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CRIMINAL DIVISION AND DRUG ENFORCEMENT

ADMINISTRATION

WEDNESDAY, MARCH 19, 1980

U.S. HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CRIMINAL JUSTICE,
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met at 11 a.m. in room 2237 of the Rayburn House Office Building, the Honorable Robert F. Drinan, chairman of the subcommittee, presiding.

Present: Representatives Drinan, Hall, Gudger, Conyers, Kindness, Sawyer, and Lungren.

Staff present: Joseph L. Nellis, General Counsel; Thomas W. Hutchison, counsel, Eric E. Sterling and David W. Beier III, assistant counsel; and Raymond V. Smietanka, associate counsel.

Mr. DRINAN. The committee will come to order. We welcome this morning Mr. Philip Heymann, and his colleagues. This is an ordinary hearing in the process of authorization and we will report to the full committee the conclusions that we have made.

The subcommittee and staff, Mr. Heymann, have your statement; you may proceed in any way you desire. TESTIMONY OF PHILIP B. HEYMANN, ASSISTANT ATTORNEY GEN

ERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, ACCOMPANIED BY MARK M. RICHARD, JAMES W. MUSKETT, AND STEPHEN B. HITCHNER, JR.

Mr. HEYMANN. Mr. Chairman, I think you have had the opportunity of looking the statement over; and on that basis it may simply be printed in the record. I will be extremely brief so that we may go directly to questions and answers.

Mr. DRINAN. Without objection. [The full statement follows:]

STATEMENT OF PHILIP B. HEYMANN, ASSISTANT ATTORNEY GENERAL,

CRIMINAL DIVISION Mr. Chairman and Members of the Subcommittee: I am Philip B. Heymann, Assistant Attorney General in charge of the Criminal Division. With me are Mark M. Richard, Deputy Assistant Attorney General, James W. Muskett, Director, Office of Administration, and Stephen B. Hitchner, Jr., Director, Office of Policy and Management Analysis. Among us we hope to be able to answer any questions which you may have on our programs, and we would be pleased to provide any additional material which you may need.

The mission of the Criminal Division is to serve the public interest through the development and enforcement of criminal statutes in a vigorous, fair, and effective manner. This mission involves the performance of six fundamental functions:

1. Leadership in the litigation of certain large or complex criminal cases in federal priority areas;

2. Guidance in the development and refinement of prosecutorial enforcement strategies, including a determination of the types of cases to emphasize in each federal priority enforcement area ;

3. Support for U.S. Attorney Offices—including participation in cases on appeal, the provision of advice on all federal criminal statutes, the supply of temporary supplementary prosecutorial personnel, and the preparation of civil litigation which arises from criminal enforcement.

4. Participation in the evaluation and development of administrative policy and federal legislation for the criminal justice system;

5. Leadership in the enforcement of a limited number of statutes for which considerations of logistics, efficiency, or uniformity of treatment require centralization; and

6. Participation in criminal justice activities involving foreign parties where a centralized national approach is desirable. Last year, the Division was reorganized to more closely align its internal structure with the requirements of its mission. Because we have concentrated our analytical resources on substantive program areas, a formal evaluation of the new organizational structure has not been conducted. I believe, however, that a brief summary of our experience since the reorganization will sufficiently reflect the merits of the new structure, and will serve the further purpose of affording some insight into the operations of the Division.

The Division's responsibilities for enforcement, legal support, and policy guidance are made operational through the activities of seven line sections and seven staff offices. Each of these components is structured in a functional pattern designed to emphasize the different nature of its responsibilities, the varied professional requirements of the personnel, and the importance of each element to the Division's compound role.

In terms of resources, the Division's enforcement activities remain of central importance. Cumulatively, enforcement activities account for approximately three-quarters of the Division's total fiscal year 1981 budget request.

The Criminal Division's enforcement focus includes the Department's priority areas of white collar crime, political corruption, organized crime, and trafficking in narcotics and dangerous drugs. The Division is also deeply committed to the effective handling of internal security matters, and the prosecution of life endangering regulatory violators. Finally, the Department is affording priority attention to the just disposition of some hundreds of allegations involving suspected Nazi war criminals illegally taking refuge in this country.

The General Litigation and Legal Advice Section represents an innovative development in the enforcement arena that is worth special note. It was created from a merger of the former General Crimes Section, the former Special Litigation Section and the Government Regulations part of the former Government Regulations and Labor Section. Its responsibilities encompass violations of the immigration and nationality laws, the customs laws, the Federal obscenity laws, the Export Control Act, the Federal copyright laws and violations of those regulations designed to protect the health, safety and welfare of workers and the American public. Further, the new sertion defends civil actions arising out of criminal justice activities and prosecutes selected cases which are of national significance, present unusual difficulties, or which require a high degree of central coordination at the national level. The section is also responsible for civil penalties and forfeitures related to the foregoing, and serves as a primary staff resource in facilitating the Department's Federal-State-Local cooperative law enforcement efforts.

Of all our enforcement activities, our greatest resource needs remain in the area of white collar crime. The Division's only personnel increase is requested for this area, and if appropriated, will be used to augment the recently created Office of Economic Crime Enforcement.

Since this is a new initiative. in need of more resources and perhaps not fully familiar to the members of this Committee, I would like to provide additional details on this component of the Division.

Local U.S. Attorneys and line Criminal Division fraud prosecutors, beseiged by rising caseloads, have been unable to provide the degree of information assessment, investigative coordination, and inter-agency liaison required to adequately address the problem of white collar crime. The Office of Economic Crime Enforcement was established to help fill this void. Its mission is to handle jurisdictional conflicts, coordinate intelligence, and focus specialized resources on all field aspects of white collar crime enforcement.

This mission is carried out through strategically located Economic Crime Field Units. Physically housed in the U.S. Attorneys' offices, each of these units joins Criminal Division economic crime specialists with Assistant United States Attorneys in a five point program of white collar crime prevention, detection, investigation, prosecution, and sentencing.

To date, Economic Crime Field Units have been established in only 13 Districts. Approximately 17 additional units are needed to address the national scope required of the program. Once the program is fully staffed and operational, much of the country will hopefully be covered.

Each of the Economic Crime Field Units will have similar responsibilities with respect to the districts they cover. Operations in all of the units will generally include:

(1) Conducting assessments of emerging white collar crime trends to determine the level, scope, and nature of the problem in each area serviced by the program. To facilitate this function, attorneys from each unit meet with federal, state, and local program agencies ; investigators and prosecutors; representatives from business, industry, the news media, and the public.

(2) Establishing local enforcement priorities on the basis of crime inci. dence and trend and demographic data thus obtained. Each unit is responsible for assuring consistency with national priorities, and is further charged with helping develop the more consistent criteria for the acceptance or rejection of white collar criminal matters by the federal justice system.

(3) Improving the government's ability to identify potential criminal activities, investigate and, where necessary, prosecute or take some other form of meaningful corrective action. Work is also directed towards developing methods and techniques for preventing economic crime.

(4) Identifying those cases that fit within the established priorities alin facilitating their appropriate resolution. In performing this function, each unit is responsible for preparing case initiation reports which contain brief factual summaries, descriptions of possible subjects and victims, and assessments of how the proposed investigation would fit within the framework of national and local priorities. Although unit attorneys will participate in and coordinate task force efforts established in response to particularly large, complex, or difficult cases, their major role will be to track, analyze, and facilitate a balanced application of enforcement resources in all

instances of white collar crime occuring within their areas. As I indicated earlier, no personnel increases are sought for the remainder of the Division. We believe that our new organizational structure will enable the other programs to achieve substantial results at current staffing levels. This is due, in large part, to the effectiveness of our legal support and policy guidance operations.

In the Appellate Section, for example, we have improved the timeliness of our submissions to the Solicitor General, have increased our Court of Appeals workload by approximately 14 percent, and have maintained last year's volume in all other workload categories.

Our Office of Legal Support Services has consolidated many of the functions once carried out by the enforcement sections. The processing of such items as witness immunity requests, tax disclosure requests, and Freedom of Information inquiries not only relieves the rest of the Division of what had been a "secondary burden,” but also affords consistency in approach to what are often critical issues of procedural law and Department policy.

The Office of Enforcement operations centralized the approval process, oversight, and evaluation of the Government's most sensitive investigative tools. Devices such as Title III and consensual wiretaps, witness protection, and hypnosis in the interrogation of witnesses are now subject to an enhanced degree of legal guidance and managerial coordination. In addition to insuring that the use of these devices conforms with law and Department policy, the program monitors each utilization to assure consistency with the Division's enforcement priorities, and cost-effectiveness with regard to the investigative objectives of each case in which such tools are used.

The Division's new Office of International Affairs has taken its place as the Department's leading edge in the emerging area of international criminal law. Since its creation in February, 1979, it has facilitated the international transfer of over 200 prisoners, has represented the United States extensively in numerous extradition, mutual assistance, and property recovery treaties, and has assumed from the State Department prime responsibility for processing state extradition requests.

With respect to the Division's policy guidance role, our new Office of Policy and Management Analysis is successfully implementing an interdisciplinary approach to decision making and problem solving. Its professional staff includes attorneys, program analysts, and management analysts with expertise in such areas as public and business administration, economics, criminology, program evaluation, data processing, statistical methods, and operation research.

Examples of projects in which this Office has played a major role include the analysis of proposed federal actions to combat a threatened increase in heroin importation; the development of a case management information system for the Division's litigating sections; the initiation of a Division-wide management review process; the design of a research program to assess federal efforts in combatting organized crime; and the review of United States Attorneys' policies for declining to prosecute certain categories of offenses.

A full description of the activities conducted by each of the Division's programs, together with information about their responsibilities and objectives, is set forth at length in the Activity and Program Narrative Section of the authorization submission previously provided.

With regard to the Division's reorganization, it should be pointed out that our new organizational structure has more closely aligned our programs to the functions we must perform; has improved supervision through the advent of a fourth Deputy Assistant Attorney General; has streamlined field support in areas such as immunity processing, wiretap requests, and witness protection; and, perhaps most significantly, has committed resources to the development of a comprehensive policy analysis and management planning capability.

In closing, I would like to emphasize that the Division has been assuming more of a leadership role in the criminal justice system. Our management team is generally young but experienced. It is pursuing a quite energetic and aggressive tack towards the discharge of our law enforcement mandate. In areas such as litigation, Federal-State-local prosecutorial relations, LEAA grant review, and Inspectors General support, the Division has and will continue to seek to provide a significant degree of national impetus and coordination.

During fiscal year 1981, the Division will maintain these thrusts, and will also continue its efforts to provide leadership, coordination, oversight, and direct litigatory participation in each of the Department's high priority programs against white-collar crime, public and corporate corruption, organized crime, and trafficking in narcotics and dangerous drugs, as well as in the Anti-Nazi unit. The Division will continue to enhance its support for U.S. Attorney personnel, and will make further strides in the evaluation and development of public policy and federal legislation for the criminal justice system.

This concludes my statement, Mr. Chairman. I shall be happy to answer any questions you or other members of the Subcommittee may have.

Mr. HEYMANN. The statement, once again as last year's, talks in terms of the reorganized structure of the Criminal Division as a vehicle for saying what we try to do in the Criminal Division.

What we are trying to do, Mr. Chairman, fits into a set of categories. I will sum them up in

very

short form, but the heart of the matter is that we exist, as this committee pointed out in a study of the criminal code, in the midst of a world that is largely populated with State and local prosecutors; they have the front-line responsibility.

We exist in a world that has 94 U.S. attorneys with perhaps 2,200— I think you know better than I do-prosecutors or prospective prosecutors out there around the country; and we number about 400 prosecutors. The 2,200 spend perhaps more than one-half, and somewhat less than two-thirds, of their time on criminal matters.

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Our job as I see it is to fill the gaps in the system of State and Federal prosecution that system is much larger than us-and to do what has to be done to make the system work together.

That is the way I define the Criminal Division's responsibilities. We take, as you know, a lead litigating responsibility in a handful of areas. The most important, by number, is the organized crime problem. We have perhaps 150 attorney positions there I will frequently talk in terms of attorney positions—there are, of course, a number of staff positions with them. That is a larger prosecutorial force than any U.S. attorney's office can put together, scattered across the country. As you gentlemen know, it is justified by the seriousness with which we, Congress, and the American people take the problem of any criminal organization which looks like it may be able to escape normal law enforcement efforts because of its control of violence, public corruption, obstruction of justice, and intimidation of witnesses.

It would be very serious if there were organizations out there that State and local police and U.S. attorneys could not handle, and who were well organized and well financed. There are such, but we also have a substantial program addressed to deal with them.

Other areas where we take a lead in litigation responsibilities are areas that involve foreign policy and illegal foreign payments. We still do most of those cases, if not all of them.

In national security matters we play a major role because of their complexity. Rarely they arise with regard to any individual U.S. attorney because of the need for dealing with the CIA, the Department of Defense, and the Department of State in Washington.

Besides those litigating responsibilities in certain, well-chosen areas, we have other gap-filling responsibilities.

We have to take a lead--and have been encouraged by this committee to take the lead-in the development and refinement of prosecutorial enforcement strategies, ones that help to keep the entire Federal operation where it should be and out of the area where States should be, and ones that at the same time focus us as effectively as we can be.

We have to support the U.S. attorneys in a variety of ways. I want to increase our support in the field.

There are areas of expertise where we have to and should be the fundamental resource the U.S. attorneys can turn to. We help with civil litigation arising from criminal matters. We help by providing backup personnel when a U.S. attorney's office suddenly finds itself swamped with a major or difficult case; we will call on our fraud section, our public integrity section, or our narcotics section to help.

A dramatic example of that is the Black Tuna cases out of Floridamammoth controlled substances, large cocaine smuggling cases, absolutely mammoth; we played an important if not exclusive role in staffing those cases from Washington. They were too big for the U.S. attorney's office in Miami to handle with its other demands.

We have a role to play in this entire system in dealing with questions of Federal legislation, fraud, prosecutorial policies, questions such as those that gave rise to our grand jury guidelines; and, finally, we have a special role to play in negotiating treaties dealing with foreign governments. I may have left out some. The idea I want to leave with you

is that we are conscious of two facts: One, that the overwhelming prosecu

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