Wiretap Case Analysis

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The court’s discussion of what constitutes a "satisfactory explanation" for delay in sealing wiretap recordings is remarkable in that it reads as though the issue were one of first impression, when in fact it is a significant and unexplained departure from the governing law.

The law defining a "satisfactory explanation" in the Seventh Circuit was set forth in U.S. v. Angelini, 565 F.2d 469 (7th Cir. 1977). In Angelini, the three sets of tapes at issue were not sealed until nine, 38, and 26 days after the expiration of the respective orders. Id., at 470.

Nevertheless, the court held the explanation for the delay reasonable, finding that after the tapes were made the FBI made duplicate tapes, and were transcribed by five or six full-time typists. The originals were retained in secure storage, to which only the FBI special agent in charge had access, and used for reference when the typists were unable to understand the content of conversations on the duplicates. Id., at 470-471.

Holding the delay reasonable, the court wrote, "the government was pursuing an unquestionably legitimate and important goal (transcription to facilitate the use of the tapes as evidence) in the best of faith, without any intention to circumvent the statute. Moreover, for all that appears, this task was undertaken with acceptable diligence, using a team of typists working full time, the original tapes were kept secure, no one tampered with them, and they were used for clarification only sparingly, as a last resort. No argument is made that the defendants were prejudiced in any way by the delay itself." Id., at 472.

The court declined to adopt a definition of "satisfactory explanation" for all cases, but did write, "we think it fair to say generally that a satisfactory explanation is one in which the Government shows that it acted with dispatch and all reasonable diligence to meet the sealing requirement, respectful of the letter and spirit of Title III and mindful of the constructions it has been given in the courts." Id.

The only similarity between the case at bar and Angelini is the absence of allegations of prejudice from the delay. During the delay in the case at bar, there was no important use being made of the tapes — transcription — and there was no "acceptable diligence" at work.

Although the decision in Angelini does not adopt a definition of "satisfactory explanation," it appears to require, at a minimum, that the Government act "with dispatch and reasonable diligence to meet the sealing requirement" — something clearly not present in the case at bar.

Nor does the court’s definition of "satisfactory explanation" accord with the U.S. Supreme Court’s discussion in U.S. v. Ojeda Rios, 495 US. 257 (1990).

The court wrote, "the statute requires a satisfactory explanation, not just an explanation. … To hold that proof of nontampering is a substitute for a satisfactory explanation is foreclosed by the plain words of the sealing provision (emphasis in original)." Id., at 264-265.

The decision in the case at bar is flatly contradictory to this language. The government provided nothing more than "just an explanation" and proof of nontampering, which the Supreme Court has held insufficient.

The court deliberately adopted a stricter standard than that of the Seventh Circuit in Angelini. The court wrote in a footnote, “It is also true that some Courts of Appeals have agreed with the Government [that offering to prove that tapes are authentic would be consistent with Congress’ concern about tampering] See, e.g., … [U.S. v. Angelini]. As explained above, we read sec. 2518(8)(a) differently."

The court added, "We conclude that the ‘satisfactory explanation’ language in sec. 2518(8)(a) must be understood to require that the government explain not only why a delay occurred but also why it is excusable. This approach surely is more consistent with the language an purpose of sec. 2518(8)(a)."

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The Seventh Circuit dismisses this language as mere "hints" that the government’s explanation must be objectively reasonable, and that carelessness is not. Dismissing the language as "hints" to that effect, however, is contrary to its own discussion of the issue in Angelini, and that of the U.S. Supreme Court in Ojeda Rios, which explicitly adopted an even stricter standard than in Angelini.

The court evades the holding in Ojeda Rios by positing a ridiculous hypothetical that would never happen in real life but would in the court’s view constitute an unsatisfactory explanation — the prosecutor claims that he dropped the tapes in a birdbath and spent months drying them off with a defective hairdryer.

The effect of this is that "satisfactory" means "anything that is not patently ludicrous on its face" — hardly what Congress intended, or what the Supreme Court intended in Ojeda Rios.

Defendants who lose suppression motions because of this decision should preserve the issue for potential review by the Supreme Court.

– David Ziemer

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David Ziemer can be reached by email.