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No. 05-181

In the Supreme Court of the United States

WILLIAM CONEY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

ALICE S. FISHER
Assistant Attorney General


VIJAY SHANKER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals applied the correct standard of review and legal principles in holding that the government had provided a satisfactory explanation under 18 U.S.C. 2518(8)(a) for its delay in sealing wire tap tapes.

In the Supreme Court of the United States

No. 05-181

WILLIAM CONEY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-7) is reported at 407 F.3d 871. The order of the district court denying petitioner's motion to suppress (Pet. App. 8-11) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on May 11, 2005. The petition for a writ of certiorari was filed on August 4, 2005. This jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial, petitioner was convicted in the United States District Court for the Northern District of Illinois on one count of conspiracy to possess with

intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. 846, and three counts of unlawful use of a telephone while conspiring to distribute cocaine and co caine base, in violation of 21 U.S.C. 843(b). He was sen tenced to 240 months of imprisonment, to be followed by a five-year term of supervised release. Gov't C.A. Br. 1- 3. The court of appeals affirmed the conviction, but re manded for resentencing. Pet. App. 7.

1. In August 1996, Federal Bureau of Investigation (FBI) agents began investigating a drug organization in the Englewood area of Chicago, Illinois. The investiga tion focused on a drug dealer named Charles Jackson and his associates. An informant made eight controlled undercover purchases from Jackson. The purchases were documented by surveillance photos, and in some cases, videos. Gov't C.A. Br. 3-4.

As part of the investigation, then-Chief Judge Mar vin E. Aspen of the United States District Court for the Northern District of Illinois authorized, pursuant to 18 U.S.C. 2518, the interception of wire communications to and from Jackson's cellular telephone and pager and communications to and from the phone of Robert Allen, one of Jackson's suppliers. Gov't C.A. Br. 4-5; Pet. App. 12-13. Chief Judge Aspen issued three separate surveil lance orders. The first ran from August 8, 1997, through September 7, 1997. The tapes from this wiretap were immediately submitted to and sealed by the district court. The second order authorized an extension of the surveillance of the same cellular phone from September 10, 1997, through October 10, 1997. The government submitted the tapes from this wiretap to the chief judge for sealing on October 20, 1997. Gov't C.A. Br. 16-17.

The wiretap tapes included at least nine calls in which petitioner participated in conversations relating to narcotics transactions with Jackson or Allen. Gov't C.A. Br. 3-5.

2. On January 26, 2000, a federal grand jury charged petitioner with one count of conspiring to pos sess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. 846, and three counts of unlawful use of a telephone in the commission of a conspiracy to possess and distribute mixtures containing cocaine in violation of 21 U.S.C. 843(b). On June 26, 2001, the grand jury returned a superseding indictment charging the same offenses. Gov't C.A. Br. 2-3.

On June 27, 2000, petitioner filed a motion to sup press the communications intercepted during the second wiretap. Petitioner argued that the tapes from the wire tap had not been sealed "[i]mmediately," and the gov ernment had not provided a "satisfactory explanation" for the delay in submitting the tapes for sealing as re quired by 18 U.S.C. 2518(8)(a). In response to peti tioner's motion, the government submitted affidavits from the two prosecutors coordinating the investigation, Jacqueline Ross and Kaarina Salovaara. Pet. App. 12- 16. Ross and Salovaara stated that the delay in sealing the tapes was the result of a miscommunication about the handling of responsibilities during Ross's vacation and the date on which Ross was returning to the office. When Ross returned from vacation on Friday, October 17, 1997, she learned that the tapes had not yet been sealed, and she immediately prepared the necessary sealing application and order. She was unable, however, to file the papers until Monday, October 20, 1997, be cause of the unavailability of either Chief Judge Aspen or the FBI case agent. Ibid.

On November 17, 2000, the district court denied peti tioner's motion to suppress the communications. The court found that the government's explanation for the delay was that there had been a mistake; that such a mistake can be "accepted as [a] satisfactory explana tion[]"; that the explanation was an "honest one"; and that the delay was shorter than that excused by other courts. Pet. App. 8-11.

3. The court of appeals affirmed. Pet. App. 1-7. The court first held that the ten-day delay in submitting the tapes was too long for the sealing to be considered "im mediate." Id. at 3. The question, then, was whether the government's explanation for the delay was satisfactory.

The court held that a district court's determination that an explanation in the particular context is "satisfac tory" is closely tied to factual, not legal, determinations, and thus should receive deferential review. Pet. App. 3- 4. Under such review, the court of appeals held that an explanation is satisfactory if, "in the circumstances, it dispels any reasonable suspicion of tampering." Id. at 6. Whether it does so depends on a number of factors, the court explained, including the plausibility of the expla nation, the length of the delay, the nature of the crime and the notoriety of the defendant, and the importance of the tapes to the government's case. Ibid.

In this case, the court of appeals held that because the delay was relatively short, the prosecutors' explana tions were plausible, the case was a routine drug prose cution of a defendant of no particular notoriety, the prosecutors had no special motive to tamper with the tapes or lie in their affidavits, and there was no sugges tion of a pattern in the Office of the United States Attor ney for the Northern District of Illinois, or the Justice Department generally, of failure to comply with the re quirements of Section 2518(8)(a), the explanation was satisfactory. Pet. App. 6-7.

ARGUMENT

Petitioner contends (Pet. 5-7) that this Court should grant review because the court of appeals' decision con flicts with the rulings of four other courts of appeals and contravenes this Court's decision in United States v. Ojeda Rios, 495 U.S. 257 (1990). That claim lacks merit, and further review is not warranted.

1. Except under extraordinary circumstances, see 18 U.S.C. 2518(7), electronic surveillance may be con ducted only pursuant to a court order. See also 18 U.S.C. 2518(1)-(6). Section 2518(8)(a) requires that "[t]he contents of any wire, oral, or electronic communi cation intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device" and that recording "shall be done in such a way as will protect the recording from editing or other alterations." The section further pro vides that "[i]mmediately upon the expiration of the pe riod of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions."

Section 2518(8)(a) has an explicit exclusionary rem edy for noncompliance with the sealing requirement, providing that "[t]he 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." See Ojeda Rios, 495 U.S. at 259-260. Accordingly, unless wiretap tapes are sealed immediately or the government provides a satisfactory explanation for the delay in obtaining a seal, the tapes are inadmissible.

Petitioner asserts that there is a conflict among courts of appeals over the level of deference due a dis trict court's determination that the government has proffered a "satisfactory explanation" for delay in seal ing the tapes, within the meaning of 18 U.S.C. 2518(8)(a). Petitioner claims that the majority of cir cuits decide de novo whether the government's explana tion is satisfactory, while only the Sixth and the Seventh Circuits view satisfactoriness as a factual determination to be reviewed for clear error. Pet. 5-6.

Although the Seventh Circuit perceived a conflict on this issue, see Pet. App. 3, any formal disagreement over the standard of review does not appear to have practical significance in either methodology or outcomes. Not withstanding the statements by the Seventh and Sixth Circuits that satisfactoriness is a factual question, both circuits, in practice, have closely tracked the majority position, which is to defer to the evidentiary findings of the district court and then to arrive at an independent conclusion regarding whether the explanation was satis factory within the meaning of Section 2518(8)(a).

The court of appeals in this case reasoned that, since "[t]he question what is a 'satisfactory explanation' is fact-specific * * * rather than being governable by a rule that an appellate court might lay down," deference should be given to the district court's ultimate determi nation. Pet. App. 3. But before according such defer ence, the court engaged in a detailed analysis of the term "satisfactory" under Section 2518(8)(a), holding that "an explanation is satisfactory if, in the circum stances, it dispels any reasonable suspicion of tamper ing." Id. at 6. The court went on to specify particular factors that might aid in making this determination, such as the believability of the explanation (which it deemed "critical"), the plausibility of the explanation, the length of delay, the nature of the crime (including its notoriety or the notoriety of the defendant), the pres sure on the government to obtain a conviction, and the importance of the tapes to the government's case. Ibid. The court then applied this detailed legal standard to the uncontested facts of the delay in this case, and agreed with the district court that the government's explanation was satisfactory.

This approach is not meaningfully different from that taken by the courts of appeals for the Second, Eighth, Ninth, and Tenth Circuits or, for that matter, the Sixth Circuit, where the courts have deferred to the factual findings of the district court but conducted their own examination whether, in light of those facts, the govern ment's explanation was satisfactory, taking into consid eration such factors as the length of the delay, the credi bility of the government's reasons, and the likelihood of gamesmanship. See, e.g., United States v. Cline, 349 F.3d 1276, 1284-1285 (10th Cir. 2003); United States v. Wilkinson, 53 F.3d 757, 760 (6th Cir. 1995); United States v. Pedroni, 958 F.2d 262, 265-266 (9th Cir. 1992); United States v. Sawyers, 963 F.2d 157, 159-161 (8th Cir.), cert. denied, 506 U.S. 1006 (1992); United States v. Maldonado-Rivera, 922 F.2d 934, 951 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991).

In any event, even assuming that the courts of ap peals apply varying standards of review, this case does not present an appropriate vehicle for addressing the issue. Under any standard of review, the delay here was excusable. See Ojeda Rios, 495 U.S. at 265 (holding that the satisfactory explanation standard requires the gov ernment to explain why delay was excusable). The delay was short, there was no reason to believe it was tactical, and there was no suggestion of tampering. See Cline, 349 F.3d at 1284 ("there [was] no evidence of bad faith and no indication that the recordings were tampered with or that there was any tactical advantage gained by" a one-week delay); Wilkinson, 53 F.3d at 760 (where there was no basis for inferring any prejudice to defen dant, no evidence of tampering, and no indication that 15-day delay in sealing tape was either a deliberate flouting of the statutory requirement or an effort to gain tactical advantage, explanation was satisfactory); Maldonado-Rivera, 922 F.2d at 950 ("In general, expla nations have been ruled satisfactory where the govern ment advanced a bona fide reason, there was no reason to believe there was any deliberate flouting of the Title III requirements, no reason to doubt the tapes' integ rity, and no basis for inferring any other prejudice to the defendants.").

There is also no indication that the standard of re view has any significant bearing on the outcome of the decided cases. See Pedroni, 958 F.2d at 265 (explanation was satisfactory where "(1) integrity of the tapes main tained through special procedures; (2) total delay of only fourteen days; (3) tapes were ready for sealing in six days (and in three non-holiday work days); (4) delay due to heavy work load of responsible FBI agent; (5) part of delay due to judge's unavailability and decision when to schedule hearing"); United States v. Maxwell, 25 F.3d 1389, 1394 (8th Cir.) ("Intervening weekends, holidays, and the unavailability of the issuing judge are satisfac tory explanations for slight delays in presenting wiretap recordings for sealing."), cert. denied, 513 U.S. 1031 (1994); United States v. Ardito, 782 F.2d 358, 362-363 (2d Cir.) (two-day intervening holiday, unavailability of issuing judge, and need to prepare paperwork provided adequate explanation for five-day delay), cert. denied, 476 U.S. 1160 (1986). In the absence of indications that the different articulations of the standard of review are producing different results, this Court's review is not warranted.

2. Petitioner also argues (Pet. 7) that the court of appeals' decision conflicts with this Court's ruling in Ojeda Rios by permitting proof that tampering has not occurred to substitute for a satisfactory explanation for a delay in sealing. This argument, too, lacks merit.

This Court, in Ojeda Rios, held that the "'satisfac tory explanation' language in § 2518(8)(a) must be un derstood to require that the Government explain not only why a delay occurred but also why it is excusable." 495 U.S. at 265. The court of appeals here applied that standard, considering carefully the government's expla nation before excusing the delay. Pet. App. 7.

The court of appeals' analysis does not conflict with this Court's statement in Ojeda Rios that "proof of nontampering" is not a "substitute for a satisfactory ex planation." 495 U.S. at 264-265. Ojeda Rios did not sug gest that nontampering is irrelevant to the analysis. Indeed, this Court was clear that the central function of the sealing requirement is to guard against tampering, stating:

The primary thrust of § 2518(8)(a) and a congressio nal purpose embodied in Title III in general, is to ensure the reliability and integrity of evidence ob tained by means of electronic surveillance. The pres ence or absence of a seal does not in itself establish the integrity of electronic surveillance tapes. Rather, the seal is a means of ensuring that subsequent to its placement on a tape, the Government has no oppor tunity to tamper with, alter, or edit the conversations that have been recorded. It is clear to us that Con gress viewed the sealing requirement as important precisely because it limits the Government's opportu nity to alter the recordings.

Id. at 263 (citations omitted) (citing S. Rep. No. 1097, 90th Cong., 2d Sess. 105 (1968)). Nevertheless, Ojeda Rios made clear that non-tampering is not sufficient to satisfy Section 2518(8)(a)'s "satisfactory explanation" requirement, and that the government must also estab lish "good cause for the sealing delays." Id. at 265-266.

The court of appeals did not equate proof that tam pering did not occur with proof of a satisfactory explana tion. In observing that "an explanation is satisfactory if, in the circumstances, it dispels any reasonable suspicion of tampering," Pet. App. 6, the court of appeals was ex plaining why it had rejected petitioner's argument that an explanation that "reveals that the delay was the re sult of carelessness" is per se inadequate. Id. at 5. The court found such a "strict" rule to be excessive in light of the purpose of the statute, which is to minimize the risk of tampering. Id. at 5-6.

But the court went on to make clear that the govern ment's overall conduct had to be evaluated in order to determine whether its explanation was satisfactory, and nowhere suggested that proof of nontampering alone would satisfy the government's burden or substitute for a satisfactory explanation. Thus, the court held that whether an explanation is satisfactory depends on sev eral factors, including the plausibility of the explanation, the length of the delay, the nature of the crime and the notoriety of the defendant, and the importance of the tapes to the government's case. Pet. App. 6. The court of appeals' approach, therefore, does not conflict with Ojeda Rios, in which this Court examined whether the delays at issue "were the result of a good-faith, objec tively reasonable misunderstanding." 495 U.S. at 265.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

ALICE S. FISHER
Assistant Attorney General


VIJAY SHANKER
Attorney

OCTOBER 2005