Appendix — Vastola v. United States
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Supreme Court, U.S.
re & dD
94 405 SEP - 2 1994
No. ____ggFice OF THE CLERK
In The
Supreme Court of the United States
October Term, 1994
%
GAETANO VASTOLA,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
¢
Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit
Sd
APPENDIX TO PETITION FOR A
WRIT OF CERTIORARI
— ¢
HERALD PRICE FAHRINGER
Counsel of Record
Lipsitz, GREEN, FAHRINGER,
Roti, SALISBURY & CAMBRIA
110 East 59th Street
New York, NY 10022
(212) 909-9670
DIARMUID WHITE
148 East 78th Street
New York, NY 10021
(212) 861-9850
Attorneys for Petitioner
MICHAEL ROSEN
Joy VASTOLA
Of Counsel
TABLE OF CONTENTS
Opinion of the court of appeals filed May
Yo Oe | SP Pe aren ase RE eae eae App.
Opinion of the court of appeals filed Febru-
Ee eR 66 o 65 oe eee App.
Opinion of the court of appeals filed Octo-
a eS. Ne RRL oT Reet AS Baie App.
Opinion of the court of appeals filed March
BT ae ea ee App.
Opinion of the district court filed August
ee, REA Mt Ae en hy tet App.
Opinion of the district court filed August
NE cake veh ee anah ce ces aeer} eee App.
Opinion of the district court filed Septem-
ee oe cue a ee App.
Opinion of the district court rendered April
Ms Se eee ieee eee eee App.
Order of the court of appeals denying
rehearing, dated June 16, 1994.......... App.
Page
163
177
203
295
306
App. 1
APPENDIX I
Filed May 25, 1994
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 93-5529
UNITED STATES OF AMERICA
Appellee
v.
GAETANO VASTOLA
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 86-301)
Argued March 4, 1994
Before: STAPLETON and SCIRICA, Circuit Judges,
and VAN ANTWERPEN, District Judge’
(Opinion filed May 25, 1994)
Herald Price Fahringer (argued)
Diarmuid White
Lipsitz, Green, Fahringer,
Roll, Salisbury & Cambria
110 East 59th Street
New York, New York 10022
Attorneys for Appellant
*Hon. Franklin S. Van Antwerpen, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
App. 2
Marion Percell (argued)
Michael Chertoff
United States Attorney
970 Broad Street
Newark, New Jersey 07102
Attorneys for Appellee
OPINION OF THE COURT
VAN ANTWERPEN, District Judge.
Appellant Gaetano Vastola (“Vastola”) comes before us for
the fourth time seeking to overturn his May 3, 1989
convictions for two substantive RICO offenses under 18
U.S.C. §1962(c), a RICO conspiracy offense under 18
U.S.C. § 1962(d), and conspiracy to use extortionate means
to collect an extension of credit, in violation of 18 U.S.C.
§ 894. Vastola seeks suppression of certain wiretap
recordings, improperly sealed under Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 (Wiretap Act),
as amended, 18 U.S.C. §2510 et seq. Vastola challenges
the findings of the district court from the most recent
remand in this case. U.S. v. Vastola, 830 F.Supp. 250
(D.N.J. 1993). Specifically, Vastola disputes the finding that
the United States Attorney supervising the wiretap
surveillance conducted adequate legal research or otherwise
acted as a reasonably prudent attorney when she failed to
seal the wiretap tapes in a timely fashion.
The history of this complex case has been well-
documented in the many published opinions written in
connection with this case. United States v. Vastola, 989
F.2d 1318 (3d Cir. 1993) (Vastola III); United States v.
Vastola, 915 F.2d 865 (3d Cir. 1990) (Vastola II), cert.
denied, 498 U.S. 1120, 111 S.Ct. 1073 (1991); United
States v. Vastola, 899 F.2d 211 (3d Cir. 1990) (Vastola I),
vacated and remanded, 497 U.S. 1001, 110 S.Ct. 3233
(1990). We will discuss only the facts and _ procedural
history relevant to our review of the most recent remand of
this case to the district court.
App. 3
Facts and Procedural History
On May 3, 1989 the district court entered an order of
judgment and commitment against Vastola after a jury
found him guilty of two substantive RICO offenses. Vastola
had been charged, along with 20 other co-defendants in a
114-count indictment filed on September 19, 1986. Vastola
was sentenced to serve a total of twenty years’
imprisonment and to pay a total fine of $70,000.
Prior to trial, Vastola and the other defendants filed an
omnibus motion that included a _ request for the
suppression of the electronic tapes obtained from the
government's surveillance of an establishment named the
Video Warehouse in West Long Branch, New Jersey (“West
Long Branch tapes”), between March 15, 1985 and May 31,
1985. The tapes were not sealed until July 15, 1985, more
than 45 days after the final interception on May 31, 1985
and 32 days after the June 13, 1985 expiration date of the
order authorizing the surveillance. Defendants contended
that the West Long Branch tapes should be suppressed
pursuant to the Wiretap Act, 18 U.S.C. § 2518(8)(a).!
1. Section 2518(8)(a) provides, in pertinent part:
The contents of any wire, oral, or electronic
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, oral, or electronic .
communication under this subsection shall be. done in
such 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 ... 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, oral, or electronic communication
or evidence derived therefrom under subsection (3) of
section 2517.
18 U.S.C. § 2518(8)(a).
bh incetteeeeteee nema
App. 4
The district court determined, in effect, that the sealing
was untimely. However, the district court refused to
suppress the tapes, relying on the case of United States v.
Falcone, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S.
955, 95 S.Ct. 1338 (1975) for the rule that suppression is
warranted only where it can be shown that the physical
integrity of the tapes has been compromised. Finding by
clear and convincing evidence that the physical integrity of
the West Long Beach tapes had not been compromised, the
district court denied Vastola’s and the other defendants’
motion to suppress. United States v. Vastola, 670 F.Supp.
1244, 1282 (D.N.J. 1987), affd in part, rev'd in part, 899
F.2d 211 (3d Cir.), vacated and remanded, 497 U.S. 1001,
110 S.Ct. 3233 (1990).
On appeal, we affirmed the district court's refusal to
suppress the West Long Branch tapes on the basis of
Falcone. Vastola I, 899 F.2d 211 (3d Cir. 1990). On June
25, 1990, the Supreme Court vacated this decision and
remanded the matter for further consideration in light of
the recently decided case of United States v. Ojeda Rios,
495 U.S. 257, 110 S.Ct. 1845, 109 L.Ed.2d 224 (1990). In
Ojeda Rios, the Supreme Court held that a delay in sealing
authorized electronic surveillance tapes requires
suppression of the tapes unless the government offers a
“satisfactory explanation” for the sealing delay. The court
held that section 2518(8)(a) requires that the actual reason
for the sealing delay be objectively reasonable at the time of
the delay. Ojeda Rios, 495 U.S. at 266-267, 110 S.Ct. at
1850-1851.
On remand from the Supreme Court, this court
concluded that “a sealing delay indeed occurred as the
West Long Branch tapes should have been sealed either as
soon as was practical after May 31, 1985, when the actual
surveillance ended, or as soon as practical after June 13,
1985, when the final extension order expired.” Vastola II,
915 F.2d 865, 875 (3d Cir. 1990). We then remanded to the
district court to determine “whether the government should
now be permitted, under Ojeda Rios, to offer an explanation
for its violation of the sealing requirement.” Id. at 876.
Vastola’s petition for certiorari from this decision was
denied. Vastola v. United States, 498 U.S. 1120, 111 S.Ct.
1073 (1991).
App. 5
On December 14, 1990 the district court conducted a
hearing at which the government presented evidence
concerning the reason for the sealing delay. The district
court determined that “the actual reason for the sealing
delay was that the Assistant United States Attorney in
charge of the electronic surveillance, Diana Armenakis, and
her supervisor on the case, Thomas Roth, believed that the
Wiretap Act did not require the sealing until the end of the
investigation.” United States v. Vastola, 772 F.Supp. 1472,
1481 (D.N.J. 1991), vacated and remanded, 989 F.2d 1318
(3d Cir. 1993). The court found that the government's
misunderstanding of the law had _ been _ objectively
reasonable and the delay had perforce been satisfactorily
explained.” Id. at 1483. Accordingly, the district court
reinstated Vastola’s conviction, sentencing him to 17 years
imprisonment.
On appeal from the order reinstating his conviction, we
held that the district court had not abused its discretion by
allowing the government to present evidence supporting its
explanation for the sealing delay. Vastola II], 989 F.2d
1318, 1324-25 (3d Cir. 1993). However, relying on our
earlier decision in United States v. Carson, 969 F.2d 1480
(3d Cir. 1992), we reversed as to the finding that the
government's explanation was. objectively reasonable.
Nonetheless, we remanded this case for further proceedings
because, as we held in Carson, an “unreasonable mistake
of law does not automatically lead to suppression.”
Vastola III, 989 F.2d at 1327. In Vastola III, we discussed
the Carson holding as follows:
The Carson court explained that even though an
attorney's mistake of law is unreasonable, the
government can still show a satisfactory explanation if
“the attorney involved acted as a ‘reasonably prudent’
attorney would to investigate the legal question
involved in a reasonably prudent manner.” 969 F.2d at
1494 ... The case [Carson] then stands for the
proposition: When a_ government attorney's legal
conclusion is found to be’ unreasonable, the
explanation for the delay would still be an objectively
reasonable “mistake of law” if the government can
show that its attorney has adequately researched the
law or has otherwise acted reasonably.
App. 6
Vastola III, 989 F.2d at 1327. Since the district court did
not make a determination whether Assistant United States
Attorney Armenakis (“Armenakis”) acted reasonably under
the circumstances, we remanded for further pyoceedings.
The district court addressed this narrow question of
attorney conduct in its published opinion United States v.
Vastola, 830 F.Supp. 250 (D.N.J. 1993) (“Second Remand’).
The court found that while Armenakis failed to conduct
adequate research, her “reliance on the authoritative advice
ag by her colleagues constituted an adequate substitute
or further reading of the caselaw, and her behavior was
objectively reasonable under the circumstances.” Id., 830
F.Supp. at 256. Finding that the government had offered a
“satisfactory explanation” for the failure to timely seal the
West Long Branch tapes, the court held that the tapes were
properly admitted at trial. Consequently, the court issued
an order reinstating the convictions of Vastola.
Vastola now appeals the district court's findings, arguing
that Armenakis’ conduct was not objectively reasonable
under the circumstances and that suppression of the
surveillance tapes is warranted. For the reasons that follow,
we affirm the findings of the district court.
II.
Standard of Review
We review the district court’s factual findings for clear
error. Vastola II at 1324 (quoting U.S. v. McMillen, 917 F.2d
773. 774 (3d Cir. 1990)). We exercise plenary review over
the district court's legal conclusion that the Assistant
United States Attorney's conduct was “reasonably prudent”
under the circumstances. Id. at 1324.*
2. The Government urges a highly deferential review of all aspects of the
district court's opinion in this case, not just of its findings of fact; it thus
argues we should use the standard of review we use for the Rule 11
determinations of a district court. See Cooter & Gell v. Hartmarx Corp..
496 U.S. 384. 110 S.Ct. 2447 (1990). Because this case involves a
question of the legal standard of reasonable research of a government
attorney in a criminal case, and not just reasonable attorney conduct in
a civil context. we find the suggested standard inappropriate.
Te
App. 7
III.
Analysis
This Court in Vastola III remanded to the district court
on one narrow issue: Did Armenakis, in making an
unreasonable mistake of law, nevertheless conduct herself
reasonably under the circumstances? Vastola III, 989 F.2d
at 1327. The answer is “yes,” if the government can show
that its attorney has adequately researched the law or has
otherwise acted prudently. Id. The burden of proof is on the
government to make this showing. Vastola III, 989 F.2d at
1327.
The relevant facts for this analysis are few in number:
Armenakis studied the statute, outlined it, read its
annotations, and spoke with more experienced attorneys.
Vastola III, 989 F.2d at 1327.
The district court invoked Federal Rule of Civil Procedure
11 jurisprudence to define the “reasonably prudent
attorney.” The district court cited Mary Ann Pensiero, Inc.,
847 F.2d 90, 94 (3d Cir. 1988) for the following Rule 11
standard:
An attorney's actions will be considered objectively
reasonable where, given the existing circumstances,
she undertakes “‘a normally competent level of legal
research’” to support the conclusion she reaches.
3. These findings of fact were established by the district court during the
first remand, United States v. Vastola, 772 F.Supp. 1472. 1480 (D.N.J.
1991). The district court held an evidentiary hearing in 1990. five years
after the relevant conduct occurred. The district court's findings were
acknowledged by the Third Circuit in Vastola III, and relied upon by the
district court during the most recent remand. We are satisfied that they
are not clearly erroneous.
The district court found in Second Remand that these facts provided a
sufficient factual basis to decide the question of reasonable conduct. As
a result, no additional evidence was taken and the district court made
its rulings on these facts alone. We acknowledge that these facts are
adequate for the task at hand and that further inquiry by the district
court would not have produced additional relevant facts.
App. 8
Second Remand, 830 F.Supp. at 254. Under the
circumstances, this standard is helpful in beginning an
analysis of reasonable attorney conduct. The intended goal
of Rule 11 is accountability. It “imposes on counsel a duty
to look before leaping and may be seen as a litigation
version of a familiar railroad crossing admonition to ‘stop,
look, and listen.’” Lieb v. Topstone Indus., Inc., 788 F.2d
151, 157 (3d Cir. 1986). In this case, we are assessing the
reasonableness of Armenakis’ conduct and her duty to
stop, look and listen while conducting a_ wiretap
investigation.‘
The district court found that Armenakis herself had not
adequately researched the law. The court reasoned as
follows:
Armenakis’ research, which consisted of reading and
outlining the statute and reviewing the _ relevant
annotations, was enough to give an average attorney a
basic understanding of the law. However, standing
alone, this limited investigation cannot be considered a
normally competent level of research that a reasonably
prudent attorney would undertake.
Second Remand, 830 F.Supp. at 255. We agree. Given the
serious consequences which follow from the mistaken
application of the Wiretap Act, i.e. suppression, a
reasonable United States attorney should not be satisfied
with a basic understanding of the Act and a summary
review of applicable caselaw. In addition, as the district
court reasoned, “the meaning of a complex statute, such as
the Wiretap Act, is not always readily ascertainable from
just the reading of the text; and the annotations often fail
4.The analogy to Rule 11 has its limits in this context. Some of the
factors relevant to determining whether an attorney has made a
reasonable pre-filing inquiry into the law, (e.g.. whether the position
taken was a good faith effort to extend or modify the law) are not
particularly helpful in determining the reasonableness of a government
attorney's research of the law during an ongoing criminal investigation.
See e.g. Thomas v. Capital Security Services, Inc., 812 F.2d 984, 988 (5th
Cir. 1987); Fed.R-Civ.Proc. 11, Advisony Committee Note: Lingle, supra,
847 F.2d at 95; Schering Corp. v. Vitarine Pharmaceuticals, Inc., 889 F.2d
490, 496 (3d Cir. 1989).
App. 9
to fully reflect how caselaw has interpreted a statutory
provision.” Thus, Armenakis’ research, standing alone,
cannot be considered adequate. The inquiry, therefore,
turns on whether Armenakis otherwise acted prudently.
The district court found that Armenakis acted as a
reasonably prudent attorney, and based its conclusion on
the “interaction between Armenakis’ own research and the
authoritative confirming advice she received from other,
more experienced United States Attorneys.” That is,
Armenakis’ research, standing alone was inadequate. This
coupled with the confirmation of her initial understanding
of the law by more experienced colleagues, however,
convinced the district court that Armenakis acted
reasonably under the circumstances.”
We agree that when an attorney receives confirmation of
legal theories from a number of proper sources, each
consistent with the next, the attorney can act reasonably in
relying on these theories in the course of legal research.
The district court properly found that Armenakis’ limited
book research was inadequate. Moreover, her conversations
with other attorneys, standing alone, were also insufficient.
Carson, 969 F.2d at 1495 (an attorney may not rely merely
on conversations with peers or supervisors concerning
developing area of law where incorrect answer could lead to
suppression of important evidence). However, we believe
that the combined impact of these concurring sources
created a degree of certainty (albeit minimal) which a
5. We do not accept the district court's finding that Roth's view was the
general understanding of the office. The court inferred this from the fact
that Roth was Armenakis’ supervisor during the Video Warehouse
surveillance. and that Roth was the most experienced of any attorney in
the United States Attorney's office in New Jersey with respect to
interceptions. Second Remand, 830 F.Supp. at 256, n.6. We do not think
it necessarily follows that Armenakis spoke to other attorneys with
Roth's view. Since Roth would have counselled her to promptly seal the
tapes after each location. such information might have better informed
Armenakis about proper procedure. App. at 25. Nonetheless. we accept
the finding that she spoke to more experienced colleagues, and that they
confirmed her view of the law. We think it was reasonable for Armenakis
to rely on these colleagues, whether or not Roth's view was the general
understanding of the office.
App. 10
prudent attorney could have accepted in arriving at an
appropriate procedure for sealing.
From a factual standpoint, the caselaw as it exisied at
the time was not inconsistent with a reasonably thorough
review of the relevant annotations.” When Armenakis
conducted her legal research, no “red flags” would have
appeared to warn her about the need to seal the tapes as
the investigation continued but the location of the
surveillance changed. Our review of the relevant
annotations discloses no Third Circuit case which would
have definitively clarified this issue, or even notified
Armenakis of a conflict.’ In fact, cases from other circuits
could have led her in the opposite direction.®
6.Just as we examined Armenakis’ understanding of the law io
determine whether it was objectively reasonable at the time of the delay.
Ojeda Rios, 110 S.Ct. at 1851, we will also examine Armenakis’ conduct
at the time of the delay to determine if it was reasonably prudent
attorney conduct. Cf. Schering Corp.. supra, 889 F.2d at 496 (the
wisdom of hindsight is to be avoided: the attorney's conduct must be
' judged by what was reasonable to believe at the time the pleading.
motion, or other paper was submitted.”)
7. Of the few Third Circuit cases appearing in the relevant portions of the
Federal Digest. only the United States v. Falcone, 505 F.2d 478 (3d Cir.
1974) appears to be even remotely on point. In that case, the court ruled
that the tapes were not sealed in accordance with the statute. However.
there was no explanation of how or why the sealing failed to accord with
the statute. The rule of law in Falcone, later overturned in Ojeda Rios,
was as follows:
all we hold is that where the trial court has found that the integrity
of the tapes is pure, a delay in sealing the tapes is not. in and of
itself, sufficient reason to suppress the evidence obtained therefrom.
We hasten to add that this holding. of course, does not deprecate
the importance of the sealing requirement. Certainly, it should be
complied with in all respects. As this case so aptly demonstrates,
compliance would have avoided considerable uncertainty and delay.
Falcone, 505 F.2d at 484. Instead of clarifying the meaning of 18 U.S.C.
§ 25 18(8). we held that delays in sealing would not result in suppression.
8. See e.g. United States v. Principie, 531 F.2d 1132, 1142, and n. 14
(2nd Cir. 1976), cert. denied, 430 U.S. 905 (1977) (electronic surveillance
order entered 16 days after a prior order regarded as an “extension”
within the meaning of § 2518 because it was considered part of the same
investigation of the same individuals conducting the same criminal
enterprise); United States v. Scafidi, 564 F.2d 633, 641 (2nd Cir. 1977).
cert. denied, 436 U.S. 903 (1978) (where intercept is on same premises
and involves substantially same persons, an extension under those
circumstances requires sealing only at conclusion of whole surveillance).
App. 11
An inquiry into the reasonableness of an attorney's legal
research is necessarily fact and time specific. The court
must take into account not only the particular methodology
employed by the attorney, but also the complexity of the
law at the time in question.” Armenakis’ conduct is far from
a model for others to follow and our ruling is, of course,
limited to the facts and time frame of this case.
With its decision in Ojeda Rios, the Supreme Court
significantly clarified the sealing requirements of the
Wiretap Act and changed the caselaw which we use to help
judge reasonable attorney’ behavior.'° The Court
admonished: “the seal required by § 2518(8)(a) is not just
any seal but a seal that has been obtained immediately
upon the expiration of the underlying surveillance order.”
Ojeda Rios, 110 S.Ct. at 1849 (emphasis in original). Of
additional significance is the clarification of the Wiretap Act
provided by section 2518(11), added to Title III as part of
the Electronic Communications Privacy Act of 1986,
§ 106(d)(3), Pub.L.No. 99-508, 100 Stat. 1848, 1857,
repruuted in 1986 U.S.Code Cong. & Admin.News. This
provision, which authorizes roving surveillance upon a
9. Due to the absence of controlling Third Circuit precedent. we cannot
label Armenakis’ conclusions “patently unmeritorious or frivolous.” Only
when an attorney offers such an implausible view of the law. in the Rule
11 context, would she be subject to sanctions. See Doering v. Union
County Bd. of Chosen Freeholders. 857 F.2d 191. 194 (3d Cir. 1988):
Dura Systems, Inc. v. Rothbury Investments, Ltd., 886 F.2d 551. 556 (3d
Cir. 1989) (Rule 11 evaluation includes question of whether pleading was -
based on plausible view of the law).
10. See Judge Easterbrook’s opinion in Mars Steel Corp. v. Continental
Bank N.A., 880 F.2d 928 (7th Cir. 1989). in which he observed:
A lawyer who founds his suit on Plessy v. Ferguson. 163 U.S. 537,
16 S.Ct. 1138, 41 L.Ed. 256 (1896). has revealed all we need to
know about the reasonableness of the pre-filing inquiry...If the legal
point is obscure. though, even an absurd argument may not be
sanctionable, because a “reasonable” inquiry does not turn up every
dusty statute and precedent. An objectively frivolous legal position
supports an inference that the signer did not do a reasonable
amount of research, but an inference. no matter now impressive. is
no more than an inference.
Mars Steel Corp. v. Continental Bank N.A., 880 F.2d at 932. _
rr
App. 12
showing that the suspect's purpose is to thwart
interception by changing facilities, was passed in 1986 and
plainly discredits arguments based upon the _ so-called
“extension theory.”'' See Vastola Ii, 915 F.2d at 874.
Vastola argues that Carson compels a different result.
The district court cited to Carson for the proposition that
an attorney's reliance on the counsel of more experienced
colleagues can constitute reasonable attorney conduct. See
Second Remand, 830 F.Supp. at 256. In Carson, the
government attorney, Robins, did not immediately seal
wiretap tapes after surveillance ended because he expected
the same surveillance to begin again when the subject
returned from a hospital stay. Robins alleged that, like
Armenakis, he believed at the time that sealing was not
necessary until the entire investigation was completed.
Robins claimed that he asked his supervisor about the
sealing requirements and had (mistakenly) understood his
supervisor to explain that no sealing was required until all
surveillance ended. The Carson Court found that Robins’
legal conclusion regarding sealing was not objectively
reasonable, but it remanded the case to the district court
for consideration of whether Robins’ reliance on what he
thought the supervisor told him was reasonable without
any additional, independent research. The court in Carson
offered the following standards regarding an attorney's
reliance on the counsel of colleagues:
Arguably, a reasonable attorney would not have risked
the exclusion of the tapes, evidence important to his
case, without personally checking the law relating to its
admission. It is not always unreasonable for an
attomey to rely on a reasoned oral opinion of a
supervisor, or even that of a peer with more experience
in the area of law in question. Moreover, an attorney
11. The court in Vastola II referred to the Electronic Communications
and Privacy Act of 1986 in order to make a legal determination, based on
the text of the statute, of the meaning of the Wiretap Act. Since the
amending provision was not passed until after the relevant conduct by
Armenakis, it is evident that by referring to section 2518(11) the court
in Vastola II was not commenting upon the reasonableness of Armenakis’
conduct in 1985. The court in Vastola II] remanded this matter to the
district court for a determination of the reasonableness of her conduct.
App. 13
working under another lawyer on a case could not be
faulted for following instructions, as opposed to advice,
from the person in charge of the case or investigation.
On the other hand, we do not think that a reasonable
attorney can rely on a casual conversation with a peer
or supervisor concerning developing law on a complex,
controversial subject if an incorrect answer is likely to
preclude admission of evidence of vital importance to
the case.
Carson, 969 F.2d at 1495 (emphasis added).
The district court found that, like Robins in Carson,
Armenakis relied on the opinions of her more experienced
colleagues in formulating her opinion. But unlike the
attorney in Carson, Armenakis did more here than merely
rely on these conversations.'* Her understanding of the law
was supplemented by her reading and outlining of the
statute and her review of the relevant annotations at that
time. Armenakis did, in fact, check the law in this case.
And her reading of the law confirmed her understanding
(albeit a misunderstanding) that sealing was only required
at the end of the investigation. Thus, the Carson decision is
authoritative but clearly distinguishable on its facts.
We recognize that the wiretap is a powerful and invasive
law enforcement tool, and that the Wiretap Act was enacted
to establish procedural safeguards which assure that “the
interception is justified and that the information obtained
thereby will not be misused.” Gelbard v. United States, 408
U.S. 41, 47, 92 S.Ct. 2357, 2361 (1972) (citations omitted).
Nonetheless, we hold for the reasons stated that the
combined effect of Armenakis’ conduct at the time in
question was minimally sufficient to meet the standards of
a reasonably prudent attorney.
12.We note that the court in Carson did not decide the question of
whether attorney Robins’ reliance on what he thought his superior told
him without independently checking the law might be reasonable. Thus,
Carson leaves open the possibility than a mere reliance on a superior's
understanding of the law might be reasonable in certain circumstances.
Of course, in this case Armenakis conducted independent research in
addition to her consultation with other. more experienced attorneys in
the office.
App. 14
IV.
Conclusion
For the reasons set forth above, we conclude that the
order of the district court should be affirmed.
App. 15
STAPLETON, Circuit Judge, Dissenting:
If the government's evidence in this case is sufficient to
carry its burden of providing a “satisfactory explanation” for
faiing to comply with the immediate sealing requirement of
the statute, that requirement is reduced to a precatory
entreaty. Because it is clear from Ojeda Rios that Congress
intended something more, I respectfully dissent.
Wire surveillance of the Video Warehouse in West Long
Branch, New Jersey, was authorized on March 15, 1985.
After two extensions, the authority expired on June 13,
1985. The surveillance actually terminated on May 31,
1985. Wire surveillance of Video's new location in Neptune
City, New Jersey, was authorized on June 26, 1985. That
authority ceased and the surveillance was terminated on
July 25, 1985.
Duplicates of 185 reels of tape from the West Long
Branch surveillance were sealed 45 days after that
surveillance ceased and 32 days after the authorization
terminated. When the government realized its mistake, the
originals of these reels of tape were sealed a little over a
month later, on August 19, 1985.
The federal wire surveillance statute, after providing for
court authorized wire surveillances, stipulates the following
with respect to the making and sealing of tape recordings:
The recording of the contents of any wire, oral, or
electronic communication under this subsection shall
be done in such 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. ... 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, oral, or
electronic communication or evidence derived
therefrom under subsection (3) of section 2517.
18 U.S.C. § 2518(8)(a) (emphasis supplied).
App. 16
The tapes from the West Long Branch surveillance are
the ones at issue here. The government has not contended
that a sealing involving a 32 day or longer delay would
constitute an “immediate” sealing. Rather, the government,
in United States v. Vastola, 915 F.2d 865 (3d Cir. 1990),
cert. denied, 498 U.S. 1120 (1991) (*“Vastola IT), advanced
two alternative theories under which there was said to be
no violation of the statute. First, it insisted that there had
been no delay because the order of June 26, 1985,
authorizing surveillance of the Neptune City site, was an
“extension” of the original authorization, and the duty to
seal did not arise until the Neptune City surveillance
terminated. We rejected this argument, concluding:
We could not possibly hold that the Neptune City
interception order was an extension of the West Long
Branch order. Although the government rightly points
out that Rios [United States v. Ojeda Rios, 495 U.S.
257 (1990)] did not decide whether a change in the
location of an _ illegal operation will prevent a
subsequent order covering the new location from being
an extension of a_ previous order, the statute
unambiguously rules out this possibility.
Id. at 874 (footnote omitted).
In support of this conclusion, we referred to the above
quoted portion of the statute and two other sections
requiring that an application for wire surveillance authority
justify the need for surveillance at a specific site:
Section 2518(1)(b)(ii) plainly states that an
application for surveillance order must contain ‘a
particular description of the nature and location of the
facilities from which or the’ place where the
communication is to be intercepted.’ In addition,
section 2518(3)(d) requires a particularized showing of
probable cause that ‘the facilities from which, or the
place where, the wire, oral, or electronic
communications are to be intercepted are being used,
or are about to be used, in the commission of [the]
offense [under investigation]. Based on these two
provisions alone, we would have no difficulty
concluding that Congress intended for interception
App. 17
orders, and their accompanying extensions, to apply
only to surveillances in the particular locations
specified in the applications.
Vastola II, 915 F.2d at 874.' We held, based on the plain
meaning of the text of the statute, that the duty to seal
arises “upon the expiration of the order or extensions
thereof” and that an order authorizing surveillance at
another site is not an extension.”
1.As the majority correctly points out, we also referred to a 1986
Statutory amendment authorizing roving surveillance upon a showing
that the suspect's purpose is to thwart interception by changing
facilities. The “unmistakable inference” to be drawn from. this
amendment, we held, was that the other provisions of the statute
“restricted surveillance to particular locations, regardless of whether the
Same suspects and crimes were involved.” Id. at 875. The above quoted
text leaves no doubt, however, that our conclusion would have been the
same in Vastola II if we had confined our analysis to the text of the
Statute as it existed prior to this amendment when the surveillances in
this case were conducted.
2. During our analysis of the plain meaning of the text in Vastola II, we
pointed out that the Second Circuit case law existing at the time of the
surveillance in this case did not support the view that a new
authorization for surveillance at a different location could constitute an
extension of a prior authorization for another site. We noted and rejected
the government's contention that United States v. Vazquez, 605 F.2d
1269 (2d Cir. 1979), cert. denied, 444 U.S. 981 (1979). stood “for the
proposition that the term, ‘extension,’ encompasses all continuation of
wiretap orders involving the same crimes and substantially the same
people.” 915 F.2d at 874 n. 15. We indicated that “[wle would be hard
pressed to read Vazquez so broadly.” Id. The Vazquez court summarized
the state of the law in the Second Circuit in 1979 as follows:
Therefore, we conclude that the term “extensions,” as used in the
phrase “period of the order. or extensions thereof is to be
understood in a common sense fashion as encompassing all
consecutive continuations of a wiretap order, however designated,
where the surveillance involves the same telephone, the same
premises, the same crimes, and substantially the same persons. See
United States v. Scafidi, supra, 564 F.2d at 641: cf. United States v.
Principie, 531 F.2d 1132, 1142 n. 14 (2d Cir. 1976), cert. denied.
430 U.S. 905 (1977).
Vazquez, 605 F.2d at 1278. It is thus clear that the Court of Appeals for
the Second Circuit does not read its case law in the same way the
majority reads it in footnote 8, supra
App. 18
Having concluded that the duty to seal the West Long
Branch tapes arose no later than June 13, 1985, the date
the authorization for the surveillance of that location
terminated, we turned to the government’s’ second
argument — i.e., its “suggestion that, even if erroneous, the
supervising attorneys’ reasonable belief that the order of
June 26, 1985, extended the original interception order
satisfactorily explains the delay” in sealing the West Long
Branch tapes. Id. at 875. We declined to pass upon this
argument because the government up to that point had
tendered no evidence to the district court concerning the
circumstances of the sealing delay. We remanded to the
district court so that it could exercise its discretion on
whether to reopen the record and allow the government to
offer such evidence.
Between Vastola II and the time this case returned to us
in Vastola III, we had occasion to consider another case in
which a sealing delay had occurred in the context of
sequential surveillance of different sites. United States v.
Carson, 969 F.2d 1480 (3d Cir. 1992). The investigation in
Carson was conducted in 1981 and 1982. An evidentiary
hearing was held by the district court in that case at which
Warren Robins, the attorney who had caused 33 of the
tapes of the first, “Zax”, surveillance to be sealed, testified.
His testimony was summarized as follows:
Roi. s discussed the sealing issue with Stewart, his
supervisor, during the time in December 1981 when
DiGilio was in the hospital. Although Stewart meant
to convey that sealing was required at the end of a
particular order or its extension, Robins understood
him to mean that sealing was required only at the
conclusion of the investigation, rather than at the
end of interception at a particular location. Robins’
misunderstanding of Stewart's advice arose, because
at the time of their discussion the Zax order
{authorizing the first surveillance] constituted the
entire electronic surveillance operation.
As a result, Robins believed that the sealing obligation
for all of the tapes, including the Zax tapes, arose on
E
App. 19
May 12, 1982 when the [second] surveillance was
terminated.
Robins therefore thought that so long as any part of
the “wiretap interception process” was occurring, there
was no requirement to seal—even if a_ particular
wiretap operation which was a part of the investigation
was complete.
Id. at 1493-95.
The district court in Carson concluded “that Robins’ view,
though wrong, was objectively reasonable and_ that,
therefore, the government provided a_ satisfactory
explanation for the delay.” Id. at 1494. We rejected this
conclusion based on Vastola II, explaining:
In reaching this conclusion, the court accepted Robins’
explanation even though it was contrary to the
unambiguous language of the statute. See id. at 494
(quoting Vastola II], 915 F.2d at 874).
We agree with the district court that a reasonable
mistake of Taw can be a satisfactory explanation for
delay, but we also think the district court's findings do
not support its conclusion that Robins’ explanation was
satisfactory. For an explanation to be satisfactory under
Ojeda Rios, it must be objectively reasonable. ... The
government does not, and cannot, argue that an
objective reading of the extant case law might have
caused an objectively reasonable - attorney to take
Robins’ view.
Id. at 1494 (footnote omitted).
Although the government did not maintain that the case
law would have “caused an objectively reasonable attorney
(o take Robins’ view” on February 27, 1982 (when the final
extension of the authority for the first surveillance
lerminated and the duty to seal was _ triggered), the
government in Carson did insist that it had satisfactorily
explained the delay by showing that “it was attributable to
an innocent mistake on Robins’ part in misunderstanding
what Stewart told him.” Id. at 1494. We acknowledged that
App. 20
it was possible for the government to have a “satisfactory
explanation” even though it acted on the basis of an
objectively unreasonable view of the law. We held, however,
that the district court's findings would not support the view
that the delay occurred “without any fault on the
government's part.” Id. at 1494. We observed:
Robins said his conclusion that the _— sealing
requirement was not triggered until all surveillance
ended was based on a misunderstanding of Stewart's
oral advice on the sealing requirements. The district
court made no finding as to whether Robins could have
reasonably understood Stewart as telling him no
sealing was required until all surveillance ended or
whether it was reasonable to rely on what Stewart told
him without any independent research. If a reasonably
prudent lawyer could have interpreted Stewart's
statements as Robins did and, under all the
circumstances, reasonably relied on them without any
independent investigation of the law, Robins’
explanation as to the March 9, 1982 delay would be an
objectively reasonable mistake of law that satisfactorily
explains the government's failure to meet the statute's
requirement of immediate sealing. Affirmative answers
to those two questions of fact are necessary to a
determination that Robins’ mistake of law was
objectively reasonable... .
Id. at 1494.
We ultimately remanded the Carson case to the district
court to determine “whether Robins’ explanation was
satisfactory and objectively reasonable.” Id. at 1501. In
doing so, we made the following cautionary observations
that are very pertinent here:
The circumstances of this case may show that Robins.
had an affirmative duty to do more than rely on the
advice of his superior. Arguably, a reasonable attorney
would not have risked the exclusion of the tapes,
evidence important to his case, without personally
checking the law relating to its admission. It is not
always unreasonable for an attorney to rely on a
reasoned oral opinion of a supervisor, or even that of a
App. 21
peer with more experience in the area of law in
question. Moreover, an attorney working under another
lawyer on a case could not be faulted for following
instructions, as opposed to advice, from the person in
charge of the case or investigation. On the other hand,
we do not think that a reasonable attorney can rely on
a casual conwersation with a peer or supervisor
conceming developing law on a complex, controversial
subject if an incorrect answer is likely to preclude
admission of evidence of vital importance to the case....
Id. at 1495 (emphasis supplied).
Carson, like Ojeda Rios, makes clear that the government
bears the burden of persuading the court that ils
explanation is “satisfactory.”
On remand from Vastola II, the district court allowed the
government to introduce additional evidence concerning the
circumstances of the surveillance and the sealings. Based
on that evidence, the district court concluded that “the
actual reason for the sealing delay was that the government
attorneys in charge of the surveillance believed that sealing
was not required until after the entire investigation.” More
specifically, Assistant United States Attorney Armenakis,
the decision maker in this case, had “formled] the same
mistaken belief held by Attorney Robins in Carson.” United
States v. Vastola, 989 F.2d 1318, 1323 (3d Cir. 1993)
(“Vastola III).
In Vastola III, we, of course, held that Armenakis’ view of
the law was not “objectively reasonable.” Id. at 1327. This
holding was required by Carson and, indeed, was the law of
the case in this proceeding after Vastola II. Those cases
establish that a reasonable attorney who had reviewed the
text of the statute with even a minirnal degree of care could
not have reached the conclusion that Armenakis did.
Since the record supported the finding that Armenakis’
view of the law was the “actual reason” for the sealing
delay, if that view had been objectively reasonable, that
would have ended the matter in the government's favor;
there would have been no occasion to inquire into the
historic facts of how Armenakis reached her conclusion.
This court's conclusion that her view was not objectively
App. 22
reasonable did not end the matter in the defendant's favor,
however, because the government’ contended _ that
Armenakis, even though wrong, acted reasonably under all
the circumstances in reaching her erroneous conclusion.
Relying on Carson, we held that this was a tenable position
for the government to take, but concluded that the district
court had not made the findings necessary to sustain it. We
remanded so that the district court could “determine
whether Armenakis conducted herself reasonably under the
circumstances.” Id. at 1327.
On remand from Vastola III, the parties stipulated that
the existing record was adequate to enable the district
court to make the required findings. That record consisted
of a hearing at which Armenakis and her immediate
supervisor, Thomas Roth, testified. Roth testified that he
recalled no conversation with Armenakis regarding the
sealing of the tapes in this case. While not required under
his understanding of the law in the spring of 1989, if he
had been asked by Armenakis, he would have counseled
that “the more prudent way to do it, and the way [he]
always did it [was to seal] when any particular facility was
terminated.” Appendix at 25.
Armenakis testified that she had had no prior experience
with wire surveillance and that she received no formal
training in that area with respect to this case. Her entire
testimony with respect to how she reached her view of the
law on sealing was as follows:
Q. Did it occur to you to seal the interceptions that
had commenced in March and had ceased at the end of
May at Video Warehouse, One, I'll call it?
Did it occur to you at any point along the way?
A. Well, yes, at some point it did occur to me, yes.
Q. What was your understanding at that time as to
what you were required to do in terms of sealing?
A. My understanding was that when the
investigation was completed that you immediately
sealed whatever tapes had been obtained.
Q. From what did you get that understanding?
App. 23
A. Well, when I began working on the investigation
I studied the statute and several of the annotations. |
spoke with more experienced attorneys in the office on
wiretaps and it was, it was my understanding, which
appeared to be consistent throughout the office. A. 55-
56
Q. Did you speak to Mr. Fettweis during May or
June regarding what your sealing obligations were?
A. I had a conversation with someone. Frankly |
don’t recall who it was. It may have been Mr. Fettweis
because I had asked him questions throughout the
investigation. I did speak with someone concerning the
issue of sealing when the agent raised it. I don’t recall
who it was. A. 88.
ses: 88
Q. You testified that your understanding of the
sealing requirement was based on part on the statute
itself; is that correct?
A. Yes.
@. I would like to show you defendant's exhibit A in
evidence?
MR. WHITE: If I may approach the witness?
THE COURT: Yes.
By Mr. White:
Q. And ask you to look at — do you know what
defendant's exhibit A is?
A. It's a portion of the statute 2518. It may be the
entire statute.
@. Yes, it is the entire statute. A. 89.
sess #
Q. Have you looked at the statute — would you
agree with me that it does not support your
understanding that in 1985, that tapes didn't have to
be sealed until the end of an entire interception where
App. 24
there had been change of premises and the second
series of interceptions was not an extension?
A. I think the answer ts, no, | would not agree with
you. The statute was the same then and it was my
understanding and I truly felt that it was the
interpretation of other assistants that this statute
meant the end of the investigation and that is what I
understood to be the case.
Q. Did you rely on the interpretation of other
assistants for that conclusion?
A. I felt that my beliefs were consistent with those,
those who I went to who had conducted wiretaps, yes.
Q. You relied on, for your conclusion, on what their
perception of the statute was?
A. Not completely, but it but, in part, yes.
Q. You also relied on your own reading of the
statute?
A. Yes and the annotations at the time. I don't recall
exactly. A. 90-91.
Q. I believe your testimony was that Agent Mahoney
notified you that the tape custodian at the F.B.I. had
noticed the change in the numbers and brought that to
his attention?
A. Yes.
Q. You consulted with some people about what you
should do?
A. Yes.
Q. After the consultation, it was indicated to you
you should seal those tapes?
A. That it would probably be better to seal them.
Q. Did anyone — how many people did you consult
with, do you have any idea?
A. No, I don’t recall exactly.
ee
App. 25
Q. Did anybody indicate to you you better get those
sealed?
A. No. A. 99.
The district court concluded that Armenakis “acted
reasonably under the circumstances.” While “reading and
outlining the statute and _ reviewing the relevant
annotations” could not be “considered a_ normally
competent level of research that a reasonably prudent
attorney would undertake,” the district court believed the
“critical aspect in this case |was] the interaction between
Armenakis’ own research and the authoritative confirming
advice she received from other, more experienced United
States Attorneys in her office.” Appendix pp. 10-11.
I would conclude that the record will not support the
district court’s conclusions that Armenakis_§ acted
reasonably under the circumstances and, accordingly, that
the government's explanation is not “satisfactory” as that
term has been interpreted by this court and the Supreme
Court in Ojeda Rios. To hold that this record suffices to
carry the government's burden under Ojeda Rios would
effectively eliminate that burden and would ill serve the
privacy concerns underlying the sealing requirement of the
Statute.
The district court properly considered the extent of
Armenakis’ personal investigation into the law. The degree
of effort she put into that investigation is one factor to be
considered in determining whether she behaved reasonably.
On the other hand, her efforts have to be evaluated in light
of the fact that the text of “the statute unambiguously rules
out” the conclusion she reached, as we noted in Vastola II,
915 F.2d at 874. For this reason, I agree with the district
court that Armenakis’ personal investigation of the legal
issue involved will not support a finding of reasonableness.
Thts leaves Armenakis’ testimony that she consulted
others in the office whose identity she cannot now recall, at
times she cannot now recall, and under circumstances that
she cannot now recall. While I do not fault Armenakis for
being unable to recall in December of 1990 what she did in
the spring of 1985, the Iindefiniteness of her testimony
precludes anyone from determining anything about the
App. 26
circumstances under which she relied upon the advice of
others. One can tell nothing, for example, about what she
told her allegedly more experienced peers as a factual
predicate for the solicited opinion, whether she inquired
over lunch or in a more structured context, whether the
opinions provided by the peers were tendered immediately
off the top of their heads or after reasoned analysis, and
whether or not Armenakis inquired concerning the basis for
their proffered views. The government's evidence simply
does not permit the kind of inquiry we insisted upon in
Carson. As a result, we do not know whether this is a case
involving “a reasoned oral opinion of a ... peer with more
experience,” or a mere “casual conversation.” Carson, 969
F.2d at 1495.
In order for the government's explanation to be
“satisfactory” in a situation like this, a determination that
the advice received by the decision maker from others was
reasonably relied upon requires far more specific support
than the government supplied here. Accordingly, I would
hold that the government did not carry its burden of
demonstrating that Armenakis acted reasonably under all
of the circumstances.
The government has argued throughout the extended
history of this case that the admission of the 185 reels of
West Long Branch surveillance, if error, was harmless
error. It renews that contention before us and suggests that
we should determine that issue without further help from
the trial judge. This suggestion has some appeal because
the parties would understandably like to bring this case to
a close. I would decline, however, to accept this invitation.
As we noted in Vastola II, “if the tapes should have been
suppressed, the extent of the damage to the government's
case could not easily be assessed.” 915 F.2d at 877. The
trial judge, who heard the very extensive evidence against
Mr. Vastola, is in a far better position than we to assess
that damage, and I would solicit his help in doing so.
I would remand with instructions to decide the harmless
error issue and to grant a new trial if that issue Is
determined in Mr. Vastola’s favor.
TT
App. 27
APPENDIX II
Filed February 18, 1993
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 91-5727
UNITED STATES OF AMERICA
¥.
GAETANO VASTOLA,
Appellant
No. 91-5771
UNITED STATES OF AMERICA
V.
ELIAS SAKA, a/K/a “Lew,”
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT
OF NEW JERSEY
(D.C. Criminal Action Nos. 86-00301 and
86-0030 1 -06)
Argued October 27, 1992
Before: BECKER, NYGAARD and
HIGGINBOTHAM, Circuit Judges
App. 28
(Opinion Filed February 18, 1993)
HERALD P. FAHRINGER, ESQ. (Argued)
Lipsitz, Green, Fahringer, Roll,
Salisbury & Cambria
110 East 59th Street
28th Floor
New York, NY 10022
Attorney for Appellant Vastola
BARRY M. FALLICK, ESQ.
BOBBI STERHELM, ESQ. (Argued)
Rochman, Platzer, Fallick & Rosmarin
666 Third Avenue
17th Floor
New York, NY 10017
Attorneys for Appellant Saka
EDNA B. AXELROD, ESQ.
MARION PERCELL, ESQ. (Argued)
Office of United States Attorney
970 Broad Street
Room 502
Newark, NJ 07102
OPINION OF THE COURT
NYGAARD, Circuit Judge.
This appeal concerns the government's
obligation to seal recordings from _ electronic
surveillance and the consequences from failing to
seal under Title II] of the Omnibus Crime Control
and Safe Streets Act of 1968 (Wiretap Act), as
amended, 18 U.S.C. § 2510 et seq. After we
affirmed the judgments of conviction against
Gaetano Vastola and Elias Saka for various
App. 29
racketeering and extortion charges, the Supreme
Court vacated our judgment and remanded for
further proceedings consistent with United States
v. Ojeda Rios, 495 U.S. 257, 110 S.Ct. 1845
(1990), which construed that section of the
Wiretap Act at issue here. On remand, the
judgments of conviction were ultimately reinstated
and Vastola and Saka appeal once more. We must
determine whether under Ojeda Rios the district
court erred when it refused to suppress evidence
adduced from certain electronic surveillance tapes.
The other matter before us is the sufficiency of
the evidence that convicted Vastola under the
Racketeer Influenced and Corrupt Organizations
Act (RICO), 18 U.S.C. § 1962(c). Vastola was
charged with and convicted of conducting the
affairs of an enterprise through a pattern of
racketeering activity, which requires a finding of
two or more predicate racketeering acts. Of the
four charged predicate acts, whieh were the basis
for separate charges, the jury convicted him of
only one. We will examine whether a conviction
under substantive RICO may stand
notwithstanding an acquittal on _ separately
charged offenses constituting three of the four
predicate racketeering acts charged in_ the
indictment. We will dismiss Saka’s appeal because
we lack appellate jurisdiction. We will vacate
Vastola’s judgment of conviction and remand for
further consideration consistent with this opinion.
I.
Before we reach the merits of the arguments, we
first confront a jurisdictional issue. On August 16,
1991, upon a remand from this court's decision in
United States v. Vastola, 915 F.2d 865 (3d Cir.
App. 30
1990) (Vastola IJ, the district court entered the
order Saka appeals from. On September 23, 1991,
Saka filed a notice of appeal with an accompanying
motion to extend the time for filing a notice of
appeal under Fed. R. App. P. 4(b). This notice was
untimely because Saka failed to file it within 10
days. The district court denied both Saka’s motion
to extend time and a subsequent motion to
reconsider. Saka appealed from the order denying
the motion to extend, but sought a voluntary
dismissal of that appeal. The appeal was
dismissed.
Saka concedes that he has not filed a_ timely
notice of appeal, but contends that we retained
jurisdiction when we remanded to the district
court. So, he contends that a notice of appeal was
unnecessary. This is incorrect. After the district
court entered the order appealed from, Saka
needed to notify this court and the government
that he was appealing. We have no power to waive
or extend the time for filing the notice of appeal.
See Fed. R. App. P. 26(b). The timely filing of a
notice of appeal is both jurisdictional and
mandatory. Browder’ v. Director, Dept. of
Corrections, 434 U.S. 257, 264 (1978). Hence, we
lack appellate jurisdiction over Saka’s appeal and
will dismiss it.
Il.
The facts and procedure in Vastola’s appeal are
quite complex, but we will recite them only insofar
as necessary to decide the appeal. For a complete
recitation see United States v. Vastola, 670 F.Supp.
1244 (D.N.J. 1987); United States v. Vastola, 899
F.2d 211 (3d Cir. 1990) (Vastola J).
App. 31
Vastola was indicted along with 20 others in a
114 count indictment charging them with violating
RICO and committing various related offenses
including mail and wire fraud and extortion. The
broad investigative effort included electronic
surveillance authorized under the Wiretap Act.
That statute regulates the interception and use of
electronic, wire and oral communications.
Congress intended the Wiretap Act to ensure that
evidence obtained from electronic surveillance will
not be altered, edited, or otherwise tampered with.
Integral to this goal is the sealing requirement.
The Wiretap Act provides: “Immediately upon the
expiration of the period of the order [authorizing
wiretap], or extensions thereof, such recordings
shall be made available to the judge issuing such
order and sealed under his directions.” 18 U.S.C.
§ 2518(8)(a) (emphasis added). We have construed
“immediately” to mean as soon as administratively
practical. To qualify as an “extension” of a prior
order, the order must, among other things,
authorize surveillance on the same subject, at the
same location, and regarding the same matters as
the original order. Thus, tapes must be sealed as
soon as practical after an order expires unless the
surveillance of the same premises is continuing
under an extension, or the tapes will be
suppressed.
This case arose because the government failed
to seal the tapes promptly. On March 15, 1985,
the district court authorized the interception of
oral and wire communications at the Video
Warehouse in West Long Branch, New Jersey, the
headquarters of the racketeering enterprise.
Surveillance there stopped on May 31, when the
business was moved from West Long Branch to
App. 32
Neptune City, New Jersey; but the extension order
did not expire until June 13. The government did
not immediately present the tapes for sealing as
required by the Wiretap Act. Instead, on June 26,
the district court authorized surveillance of the
Neptune City premises. This was a new order and
did not extend the West Long Branch order. On
July 15, while the Neptune City surveillance was
continuing, the government sealed 183 tapes from
the West Long Branch surveillance. These tapes
were not timely sealed; they should have been
sealed either immediately after the actual
surveillance (May 31), or after the final extension
order expired (June 13). Vastola II, 915 F.2d at
875 & n.16. Citing this sealing delay, Vastola
made a pretrial motion to suppress the tapes.
The Wiretap Act does not categorically suppress
all untimely sealed tapes, providing instead: “The
presence of the seal . . . or a_ satisfactory
explanation for the absence thereof, shall be a
prerequisite for the use or disclosure of the
contents of any _ wire, oral or electronic
communication or evidence derived therefrom.” 18
U.S.C. § 2518(8)(a) (emphasis added). When the
motion to suppress was decided, the law of this
circuit, under United States v. Falcone, 505 F.2d
478 (3d Cir. 1974), permitted the government to
avoid suppression if it showed that the physical
integrity of the tapes had not been compromised.
The government did not explain the sealing
delay, but instead relied upon Falcone to show
that the tapes had not been altered. Also relying
on Falcone, the district court denied the motion to
suppress. The jury convicted Vastola on, among
other charges, Counts 1, 3, 4 and 9. (We will
App. 33
discuss these counts in greater detail when we
discuss the sufficiency issue.)
With respect to the suppression issue, in Vastola
I we too relied on Falcone and summarily affirmed
the district court's decision not to suppress the
tapes. 899 F.2d at 239 n.33. Vastola then
successfully petitioned the Supreme Court, Vastola
v. United States, — U.S. —, 110 S.Ct. 3233 (1990),
which granted certiorari, vacated our decision and
remanded for consideration in light of United
States v. Ojeda Rios, 495 U.S. 257, 110 S.Ct. 1845
(1990).
In Ojeda Rios there was a delay in sealing tapes
with facts similar to those here. On April 27, 1984,
the government obtained an order authorizing the
interception of communications at Ojeda Rios’
residence in Levittown, Puerto Rico. On July 9,
surveillance stopped because he moved his
residence to El Cortijo, Puerto Rico. An extension
order, however, was effective until July 23. On
July 27, the government obtained a new order to
conduct surveillance at the El Cortijo residence.
That order, after several extensions, expired on
September 24. After an additional surveillance
order covering Ojeda Rios’ car expired on October
10, the government sealed the tapes obtained from
the surveillance of Ojeda Rios’ Levittown and El
Cortijo residences.
The government contended that it could
satisfactorily explain the sealing delay and
demonstrate that the integrity of the tapes had not
been compromised. The Court rejected this
argument, holding that the government must
explain not only why a delay occurred but also
why it is excusable. Id. at 1850. In so doing, it
App. 34
expressly overruled the law of this circuit under
Falcone. Id. at 1850 n.5.
To explain the’ delay, the government
represented that the attorney supervising the
surveillance believed he was not required to seal
the tapes until the end of the investigation. It
relied on two Second Circuit cases. See United
States v. Principie, 531 F.2d 1132 (2d Cir. 1976);
United States v. Scafidi, 564 F.2d 633 (2d Cir.
1977). The government thus argued that the delays
were excusable because they resulted from a good
faith, reasonable misconstruction of the statutory
term “extension.”
After examining the Second Circuit cases, the
Court concluded that “the cases do support the
conclusion that the ‘extension’ theory now pressed
upon us was objectively reasonable at the time of
the delays.” Ojeda Rios, 110 S.Ct. at 1851. It held
that the excuse was reasonable because the
government need not prove that its understanding
of the law was correct, but that its interpretation
was reasonable at the time. Jd. Nonetheless, the
Court stressed that an excuse is not satisfactory
unless it was relied on to explain the sealing delay.
Id. Justices O'Connor and Blackmun concurred
separately to emphasize this point; they joined the
majority with the understanding that the excuse,
albeit reasonable, “must also reflect the actual
reason for the delay.” Id. at 1851-52.
In Vastola II we considered this case in light of
Ojeda Rios. The government advanced several
arguments why the tapes’ should not be
suppressed. It first contended that there was no
sealing delay at all because the order authorizing
surveillance at the Neptune City business extended
the original authorization for the West Long
App. 35
Branch surveillance. The practical import of this
argument is that the obligation to seal the West
Long, Branch tapes did not arise until the end of
the Neptune City surveillance. We rejected this
view as “the statute unambiguously rules out this
possibility.” 915 F.2d at 874. Thus, the tapes
obtained from the West Long Branch premises
should have been sealed either after the actual
surveillance of those premises or after the
expiration of the final extension order. Id. at 875
& n.16.
The government then tried to furnish a
satisfactory explanation for the delay by arguing
that even if the Neptune City order was not an
extension of the West Long Branch order, the
supervising attorneys reasonably believed based on
a reading of the extant law that the sealing
obligation arose at the conclusion of the entire
investigation. In the alternative, the government
argued that we should remand to the district court
for further proceedings to determine the actual
reasons for the sealing delay.
We rejected the suggestion that the government
satisfactorily explained the delay. The record was
insufficient to show that the proffered explanation
was the actual reason for the delay. While it was
possible that the government offered no
explanation for the delay because it had none, it
was equally possible that the government assumed
that Falcone required it to demonstrate only the
integrity of the tapes to defeat suppression. We
thus concluded that the district court in the first
instance should decide whether the government
should be permitted to offer an explanation, and
if so, to determine whether the explanation is
satisfactory. Id. at 876. We analogized the first
App. 36
inquiry to that involved in reopening a case. As
guidance for the district court we cited United
States v. Blankenship, 775 F.2d 735, 740-41 (6th
Cir. -1985). We emphasized that the government
must prove the actual reason for the sealing delay
rather than an excuse for some ulterior purpose
or administrative bungle.
After first considering the Blankenship factors on
remand, the district court allowed the government
an opportunity to present evidence showing the
reasons for the delay. United States v. Vastola, 772
F.Supp. 1472, 1477-78 (D.N.J. 1991). The court
found that the actual reason for the sealing delay
was that the government attorneys in charge of
the surveillance believed that sealing was not
required until after the entire investigation. Id. at
1481. It then concluded that the explanation for
the sealing delay was objectively reasonable,
noting that the Ojeda Rios Court found a similar
explanation reasonable. Id. at 1482-83. It therefore
reinstated Vastola’s conviction and sentenced him.
Vastola appeals again, contending that the district
court erred by refusing to suppress the tapes and
that the evidence is insufficient to convict him on
Count 1.
ll.
We consider as a threshold matter whether the
district court on remand abused its discretion by
allowing the government to proffer a
post-conviction explanation for the sealing delay.
See Vastola I], 915 F.2d at 876; Untted States v.
Carson, 969 F.2d 1480, 1487 (3d Cir. 1992). We
must then consider whether the explanation
proffered is satisfactory under the Wiretap Act. We
review the district court's factual findings for clear
App. 37
error. United States v. McMillen, 917 F.2d 773, 774
(3d Cir. 1990). We exercise plenary review over its
legal conclusion that the explanation was
objectively reasonable. Carson, 969 F.2d at 1487.
A.
The district court permitted the government on
remand to explain the sealing delay. Vastola first
contends that the court had no authority to allow
the government to proffer a post-conviction
explanation. He points to section 2818(8)(a), which
provides: “The presence of the seal provided for by
this section, or a satisfactory explanation for the
absence thereof, shall be a prerequisite for the use
or disclosure of the contents of any [wiretap
evidence].” (Emphasis added.) The statute's plain
language, the argument goes, requires’. the
government to proffer a satisfactory explanation
before the tapes are admitted into evidence and
not after they have been used to obtain a
conviction. Whatever merit this argument may
have had, our case law clearly holds that the
district court has the discretion to allow the
government to offer a post-conviction explanation
where no explanation had been given before.
Carson, 969 F.2d at 1493, Vastola II, 915 F.2d at
875.
Second, Vastola contends that Ofeda_ Rios
erecludes the district court from permitting the
government to offer a post-conviction explanation
for the sealing delay. We acknowledge, as we did
in Vastola II, that the circumstances here differ
from Ojeda Rtos. The government there offered a
reason for the delay before the evidence was
admitted (though a question remained as_ to
whether the proffered explanation at trial was the
App. 38
Same one determined to be reasonable on appeal).
The government here offered no explanation,
choosing instead to rely on Falcone.
We distinguished Ojeda Rios on the basis that
it arose under Second Circuit law, which required
the government to satisfactorily explain the sealing
delay at trial. See United States v. Gigante, 538
F.2d 502, 505 (2d Cir. 1976). Third Circuit law,
however, required only that the government show
that the tapes had not been altered. The
significance of this is that the district court might
“conclude that it would not fairly characterize any
reliance the government may have placed on
Falcone as unreaso@able.” Vastola IJ, 915 F.2d at
875-76.
Last, Vastola contends that the district court
abused its discretion because Falcone did not
eliminate the need to explain sealing delays. He
further contends that since the government chose
to rely on Falcone at trial, it is judicially estopped
from asserting another explanation. Neither
argument has merit. We held in Falcone that
“where the trial court has found that the integrity
of the tapes is pure, a delay in sealing the tapes
is not, in and of itself, sufficient reason to
suppress the evidence obtained therefrom.” 505
F.2d at 484. Since we upheld the district court's
original decision not to suppress the tapes based
on a demonstration of their integrity, Vastola I,
899 F.2d at 239 n.33, the government correctly
construed Falcone to eliminate the need to explain.
Moreover, the government could have “assumed
that it could defeat the suppression motion by
demonstrating the integrity of the tapes and thus
did not find it necessary to introduce evidence on
this point.” Vastola IJ, 915 F.2d at 876. The
App. 39
judicial estoppel doctrine seeks to prevent a party
from playing fast and loose with courts by
asserting contradictory positions; it does not
preclude a party from later asserting a position it
could have pressed but did not because our case
law provided that party with a better argument.
Cf. Scarano v. Central R.R. Co., 203 F.2d 510, 513
(3d Cir. 1953).
Where the government offers a different reason
for a delay than it did at the original suppression
hearing, without some reasonable explanation for
the shifting position the district court abuses its
discretion if it considers the second explanation.
Carson, 969 F.2d at 1496-97. That is not the case
here, however. The government offered no
explanation at the suppression hearing, choosing
instead to rely, understandably, on Falcone. We
directed the district court to consider the issue
with respect to the factors enunciated in
Blankenship. Vastola II, 915 F.2d at 876. The
critical inquiry then focuses on the prejudice to
the opposing party. See Blankenship, 775 F.2d at
741.
Vastola contends that he has been prejudiced
because the passage of time and the concomitant
fading of memories will not only present the risk
of obscuring the true reason for the delay but also
give the government an opportunity to temper its
explanations according to the dictates of Ojeda
Rios and Vastola IJ. Be that as it may, any
prejudice caused by elapsed time is suffered by
the government for it bears the burden of showing
the actual reason for the delay The risk associated
with elapsed time is no reason to conclude that
the district court abused ts discretion. The
government, rather than Vastola, must explain to
App. 40
the court's satisfaction that its proffered reason
was the actual reason for the delay. Vastola II, 915
F.2d at 876.
The district court relied on United States v.
Gallagher, 751 F.Supp. 481 (D.N.J. 1990), which
considered this issue under similar circumstances.
The court noted that the Gallagher’ court
concluded that the proffer of a belated explanation
would not prejudice the defendants’ case. Vastola,
772 F.Supp. at 1477. It opined that to prohibit the
government from giving an explanation would be
grossly unfair as Falcone did not require it. Id.
Although we vacated and remanded Gallagher in
Carson, 969 F.2d at 1501, we did so- because the
district court did not properly analyze the legal
sufficiency of the explanation, not because it
allowed the government to give a_ belated
explanation. The district court here was within its
discretion to rely on Gallagher and has sufficiently
explained why it permitted the government to
proffer an explanation. We hold that the district
court did not abuse its discretion by allowing the
government to do so.
B.
We next consider whether the explanation given
was satisfactory under the Wiretap Act and Ojeda
Rios. This inquiry is two-pronged: first, whether
the proffered explanation was the actual reason for
the delay; second, whether it is objectively
reasonable. The Assistant United States Attorney
primarily responsible for the surveillance, Diana
Armenakis, testified at the evidentiary hearing. The
gist of her testimony was that she believed that
the Wiretap Act required sealing only after the
entire investigation. The district court credited her
App. 41
testimony. Vastola, 772 F.Supp. at 1481. Vastola
concedes on appeal that the district court's finding
as to the actual reason for the delay is not clearly
erroneous. So we need not belabor this point.
The heart of this matter is whether the
government's explanation is objectively reasonable.
Vastola contends that the test of an explanation’s
legal sufficiency should be whether a government
attorney exercising a degree of care could have
reasonably arrived at the misunderstanding: that
is, the “inquiry into the circumstances
Surrounding a person's conduct goes directly to the
objective reasonableness of that conduct.” Reply
Br. 9 (emphasis in original). Vastola contends that
the government attorneys failed to exercise this
degree of care. The government, however, contends
that an attorney's conduct is irrelevant. Rather,
the explanation, it emphasizes, must _ be
reasonable. So, if a reasonable attorney could have
formed the same legal conclusion, it argues that
the explanation is reasonable and therefore the
delay is excusable.
While this appeal was pending, we decided
United States v. Carson, 969 F.2d 1480 (3d Cir.
1992), which addressed similar issues also in light
of Ojeda Rios. In Carson several orders authorizing
surveillance expired before the government
obtained orders purporting to extend them. This
resulted in some gaps between the expiration date
of one order and the entry of a new order. Since
the statute requires tapes be sealed “immediately
upon the expiration of the period of the order, or
extensions thereof,” we considered whether an
order to extend surveillance needs to be entered
before the prior order expires to qualify as an
“extension.” We held that a new order is an
App. 42
extension if it was “obtained as soon as
administratively practical or any delay is
satisfactorily explained, Le., is shown to have
occurred without fault or bad faith on the part of
the government.” Id. at 1488. Applying this test,
several sets of tapes were untimely sealed. Only
two sets are pertinent here, the “205 Zax tapes”
and the “33 Zax tapes.”
As to the 205 Zax tapes, we concluded that an
order dated December 21 was not an extension of
one that expired December 3. These tapes should
have been sealed as soon as practical after
December 3, but were not sealed until December
18. We held that this fourteen day delay was too
long to say that the tapes were “immediately”
sealed.
The government explained at the evidentiary
hearing that the supervising attorney, Robert
Stewart, erroneously believed that a time gap of
up to thirty days between the expiration of an
order and the entry of the new order did not
preclude the latter from being an_ extension.
Although Stewart believed a thirty-day gap was
permissible, he sealed the 205 Zax tapes on
December 18 as a precautionary measure. The
district court credited the truth of his explanation
and concluded that it was reasonable. Gallagher,
751 F.Supp. at 494.
After considering the explanation in light of
Ojeda Rios, we held that the district court did not
err by refusing to suppress these tapes. Stewart
read the statute and the extant case law. Since
the Wiretap Act limits the life of an order to thirty
days, Stewart chose thirty days as the outer limit
for a gap. He started the sealing procedure shortly
after ten days had expired and secured the
App. 43
extension well within his thirty day benchmark.
“He was mistaken, but Ojeda Rios makes it clear
that pre-Ojeda Rios mistakes of law regarding
when sealing is required will not be grounds for
suppression.” Carson, 969 F.2d at 1493. Thus, the
tapes were properly admitted.
As to the 33 Zax tapes, we observed that the
district court assumed that an order dated March
9 was not an extension of one that expired
February 27 (a ten-day delay). Id. at 1493. See
Gallagher, 751 F.Supp. at 494. We remanded to
the district court to determine in the first instance
the threshold issue of whether the government
sealed the tapes as soon as practical, for if it did
“their admission will have been proper.” 969 F.2d
at 1496. In the event that the district court were
to find a delay, however, we gave some words of
guidance as to the _ reasonabieness of _ the
government's explanation.
The government explained at the evidentiary
hearing that Warren Robins, who had assumed the
sealing responsibilities from Stewart as to these 33
Zax tapes, had discussed the sealing issue with
Stewart. In their conversation, Stewart meant to
convey that sealing was required at the end of a
particular order or its extension, but Robins
understood him to mean that sealing was required
only at the conclusion of the entire investigation,
rather than at the end of interception at a
particular location. “The district court noted that
the Supreme Court had accepted a_ similar
rationale in Ojeda Rios, subject only to determine
on remand that the reason the government
advanced in Ojeda Rios at the appellate level was
not a new justification.” Id. at 1494. Accordingly,
App. 44
it held that the explanation was reasonable.
Gallagher, 751 F.Supp. at 495.
We agreed with the district court that a
reasonable mistake of law can be a satisfactory
explanation for a delay, but opined that its
findings failed to support its conclusion. We held:
“The government does not, and cannot, argue that
an objective reading of the extant case law might
have caused an objectively reasonable attorney to
take Robins’ view” that sealing was required only
after the investigation had concluded. 969 F.2d at
1494.
It was suggested at oral argument that this
holding is at odds with Ojeda Rios. The
government there explained that the attorney
supervising the surveillance believed he was not
required to seal the tapes until the end of the
investigation or a meaningful hiatus. The Supreme
Court held that this belief, albeit mistaken, was
reasonable and cited United States v. Principie, 531
F.2d 1132 (2d Cir. 1976). In Principie, similar to
the case here, electronic surveillance was ordered
at different premises, and at least sixteen days
after a prior order expired. The Court of Appeals
for the Second Circuit held that that order was an
extension within the meaning of section 2518
because it “was clearly part of the same
investigation of the same individuals conducting
the same criminal enterprise.” Id. at 1142 & n.14.
The Supreme Court held that Principie supported
the government's conclusion that sealing was not
required until after the investigation or a
_meaningful hiatus. Ojeda Rios, 110 S.Ct. at 1851.
Although Ojeda Rios and Principie suggest that
the explanations proffered in Carson and here are
reasonable, we are not free to conduct an
App. 45
unbridled analysis. While Assistant United States
Attorney Armenakis studied the statute, outlined
it, read its annotations, and spoke with more
experienced attorneys, Vastola, 772 F.Supp. at
1480, she did form the same mistaken belief held
by Attorney Robins in Carson (who did none of
these things and instead relied on the casual
conversation with a superior). She believed that
sealing was required only after the investigation,
and Carson held that this explanation was not
objectively reasonable. We are forced to conclude
the same. This notwithstanding, Carson also held
that an unreasonable mistake of law does not
automatically lead to suppression.
The Carson court explained that even though an
attorney's mistake of law is unreasonable, the
government can still show a_— satisfactory
explanation if “the attorney involved acted as a
‘reasonably prudent’ attorney would to investigate
the legal question involved in a reasonably prudent
manner.” 969 F.2d at 1494. Under the
circumstances in Carson, if a prudent lawyer
reasonably relied on what Robins perceived to be
Stewart's advice without any independent
investigation of the law, Robins’ explanation as to
the delay “would be an objectively reasonable
mistake of law that satisfactorily explains the
government's failure to meet the _— statute's
requirement of immediate sealing.” Id. The case
then stands for this proposition: When a
government attorney's legal conclusion is found to
be unreasonable, the explanation for the delay
would still be an objectively reasonable “mistake
of law” if the government can show that its
attorney has adequately researched the law or has
otherwise acted reasonably.
App. 46
Since the district court did not determine
whether Armenakis conducted herself reasonably
under the circumstances, we must remand for
further proceedings, which may include a scrutiny
for harmless error.!
1. Judge Nygaard believes that Carson was wrongly decided
for two reasons. First, the proffered explanation in Carson was
objectively reasonable. Ojeda Rios, 110 S.Ct. at 1851; Principie,
531 F.2d at 1142. Second, when the Carson court remanded
to consider Robins’ conduct after concluding that his view of
the law was unreasonable, it essentially gave the government
a second bite at the apple. While an attorney's conduct may
be relevant in some circumstances, it is irrelevant under Ojeda
Rtos when the delay is attributable to a mistaken belief about
the extant law. :
When there has been a misunderstanding of the law, Ojeda
Rios makes clear that the government's “interpretation |of the
law] was objectively reasonable at the time.” 110 S.Ct. at 1845
(emphasis added). In other words, the explanation must be
satisfactory under the Wiretap Act. After we are satisfied that
the actual reason for the delay was the mistaken view of the
law, nothing in the Wiretap Act or Ojeda Rios requires that
we inquire into the attorney's conduct. It matters not whether
the mistaken belief was formed after conducting an
independent, exhaustive research on the law of wiretapping or
after being told by another attorney in a casual conversation.
This does not mean that there are no situations where we
should inquire into the government's conduct. When there are
delays in sealing, they can be attributed to three general
reasons: first, the government acted in bad faith or sought a
tactical advantage; second, it misconstrued the law; third,
administrative necessity, mistake, obstacle or other
unexpected circumstances arose. The first explanation is, of
course, inexcusable. “A satisfactory explanation is usually
based on a mistaken view of the law on what triggers sealing.
but on occasion it can be supplied by an_ extraneous
unforeseen emergent situation.” Carson, 969 F.2d at 1487
App. 47
IV.
Vastola was ultimately convicted on four counts
of a redacted superseding indictment: Count 1,
conducting the affairs of an enterprise through a
pattern of racketeering activity violating the
Racketeer Influenced and Corrupt Organization Act
(RICO), 18 U.S.C. § 1962(c); Count 3, conspiracy
(citations omitted). The second explanation, a mistake of law,
is what Ojeda Rios addressed. The inquiry in such cases
should be governed by Ojeda Rios.
Where there has been a delay due to administrative
necessity, mistake, obstacle or other unexpected
circumstances, the inquiry focuses on _ the surrounding
circumstances as they determine whether the explanation was
reasonable and therefore excusable. See United States v. Mora,
821 F.2d 860 (Ist Cir. 1987). This would entail a scrutiny of
the attorney's conduct. So, for example, the government has
a satisfactory explanation if the delay was attributable to a
lack or diversion of resources, the caseload, or an attorney's
health problems. See United States v. Massino, 784 F.2d 153
(2d Cir. 1986); United States v. McGrath, 622 F.2d 36 (2d Cir.
1980).
The district court has already determined that the
government's explanation was the actual reason for the delay.
It found that Armenakis consulted the statute, its annotations
and her colleagues and that based upon this research she
concluded that the Wiretap Act required sealing only after the
entire investigation. If we are satisfied that she actually
believed this, we should not consider how much she looked
at the law, but should consider instead whether a reasonable
attorney could have construed the law as she did. We should
have stopped here in Carson (in which case Carson would still
have been wrongly decided since under Ojeda Rios and
Principie the mistake of law was reasonable). Instead, however,
the Carson court proceeded further to inquire into the
attorney's conduct.
App. 48
to conduct a RICO enterprise in Violation of 18
U.S.C. § 1962(d); Count 4, conspiracy to collect an
extension of credit by extortionate means in
violation of 18 U.S.C. § 894; and Count Q,
conspiracy to affect commerce by extortion in
violation of the Hobbs Act, 18 U.S.C. § 1951.
A conviction under Count 1 requires, among
other things, finding a “pattern of racketeering
activity,” which RICO defines as “at least two acts
of racketeering activity.” 18 U.S.C. § 1961(5). See
Vastola I, 899 F.2d at 222 & n.13. The indictment
listed these four racketeering acts (each of which
comprised of one or more of the offenses charged
in the non-RICO counts):
1. Predicate Act One (the “MCA _ extortion
conspiracy”) constitutes Counts 4, 5, 9, 10 —
use and conspiracy to use extortionate means to
collect extension of credit;
2. Predicate Act Two constitutes Counts 6 and
7 — conspiracy to make extortionate loans and
to use extortionate means to collect loans;
3. Predicate Act Three constitutes Count 11 —
making an extortionate loan to Daniel Zack;
We dealt with a special situation in Carson, one not likely
to arise frequently. The circumstances here fit squarely into
what the Carson court identified as “usually” arising under;
Armenakis made a mistake of law. In this case, the inquiry
should be simply whether Armenakis' “interpretation |of the
law] was objectively reasonable at the time.” Ojeda Rios, 110
S.Ct. at 1845 (emphasis added). Since the Carson court says
that her explanation is unreasonable, and since I reluctantly
agree that the court requires a two-step inquiry first into the
reasonableness of the explanation and then into the conduct,
we must remand for findings as to the latter.
App. 49
4. Predicate Act Four constitutes Counts 24 and
26 — fraudulent concealment and transfer of
property of Dispodype, Inc., in violation of
bankruptcy laws.
As noted, Vastola was convicted on Counts 4 and
9 of the MCA extortion conspiracy, the first
racketeering act. Of the counts supporting the
three remaining racketeering acts, the jury was
either deadlocked or acquitted Vastola of all
offenses underlying the remaining three
racketeering acts (deadlock on Counts 6 and 11
and acquittal on Counts 7, 24 and 26). Further,
no special verdict regarding the racketeering acts
was obtained for Count 1. Thus, the jury’s verdict
did not facially support a second racketeering act.
When a jury delivers an inconsistent verdict in
a compound offense, there are two independent
questions: whether the inconsistent verdict
mandates an acquittal; and whether the evidence
is sufficient to support a conviction for the
compound offense.
Vastola moved the district court to set aside the
jury's guilty verdict on Count 1 because the jury's
verdict was inconsistent and showed that the jury
could not possibly have found that he committed
the requisite two or more racketeering acts. The
court agreed and entered a judgment of acquittal.
The government appealed this decision.
In Vastola I we affirmed Vastola’s convictions for
the most part, but reversed the order setting aside
the verdict on Count 1. We acknowledged that
there was no question that the verdict was
inconsistent. Where, however, the problem is one
of inconsistent verdicts, we noted that United
States v. Powell, 469 U.S. 57, 105 S.Ct. 471
App. 50
(1984), governs. That case held that jury verdicts
cannot be set aside solely on the ground of
inconsistency. As the Powell Court explained,
“Whether presented as an insufficient evidence
argument, or as an argument that the acquittal
on the predicate offense should collaterally estop
the Government on the compound offense, the
argument necessarily assumes that the acquittal
on the predicate offense was proper — the one that
the jury ‘really meant.” 105 S.Ct. at 478. As in
Powell, we noted that the jury's verdict could mean
that the jury believed that Vastola did not commit
the RICO offense, or it could mean that the jury
really did find a RICO violation yet acquitted him
of the predicate offenses out of lenity or some
improper motivation. 899 F.2d at 225.
We held that the jury's verdict of guilty on Count
1 presupposes that it found the requisite two
racketeering acts regardless of whether that
presupposition is inconsistent with its verdict on
other counts. Id. at 222-25. We remanded for entry
of judgment of conviction on Count 1 and _ for
resentencing, noting that Vastola is free to appeal
from the reinstatement of judgment and sentence,
except for issues already decided against him. Id.
at 225. Since the sole basis for the district court's
judgment of acquittal was the _ inconsistent
verdicts, we expressed no opinion as to whether
the evidence of Vastola’s participation in the
racketeering acts was sufficient. Vastola now
appeals his conviction on Count | on that ground.
Vastola contends that, aside from the MCA
extortion conspiracy constituting one predicate act,
we cannot determine wi:ich other racketeering act
the jury relied on to reach its verdict. And since
we cannot determine this, he further contends that
App. 51
we must find sufficient evidence to prove all three
of the other acts.
In United States v. Brown, 583 F.2d 659 (3d Cir.
1978), a jury convicted the defendant of four
substantive offenses and a RICO’ conspiracy
offense whose racketeering acts constituted the
four substantive offenses. We then overturned two
of convictions for the substantive offenses. Since
we had no way of knowing which of the two
racketeering acts the jury relied on to convict the
defendant on the conspiracy charge, we overturned
that charge as well, regardless of the possibility
that the jury could have reached its verdict based
on a guilty finding on two of the valid predicate
offenses. Id. at 670. We specifically relied on these
two cases to support our conclusion: United States
v. Dansker, 537 F.2d 40, 51-52 (3d Cir. 1976);
United States v. Tarnopol, 561 F.2d 466, 474-75
(3d Cir. 1977).
In United States v. Riccobene, 709 F.2d 214 (3d
Cir. 1983), we construed Brown as standing for
the proposition thac “if a defendant is charged with
multiple predicate offenses, the evidence must be
sufficient to prove all of them if the court cannot
determine which specific offenses the jury relied
upon in reaching its verdict.” Id. at 227. We,
however, did not construe Brown to require a
reversal of a defendant's conviction when there is
sufficient evidence from which the jury could have
concluded that he did commit every predicate
offense charged against him. Id. at 228. Nor did
we construe it to require a reversal when we can
determine that the jury did not rely on _ the
challenged predicate offense in reaching its verdict
on the RICO charge. Id.
App. 52
Because the Riccobene jury returned an acquittal
on one of the offenses constituting a predicate
offense, that verdict was a functional equivalent of
a special interrogatory. The Riccobene_ court
reasoned that in Brown the guilty verdicts on all
the substantive charges indicated that the jury
might have relied on those charges as predicate
offenses when considering the RICO claim,
whereas in Riccobene there was no reason to
believe that the jury returned inconsistent verdicts
by relying on the charge underlying the acquittal
as a basis for the RICO verdict. Id. at 229-30. It
thus upheld the conspiracy conviction.
Since Brown and Riccobene, the Supreme Court
decided Griffin v. United States, — U.S. —, 112
S.Ct. 466 (1991). The defendant there was charged
with conspiracy to defraud the Internal Revenue
Service and the Drug Enforcement Administration.
The government conceded that there was
insufficient evidence to defraud the DEA. The trial
court instructed the jury in a manner that would
allow the jury to return a guilty verdict if it found
the defendant guilty of either one of two fraudulent
objects. The jury returned a general verdict of
guilty on the conspiracy charge. The issue was
whether a_- general guilty verdict on a
multiple-object conspiracy charge must be set
aside if the evidence is inadequate to support the
conviction as to one of the objects.
Citing Turner v. United States, 396 U.S. 398, 90
S.Ct. 642 (1970), the Court opined that when a
jury returns a general guilty verdict on an
indictment charging several acts’ in_ the
conjunctive, the verdict stands if the evidence its
sufficient with respect to any one of the acts
charged — even though there is no assurance that
App. 53
a valid ground, rather than an invalid one, was
actually the basis for the jury's action. Id. at 469,
473. The Court then distinguished between cases
where a_ basis of conviction was_ either
unconstitutional or otherwise illegal and where a
basis of conviction was merely unsupported by
sufficient evidence. Id. at 470-73. It observed that
Griffin “cite|[d] no case, and we are aware of none,
in which we have set aside a general verdict
because one of the possible bases of conviction
was neither unconstitutional as in [Stromberg v.
Califomnia, 283 U.S. 359, 51 S.Ct. 532 (1931)], nor
even illegal as in [Yates v. United States, 354 U.S.
298, 77 S.ct. 1064 (1957)], but merely
unsupported by sufficient evidence.” Id. at 472.
Griffin tried to distinguish Turner by asserting
that the Court had not yet applied Turner's general
rule to multiple-act conspiracies. The Court
rejected this distinction and agreed with the
majority of federal courts that have made no
exception to the Turner rule for multiple-object and
multiple-overt act conspiracies. It noted that only
the Third Circuit had adhered to a contrary rule.
Id. at 473 n.2, citing United States v. Tarnopol,
5961 F.2d 466, 474-75 (3d Cir. 1977).
In Tarnopol a jury returned a general verdict of
guilty on a conspiracy charge based upon three
objectives. We found on appeal that there was
insufficient evidence to support one of these
objectives. 561 F.2d at 475. “In this situation, the
verdict of guilty . . . cannot stand if the
indictment was insufficient in law in that any one
of the three objectives of the conspiracy did not
constitute a crime or if the evidence was
insufficient to sustain a finding by the jury that
any one of these activities had been engaged in.”
pa
App. 54
Id. at 474, citing Dansker, 537 F.2d at 51. To the
extent that Brown and _ Riccobene relied on
Tarnopol and Dansker, it is clear that the Supreme
Court has expressly overruled those cases. Griffin,
112 S.Ct. at 473 n.2.
The only distinction between Griffin and _ this
case is the substantive crimes. Whereas Griffin
was charged with conspiracy in which the jury
could properly convict upon a finding of one of the
two objects charged, Vastola was charged with
substantive RICO on Count 1 in which the jury
could properly convict upon a finding of two of the
four predicate acts charged. This distinction,
however, is irrelevant. The rationale of Griffin
directly applies to this case.
Nonetheless, there remains an issue of whether
Griffin and Powell can be applied together. The
decisions in Powell and Vastola I preceded Griffin.
Vastola argues that the application of both Powell
and Griffin would exponentially expand their
underlying presumptions to a level
uncontemplated and would force us to speculate
on the jury's deliberation. To the contrary, we
conclude that what Vastola wants would require
that we speculate about the jury's deliberation,
whether the jury did or did not find the requisite
predicate acts, and that we should not do. See
Powell, 105 S.Ct. at 477.
Where there has been an inconsistent verdict,
the criminal defendant is protected against jury
irrationality and error by aé_e review of the
sufficiency of the evidence. Id. at 478.
“Sufficiency-of-the-evidence review involves
assessment by the courts of whether the evidence
adduced at trial could support any _ rational
determination of guilty beyond a reasonable doubt.
App. 55
This review should be independent of the jury's
determination that evidence on another count was
insufficient.” Id. (emphasis added and citations
omitted).
An inconsistent verdict could have netted a
windfall for the government or for the defendant.
Assume for the moment that the jury believed
Vastola committed three of the predicate acts but
acquitted him on two of the predicate acts out of
lenity or mistake. In such a case, there is no good
reason why Vastola is entitled to an acquittal on
the RICO count as well because the government
failed to prove all the predicate acts or because
the jury improperly acquitted him on two of the
predicate acts. In short, we will not reverse a
conviction based on speculations about the jury's
rational deliberation process. We _ will instead
inquire whether the jury's guilty verdict on Count
1 can be upheld because there is_ sufficient
evidence to support two predicate acts.
The evidence supports Vastola’s convictions
under Counts 4 and 9 relating to the MCA
extortion conspiracy. Vastola I, 899 F.2d at 230.
He cannot argue the legal sufficiency of these
convictions; there is sufficient evidence that
Vastola committed one of the four alleged
racketeering acts. Id. at 225. Our task is to
determine whether there is sufficient evidence
supporting another racketeering act.
The second predicate act listed in the indictment
was a conspiracy to make extortionate loams as
charged in Count 6, and a conspiracy to use
extortion to collect loans as charged in Count 7.
We believe Vastola I makes it clear that there is
sufficient evidence to convict on Count 7. Although
we reversed Vastola’s conviction for insufficient
ll.
*
App. 56
evidence on Count 2 (substantive RICO based on
an unlawful debt collection from Joseph Dwek), we
noted that “the evidence was overwhelming that
Vastola supervised the collection of unlawful debts
by his subordinates within the enterprise.” Id. at
227. Furthermore, in affirming Vastola’s conviction
under Count 3 (conspiracy to conduct a RICO
enterprise), we commented on the evidence linking
Vastola to an unlawful extortionate loan to Dwek.
We opined that Vastola’s own statements tied the
Dwek loan to the RICO enterprise. “There is little
question that Vastola knew the [Dwek] loan was
uniawful and with that knowledge, encouraged
Saka and Brocco to collect it.” Id. at 229.
We conclude that viewing the evidence in light
most favorable to the government, Glasser ov.
United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469
(1942), there is sufficient evidence to support a
conviction under Count 7. As there is sufficient
evidence that Vastola committed the two requisite
racketeering acts, Vastola’s conviction under
Count 1 must stand unless the district court rules
in favor of Vastola on the wiretap issue.
V.
In sum, we hold (1) that we do not have
jurisdiction over Saka’s appeal, (2) that the district
court erred by refusing to suppress tapes without
properly inquiring into whether the government
has proffered a satisfactory explanation under the
Wiretap Act, and (3) that the evidence was
sufficient to convict Vastola of conducting a RICO
enterprise in violation of 18 U.S.C. § 1962(c). We
will dismiss Saka’'s appeal. We will vacate Vastola’s
judgment of conviction and = remand with
instructions to consider the reasonableness of
——
App. 57
Armenakis’ inquiry into the law as to the sealing
of the 183 tapes obtained from the surveillance of
the West Long Branch premises and to consider
whether the error, if any, was harmless.
App. 58
APPENDIX III
Filed October 2, 1990
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 89-5372, 89-5383 and 89-5510
UNITED STATES OF AMERICA,
Appellant in No. 89-5510
v.
GAETANO VASTOLA,
Appellant in No. 89-5372
V.
ELIAS SAKA,
Appellant in No. 89-5383
On Appeal from the United States District Court
for the District of New Jersey
Criminal No. S-86-301 and on
Remand from the Supreme Court, No. 89-1575
Submitted Pursuant to Third Circuit Rule 12(6)
August 29, 1990
BEFORE: GREENBERG, SCIRICA, AND
SEITZ, Circuit Judges.
(Filed October 2, 1990)
Herold Price Fahringer
Diarmuid White
Michael Rosen
Joy Vastola
Lipsitz, Green, Fahringer,
Roll, Schuller & James
seca aie arr ees
App. 59
540 Madison Avenue
New York, New York 10022
Attorneys for Gaetano Vastola
Barry M. Fallick
Rochman, Platzer, Fallick &
Rosmarin
666 Third Avenue, 17th Floor
New York, New York 10017
Attorneys for Elias Saka
Michael Chertoff
United States Attorney
Marion Percell
Assistant United States Attorney
970 Broad Street, Room 502
Newark, New Jersey 07102
Attorneys for the United States of
America
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This case is before us on remand from the Supreme
Court following our decision affirming the convictions of
appellants Gaetano Vastola and Elias Saka for a RICO
conspiracy offense under 18 U.S.C. § 1962(d) and related
extortion offenses under 18 U.S.C. § 894. United States v.
Vastola, 899 F.2d 211 (3d Cir. 1990). In addition, we
affirmed Saka’s convictions for two substantive RICO
offenses under 18 U.S.C. § 1962(c), and for mail, wire,
bankruptcy, and insurance fraud, and reversed Vastola’s
conviction for a substantive RICO offense under 15 U.S.C.
§ 1962(c) due to insufficiency of the evidence regarding
his participation in the collection of an unlawful debt.
App. 60
Finally, in an appeal brought by the government pursuant
to 18 U.S.C. § 3731, we vacated the district court’s grant
of Vastola’s motion for a judgment of acquittal on Count I
of the superceding indictment charging him with a sub-
stantive RICO violation predicated upon a pattern of
racketeering activity and remanded Vastola’s case for
resentencing.
Inasmuch as the history of this rather complex case is
fully set forth in our reported opinion, we will refer the
reader to that opinion for the facts of the case and will
discuss only the circumstances surrounding the govern-
ment’s electronic surveillance of appellants’ activities, as
the questions before us on remand relate to the admis-
sibility of certain wiretap evidence derived from that
surveillance.
I. Background
Appellants Vastola and Saka originally were indicted
along with 19 other defendants in a 114 count indictment
charging a variety of crimes. By opinion and order dated
September 1, 1987, the district court severed the case for
separate trials, United States v. Vastola, 670 F. Supp. 1244,
1261 (D.N.J. 1987), resulting in Vastola and Saka ulti-
mately being jointly tried on a 26 count superceding
indictment naming Vastola in 14 counts and Saka in 25
counts. As pertinent to this remand, the district court, at
the time it ordered the severance, denied a pretrial
motion, joined in by all of the original defendants, which
sought the suppression of all wiretap evidence derived
from the government's electronic surveillance of the
Video Warehouse in West Long Branch, New Jersey. 670
asl
App. 61
F. Supp. at 1282. The evidence obtained from the West
Long Branch surveillance was germane in the govern-
ment’s case against Vastola and Saka, as the Video Ware-
house was the h .adquarters of their racketeering
enterprise.
The circumstances leading to this motion may be
traced to March 15, 1985, when the United States District
Court for the District of New Jersey authorized the inter-
ception of wire and oral communications at the Video
Warehouse in West Long Branch. The parties agree that
the authorization was extended on April 16, 1985, and on
May 14, 1985, with the second extension expiring on June
13, 1985, and that the interception in fact ceased on May
31, 1985, when the co-conspirators moved their operation
to a new location in Neptune City, New Jersey. The sur-
veillance generated approximately 185 reels of tape from
March 15, 1988, to May 31, 1985, but the government did
not immediately present them for judicial sealing, as
required by section 2518 of Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20
(hereinafter Wiretap Act).! Instead, on June 26, 1985, the
1 Section 2518 provides in pertinent part that:
The contents of any wire, oral or electronic commu-
nication intercepted by any means authorized by this
chapter shall, if possible, be recorded on tape or wire
or other comparable device . . . Immediately upon
the expiration of the period of the [wiretap] order, or
extensions thereof, such recordings shall be made avail-
able to the judge issuing such order and sealed under his
directions. Custody of the recordings shall be wherever
the judge orders. . . . The presence of the seal... ora
(Continued on following page)
App. 62
government obtained authorization to engage in elec-
tronic surveillance of Video Warehouse at its new loca-
tion.?
On July 15, 1985, while the order of June 26, 1985,
was still in force, the government presented the 185 reels
of tape from the West Long Branch, New Jersey, surveil-
lance for sealing. App. at 188-89. It was later discovered
that two of the 185 tapes sealed on July 15, 1985, were
duplicate tapes which, due to a clerical error, had been
stored with the original tapes. Accordingly, on August 19,
1986, the originals from which the duplicates had been
made were presented for sealing to the district court
which, finding that the government had provided a “sat-
isfactory explanation for the delay in presenting [the] two
reels for sealing,” ordered them sealed. App. at 200.
In their pretrial motion before severance of Vastola’s
and Saka’s case, the defendants argued that 183 of the
tapes from the West Long Branch surveillance should be
suppressed because of what the defendants perceived to
be a 45 day delay in their sealing, and that the remaining
(Continued from previous page)
satisfactory explanation for the absence thereof, shall be a
prerequisite for the use or disclosure of the contents of
any wire, oral or electronic communication or evidence
derived therefrom under subsection (3) of section
2517.
18 U.S.C. § 2518(8)(a) (emphasis supplied).
2 The Neptune City surveillance was terminated on July
25, 1985, and the surveillance tapes were sealed on August 6,
1985. App. at 191-94. The appellants have not raised any argu-
ments with respect to the 12 day delay in the sealing of the
Neptune City tapes.
App. 63
two tapes which had been misplaced due to the clerical
error should be suppressed because of an 80 day sealing
delay. The 45 days were measured from May 31, 1985,
when the interceptions ceased, until July 15, 1985 when
the tapes were sealed. The district court rejected this
argument on the basis of Untied States v. Falcone, 505 F.2d
478, 484 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct.
1339 (1975), which held that suppression is an appropri-
ate remedy for a delay in sealing wiretap evidence only if
it can be shown that the physical integrity of the tapes
has been compromised. 670 F. Supp. at 1282. Because the
defendants had not challenge their physical integrity, the
district court concluded that suppression of the tapes was
not mandated under the Wiretap Act. Id.4 In our previous
opinion, we summarily affirmed the district court’s deci-
sion on this point, stating only the obvious conclusion
that it “was fully consistent with Falcone.” 899 F.2d at 239
n.33.
After severance of their cases, Vastola and Saka, in a
pretrial motion, raised the additional contention that all
of the wiretap evidence should be suppressed because the
government violated the custody requirements of various
unsealing orders when it sent the tapes to a private
3 As appellants point out in their letter brief to this court,
the sealing delay with respect to the final two reels from the
West Long Branch surveillance was well over a year, as the
original reels were sealed on August 19, 1986, not August 19,
1985. Letter Brief at 3 n.1.
4 In what appears to be a typographical error, the district
court’s opinion indicates that the original interception order
for the Video Warehouse surveillance was entered on March
25, 1985, rather than March 15, 1985. 670 F. Supp. at 1282.
App. 64
individual, Paul Ginsberg, for audio enhancement.® This
issue first surfaced when Vastola and Saka, while prepar-
ing for their joint trial, discovered that Ginsberg had
unsupervised custody of the tapes over a substantial
period while he converted the reels to cassettes and
enhanced their sound quality. App. at 234-36. In argu-
ment before the district court, the government insisted
that it had fully complied with the custody requirements
of the unsealing orders because it had maintained a strict
chain-of-custody of the tapes covering the time they were
in Ginsberg’s possession. App. at 253, 257-58.© The gov-
ernment further argued that, in any event, the tapes
should not be suppressed because the gravamen of
Vastola’s and Saka’s argument was that there had been an
unauthorized disclosure of the contents of the tapes to a
private individual in violation of 18 U.S.C. § 2517, so that
their only available remedy was a civil claim as provided
in section 2520 of the Wiretap Act. App. at 251, 255-57.
Finally, the government suggested that suppression
of the tapes would be unfair because it had them
enhanced at the behest of other defendants charged in the
° In our previous opinion, we discussed at length the
custody requirements of the unsealing orders and we will rely
on that discussion herein. 899 F.2d at 237-39. We have set forth
below certain additional facts regarding the proceedings before
the district court which we did not have reason to address in
our earlier opinion.
© In its Memorandum in Opposition to Defendants’
Motion to Suppress the Tape Evidence, the government con-
ceded that “there was a technical departure” from the unseal-
ing procedure set forth in one of the unsealing orders. App. at
229.
App. 65
original indictment whose cases had been tried before
Vastola’s and Saka’s. In particular, the government
argued that it sent the tapes to Ginsberg because, during
the joint trial of Morris Levy, Dominick Canterino, and
Howard Fisher, defense counsel complained about the
audio quality of copies of the tapes the government had
provided to them.” The attorney for the government,
summarizing his argument on this point, said that:
[I]t isn’t often you have a situation where you
have seven succeeding trials and now that
7 The attorney for the government stated:
For trial purposes, particularly in the Levy triai situa-
tion, there were complaints by defense counsel in the
Levy case that their copies were not very good. The
originals had been unsealed. The originals had been
unsealed for purposes of copying. We used the origi-
nal and we made real [perhaps “reel”] time copies of
that so that we would have the best available copy
for the courtroom, meaning the jury could hear as
clear to what was on that tape as was possible under
modern technology to make. This benefitted the
defendants and in fact was requested by the defen-
dants because they said that they, their copies were
just garbled and they wanted better copies.
Each time they had a complaint about an individual
conversation we took that conversation, we sent it to
Paul Ginsberg under the strict procedures of accoun-
tability. We got it back and we sent the copy back
onto the Levy defendants.
They stated publicly in this courtroom that those
copies were far superior to theirs that, in fact, they
introduced our courtroom copies as a defense
exhibit.
App. at 254-55.
App. 66
you're down the line that the defendants at the
last trial will say, wait a minute, why were those
unsealed and what were the procedures fol-
lowed after the unsealing?
App. at 253.
He added that the tapes were sent to Ginsberg because it
was not feasible in view of their enormous volume for the
government to complete the enhancements in time for
their use by the defendants at trial. App. at 253, 268-69.
In an unreported opinion, the district court denied
suppression as it agreed with the government that the
thrust of appellant’s complaint was predicated on an
unauthorized disclosure of the contents of the tapes for
which suppression was not an available remedy. App. at
292-93. It further opined that the disclosure of the tapes
to Ginsberg was incident to the government's trial prepa-
ration and thus was authorized by section 2517(2) of the
Wiretap Act, which permits a government agent to “use”
the contents of wiretap evidence “to the extent such use
is appropriate to the proper performance of his official
duties.” 18 U.S.C. § 2517(2). Finally, the district court
stated that there was no indication that Vastola and Saka
had been prejudiced by the disclosure of the tapes to
Ginsberg, as it appeared that the physical integrity of the
original tapes was not affected in any manner by the
enhancement process. App. at 294-95. The court indicated
that it might reconsider the appellants’ suppression
motion if it appeared at trial that the integrity of the tapes
had been compromised, but concluded that on the facts
before it, it had no reason to suppress the tapes. Id. at 295.
As we set forth in our previous opinion, at trial
Ginsberg testified that the tapes remained in a locked
C—O
App. 67
storage container when he was not using them. Further-
more, he explained that “in the filtration process, there is
no risk of alteration in the content of the enhanced copy,
and that the original tapes are in no way modified.” 899
F.2d at 239. Following Ginsberg’s uncontroverted testi-
mony, all of the tapes were admitted into evidence with-
out further objection, app. at 507-08, on the
understanding that the appellants reserved the right to
challenge the government's use of individual tapes. App.
at 530-31. It appears that at trial none of the tapes was
suppressed on the basis of physical alterations made
during the enhancement process.
On appeal to this court, appellants argued that,
under section 2518(8)(a), the government’s technical
infraction of the custody requirements of the unsealing
orders, standing alone, warranted the suppression of the
tapes. 899 F.2d at 239. Appellants urged that the govern-
ment’s failure to comply strictly with the unsealing
orders undercut the legislative intent of section 2518(8)(a)
to ensure that the government has no opportunity to
tamper with wiretap evidence. The government coun-
tered that section 2518(8)(a) furnishes a basis for the
suppression of lawfully intercepted wiretap evidence
only if there is no seal affixed to the tapes. 899 F.2d at
239-40. It maintained that its explanation for the absence
of a judicial seal on the tapes was “satisfactory” because
the tapes had been unsealed by court order. Id. In the
alternative, it renewed its argument made before the dis-
trict court that appellants’ sole complaint was that there
had been an unauthorized disclosure of the tapes’ con-
tents, conduct redressible only through a civil action
under section 2520. Id. at 240 n.36.
App. 68
We rejected appellants’ argument that the govern-
ment’s infraction of the custody requirements of the
unsealing orders warranted the suppression of the wire-
tap evidence, but not for the reasons advanced by the
district court and the government. We departed from the
district court insofar as it characterized appellants’ claim
as a challenge to the unauthorized disclosure of the tapes’
contents to a private individual because, in our view, the
thrust of the claim was that failure to enforce strictly the
unsealing orders could undermine the statutory safe-
guards against tampering which pervade Title III. 899
F.2d at 240 n.36. We also rejected the government's argu-
ment that all lawfully intercepted wiretap evidence is
admissible under section 2518(8)(a) if judicially sealed.
This argument did not strike us as a plausible reading of
the legislative intent underlying that section because, if
followed, it would mean that all wiretap evidence would
be admissible, regardless of whether it had been adulter-
ated before sealing or after unsealing. While we recog-
nized that Congress did not expressly define the
government’s responsibilities in handling tapes after
their unsealing, to give full effect to the “overriding
legislative concern . . . to prevent the admission of wire-
tap evidence which has been subject to tampering,” 899
F.2d at 240, we concluded that government uses of tapes
after their unsealing which might compromise the physi-
cal integrity of the tapes should be analyzed in the same
manner as sealing delays.
This much said, relying on Falcone, we upheld the
district court’s decision to admit the wiretap evidence, as
there was no indication that the integrity of the tapes had
been compromised during the enhancement process. Id.
App. 69
at 241. In reaching this conclusion, we were largely influ-
enced by the fact that “compelling” and uncontroverted
evidence had been presented that the enhancement pro-
cess did not alter the contents of the tapes. Id. at 241-42.
Accordingly, inasmuch as the Supreme Court had made
clear in United States v. Giordano, 416 U.S. 505, 527, 94
S.Ct. 1820, 1832 (1974), that suppression is warranted
only where there is noncompliance with statutory
444
requirements that “ ‘directly and substantially implement
LA
the congressional intention’ ” underlying Title III, we
decided that the technical infraction of the custody
requirements of the unsealing orders could not serve as a
basis for suppression, as there was no indication that “the
type of harm the statute was meant to prevent occurred”
in this case. 899 F.2d at 242.
II. The Rios Decision
By order dated June 25, 1990, the Supreme Court
vacated our judgment and remanded the case to us for
further consideration in light of United States v. Rios, 110
S.Ct. 1845 (1990), which was decided after our opinion in
Vastola was filed. 110 S.Ct. at 3233. In Rios, the Supreme
Court decided that the suppression of tapes derived from
an authorized electronic surveillance is required where
the government is unable to offer a “satisfactory explana-
tion” for a delay in sealing the tapes in accordance with
25 U.S.C. § 2518(8)(a). In so holding, the Court expressly
overruled Falcone and its progeny in other appellate
courts. 110 S.Ct. at 1850 n.5.
The facts of Rios were similar to those here insofar as
the sealing delay is concerned. Effective April 27, 1984,
App. 70
the government originally obtained authorization to
intercept communications at the defendant's residence in
Levittown, Puerto Rico. Two extensions of the original
order were granted, the second expiring on July 23, 1984.
However, on July 9, 1984, the government terminated the
surveillance because the defendant moved to a new resi-
dence in El Cortijo, Puerto Rico. 110 S.Ct. at 1848. On July
27, 1984, the government obtained a new surveillance
order covering the El Cortijo residence which, after exten-
sions, expired on September 24, 1984. After an additional
surveillance order covering the defendant's car finally
expired on October 10, 1984, the government, on October
13, 1984, had all of the tapes from the Levittown and El
Cortijo residences judicially sealed. Id.
The Court of Appeals for the Second Circuit affirmed
the district court’s determination that the Levittown tapes
were inadmissible because they should have been sealed
at the latest on July 23, 1984, when the final extension
order expired. United States v. Ojeda Rios, 875 F.2d 17, 22
(2d Cir. 1989). The court rejected the government's
threshold argument that the El Cortijo surveillance order
was an extension of the Levittown order, reasoning that,
under the Wiretap Act, an extension order must cover the
same location as the original surveillance order. Id. It
similarly rejected the government's suggestion that its
mistaken belief that the sealing obligation did not arise
until there was a lapse in the investigation as a whole
constituted a “satisfactory explanation” for the sealing
delay. In this regard, the court stated that “[t]he privacy
and other interests affected by the electronic surveillance
statutes are sufficiently important” to preclude the gov-
ernment from relying on a misunderstanding of the law
App. 71
as its explanation for a sealing delay. Id. at 23. Therefore,
following its precedent that wiretap evidence may be
suppressed on the basis of an unexplained sealing delay
standing alone, see United States v. Massino, 784 F.2d 153,
156 (2d Cir. 1986), the court affirmed.
The Supreme Court agreed with the Court of
Appeal’s reasoning insofar as it held that the govern-
ment’s satisfactory explanation for a substantial delay in
sealing wiretap evidence is a precondition to its admis-
sibility under section 2518(8)(a), regardless of whether
the authenticity of the tapes has been challenged. In
doing so, the Court explained that a “satisfactory expla-
nation” for a sealing delay is required by the literal
language of section 2518(8)(a), and that any other reading
of the section would eviscerate the force of the sealing
requirement as a safeguard against tampering. 110 S.Ct.
at 1849-50. It rejected our interpretation of the sealing
requirement in Falcone, namely that the evidence could be
admitted upon proof of nontampering even where a seal-
ing delay is not satisfactorily explained, as inconsistent
with the unambiguous language of the statute stating:
It is true that offering to prove that tapes are
authentic would be consistent with Congress’s
concern about tampering, but even if we were
confident that tampering could always be easily
detected, we would not be at liberty to agree
with the Government, for it is obvious that Con-
gress had another view when it imposed the
sealing safeguard.
Id. at 1850 (footnote omitted).
Ultimately, however, the Court remanded the case for
further factual inquiry into whether the government's
App. 72
asserted belief that it had no obligation to seal the tapes
until the conclusion of its entire investigation was its
actual reason for the sealing delay. The Court did not
decide when the obligation to seal in fact arose but,
instead, stated that in view of existing Second Circuit
precedent at the time of sealing delay, the government's
explanation was “objectively reasonable” and hence
would suffice as a “satisfactory explanation” if it was the
actual reason for the delay. Jd. at 1851.
Ill. Discussion
We have invited the parties to submit letter briefs
addressing the admissibility of the wiretap evidence in
view of the Rios decision. After carefully considering
these submissions, we conclude that the government's
relinquishment of custody of the tapes for audio enhance-
ment does not require their suppression, as Rios has no
bearing on the admissibility of wiretap evidence
allegedly mishandled by the government subsequent to
its unsealing. However, we will not reinstate our judg-
ment affirming appellants’ convictions at this time but
will remand this case to the district court to decide
whether the government is now free, under Rios, to offer
an explanation for its violation of the sealing require-
ment. If the district court determines that such an expla-
nation may be given there will be further factual inquiry
into the reason for the government’s delay in sealing the
West Long Branch tapes.
App. 73
A. The Audio Enhancement
Reading Rios and our prior decision together, appel-
lants renew their argument that all of the tapes sent to
Ginsberg for audio enhancement are subject to suppres-
sion. They believe that Rios significantly strengthens their
position, as Rios characterized the sealing requirement in
18 U.S.C. § 2518(8)(a) as a “means of ensuring that... the
Government has no opportunity to tamper with, alter, or
edit the conversations that have been recorded.” 110 S.Ct.
at 1849. In view of our decision that challenges to the
government’s physical treatment of tapes after their
unsealing should be analyzed in the same manner as
sealing delays, appellants conclude that the government’s
relinquishment of custody of the tapes requires their sup-
pression solely because it heightened the risk of tamper-
ing. They argue that, after Rios, our ultimate conclusion
that the tapes could not be suppressed because they were
proven to be authentic no longer is viable. We disagree.
Whereas the result in Rios was compelled by the
“plain words of the sealing provision,” id. at 1850, here
we are concerned with a statutory interstice, as Congress
did not expressly define the government's responsibilities
in handling tapes after their unsealing. 899 F.2d at 240.
We adhere to our reasoning that in view of the elaborate
scheme it devised to ensure the authenticity of wiretap
evidence, Congress could not have been indifferent to the
treatment of tapes after their unsealing. Jd. But when we
decided that the enhancement problem could be analyzed
in the same manner as a sealing delay, we did so under
the assumption that we were extending the Falcone stan-
dard then followed in this circuit to the situation before
US.
App. 74
As Judge Rosenn pointed out in his dissent in Fal-
cone, the majority departed from the plain language of the
statute and, in effect, adopted a “harmless error” analysis
of sealing delays. 505 F.2d at 487 (Rosenn, J., dissenting).8
In fact, it could be argued that Falcone did no more than
underscore the need for authentication of Wiretap evi-
dence in light of Congress’s heightened concern about its
physical integrity. Considering what Falcone actually
held, namely that a sealing delay does not justify the
suppression of wiretap evidence Proven to be authentic,
Our extension of Falcone to situations arising after the
judicial unsealing of the tapes was unremarkable. We
held only that legislative silence as to the admissibility of
surveillance tapes after their unsealing does not imply
that adulterated tapes may contribute to a criminal con-
viction and therefore, the government must prove the
tapes’ integrity when confronted with a challenge to its
Physical treatment of them.
* Judge Rosenn stated that:
Congress expressly selected a strict requirement that
the tapes not be admitted into evidence unless a
Satisfactory explanation is offered for a failure to seal
them. Congress having expressly chosen a standard
offering a significant protection to the citizen, |
believe, in the language of Giordano, that the strict
sealing requirement ‘directly and substantially
implements the congressional intention’ of maintain-
ing the integrity of the tapes. Therefore, it is my view
that the majority is unjustified in creating an excep-
tion to the express language of § 2518(8)(a).
505 F.2d at 488.
App. 75
Notwithstanding our prior decision, we would not be
justified in reading section 2518(8)(a) as a mandate that
any post-unsealing use of wiretap evidence capable of
compromising its physical integrity must be satisfactorily
explained before authenticated evidence can be admit-
ted.? As construed in Rios, Congress created in section
” Where there are statutory interstices in the sense that the
statute’s language does not explicitly resolve an issue which
had arisen in the application of the Statutory scheme, a court
obviously has the power to decide the issue consistently with
the legislative intent. See, e.g., Stafford v. Briggs, 444 U.S. 527,
535, 100 S.Ct. 774, 780 (1980) (deciding in face of legislative
silence, that the venue provision of the Mandamus and Venue
Act of 1962, 28 U.S.C. § 1391(e), necessarily is limited to
mandamus-type actions). However, the role we may legit-
imately play when fleshing out the details of an elaborate
statutory scheme is a modest one. In this regard, we are guided
by the Supreme Court’s statement in Northwest Airlines, Inc. v.
Transport Workers Union, 451 U.S. 77, 101 S.Ct. 1571 (1981), that:
In almost any statutory scheme, there may a need for
judicial interpretation of ambiguous or incomplete
provisions. But the authority to construe a statute is
fundamentally different from the authority to fash-
ion a new rule or to provide a new remedy which
Congress has decided not to adopt. The presumption
that a remedy was deliberately omitted from a stat-
ute is strongest when Congress has enacted a com-
prehensive legislative scheme including an
integrated system of procedures for enforcement.
ld. at 97, 101 S.Ct. 1583-84 (citation omitted).
mee generally Glus v. G.C. Murphy, 629 F.2d 248, 259-65 (3d Cir.
1980) (Sloviter, J., dissenting) (elaborating on the differences
between the evolution of federal common law, statutory inter-
pretation, and the judicial usurpation of legislative functions),
vacated and remanded sub nom. Retail, Wholesale and Dep't Store
(Continued on following page)
App. 76
2518(8)(a) an extraordinary safeguard against adultera-
tion during the period between interception and trial.
However, its failure to extend that remedy to post-unseal-
ing situations was not necessarily an oversight. Possibly,
Congress determined that the myriad uses which prose-
cutors legitimately could have for unsealed wiretap evi-
dence would render it impractical to require judicial
scrutiny of the prosecutor’s motivation in each such
instance. Furthermore, even in the case of judicially
sealed tapes, violation of the statutory mandate that “cus-
tody of the recordings shall be wherever the judge
orders,” does not trigger the suppression remedy. 18
U.S.C. § 2518(8)(a). Considering this circumstance, we
would be hard pressed to find that Congress required
anything more than proof of authenticity where the cus-
tody requirements of unsealing orders technically have
been violated.!°
Moreover, even if we were to construe section
2518(8)(a) as appellants suggest, the government's relin-
quishment of custody of the tapes would not supply us
(Continued from previous page)
Union, AFL-CIO v. G.C. Murphy, 451 U.S. 935, 101 S.Ct. 2013
(1981), reversed in part on remand, 654 F.2d 944 (3d Cir. 1981).
Here, it is highly questionable whether we may place greater
limitations on the admissibility of unsealed wiretap evidence
than the legislative expressly imposed.
'0 We note our disagreement with United States v. Riggi,
737 F. Supp. 1410, 1415 (D.N.J. 1990), which concluded that “it
would be jurisprudentially myopic to hold that the Supreme
Court’s opinion in Ojeda Rios is limited to initial judicial seal-
ing and precludes consideration of situations pertaining to
judicial unsealing and resealing.”
App. 77
with reason to order their suppression. Neither the stat-
ute nor Rios takes a per se approach to sealing delays nor,
by implication, to unsealing problems. Rather they permit
the government to defeat a suppression motion by pro-
ving the tapes’ authenticity and by furnishing a satisfac-
tory explanation for the statutory violation. The Court of
Appeals for the First Circuit which, since United States v.
Mora, 821 F.2d 860, 867-68 (1st Cir. 1987), has followed the
construction of the sealing provision adopted in Rios,
held in United States v. Angiulo, 847 F.2d 956 (1st Cir.), cert
denied, 488 U.S. 928, 109 S.Ct. 314 (1988),!! that:
If the unsealing of such tape is challenged in a
motion to suppress, the government should be
required to prove (1) that the unsealing and use
of the tapes did not result in alterations or tam-
pering and (2) that the circumstances necessitat-
ing unsealing were not manufactured for tactical
gain and that the defendants will not be unduly
prejudiced as a result of the unsealing.
Id. at 978.
'! Angiulo is especially pertinent because it involved a
challenge to the unsealing of tapes for audio enhancement. 847
F.2d at 976. Of course, this case is one step further removed
from the statute, as here, appellants do not challenge the
propriety of the unsealing orders themselves, but focus on
Ginsberg’s enhancement of the tapes subsequent to their
unsealing.
We acknowledge that with respect to certain New Jersey
state tapes, appellants do contest the fact of unsealing. Letter
Brief at 9 n.9. We reiterate our observation that the govern-
ment’s “technical infraction” of the unsealing orders for those
tapes, namely that they be unsealed in the presence of a federal
district court judge, “does not negate the fact that the unseal-
ing orders were entered and executed.” 899 F.2d at 211 n.34.
i ia a |
App. 78
The Angiulo standard is readily satisfied here. As we
found in our prior decision, Ginsberg’s testimony sup-
plied ample proof that the physical integrity of the tapes
remained pure. 899 F.2d at 241-42. While the district court
made no specific finding of fact on this point,!? there can
be no doubt as to the sufficiency of the government's
factually unchallenged explanation that it sent the tapes
to Ginsberg’s firm because of the exigencies of the Levy
trial, as it could have completed the enhancements in
time for them to be of use to the defendants had it relied
on its own facilities. The events which necessitated the
enhancements hardly could be said to have been “manu-
factured” by the prosecutors “for tactical gain.” To the
contrary, in the context of a multi-defendant case which
has been severed for successive trials, it would be grossly
unfair to the government to hold that audio enhance-
ments performed for the benefit of one set of defendants
could be the basis for suppression of the wiretap evi-
dence in succeeding trials.13 Accordingly, we reject appel-
lants’ contentions regarding the enhancement of the
surveillance tapes.
'2 Although the district judge did not address this issue in
his opinion, he did preside over the Levy trial and during the
government’s argument, he indicated that he recalled the dis-
pute over the audio quality of the tapes. App. at 255a.
13 We are not to be understood as suggesting that after
severance, representations made by defendants in an earlier
trial are binding on defendants in a later trial. However, in the
problem before us, our focus must be on the government’s
reasons for sending the wiretap evidence to a private individ-
ual for enhancement.
App. 79
B. The Sealing Delay
Having determined we cannot justify the broader
relief sought by appellants, that is, the suppression of all
of the enhanced wiretap evidence, we must consider their
more particularized contention that, in light of Rios, the
West Long Branch tapes were subject to suppression
because of the unexplained sealing delay.
The government advances several arguments why
appellants’ convictions should be reinstated notwith-
standing Rios and the demise of Falcone. First, it submits
that no sealing delay occurred because the order of June
26, 1985, authorizing electronic surveillance at Video
Warehouse’s new location in Neptune City, New Jersey,
was an extension of the original authorization for the
West Long Branch surveillance and its accompanying
extensions, so that its obligation to present the tapes for
sealing did not arise until the conclusion of the Neptune
City surveillance. Second, relying largely on Rios, it
argues that even if the the June 26, 1985, order could not
be characterized as an extension order, the supervising
attorneys, based on precedent at the time of the surveil-
lance, reasonably believed that the sealing obligation
would arise at the conclusion of the entire Video Ware-
house investigation. Thus, we should find that the gov-
ernment has furnished a “satisfactory explanation” for
the delay. Seemingly in the alternative, the government
maintains that resolution of the sealing question is not
necessary because even if the tapes covering the West
Long Branch surveillance were suppressed, there would
be sufficient evidence to sustain Vastola’s and Saka’s
convictions on practically all counts. Accordingly, in the
government’s view, the admission of the tapes was at
App. 80
worst, harmless error. Finally, the government suggests
that we remand for further factual inquiry into the reason
for the sealing delay if we find that we cannot reinstate
our opinion affirming appellants’ convictions at this junc-
ture.!4
We agree with the government that the matter should
be remanded to the district court. But we cannot accept
its argument that our original judgment should now be
reinstated. We could not possibly hold that the Neptune
City interception order was an extension of the West
Long Branch order. Although the government rightly
points our that Rios did not decide whether a change in
the location of an illegal operation will prevent a subse-
quent order covering the new location from being an
extension of a previous order, the statute unambiguously
rules out this possibility.'°
Section 2518(1)(b)(ii) plainly states that an applica-
tion for a surveillance order must contain “a particular
description of the nature and location of the facilities
14 Appellants rigorously contest each of these assertions.
We will address their arguments in the course of our discus-
sion.
15 Curiously enough, in arguing that the Neptune City
order was an extension of the West Long Branch order, the
government relies on United States v. Vazquez, 605 F.2d 1269,
1278 (2d Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 484 (1979),
which, in its view, stands for the proposition that the term,
“extension,” encompasses all continuations of wiretap orders
involving the same crimes and substantially the same persons.
We would be hard pressed to read Vazquez so broadly, as the
Court of Appeals itself expressly rejected that interpretation of
the case in Ojeda Rios, 875 F.2d at 21-22:
App. 81
from which or the place where the communication is to
be intercepted.” In addition, section 2518(3)(d) requires a
particularized showing of probable cause that “the facili-
ties from which, or the place where, the wire, oral, or
electronic communications are to be intercepted are being
used, or are about to be used, in the commission of [the]
offense [under investigation].” Based on these two provi-
sions alone, we would have no difficulty concluding that
Congress intended for interception orders, and their
accompanying extensions, to apply only to surveillances
in the particular locations specified in the applications.
Moreover, even if we felt that subsections (1)(b)(ii)
and 3(d) of section 2518 were susceptible to a different
interpretation, we would still reject the government's
argument, as we agree with the Court of Appeals’ state-
ment in Ojeda Rios, 875 F.2d at 22, that section 2518(11),
added to Title II] as part of the Electronic Communica-
tions Privacy Act of 1986, § 106(d)(3), Pub.L.No. 99-508,
100 Stat. 1848, 1857, reprinted in 1986 U.S. Code Cong. &
Admin. News, at 1848, 1857, eliminates all room for argu-
ment on this point. Section 2518(11) provides for roving
surveillances of wire or electronic communications upon
a showing of the suspect’s “purpose” “to thwart intercep-
tion by changing facilities.” Section 2518(11) further
states that if the preconditions for a roving surveillance
are met, then “the requirements of subsections (1)(b)(ii)
and 3(d) ... relating to the specifications of the facilities
from which, or the place where, the communication is to
be intercepted do not apply.” The unmistakable inference
from the language of subsection (11) is that before its
inclusion in section 2518, subsections 2518(1)(b)(ii) and
3(d) restricted surveillances to particular locations,
App. 82
regardless of whether the same suspects and crimes were
involved.
We conclude that a sealing delay indeed occurred as
the West Long Branch tapes should have been sealed
either as soon as was practical after May 31, 1985, when
the actual surveillance ended, or as soon as practical after
June 13, 1985, when the final extension order expired.!©
16 The government argues that the length of the sealing
delay should be measured from June 13, 1985, when the final
extension order expired. There is certainly support for that
position as the statute states that the government’s sealing
obligation arises “{i]Jmmediately upon the expiration of the
period of the order, or extensions thereof... ” 18 U.S.C.
§ 2518(8)(a). See United States v. Harvey, 560 F. Supp. 1040, 1057
(S.D. Fla. 1982), aff'd, 789 F.2d 1492 (11th Cir.), cert. denied, 479
U.S. 855, 107 S.Ct. 192 (1986) (“Case law clearly holds that the
tapes do not have to be sealed until the end of the extension
orders, i.e., at the termination of the entire surveillance.”).
Furthermore the Supreme Court in Rios read section 2518(8)(a)
literally. We also observe that it might not be clear that surveil-
lance has ended as an interruption could be viewed at the time
only as a hiatus. There is, however, a basis to support appel-
lants’ contention that there should have been sealing as soon as
practical after the surveillance ended. Section 2518(5) seems
pertinent to situations where a surveillance terminates before
expiration of the final interception order, and it provides that
“[nJjo order entered under this section may authorize or
approve the interception of any wire, oral, or electronic com-
munication for any period longer than is necessary to achieve
the objective of the authorization. . . . ” Furthermore, the
legislative history indicates that: “The period of authorized
interception is intended to begin when the interception — in
fact — begins and terminates when the interception — in fact -
terminates.” S. Rep. No. 1097, 90th Cong., 2d Sess. 107,
reprinted in 1968 U.S. Code Cong. & Admin. News, at 2112,
(Continued on following page)
App. 83
Furthermore, we cannot now on the record before us
accept the government’s suggestion that, even if erro-
neous, the supervising attorneys’ reasonable belief that
the order of June 26, 1985, extended the original intercep-
tion order satisfactorily explains the delay.!7 Appellants
understandably protest that the government’s belated
explanation not only is unsupported by the record but
contradicts its specific assertions to this court and the
district court that a delay occurred but that, under Fal-
cone, it could not serve as a basis for suppression because
the physical integrity of the tapes remained pure. They
argue that government cannot now change its position
and assert that it operated under the assumption that the
Neptune City order extended the original order.!® See
Steagald v. United States, 451 U.S. 204, 208, 101 S.Ct. 1642,
1646 (1981) (“The government, however, may lose its
(Continued from previous page)
2192. Here we need not resolve the issue as even taking the
June 13, 1985, date it cannot be said that the tapes were made
available to the judge “immediately” upon the expiration of
the period of the order.
17 With respect to the two reels of tape which were sealed
on August 19, 1986, we accept the district court’s finding that
the government’s clerical error in storing the original tapes
constituted a satisfactory explanation for the delay. Accord-
ingly, we will not further consider the implications of the
additional delay in the sealing of those two reels.
15 We note that in Rios, Justices O’Connor and Blackmum
joined the majority opinion on the understanding that it held
that any explanation for a sealing delay must be the “actual
reason” for the delay, rather than a “reasonable explanation”
offered on appeal. 110 S.Ct. at 1851-52 (O’Connor, J., concur-
ring, joined by Blackmum, J.). Without these votes, Rios may
have been a plurality decision, as three justices dissented.
App. 84
right to raise factual issues . .. when it has made contrary
assertions in the courts below, when it has acquiesced in
contrary findings by those courts, or when it has failed to
raise such questions in a timely fashion during the litiga-
tion.”).
Although we do not at this time accept the govern-
ment’s explanation for the delay, we find that its failure
in the district court to offer evidence concerning the
circumstances of the sealing delay should not necessarily
now foreclose it from offering such evidence before the
district court. We acknowledge that the circumstances of
this case differ slightly from Rios because there the gov-
ernment seems to have offered some explanation for the
delay at trial, though a question as to whether it had
shifted its position on appeal remained. Here, however,
the government relied under Falcone on the physical
integrity of the tapes.
We do not consider this difference between the two
cases to be significant on the issue of whether the govern-
ment should now be able to explain the delay in the
district court. Rios arose in the Second Circuit which,
since United States v. Gigante, 538 F.2d 502, 505 (2d Cir.
1976), has held that the government must prove a satis-
factory explanation for a sealing delay before wiretap
evidence may be admitted over a defendant's objection.
In this case, while it is possible that the government
offered no explanation for the delay because it had none,
it is also possible that, acting in reasonable reliance on
Falcone, it assumed that it could defeat the suppression
motion by demonstrating the integrity of the tapes and
thus did not find it necessary to introduce evidence on
this point. Accordingly, we conclude that the district
App. 85
court should be entitled to exercise its discretion to
decide whether the government should now be permit-
ted, under Rios, to offer an explanation for its violation of
the sealing requirement. It seems to us that this threshold
determination should be made by the district court rather
than by us as the nature of the determination is similar to
that on a ruling on a motion by the government to
reopen, traditionally a discretionary matter for the dis-
trict court. See United States v. Blankenship, 775 F.2d 735,
740-41 (6th Cir. 1985).
While we are remanding the matter we think it
appropriate to comment on the appellants’ argument that
the government could not reasonably rely on Falcone
because that case’s continued viability was questionable
at the time of trial in light of intervening precedent. We
do not agree. To be sure, before Rios, the Courts of
Appeals for the First and Second Circuits had followed
the literal construction of section 2518(8)(a) adopted by
the Supreme Court, United States v. Mora, 821 F.2d at
864-65; United States v. Massino, 784 F.2d at 156. However,
several other courts of appeals agreed with our holding
in Falcone that lawfully intercepted wiretap evidence
could not be suppressed on the basis of a sealing delay if
the tapes were proven to be authentic. United States v.
Angelini, 565 F.2d 469, 473-74 (7th Cir. 1977), cert. denied,
435 U.S. 923, 98 S.Ct. 1487 (1978); United States v. Diadone,
558 F.2d 775, 780 (5th Cir. 1977), cert. denied, 434 U.S. 1064,
98 S.Ct. 1239 (1978); McMillan v. United States, 558 F.2d
877, 878-79 (8th Cir. 1977). Thus, the district court might
conclude that it would not fairly characterize any reliance
App. 86
the government may have placed on Falcone as unreason-
able, especially considering that the government correctly
predicted that we would adhere to that decision.
We have not overlooked the appellants’ complaint
that the government, in arguing that it reasonably
believed it had an extension, already has proffered an
explanation for the delay and should not be allowed a
second bite at the apple before the district court. How-
ever, we do not think that the district court is necessarily
compelled to conclude that a waiver would be appropri-
ate in this case, as the government first advanced its
explanation in the same submission in which it asserted a
need for further factual inquiry into the reason for the
delay. We emphasize, however, that upon remand, if the
district court permits that explanation of the sealing
delay to be given, the government must prove to the
court’s satisfaction the actual reason for the sealing delay.
This would require a formal hearing in which the govern-
ment corroborates its arguments to the district court
through authenticated records produced at the time of
the sealing delay, the testimony of individuals who par-
ticipated in the interceptions, or other competent evi-
dence.
In view of our decision to remand this case, we do
not reach the question of whether the admission of the
West Long Branch tapes could be considered harmless
error.'? We realize, of course, that if we concluded that a
9 Appellants have raised the additional contention that if
the West Long Branch tapes are suppressed, it will be neces-
sary to reconsider the admissibility of other wiretap evidence
(Continued on following page)
App. 87
high probability exists that the evidence in the tapes did
not contribute to appellants’ convictions, we could save
judicial resources by reinstating our opinion affirming
appellants’ convictions, thus obviating the need for a
hearing. See United States v. Jannotti, 729 F.2d 213, 219-20
n.2 (3d Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243 (1984)
(defining the “high probability” standard of appellate
review used to determine the harmlessness of noncon-
stitutional errors in the admission of evidence); Govern-
ment of the Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir.
1976). However, if the tapes should have been sup-
pressed, the extent of the damage to the government’s
case could not easily be assessed, as suppression of the
tapes would remove the basis for certain other evidence
presented in this case, such as Sergeant Robert Jones’
explanation of loansharking terms used in the intercepted
(Continued from previous page)
presented in this case, as information derived from the West
Long Branch tapes was used, in part, to establish probable
cause for subsequent surveillances. We have located only one
case which squarely addresses this issue, and it holds that
lawfully intercepted conversations may be used to establish
probable cause for an electronic surveillance, regardless of
whether the conversations are themselves inadmissible
because of an unexplained sealing delay. United States v. Fury,
954 F.2d 522, 531-32 (2d Cir. 1977), cert. denied, 436 U.S. 931, 98
S.Ct. 2831 (1978). Cf. United States v. Donlan, 825 F.2d 653 (2d
Cir. 1987) (section 2518(8}(a) does not bar the admission of
evidence obtained through a search made on the basis of
statements set forth in untimely sealed surveillance tapes).
However, we acknowledge that different interpretations of the
Statute are possible and express no opinion on the issue at this
time as it would be premature to do so. Indeed, depending
upon the results on the remand, it is possible that the issue
may never have to met.
App. 88
conversations. App. at 694-95, 733-34.29 Considering that
a possibility exists that the sealing delay will be satisfac-
torily explained, we think it best not to pass judgment on
the murkier question of the harmlessness of the pur-
ported error. If necessary that issue maybe reached on the
remand.
IV. Conclusion
In view of the foregoing, we will remand Vastola’s
and Saka’s cases to the district court for further proceed-
ings in light of United States v. Rios and this opinion.
20 Sergeant Jones, testifying as an expert, interpreted state-
ments made by Vastola and co-conspirator Sonny Brocco in a
April 26, 1985, conversation that they could “put it out for
two” or “for three,” app. at 3385, to be “terms used in loan-
shark loans” for percentage points. App. at 734. He construed
Vastola’s statement in a April 5, 1985 conversation at the Video
Warehouse that “[e]verybody that I okay to Rudy for money is
fuckin’ up cause they think they got me as a buffer,” app. at
3356, to mean, “we okayed them to Rudolph Farone for loan-
shark[ing].” App. at 695. In all, Jones’ direct testimony regard-
ing the contents of the West Long Branch tapes spanned
approximately 100 pages of transcript. App. at 642-743.
App. 89
APPENDIX IV
Filed: March 20, 1990
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 89-5372, 89-5383, 89-5510
UNITED STATES of America,
Appellee at Nos. 89-5372/5383,
Appellant at No. 89-5510
V.
GAETANO VASTOLA, Appellant at No. 89-5372,
Appellee at No. 89-5510
V.
ELIAS SAKA, Appellant at No. 89-5383
On Appeal from the United States
District Court for the
District of New Jersey
(D.N.J. Criminal No. 86-301)
Argued February 6, 1990
BEFORE: GREENBERG, SCIRICA, and
SEITZ, Circuit Judges
(Filed March 20, 1990)
Herald Price Fahringer (Argued)
Diarmuid White
Michael Rosen
Joy Vastola
Lipsitz, Green, Fahringer,
Roll, Schuller & James
540 Madison Avenue
New York, New York 10022
Attorneys for
Gaetano Vastola
App. 90
Barry M. Fallick (Argued)
Rochman, Platzer, Fallick &
Rosmarin
666 Third Avenue, 17th Floor
New York, New York 10017
Attorney for Elias Saka
Samuel A. Alito, Jr.
United States Attorney
Edna Ball Axelrod
Chief, Appeals Division
Marion Percell (Argued)
Assistant United States Attorney
970 Broad Street, Room 502
Newark, New Jersey 07102
Attorneys for The United
State of America
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Table of Contents
I. Introduction Typescript at 3
II. The Facts Typescript at 5
1. The Dwek LoanTypescript at 6
2. The MCA DealTypescript at 9
III. Discussion
A. Government’s Appeal
1. Jurisdiction Typescript at 14
2. Inconsistency of the
Verdict on Count 1 Typescript at 19
App. 91
B. Sufficiency of the
Evidence on Count 2 Typescript
C. The RICO Conspiracy Typescript
D. Sufficiency of the
Evidence of MCA Extortion Typescript
E. Naming of the RICO
Enterprise Typescript
F. Admissibility of
Testimony Regarding
Loansharking Terms Typescript
G. Reference to Federal
Protection Program Typescript
H. Appointment of New Counsel Typescript
I. The Electronic Surveillance
1. Background Typescript
2. Admissibility of
Evidence from Electronic
Survelliance Typescript
IV. Conclusion Typescript
I. INTRODUCTION
at 28
at 32
at 36
at 37
at 43
at 47
at 50
at 54
at 56
at 63
Gaetano Vastola and Elias Saka appeal to this court
from final judgments of conviction and sentence entered
by the United States District Court for the District of New
Jersey on May 3, 1989, following a jury trial in which they
were found guilty of two substantive RICO offenses
under 18 U.S.C. § 1962(c), a RICO conspiracy offense
under 18 U.S.C. § 1962(d), and a conspiracy to use extor-
tionate means to collect an extension of credit, in viola-
tion of 18 U.S.C. § 894. In addition, Saka was found guilty
of var
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