                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-25-1994

United States of America v. Vastola
Precedential or Non-Precedential:

Docket 93-5529




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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                            NO. 93-5529



                    UNITED STATES OF AMERICA

                                                 Appellee
                                 v.

                           GAETANO VASTOLA

                                                  Appellant



         On appeal from the United States District Court
                 for the District of New Jersey
                   (D.C. Criminal No. 86-301)


                      Argued March 4, 1994

       Before, STAPLETON and SCIRICA, Circuit Judges, and
                 VAN ANTWERPEN, District Judge*

                  (Opinion filed May 25, 1994)


Herald Price Fahringer (argued)
Diarmuid White
Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria
110 East 59th Street
New York, New York 10022

          Attorneys for Appellant

Marion Percell (argued)
Michael Chertoff
United States Attorney
970 Broad Street
Newark, New Jersey 07102

          Attorneys for Appellee




                                 1
*   Hon. Franklin S. Van Antwerpen, United States District
    Court for the Eastern District of Pennsylvania, sitting
    by designation.




                         2
                       OPINION OF THE COURT


VAN ANTWERPEN, District Judge.


          Appellant Gaetano Vastola ("Vastola") comes before us

for the fourth time seeking to overturn his May 3, 1989

convictions for two substantive RICO offenses under 18 U.S.C.

§ 1962(c), a RICO conspiracy offense under 18 U.S.C. § 1962(d),

and conspiracy to use extortionate means to collect an extension

of credit, in violation of 18 U.S.C. § 894.    Vastola seeks

suppression of certain wiretap recordings, improperly sealed

under Title III of the Omnibus Crime Control and Safe Streets Act

of 1968 (Wiretap Act), as amended, 18 U.S.C. § 2510 et seq.

Vastola challenges the findings of the district court from the

most recent remand in this case.     U.S. v. Vastola, 830 F.Supp.

250 (D.N.J. 1993).   Specifically, Vastola disputes the finding

that the United States Attorney supervising the wiretap

surveillance conducted adequate legal research or otherwise acted

as a reasonably prudent attorney when she failed to seal the

wiretap tapes in a timely fashion.

          The history of this complex case has been well-

documented in the many published opinions written in connection

with this case.   United States v. Vastola, 989 F.2d 1318 (3d Cir.

1993) (Vastola III); United States v. Vastola, 915 F.2d 865 (3d

Cir. 1990) (Vastola II), cert. denied, 498 U.S. 1120, 111 S.Ct.

1073 (1991); United States v. Vastola, 899 F.2d 211 (3d Cir.

1990) (Vastola I), vacated and remanded, 497 U.S. 1001, 110 S.Ct.

3233 (1990).   We will discuss only the facts and procedural


                                 3
history relevant to our review of the most recent remand of this

case to the district court.

                                I.
                   Facts and Procedural History


          On May 3, 1989 the district court entered an order of

judgment and commitment against Vastola after a jury found him

guilty of two substantive RICO offenses.     Vastola had been

charged, along with 20 other co-defendants in a 114-count

indictment filed on September 19, 1986.     Vastola was sentenced to

serve a total of twenty years' imprisonment and to pay a total

fine of $70,000.

          Prior to trial, Vastola and the other defendants filed

an omnibus motion that included a request for the suppression of

the electronic tapes obtained from the government's surveillance

of an establishment named the Video Warehouse in West Long

Branch, New Jersey ("West Long Branch tapes"), between March 15,

1985 and May 31, 1985.   The tapes were not sealed until July 15,

1985, more than 45 days after the final interception on May 31,

1985 and 32 days after the June 13, 1985 expiration date of the

order authorizing the surveillance.     Defendants contended that

the West Long Branch tapes should be suppressed pursuant to the

Wiretap Act, 18 U.S.C. § 2518(8)(a).0
0
Section 2518(8)(a) provides, in pertinent part:
         The contents of any wire, oral, or electronic
         communication intercepted by any means authorized by
         this chapter shall, if possible, be recorded on tape or
         wire or other comparable device. The recording of the
         contents of any wire, oral, or electronic communication
         under this subsection shall be done in such way as will
         protect the recording from editing or other


                                4
          The district court determined, in effect, that the

sealing was untimely.   However, the district court refused to

suppress the tapes, relying on the case of United States v.

Falcone, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. 955,

95 S.Ct. 1338 (1975) for the rule that suppression is warranted

only where it can be shown that the physical integrity of the

tapes has been compromised.   Finding by clear and convincing

evidence that the physical integrity of the West Long Beach tapes

had not been compromised, the district court denied Vastola's and

the other defendants' motion to suppress.     United States v.

Vastola, 670 F.Supp. 1244, 1282 (D.N.J. 1987), aff'd in part,

rev'd in part, 899 F.2d 211 (3d Cir.), vacated and remanded, 497

U.S. 1001, 110 S.Ct. 3233 (1990).

          On appeal, we affirmed the district court's refusal to

suppress the West Long Branch tapes on the basis of Falcone.

Vastola I, 899 F.2d 211 (3d Cir. 1990).     On June 25, 1990, the

Supreme Court vacated this decision and remanded the matter for

further consideration in light of the recently decided case of

United States v. Ojeda Rios, 495 U.S. 257, 110 S.Ct. 1845, 109

L.Ed.2d 224 (1990).   In Ojeda Rios, the Supreme Court held that a


          alterations. Immediately upon the expiration of the
          period of the order, or extensions thereof, such
          recordings shall be made available to the judge issuing
          such order and sealed under his directions . . . The
          presence of the seal provided for by this subsection,
          or a satisfactory explanation for the absence thereof,
          shall be a prerequisite for the use or disclosure of
          the contents of any wire, oral, or electronic
          communication or evidence derived therefrom under
          subsection (3) of section 2517.
18 U.S.C. § 2518(8)(a).

                                5
delay in sealing authorized electronic surveillance tapes

requires suppression of the tapes unless the government offers a

"satisfactory explanation" for the sealing delay.   The court held

that section 2518(8)(a) requires that the actual reason for the

sealing delay be objectively reasonable at the time of the delay.

Ojeda Rios, 495 U.S. at 266-267, 110 S.Ct. at 1850-1851.

           On remand from the Supreme Court, this court concluded

that "a sealing delay indeed occurred as the West Long Branch

tapes should have been sealed either as soon as was practical

after May 31, 1985, when the actual surveillance ended, or as

soon as practical after June 13, 1985, when the final extension

order expired."   Vastola II, 915 F.2d 865, 875 (3d Cir. 1990). We

then remanded to the district court to determine "whether the

government should now be permitted, under Ojeda Rios, to offer an

explanation for its violation of the sealing requirement."   Id.

at 876.   Vastola's petition for certiorari from this decision was

denied.   Vastola v. United States, 498 U.S. 1120, 111 S.Ct. 1073

(1991).

           On December 14, 1990 the district court conducted a

hearing at which the government presented evidence concerning the

reason for the sealing delay.    The district court determined that

"the actual reason for the sealing delay was that the Assistant

United States Attorney in charge of the electronic surveillance,

Diana Armenakis, and her supervisor on the case, Thomas Roth,

believed that the Wiretap Act did not require the sealing until

the end of the investigation."   United States v. Vastola, 772
F.Supp. 1472, 1481 (D.N.J. 1991), vacated and remanded, 989 F.2d


                                 6
1318 (3d Cir. 1993).   The court found that the government's

misunderstanding of the law had been objectively reasonable and

the delay had perforce been satisfactorily explained."    Id., at

1483.   Accordingly, the district court reinstated Vastola's

conviction, sentencing him to 17 years imprisonment.

           On appeal from the order reinstating his conviction, we

held that the district court had not abused its discretion by

allowing the government to present evidence supporting its

explanation for the sealing delay.   Vastola III, 989 F.2d 1318,

1324-25 (3d Cir. 1993).   However, relying on our earlier decision

in United States v. Carson, 969 F.2d 1480 (3d Cir. 1992), we

reversed as to the finding that the government's explanation was

objectively reasonable.   Nonetheless, we remanded this case for

further proceedings because, as we held in Carson, an

"unreasonable mistake of law does not automatically lead to

suppression."   Vastola III, 989 F.2d at 1327.   In Vastola III, we

discussed the Carson holding as follows:
          The Carson court explained that even though an
          attorney's mistake of law is unreasonable, the
          government can still show a satisfactory explanation if
          "the attorney involved acted as a 'reasonably prudent'
          attorney would to investigate the legal question
          involved in a reasonably prudent manner." 969 F.2d at
          1494 . . . The case [Carson] then stands for the
          proposition: When a government attorney's legal
          conclusion is found to be unreasonable, the explanation
          for the delay would still be an objectively reasonable
          "mistake of law" if the government can show that its
          attorney has adequately researched the law or has
          otherwise acted reasonably.


Vastola III, 989 F.2d at 1327.   Since the district court did not

make a determination whether Assistant United States Attorney



                                 7
Armenakis ("Armenakis") acted reasonably under the circumstances,

we remanded for further proceedings.

          The district court addressed this narrow question of

attorney conduct in its published opinion United States v.

Vastola, 830 F.Supp. 250 (D.N.J. 1993) ("Second Remand").     The

court found that while Armenakis failed to conduct adequate

research, her "reliance on the authoritative advice given by her

colleagues constituted an adequate substitute for further reading

of the caselaw, and her behavior was objectively reasonable under

the circumstances."   Id., 830 F.Supp. at 256.    Finding that the

government had offered a "satisfactory explanation" for the

failure to timely seal the West Long Branch tapes, the court held

that the tapes were properly admitted at trial.    Consequently,

the court issued an order reinstating the convictions of Vastola.

          Vastola now appeals the district court's findings,

arguing that Armenakis' conduct was not objectively reasonable

under the circumstances and that suppression of the surveillance

tapes is warranted.   For the reasons that follow, we affirm the

findings of the district court.

                                II.
                        Standard of Review


          We review the district court's factual findings for

clear error.   Vastola II at 1324 (quoting U.S. v. McMillen, 917
F.2d 773, 774 (3d Cir. 1990)).    We exercise plenary review over

the district court's legal conclusion that the Assistant United




                                  8
States Attorney's conduct was "reasonably prudent" under the

circumstances.      Id. at 1324.0
                                   III.
                                 Analysis


             This Court in Vastola III remanded to the district

court on one narrow issue:       Did Armenakis, in making an

unreasonable mistake of law, nevertheless conduct herself

reasonably under the circumstances?         Vastola III, 989 F.2d at

1327.   The answer is "yes," if the government can show that its

attorney has adequately researched the law or has otherwise acted

prudently.    Id.     The burden of proof is on the government to make

this showing.       Vastola III, 989 F.2d at 1327.

             The relevant facts for this analysis are few in number:

Armenakis studied the statute, outlined it, read its annotations,

and spoke with more experienced attorneys.         Vastola III, 989 F.2d

at 1327.0

0
 The Government urges a highly deferential review of all aspects
of the district court's opinion in this case, not just of its
findings of fact; it thus argues we should use the standard of
review we use for the Rule 11 determinations of a district court.
See Cooter & Gell v. Hartmarx Corp, 496 U.S. 384, 110 S.Ct. 2447
(1990). Because this case involves a question of the legal
standard of reasonable research of a government attorney in a
criminal case, and not just reasonable attorney conduct in a
civil context, we find the suggested standard inappropriate.
0
 These findings of fact were established by the district court
during the first remand, United States v. Vastola, 772 F.Supp.
1472, 1480 (D.N.J. 1991). The district court held an evidentiary
hearing in 1990, five years after the relevant conduct occurred.
The district court's findings were acknowledged by the Third
Circuit in Vastola III, and relied upon by the district court
during the most recent remand. We are satisfied that they are
not clearly erroneous.
          The district court found in Second Remand that these
facts provided a sufficient factual basis to decide the question
of reasonable conduct. As a result, no additional evidence was


                                    9
             The district court invoked Federal Rule of Civil

Procedure 11 jurisprudence to define the "reasonably prudent

attorney."    The district court cited Mary Ann Pensiero, Inc., 847

F.2d 90, 94 (3d Cir. 1988) for the following Rule 11 standard:
          An attorney's actions will be considered objectively
          reasonable where, given the existing circumstances, she
          undertakes "'a normally competent level of legal
          research'" to support the conclusion she reaches.


Second Remand, 830 F.Supp. at 254.     Under the circumstances, this

standard is helpful in beginning an analysis of reasonable

attorney conduct.      The intended goal of Rule 11 is

accountability.     It "imposes on counsel a duty to look before

leaping and may be seen as a litigation version of a familiar

railroad crossing admonition to 'stop, look, and listen.'"      Lieb

v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986).        In

this case, we are assessing the reasonableness of Armenakis'

conduct and her duty to stop, look and listen while conducting a

wiretap investigation.0




taken and the district court made its rulings on these facts
alone. We acknowledge that these facts are adequate for the task
at hand and that further inquiry by the district court would not
have produced additional relevant facts.
0
 The analogy to Rule 11 has its limits in this context. Some of
the factors relevant to determining whether an attorney has made
a reasonable pre-filing inquiry into the law, (e.g., whether the
position taken was a good faith effort to extend or modify the
law) are not particularly helpful in determining the
reasonableness of a government attorney's research of the law
during an ongoing criminal investigation. See e.g. Thomas v.
Capital Security Services, Inc., 812 F.2d 984, 988 (5th Cir.
1987); Fed.R.Civ.Proc. 11, Advisory Committee Note; Lingle,
supra, 847 F.2d at 95; Schering Corp. v. Vitarine
Pharmaceuticals, Inc., 889 F.2d 490, 496 (3d Cir. 1989).


                                  10
          The district court found that Armenakis herself had not

adequately researched the law. The court reasoned as follows:
          Armenakis' research, which consisted of reading and
          outlining the statute and reviewing the relevant
          annotations, was enough to give an average attorney a
          basic understanding of the law. However, standing
          alone, this limited investigation cannot be considered
          a normally competent level of research that a
          reasonably prudent attorney would undertake.


Second Remand, 830 F.Supp. at 255.    We agree.   Given the serious

consequences which follow from the mistaken application of the

Wiretap Act, i.e. suppression, a reasonable United States

attorney should not be satisfied with a basic understanding of

the Act and a summary review of applicable caselaw.    In addition,

as the district court reasoned, "the meaning of a complex

statute, such as the Wiretap Act, is not always readily

ascertainable from just the reading of the text; and the

annotations often fail to fully reflect how caselaw has

interpreted a statutory provision."   Thus, Armenakis' research,

standing alone, cannot be considered adequate.    The inquiry,

therefore, turns on whether Armenakis otherwise acted prudently.

          The district court found that Armenakis acted as a

reasonably prudent attorney, and based its conclusion on the

"interaction between Armenakis' own research and the

authoritative confirming advice she received from other, more

experienced United States Attorneys."   That is, Armenakis'

research, standing alone was inadequate.   This coupled with the

confirmation of her initial understanding of the law by more




                               11
experienced colleagues, however, convinced the district court

that Armenakis acted reasonably under the circumstances.0

          We agree that when an attorney receives confirmation of

legal theories from a number of proper sources, each consistent

with the next, the attorney can act reasonably in relying on

these theories in the course of legal research.   The district

court properly found that Armenakis' limited book research was

inadequate.   Moreover, her conversations with other attorneys,

standing alone, were also insufficient.   Carson, 969 F.2d at 1495

(an attorney may not rely merely on conversations with peers or

supervisors concerning developing area of law where incorrect

answer could lead to suppression of important evidence). However,

we believe that the combined impact of these concurring sources

created a degree of certainty (albeit minimal) which a prudent

attorney could have accepted in arriving at an appropriate

procedure for sealing.

          From a factual standpoint, the caselaw as it existed at

the time was not inconsistent with a reasonably thorough review

0
 We do not accept the district court's finding that Roth's view
was the general understanding of the office. The court inferred
this from the fact that Roth was Armenakis' supervisor during the
Video Warehouse surveillance, and that Roth was the most
experienced of any attorney in the United States Attorney's
office in New Jersey with respect to interceptions. Second
Remand, 830 F.Supp. at 256, n.6. We do not think it necessarily
follows that Armenakis spoke to other attorneys with Roth's view.
Since Roth would have counselled her to promptly seal the tapes
after each location, such information might have better informed
Armenakis about proper procedure. App. at 25. Nonetheless, we
accept the finding that she spoke to more experienced colleagues,
and that they confirmed her view of the law. We think it was
reasonable for Armenakis to rely on these colleagues, whether or
not Roth's view was the general understanding of the office.


                                12
of the relevant annotations.0   When Armenakis conducted her legal

research, no "red flags" would have appeared to warn her about

the need to seal the tapes as the investigation continued but the

location of the surveillance changed.   Our review of the relevant

annotations discloses no Third Circuit case which would have

definitively clarified this issue, or even notified Armenakis of

a conflict.0   In fact, cases from other circuits could have led

her in the opposite direction.0


0
 Just as we examined Armenakis' understanding of the law to
determine whether it was objectively reasonable at the time of
the delay, Ojeda Rios, 110 S.Ct. at 1851, we will also examine
Armenakis' conduct at the time of the delay to determine if it
was reasonably prudent attorney conduct. Cf. Schering Corp.,
supra, 889 F.2d at 496 ("the wisdom of hindsight is to be
avoided; the attorney's conduct must be judged by what was
reasonable to believe at the time the pleading, motion, or other
paper was submitted.")
0
 Of the few Third Circuit cases appearing in the relevant
portions of the Federal Digest, only the United States v.
Falcone, 505 F.2d 478 (3d Cir. 1974) appears to be even remotely
on point. In that case, the court ruled that the tapes were not
sealed in accordance with the statute. However, there was no
explanation of how or why the sealing failed to accord with the
statute. The rule of law in Falcone, later overturned in Ojeda
Rios, was as follows:
          all we hold is that where the trial court has found
          that the integrity of the tapes is pure, a delay in
          sealing the tapes is not, in and of itself, sufficient
          reason to suppress the evidence obtained therefrom.
          We hasten to add that this holding, of course, does not
          deprecate the importance of the sealing requirement.
          Certainly, it should be complied with in all respects.
          As this case so aptly demonstrates, compliance would
          have avoided considerable uncertainty and delay.
Falcone, 505 F.2d at 484. Instead of clarifying the meaning of
18 U.S.C. § 2518(8), we held that delays in sealing would not
result in suppression.
0
 See e.g. United States v. Principie, 531 F.2d 1132, 1142, and n.
14 (2nd Cir. 1976), cert. denied, 430 U.S. 905 (1977) (electronic
surveillance order entered 16 days after a prior order regarded
as an "extension" within the meaning of


                                  13
          An inquiry into the reasonableness of an attorney's

legal research is necessarily fact and time specific.    The court

must take into account not only the particular methodology

employed by the attorney, but also the complexity of the law at

the time in question.0   Armenakis' conduct is far from a model

for others to follow and our ruling is, of course, limited to the

facts and time frame of this case.

          With its decision in Ojeda Rios, the Supreme Court

significantly clarified the sealing requirements of the Wiretap

Act and changed the caselaw which we use to help judge reasonable

attorney behavior.0   The Court admonished:   "the seal required by


§ 2518 because it was considered part of the same investigation
of the same individuals conducting the same criminal enterprise);
United States v. Scafidi, 564 F.2d 633, 641 (2nd Cir. 1977),
cert. denied, 436 U.S. 903 (1978) (where intercept is on same
premises and involves substantially same persons, an extension
under those circumstances requires sealing only at conclusion of
whole surveillance).
0
 Due to the absence of controlling Third Circuit precedent, we
cannot label Armenakis' conclusions "patently unmeritorious or
frivolous." Only when an attorney offers such an implausible
view of the law, in the Rule 11 context, would she be subject to
sanctions. See Doering v. Union County Bd. of Chosen
Freeholders, 857 F,2d 191, 194 (3d Cir. 1988); Dura Systems, Inc.
v. Rothbury Investments, Ltd., 886 F.2d 551, 556 (3d Cir. 1989)
(Rule 11 evaluation includes question of whether pleading was
based on plausible view of the law).
0
 See Judge Easterbrook's opinion in Mars Steel Corp. v.
Continental Bank N.A., 880 F.2d 928 (7th Cir. 1989), in which he
observed:
          A lawyer who founds his suit on Plessy v. Ferguson, 163
          U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), has
          revealed all we need to know about the reasonableness
          of the pre-filing inquiry...If the legal point is
          obscure, though, even an absurd argument may not be
          sanctionable, because a "reasonable" inquiry does not
          turn up every dusty statute and precedent. An
          objectively frivolous legal position supports an
          inference that the signer did not do a reasonable


                                14
§ 2518(8)(a) is not just any seal but a seal that has been

obtained immediately upon the expiration of the underlying

surveillance order."    Ojeda Rios, 110 S.Ct. at 1849 (emphasis in

original).     Of additional significance is the clarification of

the Wiretap Act provided by section 2518(11), added to Title III

as part of the Electronic Communications Privacy Act of 1986,

§ 106(d)(3), Pub.L.No. 99-508, 100 Stat. 1848, 1857, reprinted in

1986 U.S.Code Cong. & Admin.News.      This provision, which

authorizes roving surveillance upon a showing that the suspect's

purpose is to thwart interception by changing facilities, was

passed in 1986 and plainly discredits arguments based upon the

so-called "extension theory."0    See Vastola II, 915 F.2d at 874.

             Vastola argues that Carson compels a different result.

The district court cited to Carson for the proposition that an

attorney's reliance on the counsel of more experienced colleagues

can constitute reasonable attorney conduct.      See Second Remand,

830 F.Supp. at 256.    In Carson, the government attorney, Robins,

did not immediately seal wiretap tapes after surveillance ended

because he expected the same surveillance to begin again when the

subject returned from a hospital stay.      Robins alleged that, like

          amount of research, but an inference, no matter now
          impressive, is no more than an inference.
Mars Steel Corp. v. Continental Bank N.A., 880 F.2d at 932.
0
 The court in Vastola II referred to the Electronic
Communications and Privacy Act of 1986 in order to make a legal
determination, based on the text of the statute, of the meaning
of the Wiretap Act. Since the amending provision was not passed
until after the relevant conduct by Armenakis, it is evident that
by referring to section 2518(11) the court in Vastola II was not
commenting upon the reasonableness of Armenakis' conduct in 1985.
The court in Vastola III remanded this matter to the district
court for a determination of the reasonableness of her conduct.


                                  15
Armenakis, he believed at the time that sealing was not necessary

until the entire investigation was completed.   Robins claimed

that he asked his supervisor about the sealing requirements and

had (mistakenly) understood his supervisor to explain that no

sealing was required until all surveillance ended.    The Carson

Court found that Robins' legal conclusion regarding sealing was

not objectively reasonable, but it remanded the case to the

district court for consideration of whether Robins' reliance on

what he thought the supervisor told him was reasonable without

any additional, independent research.    The court in Carson

offered the following standards regarding an attorney's reliance

on the counsel of colleagues:
          Arguably, a reasonable attorney would not have risked
          the exclusion of the tapes, evidence important to his
          case, without personally checking the law relating to
          its admission. It is not always unreasonable for an
          attorney to rely on a reasoned oral opinion of a
          supervisor, or even that of a peer with more experience
          in the area of law in question. Moreover, an attorney
          working under another lawyer on a case could not be
          faulted for following instructions, as opposed to
          advice, from the person in charge of the case or
          investigation. On the other hand, we do not think that
          a reasonable attorney can rely on a casual conversation
          with a peer or supervisor concerning developing law on
          a complex, controversial subject if an incorrect answer
          is likely to preclude admission of evidence of vital
          importance to the case.


Carson, 969 F.2d at 1495 (emphasis added).
          The district court found that, like Robins in Carson,

Armenakis relied on the opinions of her more experienced

colleagues in formulating her opinion.    But unlike the attorney

in Carson, Armenakis did more here than merely rely on these



                               16
conversations.0   Her understanding of the law was supplemented by

her reading and outlining of the statute and her review of the

relevant annotations at that time.   Armenakis did, in fact, check

the law in this case.   And her reading of the law confirmed her

understanding (albeit a misunderstanding) that sealing was only

required at the end of the investigation.   Thus, the Carson

decision is authoritative but clearly distinguishable on its

facts.

          We recognize that the wiretap is a powerful and

invasive law enforcement tool, and that the Wiretap Act was

enacted to establish procedural safeguards which assure that "the

interception is justified and that the information obtained

thereby will not be misused."   Gelbard v. United States, 408 U.S.

41, 47, 92 S.Ct. 2357, 2361 (1972) (citations omitted).

Nonetheless, we hold for the reasons stated that the combined

effect of Armenakis' conduct at the time in question was

minimally sufficient to meet the standards of a reasonably

prudent attorney.
                                V.
                            Conclusion


          For the reasons set forth above, we conclude that the

order of the district court should be affirmed.
0
 We note that the court in Carson did not decide the question of
whether attorney Robins' reliance on what he thought his superior
told him without independently checking the law might be
reasonable. Thus, Carson leaves open the possibility than a mere
reliance on a superior's understanding of the law might be
reasonable in certain circumstances. Of course, in this case
Armenakis conducted independent research in addition to her
consultation with other, more experienced attorneys in the
office.

                                17
18
United States of America v. Gaetano Vastola
No. 93-5529



STAPLETON, Circuit Judge, Dissenting:
          If the government's evidence in this case is sufficient

to carry its burden of providing a "satisfactory explanation" for

failing to comply with the immediate sealing requirement of the

statute, that requirement is reduced to a precatory entreaty.

Because it is clear from Ojeda Rios that Congress intended

something more, I respectfully dissent.

          Wire surveillance of the Video Warehouse in West Long

Branch, New Jersey, was authorized on March 15, 1985.    After two

extensions, the authority expired on June 13, 1985.     The

surveillance actually terminated on May 31, 1985.   Wire

surveillance of Video's new location in Neptune City, New Jersey,

was authorized on June 26, 1985.    That authority ceased and the

surveillance was terminated on July 25, 1985.

          Duplicates of 185 reels of tape from the West Long

Branch surveillance were sealed 45 days after that surveillance

ceased and 32 days after the authorization terminated.     When the

government realized its mistake, the originals of these reels of

tape were sealed a little over a month later, on August 19, 1985.

          The federal wire surveillance statute, after providing

for court authorized wire surveillances, stipulates the following

with respect to the making and sealing of tape recordings:
          The recording of the contents of any wire,
          oral, or electronic communication under this


                               19
          subsection shall be done in such way as will
          protect the recording from editing or other
          alterations. Immediately upon the expiration
          of the period of the order, or extensions
          thereof, such recordings shall be made
          available to the judge issuing such order and
          sealed under his directions. Custody of the
          recordings shall be wherever the judge
          orders. . . . The presence of the seal
          provided for by this subsection, or a
          satisfactory explanation for the absence
          thereof, shall be a prerequisite for the use
          or disclosure of the contents of any wire,
          oral, or electronic communication or evidence
          derived therefrom under subsection (3) of
          section 2517.

18 U.S.C. § 2518(8)(a) (emphasis supplied).

          The tapes from the West Long Branch surveillance are

the ones at issue here.   The government has not contended that a

sealing involving a 32 day or longer delay would constitute an

"immediate" sealing.   Rather, the government, in   United States

v. Vastola, 915 F.2d 865 (3d Cir. 1990), cert. denied, 498 U.S.

1120 (1991) ("Vastola II"), advanced two alternative theories

under which there was said to be no violation of the statute.

First, it insisted that there had been no delay because the order

of June 26, 1985, authorizing surveillance of the Neptune City

site, was an "extension" of the original authorization, and the

duty to seal did not arise until the Neptune City surveillance

terminated. We rejected this argument, concluding:
          We could not possibly hold that the Neptune
          City interception order was an extension of
          the West Long Branch order. Although the
          government rightly points out that Rios
          [United States v. Ojeda Rios, 495 U.S. 257
          (1990)] did not decide whether a change in
          the location of an illegal operation will
          prevent a subsequent order covering the new
          location from being an extension of a



                                20
          previous order, the statute unambiguously
          rules out this possibility.

Id. at 874 (footnote omitted).
          In support of this conclusion, we referred to the above
quoted portion of the statute and two other sections requiring
that an application for wire surveillance authority justify the
need for surveillance at a specific site:         Section
2518(1)(b)(ii) plainly states that an an application for
surveillance order must contain 'a particular description of the
nature and location of the facilities from which or the place
where the communication is to be intercepted.' In addition,
section 2518(3)(d) requires a particularized showing of probable
cause that 'the facilities from which, or the place where, the
wire, oral, or electronic communications are to be intercepted
are being used, or are about to be used, in the commission of
[the] offense [under investigation].' Based on these two
provisions alone, we would have no difficulty concluding that
Congress intended for interception orders, and their accompanying
extensions, to apply only to surveillances in the particular
locations specified in the applications.

Vastola II, 915 F.2d at 874.0   We held, based on the plain

meaning of the text of the statute, that the duty to seal arises

"upon the expiration of the order or extensions thereof" and that

an order authorizing surveillance at another site is not an

extension.0
0
 As the majority correctly points out, we also referred to a 1986
statutory amendment authorizing roving surveillance upon a
showing that the suspect's purpose is to thwart interception by
changing facilities. The "unmistakable inference" to be drawn
from this amendment, we held, was that the other provisions of
the statute "restricted surveillance to particular locations,
regardless of whether the same suspects and crimes were
involved." Id. at 875. The above quoted text leaves no doubt,
however, that our conclusion would have been the same in Vastola
II if we had confined our analysis to the text of the statute as
it existed prior to this amendment when the surveillances in this
case were conducted.
0
 2. During our analysis of the plain meaning of the text in
Vastola II, we pointed out that the Second Circuit case law
existing at the time of the surveillance in this case did not
support the view that a new authorization for surveillance at a
different location could constitute an extension of a prior
authorization for another site. We noted and rejected the
government's contention that United States v. Vazquez, 605 F.2d

                                21
          Having concluded that the duty to seal the West Long

Branch tapes arose no later than June 13, 1985, the date the

authorization for the surveillance of that location terminated,

we turned to the government's second argument -- i.e., its

"suggestion that, even if erroneous, the supervising attorneys'

reasonable belief that the order of June 26, 1985, extended the

original interception order satisfactorily explains the delay" in

sealing the West Long Branch tapes.   Id. at 875.   We declined to

pass upon this argument because the government up to that point

had tendered no evidence to the district court concerning the

circumstances of the sealing delay.   We remanded to the district

court so that it could exercise its discretion on whether to



1269 (2d Cir. 1979), cert. denied, 444 U.S. 981 (1979), stood
"for the proposition that the term, 'extension,' encompasses all
continuation of wiretap orders involving the same crimes and
substantially the same people." 915 F.2d at 874 n. 15. We
indicated that "[w]e would be hard pressed to read Vazquez so
broadly." Id. The Vazquez court summarized the state of the law
in the Second Circuit in 1979 as follows:

          Therefore, we conclude that the term
          "extensions," as used in the phrase "period
          of the order, or extensions thereof" is to be
          understood in a common sense fashion as
          encompassing all consecutive continuations of
          a wiretap order, however designated, where
          the surveillance involves the same telephone,
          the same premises, the same crimes, and
          substantially the same persons. See United
          States v. Scafidi, supra, 564 F.2d at 641;
          cf. United States v. Principie, 531 F.2d
          1132, 1142 n. 14 (2d Cir. 1976), cert.
          denied, 430 U.S. 905 (1977).

Vazquez, 605 F.2d at 1278. It is thus clear that the Court of
Appeals for the Second Circuit does not read its case law in the
same way the majority reads it in footnote 8, supra.


                               22
reopen the record and allow the government to offer such

evidence.

            Between Vastola II and the time this case returned to

us in Vastola III, we had occasion to consider another case in

which a sealing delay had occurred in the context of sequential

surveillance of different sites.      United States v. Carson, 969

F.2d 1480 (3d Cir. 1992).   The investigation in Carson was

conducted in 1981 and 1982.   An evidentiary hearing was held by

the district court in that case at which Warren Robins, the

attorney who had caused 33 of the tapes of the first, "Zax",

surveillance to be sealed, testified.      His testimony was

summarized as follows:
               Robins discussed the sealing issue
               with Stewart, his supervisor,
               during the time in December 1981
               when DiGilio was in the hospital.
               Although Stewart meant to convey
               that sealing was required at the
               end of a particular order or its
               extension, Robins understood him to
               mean that sealing was required only
               at the conclusion of the
               investigation, rather than at the
               end of interception at a particular
               location. Robins' misunderstanding
               of Stewart's advice arose, because
               at the time of their discussion the
               Zax order [authorizing the first
               surveillance] constituted the
               entire electronic surveillance
               operation.

                               * * * *

            As a result, Robins believed that the sealing
            obligation for all of the tapes, including
            the Zax tapes, arose on May 12, 1982 when the
            [second] surveillance was terminated.

                               * * * *


                                 23
          Robins therefore thought that so long as any
          part of the "wiretap interception process"
          was occurring, there was no requirement to
          seal--even if a particular wiretap operation
          which was a part of the investigation was
          complete.

Id. at 1493-95.


          The district court in Carson concluded "that Robins'

view, though wrong, was objectively reasonable and that,

therefore, the government provided a satisfactory explanation for

the delay."   Id. at 1494.   We rejected this conclusion based on

Vastola II, explaining:
          In reaching this conclusion, the court
          accepted Robins' explanation even though it
          was contrary to the unambiguous language of
          the statute. See id. at 494 (quoting Vastola
          II, 915 F.2d at 874).

               We agree with the district court that a
          reasonable mistake of law can be a
          satisfactory explanation for delay, but we
          also think the district court's findings do
          not support its conclusion that Robins'
          explanation was satisfactory. For an
          explanation to be satisfactory under Ojeda
          Rios, it must be objectively reasonable.
          . . . The government does not, and cannot,
          argue that an objective reading of the extant
          case law might have caused an objectively
          reasonable attorney to take Robins' view.

Id. at 1494 (footnote omitted).
          Although the government did not maintain that the case

law would have "caused an objectively reasonable attorney to take

Robins' view" on February 27, 1982 (when the final extension of

the authority for the first surveillance terminated and the duty

to seal was triggered), the government in Carson did insist that

it had satisfactorily explained the delay by showing that "it was



                                  24
attributable to an innocent mistake on Robins' part in

misunderstanding what Stewart told him."   Id. at 1494.    We

acknowledged that it was possible for the government to have a

"satisfactory explanation" even though it acted on the basis of

an objectively unreasonable view of the law.    We held, however,

that the district court's findings would not support the view

that the delay occurred "without any fault on the government's

part."   Id. at 1494. We observed:
           Robins said his conclusion that the sealing
           requirement was not triggered until all
           surveillance ended was based on a
           misunderstanding of Stewart's oral advice on
           the sealing requirements. The district court
           made no finding as to whether Robins could
           have reasonably understood Stewart as telling
           him no sealing was required until all
           surveillance ended or whether it was
           reasonable to rely on what Stewart told him
           without any independent research. If a
           reasonably prudent lawyer could have
           interpreted Stewart's statements as Robins
           did and, under all the circumstances,
           reasonably relied on them without any
           independent investigation of the law, Robins'
           explanation as to the March 9, 1982 delay
           would be an objectively reasonable mistake of
           law that satisfactorily explains the
           government's failure to meet the statute's
           requirement of immediate sealing. Affirmative
           answers to those two questions of fact are
           necessary to a determination that Robins'
           mistake of law was objectively reasonable. .
           . .

Id. at 1494.


          We ultimately remanded the Carson case to the district

court to determine "whether Robins' explanation was satisfactory

and objectively reasonable."   Id. at 1501.    In doing so, we made




                                25
the following cautionary observations that are very pertinent

here:
               The circumstances of this case may show
          that Robins had an affirmative duty to do
          more than rely on the advice of his superior.
          Arguably, a reasonable attorney would not
          have risked the exclusion of the tapes,
          evidence important to his case, without
          personally checking the law relating to its
          admission. It is not always unreasonable for
          an attorney to rely on a reasoned oral
          opinion of a supervisor, or even that of a
          peer with more experience in the area of law
          in question. Moreover, an attorney working
          under another lawyer on a case could not be
          faulted for following instructions, as
          opposed to advice, from the person in charge
          of the case or investigation. On the other
          hand, we do not think that a reasonable
          attorney can rely on a casual conversation
          with a peer or supervisor concerning
          developing law on a complex, controversial
          subject if an incorrect answer is likely to
          preclude admission of evidence of vital
          importance to the case. . . .

Id. at 1495 (emphasis supplied).


          Carson, like Ojeda Rios, makes clear that the

government bears the burden of persuading the court that its

explanation is "satisfactory."

          On remand from Vastola II, the district court allowed
the government to introduce additional evidence concerning the

circumstances of the surveillance and the sealings.   Based on

that evidence, the district court concluded that "the actual

reason for the sealing delay was that the government attorneys in

charge of the surveillance believed that sealing was not required

until after the entire investigation."   More specifically,

Assistant United States Attorney Armenakis, the decision maker in


                                 26
this case, had "form[ed] the same mistaken belief held by

Attorney Robins in Carson."   United States v. Vastola, 989 F.2d

1318, 1323 (3d Cir. 1993) ("Vastola III").

          In Vastola III, we, of course, held that Armenakis'

view of the law was not "objectively reasonable."   Id. at 1327.

This holding was required by Carson and, indeed, was the law of

the case in this proceeding after Vastola II.    Those cases

establish that a reasonable attorney who had reviewed the text of

the statute with even a minimal degree of care could not have

reached the conclusion that Armenakis did.

          Since the record supported the finding that Armenakis'

view of the law was the "actual reason" for the sealing delay, if

that view had been objectively reasonable, that would have ended

the matter in the government's favor; there would have been no

occasion to inquire into the historic facts of how Armenakis

reached her conclusion.   This court's conclusion that her view

was not objectively reasonable did not end the matter in the

defendant's favor, however, because the government contended that

Armenakis, even though wrong, acted reasonably under all the

circumstances in reaching her erroneous conclusion.   Relying on

Carson, we held that this was a tenable position for the

government to take, but concluded that the district court had not

made the findings necessary to sustain it.   We remanded so that

the district court could "determine whether Armenakis conducted

herself reasonably under the circumstances."    Id. at 1327.

          On remand from Vastola III, the parties stipulated that
the existing record was adequate to enable the district court to


                                27
make the required findings.     That record consisted of a hearing

at which Armenakis and her immediate supervisor, Thomas Roth,

testified.    Roth testified that he recalled no conversation with

Armenakis regarding the sealing of the tapes in this case.    While

not required under his understanding of the law in the spring of

1989, if he had been asked by Armenakis, he would have counseled

that "the more prudent way to do it, and the way [he] always did

it [was to seal] when any particular facility was terminated."

Appendix at 25.

             Armenakis testified that she had had no prior

experience with wire surveillance and that she received no formal

training in that area with respect to this case.     Her entire

testimony with respect to how she reached her view of the law on

sealing was as follows:
               Q. Did it occur to you to seal the
          interceptions that had commenced in March and
          had ceased at the end of May at Video
          Warehouse, One, I'll call it?

                  Did it occur to you at any point along
             the way?

                  A. Well, yes, at some point it did
             occur to me, yes.

                  Q. What was your understanding at that
             time as to what you were required to do in
             terms of sealing?

                  A. My understanding was that when the
             investigation was completed that you
             immediately sealed whatever tapes had been
             obtained.

                  Q. From what did you get that
             understanding?




                                  28
     A. Well, when I began working on the
investigation I studied the statute and
several of the annotations. I spoke with
more experienced attorneys in the office on
wiretaps and it was, it was my understanding,
which appeared to be consistent throughout
the office. A. 55-56

                    * * * *

     Q. Did you speak to Mr. Fettweis during
May or June regarding what your sealing
obligations were?

     A. I had a conversation with someone.
Frankly I don't recall who it was. It may
have been Mr. Fettweis because I had asked
him questions throughout the investigation. I
did speak with someone concerning the issue
of sealing when the agent raised it. I don't
recall who it was. A. 88.

                    * * * *

     Q. You testified that your
understanding of the sealing requirement was
based on part on the statute itself; is that
correct?

     A.   Yes.

     Q. I would like to show you defendant's
exhibit A in evidence?

     MR. WHITE:   If I may approach the
witness?

     THE COURT:   Yes.

By Mr. White:
     Q. And ask you to look at -- do you
know what defendant's exhibit A is?

     A. It's a portion of the statute 2518.
It may be the entire statute.

     Q.   Yes, it is the entire statute.
A. 89.

                    * * * *


                         29
     Q. Have you looked at the statute --
would you agree with me that it does not
support your understanding that in 1985, that
tapes didn't have to be sealed until the end
of an entire interception where there had
been change of premises and the second series
of interceptions was not an extension?

     A. I think the answer is, no, I would
not agree with you. The statute was the same
then and it was my understanding and I truly
felt that it was the interpretation of other
assistants that this statute meant the end of
the investigation and that is what I
understood to be the case.

     Q. Did you rely on the interpretation
of other assistants for that conclusion?

     A. I felt that my beliefs were
consistent with those, those who I went to
who had conducted wiretaps, yes.

     Q. You relied on, for your conclusion,
on what their perception of the statute was?

       A.   Not completely, but it but, in part,
yes.

     Q. You also relied on your own reading
of the statute?

     A. Yes and the annotations at the time.
I don't recall exactly. A. 90-91.

                      * * * *

     Q. I believe your testimony was that
Agent Mahoney notified you that the tape
custodian at the F.B.I. had noticed the
change in the numbers and brought that to his
attention?

       A.   Yes.

     Q. You consulted with some people about
what you should do?

       A.   Yes.


                        30
               Q. After the consultation, it was
          indicated to you you should seal those tapes?

               A. That it would probably be better to
          seal them.

               Q.   Did anyone -- how many people did
          you consult with, do you have any idea?

               A.   No, I don't recall exactly.

               Q. Did anybody indicate to you you
          better get those sealed?

               A.   No.   A. 99.

          The district court concluded that Armenakis "acted

reasonably under the circumstances."    While "reading and

outlining the statute and reviewing the relevant annotations"

could not be "considered a normally competent level of research

that a reasonably prudent attorney would undertake," the district

court believed the "critical aspect in this case [was] the

interaction between Armenakis' own research and the authoritative

confirming advice she received from other, more experienced

United States Attorneys in her office."    Appendix pp. 10-11.

          I would conclude that the record will not support the

district court's conclusions that Armenakis acted reasonably

under the circumstances and, accordingly, that the government's

explanation is not "satisfactory" as that term has been

interpreted by this court and the Supreme Court in Ojeda Rios. To

hold that this record suffices to carry the government's burden

under Ojeda Rios would effectively eliminate that burden and

would ill serve the privacy concerns underlying the sealing

requirement of the statute.


                                   31
           The district court properly considered the extent of

Armenakis' personal investigation into the law.    The degree of

effort she put into that investigation is one factor to be

considered in determining whether she behaved reasonably.    On the

other hand, her efforts have to be evaluated in light of the fact

that the text of "the statute unambiguously rules out" the

conclusion she reached, as we noted in Vastola II, 915 F.2d at

874.   For this reason, I agree with the district court that

Armenakis' personal investigation of the legal issue involved

will not support a finding of reasonableness.

           This leaves Armenakis' testimony that she consulted

others in the office whose identity she cannot now recall, at

times she cannot now recall, and under circumstances that she

cannot now recall.   While I do not fault Armenakis for being

unable to recall in December of 1990 what she did in the spring

of 1985, the indefiniteness of her testimony precludes anyone

from determining anything about the circumstances under which she

relied upon the advice of others.    One can tell nothing, for

example, about what she told her allegedly more experienced peers

as a factual predicate for the solicited opinion, whether she

inquired over lunch or in a more structured context, whether the

opinions provided by the peers were tendered immediately off the

top of their heads or after reasoned analysis, and whether or not

Armenakis inquired concerning the basis for their proffered

views.   The government's evidence simply does not permit the kind

of inquiry we insisted upon in Carson.   As a result, we do not

know whether this is a case involving "a reasoned oral opinion of


                                32
a . . . peer with more experience," or a mere "casual

conversation."   Carson, 969 F.2d at 1495.

          In order for the government's explanation to be

"satisfactory" in a situation like this, a determination that the

advice received by the decision maker from others was reasonably

relied upon requires far more specific support than the

government supplied here.   Accordingly, I would hold that the

government did not carry its burden of demonstrating that

Armenakis acted reasonably under all of the circumstances.

          The government has argued throughout the extended

history of this case that the admission of the 185 reels of West

Long Branch surveillance, if error, was harmless error.   It

renews that contention before us and suggests that we should

determine that issue without further help from the trial judge.

This suggestion has some appeal because the parties would

understandably like to bring this case to a close.   I would

decline, however, to accept this invitation.   As we noted in

Vastola II, "if the tapes should have been suppressed, the extent

of the damage to the government's case could not easily be

assessed."   915 F.2d at 877.   The trial judge, who heard the very

extensive evidence against Mr. Vastola, is in a far better

position than we to assess that damage, and I would solicit his

help in doing so.

          I would remand with instructions to decide the harmless

error issue and to grant a new trial if that issue is determined

in Mr. Vastola's favor.



                                 33
