Opposition Brief — United States v. Ojeda Rios

Nr ce 17

FILED

ORICIRAL me

8

rr

OLER

NO. 89-61

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

UNITED STATES OF AMERICA, PETITIONER

v.

FILIBERTO OJEDA RIOS, ET AL., RESPONDENTS

JAMES L. SULTAN

Rankin & Sultan

One Commercial Wharf North

Boston, MA 02110

(617) 720-0011

Counsel to Ivonne Melendez Carrion

RICHARD A. REEVE

Assistant Federal Public Defender

234 Church Street

New Haven, CT 06510

(203) 240-3357

Counsel to Isaac Camacho Negron

DIANE POLAN

Levine, Polan, Curry & Doody

650 Grand Avenue

New Haven, CT 06511

(203) 777-4747

Counsel to Elias Castro Ramos

JOHN R. WILLIAMS

Williams and Wise

51 Elm Street

New Haven, CT 06510

(203) 562-9931

Counsel to Hilton Fernandez Diamante

*

Whether the Court of Appeals for the Second Circuit erred in

affirming the suppression of certain recorded fruits of

electronic surveillance for violations of the immediate sealing

requirement of 18 U.S.C. §2518(8)(a), where the government

delayed sealing said tapes for at least eighty-two days due to

its “disregard of the sensitive nature of the activities

undertaken."

11

ATTENTION. * * * * * * * * * * * * * * * * * * *

-ii-

iii

15

17

a N Z

1 nn 1

is 7 7} 225 1 2 1977), gart denied, 435

—— — — — —

922 ETE 1— . 1986), cert. denied, 475

v. 6. 1441 (1986) eee „%%% % % % % % ere „ „ „ „ „„ „ „ „ „„ „„ „ ee eee

122 7 re see

22 11105 1

iss 72 43 tof on. 1976), cert. denied, 429

UB. BSS (17 „„

ONT Bl (Sth Cir. 1977), cert. denied, 455

v. 8. 1064 (1978) ꝶ—360*õ:üjĩů„̃ —ͤ ee * * **

n Co Cir. 1979), cert. denied.

444 v. 8. 1102 (1980) seer eevee eee „ „ „ „ „ „ ere ere ee ee

$05 js 25 (3rd Cir. 1974), cert. denied, 420

9.6. OBS 440% „„„„„„%

142 aE $22 — He. 1977). cert. denied. 455

v. 8. 910 (i978) see eee ee eee er eer eee ere „ „ „ „ „ „ „„ „„

United States v. Gallo, 863 F.24 185 (2nd Cir.

1968) seen q FF,.

R

696 a 125 . A. 1

.

. 8. 109 8. ct. 187 (166%// eeeeeevee

nin 1975), cert. denied. 424

p ET inten an ñœ[U—U —

784 “si 125 5 —— eee

622 F 4 36 1 ITE AS

“iii-

en., II, lin.

On., 11

92

en., II, Lin.

en., 13,

IIn., 15

en., 10

United States vy. Mors.

621 F. 24 660 (let Cir. 1987) nir

United States vy. Ojeda Bios, 875 F.2¢ 17

(and cir. 1989), cext- pending eee eee „„

ass 7.34 117 (ine cit. 1972), cert. denied. «

U.B. O68 (1972) cccccccescccssssesesesssseseses

oe F-34008 F. E. Cir. 1983) ...... 1

786 F d 472 — Hz. „

United States Art.

506 F. 24 637 (Sth Cir. 1975), cert. denied. 423

9.8. eve (1975) en ee ee eee ee ee ee ee |

605 F. d 1269 (2nd x 1979), cert. denied.

111 —

r een

III

Omnibus Crime Control and Safe Streets

Act of 1968, Title III, 18 U.&.c.

. —

10 U.S.C. 28106 %/c rtr

10 U.S.C. 6281061 (ꝶ3BßWt „

Rule 17, Rules of the Supreme Court of

the Umited 8s

S. Rep. No. 1097, 90th Cong., 2nd Sess. (1968),

ceprinies ip 1968 U.S. Code Cong. &£ Ad. News 2112

Government's Response to Petition

for Certicreri in

(Bo. 88-7070), cert.

tn., 9 10,

11

passin

en

en

Sn., 12

n „ 11

tn.

24

on.

passin

i, 1, 2, 8,

6, 7, s, on *

10, 12, i3n.,

16

10, 11

15

9n.

lin.

In the course of a protracted investigation, the FBI

conducted court-authorized electronic surveillance at various

locations in Puerto Rico between April 27, 1984 and August 30,

1985. Gov. App. 18a. The initial Title 111 order, entered on

April 27, 1984, authorized interception and recording of oral

communications at the residence of Filiberto Ojeda Rios in

Levittown, Puerto Rico and wiretapping of several public

telephones across the street from the residence. Gov. App. 3a.

That order was extended on two occasions. The final extension

expired on July 23, 1984, fourteen days after the government

terminated its electronic surveillance at Levittown. The

Levittown tapes were judicially sealed on October 13, 1984,

ninety-six days after the surveillance ceased and eighty-two days

after the expiration of the final extension order. Gov. App.

4a.4/

On January 18, 1985, as the investigation continued, the

government was authorized to wiretap two public telephones in

Vega Baja, Puerto Rico. That Title III order expired by its

terms on February 17, 1985. The government obtained a new

wiretap order, based on a revised affidavit, on March 1, 1985.

That order was extended twice, finally terminating on May 30,

1985. All the tapes derived from the Vega Baja telephone

wiretaps were sealed on June 15, 1985, 118 days after the

a The government conducted electronic eavesdropping

at several other sites dur this interval. On July 27, 1984,

the district court authorized surveillance at two locations,

includ Ojeda Rios new residence in EI Cortijo, Bayamon,

Puerto Rico. Gov. App. 20a. No oral communications were ever

intercepted from that location, though a wiretap of the

residential telephone was carried out. Gov. App. 21a. In both

the district court and the court of le, the government

contended that A. El Cortijo surveillance should be treated as

an extension of the Levittown Title III = eames. thus postponing

the obligation to seal the tapes under 18 U.S.C. §2518(8) (a).

Both courts rejected that argument, Gov. App. 68a-69a, lla, and

it has not been renewed in the government's petition for

certiorari. Gov. Pet. at 18

expiration of the January 18, 1985 order. Gov. App. 5a.4/

Following return of the indictment on August 23, 1985,

defendants filed motions in the district court seeking to

suppress all the recorded fruits of the government's widespread

electronic surveillance on a variety of grounds, including

violations of the judicial sealing requirement set forth at 18

U.S.C. 12316 (60 (a). Def. c. A. App. 1, 10, 27. Evidentiary

hearings on those motions spanned approximately ten months,

concluding on June 28, 1988. On July 7, 1988, the district court

issued a lengthy ruling (reprinted at Gov. App. 17a-96a) limited

to the late sealing issue.2/

The district court ordered the suppression of the Levittown

tapes as well as the fruits of the January 18, 1985 Vega Baja

wiretap order due to the government's failure to comply with the

statutory sealing requirement. The court accepted the

government's explanation for tardy sealing with respect to all

other Title III tapes generated during the sixteen months of

electronic surveillance and declined to suppress them. Gov. App.

15a et seg. In the course of its decision, the district court

did not resolve and explicitly declined to consider challenges

raised by the defendants to the integrity of the suppressed

Levittown tapes. Gov. App. 30a, n.3. A motion filed by the

government for “clarification and reconsideration" of that

footnote was denied. Def. C. A. App. 120.4/

a Both in the — 1 1 and 8.

ppea ernment t March 1,

Posie be Geenes an extension of the January 18, 1985 order, thus

postponing the government's obligation to seal the recorded

fruits under the statute. That contention was rejected, Gov.

App. 83a, 14a, and has not been renewed in the government's

petition for certiorari. Gov. Pet. at 18, n.13.

* The district court subsequently addressed and

rejected alternative grounds presented by the defendants to

warrant suppression of all the ‘s Title III recordings.

Def. C. A. App. 29-119. Those grounds for relief

were raised, but not reached, in the court of appeals. Gov. App

6a.

4/ In its petition for certiorari at 22, the

government categorically declares, without citation to the

record, “(T)here was no alteration of the cage The government

also asserts (at 7) that — — an — — —.— 14

ear convince dence

government had proved by e ng — —

-2-

a

On the government's interlocutory appeal, the Court of

Appeals for the Second Circuit affirmed the suppression of the

Levittown and Vega Baja tapes. Agreeing with the district court

that judicial sealing had been delayed for a minimum of eighty-

two days, the court of appeals proceeded to consider whether the

government had provided a “satisfactory explanation" pursuant to

§#2518(8)(a). The court of appeals specifically eschewed any

automatic rule of exclusion based solely on the duration of

sealing delay, Gov. App. 12a, and enumerated the relevant

criteria:

[t)he cause and length of the

Gelay, the deliberateness of the

statutory transgression, the

— of the tapes, the

tactical advantages or

disadvantages accruing from the

error, and other relevant factors

in a given case must all be

considered in answering the sole

question which the statute requires

to be asked, namely, whether there

is “a satisfactory explanation for

the absence" of timely judicial

sealing.

Gov. App. l3a-léa.

Applying these factors to the record in this case, the court

of appeals found the government's explanation for its delays in

sealing unsatisfactory. The court concluded that the

government's failure to seal the Levittown tapes in a timely

manner "(rjesulted from a disregard of the sensitive nature of

the activities undertaken." Gov. App. 12a. With respect to the

late-sealed Vega Baja tapes, the court found no governmental

explanation “[o)ther than an underlying cavalier conception that

the sealing requirements are technical, rather than reflective of

Congressional concerns about underlying constitutional

. .continued)

tapes being admitted into evidence were in their original form

and had not been tampered with." With respect to the tapes at

issue here, which were ordered suppressed and thus net admitted

into evidence, no such finding was made and serious questions

remain respecting their authenticity and integrity. Gov. App.

6a.

-3-

requirements." Gov. Apr. 146. % The court pointed out that the

district court had made no findings respecting the integrity of

the suppressed tapes, noting:

The «a llees make the point that

even if we were to reverse the

district court's orders of

suppression and to remand for

further findings, serious tions

of authenticity and integrity would

remain for determination and

independent for ression

would be at issue on appeal. These

include the Government's alleged

use of a secret recording systen,

its alleged deliberate destruction

of ta containing original

material, and its alleged practice

of eavesdropping without recording.

Gov. App. 6a.

* These specific findings by the court of appeals

appear to conflict directly with the unsupported assertion in the

overnment's petition for certiorari (at 20) that: “They (delays

mn sealing) did not result from carelessness, te

priority te the „or other

sanctionable behavior." ( ) According to the

government, the sole cause of the sea delay was “a perfectly

reasonable misunderstanding” by the supervising attorney. Gov.

Pet. at 22. The court of appeals ruled otherwise.

-4-

SUMMARY OF REASONS FOR DENYING THE PETITION

The government has petitioned this Court to grant certiorari

in order to decide whether a delay in judicial sealing should

result in suppression of tape-recordings under 18 U.S.C.

$2518(8)(a) “even if the evidence establishes that the tapes have

not been altered." Gov. Pet. at 11. / asserting that the

approach employed by the Second Circuit “severely limit(s) the

circumstances in which demonstrably unaltered tapes can be

admitted into evidence where there has been a lengthy sealing

delay," Gov. Pet. at 16, the government contends that no other

court of appeals in the United States would have affirmed the

suppression order entered here. Id at 22. The government calls

this case an appropriate vehicle" for resolving what it

characterizes as an “important” conflict among the courts of

appeals. Id. at 11.

Contrary to the government's contention, this case does not

present a conflict which merits this Court's attention. The

various courts of appeals are in substantial accord in construing

and applying the statutory sealing requirement. While some

differences have emerged in analytical approach and emphasis,

that diversity has rarely, if ever, had any practical

consequences in the appellate courts. Indeed, during the two

decades since the enactment of Title III, the various courts of

appeals have affirmed or ordered the suppression of tapes for

violations of the statutory sealing requirement in only one

reported case other than this one. 2/ (pp. 8-11).

&/ At the outset, it should be noted that the

government has framed the question in a manner that distorts the

record and rul below. Contr to the government's

suggestion, no f ings were made the lower courts as to the

integrity of the tapes at issue here. feet Gov. App. 6a; 30a,

n.3.

2 United states v. Gigante, 77 28, S02 (2nd cir.

1976) (8-12 month delays in sealing unexplained by government).

and the instant case manifest the two most protracted

sealing delays of all the reported decisions on the subject since

the enactment of Title III.

The government's characterization of the Second Circuit as

singularly aberrant in its interpretation of the sealing

requirement is similarly fiawed.£/ Like the other courts of

appeals, the Second Circuit has identified the integrity of late-

sealed tapes as a relevant factor in determining whether

suppression is appropriate. An application of its prescribed

criteria to the particular circumstances presented by each case

has led the Second Circuit to refuse to order suppression due to

sealing delays in ten of its twelve reported decisions since the

enactment of Title III. In any event, the Second Circuit has

exercised its supervisory powers to promulgate specific sealing

procedures applicable to all future cases, which should render

academic its prior applications of §2518(8)(a#). (pp. 11-13).

Even if there were a square conflict concerning the

application of the statutory sealing requirement which could be

deemed important, the record and the rulings below would make

this case an inappropriate vehicle to resolve said conflict.

First, since the courts below made no findings as to the

integrity of the late-sealed tapes, this case does not present

the Court with circumstances where tapes were suppressed due to

sealing delays despite findings that no tampering had occurred.

Indeed, the issue of tampering was hotly contested in the trial

court. Substantial issues about the integrity and authenticity

of the tapes remain unresolved. Gov. App. 6a. Second,

defendants raised, and the court of appeals acknowledged, several

independent grounds for affirmance of the suppression order,

including the government's use of a secret recording system, its

deliberate destruction of original recordings, and its practice

of listening without recording. Id. Third, this is not a case

where the government had any reasonable explanation for its

that the sealing del in this case would not heve resul

—ů — L NN

the Second Circuit. Based upon the record in this case, that

disregarded. It would be sheer Spéculation to

other court of appeals would respond to the unique circumstances

of this case.

-6-

failure to comply with the statute. Rather, as the court of

appeals found, the government committed a “dereliction” due to

its “disregard of the sensitive nature of the activities

undertaken” and “cavalier” approach to the sealing requirement.

Gov. App. 12a, 14a. (pp. 14-15).

The government has failed to establish any "special and

important reasons" for review, as required by this Court's rules.

On the whole, prosecutors have had no difficulty complying with

the simple, straightforward requirement of immediate sealing.

Even where sealing has been delayed, the government has almost

invariably managed to demonstrate a satisfactory explanation,

thus fulfilling the terms of the statute. Neither the

government's desire to relitigate the acceptability of its excuse

ter late sealing in this case nor its unhappiness with the

express terms of §2518(8)(a) warrants the granting of certiorari.

(pp. 15-17).

— 7 —

REASONS FOR DENYING THE PETITION

I. THE APPLICATION OF THE IMMEDIATE SEALING REQUIREMENT BY THE

COURTS OF APPEALS HAS NOT PRODUCED ANY CONFLICT MERITING

THIS COURT'S ATTENTION.

Notwithstanding the government's depiction of the courts of

appeals es hopelessly divided in interpreting §2518(8)(a), a

survey of all twenty-two reported appellate decisions respecting

sealing delays?’ reveals « vast area of common ground. To begin

with, there is no dispute over the applicable language of the

statute. Section 2518(8)(a) provides, in pertinent part, that

Title III recordings shall be sealed under the dirsction of the

authorizing judge “immediately upon the expiration of the period

of the order, or extensions thereof." Wo appellate court has

suggested that the term “immediately” as employed in the sealing

statute should be accorded anything other than its customary

2/ Twelve of those decisions, including the instant

case, emanate from the Second Circuit.

Rios, 875 F. 24 17 (nd Cir. 1989) (82-118 day 3

cert.

pending: United States vy. Gallo, 863 F.24 185 (2nd Cir. 1988) (5

day delay); „ 644 F.24 942 (nd Cir. 1988)

(8 day delay), cert. . 5. „ 109 s. et. 157 (1988);

, 394 r. 2d i (nd Cir. 1986) (7-13

Gay delays);

„ 706 F.24 472 (nd Cir.

1986) (14 day delay); 784 F.24 153 (28

Cir. 1986) (15 delay);

„ 7802 F. 24 358

(und Cir. 1986) (5 day delay), cert „ 475 U.S. 1141

(1986); „ 622 F. 1d 36 (and Cir. 1980) (3-

8 day delays); „ 605 F.24 1269 (2nd Cir.

1979) (7-13 day delays), ° „ 444 U.S. 981 (1979);

P +24 522 (Ind Cir. 1977) (6 day

Gelay), cert. „ 433 U.Ss 910 (1978);

Gigante, 538 F.2d 502 (2nd Cir. 1976) (8-12 month ray United

— a 455 F.24 117 (ana Cir. 1972) (13 day delay),

cert .- ’ 406 9.86. gee (1972).

The ten cases decided by the other courts of

s include: „ 821 F.24 860 (ist Cir.

1987) (5-41 day 696 . 2d 448

(D. c. Cir. 1983) (4

F. 20 115 (D. e. Cir. 1

605 F. 2d 1307 (4th Cir

U.S. 1102 (1980); . 1

Cir. 1977) (9-38 day 435 U.S. 923 (1978);

cae Sy SE ce a a

434 U.S. 927 (1976); 7. 20 43

(Sth Cir. 1976) (5 week delay), U.S. 655

24 837 (Sth Cir. 1975)

(1976); 0

(14 day , 423 U.S. % (1975);

v. Falcone. 2a4 Ird Cir. 1974) (45 day „ Gaxt.-

Genied, 420 U.S. 955 (1975).

-8-

meaning. The statute specifies:

The of the seal provided

for this subsection, or «

satisfactory explanation for the

absence

thereof, shall be «

ite for the use or

disclosure of any wire, oral or

electronic communication or

evidence derived therefrom under

subsection (3) of §2517.

As the Court of Appeals for the First Circuit has observed:

"This wording is crystal clear. It leaves no room to waffle

««++" United States vy. Mora, 821 F.24 860, 866 (lst Cir.

1987) .42/

Second, every court of appeals which has construed

$2518(8) (a) has explicitly or implicitly treated « delay in

sealing es equivalent to the absence of « seal in ascertaining

whether the immediate sealing requirement has been viclated and

applying an appropriate remedy. LA. United States v. Mora, 821

F. ad at 864-865 ("A tardy seal has no greater legal suasion than

mo seal et all. „ United States vy. Johnson, 696 . 2d 115, 124

(D.C. Cir. 1982); United States v. Diana, 605 7. 24 1307, 1311

(4th Cir. 1979), cert. denied, 444 U.S. 1102 (1980); United

States v. Gigante, 538 F.24 502, 506-507 (2nd Cir. 1976) .44/

aa The legislative history of Title III of the

Omnibus Crime Control and Safe Streets Act of 1968 confirms that

Congress meant what it said in enacting this statute. According

to the report on the legislation issued by the Senate Committee

on the Judiciary: ride of the seal, noted above, is

intended to be a prerequisite for use or disclosure under

#2517(3) or (5) unless « satisfactory explanation can be made to

the judge before whom the evidence is to be disclosed .... s

Rep. Wo. 1097, 90th Cong., 2nd Sess. (1968), reprinted in 1968

U.S. Code Cong. £ Ad. News 2112, 2194.

ay In ite petition at 12-14, the government argues

for the first time, without citing 11 — my „ that

a Gele in — 1 should be treated differently the absence

of a seal under §2516(8)(a). This ievlar argument was not

|

:

Third, virtually every court which has addressed the

statutory sealing provision has recognized that §2518(8) (a)

contains its own exclusionary rule, independent from the genera)

provision governing motions to suppress Title III recordings on

other grounds which appears at 18 U.S.C. 42816 (6100. EL.. United

States vy. Mora, 821 F.2d at 866; United States vy. Diana, 605 . 20

at 1312; United States v. Gigante, 538 F.2d at 506-507. But see

United States v. Falcone, 505 F.2d 478, 483-484 (3rd Cir. 1974).

Thus, this Court's decisions construing §2518(10) (a) ere

inapposite.

Finally, every court of appeals which has addressed the

issue, including the Second Circuit, has identified the integrity

of late-sealed recordings as a relevant factor in adjudicating a

motion to suppress late-sealed tapes. La. United States vy.

McGrath, 622 F.2d 36, 42-43 (2nd Cir. 1980); United States vy.

Mora, 821 F.2d at 868 (requiring government to prove by clear and

convincing evidence that late-sealed tapes have not been

compromised); United States vy. Diana, 605 F.2d at 1314 (inquiry

into integrity of the tapes deemed “appropriate in determining

whether a satisfactory explanation has been provided"); United

States v. Johnson, 696 F.2d at 125 (evidence of integrity “will

be an important component of the Government's satisfactory

explanation” in most cases). In the instant case, the court of

appeals agreed with the government that the integrity of the

tapes, among other factors, is relevant to determining the

adequacy of the government's explanation for delay. Gov. App.

l2a.

Despite this substantial area of agreement, it is undeniable

that the various courts of appeals have adopted diverse

approaches and emphases in applying the immediate sealing

requirement. The Fifth and Seventh Circuits have declined to

order suppression of late-sealed tapes where no substantial

4i/ (. . .continued)

suggest thet it constitutes part of @ conflict among the circuits

should be rejected.

-10-

question about the integrity of the tapes has been raised and the

purposes underlying the sealing requirement have been met.

United States v. Angelini, 565 . 20 469 (7th Cir. 1977), cert.

denied, 435 U.S. 923 (1978); United States v. Lawson, 545 F.2¢

557 (7th Cir. 1975).44/ United states v. Cohen, 530 F.2d 43 (Sth

cir. 1976); United States v. Skiarofs, 506 . 24 637 (Sth Cir.

1975). The Third Circuit has applied §2516(10)(a) to a delay in

sealing, reaching the conclusion that said subsection does not

authorize suppression of late-sealed tapes. United States vy.

Falcone, 505 F. 2 at 483-484.

The remaining courts of appeals which have addressed this

subject have applied a panoply of criteria to deter . whether

or not the government's explanation for late-sealed tapes should

be deemed “satisfactory.” If not, the late-sealed tapes are

subject to exclusion. United States vy. Mora, 821 F.2d at 867-

669; United States v. Johnson, 696 F. 20 at 124-125. Outside the

Second Circuit, there have been fewer than a dozen reported

appellate decisions on this subject in the twenty years since the

enactment of Title III. §ee n.8, supra. Whatever approach was

employed in those cases, the result was invariably the same; none

of the lete-sealed tapes was ordered suppressed in any case.

Notwithstanding the government's mischaracterizeation of the

Second Circuit's jurisprudence in this ares*?/, that court's

aa/ In Angelini, which involved a re~dey do , the

court described the case as “a close one,” noting ti

had been decided prior to the relevant events, “(w)e might we

take a different view ...." 565 F.24¢ at 472-473. In Lawson,

AI „ 1 no challenge to the integrity of the tapes.

545 . et .

ay In @ memorandum of lew filed with the district

surpris y, those orative characteri were omitted

from the government's brief filed with the court of appeals, only

in

Gallacher et 9. As demonstrated herein, this hyperbole does not

comport with reported caselaw.

11

rulings in sealing delay cases have generally been consistent

with results in the other circuits. In 211 but two of its twelve

decided cases, the Second Circuit has refused to order

suppression of late-sealed tapes.44/ as the Second Circuit has

observed,

United States v. Rodriguez, 786 F.2d 472, 477 (2nd Cir. 1986).

Thus, in the Second Circuit, es elsewhere, the government

generally has had little difficulty avoiding the suppression of

Title III recordings in those cases where it has failed to seal

such tapes “immediately,” as required by statute. 45/

Even if an important conflict did exist between the

Gecisions of the Second Circuit and those of the other courts of

appeals on this subject, such a putative conflict has been

rendered academic by the Second Circuit's adoption of e mandatory

ever been confronted with 7 Gelay sealing, it is

unclear thet . XY court reversed the

suppression this case based upon the evidentiary record

adduced below

sealing procedure to be followed when electronic surveillance

tapes are not immediately sealed. United States vy. Massing, 784

F.24 153, 158-159 (nd Cir. 1986). Im ani the court, in the

exercise of its supervisory powers, established « procedure

designed to create a contemporaneous record and insure judicial

oversight before delays in sealing become protracted. Since all

of the district courts within the Second Circuit are presumably

now edhering to that court's supervisory rule, there remains no

reason for this Court to expend its limited resources eddressing

an insignificant difference between the Second Circuit and the

other courts of appeals, which hes been rendered substantially

moot with respect to all electronic surveillance conducted after

18664

In aun, contrary to the government's representations, the

application of the statutory sealing requirement does not present

an intolerable conflict crying out for immediate resolution. The

adjudication of late-sealing claims in the appellate courts is

necessarily en ad hes endeavor dependent upon the peculier

judicial sealing in the overwhelming sajority of cases. Indeed,

Gelays in sealing Title III recordings heave generated fewer than

including the instant case. Finally, the supervisory sealing

procedure promulgated by the Second Circuit in Massing hes

effectively superceded thet court's caselew applying §2518(8) («#)

with respect to ell future Title III investigsetions.

II. THIS CASE IS MOT AN APPROPRIATE VEHICLE FOR THIS COURT TO

ADORESS THE STATUTORY SEALING REQUIREMENT.

The government's petition erroneously suggests that this

case presents « clear legsel issue for resolution by this Court.

Indeed, even the Question Presented, es stated in the

government's petition, does not eccuretely describe the issues

Adresse below. That question incorporetes es « premise thet

the tapes et issue “ere proved to be the unaltered originels.*

Gov. Pet. et (I). Yet, as noted above, no such findings vere

made in this cease with reepect to the suppressed, lete-sesled

tapes. Thus, the issue upon which the government seeks review is

a hypothetical one, inapplicable te the record in this case. The

absence of findings by either lower court on the issue of tape

integrity renders this case perticulaerly unsuitable for Supreme

Court review.

A second fector which silitetes egeinst review is the

existence of several independent grounds to effirs the

suppression order. These grounds, which were noted but not

reviewed by the Second Circuit, include:

the Government's slleged use of «

secret recording systes, its

elleged deliberete destruction of

tapes containing original ster ta!

and ites slleged of

eavesdropping wi recording.

Gov. App. 6e. This Court has consistently held thet any ground

properly reieed below say be urged es « besie for effirmance of

the court of eppesle’ decision. £.5. Whibley vy. Albers. 475 0.5.

312, 326 (1906). Thus, if this Court were te grent certicreri

and reject the retionale of the ruling below, these other

ingependent grounds for effirmance of the suppression order would

be ripe for consideretion.

Finally, the leck of any reasonable explanation for the

egregious delays here further renders this case inappropriete for

10

review. The government's claim that the delays "did not result

from carelessness, failure to give appropriate priority to the

sealing requirement, or other sanctionable behavior,” Gov. Pet at

20, and stemmed from “a perfectly reasonable misunderstanding,”

Gov. Pet. at 22, was specifically rejected by the court of

appeals, which found:

e

disregard of the sensitive nature

of the activities undertaken. The

reasonably high standard of at

least acquaintance with the

requirements of law.

Gov. App. 12a.

III. THIS CASE DOES NOT MERIT DISCRETIONARY REVIEW UNDER THIS

COURT'S RULES.

Rule 17 of this Court's rules provides that a petition for

certiorari will be granted only when there are “special and

important reasons" to do so. The government has utterly failed

to satisfy that stringent requirement in the instant case. The

area of agreement among the appellate courts in applying the

statutory sealing requirement substantially overshadows the

diversity which has emerged in their respective approaches to the

issue. Those insignificant differences have had no measurable

impact upon the administration of criminal justice. Moreover, in

the Second Circuit, the field has been essentially preempted by

the supervisory promulgetion of a sealing procedure to be

employed in all future cases. §ee United States v. Massino, 784

F. zd at 158-159.

Close scrutiny of the government's petition reveals that

what the government really seeks here is judicial reconsideration

of the Second Circuit's determination that the government's

-15-

explanation for the protracted sealing delays in this case was

unsatisfactory. In the face of a contrary finding by the court

of appeals, the government continues to insist that the sealing

delays in this case did not result from carelessness, failure to

give appropriate priority to the sealing requirement, or other

sanctionable behavior." Gov. Pet. at 20. Reconsideration of

that fact-bound issue surely does not merit the attention of this

Court. ges Magnum Co. v. Coty, 262 U.S. 159, 163 (1923).

Based upon its petition, the government also apparently

wants this Court to rewrite that portion of §2518(8)(a) which

makes the presence of a timely judicial seal or a satisfactory

explanation for its absence a “prerequisite” for the use of Title

III recordings in a court of law. The government would

effectively amend the statute to provide that late-sealed tapes

should be admitted, even in the absence of a satisfactory

explanation, if the government can demonstrate that they have not

been tampered with during the period of delay. Gov. Pet. at 14.

Given the virtual impossibility of detecting skillful electronic

editing of tape-recordings, gee United States vy. Johnson, 696

F. zd at 124, the legislative decision to require immediate

judicial sealing as a prophylactic rule to help insure the

integrity of such recordings was entirely reasonable. The

sealing requirement can be readily complied with by diligent

prosecutors. It has been fifteen years since this Court

admonished the government to maintain “strict adherence" to the

provisions of Title III. United States vy. Chavez, 416 U.S. 562,

580 (1974). In any event, the government's proposal to dilute

the statute should properly be addressed to Congress, not to this

Court.

A separate factor which counsels against granting review in

this case is that any decision on the merits is unlikely to

control the future course of this long-running criminal case. If

the appellate decision stands, the government will presumably

proceed to trial against the defendants using its other evidence,

including hundreds of non-suppressed tapes. If review were

416

granted and the appellate decision reversed, the case would have

to be remanded to the court of appeals for resolution of

independent grounds for suppression raised in the district court.

See Gov. App. 6a. Such a process would further delay the trial

of this indictment, which was returned on August 23, 1888.7

For the reasons set forth above, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

fe fb

L. Suitan

Rankin & Sultan

One Commercial Wharf North

Second Floor

Boston, MA 02110

(617) 720-0011

Counsel to Ivonne Melendez Carrion

Assistant Federal Public Defender

234 Church Street

New Haven, CT 06510

(203) 240-3357

Counsel to Isaac Camacho Negron

Blane Polan

Levine, Polan, Curry & Doody

650 Grand Avenue

New Haven, CT 06511

(203) 777-4747

Counsel to Elias Castro Ramos

John K. Wililans

Williams and Wise

51 Elm Street

New Haven, CT 06510

(203) 562-9931

Counsel to Hilton Fernandez Diamante

DATED: August 6, 1989

ay All of these defendants were arrested four years

ago. Seven were detained without bail for sixteen months. They

all remain subject to onerous conditions of release.

-l?-

RANKIN & SULTAN

ATTORNEYS AT Law

CHARLES W RANKIN Ont COMMERCIAL WHARF NORTH

James . SULTAN SECOND too:

BOSTON. MASSACHUSETTS ese

„eee

„nnen

August 8, 1989

Joseph F. Spaniol, Jr.

Clerk of the Supreme Court

of the United States

United States Supreme Court Building

Washington, DC 20543

Re: United States v. Filiberto Ojeda Rios, et al.

Dear Mr. Spaniol:

Enclosed for filing in the above-captioned matter please

find the following:

1. Respondents’ Opposition to Petition for a Writ of

Certiorari to the United States Court of Appeals for

the Second Circuit;

3. Certificate of Service.

I am enclosing the original along with nine copies of these

documents in accordance with the Court's rules respecting in

forma pauperis filings.

I am also enclosing herewith for filing my Entry of

Appearance as counsel of record to Ivonne Melendez Carrion in

this matter. Thank you for your assistance.

Sincerely yours,

yo 7 4 awh 1

Janes L. sultan

ILS: po

Enclosures

FEDERAL EXPRESS AIRBILL #8372448162

ce: Kenneth W. Starr, Solicitor General of the United States

Counsel for all co-respondents