United States v. Liu

203 F. App'x 17

Opinions

MEMORANDUM

**

The United States appeals the district court’s order suppressing evidence obtained from the wiretaps of phones belonging to defendants Paul Cho Liu and Kien Vay Luong. Under 18 U.S.C. § 2518(8)(a) the government was required to present the tapes containing the wiretap evidence for sealing “immediately upon the expiration of the period of the order.”

The district court suppressed these tapes because they were not presented for sealing until 60 days after the period for which the wiretaps were authorized had expired. We affirm the district court’s order, because presentation for sealing was late and the government offered no “satisfactory explanation,” as required by the express terms of the statute, to excuse the delay. See United States v. Ojeda Rios, 495 U.S. 257, 265, 110 S.Ct. 1845, 109 L.Ed.2d 224 (1990).

This case arises under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510 et seq. The controlling section of the statute, 18 U.S.C. § 2518(8)(a), sets forth the procedures for intercepting wire, oral, or electronic communications. Section 2518(8)(a) provides in relevant part:

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 direction.

The statute also contains an explicit exclusionary rule for failure to comply with the sealing requirement:

The presence of the seal provided for by this section, 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.

The tapes concerning us here were recorded pursuant to Wiretap Order “3” that issued on January 30, 2001, and expired on March 1, 2001. The next wiretap order, Order “4” issued March 22, 2001, and expired April 21, 2001. It tapped phones belonging to different individuals than those authorized under Order “3.”

Both the tapes recorded pursuant to Order “3” and those recorded pursuant to Order “4” were sealed on April 30, 2001, a few days after the expiration of the fourth order, but sixty days after the expiration of Order “3.” The Order “3” tapes were suppressed because they were not timely sealed.

The issue before us is whether there was a “satisfactory explanation” provided for the delay in sealing. At the evidentia-ry hearing on the motion to suppress, the agent testified that he believed that the Order “3” tapes could be sealed at the end of the investigation, i.e., after the expiration of Order “4.” In 1990, however, ten years before this investigation, the Supreme Court held that such an interpretation of the law was incorrect. Ojeda Rios, 495 U.S. at 266-67, 110 S.Ct. 1845. The agent’s misunderstanding of by now clearly established law cannot constitute a satisfactory explanation for the delay.

In Ojeda Rios, on appeal, the government offered as an explanation for its delay in sealing tapes from a wiretap investigation its belief that the statutory sealing requirement only applied once there was a meaningful break in the investigation as a whole. The Supreme Court found that the government’s interpretation of the law was incorrect. Ojeda Rios, 495 U.S. at 266, 110 S.Ct. 1845. However, because two prior Second Circuit cases gave plausible support to the government’s position, the Supreme Court held that, under the circumstances, it was “objectively reasonable” and could constitute a “satisfactory explanation.” Id. at 266-67, 110 S.Ct. 1845. The Court “remanded for a determination whether the Government’s explanation to the District Court substantially corresponds to the explanation it now advances.” Id. at 267, 110 S.Ct. 1845. Nonetheless, in 1990, the United States Supreme Court held that the government was incorrect in its view that it could wiretap multiple phone lines and multiple parties as part of a ongoing criminal investigation without sealing at the end of each wiretap or extension thereof. Id. at 266, 110 S.Ct. 1845.

In this case, unlike the situation in United States v. Hermanek, 289 F.3d 1076 (9th Cir.2002), the agent could not reasonably have believed that the wiretaps pursuant to Order “4” were extensions of the taps pursuant to Order “3.” Order “4” pertained to different phones owned by different individuals.

The order of the district court must be AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.