United States v. Ojeda Rios

PETITIONER:United States
RESPONDENT:Ojeda Rios
LOCATION:Doby’s Motel Court

DOCKET NO.: 89-61
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 495 US 257 (1990)
ARGUED: Feb 28, 1990
DECIDED: Apr 30, 1990

ADVOCATES:
Richard A. Reeve – on behalf of the Respondents
William C. Bryson – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – February 28, 1990 in United States v. Ojeda Rios

William H. Rehnquist:

We’ll hear argument next in No. 89-61, United States against Filiberto Ojeda Rios.

Mr. Bryson.

William C. Bryson:

Thank you, Mr. Chief Justice, and may it please the Court:

This case involves the federal wiretapping statute, and in particular, the provision of that statute that deals with the requirement that at the termination of interceptions or extensions thereof, a judge must seal the wiretap… the products of the wiretap or oral interceptions.

I’ll use the term “wiretap”, if I may, just as a shorthand to cover both wiretaps and oral interceptions.

The case arose from a lengthy 16-month wiretap investigation in Puerto Rico, where a total of about a thousand, somewhat in excess of a thousand, tapes were generated in the course of the investigation.

When the prosecution was initiated in Connecticut, the defendants moved to suppress the wiretap evidence on a large number of grounds.

The district court denied the vast bulk of those grounds, but granted the suppression motion in part with respect to two groups of tapes on one ground.

And that ground was that the tapes with… those two sets of tapes had not been sealed quickly enough after the termination of the interceptions and the extensions, as the district court construed the term 2518(8)(a) of the wiretap statute.

Sandra Day O’Connor:

Mr. Bryson, the offense occurred in 1983?

William C. Bryson:

That’s right, Your Honor.

Sandra Day O’Connor:

And has the defendant ever been brought to trial?

William C. Bryson:

Well, a number of the defendants have been brought to trial.

The ones who are before the Court here are the ones that were severed out at the time of the… or following the loss of the evidence from suppression because these were the defendants as to whom that evidence was deemed to be essential.

There were a number of other defendants who have already been tried and most of them have been convicted.

One was acquitted.

Sandra Day O’Connor:

But, at least, Mr. Ojeda Rios has never been tried?

William C. Bryson:

That’s right.

He… he remains at large–

Sandra Day O’Connor:

And you… you take the position that the Speedy Trial Act does not preclude trial at this junction?

William C. Bryson:

–Oh, that’s right, Your Honor, because we have… there has been ongoing litigation on this issue ever since.

There’s never been a point in which nothing was going on.

In fact, this case has had an enormous amount of activity all the way through.

Sandra Day O’Connor:

The statutory provision under which the exclusion was made says basically that the presence of the seal–

William C. Bryson:

That’s right.

Sandra Day O’Connor:

–provided for by this subsection.

That’s the language used.

William C. Bryson:

That’s right.

Sandra Day O’Connor:

Doesn’t that phrase have the effect of incorporating the timing requirement provided for in this subsection?

William C. Bryson:

We don’t think so, Your Honor.

William C. Bryson:

Let me move to that argument.

Sandra Day O’Connor:

It certainly could be said to do so.

I mean, I am concerned with the language of the provision itself.

William C. Bryson:

As are we, and it could be said to… to do so, and the Second Circuit, the First Circuit and the D.C. Circuit have concluded that that is the proper reading of the statute.

We think it’s a very unnatural reading of the statute which isn’t supported either by the plain language of the statute, by its legislative history or really by the purposes of the statute.

And let me turn to that, if I may, right now.

The language, as you say, is the presence of the seal provided for by this subsection.

Our view is that means the judicial seal, the seal that a judge must put on the tapes at the time that the tapes are… are sealed.

Now, the… it then says, or a satisfactory explanation for the absence thereof.

Now, the purpose–

Antonin Scalia:

Do we have a judicial seal?

I never had a judicial seal.

Do we get issued these things?

I didn’t have one.

William C. Bryson:

–No, Your Honor–

[Laughter]

Antonin Scalia:

Just district judges have them maybe, huh?

William C. Bryson:

District judges are–

Antonin Scalia:

I always wanted one, you know.

You know, you could put a red–

[Laughter]

William C. Bryson:

–It… this is I think… it may not be exclusive to this statute–

Antonin Scalia:

Yeah.

William C. Bryson:

–but it certainly is unusual to have courts involved in sealing evidence.

But basically it’s the same thing as the seal that any one uses in the… in the context of establishing chain of custody.

You take a piece of evidence tape and you wrap it around the box and you’ve sealed it.

You put your initials on it and it’s a judicial seal.

So, it’s nothing really more complicated than that.

The judge can vary the procedure if he likes, but basically that’s the process.

Now, if Congress had met… Congress is using the words presence and absence of the seal.

William C. Bryson:

Now, presence and absence suggests that if you look for it and you say it’s absent, nothing’s there.

In fact, the argument that the defendants are making is that, well, this… what’s absent is a timely imposed seal, a timely affixed seal, which is a very awkward way to put the point,–

Congress, if they had wanted to deal with both delay and absence, could have easily said a seal not timely affixed… or delay or absence.

But they said absence.

What’s more, the… if you look at other applications of the same principle that they… they argue for, it demonstrates, I think, how strange the language is to… to import so much… to put so much weight on the phrase “provided for by this subsection”.

Sandra Day O’Connor:

Well, in your view, there would be no remedy for an unexcused delay in sealing?

William C. Bryson:

Well, certainly Section 2518(a)… (8)(a) would not provide an exclusionary principle.

That’s right.

Now, of course, delays in sealing can result in making the burden of authentication more difficult if in fact, as in this case, the claim is made that there was tampering with the tapes and the government has to come in and rebut by clear and convincing evidence any claim of tampering.

That’s what we did.

Sandra Day O’Connor:

Well, Congress may have intended some kind of prophylactic remedy here in the sense that if a… if a seal is provided immediately, you’re just going to eliminate the risk of much tampering.

William C. Bryson:

There is no doubt that they intended the immediate sealing to do exactly that, Your Honor.

They have… they had a ruling that the evidence is clear from the legislative history… they said, we want to avoid arguments on this point, we want you to seal it immediately.

But the question is what happens if you don’t.

And we submit that Congress did not say that any time you don’t seal immediately, that’s the end of the matter.

And no court has so held.

The rule does not apply across the board.

What Congress is saying is, look, seal immediately.

If you… if you have not sealed and if there’s no seal there, we’ll… we’ll have one narrow provision in which you will not be… simply not be allowed to argue that the tapes should be admitted and that is where you don’t have either a seal or a satisfactory explanation for a seal.

Antonin Scalia:

Mr. Bryson, I assume that if you… if you don’t do it right away, the district judge… you run the risk of the district judge saying, I’m sorry it’s too late.

William C. Bryson:

Of course.

Antonin Scalia:

Right?

William C. Bryson:

That’s right.

Antonin Scalia:

So it… it isn’t a sure thing that there’s no harm in… in not… in not doing it immediately.

William C. Bryson:

That’s right and… and–

Antonin Scalia:

You were lucky here, though, he… he did approve them.

William C. Bryson:

–He did approve it because this was… these were both (a) relatively short delays.

It wasn’t the case of a seal which was imposed two days before trial.

The parade of horribles that defendants–

John Paul Stevens:

Yeah, but what if it was?

John Paul Stevens:

What if it was?

What if a judge said… you did… just like marking exhibit, you ought to mark your exhibit before you hand it to… up for evidence.

You didn’t get the seal on these; here, you’d better seal it right now.

William C. Bryson:

–Well, if the judge is willing to seal it under those circumstances–

John Paul Stevens:

And that would make it admissible.

William C. Bryson:

–our position would be the statute would fall out.

It wouldn’t be applicable.

John Paul Stevens:

So it’s entirely up to the judge to… to let anything in of this kind he wants to?

William C. Bryson:

Well, under 2518(8)(a) that’s… that’s… that’s true.

Now, it may be–

John Paul Stevens:

Well, also under the other… it doesn’t violate the other section.

William C. Bryson:

–No.

But it would have to… we would nonetheless still have to establish the authenticity of the–

John Paul Stevens:

Well, maybe the judge says, well, I don’t think the government agents aren’t going to use phoney evidence.

I don’t even have to look at this.

I’ll presume they were fair.

William C. Bryson:

–Well, if… if the judge did that, I suspect, depending on the strength of the… of the allegations–

John Paul Stevens:

Well, it would comply with statute.

It would comply with the statute under your reading.

William C. Bryson:

–Well, that’s right.

But we would still have to establish authenticity under the Federal rules and under the rules set forth by the courts with respect to tape-recorded evidence, which is a… a significant burden.

It’s just that this particular provision would not bar–

John Paul Stevens:

This particular provision would be totally meaningless.

William C. Bryson:

–Well, it would be inapplicable.

I think not meaningless.

It… it would not… simply wouldn’t apply to that set of facts.

John Paul Stevens:

It would not impose any burden at all if the judge was willing to seal it.

William C. Bryson:

That’s right.

John Paul Stevens:

Yeah.

William C. Bryson:

That’s right.

William C. Bryson:

That… we would still have the burden, of course, in the sense of we would have not complied with the immediate sealing requirement.

And we would be subject, for example, to contempt, which is found in 2518(8)(c)… any violation of the subsection is subject to contempt… so the prosecutor–

John Paul Stevens:

When the judge is willing to seal it he doesn’t have to hold you in contempt.

William C. Bryson:

–Well, that may be, although it’s not clear that–

John Paul Stevens:

Let me ask you another question.

How does someone challenging authenticity go about proving it?

I mean, say you have custody of tape for three or four months and you get somebody on the witness stand that says, I don’t know anything that ever happened, it was sitting in the drawer all the time.

How can anybody ever challenge that testimony?

William C. Bryson:

–How… how can they challenge the authenticity of the tapes?

John Paul Stevens:

Yeah.

William C. Bryson:

Well, they… they made the statements on the tapes.

If they say, you have got stuff on that tape that I never said, I have no involvement with this robbery, I never said anything about Wells Fargo, I’m a complete stranger to this thing, and there’s my voice saying in a spliced form that I did this.

I’m going to challenge that, number one, by showing that there is no valid chain of custody and, number two, I’m going to bring my expert in and I’m going show that those words were stuck together like the pieces cut out of the newspaper in effect and stuck on the tape.

That’s the way it happens.

The person whose voice is intercepted is in a good position to know if he said those things.

And–

Antonin Scalia:

And that same… that same process would… would transpire whether it was sealed or not, presumably.

William C. Bryson:

–That’s right.

Antonin Scalia:

I mean, you could make the same argument.

William C. Bryson:

That’s right.

The seal is an aid in that it establishes a better chain of custody than if there was no seal.

What it does is… and the reason that it is really welcome to the government, is something the government has an incentive to put on… is that it takes care of everything from the moment that seal is… is put on, when the judge puts it on, to the moment of trial.

Because when the judge rips the seal off and it’s still intact, assuming somebody hasn’t really gone wild and gone out and gotten the seal off, steamed it off or something and replaced it… you always take that risk.

But basically you have a very solid chain of custody.

Anthony M. Kennedy:

As a practical matter, once the tapes have been sealed and the government wants to have access to them to prepare for trial, what do they do, make copies?

William C. Bryson:

Well, they generally will have made copies in advance and they will be working from the copies.

Or if they haven’t, they can go to the court–

Anthony M. Kennedy:

So you make a copy in advance of submitting it to seal?

William C. Bryson:

–Oh, yes, that’s… that’s not infrequent and the courts have approved that… that procedure.

Now… and in fact, in some courts there… there have been delays which have been accepted as satisfactory or explained delays based on the time taken to make copies.

William C. Bryson:

The court can… the government can also go back to the district court, as the statute specifically provides, and ask for an order unsealing for a specific purpose and resealing so that there isn’t any strict prohibition against going back and getting the tapes.

William H. Rehnquist:

But even if the tape is sealed, the government has to authenticate it, doesn’t it?

William C. Bryson:

Oh, sure.

Absolutely.

It’s just an easier process, of course.

William H. Rehnquist:

When you referred a moment ago to the… a clear and convincing standard of evidence, is that provided in the rules?

William C. Bryson:

No.

That has… has developed in the courts of appeals and in the Second Circuit as a specific rule applicable to tape-recorded evidence.

William H. Rehnquist:

What’s… what’s the basis for that rule?

William C. Bryson:

There isn’t any basis in the rule, Your Honor.

What it is… it’s simply… the rationale is that tape-recorded evidence is hard to… it’s hard to tell whether it’s authentic or not and, therefore, we’re going to put on the government a particularly high burden.

It’s really created as a sort of common law evidentiary rule.

Now, if push came to shove, the question of whether Rule 901 compels that, I think probably not.

But that certainly is the rule that’s followed by… by courts of appeals.

Byron R. White:

Does that just go to the explanation for the absence of the seal or with respect to authenticity?

William C. Bryson:

With respect to authenticity.

Byron R. White:

Only?

William C. Bryson:

Well, that’s right.

That’s right.

William H. Rehnquist:

Doesn’t… doesn’t Rule 901 provide the way things shall be authenticated?

William C. Bryson:

Yes, it does, and… and I think the better argument… I think those courts of appeals that have held clear and convincing evidence as a requirement may well be wrong, and that’s not the issue before the Court.

In this case, the district court, following established Second Circuit precedent, found the tapes in question… or at least the tapes that he addressed… he didn’t address all of the tapes… but the ones he did address, he found to be genuine by clear and convincing evidence following Second Circuit precedent.

Now, you… you could look at the legislative history as well and find that while it’s not dispositive… this is not legislative history that simply solves the problem if it ever does… but the legislative history is, I think, instructive in that it… it… there is no reference, no suggestion that the Congress was trying to deal not only with the absence of a seal but also with delays in sealing.

Antonin Scalia:

This seems to be our week for the dog that didn’t bark legislative history.

This is another one.

I mean, your point is that there is nothing in there–

William C. Bryson:

Well, I can to a little–

Antonin Scalia:

–that says that it should be excluded from that reason.

William C. Bryson:

–I can do a little better than that.

I think the dog not only didn’t bark but he sort of licked at the hand of the master.

Antonin Scalia:

Did he lick the hand?

William C. Bryson:

Yes.

Antonin Scalia:

Okay, well–

[Laughter]

William C. Bryson:

In this case… let me just run through what… what we have.

The statute really had its origin in the task force report on organized crime in 1970… 67 of President Johnson’s Commission on Law Enforcement and the Administration of Justice.

There was a draft statute in the appendix of that report which turns out to be very close to what ultimately became Title III.

And in particular, the draft provision that we’re dealing… or the provision we’re dealing with here was almost exactly word for word the draft provision that showed up in that report.

And the language used to describe that draft provision was… at page 103 of the report… was that after saying that the seals… the tapes should be sealed when the interception is terminated,

“The seals should be a prerequisite for admission unless the satisfactory showing could be made for its absence. “

The seal should be a prerequisite.

No reference to delay… just the seal.

Again, in the Senate report, we have,

“The presence of the seal, noted above, the judicial seal, is intended to be a prerequisite for use unless a satisfactory explanation can be made to the judge. “

Then in a statement on… that was put into the record prior to the enactment of Title III by Senator Scott, a shorthand description of the provisions of the bill said,

“Unless under seal or no satisfactory explanation of its absence, the information contained in such recording may not be used. “

Not only is there no hint of delay, but we’re talking about unless the seal is there.

And there is no reference to the provided for language, which you would think would show up if they really were focusing on that language to trigger the requirement… to trigger the delay factor.

Now the respondents argue that there are policy reasons–

John Paul Stevens:

But couldn’t you also interpret that history as saying they’re assuming the seal wouldn’t be there unless it were put on immediately, as the statute requires?

William C. Bryson:

–Well, you… you could.

You could interpret it that way.

John Paul Stevens:

And if you do interpret it that way, then it adds up to nothing.

William C. Bryson:

That’s right.

John Paul Stevens:

Yeah.

William C. Bryson:

If you interpret it that way.

My submission is not that this legislative history is a bell ringer and I can sit down.

But I think it’s… it’s helpful and I think it does a little more than say there is no reference to delay.

It… it suggests what we’re talking about is a seal that’s absent.

That’s the language.

John Paul Stevens:

Well, is there anything in the legislative history that suggests that there is any purpose for the seal other than to be sure that it was affixed in a timely manner?

Isn’t that the only reason they wanted the seal is to get it on their right away?

William C. Bryson:

Well, they certainly wanted it on there right away but there is a reason for the seal whenever it goes on, which is that even if it’s two weeks late or three weeks late or six weeks late, it… it cuts off the problem of… of risks of… of lack of authenticity from whatever point forward that it’s put on.

In this case, for example,–

John Paul Stevens:

So its… its only function is a temporal function, really.

I mean–

William C. Bryson:

–Well–

John Paul Stevens:

–it’s a different… a question of when it gets on is… is the only thing that has it serve any statutory purpose.

William C. Bryson:

–Well, its… its function is to establish authenticity.

It does that, depending on whenever it’s put on with respect to timing.

That’s true.

But it’s function is–

John Paul Stevens:

Well, it’s to prevent any post-sealed questions of authenticity–

William C. Bryson:

–That’s right.

John Paul Stevens:

–from being raised.

William C. Bryson:

That’s right.

Yeah.

Or at least make it harder.

And one could always claim again that somebody had steamed off the seal but–

Thurgood Marshall:

If it’s put on the day before trial, it’s no good, is it?

William C. Bryson:

–Well, Your Honor, it may well be no good.

Thurgood Marshall:

I mean, would it… would it serve any purpose?

William C. Bryson:

It would… certainly not.

It would serve no purpose.

I would think a judge being asked to put a seal on the day before trial would simply laugh at the person who walked into his or her office with that request.

Thurgood Marshall:

This [inaudible] involves time [inaudible]?

William C. Bryson:

Certainly.

In time… if you… if you come in on the day before the trial with a request for sealing–

Thurgood Marshall:

Did the Department of Justice take any position on this provision to the bill?

William C. Bryson:

–This was… this was not the administration’s bill and, Your Honor, I can’t tell you whether there was any objection.

William C. Bryson:

I doubt it… I can’t tell you, but I doubt it–

Thurgood Marshall:

I don’t think it amounts to–

William C. Bryson:

–because it was not a provision that was at all controversial and it went right through all the versions of the statute.

The statute went through several versions and… this… this provision stayed unchanged throughout.

I don’t remember in the department’s commentary that there was any reference to it.

I believe not.

If I may, I’d like to turn to the question of whether, assuming that delays are covered, there was a satisfactory explanation, as the statute provides, in this case for the delay or, even assuming that satisfactory explanation means something like good cause, whether there was in fact good cause in this case for the delay.

Now, our position with respect to the satisfactory explanation requirement is that you must do the following.

You must give a credible explanation to a court of why there was a delay.

And the question is then, well, what more must you do?

We say that the more that’s required turns on the interpretation of the word “satisfactory”, which is a somewhat difficult term to handle.

It’s not clear what it means.

You could interpret it to mean simply that an accurate description, a description that satisfies the court that this is an accurate description of what happened even if the… what happened was that the tapes got tampered with.

But we think it requires more than that.

In light of the purpose of the statute, we think that what it requires is that you explain to the satisfaction of the judge, that you… that the tapes have not been, in fact, tampered with, that they are pristine.

And once the judge can sit back and conclude that that’s the condition of the tapes, then that constitutes a satisfactory explanation.

Now, this–

William H. Rehnquist:

–How different… how different is that than the sort of showing you’d put on simply to authenticate it?

William C. Bryson:

–It’s… it’s not very different.

It would be a very similar kind of showing.

Antonin Scalia:

That’s a… that’s a very… let me understand what you’re saying.

You’re saying, assuming that you lose on the point that–

William C. Bryson:

Yes.

Antonin Scalia:

–that the presence of a seal means the presence of a seal that was put on immediately… right?

William C. Bryson:

Right.

Antonin Scalia:

–then all you have to do to establish a satisfactory explanation for the absence of a seal that was put on immediately is to show that this is nonetheless an authentic tape.

William C. Bryson:

Well, we have to have a credible explanation and that satisfies the explanation part.

And then the question is what does satisfactory mean.

And we submit that if the judge is persuaded by our… by our explanation that the tapes have not been tampered with… tinkered with… then that’s satisfactory.

That’s our interpretation.

Antonin Scalia:

But what is the explanation, though?

It’s very strange.

William C. Bryson:

In this particular case?

Antonin Scalia:

Yeah.

William C. Bryson:

Oh, well, our explanation was there was one legal error made, arguably.

We’ll concede for present purposes there was a legal error made.

The lawyer whose–

Byron R. White:

I know, but you seem to say that all you have to do is to prove that the tapes are… haven’t been tampered with.

William C. Bryson:

–Well, we have to… we have to show an explanation.

We came forward with an explanation.

Our explanation was we made a legal error, arguably, in interpreting the word “extension”.

Byron R. White:

And that’s why you delayed.

William C. Bryson:

And that’s why we delayed.

Now, the question is is that a satisfactory explanation.

Byron R. White:

Yes.

William C. Bryson:

Now, it’s satisfactory in one sense that it explains–

Byron R. White:

I got you.

All right.

William C. Bryson:

–accurately, truthfully and with no doubt what happened.

There’s no dispute about that.

William H. Rehnquist:

Well, what does the term “explanation” apply to?

William C. Bryson:

Well, it does applies to our coming forward and telling the judge why there was a detail… a delay in the sealing.

William H. Rehnquist:

In other… it’s an explanation of the delay?

William C. Bryson:

That’s right.

William H. Rehnquist:

Is that what your position is?

William C. Bryson:

That’s right.

Antonin Scalia:

Gee, don’t… don’t you think satisfactory explanation must mean an explanation as to why the delay is excusable?

William C. Bryson:

Well, I… we think–

Antonin Scalia:

I… I… nobody would read it that way.

William C. Bryson:

–It can be… in a sense it is because we say that it’s excusable if–

Antonin Scalia:

So long as you–

William C. Bryson:

–in fact it had no consequence in resulting in the alteration of the tapes–

Antonin Scalia:

–No, no.

William C. Bryson:

–as opposed to being a good reason or a good cause.

Antonin Scalia:

Do you think it’s a satisfactory explanation if the department comes in and says, well, you know, we just… just didn’t want to take it to this judge and we… and, yeah, we know we should have taken it in, but we just didn’t want to do it?

William C. Bryson:

Well–

Antonin Scalia:

We had an attorney general who didn’t believe in this provision of the law and we decided not to take it in.

But we assure you it has not been tampered with.

William C. Bryson:

–Well, and–

Antonin Scalia:

And that is a satisfactory explanation, as I understand you’re… you’re saying.

William C. Bryson:

–That’s correct.

And the reason is because if the judge… that is the truthful explanation.

Now, an attorney may come in and say this attorney was a rogue attorney… this is not the case in this case… but some attorney, well, just decided not follow the statute, said to heck with the statute, I’m not going to follow it, I’m not going to seal, it’s too much trouble.

And we come in and we explain that to the judge and we say this–

Antonin Scalia:

Nobody is perfect.

Right–

William C. Bryson:

–it was a mistake to have… nope.

Well, not only is nobody perfect, but some people are just irresponsible.

And this was an irresponsible act.

That’s our explanation.

Now, question: is this the satisfactory explanation?

We submit in light of the purposes of the statute, it is if we can further show that the tapes have not been tampered with.

This is a chain… essentially a chain of custody rule.

Suppose that we were dealing with nothing more than a rule that said establish chain of custody from place A through place Z or provide a satisfactory explanation for what’s missing, we would–

Byron R. White:

–Well, on that… on that basis you don’t even… never… don’t have to have it sealed at all.

Ever.

There’s no reason to do it, you’re saying, so long as it’s authentic.

Who cares about a seal?

William C. Bryson:

–There is a very good reason for a seal.

Byron R. White:

Well, I know, but you… but you would still have this satisfactory explanation if there wasn’t a seal.

Byron R. White:

This is a–

William C. Bryson:

We would.

That’s right.

Byron R. White:

–Here’s why we do… we just don’t believe in seals, we never did, and we don’t think there ought to be a seal on this tape.

William C. Bryson:

That is correct.

Byron R. White:

That’s… now, is it satisfactory?

Well, yes it is because the tapes are… haven’t been tampered with.

William C. Bryson:

That’s right.

But, of course, we’d have to go through a lengthy hearing, as we did in this case.

There’s no incentive for us to do that.

If we did… if it did come to that, yes, I think that’s right.

But the evidence–

Anthony M. Kennedy:

But as I understand it, you would have to go through the lengthy hearing in all cases to authenticate.

William C. Bryson:

–No, because I think what happens, Your Honor, is that if you have a chain of custody established in part with the aid of the seal, the judicial seal–

Anthony M. Kennedy:

Well, we’re presuming there’s no seal.

William C. Bryson:

–Well, in that case, you’d have to go through a long hearing in all likelihood, if there is any colorable showing made that anything may have happened to the tapes in the meantime.

That’s right.

Byron R. White:

Do you have a fall-back position?

William C. Bryson:

Yes, we do.

[Laughter]

Let me… let me move without further delay to the fall-back position.

Thurgood Marshall:

Mr. Bryson, before you… before you fall back, if we file an opinion agreeing with you, aren’t we, in effect, amending that statute?

William C. Bryson:

No, Your Honor.

I don’t think so.

I think that–

Thurgood Marshall:

Well, have… have we yet an explanation of why it wasn’t done?

William C. Bryson:

–Yes, and I’m going to give you that… you haven’t yet, but you’re going get it right now.

I’m going to explain.

What happen was in this case is the attorney construed the term “extensions” to mean, any… if you’re following a particular target through the series of wiretaps and you go from house A to house B to house C, then the wiretap at house B is an extension of the wiretap at house A and the wiretap at house C is an extension of the wiretap at house B.

That’s the way he applied the term with respect to the key interceptions in this case.

William C. Bryson:

He had a somewhat broader concept of extension in general in which he felt that any… any–

Thurgood Marshall:

Well, will you pardon me if I say I don’t understand it?

William C. Bryson:

–Well, it may well be wrong–

Thurgood Marshall:

I mean, the statute says–

William C. Bryson:

–but that was his… that was his conclusion.

Thurgood Marshall:

–He read the statute.

The statute said put the seal on and he didn’t put it on.

William C. Bryson:

Well, that’s right.

That’s right.

But he… the reason was because–

Thurgood Marshall:

So how does he explain that?

William C. Bryson:

–Because he didn’t think it was necessary to put it on at that time because he felt that the extension–

Thurgood Marshall:

Well, it said so.

The statute said so.

Can’t he read?

William C. Bryson:

–Well, that’s… that’s the question, Your Honor.

It’s not clear that the statute meant that he had to put the seal on at the moment that the interceptions terminated because you can put the seal on after the extensions of the interceptions terminate.

And he construed the term “extensions” to apply to any of the related wiretaps in the same investigation, particularly, as in this case, when you are following a particular individual from place… place to place.

Anthony M. Kennedy:

Do you… do you interpret the term “extension” to modify the period… period of the order?

I mean, upon the–

William C. Bryson:

Order–

Anthony M. Kennedy:

–separation of the period of the order or extensions thereof.

William C. Bryson:

–I think it means order or extensions.

Not period, but order or extensions.

The district court found he acted in good faith.

He was negligent.

The district court thought it was a legal error and he shouldn’t have made it, but that there was no intentional… he did not intentionally ignore the law or deliberately fail to seal.

It was the result of a misunderstanding and that the only basis on which the district court suppressed was that the delay was simply too long.

The court of appeals found that he had really disregarded the sensitive nature of the activities undertaken but still did not upset the district court’s findings of good faith.

And in this case, we submit that because this was a single legal error which we think, in light of the Second Circuit cases such as Principie and Scafidi, was an understandable legal error, if it was an error, then there should not be exclusion in this case because it was satisfactorily explained.

William C. Bryson:

I would like to reserve the rest of my time.

William H. Rehnquist:

Very well, Mr. Bryson.

Mr. Reeve.

Richard A. Reeve:

Mr. Chief Justice and may it please the Court:

Title III mandates that all electronic surveillance recordings are to be sealed immediately upon the expiration of each order or extensions thereof.

It is undisputed in this case, that the government violated that statutory mandate.

In addition to creating the requirement of an immediate seal, Congress, at the same time in the same subsection, created an independent prophylactic rule of exclusion.

That rule of exclusion does not contain a prejudice test as the government contends today before this Court.

In fact, the sole exception to that rule of exclusion is if the government provides a satisfactory explanation for the absence of that immediate seal.

None was provided in this case.

The courts below were correct in finding no satisfactory explanation and excluding the evidence.

William H. Rehnquist:

Well, the critical language doesn’t say immediate seal, Mr. Reeve.

Richard A. Reeve:

Your Honor, it is not explicit in that way, but I–

William H. Rehnquist:

Well, it doesn’t… it doesn’t contain the word “immediate”, does it?

Richard A. Reeve:

–It does not in that sentence of the provision.

William H. Rehnquist:

Yeah, that’s… well, that’s what I am asking.

Richard A. Reeve:

Yes, Your Honor, and I’d like to address that.

And I think that there are three questions that can reasonably be asked in construing this statute.

Number one, what did Congress say?

Number two, what did Congress not say?

And, number three, did Congress know how to create a prejudice test in a rule of exclusion if they desired to do so?

And I’d like to focus on the language of the statute, Your Honor, which is the question that you raised.

It is correct, and Justice O’Connor noted, that the language requires

“the presence of the seal provided for by this subsection. “

The language does not say the presence of a judicial seal or the presence of a seal.

It says that seal provided for by this subsection.

Antonin Scalia:

Of course, because that is what they were talking about.

Richard A. Reeve:

Exactly right.

Antonin Scalia:

They didn’t want to say any seal in the world would suffice.

Richard A. Reeve:

That… well, that’s–

Antonin Scalia:

How else would they have said it if they just meant, you know, the kind of a seal we were talking about?

Not necessarily timely, but… but the seal that we have been talking about here.

Richard A. Reeve:

–Well, Your Honor, I think that… that… that it’s clear when you look back, when you asked the question… what is the seal provided for by this subsection?

It is not just a judicial seal.

It is an immediate seal and there’s no question about that.

In fact the government in its reply–

Sandra Day O’Connor:

But even so, the statute does go on, when it talks about the use of the evidence, to say that there must be a satisfactory explanation for the absence of a seal.

Richard A. Reeve:

–Well, Your Honor, it does although it doesn’t–

Sandra Day O’Connor:

And you would read it as though it said a satisfactory explanation for noncompliance with the immediate sealing requirement.

Richard A. Reeve:

–Well, Your Honor, I respectively differ with the Court in… in terms of what the language is.

What is says is a satisfactory explanation for the absence thereof.

And the word “thereof” is used not just in that sentence but in the first sentence which is in question, where the statute says

“the period of the order or extensions thereof. “

And just as that thereof refers to the period of the order, in this case, a satisfactory explanation for the absence thereof refers to the seal as provided for by this subsection and, as I have previously discussed, the seal provided for by this subsection is an immediate seal.

It’s not a seal the day before the tapes are sought to be admitted.

It’s an immediate seal.

Congress could have said it differently, but they did not.

And Justice Scalia inquired of my brother counsel as to whether or not, if the tapes were submitted to a district court judge the day before the government sought to admit that evidence, would that judge… might that judge refuse to seal those tapes.

My suggestion is when you look at the statutory language there is no authority on the part of a district court judge to do that and the government would argue precisely that before a district court.

What the statute says is the recording shall first be made available to the judge issuing such order and, two, sealed under his direction.

Shall.

The mandatory term of that sentence clearly applies to both the submission and the seal.

And if that isn’t clear there, it’s clear in Subsection B of 2518–

Antonin Scalia:

Well, wait… your… your… come to think of it, that is the logical consequence of your argument.

You… you cannot even apply to get a seal late because that would not be the seal as provided for by this section.

It’s no use if you’re late, right?

Richard A. Reeve:

–No, Your Honor.

Antonin Scalia:

Why not?

Richard A. Reeve:

Because that… that section, immediately upon the expiration of the period of the order–

Antonin Scalia:

Yeah?

Richard A. Reeve:

–defines when the government is to do it.

Antonin Scalia:

Right.

Richard A. Reeve:

Now, if the government–

Antonin Scalia:

I’m a district judge and I say, gee, I cannot give you a seal as provided for in this subsection because a seal as provided for in this… in this subsection… does it say subsection?

Is that what it is?

Yes.

Richard A. Reeve:

–Yes, it is, Your Honor.

Antonin Scalia:

I cannot provide you a seal as provided for by this subsection because such a seal is a seal that is issued immediately upon expiration of the… of the order.

The order has long… expired two days ago.

I’m sorry, I cannot give you such a seal.

That would be a terrible result.

Surely you want it sealed as soon as possible.

Richard A. Reeve:

Your Honor, it would be my interpretation of the statute, based on the language in that sentence as well as in the language of the second section, that is, Subsection B which says all orders and applications shall be sealed by the court, that the court does have a mandatory duty, and that the government could make that argument.

That’s not a central issue, I don’t believe, to the proper interpretation of this section because the reality is that… I believe and in our view… the language is plain, and Congress put that language “provided for by this subsection” in there for a clear reason.

Otherwise… otherwise the statutory provision simply does not make sense.

Sandra Day O’Connor:

What is the harm to your client if the proof is by clear and convincing evidence that the tapes are authentic and accurate?

Richard A. Reeve:

Your Honor, I would respond in two ways.

There is no specific individualized prejudice in this situation.

That is, and the reason is, Congress did not create a prejudice test.

The same prejudice is suffered by everyone… everyone in this courtroom when the government violates the law.

It is a prophylactic rule.

That was what Congress established.

And so there is no specific prejudice.

It is the general prejudice occurs whenever the government violates the law.

And that’s what Congress intended to avoid.

And I would like to get to that issue because the next issue which the government raises is, well, how do we define the term “satisfactory explanation” for the absence of that immediate seal?

And I think you have to apply common sense, and I’d like to suggest a common, everyday situation which might shed some light on the situation.

Suppose a parent imposes a curfew on his son and it’s a 12:00 midnight curfew.

The son goes out, comes home at 3:00 a.m. The parent sits the child down in the living room and says, you’re not home until after three hours after that curfew, you’d better have a good explanation and I’d like to hear it now.

Now, if the child responds as the government contends is an appropriate response here in this context, if the child responds, well, I didn’t get in any trouble out there so don’t worry about it, no harm/no foul, the parent is going to say, that is not what I asked you.

Richard A. Reeve:

I asked you why you violated the curfew.

Why is it that you’re three hours late?

And that’s exactly what this statute asks.

What is the explanation for why you failed, why you violated the law?

Antonin Scalia:

I think you’re right about that but I also think the parent, if he or she did not get a satisfactory explanation, would not throw the kid out of the house for the rest of the night.

[Laughter]

Richard A. Reeve:

Your Honor, I… I suppose there’s all different kinds of parents in the world, and–

[Laughter]

I… my children are not yet old enough that I have to worry about curfews.

I’m going to get to that in a few years.

But the fact of the matter is that Congress made a decision as to what the appropriate remedy is.

And that is a decision which members of this Court may feel is wrong.

Everyday… all of us feel that Congress creates statutes which may in our judgement, be wrong.

But it’s not… with all respect to the Court, it’s not this Court’s position to determine whether or not that’s a wise statute.

Congress imposed it.

It created a prophylactic rule, and it’s there.

And I think the question of whether or not there is a prejudice test can also be answered by thinking about did Congress know how to create a prejudice test, if it desired to do so in a rule of exclusion.

The answer is clearly yes.

If one takes a look at other statutes in the area of criminal law… for example, the Speedy Trial Act, Section 3162(b), I believe it is, which this Court reviewed recently in the Taylor case… what that test in that section is, Congress said in a district court in determining whether or not an indictment should he dismissed with or without prejudice shall consider the following factors.

There Congress created a prejudice test.

Alternatively, in the Jenks Act, Section 3500, Congress created a mandatory exclusion provision.

If the government elects not to comply with an order of the Court to turn over evidence, either the testimony is stricken or, if the court determines it is in the interest of justice, a mistrial is ordered.

Some of us may disagree, but that’s what Congress said.

Byron R. White:

Well, how… how did all these other… other circuit courts of appeals get off the trolley.

Was it four… four others?

Richard A. Reeve:

Your Honor, with respect, I think it’s important to break down the issue, and… and I want to address it.

First of all, with respect to the issue of whether or not the provision implies to late sealed tapes as well as unsealed tapes, there is unanimity among every circuit.

There is not a single lower court decision that supports the government’s interpretation in their first argument.

With respect to the second issue, there are, I believe, four courts who in various ways say we really need to focus on tampering.

With all respect, I suppose–

Byron R. White:

And there… there are four other courts that would… would have come out differently in this case.

Richard A. Reeve:

–That’s correct, Your Honor.

And that’s why this Court accepted, as I understand it, accepted this case on certiorari.

I respectfully disagree with that analysis.

I think that it would be presumptuous for me to try to analyze or psychoanalyze why they did what they did.

With all respect to those lower courts, we believe that they erred.

And I want to… in terms of–

Antonin Scalia:

Excuse me, I didn’t understand.

Richard A. Reeve:

–Yes, sir.

Antonin Scalia:

What… in what respect have they not agreed… has not a single one of them agreed–

Richard A. Reeve:

Yes, sir.

Antonin Scalia:

–with the government?

In what respect?

Richard A. Reeve:

The government’s initial argument, that is, that the exclusionary provision of Section 2518(8)(a) only applies to cases where the seal is absent.

Absent entirely?

Richard A. Reeve:

But it does not apply to cases where the seal is late.

There is not a single court which has… which has held that.

William H. Rehnquist:

Was that… was that argument made to each of the courts which you say have not held it?

Richard A. Reeve:

Your Honor, in a number of cases it was and those courts have held.

In… in the other cases, I can’t tell, Your Honor, that the argument was made in each of those cases.

What I can say is that every single sealing case that’s reported that I’m aware of deals with late sealed tapes.

None deal with absence.

And they all reached the issue of satisfactory explanation.

They applied different tests to that question, but they all reached that issue.

So at the least, implicitly, I’m not prepared to say that in all of those decisions the issue was raised by the government.

Antonin Scalia:

Does any of them find an unsatisfactory explanation and exclude the tape?

Richard A. Reeve:

Your Honor, as we indicated in our brief, there’s only one reported decision that I am aware of where a court of appeals has specifically excluded evidence.

There are a number of cases where the government has conceded a violation of the statute and it has not been litigated in a court appeals.

That is–

Antonin Scalia:

Has there been any case where there was a seal but that it was put on late where the evidence was excluded?

Richard A. Reeve:

–Yes, Your Honor, and that’s the case of United States v. Gigante.

In addition, I would cite to the Court United States v. Fury.

That is a… that is a case where the government conceded that they had violated the statute and the question there was a derivative use question.

There are decisions where tapes have been excluded.

There are not a number of decisions where the issue has been resolved.

William H. Rehnquist:

Gigante is also a Second Circuit case like this one?

Richard A. Reeve:

It is, Your Honor, and it is… it is a Second Circuit case.

I want to get back, if I might, to the issue of does Congress know how to create a prejudice test because I think, importantly in the context of this case, if you look at Title II of the Omnibus Crime Control Act of 1968, that was, as the Court is probably aware, the… what I would refer to as Congress’ effect… attempt, excuse me… to legislatively repeal, if you will, this Court’s decision in Miranda.

And what Congress did is they passed… I believe it’s Section 3501 of Title 18… which basically relegated the giving of Miranda warnings to one category, and they indicated none of these are dispositive.

If there was any question that Congress did not create a prejudice test in this section, one need only look at the very next subsection of Section 2518 of Title III… and I refer to Section 2518, Subsection 9.

And in that provision Congress required–

John Paul Stevens:

Where is that reproduced?

Is it in your brief, in the appendix somewhere?

Richard A. Reeve:

–Your Honor, it may not be.

I have a copy of the United States Code here–

John Paul Stevens:

No, we have one somewhere.

Richard A. Reeve:

–I don’t believe it’s… I don’t believe it’s in the briefs, and I apologize for that.

It’s an analogy that I want to make because that section requires ten-day notice.

It’s a ten-day notice rule before the government seeks to admit Title III recordings.

And what Congress said in that very next subsection is… they said, there’s an exception here.

If… it’s two… it’s based on two conditions.

Number one, if it was not possible to comply with that and if the defendant is not prejudiced by the lesser amount of disclosure.

And so had Congress wanted to create a prejudice test within this sealing requirement, they clearly knew how to do it.

They would have done it and they didn’t do it.

William H. Rehnquist:

The gist is the… if the defendant is not prejudiced by the shortness of notice in the section you are talking about?

Richard A. Reeve:

That’s correct.

That’s exactly right.

And Congress specifically used the term “prejudice”, whereas in this section, there is no reference to prejudice.

And the government effectively is asking this Court to find it somewhere out there somehow in the term and the requirements satisfactory explanation.

It’s not there.

Richard A. Reeve:

It doesn’t exist, and it shouldn’t be found.

The other… the other thing that I would just suggest to this Court is that the Giordano case, a unanimous decision by the Court with respect to the issue involved… that I want to address.

It was a decision authored by Justice White.

It was a decision in which the question was whether or not the executive assistant attorney general was an authorized person within Title III to authorize an application.

This Court looked at the plain language of the statute and said no.

One of the arguments made by the Solicitor General in that case was as follows.

An affidavit by the executive assistant attorney general which said, gee, the reason I signed this is because the attorney general was out of town.

I knew he would have authorized it.

I talked to him afterwards.

He would have authorized it.

In effect, if you will, a result-oriented approach to an exclusion provision in Title III.

This Court rejected that, said Congress has decided the remedy.

Congress has decided where there’s exclusion and it’s up to Congress.

And, Your Honors, my suggestion is that’s exactly the appropriate position that this Court should take.

And, indeed, what happened two years after Giordano is Congress amended the statute.

And that’s the procedure we should apply here.

If the statute’s wrong, then the Justice Department should approach it and convince Congress to amend it.

But not come before this Court.

The… yes, Your Honor.

Antonin Scalia:

If we adopt your rule that in effect a late-sealed… a late-sealed intercept is… is invalid, wouldn’t you have two district judges passing upon the same question?

I assume the first district judge to whom the thing is presented, you bring it up to him and say, please seal this.

Don’t you think he has an obligation not to seal it if he thinks there’s no excuse for bringing it to him this late or do you think the seal goes on automatically?

Richard A. Reeve:

I think… my interpretation of the statute is that the seal goes on automatically.

That’s an issue which, as far as I know, has not been litigated in the courts below.

But it would be my… it would be my view and my interpretation that that’s… that that’s correct.

Antonin Scalia:

I think if… if you win this case that probably has to be… has to be correct or you’re going to have two judges basically passing on the same thing… two district judges.

Richard A. Reeve:

Well, I suppose that that might be correct although there’s no statutory test that… that establishes, for example, assuming that the initial judge has to do some tests, what that test is.

The test is set up for the district court dealing with the tapes because–

John Paul Stevens:

Well, isn’t that an ex parte proceeding?

Richard A. Reeve:

–it comes up in the context of this pleading.

Richard A. Reeve:

Excuse me?

John Paul Stevens:

Isn’t that an ex parte proceeding?

It’s ex parte.

Richard A. Reeve:

It certainly is, Your Honor.

John Paul Stevens:

Surely you wouldn’t be fighting about whether he–

Richard A. Reeve:

That’s right.

It’s an ex parte proceeding in which defense wouldn’t be given any notice and in effect you’d be replacing the adversary process with such an ex parte hearing.

William H. Rehnquist:

–Mr. Reeve, what part does the satisfactory explanation requirement of the section we’re talking about play under your analysis of the seal requirement?

Richard A. Reeve:

Your Honor, the satisfactory explanation plays a critical component.

If the government fails to immediately seal the tapes and the courts have pretty uniformly held immediate as within one or two working days of the court, then the government bears the burden of coming before the district court and establishing a satisfactory explanation.

That, I would suggest to the Court is something more than negligence, it’s something more than a gross misreading of the statute, and the court looks at it and considers a number of questions.

Byron R. White:

Is the… is the failure excusable?

Is that what you’re asking?

Richard A. Reeve:

Yes, in effect that’s right, Your Honor.

And the courts… the Second Circuit and the D.C. Circuit Court of Appeals and the First Circuit look at a number of factors.

The principal factors, we believe, are, number one, how long was the delay?

Number two, why did the delay occur?

Number three, is this part of a pattern of violations of this sealing requirement?

We have in this case all three.

In effect, the court below looks at the totality of those circumstances that are relevant to the question that the statute asks.

Why?

And the district court makes a determination based on his assessment.

William H. Rehnquist:

But in… in your view, the statute doesn’t just ask why.

I mean, that would authorize the government’s view.

Just come in and give a frank explanation of all the things that went wrong and it asks for… for first why, and then, is it your position, was this default excusable?

Richard A. Reeve:

Yes.

William H. Rehnquist:

Is… is that–

Richard A. Reeve:

Yes.

Yes and I based that on two words.

One, the government must supply an explanation.

Richard A. Reeve:

Number two, the government must supply an explanation which is satisfactory.

They cannot merely come in and say, this is why we did it, and that’s all the inquiry.

Byron R. White:

–Can a good faith mistake of law be a decent explanation?

Richard A. Reeve:

I think that in some circumstances, yes.

Byron R. White:

Like where reasonable men might differ on what the law means?

Richard A. Reeve:

I think that’s possible.

I think it’s going to depend on the length of delay which develops and whether or not there is a conduct, a repeated pattern such as here.

In our case what we have is all three.

Byron R. White:

Well, you know… I know, but here the claim was that each time there was the same mistake of law–

Richard A. Reeve:

Well–

Byron R. White:

–and each time it was a good faith mistake of law.

Richard A. Reeve:

–Your Honor, I’d like to get to that issue because I think that–

Byron R. White:

Well, isn’t that the claim?

Richard A. Reeve:

–It is the claim and I don’t that’s what happened, and I think that the record is clear.

And I would refer the Court specifically in the Joint Appendix–

Byron R. White:

Well, the district court seemed… at least in one case, seemed to think that, good faith or not, it was just too long.

Richard A. Reeve:

–Well, there is language in the district court decision–

Byron R. White:

And the court of appeals has specifically disagreed with that.

Richard A. Reeve:

–Well, the district… there is language in there, but the… but the district court also did make extensive findings of fact and at page 78(a), which is in the… attached… his ruling attached to the Petition for Certiorari… the district court finds in effect gross negligence.

And… and I think that there are some differences.

But for purposes of this case–

Byron R. White:

So it just wasn’t really a good faith and excusable mistake of law, is that right?

Richard A. Reeve:

–It was not, Your Honor, and the reason is this.

The prosecutor here decided, even in light and in the face of the statutory requirement of immediate sealing, in light of a memo that he had from the Justice Department that said, if you don’t immediately seal, you risk suppression.

Without reading the case law… he admitted he hadn’t read the case law before he made this decision… without looking at a treatise that he had on his desk that said… specifically rejected his theory and he was asked at the district court–

William H. Rehnquist:

Well, what… what… theory of what?

Richard A. Reeve:

–His theory that when you have one big wiretap investigation, you don’t have to seal until the very end.

That was the theory that he went forward.

He was asked, under your theory, there is no… arguably no limit to how far out that’s going to take.

If the wiretap investigation takes five years, well you’ve got a five-year sealing delay.

Richard A. Reeve:

Yes, that’s correct.

It was an unlimited, if you will, venture, way, way out beyond the statute.

And that kind of conduct by the Justice Department does not sanction, does not warrant, the label of a satisfactory explanation.

Byron R. White:

Well, I should assume that if the period of the order is extended a number of times, there is going to vast quantity of tapes that are just sitting around until the government brings them into the court to be sealed.

Richard A. Reeve:

That… that’s absolutely correct, Your Honor, and in my view, and in the view of the Second Circuit and a number of courts, Congress would have been perhaps wiser in saying after every order and then after every single extension.

That is, every 30 days you–

Byron R. White:

After every period.

After period–

Richard A. Reeve:

–Correct.

Byron R. White:

–is extended.

Richard A. Reeve:

Correct.

Without… without allowing the government to seek extensions.

But that, again, gets to the wisdom of Congress.

It’s not a perfect statute.

It doesn’t prohibit tampering, but it was designed to avoid the opportunity for tampering.

And that’s the critical problem… one of the critical problems with the government’s argument.

The government says the sole purpose is tampering.

That’s not the sole purpose.

There are a number of purposes and they are set forth in the legislative history and they include the following.

Number one, Congress intended to create immediate direct judicial supervision over wiretap evidence.

Number two–

William H. Rehnquist:

For what purpose?

Richard A. Reeve:

–Well, I think in part that was a response to this Court’s ruling in–

William H. Rehnquist:

Well, but–

Richard A. Reeve:

–Berger and Katz.

Excuse me, Your Honor.

William H. Rehnquist:

–Well, wasn’t it for the purpose of making sure there wasn’t any tampering?

Richard A. Reeve:

Absolutely.

That’s ultimate statutory purpose.

But what Congress did was, looking at that ultimate statutory purpose, Congress decided the best most effective way to approach that ultimate goal of the statute is to have that judicial supervision to reduce the opportunities for tampering.

Richard A. Reeve:

Congress knew it couldn’t avoid all tampering.

The government argues that.

If… if a prosecutor or a law enforcement agent is bent on tampering with evidence, he’s going to do it.

And Congress knew it couldn’t avoid that.

But what it decided is… we’re going to create this standard to say to the government, you got to turn them in.

And that judicial supervision is going to reduce the incentive and the opportunity for tampering with those tapes.

And it responded as well to this Court… as I was referring to earlier, to this Court’s rulings in Berger and Katz, where one of the problems with the statute, the New York State statute, was… and the Court noted there was no return to a judicial officer.

The same problem noted in Katz.

That was one of the problems specifically referred to in the congressional history in the Senate report.

In addition, Congress was concerned about the potential abuses.

It was clear at that time in 1968, when the statute was passed, that wiretap was a dangerous area.

It was ripe for abuse.

And Congress was concerned.

And what the decision was… and it may not be a decision which every single member of this Court agrees is the right line, but they created a line… immediate sealing upon the expiration of the orders or extensions thereof.

And it’s a line they drew, and it’s an appropriate line.

It may not be the perfect line.

The… and so I think that that’s… even if you get to the question of statutory purpose in legislative history, it aids our view, not the government’s.

There are two other points that I would like to make.

Number one, the government’s test, if adopted by this Court, is going to require tampering hearings in every district court, in every sealing violation, regardless of whether it’s a short delay where the government’s explanation may be very, very reasonable, because what they’re asking the Court to do is define satisfactory explanation as no tampering.

Once that definition is established, in cases where the test created by the Second Circuit is in fact very, very helpful to the government.

And the test applied has been extremely liberally… liberally applied.

Excuse me.

Under the government’s theory, we’re going to have tampering hearings, and experts coming in.

And that, in some ways addresses the question that Justice O’Connor raised, which is this case has gone on for years and years.

And does this Court want to create a standard where you are going to compel district courts to have those kind of hearings?

The hearings that occurred here that were not satisfying, the district court made no finding on any of the excluded tapes.

There is no finding that those tapes were not tampered with.

None at all.

He only found them with the tapes that were not excluded.

Finally, in conclusion, the… the government came first before this Court in its petition for certiorari on page 11 and the government said in that petition, this is a serious problem because despite the best efforts of a supervising attorney in a wiretap case, there will be occasions on which the tapes will not be immediately sealed.

Richard A. Reeve:

Congress agreed with that and that’s why they created a satisfactory explanation.

But as the delays get longer, you need a better and better reason.

But the problem, and the Second Circuit has adopted that approach… it is an approach which allows the best efforts of a supervising attorney.

What the government is effectively asking this Court to do today is to rewrite the statute to avoid separation of powers issues… to avoid issues of judicial restraint… all so that we can… protect the negligent, sometimes willful, sloppy, intentional bad faith conduct of officers of the United States Justice Department.

That, we believe, is a road that this Court should not travel down.

Thank you.

William H. Rehnquist:

Thank you, Mr. Reeve.

Mr. Bryson, do you have rebuttal?

William C. Bryson:

Yes, I do, Mr. Chief Justice.

The first point I’d like to make quickly is each of the courts already requires us to show, as part of a satisfactory explanation, that there was no tampering.

So, there’s not going to be any great increase in the numbers of these hearings since that’s already a requirement that we have to satisfy.

The question is do we have to do more by way of establishing a satisfactory explanation for delay.

The second point is the Gigante case, which is the only other case in which there has been suppression at the court of appeals level that I am aware of, was a case in which we had no explanation for the delay.

It wasn’t a satisfactory explanation case.

And third, and most important, the… teasing out the argument that, well, you have to look at how long the delay was, why the delay was, and that there was a pattern of delays, in this case in quite unfair because there was one legal mistake, the construction of the term “extension”.

That’s what resulted in the long delay.

Every day that passed was not compounding the felony because this was somebody who was… believed he was secure in his construction of the term “extension”.

Byron R. White:

Well, wouldn’t you apply some sort of a… objective test to whether he was justified in believing that?

William C. Bryson:

Well, I think–

Byron R. White:

The courts below thought that there was just no basis for that.

William C. Bryson:

–Well, they… they thought he was wrong.

Now, the district court did not find gross negligence.

The district court did find negligence.

But we would submit that where the Second Circuit in one of its own opinions, in the Principie case, had found that moving from place A when the target moves to place B and getting another order for place B, when that is an extension, his construction of the statute was not unreasonable.

It couldn’t be unreasonable because the very court that ruled in this case had previously said that that’s what extension means.

Now, the court distinguished that case in this case by saying, well, but that was the word 2518(8)(d) dealing with inventory service.

And also, there was no gap between the two orders.

Therefore, that could be an extension and this, it would be unreasonable to suppose, would be… would be an extension.

But it… the word has to mean the same thing in both subsections of the same provision, and we submit, therefore, that it wasn’t unreasonable for him to draw that conclusion.

Thank you.

William H. Rehnquist:

Thank you, Mr. Bryson.

The case is submitted.