Vastola (II), 915 F.2d 865, 870 (3d Cir. 1990), cert.
denied, 498 U.S. 1120, 111 S.Ct. 1073 (1991).
In Vastola II, supra, the Third Circuit interpreted the
term “immediately,” as contained in 18 U.S.C.A. §
2518(8)(a), which requires that the tapes be sealed
“[i]mmediately upon the expiration of the period of the
order, or extensions thereof,” to mean “‘as soon as was
practical’ and not instanter.” United States v. Carson, 969
F.2d at 1487 (quoting in part United States v. Vastola II,
915 F.2d at 875). As further noted in Vastola II, if the
tapes are not sealed immediately, i.e., as soon as
administratively practical, they must be suppressed at
trial unless the government can provide a satisfactory
explanation for its failure to comply with the sealing
requirements. United States v. Carson, 969 F.2d at 1487
(citing United States v. Vastola II, 915 F.2d at 870).
In Carson, the Third Circuit interpreted the phrase,
“or extensions thereof,” as provided in the federal sealing
provision, Section 2518(8)(a). See id. at 1487. The
Third Circuit held that an order authorizing a
surveillance on the same subject, at the same location,
and regarding the same matter as an earlier authorized
surveillance, would constitute an “extension” of the
earlier authorization, if, but only if, the new
authorization was obtained as soon as administratively
practical or any delay was satisfactorily explained, i.e.,
shown to have occurred without the fault or bad faith on
the part of the government. Id. at 1488. In Carson, the
court also explained that there were two types of
justifiable government delays: (1) short, administrative
delays necessitated to comply with the provisions of the
Federal Wiretap Act; and (2) longer, non-administrative
delays attributable to reasonable causes, e.g., mistakes of
law or unexpected, extrinsic events beyond the
government’s control. Id. The Third Circuit noted in
Carson that Vastola II’s “as soon as practical” standard also
applied to extensions. United States v. Carson, 969 F.2d
at 1490.
F. Disclosure
The Third Circuit in In re Grand Jury, 111 F.3d
1066, 1077-79 (3d Cir. 1997), held that the “clean
hands exception” did not apply to the exclusionary rule
of the Federal Wiretap Act, i.e., the government could not
direct a witness of a privately executed wiretap to disclose
recordings of unlawfully intercepted communications to
a federal grand jury despite the government’s claim of
non-participation in the wiretap.
In United States v. Aguilar, 515 U.S. 593, 602-605,
115 S.Ct. 2357, 2363-64 (1995), the United States
Supreme Court interpreted federal wiretap provisions
which prohibit the disclosure of information resulting
from a wiretap, included “possible interception,” thereby
criminalizing the disclosure of pending wiretap
applications or authorizations, and not just those
interceptions which were “factually possible,” and even
though the defendant does not know if the wiretap would
result in an actual interception.