U.S. v. Pedroni, 90-10532

• Citation: 958 F.2d 262
• Decision Date: 02 March 1992
• Docket Number: No. 90-10532,90-10532
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick PEDRONI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 262

958 F.2d 262

UNITED STATES of America, Plaintiff-Appellee, v. Patrick PEDRONI, Defendant-Appellant.

No. 90-10532.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 15, 1992.

Decided March 2, 1992.

Peter Robinson, Santa Rosa, Cal., for defendant-appellant.

William P. Schaefer, Sp. Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, SCHROEDER and T.G. NELSON, Circuit Judges.

CHOY, Circuit Judge:

Defendant Patrick PEDRONI, appeals his conviction for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and his two-count conviction for use of a communication facility to further a drug transaction under 21 U.S.C. § 843(b). Finding no merit to either ground of his appeal, we affirm.

I. PROCEDURAL & FACTUAL BACKGROUND

In 1984, the Federal Bureau of Investigation ("FBI") began to investigate alleged narcotics trafficking by James Michael Stowers. As a part of the investigation, the FBI sought and obtained court authorization to conduct electronic surveillance of Stowers's telephone conversations. On January 11, 1985 Judge John P. Vukasin authorized electronic surveillance of Stowers's telephone. The order authorized surveillance for thirty days, and the district court extended the order at the government's request on February 8, 1985 and March 8, 1985 for additional thirty-day periods. During the course of the electronic surveillance, defendant Patrick Pedroni also became a subject of the FBI's investigation because he had numerous telephone conversations with Stowers.

On March 23, 1990 Pedroni was indicted on one count of conspiracy to possess with the intent to distribute under 21 U.S.C. § 846 (count one), and two counts of use of a communication facility to further a drug transaction under 21 U.S.C. § 843(b) (counts two and three).

The FBI terminated its electronic surveillance April 4, 1985 at 5:00 p.m. The recordings were inventoried, boxed along with the tape logs, and prepared for presentation to Judge Vukasin for sealing pursuant to statutory requirements. This process took several days. ¹ Judge Vukasin then scheduled the sealing for April 18, 1985. Special Agent Luis H. George, Jr. presented 239 tapes to Judge Vukasin who sealed the tapes and returned them to the custody of the FBI that same day. The tapes remained unsealed for a total of fourteen days. There is no evidence in the record on this appeal that the integrity of the tapes was compromised in any way.

Pedroni filed a motion to suppress the wiretap evidence on June 20, 1990 because the government had failed to seal the tapes immediately as required by 18 U.S.C. § 2518(8)(a). Judge Vukasin denied Pedroni's motion to suppress the tapes or hold an evidentiary hearing. Pedroni renewed his motion on July 20, 1990, and the district court again denied the motion.

On August 1, 1990 Pedroni filed a proposed jury instruction regarding an alleged lesser-included offense of conspiracy to possess cocaine. During oral argument Pedroni urged the district court to instruct the jury on the lesser-included offense based on the theory that prior to March 23, 1985 he withdrew from the conspiracy to distribute and thereafter merely conspired to possess cocaine for personal use. Under this theory, the five-year statute of limitation period on the conspiracy to distribute charge would have run prior to his indictment on March 23, 1990. The court ultimately denied the request citing United States v. Linn, 880 F.2d 209 (9th Cir.1989) and United States v. Adler, 879 F.2d 491 (9th Cir.1988) in support of its decision. The district court, however, did instruct the jury on withdrawal from the charged conspiracy and in his closing argument Pedroni's attorney argued that prior to March 23, 1985, Pedroni in fact had withdrawn from the conspiracy.

On August 3, 1990 the jury returned a verdict of guilty on count one of the indictment, conspiracy to distribute cocaine, and not guilty on counts two and three, for use of a communication facility. The district court sentenced Pedroni to six years imprisonment and a $5,000 fine.

II. DISCUSSION

A. Motion to Suppress the Wiretap Evidence.

The district court's factual findings on the motion to suppress the tapes obtained from electronic surveillance are reviewed for clear error. See United States v. Maldonado-Rivera, 922 F.2d 934, 950 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2858, 115 L.Ed.2d 1026 (1991); see also United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir.1988) (factual determinations under wiretap statute's necessity requirement reviewed for clear error). The district court's determination that the government's reasons for delay in sealing the wiretap tapes were satisfactory is reviewed de novo. Maldonado-Rivera, 922 F.2d at 950.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 controls the government's use of electronic surveillance techniques in law enforcement activities. 18 U.S.C. §§ 2510-2520. Under the statute, the government must obtain a court order to conduct electronic surveillance, except under extraordinary circumstances. See 18 U.S.C. § 2518(1)-(7). The Act also contains procedures for storing the tapes after the government terminates its surveillance. ² These procedures are prerequisites for the government's use of the evidence against the surveilled individual in a criminal trial. The statute states, "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." Id. To use the evidence, therefore, the government must (1) seal the tapes immediately, or (2) provide a "satisfactory explanation" for the delay in obtaining a seal.

This Circuit has not addressed the issue of suppression of evidence under § 2518(8)(a). Courts in other circuits, however, have held that immediately sealing the tapes means "within one or two days" and "any delay beyond that certainly calls for explanation." United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979). Because the tapes were not sealed immediately in this case, the government must offer a satisfactory explanation to prevent the tapes' suppression. The Supreme Court interpreted the § 2518(8)(a) suppression provision in United States v. Ojeda Rios, 495 U.S. 257, 110 S.Ct. 1845, 109 L.Ed.2d 224 (1990). The Court concluded that "the 'satisfactory explanation' language in section 2518(8)(a) must be understood to require that the Government explain not only why a delay occurred but also why it is excusable." Id. at 1850.

The government based its "satisfactory explanation" in this case upon Agent George's affidavit, submitted with the government's papers opposing Pedroni's motion to suppress. The affidavit refers to several facts that establish a "satisfactory explanation" for the delay in sealing the tapes: (1) integrity of the tapes maintained through special procedures; (2) total delay of only fourteen days; (3) tapes were ready for sealing in six days (and in three non-holiday work days); (4) delay due to heavy work load of responsible FBI agent; (5) part of delay due to judge's unavailability and decision when to schedule hearing.

Agent George's affidavit and his testimony at trial highlighted the government's extensive procedures to ensure the integrity of the tapes. ³ Agent George stated that these procedures were followed for the Stowers investigation. It was these activities which occupied Agent George for the three days following the long holiday weekend. ⁴

Similarly, the length of the sealing delay is not a dispositive factor, but it is significant that courts have admitted evidence where the delays have been much longer than occurred in this case. See Maldonado-Rivera, 922 F.2d at 950 (tapes left unsealed for up to 118 days admissible), cert. denied, --- U.S. ----, 111 S.Ct. 2858, 115 L.Ed.2d 1026 (1991); United States v. Mora, 821 F.2d 860, 870 (1st Cir.1987) (delay of twenty to forty-one days); United States v. Diana, 605 F.2d 1307, 1315 (4th Cir.1979) (delay of thirty-nine days), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980); United States v. Lawson, 545 F.2d 557, 564-65 (7th Cir.1975) (delay of fifty-seven days), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976). In this case, the delay was fourteen days, but the tapes were actually ready for sealing in six days. Such a delay is similar to or less than that approved in other cases.

The unavailability of the issuing or supervising judge may constitute a satisfactory explanation for a sealing delay. See United States v. Fury, 554 F.2d 522, 533 (2d Cir.1977) (six-day delay reasonably explained by unavailability of issuing judge who was on vacation), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978); United States v. Poeta, 455 F.2d 117, 122 (2d Cir.) (thirteen-day delay approved where agents assumed issuing judge must seal tapes), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972). In this case, Agent George's affidavit asserts that the judge was out of town for several days after the tapes were ready for sealing. Pedroni made no attempt to offer proof to contest this statement.

The failure to seal immediately because of resource or personnel shortages has also been deemed a "satisfactory explanation." See United States v. Massino, 784 F.2d 153 (2d Cir.1986) (fifteen-day delay permitted when government diverted personnel to investigate leak threatening investigation); United States v. Rodriguez, 786 F.2d 472 (2d Cir.1986) (fourteen-day delay permitted when supervising attorney occupied with another trial); United States v. Scafidi, 564 F.2d 633, 641 (2d...