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REHNQUIST, J., dissenting

408 U.S.

fendant. . . ." S. Rep. No. 91-617, p. 154 (1969). (Emphasis supplied.)

These conclusions in the Senate Report are supported by statements of the bill's managers in the House during the time it was being debated. Congressman Poff explained Title VII as follows:

"Title VII of S. 30. . . would, first, reverse the Supreme Court's decision in Alderman v. United States, 394 U. S. 165 (1969) requiring, under its supervisory power, the disclosure of Government files in criminal trials, and . . . would, second, set a 5-year 'statute of limitations' on inserting issues dealing with the 'fruit of the poisonous tree' in similar cases.' 116 Cong. Rec. 35192.

Congressman Celler explained the amendments incorporating the pre-June 19, 1968, time limitation into subsections (a) (2) and (a)(3) of § 3504 that had been made by a subcommittee of the House Judiciary Committee in these words:

"As amended by the committee, the application of title VII is limited to Federal judicial and administrative proceedings, and to electronic or mechanical surveillance which occurred prior to June 19, 1968, the date of enactment of the Federal wiretapping and electronic surveillance law-chapter 119, title XVIII, United States Code." Id., at 35196. Even more specific was the explanation of the amendment made by Congressman Poff on the floor of the House after the time provisions had been included:

“TITLE VII — LITIGATION

SOURCES OF EVIDENCE

CONCERNING

"Mr. Chairman, title VII of the Organized Crime Control Act is designed to regulate motions to suppress evidence in certain limited situations where

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REHNQUIST, J., dissenting

investigations."

(1970).

H. R. Rep. No. 91-1549, p. 50 (Emphasis supplied.)

The same report, in its introductory discussion of Title VII, contains the following statement:

"Title VII intends to limit disclosure of information illegally obtained by the Government to defendants who seek to challenge the admissibility of evidence because it is either the primary or indirect production [sic] of such an illegal act. The title also prohibits any challenge to the admissibility of evidence based on its being the fruit of an unlawful governmental act, if such act occurred 5 years or more before the event sought to be proved. As amended by the committee, the application of title VII is limited to Federal judicial and administrative proceedings, and to electronic or mechanical surveillance which occurred prior to June 19, 1968, the date of enactment of the Federal wiretapping and electronic surveillance law (chapter 119, title 18, United States Code)." Id., at 34. (Emphasis supplied.)

The Senate Report, too, casts § 3504 (a)(1) in quite a different light from that in which the Court puts it:

"Lastly, it should be noted that nothing in section 3504 (a)(1) is intended to codify or change present law defining illegal conduct or prescribing requirements for standing to object to such conduct or to use of evidence given under an immunity grant. See, e. g., Giordano v. United States, 394 U. S. 310 (1969); Alderman v. United States, 394 U. S. 165 (1969). Nevertheless, since it requires a pending claim as a predicate to disclosure, it sets aside the present wasteful practice of the Department of Justice in searching files without a motion from a de

REHNQUIST, J., dissenting

408 U.S.

Congress meant that grand jury witnesses might defend contempt charges by invoking the prohibition of § 2515 against the compelled disclosure of evidence obtained in violation of Title III." If the Court means to say any more than that, under the circumstances specified in § 3504, the Government must affirm or deny, I am at a loss how it extracts additional requirements from the language used by Congress in that section.

But even if the Court were correct in deciding that § 3504 (a) (1) requires more than it says of the Government, believe the Court errs in deciding that this section applies at all to these petitioners. Title VII as enacted actually consists of two parts, A and B. Part A is a series of findings by Congress, reading as follows:

"The Congress finds that claims that evidence offered in proceedings was obtained by the exploitation of unlawful acts, and is therefore inadmissible in evidence, (1) often cannot reliably be determined when such claims concern evidence of events occurring years after the allegedly unlawful act, and (2) when the allegedly unlawful act has occurred more than five years prior to the event in question, there is virtually no likelihood that the evidence offered to prove the event has been obtained by the exploitation of that allegedly unlawful act." § 701, 84 Stat. 935.

The House Report (to accompany S. 30) contains this comment on Part A:

"This section contains a special finding relating, as do the following sections of the title, to certain evidentiary problems created by electronic surveillance conducted by the Government prior to the enactment of Public Law 90-351 on June 19, 1968, which provided statutory authority for obtaining surveillance warrants in certain types of criminal

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REHNQUIST, J., dissenting

institutions such as the grand jury, the Court's conclusion would at least be tenable. But when the Court concludes that Congress, almost in a fit of absentmindedness, has drastically enlarged the right of potential grand jury witnesses to avoid testifying, and when such a conclusion is based upon one of two ambiguous implications from the language of the statute, and is contrary to virtually every whit of legislative history addressed to the point in issue, I think its conclusion is plainly wrong.

IV

The Court seeks to bolster its reasoning by reliance upon 18 U. S. C. § 3504 (a)(1), which was a part of the Organized Crime Control Act of 1970. That section provides in pertinent part as follows:

"(a) In any . . . proceeding . . . before any . . . grand jury . . .

"(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act."

Assuming, arguendo, that this section does apply to petitioners in No. 71-110, the record in the District Court and the opinion of the Court of Appeals clearly show that only Gelbard made what might be called a "claim" within the language of the section, and that the Government in its response did "affirm or deny" the occurrence of the alleged unlawful act; in fact, the Government denied the occurrence of the unlawful act. This should be sufficient for disposition of the case as to these petitioners.

The Court, without giving much guidance to those who would seek to follow the path by which it reaches the conclusion, concludes that this section "confirms that

REHNQUIST, J., dissenting

408 U.S.

civil remedies, it should serve to guarantee that the standards of the new chapter will sharply curtail the unlawful interception of wire and oral communications." S. Rep. No. 1097, 90th Cong., 2d Sess., 96 (1968).

The conclusion that § 2518 (10) (a) is the exclusive source of the right to move to suppress is further fortified by the Senate Report's comment on § 2510 (11) of the Act, which defines an "aggrieved person" as one who is a party to an "intercepted wire or oral communication or a person against whom the interception was directed." The Senate Report, p. 91, states:

"This definition defines the class of those who are entitled to invoke the suppression sanction of section 2515 discussed below, through the motion to suppress provided for by section 2518 (10) (a), also discussed below. It is intended to reflect existing law. . . ." (Citations omitted.) (Emphasis added.)

Finally, § 2518 (9) requires the Government to provide to each party to "any trial, hearing or other proceeding" a copy of the court order authorizing surveillance if the Government intends to use the fruits thereof. The Senate Report, p. 105, states:

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'Proceeding' is intended to include all adversary type hearings. It would not include a grand jury hearing. Compare [United States v. Blue, supra]."

If § 2515 of the Omnibus Crime Control and Safe Streets Act of 1968 stood alone without any informative legislative history, the Court's conclusion with respect to the rights of these petitioners would be plainly correct. If the conflicting implications from two sections of the same statute were present in a regulatory scheme which was to stand by itself, rather than to be superimposed on procedures such as contempt hearings and

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