We note that the proposed Section 3503 (a) invites an analogy to a statute of limitations, and that a qualified analogy has in fact been acknowledged (115 Cong. Rec. S. 5814 (daily ed., May 29, 1969)). One of the bases for statutes of limitations is that a party who has slept on his rights for so long as to impair the availability of countervailing evidence should be precluded from raising the matter belatedly. No corresponding theory of fault or laches is available in the situations to which 3503 (a) would apply. A more commonly-acknowledged basis for such statutes of limitations, however, is the pragmatic need to spare the courts from the litigation of stale claims, whether meritorious or fraudulent, which cannot reliably be determined because of the erosion of evidence by the passage of time. This basis is totally independent of any concept of fault, and is fully applicable to the situation covered by Section 3503(a).

In any event, the principle basis for Section 3503 (a) is the fact that in the situations covered there is no real possibility of the evidence being "come at by exploitation" of an allegedly illegal act. The subsection amounts to a direction that as a matter of law no evidence of an event can be found tainted by an alleged illegality anteceding the event by such a prolonged period of time. The subsection is thus akin to a conclusive presumption as well as a statute of limitations. While most statutory presumptions are rebuttable, such presumptions usually concern facts pertaining directly to the issue of guilt or innocence, not, as here, the availability of a hearing on the patently dubious applicability of a rule excluding reliable evidence. Even in a situation where an exclusionary rule might ordinarily be available, the Supreme Court has found in another context that, since the validity of the guilt-determining process is not affected, a defendant has no vested right to an invocation of the rule where considerations of judicial efficiency weigh against it and where advancement of the purpose of the rule would be minimal. Desist v. United States, 394 U.S. 244; Linkletter v. Walker, 381 U.S. 618. Both such factors obtain in the situation covered by Section 3503 (a).

SECTION 3503 (b)

Section 3503 (b) provides that, upon a claim that evidence is inadmissible because it is the direct or indirect product of an allegedly illegal act, information in connection therewith shall not be ordered disclosed unless it is found (1) that such information "may be relevant" to the determination of the admissibility of such evidence, and (2) that such disclosure is "in the interest of justice”.

We understand from the remarks of Senator McClellan in introducing the bill that the phrase "may be relevant" is intended to denote a lesser standard of relevance than the phrase "arguably relevant" as propounded by the Department in recent briefs before the Supreme Court, but to denote a standard requiring more than a mere speculation as to relevance. We also understand that the phrase "in the interest of justice" is intended to limit the disclosure of information which may be relevant by considerations such as the danger to informants, the harm to reputations of third parties, and the interests of national security.

This subsection would, of course, modify the procedural practices set forth by the Court in Alderman v. United States, 394 U.S. 165. We concur in the interpretation that the Alderman ruling was not predicated upon constitutional grounds, but upon the Court's supervisory powers. In the portion of the opinion dealing with this issue, the Court at no point stated that the prescribed practice was required by the Fourth Amendment. The only reference to the Fourth Amendment was in the statement that the practice delineated would reduce the incidence of error in assessing taint by “guarding against the possibility that the trial judge, through lack of time or unfamiliarity with the information contained in and suggested by the materials, will be unable to provide the scrutiny which the Fourth Amendment exclusionary rule demands." Id., at 184. This reference makes it apparent that the relationship between the Amendment and the practice is reasoned as follows: the Fourth Amendment is effectuated by an exclusionary rule to deter violations; the exclusionary rule, in order to be effective, requires that the sources of allegedly tainted evidence be scrutinized; adequate scrutiny will better be assured by the practice of disclosing the information in question to the defendant in order that he might point out the portions deemed to be relevant. The practice is thus a judicially-developed means of aiding in the assaying of evidence purportedly subject to exclusion, not an inflexible requirement of the Fourth Amendment. This fact is emphasized by language indicating that the Court viewed its ruling as a balanced exercise of judicial discretion rather than the pronouncement of a constitutional mandate:

"We think this resolution will avoid an exorbitant expenditure of judicial time and energy and will not unduly prejudice others or the public interest." Ibid. Moreover, it appears that the Court may have intended to apply the announced practice not only to situations involving past electronic eavesdropping but situations involving past wiretapping, a form of search which was proscribed only by statute (47 U.S.C. 605), not the Fourth Amendment, as to all past instances which took place prior to December 18, 1967, the date of the decision in Katz v. United States, 389 U.S. 347. Kaiser v. New York, 394 U.S. 280; see Desist v. United States, 394 U.S. 244. In any event, even in some cases where the Court has announced a specific rule of procedure to be required by the Constitution, it has indicated that future legislative alternatives could be found equally acceptable. See United States v. Wade, 388 U.S. 218, 239; Miranda v. Arizona, 384 U.S. 436, 467. Hence, even as to a constitutionally-based rule, the way is often clear for Congress to meet the need in a different manner or, for that matter, to reassess the facts from which the need was presumed, Certainly in the present instance there is no bar to action by Congress.

We suggest, however, that instead of adding the provisions of subsection (b) to the existing statute and case law governing claims that evidence is tainted, it might be more useful to incorporate the substance of these provisions and of other provisions herein suggested in a comprehensive codification of all significant aspects of this motion and hearing procedure. Such a provision should include directions taking into accounts the following considerations:

(a) Upon the filing by a defendant of a motion alleging that evidence concerning the charged offense may be the product of an unlawful electronic surveil lance, the government should be required to conduct an examination of its investigative files in order to determine the factual basis for the allegations made in the motion, and should further be required to respond to the merits of the issues concerning the existence of the alleged illegality and the standing of the movant to raise the matter. (Although the Department of Justice for the past two and one-half years has conducted such examinations as a matter of policy even in cases where no motion has been filed (see the Supplemental Memorandum for the United States in Schipani v. United States, No. 504, O.T. 1966), we suggest that defendants should be assured such an examination by a specific requirement of law rather than have to rely upon the continued viability of a current policy. However, since the primary concern for adopting that policy was the pre-1965 employment of electronic surveillance devices principally to monitor organized crime activities at at time when no warrant procedure was available, and since the cases which might possiblly be affected by such pre-1965 monitoring are becoming progressively fewer with the passage of time, there is no reason for expending time and manpower upon such examinations as a routine procedure in all criminal cases. By requiring such a specific examination and response in any case where a defendant raises a reasonable allegation on the point, all interests of procedural fairness would appear to be accommodated.) (b) The court should then, if necessary, resolve the issues of illegality and standing, making such determination in camera where deemed advisable. (The propriety of in camera consideration of such preliminary matters was indicated in Giordano v. United States, 394 U.S. 310, and Taglianetti v. United States, 394 U.S. 316.)

(c) If it is acknowledged or if the court determines that an unlawful electronic surveillance in fact took place, and if it is further acknowledged or if the court further determines that the movant is a person with standing to raise the matter, the court should then order the government to turn over is records of such electronic surveillance to the movant, unless the government first files an affidavit by the Attorney General certifying that to turn over the records of the intercepted communications would be prejudicial to the public interest. (Such provision would make explicit the necessity of first resolving the issues of illegality and standing before proceeding to the issue of taint.)

(d) Upon the filing of such an affidavit by the Attorney General the government should be required to deliver records of the electronic surveillance to the court. The court should examine the records in camera and determine if any portion of the records may be relevant to the evidence in question. Upon a finding that such information is not relevant, the motion should be denied. Upon a finding that the information may be relevant, the court should determine whether under the circumstances of the case the interest of justice requires that the records be delivered to the movant. If the court determines that delivery is not required, the motion should be denied. If the court determines that delivery is required,

the court, after first according the government the option of dismissing the prosecution, should order the relevant portions of the records to be delivered to the movant. (Such a provision would require that all surveillance records be turned over to the defendant when the government's objection to such delivery goes merely to relevancy. See Kolod v. United States, 390 U.S. 136. This would provide a defendant with access to the questioned records in many more situations than the proposed 3503(b), but. since valid allegations of the existence of unlawful electronic surveillance will decrease substantially during the next few years. especially if the provision of 3503 (a) is enacted, the burden on the Department will not be unacceptably heavy when balanced by the occasional possibility of added procedural fairness. Only in the relatively few cases where such an affidavit will be filed, will the "may be relevant" provision and the "interest of justice" provision of the proposed 3503(b) become applicable.)

(e) If such records are turned over to the movant as ordered under paragraph (c) or paragraph (d) above, the movant should be required to specify with particularity those portions of the records which he claims led to the evidence alleged to be inadmissible. If, upon examination, the court determines that the specified portions of the records could have led to the government's evidence, the court should order an evidentiary hearing.

(f) At an evidentiary hearing ordered under paragraph (c) above, the movant should have the opportunity to demonstrate by specific evidence that a substantial portion of the government's evidence is the fruit of the illegality. Upon such a demonstration, the government should be given the opportunity to show that any causal connection between information obtained through the illegality and the government's evidence had become so attenuated as to dissipate the taint, or to show that the evidence in fact had an independent origin. (The burdens here should be phrased to accord with current law. See Alderman v. United States, 394 U.S. 165, 180-181; Wong Sun v. United States, 371 U.S. 471, 487-488; Costello v. United States, 365 U.S. 265, 280; Nardone v. United States, 308 U.S. 338, 341: Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392.)

The preceding formulation could help clarify the law as well as supply needed modifications. Two of those modifications are versions of the relevancy provision and the "interest of justice" provision now appearing in Section 3503(b)). These warrant further comment.

Concerning the question of relevancy, the Department in the Alderman case had argued that where the government believes that records of electronic surveillances are wholly irrelevant to the case, the records should be inspected in camera by the trial judge, and only if determined to be arguably relevant should they be ordered delivered to the defense. The procedure was argued to be analogous to that found appropriate in other situations involving competing interests. including the scope of a subpoena duces tecum (Westinghouse Electric Corporation v. City of Burlington, 351 F.2d 762 (C.A.D.C.); Bocing Airplane Company v. Coggeshall, 280 F. 2d 654 (C.A.D.C.)), various situations in the field of pretrial discovery (see F.R. Crim. P., Rules 16 and 17(c); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 401-410 (dissent of Brennan, J.)), the Jencks statute (18 U.S.C. 3500(c): Palermo v. United States, 360 U.S. 343, 354), and discovery of prior grand jury testimony by government witnesses (Dennis v. United States. 384 U.S. 855, 875). The Court, however, concluded that surveillance records should be turned over to a defendant without prior in camera scrutiny for relevancy by the trial judge. The reason given for the holding was that, in the view of the Court, "the task is too complex, and the margin for error too great, to rely wholly on the in camera judgement of the trial court to identify those records which might have contributed to the Government's case".

We continue to believe that, as argued in the Alderman case, the procedure of in camera screening in at least some instances has much to recommend it. We also believe that the Court's dual concerns the possibility of error and the burden on the district courts can be met by the provisions of Section 3503(b) with suggested additions. As to the possibility of error, the suggested requirement that the Department turn over surveillance records to a defendant unless and affidavit is filed by the Attorney General will minimize the number of cases in which an evaluation by a court will have to be made, and even in those cases the qualified requirement that the records be turned over if they simply “may be relevant" will further reduce the margin for error. As to the burden on the district courts imposed by the occasional necessity of examining unusually lengthy records, the number of such cases will here again be minimized by the sug

gested affidavit requirement, and an additional provision for assistance to a district court could alleviate the burden in the occasional case where the problem does arise. Such assistance could be provided either by another district judge, a procedure approved in Baker v. United States, 401 F.2d 958, 978 n. 90 (C.A. D.C.), or by a United States magistrate. Section 636 (b) (2) of Title 28 of the United States Code specifies that a United States magistrate may be appointed for the purpose of “assistance to a district court in the conduct of pretrial or discovery proceedings in civil or criminal actions." Unlike a ruling on an issue affecting the reliability of the built-determining process, a ruling affecting the applicability of the exclusionary rule to plainly trustworthy evidence is a function of a nature which appropriately may be delegated. Certainly the deterrent purposes of the exclusionary rule can be served as well by the possibility of an adverse ruing of a magistrate as by the possibility of an adverse ruling of a judge.

Concerning the question of "the interest of justice," the Department in Alderman had stressed the importance of protecting the lives of informants, the reputations of third parties, and the interest of national security. The Court concluded that those concerns could be met with the employment of protective orders under which a defendant and his counsel would be precluded from divulging the contents of the materials delivered to them. Experience has shown, however, that such orders are not always effective. Moreover, in at least one case where the government turned over materials to a defendant in reliance upon such a protective order, the court itself has later made the material public, sua spontc, without prior notice to the government. In such an instance the government for all practical purposes loses its important option of dismissing the prosecution in lieu of permitting the publication of the materials. Despite a court's good faith belief that publication in such an instance would jeopardize neither individuals nor the nation, it must be recognized that there are situations in which only the government has the related information which will flag the danger to others inherent in the materials, not all of which may have been thought necessary to develop at the time of the initial, successful application for a protective order. Additionally, another difficulty in the general use of protective orders lies in the fact that although such an order may be granted, a court may thereafter accede to a defendant's demand that the ensuing evidentiary hearing be public, and the information subject to the order may then be employed openly for use in cross-examination. See United States v. Clay, (S.D. Tex., Cr. No. 67-H-94, decided July 14, 1969). This practice effectively demolishes any value such orders may have. Hearings in such special instances should be closed. See Baker v. United States, 401 F.2d 958, 978 (C.A. D.C.).

Although the enactment of the provisions of Section 3503(b) will reduce the need for reliance upon the protective order procedure, it will not eliminate it. A court may determine, for instance, that the potential damage to the reputation of a third party is outweighed by the possible relevance illegally obtained records may have to proffered evidence, but only to the extent that such records should be disclosed to the defendant and his counsel, not to the public. We suggest, therefore, that specific provision be made in the modified subsection both for the use of protective orders and for the employment of closed hearings. In summary, from the standpoint of the Department, there is no constitutional bar to Section 3503(b), the provision for an in camera determination of relevance in certain instances is desirable, and the requirement that the mere possibility of relevance be weighed against other interests before ordering disclosure is similarly desirable. In view of the number of current cases in which such hearings are occurring, the provisions of the subsection would effect a measurable savings in badly-needed prosecutive and judicial manpower and would provide a degree of protection to valid, recognized interests which is now unavailable. We note, however, that if the provisions of Section 3503 (a) are enacted, the number of cases which would be affected by the provisions of Section 3503(b) may be expected to decrease materially in the next few years. Most of the current cases involve surveillances which had been conducted in organized crime cases at a time when no warrant procedure was available. The last of such warrantless surveillances, except in the area of national security, was terminated in early July of 1965, pursuant to the Presidential directive of June 30, 1965. Consequently, after the current affected cases have been adjudicated, the new cases to which the provisions of Section 3503 (b) would apply would be, for the most part, cases in which a surveillance pursuant to a warrant

under 18 U.S.C. 2518 for some reason is found to be defective, or cases in which a warrantless surveillance was employed pursuant to the national security exception. Such cases are expected to be few in number. Moreover, as to such cases, the "interest of justice" provision of Section 3503(b) is already available through the comparable provision currently appearing in 18 U.S.C. 2518 (10) (a) (iii). Nevertheless, we believe that the near-term value of the provisions of the subsection, as we suggest it be modified, clearly justifies its enactment.

For the above reasons, the Department of Justice recommends that the provisions of S. 2292 be enacted with the suggested changes.

The Bureau of the Budget has advised that there is no objection to the submission of the views contained herein from the standpoint of the Administrą. tion's program.

Sincerely,

RICHARD G. KLEINDIENST,

Deputy Attorney General.

S. 2048 and S. 2049 are bills designed to combat and penalize organized crime, particularly in its attempt to infiltrate and take over legitimate businesses by means of money illegally obtained.

Both bills utilize the machinery of the antitrust laws to accomplish the desired end. S. 2048 is framed as an amendment to the Sherman Act and would replace § 8 of that Act. S. 2049 is drafted as an independent piece of legislation, but includes in its provisions the discovery and enforcement procedures of the antitrust laws.

S. 2048 amends the Sherman Act to make it a violation of the antitrust laws to invest intentionally unreported income in any business enterprise.

In essence, S. 2049 makes it a criminal offense to apply the income received from enumerated criminal activities to any business enterprise.

To aid in enforcement. S. 2049 authorizes the issuance of injunctions at the request of either the government or a private party. Persons injured due to the application of income derived criminally in legitimate businesses may bring treble damage actions, and a criminal judgment would be prima fucir evidence in any treble damage action.

8. 2049 also authorizes nationwide service of process and grants immunity from prosecution to witnesses testifying in proceedings instituted by the United States under this statute.

NEED FOR LEGISLATION (t

The evidence is clear that organized crime, which takes billions of dollars→→ mostly in cash and mostly untaxed-annually from the American public, has broadened its operations by infiltrating and taking over legitimate businesses. The President's Commission on Law Enforcement concluded, "The cumulative effect of the infiltration of legitimate business in America cannot be measured. Law enforcement officials agree that entry into legitimate business [by organized crime] is continually increasing and that it has not decreased organized crime's control over gambling, usury and other profitable, low-risk criminal enterprises.” The Challenge of Crime in a Free Society, p. 190 (1967),

Organized crime, therefore, is a major threat to the proper functioning of the American economie system, which is grounded in freedom of decision. When organized crime moves into a business, it customarily brings all the techniques of violence and intimidation which it used in its illegal businesses. The effect of competitive or monopoly power attained this way is even more unwholesome than other monopolies because its position does not rest in economic superiority.

18. 2048 and S. 2049, 90th Cong., first sess., redrafted as S. 1623.