Reply Brief — United States v. Ojeda Rios

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No. 89-61

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1989

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UNITED STATES OF AMERICA, PETITIONER

y.

FILIBERTO OJEDA RIOS, ET Al

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUTT

REPLY BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Cases:

Adickes \. S.H. Kress & Co., WR US. 144

I as 2 RR RIND rota Ment

Camacho \. Autoridad de Telefonos de Puerto Rico,

868 F.2d 482 (ist Cir. 1989)... ss

Cuvier v. Sullivan, 446 U.S. 335 (1980)...

Duignan v. United States, 274 U.S. 195 (1927) |.

Hustyv v. United States, 282 U.S. 694 (1931)...

Moragne v. States Marine Lines, 398 U.S. 375

DE sastdawekigendemitiden. Gee:

On Lee v. United States, 343 U.S. 747 (1952) ..

Thomas v. Arn, 474 U.S. 140 (1985)...

United States v. Adams, 694 F.2d 200 (9th Cir. 1982),

cert. denied, 462 U.S. 1118 (1983) 5. ss

United States v. Armocida, $15 F.2d 49 (3d Cir.),

cert. denied, 423 U.S. 858 (1975)... sis

United States v. Clerkley, $56 F.2d 709 (4th Cir.

1977), cert. denied, 436 U.S. 930 (1978)...

United States v. Daly, $35 F.2d 434 (8th Cir.

De dcnaceckdeidhwurcweee ee

United States v. Donovan, 429 U.S. 413 (1977) .

United States v. Gigante, $38 F.2d $02 (2d Cir.

DD sikenednudkaaneneneneeoetue a

United States v. Hall, $43 F.2d 1229 (9th Cir. 1976),

cert. demied, 429 U.S. 1075 (1977) «ss

United States v. Horton, 601 F.2d 319 (7th Cir.),

cert. denied, 444 U.S. 937(1979) is

United States v. Massino, 784 F.2d 183 (2d Cir.

ED cibéusddeeaadnadseuaeend orl

United States v. Mendenhall, 446 US. $44

SD .deuvdudubleechneaantin aeuadeees

United States v. Principie, $31 F.2d 1132 (2d Cir.

1976), cert. denied, 430 U.S. 905 (1977) ____.

United States v. Quinones, 758 F.2d 40 (ist Cir.

SOU ‘vedvelite candace eet ee

ewe

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17

Cases — Continued:

United States v. Rodriguez, 786 F.2d 472 (2d Cir.

TD .coccccoccéeberccsoseneceseeccereces

United States v. Scafidi, $64 F.2d 633 (2d Cir. 1977),

cert. denied, 436 U.S. 903 (1978) ............

United States v. Vazquez, 60S F.2d 1269 (2d Cir.),

cert. denied, 444 U.S. 981 (1979) ............

Youakim v. Miller, 425 U.S. 231 (1976) .......

Constitutions, statutes and rule:

U.S. Const. Amend. IV ........

P_R. Const. Ant. I, § 10 .....

9B UGE. BPSD ccccccccccces: tall atl

18 U.S.C. 2510(6Ma) .....------.

88 U.S.C. ZOOGIBMED «22 once ccc eee en ccee:

Fed. R. Evid. SOI ...........

Miscellaneous:

Anti-Crime Program: Hearings Before Subcomm.

No. 5 of the House Comm. on the Judiciary, 9h

Cong., Ist Sess. (1967) ........---- 66 eee eee

Controlling Crime Through More Effective Law En-

forcement: Hearings Before the Subcomm. on

Criminal Laws and Procedures of the senate

Comm. on the Judiciary, 9h Cong., st Sess.

CED cecedaséesedecceetces .

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

2

Page

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BR, Be Be

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Jn the Supreme Court of the United States.

OCTOBER Te RM, 1989

No. 89-61

UNITED STATES OF AMERICA, PETITIONER

Vv.

FILIBERTO OJEDA RIOS, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

1. Respondents contend (Br. 10) that under 18 U.S.C.

2518(8)(a), “immediate judicial sealing, or a satisfactory ex-

planation tor delay” is a prerequisite to the admission of

tape-recorded conversations. But that is not the language

Congress used in the statute. Instead of predicating the ad-

missibility of taped conversations on “immediate judicial

sealing, Or a satisfactory explanation for delay,” the statute

predicates admissibility on “[t}he presence of a seal provided

for by this subsection, or a satisfactory explanation for the

absence thereof.” 18 U.S.C. 2518(8)(a) (emphasis added).

The operative sentence makes no reference to immediacy

or delay; instead, according to the words chosen by Con-

gress, admissibility turns solely on the “presence” or

“absence” of the seal.

(1)

Respondents argue that the “absence” of the “seal pro-

vided for by this subsection” does not mean simply the

absence of a judicial seal; according to respondents, a seal

is “absent” for purposes of Section 2518(8)(a) if the seal is

present but the sealing was delayed. That construction of

the statutory language is, at minimum, quite strained. By

its natural reading, the phrase “the presence of a seal pro-

vided for by this subsection” means simply the presence of

the judicial seal referred to earlier in the statute, without

regard to when that seal was affixed.

Respondents argue that Congress could not have meant

to prohibit the admission of tapes when there is an unex-.

plained absence of a seal, while not prohibiting the admis-

sion of tapes when the sealing is delayed. But there is nothing

illogical about distinguishing between delayed sealing and

the absence of a seal. While the legislative history is

unenlightening on this point,' Congress may well have con-

sidered that cases in which the seal is absent without ex-

planation raise sufficiently grave concerns about authen-

ticity that there should be a special statutory provision

' The legislative history does not reveal much about the purpose Con-

gress wanted the exclusionary provision in Section 2518(8)(a) to serve.

The provision was first proposed, without comment, by a law professor

during hearings on the Omnibus Crime Control and Safe Streets Act.

Anu-Crime Program: Hearings Before Subcomm. No. 5 of the House

Comm. on the Judiciary, 9th Cong., Ist Sess. 1041 (1967). It was

picked up, again without comment, in S. 2050, Senator Hruska’s bill

on electronic surveillance. Controlling Crime Through More Effective

Law Enforcement: Hearings Before the Subcomm. on Criminal Laws

and Procedures of the Senate Comm. on the Judiciary, 9th Cong.,

Ist Sess. 1007 (1967). The provision was then included, almost un-

changed, in the bill that was reported and enacted. Although the Senate

report contains a useful discussion of the purposes of the sealing re-

quirement, it contains only an unenlightening one-sentence paraphrase

of the portion of Section 2518(8)(a) at issue here. See S. Rep. No. 1097,

90th Cong., 2d Sess. 104 (1968).

barring the admission of tapes in those instances. In other

cases, such as those involving only a delay in sealing, Con-

gress may have concluded that the risk of tampering was

not as great, and that no special statutory rule was called

for. In those cases, the issue of authenticity could adequately

be addressed by traditional evidentiary rules of authentica-

tion. In short, there is nothing about the purpose of the

statute that compels the Court to read the word “absence”

as if it were the word “delay.”?

2. Respondents contend (Br. 8 n.4) that we are pre-

cluded from relying on the plain language of Section

2518(8)(a) in this Court because we did not rely on the plain

language of the statute below. In the court of appeals, we

argued (Gov't C.A. Br. 38-48) that Section 2518(8)(a) does

not require suppression of tape-recorded evidence as long

as the tapes’ integrity has been maintained. That is precise-

ly the argument We are making here. In support of that argu-

ment, We are contending that suppression is not appropriate

merely because of delays in sealing, an argument we also

made in the court of appeals. The only legal point that we

are making now but did not make in the court of appeals —

that the plain language of Section 2518(8)(a) supports our

> Respondents argue (Br. 13) that our construction of the statute

would permit the government to avoid the exclusion of unsealed tapes

simply by having a court seal them the day betore the trial. A court,

however, ts not obligated to seal tapes any time the government presents

them for sealing, regardless of the circumstances. A court presented

with unsealed tapes the day before trial might well refuse to seal them

on the ground that the sealing would achieve nothing and that the cir-

cumstances of thei remaiming unsealed tor a long time were too

suspicious to ignore. A court’s refusal to seal tapes under those circum-

stances Would require the government to provide a satisfactory explana-

tion for the absence of the seal when the government presented the tapes

for admission into evidence.

4

construction of the statute —is One that was not open to us

in that court.’

We believe that the plain language of the statute provides

additional support for the argument we have made

throughout this case, and that the “plain meaning” point

is NOt a separate argument subject to waiver if not made

below. But even if the plain meaning point should have been

formally preserved in the court of appeals notwithstanding

the settled law of that circuit, this Court may properly con-

sider it, for two reasons. First, the court of appeals

specifically addressed the plain meaning point and reat-

firmed its earlier decisions rejecting it. See Pet. App. 6a.*

Second, the question whether Section 2518(8)(a) authorizes

exclusion of tapes because of sealing delays is inextricably

intertwined with the question whether suppression should

be ordered for sealing delays that are not explained to a

court’s satisfaction. It is impossible to make a sensible deter-

mination whether suppression should be ordered for seal-

ing delays that are not satisfactorily explained, without

* The court of appeals had consistently rejected the “plain meaning”

argument in prior cases. See United States \. Rodriguez, 786 F.2d 472,

476 (2d Cir. 1986); United States v. Massino, 784 F.2d 153, 156 (2d

Cir. 1986); United States v. Vazquez, 605 F.2d 1269, 1274 (2d Cir.),

cert. demed, 444 U.S. 981 (1979); United States \. Gigante, 538 F.2d

$02, 506 (2d Cir. 1976).

* This Court has held that where issues “are neither raised before

nor considered by the Court of Appeals, this Court will not ordinarily

consider them.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2

(1970) (emphasis added). See Youakim v. Miller, 425 U.S. 231, 234

(1976); Husty v. United States, 282 U.S. 694, 701-702 (1931); Duignan

v. United States, 274 U.S. 195, 200 (1927). As that formulation sug-

gests, if the lower court addressed and resolved the issue, it is properly

betore this Court even if the issue was not raised below by one of the

parties. On Lee v. United States, 343 U.S. 747, 749-750 n.3 (1982); see

Moragne v. States Marine Lines, 398 U.S. 375, 378-379 n.1 (1970);

Thomas v. Arn, 474 U.S. 140, 157-158 (1985) (Stevens, J., dissenting).

asking the preliminary question whether the statute

authorizes suppression of tapes for sealing delays in any

circumstances.° .

3. Even if respondents are correct in their contention that

Section 2518(8)(a) requires a “satisfactory explanation” for

sealing delays, there is no support in the text of the statute

or its legislative history for their proposed definition of that

term. Respondents argue (Br. 29-30) that the admissibility

of late-sealed tapes must turn on the “totality of the circum-

stances,” including “the duration of the delay; the diligence

of law enforcement in completing the pre-sealing tasks; the

frequency (in a case involving multiple wiretap orders) of

violations of the immediate sealing requirement; the nature

of the circumstances, if any, which diverted those responsi-

ble from the presentation of the tapes for immediate seal-

ing; evidence of any prejudice caused to defendants by the

delay in sealing; and evidence of any bad faith by the govern-

_ment.” Many of those factors, however, bear no relation-

ship to the purpose to be served by the sealing requirement —

ensuring “that accurate records will be kept of intercepted

communications.” S. Rep. No. 1097, 90th Cong., 2d Sess.

104 (1968). In the absence of any other guidance from Con-

gress, the term “satisfactory explanation” must be defined

with reference to that purpose. Accordingly, a “satisfactory

explanation” is one that satisfies the court that the delay in

sealing did not result in any alteration of the tapes. ’

> This Court has held that an argument not made below must be ad-

dressed where “resolution of this issue of law ts a ‘predicate to an in-

telligent resolution’ of the question on which [the Court] granted cer-

tiorari.” Cuvier. Sullivan, 446 U.S. 335, 342-343 n.6 (1980). See United

States v. Mendenhall, 446 U.S. $44, 551 n.5 (1980).

* They may, however, be relevant to determining the appropriateness

of contempt sanctions under Section 2518(8)(c).

’ Respondents err in stating that, under our definition, the

deliberateness or bad taith of the supervising attorney ts irrelevant. To

6

Respondents contend (Br. 20-28) that judicial sealing is

an extremely important protection against tape tampering,

and that the provision in Section 2518(8)(a) that authorizes

the exclusion of unsealed tapes should be interpreted as a

prophylactic rule designed to avoid the need for inquiry in-

to whether tapes are pristine in particular cases. There are

several problems with this argument.

First, while judicial sealing may provide some marginal

protection against the risk of tampering, the protection is

not complete, nor even very substantial. Since sealing is not

required until the end of a period of electronic surveillance

and all extensions of that period, weeks or even months may

pass between the date particular conversations are in-

tercepted and the date of timely judicial sealing. A govern-

ment agent or prosecutor bent on tampering with tapes

would therefore typically have a lengthy period within which

to do so betore the obligation to seal matures. Moreover,

“sealing” typically consists simply of placing evidence tape

over boxes of tapes and returning the tapes to the in-

vestigative agency for safekeeping.* To any agent or pros-

ecutor bent on committing the crime of obstructing justice

by tampering with tape-recorded evidence, the presence of

a strip of evidence tape is not likely to be a significant

obstacle. Because the protection provided by the sealing

mechanism is modest at best, it is unlikely that Congress

regarded sealing as so critical to the preservation of tape-

the contrary, the fact that an attorney deliberately or in bad faith

delayed sealing in order to provide an Opportunity to alter tapes is ob-

viously highly relevant to the question whether the tapes were in fact

altered and would make the government's burden of establishing the

tapes’ authenticity much harder to meet. There is, of course, no sug-

gestion m the record that the supervising attorney in this case was so

mot ated,

* The legislative history of Section 2518(8)4) makes clear that the

law enforcement agency — not the court — will ordinarily be the custo-

dian of tape-recorded materials, even after the court seals the tapes.

See S. Rep. No. 1097, supra.

recorded evidence as to warrant the creation of a “pro-

phylactic rule” that would result in the suppression of

evidence in cases of delay, even when the tapes could be

shown to be unaltered.

Second, because Congress permitted the admission of

unsealed tapes upon a “satisfactory explanation” for the

omission, the rule Congress created is not a “prophylactic

rule” in any event. The rule does not require exclusion of

tapes in the absence of immediate sealing if the failure to

comply with the statutory sealing requirement can be ex-

plained. The presence of such a broad exception to the rule

of exclusion undermines respondents’ argument that Con-

gress was so concerned with the risk of tampering, and so

confident of the capacity of the judicial seal to prevent

tampering, that it wished to enforce compliance with the

sealing requirement by requiring the suppression of tape-

recorded evidence whenever there was a delay in sealing.

Instead, the “satisfactory explanation” proviso supports the

view that Congress regarded the presence of a seal (or an

explanation for its absence) as simply a prerequisite for ad-

mission of tape-recorded evidence, one that would exclude

tape-recorded evidence only in the most extreme cases,

where the risk of actual tampering was deemed to be in-

tolerably high.’

* Respondents argue (Br. 19-20) that our construction of Section

2518(8)a) ts flawed because it would simply convert the rule requiring

the presence of a seal (or a satisfactory explanation for its absence) iato

a bar to unauthenticated evidence that would already be subject to ex-

clusion under Fed. R. Evid. 901. Respondents have overlooked the fact

that the evidentiary bar m Section 2518(8)a) is much broader than the

bar erected by Rule 901. Under Section 2518(8)(a), if tapes are unsealed

and there ts no satistactory explaitation for their condition, the conse-

quence ts not merely to exclude the tapes themselves, but also to ex-

clude any “evidence derived therefrom.” That ts a much broader prin-

ciple of exclusion than the one found in Rule 901, which excludes only

the unauthenticated evidence itself.

As part of their “prophylactic rule” argument,

respondents contend that the admissibility of electronic

surveillance evidence should not depend on the integrity of

the tapes, because it is difficult to determine whether tapes

have been altered. But in most cases in which sealing delays

occur, the government will satisfy its burden of showing

that the tapes are authentic by establishing an unbroken

chain of custody. Ordinarily, expert testimony will not be

necessary to establish tape authenticity.'°

In those cases in which expert testimony is admitted, it

can be quite helpful in determining authenticity. In this case,

for example, the government offered an expert in tape

authenticity to rebut respondents’ allegations of tape tamper-

ing. Pet. App. Sla-S2a. The government's expert performed

several tests on a sample of ten sealed original tapes selected

by respondents from the 166 tapes designated by the govern-

ment as relevant. Presumably, respondents selected those

ten tapes because they regarded them as the most suspect

of the entire lot. See Pet. App. 55a. Yet, the government

expert concluded that nine of the ten tapes are original re-

cordings. Pet. App. 52a. With respect to the tenth tape, the

expert testified that i contained insufficient data from which

he could render an opinion. /bid. The district court credited

the expert’s testimony and found that “the subject tapes are

originals.” Pet. App. 53a-5Sa. Accordingly, there is nothing

in this record that supports respondents’ claim that tape

authenticity is impossible to determine.

4. Respondents allege (Br. 34) that the delays in seal-

ing the Levittown tapes and the Vega Baja public telephone

tapes recorded pursuant to the January 18, 1985, order were

'® Unable to impeach the government's chaim-ot custody evidence m

this case (sce Pet. App. Wa-45a), respondents presented expert

testimony on the subject of tape authenticity. Only then, im rebuttal,

did the government present the testimony of tts expert.

9

the result of Justice Department attorney Frank Bove’s

“deliberate decision to ignore the law.” The record, however,

does not support that assertion. The district court found

that “nothing in the record indicates that Bove intentional-

ly ignored the applicable law or deliberately failed to seal

the tapes. Rather, [Bove] believed his interpretation was

within the law and no evidence is on the record that even

suggests that he purposefully flouted the requirement or

tailed to carry out his duties.” Pet. App. 78a. The court

of appeals, while critical of what it considered a serious legal

error on Bove’s part, did not reject the district court’s find-

ing on this point or in any other way suggest that Bove’s

error was deliberate. See Pet. App. 12a.''

Respondents charge (Br. 35) that we have mischaracter-

ized Bove’s explanation of why he did not have the Levit-

town tapes sealed as soon as surveillance at that location

ceased. To the contrary, our characterization of Bove’s posi-

tion was entirely fair. Nonetheless, because respondents seek

to make much of Bove’s explanation for his sealing deci-

sions, we shall address the matter in some detail.

Bove stated that he believed he was required to seal the

tapes “when there occurred a meaningful hiatus in our

authority to intercept communications,” J.A. 4-5. He

explained that he reached that conclusion because “the

targets of this investigation changed residences and vehicles

so frequently, we considered the interceptions at various

locations to be interrelated and part of the same investiga-

tion.” J.A. 4; see Pet. App. 77a; Oct. 27, 1987, Tr. 129-130.

'' Bove testified that although he was a novice im electronic

surveillance when he was assigned to this investigation, he prepared

himself for his task by reading the statute, a number of court decisions,

and several secondary sources. J.A. 23-24; Oct. 27, 1987, Tr. 112-113,

167. Bove derived his conclusion as to when sealing was required from

the text of the statute itself. Oct. 27, 1987, Tr. 177; Oct. 28, 1987, Tr. 49.

10

From the outset in April 1984, the principal target of the

Levittown interception orders was respondent Filiberto

Ojeda Rios (Ojeda). Oct. 27, 1987, Tr. 122, 124, 129. Dur-

ing that period, the government also obtained a series of

interception orders for Ojeda’s automobile, a Datsun Sen-

tra. Pet. App. 20a. When Ojeda moved trom Levittown to

El Cortijo in July 1984, the government sought a new in-

terception order for his new residence in El Cortijo. Oct.

27, }987, Tr. 122-124. The El Cortijo interception order was

extended until September 25, 1984, and the Datsun Sentra

interception orders were extended until October 10, 1984.

The El Cortijo, Datsun Sentra, and Levittown tapes were

all sealed on October 13, 1984. Pet. App. 96a.

Bove explained that he regarded the FE! Cortijo intercep-

tion orders as extensions of the Levittown interception

orders, because El Cortijo was simply Ojeda’s new residence.

J.A. 26 (“To us{,] the only reason we went in and sought

authority to intercept conversations at El Cortijo * * * was

because that was the latest address where we felt that Ojeda

was living. The only reason we switched trom Levittown

was because his residence, in effect, switched.”); Oct. 28,

1987, Tr. 16 (“I viewed it as an interrelated investigation

* * * the El Cortijo application [was] really just a continua-

tion and an extension of our authority to intercept Mr.

Ojeda’s residence. It was a continuation in that respect.”);

id. at 62 (“we viewed the move by Mr. Ojeda from one loca-

tion to another as simply a continual attempt to monitor

his residence.”); see also J.A. 40-41; Oct. 28, 1987, Tr. 63,

79, 80, 83-84. :

Bove further concluded that the sealing requirement did

not mature until the last interception order for the Datsun

Sentra expired on October 10, 1984, because that was the

last outstanding interception order directed at Ojeda. Oct.

27, 1987, Tr. 129. Thus, it was not until the authorities

“lost track of Mr. Ojeda” in early October 1984 that Bove

concluded he was required to seek judicial sealing for the

Levittown tapes. Oct. 27, 1987, Tr. 124; Oct. 28, 1987, Tr.

15. Until then, Bove considered the various surveillance

orders direct d at Ojeda to be “part of one continuous, full,

extension of an ongoing investigation.” Oct. 27, 1987, Tr.

194.

The district court made the same point during the course

of the suppression hearing. During Bove’s testimony, the

court summarized Bove’s position as follows (J.A. 26):

THE COURT: As I understand it, your application

of the statute, as you saw it, was that it was applicable

to the target subject, so to speak, as long as there was

a continuous order against him rather than the loca-

tion being the target where the authorization original-

ly stemmed trom?

THE WITNESS: That's the way I viewed ut, your

Honor.

Respondents contend that the Levittown tapes should be

excluded because Bove acted unreasonably in drawing the

legal conclusion that the El Cortijo surveillance orders could

be regarded as extensions of the Levittown surveillance

orders and that the obligation to seal the Levittown tapes

therefore did not mature upon the expiration of the last

order authorizing surveillance at that location. As we

discussed in our opening brief, however, the Second Cir-

cuit’s own prior decision in United States v. Principie, 531

F.2d 1132, 1142 & n.14 (1976), cert. denied, 430 U.S. 905

(1977), was consistent with that conclusion, since the Prin-

cipie court held that the term “extension” can embrace an

order authorizing surveillance in a new location to which

a target has moved. Thus, in that respect at least, Bove’s

construction of the statute was in accordance with the Sec-

ond Circuit's own rule at the time. His conclusion that he

did not have to seal the Levittown tapes when Ojeda and the

12

surveillance moved to El Cortijo was therefore reasonable,

even if it was not correct.'?

Likewise, with respect to the Vega Baja public telephone

tapes, Bove did not believe that the hiatus between the ex-

piration of the first order on February 17, 1985, and the

issuance of the extension of that order on March 1, 1985,

triggered the sealing requirement for the first group of tapes.

Oct. 27, 1987, Tr. 180. Respondents do not even attempt

to attribute any bad faith to the government for this 12-day

hiatus. Instead, they argue that Bove’s explanation was

“deficient” because the Department of Justice’s Office of

Enforcement Operations was unable to complete its revi-

sion of the underlying affidavit within the 12-day period.'?

Significantly, they do not address the Second Circuit's deci-

sion in United States v. Scafidi, 564 ¥.2d 633, 637, 641

(1977), cert. denied, 436 U.S. 903 (1978), which counten-

anced a 23-day hiatus between the original application and

an eXtension.

'2 Respondents are incorrect in stating (Br. 35 n.20), that we have

conceded that the El Cortijo surveillance order was not an “extension”

of the Levittown order. We made no such concession; instead, we sim-

ply did not seek review on that issue, and we have accordingly accepted

“tor the sake of argument” the district court's calculations of the seal-

ing delays. Gov't Br. 26 n.18.

'} Respondents make much of the fact that Bove stated that the

12-day delay was necessary to rewrite the clectrome surveillance at-

fidavit, but that the affidavit submitted on March |, 1985, was not

substantially different from the one submitted on January 18, 1985.

In fact, Bove’s explanation was accuras As we explained in our open.

ing brief, the filing of an extension application was delayed while at-

torneys in Washington worked on a revived affidavit, but when ut

became clear that the revision was taking too much time, the decision

was made to use the prior affidavit as the basis tor the March |, 1985,

extension application. The substantially revised attiday it was presented

a month later, in support of the March 31, 1985, extension appheation

13

There is nothing in the statute that requires that exten-

sions be sought without any period of interruption in

surveillance. Certainly, the requirement that evidence be ex-

cluded in the absence of a seal or a satisfactory explana-

tion for its absence cannot be stretched to require exclu-

sion where the only “flaw” in the proceedings is that the

extension order did not follow immediately upon the ter-

mination of the original surveillance order. Moreover, in

light of the Scafidi decision, which held that an extension

order was still an extension order even after a hiatus longer

than the one in this case, it is very difficult to understand

how the court of appeals could regard Bove’s legal conclu-

sion on this issue as unreasonable.

5S. Atthe end of their brief, respondents assert that the

government was guilty of “widespread overreaching dur-

ing its electronic surveillance investigation, including use

of a secret recording system and intentional violations of

Title II] and court orders.” Br. 40. Those allegations were

rejected by the district court and were not addressed by the

court of appeals. Respondents appear to recognize that those

allegations are not before this Court for decision, but they

nonetheless refer to them, apparently in an effort to per-

suade the Court that the investigation in this case

“demonstrate[d] a contempt for the rule of law.” Resp. Br.

40.

Respondents’ allegations are wholly without merit. First,

respondents contend (Br. 41-46) that the monitoring agents

acted unlawfully because they not only recorded the in-

tercepted conversations on reel-to-reel tapes, which were

preserved tor use as evidence, but also simultaneously

recorded the conversations on cassette tapes. As the district

court found, the agents used the cassette tapes to help them

prepare contemporaneous written summaries of the in-

tercepted conversations. When a summary was completed,

the tapes were ordinarily reused. 695 F. Supp. 1369,

14

1371-1373. The district court held that this practice was en-

- tirely lawful, that the agents did not knowingly record con-

versations on the cassette tapes that were not simultaneously

recorded on the original tapes, that the government did not

have a duty to preserve those tapes, and that respondents

were not prejudiced by the erasure and reuse of the tapes.'*

695 F. Supp. at 1373-1378. Respondents cite no authority

for their claim that the practice of making a second record-

ing of recorded conversations was unlawtul.

Respondents next claim (Br. 46-47) that the government

solicited false affidavits from the monitoring agents to sub-

mit in response to respondents’ suppression motions. Again,

the record refutes that claim. The case agent advised the

monitoring agents of respondents’ allegations of illegality

in the course of the investigation and asked the agents to

sign a prepared affidavit responding to those allegations if

they agreed that the affidavit was correct. The monitoring

agents were specifically directed mor to sign the affidavit

if they believed it to be in any way maccurate.'”

'* Thirty-nine of the cassettes were preserved Four of those 39 tapes

contained a few minutes of conversations that were mot recorded on

the original reel-to-reel tapes. 695 F. Supp. at 1378. The district court

found, however, that the amount of information that «as recorded on

the cassette tapes but not on the original reel-to-reel tapes was de

minimis, id. at 1377, 1378, that the monitoring agents belheved m good

taith that everything recorded on the cassetic tapes was abso recorded

on the reel-to-reel tapes, ad. at 1373, 1376, 1377-1378, and that the loss

of evidence resulting trom the erasure of some of the work casseties

was inadvertent and not prejudicial to the defendants, ad. at 1377-1378.

'* The monitoring agents were directed to “gn the [draft] affidavit

before a notary only if [you] completely agree with everytheng m the

affidavit.” Any agent who “for any reason * * * can not agree with

any portion of the affiday a” was directed to Contact a specified member

of the prosecution team. Telegram to Director, FBI, from SAC, New

Haven, dated Oct. 20, 1986. Defendants’ Pretnal Ewh. 2385

15

Finally, respondents assert (Br. 47-48) that the monitor-

ing agents listened to conversations without recording them.

After hearing the testimony of 25 monitoring agents, the

court found no basis in the record for respondents’ allega-

tion that the agents regularly engaged in such a practice.

695 F. Supp. 1379, 1380, 1384, 1393. Indeed, the court

found that only two of the 64 monitoring agents ever

deliberately engaged in live monitoring without recording.

Id. at 1393, 1394. Because the Vega Baja public telephone

orders authorized the agents to record only the conversa-

tions of targets of the investigation who used the phone

booths, those two agents occasionally listened briefly to a

call to determine, where visual observation was inadequate,

whether the caller was one of the targets. Once the agent

determined by voice identification that a non-target had

placed the call, he would discontinue the monitoring.

Significantly, the court found that all the conversations to

which respondents were parties were recorded, and that

respondents were therefore not prejudiced by the occasional

failure to record the conversation of a non-target. 695 F.

Supp. at 1394-1395.'* Section 2518(8)(a) of Title 18 requires

that intercepted conversations shall be recorded “if possi-

ble.” That provision was intended to assure that the “best

evidence” of the intercepted conversations would be

available at trial; it was not intended to protect the targets’

Fourth Amendment privacy interests. Accordingly, the few

instances of listening without recording, which the district

court referred to as “de minimis” (695 F. Supp. at 1396),

do not affect the admissibility of any of the conversations,

'© The court found that there were only two instances other than those

involving the two agents surveilling the Vega Baja public telephones

in which listening without recording had occurred: once as the result

of a power failure in the recording equipment, and once when an agent

overheard a small portion of a conversation on the receiving unit in

his surveillance vehicle but did not have a recording device in his posses-

sion. 695 F. Supp. at 1386.

16

and certainly not the lawfully intercepted, taped conversa-

tions to which respondents were parties. See United States

v. Clerkley, 556 F.2d 709, 718-719 (4th Cir. 1977), cert.

denied, 436 U.S. 930 (1978); United States v. Daly, 535 F.2d

434, 442 (8th Cir. 1976); see generally United States v.

Donovan, 429 U.S. 413, 434 (1977).""

In short, respondents exhaustively examined 25 agents

during the suppression hearing but were unable to show any

pattern of unlawful conduct during the investigation. As

the district court found, the most they were able to show

was an occasional inadvertent error in the monitoring proc-

ess that did not in any way prejudice respondents.

6. Amici Asian-American Legal Defense Fund, et al.

argue that electronic surveillance is illegal in Puerto Rico

because it is prohibited by the Puerto Rico Bill of Rights.

See P.R. Const. Art. II, § 10 (“Wire-tapping is prohibited.

* * * Evidence obtained in violation of this section shall be

inadmissible in the courts.”). Respondents sought suppres-

sion on this ground in the district court, and the district court

rejected their claim. 649 F. Supp. 1183. They raised the same

issue in a civil suit, and the claim was rejected there by the

First Circuit. Camacho v. Autoridad de Telefonos de Puerto

Rico, 868 F.2d 482, 487-488 (1989). Respondents have not

raised the issue in this Court, however, and it is therefore

not presented for decision.

In any case, there is no merit to this claim. Amici do not

dispute that Congress intended the federal wiretapping

statute to displace conflicting state and local laws pertain-

ing to wiretapping (Camacho, 868 F.2d at 487) so that

evidence obtained by federal officers in compliance with the

~ federal statute would be admissible in federal court, whether

'? Nor did the government attempt to conceal trom respondents the

existence of any work cassettes or the Occasional instances of listening

without recording. See 695 F. Supp. at 1373-1375

17

Or not that evidence would have been admissible in state

court proceedings. 18 U.S.C. 2517(3); United States v.

Quinones, 758 F.2d 40, 43 (ist Cir. 1985); United States

v. Adams, 694 F.2d 200, 201 (9th Cir. 1982), cert. denied,

462 U.S. 1118 (1983); United States v. Hurton, 601 F.2d

319, 323 (7th Cir.), cert. denied, 444 U.S. 937 (1979); United

States v. Hall, 543 F.2d 1229 (9th Cir. 1976) (en banc), cert.

denied, 429 U.S. 1075 (1977); United States v. Armocida,

515 F.2d 49, 52 (3d Cir.), cert. denied, 423 U.S. 858 (1975).

Section 2510(3) of Title 18 defines “State” to include Puer-

to Rico. Consequently, the intercepted conversations are

not subject to suppression on the ground that electronic

surveillance is not authorized by the laws of Puerto Rico.

For the foregoing reasons and the reasons stated in our

opening brief, the judgment of the court of appeals should

be reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

FEBRUARY 1990

US GOVERNMENT PRINTING OFFICE 1990— 262 20300761