U.S. v. Carson, s. 91-5019

• Decision Date: 09 July 1992
• Docket Number: Nos. 91-5019,91-5030,s. 91-5019
• Parties: UNITED STATES of America, Appellee, v. Donald CARSON, Appellant. UNITED STATES of America, Appellee, v. Anthony GALLAGHER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1480

969 F.2d 1480

UNITED STATES of America, Appellee, v. Donald CARSON, Appellant.

UNITED STATES of America, Appellee, v. Anthony GALLAGHER, Appellant.

Nos. 91-5019, 91-5030.

United States Court of Appeals, Third Circuit.

Argued July 10, 1991.

Decided July 9, 1992.

Frederic J. Gross (argued), Mount Ephraim, N.J., for appellant Donald Carson.

Edward A. Hartnett (argued), Robinson, St. John & Wayne, Newark, N.J., for appellant Anthony Gallagher.

Michael Chertoff, U.S. Atty., Edna B. Axelrod (argued), Chief, Appeals Div., Office of U.S. Atty., Newark, N.J., for appellee.

PRESENT: STAPLETON, HUTCHINSON and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Donald Carson (Carson) and Anthony Gallagher (Gallagher) appeal from their racketeering and conspiracy convictions, arguing that various electronic surveillance audiotapes were erroneously admitted at trial. They contend that the tapes were not sealed immediately after the authorizing orders expired, as the statute authorizing electronic surveillance requires, and that the government offered no satisfactory explanation for the delay. Carson and Gallagher also say that certain tapes were improperly unsealed and that all evidence obtained as a result of the information on the improperly sealed or unsealed tapes should also have been excluded.

We hold that 108 of the tapes at issue should have been suppressed and another 33 should be suppressed if the district court finds on remand that the sealing was not "immediate" and that the government failed to offer an objectively reasonable and satisfactory explanation for the delay. We will therefore vacate the district court's judgment and remand for further proceedings in accordance with this opinion. On remand the district court will also need to determine whether the government unsealed any of the tapes for "tactical gain." If properly preserved by the parties below, the district court will also need to determine whether any of the suppressed tapes were relied upon by the grand jury in returning the indictment or were relied upon by the government to procure other evidence used by the government during trial and, if so, what impact, if any, the suppression of these tapes has on the indictment itself or on the evidence introduced at trial. Finally, on remand the district court should determine whether Carson and Gallagher are entitled to a new trial based on the improperly admitted tapes.

I. BACKGROUND

On April 25, 1988, a jury found Carson and Gallagher guilty of violating section 1962(d) of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. §§ 1961-1968 (West 1984 & Supp.1992), and conspiracy to extort money in violation of the Hobbs Act, 18 U.S.C.A. § 1951 (West 1984). See United States v. Gallagher, 751 F.Supp. 481, 483 (D.N.J.1990). Carson and Gallagher had been indicted for criminal activity in connection with a stevedoring operation with six other defendants. Carson was sentenced to concurrent sentences of seven years and fined $10,000 on each count. Gallagher was sentenced to concurrent sentences of twelve years on each count which were to be served concurrently with a sentence for civil contempt. ¹

During its investigation, the government used wiretaps to record conversations at three different premises. Prior to trial, Carson and Gallagher moved to suppress this electronic surveillance evidence because Both Carson and Gallagher appealed their convictions to this Court, contesting the use of the tapes as evidence against them at trial. While these direct appeals were pending, Carson and Gallagher also filed motions in the district court for new trials based on newly discovered evidence. The district court denied these motions, as well as a motion for reconsideration that followed. Carson and Gallagher appealed from these orders. We affirmed the district court's orders and Carson and Gallagher's convictions in an unpublished memorandum opinion. See United States v. Carson, 870 F.2d 652 (3d Cir.1989) (table).

                inter alia, the government failed to timely seal the tapes in accordance with the prophylactic sealing requirements of 18 U.S.C.A. § 2518(8)(a) (West Supp.1992), a section enacted by Congress, at least in part, to prevent tampering with electronic surveillance tapes and insure their reliability.   In their motion to suppress, Carson and Gallagher alleged that the tapes showed evidence of tampering.   On November 2, 1987, the district court denied the motion to suppress without considering the statute's prophylactic provisions because the evidence showed that the integrity of the tapes had not been compromised.   In focusing directly on the absence of tampering, the district court relied on our decision in United States v. Falcone, 505 F.2d 478 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975).   In Falcone, we held that the failure to seal tapes in a timely manner under section 2518(8)(a) would not require suppression of the tapes so long as the government could prove that the integrity of the tapes had not been compromised.   See Falcone, 505 F.2d at 484
                

Gallagher then filed a petition for a writ of certiorari in the Supreme Court of the United States. While Gallagher's petition for certiorari was pending, the Supreme Court issued its opinion in 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 tapes which were not sealed in a timely fashion under section 2518(8)(a) must be suppressed unless the government offers a satisfactory, "objectively reasonable" explanation for the belated sealing, regardless of the integrity of the tapes. Id. An explanation that the delay was due to the government's misconception of the law could be satisfactory if the misconception, though erroneous, was objectively reasonable and was relied on by the government as the explanation for the delay in the district court. Id.

Ojeda Rios effectively overruled Falcone, the decision on which the district court had relied in deciding not to suppress the electronic surveillance tapes. Following its decision in Ojeda Rios, the Supreme Court vacated our judgment affirming Gallagher's conviction and remanded his case for further consideration in light of Ojeda Rios. See Gallagher v. United States, 495 U.S. 926, 110 S.Ct. 2162, 109 L.Ed.2d 492 (1990) (mem.). Thereafter, we recalled our mandate in Carson's appeal and remanded both cases to the district court for reevaluation of the electronic surveillance suppression issues in light of Ojeda Rios. See United States v. Carson, 909 F.2d 1477 (3d Cir.1990) (table); United States v. Gallagher, 909 F.2d 1478 (3d Cir.1990) (table).

On remand, the district court held an evidentiary hearing to examine the circumstances surrounding the sealing and unsealing of the tapes, and evidence was presented concerning the government's conceptions of its sealing obligations and the reasons for any sealing delays. In an opinion filed on November 26, 1990, the district court concluded that the government complied with the statute's sealing requirements as to the tapes at issue. Gallagher, 751 F.Supp. at 492-96. It determined that brief gaps occasioned by administrative problems between the expiration of an order and its extension did not result in an obligation to seal tapes upon the expiration of the original order; rather, the sealing obligation did not arise until the expiration of the final extension of the original order. Id. at 943. The district court also decided that even if the tapes were not immediately sealed, the government's explanations for the sealing delays were satisfactory. Id. at 494. Finally, the court Gallagher filed his notice of appeal from the district court's decision on December 6, 1990. Carson filed a formal notice of appeal on December 19, 1990.

reiterated its determination that none of the tapes had to be suppressed because of accidental unsealing. Id. at 496.

II. FACTS

This appeal focuses on procedural questions concerning the government's compliance with the sealing requirements set forth in 18 U.S.C.A. § 2518(8)(a). Thus, the facts that are central to the disposition of this case do not concern the underlying convictions but instead relate to the challenged electronic surveillances.

Several different locations were the subject of electronic surveillance by the United States Department of Justice's Organized Crime and Racketeering Strike Force in Newark, New Jersey (Strike Force). Three electronic surveillance orders (and their extensions) are the subject of this appeal: the order and extensions permitting the government to install listening devices in and wiretap both the home and office phones of John DiGilio (DiGilio), the supervisor of the criminal enterprise (DiGilio's office is referred to by the parties and in our opinion as "the Zax apartment" and this order is referred to as "the Zax order"); the order and extensions permitting electronic surveillance of Gallagher's home (the Gallagher order); and the order authorizing electronic surveillance of the law office of attorney Larry Bronson (Bronson) (the Bronson order).

Robert C. Stewart, Esquire (Stewart) was the attorney-in-charge of the Strike Force during the time this electronic surveillance took place. Stewart was an Assistant United States Attorney employed by the Department of Justice since 1971. He joined the Strike Force in New Jersey in 1978 and handled several wiretap investigations prior to this one. At the hearing, Stewart told the district court that he "had overall supervisory responsibility, prosecutorial responsibility for the conduct of the investigation from its inception right straight through." Joint Appendix (Jt.App.) at 67. In addition, Stewart drafted the original application for the order authorizing electronic surveillance upon the Zax apartment as well as some of the orders extending the initial times for...