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U.S. v. Vastola

May 25, 1994

UNITED STATES OF AMERICA APPELLEE
v.
GAETANO VASTOLA APPELLANT



(D.C. Criminal No. 86-301).

Before, Stapleton and Scirica, Circuit Judges, and Van Antwerpen, District Judge*fn*

Author: Van Antwerpen

Opinion OF THE COURT

VAN ANTWERPEN, District Judge.

Appellant Gaetano Vastola ("Vastola") comes before us for the fourth time seeking to overturn his May 3, 1989 convictions for two substantive RICO offenses under 18 U.S.C. § 1962(c), a RICO conspiracy offense under 18 U.S.C. § 1962(d), and conspiracy to use extortionate means to collect an extension of credit, in violation of 18 U.S.C. § 894. Vastola seeks suppression of certain wiretap recordings, improperly sealed under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Wiretap Act), as amended, 18 U.S.C. § 2510 et seq. Vastola challenges the findings of the district court from the most recent remand in this case. U.S. v. Vastola, 830 F. Supp. 250 (D.N.J. 1993). Specifically, Vastola disputes the finding that the United States Attorney supervising the wiretap surveillance conducted adequate legal research or otherwise acted as a reasonably prudent attorney when she failed to seal the wiretap tapes in a timely fashion.

The history of this complex case has been well- documented in the many published opinions written in connection with this case. United States v. Vastola, 989 F.2d 1318 (3d Cir. 1993) (Vastola III); United States v. Vastola, 915 F.2d 865 (3d Cir. 1990) (Vastola II), cert. denied, 498 U.S. 1120, 111 S. Ct. 1073, 112 L. Ed. 2d 1178 (1991); United States v. Vastola, 899 F.2d 211 (3d Cir. 1990) (Vastola I), vacated and remanded, 497 U.S. 1001, 110 S. Ct. 3233 (1990). We will discuss only the facts and procedural history relevant to our review of the most recent remand of this case to the district court.

I.

Facts and Procedural History

On May 3, 1989 the district court entered an order of judgment and commitment against Vastola after a jury found him guilty of two substantive RICO offenses. Vastola had been charged, along with 20 other co-defendants in a 114-count indictment filed on September 19, 1986. Vastola was sentenced to serve a total of twenty years' imprisonment and to pay a total fine of $70,000.

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 an establishment named the Video Warehouse in West Long Branch, New Jersey ("West Long Branch tapes"), 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

The district court determined, in effect, that the sealing was untimely. However, the district 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, 95 S. Ct. 1338 (1975) for the rule that suppression is warranted only where it can be shown that the physical integrity of the tapes has been compromised. Finding by clear and convincing evidence that the physical integrity of the West Long Beach tapes had not been compromised, the district court denied Vastola's and the other defendants' motion to suppress. 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, 110 S. Ct. 3233 (1990).

On appeal, we affirmed the district court's refusal to suppress the West Long Branch tapes on the basis of Falcone. Vastola I, 899 F.2d 211 (3d Cir. 1990). On June 25, 1990, the Supreme Court vacated this decision and remanded the matter for further consideration in light of the recently decided case 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 held that a delay in sealing authorized electronic surveillance tapes requires suppression of the tapes unless the government offers a "satisfactory explanation" for the sealing delay. The court held that section 2518(8)(a) requires that the actual reason for the sealing delay be objectively reasonable at the time of the delay. Ojeda Rios, 495 U.S. at 266-267, 110 S. Ct. at 1850-1851.

On remand from the Supreme Court, this court concluded 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." Vastola II, 915 F.2d 865, 875 (3d Cir. 1990). We then remanded to the district court to determine "whether the government should now be permitted, under Ojeda Rios, to offer an explanation for its violation of the sealing requirement." Id. at 876. Vastola's petition for certiorari from this decision was denied. Vastola v. United States, 498 U.S. 1120, 111 S. Ct. 1073, 112 L. Ed. 2d 1178 (1991).

On December 14, 1990 the district court conducted a hearing at which the government presented evidence concerning the reason for the sealing delay. 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 the sealing until the end of the 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 found that the government's misunderstanding of the law had been objectively reasonable and the delay had perforce been satisfactorily explained." Id., at 1483. Accordingly, the district court reinstated Vastola's conviction, sentencing him to 17 years imprisonment.

On appeal from the order reinstating his conviction, we held that the district court had not abused its discretion by allowing the government to present evidence supporting its explanation for the sealing delay. Vastola III, 989 F.2d 1318, 1324-25 (3d Cir. 1993). However, relying on our earlier decision in United States v. Carson, 969 F.2d 1480 (3d Cir. 1992), we reversed as to the finding that the government's explanation was objectively reasonable. Nonetheless, we remanded this case for further proceedings because, as we held in Carson, an "unreasonable mistake of law does not automatically lead to suppression." Vastola III, 989 F.2d at 1327. In Vastola III, we discussed the Carson holding as follows:

The Carson court explained that even though an attorney's mistake of law is unreasonable, the government can still show a satisfactory explanation if "the attorney involved acted as a 'reasonably prudent' attorney would to investigate the legal question involved in a reasonably prudent manner." 969 F.2d at 1494 . . . The case [Carson ] then stands for the proposition: When a government attorney's legal Conclusion is found to be unreasonable, the explanation for the delay would still be an objectively reasonable "mistake of law" if the government can show that its attorney has adequately researched the law or has otherwise acted reasonably.

Vastola III, 989 F.2d at 1327. Since the district court did not make a determination whether Assistant United States Attorney Armenakis ("Armenakis") acted reasonably under the circumstances, we remanded for further proceedings.

The district court addressed this narrow question of attorney conduct in its published opinion United States v. Vastola, 830 F. Supp. 250 (D.N.J. 1993) ("Second Remand "). The court found that while Armenakis failed to conduct adequate research, her "reliance on the authoritative advice given by her colleagues constituted an adequate substitute for further reading of the caselaw, and her behavior was objectively reasonable under the circumstances." Id., 830 F. Supp. at 256. Finding that the government had offered a "satisfactory explanation" for the failure to timely seal the West Long Branch tapes, the court held that the tapes were properly admitted at trial. Consequently, the court issued an order reinstating the convictions of Vastola.

Vastola now appeals the district court's findings, arguing that Armenakis' conduct was not objectively reasonable under the circumstances and that suppression of the surveillance tapes is warranted. For the reasons that follow, we affirm the findings of the district court.

II.

Standard of Review

We review the district court's factual findings for clear error. Vastola II at 1324 (quoting U.S. v. McMillen, 917 F.2d 773, 774 (3d Cir. 1990)). We exercise plenary review over the district court's legal Conclusion that the Assistant United States Attorney's conduct was "reasonably prudent" under the circumstances. Id. at 1324.*fn2

III.

Analysis

This Court in Vastola III remanded to the district court on one narrow issue: Did Armenakis, in making an unreasonable mistake of law, nevertheless conduct herself reasonably under the circumstances? Vastola III, 989 F.2d at 1327. The answer is "yes," if the government can show that its attorney has adequately researched the law or has otherwise acted prudently. Id. The burden of proof is on the government to make this showing. Vastola III, 989 F.2d at 1327.

The relevant facts for this analysis are few in number: Armenakis studied the statute, outlined it, read its annotations, and spoke with more experienced attorneys. Vastola III, 989 F.2d at 1327.*fn3

The district court invoked Federal Rule of Civil Procedure 11 jurisprudence to define the "reasonably prudent attorney." The district court cited Mary Ann Pensiero, Inc., 847 F.2d 90, 94 (3d Cir. 1988) for the following Rule 11 standard:

An attorney's actions will be considered objectively reasonable where, given the existing circumstances, she undertakes "'a normally competent level of legal research'" to support the Conclusion she reaches.

Second Remand, 830 F. Supp. at 254. Under the circumstances, this standard is helpful in beginning an analysis of reasonable attorney conduct. The intended goal of Rule 11 is accountability. It "imposes on counsel a duty to look before leaping and may be seen as a litigation version of a familiar railroad crossing admonition to 'stop, look, and listen.'" Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986). In this case, we are assessing the reasonableness of Armenakis' conduct and her duty to stop, look and listen while conducting a wiretap investigation.*fn4

The district court found that Armenakis herself had not adequately researched the law. The court reasoned as follows:

Armenakis' research, which consisted of reading and outlining the statute and reviewing the relevant annotations, was enough to give an average attorney a basic understanding of the law. However, standing alone, this limited investigation cannot be considered a normally competent level of research that a reasonably prudent attorney would undertake.

Second Remand, 830 F. Supp. at 255. We agree. Given the serious consequences which follow from the mistaken application of the Wiretap Act, i.e. suppression, a reasonable United States attorney should not be satisfied with a basic understanding of the Act and a summary review of applicable caselaw. In addition, as the district court reasoned, "the meaning of a complex statute, such as the Wiretap Act, is not always readily ascertainable from just the reading of the text; and the annotations often fail to fully reflect how caselaw has interpreted a statutory provision." Thus, Armenakis' research, standing alone, cannot be considered adequate. The inquiry, therefore, turns on whether Armenakis otherwise acted prudently.

The district court found that Armenakis acted as a reasonably prudent attorney, and based its Conclusion on the "interaction between Armenakis' own research and the authoritative confirming advice she received from other, more experienced United States Attorneys." That is, Armenakis' research, standing alone was inadequate. This coupled with the confirmation of her initial understanding of the law by more experienced colleagues, however, convinced the district court that Armenakis acted reasonably under the circumstances.*fn5

We agree that when an attorney receives confirmation of legal theories from a number of proper sources, each consistent with the next, the attorney can act reasonably in relying on these theories in the course of legal research. The district court properly found that Armenakis' limited book research was inadequate. Moreover, her conversations with other attorneys, standing alone, were also insufficient. Carson, 969 F.2d at 1495 (an attorney may not rely merely on conversations with peers or supervisors concerning developing area of law where incorrect answer could lead to suppression of important evidence). However, we believe that the combined impact of these Concurring sources created a degree of certainty (albeit minimal) which a prudent attorney could have accepted in arriving at an appropriate procedure for sealing.

From a factual standpoint, the caselaw as it existed at the time was not inconsistent with a reasonably thorough review of the relevant annotations.*fn6 When Armenakis conducted her legal research, no "red flags" would have appeared to warn her about the need to seal the tapes as the investigation continued but the location of the surveillance changed. Our review of the relevant annotations discloses no Third Circuit case which would have definitively clarified this issue, or even notified Armenakis of a conflict.*fn7 In fact, cases from other circuits could have led her in the opposite direction.*fn8

An inquiry into the reasonableness of an attorney's legal research is necessarily fact and time specific. The court must take into account not only the particular methodology employed by the attorney, but also the complexity of the law at the time in question.*fn9 Armenakis' conduct is far from a model for others to follow and our ruling is, of course, limited to the facts and time frame of this case.

With its decision in Ojeda Rios, the Supreme Court significantly clarified the sealing requirements of the Wiretap Act and changed the caselaw which we use to help Judge reasonable attorney behavior.*fn10 The Court admonished: "the seal required by ยง 2518(8)(a) is not just any seal but a seal that has been obtained immediately upon the expiration of the underlying surveillance order." Ojeda Rios, 110 S. Ct. at 1849 (emphasis in original). Of additional significance is the clarification of ...


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