Opposition — Diana v. United States

No. 79-788

, '

In the Supreme Court of the United States

OCTOBER TERM, 1979

JOSEPH DIANA, ET AL., PETITIONERS

Vz.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WapE H. McCrekr, JR.

Solicitor General

PHitip B. HEYMANN

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

INDEX

Page

EES TELS mE See ON ance NO RS TS I

(ESERIES LCR Ob a TS PM Rae Rone aE I

I iss cs nicerenanveagacucamondadapisabiaccncs I

LR ETT MRC LOM LON AERO LOD 2

RI tira. a aut a 3

a 6

LRN te rae SnAg seret ny ee 1

CITATIONS

Cases:

Campbell v. United States, 373 U.S. 487 00.00... 7

United States v. Abraham, 541 F. 2d 624 ...... 10

United States v. Angelini, 565 F. 2d 469,

A 2. O° 4 nen 8

United States v. Bernstein, 533 F. 2d 775,

COPE. MPMNNE, SEP US. DOB ccivccasevccsccccccctecces. I |

United States v. Caruso, 415 F. Supp. 847,

we, aces, 8

United States v. Chavez, 416 U.S. 562. .........000.. 9

United States v. Cohen, 530 F. 2d 43,

a. |» a 8

United States v. Donovan, 429 U.S. 413 wo... 9

United States v. Falcone, 505 F. 2d 478,

oer. Gomes, €2) U.S: O55 .................0....0..0...4. 9

United States v. Fury, 554 F. 2d mY

nee. ame, S59 U.S. DOD vince... cmccciscceccce 8. 9

Page

Cases—(Continued):

United States v. Gigante, 538 F. 2d 502... 9

United States v. Grinnell C orp., 384 U.S.

pa Ee EE SARTRE LE 11

United States v. Patrick, 542 F. 2d 381, ;

cert. denied, 430 U.S. 931 ooo... 11

United States v. Poeta, 455 F-. 2d 117,

cert. denied, 406 U.S. 948 ooo... 8, 9

United States v. Scafidi, 564 F. 2d 633,

cert. denied, 436 U.S. 903 0.0... 8, 9

United States v. Sklaroff. 506 F. 2d 837.

Cert; Wonton, 423 U.S. S74 ........ iis... 8

United States v. Vazquez, 605 KF. 2d 1269,

cert. denied, No. 79-720 (Dec. 3. 1979) ..... 8, 9

Statutes:

EE rie ditireiciuticn Stee an 3

Rs ie ee 3

Pe BI vrcsiicicccivcee ioe Sie de 3

itssstpes a cae a, ST ORE MEY TRO 8

1S USS SOM sk. 2, 5, 8, 9..10

BS USA SOUOMOMA): oa. ccscoceseccos... 2, 9. 10

ES PE ci ie a ae de 10

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-788

JOSEPH DIANA, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-26a)

is reported at 605 F. 2d 1307.

JURISDICTION

The judgment of the court of appeals was entered on

August 29, 1979. A petition for rehearing was denied on

October 23, 1979 (Pet. App. 44a-45a). The petition for a

writ of certiorari was filed on November 20, 1979. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether a 39-day delay in judicially sealing the

recordings of court-authorized wire interceptions of

petitioners’ conversations was satisfactorily explained.

(1)

STATUTES INVOLVED

18 U.S.C. 2518(8)(a) provides:

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. The recording of the

contents of any wire or oral communication under

this subsection shall be done in such a way as will

protect the recording from editing or other

alterations. 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 recordings shall be wherever the

judge orders. They shall not be destroyed except

upon an order of the issuing or denying judge and

in any event shall be kept for ten years. 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 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.

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 communica-

tion, or evidence derived therefrom, on the grounds

that—

(i) the communication was unlawfully — in-

tercepted;

(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.

Se eS oe

STATEMENT

Following a jury trial before the United States District

Court for the District of South Carolina. petitioners

were convicted of conspiring to transport and distribute

in interstate commerce stolen automobile engines and

parts, in violation of 18 U.S.C. 371.!' Petitioners Diana.

Robertson, Jones, Stabile, Pellegrino, Burnham, and

Volino were sentenced to five years’ imprisonment:

petitioners Huey and White to four years’ imprisonment:

and petitioners Jenkins, Catoe, and Melton to three

years’ imprisonment. The court of appeals affirmed (Pet.

App. la-26a).

1. In proving its case, the government relied on

evidence obtained through court-authorized electronic

surveillance of conversations conducted between March

22 and April I1, 1977. FBI agents conducting the

surveillance set up five machines, each of which made

'The indictment charged 25 defendants with one count of

conspiracy and numerous substantive offenses in violation of !8

U.S.C. 2314 and 2315. All substantive counts were dismissed before

the case went to the jury, as were the conspiracy charges against

three defendants. The jury acquitted 10 of the remaining 22

defendants (Pet. App. 2a).

two simultaneous recordings. One recording was treated

as the original recording, and the other as a duplicate

original (A. 172, 176-177, 188-189. 192).2 At the end of

each day of surveillance, the FBI agent in charge placed

the original tapes in envelopes, sealed, initialed and

dated the envelopes, and placed them in a locked cabinet

in an apartment where the monitoring took place (A.

177-178, 191, 221, 226-228). One agent was assigned

custody of the tapes and had sole access to the Original

tapes (A. 178, 181, 225).

Upon the termination of the surveillance on April 11,

the original and duplicate original tapes were transported

from Lancaster, South Carolina, to the FBI office in

Rock Hill, South Carolina, where they were placed in a

locked cabinet (A. 198-199, 229). On April 13, the

United States Attorney instructed the agent in charge of

the tapes to place the originals in sealed boxes and to

keep them in the FBI office until further notice (A. 237-

240). On May 20, pursuant to an order of the district

court,’ the tapes were delivered to the United States

Marshal in Columbia, South Carolina, for formal sealing

(A. 229-230, 237, 242, 245, 247).

2. Prior to trial petitioners moved to suppress the

electronic surveillance evidence on the ground, inter alia,

that the tapes had not been judicially sealed immediately

after the termination of the surveillance. as required by

“A.” refers to the appendix filed by petitioners in the court of

appeals.

‘The district judge gave an oral sealing order to the United States

Attorney sometime between April 11 and May 20. However, neither

the court nor the United States Attorney kept any written record of

the order or of the date on which the order was given. The order

directed that the tapes be delivered to the United States Marshal for

formal sealing (A. 274, 295-297. 301, 304-305. 333-336).

18 U.S.C. 2518(8)(a). The district court denied

petitioners’ motion (Pet. App. 27a-43a), finding that the

government had given a reasonable explanation for any

delay in the judicial sealing of the tapes. From the time

the surveillance terminated on April 11, until the time

the tapes were delivered to the Marshal’s office on May

20, the duplicate tapes were used to prepare warrants, an

indictment, and a transcript of the tapes. Pursuant to

discussions with the United States Attorney, the FBI

agents retained the original tapes to facilitate reference to

them if the duplicate tapes malfunctioned (A. 194-197.

206).4 Since duplicate tapes had malfunctioned in the

past (A. 211-212) there was reason to fear that a

malfunction might happen again.

The court further found that there had been substan-

tial compliance with the statute, warranting the use of

the tapes at petitioners’ trial. The tapes were sealed in

envelopes the day they were made, and sealed in boxes

as soon as the surveillance terminated; no seal had been

broken prior to the pretrial proceedings. It was

accordingly evident that the integrity of the tapes had

been preserved and that no tampering of any kind had

occurred. Thus, the purpose of the statute’s immediate

sealing provision, which was to insure the integrity of the

tapes, had been fulfilled (Pet. App. 36a-37a).

3. The court of appeals affirmed, holding that the

district court’s finding of a satisfactory explanation for

the delay was not clearly erroneous (Pet. App. 16a). The

court further found that other factors supported a

decision to admit the evidence, including the relatively

*The FBI office was located in Rock Hill, approximately 80 miles

from the Marshal's office in Columbia (A. 216).

brief nature of the delay as compared to the delay in

cases in which suppression had been held to be

warranted, the extra precautions and protective measures

taken with regard to the tapes at the end of each day of

recording, the uncontroverted evidence as to the integrity

of the tapes, and the fact that the government did not

delay the sealing in order to obtain any tactical

advantage (Pet. App. 17a-19a).

Judge Hall dissented (Pet. App. 20a-26a). In his view,

the fact that the integrity of the tapes had been

preserved, and the purpose of the immediate sealing

requirement accomplished, was irrelevant. Rather, the

sole exception to the statute’s immediate sealing

requirement was a_ satisfactory explanation for the

government’s delay in sealing the tapes. In his view the

government’s explanation for the delay was unsatisfac-

tory and the statute thus required that the tapes be

suppressed.

ARGUMENT

Petitioners claim (Pet. 12-13) that the court of appeals

erred in holding that the government established a

satisfactory explanation for the 39-day delay in sealing

the tapes.5 However, as the court of appeals noted (Pet.

App. 15a), a district court’s determination that the

government’s explanation for delay is satisfactory is

‘Because neither the district court judge nor the United States

Attorney was able to remember the exact date of the oral sealing

order, the court of appeals assumed. for Purposes of petitioners’

appeal, that the order to seal the tapes was given on May 20, the

day the tapes were delivered to the Marshal's office. thus

constituting a 39-day delay (Pet. App. 7a-8a). We agree that it was

proper to conclude that the judicial sealing did not occur until the

tapes were delivered to the Marshal's office in compliance with the

order.

aT,

primarily factual, and should not be reversed unless

clearly erroneous. Campbell v. United States, 373 U.S.

487, 493 (1963). Here, the electronic surveillance had

produced more than 2,000 hours of recorded com-

munications that had to be transcribed and used in the

preparation of warrants and a lengthy indictment. The

sealed boxes containing the original tapes were retained

in the FBI office following the termination of the

surveillance so that they would be readily available if the

duplicate tapes were inadequate. Although the super-

vising agents had listened to portions of the duplicate

Original tapes at the conclusion of each day of

surveillance, they did not then have time to listen to each

call in its entirety (A. 181, 210). Moreover, as the court

of appeals found (Pet. App. 16a):

The fact that the agents listened to the duplicate

original tapes does not mean that they might not

have needed the originals later on in checking the

transcriptions, or that the more detailed listening

required later on in preparing transcripts might not

turn up problems or malfunctions that were

overlooked in the previous, more cursory listening at

the end of each day. Furthermore, the district court

found as a fact that there had been malfunctions in

the past. The possibility of a reoccurrence is a good

reason to keep the originals on hand.

The court’s resolution of this primarily factual

question is consistent with the rnanner in which other

courts have applied the sealing requirement in cases

involving relatively brief delays. In particular, delays to

faciliate transcription have been consistently found

acceptable. Thus, the Seventh Circuit has upheld delays

of nine and 38 days in sealing to permit clarification of

portions of duplicate tapes found to be inaudible during

transcription (United States v. Angelini, 565 EF. 2d 469

(7th Cir. 1977), cert. denied, 435 U.S. 923 (1978)). The

Fifth Circuit has upheld a five-week delay in sealing,

during which time the tape recordings were transcribed

(United States v. Cohen, 530 F. 2d 43 (Sth Cir.), cert.

denied, 429 U.S. 855 (1976)), and a 14-day delay where

“[t]he government accounted for the delay by showing

that the recordings remained in the FBI evidence foom

for seven days and that the additional seven days were

used in the preparation of search warrants” (United

States v. Sklaroff, 506 F. 2d 837, 840-841 (5th Cir.), cert.

denied, 423 U.S. 874 (1975)).6

Petitioners claim (Pet. 10-12), however, that the

interpretation given to the statute’s sealing provision by

the court below, and by other circuits, conflicts with that

of the Second Circuit. In particular, they claim that

whereas the Second Circuit excuses noncompliance with

*In addition, the Second Circuit has upheld delays of seven to 13

days that were the result of shortages in both personnel and

equipment (United States v. Vazquez, 605 F. 2d 1269 (2d Cir. 1979),

cert. denied, No. 79-720 (Dec. 3, 1979)): a seven-day sealing delay

that was primarily the result of the government attorney's

preparations for trial (United States v. Scafidi, 564 F. 2d 633, 641

(2d Cir. 1977), cert. denied, 436 U.S. 903 (1978)); six and 13-day

delays caused by efforts to have the issuing judge instead of another

judge, seal the tapes (United States v. Fury, 554 F. 2d 522, 533 (2d

Cir.), cert. denied, 433 U.S. 910 (1977); United States v. Poeta, 455

F. 2d 117 (2d Cir.), cert. denied, 406 U.S. 948 (1972)); and 24 and

42-day delays caused by efforts to ready the tapes for sealing and to

duplicate the tapes, and by the unexpected hospitalization of the

attorney in charge (United States v. Caruso, 415 F. Supp. 847, 850-

851 (S.D.N.Y. 1976), aff'd, 553 F. 2d 94 (2d Cir. 1977)).

The interceptions involved in Fury, Poeta, Caruso and Vazquez

were conducted pursuant to the sealing requirements of state

Statutes that do not differ materially from 18 U.S.C. 2518(8)(a). See

United States v. Fury, supra, 554 F. 2d at 533; United States v.

Vazquez. ‘supra, 605 F. 2d at 1274 n.I1; see also 18 U.S.C. 2516(2).

«

the statute’s immediate sealing provision only upon a

showing of a satisfactory explanation for the delay, the

Third, Fourth, Fifth and Seventh Circuits, relying on

Section 2518(10)(a), the general suppression provision of

the statute, refuse to enforce the suppression sanction of

Section 2518(8)(a) absent proof by the defendants of

actual tampering.’ But this case is not an appropriate

one in which to resolve any difference among the circuits

on the relation between these provisions.* Both courts

Section 2518(8)(a) provides that immediate judicial sealing or a

satisfactory explanation for the abseace thereof is a prerequisite to

the use of the tapes. Section 2518(10)(a), however, provides for

suppression of intercepted communications only if the communica-

tion was unlawfully intercepted, the order of authorization was

insufficient on its face, or the interception was not made in

conformity with the order of authorization. See United States v.

Chavez, 416 U.S. 562 (1974): United States v. Donovan, 429 U.S.

413 (1977).

‘In United States v. Gigante, 538 F. 2d 502, 506 (2d Cir. 1976),

the Second Circuit criticized the Third Circuit's decision in United

States v. Falcone, 505 F. 2d 478 (3d Cir. 1974), cert. denied. 420

U.S. 955 (1975), because it “focused primarily upon the suppression

provisions of § 2518(10)(a), and paid scant attention to the

independent prerequisites for admissibility delineated in §

2518(8)(a).” The court below (Pet. App. 8a-I5a) indicated that it

agreed with the prevailing approach that the two provisions must be

read together. See cases cited supra. pages 7 and 8. Despite these

differences in approach to the statute’s sealing provision. we believe

that petitioners’ claim of inter-circuit conflict is exaggerated. The

court of appeals (Pet. App. 18a-19a) properly distinguished United

States v. Gigante, supra, in which the delays in sealing ranged from

eight months to more than a year; the government offered “no

explanation whatsoever” for the delays (538 F. 2d at 504); and

“haphazard procedures” were followed in handling the tapes (id. at

505). There can be little doubt that, if confronted with similar

circumstances, the panel that decided this case, like the court in

Gigante, would have held that suppression was proper. C onversely,

in light of the Second Circuit's decisions in Vazquez, Scafidi, Fury

and Poeta, supra, it is not at all clear that the result in this case

would have been diffe:ent in the Second Circuit.

10

below found that the government's explanation for the

delay was satisfactory. There was thus no violation of

Section 2518(8)(a); accordingly, suppression is not

required by that Section, and the applicability of Section

2518(10)(a) is not in issue. Where, as here. delays in

sealing tape recordings of intercepted conversations are

reasonable in purpose and relatively brief in duration.

and the government has taken care to protect’ the

integrity of the tapes,’ the courts of appeals have

uniformly held that suppression of the intercepted

conversations is not warranted.!”

*Petitioners do not allege, and no evidence was presented to show,

that the tapes were tampered with or altered in any way. Indeed, the

record shows that the government was extremely careful to insure

the integrity of the tapes. As one FBI agent testified (A. 227):

As extra security on this, so that I could be satisfied today that

no one had had access to that envelope once | sealed it. |

insured that everyone of the envelopes that had an original tape

and log inside had a piece of Scotch tape over at least one of

my initials on the back of each envelope. The purpose of this

was that if anyone would * * * attempt to get inside the

envelope, not only would they tear the envelope, * * * they

[would] break the seal where my initials were * * *,

Similar precautions were taken when the sealed envelopes were

placed in sealed boxes on April 13, following the expiration of the

intercept order (A. 233-234). Thus. the tapes were physically sealed

at the end of each day of recording, well before the tapes were

judicially sealed on May 20. Such precautions met all the safety

requirements that accompany judicial sealing of tapes. See, e.g.,

United States v. Abraham, 541 F. 2d 624, 628 (6th Cir. 1976).

‘Relying on 28 U.S.C. 455, petitioners contend (Pet. 13-14) that

the district court judge erred in refusing to recuse himself for

purposes of the suppression hearing, since only he and the United

States Attorney know when the oral sealing order was given, and

the judge thus should have been available to testify concerning this

disputed evidentiary matter. This claim is insubstantial. Petitioners

cite no cases, and we are aware of none. which hold that a district

judge must recuse himself in order to testify concerning an order

given in his judicial capacity. It is well settled that what a judge

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted. p

WADE H. McCreE, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

DEBORAH WATSON

Attorney

JANUARY 1980

learns in his judicial capacity is a proper basis for judicial

observations, and cannot be the basis for disqualification. United

States v. Grinnell Corp., 384 U.S. 563, 583 (1966): United States v.

Patrick 542 F. 2d 381, 390 (7th Cir. 1976), cert. denied. 430 U:S.

931 (1977); United States v. Bernstein. 533 F. 2d 775, 785 (2d Cir.),

cert. denied, 429 U.S. 998 (1976). Moreover. the only question in

issue was when the order to seal the tapes was given. The court of

appeals resolved the issue most favorably to petitioners by assuming

that the order was not given until the tapes were delivered to the

Marshal's office. See supra, note 5.

DOJ-1980-01