US v. Gallagher, Crim. No. 86-340.
| Decision Date | 05 December 1990 |
| Docket Number | Crim. No. 86-340. |
| Citation | 751 F. Supp. 481 |
| Parties | UNITED STATES of America, v. Anthony GALLAGHER, Donald Carson, Defendants. |
| Court | U.S. District Court — District of New Jersey |
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Michael Chertoff, U.S. Atty. by Melvin Kracov, Asst. U.S. Atty., Newark, for the Government.
Edward A. Hartnett, Robinson, St. John & Wayne, Newark, N.J., for defendant Anthony Gallagher.
Fredric J. Gross, Mount Ephraim, N.J., for defendant Donald Carson.
Defendants, Anthony Gallagher and Donald Carson, were convicted of conspiracy in violation of 18 U.S.C. § 1962(d) in conducting the affairs of the "John DiGilio Group" through a pattern of racketeering manifested by the payment of money by United Terminals, Inc., a stevedoring company, and its receipt by Carson, an official of the International Longshoremen's Association ("ILA") in violation of the Taft-Hartley Act, 29 U.S.C. § 186. They were also convicted of conspiracy to extort money from United Terminals, Inc., in violation of the Hobbs Act, 18 U.S.C. § 1951. During the trial of the case the government introduced extensive electronic surveillance evidence.
Prior to trial Gallagher and Carson moved to suppress the electronic surveillance evidence. One of the grounds of their motion was that the government had not complied with the sealing requirements of 18 U.S.C. § 2518(8)(a) and had failed to provide a satisfactory explanation for its non-compliance. There was no evidence that the physical integrity of the wiretap tapes had been compromised, and consequently I denied the suppression motion, relying on the Third Circuit opinion in United States v. Falcone, 505 F.2d 478 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975).
The Third Circuit affirmed the judgment of conviction, 870 F.2d 652, (1989) and Gallagher filed a petition for a writ of certiorari in the United States Supreme Court. On April 30, 1990 the Supreme Court decided United States v. Rios, ___ U.S. ___, 110 S.Ct. 1845, 109 L.Ed.2d 224 (1990) in which it rejected the Third Circuit's interpretation of 18 U.S.C. § 2518(8)(a). Thereafter, the Supreme Court vacated the Third Circuit's judgment affirming Gallagher's conviction and remanded the case for further consideration in light of Rios, ___ U.S. ___, 110 S.Ct. 2162, 109 L.Ed.2d 492 (1990).
Carson, who had not filed a petition for a writ of certiorari following the Third Circuit's affirmance of his conviction, moved to recall the Third Circuit's mandate and for reconsideration.
The pertinent provision of § 2518(8)(a) requires that "immediately" upon the expiration of an order authorizing surveillance (or extensions thereof), the recordings shall be made available to the judge who issued the order "and sealed under his direction." At issue in Rios was the interpretation of the language of the statute which provides:
"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."
18 U.S.C. § 2518(8)(a).
The Supreme Court concluded "that the `satisfactory explanation' language in § 2518(8)(a) must be understood to require that the government explain not only why a delay occurred but also why it is excusable." 110 S.Ct. at 1850.
On remand before the Third Circuit the government had no alternative but to concede that I had not applied the legal standard set forth in Rios when I rejected Gallagher's and Carson's contention that the electronic surveillance evidence should be suppressed because of the government's failure to seal the tapes immediately. The government urged that the Third Circuit remand the case to this court for fact finding on the issue of whether there was a satisfactory explanation for the delays in sealing the tapes. 909 F.2d 1478 (1990). Gallagher urged that the government should not be permitted to offer explanations additional to or different from those given at the suppression hearing and that since the adequacy of the government's explanation is a question of law there was no reason to remand to the district court.
The Third Circuit granted Carson's application to recall the mandate to this court and treated him in the same manner as it treated Gallagher. The Third Circuit 909 F.2d 1477 (1990) remanded the case to this court to consider (i) whether the government should be permitted to offer explanations additional to or different from those it gave at the suppression hearing and (ii) whether in the light of Rios the government has offered a satisfactory explanation for the delay in sealing the tapes.
On October 12 and 19, 1990 a hearing was held. Gallagher and Carson objected to the government introducing evidence to explain the sealing delays. Without deciding whether such evidence could be considered in connection with the satisfactory explanation question, I admitted it. I did this for two reasons. First, even if I ultimately conclude that the evidence could not be considered, there would be a complete record on the likely appeal of my decision. Second, the nature of the evidence might determine whether it should be considered, and at the very least, presentation of the evidence at the hearing could serve the function of a proffer.
Gallagher and Carson contend that the government cannot be permitted to introduce evidence at this stage of the proceedings to explain why the surveillance tapes were not sealed "immediately." Relying on Rios, they argue: (Gallagher Brief at 12, 13).
The government notes a difference between Rios and the present case. Rios arose in the Second Circuit which had rejected the Falcone rule and which required that the government provide a satisfactory explanation if it wished to offer the tapes in evidence. Of necessity the government in that case had to present evidence at the suppression hearing setting forth its satisfactory explanation. The government further notes that in the present case, relying on the Third Circuit Falcone rule, it was under no compulsion to explicate and prove its satisfactory explanation at the suppression hearing, because it could defeat the motion simply by establishing that the physical integrity of the tapes had not been compromised.
After Gallagher and Carson raised their objection to an evidentiary hearing here, the Third Circuit had occasion to rule on the question in United States v. Vastola, 915 F.2d 865 (3d Cir.1990). There the defendants and the government advanced arguments similar to those advanced here. The Court stated that "we do not consider this difference between the two cases Rios and Vastola to be significant on this issue of whether the government should now be able to explain the delay in the district court." 915 F.2d at 876. However, the Court also stated that, "although we do not at this time accept the government's explanation for the delay, we find that its failure in the district court to offer evidence concerning the circumstances of the sealing delay should not necessarily now foreclose it from offering such evidence before the district court." Id at 876.
Commenting further on the question of permitting the government to offer additional evidence, the Court stated:
In this case, while it is possible that the government offered no explanation for the delay because it had none, it is also possible that, acting in reasonable reliance on Falcone, it assumed that it could defeat the suppression motion by demonstrating the integrity of the tapes and thus did not find it necessary to introduce evidence on this point. Accordingly, we conclude that the district court should be entitled to exercise its discretion to decide whether the government should now be permitted, under Rios, to offer an explanation for its violation of the sealing requirement. It seems to us that this threshold determination should be made by the district court rather than by us as the nature of the determination is similar to that on a ruling on a motion by the government to reopen, traditionally a discretionary matter for the district court. See United States v. Blankenship, 775 F.2d 735, 740-41 (6th Cir.1985).
In Blankenship the district court, without ruling on defendant's motion for a judgment of acquittal after the close of the government's case, permitted the government, after resting, to reopen its case in chief in order to introduce evidence establishing an essential element of the offense charged. The Sixth Circuit Court of Appeals ruled that the district court did not abuse its discretion. It noted the factors which the district court was required to consider when exercising its discretion: (i) the timeliness of the motion, (ii) the character of the testimony and the effect of granting the motion, (iii) the reason for failing to present the evidence during the party's case in chief and (iv) the relevance, admissibility, technical adequacy, and helpfulness to the jury in ascertaining the guilt or innocence of the accused. Further, the Court observed that ...
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U.S. v. Carson
...909 F.2d 1477 (3d Cir.1990). On November 21, 1990, the district court denied Carson's motion to suppress the tapes. United States v. Gallagher, 751 F.Supp. 481 (D.N.J.1990). Carson appealed to the Third Circuit, which, on July 9, 1992 issued a decision ordering the suppression of some of th......
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U.S. v. Vastola
...its proffered reason was the actual reason for the delay. Vastola II, 915 F.2d at 876. The district court relied on United States v. Gallagher, 751 F.Supp. 481 (D.N.J.1990), which considered this issue under similar circumstances. The court noted that the Gallagher court concluded that the ......
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US v. Vastola, Crim. A. No. 86-301(SSB).
...reopen, citing United States v. Blankenship, 775 F.2d 735, 740-41 (6th Cir.1985). Vastola III, 915 F.2d at 876. In United States v. Gallagher, 751 F.Supp. 481 (D.N.J.1990), the court had the opportunity to decide whether or not it should exercise its discretion to permit the government to p......
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