UNITED STATES OF AMERICA, PETITIONER V. FILIBERTO OJEDA RIOS, ET AL. No. 89-61 In the Supreme Court of the United States October Term, 1989 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit PARTIES TO THE PROCEEDING In addition to the named parties, Hilton E. Fernandez Diamante, Jorge A. Farinacci Garcia, Elias S. Castro Ramos, Orlando Gonzalez Claudio, Isaac Camacho Negron, Ivonne Melendez Carrion, Angel Diaz Ruiz, and Luis A. Colon Osorio are respondents. TABLE OF CONTENTS Question Presented Parties to the Proceeding Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-14a) is reported at 875 F.2d 17. The opinion of the district court suppressing evidence (App., infra, 17a-96a) is reported at 695 F. Supp. 649. The opinion of the district court on the government's motion for reconsideration (App., infra, 15a-16a) is unreported. JURISDICTION The judgment of the court of appeals was entered on May 5, 1989. On June 26, 1989, Justice Marshall extended the time for filing a petition for a writ of certiorari to and including July 14, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Section 2518 (18 U.S.C.) provides in relevant part: * * * * * (8)(a) 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. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517. (b) Applications made and orders granted under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years. * * * * * (10)(a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that -- (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. QUESTION PRESENTED Whether tape recordings of conversations obtained pursuant to court-authorized electronic surveillance should be suppressed because of a delay in the judicial sealing of the tapes, even if the tapes that are offered into evidence are proved to be the unaltered originals. STATEMENT A 17-count indictment returned in the United States District Court for the District of Connecticut charged respondents and ten others with offenses pertaining to the September 12, 1983, robbery of the Wells Fargo depot in West Hartford, Connecticut. /1/ Approximately $7.2 million was taken during the robbery. Evidence connecting respondents to the robbery was discovered during an investigation of their involvement in a rocket attack on the FBI office in Hato Rey, Puerto Rico. The targets of the investigation, including respondents, were members of a Puerto Rican organization known as "Los Macheteros," the "machete wielders." During the investigation, court-authorized electronic surveillance was conducted at six different locations between April 1984 and August 1985. /2/ Following the return of the indictment, respondents moved to suppress all the evidence obtained as a result of the electronic surveillance. App., infra, 17a-19a; Gov't C.A. Br. 4-5. After an eight-month suppression hearing, /3/ the district court granted the motion to suppress with respect to conversations recorded at two locations; the court denied the motion in all other respects. App., infra, 17a-96a; Gov't C.A. Br. 3. On the government's appeal, the court of appeals affirmed. App., infra, 1a-14a. 1. On April 27, 1984, Chief Judge Perez-Gimenez of the United States District Court for the District of Puerto Rico authorized the FBI to intercept oral communications at the apartment of respondent Filiberto Ojeda Rios in Levittown, Puerto Rico. Ojeda Rios, who had no home telephone, used three public telephones across the street from his apartment. Accordingly, the judge also authorized the interception of wire communications at those telephones. On May 11, 1984, Judge Perez-Gimenez authorized the placement of a microphone in Ojeda Rios's automobile, a Datsun Sentra. The orders for the Datsun and for the Levittown apartment and the public telephones were extended on several occasions. Suspecting that his conversations in Levittown were being intercepted, Ojeda Rios moved from Levittown to the El Cortijo, Puerto Rico, residence of respondent Luis Colon Osorio in July 1984. In light of that move, the FBI ceased monitoring at Levittown on July 9, 1984, although the final extension for the Levittown apartment and telephones did not expire until July 23, 1984. On July 27, the government received authorization to intercept the telephones and to place a microphone in Ojeda Rios's new residence in El Cortijo. The final extension for the El Cortijo order expired on September 24, 1984. App., infra, 75a. The final extension for the surveillance of Ojeda Rios's Datsun expired on October 10, 1984. The Levittown, El Cortijo, and Datsun tapes were judicially sealed on October 13, 1984. App., infra, 19a-21a, 69a n.8; Gov't C.A. Br. 24-25. On November 1, 1984, the FBI received authorization to intercept conversations at the Vega Baja residence of defendants Juan Segarra Palmer and Luz Berrios Berrios. The court extended that order each month for seven months; the last extension expired on May 30, 1985. On January 18, 1985, authorization was also given to intercept conversations at two public telephones near the Vega Baja residence. That order expired on February 17, 1985. The government applied for an extension of the January order on March 1, 1985, and the new order issued on that date. After two more extensions, the final Vega Baja extension expired on May 30, 1985. The tapes of all conversations recorded at the Vega Baja residence and the nearby public telephones were judicially sealed on June 15, 1985. App., infra, 21a, 79a-80a; Gov't C.A. Br. 9-10. 2. In their motions to suppress all the conversations intercepted during the investigation, respondents alleged that the tapes were inadmissible because they had not been sealed "immediately," as required by 18 U.S.C. 2518(8)(a). App., infra, 17a. During the suppression hearing, respondents also sought to show that the tapes had been altered and were not in their original form. The government offered expert evidence to show that the tapes had not been altered, and it made a detailed showing of the measures that had been taken to preserve the integrity of the tapes. Id. at 23a-24a, 31a-35a, 51a-53a. With respect to the judicial sealing requirement, the government showed that Frank Bove, the supervising attorney who was responsible for having many of the tapes sealed, was aware of the statutory sealing requirement, but interpreted the statutory language to mean that the sealing obligation did not arise until all related intercept orders and their extensions had expired. Id. at 76a-77a. Accordingly, Bove had arranged for Judge Perez-Gimenez to seal the related Levittown, El Cortijo, and Datsun tapes on October 11 and 13, 1984, at the time of the expiration of the last of the intercept orders for those locations. Id. at 35a-36a, 62a. Bove arranged for the sealing of the tapes from the Vega Baja intercepts at the end of May 1985, following the end of the last extension of the intercept authorization for that location. An administrative error caused a delay of approximately two weeks, and the steps necessry to seal the Vega Baja tapes were not completed until June 12, when Bove asked Judge Perez-Gimenez to seal those tapes. The judge sealed the Vega Baja tapes on June 15, 1985. Id. at 85a-86a. 3. At the conclusion of the suppression hearing, the district court admitted some of the tape-recorded conversations and excluded others. With respect to the challenge to the integrity of the tapes, the district court credited the testimony of the government's expert and found that the government had proved by clear and convincing evidence that the tapes being admitted into evidence were in their original form and had not been tampered with. App., infra, 55a-61a. Turning to the issue of the delays in the judicial sealing of the tapes, the district court held that the obligation to seal the 455 tapes from the oral and wire interceptions at Levittown arose on July 23, 1984, when the final extension of the original Levittown order expired. The court rejected the government's argument that the El Cortijo order was an extension of the Levittown order because the change in location was required by the movement of the target, respondent Ojeda Rios. The court thus rejected the government's contention that the sealing obligation for the Levittown tapes did not ripen until September 24, 1984, when the final El Cortijo extension expired. App., infra, 67a-69a. Accordingly, the court found that there had been at least an 82-day delay in sealing from July 23 to October 13, when the Levittown tapes were judicially sealed. /4/ Id. at 63a-65a. The court found this delay to be "excessive as a matter of law" and held that it required the automatic suppression of all the Levittown tapes, regardless of whether the government could prove that those tapes had not been altered (and thus that the delay in sealing did not affect the integrity of the tapes). Id. at 66a. The court noted that because it was suppressing the Levittown tapes, it was not necessary to decide whether the integrity of those tapes had been maintained. Id. at 30a n.3. The court refused to suppress the El Cortijo tapes, although there was a 19-day delay in sealing those tapes, because (1) the tapes were "pristine" (App., infra, 76a); (2) the sole cause of the delay was attorney Bove's misunderstanding of the statutory sealing requirement; (3) Bove diligently sought sealing once he believed the statutory obligation had ripened; and (4) respondents were not prejudiced by the delay. Id. at 72a-79a. Turning to the Vega Baja public telephone tapes, the court held that the obligation to seal the tapes made pursuant to the initial intercept order ripened on February 17, 1985, when that order expired. The court acknowledged that the initial order was extended several times, but it held that the extensions could not postpone the sealing obligation unless the government provided a "satisfactory explanation" for the 12-day hiatus between the expiration of the original order and the first extension. The court held that the government's explanation for this delay -- that the government was attempting to revise the underlying affidavit on which the Vega Baja applications were based -- was not satisfactory. App., infra, 82a-83a. Accordingly, the court calculated that 118 days had expired between the expiration of the original Vega Baja public telephone order on February 17, and June 15, when all the Vega Baja tapes were sealed. The court held that this delay was "excessive as a matter of law," and it suppressed the Vega Baja public telephone tapes that had been obtained pursuant to the January 18 order. Id. at 83a. The court did not suppress the remaining Vega Baja tapes, despite the 16-day delay (from May 30 to June 15) in sealing those tapes. The court reasoned that suppression was not required because the government had proved by clear and convincing evidence that the tapes had not been altered and because respondents were not prejudiced by the delay, which was the result of a good faith misunderstanding between the prosecutor and the FBI as to who would initiate the sealing process. App., infra, 84a-88a. The court specifically found that the government had not used the 16-day delay "to tamper with the tapes or in any way use the tapes to gain some advantage." Id. at 84a. 4. The government appealed the suppression of the Levittown tapes and the Vega Baja public telephone tapes that were recorded pursuant to the January 18, 1985, intercept order. The court of appeals affirmed. App., infra, 1a-14a. The court observed that when tapes are not sealed within one or two days after the expiration of a wiretap order, the government bears the burden of offering a satisfactory explanation for the delay as a prerequisite to the tapes' admissibility. Id. at 7a. The court disagreed with those circuits that "excuse sealing delays simply upon proof of the integrity of the tapes." Id. at 8a. /5/ The court of appeals agreed with the district court's conclusion that there had been a delay of at least 82 days in sealing the Levittown tapes. App., infra, 11a. Although it did not agree with the district court's conclusion that the Levittown tapes should be suppressed "on the basis of time alone," id. at 11a-12a, the court nevertheless concluded that suppression was required. In light of the length of the delays in sealing, the court found that the government's explanation was not "satisfactory," because it "resulted from a disregard of the sensitive nature of the activities undertaken." Id. at 12a. /6/ With respect to the Vega Baja public telephone tapes, the court of appeals agreed with the district court that the government was required to provide a "satisfactory explanation" for the 12-day hiatus between the expiration of the January 18 order on February 17, 1985, and the issuance of the March 1 extension order. The court of appeals also agreed with the district court that the government's explanation for that delay was insufficient. App., infra, 14a. The court therefore concluded that the March 1 surveillance order was not an "extension" of the January 18 order, but was instead a new and independent order. For that reason, the court concluded that the tapes obtained pursuant to the January 18 order should have been sealed shortly after February 17, rather than in June, after the expiration of the subsequent Vega Baja intercept orders. The court of appeals therefore agreed with the district court that there had been a 118-day delay in sealing the tapes recorded pursuant to the first Vega Baja telephone order. Because it found that delay unjustified, the court agreed with the district court that the products of the January 18 order had to be suppressed. Id. at 14a. REASONS FOR GRANTING THE PETITION Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, establishes specific procedures for electronic surveillance of oral and wire communications. Under the terms of the statute, recordings of intercepted conversations must be sealed under the direction of a judge "(i)mmediately upon the expiration of the period of the (electronic surveillance) order, or extensions thereof." 18 U.S.C. 2518(8)(a). The question in this case is whether a delay in the judicial sealing of the tapes should result in suppression, even if the evidence establishes that the tapes have not been altered. The courts of appeals are divided on that question, and this case provides an appropriate vehicle for resolving that conflict. The issue is important because, despite the best efforts of supervising attorneys, there will from time to time be situations where tapes will not be sealed "immediately" on termination of an intercept order. As this case demonstrates, these inadvertent failures are particularly likely to occur in the course of complex investigations, involving interrelated surveillances. It is precisely such investigations, which often lead to important criminal prosecutions, in which the suppression of properly intercepted and protected tapes can be most devastating. Moreover, uncertainty about the applicable standards can complicate the issues that must be litigated in connection with motions to suppress wiretap evidence. A decision by this Court clarifying those standards will thus help ease the burdens imposed by complex criminal cases on both the courts and the parties. 1. The courts below did not conclude that the sealing delays resulting from attorney Bove's misunderstanding of the statutory sealing requirement violated any right guaranteed by the Constitution. Nor did the lower courts conclude that the delays harmed respondents in any way. Instead, relying on language in 18 U.S.C. 2518(8)(a), the courts deemed the tapes inadmissible solely because the government failed to offer a "satisfactory explanation" for the delays. Neither the statute nor its legislative history supports this result. By its terms, Section 2518(8)(a) requires a "satisfactory explanation" only for the "absence" of a judicial seal. Significantly, Congress did not mandate suppression as the required remedy when the tapes are sealed but sealing is delayed. In fashioning a remedy for sealing delays, the courts should be guided by the purposes of the sealing requirement. The principal purpose of that requirement is "to insure that accurate records will be kept of intercepted communications." S. Rep. No. 1097, 90th Cong., 2d Sess. 104 (1968). See United States v. Mora, 821 F.2d 860, 867 (1st Cir. 1987); United States v. Diana, 605 F.2d 1307, 1314 (4th Cir. 1979), cert. denied, 444 U.S. 1102 (1980); United States v. Lawson, 545 F.2d 557, 564 (7th Cir. 1975), cert. denied, 424 U.S. 927 (1976); United States v. Falcone, 505 F.2d 478, 483 (3d Cir. 1974), cert. denied, 420 U.S. 955 (1975). /7/ Accordingly, a delay in sealing should not result in the suppression of evidence if the court is satisfied that the tapes offered into evidence were not tampered with and therefore accurately represent the conversations that were intercepted. /8/ This conclusion is buttressed by Section 2518(10)(a), the principal suppression provision of Title III. Under Section 2518(10)(a), suppression is reserved for the "failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." United States v. Donovan, 429 U.S. 413, 433-434 (1977), quoting United States v. Giordano, 416 U.S. 505, 527 (1974). Section 2518(10)(a) thus prohibits the use of evidence obtained in violation of the pre-interception procedures and minimization requirements of Title III -- the provisions that protect Fourth Amendment privacy interests. See S. Rep. No. 1097, supra, at 66, 103. But suppression has not been required in the case of violations of statutory requirements that were not designed to protect privacy by restricting the use of electronic surveillance. Thus, the Court has held that suppression is inappropriate for violations such as (1) misidentification of the authorizing Department of Justice official in the warrant application (United States v. Giordano, supra); (2) failure to list in the application every individual whose conversations the government expects to intercept during the electronic surveillance (Donovan, 429 U.S. at 435-547); and (3) failure to inform the authorizing judge of all identifiable persons whose conversations were intercepted (429 U.S. at 438-439). Like other post-interception procedures, the sealing requirement does not limit the use of electronic surveillance. /9/ Thus, an unexplained delay in sealing does not make the tapes subject to suppression under 18 U.S.C. 2518(10). See United States v. Falcone, 505 F.2d at 484. And Section 2518(8) provides for suppression only when there has been a complete failure to obtain judicial sealing and there is no satisfactory explanation for the failure. In light of the express limitations on the scope of required suppression in Sections 2518(8) and 2518(10), it is unlikely that Congress intended to create, by implication, a remedy of mandatory suppression for a delay in sealing, a violation that does not fall within either of the two statutory suppression provisions. The requirement of immediate sealing is best viewed as an evidentiary rule that implements one of the devices Congress elected to assure that taped conversations to be admitted in evidence will be accurate. Accuracy should be assumed if the tapes are sealed "immediately" upon the conclusion of surveillance. If there is a delay in sealing, the tapes nevertheless should be admitted if the government can prove that they were not tampered with or otherwise altered during the period of delay. 2. As the court of appeals candidly acknowledged, most courts have concluded that recorded conversations are admissible despite sealing delays if the government proves that the tapes have not been altered. See, e.g., United States v. Angelini, 565 F.2d 469 (7th Cir. 1977), cert. denied, 435 U.S. 923 (1978); United States v. Diadone, 558 F.2d 775, 780 (5th Cir. 1977), cert. denied, 434 U.S. 1064 (1978); United States v. Lawson, 545 F.2d 557, 564 (7th Cir. 1975), cert. denied, 424 U.S. 927 (1976); United States v. Cohen, 530 F.2d 43, 46 (5th Cir.), cert. denied, 429 U.S. 855 (1976); United States v. Sklaroff, 506 F.2d 837, 840-841 (5th Cir.), cert. denied, 423 U.S. 874 (1975); United States v. Falcone, 505 F.2d 478, 484 (3d Cir. 1974), cert. denied, 420 U.S. 955 (1975); United States v. Vastola, 670 F. Supp. 1244, 1282 (D.N.J. 1987). Cf. McMillan v. United States, 558 F.2d 877, 879 (8th Cir. 1977) (refusing to consider collateral attack alleging sealing delay since defendant did not challenge the integrity of the tapes). The Third Circuit has held 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." Falcone, 505 F.2d at 484. The "crucial factor," that court observed, "is the integrity of the tapes." Ibid. The Fifth Circuit has employed a similar approach. As that court explained, the purpose of the statutory requirement of immediate sealing "is to safeguard the recordings from editing or alteration." Sklaroff, 506 F.2d at 840. Therefore, where there is "no showing that the integrity of the interceptions was in any way violated," ibid., the evidence should be admitted. The Seventh Circuit uses a somewhat different approach, but with respect to the issue of suppression it takes the same position as the Third and Fifth Circuits. In the case of a sealing delay, the Seventh Circuit employs a two-part analysis: it first looks to whether the government has offered a satisfactory explanation for the delay. If so, the inquiry does not proceed farther. If not, the court must inquire whether the purposes of the sealing requirement have been undermined and suppression required as a result. Angelini, 565 F.2d at 471. Even absent a satisfactory explanation for the delay, the Seventh Circuit permits the evidence to be admitted if "the Congressional purposes underlying the sealing requirement were met" despite the delay, i.e., if "there is no substantial question raised about the integrity of the tapes." Id. at 473. The Second Circuit has adopted a far more restrictive approach, severely limiting the circumstances in which demonstrably unaltered tapes can be admitted into evidence where there has been a lengthy sealing delay. /10/ In this case, for example, the court held that, where the delays were substantial, the government could not defeat respondents' suppression motions by proving that the tapes had not been altered. While disclaiming exclusive reliance on the length of the delay, the Second Circuit apparently regarded the length of the delay as the crucial factor. As we previously indicated, the sealing delays for the suppressed Levittown tapes and the admitted El Cortijo tapes both resulted from attorney Bove's misunderstanding of the statutory requirement. In addition, both sets of tapes were afforded identical protection against tampering, and samples from the Levittown tapes were included in those subjected to expert analysis and found unaltered. The only arguably relevant difference between the two is that the delays were substantially longer for the Levittown tapes, which were suppressed, than for the El Cortijo tapes, which were not. App., infra, 13a, 66a, 76a-78a. /11/ In an earlier case, United States v. Massino, 784 F.2d 153, 158-159 (1986), the Second Circuit set forth specific procedures and remedies for sealing delays. The court directed that in all future cases, tapes must be sealed within two days of the expiration of the wiretap order. If sealing is completed in more than two days but less than five days, the government must, at the time of sealing, file an explanation with the court in camera, with supporting affidavits, as to the reasons for the delay. If the delay exceeds five days, the government must move for an extension of time within which to obtain judicial sealing. In that motion, the government must set forth the reason for the delay and attach supporting affidavits. The court warned that "(a) failure by the government to follow this procedure will of course undermine any claim of satisfactory explanation." Id. at 159. /12/ The instant case tellingly demonstrates why it is wrong to attach such great weight to the length of the delay, even when the tapes are shown to be unaltered. The delay in sealing the Levittown tapes was the product of the supervising attorney's misunderstanding of when the obligation to seal ripened. /13/ And the delay in sealing the Vega Baja tapes was the product of the attorney's belief that the March 1 Vega Baja intercept order was an extension of the January 18 order, even though there was a 12-day hiatus between the two interceptions. Those two legal errors resulted in virtually the entire delay in this case; the case was not one in which the delay was attributable to lackadaisical performance on the part of the agents or the supervising attorney, and in which each passing day of delay could be regarded as reflecting an increasing degree of fault. Similarly, the supervising attorney would not have had reason to believe he should take curative steps of the kind required by the Second Circuit in Massino. He had no reason to believe that he needed to provide the district court with a contemporaneous explanation of the reasons for his delay, nor did he have any reason to believe he needed to apply for an extension of time within which to seal the tapes. Compliance with Massino is simply impossible whenever the government mistakenly believes that it is not yet required to obtain judicial sealing. This case also demonstrates that the Massino procedures are not needed to "create an incentive for the government to give priority to sealing" (784 F.2d at 159). The consequence of the government's delay in presenting the tapes for judicial sealing in this case was an eight-month suppression hearing at which the government bore the burden of proving by clear and convincing evidence that the tapes had not been altered. In contrast to the enormous amount of time and effort required to prove the integrity of the tapes, presenting them for prompt judicial sealing would have occasioned only minimal effort. The government clearly needs no additional incentive to attend faithfully to the statutory requirement of prompt sealing. 3. The First Circuit agrees with the Second Circuit that the statutory requirement of a "satisfactory explanation" (Section 2518(8)(a)) applies not only to the absence of a seal, but also to delays in sealing, and that proof that the tapes are in their original form is not necessarily sufficient to justify their admission. United States v. Mora, 821 F.2d 860, 866-869 (1st Cir. 1987). In evaluating the government's explanation for sealing delays, the First Circuit has held that a court should "look first -- and most searchingly -- at whether the government has established by clear and convincing evidence that the integrity of the tapes has not been compromised." Mora, 821 F.2d at 867. But the court also observed that "warranties of driven snow purity, proven beyond peradventure, will not suffice to constitute a 'satisfactory explanation.'" Id. at 868. In addition, the court identified a number of other factors to be considered in evaluating the adequacy of the government's explanation for a sealing delay: prejudice to the defendant, benefit to the government, the length of the delay, and the cause of the delay. Id. at 868-869. Even under the First Circuit's approach, however, there is no reason to suppress here. First, "the delay in presenting the tapes for judicial sealing came about in good faith." Mora, 821 F.2d at 868. The Mora court explained that requirement as having two components: lack of prejudice to the accused and lack of unfair benefit to the government. Ibid. Respondents have not asserted that they were prejudiced by the delay, nor did the delay result in any unfair advantage to the government. Indeed, it is hard to imagine any way in which a sealing delay that did not result in tampering could either prejudice a defendant or give the government an unfair advantage. The Mora court also considered the cause of the delay, distinguishing between "(a)n explanation * * * reflective of gross dereliction of duty or wilful disregard for the sensitive nature of the (surveillance)" and one in which "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." 821 F.2d at 869. The delays here were clearly of the latter type. They did not result from carelessness, failure to give appropriate priority to the sealing requirement, or other sanctionable behavior. Rather, with respect to both the suppressed Levittown and Vega Baja tapes, the delay was caused by the supervising attorney's honest misunderstanding of when the obligation to seal arose. The attorney reasonably believed that judicial sealing was unnecessary until all related orders and extensions had expired. /14/ Solely because of that one error, he did not seek judicial sealing for the Levittown tapes until the El Cortijo and Datsun orders and extensions had expired. The attorney's failure to initiate the sealing of the first set of Vega Baja public telephone tapes until after the final extension order for those telephones expired was at least equally reasonable. Because there was a 12-day hiatus between the expiration of the initial order on February 17, 1985, and the issuance of the extension on March 1, 1985, the court of appeals upheld the district court's refusal to treat the March 1 order as an extension of the initial order. /15/ Like the district court, the court of appeals found the government's explanation for the 12-day hiatus insufficient. App., infra, 13a-14a, 82a-83a. But the statute, which places no time limit at all on seeking an extension, certainly does not require any explanation for a delay in obtaining one. See 18 U.S.C. 2518(5). In short, the supervising attorney, who was conducting an investigation in the First Circuit, not the Second, was faulted for failing to apply the special Second Circuit analysis and to conclude that the first group of Vega Baja tapes should have been sealed in February 1985. Finally, the First Circuit in Mora looked to the length of the delay. But unlike the Second Circuit, the First Circuit apparently finds this factor significant only because of its effect on the others (821 F.2d at 868-869): "(t)he longer the delay, the greater looms the danger of adulteration; the longer the delay, the harder it may become to show, say, good faith or the absence of undue prejudice. And the lengthier the delay, the more difficult to find the government's explanation 'satisfactory.'" From this perspective, the "length of the delay" factor does not require suppression here, since there was no alteration of the tapes, no prejudice or lack of good faith, and the cause of the delay was in both instances a perfectly reasonable misunderstanding of the point at which the obligation to present the tapes for sealing arose. In sum, under the test applied by any court other than the Second Circuit, the sealing delays in this case would not have resulted in the suppression of evidence. This Court should grant review to resolve the conflict among the circuits on the proper standard to be used in determining when a delay in sealing the products of court-authorized electronic surveillance should lead to suppression. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General PATTY MERKAMP STEMLER Attorney JULY 1989 /1/ Respondents and their co-defendants were charged with bank robbery, in violation of 18 U.S.C. 2113(a); aggravated bank robbery, in violation of 18 U.S.C. 2113(d); theft from an interstate shipment, in violation of 18 U.S.C. 659; interstate transportation of stolen money, in violation of 18 U.S.C. 2314; interference with commerce by robbery, in violation of 18 U.S.C. 1951; and conspiracy, in violation of 18 U.S.C. 371 and 1951. Of the ten co-defendants who are not respondents in this case, two have pleaded guilty to charges arising out of the indictment, four have been convicted after a jury trial, and one has been acquitted. Three of the ten co-defendants remain fugitives. An additional co-defendant, who was charged in the original indictment but not in the superseding indictment, has been placed on pretrial diversion. /2/ In addition to the interceptions described below, electronic surveillance was also conducted at the residence of two co-defendants in Santurce, Puerto Rico, and at a condominium in Hato Rey, Puerto Rico, that was used by the conspirators. App., infra, 20a-21a. The district court did not suppress the tape-recorded conversations obtained as a result of those interceptions, id. at 79a, 94a, and the admissibility of that evidence is therefore not at issue here. /3/ The court heard testimony from 20 FBI agents who monitored the recorded conversations, from FBI agents who were involved in presenting the tapes for judicial sealing, from the FBI electronic surveillance clerk who maintained custody of the tapes after interception, from the Department of Justice attorneys who supervised the electronic surveillance investigation, and from defense and government experts who addressed the issue of the authenticity of the tapes. App., infra, 17a. /4/ Although the interception at Levittown was discontinued several days before the Levittown intercept order expired, the court found it unnecessary to decide which event triggered the obligation to have the court seal the tapes. App., infra, 63a-66a. /5/ The court cited cases from the Third, Fifth, Seventh, and Eighth Circuits as examples of the approach it rejected: United States v. Falcone, 505 F.2d 478, 484 (3d Cir. 1974), cert. denied, 420 U.S. 955 (1975); United States v. Diadone, 558 F.2d 775, 780 (5th Cir. 1977), cert. denied, 434 U.S. 1064 (1978); United States v. Cohen, 530 F.2d 43, 46 (5th Cir.), cert. denied, 429 U.S. 855 (1976); United States v. Angelini, 565 F.2d 469, 471 (7th Cir. 1977), cert. denied, 435 U.S. 923 (1978); United States v. Lawson, 545 F.2d 557, 564 (7th Cir. 1975), cert. denied, 424 U.S. 927 (1976); McMillan v. United States, 558 F.2d 877, 879 (8th Cir. 1977). /6/ Although the court agreed that the same mistaken interpretation of law that led to the delay in sealing the Levittown tapes "might help to excuse the nineteen-day delay (found acceptable) in respect to the later El Cortijo tapes," it imposed a higher standard for the longer delay. App., infra, 13a. /7/ A second and related purpose of Section 2518(8)(b) is to protect the information in the recordings from unauthorized disclosure (see S. Rep. No. 1097, supra, at 105). That purpose is accomplished by the use of careful custodial procedures of the sort the FBI employed in this case. See App., infra, 30a-36a. There is no suggestion that the sealing delays led to any unauthorized disclosure of the suppressed tapes in this case. /8/ The Senate Report recognizes that judicial sealing is not sufficient, standing alone, to ensure the integrity of the tape recordings. The Report suggests that "(a)ppropriate 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, supra, at 104. The Report thus indicates that Congress regarded the integrity of the tapes as the keystone to their admissibility. /9/ As the Court recognized in Donovan, even where there has been a lack of total compliance with a post-interception procedure, the conversations have nevertheless been "'seized' under a valid intercept order." 429 U.S. at 438. /10/ Several circuits, including the court of appeals in this case (App., infra, 8a), have noted the conflict between the approach taken by the Second Circuit and the less restrictive approach embraced by other courts. See, e.g., United States v. Diana, 605 F.2d at 1314 (noting conflict among the circuits, but finding it unnecessary to decide whether integrity of the tapes alone is sufficient to defeat a motion to suppress for delay in sealing); United States v. Angelini, 565 F.2d at 473 n.7 (Second Circuit's approach "inexplicably elevates the immediate sealing requirement to a more protected status than any of the other procedural requirements enacted in Title III"). /11/ Although the district court declined to make findings as to the integrity of the suppressed Levittown tapes, that does not affect the analysis of this case, since the district court and the court of appeals concluded that suppression was required even assuming the suppressed tapes were as pristine as those admitted into evidence. /12/ The Massino standards were not applied by their terms in this case, because the investigation was completed before Massino was decided. /13/ For purposes of this case, we do not challenge the court of appeals' conclusion that the supervising attorney was legally wrong in believing that the Levittown tapes could be sealed after the termination of the related El Cortijo and Datsun intercept orders, and in believing that the Vega Baja intercept orders for March, April, and May of 1985 were extensions of the January 18 Vega Baja intercept order. Nonetheless, as we note below (notes 14-15, infra), the attorney's views on those matters, even if incorrect, were not unreasonable. /14/ The attorney's interpretation of the statute was almost identical to the Second Circuit's reading of the statute in United States v. Principie, 531 F.2d 1132 (1976), cert. denied, 430 U.S. 905 (1977). Under Section 2518(8)(a) and (d), both the sealing requirement and the notification requirement ripen upon the expiration of the electronic surveillance order, or "(a)ny extensions thereof." In Principie, the court held that for notification purposes, an order is extended if the target is the same but the location of the surveillance has changed because the target moved to evade detection. Under this definition of "extension," the surveillance at El Cortijo was plainly an extension of the surveillance at Levittown, because respondent Ojeda Rios was the primary target of the surveillance at each location, and the Levittown surveillance was abandoned only because he had moved to El Cortijo to evade detection. Therefore, Principie could reasonably be read to indicate that the sealing obligation for the tapes relating to Ojeda Rios's successive residences did not ripen until the El Cortijo tapes were completed. Even though the court below ultimately refused to adopt that reading of Principie (App., infra, 10a-11a), it was nevertheless a reasonable one at the time the attorney had to decide when to present the tapes for sealing. His decision to wait until the expiration of the El Cortijo surveillance was thus objectively reasonable, even if ultimately incorrect. It was, at worst, an "honest mistake." Mora, 821 F.2d at 869. /15/ The district court candidly recognized (App., infra, 82-83a) that "(t)he March 1, 1985 order covered the same telephones, concerned the same crimes, and targeted the same individuals as the * * * initial order. Thus, it was an extension of the first as the term has been defined in (United States v.) Vazquez, 605 F.2d (1269,) 1278 ((2d Cir.), cert. denied, 444 U.S. 981 (1979))." On this point Vazquez is in accord with the universal view. But the district court then applied unique Second Circuit precedent (United States v. Gigante, 538 F.2d 502 (1976)) to require a satisfactory explanation for the delay in obtaining the extension order. Finding the explanation unsatisfactory, the district court refused to treat the March 1 order as an extension for purposes of the sealing requirement. The effect of this analysis was to require those responsible for this investigation in the First Circuit to predict the eventual outcome of the application of the special Second Circuit rule in determining whether the subsequent order will be considered an extension for purposes of the sealing requirement. Although the court of appeals' analysis is less clear (App., infra, 13a-14a), it apparently followed the same route. APPENDIX