On Appeal from the United States District Court for the District of New Jersey; Criminal No. S-86-301 and on Remand from the Supreme Court, No. 89-1575.
Greenberg, Scirica, and Seitz, Circuit Judges.
This case is before us on remand from the Supreme Court following our decision affirming the convictions of appellants Gaetano Vastola and Elias Saka for a RICO conspiracy offense under 18 U.S.C. § 1962(d) and related extortion offenses under 18 U.S.C. § 894. United States v. Vastola, 899 F.2d 211 (3d Cir. 1990). In addition, we affirmed Saka's convictions for two substantive RICO offenses under 18 U.S.C. § 1962(c), and for mail, wire, bankruptcy, and insurance fraud, and reversed Vastola's conviction for a substantive RICO offense under 18 U.S.C. § 1962(c) due to insufficiency of the evidence regarding his participation in the collection of an unlawful debt. Finally, in an appeal brought by the government pursuant to 18 U.S.C. § 3731, we vacated the district court's grant of Vastola's motion for a judgment of acquittal on Count I of the superseding indictment charging him with a substantive RICO violation predicated upon a pattern of racketeering activity and remanded Vastola's case for resentencing.
Inasmuch as the history of this rather complex case is fully set forth in our reported opinion, we will refer the reader to that opinion for the facts of the case and will discuss only the circumstances surrounding the government's electronic surveillance of appellants' activities, as the questions before us on remand relate to the admissibility of certain wiretap evidence derived from that surveillance.
Appellants Vastola and Saka originally were indicted along with 19 other defendants in a 114 count indictment charging a variety of crimes. By opinion and order dated September 1, 1987, the district court severed the case for separate trials, United States v. Vastola, 670 F. Supp. 1244, 1261 (D.N.J. 1987), resulting in Vastola and Saka ultimately being jointly tried on a 26 count superseding indictment naming Vastola in 14 counts and Saka in 25 counts. As pertinent to this remand, the district court, at the time it ordered the severance, denied a pretrial motion, joined in by all of the original defendants, which sought the suppression of all wiretap evidence derived from the government's electronic surveillance of the Video Warehouse in West Long Branch, New Jersey. 670 F. Supp. at 1282. The evidence obtained from the West Long Branch surveillance was germane in the government's case against Vastola and Saka, as the Video Warehouse was the headquarters of their racketeering enterprise.
The circumstances leading to this motion may be traced to March 15, 1985, when the United States District Court for the District of New Jersey authorized the interception of wire and oral communications at the Video Warehouse in West Long Branch. The parties agree that the authorization was extended on April 16, 1985, and on May 14, 1985, with the second extension expiring on June 13, 1985, and that the interception in fact ceased on May 31, 1985, when the co-conspirators moved their operation to a new location in Neptune City, New Jersey. The surveillance generated approximately 185 reels of tape from March 15, 1988, to May 31, 1985, but the government did not immediately present them for judicial sealing, as required by section 2518 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (hereinafter Wiretap Act).*fn1 Instead, on June 26, 1985, the government obtained authorization to engage in electronic surveillance of Video Warehouse at its new location.*fn2
On July 15, 1985, while the order of June 26, 1985, was still in force, the government presented the 185 reels of tape from the West Long Branch, New Jersey, surveillance for sealing. App. at 188-89. It was later discovered that two of the 185 tapes sealed on July 15, 1985, were duplicate tapes which, due to a clerical error, had been stored with the original tapes. Accordingly, on August 19, 1986, the originals from which the duplicates had been made were presented for sealing to the district court which, finding that the government had provided a "satisfactory explanation for the delay in presenting [the] two reels for sealing," ordered them sealed. App. at 200.
In their pretrial motion before severance of Vastola's and Saka's case, the defendants argued that 183 of the tapes from the West Long Branch surveillance should be suppressed because of what the defendants perceived to be a 45 day delay in their sealing, and that the remaining two tapes which had been misplaced due to the clerical error should be suppressed because of an 80 day sealing delay.*fn3 The 45 days were measured from May 31, 1985, when the interceptions ceased, until July 15, 1985 when the tapes were sealed. The district court rejected this argument on the basis of United States v. Falcone, 505 F.2d 478, 484 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S. Ct. 1339, 43 L. Ed. 2d 432 (1975), which held that suppression is an appropriate remedy for a delay in sealing wiretap evidence only if it can be shown that the physical integrity of the tapes has been compromised. 670 F. Supp. at 1282. Because the defendants had not challenged their physical integrity, the district court concluded that suppression of the tapes was not mandated under the Wiretap Act. Id.*fn4 In our previous opinion, we summarily affirmed the district court's decision on this point, stating only the obvious conclusion that it "was fully consistent with Falcone." 899 F.2d at 239 n.33.
After severance of their cases, Vastola and Saka, in a pretrial motion, raised the additional contention that all of the wiretap evidence should be suppressed because the government violated the custody requirements of various unsealing orders when it sent the tapes to a private individual, Paul Ginsberg, for audio enhancement.*fn5 This issue first surfaced when Vastola and Saka, while preparing for their joint trial, discovered that Ginsberg had unsupervised custody of the tapes over a substantial period while he converted the reels to cassettes and enhanced their sound quality. App. at 234-36. In argument before the district court, the government insisted that it had fully complied with the custody requirements of the unsealing orders because it had maintained a strict chain-of-custody of the tapes covering the time they were in Ginsberg's possession. App. at 253, 257-58.*fn6 The government further argued that, in any event, the tapes should not be suppressed because the gravamen of Vastola's and Saka's argument was that there had been an unauthorized disclosure of the contents of the tapes to a private individual in violation of 18 U.S.C. § 2517, so that their only available remedy was a civil claim as provided in section 2520 of the Wiretap Act. App. at 251, 255-57.
Finally, the government suggested that suppression of the tapes would be unfair because it had them enhanced at the behest of other defendants charged in the original indictment whose cases had been tried before Vastola's and Saka's. In particular, the government argued that it sent the tapes to Ginsberg because, during the joint trial of Morris Levy, Dominick Canterino, and Howard Fisher, defense counsel complained about the audio quality of copies of the tapes the government had provided to them.*fn7 The attorney for the government, summarizing his argument on this point, said that:
It isn't often you have a situation where you have seven succeeding trials and now that you're down the line that the defendants at the last trial will say, wait a minute, why were those unsealed and what were the procedures followed after the unsealing?
He added that the tapes were sent to Ginsberg because it was not feasible in view of their enormous volume for the government to complete the enhancements in time for their use by ...