UNITED STATES of America, Appellee, v. Hector MORA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Franklin VALENCIA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jose Alberto VALENCIA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Luis Fernando BERRIO, Defendant, Appellant.
Nos. 86-1196, 86-1375 to 86-1377
United States Court of Appeals, First Circuit
Argued Feb. 4, 1987. Decided June 15, 1987. As Amended June 19, 1987.
821 F.2d 860 | 56 USLW 2042
Before CAMPBELL, Chief Judge, ALDRICH and SELYA, Circuit Judges.
John F. Gallagher, for appellant Franklin Valencia submitted on brief of defendant-appellant Mora.
Jose A. Espinosa, for defendant-appellant Jose Alberto Valencia submitted on brief of defendant-appellant Mora.
Susan L. Crockin, Federal Public Defender‘s Office, for defendant-appellant Luis Fernando Berrio submitted on brief of defendant-appellant Mora.
William H. Kettlewell, Asst. U.S. Atty., with whom Robert S. Mueller, III, U.S. Atty., was on brief, for appellee.
SELYA, Circuit Judge.
These appeals pose a single question—but one of some moment and of novel impression in this circuit. The issue presented centers around the consequences of the government‘s failure to return and seal tape recordings of wire intercepts “immediately” as required by
I
The proceedings before us arise out of a pair of related indictments handed up by a grand jury in the United States District Court for the District of Massachusetts. The first such indictment, returned in May 1985, contained six counts. Inter alia, it charged the defendant-appellant, Hector Mora, with various drug-related offenses. In a subsequent five count indictment brought the following month, Mora and the remaining defendants-appellants, Franklin Valencia, Jose Alberto Valencia, and Luis Berrio, were accused of myriad other offenses related to narcotics trafficking. Certain intercepted wire communications, the genesis of which we will describe shortly with greater exactitude, inculpated the foursome. They moved to prevent the prosecution from using the evidentiary fruits of these overheard conversations against them. Following the district court‘s refusal to suppress, see United States v. Mora, 623 F.Supp. 354 (D.Mass.1985) (Mora I ), the four appellants tendered conditional guilty pleas.
Although the defendants originally contested a medley of matters pertaining to the listen-ins (e.g., the sufficiency of the warrant аpplications, the validity of the orders authorizing the interceptions, the alleged lack of minimization in the course of the electronic surveillance), they have now conceded these points and narrowed their focus to concentrate strictly and solely on the return and sealing of the tapes. This question stands as a common denominator of each of the appeals. See supra n. 1. We have therefore consolidated the cases, and have permitted the other three appellants to join in Mora‘s brief and argument.
The relevant facts are set forth at some length in the district court‘s opinion, Mora I, 623 F.Supp. at 355-58, and we refer the reader with a liking for detail to that rescript. We will restate only those basic facts which help to place the issue before us into balanced perspective.
In early 1985, the Massachusetts State Police (MSP) began a probe which eventually led to the appellants, among a coterie of others. After a full panoply of standard investigative techniques had been exhausted, the district attorney for Middlesex County designated an assistant, Alexander Z. Nappan, to apply to the state superior court for a warrant authorizing the interception of certain conversations over a particular telephone line. The principal target of this sortie was Juan Guillermo Valencia, a codefendant below. This individual, who allegedly trafficked in narcotics under the nomme de guerre of “GeJarno“, was said to use the designatеd telephone frequently. The application was prepared, approved by the state court, and an order and warrant obtained, all in pursuance of
The procedure was straightforward. The intercepted conversations were simultaneously recorded onto a reel-to-reel tape and three separate cassettes. An MSP trooper was designated as the custodian. Each day, the trooper placed the master recording in a cardboard box, closed the box, and signed it. The box was then sealed within a plastic bag. The fastened bags were kept, originally, at the listening post—whiсh was staffed and guarded twenty-four hours a day. At the conclusion of the fifteen day cycle, the contents were removed and secured in a limited access evidence vault, equipped with an alarm system. The tapes were returned to the state superior court for judicial sealing on April 26, 1985. The warrant was returned at the same time.
A few days later, Nappan was again designated to seek an authorization to intercept certain wire communications. This time, Mora‘s home telephone was the subject of the tap. The application was approved by the state judge on May 3, 1985, and an order and warrant issued on the same day. The operation began on May 7, and continued for a ten day period. The mechanics of snaring, sеaling, and preserving the discussions were substantially the same as on the earlier occasion. The original recordings were not presented for judicial sealing until June 26, 1985 (along with the warrant) notwithstanding that this phase of the electronic surveillance ended with the apprehension and arrest of some eighteen suspects, including the present appellants, on May 16, 1985.
It is undisputed that, though the investigation was under the aegis of state lawmen throughout, financial support and counsel were procured early on from the federal authorities. As the second round of wiretaps built to a crescendo, a collective accord was reached to prosecute in a federal venue. Thus, federal law must come into play to a meaningful extent.
III
The problem presented by these cases arises from the Commonwealth‘s failure to achieve strict compliance with the federal laws governing such interceptions, and particularly, with the commands of
The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents ... shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order [warrant], 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 or oral communication or evidence derived therefrom under subsection (3) of section 2517.2
The government concedes that, in respect to both of these wiretaps, the recordings were not tendered to the state court for judicial sealing “[i]mmediately upon the expiration” of the warrant, as ordained by
As to the initial string of interceptions, the warrant was implemented on March 22, 1985 and used through April 6, 1985. The recordings were not brought to the state court judge until April 26. The federal district court found that there was a delay in presentment of twenty days. Mora I, 623 F.Supp. at 364. Even if the appropriate time span should be measured, as the government contends, from the date of expiration of the warrant (April 21, 1985) rather than from the date it was last employed—because, the prosecution‘s thesis runs, the investigation was ongoing and its objectives had yet to be achieved—there was still a lag of five days.4 The gap in the second set of wiretap proceedings was considerably more pronounced. Use of the second warrant began on May 7, 1985 and ended on May 16, 1985. The United States acknowledges that, inasmuch as this eavesdropping culminated in the arrest and apprehension of the suspects May 16, the span of the delay must be calculated from that date forward. Since the recordings were not proffered for judicial sealing until June 26, the interval amounted to forty-one days.
The critical question which these cases pose is whether
In a field littered with divided authorities, and in the absence of any direct precedent in this circuit, the district court chose to follow the approach taken by the Seventh Circuit. See United States v. Angelini, 565 F.2d 469, 471-72 (7th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). Although it found the explanation for the delays in sealing to be “not satisfactory,” Mora I, 623 F.Supp. at 364, the district court refused suppression because “no prejudice has resulted to the defendants from the sealing delays, nor has any tactical advantage accrued to the government.” Id. at 366. We take a somewhat different tack, but we reach the same outcome.
We begin our analysis with the language of the statute.
Such an assertion, in our view, draws the thread of language finer than the fabric of the statute permits. Several courts have concluded that a “satisfactory explanation” is required not only for outright failures to seal (i.e., situations where the tapes have never been sealed) but also for belated sealings (i.e., situations where the tapes have been sealed by the issuing judge, but not “immediately” as
We join the courts which have so held. Although as a matter of semantics the contrary argument can be made, such a construction would lead to outlandish results. An untimely seal contravenes the spirit of the statute just as much as a missing seal. And, to elevate the status of a belated seal over that of an absent seal would be tantamount to urging law enforcement to go through the essentially empty charade of making returns hopelessly out of time in order to thwart what Congress, in enacting
B. Independent Grounds for Suppression
Having held that a tardy seal has no greater legal suasion than no seal at all, we next confront the government‘s thesis that a transgression of
To put this assertion in better focus, we describe briefly the relevant statutory provisions. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III),
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any сourt, ... if the disclosure of that information would be in violation of this chapter.
- the communication was unlawfully intercepted;
- the order of authorization or approval under which it was intercepted is insufficient on its face; or
- the interception was not made in conformity with the order of authorization or approval.
Although the Supreme Court has not spoken on the interrelationship between
We hold that, in a case within its ambit,
C. Satisfactory Explanations
Having concluded that unsealed or late-sealed evidence must pass the built-in test devised by
Having said this much, we nevertheless decline to adopt the model crafted by the Seventh Circuit in United States v. Angelini, supra, and United States v. Lawson, 545 F.2d 557 (7th Cir.1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976), and approximated by the Third Circuit in United States v. Falcone, 505 F.2d 478 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975). Angelini, 565 F.2d at 471, typifies the approach. If a sealing delay occurs, the court looks first to whether or not a satisfactory explanation exists. Id. If so, there is no need to suppress the evidence. If, however, the proffered explanation is unsatisfactory, the recordings may still be used so long as “the purposes intended by Congress were fulfilled despite the delay.” Id. The Fifth Circuit seems to have gone even further; the court allowed late-sealed tapes of proven integrity to be used by prosecutors without any discussion of the reasons, satisfactory or not, for the two week sealing delay. United States v. Diadone, 558 F.2d 775, 780 (5th Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1239, 55 L.Ed.2d 765 (1978). Such approaches, we think, borrow too heavily from the general suppression provisions of Title III. They cede too much influence, in particular, to the lore of
When sealing is other than “immediate,” we believe that the resultant evidence can be utilized if—and only if—a “satisfactory explanation” for the delay eventuates.
Wе find this purpose to be clearly stated in the statute itself. Congress took great pains, after all, to mandate that the intercepts be accomplished “in such way as will protect the recording from editing or other alterations.”
sets out safeguards designed to insure that accurate records will be kept of intercepted communications.... The recording must be made in such a way as will protect it insofar as possible from editing or alteration. Appropriate procedures should be developed to safeguard the identity, physical integrity, and contents of the recordings to assure their admissibility in evidence.
S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2193. Preservation оf the integrity of tape recordings, after their creation, was unquestionably a fundamental concern of the drafters of Title III.
It is essentially for this reason that courts have most often required the government to prove the genuineness of the tapes, whether as an ingredient of a “satisfactory explanation” or as an adjunct to some other theory under which such evidence has survived suppression. See, e.g., Diana, 605 F.2d at 1315-16 (record examined to ascertain that government “extremely careful” to ensure probity of tapes); United States v. Diadone, 558 F.2d at 780 (noting that “integrity of the interceptions” not shown to have been “disturbed“); Falcone, 505 F.2d at 484 (the “crucial factor” is the integrity of the tapes, which must be proved). The District of Columbia Circuit, in considering a similarly-worded local law analog of
Where the prosecution has not shouldered this burden, then no explanation, howsoever compelling otherwise, can be a satisfactory one. Assurances that the tapes have not been compromised are essential to their future use. But, although freedom from adulteration is a necessary part of what the prosecution must show, it is by no means the extent of the proof which we will demand in these circumstances. Having scaled the initial hurdle, the government must then demonstrate that the delay in presenting the tapes for judicial sealing came about in good faith. This requirement, as we envision it, has two aspects. First, the delay must not have caused any cognizable prejudice to the accused. See United States v. McGrath, 622 F.2d 36, 42-43 (2d Cir.1980) (delаy satisfactorily explained; “no evidence of prejudice or foul play“); Diadone, 558 F.2d at 780 (defendants not “prejudiced by the delay“); Sklaroff, 506 F.2d at 840 (similar); United States v. Poeta, 455 F.2d 117, 122 (2d Cir.) (lag satisfactorily explained; court notes absence of any claim that “appellant was in any way prejudiced by the delay“), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972). The second part of the requirement is that the government prove it did not benefit unfairly from the lapse—most particularly, that no tactical advantage accrued to the prosecution in consequence of the lack of immediacy. See Diana, 605 F.2d at 1316; Angelini, 565 F.2d at 471; cf. Chun, 503 F.2d at 542. Once again, we place the burden squarely upon the government to prove its good faith in these dual terms.
Last, we look at the cause of the delay. We ask, among other things, was the statutory requirement ignored deliberately or inadvertently? We recognize that, in some extreme cases, the reason for the holdup may militate against granting special dispensation to the government. An explanation is unlikely to be deemed satisfactory if it is reflective of gross dereliction of duty or wilful disregard for the sensitive nature of the activities undertaken by means of the order. The rights of the targets of the investigation are deserving of consideration and cannot be overlooked. And, there will be a point at which suppression may become particularly attractive as a means of deterring unwholesome prosecutorial zeal. On the other hand, if the cause of the delay is inoffensive—for example, if the retardment was realistically beyond the control of the law enforcers, or arose out of honest mistake—the stature of the explanation may be enhanced (or at least, not diminished).
Although we have set out what we view as the most critical integers of the equation, we stress that there is no stock formula by which the adequacy of an explanation can invariably be gauged. Our enumeration of criteria is not intended to be an exclusive one: some of the elements which we have singled out may overlap, some may not have universal application, and—in specific cases—other things may loom large. The trial judge must scrutinize these situations case by case, giving due weight to the factors which we have mentioned and to any other material which bears upon the reasonableness of the conduct under the circumstances then obtaining. Doubts are to be resolved against the government. It must, as we have said, carry the burden of proving the continued integrity of the tapes by clear and convincing evidence. If it fails to do so, the inquiry is at an end. And, even if the court is satisfied that the evidence is unsullied, the government must yet prove, by a fair preponderance, that the explanation for the delay, taken in all its aspects, is otherwise satisfactory.
IV
We are conscious that the district court, forced by conflicting precedent to guess at the dispositive criteria, approached its factfinding chores with a somewhat different yardstick in hand. Yet, we have no occasion to return the cases to the court below. As matters turn out, the district court, in its thorough treatment of the matter, has already made the key findings of fact.7 It remains for us only to group those findings along the matrix which we have constructed.
The integrity of the recordings—those obtained in April and those obtained in May—is not seriously questioned in this case. The district court found “[n]o evidence of any tampering with the tapes,” Mora I, 623 F.Supp. at 366, a finding not contested in the course of this appeal. We have scoured the record, searching in vain for any intimation that the content of the tapes was compromised. We can report that there is not a scintilla of evidence to that effect. Despite the fact that the evidence was not seasonably presented for judicial sealing, the reel-to-reel master recordings were kept under high security and in circumstances which betokened their continued integrity. The government proved clearly and convincingly that the intercepts remained unsullied. The nisi prius roll, uncontradicted in this regard, confirms that “the purposes of the seаling requirements were fulfilled in this case.” Id. at 365.
We turn now to the length of the delays. The district court found these gaps to measure twenty days and forty-one days, respectively. Id. at 364. Accepting those findings for the sake of argument,8 the duration of the lapses is not so great as to require automatic exclusion of the evidence. Indeed, though different courts have viewed the meaning of
The last of the enumerated factors is the cause which led to the lack of immediacy. The reasons underlying these snafus were catalogued by the district court, Mora I, 623 F.Supp. at 364-65, and we need not dwell upon them. They center about Nappan‘s failure to understand his responsibilities under the federal statute and his preoccupation with other (unrelated) trials. The record confirms the district judge‘s assessment that, in responding sluggishly to his (and derivatively, the prosecution‘s) responsibilities vis-a-vis presentation of the evidence for judicial sealing, Nappan “acted in ignorant bliss and negligently but that he was not consciously or deliberately failing to perform his duty, nor was he acting in bad faith.” Id. at 365. We do not condone or pardon such conduct, but we cannot condemn it as severely as if a purposeful attempt to evade the law or unfairly to pillory a suspect had transpired. Putting the worst face on things, the delays in this instance came about by honest mistake, negligently rather than intentionally.
When all of these facts are filtered through the seine of whаt comprises a satisfactory explanation in the
V
We conclude that
In our view, such an explanation invariably embodies proof, by clear and convincing evidence, that the tapes have not been tampered with, edited, or spoiled in any way. Beyond such proof, the adequacy of the government‘s explanation must take into account factors such аs whether or not those objecting to the evidence have been harmed by the sealing delay; whether or not the prosecution has gained some unfair tactical advantage attributable to noncompliance; the length and frequency of the delays; and the underlying reason for the untimely presentment.
In this instance, we find the government‘s explanation of the sealing delays to have been sufficient. We note, once again, that the tapes were unsullied, the defendants not prejudiced, the prosecution not advantaged, the lack of immediacy not contumaciously generated, and the interval not outrageous. The district court did not err in refusing to suppress the contested evidence. And having so concluded, we find it unnecessary to reаch the appellee‘s alternate contention that it should have been allowed to use the tapes in any event on the authority of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
Affirmed.