United States v. Thurston Chadrick Martin

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 18-12569
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO DEMITRIC STOWERS,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:16-cr-00010-RWS-JCF-8
____________________
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2 Opinion of the Court 18-12569
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No. 18-15289
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS SANCHEZ,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:16-cr-00010-RWS-JCF-5
____________________
____________________
No. 18-14958
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
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18-12569 Opinion of the Court 3
versus
THURSTON CHADRICK MARTIN,
a.k.a. Thurston Chadwick Martin,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:16-cr-00009-RWS-JCF-6
____________________
____________________
No. 18-14967
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARDO STEEPLES,
Defendant-Appellant.
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4 Opinion of the Court 18-12569
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:16-cr-00009-RWS-JCF-5
____________________
____________________
No. 19-10703
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HORACE MAYFIELD,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket Nos. 2:16-cr-00009-RWS-JCF-1,
2:16-cr-00010-RWS-JCF-1
____________________
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18-12569 Opinion of the Court 5
____________________
No. 19-10704
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HORACE MAYFIELD,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket Nos. 2:16-cr-00010-RWS-JCF-1,
2:16-cr-00009-RWS-JCF-1
____________________
____________________
No. 19-10804
____________________
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6 Opinion of the Court 18-12569
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO MELENDEZ,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:16-cr-00010-RWS-JCF-4
____________________
____________________
No. 19-10805
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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18-12569 Opinion of the Court 7
STEPHENS EDWIN IVESTER,
Defendant- Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:16-cr-00009-RWS-JCF-3
____________________
____________________
No. 19-12657
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN JUNIOR TEASLEY,
Defendant-Appellant.
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8 Opinion of the Court 18-12569
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:16-cr-00009-RWS-JCF-9
____________________
____________________
No. 19-13566
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHAN ANTONIO HOWARD,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:16-cr-00009-RWS-JCF-2
____________________
Before JORDAN, BRASHER, and ANDERSON, Circuit Judges.
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18-12569 Opinion of the Court 9
BRASHER, Circuit Judge:
These consolidated appeals require us to answer several
questions of first impression about Title III of the Omnibus Crime
Control and Safe Streets Act, “which regulates the interception of
wire, oral, and electronic communications.” United States v. Ojeda
Rios, 495 U.S. 257, 259 (1990) (citing 18 U.S.C. § 2510 et seq.). While
investigating a suspected drug trafficking conspiracy, a Georgia Bu-
reau of Investigation agent secured a wiretap authorization order
from a state judge. The wiretap ultimately implicated the following
nine people in the conspiracy: Mario Stowers, Thurston Martin,
Leonardo Steeples, Carlos Sanchez, Horace Mayfield, Gustavo
Melendez, Stephens Ivester, Marvin Teasley, and Nathan Howard.
When federal authorities prosecuted them based on this state-gath-
ered evidence, the defendants asked the district court to suppress
it. The district court denied their motions, the defendants pleaded
guilty to federal drug crimes, and each defendant expressly re-
served his suppression arguments for appeal. 1
The defendants make three arguments that the district court
should have suppressed this evidence. First, they argue that the
1 Although Mayfield also seeks to appeal his below-guidelines sentence, that
argument is barred by his appeal waiver. Mayfield’s plea agreement waived
the right to appeal a below-guidelines sentence, he reviewed the plea agree-
ment with his attorney, and the district court properly found at the change-of-
plea hearing that Mayfield had knowingly, voluntarily, and intelligently
pleaded guilty and understood the consequences. Accordingly, we do not ad-
dress Mayfield’s challenge to his sentence.
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10 Opinion of the Court 18-12569
state judge did not correctly seal the wiretap recordings as required
under Title III. Second, they argue that the government impermis-
sibly delayed sealing the wiretap recordings without providing a
satisfactory explanation for that delay. And third, they argue that
the state court’s wiretap authorization order exceeded its jurisdic-
tion. The government responds that the recordings were validly
sealed, that it has satisfactorily explained its delay in sealing, and
that the state court did not exceed its jurisdiction. We agree with
the government and affirm.
I. BACKGROUND
A. Factual Background
Georgia Bureau of Investigation Agent Clay Bridges led a
state investigation into suspected drug crimes. Before applying for
a state wiretap, Agent Bridges met with an assistant United States
attorney to discuss the investigation becoming a federal case. But
at that point, the federal government declined involvement, so
Agent Bridges and the district attorney sought state wiretap author-
ization. Agent Bridges had worked on several wiretap investiga-
tions during his twenty-five years of law enforcement, but he had
never been the affiant or prepared the application.
Because this was his first time preparing the application,
Agent Bridges reviewed the state wiretap law and sought guidance
from his superiors, asking for “all the documentation” that they
had on obtaining a wiretap. His superiors talked to him about ob-
taining a wiretap and sent him various materials. The materials
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18-12569 Opinion of the Court 11
included, most importantly, several “go-bys”—or applications, af-
fidavits, and orders from past cases that judges and attorneys had
approved and that officers had successfully used. At least some of
those “go-by” orders allowed for the recordings to be returned and
sealed ten days after the wiretap terminated.
Agent Bridges discussed the language of the “go-bys” with
his superior and then used that language to draft the application,
affidavit, and order for the first wiretap. His draft order authorized
interception for thirty days and required that the recordings be re-
turned within forty days of the order. He sent the drafts to the dis-
trict attorney, who edited them. Then, together, they presented
the application, affidavit, and order to the judge. The judge scruti-
nized the filings and asked Agent Bridges to change the language in
the order to clarify that the recordings had to be returned within
ten days of the last interception, not just within forty days of the
order. Agent Bridges made that change, and the judge signed the
order with the language: “Let return hereof and report as required
by law be made before me within forty (40) days of date hereof or
ten (10) days from the date of the last interception, whichever is
earlier.” The authorization also stated that all applications, affida-
vits, orders, reports, court reporter’s notes, tapes, and disks, “and
all other matters filed or received herein shall remain sealed until
further Order of this Court … [and] remain in the custody of the
Clerk.”
That same process happened four more times—three times
for additional wiretaps and once to extend the first wiretap. Each
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12 Opinion of the Court 18-12569
time, Agent Bridges prepared the application, affidavit, and order.
Each time, the district attorney edited them. And each time, the
judge reviewed them and signed the order. All of the orders con-
tained the ten-day-to-return language, and all of the orders were
labeled “UNDER SEAL.” Each also stated that the communica-
tions would be intercepted at “a designated law enforcement lis-
tening post” and that “based on the fact [that the target] is likely to
travel out of Georgia during the course of this investigation, the
State is authorized to continue to monitor and electronically inter-
cept transmissions to and from the target telephone during any out
of state travels.”
Based on the language in those five orders plus the examples
that he had reviewed, Agent Bridges believed that he would have
ten days from the last interception to return the recordings and that
they would be sealed when returned. Agent Bridges and other
Georgia law enforcement officers set up a listening post in Georgia
to monitor the calls in real time, and the calls were recorded and
stored in a separate, secure building to which Agent Bridges and
the others did not have access. Indeed, to gain access to the build-
ing, a person had to display law enforcement identification and
then be admitted by an employee with a “prox” card. To get into
the server room where the original recordings were stored, a per-
son would have to pass through three prox-card doors. Only three
employees had access to the server room; no one could be in the
server room without one of those three employees present. And
after entering the room, to access the recordings, a person would
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18-12569 Opinion of the Court 13
need a system account, username, and password, and a separate
username and password for the program where the original record-
ings were stored. Only the three employees with access to the
room had usernames; none of them were Agent Bridges or the
other officers working on the wiretaps in this case.
About a month-and-a-half after starting interceptions, the
agents executed fifteen to twenty search warrants and approxi-
mately thirty state arrest warrants. Among those arrested were the
two defendants who owned the four targeted phones. Shortly after
those defendants were arrested, the agents terminated all four
wiretaps.
Agent Bridges planned to return the recordings for sealing
“once [they] had developed discovery copies, once [they] had per-
fected the transcripts of certain calls, [and] once [they] had per-
fected the synopses of certain calls and reviewed them.” To get the
work done within ten days, Agent Bridges and a state sergeant as-
signed to the task force worked fourteen-hour days and weekends.
At one point, they called in extra agents because they were “falling
behind.” Both the sergeant and an FBI agent who helped with the
perfection understood from the judge’s order that they had ten
days (and only ten days) to return the original recordings. The ser-
geant even described ten days as “standard.”
They finished with the wiretaps about eight days after the
last interception. During those eight days, none of those agents had
the ability to access the original recordings, and there was not
“[a]ny ability for anybody to tamper with those recordings in any
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14 Opinion of the Court 18-12569
way” during those eight days. On the eighth day, the sergeant
drove from the listening post to the secure storage site and picked
up the original recordings. To do so, he met with one of the three
employees who could access the recordings. That employee went
into the server room, logged into the system with his credentials,
retrieved the recordings, and gave them to the sergeant, who
signed the evidence receipt. None of the original recordings had
been accessed from the secure server room before that day.
The sergeant delivered the recordings to Agent Bridges that
same day. Agent Bridges signed the evidence receipt, put the re-
cordings in a tamper-proof evidence bag, and placed the bag in a
locked evidence vault in his state-issued Suburban. Agent Bridges
then informed the district attorney that he had received the record-
ings and scheduled a meeting with the judge for the next day. The
recordings stayed locked in the Suburban’s vault that night. The
back of the Suburban had a cage around it. The vault was in that
cage. It had two drawers, each with a combination lock. And the
Suburban had an alarm, which did not go off that night.
The following day, Agent Bridges, the district attorney, and
an assistant district attorney met with the judge, and Agent Bridges
“presented [the recordings] to [the judge], explained that they were
the original audio recordings from the wire, … explained to him
that they must remain under seal; that they couldn’t come back out
of seal, … told [the judge] that [Agent Bridges] would be sealing
them in … a tamper-proof evidence bag and requested that [the
judge] initial the bag itself.” Next, Agent Bridges sealed the
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18-12569 Opinion of the Court 15
recordings in the tamper-proof evidence bag in front of the judge,
and both of them initialed the seal. The judge then instructed
Agent Bridges to take the evidence bag to the clerks’ office where
it would remain in the clerk of court’s custody under seal.
During that same meeting, the judge also signed the returns,
which Agent Bridges had prepared and which the district attorney
had reviewed and edited. Those returns verified that the recordings
were each “preserved on one (1) unedited DVD-RAM” and were
“delivered in the custody of [the] Court.” During the suppression
proceedings, the judge testified that once he had initialed the phys-
ical seal, he understood that the wiretap recordings were sealed and
“that the public would not have access at least to the original re-
cordings.”
After sealing the recordings, Agent Bridges immediately
took the evidence bag to the clerk’s office. Agent Bridges told the
clerk of court that the bag contained the original recordings and
that “under the original order to seal the evidence,” they were not
to be unsealed. The clerk took custody of the recordings, signed
the evidence receipt, and wrote in the “purpose of change of cus-
tody” column: “Sealed in Stephens County Clerk of Court.” At the
suppression hearing, the clerk testified that the tamper-proof evi-
dence bag holding the recordings “ha[d] stayed with [him] the en-
tire time because [it] ha[d] not been unsealed.” Additionally, both
he and the judge testified that the evidence bag “ha[d] never been
opened” after being sealed. The clerk explained that “when you
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16 Opinion of the Court 18-12569
open these, you can tell they have been opened and you can see
[this seal] has never been broken.”
B. Procedural Background
Each defendant was charged with conspiring to traffic co-
caine, methamphetamine, or both. Because the wiretap evidence
was crucial to all of their cases, the defendants filed motions to sup-
press the wiretap evidence based on alleged violations of Title III,
which regulates wiretaps. See United States v. Ojeda Rios, 495 U.S.
257, 259 (1990). The magistrate judge held a two-day hearing on
whether the wiretaps violated Title III’s sealing requirements
found at 18 U.S.C. § 2518(8)(a). After receiving post-hearing brief-
ing, the magistrate judge issued a Report and Recommendation
that recommended denying the defendants’ motions to suppress.
The magistrate judge’s order reasoned that Section
2518(8)(a) of Title III does not require a separate sealing order. Ad-
ditionally, it held that the sealing here complied with Section
2518(8)(a) because Agent Bridges had made the original recordings
available to the judge and then sealed them “under his direction.”
It also held that the government had satisfactorily explained any
delay in sealing. It specifically found that Agent Bridges’s proffered
reasons for the sealing delay—that he believed that he had ten days
to return the recordings and that he had to finish perfecting, copy-
ing, and producing transcripts of the recordings before returning
them—were “the actual reasons for the delay, i.e., he believed and
relied on the reasons he testified to at the hearing.”
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18-12569 Opinion of the Court 17
It found those beliefs reasonable because Agent Bridges had
relied on the judge’s orders, which the district attorney had re-
viewed, and on previous orders that other judges and attorneys had
approved and which other officers had successfully used. It also
found that the previous “go-bys” that Agent Bridges had reviewed
included the ten-day language and that Agent Bridges had talked to
his supervisors and the prosecutor about preparing the application.
Further, it found that the delay was not lengthy, that there was no
evidence of bad faith or tactical advantage, and that the recordings
had not been altered. Finally, it held that the state court did not
exceed its jurisdiction in authorizing the wiretaps because the calls
were intercepted at a listening post in Georgia.
The district court adopted the R&R as the opinion of the
court and made a few additions. The district court reasserted the
magistrate judge’s holding that the “receipt and sealing of the re-
cordings was not defective.” And it found that no one had accessed
the recordings since they had been sealed. In fact, the district court
found that the recordings were still with “the Clerk in a sealed bag
with an unbroken seal.” The district court concluded that suppres-
sion was not warranted here because an agent could “reasonably
rely upon” a judge’s signed order.
The defendants then conditionally pleaded guilty, waiving
their right to appeal matters other than the denial of the motion to
suppress the wiretap evidence. The defendants timely appealed,
and the appeals were consolidated. The defendants filed multiple
briefs raising a variety of arguments. Although we generally “limit
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18 Opinion of the Court 18-12569
each defendant’s appeal to the issues raised in his brief,” United
States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980), we proceed in this
case as if all the defendants have raised all the arguments raised in
any brief. See United States v. McGarity, 669 F.3d 1218, 1238 n.23
(11th Cir. 2012) (citing United States v. Gray, 626 F.2d 494, 497 (5th
Cir. 1980)); United States v. Gari, 572 F.3d 1352, 1361 (11th Cir.
2009) (internal quotation marks omitted); United States v. Rivera
Pedin, 861 F.2d 1522, 1526 n.9 (11th Cir. 1988)).
II. STANDARD OF REVIEW
A district court’s ruling on “a motion to suppress evidence is
reviewed as a mixed question of law and fact, with the rulings of
law reviewed de novo and the findings of fact reviewed for clear
error, in the light most favorable to the prevailing party.” United
States v. De La Cruz Suarez, 601 F.3d 1202, 1213 (11th Cir. 2010).
We have never expressly addressed what standard of review gov-
erns when we review a district court’s satisfactory-explanation de-
termination. We now hold that the same mixed standard of review
that applies to motions to suppress also applies to whether the gov-
ernment has provided a satisfactory explanation for its delay in seal-
ing. See, e.g., United States v. Burgos-Montes, 786 F.3d 92, 104 (1st
Cir. 2015). But see United States v. Coney, 407 F.3d 871, 874 (7th
Cir. 2005). That standard applies because the satisfactory-explana-
tion determination requires both factual and legal conclusions. See
United States v. Sawyers, 963 F.2d 157, 159 (8th Cir. 1992). For in-
stance, relevant factual findings include whether the government
tampered with evidence, the reasons for the delay, the
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18-12569 Opinion of the Court 19
“genuine[ness]” of the government’s belief, and whether the gov-
ernment acted in good faith; those are reviewed for clear error. See
United States v. Maxwell, 25 F.3d 1389, 1393–94 (8th Cir. 1994);
United States v. Maldonado-Rivera, 922 F.2d 934, 951–52 (2d Cir.
1990). Conversely, whether the explanation is ultimately satisfac-
tory is a legal determination reviewed de novo. See, e.g., United
States v. Pedroni, 958 F.2d 262, 265 (9th Cir. 1992).
III. DISCUSSION
Title III of the Omnibus Crime Control and Safe Streets Act
“regulates the interception of wire, oral, and electronic communi-
cations.” United States v. Ojeda Rios, 495 U.S. 257, 259 (1990). Gen-
erally, evidence gathered from interceptions that violate this stat-
ute must be suppressed. 18 U.S.C. § 2518(10)(a). The defendants
argue that the wiretap interceptions in this case violated Title III in
three different ways. First, they argue that Title III requires that the
judge issue a separate, written sealing order after the recordings are
returned, which the judge did not do here. Second, they argue that
the government improperly delayed sealing and failed to provide a
satisfactory explanation for that delay. Third, they argue that the
state court exceeded its jurisdiction in authorizing the interception
of calls made outside of the state, which they allege makes the wire-
tap order facially overbroad. But Title III does not require a sepa-
rate sealing order; the government has provided a satisfactory ex-
planation for any delay in sealing; and the state court did not exceed
its jurisdiction in authorizing the wiretaps. Accordingly, we affirm
the district court’s denial of the defendants’ motions to suppress.
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20 Opinion of the Court 18-12569
A. Sealing Order
Title III, Section 2518(8)(a), requires that wiretap recordings
“be made available to the judge issuing [the authorization] order
and sealed under his directions.” The defendants argue that the re-
cordings were never properly sealed both because the judge did not
issue a separate, written sealing order after receiving the recordings
and because the government “maintained access” to the original
recordings after sealing. We disagree.
The state judge properly sealed the wiretap recordings.
Agent Bridges and the district attorney took the four original re-
cordings to the judge in a tamper-proof evidence bag, Agent
Bridges placed a seal on the tamper-proof evidence bag in front of
the judge, and both the judge and Agent Bridges initialed the bag.
The judge directed Agent Bridges to place the sealed recordings in
the custody of the clerk, and Agent Bridges did so, taking the
sealed, initialed evidence bag to the clerk. Agent Bridges and the
clerk both signed the evidence receipt and noted in the “purpose of
change of custody” column: “Sealed in Stephens County Clerk of
Court.” The clerk retained custody of the evidence, and no one has
accessed the recordings since they were sealed. Indeed, at the time
of this writing, the seal is still unbroken.
The defendants assert without any support that “the record-
ings were later accessed” and that “[t]he district attorney was actu-
ally the one to physically ‘unseal’ the recordings.” But the district
court dismissed those accusations based on the evidence
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18-12569 Opinion of the Court 21
introduced at the suppression hearing. It found that “the recordings
were retained by the Clerk in a sealed bag with an unbroken seal”
so they were not altered after being sealed. And the record supports
that finding. The clerk testified that since the day it was sealed, the
tamper-proof evidence bag holding the recordings “ha[d] stayed
with [him] the entire time” and had “not been unsealed” or ac-
cessed by anyone. If that left any doubt, he further explained that
“when you open these, you can tell they have been opened and you
can see [this seal] has never been broken.” Indeed, both he and the
sealing judge testified that the bag that had been physically sealed
under the judge’s directions “ha[d] never been opened.”
That is enough to satisfy Section 2518(8)(a)’s requirements
for sealing. “Other than gathering the tapes, putting them in boxes
and taking the tapes to the supervising judge,” there are “no other
necessary steps to sealing.” See United States v. Carson, 969 F.2d
1480, 1489 (3d Cir. 1992). Nothing in the text of the statute requires
a separate, written sealing order. See United States v. Diana, 605
F.2d 1307, 1311, 1316 (4th Cir. 1979) (finding an “oral sealing order”
sufficient when “formal sealing” in accordance with the district
court’s instructions also occurred). Here, the recordings were
“made available to the [authorizing] judge” and “sealed under his
directions.” No one accessed them after they were physically
sealed. The recordings were, and are, sealed in compliance with the
statute.
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22 Opinion of the Court 18-12569
B. Satisfactory Explanation
Not only does Section 2518(8)(a) describe how wiretap re-
cordings must be sealed, it also mandates when they must be
sealed. Specifically, it requires that the recordings be sealed
“[i]mmediately upon the expiration of the period of the order, or
extensions thereof.” 18 U.S.C. § 2518(8)(a). We have held that re-
cordings are sealed “immediately” if they are sealed one or two
days after the wiretap order expires. United States v. Matthews, 431
F.3d 1296, 1307 (11th Cir. 2005). We explained that “[i]f we inter-
preted ‘immediately’ to mean anything less than one or two days,
we would essentially transform the statute into a requirement that
the Government seal the recordings before, rather than ‘immedi-
ately upon,’ the order’s expiration.” Id. Apart from this two-day
safe harbor, whether the government has “immediately” presented
a wiretap recording to be sealed by a judge will depend on the cir-
cumstances.
Here, one could argue that the recordings were sealed im-
mediately. The statute puts judicial officers—not law enforce-
ment—in charge of sealing wiretap recordings, which necessarily
gives authorizing judges some control over the deadline for seal-
ing. See 18 U.S.C. § 2518(8)(a) (requiring that the recordings be
“sealed under [the judge’s] directions”). In many cases, the author-
izing judge will not specify when recordings should be returned for
sealing. But, in this case, the authorizing judge’s wiretap order re-
quired the agents to return the wiretap recordings within ten days
of the last interception, and the agents met that deadline. As our
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18-12569 Opinion of the Court 23
sister circuits have explained, this kind of procedure likely satisfies
the immediacy requirement because it serves the central “purpose
of the statute, that recorded confidences be handled under direc-
tion of the court.” See United States v. McGuire, 307 F.3d 1192,
1203 & n.10 (9th Cir. 2002) (“[If] the issuing court … directs that
final sealing shall occur in the future, and the government complies
with that direction,” then “[t]here would be no ‘delay’ in sealing …
under Title III.”); United States v. Blandford, 33 F.3d 685, 706–07
(6th Cir. 1994) (finding no sealing delay because the tapes had been
sealed within the thirty days allotted by the authorizing order); cf.
Matthews, 431 F.3d at 1307 (noting that sealing need not occur un-
der the statute until the “expiration of the period of the order”).
Nonetheless, the parties litigated the immediacy issue based
on the assumption that these recordings were not returned “imme-
diately.” So we, too, will assume that the recordings were returned
late. The statute states that a delay in sealing should be excused if
the government provides a “satisfactory explanation” for the delay.
Ojeda Rios, 495 U.S. at 262–63; 18 U.S.C. § 2518(8)(a). A “satisfac-
tory explanation” must be more than a reason for the delay and
“proof of nontampering.” Ojeda Rios, 495 U.S. at 264–65. Instead,
the government must “explain not only why a delay occurred but
also why it is excusable.” Id. at 265.
The government gave three related reasons for the delay.
One, the government followed the judge’s order, which estab-
lished a ten-day return period. Two, the government inde-
pendently thought that ten days was the correct period because
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24 Opinion of the Court 18-12569
previous judge-approved orders had included the ten-day period.
Three, the government thought that it had to finish making all the
transcripts and copies of the recordings before returning the origi-
nals.
To evaluate whether an explanation is “satisfactory” and
whether a delay is “excusable,” we first assess two threshold re-
quirements that are necessary, but not sufficient, to establish that
an explanation is satisfactory. One, we must assess whether “the
integrity of the recording[s] was preserved,” United States v. Sua-
rez, 906 F.2d 977, 982 (4th Cir. 1990), meaning that there was no
tampering during the period of delay. See United States v. Ro-
drigues, 850 F.3d 1, 11 (1st Cir. 2017); United States v. Maldonado-
Rivera, 922 F.2d 934, 950 (2d Cir. 1990); United States v. Bansal, 663
F.3d 634, 653 (3d Cir. 2011); United States v. Wilkinson, 53 F.3d
757, 760 (6th Cir. 1995); Coney, 407 F.3d at 875; United States v.
Cline, 349 F.3d 1276, 1284 (10th Cir. 2003). And two, we decide
whether the government has acted in good faith. See Rodrigues,
850 F.3d at 11; Bansal, 663 F.3d at 653; Cline, 349 F.3d at 1284. That
means that its proffered reasons must be its actual reasons, Bansal,
663 F.3d at 652; Coney, 407 F.3d at 875, and it must have relied on
them at the suppression hearing. Ojeda Rios, 495 U.S. at 267(“[T]hat explanation is not ‘satisfactory’ within the meaning of the
statute unless it was relied on at the suppression hearing to explain
the sealing delays.”). It also means that any delay-causing mistake
must have been an honest one. See Suarez, 906 F.2d at 982; Coney,
407 F.3d at 875.
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18-12569 Opinion of the Court 25
Here, neither of the two threshold requirements are seri-
ously disputed.
First, there is no reasonable argument that the tapes were
tampered with before they were sealed. The district court found
that there was “no evidence that the recordings were altered,”
pointing out that the recordings remained on a secured server in a
secure building until the day before they were sealed and that dur-
ing the one day outside of the secure building, they were locked in
a vault in Agent Bridges’s state-issued vehicle. The record supports
that finding. The administrator of the system that recorded and
stored the original recordings—and one of only three people who
were able to access them—testified that there was not “[a]ny ability
for anybody to tamper with those recordings in any way” during
the eight days after the wiretap ended.
To raise an inference of potential tampering, the defendants
assert that the “government had unilateral control over the five
sealed envelopes at the Clerk’s office which were later opened
upon direction from the District Attorney,” and that “the discs
were kept in Agent Bridges’ car while it was parked outside of his
house.” But the first assertion—besides being false (as explained
above)—is irrelevant. Even if there were, as the defendants argue,
the “opportunit[y] for tampering” after the recordings were sealed
and in the clerk’s control, that says nothing about the integrity of
the recordings during the alleged delay. As for the second assertion,
it is factually true, but legally insufficient. After receiving the re-
cordings from the secure servers, Agent Bridges put them in a
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26 Opinion of the Court 18-12569
tamper-proof evidence bag and stored the bag in a locked evidence
vault in the back of his state-issued Suburban until he could meet
with the judge to seal them the following day. Nothing suggests
that the recordings were touched after being placed in the vault.
The district court found that the tapes were not altered and that
finding is amply supported by the record.
Second, the district court found that the government’s ac-
tions were not in bad faith. Specifically, the district court found that
the government’s proffered reasons for the sealing delay were “the
actual reasons for the delay, i.e., [Agent Bridges] believed and relied
on the reasons he testified to at the hearing.” It further found that
the delay resulted from Agent Bridges’s “good faith mistaken be-
lief” that he had ten days to return the recordings for sealing. In
other words, it found that any delay-causing mistake was an honest
one. Cf., e.g., Suarez, 906 F.2d at 982 (considering “whether delib-
erate or gross dereliction of duty or honest mistake cause the fail-
ure to file”). The defendants agree that the district court found
Agent Bridges’s belief “credible and reasonable.” Nothing in the
record contradicts that finding, and we find no reason to question
it.
Because the government has met the two threshold require-
ments, we weigh three additional factors to determine whether the
government’s explanation is satisfactory. We look to: (1) the length
of the delay, see Rodrigues, 850 F.3d at 11; United States v. Suarez,
906 F.2d 977, 982 (4th Cir. 1990); United States v. Coney, 407 F.3d
871, 875 (7th Cir. 2005); (2) whether the delay gave the government
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18-12569 Opinion of the Court 27
a tactical advantage or prejudiced the defendant, see Rodrigues,
850 F.3d at 11; Maldonado-Rivera, 922 F.2d at 950; Suarez, 906 F.2d
at 982; Wilkinson, 53 F.3d at 760; Cline, 349 F.3d at 1284; and (3)
whether the government’s explanation is objectively reasonable
under the circumstances. See Ojeda Rios, 495 U.S. at 266–67. No
one factor is dispositive; instead, they must be considered as a com-
posite. And they may overlap. For instance, the longer the delay,
the greater the chance of prejudice and the more likely that an ex-
planation is not objectively reasonable. Indeed, there is “no stock
formula by which the adequacy of an explanation can invariably be
gauged . . . the trial judge must scrutinize these situations case by
case, giving due weight to the factors which we have mentioned
and to any other material which bears upon the reasonableness of
the conduct under the circumstances.” Rodrigues, 850 F.3d at 12
(cleaned up) (quoting United States v. Mora, 821 F.2d 860, 869 (1st
Cir. 1987)).
As to the first factor, the district court correctly found that
the delay was not lengthy. Because some defendants count the
weekend as part of the relevant gap and others do not, they con-
tend that either seven or nine days passed between when the order
expired and when the recordings were sealed. So, after subtracting
the two-day safe harbor, the delay was either seven or five days.
Even assuming the longer seven-day period, that delay is brief. By
way of comparison, in Ojeda Rios the Supreme Court concluded
that a misunderstanding of law could excuse a delay of 118 days.
495 U.S. at 262, 267.
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28 Opinion of the Court 18-12569
Turning to the second factor, the district court found that
the delay did not give the government a tactical advantage. We
agree. No evidence in the record suggests, nor do the defendants
argue, that the government gained any tactical advantage or that
the defendants were prejudiced in any way.
The only factor in any real contention is the third factor:
whether the government’s reasons for delaying were objectively
reasonable. The defendants argue that the state law enforcement
officers should have conducted legal research to determine the ap-
propriate period for sealing. And, having done that legal research,
the defendants contend that the officers would have discovered our
two-day safe harbor and known that the ten-day period in the order
was incorrect, making the government’s reason for delaying unrea-
sonable. We disagree. We hold instead that it was objectively rea-
sonable for the officers to rely on the ten-day period in the author-
izing court’s order.
In all but the most unusual circumstances, it is objectively
reasonable for a law enforcement officer to rely on a court order.
As the Supreme Court has explained in the search-warrant context,
suppression is not warranted “when an officer acting with objective
good faith has obtained a search warrant from a judge or magistrate
and acted within its scope.” United States v. Leon, 468 U.S. 897,
920–21 (1984). That is because, “[i]n the ordinary case, an officer
cannot be expected to question” the court’s “judgment that the
form of the warrant is technically sufficient.” Id. at 921. And sup-
pressing evidence that officers obtained in compliance with a court
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18-12569 Opinion of the Court 29
order “cannot logically contribute to … deterrence” of officer over-
reach. Id. at 921. This reasoning “applies to wiretap applications
and authorizations.” United States v. Hawkins, 934 F.3d 1251, 1259
(11th Cir. 2019). So “[w]hen law enforcement officers act in good
faith and in reasonable reliance upon a judge’s [wiretap] order, ex-
clusion is not warranted.” United States v. Goldstein, 989 F.3d
1178, 1196 (11th Cir. 2021); see Bansal, 663 F.3d at 652 (“Under-
standable mistakes of law” are objectively reasonable explana-
tions.).
Indeed, the whole point of Title III’s sealing requirement is
that the records be sealed under the authority of a neutral and de-
tached third party—namely, the court—and not by law enforce-
ment. See United States v. Mendoza, 574 F.2d 1373, 1377 (5th Cir.
1978). The judgment of a neutral magistrate is “a more reliable
safeguard against improper searches than the hurried judgment of
a law enforcement officer,” no matter how much independent le-
gal research the law enforcement officer may have done. United
States v. Chadwick, 433 U.S. 1, 9 (1977), abrogated on other
grounds by California v. Acevedo, 500 U.S. 565 (1991). Just as it
makes no sense to fault an officer for his good-faith reliance on a
court’s search warrant, Leon, 468 U.S. at 920–22, it makes no sense
to fault an officer for his good-faith adherence to a judge’s wiretap-
return schedule.
Several of our sister circuits agree. For example, in United
States v. Maxwell, an authorizing judge set the sealing date for
seven days after the wiretap authorization terminated. 25 F.3d
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30 Opinion of the Court 18-12569
1389, 1394 (8th Cir. 1994). The recordings were sealed on that date,
and the Eighth Circuit affirmed the district court’s refusal to sup-
press the recordings. Id. It explained that following a judge’s sched-
ule is a “satisfactory explanation[] for slight delays in presenting
wiretap recordings for sealing.” Id.; see also United States v. Ped-
roni, 958 F.2d 262, 266 (9th Cir. 1992) (holding that the unavailabil-
ity of the issuing judge is a satisfactory explanation for a delay);
United States v. Ardito, 782 F.2d 358, 362–63 (2d Cir. 1986) (holding
that an intervening holiday coupled with the unavailability of the
judge excused a brief delay); cf. Wilkinson, 53 F.3d at 760 (affirming
that a “good faith misunderstanding of the law” is a satisfactory ex-
planation for a delay); Maldonado-Rivera, 922 F.2d at 951–52 (hold-
ing that a mistaken view of Title III’s requirements was a satisfac-
tory explanation for delay because the mistaken belief was “genu-
ine” and “credible”).
It would have been less reasonable for the officers to rely on
the state court’s order if the state court judge had “wholly aban-
doned his judicial role” in authorizing the return within ten days or
if the order was “so facially deficient” that an officer could not “rea-
sonably presume it to be valid.” Leon, 468 U.S. at 923. But neither
exception applies here.
As to the first exception, the judge did not abandon his judi-
cial role. He scrutinized the draft orders, changed them, and specif-
ically told Agent Bridges to add the ten-day language to the orders
before signing them. The process was firmly under the judge’s con-
trol.
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18-12569 Opinion of the Court 31
We also cannot say that the authorizing order’s ten-day pe-
riod was “so facially deficient” that the agents could not “reasona-
bly presume it to be valid.” Id. For one, ten days is the typical pe-
riod for search warrants. See United States v. Gerber, 994 F.2d
1556, 1559–60 (11th Cir. 1993) (citing Fed. R. Crim. P. 41(c)). And
the Georgia sergeant testified that the ten-day language was “stand-
ard” in state wiretap authorization orders, that it had been used in
state wiretap authorizations going back “[a]s far as [he] kn[e]w,”
and that he had no reason to think that the ten-day language “that
ha[d] been in place for years and years was wrong.” Indeed, the
Northern District of Georgia has recently addressed other state
wiretap authorizations that use nearly identical ten-day language.
See United States v. Lasher, 2019 WL 3369432, at *6 (N.D. Ga. April
2, 2019); United States v. Bourassa, 2019 WL 7559293, at *3, *12–13
(N.D. Ga. July 25, 2019). The “go-bys” on which Agent Bridges re-
lied also used nearly identical ten-day language. Given the circum-
stances, Agent Bridges and the others involved could reasonably
presume that the order was valid. Because these officers relied on
the court’s orders and followed them in conducting the wiretaps
and in returning the recordings, their actions were objectively rea-
sonable. 2
2 Because the officers returned the recordings within the ten-day period and it
was objectively reasonable for the officers to rely on the state court’s order,
we do not address whether it was also objectively reasonable for the officers
to believe that they needed to finish transcribing, perfecting, and copying the
recordings before returning the originals.
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32 Opinion of the Court 18-12569
The defendants’ arguments to the contrary are not persua-
sive. The defendants repeatedly assert that Agent Bridges “failed to
review the Georgia wiretap statute, the federal wiretap statute,
case law, or consult with either colleagues or a prosecutor.” This
argument fails for two reasons.
First, that statement is factually incorrect, at least in part.
Although Agent Bridges did not read the federal statute because he
“was intending on taking it to a superior court judge on the state
side,” he did review the Georgia wiretap statute, as well as the “go-
bys,” which had the ten-day language. Agent Bridges also met and
consulted with an assistant United States attorney before applying
for the state wiretap. When preparing the application, he “dis-
cuss[ed] it with prosecutors, as well as … [his] supervisors.” In fact,
the district attorney reviewed and edited all of Agent Bridges’s ap-
plications and orders. The district court expressly found that the
state prosecutor worked with and reviewed Agent Bridges’s work
and that his superior agents provided advice and materials for this
wiretap application specifically. See Carson, 969 F.2d at 1494–95
(opining that a person cannot “be faulted for following instructions
… from the person in charge of the case or investigation” and that
relying on a supervisor’s opinion could make actions objectively
reasonable); cf. United States v. Maldonado-Rivera, 922 F.2d 934,
951–52 (2d Cir. 1990) (affirming the district court’s holding that re-
liance on a co-worker’s instructions about the sealing requirement,
which was a mistake of law, was a satisfactory explanation).
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18-12569 Opinion of the Court 33
Second, as we have already explained, law enforcement
agents do not act unreasonably when they decline to doublecheck
a judge’s wiretap order with their own independent legal research.
Title III puts the court in charge of the process, not law enforce-
ment. Here, because the court controlled the process and the ten-
day deadline was not facially deficient, we conclude that the agents
reasonably complied with that deadline.
Considering the absence of tampering, the government’s
good faith, the short delay, the lack of tactical advantage to the gov-
ernment or prejudice to the defendants, and the objective reasona-
bleness of the agents’ actions, the government has provided a sat-
isfactory explanation for any delay in sealing.
C. Jurisdictional Issue
Lastly, we turn to the jurisdictional issue. Under Title III, if
a wiretap “unlawfully intercept[s]” a communication or “the order
of authorization … under which [a communication] was inter-
cepted is insufficient on its face,” the communication should be
suppressed. 18 U.S.C. § 2518(10)(a). Title III allows “a judge of com-
petent jurisdiction” to authorize a wiretap “within the territorial
jurisdiction of the court in which the judge is sitting.” 18 U.S.C. §
2518(1), (3). “The ‘territorial jurisdiction’ over which a court has
authority depends entirely on state law.” Luangkhot v. State, 736
S.E.2d 397, 400 (Ga. 2013) (citing Adams v. Lankford, 788 F.2d
1493, 1499–1500 (11th Cir. 1986)). The defendants argue that any
calls made outside of Georgia were “unlawfully intercepted” and
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34 Opinion of the Court 18-12569
that the authorization orders here were facially invalid because
they authorized interceptions of communications outside the state
judge’s jurisdiction.
We look to Georgia law to see if the state court exceeded its
jurisdiction. Under Georgia law, superior courts have statewide ju-
risdiction to issue wiretap orders, meaning that any superior court
has jurisdiction to authorize the “interception of communications”
anywhere in Georgia. O.C.G.A. § 16-11-64(c) (“[A superior court]
may issue an investigation warrant permitting the use of a device
for the surveillance . . . . Such warrant shall have state-wide appli-
cation and interception of communications shall be permitted in
any location in this state.”). The Georgia Supreme Court has held
that “interception” occurs both at the “listening post” where the
call is heard and at the location of the targeted phone when it
makes or receives a call. Luangkhot, 736 S.E.2d at 426. So, under
state law, Georgia courts have “the authority to issue wiretap war-
rants for the interceptions” of calls if either “the tapped phones or
the listening post are located” within their jurisdiction. Id. at 428.
Put simply, as long as the listening post is within the state of Geor-
gia, it does not matter where the call is made. Id. at 426. Here, be-
cause the listening post was undisputedly in Georgia, the state
court did not exceed its jurisdiction in authorizing the interception
of out-of-state calls at the in-state listening post.
Although the defendants say that they are resting their juris-
dictional argument only on state law, they also allude to federalism
concerns and raise the specter of limitless state-court jurisdiction.
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18-12569 Opinion of the Court 35
But this problem—if it is a problem—“stems from the statutory
language.” United States v. Cano-Flores, 796 F.3d 83, 88 (D.C. Cir.
2015). “Whatever boundlessness the theory may imply is due to
the fact that phones used” outside of an authorizing court’s territo-
rial jurisdiction “can be tapped in a way that allows agents to first
hear them” within the authorizing court’s territorial jurisdiction.
Id. That is why our sister circuits have held that Title III “permits
[state] courts to authorize within-jurisdiction interceptions of con-
versations that took place wholly outside of [the state],” United
States v. Jackson, 849 F.3d 540, 551–52 (3d Cir. 2017), or even
wholly outside of the country, Cano-Flores, 796 F.3d at 87. The
safeguard on the scope of state court’s wiretap authority is the re-
quirement that law enforcement establish probable cause for the
intrusion, not a geographical limit on the phone calls that can be
monitored. Under Georgia law and consistent with Title III, the
state court here did not exceed its jurisdiction when it authorized
the interception of calls made outside of the state but first heard at
a listening post within the state.
IV. CONCLUSION
For the foregoing reasons, the district court is AFFIRMED.
To the extent he challenges his sentence, Mayfield’s appeal is
DISMISSED based on the appeal waiver in his plea agreement.
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18-12569 JORDAN, J., Concurring 1
JORDAN, Circuit Judge, Concurring in Part and Concurring in the
Judgment:
I join all of Judge Brasher’s well-written opinion for the
court except for Part III.B, which addresses whether the govern-
ment presented a “satisfactory explanation” for the delay in sealing
under 28 U.S.C. § 2518(8)(a). On that issue, I agree that the gov-
ernment’s explanation was satisfactory, but my reasoning differs
somewhat.1
All of the wiretaps ended on February 17, 2016, and the orig-
inal discs with the recordings of the intercepted calls were pre-
sented to the state judge nine days later, on February 26, 2016. As
noted in the court’s opinion, the interception orders contained lan-
guage requiring that the returns be made (a) within 40 days of the
orders being issued or (b) within 10 days of the last interception,
whichever was earlier.
The government provided three reasons for the nine-day de-
lay in presenting the recordings to the state judge for sealing. First,
it followed the judge’s order, which provided for a ten-day return
period. Second, it believed that the 10-day period was correct
1 Although the term “satisfactory explanation” has some overlap with the le-
gal concept of good faith, I would prefer not to analogize to the “good-faith”
exception to the exclusionary rule articulated in United States v. Leon, 468
U.S. 897, 920–21 (1984). Here we are dealing with a statutory suppression
remedy—containing a built-in statutory exception—for a statutory violation.
See 18 U.S.C. §§ 2518(8)(a), (10)(a).
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2 JORDAN, J., Concurring 18-12569
because previous orders had contained that same period of time.
Third, the government thought that it had to finish all of the tran-
scripts and copies of the recordings before returning the originals
to the judge for sealing.
One of our early wiretap decisions, United States v. Sklaroff,
506 F.2d 837, 840–41 (5th Cir. 1975), held that a 14-day delay in pre-
senting the recordings to the judge who issued the interception or-
der did not violate § 2518(8)(a) because (a) there was no indication
that the defendants had been prejudiced, (b) there was no showing
that the “integrity of the recordings was in any way violated,” and
(c) there was “substantial compliance” with the requirements of
the statute. That decision, however, was superseded by United
States v. Ojeda-Rios, 495 U.S. 257, 264–65 (1990), in which the Su-
preme Court ruled that § 2518(8)(a) “requires a satisfactory expla-
nation, not just an explanation,” for a delay in sealing and rejected
the argument that “proof of nontampering is a substitute for a sat-
isfactory explanation.”
The interception orders at issue here were sought by a state
law enforcement officer and issued by a state judge pursuant to Ga.
Code § 16-11-64(c) (which expressly incorporates Chapter 119 of
Title 18 of the U.S. Code). It seems to me, therefore, that deter-
mining whether the government’s explanation for the delay in seal-
ing was satisfactory should involve consideration of Georgia law as
well as federal law. After all, Georgia law enforcement officers
who seek orders authorizing electronic surveillance are expected
to be aware of both state law and federal law governing wiretaps.
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18-12569 JORDAN, J., Concurring 3
Cf. United States v. Feiste, 961 F.2d 1349, 1351 (8th Cir. 1992) (con-
sidering, in a case involving interception orders issued by a state
judge, the testimony of a state law enforcement officer about his
understanding of state law in determining whether the govern-
ment presented a “satisfactory explanation” for a delay in sealing).
In 1993, the Georgia Court of Appeals held that a three-week
delay in presenting wiretap recordings to a judge for sealing vio-
lated § 2518(8)(a). See Porter v. State, 432 S.E.2d 629, 630–32 (Ga.
App. 1993). In that case, however, the state “offered no explanation
for the delay” except for the testimony of the lead investigator,
who said that he “was unaware that federal law required that the
tapes be submitted immediately to the court for sealing.” Id. at
630. Applying Ojeda-Rios, the Georgia Court of Appeals concluded
that sealing by law enforcement officials does not satisfy the statu-
tory requirement that the recordings be presented to a judge for
sealing. See id. at 631. And it explained that “it is the duty of those
who enforce the law to follow it and ignorance thereof can no
more excuse the conduct of the state than it would excuse the con-
duct of the defendant.” Id. at 632.
More than a decade later, we held in United States v. Mat-
thews, 431 F.3d 1296, 1307 (11th Cir. 2005), that the immediacy re-
quirement of § 2518(8)(a) is satisfied if sealing of the recordings
takes place within one to two days of the expiration of the inter-
ception order. Matthews, decided more than a decade before the
wiretaps at issue here, suggests that the government’s reliance on
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4 JORDAN, J., Concurring 18-12569
the 10-day period set out in the state judge’s orders may have been
dicey.
But as we (and other circuits) have explained, state courts
are not bound by the decisions of the lower federal courts on issues
of federal law. See, e.g., Pitts v. United States, 4 F.4th 1109, 1116
n.3 (11th Cir. 2021); Mass. Delivery Ass’n v. Coakley, 671 F.3d 33,
47 (1st Cir. 2012); Magourik v. Phillips, 144 F.3d 348, 361 (5th Cir.
1998). So, the Georgia courts could have disagreed with our inter-
pretation of the word “immediately” in § 2518(8)(a). And it was
not until March 7, 2016—about three weeks after the discs with the
recordings were presented to the state judge in this case—that the
Georgia Supreme Court addressed the meaning of “immediately.”
In Finney v. State, 783 S.E. 2d 598, 600–01 (Ga. 2016), the Georgia
Supreme Court held that “immediately” means as soon as practica-
ble after the electronic surveillance ends, which should be only a
few days at most.
“In establishing a reasonable excuse for a sealing delay, the
[g]overnment is not required to prove that a particular understand-
ing of the law is correct but only that the interpretation was objec-
tively reasonable at the time.” Ojedas-Rios, 495 U.S. at 266. As
noted, one of the reasons the government provided for the delay
in sealing was its reliance on the 10-day return period in the inter-
ception orders issued by the state judge. That reason was, in my
view, satisfactory under the “totality of the circumstances.” Anne
T. McKenna & Clifford S. Fishman, Wiretapping and Eavesdrop-
ping § 19:19 (Dec. 2021 update). First, although the government’s
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18-12569 JORDAN, J., Concurring 5
reliance on the order turned out to be misplaced, the absence of
caselaw from the Georgia courts about what “immediately” meant
under § 2518(8)(a) was enough to make the reliance objectively
reasonable at the time. Second, the 1993 decision in Porter by the
Georgia Court of Appeals was distinguishable because that case in-
volved a three-week delay and there was “no explanation as to why
the delay occurred other than [the officer] was unaware of the im-
mediacy requirement.” Porter, 432 S.E.2d at 630, 632. Third, after
Ojeda-Rios (and before 2016) some federal courts had held that an
issuing judge’s order setting a specific date for sealing (usually due
to availability concerns) can provide a “satisfactory explanation”
for delay. See United States v. Maxwell, 25 F.3d 1389, 1394 (8th
Cir. 1994) (seven-day delay); United States v. Pedroni, 958 F.2d 262,
266 (9th Cir. 1992) (fourteen-day delay). Accord McKenna & Fish-
man, Wiretapping and Eavesdropping, at § 19:19 (“Several courts
have held that the issuing judge’s instructions to put off sealing for
a few days is a satisfactory explanation.”).2
2 Had the Georgia Supreme Court issued its decision in Finney before the
wiretaps ended, I doubt that the government could have reasonably relied on
the 10-day period set out in the interception orders. In that scenario, under
the governing precedent of both the Eleventh Circuit and the Georgia Su-
preme Court a sealing delay of more than one or two days would not have
been permissible.