U.S. v. Rodriguez, 335

• Decision Date: 25 February 1986
• Docket Number: D,No. 335,335
• Citation: 786 F.2d 472
• Parties: UNITED STATES of America, Appellant, v. Michael RODRIGUEZ, Michael Rodriguez, Jr., William Donlan, Anthony Vessichio, and Fernando Diosa, Defendants-Appellees. ocket 85-1254.
• Court: U.S. Court of Appeals — Second Circuit

Page 472

786 F.2d 472

UNITED STATES of America, Appellant, v. Michael RODRIGUEZ, Michael Rodriguez, Jr., William Donlan, Anthony Vessichio, and Fernando Diosa, Defendants-Appellees.

No. 335, Docket 85-1254.

United States Court of Appeals, Second Circuit.

Argued Oct. 22, 1985.

Decided Feb. 25, 1986.

James T. Cowdery, Asst. U.S. Atty., Bridgeport, Conn. (Alan H. Nevas, U.S. Atty. for Dist. of Connecticut, Holly B. Fitzsimmons, Asst. U.S. Atty., Bridgeport, Conn., on brief), for appellant.

Ira B. Grudberg, New Haven, Conn. (Alice S. Miskimin, New Haven, Conn., Frank Antollino, East Haven, Conn., Charles Hanken, Bridgeport, Conn., Hugh F. Keefe, New Haven, Conn., William F. Dow, III, New Haven, Conn., on brief), for defendants-appellees.

Before OAKES, NEWMAN and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

The United States of America appeals, pursuant to 18 U.S.C. Sec. 3731 (1982), from an order of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, suppressing certain tape recordings made by agents of the Drug Enforcement Agency ("DEA") pursuant to court-authorized electronic surveillance, and from an order denying the government's motion for reconsideration of the suppression order. The court ordered the suppression of the evidence on the ground that the government had failed to comply with the requirement of 18 U.S.C. Sec. 2518(8)(a) (1982) that such recordings be presented to the authorizing judge for sealing immediately upon expiration of the period of authorized surveillance. On appeal, the government argues that its reason for failing to comply with the statute was sufficient, in the absence of any prejudice to the defendants, to excuse its failure to comply. For the reasons below we vacate the orders appealed from and remand for reconsideration.

I. BACKGROUND

The pertinent events are not in substantial dispute. On August 6, 1984, the government obtained an order from the district court, Ellen Bree Burns, Judge, authorizing a wiretap on the telephone of one Betty Guevara at her residence in New Haven, Connecticut, for a period of 30 days. The wiretap was maintained until September 5, 1984, the day following the arrest of Guevara and another on narcotics charges.

Guevara, defendant Michael Rodriguez, Jr., and two others were promptly indicted on charges of conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (1982). Superseding indictments followed, charging all of the defendants before us with distributing and conspiring to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982), and using a telephone to facilitate the distribution of cocaine, in violation of 21 U.S.C. Sec. 843(b) (1982). The government gave notice that evidence obtained through the wiretap on Guevara's telephone would be used at trial.

Defendants moved to suppress the wiretap evidence, arguing, inter alia, that the statutory requirements regarding judicial sealing of the tapes had been violated. It is undisputed that although the electronic surveillance ended on September 5, and Sec. 2518(8)(a) requires that the recordings made pursuant to authorized electronic surveillance be presented to the court that issued the authorization "[i]mmediately" upon expiration of the period covered by the order, the government did not present the tapes for judicial sealing until September 19.

At the evidentiary hearing on defendants' motions, the government presented the testimony of DEA agent Barry Abbott as to the procedures he used in recording, handling, and maintaining the tapes prior to their presentation to the court. During the course of the wiretap, the taping was done on a 24-hour basis, with agents working three eight-hour shifts. Two reel-to- Abbott himself had handled only five of the 26 tapes recorded during the surveillance; the remaining 21 had been handled by DEA agent Jane Giandana. In its initial response to defendants' motions, the government did not present any evidence from Giandana as to the procedures she followed.

reel tape recorders operated simultaneously; one was deemed to produce "original" tapes and the other was deemed to produce duplicates. Abbott testified that at the beginning of each day (around midnight), the previous day's tapes were rewound and removed from the machines, and new tapes were inserted. At the DEA listening station, the "original" tape was placed in a box and the box sealed with an evidence seal; the sealed box was then put in an envelope and the envelope heat-sealed. The heat-sealed original tapes were kept in Abbott's custody until they were secured in the DEA evidence vault in Hartford, Connecticut. The original tapes remained intact in the DEA evidence vault until they were presented to Judge Burns for judicial sealing on September 19.

On the basis of Abbott's testimony, the government argued that there had been no prejudice to the defendants from the delay in presentation of the tapes to Judge Burns for sealing. Little, however, was offered to explain the delay. Abbott testified that he had been busy on several days with arrests and court proceedings and that it was his understanding that arrangements for presentation of the tapes for judicial sealing would be made by the United States Attorney's office. He testified that the Assistant United States Attorney ("AUSA") handling the case, Holly B. Fitzsimmons, had been engaged in preparing another case for trial and that eventually the presentation to Judge Burns had been made by another AUSA, Linda Lager. In its memorandum of law, the government noted that Judge Burns had been away from chambers on September 13 and 14.

In an opinion reported at 612 F.Supp. 718 (D.Conn.1985), Judge Eginton ruled that the government had not complied with the statutory requirement that presentation for judicial sealing be made "immediately" and that, on the evidence before him, the explanation for the delay was inadequate. The court noted that although Abbott had testified that Fitzsimmons had been preparing for another trial during the period of delay, the government had provided no description of her involvement with the other matter such as to suggest that she was unable to see to the presentation of the tapes for judicial sealing. Further, the court found that the fact that another AUSA eventually presented the tapes to Judge Burns indicated that the delay was avoidable regardless of Fitzsimmons's own schedule.

Judge Eginton also found that in the absence of any testimony by Giandana, who had been responsible for 21 of the 26 tapes, the evidence was insufficient to satisfy the court that most of the tapes had been adequately protected against tampering. The court concluded that, while the delay in the judicial sealing of the tapes did not prejudice defendants in their defense, such evidence as there was to suggest the probable absence of tampering and the lack of any prejudice to the defendants did "not outweigh the government's lack of diligence, and the length of the delay." Accordingly, the court suppressed the tapes.

The government moved for reconsideration of the suppression order and attempted to fill the gaps in its initial presentation. It submitted an affidavit from Giandana describing the procedures she had used in handling the tapes prior to delivering them to the DEA custodian, and an affidavit from Fitzsimmons describing the burdens of her schedule and why they had prevented her from carrying out what she understood to be tasks required prior to the presentation of the tapes for judicial sealing.

According to Giandana's affidavit, her procedures paralleled those of Abbott. She stated that she had sealed each of the original tapes upon removing it from the machine and had kept all of them locked in her desk until she delivered them to the DEA custodian. She stated that the seals Fitzsimmons stated in her affidavit that it had been her understanding that the presentation of the tapes to Judge Burns for judicial sealing had to be accompanied by a detailed final report on the wiretap. In addition, since the recorded conversations were in Spanish and no DEA translator was available, Fitzsimmons believed it necessary to submit, with the presentation of the tapes, a detailed request for authorization to disclose the contents of the tapes to a non-law-enforcement translator. Fitzsimmons stated, in essence, that these matters required some days to execute and that her time, including weekends, had been consumed by other matters described below.

were not altered or removed prior to their delivery to the custodian.

Fitzsimmons was lead attorney in Connecticut for the New England Organized Crime Drug Enforcement Task Force ("OCDETF"). Prior to August 1984, Fitzsimmons, Lager, and one other AUSA had been assigned to OCDETF; in mid-August, the third AUSA resigned on short notice, leaving Fitzsimmons and Lager to handle the cases previously assigned to all three. The departing AUSA was not replaced until mid-October. At the beginning of September, Fitzsimmons was principally engaged in preparation for trial in United States v. Zimmerli, a 20-odd-defendant case involving a narcotics conspiracy alleged to have spanned a period from 1976 to 1984. Zimmerli had a firm trial date of September 17. The DEA investigation in Zimmerli had begun some six years before the first arrests in 1983, and Fitzsimmons was required to examine a voluminous file in order to prepare the government's witnesses and documentary evidence and to extract and duplicate possible Jencks Act material. Further, as the trial date approached, several defendants agreed to plead guilty and to cooperate with the government, thereby increasing the pretrial witness preparation tasks. Responsibility for preparation of this case was that of Fitzsimmons alone; no other AUSA was assigned to assist her. In addition, Fitzsimmons had other responsibilities for presentation of matters to a soon-to-expire grand...