Appeal from an order of the United States District Court for the District of Connecticut, T. Emmet Clarie, J., permitting the government to disclose Title III materials in briefs and memoranda.
Oakes, Chief Judge, Lumbard and Feinberg, Circuit Judges.
Elias Castro-Ramos and Isaac Camacho-Negron appeal from an order of the United States District Court for the District of Connecticut, T. Emmet Clarie, J., filed November 3, 1988, allowing the government to use previously sealed, intercepted conversations in publicly filed briefs and memoranda as long as the conversations do not involve persons who are not parties to or witnesses in the proceedings below. For the reasons given below, we affirm, with a modification of the order.
This appeal grows out of the indictment and arrest of nineteen individuals in August 1985 for crimes in connection with an alleged armed robbery of $7.6 million of a Wells Fargo depot in West Hartford, Connecticut in September 1983.
Prior to the arrests, the FBI commenced electronic surveillance of the suspects and continued that surveillance at various locations, including Puerto Rico and Boston, until August 1985. In April 1986, after their arrest, defendants attempted to suppress over 1,100 of the tapes, claiming that they were not sealed in accordance with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. ("Title III"). The district court granted the motions to suppress with respect to over 375 tapes and denied the motions with respect to the remaining tapes. The government appealed from that order. That appeal was heard by this panel along with this appeal and is presently under consideration. United States v. Rios, 875 F.2d 17 (2d Cir. argued 1989).
In September 1988, after the suppression order, the government attempted to describe the role of one of appellants' co-defendants, Luz Berrios Berrios, at a guilty plea hearing concerning that defendant's sentence by repeating some of the unsuppressed tape conversations, all of which were under seal. The defendant objected on the ground that the tapes had not been unsealed and could not be referred to in open court.
The next day, the government moved the district court for an order unsealing all unsuppressed surveillance evidence in connection with this case in order to facilitate the disclosure of evidence at trial. The court granted this motion, holding that all of the unsuppressed tapes "shall be accessible and useable in this case" by any of the government or defense attorneys "for all purposes enumerated in 18 U.S.C. Section 2517(2) and (3)." In addition, the district court held that "all electronic surveillance tape recordings and evidence derived therefrom which have not been suppressed may be included in any legal briefs or memoranda which may be submitted to this Court by any party."
Thereafter, defendants moved for reconsideration, arguing that the district court's ruling, in so far as it allowed electronic surveillance materials to be used in briefs and memoranda, violated defendants' right to privacy and right to a fair trial. In response to this motion, the district court narrowed its prior order as follows:
if any party files a legal brief or memorandum which includes quotations from tape recorded conversations involving persons who are not parties to or witnesses in the above-captioned lawsuit, any such quotations shall be filed as appendices under seal.
Dissatisfied with this amended order, appellants sought in this court a stay of the district court's order pending this appeal. The motion was granted on November 29, 1988. This expedited appeal followed.