Ten-day delay does not violate wiretap statute

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The Seventh Circuit held on May 11 that the government’s failure to immediately file wiretap recordings with the judge is not grounds for suppression, where the failure was harmless, and the government’s explanation for the delay was believable.

The federal wiretap statute provides, "Immediately upon the expiration of the period [covered by the intercept order] … such recordings shall be made available to the judge issuing such order and sealed under his directions. … The presence of the seal …, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents" of the intercept. 18 U.S.C. 2518(8)(a).

Two intercept orders were issued in Illinois federal court. The intercepts made pursuant to the first order were duly tape recorded and the tapes were immediately submitted to and sealed by the chief judge.

The second order expired on Oct. 10, 1997, but the tapes made pursuant to it were not submitted to the chief judge and sealed until the Oct. 20.

William Coney was charged with federal drug offenses and moved to suppress the recordings made pursuant to the second order. The court denied the motion, and the jury found him guilty. Coney appealed his convictions, but the Seventh Circuit affirmed, in a decision by Judge Richard A. Posner.

The court first found that the relevant time period to consider is 10 actual days, not five business days, as the government contended. The court noted that prosecutors have access to their offices even when the building in which their offices are located is closed. The court reasoned, "Because such tapes are accessible on weekends and holidays by the very agents who might have the inclination and ability to tamper with them, it seems to us … that the relevant period for assessing whether the statute’s requirement of ‘immediate’ sealing was violated is the full ten days."

The court next found that 10 days is too long to meet the statute’s requirement of immediacy, stating "immediate" means "a couple of days at most."

Because the tapes weren’t filed immediately, the court turned to whether the government had a "satisfactory explanation" for the delay, and decided to review the district court’s determination with deference.

The court noted a split within the circuits on the appropriate standard of review to apply. In U.S. v. Sawyers, 963 F.2d 157, 159 (8th Cir. 1992), and U.S. v. Maldonado-Rivera, 922 F.2d 934, 949-50 (2d Cir. 1990), the circuit courts applied de novo review, but in U.S. v. Wilkinson, 53 F.3d 757, 760 (6th Cir. 1995), the court gave deference to the district court. However, none of the cases offers a reason for its conclusion.

The court sided with Wilkinson, reasoning, "The question what is a ‘satisfactory explanation’ is fact-specific …, rather than being governable by a rule that an appellate court might lay down. The application of a broad standard such as … satisfactoriness, to the specific facts of a case is usually and we think rightly treated for purposes of appellate review as a factual rather than a legal determination."

Applying deferential review, the court affirmed the district court’s holding that the government’s explanation was satisfactory.

Two assistant U.S. attorneys — Ross and Salovaara — handled the interceptions. Ross was on vacation on Oct. 10, and did not return until Oct. 17. She explained in an affidavit that she expected Salovaara to submit the tapes to the judge.

Salovaara stated in an affidavit that she thought Ross would take care of the matter, adding that she may have believed erroneously that Ross was returning on the Oct. 13, rather than Oct. 17, but she wasn’t sure.

Citing cases from other circuits, Coney argued that this explanation establishes only carelessness, rather than a good reason for the delay. Coney argued that an objectively reasonable explanation is a prerequisite to being deemed satisfactory.

The court acknowledged that such a rule would encourage greater care and better compliance with the goal of the statute — to minimize the likelihood of tampering with the evidence — but concluded that such a rule would be too strict and is not compelled by either the language or purpose of the statute.

Finding that "satisfactory" could mean either "believable" or "justifiable," the court opted for the former, reasoning, "In choosing between these possibilities we are guided by the statutory objective. We ask what should be deemed ‘satisfactory’ in the context of a statute aimed at preventing government tampering with electronic evidence. The answer is that an explanation is satisfactory if, in the circumstances, it dispels any reasonable suspicion of tampering. The believability of the explanation is critical, and depends in part simply on its plausibility: the more plausible, the more believable. The length of the delay is relevant as well, and also the nature of the crime, including its notoriety or the notoriety of the defendant, and thus the pressure on the government to obtain a conviction; and also the importance of the tapes to the government’s case."

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The court posed a hypothetical in which the sealing of the tapes was delayed for months, and the explanation offered was that the assistant U.S. attorney had accidentally dropped the tapes in a birdbath and had spent the intervening months trying to dry them out with a defective hair dryer, the defendant was the FBI’s Public Enemy Number One, and the tapes were the only evidence of his guilt.

Although the court stated that this explanation would be unsatisfactory, the court found, "the present case is remote from our hypothetical case. The delay was much shorter. The mixed-signal explanation given by the assistant U.S. attorneys is plausible."

The court noted that this was a "routine drug prosecution of a defendant of no particular notoriety," and that there is no suggestion of a pattern in the U.S. Attorney’s office of failing to comply with the wiretap statute. The court added, "Indeed, we have found no recent cases in which the Department was found to have tampered with tapes of Title III intercepts."

Accordingly, the court affirmed, stating, "The judge was correct to deny the motion to suppress. There was neglect, but it was harmless and therefore, while it was not justifiable, it was excusable."

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David Ziemer can be reached by email.