In the Supreme Court of the United States
October Term, 1989
On Writ of Certiorari to the United States Court of Appeals for the Second Circuit
Brief for the United States
PARTIES TO THE PROCEEDING
In addition to the named parties, Hilton E. Fernandez Diamante,
Jorge A. Farinacci Garcia, Elias S. Castro Ramos, Orlando Gonzalez
Claudio, Isaac Camacho Negron, Ivonne Melendez Carrion, Angel Diaz
Ruiz, and Luis A. Colon Osorio are respondents.
Parties to the Proceeding
Statutory provisions involved
Summary of argument
I. Title III does not require suppression of tape-recorded
evidence because of a delay in sealing the tapes
II. Tape-recorded evidence should be admissible if the Court is
satisfied that the evidence is authentic
III. The tape-recorded evidence in this case should be admitted
even if Section 2518(8)(a) requires the Government to show
good cause for the delay in sealing
The opinion of the court of appeals (Pet. App. 1a-14a)
at 875 F.2d 17. The opinion of the district court suppressing
evidence (Pet. App. 17a-96a) is reported at 695 F. Supp. 649. The
opinion of the district court on the government's motion for
reconsideration (Pet. App. 15a-16a) is unreported.
The judgment of the court of appeals was entered on May
On June 26, 1989, Justice Marshall extended the time for filing a
petition for a writ of certiorari to and including July 14, 1989, and
the petition was filed on that day. It was granted on October 10,
1989. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
18 U.S.C. 2515 provides:
Prohibition of use
as evidence of intercepted wire or oral
Whenever any wire or
oral communication has been intercepted,
no part of the contents of such communication and no evidence
derived therefrom may be received in evidence in any trial,
hearing, or other proceeding in or before any court, grand jury,
department, officer, agency, regulatory body, legislative
committee, or other authority of the United States, a State, or
a political subdivision thereof if the disclosure of that
information would be in violation of this chapter.
18 U.S.C. 2518 (1982 & Supp. V 1987) provides in relevant part:
Procedure for interception
of wire, oral, or electronic
* * * * *
(8)(a) The contents
of any wire, oral, or electronic
communication intercepted by any means authorized by this
chapter shall, if possible, be recorded on tape or wire or other
comparable device. The recording of the contents of any wire,
oral, or electronic communication under this subsection shall be
done in such a 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. They shall not be destroyed except
upon an order of the issuing or denying judge and in any event
shall be kept for ten years. Duplicate recordings may be made
for use or disclosure pursuant to the provisions of subsections
(1) and (2) of section 2517 of this chapter for investigations.
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.
(b) Applications made
and orders granted under this chapter
shall be sealed by the judge. Custody of the applications and
orders shall be wherever the judge directs. Such applications
and orders shall be disclosed only upon a showing of good cause
before a judge of competent jurisdiction and shall not be
destroyed except on order of the issuing or denying judge, and
in any event shall be kept for ten years.
(c) Any violation of
the provisions of this subsection may be
punished as contempt of the issuing or denying judge.
* * * * *
(10)(a) Any aggrieved
person in any trial, hearing, or
proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of the United States, a
State or a political subdivision thereof, may move to suppress
the contents of any wire or oral communication intercepted
pursuant to this chapter, or evidence derived therefrom, on the
grounds that --
(i) the communication was unlawfully intercepted;
(ii) the order of authorization
or approval under which it
was intercepted is insufficient on its face; or
(iii) the interception
was not made in conformity with the
order of authorization or approval.
* * * * *
Whether tape recordings of conversations obtained pursuant
court-authorized electronic surveillance should be suppressed because
of a delay in the judicial sealing of the tapes, even if the tapes
that are offered into evidence are proved to be the unaltered
A 17-count indictment returned in the United States District
for the District of Connecticut charged respondents and ten others
with offenses pertaining to the September 12, 1983, robbery of the
Wells Fargo depot in West Hartford, Conecticut, during which
approximately $7 million was taken. /1/ Evidence connecting
respondents, to that robbery was discovered during an investigation of
their involvement in a rocket attack on the United States Courthouse
in Hato Rey, Puerto Rico. The targets of the investigation, including
respondents, were members of a Puerto Rican organization known as "Los
Macheteros," the "machete wielders." During the investigation,
court-authorized electronic surveillance was conducted at six
different locations between April 1984 and August 1985. /2/ Following
the return of the indictment in this case, respondents moved to
suppress all the evidence obtained as a result of electronic
surveillance. Pet. App. 17a-96a; Gov't C.A. Br. 4-5.
After an eight-month suppression hearing, /3/ the district
granted the motion to suppress with respect to conversations recorded
at two locations; the court denied the motion in all other respects.
Pet. App. 17a-96a; Gov't C.A. Br. 3. The government appealed, and
the court of appeals affirmed. Pet. App. 1a-14a.
1. On April 27, 1984, Chief Judge Perez-Gimenez of the
States District Court for the District of Puerto Rico entered an order
under Title III of the Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. 2510-2521 (Title III), authorizing the FBI to
intercept oral communications at the apartment of respondent Filiberto
Ojeda Rios in Levittown, Puerto Rico. Ojeda Rios, who had no home
telephone, was known to use three public telephones across the street
from his apartment. Accordingly, the judge also authorized the
interception of wire communications at those telephones. On May 11,
1984, Judge Perez-Gimenez also authorized the placement of a
microphone in respondent Ojeda Rios's automobile, a Datsun Sentra.
The orders for the car and for the Levittown apartment and the public
telephones were extended on several occasions. Pet. App. 18a-21a.
In July 1984, suspecting that his conversations in Levittown
being intercepted, Ojeda Rios moved from Levittown to El Cortijo,
Puerto Rico. In light of that move, the FBI ceased monitoring at
Levittown on July 9, 1984, although the final extension for the
Levittown apartment and telephones did not expire until July 23, 1984.
On July 27, the government received authorization to intercept the
telephones and to place a microphone in respondent Ojeda Rios's new
residence in El Cortijo. That order was extended several times, as
was the order permitting the interception of conversations in Ojeda
Rios's Datsun Sentra. The final extension for the El Cortijo order
expired on September 24, 1984. Pet. App. 72a-73a, 75a. The final
extension for the surveillance of Ojeda Rios's Datsun expired on
October 10, 1984. The Levittown, El Cortijo, and Datson tapes were
judicially sealed on October 13, 1984. Pet. App. 19a-21a, 69a n. 8,
73a; Gov't C.A. Br. 7 & n.5.
On November 1, 1984, the court authorized the FBI to intercept
conversations at the Vega Baja, Puerto Rico, residence of defendants
Juan Segarra Palmer and Luz Berrios Berrios. The court extended that
authorization order each month for seven months; the last extension
expired on May 30, 1985. On January 18, 1985, the court also
authorized the FBI to intercept conversations at two public telephones
near the Vega Baja residence. That order expired on February 17,
1985, and the FBI therefore temporarily ceased intercepting
conversations as of that date. Because the government wished to
revise the affidavit that was being used to support the requests for
electronic surveillance authorization, the government did not apply
for an extension of the January order until March 1, 1985. /4/ The
new order issued on that date. After two more extensions, the final
Vega Baja intercept order expired on May 30, 1985. The tapes of all
conversations recorded at the Vega Baja residence and the nearby
public telephones were judicially sealed on June 15, 1985. Pet. App.
21a, 79a-80a; Gov't C.A. Br. 9-10. /5/
2. In their motions to suppress all the conversations intercepted
during the investigation, respondents alleged that the tapes were
inadmissible because they had not been sealed "immediately" upon the
expiration of the intercept orders and extensions, as required by 18
U.S.C. 2518(8)(a). Pet. App. 17a. During the suppression hearing,
respondents also sought to show that the tapes had been altered. The
government offered expert evidence to rebut those claims, and it made
a detailed showing of the measures that had been taken to preserve the
integrity of the tapes. Id. at 23a-24a, 31a-35a, 51a-53a. With
respect to the judicial sealing requirement, the government showed
that Frank Bove, the supervising attorney who was responsible for
having many of the tapes sealed, was aware of the statutory sealing
requirement, but interpreted the statutory language to mean that the
sealing obligation did not arise until all related intercept orders
and their extensions had expired. Id. at 76a-77a. Accordingly, Bove
had arranged for Judge Perez-Gimenez to seal the related Levittown, El
Cortijo, and Datsun tapes on October 11 and 13, 1984, at the time of
the expiration of the last of the intercept orders for those
locations. Id. at 35a-36a, 62a. Bove arranged for the sealing of the
tapes from the Vega Baja intercepts at the end of May 1985, following
the end of the last extension of the intercept authorization for that
location. Id. at 79a, 85a-86a.
3. At the conclusion of the suppression hearing, the district
admitted some of the tapes of intercepted conversations and excluded
others. With respect to the challenge to the integrity of the tapes,
the district court credited the testimony of the government's expert
and found that the government had proved by clear and convincing
evidence that the tapes being admitted into evidence were in their
original form and had not been tampered with. Pet. App. 55a-61a.
Turning to the issue of the delays in the judicial sealing
tapes, the court first considered the sealing of the Levittown tapes.
The government contended that the El Cortijo order was an extension of
the Levittown order because the El Cortijo order simply followed the
movement of the target, respondent Ojeda Rios. If that was so, the
government argued, the sealing obligation for the Levittown tapes did
not ripen until September 24, 1984, when the final El Cortijo
extension expired. Pet. App. 67a-70a.
The district court rejected that argument. It held
the obligation to seal the tapes from the oral and wire interceptions
at Levittown arose no later than July 23, 1984, when the final
extension of the original Levittown order expired. /6/ Based on that
analysis, the district court concluded that there had been at least an
82-day delay in sealing the Levittown tapes, from July 23 to October
13. Id. at 63a-65a. The court found the delay to be "excessive as a
matter of law" and held that it required the automatic suppression of
all the Levittown tapes. The court thus found it irrelevant whether
the government could prove that those tapes had not been altered,
i.e., that the delay in sealing did not affect the integrity of the
tapes. Id. at 66a. The court accordingly noted that because it was
suppressing the Levittown tapes, it would not address the question
whether the integrity of those tapes had been maintained. Id. at 30a
The district court refused to suppress the El Cortijo tapes,
although there was a 19-day delay in sealing those tapes. Unlike the
delay in sealing the Levittown tapes, the court concluded that the
19-day delay in sealing the El Cortijo tapes was not "so great as to
require automatic exclusion." Pet. App. 76a. The court then found
that the government had provided a satisfactory explanation for the
19-day delay. The court first noted that the government had proved by
clear and convincing evidence "the immaculacy of the tapes." Id. at
75a. Moreover, the district court found that the sealing delay "came
about in good faith": it did not prejudice the defendants in any way,
and the government "derived no benefit from its failure to seal
immediately." Id. at 76a. Finally, the court concluded that the sole
cause of the delay was attorney Bove's misunderstanding of the
statutory sealing requirement, and that Bove acted promptly to have
the tapes sealed after the expiration of the Datsun Sentra extension
order on October 10, 1984, which was the date that Bove believed
triggered the sealing requirement. Pet. App. 76a-79a.
The court next considered the Vega Baja public telephone
held that the obligation to seal the tapes made pursuant to the
initial intercept order ripened on February 17, 1985, when that order
expired. The court acknowledged that the initial order was extended
several times, but it held that the extensions could not postpone the
sealing obligation unless the government provided a "satisfactory
explanation" for the 12-day hiatus between the expiration of the
original order and the first extension. The government explained that
it had been attempting to revise the underlying affidavit on which the
Vega Baja applications were based, but the court found that
explanation unsatisfactory. Pet. App. 82a-83a. Accordingly, the
court calculated that 118 days had passed between the expiration of
the original intercept order on February 17, and June 15, when all the
Vega Baja tapes were sealed. The court held that this delay, like the
delay in sealing the Levittown tapes, was "excessive as a matter of
law," and it suppressed the Vega Baja public telephones tapes that had
been obtained pursuant to the January 18 order. Id. at 83a.
The court did not suppress the remaining Vega Baja tapes,
the 16-day delay (from May 30 to June 15) in sealing those tapes. The
court reasoned that suppression of those tapes was not required
because the government had proved by clear and convincing evidence
that the tapes had not been altered and because respondents were not
prejudiced by the delay, which was the result of a good faith
misunderstanding between the prosecutor and the FBI as to who would
initiate the sealing process. Pet. App. 84a-88a. The court
specifically found that the government had not used the 16-day delay
"to tamper with the tapes or in any way use the tapes to gain some
advantage." Id. at 84a.
4. The government appealed the suppression of the 455 Levittown
tapes and the 34 Vega Baja public telephone tapes that were recorded
pursuant to the January 18, 1985, intercept order. The court of
appeals affirmed. Pet. App. 1a-14a. The court observed that when
tapes are not sealed within one or two days after the expiration of a
wiretap order, the government bears the burden of offering a
satisfactory explanation for the delay as a prerequisite to the tapes'
admissibility. Id. at 7a. The court disagreed with those circuits
that "excuse sealing delays simply upon proof of the integrity of the
tapes." Id. at 8a. /7/
The court of appeals agreed with the district court's conclusion
that there had been a delay of at least 82 days in sealing the
Levittown tapes. Pet. App. 11a. Although it did not agree with the
district court's conclusion that the tapes should be suppressed "on
the basis of time alone," id. at 11a-12a, the court nevertheless
concluded that suppression was required. In light of the length of
the delays in sealing, the court found that the government's
explanation was not "satisfactory," because it "resulted from a
disregard of the sensitive nature of the activities undertaken." Id.
at 12a. /8/
With respect to the Vega Baja public telephone tapes, the
appeals agreed with the district court that the government was
required to provide a "satisfactory explanation" for the 12-day hiatus
between the expiration of the January 18 order on February 17, 1985,
and the issuance of the March 1 extension order. The court of appeals
also agreed with the district court that the government's explanation
for that delay was insufficient. Pet. App. 14a. The court therefore
treated the January 18 order as if it had never been extended, so that
the tapes obtained pursuant to the January 18 order should have been
sealed shortly after February 17, rather than in June, after the
expiration of the final Vega Baja intercept order. The court of
appeals thus agreed with the district court that there had been a
118-day delay in sealing the tapes recorded pursuant to the first Vega
Baja telephone intercept order. Because it found that delay
unjustified, the court agreed with the district court that the
products of the January 18 order had to be suppressed. Ibid.
SUMMARY OF ARGUMENT
1. Section 2518(8)(a) of the federal wiretap statute requires
immediately after the expiration of an order authorizing electronic
surveillance, recordings of any intercepted conversations must be
presented to the judge who issued the order and sealed under his
direction. The statute further provides that the presence of such a
seal, or a satisfactory explanation for its absence, is a prerequisite
for the use of the recordings in evidence. The question in this case
is whether Section 2518(8)(a) bars the use of evidence which was
sealed by the court, but in which the sealing was not done
"immediately" after the expiration of the electronic surveillance
Section 2518(8)(a) bars the admission of evidence only
in cases in
which a judicial seal is absent; it does not require the exclusion of
tapes when the tapes are sealed but the sealing was delayed. The
plain language of Section 2518(8)(a) supports our construction: the
statute requires a "satisfactory explanation" for the "absence" of the
required seal, not for a delay in affixing it. NOr is there anything
in the legislative history or context of Section 2518(8)(a) suggesting
that suppression should be ordered in the case of a delay in sealing.
The fact that Section 2518(8)(a) does not provide a remedy for delays
in sealing does not, of course, mean that tape-recorded evidence must
be admitted regardless of its trustworthiness. Quite apart from any
remedies provided by Title III, the courts possess ample authority to
police the admission of evidence whose authenticity is challenged.
2. Even if Section 2518(8)(a) is interpreted to require
"satisfactory explanation" for sealing delays, that term should be
construed, consistent with the purpose of Section 2518(8)(a), to mean
an explanation that satisfies the court that the tape-recorded
evidence has not been tampered with. In accordance with that
approach, most courts have held that late-sealed tapes are admissible
if the government can demonstrate that the tapes have not been
altered. There is no justification under the language or policy of
the statute to exclude evidence because the delay was lengthy or
because it resulted from some lapse on the part of the government.
Neither factor has any significant bearing on the essential matter to
be established by the explanation: the integrity of the tapes.
Suppression also cannot be justified because of the possible deterrent
effect of the suppression order. If the tapes are shown to be
authentic, it would be inconsistent with the purposes of Section
2518(8)(a) to suppress them simply because suppression might affect
the government's conduct in future cases. In any event, the
government already has strong incentives to comply with the sealing
requirement in order to avoid or minimize the burden of lengthy
suppression hearings necessary to establish the integrity of the tapes
when sealing has been delayed.
3. Even if the government is required to provide a "satisfactory
explanation" for sealing delays, and even if the reasons for the delay
in sealing or the length of the delay are relevant considerations, the
explanation for the delays in this case was still "satisfactory." All
the delays at issue here resulted from the supervising attorney's good
faith and objectively reasonable interpretation of the statutory
requirement permitting sealing after "extensions" of the original
intercept order. Accordingly, if the government can establish that
the tape-recorded evidence in this case is authentic, then the
evidence should be admitted.
I. TITLE III DOES NOT REQUIRE SUPPRESSION OF TAPE-RECORDED
BECAUSE OF A DELAY IN SEALING THE TAPES
Title III of the Omnibus Crime Control and Safe Streets
1968, 18 U.S.C. 2510-2521, establishes specific procedures for
conducting electronic surveillance of oral and wire communications.
Among those procedures is the requirement that recordings of
intercepted conversations be sealed under the direction of a judge
"(i)mmediately upon the expiration of the period of the (electronic
surveillance) order, or extensions thereof." 18 U.S.C. 2518(8)(a).
The presence of a seal, "or a satisfactory explanation for the absence
thereof," is "a prerequisite for the use" of the tape recordings at
trial. Ibid. The question in this case is whether tapes that have
been sealed, although not immediately, may be admitted into evidence
at trial if the government shows that the integrity of the tapes has
been maintained. /9/ The district court held that, regardless of the
integrity of the Levittown and Vega Baja tapes, they had to be
suppressed solely because of the delay in sealing. The court of
appeals held that those tapes had to be suppressed because the
government's explanation for its failure to seal the tapes immediately
was not satisfactory, and that suppression was required even if the
tapes were conclusively shown to be unaltered.
1. Although both courts based their decisions on Section
of Title III, the statutory sealing provision, nothing in that
provision requires suppression of evidence because of a delay in
sealing. The statute provides that either a seal or a satisfactory
explanation for its absence is a "prerequisite" for the use of
tape-recorded electronic surveillance evidence at trial; however, the
statute says nothing about the consequences of a delay in sealing.
Under the statute's plain terms, a "satisfactory explanation" is a
prerequisite for admission of the evidence only where the seal is
absent; there is no such requirement where the seal is present but
the actual sealing was delayed for some period after the termination
of the interception.
The Second Circuit, in United States v. Gigante, 538 F.2d
(1976), held that the requirement of a "satisfactory explanation"
applies to a delay in sealing as well as to the absence of a seal.
According to that court, the statutory reference to the absence of a
seal must be interpreted to mean the absence of a seal affixed in a
That construction of Section 2518(8)(a) is strained and
implausible. Under the natural reading of the statute, the "absence"
of the "seal provided for by this subsection" simply means the absence
of a judicial seal, regardless of when the seal was attached. If
Congress had meant to include promptness in sealing as a prerequisite
for admissibility, it could have done so explicitly, but it did not.
Accordingly, if the seal is absent, then the tapes may not be used
unless the government provides a satisfactory explanation for the
seal's absence; if the seal is present, however, Section 2518(8)(a)
poses no bar to admission of the evidence. /10/
In this case, the Levittown and Vega Baja tapes were sealed
before trial, and thus the statutory prerequisite was satisfied.
Consequently, the exclusionary provision in Section 2518(8)(a) does
not bar admission of those tapes at trial.
2. The structure of Title III rebuts any notion that Section
2518(8)(a) contains an implied suppression remedy for delays in
sealing tape-recorded evidence. Congress drafted Title III in an
effort to provide a statutory means for conducting electronic
surveillance consistent with Fourth Amendment standards enunciated by
the Court in Berger v. New York, 388 U.S. 41 (1967), and Katz v.
United States, 389 U.S. 347 (1967). See S. Rep. No. 1097, 90th Cong.,
2d Sess. 27-28, 66-76 (1968). To enforce the privacy protections in
the statute, Congress drafted a suppression remedy similar to the
Fourth Amendment exclusionary rule. Id. at 96. Specifically, Section
2515 excludes intercepted conversations from evidence "if the
disclosure of that information would be in violation of this chapter."
The circumstances that trigger suppression under Section 2515 are, in
turn, enumerated in Section 2518(10)(a):
(i) the communication was unlawfully intercepted;
(ii) the order of authorization
or approval under which it
was intercepted is insufficient on its face; or
(iii) the interception
was not made in conformity with the
order of authorization or approval.
See United States v. Donovan, 429 U.S. 413, 432 (1977). This remedy
extends only to those statutory provisions that protect privacy
interests by limiting the use of electronic surveillance. United
States v. Donovan, 429 U.S. at 435; see id. at 433-434 (quoting
United States v. Giordano, 416 U.S. 505, 527 (1974) ("suppression is
required only for a 'failure to satisfy any of those statutory
requirements that directly and substantially implement the
congressional intention to limit the use of intercept procedures to
those situations clearly calling for the employment of this
extraordinary investigative device'")).
Applying that principle, this Court has held that suppression
inappropriate for violations such as (1) misidentification of the
authorizing Department of Justice official in the warrant application,
United States v. Chavez, 416 U.S. 562, 570-580 (1974); (2) failure to
list in the application every individual whose conversations the
government expects to intercept, Donovan, 429 U.S. at 435-437; and
(3) failure to inform the authorizing judge of all identifiable
persons whose conversations were intercepted. Id. at 438-439.
Like other post-interception procedures, the sealing requirement
does not limit the conduct of electronic surveillance. Because it
does not restrict the circumstances in which conversations can be
seized, the sealing provision does not affect any interest protected
by the Fourth Amendment. /11/ A lack of compliance with a
post-interception procedure does not mean that particular
conversations were illegally seized. Donovan, 429 U.S. at 438.
Therefore, lawfully intercepted tapes are not subject to suppression
under 18 U.S.C. 2518(10) for a delay in sealing. See United States v.
Falcone, 505 F.2d at 484.
The fact that Section 2518(10) does not authorize the exclusion
evidence for sealing delays sheds light on the proper construction of
Section 2518(8)(a). It is most unlikely that Congress, having
expressly defined the scope of the suppression remedy in Section
2518(10), intended to expand that remedy by implication in Section
2518(8)(a). /12/ Interpreting Section 2518(8)(a) to require the
suppression of unaltered tapes solely because of delays in sealing
would 'inexplicably elevate() the immediate sealing requirement to a
more protected status than any of the other procedural requirements
enacted in Title III." United States v. Angelini, 565 F.2d at 473 n.7.
Contrary to the court of appeals' assertion (Pet. App.
interpretation does not "completely undercut the statutory purpose of
protecting the integrity of the tapes." Under the Federal Rules of
Evidence, the proponent of evidence always has the burden of
establishing the authenticity of physical evidence offered for
admission. See Fed. R. Evid. 901. Moreover, where questions have
been raised as to the integrity of tape-recorded evidence, the courts
of appeals have required the government to meet a strict standard of
proof in establishing the authenticity of the tapes, quite apart from
any requirement of Title III. See United States v. Sandoval, 709 F.2d
1553, 1554-1555 (D.C. Cir. 1983); United States v. Blakey, 607 F.2d
779, 787 (7th Cir. 1979); United States v. King, 587 F.2d 956,
960-961 (9th Cir. 1978); United States v. Biggins, 551 F.2d 64, 66-68
(5th Cir. 1977); United STates v. Starks, 515 F.2d 112 (3d Cir.
1975); United States v. Knohl, 379 F.2d 427, 440 (2d Cir.), cert.
denied, 389 U.S. 973 (1967). It is therefore not necessary to torture
the language of Section 2518(8)(a) to ensure that tape-recorded
evidence is admitted only if it is shown to be genuine.
II. TAPE-RECORDED EVIDENCE SHOULD BE ADMISSIBLE IF THE
SATISFIED THAT THE EVIDENCE IS AUTHENTIC
Even if the "satisfactory explanation" requirement applies
delays in sealing (as well as the absence of a seal), suppression
should be ordered only if the delay draws into question the integrity
of the tape-recorded evidence. That is, a "satisfactory explanation"
for a delay in sealing should be any explanation that satisfies the
court that the delay did not result in tampering with the tapes. See,
e.g., United States v. Lawson, 545 F.2d 557, 564 (7th Cir. 1975)
(although the government proffered an "untenable" reason for the
delay, suppression was not ordered where the integrity of the tapes
was safeguarded prior to sealing), cert. denied, 424 U.S. 927 (1976).
Most courts agree that, regardless of the reason for the
late-sealed tapes are admissible if the government shows that they
have not been altered. See, e.g., United States v. Angelini, 565 F.2d
469, 473 (7th Cir. 1977) (admitting tapes because the "Congressional
purposes underlying the sealing requirement were met"), cert. denied,
435 U.S. 923 (1978); United STates v. Diadone, 558 F.2d 775, 780 (5th
Cir. 1977) (no suppression where no showing that "the integrity of the
interceptions was in any way disturbed"), cert. denied, 434 U.S. 1064
(1978); United States v. Lawson, 545 F.2d at 564 (no suppression
despite 57-day delay where the integrity of the tapes is not
questioned); United States v. Cohen, 530 F.2d 43, 46 (5th Cir.) (no
suppression forj five-week delay where "the parties stipulated to
facts showing chain of custody and lack of alteration of the tapes"),
cert. denied, 429 U.S. 855 (1976); United States v. Sklaroff, 506
F.2d 837, 840-841 (5th Cir. ) (no suppression where the purpose of
"safeguard(ing) the recordings from editing or alteration" is
satisfied), cert. denied, 423 U.S. 874 (1975); United States v.
Falcone, 505 F.2d 478, 484 (3d Cir. l1974) (admitting late-sealed
tapes "where the trial court has found that the integrity of the tapes
is pure"), cert. denied, 420 U.S. 955 (1975); United States v.
Vastola, 670 F. Supp. 1244, 1282 (D.N.J. 1987) (suppression is not
mandated where the "integrity of the tapes has not been questioned").
Cf. McMillan v. United States, 558 F.2d 877, 879 (8th Cir. 1977)
(refusing to consider collateral attack alleging sealing delay since
defendant did not challenge the integrity of the tapes). But see
United States v. Mora, 821 F.2d 860, 867-868 (1st Cir. 1987) (although
the court looks "first -- and most searchingly -- at whether the
government has established by clear and convincing evidience that the
integrity of the tapes has not been compromised, nevertheless
"warranties of driven snow purity, proven beyond peradventure, will
not suffice to constitute a 'satisfactory explanation'"); United
States v. Massino, 784 F.2d 153, 158-159 (2d Cir. 1986) (suppression
appropriate for delay in sealing regardless of the effect of the delay
on the integrity of the tapes).
The principal purpose of Section 2518(8)(a) is to ensure
integrity of evidence obtained through electronic surveillance. See
S. Rep. No. 1097, supra, at 104 ("Paragraph (8) sets out safeguards
designed to insure that accurate records will be kept of intercepted
communications."). In addition to the sealing requirement, Section
2518(8)(a) requires that the contents of intercepted conversations be
recorded, if possible; that the recording "be done in such way as
will protect the recording from editing or other alterations"; that
custody of the original tapes be maintained in a place that the court
directs; and that the original tape recordings be preserved for at
least ten years. The sealing requirement is therefore simply one of
several devices Congress chose to ensure the integrity of evidence
produced by electronic surveillance. See United States v. Mora, 821
F.2d 860, 867 (1st Cir. 1987); United States v. Diana, 605 F.2d 1307,
1314 (4th Cir. 1979), cert. denied, 444 U.S. 1102 (1980); United
States v. Lawson, 545 F.2d 557, 564 (7th Cir. 1975), cert. denied, 424
U.S. 927 (1976); United States v. Falcone, 505 F.2d 478, 483 (3d Cir.
1974), cert. denied, 420 U.S. 955 (1975). /14/
Because Section 2518(8)(a) creates an evidentiary rule
ensure the integrity of evidence, it would be perverse to order
suppression in a case in which the tapes were shown to be authentic,
simply because the procedures followed in that case might result in an
increased risk of tampering in other cases. This Court has noted in
other contexts that the suppression of relevant evidence "exacts a
costly toll upon the ability of courts to ascertain the truth in a
criminal case." United States v. Payner, 447 U.S. 727, 734 (1980).
For that reason, the Court has held that the drastic sanction of
suppression ordinarily should not be imposed in the absence of a
violation of the defendant's own rights. Id. at 735-736. See also
United States v. Morrison, 449 U.S. 361 (1981). To suppress evidence
where there has been no violation of any right of the defendant, i.e.,
where it is clear that the evidence at issue is untainted, would
extend the evidentiary rule in Section 2518(8)(a) beyond the reach of
both the Fourth Amendment exclusionary rule and the parallel statutory
exclusionary rule in Section 2518(10)(a) of Title III.
For that reason, tape-recorded evidence should not be suppressed
simply to deter future statutory violations. If, as we submit, a
"satisfactory explanation" for a sealing delay is an explanation that
gives the court confidence in the integrity of the tapes, it would be
an extravagant application of exclusionary rule principles to suppress
trustworthy evidence on the ground that admitting such evidence might
encourage sealing delays in future cases.
Besides being inconsistent with general exclusionary rule
principles, the cost of deterrence in this setting would far exceed
any potential benefits. While sealing delays have occurred on
occasion, there is no indication in court decisions or otherwise that
the government routinely violates Section 2518(8)(a) or has used
periods of delay for improper purposes. It would be inappropriate to
create a rule excluding trustworthy evidence because of sealing delays
when there is no evidence that the government has flouted Section
2518(8)(a) for the purpose of altering tapes. /15/
Finally, there is no need for deterrence in this setting.
reason is that the requirement that the government prove the tapes'
authenticity already provides a substantial deterrent to delay. The
government is unlikely to delay sealing deliberately where the
predictable result of such delay is precisely what happened here -- a
complex, lengthy hearing on the integrity of the tapes. Submitting
tapes for judicial sealing is quick and easy. Thus, to the extent
that that procedure obviates or simplifies any hearing on the tapes'
authenticity, the government will have a great incentive to ensure
that the tapes are sealed promptly.
The principal factor that led to the suppressions at issue
the length of the delays involved. /16/ But that factor should be
irrelevant if the government shows that the integrity of the tapes was
maintained throughout the period of the delay. Although a lengthy
delay may increase the opportunities for alteration, the length of the
delay loses it significance once the government satisfies the district
court that no one took advantage of that opportunity and that the
accuracy of the tapes was in fact preserved. Accordingly, even a
lengthy delay should not require suppression as long as the tapes are
Because the purpose of the sealing requirement is to ensure
authenticity of tape-recorded evidence, suppression likewise should
not be ordered simply because a court in a particular case does not
regard the government's reason for failing to arrange for timely
sealing as a good one. Whether the failure to seal immediately is due
to negligence, oversight, or a misunderstanding of the statutory
requirement, the authenticity of the intercepted conversations is not
impaired as long as adequate measures have been taken to protect the
tapes from unauthorized handling. The reason for the delay is
relevant only if the conduct of the person responsible for sealing
bears on the ultimate question whether the tapes accurately reflect
the intercepted conversations, e.g., if the government delayed in bad
faith for the purpose of tampering with the tapes. In the absence of
any such showing, a court should not predicate admissibility on its
sympathy with the government's reason for the error.
III. THE TAPE-RECORDED EVIDENCE IN THIS CASE SHOULD BE
EVEN IF SECTION 2518(8)(a) REQUIRES THE GOVERNMENT TO SHOW GOOD CAUSE
FOR THE DELAY IN SEALING
Even if this Court construes Section 2518(8)(a) to require
government to provide a "satisfactory explanation" for the delay in
sealing, and even if the Court concludes that a "satisfactory
explanation" requires more than a showing that there was no bad faith
or tape tampering, the tapes in this case should not have been
suppressed. Thus, even if Section 2518(8)(a) imposes the equivalent
of a "good cause" standard, that standard was met in this case.
The reason for the sealing delays was that supervising
Frank Bove believed that sealing was not legally required until all
the related interception orders and extensions for each target were
completed. Neither delay was the result of procrastination on the
part of the supervising attorney or a deliberate decision to ignore
the sealing requirement. Rather, with respect to both the Levittown
tapes and the Vega Baja public telephone tapes, Bove concluded that
the authorizations for those interceptions were "extended," and that
conclusion led him to postpone having the tapes sealed for several
months while the surveillance of targets of the two series of
intercept orders continued.
Whether or not attorney Bove reached the wrong conclusion
as to the
meaning of the sealing requirement in Section 2518(8)(a), his legal
conclusion certainly constitutes an adequate explanation for the
delays and thus should not give rise to suppression. /18/ Bove was
aware of the sealing requirement and he fully intended to comply with
it. J.A. 4-5, 24-28. Moreover, in light of the case law at the time,
Bove's legal conclusions regarding the time for sealing the Levittown
and Vega Baja tapes were reasonable, even though they may have been
Section 2518(8)(a) imposes no sealing requirement until
expiration of the order authorizing electronic surveillance "or any
extensions thereof." With respect to the Levittown tapes, the question
Bove faced was whether the El Cortijo order was an "extension" of the
Levittown order, thereby postponing the obligation to seal the
Levittown tapes. In United States v. Principie, 531 F.2d 1132, 1142 &
n. 14 (2d Cir. 1976), cert. denied, 430 U.S. 905 (1977), the Second
Circuit construed the identical language in Section 2518(8)(d), which
identifies the time at which the obligation to serve an inventory
notice ripens. /19/ In Principie, as in the instant case, the targets
of the surveillance had changed locations to evade detection. The
Second Circuit held that the order authorizing electronic surveillance
at the second location was an "extension" of the order for the first
location, which had the effect of postponing the commencement of the
period for serving an inventory notice with respect to the
conversations intercepted at the first location. Consequently, Bove's
construction of the statutory language was similar to the Second
Circuit's construction in Principie. In light of Principie, there was
a legal basis for his view; even if that view was incorrect, it was
not unreasonable. Accordingly, the Second Circuit's criticism (Pet.
App. 12a) of Bove's interpretation of the statute (as resulting from
"a disregard of the sensitive nature of the activities undertaken") is
both unfair and misguided. At worst, Bove made an "honest mistake."
See United States v. Mora, 821 F.2d at 869. Under any standard,
Bove's legal error should constitute a "satisfactory explanation" for
the delay in sealing the Levittown tapes.
The argument against suppression is even more compelling
respect to the Vega Baja public telephone tapes. Both courts below
agreed that the March 1, 1985, order was an "extension" of the earlier
order, which expired on February 17, because it covered the "same
telephones, concerned the same crimes, and targeted the same
individuals as the initial order." See Pet. App. 82a-83a, citing
United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir. cert. denied,
444 U.S. 981 (1979). See also Pet. App. 13a-14a. But the courts held
that the government had failed to give a satisfactory explanation for
the 12-day delay in obtaining the extension. Yet, Title III does not
require the government to explain the hiatus between the expiration of
an order and the authorization of an extension, and it is unclear why
a second intercept order should be considered an "extension" if the
government has a satisfactory explanation for a brief hiatus following
the first order, but not an "extension" if the explanation is deemed
unsatisfactory. Certainly, Bove cannot be faulted for failing to
anticipate that the Second Circuit would find the difficulties in
revising the Title III affidavit to be an insufficient justification
for the delay in obtaining an extension order, thereby retroactively
triggering the sealing requirement.
The court of appeals' criticism of the government's conduct
case is difficult to justify where, in an earlier decision, the court
required no explanation for a 23-day hiatus between the expiration of
an order and the subsequent extension. See United States v. Scafidi,
564 F.2d 633, 641 (2d Cir. 1977), cert. denied, 436 U.S. 903 (1978).
The court in Scafidi rejected an argument that conversations
intercepted pursuant to the initial order should have been sealed when
that order expired, holding that sealing was required "only at the
conclusion of the whole surveillance." Ibid. The reason for the
different result in this case is difficult to ascertain. Instead of
applying Scafidi, the court of appeals affirmed the suppression order
in this case because the revision of the affidavit could have been
completed more "expeditiously," and it characterized the government's
lack of speed as demonstrating "an underlying cavalier conception" of
the sealing requirements. Pet. App. 14a. In fact, however, the
12-day hiatus in the Vega Baja interception occurred because the
Office of Enforcement Operations within the Department of Justice was
attempting to revise the lengthy affidavit that was being used to
apply for authorizations and extensions. Pet. App. 79a-80a. That
hiatus was thus attributable not to carelessness or indolence on
Bove's part, but to the close scrutiny that Title III applications
receive within the Department of Justice. The Department's
deliberateness serves a two-fold purpose: it curtails needless
invasions of privacy and prevents the later suppression of the
evidentiary fruits of the surveillance. These purposes should be
encouraged, not discouraged. Cf. United States v. MacDonald, 456 U.S.
1, 11 n.12 (1982) (the decision to seek an indictment should be
considered carefully and delay resulting from the care given to this
matter "is certainly not any indication of bad faith or deliberate
delay"); Hoffa v. United States, 385 U.S. 293, 310 (1966) (no
constitutional requirement that an arrest be effected as soon as law
enforcement officials have probable cause). And, of course, the
12-day delay in approving the application for extension of the Vega
Baja public telephone wiretaps does not reflect in any way upon the
government's subsequent efforts to comply with the immediate sealing
In sum, the Second Circuit has suppressed evidence in this
in the absence of a finding that the tapes have been altered, (2) in
the absence of any constitutional violation, and (3) in the absence of
bad faith on the part of the government. Suppression of evidence
under those circumstances finds no support in the text or the policies
underlying Title III.
The judgment of the court of appeals should be reversed.
KENNETH W. STARR
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
WILLIAM C. BRYSON
Deputy Solicitor General
Assistant to the Solicitor General
PATTY MERKAMP STEMLER
/1/ Respondents and their co-defendants were charged with
robbery, in violation of 18 U.S.C. 2113(a); aggravated bank robbery,
in violation of 18 U.S.C. 2113(d); theft from an interstate shipment,
in violation of 18 U.S.C. 659; interstate and foreign transportation
of stolen money, in violation of 18 U.S.C. 2314; interference with
commerce by robbery, in violation of 18 U.S.C. 1951; and conspiracy,
in violation of 18 U.S.C. 371 and 1951. Of the ten co-defendants who
are not respondents in this case, two have pleaded guilty to charges
arising out of the indictment, four have been convicted after a jury
trial, and one has been acquitted. Three of the ten remain fugitives.
/2/ In addition to the interceptions described below, electronic
surveillance was conducted at the residence of two co-defendants in
Santurce, Puerto Rico, and at a condominium in Hato Rey, Puerto Rico,
that was used by the conspirators. Pet. App. 20a-21a. The district
court did not suppress the tape-recorded conversations obtained as a
result of those interceptions, id. at 79a, 94a, and the admissibility
of that evidence is therefore not at issue here.
/3/ The court heard testimony from 20 FBI agents who monitored
recorded conversations, from FBI agents who were involved in
presenting the tapes for judicial sealing, from the FBI electronic
surveillance clerk who maintained custody of the tapes after
interception, from the Department of Justice attorneys who supervised
the electronic surveillance investigation, and from defense and
government experts who addressed the issue of the authenticity of the
tapes. Pet. App. 17a.
/4/ The revisions turned out to take longer than expected,
the affidavit used with the March extension application was
substantially the same as the affidavit that had been used in prior
applications. The revised affidavit was used the following month.
Pet. App. 14a, 79a-80a.
/5/ The two-week delay in sealing the Vega Baja tapes arose
misunderstanding between the responsible officials in the FBI and the
prosecutor about who was to take responsibility for initiating the
sealing process. Pet. App. 84a-87a.
/6/ Although the interception at Levittown was discontinued
days before the Levittown intercept order expired, the court found it
unnecessary to decide which event triggered the obligation to have the
court seal the tapes. Pet. App. 63a-66a.
/7/ The court cited cases from the Third, Fifth, Seventh,
Eighth Circuits as adopting the approach it rejected: United States
v. Falcone, 505 F.2d 478, 484 (3d Cir. 1974), cert. denied, 420 U.S.
955 (1975); United States v. Diadone, 558 F.2d 775, 780 (5th Cir.
1977), cert. denied, 434 U.S. 1064 (1978); United States v. Cohen,
530 F.2d 43, 46 (5th Cir.), cert. denied, 429 U.S. 855 (1976); United
States v. Angelini, 565 F.2d 469, 471 (7th Cir. 1977), cert. denied,
435 U.S. 923 (1978); United States v. Lawson, 545 F.2d 557, 564 (7th
Cir. 1975), cert. denied, 424 U.S. 927 (1976); McMillian v. United
States, 558 F.2d 877, 879 (8th Cir. 1977).
/8/ Although the court agreed that the same mistaken interpretation
of law that led to the delay in sealing the Levittown tapes "might
help to excuse the nineteen-day delay (found) accept(able) by Judge
Clarie in respect to the later El Cortijo tapes," it imposed a higher
standard for the longer delay. Pet. App. 13a.
/9/ Because the district court declined to make a finding
as to the
integrity of the Levittown tapes, the district court will have to make
such a finding on remand if the government prevails in this Court.
The district court, however, has already made a finding that there was
no tampering with or alteration of the Vega Baja telephone tapes.
Pet. App. 30a n.3, 45a.
/10/ Nothing in the legislative history of Section 2518(8)(a)
suggests that it was intended to apply to delays in sealing as well as
the absence of a seal. The sealing provision was not the subject of
much attention during the drafting of Title III, and the references to
the statute in the legislative history tend to confirm that the
exclusionary language in the statute was meant to apply only to cases
in which there is no seal or satisfactory explanation for the absence
of a seal. See S. Rep. No. 1097, 90th Cong., 2d Sess. 104 (1968)
("the presence of the seal, noted above, is intended to be a
prerequisite for use or disclosure * * * unless a satisfactory
explanation can be made"). Senator Scott's contemporaneous
explanation of Title III is consistent with that interpretation. See
Scott, Wiretapping and Organized Crime, 14 How. L.J. 1, 25 (1968),
reprinted in 114 Cong. Rec. 13,210 (1968) ("Unless under seal (or no
satisfactory explanation of its absence) the information contained in
such recording may not be used in any court or other proceeding.").
/11/ The court of appeals asserted that the government's
sealing the Vega Baja public telephone tapes demonstrated "an
underlying cavalier conception that the sealing requirements are
technical, rather than reflective of congressional concerns about
underlying constitutional requirements." Pet. App. 14a. The length of
the delay, however, resulted not from any "cavalier conception" of the
sealing requirement, but simply from the failure to predict that the
court would refuse to treat the subsequent authorizations for tapping
the same phones as extensions of the original authorization (see pp.
9-10, supra). Moreover, the court's assumption that the sealing
provision was imposed to satisfy some constitutional requirement is
simply incorrect. Only the pre-intercept procedures implement the
Fourth Amendment standards identified in Berger and Katz. Neither
Congress nor any court other than the Second Circuit has ever
suggested that there is a constitutional basis for the sealing
requirement. Thus, even if the government erred in failing to seal
immediately, the error did not deprive respondents of any
constitutional right or any statutory right that was created to
protect constitutional interests.
/12/ In 18 U.S.C. 2518(8)(c), Congress provided an express
of contempt of court for any violation of Section 2518(8). It is
unlikely that after creating an express remedy for all violations of
that subsection, Congress intended to create by implication a
different remedy for some violations of the same subsection.
/13/ The suppression of tapes because of delays in sealing
be defended as an exercise of the court's supervisory powers. A court
may not disregard the limits on a statutory or constitutional remedy
simply by invoking supervisory power. See United States v. Hasting,
461 U.S. 499, 506 (1983); United States v. Payner, 447 U.S. 727, 734
(1980). Thus, the Second Circuit was wrong in United States v.
Massino, 784 F.2d 153, 158-159 (1986), to invoke the supervisory power
to establish an elaborate set of procedures and remedies for sealing
delays, under which tape-recorded evidence must be suppressed in some
instances simply because of the length of the delay, regardless of the
reason for the delay or the strength of the showing that the tapes are
/14/ The sealing provisions -- and particularly Section
-- serve the related subsidiary purpose of protecting information in
the tapes from disclosure to unauthorized persons. S. Rep. No. 1097,
supra, at 105. That purpose is fully accomplished by careful
custodial procedures of the sort utilized by the FBI in this case.
Pet. App. 30a-36a. There is no suggestion that the sealing delays led
to any unauthorized disclosure in the instant case.
/15/ We are not aware of any case in which a court has
federal prosecutors or agents have intentionally altered tape
recordings of electronic surveillance.
/16/ Although the court of appeals disavowed (Pet. App.
the district court's conclusion that suppression was required solely
on the basis of the length of the delay, it nonetheless found the
length of the delay highly significant. Thus, the court suppressed
the Levittown tapes but suggested that the same mistake of law might
constitute a satisfactory explanation for the delay in sealing the El
Cortijo tapes (Pet. App. 13a) even though the only arguably relevant
difference between the suppressed Levittown tapes and the admitted El
Cortijo tapes is the length of the delays in sealing. See also United
States v. Kusek, 844 F.2d 942, 946-947 (2d Cir. 1988) (refusing to
suppress tapes when eight-day delay was due to prosecutor's
misunderstanding of the statutory requirement); United States v.
Rodriguez, 786 F.2d 472, 477 (2d Cir. 1986) (same, 14-day delay). In
addition, the Levittown and the El Cortijo tapes were afforded
identical protections against tampering, and samples of the Levittown
tapes were included in those subjected to expert analysis and found to
be unaltered. Pet. App. 45a; Gov't C.A. App. 161-162.
/17/ The act of sealing provides, at best, only a modest
protection against tampering. Someone intent on tampering with the
tapes can do so at any time prior to the expiration of the electronic
surveillance order or its extensions, when the sealing obligation
accrues. Because the seal hardly provides full protection against
tampering, it is particularly perverse to impose a rigid suppression
remedy in the case of anything more than a short delay in sealing
following the expiration of the last extension order.
/18/ We are not here challenging the decision of both lower
that the El Cortijo surveillance was not an extension of the Levittown
surveillance and that the March 1 Vega Baja telephone order was not an
extension of the previous order. Accordingly, we accept for the sake
of argument the district court's calculations of the sealing delays.
/19/ An inventory notice must be served "not later than
after * * * the termination of the period of an order or extensions
thereof." 18 U.S.C. 2518(8)(d).