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UNITED STATES v. VASTOLA

August 17, 1993

UNITED STATES OF AMERICA,
v.
GAETANO VASTOLA, et al., Defendants.



The opinion of the court was delivered by: STANLEY S. BROTMAN

 BROTMAN, District Judge.

 Presently before the court is a narrow issue on remand from the Third Circuit Court of Appeals concerning the suppression of certain electronic surveillance tapes under the Wiretap Act, 18 U.S.C. § 2518(8)(a). In particular, the court must determine whether a government attorney who made an unreasonable mistake of law as to when these tapes were required to be sealed nevertheless acted in a reasonably prudent manner in investigating this legal issue. United States v. Vastola, 989 F.2d 1318, 1327 (3d Cir. 1993) (Vastola III). Upon careful consideration of the relevant record and of the parties' submissions, and for the reasons stated herein, the court finds that the government attorney's behavior was reasonable under the circumstances and that, therefore, it was proper to refuse to suppress the tapes.

 I. Background and Procedure

 The extensive background to this criminal case in general and on the issue of whether to suppress certain electronic surveillance tapes has been the subject of several reported decisions. See, e.g., Vastola III, 989 F.2d 1318 (3d Cir. 1993), United States v. Vastola, 915 F.2d 865 (3d Cir. 1990) (Vastola II), cert. denied, 498 U.S. 1120, 112 L. Ed. 2d 1178, 111 S. Ct. 1073 (1991); United States v. Vastola, 899 F.2d 211 (3d Cir.) (Vastola I), vacated and remanded, 497 U.S. 1001 (1990). The court therefore discusses only the facts and procedure relevant to the issue to be addressed on remand.

 On May 3, 1989, this court entered an order of judgment and commitment against Defendant Vastola after a jury found him 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 extortionate means to collect an extension of credit, in violation of 18 U.S.C. § 894. Vastola had been charged, along with 20 other codefendants, in a 114 count indictment. 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 the Video warehouse in West Long Branch, New Jersey, 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). *fn1"

  In considering the Wiretap Act suppression issue, the district court, in effect, determined that the sealing was untimely. However, the 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 (1975), for the rule that suppression is warranted only where it can be shown that the physical integrity of the tapes had been compromised. Because the government had established by clear and convincing evidence the physical integrity of the West Long Beach tapes, the court denied Vastola's and the other defendants' motion to suppress. See United States v. Vastola, 670 F. Supp. 1244, 1282 (D.N.J. 1987), aff'd in part, rev'd in part, 899 F.2d 211 (3d Cir.), vacated and remanded, 497 U.S. 1001 (1990).

 On appeal, the Third Circuit essentially affirmed Vastola's judgment of conviction on March 20, 1990. Vastola I, 899 F.2d 211 (3d Cir. 1990). *fn2" In a footnote, the court of appeals noted that the district court's refusal to suppress the West Long Beach tapes was "fully consistent" with Falcone. Id. at 238 n.33. Thereafter, Vastola filed in the United States Supreme Court a petition for a writ of certiorari. On June 25, 1990, the Supreme Court vacated the judgment of the Third Circuit and remanded the matter for further consideration in light of the recently decided case of United States v. Ojeda Rios, 495 U.S. 257, 109 L. Ed. 2d 224, 110 S. Ct. 1845 (1990). See Vastola v. United States, 497 U.S. 1001, 111 L. Ed. 2d 744, 110 S. Ct. 3233 (1990). In Ojeda Rios, the Court held that a delay in sealing authorized electronic surveillance tapes requires a suppression of the tapes unless the government offers a "satisfactory explanation" for the sealing delay. Expressly rejecting the Third Circuit's rule in Falcone, the Court read section 2518(8)(a) to require that the actual reason for the sealing delay be objectively reasonable at the time of the delay. 495 U.S. at 265-67 & 265 n.5.

 On remand from the Supreme Court, the Third Circuit in Vastola II determined that a sealing delay did in fact occur with respect to the West Long Branch tapes. 915 F.2d 865, 875 (3d Cir. 1990). The Third Circuit then vacated Vastola's conviction and remanded the matter to the district court to ascertain the actual reason for the sealing delay and whether this reason was objectively reasonable so as to constitute a satisfactory explanation under Ojeda Rios and section 2518(8)(a) of the Wiretap Act. Id. at 876-77.

 On the first remand, 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 sealing until the end of the entire 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 then found that Roth's and Armenakis' interpretation of the statute, although wrong in light of subsequent rulings, "was objectively reasonable at the time of the sealing delay." 772 F. Supp. at 1483. Based on these findings, the district court held that the government had offered a "satisfactory explanation" as required by section 2518(8)(a) of the Wiretap Act, and that therefore the tapes had been properly admitted at trial. Id. Accordingly, the court reinstated Vastola's conviction.

 Defendant once again appealed. In Vastola III, the Third Circuit affirmed this court's finding as to the actual reason for the sealing delay. See 989 F.2d 1318, 1325 (3d Cir. 1993). However, the court of appeals, relying on its earlier decision in United States v. Carson, 969 F.2d 1480 (3d Cir. 1992), reversed as to the finding that this explanation was objectively reasonable. See 989 F.2d at 1327. But the Third Circuit refused to rule in Vastola's favor because "an unreasonable mistake of law does not automatically lead to suppression." Id. Rather:

 Id. For a second time, the Third Circuit vacated Vastola's conviction and remanded the case back to this court to determine if "'the attorney involved acted as a "reasonably prudent" attorney would to investigate the legal question involved in a reasonably prudent manner.'" Id. (quoting Carson, 969 F.2d at 1494). If so, then the government's explanation is a satisfactory one, and Vastola's convictions must ...


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