UNITED STATES OF AMERICA, PETITIONER V. FILIBERTO OJEDA RIOS, ET
   AL.

   No. 89-61

   In the Supreme Court of the United States

   October Term, 1989

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Second Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit

                       PARTIES TO THE PROCEEDING

   In addition to the named parties, Hilton E. Fernandez Diamante,
Jorge A. Farinacci Garcia, Elias S. Castro Ramos, Orlando Gonzalez
Claudio, Isaac Camacho Negron, Ivonne Melendez Carrion, Angel Diaz
Ruiz, and Luis A. Colon Osorio are respondents.

            TABLE OF CONTENTS
   Question Presented
   Parties to the Proceeding
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-14a) is
reported at 875 F.2d 17.  The opinion of the district court
suppressing evidence (App., infra, 17a-96a) is reported at 695 F.
Supp. 649.  The opinion of the district court on the government's
motion for reconsideration (App., infra, 15a-16a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 5, 1989.
On June 26, 1989, Justice Marshall extended the time for filing a
petition for a writ of certiorari to and including July 14, 1989.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   Section 2518 (18 U.S.C.) provides in relevant part:

                      * * * * *

         (8)(a) 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.  Custody of the recordings shall be
      wherever the judge orders.  They shall not be destroyed except
      upon an order of the issuing or denying judge and in any event
      shall be kept for ten years.  Duplicate recordings may be made
      for use or disclosure pursuant to the provisions of subsections
      (1) and (2) of section 2517 of this chapter for investigations.
      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.

         (b) Applications made and orders granted under this chapter
      shall be sealed by the judge.  Custody of the applications and
      orders shall be wherever the judge directs.  Such applications
      and orders shall be disclosed only upon a showing of good cause
      before a judge of competent jurisdiction and shall not be
      destroyed except on order of the issuing or denying judge, and
      in any event shall be kept for ten years.

                      * * * * *

         (10)(a) Any aggrieved person in any trial, hearing, or
      proceeding in or before any court, department, officer, agency,
      regulatory body, or other authority of the United States, a
      State, or a political subdivision thereof, may move to suppress
      the contents of any wire or oral communication intercepted
      pursuant to this chapter, or evidence derived therefrom, on the
      grounds that --

         (i) the communication was unlawfully intercepted;

         (ii) the order of authorization or approval under which it
      was intercepted is insufficient on its face;  or

         (iii) the interception was not made in conformity with the
      order of authorization or approval.

                          QUESTION PRESENTED

   Whether tape recordings of conversations obtained pursuant to
court-authorized electronic surveillance should be suppressed because
of a delay in the judicial sealing of the tapes, even if the tapes
that are offered into evidence are proved to be the unaltered
originals.

                               STATEMENT

   A 17-count indictment returned in the United States District Court
for the District of Connecticut charged respondents and ten others
with offenses pertaining to the September 12, 1983, robbery of the
Wells Fargo depot in West Hartford, Connecticut.  /1/ Approximately
$7.2 million was taken during the robbery.  Evidence connecting
respondents to the robbery was discovered during an investigation of
their involvement in a rocket attack on the FBI office in Hato Rey,
Puerto Rico.  The targets of the investigation, including respondents,
were members of a Puerto Rican organization known as "Los Macheteros,"
the "machete wielders." During the investigation, court-authorized
electronic surveillance was conducted at six different locations
between April 1984 and August 1985.  /2/ Following the return of the
indictment, respondents moved to suppress all the evidence obtained as
a result of the electronic surveillance.  App., infra, 17a-19a;  Gov't
C.A. Br. 4-5.

   After an eight-month suppression hearing, /3/ the district court
granted the motion to suppress with respect to conversations recorded
at two locations;  the court denied the motion in all other respects.
App., infra, 17a-96a;  Gov't C.A. Br. 3.  On the government's appeal,
the court of appeals affirmed.  App., infra, 1a-14a.

   1. On April 27, 1984, Chief Judge Perez-Gimenez of the United
States District Court for the District of Puerto Rico authorized the
FBI to intercept oral communications at the apartment of respondent
Filiberto Ojeda Rios in Levittown, Puerto Rico.  Ojeda Rios, who had
no home telephone, used three public telephones across the street from
his apartment.  Accordingly, the judge also authorized the
interception of wire communications at those telephones.  On May 11,
1984, Judge Perez-Gimenez authorized the placement of a microphone in
Ojeda Rios's automobile, a Datsun Sentra.  The orders for the Datsun
and for the Levittown apartment and the public telephones were
extended on several occasions.  Suspecting that his conversations in
Levittown were being intercepted, Ojeda Rios moved from Levittown to
the El Cortijo, Puerto Rico, residence of respondent Luis Colon Osorio
in July 1984.  In light of that move, the FBI ceased monitoring at
Levittown on July 9, 1984, although the final extension for the
Levittown apartment and telephones did not expire until July 23, 1984.
 On July 27, the government received authorization to intercept the
telephones and to place a microphone in Ojeda Rios's new residence in
El Cortijo.  The final extension for the El Cortijo order expired on
September 24, 1984.  App., infra, 75a.  The final extension for the
surveillance of Ojeda Rios's Datsun expired on October 10, 1984.  The
Levittown, El Cortijo, and Datsun tapes were judicially sealed on
October 13, 1984.  App., infra, 19a-21a, 69a n.8;  Gov't C.A. Br.
24-25.

   On November 1, 1984, the FBI received authorization to intercept
conversations at the Vega Baja residence of defendants Juan Segarra
Palmer and Luz Berrios Berrios.  The court extended that order each
month for seven months;  the last extension expired on May 30, 1985.
On January 18, 1985, authorization was also given to intercept
conversations at two public telephones near the Vega Baja residence.
That order expired on February 17, 1985.  The government applied for
an extension of the January order on March 1, 1985, and the new order
issued on that date.  After two more extensions, the final Vega Baja
extension expired on May 30, 1985.  The tapes of all conversations
recorded at the Vega Baja residence and the nearby public telephones
were judicially sealed on June 15, 1985.  App., infra, 21a, 79a-80a;
Gov't C.A. Br. 9-10.

   2. In their motions to suppress all the conversations intercepted
during the investigation, respondents alleged that the tapes were
inadmissible because they had not been sealed "immediately," as
required by 18 U.S.C. 2518(8)(a).  App., infra, 17a.  During the
suppression hearing, respondents also sought to show that the tapes
had been altered and were not in their original form.  The government
offered expert evidence to show that the tapes had not been altered,
and it made a detailed showing of the measures that had been taken to
preserve the integrity of the tapes.  Id. at 23a-24a, 31a-35a,
51a-53a.  With respect to the judicial sealing requirement, the
government showed that Frank Bove, the supervising attorney who was
responsible for having many of the tapes sealed, was aware of the
statutory sealing requirement, but interpreted the statutory language
to mean that the sealing obligation did not arise until all related
intercept orders and their extensions had expired.  Id. at 76a-77a.
Accordingly, Bove had arranged for Judge Perez-Gimenez to seal the
related Levittown, El Cortijo, and Datsun tapes on October 11 and 13,
1984, at the time of the expiration of the last of the intercept
orders for those locations.  Id. at 35a-36a, 62a.  Bove arranged for
the sealing of the tapes from the Vega Baja intercepts at the end of
May 1985, following the end of the last extension of the intercept
authorization for that location.  An administrative error caused a
delay of approximately two weeks, and the steps necessry to seal the
Vega Baja tapes were not completed until June 12, when Bove asked
Judge Perez-Gimenez to seal those tapes.  The judge sealed the Vega
Baja tapes on June 15, 1985.  Id. at 85a-86a.

   3. At the conclusion of the suppression hearing, the district court
admitted some of the tape-recorded conversations and excluded others.
With respect to the challenge to the integrity of the tapes, the
district court credited the testimony of the government's expert and
found that the government had proved by clear and convincing evidence
that the tapes being admitted into evidence were in their original
form and had not been tampered with.  App., infra, 55a-61a.

   Turning to the issue of the delays in the judicial sealing of the
tapes, the district court held that the obligation to seal the 455
tapes from the oral and wire interceptions at Levittown arose on July
23, 1984, when the final extension of the original Levittown order
expired.  The court rejected the government's argument that the El
Cortijo order was an extension of the Levittown order because the
change in location was required by the movement of the target,
respondent Ojeda Rios.  The court thus rejected the government's
contention that the sealing obligation for the Levittown tapes did not
ripen until September 24, 1984, when the final El Cortijo extension
expired.  App., infra, 67a-69a.  Accordingly, the court found that
there had been at least an 82-day delay in sealing from July 23 to
October 13, when the Levittown tapes were judicially sealed.  /4/ Id.
at 63a-65a.  The court found this delay to be "excessive as a matter
of law" and held that it required the automatic suppression of all the
Levittown tapes, regardless of whether the government could prove that
those tapes had not been altered (and thus that the delay in sealing
did not affect the integrity of the tapes).  Id. at 66a.  The court
noted that because it was suppressing the Levittown tapes, it was not
necessary to decide whether the integrity of those tapes had been
maintained.  Id. at 30a n.3.

   The court refused to suppress the El Cortijo tapes, although there
was a 19-day delay in sealing those tapes, because (1) the tapes were
"pristine" (App., infra, 76a);  (2) the sole cause of the delay was
attorney Bove's misunderstanding of the statutory sealing requirement;
 (3) Bove diligently sought sealing once he believed the statutory
obligation had ripened;  and (4) respondents were not prejudiced by
the delay.  Id. at 72a-79a.

   Turning to the Vega Baja public telephone tapes, the court held
that the obligation to seal the tapes made pursuant to the initial
intercept order ripened on February 17, 1985, when that order expired.
 The court acknowledged that the initial order was extended several
times, but it held that the extensions could not postpone the sealing
obligation unless the government provided a "satisfactory explanation"
for the 12-day hiatus between the expiration of the original order and
the first extension.  The court held that the government's explanation
for this delay -- that the government was attempting to revise the
underlying affidavit on which the Vega Baja applications were based --
was not satisfactory.  App., infra, 82a-83a.  Accordingly, the court
calculated that 118 days had expired between the expiration of the
original Vega Baja public telephone order on February 17, and June 15,
when all the Vega Baja tapes were sealed.  The court held that this
delay was "excessive as a matter of law," and it suppressed the Vega
Baja public telephone tapes that had been obtained pursuant to the
January 18 order.  Id. at 83a.

   The court did not suppress the remaining Vega Baja tapes, despite
the 16-day delay (from May 30 to June 15) in sealing those tapes.  The
court reasoned that suppression was not required because the
government had proved by clear and convincing evidence that the tapes
had not been altered and because respondents were not prejudiced by
the delay, which was the result of a good faith misunderstanding
between the prosecutor and the FBI as to who would initiate the
sealing process.  App., infra, 84a-88a.  The court specifically found
that the government had not used the 16-day delay "to tamper with the
tapes or in any way use the tapes to gain some advantage." Id. at 84a.

   4. The government appealed the suppression of the Levittown tapes
and the Vega Baja public telephone tapes that were recorded pursuant
to the January 18, 1985, intercept order.  The court of appeals
affirmed.  App., infra, 1a-14a.  The court observed that when tapes
are not sealed within one or two days after the expiration of a
wiretap order, the government bears the burden of offering a
satisfactory explanation for the delay as a prerequisite to the tapes'
admissibility.  Id. at 7a.  The court disagreed with those circuits
that "excuse sealing delays simply upon proof of the integrity of the
tapes." Id. at 8a.  /5/

   The court of appeals agreed with the district court's conclusion
that there had been a delay of at least 82 days in sealing the
Levittown tapes.  App., infra, 11a.  Although it did not agree with
the district court's conclusion that the Levittown tapes should be
suppressed "on the basis of time alone," id. at 11a-12a, the court
nevertheless concluded that suppression was required.  In light of the
length of the delays in sealing, the court found that the government's
explanation was not "satisfactory," because it "resulted from a
disregard of the sensitive nature of the activities undertaken." Id.
at 12a.  /6/

   With respect to the Vega Baja public telephone tapes, the court of
appeals agreed with the district court that the government was
required to provide a "satisfactory explanation" for the 12-day hiatus
between the expiration of the January 18 order on February 17, 1985,
and the issuance of the March 1 extension order.  The court of appeals
also agreed with the district court that the government's explanation
for that delay was insufficient.  App., infra, 14a.  The court
therefore concluded that the March 1 surveillance order was not an
"extension" of the January 18 order, but was instead a new and
independent order.  For that reason, the court concluded that the
tapes obtained pursuant to the January 18 order should have been
sealed shortly after February 17, rather than in June, after the
expiration of the subsequent Vega Baja intercept orders.  The court of
appeals therefore agreed with the district court that there had been a
118-day delay in sealing the tapes recorded pursuant to the first Vega
Baja telephone order.  Because it found that delay unjustified, the
court agreed with the district court that the products of the January
18 order had to be suppressed.  Id. at 14a.

                   REASONS FOR GRANTING THE PETITION

   Title III of the Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. 2510-2520, establishes specific procedures for
electronic surveillance of oral and wire communications.  Under the
terms of the statute, recordings of intercepted conversations must be
sealed under the direction of a judge "(i)mmediately upon the
expiration of the period of the (electronic surveillance) order, or
extensions thereof." 18 U.S.C. 2518(8)(a).  The question in this case
is whether a delay in the judicial sealing of the tapes should result
in suppression, even if the evidence establishes that the tapes have
not been altered.  The courts of appeals are divided on that question,
and this case provides an appropriate vehicle for resolving that
conflict.

   The issue is important because, despite the best efforts of
supervising attorneys, there will from time to time be situations
where tapes will not be sealed "immediately" on termination of an
intercept order.  As this case demonstrates, these inadvertent
failures are particularly likely to occur in the course of complex
investigations, involving interrelated surveillances.  It is precisely
such investigations, which often lead to important criminal
prosecutions, in which the suppression of properly intercepted and
protected tapes can be most devastating.  Moreover, uncertainty about
the applicable standards can complicate the issues that must be
litigated in connection with motions to suppress wiretap evidence.  A
decision by this Court clarifying those standards will thus help ease
the burdens imposed by complex criminal cases on both the courts and
the parties.

   1. The courts below did not conclude that the sealing delays
resulting from attorney Bove's misunderstanding of the statutory
sealing requirement violated any right guaranteed by the Constitution.
 Nor did the lower courts conclude that the delays harmed respondents
in any way.  Instead, relying on language in 18 U.S.C. 2518(8)(a), the
courts deemed the tapes inadmissible solely because the government
failed to offer a "satisfactory explanation" for the delays.

   Neither the statute nor its legislative history supports this
result.  By its terms, Section 2518(8)(a) requires a "satisfactory
explanation" only for the "absence" of a judicial seal.
Significantly, Congress did not mandate suppression as the required
remedy when the tapes are sealed but sealing is delayed.  In
fashioning a remedy for sealing delays, the courts should be guided by
the purposes of the sealing requirement.  The principal purpose of
that requirement is "to insure that accurate records will be kept of
intercepted communications." S. Rep. No. 1097, 90th Cong., 2d Sess.
104 (1968).  See United States v. Mora, 821 F.2d 860, 867 (1st Cir.
1987);  United States v. Diana, 605 F.2d 1307, 1314 (4th Cir. 1979),
cert. denied, 444 U.S. 1102 (1980);  United States v. Lawson, 545 F.2d
557, 564 (7th Cir. 1975), cert. denied, 424 U.S. 927 (1976);  United
States v. Falcone, 505 F.2d 478, 483 (3d Cir. 1974), cert. denied, 420
U.S. 955 (1975).  /7/ Accordingly, a delay in sealing should not
result in the suppression of evidence if the court is satisfied that
the tapes offered into evidence were not tampered with and therefore
accurately represent the conversations that were intercepted.  /8/

   This conclusion is buttressed by Section 2518(10)(a), the principal
suppression provision of Title III.  Under Section 2518(10)(a),
suppression is reserved for the "failure to satisfy any of those
statutory requirements that directly and substantially implement the
congressional intention to limit the use of intercept procedures to
those situations clearly calling for the employment of this
extraordinary investigative device." United States v. Donovan, 429
U.S. 413, 433-434 (1977), quoting United States v. Giordano, 416 U.S.
505, 527 (1974).  Section 2518(10)(a) thus prohibits the use of
evidence obtained in violation of the pre-interception procedures and
minimization requirements of Title III -- the provisions that protect
Fourth Amendment privacy interests.  See S. Rep. No. 1097, supra, at
66, 103.  But suppression has not been required in the case of
violations of statutory requirements that were not designed to protect
privacy by restricting the use of electronic surveillance.  Thus, the
Court has held that suppression is inappropriate for violations such
as (1) misidentification of the authorizing Department of Justice
official in the warrant application (United States v. Giordano,
supra);  (2) failure to list in the application every individual whose
conversations the government expects to intercept during the
electronic surveillance (Donovan, 429 U.S. at 435-547);  and (3)
failure to inform the authorizing judge of all identifiable persons
whose conversations were intercepted (429 U.S. at 438-439).

   Like other post-interception procedures, the sealing requirement
does not limit the use of electronic surveillance.  /9/ Thus, an
unexplained delay in sealing does not make the tapes subject to
suppression under 18 U.S.C. 2518(10).  See United States v. Falcone,
505 F.2d at 484.  And Section 2518(8) provides for suppression only
when there has been a complete failure to obtain judicial sealing and
there is no satisfactory explanation for the failure.  In light of the
express limitations on the scope of required suppression in Sections
2518(8) and 2518(10), it is unlikely that Congress intended to create,
by implication, a remedy of mandatory suppression for a delay in
sealing, a violation that does not fall within either of the two
statutory suppression provisions.

   The requirement of immediate sealing is best viewed as an
evidentiary rule that implements one of the devices Congress elected
to assure that taped conversations to be admitted in evidence will be
accurate.  Accuracy should be assumed if the tapes are sealed
"immediately" upon the conclusion of surveillance.  If there is a
delay in sealing, the tapes nevertheless should be admitted if the
government can prove that they were not tampered with or otherwise
altered during the period of delay.

   2. As the court of appeals candidly acknowledged, most courts have
concluded that recorded conversations are admissible despite sealing
delays if the government proves that the tapes have not been altered.
See, e.g., United States v. Angelini, 565 F.2d 469 (7th Cir. 1977),
cert. denied, 435 U.S. 923 (1978);  United States v. Diadone, 558 F.2d
775, 780 (5th Cir. 1977), cert. denied, 434 U.S. 1064 (1978);  United
States v. Lawson, 545 F.2d 557, 564 (7th Cir. 1975), cert. denied, 424
U.S. 927 (1976);  United States v. Cohen, 530 F.2d 43, 46 (5th Cir.),
cert. denied, 429 U.S. 855 (1976);  United States v. Sklaroff, 506
F.2d 837, 840-841 (5th Cir.), cert. denied, 423 U.S. 874 (1975);
United States v. Falcone, 505 F.2d 478, 484 (3d Cir. 1974), cert.
denied, 420 U.S. 955 (1975);  United States v. Vastola, 670 F. Supp.
1244, 1282 (D.N.J. 1987).  Cf. McMillan v. United States, 558 F.2d
877, 879 (8th Cir. 1977) (refusing to consider collateral attack
alleging sealing delay since defendant did not challenge the integrity
of the tapes).

   The Third Circuit has held 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." Falcone, 505 F.2d at 484.  The "crucial factor,"
that court observed, "is the integrity of the tapes." Ibid.  The Fifth
Circuit has employed a similar approach.  As that court explained, the
purpose of the statutory requirement of immediate sealing "is to
safeguard the recordings from editing or alteration." Sklaroff, 506
F.2d at 840.  Therefore, where there is "no showing that the integrity
of the interceptions was in any way violated," ibid., the evidence
should be admitted.

   The Seventh Circuit uses a somewhat different approach, but with
respect to the issue of suppression it takes the same position as the
Third and Fifth Circuits.  In the case of a sealing delay, the Seventh
Circuit employs a two-part analysis:  it first looks to whether the
government has offered a satisfactory explanation for the delay.  If
so, the inquiry does not proceed farther.  If not, the court must
inquire whether the purposes of the sealing requirement have been
undermined and suppression required as a result.  Angelini, 565 F.2d
at 471.  Even absent a satisfactory explanation for the delay, the
Seventh Circuit permits the evidence to be admitted if "the
Congressional purposes underlying the sealing requirement were met"
despite the delay, i.e., if "there is no substantial question raised
about the integrity of the tapes." Id. at 473.

   The Second Circuit has adopted a far more restrictive approach,
severely limiting the circumstances in which demonstrably unaltered
tapes can be admitted into evidence where there has been a lengthy
sealing delay.  /10/ In this case, for example, the court held that,
where the delays were substantial, the government could not defeat
respondents' suppression motions by proving that the tapes had not
been altered.  While disclaiming exclusive reliance on the length of
the delay, the Second Circuit apparently regarded the length of the
delay as the crucial factor.  As we previously indicated, the sealing
delays for the suppressed Levittown tapes and the admitted El Cortijo
tapes both resulted from attorney Bove's misunderstanding of the
statutory requirement.  In addition, both sets of tapes were afforded
identical protection against tampering, and samples from the Levittown
tapes were included in those subjected to expert analysis and found
unaltered.  The only arguably relevant difference between the two is
that the delays were substantially longer for the Levittown tapes,
which were suppressed, than for the El Cortijo tapes, which were not.
App., infra, 13a, 66a, 76a-78a.  /11/

   In an earlier case, United States v. Massino, 784 F.2d 153, 158-159
(1986), the Second Circuit set forth specific procedures and remedies
for sealing delays.  The court directed that in all future cases,
tapes must be sealed within two days of the expiration of the wiretap
order.  If sealing is completed in more than two days but less than
five days, the government must, at the time of sealing, file an
explanation with the court in camera, with supporting affidavits, as
to the reasons for the delay.  If the delay exceeds five days, the
government must move for an extension of time within which to obtain
judicial sealing.  In that motion, the government must set forth the
reason for the delay and attach supporting affidavits.  The court
warned that "(a) failure by the government to follow this procedure
will of course undermine any claim of satisfactory explanation." Id.
at 159.  /12/

   The instant case tellingly demonstrates why it is wrong to attach
such great weight to the length of the delay, even when the tapes are
shown to be unaltered.  The delay in sealing the Levittown tapes was
the product of the supervising attorney's misunderstanding of when the
obligation to seal ripened.  /13/ And the delay in sealing the Vega
Baja tapes was the product of the attorney's belief that the March 1
Vega Baja intercept order was an extension of the January 18 order,
even though there was a 12-day hiatus between the two interceptions.
Those two legal errors resulted in virtually the entire delay in this
case;  the case was not one in which the delay was attributable to
lackadaisical performance on the part of the agents or the supervising
attorney, and in which each passing day of delay could be regarded as
reflecting an increasing degree of fault.

   Similarly, the supervising attorney would not have had reason to
believe he should take curative steps of the kind required by the
Second Circuit in Massino.  He had no reason to believe that he needed
to provide the district court with a contemporaneous explanation of
the reasons for his delay, nor did he have any reason to believe he
needed to apply for an extension of time within which to seal the
tapes.  Compliance with Massino is simply impossible whenever the
government mistakenly believes that it is not yet required to obtain
judicial sealing.

   This case also demonstrates that the Massino procedures are not
needed to "create an incentive for the government to give priority to
sealing" (784 F.2d at 159).  The consequence of the government's delay
in presenting the tapes for judicial sealing in this case was an
eight-month suppression hearing at which the government bore the
burden of proving by clear and convincing evidence that the tapes had
not been altered.  In contrast to the enormous amount of time and
effort required to prove the integrity of the tapes, presenting them
for prompt judicial sealing would have occasioned only minimal effort.
 The government clearly needs no additional incentive to attend
faithfully to the statutory requirement of prompt sealing.

   3. The First Circuit agrees with the Second Circuit that the
statutory requirement of a "satisfactory explanation" (Section
2518(8)(a)) applies not only to the absence of a seal, but also to
delays in sealing, and that proof that the tapes are in their original
form is not necessarily sufficient to justify their admission.  United
States v. Mora, 821 F.2d 860, 866-869 (1st Cir. 1987).  In evaluating
the government's explanation for sealing delays, the First Circuit has
held that a court should "look first -- and most searchingly -- at
whether the government has established by clear and convincing
evidence that the integrity of the tapes has not been compromised."
Mora, 821 F.2d at 867.  But the court also observed that "warranties
of driven snow purity, proven beyond peradventure, will not suffice to
constitute a 'satisfactory explanation.'" Id. at 868.  In addition,
the court identified a number of other factors to be considered in
evaluating the adequacy of the government's explanation for a sealing
delay:  prejudice to the defendant, benefit to the government, the
length of the delay, and the cause of the delay.  Id. at 868-869.

   Even under the First Circuit's approach, however, there is no
reason to suppress here.  First, "the delay in presenting the tapes
for judicial sealing came about in good faith." Mora, 821 F.2d at 868.
 The Mora court explained that requirement as having two components:
lack of prejudice to the accused and lack of unfair benefit to the
government.  Ibid.  Respondents have not asserted that they were
prejudiced by the delay, nor did the delay result in any unfair
advantage to the government.  Indeed, it is hard to imagine any way in
which a sealing delay that did not result in tampering could either
prejudice a defendant or give the government an unfair advantage.

   The Mora court also considered the cause of the delay,
distinguishing between "(a)n explanation * * * reflective of gross
dereliction of duty or wilful disregard for the sensitive nature of
the (surveillance)" and one in which "the cause of the delay is
inoffensive -- for example, if the retardment was realistically beyond
the control of the law enforcers, or arose out of honest mistake." 821
F.2d at 869.  The delays here were clearly of the latter type.  They
did not result from carelessness, failure to give appropriate priority
to the sealing requirement, or other sanctionable behavior.  Rather,
with respect to both the suppressed Levittown and Vega Baja tapes, the
delay was caused by the supervising attorney's honest misunderstanding
of when the obligation to seal arose.  The attorney reasonably
believed that judicial sealing was unnecessary until all related
orders and extensions had expired.  /14/ Solely because of that one
error, he did not seek judicial sealing for the Levittown tapes until
the El Cortijo and Datsun orders and extensions had expired.  The
attorney's failure to initiate the sealing of the first set of Vega
Baja public telephone tapes until after the final extension order for
those telephones expired was at least equally reasonable.  Because
there was a 12-day hiatus between the expiration of the initial order
on February 17, 1985, and the issuance of the extension on March 1,
1985, the court of appeals upheld the district court's refusal to
treat the March 1 order as an extension of the initial order.  /15/
Like the district court, the court of appeals found the government's
explanation for the 12-day hiatus insufficient.  App., infra, 13a-14a,
82a-83a.  But the statute, which places no time limit at all on
seeking an extension, certainly does not require any explanation for a
delay in obtaining one.  See 18 U.S.C. 2518(5).  In short, the
supervising attorney, who was conducting an investigation in the First
Circuit, not the Second, was faulted for failing to apply the special
Second Circuit analysis and to conclude that the first group of Vega
Baja tapes should have been sealed in February 1985.

   Finally, the First Circuit in Mora looked to the length of the
delay.  But unlike the Second Circuit, the First Circuit apparently
finds this factor significant only because of its effect on the others
(821 F.2d at 868-869):  "(t)he longer the delay, the greater looms the
danger of adulteration;  the longer the delay, the harder it may
become to show, say, good faith or the absence of undue prejudice.
And the lengthier the delay, the more difficult to find the
government's explanation 'satisfactory.'" From this perspective, the
"length of the delay" factor does not require suppression here, since
there was no alteration of the tapes, no prejudice or lack of good
faith, and the cause of the delay was in both instances a perfectly
reasonable misunderstanding of the point at which the obligation to
present the tapes for sealing arose.

   In sum, under the test applied by any court other than the Second
Circuit, the sealing delays in this case would not have resulted in
the suppression of evidence.  This Court should grant review to
resolve the conflict among the circuits on the proper standard to be
used in determining when a delay in sealing the products of
court-authorized electronic surveillance should lead to suppression.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   HARRIET S. SHAPIRO

      Assistant to the Solicitor General

   PATTY MERKAMP STEMLER

      Attorney

   JULY 1989

   /1/ Respondents and their co-defendants were charged with bank
robbery, in violation of 18 U.S.C. 2113(a);  aggravated bank robbery,
in violation of 18 U.S.C. 2113(d);  theft from an interstate shipment,
in violation of 18 U.S.C. 659;  interstate transportation of stolen
money, in violation of 18 U.S.C. 2314;  interference with commerce by
robbery, in violation of 18 U.S.C. 1951;  and conspiracy, in violation
of 18 U.S.C. 371 and 1951.  Of the ten co-defendants who are not
respondents in this case, two have pleaded guilty to charges arising
out of the indictment, four have been convicted after a jury trial,
and one has been acquitted.  Three of the ten co-defendants remain
fugitives.  An additional co-defendant, who was charged in the
original indictment but not in the superseding indictment, has been
placed on pretrial diversion.

   /2/ In addition to the interceptions described below, electronic
surveillance was also conducted at the residence of two co-defendants
in Santurce, Puerto Rico, and at a condominium in Hato Rey, Puerto
Rico, that was used by the conspirators.  App., infra, 20a-21a.  The
district court did not suppress the tape-recorded conversations
obtained as a result of those interceptions, id. at 79a, 94a, and the
admissibility of that evidence is therefore not at issue here.

   /3/ The court heard testimony from 20 FBI agents who monitored the
recorded conversations, from FBI agents who were involved in
presenting the tapes for judicial sealing, from the FBI electronic
surveillance clerk who maintained custody of the tapes after
interception, from the Department of Justice attorneys who supervised
the electronic surveillance investigation, and from defense and
government experts who addressed the issue of the authenticity of the
tapes.  App., infra, 17a.

   /4/ Although the interception at Levittown was discontinued several
days before the Levittown intercept order expired, the court found it
unnecessary to decide which event triggered the obligation to have the
court seal the tapes.  App., infra, 63a-66a.

   /5/ The court cited cases from the Third, Fifth, Seventh, and
Eighth Circuits as examples of the approach it rejected:  United
States v. Falcone, 505 F.2d 478, 484 (3d Cir. 1974), cert. denied, 420
U.S. 955 (1975);  United States v. Diadone, 558 F.2d 775, 780 (5th
Cir. 1977), cert. denied, 434 U.S. 1064 (1978);  United States v.
Cohen, 530 F.2d 43, 46 (5th Cir.), cert. denied, 429 U.S. 855 (1976);
United States v. Angelini, 565 F.2d 469, 471 (7th Cir. 1977), cert.
denied, 435 U.S. 923 (1978);  United States v. Lawson, 545 F.2d 557,
564 (7th Cir. 1975), cert. denied, 424 U.S. 927 (1976);  McMillan v.
United States, 558 F.2d 877, 879 (8th Cir. 1977).

   /6/ Although the court agreed that the same mistaken interpretation
of law that led to the delay in sealing the Levittown tapes "might
help to excuse the nineteen-day delay (found acceptable) in respect to
the later El Cortijo tapes," it imposed a higher standard for the
longer delay.  App., infra, 13a.

   /7/ A second and related purpose of Section 2518(8)(b) is to
protect the information in the recordings from unauthorized disclosure
(see S. Rep. No. 1097, supra, at 105).  That purpose is accomplished
by the use of careful custodial procedures of the sort the FBI
employed in this case.  See App., infra, 30a-36a.  There is no
suggestion that the sealing delays led to any unauthorized disclosure
of the suppressed tapes in this case.

   /8/ The Senate Report recognizes that judicial sealing is not
sufficient, standing alone, to ensure the integrity of the tape
recordings.  The Report suggests that "(a)ppropriate procedures should
be developed to safeguard the identity, physical integrity, and
contents of the recordings to assure their admissibility in evidence."
S. Rep. No. 1097, supra, at 104.  The Report thus indicates that
Congress regarded the integrity of the tapes as the keystone to their
admissibility.

   /9/ As the Court recognized in Donovan, even where there has been a
lack of total compliance with a post-interception procedure, the
conversations have nevertheless been "'seized' under a valid intercept
order." 429 U.S. at 438.

   /10/ Several circuits, including the court of appeals in this case
(App., infra, 8a), have noted the conflict between the approach taken
by the Second Circuit and the less restrictive approach embraced by
other courts.  See, e.g., United States v. Diana, 605 F.2d at 1314
(noting conflict among the circuits, but finding it unnecessary to
decide whether integrity of the tapes alone is sufficient to defeat a
motion to suppress for delay in sealing);  United States v. Angelini,
565 F.2d at 473 n.7 (Second Circuit's approach "inexplicably elevates
the immediate sealing requirement to a more protected status than any
of the other procedural requirements enacted in Title III").

   /11/ Although the district court declined to make findings as to
the integrity of the suppressed Levittown tapes, that does not affect
the analysis of this case, since the district court and the court of
appeals concluded that suppression was required even assuming the
suppressed tapes were as pristine as those admitted into evidence.

   /12/ The Massino standards were not applied by their terms in this
case, because the investigation was completed before Massino was
decided.

   /13/ For purposes of this case, we do not challenge the court of
appeals' conclusion that the supervising attorney was legally wrong in
believing that the Levittown tapes could be sealed after the
termination of the related El Cortijo and Datsun intercept orders, and
in believing that the Vega Baja intercept orders for March, April, and
May of 1985 were extensions of the January 18 Vega Baja intercept
order.  Nonetheless, as we note below (notes 14-15, infra), the
attorney's views on those matters, even if incorrect, were not
unreasonable.

   /14/ The attorney's interpretation of the statute was almost
identical to the Second Circuit's reading of the statute in United
States v. Principie, 531 F.2d 1132 (1976), cert. denied, 430 U.S. 905
(1977).  Under Section 2518(8)(a) and (d), both the sealing
requirement and the notification requirement ripen upon the expiration
of the electronic surveillance order, or "(a)ny extensions thereof."
In Principie, the court held that for notification purposes, an order
is extended if the target is the same but the location of the
surveillance has changed because the target moved to evade detection.
Under this definition of "extension," the surveillance at El Cortijo
was plainly an extension of the surveillance at Levittown, because
respondent Ojeda Rios was the primary target of the surveillance at
each location, and the Levittown surveillance was abandoned only
because he had moved to El Cortijo to evade detection.  Therefore,
Principie could reasonably be read to indicate that the sealing
obligation for the tapes relating to Ojeda Rios's successive
residences did not ripen until the El Cortijo tapes were completed.
Even though the court below ultimately refused to adopt that reading
of Principie (App., infra, 10a-11a), it was nevertheless a reasonable
one at the time the attorney had to decide when to present the tapes
for sealing.  His decision to wait until the expiration of the El
Cortijo surveillance was thus objectively reasonable, even if
ultimately incorrect.  It was, at worst, an "honest mistake." Mora,
821 F.2d at 869.

   /15/ The district court candidly recognized (App., infra, 82-83a)
that "(t)he March 1, 1985 order covered the same telephones, concerned
the same crimes, and targeted the same individuals as the * * *
initial order.  Thus, it was an extension of the first as the term has
been defined in (United States v.) Vazquez, 605 F.2d (1269,) 1278 ((2d
Cir.), cert. denied, 444 U.S. 981 (1979))." On this point Vazquez is
in accord with the universal view.  But the district court then
applied unique Second Circuit precedent (United States v. Gigante, 538
F.2d 502 (1976)) to require a satisfactory explanation for the delay
in obtaining the extension order.  Finding the explanation
unsatisfactory, the district court refused to treat the March 1 order
as an extension for purposes of the sealing requirement.  The effect
of this analysis was to require those responsible for this
investigation in the First Circuit to predict the eventual outcome of
the application of the special Second Circuit rule in determining
whether the subsequent order will be considered an extension for
purposes of the sealing requirement.  Although the court of appeals'
analysis is less clear (App., infra, 13a-14a), it apparently followed
the same route.

   APPENDIX