ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. D.C. Criminal Action Nos. 86-00301 and 86-00301-06.
Before: Becker, Nygaard and Higginbotham, Circuit Judges.
This appeal concerns the government's obligation to seal recordings from electronic surveillance and the consequences from failing to seal 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. After we affirmed the judgments of conviction against Gaetano Vastola and Elias Saka for various racketeering and extortion charges, the Supreme Court vacated our judgment and remanded for further proceedings consistent with United States v. Ojeda Rios, 495 U.S. 257, 110 S. Ct. 1845, 109 L. Ed. 2d 224 (1990), which construed that section of the Wiretap Act at issue here. On remand, the judgments of conviction were ultimately reinstated and Vastola and Saka appeal once more. We must determine whether under Ojeda Rios the district court erred when it refused to suppress evidence adduced from certain electronic surveillance tapes.
The other matter before us is the sufficiency of the evidence that convicted Vastola under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c). Vastola was charged with and convicted of conducting the affairs of an enterprise through a pattern of racketeering activity, which requires a finding of two or more predicate racketeering acts. Of the four charged predicate acts, which were the basis for separate charges, the jury convicted him of only one. We will examine whether a conviction under substantive RICO may stand notwithstanding an acquittal on separately charged offenses constituting three of the four predicate racketeering acts charged in the indictment. We will dismiss Saka's appeal because we lack appellate jurisdiction. We will vacate Vastola's judgment of conviction and remand for further consideration consistent with this opinion.
Before we reach the merits of the arguments, we first confront a jurisdictional issue. On August 16, 1991, upon a remand from this court's decision in United States v. Vastola, 915 F.2d 865 (3d Cir. 1990) (Vastola II), the district court entered the order Saka appeals from. On September 23, 1991, Saka filed a notice of appeal with an accompanying motion to extend the time for filing a notice of appeal under Fed. R. App. P. 4(b). This notice was untimely because Saka failed to file it within 10 days. The district court denied both Saka's motion to extend time and a subsequent motion to reconsider. Saka appealed from the order denying the motion to extend, but sought a voluntary dismissal of that appeal. The appeal was dismissed.
Saka concedes that he has not filed a timely notice of appeal, but contends that we retained jurisdiction when we remanded to the district court. So, he contends that a notice of appeal was unnecessary. This is incorrect. After the district court entered the order appealed from, Saka needed to notify this court and the government that he was appealing. We have no power to waive or extend the time for filing the notice of appeal. See Fed. R. App. P. 26(b). The timely filing of a notice of appeal is both jurisdictional and mandatory. Browder v. Director, Dept. of Corrections, 434 U.S. 257, 264, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978). Hence, we lack appellate jurisdiction over Saka's appeal and will dismiss it.
The facts and procedure in Vastola's appeal are quite complex, but we will recite them only insofar as necessary to decide the appeal. For a complete recitation see United States v. Vastola, 670 F. Supp. 1244 (D.N.J. 1987); United States v. Vastola, 899 F.2d 211 (3d Cir. 1990) (Vastola I).
Vastola was indicted along with 20 others in a 114 count indictment charging them with violating RICO and committing various related offenses including mail and wire fraud and extortion. The broad investigative effort included electronic surveillance authorized under the Wiretap Act. That statute regulates the interception and use of electronic, wire and oral communications. Congress intended the Wiretap Act to ensure that evidence obtained from electronic surveillance will not be altered, edited, or otherwise tampered with. Integral to this goal is the sealing requirement.
The Wiretap Act provides: "Immediately upon the expiration of the period of the order [authorizing wiretap], or extensions thereof, such recordings shall be made available to the Judge issuing such order and sealed under his directions." 18 U.S.C. § 2518(8)(a) (emphasis added). We have construed "immediately" to mean as soon as administratively practical. To qualify as an "extension" of a prior order, the order must, among other things, authorize surveillance on the same subject, at the same location, and regarding the same matters as the original order. Thus, tapes must be sealed as soon as practical after an order expires unless the surveillance of the same premises is continuing under an extension, or the tapes will be suppressed.
This case arose because the government failed to seal the tapes promptly. On March 15, 1985, the district court authorized the interception of oral and wire communications at the Video Warehouse in West Long Branch, New Jersey, the headquarters of the racketeering enterprise. Surveillance there stopped on May 31, when the business was moved from West Long Branch to Neptune City, New Jersey; but the extension order did not expire until June 13. The government did not immediately present the tapes for sealing as required by the Wiretap Act. Instead, on June 26, the district court authorized surveillance of the Neptune City premises. This was a new order and did not extend the West Long Branch order. On July 15, while the Neptune City surveillance was continuing, the government sealed 183 tapes from the West Long Branch surveillance. These tapes were not timely sealed; they should have been sealed either immediately after the actual surveillance (May 31), or after the final extension order expired (June 13). Vastola II, 915 F.2d at 875 & n.16. Citing this sealing delay, Vastola made a pretrial motion to suppress the tapes.
The Wiretap Act does not categorically suppress all untimely sealed tapes, providing instead: "The presence of the seal . . . 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." 18 U.S.C. § 2518(8)(a) (emphasis added). When the motion to suppress was decided, the law of this circuit, under United States v. Falcone, 505 F.2d 478 (3d Cir. 1974), permitted the government to avoid suppression if it showed that the physical integrity of the tapes had not been compromised.
The government did not explain the sealing delay, but instead relied upon Falcone to show that the tapes had not been altered. Also relying on Falcone, the district court denied the motion to suppress. The jury convicted Vastola on, among other charges, Counts 1, 3, 4 and 9. (We will discuss these counts in greater detail when we discuss the sufficiency issue.)
With respect to the suppression issue, in Vastola I we too relied on Falcone and summarily affirmed the district court's decision not to suppress the tapes. 899 F.2d at 239 n.33. Vastola then successfully petitioned the Supreme Court, Vastola v. United States, -- U.S. --, 110 S. Ct. 3233 (1990), which granted certiorari, vacated our decision and remanded for consideration in light of United States v. Ojeda Rios, 495 U.S. 257, 110 S. Ct. 1845, 109 L. Ed. 2d 224 (1990).
In Ojeda Rios there was a delay in sealing tapes with facts similar to those here. On April 27, 1984, the government obtained an order authorizing the interception of communications at Ojeda Rios' residence in Levittown, Puerto Rico. On July 9, surveillance stopped because he moved his residence to El Cortijo, Puerto Rico. An extension order, however, was effective until July 23. On July 27, the government obtained a new order to conduct surveillance at the El Cortijo residence. That order, after several extensions, expired on September 24. After an additional surveillance order covering Ojeda Rios' car expired on October 10, the government sealed the tapes obtained from the surveillance of Ojeda Rios' Levittown and El Cortijo residences.
The government contended that it could satisfactorily explain the sealing delay and demonstrate that the integrity of the tapes had not been compromised. The Court rejected this argument, holding that the government must explain not only why a delay occurred but also why it is excusable. Id. at 1850. In so doing, it expressly overruled the law of this circuit under Falcone. Id. at 1850 n.5.
To explain the delay, the government represented that the attorney supervising the surveillance believed he was not required to seal the tapes until the end of the investigation. It relied on two Second Circuit cases. See United States v. Principie, 531 F.2d 1132 (2d Cir. 1976); United States v. Scafidi, 564 F.2d 633 (2d Cir. 1977). The government thus argued that the delays were excusable because they resulted from a good faith, reasonable misconstruction of the statutory term "extension."
After examining the Second Circuit cases, the Court concluded that "the cases do support the Conclusion that the 'extension' theory now pressed upon us was objectively reasonable at the time of the delays." Ojeda Rios, 110 S. Ct. at 1851 . It held that the excuse was reasonable because the government need not prove that its understanding of the law was correct, but that its interpretation was reasonable at the time. Id. Nonetheless, the Court stressed that an excuse is not satisfactory unless it was relied on to explain the sealing delay. Id. Justices O'Connor and Blackmun concurred separately to emphasize this point; they joined the majority with the understanding that the excuse, albeit reasonable, "must also reflect the actual reason for the delay." Id. at 1851-52.
In Vastola II we considered this case in light of Ojeda Rios. The government advanced several arguments why the tapes should not be suppressed. It first contended that there was no sealing delay at all because the order authorizing surveillance at the Neptune City business extended the original authorization for the West Long Branch surveillance. The practical import of this argument is that the obligation to seal the West Long Branch tapes did not arise until the end of the Neptune City surveillance. We rejected this view as "the statute unambiguously rules out this possibility." 915 F.2d at 874. Thus, the tapes obtained from the West Long Branch premises should have been sealed either after the actual surveillance of those premises or after the expiration of the final extension order. Id. at 875 & n.16.
The government then tried to furnish a satisfactory explanation for the delay by arguing that even if the Neptune City order was not an extension of the West Long Branch order, the supervising attorneys reasonably believed based on a reading of the extant law that the sealing obligation arose at the Conclusion of the entire investigation. In the alternative, the government argued that we should remand to the district court for further proceedings to determine the actual reasons for the sealing delay.
We rejected the suggestion that the government satisfactorily explained the delay. The record was insufficient to show that the proffered explanation was the actual reason for the delay. While it was possible that the government offered no explanation for the delay because it had none, it was equally possible that the government assumed that Falcone required it to demonstrate only the integrity of the tapes to defeat suppression. We thus concluded that the district court in the first instance should decide whether the government should be permitted to offer an explanation, and if so, to determine whether the explanation is satisfactory. Id. at 876. We analogized the first inquiry to that involved in reopening a case. As guidance for the district court we cited United States v. ...