United States v. Coney, William ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3361
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM CONEY,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 99 CR 945—James B. Zagel, Judge.
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ARGUED FEBRUARY 25, 2005—DECIDED MAY 11, 2005
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Before BAUER, POSNER, and RIPPLE, Circuit Judges.
POSNER, Circuit Judge. The defendant was convicted by a
jury of federal drug offenses and sentenced to 240 months
in prison. The evidence that the government presented at
trial included recordings of telephone calls intercepted
pursuant to orders issued by the chief judge of the district
court under Title III, the federal wiretap statute, 18 U.S.C.
ch. 119. The contents of the intercept “shall, if possible” (it
was possible here), “be recorded.” 18 U.S.C. § 2518(8)(a).
“Immediately upon the expiration of the period [covered by
2 No. 02-3361
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. Id.The purpose of these provisions is to prevent the govern-
ment from editing or otherwise tampering with the record-
ings. United States v. Ojeda Rios, 495 U.S. 257, 263 (1990);
United States v. Jackson, 207 F.3d 910, 915-18 (7th Cir.),
vacated in part on other grounds, 531 U.S. 953 (2000); United
States v. Angelini, 565 F.2d 469, 471 (7th Cir. 1977); United
States v. Gomez, 67 F.3d 1515, 1524 (10th Cir. 1995).
There were two intercept orders. The intercepts made pur-
suant to the first order were duly tape recorded and the
tapes were immediately submitted to and sealed by the
chief judge. Their admissibility is not questioned. The ques-
tion is the admissibility of the tapes made pursuant to the
second intercept order (which was actually an extension of
the first, but nothing turns on that detail).
The second order expired on October 10, 1997, but the tapes
made pursuant to it were not submitted to the chief judge
and sealed until the 20th. The government points out that
only five days in this ten-day period were business days,
but that is irrelevant, since the prosecutors have access to
their offices even when the building in which their offices
are located is closed. During the ten days, the tapes were
sitting in an evidence bag, readily accessible to anyone in
the office in which the bag was stored. The bag was closed,
but it was not locked or sealed, or in a safe or, so far as
appears, in any other locked container. 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—we cannot find a case that discusses
the issue—that the relevant period for assessing whether the
No. 02-3361 3
statute’s requirement of “immediate” sealing was violated
is the full ten days, as assumed in United States v. Cline, 349
F.3d 1276, 1283-84 (10th Cir. 2003), and United States v.
McGuire, 307 F.3d 1192, 1202-03 (9th Cir. 2002).
Ten days is too long to be thought “immediate.” “The
term ‘[i]mmediately’ means that the tapes should be sealed
either as soon as practical after the surveillance ends or as
soon as practical after the final extension order expires.”
United States v. Williams, 124 F.3d 411, 429 (3d Cir. 1997).
That shouldn’t require more than a couple of days at most.
United States v. Wilkinson, 53 F.3d 757, 759-60 (6th Cir. 1995);
United States v. Wong, 40 F.3d 1347, 1375 (2d Cir. 1994);
United States v. Pedroni, 958 F.2d 262, 265 (9th Cir. 1992). So
the second set of tapes was admissible only if the govern-
ment had, as the district judge presiding at the defendant’s
trial ruled, a satisfactory explanation for the delay in sub-
mitting the tapes to the chief judge for sealing.
But is that a judgment to be made by this court de novo,
that is, without according any deference to the district
court’s decision? Or should we defer, and therefore reverse
only if we think it clear that the decision was wrong? The
courts to have addressed the issue have split two to one in
favor of de novo review, compare United States v. Sawyers,
963 F.2d 157, 159 (8th Cir. 1992), and United States v.
Maldonado-Rivera, 922 F.2d 934, 949-50 (2d Cir. 1990), with
United States v. Wilkinson, supra, 53 F.3d at 760, but none of
the cases offers a reason for its conclusion. We side with the
minority. The question what is a “satisfactory explanation”
is fact-specific, as we are about to see, rather than being
governable by a rule that an appellate court might lay
down. The application of a broad standard such as neg-
ligence or possession, or in this case satisfactoriness, to
the specific facts of a case is usually and we think rightly
treated for purposes of appellate review as a factual rather
4 No. 02-3361
than a legal determination. Union Planters Bank, N.A. v.
Connors, 283 F.3d 896, 899 (7th Cir. 2002) (“satisfactory”);
Mathews v. Sears Pension Plan, 144 F.3d 461, 468 (7th Cir.
1998) (negligence); United States v. Wyatt, 102 F.3d 241, 246-48
(7th Cir. 1996) (possession); Autocephalous Greek-Orthodox
Church v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d 278,
289 (7th Cir. 1990) (due diligence); Harrison v. United States,
284 F.3d 293, 297 (1st Cir. 2002) (negligence); Catawba Indian
Tribe v. South Carolina, 978 F.2d 1334, 1339 (4th Cir. 1992) (en
banc) (possession).
Two assistant U.S. attorneys had handled the phase of the
criminal investigation that involved the interceptions. One
of them, Ross, was on vacation on October 10, returning on
the 17th. She stated in an affidavit (below) that she had
expected the other assistant U.S. attorney working on the
case, Salovaara, to submit the tapes to the chief judge
immediately after the expiration of the period of the in-
tercept on October 10. Salovaara failed to do this, however,
as Ross learned when she returned to work on the 17th.
Ross prepared the sealing application that same day, but
according to her affidavit was unable, because of scheduling
problems involving either the chief district judge or the
FBI’s case agent, to submit the application and the tapes
until the 20th, and they were sealed that day.
The possibility of a statutory violation as a result of the
delay in the sealing of the tapes did not surface until almost
three years later, when the defendant moved to suppress the
tapes. Ross and Salovaara submitted affidavits. Neither had
a clear recollection of the episode. Each said she had
thought the other would take care of the matter, though
Salovaara was notably vague in her recollection. She did
add that she might have believed erroneously that Ross was
returning to work on the 13th rather than the 17th, but she
wasn’t sure.
No. 02-3361 5
The defendant argues that an explanation for a delay in
sealing that does not establish a good reason for the de-
lay—that instead reveals that the delay was the result of
carelessness, as in this case—can never be deemed satisfac-
tory. There are hints of such a position in some cases, United
States v. Ojeda Rios, supra, 495 U.S. at 265; United States v.
Jackson, supra, 207 F.3d at 916; United States v. Quintero, 38
F.3d 1317, 1328-30 (3d Cir. 1994), and in the insistence in all
cases that to be satisfactory the explanation must be “ob-
jectively reasonable.” United States v. Ojeda Rios, supra, 495
U.S. at 265-67; United States v. Jackson, supra, 207 F.3d at 916;
United States v. Williams, supra, 124 F.3d at 429; United States
v. Wilkinson, supra, 53 F.3d at 760; United States v. Carson, 969
F.2d 1480, 1487 (3d Cir. 1992). So strict a rule would, by
increasing the penalty for careless delay, encourage greater
care and thus better compliance with the goal of the statute,
which is to minimize the likelihood of tampering with elec-
tronic evidence. But the rule would be too strict and is not
compelled by the language or purpose of the statute.
The term “satisfactory explanation” is neither self-defining
nor defined in the statute. As a matter of semantics it could
just mean believable or it could, as the defendant argues,
mean that the explanation established that the delay had
been justifiable. 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
6 No. 02-3361
pressure on the government to obtain a conviction; and also
the importance of the tapes to the government’s case.
Suppose the sealing of the tapes had been delayed for
months, the explanation offered for the delay 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. The explanation would
be unsatisfactory. But 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, and the fact that their affidavits are vague is readily
accounted for by the lapse of time between the incident and
the making of the affidavits, rather than being a sign of
evasiveness. The case was a routine drug prosecution of a
defendant of no particular notoriety and there is nothing to
suggest that either of the assistant U.S. attorneys would
have had a motive for jeopardizing their careers by tamper-
ing with the tapes or lying in their affidavits. The assistant
U.S. attorneys were aware of their statutory duty and had
established a procedure for complying with it. There is no
suggestion of a pattern, either in the Office of the U.S.
Attorney for the Northern District of Illinois or in the Justice
Department generally, of failure to comply with the require-
ment of immediate judicial sealing of tapes of Title III
intercepts. Indeed, we have found no recent cases in which
the Department was found to have tampered with tapes of
Title III intercepts.
Relative to the statutory purpose, we conclude, the ex-
planation offered for the lapse was satisfactory, and so the
district 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. Cf. Pioneer Investment
No. 02-3361 7
Services Co. v. Brunswick Associates Limited Partnership, 507
U.S. 380, 394-95 (1993). But for future reference we note that
the government would be in a stronger position if, back in
1997, the assistant U.S. attorneys had memorialized the
circumstances giving rise to the delay in the sealing of the
tapes.
The only other issue—and it isn’t really an issue—concerns
the sentence. The sentence was imposed before the Supreme
Court’s decision in the Booker case, and the government
concedes that in light of that decision the sentence violates
the Sixth Amendment. Because the district judge indicated
that if his hands weren’t tied by the federal sentencing
guidelines he would have given the defendant a shorter
sentence, we remand for resentencing. See United States v.
Paladino, 401 F.3d 471, 482 (7th Cir. 2005).
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-11-05