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U.S. v. Vastola

U.S. Court of Appeals, Third Circuit


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 § 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 the Wiretap Act provided by section 2518(11), added to Title III as part of the Electronic Communications Privacy Act of 1986,

§ 106(d)(3), Pub.L.No. 99-508, 100 Stat. 1848, 1857, reprinted in 1986 U.S.Code Cong. & Admin.News. This provision, which authorizes roving surveillance upon a showing that the suspect's purpose is to thwart interception by changing facilities, was passed in 1986 and plainly discredits arguments based upon the so-called "extension theory."*fn11 See Vastola II, 915 F.2d at 874.

Vastola argues that Carson compels a different result. The district court cited to Carson for the proposition that an attorney's reliance on the counsel of more experienced colleagues can constitute reasonable attorney conduct. See Second Remand, 830 F. Supp. at 256. In Carson, the government attorney, Robins, did not immediately seal wiretap tapes after surveillance ended because he expected the same surveillance to begin again when the subject returned from a hospital stay. Robins alleged that, like Armenakis, he believed at the time that sealing was not necessary until the entire investigation was completed. Robins claimed that he asked his supervisor about the sealing requirements and had (mistakenly) understood his supervisor to explain that no sealing was required until all surveillance ended. The Carson Court found that Robins' legal Conclusion regarding sealing was not objectively reasonable, but it remanded the case to the district court for consideration of whether Robins' reliance on what he thought the supervisor told him was reasonable without any additional, independent research. The court in Carson offered the following standards regarding an attorney's reliance on the counsel of colleagues:

Arguably, a reasonable attorney would not have risked the exclusion of the tapes, evidence important to his case, without personally checking the law relating to its admission. It is not always unreasonable for an attorney to rely on a reasoned oral opinion of a supervisor, or even that of a peer with more experience in the area of law in question. Moreover, an attorney working under another lawyer on a case could not be faulted for following instructions, as opposed to advice, from the person in charge of the case or investigation. On the other hand, we do not think that a reasonable attorney can rely on a casual conversation with a peer or supervisor concerning developing law on a complex, controversial subject if an incorrect answer is likely to preclude admission of evidence of vital importance to the case.

Carson, 969 F.2d at 1495 (emphasis added).

The district court found that, like Robins in Carson, Armenakis relied on the opinions of her more experienced colleagues in formulating her opinion. But unlike the attorney in Carson, Armenakis did more here than merely rely on these conversations.*fn12 Her understanding of the law was supplemented by her reading and outlining of the statute and her review of the relevant annotations at that time. Armenakis did, in fact, check the law in this case. And her reading of the law confirmed her understanding (albeit a misunderstanding) that sealing was only required at the end of the investigation. Thus, the Carson decision is authoritative but clearly distinguishable on its facts.

We recognize that the wiretap is a powerful and invasive law enforcement tool, and that the Wiretap Act was enacted to establish procedural safeguards which assure that "the interception is justified and that the information obtained thereby will not be misused." Gelbard v. United States, 408 U.S. 41, 47, 92 S. Ct. 2357, 2361, 33 L. Ed. 2d 179 (1972) (citations omitted). Nonetheless, we hold for the reasons stated that the combined effect of Armenakis' conduct at the time in question was minimally sufficient to meet the standards of a reasonably prudent attorney.

V.

Conclusion

For the reasons set forth above, we conclude that the order of the district court should be affirmed.

STAPLETON, Circuit Judge, Dissenting:

If the government's evidence in this case is sufficient to carry its burden of providing a "satisfactory explanation" for failing to comply with the immediate sealing requirement of the statute, that requirement is reduced to a precatory entreaty. Because it is clear from Ojeda Rios that Congress intended something more, I respectfully Dissent.

Wire surveillance of the Video Warehouse in West Long Branch, New Jersey, was authorized on March 15, 1985. After two extensions, the authority expired on June 13, 1985. The surveillance actually terminated on May 31, 1985. Wire surveillance of Video's new location in Neptune City, New Jersey, was authorized on June 26, 1985. That authority ceased and the surveillance was terminated on July 25, 1985.

Duplicates of 185 reels of tape from the West Long Branch surveillance were sealed 45 days after that surveillance ceased and 32 days after the authorization terminated. When the government realized its mistake, the originals of these reels of tape were sealed a little over a month later, on August 19, 1985.

The federal wire surveillance statute, after providing for court authorized wire surveillances, stipulates the following with respect to the making and sealing of tape recordings:

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. . . . 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.

18 U.S.C. § 2518(8)(a) (emphasis supplied).

The tapes from the West Long Branch surveillance are the ones at issue here. The government has not contended that a sealing involving a 32 day or longer delay would constitute an "immediate" sealing. Rather, the government, in United States v. Vastola, 915 F.2d 865 (3d Cir. 1990), cert. denied, 498 U.S. 1120, 112 L. Ed. 2d 1178, 111 S. Ct. 1073 (1991) ("Vastola II "), advanced two alternative theories under which there was said to be no violation of the statute. First, it insisted that there had been no delay because the order of June 26, 1985, authorizing surveillance of the Neptune City site, was an "extension" of the original authorization, and the duty to seal did not arise until the Neptune City surveillance terminated. We rejected this argument, concluding:

We could not possibly hold that the Neptune City interception order was an extension of the West Long Branch order. Although the government rightly points out that Rios [United States v. Ojeda Rios, 495 U.S. 257, 109 L. Ed. 2d 224, 110 S. Ct. 1845 (1990)] did not decide whether a change in the location of an illegal operation will prevent a subsequent order covering the new location from being an extension of a previous order, the statute unambiguously rules out this possibility.

Id. at 874 (footnote omitted).

In support of this Conclusion, we referred to the above quoted portion of the statute and two other sections requiring that an application for wire surveillance authority justify the need for surveillance at a specific site:

Section 2518(1)(b)(ii) plainly states that an an application for surveillance order must contain 'a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted.' In addition, section 2518(3)(d) requires a particularized showing of probable cause that 'the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in the commission of [the] offense [under investigation].' Based on these two provisions alone, we would have no difficulty concluding that Congress intended for interception orders, and their accompanying extensions, to apply only to surveillances in the particular locations specified in the applications.

Vastola II, 915 F.2d at 874.*fn13 We held, based on the plain meaning of the text of the statute, that the duty to seal arises "upon the expiration of the order or extensions thereof" and that an order authorizing surveillance at another site is not an extension.*fn14

Having concluded that the duty to seal the West Long Branch tapes arose no later than June 13, 1985, the date the authorization for the surveillance of that location terminated, we turned to the government's second argument -- i.e., its "suggestion that, even if erroneous, the supervising attorneys' reasonable belief that the order of June 26, 1985, extended the original interception order satisfactorily explains the delay" in sealing the West Long Branch tapes. Id. at 875. We declined to pass upon this argument because the government up to that point had tendered no evidence to the district court concerning the circumstances of the sealing delay. We remanded to the district court so that it could exercise its discretion on whether to reopen the record and allow the government to offer such evidence.

Between Vastola II and the time this case returned to us in Vastola III, we had occasion to consider another case in which a sealing delay had occurred in the context of sequential surveillance of different sites. United States v. Carson, 969 F.2d 1480 (3d Cir. 1992). The investigation in Carson was conducted in 1981 and 1982. An evidentiary hearing was held by the district court in that case at which Warren Robins, the attorney who had caused 33 of the tapes of the first, "Zax", surveillance to be sealed, testified. His testimony was summarized as follows:

Robins discussed the sealing issue with Stewart, his supervisor, during the time in December 1981 when DiGilio was in the hospital. Although Stewart meant to convey that sealing was required at the end of a particular order or its extension, Robins understood him to mean that sealing was required only at the Conclusion of the investigation, rather than at the end of interception at a particular location. Robins' misunderstanding of Stewart's advice arose, because at the time of their Discussion the Zax order [authorizing the first surveillance] constituted the entire electronic surveillance operation.

As a result, Robins believed that the sealing obligation for all of the tapes, including the Zax tapes, arose on May 12, 1982 when the [second] surveillance was terminated.

Robins therefore thought that so long as any part of the "wiretap interception process" was occurring, there was no requirement to seal--even if a particular wiretap operation which was a part of the investigation was complete.

Id. at 1493-95.

The district court in Carson concluded "that Robins' view, though wrong, was objectively reasonable and that, therefore, the government provided a satisfactory explanation for the delay." Id. at 1494. We rejected this Conclusion based on Vastola II, explaining:

In reaching this Conclusion, the court accepted Robins' explanation even though it was contrary to the unambiguous language of the statute. See id. at 494 (quoting Vastola II, 915 F.2d at 874).

We agree with the district court that a reasonable mistake of law can be a satisfactory explanation for delay, but we also think the district court's findings do not support its Conclusion that Robins' explanation was satisfactory. For an explanation to be satisfactory under Ojeda Rios, it must be objectively reasonable.

Id. at 1494 (footnote omitted).

Although the government did not maintain that the case law would have "caused an objectively reasonable attorney to take Robins' view" on February 27, 1982 (when the final extension of the authority for the first surveillance terminated and the duty to seal was triggered), the government in Carson did insist that it had satisfactorily explained the delay by showing that "it was attributable to an innocent mistake on Robins' part in misunderstanding what Stewart told him." Id. at 1494. We acknowledged that it was possible for the government to have a "satisfactory explanation" even though it acted on the basis of an objectively unreasonable view of the law. We held, however, that the district court's findings would not support the view that the delay occurred "without any fault on the government's part." Id. at 1494. We observed:

Robins said his Conclusion that the sealing requirement was not triggered until all surveillance ended was based on a misunderstanding of Stewart's oral advice on the sealing requirements. The district court made no finding as to whether Robins could have reasonably understood Stewart as telling him no sealing was required until all surveillance ended or whether it was reasonable to rely on what Stewart told him without any independent research. If a reasonably prudent lawyer could have interpreted Stewart's statements as Robins did and, under all the circumstances, reasonably relied on them without any independent investigation of the law, Robins' explanation as to the March 9, 1982 delay would be an objectively reasonable mistake of law that satisfactorily explains the government's failure to meet the statute's requirement of immediate sealing. Affirmative answers to those two questions of fact are necessary to a determination that Robins' mistake of law was objectively reasonable. . . .

Id. at 1494.

We ultimately remanded the Carson case to the district court to determine "whether Robins' explanation was satisfactory and objectively reasonable." Id. at 1501. In doing so, we made the following cautionary observations that are very pertinent here:

The circumstances of this case may show that Robins had an affirmative duty to do more than rely on the advice of his superior. Arguably, a reasonable attorney would not have risked the exclusion of the tapes, evidence important to his case, without personally checking the law relating to its admission. It is not always unreasonable for an attorney to rely on a reasoned oral opinion of a supervisor, or even that of a peer with more experience in the area of law in question. Moreover, an attorney working under another lawyer on a case could not be faulted for following instructions, as opposed to advice, from the person in charge of the case or investigation. On the other hand, we do not think that a reasonable attorney can rely on a casual conversation with a peer or supervisor concerning developing law on a complex, controversial subject if an incorrect answer is likely to preclude admission of evidence of vital importance to the case. . . .

Id. at 1495 (emphasis supplied).

Carson, like Ojeda Rios, makes clear that the government bears the burden of persuading the court that its explanation is "satisfactory."

On remand from Vastola II, the district court allowed the government to introduce additional evidence concerning the circumstances of the surveillance and the sealings. Based on that evidence, the district court concluded that "the actual reason for the sealing delay was that the government attorneys in charge of the surveillance believed that sealing was not required until after the entire investigation." More specifically, Assistant United States Attorney Armenakis, the decision maker in this case, had "formed the same mistaken belief held by Attorney Robins in Carson." United States v. Vastola, 989 F.2d 1318, 1323 (3d Cir. 1993) ("Vastola III ").

In Vastola III, we, of course, held that Armenakis' view of the law was not "objectively reasonable." Id. at 1327. This holding was required by Carson and, indeed, was the law of the case in this proceeding after Vastola II. Those cases establish that a reasonable attorney who had reviewed the text of the statute with even a minimal degree of care could not have reached the Conclusion that Armenakis did.

Since the record supported the finding that Armenakis' view of the law was the "actual reason" for the sealing delay, if that view had been objectively reasonable, that would have ended the matter in the government's favor; there would have been no occasion to inquire into the historic facts of how Armenakis reached her Conclusion. This court's Conclusion that her view was not objectively reasonable did not end the matter in the defendant's favor, however, because the government contended that Armenakis, even though wrong, acted reasonably under all the circumstances in reaching her erroneous Conclusion. Relying on Carson, we held that this was a tenable position for the government to take, but concluded that the district court had not made the findings necessary to sustain it. We remanded so that the district court could "determine whether Armenakis conducted herself reasonably under the circumstances." Id. at 1327.

On remand from Vastola III, the parties stipulated that the existing record was adequate to enable the district court to make the required findings. That record consisted of a hearing at which Armenakis and her immediate supervisor, Thomas Roth, testified. Roth testified that he recalled no conversation with Armenakis regarding the sealing of the tapes in this case. While not required under his understanding of the law in the spring of 1989, if he had been asked by Armenakis, he would have counseled that "the more prudent way to do it, and the way [he] always did it [was to seal] when any particular facility was terminated." Appendix at 25.

Armenakis testified that she had had no prior experience with wire surveillance and that she received no formal training in that area with respect to this case. Her entire testimony with respect to how she reached her view of the law on sealing was as follows:

Q. Did it occur to you to seal the interceptions that had commenced in March and had ceased at the end of May at Video Warehouse, One, I'll call it?

Did it occur to you at any point along the way?

A. Well, yes, at some point it did occur to me, yes.

Q. What was your understanding at that time as to what you were required to do in terms of sealing?

A. My understanding was that when the investigation was completed that you immediately sealed whatever tapes had been obtained.

Q. From what did you get that understanding?

A. Well, when I began working on the investigation I studied the statute and several of the annotations. I spoke with more experienced attorneys in the office on wiretaps and it was, it was my understanding, which appeared to be consistent throughout the office. A. 55-56

Q. Did you speak to Mr. Fettweis during May or June regarding what your sealing obligations were?

A. I had a conversation with someone. Frankly I don't recall who it was. It may have been Mr. Fettweis because I had asked him questions throughout the investigation. I did speak with someone concerning the issue of sealing when the agent raised it. I don't recall who it was. A. 88.

Q. You testified that your understanding of the sealing requirement was based on part on the statute itself; is that correct?

A. Yes.

Q. I would like to show you defendant's exhibit A in evidence?

MR. WHITE: If I may approach the witness?

THE COURT: Yes.

By Mr. White:

Q. And ask you to look at -- do you know what defendant's exhibit A is?

A. It's a portion of the statute 2518. It may be the entire statute.

Q. Yes, it is the entire statute.

A. 89.

Q. Have you looked at the statute -- would you agree with me that it does not support your understanding that in 1985, that tapes didn't have to be sealed until the end of an entire interception where there had been change of premises and the second series of interceptions was not an extension?

A. I think the answer is, no, I would not agree with you. The statute was the same then and it was my understanding and I truly felt that it was the interpretation of other assistants that this statute meant the end of the investigation and that is what I understood to be the case.

Q. Did you rely on the interpretation of other assistants for that Conclusion?

A. I felt that my beliefs were consistent with those, those who I went to who had conducted wiretaps, yes.

Q. You relied on, for your Conclusion, on what their perception of the statute was?

A. Not completely, but it but, in part, yes.

Q. You also relied on your own reading of the statute?

A. Yes and the annotations at the time. I don't recall exactly. A. 90-91.

Q. I believe your testimony was that Agent Mahoney notified you that the tape custodian at the F.B.I. had noticed the change in the numbers and brought that to his attention?

A. Yes.

Q. You consulted with some people about what you should do?

A. Yes.

Q. After the consultation, it was indicated to you you should seal those tapes?

A. That it would probably be better to seal them.

Q. Did anyone -- how many people did you consult with, do you have any idea?

A. No, I don't recall exactly.

Q. Did anybody indicate to you you better get those sealed?

A. No. A. 99.

The district court concluded that Armenakis "acted reasonably under the circumstances." While "reading and outlining the statute and reviewing the relevant annotations" could not be "considered a normally competent level of research that a reasonably prudent attorney would undertake," the district court believed the "critical aspect in this case [was] the interaction between Armenakis' own research and the authoritative confirming advice she received from other, more experienced United States Attorneys in her office." Appendix pp. 10-11.

I would conclude that the record will not support the district court's Conclusions that Armenakis acted reasonably under the circumstances and, accordingly, that the government's explanation is not "satisfactory" as that term has been interpreted by this court and the Supreme Court in Ojeda Rios. To hold that this record suffices to carry the government's burden under Ojeda Rios would effectively eliminate that burden and would ill serve the privacy concerns underlying the sealing requirement of the statute.

The district court properly considered the extent of Armenakis' personal investigation into the law. The degree of effort she put into that investigation is one factor to be considered in determining whether she behaved reasonably. On the other hand, her efforts have to be evaluated in light of the fact that the text of "the statute unambiguously rules out" the Conclusion she reached, as we noted in Vastola II, 915 F.2d at 874. For this reason, I agree with the district court that Armenakis' personal investigation of the legal issue involved will not support a finding of reasonableness.

This leaves Armenakis' testimony that she consulted others in the office whose identity she cannot now recall, at times she cannot now recall, and under circumstances that she cannot now recall. While I do not fault Armenakis for being unable to recall in December of 1990 what she did in the spring of 1985, the indefiniteness of her testimony precludes anyone from determining anything about the circumstances under which she relied upon the advice of others. One can tell nothing, for example, about what she told her allegedly more experienced peers as a factual predicate for the solicited opinion, whether she inquired over lunch or in a more structured context, whether the opinions provided by the peers were tendered immediately off the top of their heads or after reasoned analysis, and whether or not Armenakis inquired concerning the basis for their proffered views. The government's evidence simply does not permit the kind of inquiry we insisted upon in Carson. As a result, we do not know whether this is a case involving "a reasoned oral opinion of a . . . peer with more experience," or a mere "casual conversation." Carson, 969 F.2d at 1495.

In order for the government's explanation to be "satisfactory" in a situation like this, a determination that the advice received by the decision maker from others was reasonably relied upon requires far more specific support than the government supplied here. Accordingly, I would hold that the government did not carry its burden of demonstrating that Armenakis acted reasonably under all of the circumstances.

The government has argued throughout the extended history of this case that the admission of the 185 reels of West Long Branch surveillance, if error, was harmless error. It renews that contention before us and suggests that we should determine that issue without further help from the trial Judge. This suggestion has some appeal because the parties would understandably like to bring this case to a close. I would decline, however, to accept this invitation. As we noted in Vastola II, "if the tapes should have been suppressed, the extent of the damage to the government's case could not easily be assessed." 915 F.2d at 877. The trial Judge, who heard the very extensive evidence against Mr. Vastola, is in a far better position than we to assess that damage, and I would solicit his help in doing so.

I would remand with instructions to decide the harmless error issue and to grant a new trial if that issue is determined in Mr. Vastola's favor.


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