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U.S. v. VASTOLA

August 16, 1991

UNITED STATES OF AMERICA
v.
GAETANO VASTOLA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Brotman, District Judge.

OPINION

I. INTRODUCTION

Prior to their trial on racketeering and extortion charges, defendants Gaetano Vastola, Elias Saka, and their co-defendants moved, inter alia, to suppress certain electronic surveillance tapes contending that the tapes had not been sealed "immediately" as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Wiretap Act"), as amended, at 18 U.S.C. § 2510 et seq. Relying upon the opinion of the Court of Appeals for the Third Circuit in United States v. Falcone, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 1339, 43 L.Ed.2d 432 (1975), the court denied the motion to suppress. This case is now before the court upon remand from the Third Circuit for the court to determine, in light of the Supreme Court's decision in United States v. Ojeda Rios, 495 U.S. 257, 110 S.Ct. 1845, 109 L.Ed.2d 224 (1990), whether the government is now free to offer an explanation for its delay in sealing intercepted communication tapes as required by the Wiretap Act. If the court determines that the government should be able to offer a reason for the sealing delay, the court must evaluate the explanation offered to determine whether it was the actual reason for the delay, and, if so, whether the actual reason constitutes a satisfactory explanation of why the sealing delay occurred.

II. FACTS AND PROCEDURE

The extensive factual and procedural history of this complex case has been set forth in several reported opinions, commencing with this court's opinion on defendants' pretrial omnibus motion in which the court, inter alia, denied defendants' motion to suppress certain electronic surveillance tapes, United States v. Vastola, 670 F. Supp. 1244 (D.N.J. 1987) ("Vastola I"), the decision of the Third Circuit essentially affirming the convictions of Vastola and Saka,*fn1 United States v. Vastola, 899 F.2d 211 (3d Cir. 1990) ("Vastola II"), and the decision of the Third Circuit remanding the case to this court in light of the Supreme Court's opinion in Ojeda Rios, United States v. Vastola, 915 F.2d 865 (3d Cir. 1990) ("Vastola III"). Rather than reiterate the lengthy history of this matter, the court will only address the facts and procedure relevant to the issue to be addressed on remand.

Vastola and Saka were indicted along with 19 other defendants for a variety of crimes. The counts against Vastola and Saka charged them with racketeering in violation of 18 U.S.C. § 1962 and extortion in violation of 18 U.S.C. § 894. The 21 defendants jointly filed an omnibus motion on a plethora of issues prior to trial. Among the relief sought by defendants was the suppression of 185 electronic surveillance tapes obtained from the government's surveillance of the Video Warehouse in West Long Branch, New Jersey, between March 15, 1985 and May 31, 1985. The West Long Branch Video Warehouse tapes were relevant to the government's case against Vastola and Saka as the Video Warehouse was the headquarters of their racketeering enterprise. Defendants contended that the 185 tapes should be suppressed pursuant to the Wiretap Act, 18 U.S.C. § 2518(8)(a), as they were not sealed until July 15, 1985, which was 45 days after the final interception at the West Long Branch Video Warehouse location on May 31, 1985, and 32 days after the June 13, 1985 expiration date of the order authorizing that surveillance. Two of those tapes are no longer relevant to this proceeding.*fn2

The West Long Branch Video Warehouse surveillance commenced when the District Court of New Jersey authorized the interception of wire and oral communications at that location on March 15, 1985. Authorization for that surveillance was extended on April 16, 1985, and again on May 14, 1985. The order authorizing surveillance at that location expired on June 13, 1985, and interception at that location ceased on May 31, 1985 when the Video Warehouse moved to a different premises in Neptune City, New Jersey. On June 26, 1985, the District Court authorized the government to continue surveillance of the Video Warehouse at its new location.

On July 15, 1985, the government presented 183 tapes from the West Long Branch Video Warehouse for sealing. This sealing was untimely under the Wiretap Act. Vastola III, 915 F.2d at 875 ("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." (footnote omitted)).

In considering the defendants' motion to suppress the West Long Branch Video Warehouse tapes because the government had failed to provide a satisfactory explanation for the sealing delay, this court relied upon Falcone, 505 F.2d at 484, which held that suppression is not an appropriate remedy for a delay in sealing electronic surveillance tapes unless it can be shown that the physical integrity of the tapes was compromised. As the government demonstrated by clear and convincing evidence that the physical integrity of the tapes had been maintained, this court denied defendants' motion to suppress. Vastola I, 670 F. Supp. at 1282. In that same opinion, the court severed the trial of defendants into different groups. Vastola I, 670 F. Supp. at 1261. Vastola and Saka were tried together, and the jury found them guilty of various racketeering and extortion charges.

Upon appeal to the Third Circuit, the Third Circuit reversed this court in certain respects, but essentially affirmed the judgments of conviction for both defendants. Vastola and Saka raised the sealing issue in their appeal, but the Third Circuit rejected their arguments, merely noting that this court's decision denying suppression of the tapes in question was in line with Falcone. Vastola II, 899 F.2d at 239 n. 33.

On June 25, 1990, the Supreme Court vacated the judgment of the Third Circuit affirming most of Vastola's and Saka's convictions, and remanded this case to the Third Circuit for further consideration in light 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 expressly overruled Falcone, and held that suppression is required when the government fails to offer a "satisfactory explanation" for a delay in sealing authorized electronic surveillance tapes in accordance with 18 U.S.C. § 2518(8)(a). Ojeda Rios, 495 U.S. at ___ n. 5, 110 S.Ct. at 1850 n. 5. The government must "explain not only why a delay occurred but also why it is excusable." Ojeda Rios, 495 U.S. at ___, 110 S.Ct. at 1850. The government's explanation for the delay is "satisfactory" only when it is the actual reason for the delay, Ojeda Rios, 495 U.S. at ___, 110 S.Ct. at 1852 (Connor, J., concurring), and is objectively reasonable at the time of the sealing delay. Ojeda Rios, 495 U.S. at ___, 110 S.Ct. at 1851.

On remand before the Third Circuit, the government offered four arguments. First, it contended that the June 26, 1985 order authorizing electronic surveillance at the Neptune City Video Warehouse could be construed as an extension of the orders authorizing surveillance at the West Long Branch Video Warehouse, and as an extension of the earlier orders, there was no sealing delay as its obligation to seal did not arise under the Wiretap Act until the interception at the Neptune City Video Warehouse ceased. Second, even if the June 26, 1985 order could not be characterized as an extension of the West Long Branch Video Warehouse orders, the attorneys in charge of the electronic surveillance reasonably believed, based on precedent at the time of the taping, that under the Wiretap Act the sealing obligation did not arise until the conclusion of the entire Videotape Warehouse investigation. Hence, the government asked the Third Circuit to find that the government had furnished a "satisfactory explanation" for the sealing delay. Third, the government contended that the Third Circuit need not resolve the sealing issue as without the West Long Branch Video Warehouse tapes, there would still be sufficient information to sustain Vastola and Saka's convictions. Finally, the government asked the Third Circuit to remand for further inquiry as to the reason for the delay if the Third Circuit could not at that juncture reinstate Vastola and Saka's convictions. Vastola III, 915 F.2d at 873-74.

Vastola and Saka vigorously contested the government's assertions, and contended that the government should not be free to offer any explanation for the sealing delay as it had failed to offer an explanation at the time of the motion to suppress. In addition, they argued that there was no basis in fact for the government's argument that the June 26, 1985 order authorizing the Neptune City Video Warehouse surveillance was an extension of the earlier orders authorizing the West Long Branch Video Warehouse surveillance, and that traditional notions of waiver should bar the government from offering such an explanation as the government had argued at the time of the original suppression motion that a delay had occurred but Falcone did not require the tapes' suppression.

After considering the arguments of the government and the defendants, the Third Circuit remanded the matter to this court. The Third Circuit rejected outright the government's first argument that the June 26, 1985 order authorizing interception at the Neptune City Video Warehouse was an extension of the prior orders authorizing surveillance at the West Long Branch Video Warehouse, stating that "the statute unambiguously rules out this possibility." Vastola III, 915 F.2d at 874 (footnote omitted). With respect to the government's second argument, the Third Circuit found on the record before it that it could not accept the government's argument that the government had already offered a satisfactory explanation for the sealing delay, namely that the attorneys in charge of the surveillance did not believe that their sealing obligations under the statute arose until after the investigation was complete. Vastola III, 915 F.2d at 875. The Third Circuit did not reach the government's third argument that the admission of the tapes constituted harmless error. Vastola III, 915 F.2d at 876. Instead, it remanded this matter to this court to determine whether the government is now free under Ojeda Rios to offer an explanation for the sealing delay, and if so, to hear evidence as to the actual reason for the delay. Vastola III, 915 F.2d at 876.

Without deciding whether or not the government should be permitted to offer an explanation, the court conducted a hearing on December 14, 1990 at which the government presented evidence as to the actual reason for the sealing delay.*fn3 Despite defendants' objections, the court heard the testimony offered by the government in order to expedite these proceedings in case the court determined that the government should be permitted to offer an explanation for the sealing delay.*fn4

III. DISCUSSION

The Wiretap Act provides in pertinent part that "[i]mmediately upon the expiration of the period of the order, or extensions thereof, such recordings [of intercepted electronic communications] shall be made available to the judge issuing such order and sealed under his directions." 18 U.S.C. § 2518(8)(a). The Act further provides that, "[t]he presences 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 . . ." 18 U.S.C. § 2518(8)(a). As the Third Circuit held that there was a delay in the sealing of the West Long Branch Video Warehouse tapes, and that it could not on the record before it rule that the government ...


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