Armenakis prepared a third application, affidavit and order,
which was signed by Judge Ackerman on May 14, 1985. Transcript
at 59. On the face of the May 14, 1985 order, Armenakis wrote,
"Second Extension." Transcript at 62. At some point, Armenakis
learned that Video Warehouse was to change locations, and it
did in fact change locations. Transcript at 40-41. Interception
at the West Long Branch Video Warehouse actually ceased on May
31, 1985 although the order authorizing interception did not
expire until June 13, 1985. Transcript at 40, 63. It was
Armenakis' intention to continue to intercept at Video
Warehouse's new location in Neptune City. As a result, she
applied to the Justice Department in Washington, D.C. to
approve an authorization to continue interception at the new
Video Warehouse location at the end of May. Transcript at 41.
After a period of time longer than she anticipated, Washington
authorized the interception on June 26, 1985. Transcript at
Armenakis prepared an application, affidavit and order to
obtain authorization to engage in electronic surveillance at
the new Video Warehouse location in Neptune City which was
signed by Judge Lacey on June 26, 1985. Transcript at 66-67.
The face of the June 26th order did not contain the words
extension, second extension or third extension. Transcript at
67-68. The June 26, 1985 order contained a new target, Ideal
Distributors, and a new premises for Video Warehouse.
Transcript at 68. While Armenakis felt the June 26, 1985 order
was an extension of the previous order for Video Warehouse, she
did not so caption the June 26, 1985 order as the order also
served as an original electronic surveillance order for Ideal
Distributors. Transcript at 84-85. She thought labeling the
order as an extension would be too confusing due to the
addition of Ideal Distributors. Transcript at 84-85.
Armenakis prepared another application, affidavit and order
to continue interception at the Neptune City Video Warehouse
which was signed by Judge Fisher on July 26, 1985. Transcript
at 73-74. She remained in charge of the case until early
August, 1985, when she was removed for obtaining an order for
wiretapping which had not been cleared through the Department
of Justice. Transcript at 50. The incident involved the July
26, 1985 extension order authorizing continued interception at
the Neptune City Video Warehouse. Armenakis prepared the
application for that order and signed it under oath. In the
paperwork, Armenakis indicated that she had received Department
of Justice authorization for the electronic surveillance which
she had not obtained. Transcript at 51, 74.
Armenakis' understanding of the sealing requirement under the
Wiretap Act "was that when the investigation was completed that
you immediately sealed whatever tapes had been obtained."
Transcript at 42-43; see Transcript at 75, 76-78. She obtained
this understanding by studying "the statute and several of the
annotations. I spoke with other more experienced attorneys in
the office on wiretaps and it was . . . my understanding which
appeared to be consistent throughout the office." Transcript at
43, 77-79. When she "began the investigation, [she] outlined
the statute and [she] read relevant annotations." Transcript at
81-82. While at the United States Attorney's Office, Armenakis
was given a manual to review and maintain, Proving Federal
Crimes which contained some information on electronic
surveillance; however, she was given no specific training in
that area. Transcript at 47, 48-49. She did not recall
reviewing any particular guidelines, instructions, manuals,
treatise, or cases with regard to her sealing obligation with
the West Long Branch Video Warehouse premises although she "was
reviewing documents all the time." Transcript at 74-75, 48-49.
Even though it was not the completion of the investigation,
and she understood that sealing was not required until the
completion of the investigation, Armenakis prepared the
necessary paperwork to have the West Long Branch Video
Warehouse tapes sealed on July 15, 1985. Transcript at 43-44,
45. She sealed the tapes as a housekeeping matter after the
F.B.I. Custodian of the tapes mentioned to the agent on the
case, John Mahoney, that the F.B.I. numbers on the tapes had
changed due to the new Video Warehouse location. Transcript at
43-44. She discussed this with other Assistants who suggested
it would be appropriate under the circumstances to seal the
tapes. Transcript at 87. Armenakis then made the decision to
seal the tapes at that time since they were not going to be
using those particular F.B.I. numbers any more. Transcript at
44. The tapes were sealed as a matter of convenience.
Transcript at 45. No one suggested to her that she needed to
get the tapes sealed. Transcript at 87.
C. THE COURT'S FINDING AS TO THE ACTUAL REASON FOR THE
Roth and Armenakis testified that the West Long Branch Video
Warehouse tapes were not sealed earlier than July 15, 1985 as
they believed that they were not obligated to seal tapes under
the Wiretap Act until the conclusion of the entire Video
Warehouse investigation. While July 15, 1985 was not the end of
the entire investigation, Armenakis testified the tapes were
sealed at that time as a housekeeping matter.
Defendants point to § 9-7.340 of the United States Attorneys'
Manual which states, "[i]mmediately upon termination of the
interception, the original recordings of the conversations
should be submitted by the supervisory attorney to the judge
authorizing the interception. . . ." (emphasis in original) in
support of their contention that Roth and Armenakis' testimony
cannot be credible given the language of the manual. The court
notes that the term "interception" is capable of interpretation
as a singular or as a plural. If interpreted as a plural, Roth
and Armenakis' interpretation that the tapes did not have to be
sealed until the termination of the Video Warehouse
interception (including the Neptune City interception of Video
Warehouse) is not borne out by the manual. The court finds that
the language contained within the manual does not call into
question the credibility of Roth and Armenakis.
Defendants also direct the court's attention to the fact that
Armenakis did not label the June 26, 1985 order "Third
Extension" in support of their argument she did not believe
that the June 26, 1985 order was an extension of the previous
orders authorizing interception at the West Long Branch Video
Warehouse. The court finds that Armenakis' explanation of why
she did not label the June 26, 1985 order authorizing the
continued electronic surveillance of Video Warehouse at the
Neptune City location "Third Extension" — that Ideal
Distributors was added to that order and to so label the order
would be confusing — is credible, and rejects defendants'
After considering the testimony of the witnesses, and the
voluminous exhibits submitted by defendants, the court finds
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
sealing until the end of the entire investigation. The tapes
were sealed prior to the end of the entire investigation as a
matter of convenience. This conclusion is supported by the
direct testimony of the witnesses which the court finds to be
Now that the court has determined the actual reason for the
sealing delay, it must consider whether the government has
established whether the actual reason was objectively
reasonable at the time of the delay in 1985.
D. WAS THE ACTUAL REASON FOR THE SEALING DELAY OBJECTIVELY
Roth and Armenakis' understanding of the sealing requirements
under the Wiretap Act has been borne out by the Third Circuit's
opinion in Vastola III. Nevertheless, the court must determine
whether their interpretation of the statute was objectively
reasonable in 1985. If so, the court did not err in admitting
the West Long Branch Video Warehouse tapes at trial.
Defendants direct the court to treatises on electronic
surveillance by Clifford S. Fishman, Wiretapping and
Eavesdropping, and James Carr, The Law of Electronic
Surveillance, in support of their contention that Roth and
Armenakis's view was not objectively reasonable. At the
hearing, Roth testified that he ordered the Fishman and Carr
treatises for the New Jersey United States Attorney's Office in
1986 or 1987, Transcript at 29, and Armenakis testified that
she did not recall referring to any particular treatises during
this case. Transcript at 20. The court finds that those
treatises were not in the New Jersey United States Attorney's
Office in 1985. The court cannot hold that the attorneys'
failure to consult those treatises was unreasonable as both
testified that they had read the statute and the applicable
Defendants point to United States v. Vazquez, 605 F.2d 1269,
1278 (2d Cir. 1979), United States v. Scafidi, 564 F.2d 633,
641 (2d Cir. 1977), and United States v. Fury, 554 F.2d 522,
533 (2d Cir. 1977) to demonstrate that Roth and Armenakis' view
of when they were obligated to seal the tapes under the Wiretap
Act was unreasonable. While these cases may have made the law
appear clear to defendants, the court finds that in 1985 the
law was not settled, and that case law existed to support Roth
and Armenakis' view. For example, in United States v.
Harvey, the court wrote, "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." United
States v. Harvey, 560 F. Supp. 1040, 1057 (S.D.Fla. 1982),
citing United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.
1977) and United States v. Vazquez, 605 F.2d 1269, 1275-76 (2d
Cir. 1979) (emphasis added). In addition, in both Ojeda Rios
and Gallagher, the government presented reasons similar to
the reason presented by Roth and Armenakis in this case for the
sealing delay. As the Gallagher court so aptly put:
The Supreme Court noted two Second Circuit cases
which, while not establishing that the supervising
attorney's view was correct, did `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. The
cases to which the Supreme Court referred were
United States v. Principie, 531 F.2d 1132 (2d Cir.
1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1173,
51 L.Ed.2d 581 (1977) and United States v.
Scafidi, 564 F.2d 633 (2d Cir. 1977), cert. denied,
436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 400 (1978).
The Second Circuit and Third Circuit are in
close geographical proximity and in view of the
fact that each of these Circuits includes a part
of the greater New York City Area their law
enforcement efforts often overlap and require
continuing cooperation. . . . Second Circuit
opinions in the field of criminal law, as well as
in a number of other fields, have a significant
influence where there is no Third Circuit
authority. Thus the existence of the
Principie and Scafidi opinions have a similar
effect in this case as they had in [Ojeda] Rios.
In [Ojeda] Rios the Supreme Court held that in
light of those cases the supervising attorney's
view of the sealing requirement was objectively
reasonable . . . By the same token I conclude that
Robins' view, though wrong, was objectively
reasonable . . .
Gallagher, 751 F. Supp. at 495.