GAETANO VASTOLA, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-1575

   In the Supreme Court of the United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Brief For The United States

           TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Discussion
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1-75) is reported at
899 F.2d 211.  The opinion of the district court (Pet. App. 76-167) is
reported at 670 F. Supp. 1244.  Subsequent opinions of the district
court (Pet. App. 168-176, 177-187) are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 20, 1990.
 The petition for a writ of certiorari was filed on April 9, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the government was required to provide a "satisfactory
explanation" (18 U.S.C. 2518(8)(a)) for a delay in sealing tape
recordings that were produced pursuant to court-authorized electronic
surveillance.

   2. Whether petitioner's convictions must be reversed because the
government released the tape recordings to a private contractor for
authentication and electronic enhancement after the court ordered the
tape recordings unsealed.

   3. Whether inconsistency among the verdicts returned by the jury
requires reversal of any of petitioner's convictions.

   4. Whether conspiracy to violate the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. 1962(d), requires proof that the
defendant agreed personally to commit the predicate unlawful act or
acts.

   5. Whether there was sufficient evidence to show that petitioner
conspired to conduct the affairs of a racketeering enterprise through
the collection of an unlawful debt.

                               STATEMENT

   Following a jury trial in the United States District Court for the
District of New Jersey, petitioner was found guilty of two substantive
offenses under the Racketeer Influenced and Corrupt Organizations Act
(RICO) (Counts 1 and 2), in violation of 18 U.S.C. 1962(c);  a RICO
conspiracy offense (Count 3), in violation of 18 U.S.C. 1962(d);
conspiracy to use extortionate means to collect an extension of credit
(Count 4), in violation of 18 U.S.C. 894;  and conspiracy to obstruct
commerce by means of extortion (Count 9), in violation of 18 U.S.C.
1951.  The district court granted petitioner's post-conviction motion
for a judgment of acquittal on the Count 1 RICO offense.  Petitioner
was sentenced to a total of 20 years' imprisonment and a $70,000 fine.
 Pet. App. 4.  /1/ The court of appeals reinstated the Count 1 RICO
conviction, reversed petitioner's conviction on the Count 2 RICO
offense, and affirmed the other convictions.  The court then remanded
the case for resentencing and entry of a corrected judgment.

   1. The relevant facts are stated in the court of appeals' opinion.
Pet. App. 4-16.  Petitioner was indicted with 19 other defendants in a
114-count indictment charging a variety of crimes.  After the district
court ordered a separate trial for petitioner Vastola and co-defendant
Elias Saka, they were tried together on a 26-count superseding
indictment that named petitioner in 14 counts and Saka in 25.

   The indictment charged petitioner and Saka, his principal
lieutenant, with operating a RICO enterprise through the commission of
various crimes (including a conspiracy to use and the use of
extortionate means to collect an extension of credit), numerous
usurious loans, schemes to defraud suppliers of businesses controlled
by the enterprise, and insurance and bankruptcy frauds.  Two of those
schemes are relevant to the five counts on which the jury convicted
petitioner.  Pet. App. 6.

   One scheme involved a usurious loan to Joseph Dwek, who arranged to
borrow $15,000 from Saka, with interest payable at a rate of $250 per
week.  Dwek fell behind on his payments, and on May 7, 1985, Saka
threatened to strangle Dwek if he did not pay what he owed.  The
evidence showed that petitioner was aware of the loan to Dwek and
advised Saka in his efforts to collect the debt.  Pet. App. 7-10.

   The second scheme relevant to petitioner's convictions involved the
purchase of a large quantity of records and tapes by Salvatore
Pisello.  The sale price, approximately $1.75 million, was guaranteed
by a company owned by Morris Levy, one of petitioner's
co-conspirators.  Pisello and Levy asked petitioner to find a buyer
for the records and tapes, and he recommended John LaMonte, who owned
a record distribution company.  A sale to LaMonte was made in the
summer of 1984, and the goods were delivered to him.  LaMonte agreed
to pay $2.05 million for the merchanise;  the $300,000 profit was to
be split among petitioner, Pisello, and Levy.  Problems arose when
LaMonte failed to complete payment on the sale.  Levy urged petitioner
to cause LaMonte to pay the amounts due.  Petitioner's efforts in that
regard were reflected in his January 1985 statement to a confederate
that, if LaMonte failed to cooperate, he would put him in the
hospital.  In fact, during a May 1985 meeting to discuss the debt,
petitioner hit LaMonte in the face, causing him to be hospitalized for
at least four days.  The efforts to induce LaMonte to pay the debt
continued until October 1985.  Pet. App. 10-16.

   2. The government's evidence at trial consisted primarily of tape
recordings that were the products of court-authorized and consensual
electronic surveillance.  The recordings captured conversations among
the conspirators between late 1984 and October 1985 and conversations
that LaMonte had with the conspirators between May and September 1985.

   The electronic surveillance of Vastola's warehouse, the
headquarters of the RICO enterprise, ended on March 25, 1985.
Although Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, 18 U.S.C. 2518(8)(a), requires recordings of intercepted
conversations to be sealed "(i)mmediately upon the expiration of the
(intercept) order," the tapes were not sealed until July 15, 1985.
Pet. App. 63 & n.33.

   After the tapes were sealed, the government moved to unseal a
number of them temporarily prior to trial.  In response, the courts
with jurisdiction to do so ordered a number of the tapes unsealed to
facilitate trial preparation.  The government then sent a set of the
unsealed tapes to Paul Ginsberg, an expert in tape recording
technology whom the government had employed to "filter" them, i.e., to
make copies with the extraneous noises removed.  The government
retained an identical set of original tapes when it sent one set to
Ginsberg for filtering.  Ginsberg kept the tapes for approximately 35
days.  In addition to filtering the tapes, he tested them to determine
whether they had been tampered with in any way and determined that
they had not.  The evidence showed that Ginsberg took appropriate
precautions to ensure that the tapes were not tampered with while they
were in his custody, and there was no evidence that the original tapes
had been altered in any manner.  Pet. App. 63-65.

   The district court rejected petitioner's motions to suppress the
tape recordings because of the delay in sealing and because of the
transfer of custody to Ginsberg.  Relying on United States v. Falcone,
505 F.2d 478, 484 (3d Cir. 1974), the court held that suppression was
not required so long as the integrity of the tape recordings was
established.  The court accordingly did not require the government to
explain the reason for the delay, nor did the court find any reason to
suppress the conversations because a set of original tapes was
transferred to Ginsberg after they were ordered unsealed.  Pet. App.
158-159, 172-176.

   3. The jury returned inconsistent verdicts.  Count 1 of the
superseding indictment charged petitioner with conducting an
enterprise through a pattern of racketeering activity and alleged four
predicate acts, each of which was defined by reference to other counts
of the indictment.  The first predicate act alleged against petitioner
was his participation in the conspiracy to use extortionate means to
collect LaMonte's debt.  The portion of the RICO count that charged
that predicate act referred to acts that were separately charged in
Counts 4, 5, 9, and 10.  The second predicate act was petitioner's
participation in a conspiracy to make usurious loans and to use
extortionate means to collect them, as separately charged in Counts 6
and 7.  The third predicate act was an extortionate loan to Daniel
Zack, as separately charged in Count 11.  The fourth predicate act was
petitioner's fraudulent transfer of property in violation of the
bankruptcy laws, as separately charged in Counts 24 and 26.

   The jury convicted petitioner of the Count 1 RICO offense, but it
returned a verdict of acquittal or deadlocked on each of the
substantive offenses that were cross-referenced as the second, third,
and fourth predicate acts.  The jury convicted petitioner of the
offenses charged in Counts 4 and 9, but those offenses both came
within the scope of the first predicate act alleged in Count 1.  Pet.
App. 22-24.

   The RICO substantive offense charged in Count 1 required proof that
petitioner committed two of the alleged predicate acts.  The district
court reasoned that the jury had convicted petitioner of offenses
comprising one predicate act only;  the court therefore granted
petitioner's post-conviction motion to set aside the guilty verdict on
Count 1 as legally insufficient.  Pet. App. 178-181.

   4. On the government's appeal, the court of appeals reinstated
petitioner's conviction on Count 1 subject to further proceedings on
remand.  Pet. App. 22-32.  The court found that the jury had been
properly instructed on the elements required for a conviction on the
RICO count, and that even if the verdict on Count 1 was inconsistent
with the verdicts on the related counts that charged the predicate
acts, that would not justify vacating the conviction on Count 1.  The
court of appeals left for determination on remand the question whether
the evidence was sufficient to support petitioner's conviction on
Count 1.

   The reinstatement of the guilty verdict on Count 1 resolved the
government's appeal.  Petitioner took a separate appeal on the counts
on which he had been convicted.  The court of appeals held that the
evidence was sufficient to support the convictions on Counts 4 and 9.
Pet. App. 42.  The court, however, reversed petitioner's conviction on
Count 2, which charged that petitioner had participated in a RICO
enterprise through the collection of an unlawful debt.  Pet. App.
32-37.  The jury had indicated in a special interrogatory that it
based its conviction on Count 2 solely on the conclusion that
petitioner participated in the unlawful debt collection from Joseph
Dwek.  While the statute provides that the offense charged, 18 U.S.C.
1962(b), may be committed by a defendant operating a RICO enterprise
through the collection of a single unlawful debt, the court of appeals
found the evidence insufficient to show that petitioner had personally
participated in the collection of the Dwek debt, as alleged in the
indictment.

   On the other hand, the court of appeals found the evidence
sufficient to uphold petitioner's conviction on the Count 3 RICO
conspiracy charge, which alleged that petitioner had conspired to
participate in a RICO enterprise through a pattern of racketeering
activity, as defined in Count 1, and through use of extortion in the
collection of various debts enumerated in Count 2.  Pet. App. 37-42.
The jury indicated in a special interrogatory on Count 3 that it had
based its verdict on both a pattern of racketeering activity and the
collection of an unlawful debt.  The court of appeals reasoned that it
could extrapolate from the jury's special interrogatory on Count 2
that the unlawful debt that supported the Count 3 RICO conspiracy
conviction was the Dwek debt.  To conclude otherwise would be to
assume an inconsistent verdict when there was a reasonable assessment
of the jury's action that would yield a fully consistent verdict.

   The court of appeals held that the evidence was sufficient to show
that petitioner had conspired to operate the enterprise through the
collection of the Dwek debt, even though the evidence was insufficient
to prove that he had personally participated in the collection of that
debt.  The court held that the agreement alone, without petitioner's
personal participation in the collection of the debt, was sufficient
to support the RICO conspiracy conviction.  Because the court
sustained the RICO conspiracy conviction on the basis of the unlawful
debt, it did not consider the sufficiency of the evidence to support
the RICO conspiracy conviction on the basis of a pattern of
racketeering activity.  /2/

                              DISCUSSION

   This case should be remanded for reconsideration in light of United
States v. Rios, No. 89-61 (Apr. 30, 1990), which rejects the analysis
of the sealing requirement used by the courts below.  The remaining
issues raised in the petition do not merit review by this Court.

   1. There was a delay of more than three months in sealing the tape
recordings after the termination of electronic surveillance at
petitioner's warehouse.  Although the government did not explain the
reason for the delay, the tapes were admitted at trial because they
were shown to be in their original, unaltered form.  In Rios, however,
this Court concluded (slip op. 7) that "the 'satisfactory explanation'
language in Section 2518(8)(a) must be understood to require that the
Government explain not only why a delay occurred but also why it is
excusable." Because the court of appeals held that the unchallenged
integrity of the tape recordings established their admissibility, the
petition should be granted, the judgment of the court of appeals
vacated, and the case remanded for reconsideration in light of Rios.
/3/

   2. Petitioner also contends (Pet. 11) that the tape recordings
should not have been admitted, because the government provided a set
of the original tapes to a private individual for 35 days for
authentication and filtering.

   Petitioner acknowledges (Pet. 11) that this issue must be resolved
separately from the sealing delay issue.  Unlike the delay in sealing,
the consequences of an unauthorized transfer of custody to a third
party is not governed by 18 U.S.C. 2518(8)(a) or any other provision
of the federal wiretap statute.  Section 2518(8)(a), by its terms,
applies only to procedures for recording and sealing;  it says nothing
about the handling of the tapes after they are unsealed.  The
statutory analysis of the Court in Rios is therefore inapplicable to
the question whether the tape recordings should be suppressed because
they were provided to a private party without court authorization
after the courts ordered them unsealed.

   Because the wiretap statute does not speak to that issue, it is
properly viewed as an evidentiary matter governed by the Federal Rules
of Evidence.  In light of the evidence before the district court it is
clear that the tapes were properly admitted under governing
evidentiary principles.  As the court of appeals noted (Pet. App. 72),
"compelling" evidence established that the tapes in this case were
unaltered.  The district court and the court of appeals were therefore
correct in finding the tapes to be authentic and thus not to be
subject to exclusion at trial.  See Fed. R. Evid. 901.

   There is no reason to accept petitioner's unsupported assertion
(Pet. 11) that suppression should be ordered in this case because it
is difficult to determine whether tapes have been tampered with.  As
the court of appeals noted (Pet. App. 72-73), the uncontroverted
evidence before the district court was that tampering can be detected
by competent experts in the field of electronic enhancement, and the
defendants did not seriously contend in the courts below that the
tapes were subject to tampering.

   Petitioner cites no authority to support his claim that release of
unsealed electronic surveillance recordings to a private party without
court authorization or in violation of the terms of an unsealing order
require suppression of the evidence.  This issue is therefore a very
narrow one -- and apparently one of first impression -- that does not
call for this Court's review.

   3. Petitioner next contends (Pet. 12) that the inconsistency
between the verdict on the Count 1 RICO offense and the verdicts on
the substantive offenses that served as the predicate acts for Count 1
require that the conviction on Count 1 be vacated.  Petitioner argues
(ibid.) that this Court's holding in United States v. Powell, 469 U.S.
57 (1984), that a conviction is not to be vacated merely because it
cannot rationally be reconciled with verdicts of acquittal on other
charges, does not apply "to the unique circumstances of RICO trials."
Petitioner offers no authority for his position;  in fact, two other
courts of appeals have applied Powell in the RICO context.  United
States v. Tinsley, 800 F.2d 448, 450-452 (4th Cir. 1986);  United
States v. Neapolitan, 791 F.2d 489, 505 (7th Cir.), cert. denied, 479
U.S. 940 (1986).  Powell itself involved a conviction for compound
offenses in which the jury had acquitted the defendant of each of the
predicate crimes charged in the indictment.  There is no reason for a
different rule in the closely analogous context presented in this
case, and petitioner does not suggest one.

   Petitioner argues (Pet. 12-13) that the analysis of the jury's
verdict suggests that it misunderstood its instructions and
erroneously believed that petitioner's guilt of the offenses alleged
in Counts 4 and 9 -- the two offenses of which he was separately
convicted -- was sufficient to support the RICO conviction on Count 1.
 But to attempt to divine what the jury thought it was doing is to
disregard the central principle of Powell:  that there are many
reasons why a jury may elect not to convict on a particular count even
though there is sufficient evidence to support a conviction.  Powell
teaches that if there is sufficient evidence of guilt on challenged
counts so that verdicts of conviction can stand on their own, a court
may not attempt to discern the jury's reasons for acquittals on other
counts and apply those reasons to conclude that a verdict of
conviction on some counts should be vacated because it is inconsistent
with the acquittals on other counts.

   4. Petitioner asks this Court (Pet. 13-14) to resolve a conflict in
the circuits over whether a conviction under the RICO conspiracy
provision, 18 U.S.C. 1962(d), requires that the defendant participate
personally in the predicate acts alleged, or whether it is enough to
show that the defendant has entered into an agreement to operate the
RICO enterprise by means of those predicate acts.  Petitioner further
argues (Pet. 14-15) that the evidence could not have been sufficient
to support the Count 3 RICO conspiracy conviction based on the
collection of an unlawful debt if the evidence was insufficient to
support the Count 2 substantive RICO violation grounded on the
collection of that same debt.  Finally, petitioner argues (Pet. 16)
that the court of appeals should not have relied on the jury's special
interrogatory response respecting the Count 2 RICO conviction to
construe the jury's Count 3 RICO conspiracy verdict.  None of these
related claims is ripe for decision at this time and, in any event,
they are without merit.

   The court of appeals did not pass on the question whether the
evidence that petitioner committed a pattern of racketeering acts was
sufficient to support the reinstated Count 1 RICO conviction.  That
issue will be addressed by the district court if it is raised by
petitioner after the guilty verdict on Count 1 is reinstated following
remand.  If the district court concludes that the evidence is
sufficient to support petitioner's conviction on Count 1, that will
provide an independent ground to support the Count 3 RICO conspiracy
conviction, because the jury indicated in a special interrogatory that
it had based the RICO conspiracy conviction both on the pattern of
racketeering activities alleged in Count 1 and on the collection of an
unlawful debt alleged in Count 2.  Thus, the issues petitioner raises
relating to the court of appeals' ruling on the Count 3 RICO
conspiracy conviction are not yet ripe for review.  After further
proceedings on remand, those issues may become inconsequential to the
resolution of petitioner's challenge to his conviction on Count 3.

   In any event, petitioner's construction of the RICO conspiracy
offense and its application to the facts of this case lack merit.  The
crime of conspiracy typically requires proof of an agreement whose
objective is the commission of one or more unlawful acts.  See
Braverman v. United States, 317 U.S. 49, 53 (1942).  There is no
requirement that each conspirator participate personally in the
illegal act or acts that constitute the objectives of the conspiracy.
On the contrary, a conspirator may be convicted upon a showing that he
agreed to participate in the conspiracy with knowledge of its
essential objectives.  E.g., United States v. Carter, 721 F.2d 1514,
1528 n.21 (11th Cir.), cert. denied, 469 U.S. 819 (1984).

   In accordance with these basic principles of conspiracy law, the
RICO conspiracy statute simply requires that the defendant agree to
participate in an enterprise, understanding and agreeing that the
enterprise's affairs will be conducted through the commission of a
pattern of racketeering activity or through the collection of an
unlawful debt.  There is no suggestion in the text or the legislative
history of the RICO statute that when Congress enacted RICO it
intended to depart from the general principles of conspiracy law.  Far
from imposing the additional restriction on the prosecution that
petitioner urges, Congress intended that the RICO statute be liberally
construed to achieve its objectives of combatting organized crime.
See Russello v. United States, 464 U.S. 16 (1983);  United States v.
Turkette, 452 U.S. 576, 588-589 (1981).  The evidence plainly was
sufficient in this case to show that petitioner agreed to participate
in the operation of his RICO enterprise knowing that one of the
methods of its operation was the collection of unlawful debts,
specifically the Dwek debt.  The court of appeals correctly rejected
petitioner's legal and factual arguments to the contrary.

   As petitioner points out, two circuits have stated that a RICO
defendant must agree to participate in the conduct of the enterprise
through his own commission of the required predicate acts.  United
States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981), cert. denied,
460 U.S. 1011 (1983);  United States v. Ruggiero, 726 F.2d 913, 921
(2d Cir.), cert. denied, 469 U.S. 831 (1984).  Those two early
decisions, however, have been rejected by every other court of appeals
that has subsequently ruled on the issue.  See United States v. Adams,
759 F.2d 1099, 1116 (3d Cir.), cert. denied, 474 U.S. 971 (1985);
United States v. Joseph, 781 F.2d 549, 554 (6th Cir. 1986);  United
States v. Neapolitan, 791 F.2d 489, 494-498 (7th Cir.), cert. denied,
479 U.S. 940 (1986);  United States v. Leisure, 844 F.2d 1347, 1367
(8th Cir. 1988), cert. denied, 488 U.S. 932 (1988);  United States v.
Tille, 729 F.2d 615, 619 (9th Cir.), cert. denied, 469 U.S. 845
(1984);  United States v. Carter, 721 F.2d 1514, 1529 (11th Cir.),
cert. denied, 469 U.S. 819 (1984).  /4/ Moreover, the decisions in
Winter and Ruggiero do not present an irreconcilable conflict with the
decision in this case.

   Although Winter contains dicta contrary to the ruling in the
majority of the circuits, the issue petitioner raises here was not
raised in the Winter case.  The jury in Winter was instructed that a
conviction would require an agreement to commit the predicate acts
personally -- an instruction unduly favorable to the defendant.  The
defendants argued on appeal that a RICO conspiracy requires that each
of the defendants actually commit the predicate acts.  The First
Circuit rejected that argument.  The court's statement that a RICO
conspiracy requires only an agreement to commit the required predicate
acts personally was based on a broad reading of language in an earlier
decision from another circuit, which the same court read more narrowly
in a later case.  /5/ The First Circuit's language in Winter is
therefore dictum, and in light of the discredited underpinnings of
that dictum as well as the subsequent contrary decisions of other
circuits, the First Circuit may well disavow that position when the
occasion arises.

   The Second Circuit in Ruggiero did reverse a conviction for RICO
conspiracy, but the court's analysis of the nature of the RICO
conspiracy agreement was not necessary to its decision.  The
indictment had charged defendant Tomasulo with RICO conspiracy based
on two predicate acts.  One of the two was held to be legally
insufficient on appeal.  The court therefore concluded that the single
surviving predicate act did not qualify as the required pattern of
racketeering acts and accordingly invalidated the conviction.  Thus,
the defendant's conviction would have been invalid regardless of the
nature of the agreement required to sustain a RICO conspiracy
conviction.  The Second Circuit's statement of the rule that a
defendant must agree to personally commit at least two predicate acts
is therefore also dictum.

   Ruggiero, like Winter, was decided without the benefit of the
analysis in United States v. Carter, supra, and the other court of
appeals decisions that have adopted what has become the majority rule.
 Indeed, the Ruggiero court stated that it considered its construction
of Section 1962(d) to be required by "(p)revailing case law" (726 F.2d
at 921).  Since 1984, every court that has addressed the issue has
adopted the majority rule, which applies to RICO conspiracy the
principles of general conspiracy law.  In light of that developing
trend, the Second Circuit, like the First Circuit, may be prepared to
reconsider its dictum in Ruggiero when it is presented with a case
that requires it to decide whether to adopt that dictum as the law of
the circuit.  /6/

   Finally, it was not improper for the court of appeals to use the
jury's response to a special interrogatory on one count to construe
the jury's verdict on another count.  A conviction that might have
been premised on alternative grounds may be upheld if the court of
appeals can determine with certainty that the actual ground relied
upon by the jury was a valid basis for the conviction.  See Street v.
New York, 394 U.S. 576, 585-588 (1969);  Stromberg v. California, 283
U.S. 359, 367-370 (1931).  The court of appeals therefore correctly
relied on the special interrogatory response of the jury respecting
the unlawful debt upon which the Count 2 RICO conviction was based as
accurately indicating which unlawful debt underlay the jury's Count 3
RICO conspiracy conviction.  See, e.g., Brennan v. United States, 867
F.2d 111, 114-116 (2d Cir.) (guilty verdict on a substantive count may
be taken as the equivalent of a special interrogatory indicating that
that substantive count was one of the predicate acts on which the
conviction on a RICO count was based), cert. denied, 109 S. Ct. 1750
(1989).  Contrary to petitioner's contention, nothing in United States
v. Powell, supra, requires a different result.

                              CONCLUSION

   The petition for a writ of certiorari should be granted as to the
first question presented, the judgment of the court of appeals should
be vacated, and the case should be remanded for further consideration
in light of United States v. Rios, No 89-61 (Apr. 30, 1990).  In all
other respects, the petition should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   RICHARD A. FRIEDMAN

      Attorney

   MAY 1990

   /1/ Co-defendant Elias Saka was found guilty of the five offenses
of which petitioner was convicted, as well as various other extortion
and fraud offenses.  He was sentenced to a total of 20 years'
imprisonment and a $185,000 fine.

   /2/ The court of appeals also affirmed the district court's ruling
admitting the tapes despite the sealing delay and the temporary
transfer of custody to an outside expert.  In accordance with circuit
precedent, the court of appeals found that the district court's
unchallenged finding regarding the integrity of the tapes was
dispositive.  Pet. App. 62-73.

   /3/ Both the district court and the court of appeals denied the
motion to suppress solely on the basis of the tapes' integrity;  there
has thus not yet been any inquiry into the reason for the delay.  The
court of appeals accordingly may wish to remand the case to the
district court for a hearing at which the government can explain the
reason for the delay;  the district court can then determine whether
that explanation is "satisfactory." In Rios, respondents contended
that the explanation for the delay offered on appeal was a post hoc
rationalization, rather than the real reason for the delay.  The Court
accordingly remanded for a determination whether the record showed
that the "satisfactory explanation" for the delay presented by the
government on appeal was the same as the explanation provided to the
district court by the individual responsible for the delay.  Slip op.
8-9.  Nothing in Rios bars the government from presenting on remand
the explanation for the delay in this case.  The district court must,
of course, find that the explanation given is the actual reason for
the delay, not simply a post hoc rationalization.

   /4/ The Eleventh Circuit decided the Carter case five days before
the Second Circuit's decision in Ruggiero, but the panel in Ruggiero
was apparently not aware of the decision in Carter.

   /5/ The court relied on ambiguous language in United States v.
Elliott, 571 F.2d 880, 902 (5th Cir.), cert. denied, 439 U.S. 953
(1978).  The court of appeals read that language narrowly in United
States v. Carter, supra.

   /6/ This Court has repeatedly denied certiorari in cases raising
this issue in the last six years.  See Wougamon v. United States,
cert. denied, 488 U.S. 960 (1988);  Finestone v. United States, cert.
denied, 484 U.S. 948 (1987);  Stewart v. United States, cert. denied,
480 U.S. 919 (1987);  Messino v. United States, cert. denied, 479 U.S.
939 (1986);  Neapolitan v. United States, cert. denied, 479 U.S. 940
(1986);  Adams v. United States, cert. denied, 474 U.S. 971 (1985);
Tillie v. United States, cert. denied, 469 U.S. 845 (1984);  Carter v.
United States, cert. denied, 469 U.S. 819 (1984).