dissenting:
I respectfully dissent. I think the defendants’ convictions should be reversed in light of the government’s unexplained failure to immediately secure judicial sealing of its wiretap evidence, as required by 18 U.S.C. § 2518(8)(a).
The clear language of that statute requires one of three things: immediate judicial sealing of the evidence, a satisfactory explanation for its failure to do so, or suppression of the evidence at trial. Here, the evidence was not immediately sealed, and the government’s purported explanation is wholly unsatisfactory. I think we are directly confronted with the difficult issue of suppression, and should give effect to Congress’ intent to exclude the evidence from trial. Because its admission in this case was not harmless error, I would reverse.
The government explained its failure to seal the wiretap evidence by claiming that F.B.I. agents in charge of the surveillance *1317needed to maintain custody of the original tapes until they ascertained that the duplicates were audible. The district court accepted this explanation and the majority thinks it is not clearly erroneous.1 However, the government’s rationale is fatally undercut by the uncontradicted testimony of the F.B.I. agent in charge of the surveillance, that he and an associate had listened to the duplicate tapes almost on a daily basis duririg the surveillance, and that after the surveillance ended, they had listened to all of the duplicate tapes by about April 15. Thus, the government’s explanation covers only the period from April 11 to April 15; yet the tapes were not judicially sealed until May 20. I think the government has failed to provide a “satisfactory explanation” for its noncompliance with the requirements of § 2518(8)(a).
Given such failure, I think the real issue in this case is whether § 2518(8)(a) requires the “Draconian remedy” of suppression. The plain language of the statute requires this result, and I think we should decline to create a judicial exception to that language, where the result dilutes a significant protection afforded by Congress to citizens under government surveillance.
Although this difficult issue is one of first impression for our court, four other circuits have analyzed the suppression question with varying results. The Third Circuit has held that, since the purpose of § 2518(8Xa) is to ensure the integrity of tape recordings after interception, violation of the sealing requirement is not sufficient for suppression where the trial court finds that “the integrity of the tapes [is pure].” United States v. Falcone, 505 F.2d 478, 483-84 (3rd Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975). The Fifth and Seventh Circuits have since agreed with this analysis. United States v. Sklaroff, 506 F.2d 837 (5th Cir. 1975);2 United States v. Lawson, 545 F.2d 557 (7th Cir. 1975). The majority agrees with this rule requiring proof of tape tampering.
Judge Rosenn dissented in Falcone, and his views were later adopted by the Second Circuit in United States v. Gigante, 538 F.2d 502 (2nd Cir. 1976). Judge Rosenn argued that “the strict sealing requirement ‘directly and substantially implements the congressional intention’ of maintaining the integrity of the tapes. Therefore . the majority is' unjustified in creating an exception to the express language of § 2518(8)(a).” United States v. Falcone, 505 F.2d at 488. I agree.
The language of the statute is unambiguous and its purpose is clear. Congress intended to provide protection from potential abuses of the wiretap license, by requiring strict judicial supervision over tape recordings immediately after the period of surveillance ends. Cf. United States v. Giorda*1318no, 416 U.S. 505, 514-15, 527-28, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). This is an external safeguard against tampering and it is eviscerated by a rule requiring actual proof of tampering. Tampering is difficult if not impossible to prove, given the Sophisticated state of the electronics art.3 We should not cast this burden upon the defendants who have no knowledge about the recording and custody of the tapes, and we should not bog down the trial court in a time-consuming, expensive and entirely collateral “battle of the experts” on the tampering issue. The government benefitted by the terms of the statute and should live with the consequences expressly imposed by Congress for its violation.
The majority’s analysis of the suppression issue by reference to § 2518(10)(a),4 is wrong because the statute at issue here, § 2518(8Xa), contains its own suppression provision. This sidestep approach was taken by the Third Circuit, after it in effect “wrote out” the strict suppression requirement of § 2518(8)(a):
. [the statute] provides that the ‘presence of [a] seal . . . or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use . of any [wiretap]. . . . ’ By this provision Congress has provided for an alternative to the sealing requirement. It would follow from such an alternative that failure to seal the tapes promptly is not such a violation that requires suppression as a matter of law.
United States v. Falcone, 505 F.2d at 484.
I think this reasoning is fallacious. Where Congress has expressly provided one alternative to the immediate sealing requirement — a reasonable explanation for the delay — it does not follow that a second, unwritten alternative may be inferred.5 Section 2518(8)(a) states that one of two express conditions shall be a prerequisite for admission of the evidence. Therefore, where tapes have not been immediately sealed and the government does not give a satisfactory explanation for its non-compliance, the evidence must be suppressed under the independent aegis of § 2518(8)(a) without reference to the general suppression provision.
I realize that reversal of these convictions would put to naught countless hours of investigation and preparation by the government, and voids a conviction obtained after a trial which lasted 2V2 months and was otherwise error free. However, the statute mandates this result; and the courts have warned time and again that the procedures of § 2518(8)(a) are not mere technicalities to be ignored. E. g., United *1319States v. Falcone, 505 F.2d at 484; United States v. Lawson, 545 F.2d at 564.6
This court should not be swayed by its own view as to the desirability of suppression in this instance. We deal not with the judicially created exclusionary rule, but rather with a remedy created by Congress. As Chief Justice Burger wrote in the now famous “Snail Darter Case”:
Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto. .
[I]n our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with ‘commonsense and the public weal.’
Tennessee Valley Authority v. Hill, 437 U.S. 153, 195, 98 S.Ct. 2279, 2302, 57 L.Ed.2d 117 (1978).
The court below excused the government’s non-compliance partly because the government promised, in effect, to “do better next time.” The majority admonishes the government “to be careful in the future.” Such promises and admonitions cannot substitute for statutory protections created by Congress for the benefit of citizens who have been subjected to clandestine surveillance by the government.
I respectfully dissent.
. In most of the cases involving failure to comply with § 2518(8)(a) the government has given as its “reasonable explanation” the necessity to ascertain that duplicate tapes were audible before sealing original tapes. However, those duplicates were “duplicates” in the usual sense of the word — copies made from the originals. Here, the F.B.I. made originals and duplicate originals simultaneously, and I perceive nothing in the simultaneous recording procedure which would render the former more reliable than the latter. In United States v. Angelini, 565 F.2d 469, 472 (7th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978), the court noted: “The difficulty, from the Government’s point of view, and the reason we consider the present case as a close one, is that there were available alternatives which might have allowed immediate sealing and yet preserved a first quality tape for clarifying the inaudible portions. The Government might have made duplicate original tapes [i]n the future, the Government, it appears to us, would be well advised ... to use such a method . . .”
. See also United States v. Cohen, 530 F.2d 43 (5th Cir. 1976), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1977). In both Sklaroff and Cohen the analysis of the court is somewhat unclear. In both cases the court held that “proof of tampering” is a necessary element for suppression under § 2518(8)(a); however, in both cases the court appears to have accepted the government’s reasons for non-compliance as “reasonable explanations.” In addition, the Sklaroff court appears to have considered a delay of 14 days in sealing to be substantial compliance with the immediacy requirement. United States v. Sklaroff, 506 F.2d at 840-41; United States v. Cohen, 530 F.2d at 46.
. “Tape recorded evidence is uniquely susceptible to manipulation and alteration. Portions of a conversation may be deleted, substituted, or rearranged. Yet, if the editing is skillful, such modifications can rarely, if ever, be detected.” United States v. Gigante, 538 F.2d at 505. And, as Judge Rosenn cogently noted, “[Fjact finding by the district court is inherently less reliable than a strict sealing requirement.” United States v. Falcone, 505 F.2d at 488 (dissenting opinion).
. 18 U.S.C. § 2518(10)(a) provides, in pertinent part:
Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.
. As is apparent, I read the Third Circuit’s language to mean that a showing of no tampering is a third alternative to the suppression requirement of § 2518(8)(a). The dissenting judge there read the majority’s holding to this effect. However, a possible alternative reading — that the government’s explanation for non-compliance will always be deemed satisfactory where the integrity of the tapes is pure — is also illogical. Under this rationale, the government’s negligence or even willful noncompliance could be excused. I think this an untenable result, totally at odds with the statute’s focus on judicial supervision of the wiretap process.
. “[W]e again urge the government to comply with statutory wiretap requirements both preinterception and post-interception to the fullest extent possible, rather than to continue its unenthusiastic approach for the ‘technical’ requirements demonstrated in this particular case.”