U.S. v. Abraham, 75-2477

• Decision Date: 08 September 1976
• Docket Number: No. 75-2477,75-2477
• Citation: 541 F.2d 624
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Fred Jules ABRAHAM et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 624

541 F.2d 624

UNITED STATES of America, Plaintiff-Appellant, v. Fred Jules ABRAHAM et al., Defendants-Appellees.

No. 75-2477.

United States Court of Appeals, Sixth Circuit.

Argued June 9, 1976.

Decided Sept. 8, 1976.

Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Victor D. Stone, Washington, D. C., Alfred G. Kaufman, Jr., Detroit Strike Force, Detroit, Mich., for plaintiff-appellant.

Daggs and Berg, Robert E. Berg, Jr., Detroit, Mich., Charles Burke, Livonia, Mich., for defendants-appellees.

Ernest Levin, Detroit, Mich., for defendant-appellee.

F. Randall Karfonta, Steven Reifman, Detroit, Mich., for amicus curiae.

Before EDWARDS and LIVELY, Circuit Judges, and McALLISTER, Senior Circuit Judge.

LIVELY, Circuit Judge.

This case is concerned with the provisions of the federal wiretap statute, 18 U.S.C. §§ 2510-2520 (1970), which require that recordings made pursuant to an intercept order be sealed. ¹ We are informed by the parties that the sealing requirement has been interpreted differently by several of the judges of the United States District Court for the Eastern District of Michigan. One interpretation of the statute was challenged in this court in United States v. Lucido, 517 F.2d 1 (6th Cir. 1975), but that case was decided on other grounds.

In the present case, to avoid a jeopardy problem, the government moved for a ruling in advance of trial on the adequacy of the sealing procedure which had been followed. The District Judge conducted a hearing at which detailed testimony was received concerning the handling of recordings which had been made of telephone conversations of the defendants-appellees. The district court concluded that the sealing requirements of § 2518(8)(a) had not been met and entered an order suppressing and excluding "the contents of all intercepted wire communications and evidence derived therefrom, . . . ." The government has appealed, and we reverse.

The defendants objected to the pretrial hearing at the request of the government at a time when they had not made a motion to suppress the recordings. The district court held that the defendants were not prejudiced by the pretrial offer of proof on the issue and overruled the objections. The District Judge has discretion to hear or decline to hear motions in advance of trial and we find no abuse of discretion in the procedure followed here.

The defendants made a motion in this court to dismiss the government's appeal on the ground that there is no authority for the government to appeal " from an advisory ruling on evidence prior to trial." It is clear that the government is not attempting to appeal from an "advisory ruling." The orders to which the notice of appeal is directed finally suppressed and excluded from the trial the primary evidence upon which the prosecution was based. The attorney for the government certified to the District Judge that the appeal was not taken for purposes of delay and that the evidence suppressed constituted substantial proof of a fact material to the prosecution. Though it speaks in terms of an appeal from an order granting a motion to suppress evidence, we conclude that 18 U.S.C. § 3731 (1971) ² permits an appeal by the United States under the circumstances of this case. The motion to dismiss the appeal is denied.

The evidence in the present case disclosed that orders authorizing the wire intercept of communications from designated telephones in the Detroit area were entered by a Judge of the district court on October 26, 1972 and November 21, 1972. On the day of the termination of interception under the first order and the day following termination pursuant to the second order an attorney for the Detroit Strike Force of the Department of Justice filed motions to seal the tapes. Without requiring that the recordings be brought to him or viewing them at the FBI office where they were then in custody, the District Judge entered orders that the "electronic surveillance tapes be sealed and be placed in the custody of the Federal Bureau of Investigation, Detroit, Michigan office, within the personal control of Special Agent NORMAN F. SIMON . . . ."

Agent Simon testified that a room was maintained in the FBI office where tape recordings made pursuant to court authorized interceptions were stored. This was a restricted area and only he and two other supervisor-agents had keys to the room. He testified that the tapes in the present case were delivered to him along with the court order to seal them and that the tapes were placed in separate drawers in two metal file cabinets in the restricted room. A distinctive masking tape marked in red letters, "FBI Evidence," was placed over the openings at the front of each drawer. A copy of the pertinent court order was affixed to each drawer containing recordings. Later, a second unmarked tape was placed over the "evidence" tape to further secure the drawers during the relocation of the FBI offices.

At the conclusion of the hearing the court made a finding that "the actual integrity of the tape" was secure. However, suppression was ordered on the basis of the court's conclusion that "Congress literally intended that this (the sealing) be done personally by the judge." In clarifying this ruling the court stated that there had been no sealing within the meaning of the statute in this case, stating:

It's a two-fold ruling: One, that the tapes must be presented to him personally and, secondly, that the seal must be placed on in the presence and under the direction of the judge. It doesn't mean he has to put it on the tape but he should be there watching it . . . .

We find nothing in the language of § 2518(8)(a) which requires the presence of the judge as the sealing of the recordings takes place. The evidence disclosed that the government attorney advised the District Judge that the original tapes of interception were available for inspection at the time he presented the motions for orders sealing them. This was a literal compliance with the statutory requirement that the recordings be made available to the judge who had issued the intercept order. Here the Judge declined to inspect the tapes, and we find no statutory command that he do so. The recordings had been made by FBI agents who had complete control over the tapes and the recording apparatus during the entire period of the interceptions. If any alterations, erasures or other tampering with the tapes occurred during that time, it is highly unlikely that an inspection by a judge would disclose it. It was the duty of the Judge under the statute to preserve the recordings as possible evidence. This was done by ordering that the surveillance tapes be sealed and placed in the custody of Agent Simon. The statute directs that the recordings be sealed under the judge's direction, not in his presence.

The statutory provisions related to wiretaps are contained in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Nowhere in the extensive legislative history of Title III do we find an indication of Congressional intent that intercept recordings be sealed in the actual presence of the authorizing judge. See 1968 U.S.Code Cong. and Adm.News, pp. 2177-2197. Senate Report No. 1097 indicates that the purpose of § 2518(8)(a) is two-fold: to assure the admissibility of recordings in evidence and to require that they be treated as confidential court records. 1968 U.S.Code Cong. and Adm.News, p. 2193. In United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974), the Supreme Court referred to § 2518(8) as providing for "official control of the custody of any recordings or tapes produced by the interceptions carried out pursuant to the order, . . . ."

There is probably no foolproof method of sealing tape recordings to prevent tampering. The integrity of recordings after completion of an interception is best preserved by designation of a reliable custodian. The requirement of sealing in § 2518(8)(a) appears to be related to the purpose of maintaining confidentiality of the recordings. But see United States v. Sklaroff, 506 F.2d 837 (5th Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975). This is clearly the purpose of § 2518(8)(b), ³ which relates to applications and orders authorizing interceptions. United States v. Cantor, 470 F.2d 890, 893 (3d Cir. 1972). Courts have traditionally withdrawn particular records from public scrutiny by ordering them sealed to preserve confidentiality. The presence of the judge at the actual sealing would offer no additional guarantee that confidentiality would be maintained.

The appellees rely principally upon the decision of the Court of Appeals of...