage and severe hypertension associated with the use of\nstimulant look-alikes. Reactions to look-alikes may range from nervousness,\ninsomnia or drowsiness to tachycardia, sharp rises in blood pressure, cerebral\nhemmorrhage, cardiac arrhythmias and temporary psychotic episodes. Emergency\nrooms have reported many episodes of adverse reactions associated with the use\nof look-alikes or their ingredients. A number of deaths associated with\nlook-alike use have been reported with caffeine intoxication as the likely\ncause of death. In 1981, a new category for look-alikes was established for\nthe Drug Abuse Warning Network (DAWN) to help determine the extent of this\npublic health problem. During the period June 1981, through March 1983, 92\nemergency room mentions were attributed directly to substances reported as\nlook-alikes with the majority involving drugs obtained by street buys.\nFurthermore, many of the emergency room visits attributed to amphetamines and\nspeed may be the result of look-alike abuse. It is important to note, however,\nthat during the entire year of 1982, 48 emergency room mentions were reported\nby DAWN compared to 43 during only 6 months of 1981. Thus far in 1983 only 1\nreport of an emergency room episode attributed to look-alikes has been recorded\nin DAWN.\nDRAFT\nIn addition to the health hazards inherent in taking look-alikes\nthemselves, the risk of serious drug overdose from real controlled substances\nis greatly increased for look-alike users who unknowingly consume equal numbers\nof a real controlled product. This is most troublesome when depressants are\ninvolved. Health care professionals in emergency rooms, poison control centers\nand drug abuse clinics may be deceived by the look-alikes. They are hampered\nin determining and providing appropriate medical care in drug overdose cases.\nPerhaps most important of all, the advertising and distribution of look-\nalike drugs in any form gives the impression of societal acceptance of the use\nof drugs for recreational purposes. This counteracts the efforts of the many\ndrug abuse educational programs supported by government and public\norganizations. The look-alikes have helped to create a market for stimulant\nand depressant use. Children and others who wouldn't normally abuse drugs are\nintroduced to look-alikes and told they're safe and legal. The end result of\nthe look-alike phenomenon is a glamorization and legitimacy of the concept of\nrecreational drug use, particularly among children. The use of psychoactive\nsubstances for mood alteration - - even in the form of look-alikes if condoned,\ncan only further add to our national drug abuse problem.\nDRAFT\nDEA Initiative\nSince look-alikes contain only noncontrolled substances, DEA has no\nspecific jurisdiction over look-alike products under the Controlled Substances\nAct (CSA). Unfortunately, it appears that no single Federal agency has\njurisdiction over all facets of this drug abuse problem. I am pleased to\nreport, however, that there has been a high degree of cooperation among Federal\nagencies in sharing information and devising and implementing strategies to\neffectively combat the problem. Additionally, each agency involved,\nspecifically DEA, FDA and the United States Postal Service has set up\nindependent programs using current resources and within the framework of\nexisting laws and regulations to attack the look-alike problem. The activities\nundertaken by DEA and an assessment of their impact to date are as follows:\n1. Drafting of a Model Act for Concerned States to Adopt\nIn November 1981, DEA drafted and distributed to the states a Model\nImitation Controlled Substances Act. A revised version was distributed in\nFebruary, 1982. The Model Act makes it unlawful for anyone to manufacture,\ndistribute, possess or advertise an imitation controlled substance. An\nimitation controlled substance is defined as a noncontrolled substance which\nby overall dosage unit appearance or by representation made, would lead a\nreasonable person to believe that the substance is a controlled substance. At\nthis time, 41 states have passed some form of legislation against look-alikes;\nanother 8 states have legislation pending; 4 states have additional look-alike\nlegislation pending.\nDRAFT\nThe DEA Model Act does cover products not resembling controlled products\nbut promoted or represented in the same manner as those resembling controlled\nproducts. An informal survey conducted by DEA's Office of Diversion Control\nin the Spring of 1983 showed that those states reporting a decrease in the\navailability of look-alikes all have look-alike legislation. Delaware, the\nfirst state to pass look-alike legislation and equally important, to enforce\nit has reported a dramatic decrease in the availability of look-alikes. It\nis noteworthy that a recent FDA seizure of millions of look-alike dosage units\noccurred in Michigan, one of the few states without look-alike legislation.\nThe impact of state look-alike legislation is encouraging.\nFor state legislation to be effective, however, it is essential that the\nlaws be enforced and violators prosecuted, particularly at the manufacturer and\ndistributor levels. DEA is aware of nine states which have reported\nprosecutions under their look-alike laws. The Alabama and Illinois look-alike\nlaws have been challenged in court and both declared constitutional.\nA somewhat similar situation occurred with the drug paraphernalia\nindustry. DEA drafted model legislation in 1979 which has been adopted by 25\nstates as of September 1982, and has been successful in supressing this one\ntime powerful industry. More than 20 Federal District Courts have upheld the\nModel Paraphernalia Act. The look-alike legislation drafted by DEA is\npatterned after the paraphernalia legislation and gives local jurisdictions\nsimilar authority over look-alikes.\nDRAFT\n2. Preparation of Documentation Describing the Look-Alike Problem; its Dangers\nand Effects; for Use in Support of the Model Act:\nInformation packages have been distributed to DEA field offices for use\nby personnel who are requested to provide information or testimony in support\nof state look-alike legislation. DEA personnel have made presentations\nconcerning look-alikes to state legislatures, professional organizations, law\nenforcement personnel and parent and community groups in an effort to encourage\ntheir support of state look-alike legislation. A number of articles concerning\nlook-alikes have been written by DEA personnel and published in trade journals\nof the pharmaceutical industry.\n3. Enlisting the Support and/or Action of the Legitimate Pharmaceutical\nIndustry\nIn an effort to limit the availability of capsules used to manufacture\nlook-alikes, DEA asked the three domestic capsule manufacturers to voluntarily\nrefuse orders to suspected look-alike manufacturers. This effort appears to be\nsuccessful in that the popular black/black and yellow/yellow capsules are in\nextremely short supply as indicated by look-alike advertisements. There is\nevidence that look-alike manufacturers have looked to foreign capsule producers\nfor their supplies. Some of the foreign suppliers are subsidiaries of domestic\ncapsule manufacturers. The foreign subsidiaries have instituted similar\nsafeguards to those of the parent company. A domestic company informed us of\nan order for 50 million black/black and yellow/yellow capsules placed to one\nof its foreign subsidiaries by a third party in the United Kingdom. It was\ndetermined that the order was by a United States look-alike firm who was unable\nto obtain these capsules domestically. The request was not honored.\nDRAFI\nDEA is aware of at least one domestic brokerage house who has ordered capsules\nfrom foreign sources for look-alike manufacturers in the United States. When\nconfronted by DEA personnel this firm agreed to stop selling to the look-alike\ncompanies.\nIndustry cooperation and information exchange has also resulted in a\nsuccessful lawsuit filed by a legitimate manufacturer of controlled substances\nagainst a look-alike producer for trademark infringement.\n4. Fostering Intergovernmental Agency Cooperation and Providing Active Support\nto Other Agency Efforts\nBecause no single Federal agency has clear-cut jurisdiction over the look-\nalike problem, it was imperative that the relevant Federal agencies coordinate\ntheir efforts against look-alike drugs. DEA has taken the initiative to\nestablish interagency governmental groups at both the policy making and working\nlevels. Representatives of the Drug Enforcement Administration, the Food and\nDrug Administration, the Federal Trade Commission, U.S. Postal Service, the\nInternal Revenue Service, and the National Institute on Drug Abuse meet\nperiodically to discuss the dynamics of the look-alike problem, to identify\nchanging trends in distribution and abuse patterns, and to report on each\nagency's activities or need for interagency support. Additionally, DEA has\nsupported the efforts of the U.S. Postal Service and the FDA by supplying\nintelligence and by providing laboratory analyses and expert testimony in\nhas\ned\ncourt against look-alike manufacturers and distributors. DEA is working with\nthe FDA and the U.S. Postal Service in an attempt to develop an effective and\nrealistic Federal legislative package. In Furtherance of this effort DEA and\nFDA have sponsored a joint meeting of the state attorneys general for their\ninput and ideas.\nIn order to ascertain the magnitude of the impact of the DEA, FDA,\nDRAFT\nPostal Service and state government initiatives on the look-alike problem\nthe DEA Office of Diversion Control reviewed DEA laboratory data for the period\nJanuary, 1979 through March, 1983. This study showed that the number of look-\nalike exhibits and dosage units analyzed peaked in 1980 at 868 and 329,305\nrespectively. By 1982 there was a 55.8% decrease in the number of exhibits\n(383) and an 82.3% decrease in the number of dosage units (58,316) of look-\nalikes analyzed. (See figure 1)\nThe laboratory data further showed that during the period 1979 through\n1981, over 75% of the look-alike exhibits were capsules. In 1982 and 1983\ncapsules and tablets each accounted for roughly 50% of the exhibits. (See\nfigure 2) Further, black and yellow capusles, the most popular stimulant\nlook-alikes, made up over 47% of the look-alike exhibits in 1979 and 1980\ncompared to 30% in 1981 and 24% in 1982. Additionally products such as\n20/20's, U-Zoom's, and Capricorns began appearing in late 1981 and increased\nin 1982. The percentage of stimulant look-alikes containing the triple\ncombination of caffeine, ephedrine, and phenylpropanolamine increase from 16.5%\nin 1979 to approximately 70% in 1981 and 1982. Following FDA's declaration in\nAugust, 1982 that this triple combination is a new drug and required a New\nDrug Application prior to marketing, this combination was found in only 27% of\nthe exhibits analyzed in the first three months of 1983. (See figure 3)\nThe above study shows that the DEA and other government initiatives,\nbegun in late 1981, have significantly reduced the availability of look-alikes\nand that these look-alikes have been replaced, albeit to a much lesser degree,\nwith products not resembling or directly represented as controlled products but\ncontaining some of the same ingredients as the original look-alikes.\nDRAFT\nThese findings were reinforced at a meeting between DEA, FDA and the\nU.S. Postal Service and a group of state attorneys general. This meeting\nwas held to discuss the status of the look-alike problem and what further\nstate and federal regulations or criminal sanctions could be brought to bear\non this problem. Representatives from 6 states were present. In general\nthey were pleased with the efforts of the government agencies in reducing the\nlook-alike problem but also concerned about the transition to products not\nresembling controlled products. They encouraged federal involvement in the\nlook-alike battle but only to the extent that resources allow and would not\nbe taken away from more serious drug abuse problems.\nThe state representatives and federal agencies agreed to work closely\ntogether and to use and expand existing authorities to combat the changing\nlook-alike problem. Further, although the state representatives agreed that\nmuch of the problem can be and has been handled at the state level, the federal\nagencies agreed to continue to explore new approaches.\nI know the need for federal legislation in response to the look-alike\nproblem is of interest to this subcommittee. Further legislation is among\nthe options we have considered in determining future strategies. A number of\nthings must be kept in mind when considering new legislation. First, much\nhas been done using existing and less radical means at the federal level and\nthrough new and existing state laws. Because of these actions the problem has\ndecreased.\nURAFT\nSecondly, the products in question are now very close to those legitimately\nmarketed diet aids and stimulants sold in most drug stores. For the purposes\nof a criminal statute, it is extremely difficult to define the offenses in such\na way which would separate the so called look-alikes from legitimate over-the-\ncounter diet and sleep aids. S. 503 is an attempt to do just that. It is our\nview, however, that this legislation attempts to describe a very broad offense\nusing imprecise terms not specifically defined. It is likely that efforts\nto enforce this statute would generate considerable and largely successful\nlitigation challenging the legislation.\nThe problem as it exists today simply does not lend itself to conventional\nfederal criminal legislative measures which would be productive in eliminating\nthe manufacturing and distribution of these products. DEA's Model Imitation\nControlled Substances or similar legislation can be used by states to\nadequately control the problem at the street or retail level where the pills\nare removed from labelled containers and represented to be controlled products\nor where manufacturer⁵and distributors market true look-alikes. In cases where\nmanufacturers and distributors market products indistinguishable from the diet\naids and sleep aids found in most drug stores other issues should be resolved.\nThe serious question of the safety, efficacy and true medical need for both\ncategories of over-the-counter products may need further examination. Perhaps\nthe focus could be shifted to the medical indications for these products and\ntheir ingredients, the type and manner of advertising, this age of those\npermitted to purchase these products and the types of establishments permitted\nto sell them. These are all areas in which DEA does not have the necessary\nexpertise to effectively resolve these issues.\nDRATO\nNevertheless DEA does consider the look-alike industry, even in its\nmodified form, as a contributor to the drug abuse problem. As such we will\ncontinue to work together with other federal agencies and states within the\nscope of our existing statutory authority to help further reduce the problem\nof look-alike drugs.\nDRAFT/\nJ .. ..\nODRI\nREPORT\nNUMBER OF EXHIBITS\n4/18/83\n0\n200\n400\n600\n800\n1000\n1979 1980 1981\n594\n868\n1983\n676\nFigure /\n1982 3mos\n383\n49\nDODAGE UNITS X 1000\n0\n100\n200\n300\n400\n1979 1980 1981\n188.766\nTOTAL LOOK-A-LIKES ANALYZED BY DEA LABS\n329.305\n88.29\n1983 1982 3mos\n58.316\n9.812\nDRAFT\nLOOK-A-LIKE EXHIBITS FROM DEA LABS\nfrom January,1979 through March,1983\n100\n81.85\n67.3\n80\n74.55\nPercent of LOOK-A-LIKE Exhibits\n57.87\n60\n50 50\n42.13\n40\n25.44\n16.14\n20\n12.02\nLegend\nTABLETS\nCAPSULES\n0\n1979\n1980\n1981\n1982\n1983\nODRI\nREPORT\n58/51/4\nFIGURE 2\nDRAFT\nSTIMULANT LOOK-A-LIKE INGREDIENTS FROM DEA LABS\nFrom January,1979 through March,1983\n80\n60\nPercent of LOOK-A-LIKE Exhibits\n40\n20\nLegend\nCATTENE\nX CATE/EPR/PPA\nCATT-EPD/PSEUDO\nOTHERS\n0\n1979\n1980\n1981\n1982\n1983\nODRI\nREPORT\n4/13/83\nFIGURE 3\nMEMORANDUM\nTHE WHITE HOUSE\nWASHINGTON\nJuly 14, 1983\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\nSUBJECT:\nProposed Testimony of Alfred S. Regnery\nBefore the Senate Subcommittee on\nJuvenile Justice Concerning\nConfidentiality of Juvenile Records\nThe above-referenced testimony is to be delivered on July\n19. The testimony is very general in nature, indeed\nrambling, but basically concludes that juvenile court\nrecords of serious habitual offenders should be as\naccessible for justice system purposes as adult criminal\nrecords. This would avoid the frequent phenomenon of\nserious habitual juvenile offenders being treated as if they\nhad a clean slate when they first encounter the adult\ncriminal justice system. The testimony states that\nRegnery's Office of Juvenile Justice and Delinquency\nPrevention is reviewing state codes on the question of\nrecord access and supporting research in the area, and plans\nto draft model code provisions for the states.\nThere is what I take to be a Freudian slip on page 4 of the\ntestimony, where Regnery is discussing the difference\nbetween the view of juvenile justice that places priority on\nprotecting the child and the view that places priority on\nprotecting society. He states that \"these two points of\nview are completely antithetical\nPresumably a\n\"not\" has been inadvertently dropped.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nJuly 14, 1983\nMEMORANDUM FOR GREGORY JONES\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nFRED F. FIELDING FFF,RAA\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nProposed Testimony of Alfred S. Regnery\nBefore the Senate Subcommittee on\nJuvenile Justice Concerning\nConfidentiality of Juvenile Records\nCounsel's Office has reviewed the above-referenced proposed\ntestimony and finds no objection to it from a legal\nperspective. On page 4, line 15, we assume \"not\" should be\ninserted between \"are\" and \"completely.\"\nFFF:JGR:aw 7/14/83\nCC: FFFielding\nJGRoberts\nSubj.\nChron\nID #\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\nJohn\n10 - OUTGOING\nH INTERNAL\nINCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent: Gregory Jones\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: Testimony. of alfred Regnesy on access to jurenile\nrecords 8 Serious, habitual knowbreakers appearing in\nadult coust for the first time\n(July 19, 1983)\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nsof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCUH011\nORIGINATOR 83107143\n/\n/\nReferral Note:\nCUATING\nD\n83107113\n5 83/07/18\nReferral Note:\n/\n/\n/\n/\nReferral Note:\n/\n/\n/\n/\n-\nReferral Note:\n/ /\n1\n/\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA - Appropriate Action\nI Info Copy Only/No Action Necessary\nA Answered\nc. Completed\nC, Comment/Recommendation\nR Direct Reply Copy\nB Non-Special Referral\nis Suspended\nD Draft Response\nS For Signature\nF Furnish Fact Sheet\nX -Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response\nInitials of Signer\nCode\nCompletion Date\nDate of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, DEDB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext 2590.\n+15/81\nAlfred S. Regnery\nDRAFT\nTestimony before Senate Subcommittee\non Juvenile Justice:\nConfidentiality of Juvenile Records\nJuly 19, 1983\nFirst, I would like to thank Subcommittee Chairman, Senator\nSpecter, for giving me the opportunity to testify on a significant issue for\nthe juvenile justice system.\nPolice, prosecutors and judges are becoming increasingly concerned\nabout the lack of easy and timely access to juvenile records of serious,\nhabitual young offenders appearing in adult courts for the first time. In\naddition, what records are available are often of poor quality.\nThe extent and nature of the problem has been studied by the Rand\nCorporation (Greenwood, Petersilia, Zimring, 1980) which found that only\nsome 3% of prosecutors had access to complete juvenile records.\nIn addition, 75% of the prosecutors Rand surveyed said that \"serious\nadministrative problems and resource constraints limited their ability to\nsearch for juvenile records except in unusual circumstances.\" Overall, half\nof the prosecutors in the national survey reported that \"they would\nnormally receive little or no juvenile record information.\" This was true\nfor even the most serious young adult offenders. When records were\nobtained, they were often incomplete and arrived too late to assist in the\ncharging decision.\nThere are important uses for prior offense records, perhaps at most\nof the key decision points in the juvenile and criminal process, including\narrest, bail determination, charging, plea negotiation, and sentencing. To\nthe extent records are not available when and where needed, the entire\njustice system is compromised as a viable crime control mechanism. This\ndiminishes the public's trust in the system and reduces any fear or respect\nfor the system by the criminal, and thereby diminishes the deterrence value\nof the entire justice system.\nI would also note here that all habitual or serious offender programs\nare completely dependent on record information for identification of such\noffenders early in the juvenile or criminal justice process.\nA number of investigators, some present here today, have dealt with\nthe reasons and remedies for the shortcomings in the records area, as well\nas with their consequences.\nMost observers agree that the culprit in this breakdown in the\njuvenile/criminal justice machinery is the two-track justice system we have\nbuilt and maintained. This two-track or dual system exists as a result of\nstate juvenile codes and administrative provisions which require separate\nstorage of juvenile and adult court records.\nBecause of this separate storage requirement, other code provisions\non confidentiality, and a virtual morass of administrative policies and\nprocedures governing access, records of serious juvenile repeat offenders\nare often not available at crucial stages of criminal court processing, up to\nand including sentencing. Too often, the result is that a first-time adult\noffender with a lengthy and serious juvenile record frequently starts with a\nclean slate in criminal court, delaying for 7 to 10 years his identification as\nan habitual offender.\nAs early as 1978, James Q. Wilson and Barbara Boland questioned\nthe propriety of the two-track system. The separate system for juveniles\noften does not share its information with the adult system. They\nrecommend centralizing serious criminal history records for offenders of\nall ages.\nThe Attorney General's Task Force on Violent Crime, appointed in\n1981, agreed. The Task Force recommended that at the very least,\nfingerprints and photographs of violent juvenile offenders be placed in the\nF.B.I. Information Bank so they can be retrieved by prosecutors.\nRecent reports and articles appearing in criminal justice literature\nindicate that there is growing interest in a review of existing provisions\ngoverning juvenile record confidentiality and utilization.\nWe are aware of at least one state, Maryland, that has a working\ngroup of its own, striving to examine their situation with regard to juvenile\nrecords access in connection with a repeat offender program they have\nestablished in several jurisdictions.\nThe several efforts summarized above, particularly the Attorney\nGeneral's Task Force recommendations, are leading us closer to developing\na national consensus on juvenile records use. I expect that the hearing\nbefore this committee, today, will add measurably to the achievement of\nthat goal. At the same time, it should be stressed that the many issues\nsurrounding this topic are by no means resolved.\nThere are differences among state codes governing records use,\noften reflecting real differences in the policies and philosophy. In addition,\nit appears that the actual availability of records for various purposes does\nnot always correspond with what the juvenile codes allow and variations\nexist among jurisdictions pertaining to record quality, and their\nmanagement and retrieval systems.\nThere are differences involving fingerprinting and photographing of\njuveniles, sealing or expunging of records, and on the handling of different\ntypes of records - law enforcement data, official court files, and social\nhistories.\nThis is but a brief sketch of the legal, procedural, and technical\nissues to be reviewed and resolved to reach consensus on the appropriate\nuse of juvenile records. It is intended to convey the complexity of the\nsubject matter.\nWe would be remiss, I believe, if we failed to recognize another\ndimension of the topic. This has to do more specifically with the human\nelement, the people who make or interpret the laws and policies on records\nuse.\nMuch controversy surrounds this topic because of the divergent\nphilosophies and values held by officials of the juvenile and criminal justice\nsystems. I expect that in any randomly selected group of such officials\nthere would be, on the one side, those who stress rehabilitation and\nprotection of the child, and on the other, those who stress protection for\nsociety. While these two points of view are completely antithetical, there\nis some fear that reassessing the confidentiality of records may lead to the\ndemise of the juvenile court. In fact, neglecting to review the use of\njuvenile records would be the greater threat. The recent popularity of\nwaiver provisions is a prime example of community and judicial frustration\nwith the juvenile system.\nLegislatively established original jurisdiction of the court already\ncovers children between 16 and 19 years of age. In addition, a number of\nstates do not specify a lower age limit when a child can be waived to\ncriminal court -- I believe South Dakota allows the waiver at age 10. At\nthe same time, there are provisions for retention of juvenile jurisdiction\n(once under correctional restraint) through age of majority or longer.\nThus, it appears that who is a juvenile and who is adult for juvenile\nand criminal court purposes varies over a range of 10 years or more. It\nseems to me that there is an irony in this with regard to record\nconfidentiality. At least, this seems to show that the juvenile and criminal\nsystems cannot be viewed as substantially discrete or separate, nor are\ntheir clients identifiable as composing discrete categories. In one state, a\nperson 9 or 10 years old can be an adult criminal, while in another, he is\ntreated as a juvenile delinquent until 19 or 20 with corresponding\nconfidentiality of records.\nThe time has come to establish some equivalance between juvenile\nand adult records access and use for serious offenders. There are several\nareas that must be addressed in order to make headway in this area.\nFirst of all, I believe that some model criteria for optimum level\njuvenile record utilization must be established. Although the federal\ngovernment should not dictate what each state does in this area, a national\nmodel might be helpful to all states.\nThe availability of juvenile records would enhance the credibility of\nboth the juvenile and the adult justice systems. Proper utilization of\nrecords would increase the certainty and integrity of intervention with\nserious, habitual offenders, by increasing the accountability of such\noffenders to the justice system and to the public. Contrary to the\nargument that nothing seems to have been proven to work against crime, I\nbelieve there is some evidence from research and program evaluations that\nthe proper mix of secure custody, for those who need it, and of discipline,\nrehabilitation and reintegration back into the community make a\ndifference.\nIn addition, record management, including creation, storage,\nretrieval and control must be improved. This would assure better quality of\nrecords and access to them, and would also guard against record\nproliferation and abuse. Under properly maintained systems, the records of\nserious habitual juvenile offenders should be as accessible for justice\nsystem purposes as adult criminal records.\nTo assist in the resolution of the record confidentiality and\nutilization issues, OJJDP has undertaken several projects. We are now\nreviewing all state juvenile code provisions pertaining to record\nconfidentiality and utilization. In the course of this review, we will\ncommunicate with justice system practitioners to determine what they\nconsider the most important needs and procedures to be in this area. From\nthis, we plan to develop draft model code provisions together with policies\nand procedures for their implementation. To the extent uncertainty exists\nregarding the proper approaches, we will support research to find the\nanswers.\nWe expect to develop information on where and how juvenile records\nought to be used, what the best record management systems are, what code\nand procedural improvements are required to facilitate record availability\nand use, and what benefits accrue to the justice systems and the public\nfrom improvements in these areas. Further, we expect to provide the\ninformation obtained to the practitioner field through publications,\nconferences, and training programs.\nDuring the course of these activities, we will seek and appreciate\ncontinuing guidance and support from this Committee, from the\nDepartment of Justice, from our own National Advisory Committee, and\nfrom practitioners in the field.\nJ61 Suly\nTester only\nMEMORANDUM\nTHE WHITE HOUSE\nWASHINGTON\nJuly 18, 1983\nFOR:\nFRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\nare\nSUBJECT:\nH.R. 3497 -- Proposed Amendments to\nthe Federal Rules of Criminal Procedure\nOMB has asked for our views as soon as possible on a proposed\nletter from Robert McConnell opposing H.R. 3497. H.R. 3497\nwould prevent the proposed amendments to the Federal Rules\nof Criminal Procedure currently lying before Congress from\ngoing into effect until specifically provided by Act of\nCongress. Under 18 U.S.C. § 3771 the Supreme Court may\npropose such rules or amendments, which go into effect\nninety days after reported to Congress, in the absence of\ncontrary legislation. H.R. 3497 is just such contrary\nlegislation.\nJustice opposes H.R. 3497 because Justice generally supports\nthe proposed amendments to the rules, specifically amendments\nauthorizing conditional guilty pleas, verdicts by 11-member\njuries when a twelfth juror becomes incapacitated, and\nextension of the life of a regular grand jury. I see no\nreason to question Justice's conclusion that the amendments\nare a net plus.\nNo legislative veto problems are presented by the procedure\nestablished pursuant to 18 U.S.C. $ 3771. This is a classic\n\"report and wait\" provision. Its counterpart with respect\nto the Civil Rules was approved in Sibbach V. Wilson, 312\nU.S. 1 (1941). The Chief Justice's opinion in INS V. Chadha\nspecifically cited the Civil Rules provision, indicating\nthat it did not present the problems associated with the\nlegislative veto. Slip op. at 14 n. 9.\nIf you agree, I will telephone Greg Jones to advise that we\ninterpose no legal objections.\nID #\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\n0 OUTGOING\nH INTERNAL\nI INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n1\n/\nName of Correspondent:\nGreg Jones\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject:\nH.R. 3497- Proposia amendment\nProcedure to the Federal Rules of Criminal\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\n@ Holland\nORIGINATOR 83,07,18\n/\n/\nReferral Note:\nCUAT 18\nD\n83,07,18\n583,0718\nReferral Note:\n/\n/\n/\n1\n-\nReterral Note:\n/\n/\n/\n/\n-\nReferral Note:\nI\n/\n1\n/\nReferral Note:\nACTION GODES:\nDISPOSITION CODES:\nA Appropriate Action\nI Info Copy Only/No Action Necessary\nA\nAnswered\nC -Dompleted\nC Comment/Recommendation\nR. Direct Reply w/Copy\nB Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response Initials of Signer\nCode\nCompletion Date Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all-routing updates to Central Reference (Room 75, DEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nEXECUTIVE OFFICE OF THE PRESIDENT\nOFFICE OF MANAGEMENT AND BUDGET\nROUTE SLIP\nTake necessary action\nTO Mike Uhlmann\nApproval or signature\nRichard Hauser\nComment\nKaren Wilson\nPrepare reply\nDiscuss with me\nFor your information\nSee remarks below\nFROM\nGVJ\nGreg Jones (x3856) 1 DATE\n7/15/83\nREMARKS\nThe attached letter from Justice opposes\na provision of a bill (HR 3497) that\nwould indefinitely\ndelay the\neffective date of the new Rules\nof Criminal Procedure.\nAccording to Justice, this bill is\nscheduled for markup on Tuesday,\n7/19; so we need to clear by\nMonday afternoon.\nPlease let me know what you think by\nnoon on Monday, 7/18.\nCC: Jim Murr\nSPECIAL\nOMB FORM 4\nRev Jul 82\nU.S. Department of Justice\nOffice of Legislative Affairs\nDRAFT\nOffice of the Assistant Attorney General\nWashington. D.C. 20530\nHonorable Peter W. Rodino, Jr.\nChairman\nCommittee on the Judiciary\nUnited States Senate\nWashington, D.C. 20510\nDear Mr. Chairman:\nThis letter presents the views of the Department of Justice\non that portion of H.R. 3497, which would indefinitely delay the\nproposed amendments to the Federal Rules of Criminal Procedure.\nThe effect of enacting H.R. 3497 would be to require passage of\nadditional legislation in order for the proposed amendments to\ntake effect. The proposed amendments were transmitted by the\nChief Justice on April 28, 1983 pursuant to the Rules Enabling\nActs, 18 U.S.C. 3771-3772 and 28 U.S.C. 2072.\nThe Department strongly opposes delaying the effective date\nof the proposed amendments to the Federal Rules of Criminal Proc-\nedure (the \"proposed Rules\"). 1/ We believe that the Rules Enabl-\ning Act process will instutute, on balance, useful reforms. Some\nof the proposals indeed are innovative and have our strong support.\nSpecifically, proposed Rule 11(a) (2) would create a new form of\n\"conditional\" guilty plea designed to obviate unnecessary trials\nwhich must currently be demanded by a defendant simply to preserve\nhis right to appeal the denial of a dispositive pretrial motion.\nProposed Rule 23 (b) would empower a district judge to proceed to a\nbinding verdict with the remaining eleven jurors if after retiring\nfor deliberations, e.g. following a multi-week trial as recently\noccurred in two of our cases, one of the twelve jurors becomes in-\ncapacitated. This situation now necessitates a retrial unless\nthe defendant consents to a verdict by the remaining jurors. The\nproposed Rule offers a solution that operates to preserve scarce\njudicial and prosecutorial resources while not diminishing, in any\nmaterial way, the defendant's right to a fair trial. Proposed Rule\n6(g), likewise, would improve the criminal justice system by allowing\n1/ We take no position at this time on the proposed amendments to\nthe Federal Rules of Civil Procedure.\nDRAFT\nwise, would improve the criminal justice system by allowing a court\nto extend the life of a regular grand jury which was due to expire\nbefore having completed its investigations. This flexibility would\nnot benefit only the government; it would benefit the defendant as\nwell by shortening the time in which the investigation (which other-\nwise would have to be reinstituted before a new grand jury) was\nconducted, and by guarding against the temptation of the expiring\ngrand jury to return a precipitous indictment.\nAs you are aware, the proposed Rules have undergone careful de-\nvelopment and scrutiny. Indeed, in this instance, the process, in\nrequiring the proposed Rules to undergo several layers of review by\nall segments of the interested legal community, took approximately\nthree years. We believe that the product which resulted is deser-\nving of implementation on August 1, 1983. Although we do not favor\neach and every aspect of the proposed Rules, and we recognize that\nother persons may have like criticisms of individual provisions,\n2/ we strongly believe that the process has overall produced a\nsound group of amendments that should not be further prevented\nfrom taking effect as scheduled on August 1, 1983.\nThe Office of Management and Budget has advised this Depart-\nment that there is no objection to the submission of this request\nfrom the standpoint of the Administration's program.\nSincerely,\nROBERT A. McCONNELL\nAssistant Attorney General\n2/ The Department does not support the proposed change to Rule\nI2 (i) to require the government to disclose information to the de-\nfense at pretrial suppression hearings. We are concerned that this\nchange will generate non-meritorious motions to suppress evidence,\nmade primarily with the objective of acquiring disclosure of state-\nments by the government's witnesses, thus facilitating the manufac-\nturing of spurious defenses.\n- 2 -\nI\n98TH CONGRESS\n1ST SESSION\nH. R. 3497\nTo defer proposed amendments to the Federal Rules of Civil Procedure and the\nFederal Rules of Criminal Procedure.\nIN THE HOUSE OF REPRESENTATIVES\nJUNE 30, 1983\nMr. RODINO introduced the following bill; which was referred to the Committee\non the Judiciary\nA\nBILL\nTo defer proposed amendments to the Federal Rules of Civil\nProcedure and the Federal Rules of Criminal Procedure.\n1\nBe it enacted by the Senate and House of Representa-\n2 tives of the United States of America in Congress assembled,\n3 That notwithstanding section 2072 of title 28 and sections\n4 3771 and 3772 of title 18, United States Code, the amend-\n5 ments to the Federal Rules of Civil Procedure and the Feder-\n6 al Rules of Criminal Procedure as proposed by the Supreme\n7 Court of the United States and transmitted to the Congress\n8 by the Chief Justice on April 28, 1983, shall not take effect\n9 until and to the extent specifically provided by Act of Con-\n10 gress.\nMEMORANDUM\nTHE WHITE HOUSE\nWASHINGTON\nJuly 19, 1983\nFOR:\nFRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\nSUBJECT:\nProposed Testimony of Deputy Assistant\nAttorney General Knapp re: S. 1146, a Bill\nto Address the Use of Aircraft in Drug Offenses\nBy memorandum dated July 18, you noted no legal objection to\nthe above-referenced testimony, to be delivered on July 21.\nA dispute has arisen between Transportation and Justice over\nan aspect of the testimony, and we have been asked to \"weigh\nin\" as soon as possible. The bill would direct the FAA\nAdministrator to revoke the airman certificate of a pilot or\ncrew member if the airman were convicted of a drug offense\nand served as an airman in connection with the violation, or\nif the airman were determined, after notice and hearing, to\nhave served as an airman in connection with the transport by\naircraft of a controlled substance. Justice's proposed\ntestimony would expand the section to direct revocation of\nthe certificate if the airman as an airman were determined\nto have furthered a drug offense, e.g., by knowingly flying\na drug kingpin to a meeting.\nTransportation objects that no safety considerations are\ninvolved in this proposed category, so the FAA should not be\nrequired to revoke certificates. Safety considerations are\ntypically present when the plane actually carries drugs, as\nthe pilots often fly low and without lights to avoid capture.\nI side with Justice. If an airman is knowingly flying a\ndrug dealer to a secret meeting, he could well fly without\nlights, etc., just as if he were carrying drugs themselves.\nThe whole purpose of this bill is to fight drug trafficking,\nso the FAA's argument that it should only revoke air certifi-\nAlso,\ncates when safety is implicated rings hollow. With the Air\nForce monitoring drug traffickers, the IRS seizing their\n&\nassets, and the Park Service destroying their fields, the\nno\nFAA can pitch in by revoking their flight certificates.\n422\ndue\nDick Williams of Carlton Turner's office has proposed a\ncompromise, whereby the bill would authorize (as opposed to\ndirect) the Administrator to revoke certificates in the one\ncategory that has engendered the dispute. This makes\nthe inclusis actions in\neminent good sense, and with your permission, I will tell\nFAA\nOMB that we support it. They would like to resolve the\nmatter tonight or tomorrow morning.\nJGKSQ\nMEMORANDU M\nTHE WHITE HOUSE\nWASHINGTON\nJuly 18, 1983\nFOR:\nFRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\nSUBJECT:\nProposed Testimony of Deputy Assistant\nAttorney General Knapp re: S. 1146, a Bill\nto Address the Use of Aircraft in Drug Offenses\nWe have been asked for our views on the above-referenced\ntestimony, scheduled to be delivered before the Subcommittee\non Aviation of the Senate Commerce Committee on July 21.\nThe testimony generally supports the main provisions of\nS. 1146, which would provide for the revocation of the FAA\ncertificates of persons convicted of drug offenses (other\nthan simple possession) involving aircraft. Knapp proposes\nthat revocation be based on conviction or an FAA determination\nof involvement in drug trafficking offenses, since airmen\nare often granted immunity to testify against principals\nand, under the bill, the certificates of such airmen could\nnot be revoked. The testimony also supports a section in\nS. 1146 which would make it a crime to forge FAA certificates\nfor use in drug trafficking.\nThe testimony opposes a provision in S. 1146 making it a\ncrime to use aircraft in drug trafficking. Justice considers\nthis duplicative, since such use of an aircraft is already\npunishable under the general drug trafficking provisions.\nJustice sees no need based on its experience to specify the\nmode of transportation of the drugs. I have no objections.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nJuly 18, 1983\nMEMORANDUM FOR GREG JONES\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nProposed Testimony of Deputy Assistant\nAttorney General Knapp re: S. 1146, a Bill\nto Address the Use of Aircraft in Drug Offenses\nCounsel's office has reviewed the above-referenced proposed\ntestimony, and finds no objection to it from a legal\nperspective.\nFFF:JGR:ph 7/18/83\nCC: FFFielding/\nSubject\nChron.\nID #.\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\n0 . OUTGOING\nH - INTERNAL\nI - INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n1\n1\nName of Correspondent: gregory Jones\nMI Mall Report\nUser Codes: (A)\n(B)\n(C)\nSubject: Statement of James I.K knapp re S 1146\n(problem of the use of aurcraft in llegal drug offenses)\non July 21, 1983\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nDode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCVHoll\nORIGINATOR\n/\n/\n/\n/\nReferral Note:\nWATIB\nD\n83,07,20\n$ 83107120\nReferral Note:\n/ /\n/ /\n1\nReferral Note:\n/ /\n/\n/\nReferral Note:\n/ /\n/\nI\nI\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA Appropriate Action\n1 Info Copy Only/No Action Necessary\nA - Answered\nC Completed\nC - Comment/Recommendation\nR Direct Reply w/Copy\nB Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode\n\"A\"\nCompletion Date Date of Outgoing\nComments:\nKeep this worksheet attached to the original Incoming letter.\nSend all routing updates to Central Reference (Room 75, DEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nTo Greg Jones\nDRAFT\nSTATEMENT\nOF\nJAMES I. K. KNAPP\nDEPUTY ASSISTANT ATTORNEY GENERAL\nCRIMINAL DIVISION\nBEFORE\nTHE\nSUBCOMMITTEE ON AVIATION\nOF THE\nCOMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION\nUNITED STATES SENATE\nCONCERNING\nS. 1146\nON\nJULY 21, 1983\nI am pleased to be here today to present the views of the\nDepartment of Justice on S. 1146, a bill which is aimed at the\nproblem of the use of aircraft in illegal drug offenses.\nAs you know, the Administration and this Department are\nstrongly committed to doing everything possible to stem the flow\nof illegal drugs into the United States. We regard this bill as\na potential source of help in this effort and support in concept\nall but one of its five operative sections.\nSections two, three, and four of the bill, which provide for\nthe revocation of airman certificates¹ and aircraft registration\ncertificates2 of persons committing drug offenses, other than\nsimple possession offenses, where an aircraft is involved, are of\nprimary concern to the Federal Aviation Administration. While we\nsupport the general thrust of these provisions, I will later\npoint out a potential problem that may be presented in the way in\nwhich section two is drafted.\nTurning first to those portions of the bill which create new\ncriminal offenses, I note that section five in effect creates a\nnew criminal offense of using an aircraft to knowingly transport\na controlled substance in violation of state or federal law\nrelating to controlled substances, other than simple possession.\nThe section would accomplish this result by amending section 902\n1/ Possession of the proper airman certificate is necessary\nfor anyone to serve as an airman in connection with aircraft\noperation or maintenance. (49 U.S.C. 1422). The term \"airman\"\nincludes pilots, crew members, navigators, mechanics and air\ntraffic controllers. 49 U.S.C. 1301.\n2/ All aircraft must be registered to operate. 49 U.S.C. 1401.\n- 2 -\nof the Federal Aviation Act of 1958 (49 U.S.C. 1472) to add a new\nsubsection (a) to provide for criminal penalties for persons who\nviolate section 610(a) (2) of the Act (49 U.S.C. 1430(a) (2)) while\ninvolved in illegal drug transportation. Section 610(a) (2), in\nturn, forbids any person to serve as an airman without a valid\nairman certificate or in violation of any of a number of FAA\norders, rules, or regulation. Under present law there is a\ncivil, but not a criminal, penalty for a violation of the\nsection. The new subsection to be added to 49 U.S.C. 1472 would\nprovide for imprisonment for up to five years and a fine of up to\n$25,000 for any person who knowingly and willfully violates\nsection 610(a) (2) in connection with the transportation by\naircraft of any controlled substance where such transportation is\nprohibited by state or federal law or is provided in connection\nwith any act prohibited by state or federal law relating to\ncontrolled substances, other than simple possession.\nThe Department of Justice does not support this provision\nbecause it is duplicative of existing prohibitions in title 21.\nEssentially, the proposed new offense would criminalize a\nparticular method of committing the offense of drug \"transporta-\ntion\", a concept already covered by the proscription in 21 U.S.C.\n841 against distribution of or possession with intent to distrib-\nute a controlled substance. Moreover, another drug statute, 21\nU.S.C. 952, specifically covers the importation or smuggling in\nof controlled substances.\n- 3 -\nCriminalizing a particular method of committing this crime,\nnamely by using an airplane without a valid airman certificate or\nwhile in violation of an FAA regulation, is not desirable because\nit may lead to proliferation of laws creating separate crimes for\nparticular methods of violating an existing general prohibition.\nIn short, we see no need, in light of current statutes, for a\nseparate offense of transporting drugs by airplane, any more than\nthere is need for a separate statute covering smuggling of drugs\nby vessel or motor vehicle. The interest of the government is\nadequately protected by the basic prohibitions against drug\nimportation and distribution, which include the ability to\nforfeit the aircraft used in the offense in many instances. In\naddition, the proposed penalty of up to five years in prison for\nthe use of an aircraft is unlikely to act as a deterrent in light\nof the existing penalty structure which provides for up to\nfifteen years' imprisonment for importation of or possession with\nintent to distribute the most serious drugs such as heroin or\ncocaine.\nOn the other hand, the Department of Justice supports\nsection six of the bill which would make two amendments to\nsection 902(b) of the Federal Aviation Act of 1958 (49 U.S.C.\n1472(b)). This section of the Act presently provides for a\n$1,000 fine and one year's imprisonment for forging or counter-\nfeiting a certificate such as an airman certificate or aircraft\nregistration certificate, using a forged certificate, or display-\ning false identification markings on an aircraft. Section six of\n- 4 -\nthe bill would first expand the coverage of section 1472(b) to\ninclude the sale and possession with intent to use a fraudulent\ncertificate. Second, it would increase the penalties for a\nviolation of the section to a felony punishable by a $25,000 fine\nand five years' imprisonment for anyone who violates it with the\nintent to commit a violation of state or federal law relating to\ncontrolled substances, other than simple possession, and for\nanyone who sells a forged certificate knowing that the purchaser\nintends to use it in such a controlled substance offense.\nThe use of false certificates and aircraft markings clearly\nfacilitates the use of aircraft in illegal drug transactions,\nparticularly by those persons whose airman or registration\ncertificates have already been revoked for one drug offense\ninvolving an airplane. The Congress recognized the pervasive use\nof false identification in criminal activity generally with the\nenactment of P.L. 97-398, the False Identification Crime Control\nAct of 1982, which prohibits, among other things, the transfer or\nproduction of false federal identification documents. The term\n\"identification document\" is defined as one intended for or\ncommonly accepted for the purpose of identification of an\nindividual. While the False Identification Act would cover the\nforging or sale of an airman certificate, it may not cover those\noffenses involving a registration certificate and clearly does\nnot reach the use of false aircraft markings. Thus, section six\n- 5 -\nof the bill is necessary and would provide an appropriate new\nweapon in the federal government's efforts to combat illegal\ndrugs.\nSimilarly, as I previously indicated, the provisions of\nsections two, three, and four dealing with the revocation by the\nFAA of airman and aircraft registration certificates of persons\nwho use an aircraft in a drug offense would also appear to be a\nwelcome addition in the battle to make our borders more secure\nagainst illegal drugs. Although these sections are of primary\nconcern to the FAA, I would like to point out one problem area\nwith respect to section two that the Subcommittee may wish to\naddress.\nThe section would require that the Administrator of the FAA\nrevoke an airman certificate of any person who has been convicted\nof a violation of a state or federal law relating to controlled\nsubstances, other than simple possession, if the Administrator\ndetermines that the person served as an airman in connection with\nthe violation. It also would require the Administrator to revoke\nthe airman certificate of any person who he determines after\nnotice and a hearing \"knowingly served in any capacity as an\nairman in connection with the transportation by aircraft of any\ncontrolled substance\" if the transportation is prohibited by\nstate or federal law relating to controlled substances.\nWhile the intent of the section is clearly to require the\nAdministrator to revoke the airman certificate of the pilot or\ncrew member of a plane used in furtherance of a drug offense, it\n- 6 -\nwould fail in this objective if the pilot or airman was not\nconvicted of an offense and if drugs were not actually trans-\nported on the aircraft. By way of illustration, as drafted the\nsection would not cover a pilot who knowingly flew a major drug\ntrafficker to the Caribbean for a meeting to arrange a drug deal\nwith a supplier for a shipment at a later date unless the pilot\nwas charged with and convicted of an offense such as conspiracy\nto import a controlled substance. If, for example, the pilot was\ngranted immunity from prosecution in exchange for his testimony\nagainst the major trafficker, his certificate could not be\nrevoked. We would suggest that the FAA Administrator be directed\nto revoke an airman certificate whenever the holder thereof has\nbeen convicted of a controlled substance violation while serving\nas an airman in connection with such an offense, or whenever the\nAdministrator determines either (1) that the holder has served as\nan airman in connection with an offense involving the transporta-\ntion by aircraft of a controlled substance, or (2) that he has\nserved as an airman in furtherance of an offense, such as a\nconspiracy, involving a violation of a state or federal law\nrelating to a controlled substance.\nMr. Chairman, that concludes my prepared remarks and I would\nbe pleased to answer any questions the Subcommittee may have."
}