U.S. v. Vazquez

• Decision Date: 24 August 1979
• Docket Number: 706 and 707,Nos. 678,695,D,694,s. 678
• Citation: 605 F.2d 1269
• Parties: UNITED STATES of America, Appellee, v. Antonio Cruz VAZQUEZ, Benito Luis Cortina, Antonio Gonzalez, Andres Rene Rappard, and Jose De La Fe-Quintas, Appellants. ockets 78-1366, 78-1370, 78-1378, 78-1379 and 78-1398.
• Court: U.S. Court of Appeals — Second Circuit

Page 1269

605 F.2d 1269 UNITED STATES of America, Appellee,
v.
Antonio Cruz VAZQUEZ, Benito Luis Cortina, Antonio Gonzalez,
Andres Rene Rappard, and Jose De La Fe-Quintas, Appellants. Nos. 678, 694, 695, 706 and 707, Dockets 78-1366, 78-1370,
78-1378, 78-1379 and 78-1398. United States Court of Appeals,
Second Circuit. Argued Feb. 26, 1979.
Decided Aug. 24, 1979.

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Gerald L. Shargel, New York City (Graham Hughes, Fischetti & Shargel, New York City, of counsel), for defendant-appellant Vazquez.

David Breitbart, New York City, for defendant-appellant Cortina.

Lawrence S. Bader, New York City (Segal & Hundley, New York City, of counsel), for defendant-appellant Gonzalez.

Michael Young, New York City (Goldberger, Feldman & Dubin, New York City, of counsel), for defendants-appellants Rappard and De La Fe-Quintas.

Susan E. Shepard, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Harvey M. Stone, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for the United States of America.

Before FEINBERG, TIMBERS and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Antonio Cruz Vazquez, Benito Cortina, Antonio Gonzalez, Andres Rene Rappard, and Jose De La Fe-Quintas appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge. Appellant Vazquez was convicted, after a jury trial, of conspiring to distribute heroin, in violation of 21 U.S.C. § 846; possessing with intent to distribute 44 pounds of heroin, 21 U.S.C. § 841(a)(1); and conducting a continuing criminal enterprise, 21 U.S.C. § 848. Cortina, Gonzalez, Rappard and De La Fe were convicted only on the conspiracy count Cortina and Gonzalez after a jury trial, Rappard and De La Fe after guilty pleas. ¹ Each has been sentenced to a term of imprisonment and a special parole term; in addition, Vazquez and Gonzalez have been fined. ²

I. Background

The issues raised by the appeals before us do not necessitate a detailed elaboration of the complex and extensive narcotics operation

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in which appellants participated. ³ Briefly, the government presented evidence showing that, with the help of an airline employee stationed in Arizona, participants in the conspiracy imported from Mexico large quantities of heroin and exported, in exchange, large sums of cash. The evidence indicated that the heroin was then transferred from the western states to New York or New Jersey, where it was ultimately sold.

Although the government called many witnesses and introduced many exhibits, a great deal of trial time was devoted to presenting to the jury, over the objections of the defendants, the contents of various intercepted telephone conversations in which one or more of the conspirators had participated. ⁴ The federal statute governing wiretapping ⁵ both restricts the availability of this singularly intrusive investigative technique and imposes a number of obligations on those federal or state authorities who are involved in its authorization, implementation or supervision. Failure to comply with certain of the procedures specified necessitates the suppression of the evidence obtained. ⁶ Thus, in reviewing the district court's decision not to exclude the challenged evidence, we must closely examine the route by which the intercepted conversations got into court in order to determine whether the statutory pre-conditions to its admission were satisfied.

On July 5, 1977, an investigator representing the Narcotics Strike Force of the Hudson County, New Jersey, Prosecutor's Office applied to Judge Arthur J. Blake of the New Jersey Superior Court for an order authorizing the interception of certain wire communications pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act. ⁷ The investigator's supporting affidavit stated that the Prosecutor's Office had obtained information from several sources (including interviews with confidential informants, visual surveillance of suspects, and examination of telephone company records) linking the use of four New Jersey telephones with the operation of a large narcotics conspiracy controlled by appellant Vazquez. According to the affidavit, the Prosecutor's Office was of the view that electronic surveillance of four specified telephones would reveal information

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concerning the imminent shipment of a large quantity of heroin into the New York-New Jersey area. On the basis of this affidavit, the adequacy of which is discussed in part III of this opinion, Judge Blake issued an order dated July 5th, 1977, authorizing 20-day wiretaps on the four telephones, the last four digits of which are 0027, 9462, 5693, and 5699. On July 22, 1977, the New Jersey Superior Court authorized a 10-day extension of these four wiretaps, effective that day, on the basis of an affidavit that both incorporated the original July 5th affidavit and included information gathered through interceptions under the initial order. On August 1, the New Jersey court authorized a second 10-day extension of the initial order on the basis of an affidavit that again incorporated the earlier affidavits and set forth information gathered during prior interceptions. On August 11, 1977, the Prosecutor's Office sought and received a new order authorizing 20-day interceptions on the same four telephones. Again the supporting affidavit incorporated all previous affidavits and set forth new information gathered during previous interceptions.

On August 31, 1977, yet another 20-day order was issued. ⁸ Because service had been terminated on one of the four tapped telephones, number 9462, no authorization was sought for continued interception of that line. However, the affidavit submitted to the New Jersey court by the Prosecutor's Office stated that new information had been obtained indicating that telephone number 6299 was emerging as a focal point for communications between the subjects of the investigation, and authorization was sought and received for the initiation of a wiretap on this number. On September 19, a 10-day extension was sought as to three of the four phones covered by the August 31 order, ⁹ and on September 29 a second extension was authorized covering these three lines.

No further orders or extensions were sought in connection with this investigation until January 3, 1978. A 20-day order issued on that date authorized the wiretapping of three previously untapped telephone lines, numbers 3016, 6656, and 7511. On January 23 a 10-day extension order was issued authorizing the continued interception of lines 3016 and 6656. After the expiration of this extension, all wiretap activity relevant to the instant appeals ceased. All intercepted conversations had been recorded on tape; ¹⁰ the wiretaps conducted

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pursuant to the orders and extensions just enumerated generated over 200 reels of tape.

II. The Sealing of the Tapes

The argument most vigorously pressed by all five appellants, and the only one requiring extended discussion, focuses on what happened After the intercepted conversations were recorded. Appellants contend that the government should not have been permitted to rely on any of the tapes recorded during the interceptions described above because unacceptable delays preceded the judicial sealing of these tapes.

Both the federal wiretap statute and the corresponding New Jersey statute require the "immediate" judicial sealing of tapes recorded in the course of a wiretap, and under the terms of both statutes the admissibility of such tapes into evidence is conditioned upon the presence of a judicial seal or the offer of a satisfactory explanation for its absence. ¹¹ Federal and state courts have interpreted such sealing provisions to require, by implication, a satisfactory explanation even when a judicial seal is present, if such seal was not obtained "immediately." See, e. g., United States v. Ricco, 566 F.2d 433, 435 (2d Cir. 1977), Cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978); United States v. Gigante, 538 F.2d 502, 506 (2d Cir. 1976); State v. Cerbo, 78 N.J. 595, 600, 397 A.2d 671, 674 (1978). We have had occasion before to discuss the importance of the sealing provisions of the federal act.

Congress, in enacting Title III's sharply detailed restrictions on electronic surveillance, intended to "ensure careful judicial scrutiny throughout" the process of intercepting and utilization of such evidence. . . .

The immediate sealing and storage of recordings of intercepted conversations, under the supervision of a judge, is an integral part of this statutory scheme. Section 2518(8)(a) was intended to "insure that accurate records will be kept of intercepted communications". . . . Clearly all of the carefully planned strictures on the conduct of electronic surveillance . . . would be unavailing if no reliable records existed of the conversations which were, in fact, overheard.

United States v. Gigante, supra, 538 F.2d at 505 (citations omitted). Gigante held that where tapes have not been properly sealed,

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suppression is appropriate even in the absence of any showing that the tapes have been altered. The Court reasoned that to condition suppression of improperly sealed tapes on a showing of tampering would controvert the language of the statute and would vitiate the congressional purpose. But see United States v. Cohen, 530 F.2d 43, 46 (5th Cir.), Cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976); United States v. Sklaroff, 506 F.2d 837, 840 (5th Cir.), Cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975); United States v. Falcone, 505 F.2d 478, 484 (3d Cir. 1974), Cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975).

The 208 tapes here at issue were judicially sealed in three groups. On September 13, one hundred fourteen reels were sealed; on October 17, an additional twenty-one reels were sealed...