The opinion of the court was delivered by: LEISURE
Defendants have moved to suppress the fruits of oral and electronic surveillance. For the reasons contained herein, that motion is denied.
The superseding indictment in this case, filed on July 9, 1985, named eight defendants. The first count of the indictment alleged that all eight defendants engaged in a conspiracy to distribute and possess with intent to distribute a Schedule I narcotic drug controlled substance, namely, heroin, in violation of federal law. The remaining twenty-eight counts of the indictment charged certain of the named defendants with having committed various substantive narcotics offenses.
Prior to trial, defendants moved to suppress a large number of tapes on which the voices of some of the defendants may be heard. The tapes are the fruits of oral and electronic surveillance conducted pursuant to two orders issued by Hon. Irving Ben Cooper, District Judge of this Court, on October 1, 1984 and November 8, 1984. The first order authorized thirty days' surveillance of defendant Venuti's home and telephone (the "Venuti tap"), and was extended for an additional thirty day period by order of Judge Cooper on October 31, 1984. The latter order authorized electronic surveillance of conversations that took place on a telephone located in "Mr. Ciccio's" barbershop, where defendant Mannino was employed (the "Ciccio tap").
Originally, defendants advanced four theories in support of their motions to suppress. First, they argued that the tapes should be suppressed because of the government's failure to ensure immediate sealing of the tapes at the termination of surveillance, as required by the procedures set forth in 18 U.S.C. § 2518(8)(a). Next, they argued that the tapes should be suppressed because the law enforcement personnel conducting the surveillance did not properly minimize their interceptions in accordance with the dictates of 18 U.S.C. § 2518(5). Third, they argued that the applications for the interception orders were not properly authorized by the Attorney General. Finally, they argued that the unintelligibility of some of the tapes necessitated an audibility hearing in order to determine which tapes would be rendered inadmissible.
On August 27, 1985, I issued my initial ruling on defendants' motions to suppress. See United States v. Venuti, S 84 Cr. 1002 (PKL) (August 27, 1985 Memorandum and Order). In that Order, I denied defendants' motion to suppress on minimization grounds; ruled that the motion to suppress on grounds of improper authorization had been withdrawn at defendants' own request; and denied defendants' request for a pre-trial audibility hearing. See id. at 12-18.
As to defendants' motion to suppress because of the government's failure to ensure immediate sealing of the surveillance tapes, my ruling was, of necessity, more complex and less definite than its three companion rulings. First, I ruled that, as a matter of law, 18 U.S.C. § 2518 (8)(a) requires immediate sealing at the expiration of the period for which surveillance was authorized rather than upon the cessation of actual surveillance.
Accordingly, I calculated that the Government had only delayed one week (7 days) in sealing the Venuti tapes. See August 27 Memorandum and Order at 5-7. (There is no dispute in this case that the delay in sealing the Ciccio tapes was 13 days.) Second, I considered whether the government had offered a "satisfactory explanation" for the sealing delays. This question was, and remains, of great significance in this case since, under the law of the Second Circuit, the government's failure to provide a "satisfactory explanation" for the failure to seal tapes "immediately" must result in the suppression of those tapes at trial. See United States v. Gigante, 538 F.2d 502, 507 (2d Cir. 1976). At the time of my August 27 Order, the government's explanation for the sealing delays was the "heavy workload" of Daniel Perlmutter ("Perlmutter"), the Assistant United States Attorney who had been in charge of the "Venuti" investigation for the United States Attorney's Office for the Southern District of New York. See August 27 Order and Memorandum at 7-8. Upon my initial consideration of that explanation, I concluded that defendants were entitled to a pre-trial evidentiary hearing that would examine the government's proferred justification "in some detail." Id. at 12.
The pre-trial evidentiary hearing that followed took place during all or part of five trial days. In the course of the hearing, a significant amount of evidence and testimony was introduced, much of it concerning Assistant United States Attorney Perlmutter's mental and physical condition from December 1 until December 21, 1984, the time period which this Court deemed to be of greatest relevance to the suppression hearing. This evidence and testimony clearly established that during the period in which Perlmutter's statutory obligation to seal the Venuti and Ciccio tapes arose, he was overworked, emotionally distressed, physically ill, and regularly ingesting cocaine.
On September 23, 1985, at the conclusion of the pre-trial evidentiary hearing, I denied defendants' motion to suppress in a ruling from the bench. The factual and legal bases for that ruling are set forth in detail below.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, prescribes specific procedures for securing judicial authorization for the interception of wire or oral communications in criminal investigations. See United States v. Giordano, 416 U.S. 505, 507, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974). Congress enacted Title III in order "to ensure careful judicial scrutiny of the conduct of electronic surveillance and the integrity of its fruits." United States v. Gigante, 538 F.2d 502, 503 (2d Cir. 1976).
Title III specifically requires that wiretap evidence be presented for judicial sealing "immediately" upon the expiration of the order (or the extension thereof) authorizing the surveillance. See 18 U.S.C. § 2518(8)(a). The Second Circuit has held that, in the absence of a satisfactory explanation, the government's failure to comply with the immediate sealing requirements of § 2518(8)(a) with regard to any recorded wiretap evidence must result in the exclusion of the recordings at trial. United States v. Gigante, 538 F.2d at 507.
In the instant case, defendants' motion to suppress relates to a 7-day delay in sealing the Venuti tapes, and a 13-day delay in sealing the Ciccio tapes. In neither instance can it be said that there was an "immediate" sealing within the meaning of § 2518(8)(a). See United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir. 1979), cert. denied, 444 U.S. 981, 62 L. Ed. 2d 408, 100 S. Ct. 484 (1980). Accordingly, the government must provide this Court with a "satisfactory explanation" for the sealing delays, or the Venuti and Ciccio tapes will have to be suppressed. See United States v. Gigante, 538 F.2d at 507.
Originally, in these proceedings, the government claimed that the sealing delays had been caused primarily by Perlmutter's "heavy workload." As the pre-trial evidentiary hearing progressed, however, the government broadened the scope of its initial explanation. The government now contends that the sealing delays occurred because Perlmutter was in such a distressed mental and physical condition that he had lost his "capacity to focus" on his statutory obligation to seal the Venuti and Ciccio tapes. The question squarely before me on defendants' ...