
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1828                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                 REX W. CUNNINGHAM, JR., THOMAS FERRIS, BRIAN HOYLE,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    _____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Todd  E. Newhouse,  Assistant United  States Attorney,  with  whom            _________________        Donald K. Stern, United States  Attorney, was on brief for  the United        _______________        States.            Wendy Sibbison for appellees.            ______________                                 ____________________                                     May 19, 1997                                 ____________________                 BOUDIN,  Circuit  Judge.   In  the  district court,  the                          ______________            defendants in  this criminal case moved  to suppress evidence            as  illegally seized  and,  based on  the magistrate  judge's            report,  the   district  court  granted  the   motion.    The            government filed an interlocutory appeal from the suppression            order.  We reverse.                                          I.                 In late February  1992, Carmen  Picknally, an  assistant            district attorney  in Hampden County,  Massachusetts, applied            to  the state Superior Court for a warrant, pursuant to Mass.            Gen.  Laws ch. 272,   99(F), to authorize the interception of            telephone  calls  to  or  from  two  specified  cellular  car            telephone  numbers.   The  car  telephones  in question  were            located in  cars controlled  by defendant Rex  W. Cunningham,            Jr.,  and  the offenses  under  investigation  were suspected            violations of state anti-gambling  statutes.  Mass. Gen. Laws            ch. 271,   17.                 A supporting 109-page affidavit by state trooper Timothy            Alben described evidence that  Cunningham had used threats in            attempting to  collect gambling  debts for bets  that he  had            taken.   The affidavit also  set forth information  from five            confidential   informants   about   a  large-scale   gambling            organization  allegedly  controlled by  Cunningham, including            specifics as  to how the  organization worked,  the names  of                                         -2-                                         -2-            employees, telephone numbers, and the location of records and            cash.                 On February 28, 1992,  Justice Constance Sweeney, of the            state Superior  Court,  issued  the  requested  warrant,  and            signed ancillary  orders directed  to two carriers.   Several            incriminating calls  were intercepted between  Cunningham and            others and were  described in another  affidavit of Alben  in            support  of a requested  extension sought by  Picknally on or            about March  17, 1992.  Justice Sweeney granted the requested            extension.  Surveillance of the two telephones ended on April            1, 1992.                 On  April 17,  1992, Picknally  applied to  the Superior            Court  for  a  new  warrant,  this  time  (according  to  the            application's caption) "authorizing the interception  of oral            communications of  . .  . Cunningham within  an establishment            known as  Dillons (sic) Tavern."   The application identified            Dillon's  Tavern   at  a  street   address  in   Springfield,            Massachusetts, and said that it was on property controlled by            Cunningham  and his  relatives.   Incorporating  a new  Alben            affidavit,  the application  referred to  loansharking, Mass.            Gen.  Laws ch. 271,    49, as well  as gambling, as suspected            offenses.                 Although  the caption referred  to interception  of oral            communications  "within   .  . .  Dillons (sic)  Tavern," the            first  paragraph  described  the  application as  one  for  a                                         -3-                                         -3-            warrant "to intercept certain wire  and oral communications,"            and there are later references to "wiretaps" and, separately,            to "oral communications  . . . within  Dillons (sic) Tavern."            The affidavit  also asked  for  authority for  Alben to  make            secret  entries  into Dillon's  Tavern  "for  the purpose  of            installation  and activation  of oral  interception devices."            This  application, it appears, was  a poorly edited markup of            the original wiretap application.                 Immediately below Picknally's  signature was a paragraph            signed by the district  attorney for the county,  saying that            he  had reviewed the  application and affidavit  and that the            proposed  use of  electronic  surveillance  relative  to  two            specified   telephone  numbers  was  consistent  with  county            policy.  The  two listed telephone numbers  were the cellular            telephone  numbers  specified  in the  original  application.            Apparently the  paragraph had  been copied from  the original            warrant application without change.                   The supporting  Alben affidavit,  this time 62  pages in            length  but  attaching  the   original  affidavit  as   well,            described  Cunningham's caution  in using  the telephone  and            provided  reasons for  believing that  Cunningham and  others            were using Dillon's  Tavern for meetings  in aid of  gambling            and  loansharking.    The  affidavit  described  Cunningham's            regular  use of  a  particular table  in  Dillon's Tavern  to                                         -4-                                         -4-            conduct   his  business.     It   also  explained   why  oral            interceptions were needed to supplement other evidence.                 Alben's affidavit  did not contain  the confusing jumble            of references to wiretaps and oral communications that marred            the  Picknally  application.     It  asked  for  approval  to            intercept   oral   communications  within   Dillon's  Tavern,            specifying that interception would                 be  limited  to  only  such   times  that  physical                                  ____                 surveillances  of this  DILLONS TAVERN  and  Rex W.                 CUNNINGHAM   Jr.   can   reasonable   (sic)   place                 CUNNINGHAM   within   this   location    and   that                 interceptions will  take place only at  or near the                 particular table  within the dining area  which has                 been  identified  within  this  affidavit  as being                 consistently used by CUNNINGHAM or his associates.            It  also asked approval  to enter Dillon's  Tavern to install            technical equipment to achieve the interceptions.                 The  warrant signed  by  Justice Sweeney  had a  caption            similar   to  the  application,   specifically  referring  to            interception   of   oral   communications;    but--like   the            application--the  warrant also  referred confusingly  to wire            communications.   It  approved  the secret  entry to  install            equipment, and  imposed various safeguards.   The warrant was            extended numerous times, and assault and battery was added as            a suspected offense.  Surveillance ended on November 1, 1992.            By then  125 cassette  tapes had  been  accumulated and  were            sealed by the Superior Court.                 On April 21,  1995, a federal grand jury  in Springfield            indicted Cunningham on RICO violations, loansharking, illegal                                         -5-                                         -5-            gambling activities, and conspiracy to commit those offenses,            18  U.S.C.    2,  892, 894, 1955,  and 1962(c) and  (d).  Co-            defendants Brian  Hoyle and  Thomas Ferris were  charged with            loansharking  conspiracy.    Most  of  the  evidence  against            Cunningham,  and   all  of  the  evidence   against  the  co-            defendants, derived from the electronic surveillance and from            searches  conducted  under  state-court  issued  warrants  at            various sites shortly before the surveillance terminated.                 By  joint  motion  filed   on  December  15,  1995,  the            defendants moved to suppress materials acquired by electronic            surveillance under Title III of the Omnibus Crime Control and            Safe Streets Act of 1968, 18 U.S.C.    2510-20.  That statute            governs  interception of  both  wire  communication and  oral            communication, laying down detailed standards and procedures.            Id.        2516-18.   It  also  provides  for exclusion  from            ___            evidence of interceptions taken  in violation of the statute.            Id.    2515.            ___                 After a two-day evidentiary hearing, including testimony            from Picknally, Alben, and  Hampden County District  Attorney            William  Bennett, the  magistrate  judge issued  a report  on            March 28,  1996.  In  it, he recommended  that the motion  to            suppress  be allowed  as to  all electronic  interceptions of            conversations at Dillon's Tavern.  He said that the confusion            in  the warrant meant that  it did not  comply with statutory            requirements  as to specificity,   18 U.S.C.   2518(4), nor--                                         -6-                                         -6-            assuming a good faith  exception existed--was reliance on the            warrant objectively reasonable.                 On  May  17,  1996,  the  district  court  approved  the            magistrate judge's recommendation.  Its analysis tracked that            of the magistrate judge  and his rejection of a  "good faith"            defense  was adopted by cross reference.   In memoranda dated            June 13 and July  12, 1996, the district court  addressed two            successive  government motions for  reconsideration but stood            by its earlier conclusion.   The government then brought  the            case to us by interlocutory appeal.  18 U.S.C.   3731.                                         II.                 On  review  of a  suppression  order,  we defer  to  the            factfinder's findings  of raw fact unless  clearly erroneous,            and we  consider issues  of law  de novo.   United  States v.                                             _______    ______________            Morris,  977 F.2d  677, 680 (1st  Cir. 1992).   In  the past,            ______            there  has  been  deference  accorded  to   the  factfinder's            judgment in  applying general standards  to particular  known            facts;  but  the  Supreme  Court has  recently  stressed  our            responsibility,  in a  related Fourth  Amendment  context, to            review   "mixed  questions"  from   an  independent  vantage.            Ornelas  v.  United States,  116  S.  Ct. 1657,  1663  (1996)            _______      _____________            (reasonable suspicion and probable cause).                 The  government  offers  two  alternative   reasons  for            reversal.     The  first  is  its   claim  that  the  warrant            adequately,   although   not   perfectly,   identified   oral                                         -7-                                         -7-            communications  as  its   target--especially  since   Justice            Sweeney and Trooper Alben as executing officer knew that this            was its purpose.   The second argument is that  the so-called            good-faith exception  of United States v. Leon,  468 U.S. 897                                     _____________    ____            (1984),  is available  under  the statute  in  this case  and            applies on the present facts.                   At the  threshold, defendants object that  neither basis            for appeal  was sufficiently preserved.   Because we consider            only the first ground  on the merits, our discussion  of this            threshold objection  is similarly limited.   To decipher that            objection, it is necessary to understand how the government's            defense  of  its  warrant  evolved   on  the  path  from  the            magistrate judge to the district court and finally to us.                 Before the magistrate judge, the government defended its            warrant on the ground that, analyzing the wording  in detail,            the errors were  technical or clerical.   The government  did            not  expressly  assert that  the  personal  knowledge of  the            authorizing  judge and executing officer were pertinent; but,            the magistrate  judge touched obliquely on  the issue, saying            that  the government's  "excuse" would,  if accepted,  "allow            agents to  conduct searches so  long as they  understood what                                                    ____            was intended by the orders which their attorneys drafted  for                                             _____            signatures by the court."                 In  its  district  court  brief,  the  government  again            analyzed the  warrant's language,  arguing  that it  referred                                         -8-                                         -8-            several  times  to  interception  of oral  communications  at            Dillon's  Tavern and that no reasonable officer would read it            to approve wiretaps, especially because no telephone  numbers            were listed in the  warrant.  The government did  not mention            the knowledge of  the judge or executing  officer; indeed, in            its  first  petition   for  reconsideration,  the  government            complained  that the  district court  had looked  "beyond the            four corners of the warrant."                 The government's first attempt to emphasize what Justice            Sweeney and Trooper Alben  knew at the time came  only in its            appellate brief where, for  the first time, it also  cited to            United  States v. Bonner, 808  F.2d 864 (1st  Cir. 1986), and            ______________    ______            similar cases  making such knowledge relevant.   Whether this            new  emphasis is a separate  "ground" or merely  a new twist,            the   government clearly did  not offer it  below and instead            steered  the magistrate  judge  and district  court toward  a            strict linguistic analysis of the  warrant.  If these  judges            erred, it was surely error "invited" by counsel.                 But whether we should ignore Bonner  is a more difficult                                              ______            question.    The  government  sought  timely  review  of  the            magistrate judge's ruling, and it filed a timely appeal to us            from  the district  court's ruling.   True, local  rules warn            that  failing to  list grounds  for reviewing  the magistrate                                         -9-                                         -9-            judge's report may be fatal;1 but we do not read this warning            to counsel  as  preventing a  reviewing  court--where  timely            review  is sought  at each  stage--from noticing  on its  own            arguments not developed below.                 The  ability of  a reviewing  court to  decide the  case            properly  is fundamental.  Singleton v.  Wulff, 420 U.S. 106,                                       _________     _____            120-21  (1976).   Indeed,  the rules  expressly preserve  our            ability  to  notice "plain  errors" that  affect "substantial            rights," Fed.  R. Crim. P. 52(b), especially where failure to            do so would work  a substantial injustice.  United  States v.                                                        ______________            Olano,  507  U.S. 725  (1993);  see  also  Johnson v.  United            _____                           _________  _______     ______            States,  ___ S. Ct. ___, 1997  WL 235136 (U.S. May 12, 1997).            ______            The  threat of  substantial injustice is  not limited  to the            interests of defendants.  United States v. Krynicki, 689 F.2d                                      _____________    ________            289, 292 (1st Cir. 1982).                   In this case, Bonner and similar decisions show that the                               ______            issue of knowledge is  not wholly distinct from the  claim of            clerical  error; whether  an  error is  forgiven as  clerical            depends, at least in  some situations, on whether  in context            it actually  threatened privacy  interests; and this  in turn            may be  affected by the  executing officers' knowledge.   The                                            ____________________                 1Compare Rule  3(b), Rules for U.S.  Magistrates in U.S.                  _______            District Court in Massachusetts with Thomas  v. Arn, 474 U.S.                                            ____ ______     ___            140,  146  & n.4  (1985) (declining  to  treat such  rules as            jurisdictional).    See  generally  15A C.  Wright,  et  al.,                                ______________            Federal Practice andProcedure   3901.1, at 42 (2d ed. 1992).             _____________________________                                         -10-                                         -10-            Bonner argument is not intuitively evident; but it is "plain"            ______            enough once the cases are consulted.                   A final reason  for refusing to cabin  the analysis here            is  that the  defendants  are not  prejudiced, because  their            ability  to  meet the  government's  Bonner  argument is  not                                                 ______            affected by the delay.  The knowledge  of the state judge and            executing officer is readily inferred from documents and from            testimony  taken  at  the  magistrate  judge  hearing,  where            defense  counsel cross-examined  the  witnesses.   Defendants            have  not pointed to any evidence lost or foregone due to the            government's tardiness in making its knowledge argument.                                          III.                 Turning  then to  the merits,  we face  at the  outset a            statutory  ban  on  use  in  court  of  the  contents  of  an            intercepted wire or oral communication,  or "evidence derived            therefrom,"  where disclosure  would violate  Title III.   18            U.S.C.   2515.  There is no violation if the interception was            "authorized  by" Title  III.   Id.    2517.   The authorizing                                           ___            provisions, 18  U.S.C.    2516-18, elaborately  set forth the            crimes  to  be  investigated,  the  application  process  for            authorizing orders, and the standards to be met.                 Pertinent  here is  18 U.S.C.    2518(4),  which governs            each order authorizing an  interception and requires that the            order specify five different items.  Three items (subsections            (a), (d)  and (e)) are  not in  dispute: the identity  of the                                         -11-                                         -11-            target,  the  identity  of  the agency  and  the  authorizing            official, and the  time period.   The other  two items  which            must be included are as follows:                 (b) the nature  and location of  the communications                 facilities  as  to  which,  or   the  place  where,                 authority to intercept is granted; [and]                 (c)  a  particular  description   of  the  type  of                 communication  sought  to  be  intercepted,  and  a                 statement  of the  particular offense  to which  it                 relates[.]                 The defendants invoked  both provisions; the  magistrate            judge  and  the  district  judge focused  upon  (b),  as  the            government seeks to  do here.  In  truth, we think  that both            provisions  need   to  be  read  together.     Their  thrust,            disregarding the final clause of (c), is to identify the type            of communication and to narrow the targeted communications by            location  of "facilities"  (e.g.,  identifying  a  particular                                        ____            telephone) or "place" (e.g.,  where a "bug" is to  be located                                   ____            to intercept oral communications).                 In a literal sense, the warrant does describe both  type            and place: it refers expressly  to oral communications and to            Dillon's Tavern.  But  this is an extreme example  of missing            the  forest for  the trees.   By  referring randomly  to oral            communications  and  wire  communications  or  wiretaps,  the            warrant is garbled on the very questions posed by subsections            (b) and (c).   Taken as a whole--but  taken alone and without            extrinsic evidence--the  warrant does not tell  the objective                                         -12-                                         -12-            but  ignorant  reader  just  what  interceptions  are  to  be            targeted.                 Now, the extent of confusion is a matter of degree.  Any            reader can see that the warrant has been misdrafted;  whether            a reasonable  (but otherwise uninformed) police officer would            solve  the   puzzle  correctly   is  probably  a   matter  of            percentages.  In  all events, the  confusion is serious,  and            despite the government's linguistic acrobatics, this is not a            warrant  that we would  deem adequate if it  were signed by a            judge  and  executed  by a  police  officer  having no  other            knowledge of the background and objectives.                   The  inadequacy is  not because  of any  high likelihood            that an otherwise uninformed officer would tap a telephone or            would  intercept  Cunningham's  oral  communications  at some            other  location than Dillon's.  No  telephone number is given            in  the  body  of  the  warrant,  and  no  other  "place"  of            interception is mentioned.   Rather, standing alone, the bare            inconsistent words  of the warrant fail  to create reasonable            assurance  that the signer or reader would know just what was            intended.                 But this is not the end of the story.  The Supreme Court            has made clear that suppression is not automatically required            for every  Title III violation;  rather, as a  sister circuit            summed up the Supreme Court's precedents in United  States v.                                                        ______________            Johnson,  696 F.2d 115, 121  (D.C. Cir. 1982), "violations of            _______                                         -13-                                         -13-            even . . . central requirements do not mandate suppression if            the government demonstrates to the court's  satisfaction that            the  statutory   purpose  has  been   achieved  despite   the            violation."  See also United States v. Donovan, 429 U.S. 413,                         ________ _____________    _______            433-34 (1977); United States v.  Chavez, 416 U.S. 562, 574-75                           _____________     ______            (1974).                 Title  III  is  designed to  protect  privacy  interests            similar to those reflected in the Fourth  Amendment.  Whether            or  not Leon's  good faith  exception should  be interpolated                    ____            into the statute--an issue we do not decide--Fourth Amendment            precedent   is  highly   relevant  in  deciding   whether  an            authorizing order is valid and whether a defect in wording is            of a kind that  threatens the central interests sought  to be            protected.  Indeed, the Supreme  Court itself has relied upon            Fourth Amendment precedent in  implementing Title III.  Dalia                                                                    _____            v. United States, 441 U.S. 238, 254-59 (1979).               _____________                 A substantial body of Fourth Amendment precedent akin to            Bonner, representing most circuits, permits a reviewing court            ______            to consider the knowledge  of the officials who  approved the            warrant   and   executed   it.     The   reason   is   fairly            straightforward:  such knowledge  may,  on particular  facts,            show  that there  was in  fact no  real threat  to legitimate                                  ________            privacy interests.  Examples  include the judge approving the                                         -14-                                         -14-            warrant but forgetting to sign, or  the warrant's omission of            an address known both to the judge and executing officer.2                 In calling such mistakes  "clerical," courts do not mean            that they are all unimportant typographical errors.  What  is            meant  is  that  they  are  wording  mistakes  introduced  by            accident  or  lack of  care rather  than  wilfully or  with a            sinister  purpose.   Cases  like  Bonner  often involve,  and                                              ______            forgive, very serious  clerical mistakes, depending upon  the            risk  that they posed  in fact.   E.g., Bentley,  825 F.2d at                                              ____  _______            1109  (personal  knowledge  of  officers  saved  warrant that            listed wrong  office  number).    In  this  sense,  the  term            "clerical" is highly misleading.                 Such an approach  is not  cost free.   In an  individual            case, a  defect may pose no threat (we will show that this is            so here); but exclusion  of evidence in that case  will still            make the police more careful next  time and so may prevent  a            different  mistake that does pose  such a threat.   But there            are  costs  either  way:   excluding  reliable  evidence  and            possibly  freeing the guilty is also a  cost.  And cases like                                            ____________________                 2See, e.g., United  States v. Brown, 49 F.3d 1162, 1168-                  _________  ______________    _____            69  (6th Cir.), cert. denied,  116 S. Ct.  377 (1995); United                            ____________                           ______            States  v. Owens, 848 F.2d  462, 465 (4th  Cir. 1988); United            ______     _____                                       ______            States v.  Bentley, 825  F.2d  1104, 1109  (7th Cir.),  cert.            ______     _______                                      _____            denied,  484 U.S.  901 (1987);  United States v.  Turner, 770            ______                          _____________     ______            F.2d  1508, 1511 (9th Cir. 1985).  An extensive collection of            federal  cases, by circuit, is contained in 84 Geo. L.J. 717,                                                           _________            734 n.78  (1996).  Some additional  case authority, including            state cases, is contained  in 2 LaFave, Search and  Seizure                                                      ___________________            4.5(a) (3d ed. 1996).                                         -15-                                         -15-            Bonner represent a balance  between competing objectives.  In            ______            any event, such is the law of this circuit and many others.                 In sustaining the warrant in this case, we rely upon two            major  elements.   First,  the  flaw in  this  case, although            serious, was a discrete set of clerical mistakes in a process            that  in  all  other  important respects  complied  with  the            statute.  An application to a judge was made; it demonstrated            probable  cause  and other  requisites for  the interceptions            proposed;  it  identified  place  and  type  (although  in  a            confusing   language);  a   warrant   was  signed;   and  the            authorizing judge  and executing officer knew  just what they            were doing.                  Second, because the judge and the executing officer knew                         _______            what  had   been  proposed  and  authorized,   there  was  no            substantial   threat  that   this  officer   would  intercept            communications other  than as authorized.   Thus, despite the            seriously confusing  language, the error  here presented  far            less of a  threat to  civil liberties than,  say, a  facially            coherent warrant  that mistakenly  inverted the numbers  of a            street address and  was executed  by an officer  who did  not            know the actual address.                   It  is the combination of these two elements that, as in            Bonner, persuades  us that the  warrant should be  treated as            ______            valid and,  as in Johnson,  that "the  statutory purpose  [of                              _______            Title III]  has been  achieved despite  the violation."   696                                         -16-                                         -16-            F.2d at 121.  And, as always, substantial compliance and risk            from error are matters  of degree.  Knowledge would  not save            the  interception if,  for example,  Alben had  made out  the            affidavit  but then  neglected to  present it  to a  judge to            secure judicial approval.  Similarly,  nothing in what we say            offers any comfort to an officer who fails to comply with the            true object of the warrant.                 It is also worth stressing that the knowledge of Justice            Sweeney and of Trooper Alben are established by a paper-trail            record that was  created before the  search.  The  affidavits                                     ______            submitted  to secure the telephone taps and then to authorize            oral interceptions show beyond  serious dispute just what the            judge  and the  executing  officer understood.   The  hearing            record before the magistrate judge  does help knit the events            together, but there is no threat here of  recollections being            invented after the event.                 This  hard  evidence  lessens,  although  it  does   not            eliminate,   the  problems  associated  with  any  resort  to            personal knowledge.  But proof of  the knowledge possessed by            the police is the critical issue for most warrantless arrests                                                 ____            and searches, e.g.,  Chambers v. Maroney, 399  U.S. 42, 47-48                          ____   ________    _______            (1970); and,  of course, knowledge is  scrutinized in warrant            cases  as well  where  (for example)  there  is a  charge  of            fabrication or of invented information.                                         -17-                                         -17-                 The Supreme  Court's cases do express  a special concern            where   subjective  motivation   rather  than   knowledge  is                                __________                  _________            involved.  Thus,  the Court has held as a  matter of law that            malignant motive is  irrelevant where objectively  reasonable            conduct  is proved  to  make out  a  defense of  governmental            qualified immunity, Anderson v.  Creighton, 483 U.S. 635, 641                                ________     _________            (1987), or  where  probable  cause exists  but  a  search  is            challenged  as pretext.  Whren  v. United States,  116 S. Ct.                                     _____     _____________            1769,  1774   (1996).     But  the  special   concerns  about            overturning  reasonable conduct  because  of bad  motive have            nothing to do with this case.                   One final  word on this  issue is in  order.   Where, as            here,  the government  seeks  to rescue  a defective  warrant            based partly on knowledge of the judge or officer, the burden            is upon  it to prove such knowledge--just  as it would be the            defendant's  burden if  the warrant  were facially  valid but            sought to be impugned  by proof of perjury.  It  is fortunate            for  the government  that  in  this  case,  the  evidence  is            overwhelming and  available from  the existing record.   This            piece of luck  does not  make the mishandling  of the  matter            look any more attractive.                                         IV.                 The   defendants  advance  an   alternative  ground  for            upholding the suppression of the Dillon's Tavern tapes.  They            claim  that the government failed  to comply with the sealing                                         -18-                                         -18-            requirement  of  Title  III,  18 U.S.C.     2518(8)(a),  with            respect to the cellular phone tapes.  And, since the Dillon's            Tavern  surveillance  derived  from  this  allegedly  tainted                                                 ____            evidence, defendants say that  it must be suppressed.   Id.                                                                      ___            2515.    The district  court ruled  that  the brief  delay in            sealing was not material.                 The statute authorizing an  interlocutory appeal from an            order  of  suppression,  18  U.S.C.    3731,  gives  only the            government  a right  to  appeal, and  for  good reason.    If            evidence  is suppressed,  the  government cannot  appeal  the            suppression  order after  trial for double  jeopardy reasons,            whereas the  defendant (if convicted) can  always appeal from            the district court's earlier refusal to suppress.                 It is well-established that  appellate courts can uphold            a  judgment based on a ground rejected by the district court.            This  general  principle has  been  applied  to section  3731            appeals.  United States v. Moody, 485  F.2d 531, 534 (3d Cir.                      _____________    _____            1973).   But  the government  objects in  this case  that the            defendants'  alternative ground  would not  only  support the            order  suppressing   the  Dillon's  Tavern  tapes   but  also            undermine  the  different  order declining  to  suppress  the            cellular phone  tapes.  Thus, it argues  that the alternative            ground  is   really  a  Trojan-horse  effort   to  review  an            unappealable order.                                         -19-                                         -19-                 The argument is clever but unpersuasive.   The fact that            the  sealing issue  may have  implications for  two different            orders does not prevent us from considering that issue so far            as it  pertains to a reviewable  order.   The  cases cited by            the government,  e.g., United States v.  Shameizadeh, 41 F.3d                             ____  _____________     ___________            266, 267  (6th Cir. 1994), are  not on point.   Indeed, if we                                                   thought that the suppression order were clearly valid, but on            a ground different than that  offered by the district  court,            it would be bizarre to overturn it.                 In this instance, however,  the magistrate judge and the            district court  amply justified their action  in treating the            brief  sealing  delay  as "satisfactor[ily]  explained."   18            U.S.C.    2518(8)(a).  See  United States v.  Ojeda Rios, 495                                   __________________     __________            U.S. 257,  265 (1990).  There was no bad faith by the police,            no claim of alteration  to the tapes, and no  other prejudice            even suggested.  Given these circumstances and the brevity of            the  delay, we think  no extended  discussion is  required in            this case.                   Reversed.                  _________                                         -20-                                         -20-
