1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-25-1994

United States of America v. Vastola

Precedential or Non-Precedential:

Docket 93-5529

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States of America v. Vastola" (1994). 1994 Decisions. Paper 27.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/27
1 

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

NO. 93-5529 

 

UNITED STATES OF AMERICA 

 Appellee

v. 

GAETANO VASTOLA 

 Appellant

 

On appeal from the United States District Court 

for the District of New Jersey 

(D.C. Criminal No. 86-301) 

 

Argued March 4, 1994 

Before, STAPLETON and SCIRICA, Circuit Judges, and 

VAN ANTWERPEN, District Judge* 

(Opinion filed May 25, 1994) 

 

Herald Price Fahringer (argued) 

Diarmuid White 

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria 

110 East 59th Street 

New York, New York 10022 

 Attorneys for Appellant 

Marion Percell (argued) 

Michael Chertoff 

United States Attorney 

970 Broad Street 

Newark, New Jersey 07102 

 Attorneys for Appellee 

 
2 

* Hon. Franklin S. Van Antwerpen, United States District 

Court for the Eastern District of Pennsylvania, sitting 

by designation. 
3 

OPINION OF THE COURT

VAN ANTWERPEN, District Judge. 

 Appellant Gaetano Vastola ("Vastola") comes before us 

for the fourth time seeking to overturn his May 3, 1989 

convictions for two substantive RICO offenses under 18 U.S.C. 

§ 1962(c), a RICO conspiracy offense under 18 U.S.C. § 1962(d), 

and conspiracy to use extortionate means to collect an extension 

of credit, in violation of 18 U.S.C. § 894. Vastola seeks 

suppression of certain wiretap recordings, improperly sealed 

under Title III of the Omnibus Crime Control and Safe Streets Act 

of 1968 (Wiretap Act), as amended, 18 U.S.C. § 2510 et seq.

Vastola challenges the findings of the district court from the 

most recent remand in this case. U.S. v. Vastola, 830 F.Supp. 

250 (D.N.J. 1993). Specifically, Vastola disputes the finding 

that the United States Attorney supervising the wiretap 

surveillance conducted adequate legal research or otherwise acted 

as a reasonably prudent attorney when she failed to seal the 

wiretap tapes in a timely fashion. 

 The history of this complex case has been welldocumented in the many published opinions written in connection 

with this case. United States v. Vastola, 989 F.2d 1318 (3d Cir. 

1993) (Vastola III); United States v. Vastola, 915 F.2d 865 (3d 

Cir. 1990) (Vastola II), cert. denied, 498 U.S. 1120, 111 S.Ct. 

1073 (1991); United States v. Vastola, 899 F.2d 211 (3d Cir. 

1990) (Vastola I), vacated and remanded, 497 U.S. 1001, 110 S.Ct. 

3233 (1990). We will discuss only the facts and procedural 
4 

history relevant to our review of the most recent remand of this 

case to the district court. 

I. 

Facts and Procedural History

 On May 3, 1989 the district court entered an order of 

judgment and commitment against Vastola after a jury found him 

guilty of two substantive RICO offenses. Vastola had been 

charged, along with 20 other co-defendants in a 114-count 

indictment filed on September 19, 1986. Vastola was sentenced to 

serve a total of twenty years' imprisonment and to pay a total 

fine of $70,000. 

 Prior to trial, Vastola and the other defendants filed 

an omnibus motion that included a request for the suppression of 

the electronic tapes obtained from the government's surveillance 

of an establishment named the Video Warehouse in West Long 

Branch, New Jersey ("West Long Branch tapes"), between March 15, 

1985 and May 31, 1985. The tapes were not sealed until July 15, 

1985, more than 45 days after the final interception on May 31, 

1985 and 32 days after the June 13, 1985 expiration date of the 

order authorizing the surveillance. Defendants contended that 

the West Long Branch tapes should be suppressed pursuant to the 

Wiretap Act, 18 U.S.C. § 2518(8)(a).0

 

0Section 2518(8)(a) provides, in pertinent part: 

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 
5 

 The district court determined, in effect, that the 

sealing was untimely. However, the district court refused to 

suppress the tapes, relying on the case of United States v. 

Falcone, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. 955, 

95 S.Ct. 1338 (1975) for the rule that suppression is warranted 

only where it can be shown that the physical integrity of the 

tapes has been compromised. Finding by clear and convincing 

evidence that the physical integrity of the West Long Beach tapes 

had not been compromised, the district court denied Vastola's and 

the other defendants' motion to suppress. United States v. 

Vastola, 670 F.Supp. 1244, 1282 (D.N.J. 1987), aff'd in part, 

rev'd in part, 899 F.2d 211 (3d Cir.), vacated and remanded, 497 

U.S. 1001, 110 S.Ct. 3233 (1990). 

 On appeal, we affirmed the district court's refusal to 

suppress the West Long Branch tapes on the basis of Falcone. 

Vastola I, 899 F.2d 211 (3d Cir. 1990). On June 25, 1990, the 

Supreme Court vacated this decision and remanded the matter for 

further consideration in light of the recently decided case of 

United States v. Ojeda Rios, 495 U.S. 257, 110 S.Ct. 1845, 109 

L.Ed.2d 224 (1990). In Ojeda Rios, the Supreme Court held that a 

 

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 . . . 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. 

18 U.S.C. § 2518(8)(a). 
6 

delay in sealing authorized electronic surveillance tapes 

requires suppression of the tapes unless the government offers a 

"satisfactory explanation" for the sealing delay. The court held 

that section 2518(8)(a) requires that the actual reason for the 

sealing delay be objectively reasonable at the time of the delay. 

Ojeda Rios, 495 U.S. at 266-267, 110 S.Ct. at 1850-1851. 

 On remand from the Supreme Court, this court concluded 

that "a sealing delay indeed occurred as the West Long Branch 

tapes should have been sealed either as soon as was practical 

after May 31, 1985, when the actual surveillance ended, or as 

soon as practical after June 13, 1985, when the final extension 

order expired." Vastola II, 915 F.2d 865, 875 (3d Cir. 1990). We 

then remanded to the district court to determine "whether the 

government should now be permitted, under Ojeda Rios, to offer an 

explanation for its violation of the sealing requirement." Id.

at 876. Vastola's petition for certiorari from this decision was 

denied. Vastola v. United States, 498 U.S. 1120, 111 S.Ct. 1073 

(1991). 

 On December 14, 1990 the district court conducted a 

hearing at which the government presented evidence concerning the 

reason for the sealing delay. The district court determined that 

"the actual reason for the sealing delay was that the Assistant 

United States Attorney in charge of the electronic surveillance, 

Diana Armenakis, and her supervisor on the case, Thomas Roth, 

believed that the Wiretap Act did not require the sealing until 

the end of the investigation." United States v. Vastola, 772 

F.Supp. 1472, 1481 (D.N.J. 1991), vacated and remanded, 989 F.2d 
7 

1318 (3d Cir. 1993). The court found that the government's 

misunderstanding of the law had been objectively reasonable and 

the delay had perforce been satisfactorily explained." Id., at 

1483. Accordingly, the district court reinstated Vastola's 

conviction, sentencing him to 17 years imprisonment. 

 On appeal from the order reinstating his conviction, we 

held that the district court had not abused its discretion by 

allowing the government to present evidence supporting its 

explanation for the sealing delay. Vastola III, 989 F.2d 1318, 

1324-25 (3d Cir. 1993). However, relying on our earlier decision 

in United States v. Carson, 969 F.2d 1480 (3d Cir. 1992), we 

reversed as to the finding that the government's explanation was 

objectively reasonable. Nonetheless, we remanded this case for 

further proceedings because, as we held in Carson, an 

"unreasonable mistake of law does not automatically lead to 

suppression." Vastola III, 989 F.2d at 1327. In Vastola III, we 

discussed the Carson holding as follows: 

The Carson court explained that even though an 

attorney's mistake of law is unreasonable, the 

government can still show a satisfactory explanation if 

"the attorney involved acted as a 'reasonably prudent' 

attorney would to investigate the legal question 

involved in a reasonably prudent manner." 969 F.2d at 

1494 . . . The case [Carson] then stands for the 

proposition: When a government attorney's legal 

conclusion is found to be unreasonable, the explanation 

for the delay would still be an objectively reasonable 

"mistake of law" if the government can show that its 

attorney has adequately researched the law or has 

otherwise acted reasonably. 

Vastola III, 989 F.2d at 1327. Since the district court did not 

make a determination whether Assistant United States Attorney 
8 

Armenakis ("Armenakis") acted reasonably under the circumstances, 

we remanded for further proceedings. 

 The district court addressed this narrow question of 

attorney conduct in its published opinion United States v. 

Vastola, 830 F.Supp. 250 (D.N.J. 1993) ("Second Remand"). The 

court found that while Armenakis failed to conduct adequate 

research, her "reliance on the authoritative advice given by her 

colleagues constituted an adequate substitute for further reading 

of the caselaw, and her behavior was objectively reasonable under 

the circumstances." Id., 830 F.Supp. at 256. Finding that the 

government had offered a "satisfactory explanation" for the 

failure to timely seal the West Long Branch tapes, the court held 

that the tapes were properly admitted at trial. Consequently, 

the court issued an order reinstating the convictions of Vastola. 

 Vastola now appeals the district court's findings, 

arguing that Armenakis' conduct was not objectively reasonable 

under the circumstances and that suppression of the surveillance 

tapes is warranted. For the reasons that follow, we affirm the 

findings of the district court. 

II. 

Standard of Review

 

 We review the district court's factual findings for 

clear error. Vastola II at 1324 (quoting U.S. v. McMillen, 917 

F.2d 773, 774 (3d Cir. 1990)). We exercise plenary review over 

the district court's legal conclusion that the Assistant United 
9 

States Attorney's conduct was "reasonably prudent" under the 

circumstances. Id. at 1324.0

III. 

Analysis

 This Court in Vastola III remanded to the district 

court on one narrow issue: Did Armenakis, in making an 

unreasonable mistake of law, nevertheless conduct herself 

reasonably under the circumstances? Vastola III, 989 F.2d at 

1327. The answer is "yes," if the government can show that its 

attorney has adequately researched the law or has otherwise acted 

prudently. Id. The burden of proof is on the government to make 

this showing. Vastola III, 989 F.2d at 1327. 

 The relevant facts for this analysis are few in number: 

Armenakis studied the statute, outlined it, read its annotations, 

and spoke with more experienced attorneys. Vastola III, 989 F.2d 

at 1327.0 

 

0The Government urges a highly deferential review of all aspects 

of the district court's opinion in this case, not just of its 

findings of fact; it thus argues we should use the standard of 

review we use for the Rule 11 determinations of a district court. 

See Cooter & Gell v. Hartmarx Corp, 496 U.S. 384, 110 S.Ct. 2447 

(1990). Because this case involves a question of the legal 

standard of reasonable research of a government attorney in a 

criminal case, and not just reasonable attorney conduct in a 

civil context, we find the suggested standard inappropriate. 

0These findings of fact were established by the district court 

during the first remand, United States v. Vastola, 772 F.Supp. 

1472, 1480 (D.N.J. 1991). The district court held an evidentiary 

hearing in 1990, five years after the relevant conduct occurred. 

The district court's findings were acknowledged by the Third 

Circuit in Vastola III, and relied upon by the district court 

during the most recent remand. We are satisfied that they are 

not clearly erroneous. 

 The district court found in Second Remand that these 

facts provided a sufficient factual basis to decide the question 

of reasonable conduct. As a result, no additional evidence was 
10 

 The district court invoked Federal Rule of Civil 

Procedure 11 jurisprudence to define the "reasonably prudent 

attorney." The district court cited Mary Ann Pensiero, Inc., 847 

F.2d 90, 94 (3d Cir. 1988) for the following Rule 11 standard: 

An attorney's actions will be considered objectively 

reasonable where, given the existing circumstances, she 

undertakes "'a normally competent level of legal 

research'" to support the conclusion she reaches. 

Second Remand, 830 F.Supp. at 254. Under the circumstances, this 

standard is helpful in beginning an analysis of reasonable 

attorney conduct. The intended goal of Rule 11 is 

accountability. It "imposes on counsel a duty to look before 

leaping and may be seen as a litigation version of a familiar 

railroad crossing admonition to 'stop, look, and listen.'" Lieb 

v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986). In 

this case, we are assessing the reasonableness of Armenakis' 

conduct and her duty to stop, look and listen while conducting a 

wiretap investigation.0

 

taken and the district court made its rulings on these facts 

alone. We acknowledge that these facts are adequate for the task 

at hand and that further inquiry by the district court would not 

have produced additional relevant facts. 

0The analogy to Rule 11 has its limits in this context. Some of 

the factors relevant to determining whether an attorney has made 

a reasonable pre-filing inquiry into the law, (e.g., whether the 

position taken was a good faith effort to extend or modify the 

law) are not particularly helpful in determining the 

reasonableness of a government attorney's research of the law 

during an ongoing criminal investigation. See e.g. Thomas v. 

Capital Security Services, Inc., 812 F.2d 984, 988 (5th Cir. 

1987); Fed.R.Civ.Proc. 11, Advisory Committee Note; Lingle, 

supra, 847 F.2d at 95; Schering Corp. v. Vitarine 

Pharmaceuticals, Inc., 889 F.2d 490, 496 (3d Cir. 1989). 
11 

 The district court found that Armenakis herself had not 

adequately researched the law. The court reasoned as follows: 

Armenakis' research, which consisted of reading and 

outlining the statute and reviewing the relevant 

annotations, was enough to give an average attorney a 

basic understanding of the law. However, standing 

alone, this limited investigation cannot be considered 

a normally competent level of research that a 

reasonably prudent attorney would undertake. 

Second Remand, 830 F.Supp. at 255. We agree. Given the serious 

consequences which follow from the mistaken application of the 

Wiretap Act, i.e. suppression, a reasonable United States 

attorney should not be satisfied with a basic understanding of 

the Act and a summary review of applicable caselaw. In addition, 

as the district court reasoned, "the meaning of a complex 

statute, such as the Wiretap Act, is not always readily 

ascertainable from just the reading of the text; and the 

annotations often fail to fully reflect how caselaw has 

interpreted a statutory provision." Thus, Armenakis' research, 

standing alone, cannot be considered adequate. The inquiry, 

therefore, turns on whether Armenakis otherwise acted prudently. 

 The district court found that Armenakis acted as a 

reasonably prudent attorney, and based its conclusion on the 

"interaction between Armenakis' own research and the 

authoritative confirming advice she received from other, more 

experienced United States Attorneys." That is, Armenakis' 

research, standing alone was inadequate. This coupled with the 

confirmation of her initial understanding of the law by more 
12 

experienced colleagues, however, convinced the district court 

that Armenakis acted reasonably under the circumstances.0

 We agree that when an attorney receives confirmation of 

legal theories from a number of proper sources, each consistent 

with the next, the attorney can act reasonably in relying on 

these theories in the course of legal research. The district 

court properly found that Armenakis' limited book research was 

inadequate. Moreover, her conversations with other attorneys, 

standing alone, were also insufficient. Carson, 969 F.2d at 1495 

(an attorney may not rely merely on conversations with peers or 

supervisors concerning developing area of law where incorrect 

answer could lead to suppression of important evidence). However, 

we believe that the combined impact of these concurring sources 

created a degree of certainty (albeit minimal) which a prudent 

attorney could have accepted in arriving at an appropriate 

procedure for sealing. 

 From a factual standpoint, the caselaw as it existed at 

the time was not inconsistent with a reasonably thorough review 

 

0We do not accept the district court's finding that Roth's view 

was the general understanding of the office. The court inferred 

this from the fact that Roth was Armenakis' supervisor during the 

Video Warehouse surveillance, and that Roth was the most 

experienced of any attorney in the United States Attorney's 

office in New Jersey with respect to interceptions. Second 

Remand, 830 F.Supp. at 256, n.6. We do not think it necessarily 

follows that Armenakis spoke to other attorneys with Roth's view. 

Since Roth would have counselled her to promptly seal the tapes 

after each location, such information might have better informed 

Armenakis about proper procedure. App. at 25. Nonetheless, we 

accept the finding that she spoke to more experienced colleagues, 

and that they confirmed her view of the law. We think it was 

reasonable for Armenakis to rely on these colleagues, whether or 

not Roth's view was the general understanding of the office. 
13 

of the relevant annotations.0 When Armenakis conducted her legal 

research, no "red flags" would have appeared to warn her about 

the need to seal the tapes as the investigation continued but the 

location of the surveillance changed. Our review of the relevant 

annotations discloses no Third Circuit case which would have 

definitively clarified this issue, or even notified Armenakis of 

a conflict.0 In fact, cases from other circuits could have led 

her in the opposite direction.0

 

0Just as we examined Armenakis' understanding of the law to 

determine whether it was objectively reasonable at the time of 

the delay, Ojeda Rios, 110 S.Ct. at 1851, we will also examine 

Armenakis' conduct at the time of the delay to determine if it 

was reasonably prudent attorney conduct. Cf. Schering Corp., 

supra, 889 F.2d at 496 ("the wisdom of hindsight is to be 

avoided; the attorney's conduct must be judged by what was 

reasonable to believe at the time the pleading, motion, or other 

paper was submitted.") 

0Of the few Third Circuit cases appearing in the relevant 

portions of the Federal Digest, only the United States v. 

Falcone, 505 F.2d 478 (3d Cir. 1974) appears to be even remotely 

on point. In that case, the court ruled that the tapes were not 

sealed in accordance with the statute. However, there was no 

explanation of how or why the sealing failed to accord with the 

statute. The rule of law in Falcone, later overturned in Ojeda 

Rios, was as follows: 

all we hold is 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. 

We hasten to add that this holding, of course, does not 

deprecate the importance of the sealing requirement. 

Certainly, it should be complied with in all respects. 

As this case so aptly demonstrates, compliance would 

have avoided considerable uncertainty and delay. 

Falcone, 505 F.2d at 484. Instead of clarifying the meaning of 

18 U.S.C. § 2518(8), we held that delays in sealing would not 

result in suppression. 

0See e.g. United States v. Principie, 531 F.2d 1132, 1142, and n. 

14 (2nd Cir. 1976), cert. denied, 430 U.S. 905 (1977) (electronic 

surveillance order entered 16 days after a prior order regarded 

as an "extension" within the meaning of 
14 

 An inquiry into the reasonableness of an attorney's 

legal research is necessarily fact and time specific. The court 

must take into account not only the particular methodology 

employed by the attorney, but also the complexity of the law at 

the time in question.0 Armenakis' conduct is far from a model 

for others to follow and our ruling is, of course, limited to the 

facts and time frame of this case. 

 With its decision in Ojeda Rios, the Supreme Court 

significantly clarified the sealing requirements of the Wiretap 

Act and changed the caselaw which we use to help judge reasonable 

attorney behavior.0 The Court admonished: "the seal required by 

 

§ 2518 because it was considered part of the same investigation 

of the same individuals conducting the same criminal enterprise); 

United States v. Scafidi, 564 F.2d 633, 641 (2nd Cir. 1977), 

cert. denied, 436 U.S. 903 (1978) (where intercept is on same 

premises and involves substantially same persons, an extension 

under those circumstances requires sealing only at conclusion of 

whole surveillance). 

0Due to the absence of controlling Third Circuit precedent, we 

cannot label Armenakis' conclusions "patently unmeritorious or 

frivolous." Only when an attorney offers such an implausible 

view of the law, in the Rule 11 context, would she be subject to 

sanctions. See Doering v. Union County Bd. of Chosen 

Freeholders, 857 F,2d 191, 194 (3d Cir. 1988); Dura Systems, Inc. 

v. Rothbury Investments, Ltd., 886 F.2d 551, 556 (3d Cir. 1989) 

(Rule 11 evaluation includes question of whether pleading was 

based on plausible view of the law). 

0See Judge Easterbrook's opinion in Mars Steel Corp. v. 

Continental Bank N.A., 880 F.2d 928 (7th Cir. 1989), in which he 

observed: 

A lawyer who founds his suit on Plessy v. Ferguson, 163 

U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), has 

revealed all we need to know about the reasonableness 

of the pre-filing inquiry...If the legal point is 

obscure, though, even an absurd argument may not be 

sanctionable, because a "reasonable" inquiry does not 

turn up every dusty statute and precedent. An 

objectively frivolous legal position supports an 

inference that the signer did not do a reasonable 
15 

§ 2518(8)(a) is not just any seal but a seal that has been 

obtained immediately upon the expiration of the underlying 

surveillance order." Ojeda Rios, 110 S.Ct. at 1849 (emphasis in 

original). Of additional significance is the clarification of 

the Wiretap Act provided by section 2518(11), added to Title III 

as part of the Electronic Communications Privacy Act of 1986, 

§ 106(d)(3), Pub.L.No. 99-508, 100 Stat. 1848, 1857, reprinted in

1986 U.S.Code Cong. & Admin.News. This provision, which 

authorizes roving surveillance upon a showing that the suspect's 

purpose is to thwart interception by changing facilities, was 

passed in 1986 and plainly discredits arguments based upon the 

so-called "extension theory."0 See Vastola II, 915 F.2d at 874. 

 Vastola argues that Carson compels a different result. 

The district court cited to Carson for the proposition that an 

attorney's reliance on the counsel of more experienced colleagues 

can constitute reasonable attorney conduct. See Second Remand, 

830 F.Supp. at 256. In Carson, the government attorney, Robins, 

did not immediately seal wiretap tapes after surveillance ended 

because he expected the same surveillance to begin again when the 

subject returned from a hospital stay. Robins alleged that, like 

 

amount of research, but an inference, no matter now 

impressive, is no more than an inference. 

Mars Steel Corp. v. Continental Bank N.A., 880 F.2d at 932. 

0The court in Vastola II referred to the Electronic 

Communications and Privacy Act of 1986 in order to make a legal 

determination, based on the text of the statute, of the meaning 

of the Wiretap Act. Since the amending provision was not passed 

until after the relevant conduct by Armenakis, it is evident that 

by referring to section 2518(11) the court in Vastola II was not 

commenting upon the reasonableness of Armenakis' conduct in 1985. 

The court in Vastola III remanded this matter to the district 

court for a determination of the reasonableness of her conduct. 
16 

Armenakis, he believed at the time that sealing was not necessary 

until the entire investigation was completed. Robins claimed 

that he asked his supervisor about the sealing requirements and 

had (mistakenly) understood his supervisor to explain that no 

sealing was required until all surveillance ended. The Carson

Court found that Robins' legal conclusion regarding sealing was 

not objectively reasonable, but it remanded the case to the 

district court for consideration of whether Robins' reliance on 

what he thought the supervisor told him was reasonable without 

any additional, independent research. The court in Carson

offered the following standards regarding an attorney's reliance 

on the counsel of colleagues: 

Arguably, a reasonable attorney would not have risked 

the exclusion of the tapes, evidence important to his 

case, without personally checking the law relating to 

its admission. It is not always unreasonable for an 

attorney to rely on a reasoned oral opinion of a 

supervisor, or even that of a peer with more experience 

in the area of law in question. Moreover, an attorney 

working under another lawyer on a case could not be 

faulted for following instructions, as opposed to 

advice, from the person in charge of the case or 

investigation. On the other hand, we do not think that 

a reasonable attorney can rely on a casual conversation 

with a peer or supervisor concerning developing law on 

a complex, controversial subject if an incorrect answer 

is likely to preclude admission of evidence of vital 

importance to the case. 

Carson, 969 F.2d at 1495 (emphasis added). 

 The district court found that, like Robins in Carson, 

Armenakis relied on the opinions of her more experienced 

colleagues in formulating her opinion. But unlike the attorney 

in Carson, Armenakis did more here than merely rely on these 
17 

conversations.0 Her understanding of the law was supplemented by 

her reading and outlining of the statute and her review of the 

relevant annotations at that time. Armenakis did, in fact, check 

the law in this case. And her reading of the law confirmed her 

understanding (albeit a misunderstanding) that sealing was only 

required at the end of the investigation. Thus, the Carson

decision is authoritative but clearly distinguishable on its 

facts. 

 We recognize that the wiretap is a powerful and 

invasive law enforcement tool, and that the Wiretap Act was 

enacted to establish procedural safeguards which assure that "the 

interception is justified and that the information obtained 

thereby will not be misused." Gelbard v. United States, 408 U.S. 

41, 47, 92 S.Ct. 2357, 2361 (1972) (citations omitted). 

Nonetheless, we hold for the reasons stated that the combined 

effect of Armenakis' conduct at the time in question was 

minimally sufficient to meet the standards of a reasonably 

prudent attorney. 

V. 

Conclusion

 For the reasons set forth above, we conclude that the 

order of the district court should be affirmed. 

 

0We note that the court in Carson did not decide the question of 

whether attorney Robins' reliance on what he thought his superior 

told him without independently checking the law might be 

reasonable. Thus, Carson leaves open the possibility than a mere 

reliance on a superior's understanding of the law might be 

reasonable in certain circumstances. Of course, in this case 

Armenakis conducted independent research in addition to her 

consultation with other, more experienced attorneys in the 

office. 
18 
19 

United States of America v. Gaetano Vastola 

No. 93-5529 

STAPLETON, Circuit Judge, Dissenting: 

 If the government's evidence in this case is sufficient 

to carry its burden of providing a "satisfactory explanation" for 

failing to comply with the immediate sealing requirement of the 

statute, that requirement is reduced to a precatory entreaty. 

Because it is clear from Ojeda Rios that Congress intended 

something more, I respectfully dissent. 

 Wire surveillance of the Video Warehouse in West Long 

Branch, New Jersey, was authorized on March 15, 1985. After two 

extensions, the authority expired on June 13, 1985. The 

surveillance actually terminated on May 31, 1985. Wire 

surveillance of Video's new location in Neptune City, New Jersey, 

was authorized on June 26, 1985. That authority ceased and the 

surveillance was terminated on July 25, 1985. 

 Duplicates of 185 reels of tape from the West Long 

Branch surveillance were sealed 45 days after that surveillance 

ceased and 32 days after the authorization terminated. When the 

government realized its mistake, the originals of these reels of 

tape were sealed a little over a month later, on August 19, 1985. 

 The federal wire surveillance statute, after providing 

for court authorized wire surveillances, stipulates the following 

with respect to the making and sealing of tape recordings: 

The recording of the contents of any wire, 

oral, or electronic communication under this 
20 

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. . . . 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. 

18 U.S.C. § 2518(8)(a) (emphasis supplied). 

 The tapes from the West Long Branch surveillance are 

the ones at issue here. The government has not contended that a 

sealing involving a 32 day or longer delay would constitute an 

"immediate" sealing. Rather, the government, in United States 

v. Vastola, 915 F.2d 865 (3d Cir. 1990), cert. denied, 498 U.S. 

1120 (1991) ("Vastola II"), advanced two alternative theories 

under which there was said to be no violation of the statute. 

First, it insisted that there had been no delay because the order 

of June 26, 1985, authorizing surveillance of the Neptune City 

site, was an "extension" of the original authorization, and the 

duty to seal did not arise until the Neptune City surveillance 

terminated. We rejected this argument, concluding: 

We could not possibly hold that the Neptune 

City interception order was an extension of 

the West Long Branch order. Although the 

government rightly points out that Rios

[United States v. Ojeda Rios, 495 U.S. 257 

(1990)] did not decide whether a change in 

the location of an illegal operation will 

prevent a subsequent order covering the new 

location from being an extension of a 
21 

previous order, the statute unambiguously 

rules out this possibility. 

Id. at 874 (footnote omitted). 

 In support of this conclusion, we referred to the above 

quoted portion of the statute and two other sections requiring 

that an application for wire surveillance authority justify the 

need for surveillance at a specific site: Section 

2518(1)(b)(ii) plainly states that an an application for 

surveillance order must contain 'a particular description of the 

nature and location of the facilities from which or the place 

where the communication is to be intercepted.' In addition, 

section 2518(3)(d) requires a particularized showing of probable 

cause that 'the facilities from which, or the place where, the 

wire, oral, or electronic communications are to be intercepted 

are being used, or are about to be used, in the commission of 

[the] offense [under investigation].' Based on these two 

provisions alone, we would have no difficulty concluding that 

Congress intended for interception orders, and their accompanying 

extensions, to apply only to surveillances in the particular 

locations specified in the applications. 

Vastola II, 915 F.2d at 874.0 We held, based on the plain 

meaning of the text of the statute, that the duty to seal arises 

"upon the expiration of the order or extensions thereof" and that 

an order authorizing surveillance at another site is not an 

extension.0

 

0As the majority correctly points out, we also referred to a 1986 

statutory amendment authorizing roving surveillance upon a 

showing that the suspect's purpose is to thwart interception by 

changing facilities. The "unmistakable inference" to be drawn 

from this amendment, we held, was that the other provisions of 

the statute "restricted surveillance to particular locations, 

regardless of whether the same suspects and crimes were 

involved." Id. at 875. The above quoted text leaves no doubt, 

however, that our conclusion would have been the same in Vastola 

II if we had confined our analysis to the text of the statute as 

it existed prior to this amendment when the surveillances in this 

case were conducted. 

02. During our analysis of the plain meaning of the text in 

Vastola II, we pointed out that the Second Circuit case law 

existing at the time of the surveillance in this case did not 

support the view that a new authorization for surveillance at a 

different location could constitute an extension of a prior 

authorization for another site. We noted and rejected the 

government's contention that United States v. Vazquez, 605 F.2d 
22 

 Having concluded that the duty to seal the West Long 

Branch tapes arose no later than June 13, 1985, the date the 

authorization for the surveillance of that location terminated, 

we turned to the government's second argument -- i.e., its 

"suggestion that, even if erroneous, the supervising attorneys' 

reasonable belief that the order of June 26, 1985, extended the 

original interception order satisfactorily explains the delay" in 

sealing the West Long Branch tapes. Id. at 875. We declined to 

pass upon this argument because the government up to that point 

had tendered no evidence to the district court concerning the 

circumstances of the sealing delay. We remanded to the district 

court so that it could exercise its discretion on whether to 

 

1269 (2d Cir. 1979), cert. denied, 444 U.S. 981 (1979), stood 

"for the proposition that the term, 'extension,' encompasses all 

continuation of wiretap orders involving the same crimes and 

substantially the same people." 915 F.2d at 874 n. 15. We 

indicated that "[w]e would be hard pressed to read Vazquez so 

broadly." Id. The Vazquez court summarized the state of the law 

in the Second Circuit in 1979 as follows: 

Therefore, we conclude that the term 

"extensions," as used in the phrase "period 

of the order, or extensions thereof" is to be 

understood in a common sense fashion as 

encompassing all consecutive continuations of 

a wiretap order, however designated, where 

the surveillance involves the same telephone, 

the same premises, the same crimes, and 

substantially the same persons. See United 

States v. Scafidi, supra, 564 F.2d at 641; 

cf. United States v. Principie, 531 F.2d 

1132, 1142 n. 14 (2d Cir. 1976), cert. 

denied, 430 U.S. 905 (1977). 

Vazquez, 605 F.2d at 1278. It is thus clear that the Court of 

Appeals for the Second Circuit does not read its case law in the 

same way the majority reads it in footnote 8, supra. 
23 

reopen the record and allow the government to offer such 

evidence. 

 Between Vastola II and the time this case returned to 

us in Vastola III, we had occasion to consider another case in 

which a sealing delay had occurred in the context of sequential 

surveillance of different sites. United States v. Carson, 969 

F.2d 1480 (3d Cir. 1992). The investigation in Carson was 

conducted in 1981 and 1982. An evidentiary hearing was held by 

the district court in that case at which Warren Robins, the 

attorney who had caused 33 of the tapes of the first, "Zax", 

surveillance to be sealed, testified. His testimony was 

summarized as follows: 

Robins discussed the sealing issue 

with Stewart, his supervisor, 

during the time in December 1981 

when DiGilio was in the hospital. 

Although Stewart meant to convey 

that sealing was required at the 

end of a particular order or its 

extension, Robins understood him to 

mean that sealing was required only 

at the conclusion of the 

investigation, rather than at the 

end of interception at a particular 

location. Robins' misunderstanding 

of Stewart's advice arose, because 

at the time of their discussion the 

Zax order [authorizing the first 

surveillance] constituted the 

entire electronic surveillance 

operation. 

* * * * 

As a result, Robins believed that the sealing 

obligation for all of the tapes, including 

the Zax tapes, arose on May 12, 1982 when the 

[second] surveillance was terminated. 

* * * * 
24 

Robins therefore thought that so long as any 

part of the "wiretap interception process" 

was occurring, there was no requirement to 

seal--even if a particular wiretap operation 

which was a part of the investigation was 

complete. 

Id. at 1493-95. 

 The district court in Carson concluded "that Robins' 

view, though wrong, was objectively reasonable and that, 

therefore, the government provided a satisfactory explanation for 

the delay." Id. at 1494. We rejected this conclusion based on 

Vastola II, explaining: 

In reaching this conclusion, the court 

accepted Robins' explanation even though it 

was contrary to the unambiguous language of 

the statute. See id. at 494 (quoting Vastola 

II, 915 F.2d at 874). 

 We agree with the district court that a 

reasonable mistake of law can be a 

satisfactory explanation for delay, but we 

also think the district court's findings do 

not support its conclusion that Robins' 

explanation was satisfactory. For an 

explanation to be satisfactory under Ojeda 

Rios, it must be objectively reasonable. 

. . . The government does not, and cannot, 

argue that an objective reading of the extant 

case law might have caused an objectively 

reasonable attorney to take Robins' view. 

Id. at 1494 (footnote omitted). 

 Although the government did not maintain that the case 

law would have "caused an objectively reasonable attorney to take 

Robins' view" on February 27, 1982 (when the final extension of 

the authority for the first surveillance terminated and the duty 

to seal was triggered), the government in Carson did insist that 

it had satisfactorily explained the delay by showing that "it was 
25 

attributable to an innocent mistake on Robins' part in 

misunderstanding what Stewart told him." Id. at 1494. We 

acknowledged that it was possible for the government to have a 

"satisfactory explanation" even though it acted on the basis of 

an objectively unreasonable view of the law. We held, however, 

that the district court's findings would not support the view 

that the delay occurred "without any fault on the government's 

part." Id. at 1494. We observed: 

Robins said his conclusion that the sealing 

requirement was not triggered until all 

surveillance ended was based on a 

misunderstanding of Stewart's oral advice on 

the sealing requirements. The district court 

made no finding as to whether Robins could 

have reasonably understood Stewart as telling 

him no sealing was required until all 

surveillance ended or whether it was 

reasonable to rely on what Stewart told him 

without any independent research. If a 

reasonably prudent lawyer could have 

interpreted Stewart's statements as Robins 

did and, under all the circumstances, 

reasonably relied on them without any 

independent investigation of the law, Robins' 

explanation as to the March 9, 1982 delay 

would be an objectively reasonable mistake of 

law that satisfactorily explains the 

government's failure to meet the statute's 

requirement of immediate sealing. Affirmative 

answers to those two questions of fact are 

necessary to a determination that Robins' 

mistake of law was objectively reasonable. . 

. . 

Id. at 1494. 

 We ultimately remanded the Carson case to the district 

court to determine "whether Robins' explanation was satisfactory 

and objectively reasonable." Id. at 1501. In doing so, we made 
26 

the following cautionary observations that are very pertinent 

here: 

 The circumstances of this case may show 

that Robins had an affirmative duty to do 

more than rely on the advice of his superior. 

Arguably, a reasonable attorney would not 

have risked the exclusion of the tapes, 

evidence important to his case, without 

personally checking the law relating to its 

admission. It is not always unreasonable for 

an attorney to rely on a reasoned oral 

opinion of a supervisor, or even that of a 

peer with more experience in the area of law 

in question. Moreover, an attorney working 

under another lawyer on a case could not be 

faulted for following instructions, as 

opposed to advice, from the person in charge 

of the case or investigation. On the other 

hand, we do not think that a reasonable 

attorney can rely on a casual conversation 

with a peer or supervisor concerning 

developing law on a complex, controversial 

subject if an incorrect answer is likely to 

preclude admission of evidence of vital 

importance to the case. . . . 

Id. at 1495 (emphasis supplied). 

 Carson, like Ojeda Rios, makes clear that the 

government bears the burden of persuading the court that its 

explanation is "satisfactory." 

 On remand from Vastola II, the district court allowed 

the government to introduce additional evidence concerning the 

circumstances of the surveillance and the sealings. Based on 

that evidence, the district court concluded that "the actual 

reason for the sealing delay was that the government attorneys in 

charge of the surveillance believed that sealing was not required 

until after the entire investigation." More specifically, 

Assistant United States Attorney Armenakis, the decision maker in 
27 

this case, had "form[ed] the same mistaken belief held by 

Attorney Robins in Carson." United States v. Vastola, 989 F.2d 

1318, 1323 (3d Cir. 1993) ("Vastola III"). 

 In Vastola III, we, of course, held that Armenakis' 

view of the law was not "objectively reasonable." Id. at 1327. 

This holding was required by Carson and, indeed, was the law of 

the case in this proceeding after Vastola II. Those cases 

establish that a reasonable attorney who had reviewed the text of 

the statute with even a minimal degree of care could not have 

reached the conclusion that Armenakis did. 

 Since the record supported the finding that Armenakis' 

view of the law was the "actual reason" for the sealing delay, if 

that view had been objectively reasonable, that would have ended 

the matter in the government's favor; there would have been no 

occasion to inquire into the historic facts of how Armenakis 

reached her conclusion. This court's conclusion that her view 

was not objectively reasonable did not end the matter in the 

defendant's favor, however, because the government contended that 

Armenakis, even though wrong, acted reasonably under all the 

circumstances in reaching her erroneous conclusion. Relying on 

Carson, we held that this was a tenable position for the 

government to take, but concluded that the district court had not 

made the findings necessary to sustain it. We remanded so that 

the district court could "determine whether Armenakis conducted 

herself reasonably under the circumstances." Id. at 1327. 

 On remand from Vastola III, the parties stipulated that 

the existing record was adequate to enable the district court to 
28 

make the required findings. That record consisted of a hearing 

at which Armenakis and her immediate supervisor, Thomas Roth, 

testified. Roth testified that he recalled no conversation with 

Armenakis regarding the sealing of the tapes in this case. While 

not required under his understanding of the law in the spring of 

1989, if he had been asked by Armenakis, he would have counseled 

that "the more prudent way to do it, and the way [he] always did 

it [was to seal] when any particular facility was terminated." 

Appendix at 25. 

 Armenakis testified that she had had no prior 

experience with wire surveillance and that she received no formal 

training in that area with respect to this case. Her entire

testimony with respect to how she reached her view of the law on 

sealing was as follows: 

 Q. Did it occur to you to seal the 

interceptions that had commenced in March and 

had ceased at the end of May at Video 

Warehouse, One, I'll call it? 

 Did it occur to you at any point along 

the way? 

 A. Well, yes, at some point it did 

occur to me, yes. 

 Q. What was your understanding at that 

time as to what you were required to do in 

terms of sealing? 

 A. My understanding was that when the 

investigation was completed that you 

immediately sealed whatever tapes had been 

obtained. 

 Q. From what did you get that 

understanding? 
29 

 A. Well, when I began working on the 

investigation I studied the statute and 

several of the annotations. I spoke with 

more experienced attorneys in the office on 

wiretaps and it was, it was my understanding, 

which appeared to be consistent throughout 

the office. A. 55-56 

* * * * 

 Q. Did you speak to Mr. Fettweis during 

May or June regarding what your sealing 

obligations were? 

 A. I had a conversation with someone. 

Frankly I don't recall who it was. It may 

have been Mr. Fettweis because I had asked 

him questions throughout the investigation. I 

did speak with someone concerning the issue 

of sealing when the agent raised it. I don't 

recall who it was. A. 88. 

* * * * 

 Q. You testified that your 

understanding of the sealing requirement was 

based on part on the statute itself; is that 

correct? 

 A. Yes. 

 Q. I would like to show you defendant's 

exhibit A in evidence? 

 MR. WHITE: If I may approach the 

witness? 

 THE COURT: Yes. 

By Mr. White: 

 Q. And ask you to look at -- do you 

know what defendant's exhibit A is? 

 A. It's a portion of the statute 2518. 

It may be the entire statute. 

 Q. Yes, it is the entire statute. 

A. 89. 

* * * * 
30 

 Q. Have you looked at the statute --

would you agree with me that it does not 

support your understanding that in 1985, that 

tapes didn't have to be sealed until the end 

of an entire interception where there had 

been change of premises and the second series 

of interceptions was not an extension? 

 A. I think the answer is, no, I would 

not agree with you. The statute was the same 

then and it was my understanding and I truly 

felt that it was the interpretation of other 

assistants that this statute meant the end of 

the investigation and that is what I 

understood to be the case. 

 Q. Did you rely on the interpretation 

of other assistants for that conclusion? 

 A. I felt that my beliefs were 

consistent with those, those who I went to 

who had conducted wiretaps, yes. 

 Q. You relied on, for your conclusion, 

on what their perception of the statute was? 

 A. Not completely, but it but, in part, 

yes. 

 Q. You also relied on your own reading 

of the statute? 

 A. Yes and the annotations at the time. 

I don't recall exactly. A. 90-91. 

* * * * 

 Q. I believe your testimony was that 

Agent Mahoney notified you that the tape 

custodian at the F.B.I. had noticed the 

change in the numbers and brought that to his 

attention? 

 A. Yes. 

 Q. You consulted with some people about 

what you should do? 

 A. Yes. 
31 

 Q. After the consultation, it was 

indicated to you you should seal those tapes? 

 A. That it would probably be better to 

seal them. 

 Q. Did anyone -- how many people did 

you consult with, do you have any idea? 

 A. No, I don't recall exactly. 

 Q. Did anybody indicate to you you 

better get those sealed? 

 A. No. A. 99. 

 The district court concluded that Armenakis "acted 

reasonably under the circumstances." While "reading and 

outlining the statute and reviewing the relevant annotations" 

could not be "considered a normally competent level of research 

that a reasonably prudent attorney would undertake," the district 

court believed the "critical aspect in this case [was] the 

interaction between Armenakis' own research and the authoritative 

confirming advice she received from other, more experienced 

United States Attorneys in her office." Appendix pp. 10-11. 

 I would conclude that the record will not support the 

district court's conclusions that Armenakis acted reasonably 

under the circumstances and, accordingly, that the government's 

explanation is not "satisfactory" as that term has been 

interpreted by this court and the Supreme Court in Ojeda Rios. To 

hold that this record suffices to carry the government's burden 

under Ojeda Rios would effectively eliminate that burden and 

would ill serve the privacy concerns underlying the sealing 

requirement of the statute. 
32 

 The district court properly considered the extent of 

Armenakis' personal investigation into the law. The degree of 

effort she put into that investigation is one factor to be 

considered in determining whether she behaved reasonably. On the 

other hand, her efforts have to be evaluated in light of the fact 

that the text of "the statute unambiguously rules out" the 

conclusion she reached, as we noted in Vastola II, 915 F.2d at 

874. For this reason, I agree with the district court that 

Armenakis' personal investigation of the legal issue involved 

will not support a finding of reasonableness. 

 This leaves Armenakis' testimony that she consulted 

others in the office whose identity she cannot now recall, at 

times she cannot now recall, and under circumstances that she 

cannot now recall. While I do not fault Armenakis for being 

unable to recall in December of 1990 what she did in the spring 

of 1985, the indefiniteness of her testimony precludes anyone 

from determining anything about the circumstances under which she 

relied upon the advice of others. One can tell nothing, for 

example, about what she told her allegedly more experienced peers 

as a factual predicate for the solicited opinion, whether she 

inquired over lunch or in a more structured context, whether the 

opinions provided by the peers were tendered immediately off the 

top of their heads or after reasoned analysis, and whether or not 

Armenakis inquired concerning the basis for their proffered 

views. The government's evidence simply does not permit the kind 

of inquiry we insisted upon in Carson. As a result, we do not 

know whether this is a case involving "a reasoned oral opinion of 
33 

a . . . peer with more experience," or a mere "casual 

conversation." Carson, 969 F.2d at 1495. 

 In order for the government's explanation to be 

"satisfactory" in a situation like this, a determination that the 

advice received by the decision maker from others was reasonably 

relied upon requires far more specific support than the 

government supplied here. Accordingly, I would hold that the 

government did not carry its burden of demonstrating that 

Armenakis acted reasonably under all of the circumstances. 

 The government has argued throughout the extended 

history of this case that the admission of the 185 reels of West 

Long Branch surveillance, if error, was harmless error. It 

renews that contention before us and suggests that we should 

determine that issue without further help from the trial judge. 

This suggestion has some appeal because the parties would 

understandably like to bring this case to a close. I would 

decline, however, to accept this invitation. As we noted in 

Vastola II, "if the tapes should have been suppressed, the extent 

of the damage to the government's case could not easily be 

assessed." 915 F.2d at 877. The trial judge, who heard the very 

extensive evidence against Mr. Vastola, is in a far better 

position than we to assess that damage, and I would solicit his 

help in doing so. 

 I would remand with instructions to decide the harmless 

error issue and to grant a new trial if that issue is determined 

in Mr. Vastola's favor.