UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CRIMINAL DIVISION
January 4, 2011
UNITED STATES OF AMERICA, PLAINTIFF,
JOSE ALFARO, ET AL.,
The opinion of the court was delivered by: The Honorable Manuel Real United States District Judge
ORDER DENYING DEFENDANTS' MOTION TO SUPPRESS EVIDENCE DERIVED FROM IMPROPERLY HANDLED INTERCEPTIONS NOT TIMELY AND PROPERLY SEALED
Having heard from plaintiff, the United States of America, by and through its counsel of record, the United States Attorney for the Central District of California, and defendant ALEX SANCHEZ, by and through the authorized representative of his counsel of record, Kerry Bensinger, at a hearing held before this Court on November 20, 2010, and good cause appearing, the Court hereby FINDS AS FOLLOWS
1. The Court read and considered Alex Sanchez's Motion to Suppress Evidence Derived from Improperly Handled Interceptions Not Timely and Properly Sealed filed on July 30, 2010, the government's opposition, and defendant's reply thereto. The Court also read and considered the supplemental filings by the government filed on September 15, 2010, and November 23, 2010, and defendant's supplemental response filed on November 28, 2010.
2. On November 30, 2010, this Court held a hearing on the motion. Defendant appeared in person with his counsel of record. After hearing argument, the Court denied defendant's Motion to Suppress.
3. Title 18, United States Code, Section § 2518(8)(a) provides that recordings of interceptions "shall be made available to the judge" who issued the order "[i]mmediately upon the expiration of the period of the order, or extensions thereof," and "sealed under [the judge's] directions." "Immediate" means "within one or two days" and "any delay beyond that certainly calls for explanation." United States v. Pedroni, 958 F.2d 262, 265 (9th Cir. 1992) citing United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir. 1979). Where the government obtained extensions on a communication facility, sealing is required "only at the conclusion of the whole surveillance." See, e.g., United States v. Scafidi, 564 F.2d 633, 641 (2nd Cir. 1977).
4. The Court accepts the government's calculations and its justification for delays. Explanations for sealing delay are satisfactory where the government advanced a bona fide reason, there was no reason to believe there was any deliberate flouting of the Title III requirements, no reason to doubt the tapes' integrity, and no basis for inferring any other prejudice to the defendants. United States v. Maldonado-Rivera, 922 F.2d 934, 950 (2d Cir. 1990). An explanation is satisfactory if, in the circumstances, it dispels any reasonable suspicion of tampering. United States v. Coney, 407 F.3d 871, 875 (7th Cir. Ill. 2005). All recordings at issue were timely sealed in accordance with Title 18, United States Code, Section § 2518(8)(a). With respect to the interceptions obtained pursuant to order 00-336, the delay of 114 days, while regrettable, was caused by a bona fide misapprehension. There was neglect, but it was harmless and therefore, while it was not justifiable, it was excusable. See, Coney, 407 F.3d 875. The Court finds it noteworthy that the district courts indeed sealed all of the recordings at issue despite any delay.
THEREFORE, FOR GOOD CAUSE SHOWN:
IT IS HEREBY ORDERED that defendant Alex Sanchez's Motion to Suppress Evidence Derived from Improperly Handled Interceptions Not Timely and Properly Sealed is denied.
IT IS SO ORDERED.
Presented by: Xochitl Arteaga
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