(concurring in the result):
I concur with my colleagues in granting the petition.
I cannot concur in their opinion, however, for I have substantial doubts that Congress intended that a letter sent by return mail from an Assistant Attorney General of the United States to a United States Attorney who requested the letter would be a “certification” pursuant to 18 U.S.C. § 3503. And I have similar doubts that the Congress intended the term “organized criminal activity” to include a broader range of alleged criminal activity than activity generally comprehended within the term “organized crime.” In sum, I adopt, in substantial part, the approach of Judge Oakes in his dissent in United States v. Singleton, 460 F.2d 1148, 1155-1159 (2 Cir. 1972). However, the law of the Circuit has been declared in the majority opinion in United States v. Singleton, and I believe it incumbent upon me to follow that declaration. Nevertheless, I would hope that, if Mr. Kinsey’s deposition is taken in Seattle and later introduced at trial, not only the proper interpretation of the statutory language mentioned here, but also the impact upon the constitutionally guaranteed right of an accused “to be confronted with the witnesses against him,” will be preserved for later adjudication. 5 Wigmore on Evidence (3d ed. 1940) §§ 1364-1367; §§ 1420-1422.
“Confrontation: . . . [inter alia], permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970).
We should be zealous to protect the Sixth Amendment right from erosion. See, e. g., Warren, Ch. J., in Greene v. McElroy, 360 U.S. 474, 497, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).