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U.S. v. Quintero

filed: October 25, 1994.

UNITED STATES OF AMERICA
v.
MELBA QUINTERO APPELLANT IN 93-1377. MARIA RODRIGUEZ APPELLANT IN 93-1386. SANTIAGO GONZALEZ APPELLANT IN 93-1389. JOSE GONZALEZ-RIVERA A/K/A "TOSTI", ABERTO OTERO JOSE GONZALEZ-RIVERA APPELLANT IN 93-1415. JOSE CRUZ APPELLANT IN 93-1416. JOAQUIN MORGADO APPELLANT IN 93-1572.



On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Criminal Action Nos. 92-00055-01; 02; 05; 08; 10; 12).

Before: Hutchinson, Roth and Rosenn, Circuit Judges.

Author: Roth

Opinion OF THE COURT

ROTH, Circuit Judge :

Defendants Melba Quintero, Jose Gonzalez-Rivera, Maria Rodriguez, Santiago Gonzalez, Joaquin Mordago, and Jose Cruz appeal from judgments entered in the United States District Court for the Eastern District of Pennsylvania after a jury trial in which they were all convicted of conspiracy to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count One). In addition to the conspiracy count, each of the six defendants was convicted of other counts in the twenty-eight count indictment.

The trial lasted twenty days during which the government presented evidence consisting of electronic surveillance, audio recordings, video recordings, documents seized from defendants at the time of their arrest, and testimony of numerous law enforcement witnesses and of an expert in interpreting drug jargon. The government also presented the testimony of Cristobal Paz, one of the defendants' co-conspirators, who had pled guilty and who testified as a cooperating witness for the prosecution.

In addition to the conspiracy count, the jury found Gonzalez-Rivera guilty of one count of engaging in a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848 (Count Two), two counts of possession with intent to distribute cocaine in violation of 21 § U.S.C. 841(a)(1) (Counts Five and Six), and one count of use of a communication facility to facilitate the conspiracy in violation of 21 U.S.C. § 843(b) (Count Eight). Rodriguez was convicted of one count of use of a communication facility to facilitate the conspiracy (Count Thirteen). Gonzalez was convicted of two counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts Fourteen and Sixteen) and one count of use of a communication facility to facilitate the conspiracy (Count Twenty-One). The jury also found that, pursuant to 21 § U.S.C. 853, Gonzalez must forfeit certain property to the United States (Count Twenty-Five). Quintero was convicted of three counts of use of a communication facility to facilitate the conspiracy (Counts Seventeen, Nineteen, and Twenty), one count of distribution of cocaine (Count Twenty-Two), and one count of possession with intent to distribute cocaine (Count Twenty-Three). Mordago was convicted of one count of use of a communication facility to facilitate the conspiracy (Count Eighteen). Cruz was convicted of one count of possession with intent to distribute cocaine (Count Five).*fn1

On appeal, all of the defendants, except Cruz, challenge the district court's refusal to suppress certain telephone surveillance tapes which comprised part of the government's evidence. Defendants assert that the tapes were not sealed immediately after the final authorization order expired, as required by statute, and that the government failed to offer a satisfactory explanation for the delay in sealing. For the reasons which we will more fully develop below, we conclude that certain of the surveillance tapes should have been suppressed. The government concedes that those convictions arising directly from the tapes cannot stand if the tapes are suppressed. We agree and will reverse those convictions. As for the remaining convictions, we will examine them under a harmless error standard to determine whether they must also be reversed.*fn2

I.

On February 7, 1992, a grand jury in the Eastern District of Pennsylvania returned a twenty-eight count indictment charging twelve individuals, including the six defendants here, with a conspiracy to distribute cocaine in the Philadelphia region. The indictment resulted from an extensive undercover investigation conducted by the Federal Bureau of Investigation ("FBI") and other law enforcement personnel.

After receiving information from a cooperating witness that drug dealers in the Philadelphia area needed vehicles with concealed compartments, the FBI established an undercover operation known as MRK Services, Inc. ("MRK"). MRK rented "load cars"--cars which had secret compartments that could conceal large quantities of drugs or currency. MRK also leased out mobile cellular telephones. Hidden video and audio devices had been installed in the MRK offices to record the transactions that took place there. In addition, monitoring devices had been placed in the load cars to facilitate surveillance. Two undercover officers, Carlos Tapia ("agent Tapia") and Arsenio Gonzalez ("agent Gonzalez") posed as employees of MRK and in that capacity had dealings with several of the defendants.

As part of the investigation, the government conducted ninety days of electronic surveillance of Paz's cellular telephone, from August 1, 1991, through October 29, 1991. There were three one-month authorizations and three judicial sealings. The first authorization expired on August 30, 1991 ("August tapes"). The August tapes were sealed eleven days later, on September 10, 1991, by District Court Judge James J. Giles. The first extension of the surveillance was authorized for thirty days and expired on September 29, 1991 ("September tapes"). The September tapes were sealed five days later, on October 5, 1991, by District Court Judge James McGirr Kelly, who was serving as Emergency Judge. The second, and final, extension of the surveillance was authorized for thirty days and expired on October 29, 1991 ("October tapes"). The October tapes were sealed twenty days later, on November 18, 1991, by Judge Giles. During this period, Paz used his cellular phone to discuss his cocaine business with many of the individuals named in the indictment. At trial, the government offered into evidence sixty tape recordings and four video recordings involving the defendants. A large majority of the taped conversations were of telephone calls on Paz's cellular phone. The remaining calls were recorded as incoming calls to MRK. Each of the defendants, except Cruz, was recorded talking with Paz on a number of occasions. Before turning to the question of whether the government failed to seal the tapes in a manner consistent with the law, an overview of the evidence presented at trial is important to understanding the scope of the enterprise.

In November 1990, an informant serving a term of imprisonment with Cristobal Paz informed the FBI that Paz, who intended to re-enter the drug trade on release from prison, needed a "ghost job" in order to satisfy the terms of his parole. The FBI instructed the informant to give Paz the MRK telephone number. After his release, Paz called MRK and spoke to agent Tapia about a ghost job. Paz was informed that he could work as a ghost employee with MRK if he agreed to supply MRK with funds up front, which MRK would then use to pay Paz. Paz did not comply with this condition and was not given a ghost job.

On his release from prison, Paz sought to reestablish himself in the Philadelphia area as a major cocaine supplier. He claims to have received large quantities of cocaine from Gonzalez-Rivera in New York and from Oscar Fuentes in Florida. Paz began to sell cocaine to agent Gonzalez. On May 7, 1991, three individuals, working for Paz, delivered one kilogram of cocaine to MRK in exchange for $21,000. After receiving the cocaine, agent Gonzalez called Paz to confirm that it had arrived. Paz testified that this cocaine was supplied by Fuentes and delivered to Philadelphia by Santiago Gonzalez. According to Paz, after he took $1,000 on the deal, he paid Gonzalez the remaining $20,000 for the cocaine. On cross-examination, Paz acknowledged that he had earlier told the FBI that this cocaine was supplied by Gonzalez-Rivera.

Paz testified that, although he was suspicious that agent Gonzalez was working undercover, this first sale helped to convince him that MRK was not an undercover police operation. Three weeks after the first cocaine sale, Paz leased two cellular phones and one digital telephone pager from MRK. One of the telephones was for his own use, while the other was for a codefendant. It was Paz's cellular phone that was later wiretapped.

In June 1991, Paz and Jose Rosario travelled to New York to receive a shipment of cocaine from Gonzalez-Rivera. Paz returned to Philadelphia before receiving the cocaine but testified that Gonzalez-Rivera called to tell him that the cocaine had arrived. Cruz and Rosario left New York with the cocaine to deliver it to Paz in Philadelphia. They were stopped by the police for speeding on the New Jersey turnpike. Because of their suspicious behavior, they were detained and their car was towed to the police barracks. A police dog reacted positively to the presence of cocaine in the trunk of the car. The New Jersey police obtained a warrant to search a suitcase in the trunk and discovered fifteen kilograms of cocaine in it.

Paz testified that after the seizure of this cocaine Gonzalez-Rivera contacted his boss in the drug network, Guillermo (a/k/a "Memo"), in Medellin, Colombia. According to Paz, Gonzalez-Rivera received his cocaine from Guillermo and Guillermo worked for Pablo Escobar.

On June 27, 1991, the day after the fifteen kilogram shipment of cocaine was seized, Paz rented a load car from MRK. Agent Gonzalez testified that, when Paz returned the car on July 1, he stated that he had made two trips to New York, carrying forty-six kilograms on each trip and that he had transported a total of 145 kilograms of cocaine while he had the car. In addition, Paz said that he had used the car to transport a large amount of cash to Baltimore. After Paz left MRK, the agents inspected the car and found white powder in the hidden compartments. The powder later tested positive for cocaine.

Two days later, on July 3, Paz rented a load car and drove it to New York. When Paz returned the car a little more than a week later, the agents discovered two packages of coffee in the secret compartment. An FBI agent testified that coffee is often used by drug traffickers to mask the smell of drugs from trained drug-sniffing dogs.

On July 15, Paz rented the same load car from MRK. He drove to Gonzalez-Rivera's residence in the Bronx, New York. Paz testified that he met Gonzalez-Rivera to take delivery of twenty-six kilograms of cocaine. New York City detectives set up surveillance at Gonzalez-Rivera's residence and at the residences of co-defendants Diego Jesus Ortega ("Ortega") and Ortega's nephew, Diego Mauricio Lopez-Ortega ("Lopez-Ortega"). Paz met Gonzalez-Rivera in Manhattan and drove to Gonzalez-Rivera's residence in the Bronx. On arriving at his residence, Gonzalez-Rivera removed a gym bag from the car. One hour later, an unidentified individual exited Gonzalez-Rivera's residence with two gym bags and placed them in the car that Paz had rented from MRK. Later that day, Ortega left Gonzalez-Rivera's residence carrying a gym bag which he took to Lopez-Ortega's residence in Queens. Police later obtained permission from Lopez-Ortega to search his apartment; they found six kilograms of cocaine in a gym bag. Paz testified that the cocaine he received from Gonzalez-Rivera was brought to Philadelphia for distribution. Paz further testified that the cocaine seized from Lopez-Ortega had been rejected by Paz when Gonzalez-Rivera offered it to him. Upon Paz's return of the load car to MRK, agents discovered coffee grounds scattered throughout the secret compartment area.

On September 13, Paz and Santiago Gonzalez met with agent Gonzalez at MRK to sell him one kilogram of cocaine. Agent Gonzalez indicated that he would like to see the cocaine. Santiago Gonzalez told Paz that "it's under your seat" in the car that they had driven to MRK. Paz retrieved the cocaine from the car and was paid $21,000 by agent Gonzalez. Paz took $1,000 to pay for his use of the cellular phone and handed the remaining $20,000 to Santiago Gonzalez. Agent Gonzalez testified that Santiago Gonzalez held onto the money throughout the remainder of the meeting. Paz testified that this kilogram was part of a twenty kilogram delivery that Santiago Gonzalez had brought from Florida.

On October 11, Paz gave five kilograms of cocaine on consignment to agent Gonzalez at MRK ("the October 11 cocaine"). Agent Gonzalez met Paz at a Sunoco gas station near MRK prior to the sale. According to agent Gonzalez, an unidentified female was in the front seat of Paz's car and Santiago Gonzalez was in the back seat. After meeting at the Sunoco Station, Paz and agent Gonzalez proceeded to MRK in separate cars. Paz entered MRK and delivered the five kilograms of cocaine. After the transaction, agent Gonzalez and Paz walked back outside. Agent Gonzalez noted that the unidentified woman and Santiago Gonzalez had remained in Paz's car. Paz testified that the October 11 cocaine was part of a delivery that Santiago Gonzalez made from Florida.

In a telephone call taped by MRK on October 16, Paz and Santiago Gonzalez asked to be paid for the October 11 cocaine. Agent Tapia testified that the FBI wanted to delay payment because they were planning to arrest Paz in the near future. The FBI arranged a meeting with Paz for the following day. Just moments before Paz was to meet with agent Tapia, the FBI staged a ruse in which the purported pay-off was seized from agent Gonzalez by officers in a marked police car. The seizure was staged so that Paz witnessed the event in an effort to convince him that agent Tapia had planned to make the pay-off.

On October 31, Paz brought three additional kilograms of cocaine to MRK. Agent Gonzalez was instructed by the FBI to accept two of the three kilograms of cocaine from Paz but to refuse the third. Shortly after leaving MRK, Paz was arrested with the remaining kilogram of cocaine in his possession.

Paz testified that he received two and one-half kilograms of this cocaine from Quintero and codefendant Elsa Cruz during a trip to New York and that the remainder was left over from cocaine supplied to him by Santiago Gonzalez. He said that the cocaine he received from Quintero and Cruz was "wet" and he needed to dry it before selling it to MRK. Paz testified that Mordago helped him by drying the cocaine with acetone and that, during the October 31 transaction, he called Mordago to complain about the quality of the cocaine.

During the week following Paz's arrest, Santiago Gonzalez and agent Tapia talked on the MRK telephone about paying for the October 11 cocaine. On November 8, 1991, Santiago Gonzalez was arrested in the parking lot of a Comfort Inn, where he had arranged to meet agent Tapia to receive the $97,500 which was owed for the October 11 cocaine. Less than an hour later, Mordago was arrested in a room at the Comfort Inn, registered in Santiago Gonzalez's name. On January 16, 1992, agents arrested Gonzalez-Rivera and Rodriguez outside the residence in the Bronx where they lived together. At the time of their arrest, agents seized papers which contained the telephone and beeper numbers for several of the defendants named in the indictment.

II.

The central question in this appeal is whether the district court erred in denying defendants' motions to suppress the wiretaps. The government concedes that the October tapes "were not sealed as soon as administratively practical." In view of this concession, we must decide whether the October tapes should have been suppressed because the government failed to supply a satisfactory explanation for the sealing delay. On this question, our review is plenary. United States v. Carson, 969 F.2d 1480, 1487 (3d Cir. 1992) ("We exercise plenary review over the legal issues relating to the sealing . . . of the tapes.").

III.

A.

Each of the five defendants, contesting the admission of the wiretap tapes, presented individual briefs to the court. Quintero asserts that all of the tapes must be suppressed. Gonzalez-Rivera and Mordago challenge the August and October tapes, while Rodriguez and Santiago Gonzalez limit their challenge to the October tapes. For the reasons stated below, we conclude that only the October tapes must be suppressed.

In obtaining authorization for tapping into Paz's cellular phone, the government followed the procedures for interception contained in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510 et seq. Defendants do not challenge the initial authorization or the two extensions. The only challenge to the tapes is based on the assertion that the government failed to comply with § 2518(8)(a) which provides, in part, that:

The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the Judge issuing such order and sealed under his directions. . . . 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.*fn3

(emphasis added).

In United States v. Ojeda Rios, 495 U.S. 257, 260, 109 L. Ed. 2d 224, 110 S. Ct. 1845 (1990), the Supreme Court noted that § 2518(8)(a) contains "an explicit exclusionary remedy for noncompliance with the sealing requirement." The Supreme Court determined that, pursuant to § 2518(8)(a), a seal had to be "obtained immediately upon expiration of the underlying surveillance order." Id. at 263 (emphasis added). In the absence of a timely sealing, the Court interpreted the statute to require that the government supply a satisfactory explanation for its failure to comply with the statute. Id. "The 'satisfactory explanation' language in § 2518(8)(a) must be understood to require that the Government explain not only why a delay occurred but also why it is excusable." Id. at 265. The Court held that the explanation offered by the government for the delay must be the explanation relied upon by the government at the suppression hearing and not an excuse presented by the government for the first time on appellate review. Id. at 267.

In Ojeda Rios, a series of court orders authorized electronic surveillance of the defendant in three different locations for three different time periods. The government waited until the end of the entire investigation to seal the tapes. The underlying question was whether the government had been obliged to seal the tapes from each location when that stage of the surveillance had terminated or whether tapings at different locations for different periods of time could be considered to be extensions of the original order. The government asserted that its reason for the delay in sealing the tapes was the prosecutor's misunderstanding of the statutory term "extension." Specifically, the government attorney believed that he was not required to seal any tapes until all the taping had been completed.

The Supreme Court held that the excuse advanced by the government was "objectively reasonable" at the time the government's decision was made, given earlier Second Circuit decisions interpreting the meaning of "extension" and its relationship to the sealing requirement. The Court held that, if the government could show that the prosecutor's misunderstanding of the law was the excuse given by the government at the suppression hearing, such an "objectively reasonable" understanding of the law would be a "satisfactory explanation" for the government's delay in sealing the tapes. 495 U.S. at 266.

Since Ojeda Rios, we have had two cases which required us to evaluate whether the government's delay in sealing tapes could be excused based on a "satisfactory explanation" provided by the government. See United States v. Vastola, 989 F.2d 1318 (3d Cir. 1993) (Vastola III);*fn4 United States v. Carson, 969 F.2d 1480 (3d Cir. 1992). In Carson, we held that:

there are two kinds of justifiable government delays under the statutory scheme. First, there are the relatively short delays necessitated by the process required to comply with the provisions of the Act. . . . Second, there are sometimes longer delays attributable to non-administrative, objectively reasonable causes like understandable mistakes of law and interference from unexpected, extrinsic events beyond the government's control.

969 F.2d at 1488. *fn5 We also stated in Carson that a "satisfactory explanation is usually based on a mistaken view of the law on what triggers sealing, but on occasion it can be supplied by an extraneous unforeseen emergent situation." 969 F.2d at 1487 (citing Ojeda Rios, 495 U.S. at 266 and United States v. Massino, 784 F.2d 153, 157 (2d Cir. 1986)).

In Carson, we held that the government offered a satisfactory explanation for the delay in sealing certain tapes based on the prosecutor's mistaken view of the statute's sealing requirements. 969 F.2d at 1493. However, with regard to a second set of tapes, we rejected the explanation for the delay as unsatisfactory. The thirty-four day delay in sealing these tapes was caused by the government's sending them from New Jersey to Washington, D.C., to enhance their audibility. Id. at 1497. Finding that this delay was caused by neither a mistaken view of the statute's requirements nor by an extraneous unforeseen emergent situation, we held that the second set of tapes must be suppressed.

B.

With this background, we now turn to the present dispute. As a preliminary matter, we address the assertion put forth by Quintero and Gonzalez-Rivera that the August tapes should be suppressed because they were not sealed until the eleventh day after the initial wiretap authorization expired on August 30, 1991. In Carson, we held that the government's obligation to seal tapes under § 2518(8)(a) does not arise until the termination of the final extension of the order. 969 F.2d at 1487 (language in § 2518(8)(a) which states that tapes must be sealed "immediately upon the expiration of the period of the order, or extensions thereof" represents "a Congressional determination that tapes secured under one order need not be sealed while surveillance is being conducted under a related order that may be considered an 'extension.'"). We have determined that a court's authorization to extend a wiretap beyond the initial authorization is generally limited to taps involving the same location, United States v. Vastola, 915 F.2d 865, 874 (3d Cir. 1990) (Vastola II), cert. denied, 498 U.S. 1120, 112 L. Ed. 2d 1178, 111 S. Ct. 1073 (1991).*fn6

The extensions authorized here were clearly a continuation of the initial authorization to tap Paz's cellular phone. None of the defendants have asserted that the first or second extension constituted anything other than a continuation of the initial authorization. Consequently, the August tapes did not have to be sealed until the termination of the entire wiretap operation on October 29, 1991. Given the fact that the August tapes were sealed on September 10, 1991, long before the wiretap terminated on October 29, 1991, the district court properly admitted the August tapes. This same result applies to the September tapes, which were sealed on October 4, 1991, again long before October 29, 1991. Our focus, therefore, is on the October tapes.

The government concedes that it failed to seal the October tapes immediately: "Regarding the October tapes, the government concedes that these tapes were not sealed as soon as administratively practical under Carson and Vastola III. This Court must then determine if the October tapes are nonetheless admissible because the delay was 'objectively reasonable.'"

In order to assess whether the government has supplied a satisfactory explanation for the delay in sealing the October tapes, we are required under Ojeda Rios to examine the reasons supplied by the government to the district court. In addition, we held in Vastola III that the government "must prove the actual reason for the sealing delay rather than an excuse for some ulterior purpose or administrative bungle." 989 F.2d at 1323. See also Ojeda Rios, 495 U.S. at 267 ("a 'satisfactory explanation' within the meaning of [the statute] cannot merely be a reasonable excuse for the delay; it must also reflect the actual reason for the delay.") (O'Connor, J., Concurring, joined by Blackmun, J.).

On the first day of the trial, defendants moved to suppress the tapes based on the government's failure to comply with the statute's sealing requirement. At the hearing on the motion, FBI agent Michael McGowan, who headed the investigation, testified that he believed "part of the delay" in sealing was because at the end of the October authorization period both of the Assistant United States Attorneys ("AUSA"s) working on the case "were involved in separate trials." Hearing at 57. When asked on cross-examination what was the other reason for the delay, McGowan testified that "I don't know what the Judge's appointment was when he told the U.S. Attorney to appear. We don't contact the Judge. We go through the U.S. Attorney's office." Id. Later in the hearing, AUSA Carlos Suddath, who was one of the two prosecutors working on the case, asserted that McGowan's testimony supported the contention that the government had provided a satisfactory explanation for the delay. He noted that both he and the other AUSA working on the case, Thomas Martir, were occupied with other trials. Suddath agreed with the district court that his trial was on the same floor as Judge Giles's chambers but explained the delay in sealing by stating that "we also must fit in with the Judge's schedule." Id. at 70.

Because the issue of suppressing the tapes was raised for the first time that day, the district court allowed the prosecution time to file a supplemental brief, opposing the defendants' motion to suppress. The reasons, given by the government in its brief, mirrored those given at the initial hearing on the motion. The government noted that from October 15 to November 15, 1991, AUSA Suddath was on trial before Judge Kelly in a major criminal trial. During the "first two weeks" of November 1991 AUSA Martir was involved in "substantial pretrial preparation in a complex defense procurement fraud case" which was scheduled to begin on December 3, 1991. The government stated that this involved a substantial amount of time outside the office as Martir interviewed approximately twenty potential witnesses. In addition, Martir was responsible for two sentencing hearings during the first week in November, a detention hearing during the second week in November, and the preparation of the complaints and arrest warrants for Santiago Gonzalez and Mordago. The government also noted that Judge Giles was unavailable between September 30 and November 4, 1991, because he was sitting by designation in the Virgin Islands. Although finding the delay in sealing the October tapes "somewhat more troublesome" than the delays associated with the August and September tapes, the district court held the October tapes admissible. Dist. Ct. Order at 4. After subtracting the four days in which Judge Giles was unavailable, four weekend days, and the Veteran's Day holiday, the district court concluded that the delay in sealing the October tapes amounted to twelve working days.*fn7 The district court held that "since the delay here falls within the ambit of the rough rule of thumb suggested in Carson, the tapes are admissible." Id. at 7.

We interpret the district court's order to hold that the October tapes had been sealed "immediately" under the statute. Thus, the district court did not address the question of whether there was a satisfactory explanation for the government's delay in sealing the tapes.*fn8 However, because the government concedes that the October tapes were not sealed immediately, a Conclusion with which we agree, the question now turns to whether the government has offered a satisfactory excuse. Because this is a question of law subject to plenary review, and the record before us is complete, we are in a position to decide it.

C.

The primary reason offered by the government for the delay in sealing the October tapes is the workload of the AUSAs responsible for prosecuting the case. In support of its assertion that a prosector's workload can serve as a satisfactory excuse, the government points to language in Carson, 969 F.2d at 1498, and decisions from several other courts of appeal. See United States v. Pedroni, 958 F.2d 262 (9th Cir. 1992) (fourteen day delay permitted); United States v. Rodriguez, 786 F.2d 472 (2d Cir. 1986) (same); United States v. Scafidi, 564 F.2d 633 (2d Cir. 1977) (7 day delay permitted), cert. denied, 436 U.S. 903, 56 L. Ed. 2d 401, 98 S. Ct. 2231 (1978).*fn9

A review of these cases reveals that there are substantial differences between them and the present dispute. Moreover, the only language we find in Carson which suggests support for the proposition asserted by the government that "this Court . . . has recognized that personnel shortages, including the trial schedule and work responsibilities of a prosecutor, may be a 'satisfactory explanation'" is the statement:

We recognize that there may be limited special circumstances apart from the administrative practicalities of obtaining a sealing order that would justify some delay.

969 F.2d at 1498. However, in Carson we then went on to discuss United States v. Massino and the adequacy of an excuse if the need for it was brought about by "unusual and unforeseeable" circumstances -- not by normal, albeit heavy, work schedules.

In Massino, the defendants moved to suppress surveillance tapes which the government sealed after a delay of fifteen days. The government claimed that the delay was caused by the need to divert resources for "an immediate, sensitive and comprehensive investigation into a 'leak' of information" concerning the electronic surveillance of the defendants. 784 F.2d at 154 n.2. The government, fearful that the leak would jeopardize its ongoing investigation and expose confidential informants to danger, devoted all its resources to finding the leak.

While the court of appeals in Massino expressed concern about the length of delay, it ultimately held that the tapes should not be suppressed. Id. at 158. The court based its decision, in part, on the "lack of foreseeability that a large investigation would be needed" and that the leak represented an "urgent matter." Id. Massino then does represent a "limited special circumstance" in which a delay attributable to events unrelated to the sealing of the tapes is found to be a satisfactory explanation.

In Carson, we noted that "on occasion [a satisfactory explanation] can be supplied by an extraneous unforeseen emergent situation." 969 F.2d at 1487 (citing Massino, 784 F.2d at 157). However, we held that the facts presented in Carson did not constitute a satisfactory explanation. The need to enhance the audibility of the tapes was "readily foreseeable and could just as readily become routine." 969 F.2d at 1498. We distinguished Massino, where there was "an unexpected, urgent need for investigation of a damaging leak. Such a situation is unusual and unforeseeable." Id.

We find the excuse offered by the government in the present case closer to the excuse in Carson than to that in Massino. AUSA Suddath's trial was foreseeable. In fact, he had been working on the same trial for two weeks prior to the termination of the surveillance operation. Similarly, there was nothing in AUSA Martir's caseload that was unusual. The government asserts that Martir's caseload increased unexpectedly when Santiago Gonzalez and Mordago were arrested on November 8, 1991. This increase is more consistent with the expected flow of cases into the United States Attorney's office than it is with the type of emergency described in Massino. In addition, the government acknowledged during oral argument that it could have assigned any one of the many AUSAs in the Eastern District to process the sealing of the tapes ...


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