U.S. v. Gerena

• Decision Date: 17 February 1989
• Docket Number: No. 784,D,CASTRO-RAMOS and I,784
• Citation: 869 F.2d 82
• Parties: UNITED STATES of America, Appellee, v. Victor Manuel GERENA, et al., Defendants, Appeal of Eliassaac Camacho-Negron, Defendants-Appellants. ocket 88-1551.
• Court: U.S. Court of Appeals — Second Circuit

Page 82

869 F.2d 82

57 USLW 2610

UNITED STATES of America, Appellee, v. Victor Manuel GERENA, et al., Defendants,

Appeal of Elias CASTRO-RAMOS and Isaac Camacho-Negron,

Defendants-Appellants.

No. 784, Docket 88-1551.

United States Court of Appeals, Second Circuit.

Feb. 17, 1989.

Diane Polan, New Haven, Conn. (Levine, Polan, Curry & Doody, of counsel), for defendant-appellant Elias Castro-Ramos.

Richard A. Reeve, New Haven, Conn., Asst. Federal Public Defender, for defendant-appellant Isaac Camacho-Negron.

Patty Merkamp Stemler, Atty., Appellate Section, Crim. Div., Dept. of Justice, Washington, D.C. (William J. Corcoran, Deputy Chief, Narcotic and Dangerous Drug Section, Dept. of Justice, Washington, D.C., Stanley A. Twardy, Jr., U.S. Atty., D. Conn., Albert S. Sabrowski, Executive Assistant U.S. Atty., John A. Danaher, III, Asst. U.S. Atty., of counsel), for appellee.

Before OAKES, Chief Judge, LUMBARD and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

Elias Castro-Ramos and Isaac Camacho-Negron appeal from an order of the United States District Court for the District of Connecticut, T. Emmet Clarie, J., filed November 3, 1988, allowing the government to use previously sealed, intercepted conversations in publicly filed briefs and memoranda as long as the conversations do not involve persons who are not parties to or witnesses in the proceedings below. For the reasons given below, we affirm, with a modification of the order.

Background

This appeal grows out of the indictment and arrest of nineteen individuals in August 1985 for crimes in connection with an alleged armed robbery of $7.6 million of a Wells Fargo depot in West Hartford, Connecticut in September 1983.

Prior to the arrests, the FBI commenced electronic surveillance of the suspects and continued that surveillance at various locations, including Puerto Rico and Boston, until August 1985. In April 1986, after their arrest, defendants attempted to suppress over 1,100 of the tapes, claiming that they were not sealed in accordance with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510 et seq. ("Title III"). The district court granted the motions to suppress with respect to over 375 tapes and denied the motions with respect to the remaining tapes. The government appealed from that order. That appeal was heard by this panel along with this appeal and is presently under consideration. United States v. Rios, No. 88-1341 (2d Cir. argued January 19, 1989).

In September 1988, after the suppression order, the government attempted to describe the role of one of appellants' co-defendants, Luz Berrios Berrios, at a guilty plea hearing concerning that defendant's sentence by repeating some of the unsuppressed tape conversations, all of which were under seal. The defendant objected on the ground that the tapes had not been unsealed and could not be referred to in open court.

The next day, the government moved the district court for an order unsealing all unsuppressed surveillance evidence in connection with this case in order to facilitate the disclosure of evidence at trial. The court granted this motion, holding that all of the unsuppressed tapes "shall be accessible and useable in this case" by any of the government or defense attorneys "for all purposes enumerated in 18 U.S.C. Section 2517(2) and (3)." In addition, the district court held that "all electronic surveillance tape recordings and evidence derived therefrom which have not been suppressed may be included in any legal briefs or memoranda which may be submitted to this Court by any party."

Thereafter, defendants moved for reconsideration, arguing that the district court's ruling, in so far as it allowed electronic surveillance materials to be used in briefs and memoranda, violated defendants' right to privacy and right to a fair trial. In response to this motion, the district court narrowed its prior order as follows:

if any party files a legal brief or memorandum which includes quotations from tape recorded conversations involving persons who are not parties to or witnesses in the above-captioned lawsuit, any such quotations shall be filed as appendices under seal.

Dissatisfied with this amended order, appellants sought in this court a stay of the district court's order pending this appeal. The motion was granted on November 29, 1988. This expedited appeal followed.

Discussion

A. Jurisdiction

Even though the order under attack is not a final decision within the meaning of 28 U.S.C. Sec. 1291, appellants claim that it is appealable under the "collateral order doctrine" of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). We agree. Judge Clarie's order satisfies the conditions necessary for an immediate appeal. The order conclusively rejects appellants' claim of statutorily guaranteed privacy rights, resolves an important issue completely separate from the merits of the action, and would be effectively unreviewable on appeal from a final judgment since the alleged damage to appellants' privacy rights would have occurred long before the end of the trial. See Richardson-Merrell, Inc. v Koller, 472 U.S. 424, 430-31, 105 S.Ct. 2757, 2760-61, 86 L.Ed.2d 340 (1985) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978)); In re The New York Times Co., 828 F.2d 110, 113 (2d Cir.1987), cert. denied sub nom., Esposito v. New York Times Co., --- U.S. ----, 108 S.Ct. 1272, 99 L.Ed.2d 483 ("New York Times I ").

The government concedes that we have jurisdiction to decide whether Judge Clarie's order unlawfully invades appellants' privacy interests. Nevertheless, it claims that we are precluded from considering appellants' argument that public disclosure should be prohibited because it might prejudice their right to a fair trial. The government argues that since the "fair trial" issue is not collateral to the central issues in the case and will not be irretrievably lost if review is delayed, we cannot entertain that argument under the rule announced in Cohen.

Even if we assume that appellants' alternative ground would not in its own right merit interlocutory review under Cohen, see United States v. Dorfman, 690 F.2d 1230, 1232 (7th Cir.1982), we have discretion to consider the argument where there is sufficient overlap in the factors relevant to the appealable and nonappealable issues to warrant our exercising plenary authority. San Filippo v. United States Trust Co., 737 F.2d 246, 255 (2d Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985) (quoting Sanders v. Levy, 558 F.2d 636, 643 (2d Cir.1976), aff'd in banc, 558 F.2d 646, 647-48 (1977), rev'd on other grounds sub nom., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978)). In this case, there is clearly sufficient overlap in the factors relevant to appellants' "privacy" and "fair trial" arguments to warrant our consideration of both of them at the same time. Because the issue is already appealable on "privacy" grounds and because appellants made the "fair trial" argument to the district court and have done so again on appeal, we believe that concern for judicial economy dictates that we should entertain this argument. Therefore, we exercise our discretion to do so. See San Filippo, 737 F.2d at 255.

B. The Merits

Turning to the merits, appellants contend that an interpretation of Title III allowing disclosure of surveillance evidence in publicly filed legal materials conflicts with the statute and violates their rights to privacy and a fair trial. They claim that Title III provides only one public disclosure provision, 18 U.S.C. Sec. 2517(3), and that provision allows disclosure only during testimony under oath in a judicial proceeding. In response, the government claims that Title III's "use and disclosure" provisions allow the unsealed use of intercepted conversations in briefs and memoranda, and that appellants' restrictive interpretation of Title III would effectively eliminate the public's constitutional right of access to materials filed in court.

Title III was the culmination of a long battle between those who would have altogether prohibited wiretaps and the material obtained thereby and those who wanted to allow the government to use wiretap material in criminal prosecutions. National Broadcasting Co. v. United States Dept. of Justice, 735 F.2d 51, 53 (2d Cir.1984). In the resulting statute, Congress recognized that wiretapping could be highly intrusive of privacy; the legislation therefore specifically put strict limits on wiretapping and how it could be used. Id. (citing S.Rep. No. 1097, 90th Cong., 2d Sess. 67, 161-65, reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2154, 2222-27).

Title 18 U.S.C. Sec. 2517, which is part of Title III, deals with the authorization for disclosure and use of intercepted wire or oral communication. In this case, the district court held that section 2517(2) permitted the disclosure of unsuppressed, intercepted communications in briefs and memoranda. Section 2517(2) provides:

(2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his [or her] official duties.

The government claims that Sec. 2517(2) permits a prosecutor to use the contents of intercepted communications in briefs and memoranda in a criminal case and in various other ways in preparation for trial. See, e.g., United States v. Ricco, 566 F.2d 433, 435 (2d Cir.1977) (section 2517(2) authorizes preparation of witnesses for trial); United States v. Rabstein, 554 F.2d 190, 193 (5th Cir.1977) (section 2517(2) authorizes use of conversations for voice identification); S.Rep. No. 1097, 90th...