# Opposition — Diana v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1102

## Text

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

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