United States v. Mora

821 F.2d 860
CourtCourt of Appeals for the First Circuit
DecidedJune 15, 1987
DocketNos. 86-1196, 86-1375 to 86-1377
StatusPublished
Cited by53 cases

This text of 821 F.2d 860 (United States v. Mora) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mora, 821 F.2d 860 (1st Cir. 1987).

Opinion

SELYA, Circuit Judge.

These appeals pose a single question— but one of some moment and of novel impression in this circuit. The issue presented centers around the consequences of the government’s failure to return and seal tape recordings of wire intercepts “immediately” as required by 18 U.S.C. § 2518(8)(a).

I

The proceedings before us arise out of a pair of related indictments handed up by a grand jury in the United States District Court for the District of Massachusetts. The first such indictment, returned in May 1985, contained six counts. Inter alia, it charged the defendant-appellant, Hector Mora, with various drug-related offenses. In a subsequent five count indictment brought the following month, Mora and the remaining defendants-appellants, Franklin Valencia, Jose Alberto Valencia, and Luis Berrio, were accused of myriad other offenses related to narcotics trafficking. Certain intercepted wire communications, the genesis of which we will describe shortly with greater exactitude, inculpated the foursome. They moved to prevent the prosecution from using the. evidentiary fruits of these overheard conversations against them. Following the district court’s refusal to suppress, see United States v. Mora, 623 F.Supp. 354 (D.Mass.1985) (Mora I), the four appellants tendered conditional guilty pleas. Fed.R.Crim.P. 11(a)(2). Each preserved his right to appeal the district court’s failure to quash the disputed evidence.1 After sen-[862]*862fences had been imposed, these appeals ensued.

Although the defendants originally contested a medley of matters pertaining to the listen-ins (e.g., the sufficiency of the warrant applications, the validity of the orders authorizing the interceptions, the alleged lack of minimization in the course of the electronic surveillance), they have now conceded these points and narrowed their focus to concentrate strictly and solely on the return and sealing of the tapes. This question stands as a common denominator of each of the appeals. See supra n. 1. We have therefore consolidated the cases, and have permitted the other three appellants to join in Mora’s brief and argument.

II

The relevant facts are set forth at some length in the district court’s opinion, Mora I, 623 F.Supp. at 355-58, and we refer the reader with a liking for detail to that re-script. We will restate only those basic facts which help to place the issue before us into balanced perspective.

In early 1985, the Massachusetts State Police (MSP) began a probe which eventually led to the appellants, among a coterie of others. After a full panoply of standard investigative techniques had been exhausted, the district attorney for Middlesex County designated an assistant, Alexander Z. Nappan, to apply to the state superior court for a warrant authorizing the interception of certain conversations over a particular telephone line. The principal target of this sortie was Juan Guillermo Valencia, a codefendant below. This individual, who allegedly trafficked in narcotics under the nomme de guerre of “GeJarno”, was said to use the designated telephone frequently. The application was prepared, approved by the state court, and an order and warrant obtained, all in pursuance of M.G.L. ch. 272, § 99. The electronic surveillance began on March 23, 1985 and continued around the clock for fifteen consecutive days.

The procedure was straightforward. The intercepted conversations were simultaneously recorded onto a reel-to-reel tape and three separate cassettes. An MSP trooper was designated as the custodian. Each day, the trooper placed the master recording in a cardboard box, closed the box, and signed it. The box was then sealed within a plastic bag. The fastened bags were kept, originally, at the listening post — which was staffed and guarded twenty-four hours a day. At the conclusion of the fifteen day cycle, the contents were removed and secured in a limited access evidence vault, equipped with an alarm system. The tapes were returned to the state superior court for judicial sealing on April 26, 1985. The warrant was returned at the same time.

A few days later, Nappan was again designated to seek an authorization to intercept certain wire communications. This time, Mora’s home telephone was the subject of the tap. The application was approved by the state judge on May 3, 1985, and an order and warrant issued on the same day. The operation began on May 7, and continued for a ten day period. The mechanics of snaring, sealing, and preserving the discussions were substantially the same as on the earlier occasion. The original recordings were not presented for judicial sealing until June 26, 1985 (along with the warrant) notwithstanding that this phase of the electronic surveillance ended with the apprehension and arrest of some eighteen suspects, including the present appellants, on May 16, 1985.

It is undisputed that, though the investigation was under the aegis of state lawmen throughout, financial support and counsel were procured early on from the federal authorities. As the second round of wiretaps built to a crescendo, a collective accord was reached to prosecute in a federal ven[863]*863ue. Thus, federal law must come into play to a meaningful extent.

Ill

The problem presented by these cases arises from the Commonwealth’s failure to achieve strict compliance with the federal laws governing such interceptions, and particularly, with the commands of 18 U.S.C. § 2518(8)(a). That statute declares in pertinent part:

The contents of any wire or oral 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 ... shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order [warrant], 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 or oral communication or evidence derived therefrom under subsection (3) of section 2517.2

18 U.S.C. § 2518(8)(a).

The government concedes that, in respect to both of these wiretaps, the recordings were not tendered to the state court for judicial sealing “[immediately upon the expiration” of the warrant, as ordained by § 2518(8)(a). And, although this further point is not conceded, we hold (as did the district court) that the measurement of any period of delay in the presentation of the fruits of intercepted communications for judicial sealing is a question of federal law in a federal criminal case, notwithstanding the fact that the communications were gathered in the first instance by state law enforcement personnel under a state court order. See United States v. Vazquez,

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Bluebook (online)
821 F.2d 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mora-ca1-1987.