United States v. Vastola

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
5-25-1994
United States of America v. Vastola
Precedential or Non-Precedential:
Docket 93-5529
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 93-5529
UNITED STATES OF AMERICA
Appellee
v.
GAETANO VASTOLA
Appellant
On appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 86-301)
Argued March 4, 1994
Before, STAPLETON and SCIRICA, Circuit Judges, and
VAN ANTWERPEN, District Judge*
(Opinion filed May 25, 1994)
Herald Price Fahringer (argued)
Diarmuid White
Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria
110 East 59th Street
New York, New York 10022
Attorneys for Appellant
Marion Percell (argued)
Michael Chertoff
United States Attorney
970 Broad Street
Newark, New Jersey 07102
Attorneys for Appellee
1
* Hon. Franklin S. Van Antwerpen, United States District
Court for the Eastern District of Pennsylvania, sitting
by designation.
2
OPINION OF THE COURT
VAN ANTWERPEN, District Judge.
Appellant Gaetano Vastola ("Vastola") comes before us
for the fourth time seeking to overturn his May 3, 1989
convictions for two substantive RICO offenses under 18 U.S.C.
§ 1962(c), a RICO conspiracy offense under 18 U.S.C. § 1962(d),
and conspiracy to use extortionate means to collect an extension
of credit, in violation of 18 U.S.C. § 894. Vastola seeks
suppression of certain wiretap recordings, improperly sealed
under Title III of the Omnibus Crime Control and Safe Streets Act
of 1968 (Wiretap Act), as amended, 18 U.S.C. § 2510 et seq.
Vastola challenges the findings of the district court from the
most recent remand in this case. U.S. v. Vastola, 830 F. Supp.
250 (D.N.J. 1993). Specifically, Vastola disputes the finding
that the United States Attorney supervising the wiretap
surveillance conducted adequate legal research or otherwise acted
as a reasonably prudent attorney when she failed to seal the
wiretap tapes in a timely fashion.
The history of this complex case has been well-
documented in the many published opinions written in connection
with this case. United States v. Vastola, 989 F.2d 1318 (3d Cir.
1993) (Vastola III); United States v. Vastola, 915 F.2d 865 (3d
Cir. 1990) (Vastola II), cert. denied, 498 U.S. 1120, 111 S. Ct.
1073 (1991); United States v. Vastola, 899 F.2d 211 (3d Cir.
1990) (Vastola I), vacated and remanded, 497 U.S. 1001, 110 S. Ct.
3233 (1990). We will discuss only the facts and procedural
3
history relevant to our review of the most recent remand of this
case to the district court.
I.
Facts and Procedural History
On May 3, 1989 the district court entered an order of
judgment and commitment against Vastola after a jury found him
guilty of two substantive RICO offenses. Vastola had been
charged, along with 20 other co-defendants in a 114-count
indictment filed on September 19, 1986. Vastola was sentenced to
serve a total of twenty years' imprisonment and to pay a total
fine of $70,000.
Prior to trial, Vastola and the other defendants filed
an omnibus motion that included a request for the suppression of
the electronic tapes obtained from the government's surveillance
of an establishment named the Video Warehouse in West Long
Branch, New Jersey ("West Long Branch tapes"), between March 15,
1985 and May 31, 1985. The tapes were not sealed until July 15,
1985, more than 45 days after the final interception on May 31,
1985 and 32 days after the June 13, 1985 expiration date of the
order authorizing the surveillance. Defendants contended that
the West Long Branch tapes should be suppressed pursuant to the
Wiretap Act, 18 U.S.C. § 2518(8)(a).0
0
Section 2518(8)(a) provides, in pertinent part:
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 way as will
protect the recording from editing or other
4
The district court determined, in effect, that the
sealing was untimely. However, the district court refused to
suppress the tapes, relying on the case of United States v.
Falcone, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. 955,
95 S. Ct. 1338 (1975) for the rule that suppression is warranted
only where it can be shown that the physical integrity of the
tapes has been compromised. Finding by clear and convincing
evidence that the physical integrity of the West Long Beach tapes
had not been compromised, the district court denied Vastola's and
the other defendants' motion to suppress. United States v.
Vastola, 670 F. Supp. 1244, 1282 (D.N.J. 1987), aff'd in part,
rev'd in part, 899 F.2d 211 (3d Cir.), vacated and remanded, 497
U.S. 1001, 110 S. Ct. 3233 (1990).
On appeal, we affirmed the district court's refusal to
suppress the West Long Branch tapes on the basis of Falcone.
Vastola I, 899 F.2d 211 (3d Cir. 1990). On June 25, 1990, the
Supreme Court vacated this decision and remanded the matter for
further consideration in light of the recently decided case of
United States v. Ojeda Rios, 495 U.S. 257, 110 S. Ct. 1845, 109
L. Ed. 2d 224 (1990). In Ojeda Rios, the Supreme Court held that a
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 . . . The
presence of the seal provided for by this subsection,
or a satisfactory explanation for the absence thereof,
shall be a prerequisite for the use or disclosure of
the contents of any wire, oral, or electronic
communication or evidence derived therefrom under
subsection (3) of section 2517.
18 U.S.C. § 2518(8)(a).
5
delay in sealing authorized electronic surveillance tapes
requires suppression of the tapes unless the government offers a
"satisfactory explanation" for the sealing delay. The court held
that section 2518(8)(a) requires that the actual reason for the
sealing delay be objectively reasonable at the time of the delay.
Ojeda Rios, 495 U.S. at 266-267, 110 S.Ct. at 1850-1851.
On remand from the Supreme Court, this court concluded
that "a sealing delay indeed occurred as the West Long Branch
tapes should have been sealed either as soon as was practical
after May 31, 1985, when the actual surveillance ended, or as
soon as practical after June 13, 1985, when the final extension
order expired." Vastola II, 915 F.2d 865, 875 (3d Cir. 1990). We
then remanded to the district court to determine "whether the
government should now be permitted, under Ojeda Rios, to offer an
explanation for its violation of the sealing requirement." Id.
at 876. Vastola's petition for certiorari from this decision was
denied. Vastola v. United States, 498 U.S. 1120, 111 S. Ct. 1073
(1991).
On December 14, 1990 the district court conducted a
hearing at which the government presented evidence concerning the
reason for the sealing delay. The district court determined that
"the actual reason for the sealing delay was that the Assistant
United States Attorney in charge of the electronic surveillance,
Diana Armenakis, and her supervisor on the case, Thomas Roth,
believed that the Wiretap Act did not require the sealing until
the end of the investigation." United States v. Vastola, 772
F. Supp. 1472, 1481 (D.N.J. 1991), vacated and remanded, 989 F.2d
6
1318 (3d Cir. 1993). The court found that the government's
misunderstanding of the law had been objectively reasonable and
the delay had perforce been satisfactorily explained." Id., at
1483. Accordingly, the district court reinstated Vastola's
conviction, sentencing him to 17 years imprisonment.
On appeal from the order reinstating his conviction, we
held that the district court had not abused its discretion by
allowing the government to present evidence supporting its
explanation for the sealing delay. Vastola III, 989 F.2d 1318,
1324-25 (3d Cir. 1993). However, relying on our earlier decision
in United States v. Carson, 969 F.2d 1480 (3d Cir. 1992), we
reversed as to the finding that the government's explanation was
objectively reasonable. Nonetheless, we remanded this case for
further proceedings because, as we held in Carson, an
"unreasonable mistake of law does not automatically lead to
suppression." Vastola III, 989 F.2d at 1327. In Vastola III, we
discussed the Carson holding as follows:
The Carson court explained that even though an
attorney's mistake of law is unreasonable, the
government can still show a satisfactory explanation if
"the attorney involved acted as a 'reasonably prudent'
attorney would to investigate the legal question
involved in a reasonably prudent manner." 969 F.2d at
1494 . . . The case [Carson] then stands for the
proposition: When a government attorney's legal
conclusion is found to be unreasonable, the explanation
for the delay would still be an objectively reasonable
"mistake of law" if the government can show that its
attorney has adequately researched the law or has
otherwise acted reasonably.
Vastola III, 989 F.2d at 1327. Since the district court did not
make a determination whether Assistant United States Attorney
7
Armenakis ("Armenakis") acted reasonably under the circumstances,
we remanded for further proceedings.
The district court addressed this narrow question of
attorney conduct in its published opinion United States v.
Vastola, 830 F. Supp. 250 (D.N.J. 1993) ("Second Remand"). The
court found that while Armenakis failed to conduct adequate
research, her "reliance on the authoritative advice given by her
colleagues constituted an adequate substitute for further reading
of the caselaw, and her behavior was objectively reasonable under
the circumstances." Id., 830 F.Supp. at 256. Finding that the
government had offered a "satisfactory explanation" for the
failure to timely seal the West Long Branch tapes, the court held
that the tapes were properly admitted at trial. Consequently,
the court issued an order reinstating the convictions of Vastola.
Vastola now appeals the district court's findings,
arguing that Armenakis' conduct was not objectively reasonable
under the circumstances and that suppression of the surveillance
tapes is warranted. For the reasons that follow, we affirm the
findings of the district court.
II.
Standard of Review
We review the district court's factual findings for
clear error. Vastola II at 1324 (quoting U.S. v. McMillen, 917
F.2d 773, 774 (3d Cir. 1990)). We exercise plenary review over
the district court's legal conclusion that the Assistant United
8
States Attorney's conduct was "reasonably prudent" under the
circumstances. Id. at 1324.0
III.
Analysis
This Court in Vastola III remanded to the district
court on one narrow issue: Did Armenakis, in making an
unreasonable mistake of law, nevertheless conduct herself
reasonably under the circumstances? Vastola III, 989 F.2d at
1327. The answer is "yes," if the government can show that its
attorney has adequately researched the law or has otherwise acted
prudently. Id. The burden of proof is on the government to make
this showing. Vastola III, 989 F.2d at 1327.
The relevant facts for this analysis are few in number:
Armenakis studied the statute, outlined it, read its annotations,
and spoke with more experienced attorneys. Vastola III, 989 F.2d
at 1327.0
0
The Government urges a highly deferential review of all aspects
of the district court's opinion in this case, not just of its
findings of fact; it thus argues we should use the standard of
review we use for the Rule 11 determinations of a district court.
See Cooter & Gell v. Hartmarx Corp, 496 U.S. 384, 110 S. Ct. 2447
(1990). Because this case involves a question of the legal
standard of reasonable research of a government attorney in a
criminal case, and not just reasonable attorney conduct in a
civil context, we find the suggested standard inappropriate.
0
These findings of fact were established by the district court
during the first remand, United States v. Vastola, 772 F. Supp.
1472, 1480 (D.N.J. 1991). The district court held an evidentiary
hearing in 1990, five years after the relevant conduct occurred.
The district court's findings were acknowledged by the Third
Circuit in Vastola III, and relied upon by the district court
during the most recent remand. We are satisfied that they are
not clearly erroneous.
The district court found in Second Remand that these
facts provided a sufficient factual basis to decide the question
of reasonable conduct. As a result, no additional evidence was
9
The district court invoked Federal Rule of Civil
Procedure 11 jurisprudence to define the "reasonably prudent
attorney." The district court cited Mary Ann Pensiero, Inc., 847
F.2d 90, 94 (3d Cir. 1988) for the following Rule 11 standard:
An attorney's actions will be considered objectively
reasonable where, given the existing circumstances, she
undertakes "'a normally competent level of legal
research'" to support the conclusion she reaches.
Second Remand, 830 F. Supp. at 254. Under the circumstances, this
standard is helpful in beginning an analysis of reasonable
attorney conduct. The intended goal of Rule 11 is
accountability. It "imposes on counsel a duty to look before
leaping and may be seen as a litigation version of a familiar
railroad crossing admonition to 'stop, look, and listen.'" Lieb
v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986). In
this case, we are assessing the reasonableness of Armenakis'
conduct and her duty to stop, look and listen while conducting a
wiretap investigation.0
taken and the district court made its rulings on these facts
alone. We acknowledge that these facts are adequate for the task
at hand and that further inquiry by the district court would not
have produced additional relevant facts.
0
The analogy to Rule 11 has its limits in this context. Some of
the factors relevant to determining whether an attorney has made
a reasonable pre-filing inquiry into the law, (e.g., whether the
position taken was a good faith effort to extend or modify the
law) are not particularly helpful in determining the
reasonableness of a government attorney's research of the law
during an ongoing criminal investigation. See e.g. Thomas v.
Capital Security Services, Inc., 812 F.2d 984, 988 (5th Cir.
1987); Fed.R.Civ.Proc. 11, Advisory Committee Note; Lingle,
supra, 847 F.2d at 95; Schering Corp. v. Vitarine
Pharmaceuticals, Inc., 889 F.2d 490, 496 (3d Cir. 1989).
10
The district court found that Armenakis herself had not
adequately researched the law. The court reasoned as follows:
Armenakis' research, which consisted of reading and
outlining the statute and reviewing the relevant
annotations, was enough to give an average attorney a
basic understanding of the law. However, standing
alone, this limited investigation cannot be considered
a normally competent level of research that a
reasonably prudent attorney would undertake.
Second Remand, 830 F. Supp. at 255. We agree. Given the serious
consequences which follow from the mistaken application of the
Wiretap Act, i.e. suppression, a reasonable United States
attorney should not be satisfied with a basic understanding of
the Act and a summary review of applicable caselaw. In addition,
as the district court reasoned, "the meaning of a complex
statute, such as the Wiretap Act, is not always readily
ascertainable from just the reading of the text; and the
annotations often fail to fully reflect how caselaw has
interpreted a statutory provision." Thus, Armenakis' research,
standing alone, cannot be considered adequate. The inquiry,
therefore, turns on whether Armenakis otherwise acted prudently.
The district court found that Armenakis acted as a
reasonably prudent attorney, and based its conclusion on the
"interaction between Armenakis' own research and the
authoritative confirming advice she received from other, more
experienced United States Attorneys." That is, Armenakis'
research, standing alone was inadequate. This coupled with the
confirmation of her initial understanding of the law by more
11
experienced colleagues, however, convinced the district court
that Armenakis acted reasonably under the circumstances.0
We agree that when an attorney receives confirmation of
legal theories from a number of proper sources, each consistent
with the next, the attorney can act reasonably in relying on
these theories in the course of legal research. The district
court properly found that Armenakis' limited book research was
inadequate. Moreover, her conversations with other attorneys,
standing alone, were also insufficient. Carson, 969 F.2d at 1495
(an attorney may not rely merely on conversations with peers or
supervisors concerning developing area of law where incorrect
answer could lead to suppression of important evidence). However,
we believe that the combined impact of these concurring sources
created a degree of certainty (albeit minimal) which a prudent
attorney could have accepted in arriving at an appropriate
procedure for sealing.
From a factual standpoint, the caselaw as it existed at
the time was not inconsistent with a reasonably thorough review
0
We do not accept the district court's finding that Roth's view
was the general understanding of the office. The court inferred
this from the fact that Roth was Armenakis' supervisor during the
Video Warehouse surveillance, and that Roth was the most
experienced of any attorney in the United States Attorney's
office in New Jersey with respect to interceptions. Second
Remand, 830 F. Supp. at 256, n.6. We do not think it necessarily
follows that Armenakis spoke to other attorneys with Roth's view.
Since Roth would have counselled her to promptly seal the tapes
after each location, such information might have better informed
Armenakis about proper procedure. App. at 25. Nonetheless, we
accept the finding that she spoke to more experienced colleagues,
and that they confirmed her view of the law. We think it was
reasonable for Armenakis to rely on these colleagues, whether or
not Roth's view was the general understanding of the office.
12
of the relevant annotations.0 When Armenakis conducted her legal
research, no "red flags" would have appeared to warn her about
the need to seal the tapes as the investigation continued but the
location of the surveillance changed. Our review of the relevant
annotations discloses no Third Circuit case which would have
definitively clarified this issue, or even notified Armenakis of
a conflict.0 In fact, cases from other circuits could have led
her in the opposite direction.0
0
Just as we examined Armenakis' understanding of the law to
determine whether it was objectively reasonable at the time of
the delay, Ojeda Rios, 110 S. Ct. at 1851, we will also examine
Armenakis' conduct at the time of the delay to determine if it
was reasonably prudent attorney conduct. Cf. Schering Corp.,
supra, 889 F.2d at 496 ("the wisdom of hindsight is to be
avoided; the attorney's conduct must be judged by what was
reasonable to believe at the time the pleading, motion, or other
paper was submitted.")
0
Of the few Third Circuit cases appearing in the relevant
portions of the Federal Digest, only the United States v.
Falcone, 505 F.2d 478 (3d Cir. 1974) appears to be even remotely
on point. In that case, the court ruled that the tapes were not
sealed in accordance with the statute. However, there was no
explanation of how or why the sealing failed to accord with the
statute. The rule of law in Falcone, later overturned in Ojeda
Rios, was as follows:
all we hold is that where the trial court has found
that the integrity of the tapes is pure, a delay in
sealing the tapes is not, in and of itself, sufficient
reason to suppress the evidence obtained therefrom.
We hasten to add that this holding, of course, does not
deprecate the importance of the sealing requirement.
Certainly, it should be complied with in all respects.
As this case so aptly demonstrates, compliance would
have avoided considerable uncertainty and delay.
Falcone, 505 F.2d at 484. Instead of clarifying the meaning of
18 U.S.C. § 2518(8), we held that delays in sealing would not
result in suppression.
0
See e.g. United States v. Principie, 531 F.2d 1132, 1142, and n.
14 (2nd Cir. 1976), cert. denied, 430 U.S. 905 (1977) (electronic
surveillance order entered 16 days after a prior order regarded
as an "extension" within the meaning of
13
An inquiry into the reasonableness of an attorney's
legal research is necessarily fact and time specific. The court
must take into account not only the particular methodology
employed by the attorney, but also the complexity of the law at
the time in question.0 Armenakis' conduct is far from a model
for others to follow and our ruling is, of course, limited to the
facts and time frame of this case.
With its decision in Ojeda Rios, the Supreme Court
significantly clarified the sealing requirements of the Wiretap
Act and changed the caselaw which we use to help judge reasonable
attorney behavior.0 The Court admonished: "the seal required by
§ 2518 because it was considered part of the same investigation
of the same individuals conducting the same criminal enterprise);
United States v. Scafidi, 564 F.2d 633, 641 (2nd Cir. 1977),
cert. denied, 436 U.S. 903 (1978) (where intercept is on same
premises and involves substantially same persons, an extension
under those circumstances requires sealing only at conclusion of
whole surveillance).
0
Due to the absence of controlling Third Circuit precedent, we
cannot label Armenakis' conclusions "patently unmeritorious or
frivolous." Only when an attorney offers such an implausible
view of the law, in the Rule 11 context, would she be subject to
sanctions. See Doering v. Union County Bd. of Chosen
Freeholders, 857 F,2d 191, 194 (3d Cir. 1988); Dura Systems, Inc.
v. Rothbury Investments, Ltd., 886 F.2d 551, 556 (3d Cir. 1989)
(Rule 11 evaluation includes question of whether pleading was
based on plausible view of the law).
0
See Judge Easterbrook's opinion in Mars Steel Corp. v.
Continental Bank N.A., 880 F.2d 928 (7th Cir. 1989), in which he
observed:
A lawyer who founds his suit on Plessy v. Ferguson, 163
U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), has
revealed all we need to know about the reasonableness
of the pre-filing inquiry...If the legal point is
obscure, though, even an absurd argument may not be
sanctionable, because a "reasonable" inquiry does not
turn up every dusty statute and precedent. An
objectively frivolous legal position supports an
inference that the signer did not do a reasonable
14
§ 2518(8)(a) is not just any seal but a seal that has been
obtained immediately upon the expiration of the underlying
surveillance order." Ojeda Rios, 110 S. Ct. at 1849 (emphasis in
original). Of additional significance is the clarification of
the Wiretap Act provided by section 2518(11), added to Title III
as part of the Electronic Communications Privacy Act of 1986,
§ 106(d)(3), Pub.L.No. 99-508, 100 Stat. 1848, 1857, reprinted in
1986 U.S.Code Cong. & Admin.News. This provision, which
authorizes roving surveillance upon a showing that the suspect's
purpose is to thwart interception by changing facilities, was
passed in 1986 and plainly discredits arguments based upon the
so-called "extension theory."0 See Vastola II, 915 F.2d at 874.
Vastola argues that Carson compels a different result.
The district court cited to Carson for the proposition that an
attorney's reliance on the counsel of more experienced colleagues
can constitute reasonable attorney conduct. See Second Remand,
830 F. Supp. at 256. In Carson, the government attorney, Robins,
did not immediately seal wiretap tapes after surveillance ended
because he expected the same surveillance to begin again when the
subject returned from a hospital stay. Robins alleged that, like
amount of research, but an inference, no matter now
impressive, is no more than an inference.
Mars Steel Corp. v. Continental Bank N.A., 880 F.2d at 932.
0
The court in Vastola II referred to the Electronic
Communications and Privacy Act of 1986 in order to make a legal
determination, based on the text of the statute, of the meaning
of the Wiretap Act. Since the amending provision was not passed
until after the relevant conduct by Armenakis, it is evident that
by referring to section 2518(11) the court in Vastola II was not
commenting upon the reasonableness of Armenakis' conduct in 1985.
The court in Vastola III remanded this matter to the district
court for a determination of the reasonableness of her conduct.
15
Armenakis, he believed at the time that sealing was not necessary
until the entire investigation was completed. Robins claimed
that he asked his supervisor about the sealing requirements and
had (mistakenly) understood his supervisor to explain that no
sealing was required until all surveillance ended. The Carson
Court found that Robins' legal conclusion regarding sealing was
not objectively reasonable, but it remanded the case to the
district court for consideration of whether Robins' reliance on
what he thought the supervisor told him was reasonable without
any additional, independent research. The court in Carson
offered the following standards regarding an attorney's reliance
on the counsel of colleagues:
Arguably, a reasonable attorney would not have risked
the exclusion of the tapes, evidence important to his
case, without personally checking the law relating to
its admission. It is not always unreasonable for an
attorney to rely on a reasoned oral opinion of a
supervisor, or even that of a peer with more experience
in the area of law in question. Moreover, an attorney
working under another lawyer on a case could not be
faulted for following instructions, as opposed to
advice, from the person in charge of the case or
investigation. On the other hand, we do not think that
a reasonable attorney can rely on a casual conversation
with a peer or supervisor concerning developing law on
a complex, controversial subject if an incorrect answer
is likely to preclude admission of evidence of vital
importance to the case.
Carson, 969 F.2d at 1495 (emphasis added).
The district court found that, like Robins in Carson,
Armenakis relied on the opinions of her more experienced
colleagues in formulating her opinion. But unlike the attorney
in Carson, Armenakis did more here than merely rely on these
16
conversations.0 Her understanding of the law was supplemented by
her reading and outlining of the statute and her review of the
relevant annotations at that time. Armenakis did, in fact, check
the law in this case. And her reading of the law confirmed her
understanding (albeit a misunderstanding) that sealing was only
required at the end of the investigation. Thus, the Carson
decision is authoritative but clearly distinguishable on its
facts.
We recognize that the wiretap is a powerful and
invasive law enforcement tool, and that the Wiretap Act was
enacted to establish procedural safeguards which assure that "the
interception is justified and that the information obtained
thereby will not be misused." Gelbard v. United States, 408 U.S.
41, 47, 92 S. Ct. 2357, 2361 (1972) (citations omitted).
Nonetheless, we hold for the reasons stated that the combined
effect of Armenakis' conduct at the time in question was
minimally sufficient to meet the standards of a reasonably
prudent attorney.
V.
Conclusion
For the reasons set forth above, we conclude that the
order of the district court should be affirmed.
0
We note that the court in Carson did not decide the question of
whether attorney Robins' reliance on what he thought his superior
told him without independently checking the law might be
reasonable. Thus, Carson leaves open the possibility than a mere
reliance on a superior's understanding of the law might be
reasonable in certain circumstances. Of course, in this case
Armenakis conducted independent research in addition to her
consultation with other, more experienced attorneys in the
office.
17
18
United States of America v. Gaetano Vastola
No. 93-5529
STAPLETON, Circuit Judge, Dissenting:
If the government's evidence in this case is sufficient
to carry its burden of providing a "satisfactory explanation" for
failing to comply with the immediate sealing requirement of the
statute, that requirement is reduced to a precatory entreaty.
Because it is clear from Ojeda Rios that Congress intended
something more, I respectfully dissent.
Wire surveillance of the Video Warehouse in West Long
Branch, New Jersey, was authorized on March 15, 1985. After two
extensions, the authority expired on June 13, 1985. The
surveillance actually terminated on May 31, 1985. Wire
surveillance of Video's new location in Neptune City, New Jersey,
was authorized on June 26, 1985. That authority ceased and the
surveillance was terminated on July 25, 1985.
Duplicates of 185 reels of tape from the West Long
Branch surveillance were sealed 45 days after that surveillance
ceased and 32 days after the authorization terminated. When the
government realized its mistake, the originals of these reels of
tape were sealed a little over a month later, on August 19, 1985.
The federal wire surveillance statute, after providing
for court authorized wire surveillances, stipulates the following
with respect to the making and sealing of tape recordings:
The recording of the contents of any wire,
oral, or electronic communication under this
19
subsection shall be done in such way as will
protect the recording from editing or other
alterations. Immediately upon the expiration
of the period of the order, or extensions
thereof, such recordings shall be made
available to the judge issuing such order and
sealed under his directions. Custody of the
recordings shall be wherever the judge
orders. . . . The presence of the seal
provided for by this subsection, or a
satisfactory explanation for the absence
thereof, shall be a prerequisite for the use
or disclosure of the contents of any wire,
oral, or electronic communication or evidence
derived therefrom under subsection (3) of
section 2517.
18 U.S.C. § 2518(8)(a) (emphasis supplied).
The tapes from the West Long Branch surveillance are
the ones at issue here. The government has not contended that a
sealing involving a 32 day or longer delay would constitute an
"immediate" sealing. Rather, the government, in United States
v. Vastola, 915 F.2d 865 (3d Cir. 1990), cert. denied, 498 U.S.
1120 (1991) ("Vastola II"), advanced two alternative theories
under which there was said to be no violation of the statute.
First, it insisted that there had been no delay because the order
of June 26, 1985, authorizing surveillance of the Neptune City
site, was an "extension" of the original authorization, and the
duty to seal did not arise until the Neptune City surveillance
terminated. We rejected this argument, concluding:
We could not possibly hold that the Neptune
City interception order was an extension of
the West Long Branch order. Although the
government rightly points out that Rios
[United States v. Ojeda Rios, 495 U.S. 257
(1990)] did not decide whether a change in
the location of an illegal operation will
prevent a subsequent order covering the new
location from being an extension of a
20
previous order, the statute unambiguously
rules out this possibility.
Id. at 874 (footnote omitted).
In support of this conclusion, we referred to the above
quoted portion of the statute and two other sections requiring
that an application for wire surveillance authority justify the
need for surveillance at a specific site: Section
2518(1)(b)(ii) plainly states that an an application for
surveillance order must contain 'a particular description of the
nature and location of the facilities from which or the place
where the communication is to be intercepted.' In addition,
section 2518(3)(d) requires a particularized showing of probable
cause that 'the facilities from which, or the place where, the
wire, oral, or electronic communications are to be intercepted
are being used, or are about to be used, in the commission of
[the] offense [under investigation].' Based on these two
provisions alone, we would have no difficulty concluding that
Congress intended for interception orders, and their accompanying
extensions, to apply only to surveillances in the particular
locations specified in the applications.
Vastola II, 915 F.2d at 874.0 We held, based on the plain
meaning of the text of the statute, that the duty to seal arises
"upon the expiration of the order or extensions thereof" and that
an order authorizing surveillance at another site is not an
extension.0
0
As the majority correctly points out, we also referred to a 1986
statutory amendment authorizing roving surveillance upon a
showing that the suspect's purpose is to thwart interception by
changing facilities. The "unmistakable inference" to be drawn
from this amendment, we held, was that the other provisions of
the statute "restricted surveillance to particular locations,
regardless of whether the same suspects and crimes were
involved." Id. at 875. The above quoted text leaves no doubt,
however, that our conclusion would have been the same in Vastola
II if we had confined our analysis to the text of the statute as
it existed prior to this amendment when the surveillances in this
case were conducted.
0
2. During our analysis of the plain meaning of the text in
Vastola II, we pointed out that the Second Circuit case law
existing at the time of the surveillance in this case did not
support the view that a new authorization for surveillance at a
different location could constitute an extension of a prior
authorization for another site. We noted and rejected the
government's contention that United States v. Vazquez, 605 F.2d
21
 Having concluded that the duty to seal the West Long
Branch tapes arose no later than June 13, 1985, the date the
authorization for the surveillance of that location terminated,
we turned to the government's second argument -- i.e., its
"suggestion that, even if erroneous, the supervising attorneys'
reasonable belief that the order of June 26, 1985, extended the
original interception order satisfactorily explains the delay" in
sealing the West Long Branch tapes. Id. at 875. We declined to
pass upon this argument because the government up to that point
had tendered no evidence to the district court concerning the
circumstances of the sealing delay. We remanded to the district
court so that it could exercise its discretion on whether to
1269 (2d Cir. 1979), cert. denied, 444 U.S. 981 (1979), stood
"for the proposition that the term, 'extension,' encompasses all
continuation of wiretap orders involving the same crimes and
substantially the same people." 915 F.2d at 874 n. 15. We
indicated that "[w]e would be hard pressed to read Vazquez so
broadly." Id. The Vazquez court summarized the state of the law
in the Second Circuit in 1979 as follows:
Therefore, we conclude that the term
"extensions," as used in the phrase "period
of the order, or extensions thereof" is to be
understood in a common sense fashion as
encompassing all consecutive continuations of
a wiretap order, however designated, where
the surveillance involves the same telephone,
the same premises, the same crimes, and
substantially the same persons. See United
States v. Scafidi, supra, 564 F.2d at 641;
cf. United States v. Principie, 531 F.2d
1132, 1142 n. 14 (2d Cir. 1976), cert.
denied, 430 U.S. 905 (1977).
Vazquez, 605 F.2d at 1278. It is thus clear that the Court of
Appeals for the Second Circuit does not read its case law in the
same way the majority reads it in footnote 8, supra.
22
reopen the record and allow the government to offer such
evidence.
Between Vastola II and the time this case returned to
us in Vastola III, we had occasion to consider another case in
which a sealing delay had occurred in the context of sequential
surveillance of different sites. United States v. Carson, 969
F.2d 1480 (3d Cir. 1992). The investigation in Carson was
conducted in 1981 and 1982. An evidentiary hearing was held by
the district court in that case at which Warren Robins, the
attorney who had caused 33 of the tapes of the first, "Zax",
surveillance to be sealed, testified. His testimony was
summarized as follows:
Robins discussed the sealing issue
with Stewart, his supervisor,
during the time in December 1981
when DiGilio was in the hospital.
Although Stewart meant to convey
that sealing was required at the
end of a particular order or its
extension, Robins understood him to
mean that sealing was required only
at the conclusion of the
investigation, rather than at the
end of interception at a particular
location. Robins' misunderstanding
of Stewart's advice arose, because
at the time of their discussion the
Zax order [authorizing the first
surveillance] constituted the
entire electronic surveillance
operation.
* * * *
As a result, Robins believed that the sealing
obligation for all of the tapes, including
the Zax tapes, arose on May 12, 1982 when the
[second] surveillance was terminated.
* * * *
23
Robins therefore thought that so long as any
part of the "wiretap interception process"
was occurring, there was no requirement to
seal--even if a particular wiretap operation
which was a part of the investigation was
complete.
Id. at 1493-95.
The district court in Carson concluded "that Robins'
view, though wrong, was objectively reasonable and that,
therefore, the government provided a satisfactory explanation for
the delay." Id. at 1494. We rejected this conclusion based on
Vastola II, explaining:
In reaching this conclusion, the court
accepted Robins' explanation even though it
was contrary to the unambiguous language of
the statute. See id. at 494 (quoting Vastola
II, 915 F.2d at 874).
We agree with the district court that a
reasonable mistake of law can be a
satisfactory explanation for delay, but we
also think the district court's findings do
not support its conclusion that Robins'
explanation was satisfactory. For an
explanation to be satisfactory under Ojeda
Rios, it must be objectively reasonable.
. . . The government does not, and cannot,
argue that an objective reading of the extant
case law might have caused an objectively
reasonable attorney to take Robins' view.
Id. at 1494 (footnote omitted).
Although the government did not maintain that the case
law would have "caused an objectively reasonable attorney to take
Robins' view" on February 27, 1982 (when the final extension of
the authority for the first surveillance terminated and the duty
to seal was triggered), the government in Carson did insist that
it had satisfactorily explained the delay by showing that "it was
24
attributable to an innocent mistake on Robins' part in
misunderstanding what Stewart told him." Id. at 1494. We
acknowledged that it was possible for the government to have a
"satisfactory explanation" even though it acted on the basis of
an objectively unreasonable view of the law. We held, however,
that the district court's findings would not support the view
that the delay occurred "without any fault on the government's
part." Id. at 1494. We observed:
Robins said his conclusion that the sealing
requirement was not triggered until all
surveillance ended was based on a
misunderstanding of Stewart's oral advice on
the sealing requirements. The district court
made no finding as to whether Robins could
have reasonably understood Stewart as telling
him no sealing was required until all
surveillance ended or whether it was
reasonable to rely on what Stewart told him
without any independent research. If a
reasonably prudent lawyer could have
interpreted Stewart's statements as Robins
did and, under all the circumstances,
reasonably relied on them without any
independent investigation of the law, Robins'
explanation as to the March 9, 1982 delay
would be an objectively reasonable mistake of
law that satisfactorily explains the
government's failure to meet the statute's
requirement of immediate sealing. Affirmative
answers to those two questions of fact are
necessary to a determination that Robins'
mistake of law was objectively reasonable. .
. .
Id. at 1494.
We ultimately remanded the Carson case to the district
court to determine "whether Robins' explanation was satisfactory
and objectively reasonable." Id. at 1501. In doing so, we made
25
the following cautionary observations that are very pertinent
here:
The circumstances of this case may show
that Robins had an affirmative duty to do
more than rely on the advice of his superior.
Arguably, a reasonable attorney would not
have risked the exclusion of the tapes,
evidence important to his case, without
personally checking the law relating to its
admission. It is not always unreasonable for
an attorney to rely on a reasoned oral
opinion of a supervisor, or even that of a
peer with more experience in the area of law
in question. Moreover, an attorney working
under another lawyer on a case could not be
faulted for following instructions, as
opposed to advice, from the person in charge
of the case or investigation. On the other
hand, we do not think that a reasonable
attorney can rely on a casual conversation
with a peer or supervisor concerning
developing law on a complex, controversial
subject if an incorrect answer is likely to
preclude admission of evidence of vital
importance to the case. . . .
Id. at 1495 (emphasis supplied).
Carson, like Ojeda Rios, makes clear that the
government bears the burden of persuading the court that its
explanation is "satisfactory."
On remand from Vastola II, the district court allowed
the government to introduce additional evidence concerning the
circumstances of the surveillance and the sealings. Based on
that evidence, the district court concluded that "the actual
reason for the sealing delay was that the government attorneys in
charge of the surveillance believed that sealing was not required
until after the entire investigation." More specifically,
Assistant United States Attorney Armenakis, the decision maker in
26
this case, had "form[ed] the same mistaken belief held by
Attorney Robins in Carson." United States v. Vastola, 989 F.2d
1318, 1323 (3d Cir. 1993) ("Vastola III").
In Vastola III, we, of course, held that Armenakis'
view of the law was not "objectively reasonable." Id. at 1327.
This holding was required by Carson and, indeed, was the law of
the case in this proceeding after Vastola II. Those cases
establish that a reasonable attorney who had reviewed the text of
the statute with even a minimal degree of care could not have
reached the conclusion that Armenakis did.
Since the record supported the finding that Armenakis'
view of the law was the "actual reason" for the sealing delay, if
that view had been objectively reasonable, that would have ended
the matter in the government's favor; there would have been no
occasion to inquire into the historic facts of how Armenakis
reached her conclusion. This court's conclusion that her view
was not objectively reasonable did not end the matter in the
defendant's favor, however, because the government contended that
Armenakis, even though wrong, acted reasonably under all the
circumstances in reaching her erroneous conclusion. Relying on
Carson, we held that this was a tenable position for the
government to take, but concluded that the district court had not
made the findings necessary to sustain it. We remanded so that
the district court could "determine whether Armenakis conducted
herself reasonably under the circumstances." Id. at 1327.
On remand from Vastola III, the parties stipulated that
the existing record was adequate to enable the district court to
27
make the required findings. That record consisted of a hearing
at which Armenakis and her immediate supervisor, Thomas Roth,
testified. Roth testified that he recalled no conversation with
Armenakis regarding the sealing of the tapes in this case. While
not required under his understanding of the law in the spring of
1989, if he had been asked by Armenakis, he would have counseled
that "the more prudent way to do it, and the way [he] always did
it [was to seal] when any particular facility was terminated."
Appendix at 25.
Armenakis testified that she had had no prior
experience with wire surveillance and that she received no formal
training in that area with respect to this case. Her entire
testimony with respect to how she reached her view of the law on
sealing was as follows:
Q. Did it occur to you to seal the
interceptions that had commenced in March and
had ceased at the end of May at Video
Warehouse, One, I'll call it?
Did it occur to you at any point along
the way?
A. Well, yes, at some point it did
occur to me, yes.
Q. What was your understanding at that
time as to what you were required to do in
terms of sealing?
A. My understanding was that when the
investigation was completed that you
immediately sealed whatever tapes had been
obtained.
Q. From what did you get that
understanding?
28
A. Well, when I began working on the
investigation I studied the statute and
several of the annotations. I spoke with
more experienced attorneys in the office on
wiretaps and it was, it was my understanding,
which appeared to be consistent throughout
the office. A. 55-56
* * * *
Q. Did you speak to Mr. Fettweis during
May or June regarding what your sealing
obligations were?
A. I had a conversation with someone.
Frankly I don't recall who it was. It may
have been Mr. Fettweis because I had asked
him questions throughout the investigation. I
did speak with someone concerning the issue
of sealing when the agent raised it. I don't
recall who it was. A. 88.
* * * *
Q. You testified that your
understanding of the sealing requirement was
based on part on the statute itself; is that
correct?
A. Yes.
Q. I would like to show you defendant's
exhibit A in evidence?
MR. WHITE: If I may approach the
witness?
THE COURT: Yes.
By Mr. White:
Q. And ask you to look at -- do you
know what defendant's exhibit A is?
A. It's a portion of the statute 2518.
It may be the entire statute.
Q. Yes, it is the entire statute.
A. 89.
* * * *
29
Q. Have you looked at the statute --
would you agree with me that it does not
support your understanding that in 1985, that
tapes didn't have to be sealed until the end
of an entire interception where there had
been change of premises and the second series
of interceptions was not an extension?
A. I think the answer is, no, I would
not agree with you. The statute was the same
then and it was my understanding and I truly
felt that it was the interpretation of other
assistants that this statute meant the end of
the investigation and that is what I
understood to be the case.
Q. Did you rely on the interpretation
of other assistants for that conclusion?
A. I felt that my beliefs were
consistent with those, those who I went to
who had conducted wiretaps, yes.
Q. You relied on, for your conclusion,
on what their perception of the statute was?
A. Not completely, but it but, in part,
yes.
Q. You also relied on your own reading
of the statute?
A. Yes and the annotations at the time.
I don't recall exactly. A. 90-91.
* * * *
Q. I believe your testimony was that
Agent Mahoney notified you that the tape
custodian at the F.B.I. had noticed the
change in the numbers and brought that to his
attention?
A. Yes.
Q. You consulted with some people about
what you should do?
A. Yes.
30
Q. After the consultation, it was
indicated to you you should seal those tapes?
A. That it would probably be better to
seal them.
Q. Did anyone -- how many people did
you consult with, do you have any idea?
A. No, I don't recall exactly.
Q. Did anybody indicate to you you
better get those sealed?
A. No. A. 99.
The district court concluded that Armenakis "acted
reasonably under the circumstances." While "reading and
outlining the statute and reviewing the relevant annotations"
could not be "considered a normally competent level of research
that a reasonably prudent attorney would undertake," the district
court believed the "critical aspect in this case [was] the
interaction between Armenakis' own research and the authoritative
confirming advice she received from other, more experienced
United States Attorneys in her office." Appendix pp. 10-11.
I would conclude that the record will not support the
district court's conclusions that Armenakis acted reasonably
under the circumstances and, accordingly, that the government's
explanation is not "satisfactory" as that term has been
interpreted by this court and the Supreme Court in Ojeda Rios. To
hold that this record suffices to carry the government's burden
under Ojeda Rios would effectively eliminate that burden and
would ill serve the privacy concerns underlying the sealing
requirement of the statute.
31
The district court properly considered the extent of
Armenakis' personal investigation into the law. The degree of
effort she put into that investigation is one factor to be
considered in determining whether she behaved reasonably. On the
other hand, her efforts have to be evaluated in light of the fact
that the text of "the statute unambiguously rules out" the
conclusion she reached, as we noted in Vastola II, 915 F.2d at
874. For this reason, I agree with the district court that
Armenakis' personal investigation of the legal issue involved
will not support a finding of reasonableness.
This leaves Armenakis' testimony that she consulted
others in the office whose identity she cannot now recall, at
times she cannot now recall, and under circumstances that she
cannot now recall. While I do not fault Armenakis for being
unable to recall in December of 1990 what she did in the spring
of 1985, the indefiniteness of her testimony precludes anyone
from determining anything about the circumstances under which she
relied upon the advice of others. One can tell nothing, for
example, about what she told her allegedly more experienced peers
as a factual predicate for the solicited opinion, whether she
inquired over lunch or in a more structured context, whether the
opinions provided by the peers were tendered immediately off the
top of their heads or after reasoned analysis, and whether or not
Armenakis inquired concerning the basis for their proffered
views. The government's evidence simply does not permit the kind
of inquiry we insisted upon in Carson. As a result, we do not
know whether this is a case involving "a reasoned oral opinion of
32
a . . . peer with more experience," or a mere "casual
conversation." Carson, 969 F.2d at 1495.
In order for the government's explanation to be
"satisfactory" in a situation like this, a determination that the
advice received by the decision maker from others was reasonably
relied upon requires far more specific support than the
government supplied here. Accordingly, I would hold that the
government did not carry its burden of demonstrating that
Armenakis acted reasonably under all of the circumstances.
The government has argued throughout the extended
history of this case that the admission of the 185 reels of West
Long Branch surveillance, if error, was harmless error. It
renews that contention before us and suggests that we should
determine that issue without further help from the trial judge.
This suggestion has some appeal because the parties would
understandably like to bring this case to a close. I would
decline, however, to accept this invitation. As we noted in
Vastola II, "if the tapes should have been suppressed, the extent
of the damage to the government's case could not easily be
assessed." 915 F.2d at 877. The trial judge, who heard the very
extensive evidence against Mr. Vastola, is in a far better
position than we to assess that damage, and I would solicit his
help in doing so.
I would remand with instructions to decide the harmless
error issue and to grant a new trial if that issue is determined
in Mr. Vastola's favor.
33