United States v. Gaetano Vastola

25 F.3d 164, 1994 WL 201753

• Court: Court of Appeals for the Third Circuit
• Decided: June 16, 1994
• Docket: 93-5529
• Status: Published

Opinions

OPINION OF THE COURT

VAN ANTWERPEN, District Judge.

Appellant Gaetano Vastóla (“Vastóla”) comes before us for the fourth time seeking to overturn his May 3, 1989 convictions for two substantive RICO offenses under 18 U.S.C. § 1962(e), a RICO conspiracy offense under 18 U.S.C. § 1962(d), and conspiracy to use extortionate means to collect an extension of credit, in violation of 18 U.S.C. § 894. Vastóla seeks suppression of certain wiretap recordings, improperly sealed under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Wiretap Act), as amended, 18 U.S.C. § 2510 et seq. Vastóla challenges the findings of the district court from the most recent remand in this case. U.S. v. Vastola, 830 F.Supp. 250 (D.N.J.1993). Specifically, Vastóla disputes the finding that the United States Attorney supervising the wiretap surveillance conducted adequate legal research or otherwise acted as a reasonably prudent attorney when she failed to seal the wiretap tapes in a timely fashion.

The history of this complex case has been well-documented in the many published opinions written in connection with this case. United States v. Vastola, 989 F.2d 1318 (3d Cir.1993) (Vastola III); United States v. Vastola, 915 F.2d 865 (3d Cir.1990) (Vastola II), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1178 (1991); United States v. Vastola, 899 F.2d 211 (3d Cir.1990) (Vastola I), vacated and remanded, 497 U.S. 1001, 110 S.Ct. 3233, 111 L.Ed.2d 744 (1990). We will discuss only the facts and procedural history relevant to our review of the most recent remand of this case to the district court.

I.

Facts and Procedural History

On May 3, 1989 the district court entered an order of judgment and commitment against Vastóla after a jury found him guilty of two substantive RICO offenses. Vastóla had been charged, along with 20 other co-defendants in a 114-count indictment filed on September 19, 1986. Vastóla was sentenced to serve a total of twenty years’ imprisonment and to pay a total fine of $70,000.

Prior to trial, Vastóla and the other defendants filed an omnibus motion that included a request for the suppression of the electronic tapes obtained from the government’s surveillance of an establishment named the Video Warehouse in West Long Branch, New Jersey (“West Long Branch tapes”), between March 15,1985 and May 31,1985. The tapes were not sealed until July 15, 1985, more than 45 days after the final interception on May 31, 1985 and 32 days after the June 13, 1985 expiration date of the order authorizing the surveillance. Defendants contended that the West Long Branch tapes should be suppressed pursuant to the Wiretap Act, 18 U.S.C. § 2518(8)(a).¹

The district court determined, in effect, that the sealing was untimely. However, the district court refused to suppress the tapes, relying on the ease of United States v. Falcone, 505 F.2d 478 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975) for the rule that suppression is warranted only where it can be shown that the physical integrity of the tapes has been compromised. Finding by clear and convincing evidence that the physical integrity of the West Long Beach tapes had not been compromised, the district court denied Vastola’s and the other defendants’ motion to suppress. United States v. Vastola, 670 F.Supp. 1244, 1282 (D.N.J.1987), aff’d in part, rev’d in part, 899 F.2d 211 (3d Cir.), vacated and remanded, 497 U.S. 1001, 110 S.Ct. 3233, 111 L.Ed.2d 744 (1990).

On appeal, we affirmed the district court’s refusal to suppress the West Long Branch tapes on the basis of Falcone. Vastola I, 899 F.2d 211 (3d Cir.1990). On June 25, 1990, the Supreme Court vacated this decision and remanded the matter for further consideration in light of the recently decided case of United States v. Ojeda Rios, 495 U.S. 257, 110 S.Ct. 1845, 109 L.Ed.2d 224 (1990). In Ojeda Rios, the Supreme Court held that a delay in sealing authorized electronic surveillance tapes requires suppression of the tapes unless the government offers a “satisfactory explanation” for the sealing delay. The court held that section 2518(8)(a) requires that the actual reason for the sealing delay be objectively reasonable at the time of the delay. Ojeda Rios, 495 U.S. at 266-267, 110 S.Ct. at 1850-1851.

On remand from the Supreme Court, this court concluded that “a sealing delay indeed occurred as the West Long Branch tapes should have been sealed either as soon as was practical after May 31, 1985, when the actual surveillance ended, or as soon as practical after June 13, 1985, when the final extension order expired.” Vastola II, 915 F.2d 865, 875 (3d Cir.1990). We then remanded to the district court to determine “whether the government should now be permitted, under Ojeda Rios, to offer an explanation for its violation of the sealing requirement.” Id. at 876. Vastola’s petition for certiorari from this decision was denied. Vastola v. United States, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1178 (1991).

On December 14, 1990 the district court conducted a hearing at which the government presented evidence concerning the reason for the sealing delay. The district court determined that “the actual reason for the sealing delay was that the Assistant United States Attorney in charge of the electronic surveillance, Diana Armenakis, and her supervisor on the case, Thomas Roth, believed that the Wiretap Act did not require the sealing until the end of the investigation.” United States v. Vastola, 772 F.Supp. 1472, 1481 (D.N.J.1991), vacated and remanded, 989 F.2d 1318 (3d Cir.1993). The court found that the government’s misunderstanding of the law had been objectively reasonable and the delay had perforce been satisfactorily explained.” Id. at 1483. Accordingly, the district court reinstated Vastola’s conviction, sentencing him to 17 years imprisonment.

On appeal from the order reinstating his conviction, we held that the district court had not abused its discretion by allowing the government to present evidence supporting its explanation for the sealing delay. Vastola III, 989 F.2d 1318, 1324-25 (3d Cir.1993). However, relying on our earlier decision in United States v. Carson, 969 F.2d 1480 (3d Cir.1992), we reversed as to the finding that the government’s explanation was objectively reasonable. Nonetheless, we remanded this case for further proceedings because, as we held in Carson, an “unreasonable mistake of law does not automatically lead to suppression.” Vastola III, 989 F.2d at 1327. In Vastóla III, we discussed the Carson holding as follows:

The Carson court explained that even though an attorney’s mistake of law is unreasonable, the government can still show a satisfactory explanation if “the attorney involved acted as a ‘reasonably prudent’ attorney would to investigate the legal question involved in a reasonably prudent manner.” 969 F.2d at 1494 ... The case [Carson ] then stands for the proposition: When a government attorney’s legal conclusion is found to be unreasonable, the explanation for the delay would still be an objectively reasonable “mistake of law” if the government can show that its attorney has adequately researched the law or has otherwise acted reasonably.

Vastola III, 989 F.2d at 1327. Since the district court did not make a determination whether Assistant United States Attorney Armenakis (“Armenakis”) acted reasonably under the circumstances, we remanded for further proceedings.

The district court addressed this narrow question of attorney conduct in its published opinion United States v. Vastola, 830 F.Supp. 250 (D.N.J.1993) (“Second Remand”). The court found that while Armenakis failed to conduct adequate research, her “reliance on the authoritative advice given by her colleagues constituted an adequate substitute for further reading of the caselaw, and her behavior was objectively reasonable under the circumstances.” Id., 830 F.Supp. at 256. Finding that the government had offered a “satisfactory explanation” for the failure to timely seal the West Long Branch tapes, the court held that the tapes were properly admitted at trial. Consequently, the court issued an order reinstating the convictions of Vastóla.

Vastóla now appeals the district court’s findings, arguing that Armenakis’ conduct was not objectively reasonable under the circumstances and that suppression of the surveillance tapes is warranted. For the reasons that follow, we affirm the findings of the district court.

II.

Standard of Review

We review the district court’s factual findings for clear error. Vastola II at 1324 (quoting U.S. v. McMillen, 917 F.2d 773, 774 (3d Cir.1990)). We exercise plenary review over the district court’s legal conclusion that the Assistant United States Attorney’s conduct was “reasonably prudent” under the circumstances. Id. at 1324.²

III.

Analysis

This Court in Vastóla III remanded to the district court on one narrow issue: Did Ar-menakis, in making an unreasonable mistake of law, nevertheless conduct herself reasonably under the circumstances? Vastola III, 989 F.2d at 1327. The answer is “yes,” if the government can show that its attorney has adequately researched the law or has otherwise acted prudently. Id. The burden of proof is on the government to make this showing. Vastola III, 989 F.2d at 1327.

The relevant facts for this analysis are few in number: Armenakis studied the statute, outlined it, read its annotations, and spoke with more experienced attorneys. Vastola III, 989 F.2d at 1327.³

The district court invoked Federal Rule of Civil Procedure 11 jurisprudence to define the “reasonably prudent attorney.” The district court cited Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir.1988) for the following Rule 11 standard:

An attorney’s actions will be considered objectively reasonable where, given the existing circumstances, she undertakes ‘“a normally competent level of legal research’ ” to support the conclusion she reaches.

Second Remand, 830 F.Supp. at 254. Under the circumstances, this standard is helpful in beginning an analysis of reasonable attorney conduct. The intended goal of Rule 11 is accountability. It “imposes on counsel a duty to look before leaping and may be seen as a litigation version of a familiar railroad crossing admonition to ‘stop, look, and listen.’” Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir.1986). In this case, we are assessing the reasonableness of Arme-nakis’ conduct and her duty to stop, look and listen while conducting a wiretap investigation.⁴

The district court found that Arme-nakis herself had not adequately researched the law. The court reasoned as follows:

Armenakis’ research, which consisted of reading and outlining the statute and reviewing the relevant annotations, was enough to give an average attorney a basic understanding of the law. However, standing alone, this limited investigation cannot be considered a normally competent level of research that a reasonably prudent attorney would undertake.

Second Remand, 830 F.Supp. at 255. We agree. Given the serious consequences which follow from the mistaken application of the Wiretap Act, i.e. suppression, a reasonable United States attorney should not be satisfied with a basic understanding of the Act and a summary review of applicable caselaw. In addition, as the district court reasoned, “the meaning of a complex statute, such as the Wiretap Act, is not always readily ascertainable from just the reading of the text; and the annotations often fail to fully reflect how caselaw has interpreted a statutory provision.” Thus, Armenakis’ research, standing alone, cannot be considered adequate. The inquiry, therefore, turns on whether Armenakis otherwise acted prudently.

The district court found that Arme-nakis acted as a reasonably prudent attorney, and based its conclusion on the “interaction between Armenakis’ own research and the authoritative confirming advice she received from other, more experienced United States Attorneys.” That is, Armenakis’ research, standing alone was inadequate. This coupled with the confirmation of her initial understanding of the law by more experienced colleagues, however, convinced the district court that Armenakis acted reasonably under the circumstances.⁵

We agree that when an attorney receives confirmation of legal theories from a number of proper sources, each consistent with the next, the attorney can act reasonably in relying on these theories in the course of legal research. The district court properly found that ArmenaMs’ limited book research was inadequate. Moreover, her conversations with other attorneys, standing alone, were also insufficient. Carson, 969 F.2d at 1495 (an attorney may not rely merely on conversations -with peers or supervisors concerning developing area of law where incorrect answer could lead to suppression of important evidence). However, we believe that the combined impact of these concurring sources created a degree of certainty (albeit minimal) which a prudent attorney could have accepted in arriving at,an appropriate procedure for sealing.

From a factual standpoint, the caselaw as it existed at the time was not inconsistent with a reasonably thorough review of the relevant annotations.⁶ When ArmenaMs conducted her legal research, no “red flags” would have appeared to warn her about the need to seal the tapes as the investigation continued but the location of the surveillance changed. Our review of the relevant annotations discloses no Third Circuit case wMch would have definitively clarified this issue, or even notified ArmenaMs of a conflict.⁷ In fact, cases from other circuits could have led her in the opposite direction.⁸

An inquiry into the reasonableness of an attorney’s legal research is necessarily fact and time specific. The court must take into account not only the particular methodology employed by the attorney, but also the complexity of the law at the time in question.⁹ ArmenaMs’ conduct is far from a model for others to follow and our ruling is, of course, limited to the facts and time frame of this case.

With its decision in Ojeda Rios, the Supreme Court significantly clarified the sealing requirements of the Wiretap Act and changed the caselaw which we use to help judge reasonable attorney behavior.¹⁰ The Court admonished: “the seal required by § 2518(8)(a) is not just any seal but a seal that has been obtained immediately upon the expiration of the underlying surveillance order.” Ojeda Rios, 495 U.S. at 262-63, 110 S.Ct. at 1849 (emphasis in original). Of additional significance is the clarification of the Wiretap Act provided by section 2518(11), added to Title III as part of the Electronic Communications Privacy Act of 1986, § 106(d)(3), Pub.L. No. 99-508, 100 Stat. 1848, 1857, reprinted in 1986 U.S.Code Cong. & Admin.News. This provision, which authorizes roving surveillance upon a showing that the suspect’s purpose is to thwart interception by changing facilities, was passed in 1986 and plainly discredits arguments based upon the so-called “extension theory.”¹¹ See Vastola II, 915 F.2d at 874.

Vastóla argues that Carson compels a different result. The district court cited to Carson for the proposition that an attorney’s reliance on the counsel of more experienced colleagues can constitute reasonable attorney conduct. See Second Remand, 830 F.Supp. at 256. In Carson, the government attorney, Robins, did not immediately seal wiretap tapes after surveillance ended because he expected the same surveillance to begin again when the subject returned from a hospital stay. Robins alleged that, like Arme-nakis, he believed at the time that sealing was not necessary until the entire investigation was completed. Robins claimed that he asked his supervisor about the sealing requirements and had (mistakenly) understood his supervisor to explain that no sealing was required until all surveillance ended. The Carson Court found that Robins’ legal conclusion regarding sealing was not objectively reasonable, but it remanded the case to the district court for consideration of whether Robins’ reliance on what he thought the supervisor told him was reasonable without any additional, independent research. The court in Carson offered the following standards regarding an attorney’s reliance on the counsel of colleagues:

Arguably, a reasonable attorney would not have risked the exclusion of the tapes, evidence important to his case, without personally checking the law relating to its admission. It is not always unreasonable for an attorney to rely on a reasoned oral opinion of a supervisor, or even that of a peer with more experience in the area of law in question. Moreover, an attorney working under another lawyer on a case could not be faulted for following instructions, as opposed to advice, from the person in charge of the case or investigation. On the other hand, we do not think that a reasonable attorney can rely on a casual conversation with a peer or supervisor concerning developing law on a complex, controversial subject if an incorrect answer is likely to preclude admission of evidence of vital importance to the case.

Carson, 969 F.2d at 1495 (emphasis added).

The district court found that, like Robins in Carson, Armenakis relied on the opinions of her more experienced colleagues in formulating her opinion. But unlike the attorney in Carson, Armenakis did more here than merely rely on these conversations.¹² Her understanding of the law was supplemented by her reading and outlining of the statute and her review of the relevant annotations at that time. Armenakis did, in fact, check the law in this case. And her reading of the law confirmed her understanding (albeit a misunderstanding) that sealing was only required at the end of the investigation. Thus, the Carson decision is authoritative but clearly distinguishable on its facts.

We recognize that the wiretap is a powerful and invasive law enforcement tool, and that the Wiretap Act was enacted to establish procedural safeguards which assure that “the interception is justified and that the information obtained thereby will not be misused.” Gelbard v. United States, 408 U.S. 41, 47, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972) (citations omitted). Nonetheless, we hold for the reasons stated that the combined effect of Armenakis’ conduct at the time in question was minimally sufficient to meet the standards of a reasonably prudent attorney.

IV.

Conclusion

For the reasons set forth above, we conclude that the order of the district court should be affirmed.

1 . Section 2518(8)(a) provides, in pertinent part:

The contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions ... The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517.

18 U.S.C. § 2518(8)(a).

2 . The Government urges a highly deferential review of all aspects of the district court's opinion in this case, not just of its findings of fact; it thus argues we should use the standard of review we use for the Rule 11 determinations of a district court. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Because this case involves a question of the legal standard of reasonable research of a government attorney in a criminal case, and not just reasonable attorney conduct in a civil context, we find the suggested standard inappropriate.

3 . These findings of fact were established by the district court during the first remand, United States v. Vastola, 772 F.Supp. 1472, 1480 (D.N.J. 1991). The district court held an evidentiary hearing in 1990, five years after the relevant conduct occurred. The district court’s findings were acknowledged by the Third Circuit in Vas-tóla III, and relied upon by the district court during the most recent remand. We are satisfied that they are not clearly erroneous.

The district court found in Second Remand that these facts provided a sufficient factual basis to decide the question of reasonable conduct. As a result, no additional evidence was taken and the district court made its rulings on these facts alone. We acknowledge that these facts are adequate for the task at hand and that further inquiry by the district court would not have produced additional relevant facts.

4 . The analogy to Rule 11 has its limits in this context. Some of the factors relevant to determining whether an attorney has made a reasonable pre-filing inquiry into the law, (e.g., whether the position taken was a good faith effort to extend or modify the law) are not particularly helpful in determining the reasonableness of a government attorney's research of the law during an ongoing criminal investigation. See e.g. Thomas v. Capital Security Services, Inc., 812 F.2d 984, 988 (5th Cir.1987); Fed.R.Civ.Proc. 11, Advisory Committee Note; Lingle, supra, 847 F.2d at 95; Schering Corp. v. Vitarine Pharmaceuticals, Inc., 889 F.2d 490, 496 (3d Cir.1989).

5 . We do not accept the district court’s finding that Roth's view was the general understanding of the office. The court inferred this from the fact that Roth was Armenakis' supervisor during the Video Warehouse surveillance, and that Roth was the most experienced of any attorney in the United States Attorney’s office in New Jersey with respect to interceptions. Second Remand, 830 F.Supp. at 256, n. 6. We do not think it necessarily follows that Armenakis spoke to other attorneys with Roth's view. Since Roth would have counselled her to promptly seal the tapes after each location, such information might have better informed Armenakis about proper procedure. App. at 25. Nonetheless, we accept the finding that she spoke to more experienced colleagues, and that they confirmed her view of the law. We think it was reasonable for Armenakis to rely on these colleagues, whether or not Roth’s view was the general understanding of the office.

6 . Just as we examined Armenakis' understanding of the law to determine whether it was objectively reasonable at the time of the delay, Ojeda Rios, 495 U.S. at 1851, 110 S.Ct. at 1851, we will also examine Armenakis' conduct at the time of the delay to determine if it was reasonably prudent attorney conduct. Cf, Schering Corp., supra, 889 F.2d at 496 ("the wisdom of hindsight is to be avoided; the attorney’s conduct must be judged by what was reasonable to believe at the time the pleading, motion, or other paper was submitted.”)

7 . Of the few Third Circuit cases appearing in the relevant portions of the Federal Digest, only the United States v. Falcone, 505 F.2d 478 (3d Cir.1974) appears to be even remotely on point. In that case, the court ruled that the tapes were not sealed in accordance with the statute. However, there was no explanation of how or why the sealing failed to accord with the statute. The rule of law in Falcone, later overturned in Ojeda Rios, was as follows:

all we hold is that where the trial court has found that the integrity of the tapes is pure, a delay in sealing the tapes is not, in and of itself, sufficient reason to suppress the evidence obtained therefrom. We hasten to add that this holding, of course, does not deprecate the importance of the sealing requirement. Certainly, it should be complied with in all respects. As this case so aptly demonstrates, compliance would have avoided considerable uncertainty and delay.

Falcone, 505 F.2d at 484. Instead of clarifying the meaning of 18 U.S.C. § 2518(8), we held that delays in sealing would not result in suppression.

8 . See e.g. United States v. Principie, 531 F.2d 1132, 1142, and n. 14 (2nd Cir.1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1173, 51 L.Ed.2d 581 (1977) (electronic surveillance order entered 16 days after a prior order regarded as an "extension” within the meaning of § 2518 because it was considered part of the same investigation of the same individuals conducting the same criminal enterprise); United States v. Scafidi, 564 F.2d 633, 641 (2nd Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978) (where intercept is on same premises and involves substantially same persons, an extension under those circumstances requires sealing only at conclusion of whole surveillance).

9 . Due to the absence of controlling Third Circuit precedent, we cannot label Armenakis’ conclusions “patently unmeritorious or frivolous.” Only when an attorney offers such an implausible view of the law, in the Rule 11 context, would she be subject to sanctions. See Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir.1988); Dura Systems, Inc. v. Rothbury Investments, Ltd., 886 F.2d 551, 556 (3d Cir.1989) (Rule 11 evaluation includes question of whether pleading was based on plausible view of the law).

10 . See Judge Easterbrook’s opinion in Mars Steel Corp. v. Continental Bank, N.A., 880 F.2d 928 (7th Cir.1989), in which he observed:

A lawyer who founds his suit on Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), has revealed all we need to know about the reasonableness of the pre-filing inquiry ... If the legal point is obscure, though, even an absurd argument may not be sanctionable, because a "reasonable" inquiry does not turn up every dusty statute and precedent. An objectively frivolous legal position supports an inference that the signer did not do a reasonable amount of research, but an inference, no matter now impressive, is no more than an inference.

Mars Steel Corp. v. Continental Bank, N.A., 880 F.2d at 932.

11 . The court in Vastóla II referred to the Electronic Communications and Privacy Act of 1986 in order to make a legal determination, based on the text of the statute, of the meaning of the Wiretap Act. Since the amending provision was not passed until after the relevant conduct by Armenakis, it is evident that by referring to section 2518(11) the court in Vastóla II was not commenting upon the reasonableness of Arme-nakis' conduct in 1985. The court in Vastóla III remanded this matter to the district court for a determination of the reasonableness of her conduct.

12 . We note that the court in Carson did not decide the question of whether attorney Robins’ reliance on what he thought his superior told him without independently checking the law might be reasonable. Thus, Carson leaves open the possibility than a mere reliance on a superi- or's understanding of the law might be reasonable in certain circumstances. Of course, in this case Armenakis conducted independent research in addition to her consultation with other, more experienced attorneys in the office.