Petition — Vazquez v. United States
Supreme Court brief1979
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In THE
Supreme Court of the United States
Octoser TERM, 1979
No. _4h9- @ 2 0
Antonio Cruz Vazquez,
Petitioner,
JY
Unrrep States or AMERICA,
Respondent.
ee
Sanaa
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
——-
—---—
GeraLp L. SHARGEL
Counsel for Petitioner
1370 Avenue of the Americas
New York, New York 10019
(212) 541-7105
GraHam HuGHEs
Of Counsel
November 5, 1979
oer
TABLE OF CONTENTS
PAGE
Nee a cicnuucics punconeeemen 1
ESR A SE EEG 2
Questions Presented ............... 2
Constitutional and Statutory Provisions Involved in
SL TESS Re a 2
Statement of the Case ... aie. Fe Oo 3
Reasons for Granting the Writ —....00.0 5
1—The Decision Below Improperly Ignores the Ex-
pressed Intention of a State Legislature to Re-
strict Wiretapping More Severely Than Does the
SE 6
I1—The Decision Below Characterizes the Explanation
for Delay as Satisfactory for Reasons That the
Record Demonstrates to Be Without Foundation 10
ou) El 11
APPENDIX—-
Opinion in the Court of Appeals for the Second Circuit 1a
LTE 30a
a iiiiocnsanhsoravenneracecese .. 40a
ii
TaBLE oF AUTHORITIES
Cases: PAGE
United States v. Sotomayor, 592 F.2d 1219 (2d Cir.),
cert, denied, 47 U.S.L.W. 3786 (U.S. June 4, 1979)
7, 8,9
People v. Washingtom, 46 N.Y.2d 116, 412 N.Y.S.2d 854
ERE. sxticaicnaslaghasininninsapiieciesnagstctened b ahiilaht enicheclabaiss ba tpidiss 7
Statutes:
New Jersey Statutes Annotated—
BERLE GSE ASS ON Re MET ed 3,7
1 SES AESE ERAT SLC COU OMT oe 3, 7
MIE ehiceds re O y 2,6
Title 18 U.S.C.—
5, i EARN EECISAE Soe Oe SO aR Ua ad 2,6
| ERE SSE Senor Soe R er 2, 6, 8
Title 21 U.S.C.—
Oe RETIREE, TR te a TO ET 3
SIIIIED F cccsepccinleinhosicdbiadsbeyiedsiatbiedb olencusechaeaths wae 3
| SESE nO en ae OR SEN Ee ERENT Wel ome 3
Title 28 U.S.C.—
RPI, sath cncetttinis otal a shai niscasmnccniacaatnia menue 2
IN THE
Supreme Court of the United States
Octoser Term, 1979
TI sicctlisdsncatintenitin
Antonio Cruz Vazquez,
Petitioner,
Untirep States or AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
The petitioner Antonio Cruz Vazquez respectfully prays
that a writ of certiorari issue to review the judgment of the
Court of Appeals for the Second Circuit affirming the judg-
ment of conviction entered against the petitioner by the
United States District Court for the Eastern District of
New York.
Opinions Below
The opinion of the Court of Appeals, not yet reported,
appears in the Appendix hereto at pp. 1-29. No opinion
was rendered by the District Court for the Eastern District
of New York.
Jurisdiction
The date of the judgment of the United States Court of
Appeals for the Second Circuit was August 24, 1979, which
was also the date of entry. A timely petition for rehearing
en banc was denied on October 5, 1979. A 40. This
Court’s jurisdiction is invoked under Title 28, United States
Code, Section 1254(1).
Questions Presented
1. Whether the sealing provisions in the federal wiretap
statute can override the policy expressed in a State’s stat-
utory limits on the duration of a wiretap order.
2. Whether an explanation for a delay in sealing tapes
was properly characterized as satisfactory when the Gov-
ernment’s own version does not support the reasons prof-
fered by the court.
Constitutional and Statutory Provisions
Involved in the Case
1. United States Constitution, Amendment IV: The
right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and
seizures shall not be violated.
2. Title 18 U.S.C. § 2518(8)(a). See Appendix p. 37.
3.. New Jersey Statutes Annotated, 2A:156A-14. See
Appendix p. 37.
4. Title 18 U.S.C. § 2518(5). See Appendix p. 37.
ne
3
5. New Jersey Statutes Annotated 2A:156A-12(f). See
Appendix p. 38.
6. New Jersey Statutes Annotated 2A:156A-10(f). See
Appendix p. 38.
Statement of the Case
The petitioner Antonio Cruz Vazquez was tried in the
Eastern District of New York before the Hon. Jacob Mish-
ler and a jury and was convicted on a three-count indict-
ment of conspiring to distribute heroin, contrary to 21
U.S.C. § 846; of possessing heroin with intent to distribute,
contrary to 21 U.S.C. § 841(a)(1); and of an offense of
participating in a continuing criminal enterprise under 21
U.S.C. § 848. Vazquez was sentenced to a term of imprison-
ment of fifteen years and a special parole term pursuant to
the provisions of § 848 and was fined $125,000.
The prosecution arose out of the seizure of a large
quantity of heroin from an apartment in the city of New
York early in 1978. Vazquez was linked with this seizure
by the introduction into evidence, over the objections of
the defense, of the contents of intercepted telephone con-
versations. These conversations suggested that Vazquez
who had been living in Las Vegas, Nevada, during the
relevant period was connected with the importation of
heroin from Mexico into Arizona and thence to New Jersey
and New York. Apart from the tapes of these conversa-
tions there was no direct evidence of Vazquez’s participa-
tion in the events that led to the seizures and arrests in New
York. The tapes yielded arguably incriminating statements
and were the major theme of the prosecutor’s summation.
The applications for the wiretap orders were made by
officials of the State of New Jersey to a New Jersey court.
4
Numerous orders and extensions were obtained for differ-
ent wires and these are tabulated in the opinion of the
Court of Appeals. A 12. In all some 208 tapes were
involved but the great majority of those that had any
relevance to the petitioner were on the wire of a co-defen-
dant, Antonio Gonzalez. The first order on the Gonzalez
wire was procured on July 5, 1977, with extensions on J uly
22 and August 1. As required by the New Jersey statute,
a second, fresh order was issued on August 11, 1977, which,
under New Jersey law, terminated, on August 31, 1977.
The 114 tapes recorded under these orders and extensions
were not judicially sealed until September 13, 1977.
Pre-trial and on appeal the defense made an attack on
several aspects of the wiretap warrants and procedures,
notably on the delay in sealing which is the issue advanced
in this petition. In explanation for the failure to obtain im-
mediate judicial sealing of the tapes, as required by both
the federal and the New Jersey statutes (A 37-39), the
Government presented pre-trial an affidavit from Jack Hill,
Esq., an Assistant Prosecutor in the County of Hudson,
State of New Jersey. This affidavit is reproduced in the
Appendix at pp. 30-36.
The affidavit alleged a medley of reasons for the delay
in sealing. A need existed to duplicate the original tapes
and this process was protracted because of a shortage of
recorders (A 32); then all duplicates had to be checked
for completeness and audibility which was a slow process
since the language on the tapes was Spanish. But it ap-
pears that this preparatory work was completed by August
17th, although sealing was not effected until September
13th.
In explanation for the extraordinary further procrastina-
tion the affidavit asserts that on August 17th the investi-
: |
;
;
|
4)
gators learned that the judge who had issued the orders
was On vacation and would not return until August 25th.
However they delayed considerably even after the judge’s
return since, as noted, the tapes were not presented for
sealing until September 13th. The Court of Appeals dis-
missed the judge’s vacation as an unacceptable element in
the explanation but nevertheless managed to hold that the
delay in sealing had been satisfactorily explained.
The Court of Appeals for the Second Circuit arrived at
its holding by reasoning initially that the delay was at worst
one of 13 days since the duty to seal did not accrue until
the expiration of the second order. Taking the delay to be
13 days the Court of Appeals then held that this was satis-
factorily explained by the reasons having to do with the
preparation of the tapes for sealing. It is contended in this
petition that the Court of Appeals was wrong in law in
determining the date on which the duty to seal accrued and
that its reading of the explanation is contradicted by the
face of the Government’s own explanatory affidavit.
Reasons for Granting the Writ
This case presents compelling reasons for granting the
writ for it squarely raises the question of the relationship
between federal and state rules in the license and control
of wiretapping. Further, it presents an important question
on the interpretation of the federal statute not yet passed
upon by this Court. For both these reasons an authoritative
response to the questions raised here would make an im-
portant contribution to clarity in the understanding of the
permissible scope of wiretapping.
I
The Decision Below Improperly Ignores the Expressed
Intention of a State Legislature to Restrict Wiretapping
More Severely Than Does the Federal Statute.
Both the federal wiretap statute and the New Jersey
statute require judicial sealing of the tapes or the furnish-
ing of a “satisfactory explanation” for the absence of seal-
ing in substantially the same terms. 18 U.S.C. § 2518(8) (a);
N.J. Stat. Ann. § 2A :156A-14. A 37-38. Under the federal
statute this sealing must be effected “immediately upon the
expiration of the period of the order, or extensions thereof.”
Id. The Second Circuit Court of Appeals has interpreted
this section to mean that in a federal wiretap situation the
duty to seal accrues at “the termination date of the con-
tinuous period of interception of a given telephone, regard-
less of the number or length of judicial orders that have
been issued to authorize that surveillance.” A 13.
This fixing of the time when the duty to seal arises has
come about in the light of the general federal provisions for
issuing wiretap orders and extensions to those orders con-
tained in 18 U.S.C. § 2518(5). A 37. This section per-
mits the issuance of 30-day orders and 30-day extensions
and places no limit on the number of orders or extensions
that may be issued to authorize continuation of a given
interception. The rule adopted in the Second Circuit as to
the accrual of the duty to seal is thus a conclusion derived
from the conjunction of Sections 2518(5) and 2518(8) (a).
What should be the impact of a narrower license afforded
by a state statute or the decisions of a state court? This
must surely depend on the way in which the state narrows
the federal understanding. The New Jersey statute limits
the period of the original order to 20 days after which only
7
two extensions, each of 10 days, is permitted. New Jersey
Statutes Ann. 2A:156A-12(f). A 38. After this total
period of 40 days has elapsed the state authorities must
make an application showing fresh probable cause if they
wish to justify further interceptions. New Jersey Statutes
Ann. 2A:156A-10(f). A 38-39. Thus New Jersey is sub-
stantially less generous than the federal law in permitting
extensions of an original order. ‘
In the present case the Second Circuit Court of Appeals
nevertheless held that the date on which the duty to seal
arose under the New Jersey statute was at the conclusion
of all continuous eavesdropping on a particular wire, even
though this encompassed not only the period of one order
and its extensions but (as in this case) the contiguous
periods of two different orders.
To justify this holding the Court of Appeals relied on its
own earlier decision in United States v. Sotomayor, 592
F.2d 1219 (2d Cir.), cert. denied, 47 U.S.L.W. 3786 (U.S.
June 4, 1979). But in Sotomayor the court was dealing
with the New York statute where both the provisions
on issuing and extending orders and the provision on
sealing were virtually identical with the federal ones. The
only conflict in Sotomayor was with the New York Court of
Appeals who in People v. Washington, 46 N.Y.2d 116, 412
N.Y.S.2d 854 (1978), had interpreted the state statute to
require repeated acts of sealing at the end of each order
or extension period considered separately. Sotomayor pro-
ceeded on the principle that the federal courts in the area
of wiretapping should defer to state restrictions, absent in
the federal understanding, only when these restrictions are
“designed to protect an individual’s right of privacy”, 592
F.2d at 1225 and that questions of the construction of a
sealing provision do not implicate so central an interest,
8
Whether or not Sotomayor is correct need not be argued
here for that decision cannot justify the holding in the
present case and should not be extended to apply to this
case. Here the New Jersey statute differed from the fed-
eral one in a way that was patently designed as a direct pro-
tection of privacy by imposing more rigOrous requirements
for obtaining wiretap orders. Here, therefore, the proper
question to ask is whether the sealing provision is signifi-
cantly connected with the provisions that confine the dura-
tion of orders and extensions. Such a significant connection
does exist.
The state statute, unlike the federal one, creates a definite
terminus at the end of a period of an order and two exten-
sions and then demands a fresh start. The concept of seal-
ing goes naturally with the terminus of a period of inter-
ception. Prompt sealing ensures, for example, that no
interception can be passed off as occurring at a substan-
tially earlier date. This is especially important in New
Jersey since it is more difficult to obtain a new order than
it is to obtain an extension in federal practice. If sealing is
only demanded at the end of all orders plus extensions plus
new orders, as the Court of Appeals held, this will under-
mine the verification of the New Jersey provisions that
there is to be a sharp halt at the end of forty days and that
the prosecution offer fresh probable cause before there is a
continuation of interception. There are no New Jersey
cases on the question of when the duty to seal attaches but
this is the natural and reasonable interpretation of the
New Jersey statute.
Furthermore, it is a natural interpretation of the federal
sealing provision as applied to the New Jersey provisions’
on issuing orders and extensions. For the federal] statute,
§ 2518(8)(a), speaks of the duty to seal arising “upon the
9
expiration of the period of the order or extensions thereof.”
A 37. While Sotomayor can be justified under this pro-
vision, since the New York provisions on orders and exten-
sions are the same as the federal ones, the present case
cannot. New Jersey is clear that an order and its extensions
terminate after forty days. The Court of Appeals stretched
the federal rule on a Procrustean bed and arrived at the
strange conclusion that 40 means 80 or 120 or whatever.
By taking this road the Court of Appeals concluded that
the duty to seal the tapes intercepted under the Gonzalez
wire did not arise until the end of the second order, August
31, so that the eventual sealing on September 13 was 13
days late. A proper understanding leads one to the con-
clusion that a duty to seal arose, for those tapes already
intercepted, on August 11 when the last extension per-
mitted by the state statute expired, so that the delay was
in fact 33 days.
Thus there is a double vice in the holding of the Court
of Appeals. In the first place it rudely ignores the implica-
tions of an expressed state preference for stricter stan-
dards for wiretapping than are contained in the federal
statute. In this way it impermissibly interferes with the
freedom of the state to make such judgments and also gives
an unnecessary liberality to wiretap procedures. Second, it
involves a tortured and quite implausible interpretation of
the plain enough language of the federal sealing provision.
10
Il
The Decision Below Characterizes the Explanation for
Delay as Satisfactory for Reasons That the Record Dem-
onstrates to Be Without Foundation.
The Court of Appeals, having adopted a standard (here
contended to be improper) by which the worst delay in
sealing the tapes amounted to 13 days, then relied on the
affidavit by Prosecutor Hill, (A 30), to identify a satis-
factory explanation for the delay. The explanation was
held to be satisfactory (though a “close question”) because
it rested on factors having to do with difficulties in readying
the tapes for sealing because of shortages of equipment
and personnel. 7d.
But the Court of Appeals misapprehended or overlooked
certain inescapable implications of the Hill affidavit, that
make it clear that, of the 114 tapes judicially sealed on
September 13, 90 had been prepared and were ready for
judicial sealing by August 17. A 35. (These 90 tapes
contained the bulk of the conversations introduced into
evidence by the Government.) The reason given why these
tapes were not timely sealed had nothing to do with short-
ages of equipment or personnel, but related solely to the
fact that the judge who had issued the wiretap order was
on vacation for part of the period—a reason that the Court
of Appeals itself found unacceptable. A 34.
Even assuming that 24 of the 114 tapes were not ready
for sealing on August 17 and conceding arguendo that the
Court of Appeals was correct in setting the date on which
the duty to seal arose as August 31, there was no reason
given why the prosecutor held back 80 percent of the tapes
from sealing for two weeks except that the other 20 percent
were not yet ready. To regard such an explanation as
we en i TR A lh A tae ee lB
ee ee ee
11
satisfactory will dangerously subvert the statute, for
prosecutors could always explain the failure to seal tapes
on the ground that some preparatory work still had to be
done On some minute fraction of the aggregate.
Furthermore, the story presented in Hill’s affidavit makes
it very difficult to credit the contention that it took 13 days
to ready 24 tapes, when the affidavit asserts that the pre-
ceding 90 tapes were prepared for sealing in 7 days. The
affidavit states that on August 10, Investigator Duffy was
assigned to prepare 90 tapes for sealing and that he com-
pleted this by August 17. (A 35) There is no explanation
or suggestion in the affidavit as to why it might have taken
twice as long to prepare one quarter of the number of tapes.
The allegations of shortage of men and equipment do not
relate to the special delay with the 24 tapes but rather go
to the question of delay in general terms.
CONCLUSION
For these reasons a writ of certiorari should issue to
review the judgment and opinion of the Court of Appeals
for the Second Circuit.
Respectfully submitted,
GeraLtp L. SHarcen
Counsel for Petitioner
1370 Avenue of the Americas
New York, New York 10019
(212) 541-7105
GraHam HucGHEs
Of Counsel
November 5, 1979
APPENDIX
Opinion in the Court of Appeals
for the Second Circuit
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
—~< -
Nos. 678, 694, 695, 706, 707—August Term, 1978.
(Argued February 26, 1979
Decided August 24, 1979.)
Docket Nos. 78-1366, 78-1370, 78-1378,
78-1379, 78-1398
>
UNITED STATES OF AMERICA,
Appellee,
—_—V—
ANTONIO CRUZ VAZQUEZ, BENITO LUIS CORTINA,
ANTONIO GONZALEZ, ANDRES RENE RAPPARD, and
JOSE DE LE FE-QUINTAS,
Appellants.
Before:
FEINBERG, TIMBERS and MESKILL,
Circuit Judges.
—~>—
Appeals from judgments entered in the United
States District Court for the Eastern District of New
York, Jacob Mishler, Chief Judge, convicting ap-
pellants of narcotics-related offenses. The Court of
la
2a
Opinion in the Court of Appeals for the Second Circust
Appeals held that delays preceding the judicial seal-
ing of tapes recorded during the electronic surveil-
lance of certain telephone lines were satisfactorily ex-
plained and did not necessitate suppression of the in-
tercepted conversations, and that there was probable
cause for the issuance by a New Jersey court of
orders authorizing such interception.
Affirmed.
>
GERALD L. SHARGEL, New York, New York
(Graham Hughes, Fischetti & Shargel,
New York, New York, of counsel), for
Defendant-Appellant Vazquez.
DAVID BREITBART, New York, New York,
for Defendant-Appellant Cortina.
LAWRENCE S. BADER, New York, New York
(Segal & Hundley, New York, New
York, of counsel), for Defendant-Ap-
pellant Gonzalez.
MICHAEL YOUNG, New York, New York
(Goldberger, Feldman & Dubin, New
York, New York, of counsel), for
Defendants-Appellants Rappard and
De La Fe-Quintas.
SUSAN E. SHEPARD, Assistant United
States Attorney, Eastern District of
New York, Brooklyn, New York (Ed-
ward R. Korman, United States At-
torney, Harvey M. Stone, Assistant
United States Attorney, Eastern
District of New York, Brooklyn, New
ee en a ee LY Oe ee ee Oe e <
“ot es oman Aner we
a LO NE NA LN ete a RT Ke Bi ng i Hes om is -
— er
Sa
Opinion in the Court of Appeals for the Second Circuit
York, of counsel), for the United
States of America.
>
MESKILL, Circuit Judge:
Antonio Cruz Vazquez, Benito Cortina, Antonio
Gonzalez, Andres Rene Rappard, and Jose De La Fe-
Quintas appeal from judgments of conviction entered
in the United States District Court for the Eastern
District of New York, Jacob Mishler, Chief Judge.
Appellant Vazquez was convicted, after a jury trial,
of conspiring to distribute heroin, in violation of 21
U.S.C. § 846; possessing with intent to distribute 44
pounds of heroin, 21 U.S.C. §841(aX1); and con-
ducting a continuing criminal enterprise, 21 U.S.C.
§ 848. Cortina, Gonzalez, Rappard and De La Fe
were convicted only on the conspiracy count—Cortina
and Gonzalez after a jury trial, Rappard and De La
Fe after guilty pleas.' Each has been sentenced to a
term of imprisonment and a special parole term; in
addition, Vazquez and Gonzalez have been fined.’
1 With the agreement of the government and the approval of
the court, Rappard and De La Fe preserved the right to appeal
the district court’s denial of their motions to suppress certain
wiretap evidence. See United States v. Price, slip op. 2657, 2658
n.} (2d Cir. May 18, 1979), and cases cited therein.
2 Vazquez was sentenced on the criminal enterprise count to a
term of 15 years’ imprisonment, lifetime special parole, and a
$25,000 fine, and on the possession count to a term of 15 years’
imprisonment (concurrent) and a $100,000 fine. Cortina was
sentenced to a term of 15 years’ imprisonment and a special
parole term of 15 years. Gonzalez was sentenced to a term of 10
years’ imprisonment, a special parole term of 15 years, and a
$25,000 fine. Rappard was sentenced to a term of 5 years’ im-
prisonment and a special parole term of 10 years. De La Fe was
sentenced to a term of 3 years’ imprisonment and a special
parole term of 7 years.
4a
Opinion in the Court of Appeals for the Second Circutt
I. Background
The issues raised by the appeals before us do not
necessitate a detailed elaboration of the complex and
extensive narcotics operation in which appellants par-
ticipated.* Briefly, the government presented evidence
showing that, with the help of an airline employee
Stationed in Arizona, participants in the conspiracy
imported from Mexico large quantities of heroin and
exported, in exchange, large sums of cash. The
evidence indicated that the heroin was then transfer-
red from the western states to New York or New
Jersey, where it was ultimately sold.
Although the government called many witnesses
and introduced many exhibits, a great deal of trial
time was devoted to presenting to the jury, over the
objections of the defendants, the contents of various
intercepted telephone conversations in. which one or
more of the conspirators had participated.‘ The
3 No challenge has been made to the sufficiency of the evidence
presented to support the verdicts rendered as to the three ap-
pellants who proceeded to trial: Vazquez, Gonzalez and Cortina.
ure remained the same.
No challenge to the accuracy of either the transcriptions or
the translations has been made. Appellant Cortina, however,
does challenge the district court’s decision to allow the govern-
Pe ee ee
OS reer ne es ee: s ahaa
5a
Opinion in the Court of Appeals for the Second Circuit
federal statute governing wiretapping® both restricts
the availability of this singularly intrusive _ in-
vestigative technique and imposes a number of obli-
gations on those federal or state authorities who are
involved in its authorization, implementation or
supervision. Failure to comply with certain of the
procedures specified necessitates the suppression of
the evidence obtained. Thus, in reviewing the
district court’s decision not to exclude the challenged
evidence, we must closely examine the route. by
which the intercepted conversations got into court in
order to determine whether the statutory pre-condi-
tions to its admission were satisfied.
On July 5, 1977, an investigator representing the
Narcotics Strike Force of the Hudson County, New
Jersey, Prosecutor's Office applied to Judge Arthur
J. Blake of the New Jersey Superior Court for an
order authorizing the interception of certain wire
communications pursuant to the New Jersey Wiretap-
tification of the speakers, and he made clear that the transcripts
were to be used only as aids: “The mere fact that it is in
typewritten form does not mean you must accept it... . [The
transcripts] are merely guides, subject to assessment by you as
to the accuracy and the weight to be given... .” Tr. at 890.
Under these circumstances, we cannot agree with Cortina’s con-
tention that the procedures followed deprived him of a fair trial.
Cf. United States v. Lam Lek Chong, 544 F.2d 58, 71 (2d Cir.
1976), cert. denied, 429 U.S. 1101 (1977); United States v.
Chiarizio, 525 F.2d 289, 294 (2d Cir. 1975); United States v.
Marin, 513 F.2d 974, 977 (2d Cir. 1975); United States v.
Koska, 443 F.2d 1167, 1169 (2d Cir.), cert. denied, 404 U.S. 852
(1971).
5 Title III of the Omnibus Crime Control and Safe Street Act of
1968, 18 U.S.C. §§ 2510 et seg.
6 See id. §§ 2518(10)(a) and 2518(8)(a); but see United States v.
Donovan, 429 U.S. 413 (1977).
6a
Opinion in the Court of Appeals for the Second Circuit
ping and Electronic Surveillance Control Act.’ The in-
vestigator’s supporting affidavit stated that the Pros-
ecutor’s Office had obtained information from several
Suurces (including interviews with confidential in-
formants, visual surveillance of Suspects, and ex-
amination of telephone company records) linking the
use of four New Jersey telephones with the operation
of a large narcotics conspiracy controlled by ap-
peliant Vazquez. According to the affidavit, the Pros-
ecutor’s Office was of the view that electronic
surveillance of four specified telephones would reveal
information concerning the imminent shipment of a
large quantity of heroin into the New York-New
Jersey area. On the basis of this affidavit, the ade-
quacy of which is discussed in part III of this opin-
ion, Judge Blake issued an order dated July 5th,
1977, authorizing 20-day wiretaps on the four tele-
phones, the last four digits of which are 0027, 9462,
9693, and 5699. On July 22, 1977, the New Jersey
Superior Court authorized a 10-day extension of
these four wiretaps, effective that day, on the basis
of an affidavit that both incorporated the original
July 5th affidavit and included information gathered
through interceptions under the initial order. On
August 1, the New Jersey court authorized a second
10-day extension of the initial order on the basis of
an affidavit that again incorporated the earlier af.-
fidavits and set forth information gathered during
prior interceptions. On August 11, 1977, the Pros-
ecutor’s Office sought and received a new order
authorizing 20-day interceptions on the same four
telephones. Again the Supporting affidavit _ in-
7 N. J. Stat. Ann. 2A:156A-1 et seq.
RT eT Rr rere ie
Ta
Opinion in the Court of Appeals for the Second Circuit
corporated all previous affidavits and set forth new
information gathered during previous interceptions.
On August 31, 1977, yet another 20-day order was
issued.* Because service had been terminated on one
of the four tapped telephones, number $462, no
authorization was sought for continued interception
of that line. However, the affidavit submitted to the
New Jersey court by the Prosecutor’s Office stated
that new information had been obtained indicating
that telephone number 6299 was emerging as a focal
point for communications between the subjects of the
investigation, and authorization was sought and re-
ceived for the initiation of a wiretap on this number.
On September 19, a 10-day extension was sought as
x Appellant Cortina argues that it was improper for the court
to issue two consecutive 20-day orders without first authorizing
two 10-day extensions of the earlier 20-day order. We are aware
of no New Jersey case on point, but we see nothing in the New
Jersey statute to support this proposition. Given that the stand-
ards governing the issuance of a 20-day order are higher than
those pertaining to 10-day extensions, and given that the Pros-
ecutor’s Office met these stricter requirements, even assuming
that the New Jersey courts would interpret the law in the man-
ner suggested by Cortina, we fail to see how he could have been
prejudiced by the challenged procedure. See N. J. Stat. Ann.
2A:156A-10(f), which states:
Upon consideration of an application, the judge may enter
an ex parte order . . . authorizing the interception of a wire
or oral communication, if the court determines on the basis of
the facts submitted by the applicant that there is or was
probable cause for belief that:
in the case of an application, other than a renewal or ex-
tension, for an order to intercept a communication of a person
or on a facility which was the subject of a previous order
authorizing interception, the application is based upon new
evidence or information different from and in addition to the
evidence or information offered to support the prior order,
regardless of whether such evidence was derived from prior
interceptions or from other sources.
8a
Opinion in the Court of Appeals for the Second Circuit
to three of the four phones covered by the August
31 order,’ and on September 29 a second extension
was authorized covering these three lines.
No further orders or extensions were sought in
connection with this investigation until January 3,
1978. A 20-day order issued on that date authorized
the wiretapping of three previously untapped
telephone lines, numbers 3016, 6656, and 7511. On
January 23 a 10-day extension order was issued
authorizing the continued interception of lines 3016
and 6656. After the expiration of this extension, all
wiretap activity relevant to the instant appeals
ceased. All intercepted conversations had been re-
corded on tape;'® the wiretaps conducted pursuant to
the orders and extensions just enumerated generated
over 200 reels of tape.
gy The affidavit Supporting this application stated that “in order
to minimize the interception of communications to the fullest ex-
tent possible,” no extension was being requested to cover number
0027. Although drug related conversations had been intercepted
on line 0027, the Prosecutor’s Office was of the opinion that no
information regarding the particular activities on which the in-
vestigation had become focused would be lost by termination of
the 0027 wiretap. Thus, the September 19 extension covered
only numbers 5693, 5699 and 6299.
10 Both the federal statute and the New Jersey act require such
reco . Section 2518(8)(a) of the federal statute provides in
part:
The contents of any wire or oral communication intercepted
‘by any means authorized by this chapter shall, if possible, be
recorded on tape or wire or other comparable device.
Similarly, N. J. Stat. Ann. 2A:156A-14 provides in part:
Any wire or oral communication intercepted in accordance
with this act shall, if practicable, be recorded by tape, wire or
other comparable method.
ai ent ei
a ee
9a
Opinion in the Court of Appeals for the Second Circuit
II. The Sealing of the Tapes
The argument most vigorously pressed by all five
appellants, and the only one requiring extended
discussion, focuses on what happened after the in-
tercepted conversations were recorded. Appellants
contend that the government should not have been
permitted to rely on any of the tapes recorded dur-
ing the interceptions described above because unac-
ceptable delays preceded the judicial sealing of these
tapes.
Both the federal wiretap statute and the cor-
responding New Jersey Statute require the “im-
mediate” judicial sealing of tapes recorded in the
course of a wiretap, and under the terms of both
statutes the admissibility of such tapes into evidence
is conditioned upon the presence of a judicial seal or
the offer of a satisfactory explanation for its
absence.'' Federal and state courts have interpreted
11 Section 2518(8)(a) of 18 U.S.C. provides in part:
“ Immediately upon the expiration of the period of the order, or
extensions thereof, such recordings shall be made available to
the judge issuing such order and sealed under his directions.
Custody of the recording shall be wherever the judge orders.
. . . Duplicate recordings may be made for use or disclosure
pursuant to the provisions of subsections (1) and (2) of section
2517 of this chapter for investigations. The presence of the
seal provided for by this subsection, or a satisfactory explana-
tion for the absence thereof, shall be a prerequisite for the
use or disclosure of the contents of any wire or oral com-
munication or evidence derived therefrom under subsection (3)
of section 2517.
Section 2517(3) of 18 U.S.C. provides:
Any person who has received, by any means authorized by
this chapter, any information concerning a wire or oral com-
munication, or evidence derived therefrom intercepted in ac-
cordance with the provisions of this chapter may disclose the
contents of that communication or such derivative evidence
10a
Opinion in the Court of Appeals for the Second Circust
such sealing provisions to require, by implication, a
satisfactory explanation even when a judicial seal is
present, if such seal was not obtained “immediately.”
See, e.g., United States v. Ricco, 566 F.2d 433, 435
(2d Cir. 1977), cert. denied, 436 U.S. 926 (1978);
United States v. Gigante, 538 F.2d 502, 506 (2d Cir.
1976), State v. Cerbo, 78 N.J. 595, ___, 397 A.2d
671, 674 (1978). We have had occasion before to dis-
cuss the importance of the sealing provisions of the
federal act.
Congress, in enacting Title III’s sharply detailed
restrictions on electronic surveillance, intended to
“ensure careful judicial scrutiny throughout” the
process of intercepting and utilization of such
evidence. . . .
The immediate sealing and storage of record-
ings of intercepted conversations, under the
supervision of a judge, is an integral part of this
statutory scheme. Section 2518(8Xa) was in-
tended to “insure that accurate records will be
kept of intercepted communications”. . . . Clearly
all of the carefully planned strictures on the con-
while giving testimony under oath or affirmation in any pro-
ceeding held under the authority of the United States or of
any State or political subdivision thereof.
ee
sin sonst
lla
Opinion in the Court of Appeals for the Second Circust
duct of electronic surveillance . . . would be un-
availing if no reliable records existed of the con-
versations which were, in fact, overheard.
United States v. Gigante, supra, 538 F.2d at 505
(citations omitted). Gigante held that where tapes
have not been properly sealed, suppression is ap-
propriate even in the absence of any showing that
the tapes have been altered. The Court reasoned that
to condition suppression of improperly sealed tapes
on a showing of tampering would controvert the
language of the statute and would vitiate the con-
gressional purpose. But see United States v. Cohen,
530 F.2d 43, 46 (5th Cir.), cert. denied, 429 US.
855 (1976); United States v. Sklaroff, 506 F.2d 837,
840 (5th Cir.), cert. denied, 423 U.S. 874 (1975);
United States v. Falcone, 505 F.2d 478, 484 (3d Cir.
1974), cert. denied, 420 U.S. 955 (1975).
The 208 tapes here at issue were judicially sealed
in three groups. On September 13, one hundred four-
teen reels were sealed; on October 17, an additional
twenty-one reels were sealed; and on February 9,
1978, the final seventy-three tapes were sealed by
order of Judge Blake. The chronology of events
crucial to our calculation of the sealing delays in-
volved in this case is set out in a chart in the
margin."?
The parties disagree not only as to whether the
sealing delays incurred in this case were justified,
they disagree as well as to how these delays are to
be calculated. We note at the outset that the
measurement of a particular sealing delay and the
determination of whether that delay requires suppres-
sion of a wiretap tape otherwise admissible in a
12 See following page.
Aug. 31,
Aug. 11,
Sept. 19, 1977
1977 1977
_ 1, 1977
duly 5, 1977 July 22, 1977 Au
Subscriber
Number
Opinion in the Court
First Extension
First Extension
First Extension
ORDER #3 Termination’
ORDER #3
ORDER #3
ORDER #3
ORDER #2 Termination
ORDER #2
ORDER #2
ORDER #2
Second Extension
Second Extension
Second Extension
Second Extension
First Extension
First Extension
First Extension
First Extension
ORDER #1
ORDER #1
ORDER #1
ORDER #1
12a
of Appeals for the Second Circuit
Number of
Days Between
Termination and
Date
Sealing
INo delay|*
of Sealing
Feb. 2,
1978
CONTINUED
Jan. 23,
1978 1978
Jan. 3,
1977
Oct. Y,
Sept. 29, 1977
Phone
Number
13
9/13/77
9/13/77
9/13 & 10/17/77
9/13 & 10/17/77
0027
9462
8
Termination
Second Extension
5699 Second Extension
6299 Second Extension
5693
Termination
10/17/77
2/9/78
Termination
Termination
Extension
Termination
Extension
ORDER #4
ORDER #4
ORDER #4
2/9/78
2/9/78
Termination
to
sed by September 13 although interception was authorized
re introduced at trial.
* It appears from the record that surveillance on the 0027 line had. cea
continue until September 19. No tapes from the 0027 line we
trial, and the parties agree that the delay in the sealing of these tapes is not at
oy No tapes from the 7511 line were introduced at
issue.
13a
Opinion in the Court of Appeals for the Second Circuit
federal trial are matters of federal law."* United
States v. Sotomayor, 592 F.2d 1219, 1223-26 (2d
Cir.), cert. denied, 47 U.S.L.W. 3786 (U.S. June 4,
1979). Cf. United States v. Turner, 558 F.2d 46, 49
(2d Cir. 1977) (“This is a federal prosecution, and
federal law determines whether suppression is ap-
propriate.”). Thus, tapes sealed in compliance with
the federal standards are admissible in federal court
regardless of whether under applicable state law the
tapes have been properly sealed. Under federal law,
sealing delays are to be measured from the termina-
tion date of the continuous period of interception of
a given telephone, regardless of the number or
length of judicial orders that have been issued to
authorize that surveillance. United States v. Scafidi,
564 F.2d 633, 641 (2d Cir. 1977), cert. denied, 436
U.S. 903 (1978); United States v. Fury, 554 F.2d
522, 533 (2d Cir.), cert denied, 433 U.S. 910 (1977).
Section 2518(5), which permits the issuance . of 30-
day orders and 30-day extensions, places no limit on
the number of orders or extensions that may be
issued to authorize continuation of a given intercep-
tion, provided, of course, that all statutory conditions
are met.’* Therefore, the duration of “the period of
13 We express no opinion as to how the New Jersey courts
would measure the sealing delays involved in this case or
whether they would view these delays as requiring suppression
of the tapes.
14 18 U.S.C. § 2518(5) provides:
No order entered under this section may authorize or ap-
prove the interception of any wire or oral communication for
any period longer than is necessary to achieve the objective of
the authorization, nor in any event longer than thirty days.
Extensions of an order may be granted, but only upon applica-
tion for an extension made in accordance with subsection (1)
of this section and the court making the findings required by
148
Opinion in the Court of Appeals for the Second Circuit
the order, or extensions thereof,” will depend in each
case on the authorizing judge’s determination of the
length of time interception is justified. And it is only
the “expiration” of this “period of the order, or ex-
tensions thereof,” that triggers the sealing require-
ment of § 2518(8 a).'5
Sotomayor turned on the distinction “between pro-
cedures governing the interception of wiretap
evidence and those governing the preservation of
such evidence after interception for trial.”"* 592 F.2d
at 1225.
subsection (3) of this section. The period of extension shall be
no longer than the authorizing judge deems necessary to
achieve the purposes for which it was granted and in no event
for longer than thirty days. Every order and extension thereof
shall contain a provision that the authorization to intercept
shall be executed as soon as practicable, shall be conducted in
such a way as to minimize the interception of communications
not otherwise subject to interception under this chapter, and
must terminate upon attainment of the authorized objective,
or in any event in thirty days.
15 In interpreting the federal statute in this manner in United
States v. Fury, this Court noted that Congress had clearly not
chosen to institute a sealing procedure sufficiently rigorous to
preclude all possibility of tampering. Viewing the common sense
reading of the statute to require sealing only after the expira-
tion of the second (and last) 30-day extension of a 30-day
wiretap order issued by a New York judge, the Court explained:
There is, of course, some logic in the proposition that the pur-
pose of the sealing provisions would be better served if the
tapes were sealed every thirty days rather than at the end of
ninety days. Carried to its ultimate conclusion, however,
tampering with the tapes could only be guarded against if
they were sealed by a judge at the end of each day. The
statute does not require this. Whatever tampering could be
done in ninety days could be done in thirty days. As a prac-
tical matter, sealing every thirty days would not be a
significantly better safeguard than the system used [here].
United States v. Fury, 554 F.2d 522, 533 (2d Cir.), cert. denied,
433 U.S. 910 (1977).
16 Sotomayor involved four wiretaps authorized by New York
state courts and carried out by New York law enforcement of-
‘158
Opinion im the Court of Appeals for the Second Circuit
We believe that . . . in determining whether to
admit a wiretap obtained by a state officer act-
ing under a state court order issued pursuant to
a state statute, [we are required] to apply only
those more stringent’ state statutory _ re-
quirements or standards that are designed to
protect an individual’s right of privacy, as
distinguished from procedural rules that are
essentially evidentiary in character.
. . . Since a state’s protection of privacy nor-
mally reflects principles central to its social and
governmental order, our failure to respect its
more stringent protection of privacy rights
would not only violate principles of federalism,
but encourage state and federal law enforcement
ficers. The applicable New York statute, like the federal statute,
permits the issuance in proper circumstances of 30-day orders
and unlimited 30-day extensions. N. Y. Crim. Proc. §§ 700.30(7)
and 700.40. However, in contrast to the federal statute, the N w
York statute, as interpreted by the state’s highest court, calls
for immediate sealing after each order or extension authorizing
interception. People v. Washington, 46 N.Y.2d 116, 412
N.Y.S.2d 854, 385 N.E.2d 593 (1978). The Sotomayor Court held
that because the tapes resulting from each tap were sealed with-
in one day of the termination of the /ast order or extension
authorizing that tap, the tapes would not be suppressed, despite
the fact that under New York law many of the tapes had not
been timely sealed. For example, one of the Sotomayor taps was
initiated on September 22, 1976, and was terminated December
' 2, 1976. Extensions of the original order had been granted on
October 22 and November 5. All tapes from this tap were sealed
on December 2. Under New York law, the sealing obligation
arose upon the expiration of the initial order and upon the ex-
piration of each extension. Thus, tapes made pursuant to the in-
itial order required sealing “immediately” as of October 22 under
New York law but required sealing “immediately” as of
December 2 under federal law.
As an alternative ground for its decision the Sotomayor Court
noted that retroactive application of the New York case
authoritatively construing the state statute would not be ap-
propriate. United States v. Sotomayor, 592 F.2d 1219, 1226-27
(2d Cir. 1979), citing People v. Washington, supra.
16a
Opinion in the Court of Appeals for the Second Circuit
officials to by-pass state law and to engage in
federal forum-shopping . . . . On the other hand,
rules pertaining to the admissibility of evidence
are ordinarily governed by the law of the forum.
Id. (footnotes omitted). This reasoning dictates the
same result in the instant case. The New Jersey
courts have had little occasion to interpret the state
wiretap statute, and we are aware of no case pre-
cisely on point. Whether the sealing obligation of the
New Jersey statute is eventually interpreted as at-
taching upon the expiration of each separate order or
extension, as in New York, or as attaching only upon
the termination of the entire period of interception
of a particular telephone, as in the federal courts, we
must be guided by federal law in this area. In con-
trast to the federal act,’ the New Jersey statute per-
mits issuance only of 20-day orders and 10-day ex-
tensions."* Furthermore, under the New Jersey stat-
ute only two 10-day extensions of a particular 20-day
order may be issued. To obtain authorization for the
continuation of a wiretap beyond the period covered
by an order and the two permitted extensions
thereof, law enforcement officials must apply for a
new order. By setting the standards for issuance of a
20-day order higher than those governing issuance of
a 10-day extension,’* and by permitting the issuance
of only two extensions of each order, the New Jersey
legislature has established a method somewhat dif-
17 _—_— As noted above, the federal statute permits issuance of 30-day
orders and unlimited 30-day extensions, where appropriate. 18
U.S.C. § 2518(5), quoted in note 14, supra.
1s N. J. Stat. Ann. 2A:156A-12(f).
19 N. J. Stat. Ann. 2A:156A-10(f). See note 8, supra.
17a
Opinion in the Court of Appeals for the Second Circuit
ferent from that chosen by Congress for protecting
against unwarranted interceptions. Under United
States v. Sotomayor, supra, 592 F.2d at 1223-26,
this choice, insofar as it affects the validity of an
order issued by a New Jersey judge, will be
respected by the federal courts. However, New
Jersey's policy choice regarding the authorization of
continuous wiretaps cannot logically be viewed as af-
fecting the approach to be taken by the federal
courts in assessing the adequacy of the sealing of the
tapes obtained in the course of those taps.
We interpret the phrase “period of the order, or
extensions thereof,” in the sealing provision of the
federal statute, § 2518(8Xa), to encompass a ocon-
tinuous authorized wiretap in its entirety, regardless
of whether the judicial orders authorizing the initia-
tion or continuation of the tap are denominated
“orders,” “extensions,” “renewals,” or “continuations.”
To interpret federal law otherwise would result in
permitting the timeliness of the sealing of tapes of-
fered in evidence in federal court to be determined
by a state decision to label orders authorizing the
continuation of wiretaps by any term other than the
term “extension.” Such a result, although in no way
increasing the protection afforded individual privacy,
would diminish federal control over evidentiary pro-
cedures in the federal courts. Keeping in mind the
principles enunciated in United States v. Sotomayor,
supra, we deem it most unlikely that Congress in-
tended such a result. Therefore, we conclude that the
term “extensions,” as used in the phrase “period of
the order, or extensions thereof” is to be understood
in a common sense fashion as encompassing all con-
secutive continuations of a wiretap order, however
18a
Opinion in the Court of Appeals for the Second Circutt
designated, where the surveillance involves the same
telephone, the same premises, the same crimes, and
substantially the same persons. See United States v.
Scafidi, supra, 564 F.2d at 641; cf. United States v.
Principie, 531 F.2d 1132, 1142 n.14 (2d Cir. 1976),
cert. denied, 430 U.S. 905 (1977). It follows that the
sealing obligation under federal law is not accelerated
by New Jersey’s method of authorizing the continua-
tion of a wiretap beyond the period of the initial
order.
Having determined that the sealing obligation at-
tached, under federal law, on the date each tap ter-
minated, we can now calculate how long the sealing
of the eight sets of tapes generated by the eight
wiretaps was delayed.”® The delays relevant to this
appeal range from 7 to 13 days:
Date of Dates of Days of
Wiretap Termination™ Sealing” Delay
*0027 Sept. 19,1977 9/13 [0]
9462 Aug. 31, 1977 9/13 13
5693 Oct. 9, 1977 9/13 & 10/17 8
5699 Oct. 9, 1977 9/13 & 10/17 8
6299 Oct. 9, 1977 10/17 8
6656 Feb. 2, 1978 2/9/78 7
*7511 Jan. 23, 1978 2/9/78 [17]
3016 Feb. 2, 1978 2/9/78 7
“As explained in note 12, supra, the delays in sealing the 0027
and 7511 tapes are not at issue here.
20 We reject the government’s argument, apparently accepted by
Judge Mishler, that the attempted unilateral “sealing” of the
tapes by the investigators themselves, outside the presence of
the court, can satisfy the statutory command that the tapes “be
made available to the judge . . . and sealed under his direc-
tions.” Although certainly all reasonable precautions against
19a
Opinion in the Court of Appeals for the Second Circutt
The law is clear that if no explanation had been
offered for these delays we would be obliged to
reverse, as a sealing achieved one to two weeks after
expiration of a wiretap cannot be considered “im-
mediate.” Cf. United States v. Gigante, supra, 538
F.2d 502 (8 to 12 month delays). The cases illustrate
that sealing is often possible within one or two days.
See, e.g., United States v. Sotomayor, supra, 592
F.2d at 1221. Thus, in our view, any delay beyond
that certainly calls for explanation. Unfortunately,
tampering should be taken both before and after judicial sealing
is accomplished, see, e.g., United States v. DePalma, 461 F.Supp.
800, 826-29 (S.D.N.Y. 1978), such procedures do not substitute
for the presence of a “seal as provided for by this subsection.”
18 U.S.C. § 2518(8)(a) (emphasis added).
21 There is no dispute between the parties concerning the dates
on which the various wiretaps were terminated. Thus, we need
not address the important question of how sealing delays are to
be calculated in those cases where, pursuant to the minimization
requirements of the governing statute, a tap is terminated before
the expiration of the maximum period of interception authorized
by the final order issued in regard to that tap. Although this
was the case with line 0027, appellants do not claim that this
wiretap was terminated prior to the day of sealing. In any case,
no tapes from this line were introduced at trial. Compare United
States v. Principie, 531 F.2d 1132, 1142 (2d Cir. 1976), cert.
denied, 430 U.S. 905 (1977) (discussing notification provision,
§ 2518(8)(d) with United States v. Ricco, 421 F.Supp. 401,
406-07 (S.D.N.Y. 1976), aff'd, 566 F.2d 433 (2d Cir. 1977), cert.
denied, 436 U.S. 926 (1978).
22 + In some instances, tapes generated by the same wiretap were
sealed at different times. In our view, the government's decision
to obtain judicial sealing of some tapes prior to termination of
the relevant tap did not accelerate its obligation to obtain seal-
ing of the remainder of the tapes. A contrary ruling would
needlessly discourage the government from exceeding the
minimal standards set by the statute in those instances where it
could otherwise do so. Cf. United States v. Fury, supra, 554
F.2d at 533 (“{S}ince it would not be a hardship for the govern-
ment to seal the tapes after each [order or extension], it might
seriously consider adopting such a practice.”)
20a
Opinion in the Court of Appeals for the Second Circuit
there is no clear consensus as to what constitutes a
“satisfactory explanation,” under the statute, for a
less-than-immediate sealing.
No evidence was offered to controvert the affidavit
submitted by the government at the suppression
hearing or the testimony of task force agents at trial
regarding the carrying out of the wiretapping. The
task force experienced shortages in both qualified
personnel and equipment. Surveillance on each wire
was conducted 24 hours a day and as many as five
lines were monitored at any given time. Because the
great majority of the conversations intercepted were
conducted in Spanish, it was necessary, in order to
observe the minimization requirements of the New
Jersey statute,” to have at least one agent fluent in
Spanish monitoring the tapes on each 8-12 hour
shift. Although the Prosecutor’s Office borrowed
Spanish-speaking agents from other law enforcement
agencies, only four qualified agents were available.
An attempt was made to record both original tapes
and duplicate tapes simultaneously but because too
few tape recorders were available, even after borrow-
ing, this was possible less than half the time. Due to
round-the-clock use, the tape recorders required fre-
quent repair work. Further, because personnel and
equipment were engaged in the monitoring and
recording process, machines and personnel were not
always available to duplicate those tapes for which
23 —— 2A:156A-12 of the New Jersey statute provides in
Every order entered under this section shall i
t require that such
interception begin and terminate as soon as practicable and be
paresis in pate manner as to minimize or eliminate the
interception of s communicatio t i j
interception under this act. ieee fone: oceemaid
Zia
Opinion in the Court of Appeals for the Second Circust
no duplicates had been made during the interception
itself. And because the Spanish speaking personnel
were engaged in monitoring conversations, they were
not always available to spot-check the duplicate tapes
for audibility. In addition, during the effective period
of each order or extension, strike force personnel
needed to gain sufficient familiarity with the tapes
to enable them to decide which tapes should be con-
tinued and which should be terminated. Each ap-
plication for continued authorization of a tap con-
tained information obtained during the effective
period of the prior order or extension so that the
issuing judge would have sufficient information on
which to base a determination that continued surveil-
lance was justified. This on-going evaluation of the
conversations intercepted made further demands on
the personnel and equipment available. Finally, the
fact that over 200 reels of tape required duplicating,
labeling, and checking made difficult the prompt
preparation of the tapes for sealing.
Although the question is close, in our view the cir-
cumstances just detailed provide a satisfactory ex-
planation for the 7 to 13 day sealing delays. When
the wiretaps were first instituted, the government
had reason to believe that the investigation would be
quickly concluded, as their information indicated that
a drug shipment was due to arrive in the area. Had
the evidence needed been gathered during the first
week or two of surveillance, perhaps the personnel
24 That the obligation to discontinue non-essential taps was
recognized and respected is evidenced by the fact that the Pros-
ecutor’s Office on its own initiative terminated the 0027 tap
several weeks before the close of the initial phase of the in-
vestigation. Similarly, no extension was sought for the 7511 tap
during the final phase. See note 12, supra.
22a
Opinion in the Court of Appeals for the Second Circuit
and equipment on which the project depended would
have been able to handle the necessary monitoring,
duplication and transcription without incurring delays
in sealing. In the circumstances of this case, where
we discern on the government’s part no bad faith, no
lack of diligence, and no attempt to gain an ad-
vantage over the defendants, we believe that the
government’s lack of foresight regarding the actual
scope of the investigation does not justify the exclu-
sion of probative evidence lawfully obtained.
Congress has explicitly established “two possible
prerequisites to the use of wiretap evidence—the
presence of a judicial seal, or a satisfactory explana-
tion of its absence . . . .” United States v. Gigante,
supra, 538 F.2d at 506 (emphasis added). Unless we
are to read the second alternative out of the statute,
we must decide in each case whether the explanation
tendered can be deemed “satisfactory.” In the instant
case, although the delays were not miniscule, neither
were they of Gigante proportions. In this Circuit
delays of comparable length have been deemed ex-
cusable in some circumstances and inexcusable in
others. Compare United States v. Scafidi, supra, 564
F.2d 633 (7-day delay excused); United States -v.
Fury, supra, 554 F.2d at 533 (6-day delay excused);
United States v. Poeta, 455 F.2d 117 (2d Cir.), cert.
denied, 406 U.S. 948 (1972) (13-day delay excused);
United States v. Aloi, 449 F.Supp. 698 (E.D.N.Y.
1977) (5-day and 7-day delays excused); United States
v. Caruso, 415 F.Supp. 847 (S.D.N.Y. 1976), aff‘,
553 F.2d 94 (2d Cir. 1977) (24-day and 42-day delays
excused) with United States v. Ricco, 421 F.Supp.
401 (S.D.N.Y. 1976), affd, 566 F.2d 433 (2d Cir.
1977), cert. denied, 436 U.S. 926 (1978) (pre-
28a
Opinion in the Court of Appeals for the Second Circutt
Sotomayor, applying New York law, 12-day or 13-day
delay not excused). See also United States v.
Angelini, 565 F.2d 469 (7th Cir. 1977), cert. denied,
435 U.S. 923 (1978) (9-day, 26-day and 38-day delays
excused); United States v. Sklaroff, supra, 506 F.2d
837. Taken together, the factors discussed above ap-
pear to us to explain adequately the delays in-
curred.”*
However, in law as in life, today’s satisfactory ex-
planation may very well be tomorrow's lame excuse.
As the federal and state case law in this area grows,
the failure to foresee and, where possible, prevent
sealing delays becomes less justifiable, as law en-
forcement officials must be expected to learn from
their own experiences and those of others. As other
courts have done, “we decline to allow the police to
rely on their own failure to use proper equipment or
to institute more efficient procedures as an excuse
for delay.” People v. Washington, 46 N.Y.2d 116,
124, 412 N.Y.S.2d 854, 859, 385 N.E.2d 593, 597
(1978). The wiretapping statute imposes a duty on
the judiciary as well as on the prosecutor. It is our
role to -exclude from evidence tapes not sealed in
conformance with the law, and we are aware that by
faithfully performing this statutory duty we en-
courage law enforcement officers to perform their
25 We fail to see the relevance of an additional factor relied on
by the government in attempting to explain the sealing delays.
The absence of the judge in mid-August has little bearing on
delays which occurred in September and later months. In addi-
tion, after United States v. Poeta, 455 F.2d 117 (2d Cir.), cert.
denied, 406 U.S. 948 (1972), and United States v. Fury, supra,
554 F.2d 522, it should be clear that in the courts of this Cir-
cuit, tapes sealed by a judge other than the “issuing judge,
because of the absence or unavailability of the latter, are con-
sidered properly sealed.
24a
Opinion in the Court of Appeals for the Second Circuit
duties in an equally rigorous manner. For this
reason, we will continue to scrutinize wiretap cases
with care, and will not hesitate to exclude evidence
when exclusion is appropriate.
III. Probable Cause
Not only do appellants contend that the wiretap
tapes were improperly sealed, they argue, in addition,
that this evidence was improperly obtained. Ap-
pellants claim that the affidavits supporting the
wiretap authorization orders failed to establish prob-
able cause for the interceptions and that Judge
Mishler erred in denying defense motions to suppress.
the tapes on this ground.
The New Jersey statute* permits a state judge to
enter an ex parte interception order if the court
26 The adequacy of the warrant applications must be tested
against both federal and applicable state law. United States v.
Sotomayor, supra, 592 F.2d at 1225 and n.13. Although there is
a paucity of case law interpreting the New Jersey statute, what
there is suggests that we may draw on the many cases inter-
preting the almost identical federal act which permits issuance
of a wiretap order, when, inter alia,
(a) there is probable cause for belief that an individual is
committing, has committed, or is about to commit a particular
offense enumerated in . . . this chapter;
(b) there is probable cause for belief that particular com-
munications concerning that offense will be obtained through
such interception;
(d) there is probable cause for belief that the facilities from
which, or the place where, the wire or oral communications
are to be intercepted are being used, or are about to be used,
in connection with the commission of such offense, or are
leased to, listed in the name of, or commonly used by such
person.
18 US.C. § 2518(3). Cf. State v. Sanchez, 149 N.J.Super. 381,
394, 396-97, 373 A.2d 1028, 1034, 1035 (Super. Ct. Law Div.
25a
Opinion in the Court of Appeals for the Second Circuit
determines on the basis of the facts submitted by
the applicant that there is probably cause to believe
inter alia that:
(a) The person whose communication is to be in-
tercepted is engaging or was engaged over a
period of time as a part of a continuing criminal
activity or is committing, has or had committed
or is about to commit an offense as provided in
... this act;
(b) Particular communications concerning such
offense may be obtained through such intercep-
tion;
(d) The facilities from which, or the place where,
the wire or oral communications are to be in-
tercepted, are or have been used, or are about to
be used, in connection with the commission of
such offense, or are leased to, listed in the name
of, or commonly used by, such individual... .
N.J. Stat. Ann. 2A:156A-10. We are not the first
court that has been called upon to evaluate the
challenged affidavits under the statutory standards.
A neutral and detached magistrate, Judge Blake of
the New Jersey Superior Court, concluded that these
affidavits established probable cause for his issuance
1977) (drawing on federal cases in interpreting notice provision
of New Jersey statute; “[t]}he New Jersey wiretap statute is
closely modeled after the federal statute; although the New
Jersey act contains “a significant number of specific additional
requirements beyond those embodied in the federal wiretap
statute, this court finds that they do not negate the stated in-
tent of the Legislature to generally pattern the New Jersey
statute on the federal standards and safeguards incorporated in :
18 U.S.C. [] § 2518(1) et seq.”).
————
26a
Opinion in the Court of Appeals for the Second Circuit
of the several orders requested, and such a deter-
mination is to be accorded substantial deference.
Aguilar v. Texas, 378 U.S. 108, 111 (1964); United
States v. Gomez Londono, 553 F.2d 805, 810 (2d
Cir. 1971); State v. Murphy, 137 N.J.Super. 404,
420, 349 A.2d 122, 131 (Super. Ct. Law Div. 1975),
revd on other grounds, 148 N.J.Super. 542, 372
A.2d 1315 (Super. Ct. App. Div. 1977). Judge
Mishler has also carefully reviewed the challenged
affidavits and has found them to be more than ade-
quate. Our own study of the affidavits leads us to
the same conclusion.
No purpose would be served by setting out in
detail the contents of these lengthy affidavits. Suf-
fice it to say that each one provided ample factual
material on which to base a determination of prob-
able cause. The information presented in the initial
37-page affidavit was gathered from several sources,
including tips from three confidential informants.
Considerable evidence was provided to support the
affiant’s conclusion that the informants were reliable.
Two had previously supplied the Prosecutor’s Office
with information concerning drug-related activity and
this information had been corroborated by the in-
vestigators and found to be correct. See Aguilar v.
Texas, supra; Jones v. United States, 362 US. 257,
271 (1960); United States v. Rueda, 549 F.2d 865,
870 (2d Cir. 1977); United States v. Edmonds, 535
F.2d 714 (2d Cir. 1976); United States v. Fantuzzi,
463 F.2d 683, 687-88 (2d Cir. 1972). Cf. United
States v. Fiorella, 468 F.2d 688, 691-92 (2d Cir.
1972), cert. denied, 417 U.S. 917 (1974). The in-
formation given by the third informant was con-
firmed by a DEA agent. Significantly, the statements
27a
Opinion in the Court of Appeals for the Second Circuit
provided by the confidential informants to some ex-
tent corroborated one another. Furthermore, the
Prosecutor’s Office had, where possible, verified de-
tails of the informants’ stories in order to ensure
that the tips were based “on something more sub-
stantial than a casual rumor circulating in the under-
world or an accusation based merely on an individ-
ual’s general reputation.” Spinelli v. United States,
393 U.S. 410, 416 (1969); United States v. Edmonds,
supra, 535 F.2d at 720. Cf. United States v. Dunloy,
584 F.2d 6 (2d Cir. 1978). Although some of the in-
formation had been gathered in the early stages of
the investigation, there was ample indication that the
criminal activity was of an ongoing nature and that
the information was therefore still pertinent. State v.
Murphy, supra, 137 N.J.Super. at 421; 349 A.2d at
131-32. Moreover, appellants’ contention that the af-
fidavit was defective due to certain omissions is
without merit. We agree with Judge Mishler that as-
suming that the omitted facts are true and that their
omission was intentional, they would not be material
to a determination of probable cause. Therefore no
hearing on this issue was necessary.” Cf. Franks uv.
Delaware, 438 U.S. 154 (1978); United States v.
Steinberg, 525 F.2d 1126, 1131 (2d Cir. 1975), cert.
denied, 425 U.S. 971 (1976). Viewed as a whole, the
initial affidavit was sufficient to establish probable
cause to believe that by tapping the target phones
investigators could intercept communications between
the members of the alleged drug conspiracy and that
those conversations would relate to that conspiracy.
27 _—‘ For the same reason we must reject Cortina’s challenge to the
search warrant pursuant to which incriminating evidence, later
introduced at trial, was seized from his New York apartment.
te Eee ee ee nT TE ae
28a
Opinion in the Court of Appeals for the Second Circuit
The subsequent affidavits, all of which incorporated
new information gleaned during the most recent in-
terceptions, also clearly met the standard set by
statute.”
Defendants correctly observe that wiretapping is
“not to be routinely employed as the initial step in
criminal investigation,” United States v. Giordano,
416 U.S. 505, 515 (1974). The New Jersey statute
provides that a wiretap application shall include, in
addition to the requirements just discussed:
A particular statement of facts showing that
other normal investigative procedures with
respect to the offense have been tried and have
failed or reasonably appear to be unlikely to suc-
ceed if tried or to be too dangerous to employ
N. J. Stat. Ann. 2A:156A-9(c)(6).22 However, “the
purpose of the statutory requirements is not to
preclude resort to electronic surveillance until after
all other possible means of investigation have been
exhausted by investigative agents; rather, they only
require that the agents inform the authorizing
judicial officer of the nature and progress of the
investigation and of the difficulties inherent in the
use of normal law enforcement methods.” United
States v. Hinton, 543 F.2d 1002, 1011 (2d Cir.), cert.
28 See N. J. Stat. Ann. 2A:156A-10(f), quoted in note 8, supra.
29 Compare the federal requirement that an application show
that:
normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried
or to be too dangerous... .
18 U.S.C. § 2518(3X¢c).
29a
Opinion in the Court of Appeals for the Second Circuit
denied, 429 U.S. 980 (1976). See also United States
v. Fury, supra, 554 F.2d at 529-30; United States v.
Steinberg, supra, 525 F.2d at 1130. The challenged
affidavits were clearly sufficient in this regard. As
Judge Mishler stated:
The affidavit details the standard investigative
techniques that were utilized prior to the wiretap
application and indicates the paucity of admis-
sible evidence resulting therefrom.
Prior to resorting to wiretapping, the Prosecutor's
Office had interviewed informants, both confidential
and identified; had undertaken physical surveillance;
and had checked bank, telephone, motor vehicle, pub-
lic utilities and police records; and yet, had been un-
able to gather sufficient evidence to arrest the con-
spirators.
The district court correctly concluded that the
challenged wiretap orders were properly issued.
The judgments of conviction are affirmed.
30a
Affidavit of Jack Hill
UNITED STATES DISTRICT COURT
Eastern District or New York
78 CR 67(S)
Unirep States or AMERICA
—against—
Antonio Cruz Vazquez, a/k/a “Nico”, et al.,
Defendants.
State or New Jersey,
County or Hunson, ss.:
AFFIDAVIT
Jack Hm, being duly sworn, deposes and says:
1. I am an Assistant Hudson County Prosecutor and I
am Legal Advisor to the Hudson County Prosecutor’s
Narcotics Strike Foree. In that capacity, I supervised the
wiretap investigation which is related to the charges now
before the Court. I am submitting this affidavit upon in-
formation and belief, the source of which is personal
knowledge and information supplied to me by members of
the Narcotics Strike Force. My purpose is to inform the
court of the procedures followed with respect to the sealing
of the original tapes recorded during this investigation.
2. The wiretap phase of this investigation can be divided
into two parts. The first period of wiretaps lasted from
31a
Affidavit of Jack Hill
July 5, 1977, to October 9, 1977, and was conducted under
authority of three separate orders:
(1) The original order, dated July 5, 1977, for a period
of twenty days, and two ten-day extensions, dated
July 22, 1977, and August 1, 1977, respectively.
(2) The first renewal order, dated August 11, 1977,
for a twenty-day period.
(3) The second order, dated August 31, 1977, and two
ten-day extensions, dated September 19 and Sep-
tember 29, 1977, respectively.
The second period of wiretaps from January 3, 1978, to
January 28, 1978, was conducted under two orders:
(1) An order, dated January 3, 1978, for a 20-day
period and one ten-day extension, dated January
23, 1978.
(2) An order, dated January 12, 1978, for a twenty-
day period.
3. As soon as interceptions under each of the four orders
and extensions terminated, members of the Narcotics Strike
Force engaged in a full-scale effort to prepare the tapes
for sealing. Under my supervision, they duplicated the
original tapes, monitored the duplicates for completeness
and audibility and completed various administrative duties.
Although preparation of the tapes for sealing presented
special problems in this case owing to the scope of the
wiretap investigation and the fact that the intercepted
conversations were in Spanish, it is my belief that there
was no unnecessary delay in presenting the tapes for seal-
ing.
32a
Affidavit of Jack Hill
4. One reason for delay was the need to duplicate the
original tapes in order to have a complete set for use during
the investigation and any subsequent prosecution, At the
termination of each of the four wiretap orders, an inven-
tory of duplicates was prepared. In each case it was found
that only one-third to one-half of the reels had been dupli-
cated during the course of the wiretap. The reason was
that even after borrowing heavily from other law enforce-
ment agencies, including the Federal Drug Enforcement
Administration and the New Jersey State Police, the Nar-
cotics Strike Force was able to obtain only a total of seven
reel-to-reel tape recorders. During the course of each wire-
tap, four of the seven were used 24-hours each day to re-
cord conversations on the target telephones. One machine
was held as a back-up machine to facilitate non-stop record-
ing in the face of repeated problems with overheating and
blowouts in the four main machines. Thus, when the wire-
tap was in progress, only two machines were available for
other uses, including the duplication of originals. There
were heavy competing demands for these machines and
only rarely were as many as two machines available for
duplication. Thus, one machine was often needed to tran-
scribe important conversations intercepted earlier for usc
in the investigation and for preparing new affidavits. More-
over, throughout most of the wiretap period, machines were
needed by members of the Narcotics Strike Force for a
gambling wire and for unrelated trial preparation and
grand jury presentations. Thus, even with diligent effort,
the investigator charged with preparing duplicates had to
reproduce one-half to two-thirds of the reels after the
wiretap ended. Beginning at that time and recording full
time at 1% speed, it took him several days in each case to
reproduce the full set of reels,
33a
Affidavit of Jack Hill
5. A second reason for delay in sealing was the need to
spot check all duplicates for completeness and audibility.
This, of course, had to be done in the period after the dupli-
cates were prepared. Spot checking was done in the follow-
ing manner: the investigator, by use of the logs, located
several pertinent conversations on each duplicate reel and
listened to them to verify that the duplicate was complete
and that the conversations could be understood. Inasmuch
as the conversations were in Spanish, it was necessary to
use investigators who spoke Spanish, and this created a
problem. During the wiretap periods the entire Strike
Force had access to only four Spanish-speaking investi-
gators. (Spanish-speaking personnel were-borrowed from
other law enforcement agencies.) However, with four on-
going wires that had to be monitored on a 24-hour basis,
only one Spanish-speaking investigator was available for |
other work, including spot checking duplicates. This cre-
ated an additional bottleneck and delayed sealing.
6. At the time the January wiretap was terminated with
the arrests and seizures on January 28, the problems were
somewhat different. Then personnel and equipment that
would normally have been available for duplication and
spot-checking were diverted to other duties and other juris-
dictions. Thus, two Spanish-speaking investigators and ~
several machines were dispatched to the United States
Attorney’s Office in the Eastern District of New York to
prepare the case for grand jury presentation there. At the
same time, the Strike Force supervisor, Lt. Daniel Doherty,
who is bilingual, was needed to supervise arraignments in
New Jersey and to prepare complaints, and arrest and
search warrants. A second Spanish speaking investigator
had bv this time departed to a new assignment in Florida.
34a
Affidavit of Jack Hill
Even before the January wire was terminated, resources
were severely strained. Thus, when it became clear from
intercepted conversations that a dea] was about to be made,
the Narcotics Strike Force enlisted all available personnel,
borrowing heavily from Drug Enforcement Administration
and the State Police as well, to man surveillance teams.
Even though there were no ongoing wiretaps in January,
manpower and equipment shortages produced delays in
sealing.
7. Some additional delay was caused by the availability
of the issuing judge. Thus, on or about August 10, 1977,
the last day of interceptions under the initial order, I con-
tacted the office of the issuing judge, the Honorable Arthur
J. Blake, Assignment Judge, Superior Court of New Jersey,
Essex County, and spoke to a member of his staff. I was
told to prepare the tapes and the appropriate paperwork
and then contact the judge for an appointment. Investi-
gator James Duffy was assigned, in addition to his other
duties, to prepare the tapes for sealing. A group of 90
tapes was prepared and sealed by Investigator Duffy on
August 17. On that date, Judge Blake’s office was contacted
and it was learned that Judge Blake was on vacation in
California and would not return to his office until after
August 25. Since, by statute, the original tapes must be
ordered sealed by the issuing judge, the sealed tapes were
placed in the Narcotics Strike Force safe by Investigator
Duffy for Judge Blake’s return.
I should state at this point that it is my interpretation of
N.J.S. 2A :156A-14 and the interpretation of this office that
there was no legal obligation to seal any of the original
tapes obtained under the July 5 and August 11 orders until
aiter the termination of the second extension on the second
— 35a
Affidavit of Jack Hill
renewal on October 9. Nevertheless, in view of the number
of original tapes which were ready for sealing, we requested
the issuing judge to seal portions of the tapes prior to that
date even though this procedure necessitated the prepara-
tion of additional sealing orders.
An additional 24 tapes authorized by the orJer of August
11 and terminating on August 31 were prepared for sealing.
Judge Blake’s office was contacted for an appointment and
on September 13, by separate orders, he ordered sealed
both the original group of 90 tapes and the group of 24
tapes,
On Sunday, October 9, the date interceptions under the
August 31 order and extensions terminated, Investigator
Duffy was assigned to prepare the third group of 21 reels
for sealing. This work was completed between Monday,
October 10 and Friday, October 14. During that week, In-
vestigator Duffy contacted Judge Blake’s office and was
given an appointment for Monday, October 17. On that
date, the issuing judge ordered the final group of tapes
from the first wiretap period sealed.
The second period of wiretaps terminated on January
28,1978, From that date until January 31, all efforts of the
Narcotics Strike Force were directed toward other aspects
of the case. Search and arrest warrants were prepared and
executed. On Monday, January 30, Lt. Doherty and I pre-
pared and processed criminal charges against individuals
arrested in New Jersey. The defendants were arraigned
before the Honorable Joseph P. Hanrahan, Criminal As-
signment Judge, Superior Court of New Jersey. Hudson
County. On Tuesday, January 31, Lt. Doherty began to
duplicate the tapes and prepare them for sealing. That
evening, I called Judge Blake at his home in Jersey City,
New Jersey, and informed him that Lt. Doherty was pre-
36a
Affidavit of Jack Hill
paring the tapes for sealing. Judge Blake directed me to
complete this process and contact him at that time for a
sealing date. The tapes were ready for sealing on or about
Tuesday, February 7. The following day, February 8, Lt.
Doherty sealed the tapes according to the procedures pre-
viously established by Judge Blake and contacted his office
for an appointment. On February 9, Judge Blake ordered
the final group of tapes sealed.
8. Throughout the period of the wiretap, original tapes
that were not yet sealed were stored in secured facilities
at the Office of the Narcotics Strike Force until the time
that they were removed for duplication or sealing.
9. I have participated in wiretap investigations in New
Jersey for approximately seven years. During that time
the sealing procedures used in this investigation have been
followed and never has there been any irregularity as a
result. I am aware of no such problems in the prescnt case.
Moreover, I was keenly aware of my statutory duty to seal
the tapes immediately and I did not countenance unneces-
sary delay. Except for the time necessary to prepare dupli-
cate tapes and paperwork and to scheduled appointments
with the issuing judge, all tapes were ‘sealed immediately.
Dated: Jersey City, New Jersey
May 17, 1978.
Jack Hitz
Assistant Hudson County Prosecutor
‘37a
Statutes and Rules Involved
Title 18 U.S.C. Section 2518(8)(a) (in part)
Immediately upon the expiration of the period of the
order, or extensions thereof, such recordings shall be
made available to the judge issuing such order and
sealed under his directions. Custody of the recording
shall be wherever the judge orders. .. . Duplicate re-
cordings may be made for use or disclosure pursuant
to the provisions of subsections (1) and (2) of section
2517 of this chapter for investigations. The presence
of the seal provided for by this subsection, or a satis-
factory explanation for the absence thereof, shall be
a prerequisite for the use or disclosure of the contents
of any wire or oral communication or evidence derived
therefrom under subsection (3) of section 2517.
New Jersey Statutes 2A: 156A-14 (in part)
Immediately upon the expiration of the order or ex-
tensions or renewals thereof, the tapes, wires or other
recordings shall be transferred to the judge issuing
the order and sealed under his direction. Custody of
the tapes, wires or other recordings shall be main-
tained wherever the court directs. ... Duplicate tapes,
wires or other recordings may be made for disclosure
or use pursuant to... this act. The presence of the
seal provided by this section, or a satisfactory ex-
planation for its. absence, shall be a prerequisite for
the disclosure of the contents of any wire or oral com-
munication, or evidence derived therefrom, under
this act.
Title 18 U.S.C. Section 2518(5)
No order entered under this section may authorize or
approve the interception of any wire or oral communi-
38a
Statutes and Rules Involved
cation for any period longer than is necessary to
achieve the objective of the authorization, nor in any
event longer than thirty days. Extensions of an order
may be granted, but only upon application for an ex-
tension made in accordance with subsection (1) of this
section and the court making the findings required by
subsection (3) of this section. The period of extension
shall be no longer than the authorizing judge deems
necessary to achieve the purposes for which it was
granted and in no event for longer than thirty days.
Every order and extension thereof shall contain a
provision that the authorization to intercept shall be
executed as soon as practicable, shall be conducted in
such a way as to minimize the interception of com-
munications not otherwise subject to interception under
this chapter, and must terminate upon attainment of
the authorized objective, or in any event in thirty days.
New Jersey Statutes 2A: 156A-12(f) (in part)
In no case shall an order entered upon this section
authorize the interception of wire or oral communica-
tions for any period exceeding twenty days. Ex-
tensions or renewals of such an order may be granted
for two additional periods of not more than ten days.
New Jersey Statutes 2A: 156A-10(f) (in part)
Upon consideration of an application, the judge may
enter an ex parte order .. . authorizing the intercep-
tion of a wire or oral communication, if the court
determines on the basis of the facts submitted by the
applicant that there is or was probable cause for be-
lief that:
39a
Statutes and Rules Involved
In the case of an application, other than a renewal
or extension, for an order to intercept a communica-
tion of a person or on a facility which was the subject
of a previous order authorizing interception, the ap-
plication is based upon new evidence or information
different from and in addition to the evidence or in-
formation offered to support the prior order, regard-
less of whether such evidence was derived from prior
interceptions or from other sources.
40a
Order Denying Petition for Rehearing
in Court of Appeals
UNITED STATES COURT OF APPEALS
Szconp Crecuit
At a Stated Term of the United States Court
of Appeals, in and for the Second Circuit,
held at the United States Court House, in
the City of New York, on the fifth day of
October, one thousand nine hundred and
Seventy-nine.
Present:
Hon. WitFrep FErnsenre,
Hon. Wri11am H. Trwpers,
Hon. Tuomas J. Mesxm1,
Circuit Judges.
78-1366
78-1370
78-1378
78-1379
78-1398
Unrrep States or AMERICA,
Plaintiff-A ppellee,
v.
Antonio Cruz Vazquez, Benrro Luis Cortina, a/k/a
“Benito Valdez”, a/k/a “Benny”, Antonio GonzaLez,
Axnpres Renzge RapparpD, Jose DE LA FE QUINTAS,
Defendants-Appellants.
4la
Order Denying Petition for Rehearing
in Court of Appeals
A petition for a rehearing having been filed herein by
counsel for the appellants
Upon consideration thereof, it is
Ordered that said petition be and it hereby is DENIED.
/s/ A. Danret Fvusaro
A. Daniel Fusaro,
Clerk.
United States Court of Appeals
FILED
Oct 5 1979
A. Daniel Fusaro, Clerk
Second Circuit
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.