Full opinion text
RULING ON THE DEFENDANTS’ MOTION TO SUPPRESS TAPE RECORDED EVIDENCE FOR VIOLATION OF 18 U.S.C. SEC. 2518(8)(a) CLARIE, Senior District Judge. The defendants have moved to suppress the 1,011 sealed electronic surveillance tapes which are in Spanish and made in Puerto Rico pursuant to orders issued and supervised by Chief Judge Perez-Gimenez during the period of April 27, 1984 through August 23, 1985. The defendants’ motion to suppress is based on the alleged failure of the government to seal the tapes in a timely manner. The Court has heard testimony from twenty F.B.I. monitoring agents, F.B.I. agents involved in presenting the tapes for judicial sealing, the electronic surveillance clerk who maintained custody of the tapes after interception, attorneys within the Department of Justice who supervised the Title III investigation, as well as defense and government experts in the field of tape authenticity. Both the defendants and the government have filed lengthy, comprehensive briefs on the issue of sealing. Based on all the information, the motion to suppress the tapes is granted in part and denied in part. The Court suppresses, on the basis of time alone, all Levittown tapes and those Vega Baja telephone tapes made pursuant to the January 18, 1985 order; the motion to suppress all other tapes is denied. The basis for the Court’s ruling is set forth below. FACTS The defendants in this case have moved the Court to suppress the one thousand and eleven (1,011) electronic surveillance tapes generated in Puerto Rico in connection with the F.B.I.’s investigation of an alleged terrorist group which calls itself Los Macheteros. The investigation commenced as the result of a Light Anti-Tank Weapon (LAW) Rocket Attack on the F.B.I. Office in the Federal Building in Hato Rey, Puerto Rico on October 30, 1983. In connection with this case, the F.B.I. commenced electronic surveillance on April 27, 1984 and continued that surveillance at various locations until August 30, 1985. Two attorneys within the Department of Justice, Trial Attorney Frank Bove and Assistant United States Attorney Roberto Moreno acted as Title III supervising attorneys. The Chief Judge of the Federal Court for the Commonwealth of Puerto Rico, Judge Perez-Gimenez, was the authorizing judge for all the electronic surveillance that was conducted in Puerto Rico. In addition, Judge Perez-Gimenez reviewed all Title III progress reports submitted and sealed all tapes generated in the course of the investigation. Sixty-four Spanish speaking agents, from various parts of the United States, were temporarily assigned to Puerto Rico as electronic surveillance monitors during this period. During the course of this electronic surveillance, the F.B.I. uncovered evidence which implicated Los Macheteros in the $7.2 million robbery of a Wells Fargo Depot in West Hartford, Connecticut on September 12, 1983. Pursuant to an indictment handed down by a Hartford Grand Jury in connection with ths $7.2 million dollar robbery, eleven defendants were arrested in Puerto Rico on August 30, 1985. The electronic surveillance terminated on August 30, 1985 as a result of the arrests and attendant searches. Also on August 30, 1985, one defendant was arrested in Dallas, Texas and another defendant arrested in Cuernavaca, Mexico by Mexican authorities. Based on a superseding indictment handed down by a New Haven Grand Jury, three additional defendants were arrested on March 21, 1986. The first electronic surveillance order, an April 27, 1984 order, authorized the F.B.I. to intercept conversations at the Second Floor Apartment # 3384, Levittown Boulevard, Levittown Puerto Rico and at three pay telephones [(809) 795-9908, 795-9909, 784-9625] across from the Levittown apartment. Pen registers were also employed in the course of monitoring the public telephones. The Levittown apartment was identified in the affidavit filed by Special Agent Jose Rodriquez, in support of the order, as the apartment of the defendant, Filiberto Ojeda-Rios. The F.B.I. was authorized to intercept conversations which concerned violations of Sections 2384 (seditious conspiracy), 1951 (interference with commerce by threats or violence), 844(f) and (i) (destruction of government property and malicious destruction of property used in interstate or foreign commerce), and 371 (conspiracy to commit an offense or defraud the United States) of Title 18, United States Code. The government sought and received two extensions to intercept conversations at the Levittown apartment and the three pay telephones. The final order expired on July 23, 1984. In fact, however, the F.B.I. ceased monitoring on July 9, 1984. On May 11, 1984, the government sought and received authorization to intercept conversations from a 1982 Datsun Sentra Stationwagon, Puerto Rico License No. 20B892, registered in the name of Jose Rodriquez Perez, an alias for the defendant, Filiberto Ojeda-Rios. The F.B.I. sought and received four extensions to intercept conversations in the Datsun Sentra. On July 27, 1984, the government sought and received authorization to intercept oral communications by microphone at the Taft Street apartment in Santurce, Puerto Rico and wire communications at the Taft Street residence telephone (809) 725-1629. In addition, the government sought and received authorization to intercept wire and oral communications at Calle 2, # B-2, El Cortijo, Bayamon, Puerto Rico, (809) 799-4524. Pen registers were employed at both locations in connection with the telephone interception. The Taft Street apartment was the residence of two defendants in this case, Juan Segarra-Palmer and Luz Berrios-Berrios. At this point in the investigation, El Cortijo was the residence of the defendants, Filiberto Ojeda-Rios and Luis Colon-Osorio. One extension was sought and granted for continued oral surveillance at El Cortijo and Taft Street as well as wire surveillance at El Cortijo. No extension was sought to continue wire surveillance of the Taft Street residence telephone. The equipment to intercept oral communications was never installed at either El Cortijo or Taft Street because the F.B.I. could not gain entry to the residences despite continued efforts. On November 1, 1984, Judge Perez-Gimenez authorized the F.B.I. to intercept oral communications at Calle 14, Vega Baja, Puerto Rico, the changed residence of the defendants Segarra-Palmer and Berrios-Berrios. Six extensions were authorized at the Vega Baja residence. On January 18, 1985, the F.B.I. received authorization to intercept wire communications at two public telephones near the Vega Baja residence [(809) 855-9943, 858-9639]. Pen registers were used in the course of the Vega Baja telephone surveillance. A new order was authorized on March 1,1985 and two extensions to continue the wire surveillance were thereafter granted. The final extensions for both the residence and the pay telephones expired on May 30, 1985. The last electronic surveillance order authorized the F.B.I. to intercept oral communications at the El Centro Condominium, Building One, Suite 249, Hato Rey, Puerto Rico. The initial thirty day order expired on July 26, 1985 and two extensions were thereafter issued. Although the final extension expired on September 22, 1985, in fact, the wiretap terminated on August 30, 1985 “due to the execution of a search warrant on the location.” (El Centro progress report ten (10), Dated September 4, 1985). The F.B.I. used Revox A700 and B77 reel-to-reel tape recorders at the various monitoring sites. One recorder was designated an original recorder and one recorder a duplicate original. The machines were set up so that signal was sent independently into each recorder and two simultaneous recordings were produced. One recording was designated the original and the other recording the duplicate original. Where conversations were being monitored and it appeared that the reel-to-reel tapes were about to run out, the agents were instructed, fifteen minutes before the tapes ran out, to fast forward the duplicate original reel, remove it from the recorder, and place a new tape on the duplicate original machine. This new tape would be deemed an original tape. Several minutes prior to the first tape running out, the agents were to begin recording on the continuation original tape. This would result in duplicative recordings for several minutes. (See written memorandum from Special Agent Calvin Sieg, G.X. # 375A). However, this so-called Sieg procedure was orally modified and a simpler method was adopted over time to record conversations during the change of tapes. Sony superscope cassette recorders were used to record conversations sought to be intercepted during the change of the reel-to-reel tapes. The cassettes so generated are titled “A” Tapes. Fifty-five “A” Tapes were produced at Levittown. Cassette recorders were used for two additional purposes during the Title III investigation. The Datsun Sentra surveillance was carried out using the Sony super-scope cassette recorders. In addition, the F.B.I. monitors testified that cassette recorders were employed at the locations by many monitors to create a simultaneous cassette recording with the reel-to reels. This simultaneous cassette recording was used as a work cassette at the monitoring site to assist agents in maintaining accurate Title III logs of the conversations being intercepted. The use of cassette recorders to make work cassettes in Puerto Rico was first disclosed to both the Court and the defendants on September 1, 1987. Some work cassettes were retained by the F.B.I. and have been disclosed to the defendants. Other work cassettes were either reused by monitors or taken to the F.B.I. office and run through a bulk eraser. The defendants claim that the use of work cassettes, specifically, the failure to present the work cassettes for judicial sealing as original tapes, violated Title III. The Court rejects this argument. The tapes that concern the Court in regard to the Title III sealing requirement are those tapes designated in the course of the surveillance as original reel-to-reel tapes. The original reel-to-reel tapes are the evidence in this case. In addition, the defendants have alleged other Title III violations, including allegations that the monitoring agents listened without recording. In regard to both the work cassette and listening without recording claims, the defendants have attacked the credibility of the monitoring agents. It is premature to address these allegations at this time; the claims are not relevant to the Court’s determination of whether the government has violated 18 U.S.C. Sec. 2518(8)(a) and will be addressed in separate rulings. The monitoring agents used chain of custody envelopes, FD 504 envelopes, for the original reel-to-reel tapes. The first monitor of the day would prepare the FD 504 with the case file number, reel number, court order number, location being monitored, and the monitoring agent’s name. At the termination of a reel-to-reel, the monitoring agent on duty would place both the original tape and the overhear log, a written summary of the surveillance activities, into the FD 504 envelope. Either the monitoring agent or another special agent would deliver the FD 504 envelope to Roberto Salicrup, the electronic surveillance (ELSUR) clerk. If Salicrup was not available, the agent would drop the FD 504 envelope through a mail slot into the Electronic Surveillance Room (ELSUR room) in The F.B.I. Office in Hato Rey, Puerto Rico. The face of the 504 envelope would indicate the transfer from the various agents to either Salicrup or to the ELSUR room. Roberto Salicrup established a procedure to log in the original tapes received. After an original tape or an original cassette, in the case of the Datsun Sentra, was administratively processed by Salicrup, that tape was placed in a locked metal filing cabinet. The F.B.I. monitoring agents delivered the duplicate original tapes to translators/transcribers in the Hato Rey F.B.I. Office. Copies of the original overhear logs were made prior to delivering the originals to the ELSUR room and copies of the overhear logs were also brought to the translators/transcribers. In the case of the Datsun Sentra cassettes, the monitoring agents made high speed copies of the original Datsun Sentra cassettes prior to delivering the originals to the ELSUR room. These high speed copies were brought to the translators/transcribers for review. The government has represented that it seeks to introduce 166 tapes generated from the electronic surveillance conducted in Puerto Rico in its case-in-chief. The tapes were created at the following locations: Levittown, the Datsun Sentra, Taft Street, El Cortijo, Vega Baja, and El Centro. At three specific points in the investigation, the tapes were judicially sealed. Four hundred and fifty-seven tapes from Levittown, Datsun Sentra, Taft Street, and El Cortijo were sealed on October 13, 1984. The Vega Baja tapes, four-hundred and sixty-seven in number, were sealed on June 15, 1985, and the eighty-eight El Centro tapes were judicially sealed on September 14, 1985. The defendants have challenged the timeliness of all three sealings under Title III, 18 U.S.C. Sec. 2518(8)(a). DISCUSSION OF LAW I. OVERVIEW Title 18 U.S.C. Sec. 2518(8)(a) requires that immediately upon the expiration of the period of the order [warrant] 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 or oral communication or evidence derived therefrom under subsection (3) of section 2517. The statute is clear in requiring timely sealing as a prerequisite for the use or disclosure of the wire or oral communications intercepted. “A violation of the (post-interception) sealing requirement is to be controlled by the exclusionary command of the same statute which imposed the requirement in the first place.” United States v. Mora, 821 F.2d 860, 866 (1st Cir. 1987). Thus, the exclusionary provisions under Secs. 2515 and 2518(10)(a) do not control in this area. Accord United States v. Diana, 605 F.2d 1307, 1312 (4th Cir. 1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980). This ruling focuses on that portion of the statute which, in essence, requires immediate sealing of the tapes, as a prerequisite for their use, upon the expiration of an order or extension thereof. “The legislative history to 18 U.S.C. Sec. 2518(8)(a) reveals that the sealing requirement contained therein was intended to insure the integrity of tapes after interception.” “Delay in Sealing or Failure to Seal Tape or Wire Recording as Required by 18 U.S.C. Sec. 2518(8)(a) as Ground for Suppression of Such Recorded Evidence At Trial,” 62 A.L.R.Fed. 636, 639 (1983). Several circuits have described the aim of the statute. “The post interception procedural requirements contained in 18 U.S.C. Sec. 2518(8)(a) aim to preserve the integrity of the intercepted conversations to prevent any tampering or editing of the tape or unlawful use.” Mora, 821 F.2d at 867. See United States v. Gigante, 538 F.2d 502, 506 (2d Cir.1976); United States v. Mendoza, 574 F.2d 1373 (5th Cir.1978), cert. denied, 439 U.S. 988, 99 S.Ct. 584, 58 L.Ed.2d 661 (1978); United States v. Lawson, 545 F.2d 557 (7th Cir.1975). The Court notes that despite the stated objectives, the statute does not require immediate sealing of recordings at the expiration of each thirty day order. For example, if the government sought and received continuous authority, by an initial order and subsequent extensions, to conduct electronic surveillance at the same location for a one year period, the sealing requirement would be triggered only at the expiration of the final thirty day period. Thus, the government would not be required to seal tapes generated pursuant to the initial order until twelve months later. See United States v. Fury, 554 F.2d 522, 533 (2d Cir.1977), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978) (there is some logic in the proposition that the purpose of the sealing requirement would be better served if the tapes were sealed every thirty days). As a general rule, most circuits have held that the failure to adhere strictly to the immediacy requirement is not ip so facto grounds for suppression of all tapes derived from the electronic surveillance. Rather, courts have established a somewhat more flexible approach to the issue. As in the case of an absence of any sealing, a delayed sealing will prompt a court to ask for a satisfactory explanation. Various circuits have, however, taken a slightly different approach in their analysis of what constitutes a satisfactory explanation. For example, the seventh circuit set forth a standard in United States v. Angelini, 565 F.2d 469 (7th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). The seventh circuit looks initially to whether a satisfactory explanation for the delay exists. If an explanation is satisfactory, the tapes need not be suppressed. However, even if the court is not satisfied with the explanation, the tapes need not be suppressed provided that the purposes intended by Congress were fulfilled despite the delay. In United States v. Massino, 784 F.2d 153 (2d Cir.1986), the second circuit set forth a very explicit schedule which is to govern the sealing of tapes gathered through electronic interception. The schedule enunciated in Massino, however, applies to future cases and does not govern the electronic surveillance conducted in connection with this case. Thus, at the time that the electronic interceptions occurred in Puerto Rico in this case, the second circuit was not operating under the schedule set forth in Massino. Rather, at the time of this investigation, the second circuit followed a procedure set forth in United States v. Rodriquez, 786 F.2d 472 (2d Cir.1986). Pursuant to Rodriquez, the court inquires as to whether a satisfactory explanation for the sealing delay has been proffered by the government. The determination of whether or not the government has offered a satisfactory explanation turns on several factors, including whether the tapes have been tampered with, whether the defendants have been prejudiced by the delay, the length of the delay, the diligence of law enforcement personnel in performing the necessary pre-presentment tasks, the foreseeability and urgency of circumstances diverting the attention and energies of those responsible for the presentation of the tapes to other matters, the amount of time needed to prepare the tapes for sealing, and whether there is any evidence of bad faith on the part of law enforcement agencies to evade the statutory sealing requirements. Rodriquez, 786 F.2d at 476. The first circuit in Mora, 821 F.2d at 867-869, set forth the standard it applies when faced with the issue of the government’s failure to seal electronic surveillance tapes in a timely fashion. A court is directed under Mora to ask one question, “Is there a satisfactory explanation for the absence of timely judicial sealing?” Factors which are critical to the court’s resolution are: 1) whether the government has proven by clear and convincing evidence that the integrity of the tapes has not been compromised, 2) whether the delay in presenting evidence for sealing came about in good faith, 3) what is the length of any particular delay, and 4) what is the cause of the delay. This Court ruled on February 4, 1987 that the law of the first circuit controlled where a material difference exists between the sealing requirements in the first and second circuits. The February 4, 1987 ruling was based on the fact that all the electronic surveillance which is the subject of the present motion to suppress was conducted pursuant to orders issued within the first circuit jurisdiction, and Title III relies heavily on local judicial supervision. Thus, where conflicts arise between the law of the circuit where the orders were issued and that where the motion to suppress is pending, the former prevails. As noted above, there is no material conflict between the law of the first circuit as expressed in Mora, and that of the second circuit, at the time the tapes in this investigation were sealed, as expressed in Rodriquez. In both cases, where the tapes were not sealed in a timely manner, the burden rests on the government to provide a satisfactory explanation for the delay. In both circuits, whether an explanation is deemed satisfactory turns on a variety of factors. Thus, the Court’s findings in regard to the issue of timely sealing under the law of either circuit are the same. The government intends to introduce surveillance tapes derived from electronic surveillance conducted at the following locations in Puerto Rico: Levittown Boulevard, Datsun Sentra, Taft Street, El Cortijo, Vega Baja, and the El Centro Condominium. In regard to all sealing dates except the Datsun Sentra, the Court has found that the tapes were not sealed “immediately” as the term has been defined, (see Appendix A) The parties disagree not only about whether the delays incurred were justified but also about how the delays are to be calculated. In the brief filed on June 13, 1988, the defendants miscalculated the thirty day period of an order as well as the actual sealing delays in this case. In computing the thirty day period, the day of authorization is not included. Thus, a thirty day order granted on June 23 expires on July 23. Secondly, as with a thirty day order, in calculating the length of a sealing delay, the date on which the authorization ends is not included. Thus, a delay of sixteen days is found where an order terminates on May 30 and the tapes are not sealed until June 15. United States v. Badalamenti, 794 F.2d 821 (2d Cir.1986); United States v. Rodriquez, 612 F.Supp. 718, 726 (D.C.Conn.1985). The actual delays encountered in this case will be discussed below in greater detail. Initially, however, in light of the Court’s finding that the government failed to comply with the immediacy requirement, the government has the burden to show by clear and convincing evidence that the tapes intended to be used by the government in its case-in-chief have not been altered. II. INTEGRITY OF THE TAPES [5] Introduction: In Mora, the first circuit stated that it would look “first—and most searchingly—at whether the government has established ... that the integrity of the tapes has not been compromised.” Mora, 821 F.2d at 867. Late-sealed tapes must be excluded at trial unless the court finds that the government has proven the integrity of the subject tapes by clear and convincing evidence. Id. [6] In line with the decision in Mora, the District of Columbia Circuit has “rejeet[ed] ... [the] suggestion that it is incumbent upon the potentially aggrieved person to present evidence constituting a colorable challenge to the integrity of the tapes.” United States v. Johnson, 696 F.2d 115, 124-125 (D.C.Cir.1982); see also Gigante, 538 F.2d at 507. Accordingly, it is not the defendants’ obligation “to prove affirmatively that tampering has occurred;” rather, the government must establish by clear and convincing proof that the subject tapes are “pristine.” Mora, 821 F.2d at 868. In Mora, Johnson and other late-sealing cases, in evaluating the integrity of late-sealed tapes, the courts divided their attention between (1) the chain of custody of the tapes; and (2) the physical integrity of the tapes. Accordingly, the Court’s analysis of the integrity of the tapes is likewise bifurcated. A. CHAIN OF CUSTODY Written procedures for handling of the Title III evidence were contained in the F.B.I.’s “MIOG” (Manual of Investigative Operations and Guidelines); in a memorandum by Special Agent Calvin Sieg (“Sieg memorandum”); and in the ELSUR (i.e. electronic surveillance) working guide. In addition to the written instructions, the monitoring agents were also given oral instructions as to the handling of Title III evidence in this case. Chain of custody documentation was initiated at the beginning of each monitoring shift. At the start of the shift the agents filled out a F.B.I. form FD-504 envelope listing their name, the date and the time. On the leader of the tape itself, the agents wrote down the location, reel number, date, time and their initials. At the end of a shift or a reel, the monitoring agents rewound the tape, returned it to the original box and placed it inside the F.B.I. form FD-504 envelope, together with the written monitoring log. When a tape was completed in the middle of a shift, a new FD-504 envelope was started for the next tape. As a general practice, the monitoring agents on a shift delivered the completed tapes to the F.B.I. office in Hato Rey, Puerto Rico and deposited the envelope through a mail slot into a locked, restricted access room (i.e. the ELSUR room). If a tape was still on the machine at the end of a shift, the monitoring agent signed the FD-504, releasing custody to the next shift monitor, who then signed the FD-504, accepting custody. Agents monitoring on the evening shift removed the tapes and delivered them to the ELSUR room at the end of their shift, usually around 11 p.m. However, because of the distance from the monitoring site to the F.B.I. office, second shift agents at the Levittown and Veja Baja monitoring sites left their tapes at the monitoring site in the custody of the security agent, a special agent of the F.B.I. whose duty it was to maintain the security of the monitoring post, the surveillance equipment and the tapes. In most instances, the security agents delivered those tapes to the ELSUR room the next morning. Roberto Salicrup (“Salicrup”) was employed by the F.B.I. as the electronic surveillance file assistant (“ELSUR clerk”) in Hato Rey, Puerto Rico during the period of April 1984 through September 1985. He took three training courses in connection with his duties as an ELSUR clerk. As the ELSUR clerk, Salicrup had responsibility for maintaining custody of the electronic surveillance tapes and controlling access to the evidence room. Roberto Salicrup maintained a controlled access room for the storage of electronic surveillance tapes in the F.B.I. office at Hato Rey, Puerto Rico. Entry to the EL-SUR room was gained through a single door which was kept locked at all times. During the course of this investigation, a second ELSUR room was created and designated as Room No. 2, adjacent to the first room, but not accessible through a connecting door. The door to each ELSUR room had two locks. One locking mechanism was common to both doors, but the second lock on each door was different. When Salicrup was outside either ELSUR room, the doors always remained locked. Only five other people, Special Agent David Shrimp, Luis Berrios and Rita Olivo, as well as the Special Agent in Charge and the Assistant Special Agent in Charge, had access to the ELSUR room. Only Roberto Salicrup maintained a set of keys to the rooms. The second set of keys was kept in a safe in the office of the Special Agent in Charge. Individuals who entered and left the ELSUR room were required to sign the ELSUR log and state the reason why they were entering, the date and time they entered and the date and time that they left. On a typical morning, it was Roberto Salicrup’s responsibility to sign the entry log to the ELSUR room, to check and see if any tapes had been deposited through the mail slot on the door and to take custody of any such tapes. He assumed custody by signing his name on the FD-504 envelope. Salicrup then opened the FD-504 envelope to ensure that the tape was inside and properly labelled. Salicrup checked the FD-504 envelope to be certain that it had been properly completed and he compared the label on the box to the label on the reel to make sure that they corresponded. He also checked the leader of the tape to determine whether there were any discrepancies. Once he had confirmed that all markings were correct, Salicrup sealed the FD-504 envelope with evidence tape and placed it in a special metal filing cabinet which was kept locked at all times with a bar-lock security device. Salicrup possessed the only key to this device. If there were any discrepancies between a FD-504 envelope and the tape, or on the FD-504 envelope, Salicrup went to the agent responsible for the apparent irregularity to resolve any questions. It was Salicrup’s duty to locate such agents, many of whom were regularly monitoring at off-site locations. Accordingly, Salicrup was unable to seal every tape the same day that he received it. Corrections were made to some FD-504 envelopes. There are no records of which FD-504 envelopes were corrected. Salicrup had responsibilities outside of the ELSUR room and, therefore, he did not remain constantly in the ELSUR room while on duty. While outside of the EL-SUR room, Salicrup had the equipment (i.e. block stamp and evidence sealing tape) and the opportunity to accept tapes from monitoring agents. In such instances, Salicrup would verify the information on the FD-504 envelope and tapes and would block stamp and seal these tapes and their accompanying documentation and deposit them through the slot in the ELSUR door. When Salicrup discussed questions about tapes with an agent, he never left the tape with the agent. The tape remained in Salicrup’s custody. Whenever Salicrup released custody of a tape he would ensure that the person accepting custody of the tape signed the FD-504 envelope to reflect that fact. It was around July 1, 1985, with the publication of the “ELSUR Working Guide”, that Salicrup began making a notation on the FD-504 envelope of the purpose for which custody of a specific tape was transferred. Commencing at that same time, and in compliance with the newly received procedures in the ELSUR working guide, notation was made on the FD-504 chain-of-custody envelope of when, and for what purpose, the ELSUR clerk had occasion to access a tape held in the ELSUR safe. Salicrup never released custody of a tape that had been judicially sealed. It was Salicrup’s practice to seal FD-504 envelopes with evidence tape and to initial and date that evidence tape. He would then complete an FD-192 form and staple it to the FD-504 envelope and take the entire package to a supervisor, who would initial the block stamp in the lower right hand corner of the FD-504 envelope and 192 form. It was Salicrup’s practice not to accept a tape more than five days after the date of interception, unless the agent delivering the tape had a written explanation for the delay. Such an explanation would also have to be given to the agent’s supervisor and the supervisor would have to initial the agent’s memorandum regarding the delay. The date block-stamped on the documents reflects the date when Salicrup started processing the FD-504 envelope and 192 form. The dates on the 192 form and the FD-504 envelope, where Salicrup accepted custody, were not always the same because in some instances he prepared the 192 on the next day after he accepted custody. The date on the block stamp on the 192 form is the date that Salicrup prepared the 192 form. The typewritten material on the 192 form was pretyped. The handwritten material on the form was entered on the date reflected in the block stamp. In a few instances, facial discrepancies exist between the dates on the FD-504 envelopes and the dates on the block stamp because Salicrup forgot to advance the date on the block stamp machine on a Monday, after the weekend. As a result, the block stamp would inaccurately reflect the date of the preceding Friday. On a few occasions, Salicrup observed that some of the FD-504 envelopes were tom when placed through the mail slot in the door of the ELSUR room. “A couple of times”, envelopes were badly torn, necessitating the re-making of the badly torn envelope. If there was only a small tear in the FD-504 envelope, Salicrup placed evidence tape over the tear and initialled it. Salicrup never opened a judicially sealed box, except under the supervision of Chief Judge Juan Perez Gimenez. He never released custody of a judicially sealed tape. If a special agent wanted to remove a tape from the ELSUR room prior to judicial sealing, Salicrup required the agent to produce authorization from the supervisor. Furthermore, the ELSUR log often contained notations regarding the movement of tapes, such as when they were taken from the ELSUR room to be copied. If a FD-504 envelope was opened after it had been sealed by Salicrup, such fact would be reflected upon the face of the FD-504 envelope, as there would be a second opening sealed by evidence tape, dated and initialled by Salicrup. The agent delivering the FD-504 envelope made a photocopy of the monitoring log before turning in the original tape to the ELSUR clerk. The duplicate original reels were taken to the NAVMUR/NAGBOM room where the F.B.I. translators and transcribers worked. In the case of cassette tapes, the delivering agent made a high-speed copy before the original cassette was turned-in to the ELSUR room. ELSUR clerk Salicrup participated in the judicial sealing by Chief Judge Juan Perez Gimenez of all the electronic surveillance tapes recorded in Puerto Rico in this case. Salicrup placed evidence tape on the banker’s boxes housing the tapes and Chief Judge Perez Gimenez placed his initials and the date on the boxes which he sealed. Special Agents James Millen and Arthur Balizan travelled to San Juan, Puerto Rico and brought the sealed original tapes, secured in the banker’s boxes, and which in turn were secured in wooden crates, to the United States District Court in Hartford, Connecticut, in whose secured custody the tapes have continuously remained. When the crates, the banker’s boxes and the 504 envelopes were inspected and unsealed in open court, all seals were found to be intact. Defendants’ Particularized Claims: In their Post-Hearing Memorandum of Law and Proposed Findings of Fact, submitted in support of their motion to suppress electronic surveillance tapes, the defendants have set forth a litany of claims regarding the chain of custody of the tapes. The defendants assert that these claims demonstrate that the government has not discharged its burden of establishing the integrity of late sealed tapes. The Court has evaluated each of the defendants’ chain of custody allegations in light of the applicable standards of law and all the evidence placed in the record during over six months of hearings on the instant motions. After careful review of all of the defendants’ claims, the Court finds that they are without merit. The defendants’ individual claims are addressed specifically below: 1. Failure of government agents to deposit Levittown and Veja Baja tapes in the custody of the ELSUR room or custodian on the date they were intercepted. The defendants assert that because monitoring agents did not deliver many of the Levittown and Veja Baja tapes to the ELSUR room in the F.B.I. office in Hato Rey, Puerto Rico, after the completion of the evening monitoring shift ending at 11 p.m., there is no way of knowing whether the tapes were kept at the monitoring site overnight or if they were taken elsewhere and tampered with. The defendants’ suspicions and idle speculation are unfounded. The FD-504 envelopes for the subject tapes clearly identify the agent who had custody of these tapes at all times prior to sealing. During the hearings on the instant motions, the defendants were afforded the opportunity to call and cross-examine those agents identified on the FD-504 envelopes as possessing the Vega Baja and Levittown tapes during the times in question. If, indeed, there was ever an occasion for tampering of the tapes, the defendants had ample opportunity to pursue this possibility in their examination of the custodial agents. 2. No log for Vega Baja residence tape # 130 was contained in the FD-504 envelope; no records were maintained by the F.B.I. documenting the custody of original logs; logs were removed from the ELSUR room in September, 1984 without explanation. The defendants assert that that the above-stated allegations concerning the activity logs maintained by the monitoring agents somehow demonstrate deficiencies in the government’s chain of custody of the tapes. Without first passing on the accuracy of these allegations, the Court emphasizes that its concern is with the chain of custody of the tapes, not the chain of custody of the logs. Second, the defendants are in error when they allege that the logs were taken from the ELSUR room in September, 1984. The evidence of record does not support such a claim. 3. Agents made non-contemporaneous entries on the FD-504 envelopes. The defendants argue that ELSUR clerk Salicrup’s practice of requesting monitoring agents to correct inaccuracies or fill-in portions left blank on the FD-504 envelopes constitutes “non-contemporaneous” entries which undermine the validity of these records. On the contrary, the Court finds that this practice served to heighten the reliability of these records rather than lessen it. 4. ELSUR clerk Roberto Salicrup recreated FD-504 envelopes. The defendants posit that such an act makes all FD-504 envelopes suspect. It was the testimony of ELSUR clerk Salicrup that FD-504 envelopes would, occasionally, become torn when passed through the mail slot into the ELSUR room. In such instances, Salicrup would patch the tear with evidence tape if the hole was not too large. He would copy-over all information from the torn FD-504 envelope if the tear was beyond repair. As all information from the original FD-504 would be duplicated onto the new form, the accuracy of the chain of custody document was not compromised. 5. Tape leaders from two Vega Baja payphones were missing starting times in 80-90% of the cases. The defendants ascribe no particular prejudice to this minor lapse in record keeping, nor can the Court discern any. 6. ELSUR clerk Salicrup failed to initial and/or date the evidence tape seals in certain instances. Likewise, no particular prejudice is attributed to these isolated occurences. The Court finds that these rare and innocuous lapses in record keeping practices do not undermine the integrity of the chain of custody. 7. Unexplained discrepancies between various chain of custody documents. The defendants claim that in some instances logs were blockstamped before FD-504 envelopes were received; that some evidence seals predate the receipt of the FD-504 envelopes by the ELSUR clerk; and that some FD-192 forms were block stamped several days after the date the FD-504 envelopes were received. The Court’s examination of these claims reveals that they have no significance, but, to the extent that they are supported in fact, merely represent innocent instances of human error. 8. ELSUR clerk Salicrup backdated FD-192 forms. The defendants allege that ELSUR clerk Salicrup deliberately and intentionally backdated FD-192 forms in an effort to fabricate a valid chain of custody. However, Salicrup’s clear and unambiguous testimony does not permit so much as an inference that he intentionally backdated any chain of custody documents. Both his testimony and the evidence of record establish that any misdating of documents was a result of simple, innocent human error, such as Salicrup’s failure to correctly set the date on the block stamp machine. 9. ELSUR clerk Salicrup received tapes when chain of custody documents show that he was not in the ELSUR room at the time. The defendants claim that monitoring agents’ entries on FD-504 envelopes reflect that they released custody of tapes to Salicrup at times when other records show that Salicrup was not in the ELSUR room. However, this claim ignores the simple fact that Salicrup did not remain constantly in the ELSUR room and that Salicrup had the equipment and the opportunity to accept tapes when he was out of the ELSUR room. On such occasions Salicrup would blockstamp the documents, seal the FD-504 envelope and stick it through the EL-SUR slot. Moreover, monitoring agents testified that they had a practice of filling-out the FD-504 envelopes, including the “released custody” section of the form prior to leaving the listening post and actually delivering the tapes. In such instances, entries reflecting “released custody to ELSUR room” would result when these tapes were actually delivered to Salicrup when he was located outside of the ELSUR room. 10. Conflicts exist between entries on the FD-504 envelopes and the FD-192 forms regarding which agent released custody to the ELSUR room; conflicts exist between logs and FD-504 envelopes regarding who released custody of the tape to the ELSUR room. The defendants assert that any such inconsistencies are evidence of falsification of the chain of custody. In making these claims, the defendants overlook the essential point which is that it is the FD-504 envelope which is the only true chain of custody document. Neither the FD-192 form nor the log have as their purpose the establishment of a chain of custody. Moreover, neither the FD-192 nor the logs are required to be created by those persons actually linked in the chain of custody. Accordingly, discrepancies between the chain of custody document, the FD-504 envelope (created by links in the chain of custody), and unrelated documents (created by others not necessarily in the chain), are of no significance. 11. Several tapes were not sealed by EL-SUR clerk Salicrup within five days of interception; as a practice Salicrup took longer to seal “A” tapes. The defendants allege that Salicrup did not comply with a F.B.I. internal policy requiring that evidence be secured within five days of receipt. (See GX 391, p. 46). Examination of the instant claim reveals that it lacks merit for at least three reasons: (1) even if the internal policy of the F.B.I. required that electronic surveillance evidence be secured within five days, an internal policy of the F.B.I. does not carry the force and effect of law and, accordingly, the failure to adhere to such a requirement does not warrant sanction by the court. (See United States v. Falcone, 364 F.Supp. 877, 894 (D.N.J.1973), aff'd, 505 F.2d 478 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975); (2) all but two nonrelevant tapes were sealed by Salicrup within five days; and (3) delays experienced by Salicrup were occasioned by innocent factors such as intervening weekends and the difficulty and delays attendant to securing accurate information from monitoring agents located at off-site listening posts. 12.ELSUR clerk Salicrup released tapes, which he had already secured, to agents prior to judicial sealing without notation on the FD-504 envelope of the reason why; a few FD-504 envelopes bear a second evidence tape seal indicating that they were re-opened. The defendants argue that failure to document the purpose for accessing the tape on the face of the FD-504 envelope undermines the integrity of the chain of custody. However, the Court finds the defendants’ argument lacking for the following reasons: (1) the essence of a valid chain of custody is the identification of the individuals who had possession of the tape and the date and time custody was transferred to another person. Knowledge of the purpose for which an individual obtained possession of a tape is not necessary to a proper chain of custody. Moreover, the defendants’ argument to the contrary notwithstanding, notification on the FD-504 envelope of the purpose for which access to the tape was ostensibly gained would offer little protection against the large scale, wilfull tampering which the defendants have alleged occurred here. If one assumes that F.B.I. agents would access tapes for the purpose of tampering with them, one might also assume that the same agents would fabricate a legitimate reason for securing the tape and note that fabrication on the FD-504 envelope; (2) the chain of custody documents and testimony elicited at hearing establish that the tapes never left the ELSUR room or the possession of the EL-SUR clerk, and, hence, the chain of custody was maintained; and (3) many of the unexplained discrepancies cited by the defendants have in fact been satisfactorily explained. (These include the April 22, 1986, judicial unsealing of the tapes for duplication. In other instances, the reason for accessing the tapes was noted on the EL-SUR log.) Analysis: An essential objective of Section 2518(8)(a) is to ensure that “[appropriate procedures [be] developed to safeguard the integrity, and contents of the recordings to assure their admissibility in evidence.” 1968 U.S.Code Cong. & Ad.News pp. 2112, 2193. See United States v. DiMuro, 540 F.2d 503, 512 N. 15 (1st Cir.), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1976). Accordingly, where judicial sealing of tapes has been other than immediate: [E]vidence from which the court can infer that the tapes were held in such a condition as to ensure that they could not be tampered with will be an important component of the Government’s “satisfactory explanation.” Johnson, 696 F.2d at 125. (considering a similarly-worded local law analog of Section 2518(8)(a) and late judicial sealing of tapes). In Mora, the first circuit found that the purposes of the sealing requirement had been satisfied, in significant part, because despite “the fact that the evidence was not seasonably presented for judicial sealing, the ... master recordings were kept under high security and in circumstances which betokened their continued integrity.” Mora, 821 F.2d at 869. Accord United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir.1979) (all reasonable precautions against tampering should be taken both before and after judicial sealing is accomplished.) Therefore, the Court is concerned with whether the chain of custody practices and procedures employed by the F.B.I. in this case were sufficient to preserve the accuracy of recordings and deter alteration of those recordings pending a judicial order sealing the tapes. The testimony elicited during the extended hearings concerning the issue chain of custody establishes that the F.B.I. utilized procedures which reasonably assure that the tapes were not tampered with. In adherence to these procedures, monitoring agents noted the target location, reel number, date and time that the tape was started and his or her initials directly on the leader of the tape. The agent simultaneously prepared a FD-504 chain of custody envelope for each new tape, inscribing on that FD-504 form his or her name and the date and time which the tape was placed on the recorder. At the completion of the tape reel, the monitoring agent rewound the tape, placed it in its original box with a label affixed to the box showing the location, reel number, date of interception and the monitoring agent’s initials. The box and reel were then placed into the FD-504 chain-of-custody envelope and the FD-504 envelope was delivered to the custody of ELSUR clerk in the ELSUR room at the F.B.I. office in Hato Rey, Puerto Rico. The overwhelming majority of tapes were delivered to the custody of the EL-SUR room, a doubled-locked, restricted access room in the F.B.I. office in a guarded building in Hato Rey, Puerto Rico, within 12 hours of their completion. Virtually all tapes were transferred to the custody of the ELSUR custodian within one day. The only exceptions were three non-relevant tapes which were delivered within two days, in one, related, incident. Throughout this process, all original tapes remained in the custody of a F.B.I. agent whose name was recorded on the FD-504 envelope. Any change in the chain of custody was duly noted on the FD-504 envelope. The FD-504 envelope discloses the names of the agent releasing custody, the date and time custody was released and the name of the agent accepting custody as well as the date and time custody was accepted. In the recent case of United States v. Angiulo, 847 F.2d 956 (1st Cir.1988), the first circuit had occasion to examine the chain of custody of original electronic surveillance tapes which a district court had authorized be temporarily unsealed and released to the custody of the government, so that they might be transported to F.B.I. headquarters in Washington, D.C. for enhancement. During the time that these exclusive copy, original tapes were temporarily unsealed, they remained in the sole possession of special agents of the F.B.I. On appeal of the denial of the defendants’ motion to suppress the “judicially unsealed” tapes, the First Circuit held that: In cases involving unsealing of tapes, there would seem to be no less of a risk of frustrating the purposes underlying section 2518(8)(a) — the assurance of the accuracy and genuineness of tape recordings — than in situations where the government fails “immediately” to place the original tapes under seal. Id. Accordingly, the court required that the government prove that the unsealing and use of the tapes did not result in any alteration or tampering. The Court of Appeals determined that the government met its burden in Angiulo, relying upon its findings that: (1) “there was extensive examination and cross-examination of the agents involved in the custody ... of the tapes while unsealed”; (2) “the chain of custody was clearly established”; (3) “extensive security arrangements were employed at the F.B.I. headquarters ... where the tapes were kept”; and (4) the agents in possession of the tapes testified unequivocally that “there were no unauthorized persons with access to the tapes, no tampering, no deletions, and no additions.” Id. Here, as in Angiulo, there was “extensive examination and cross-examination of the agents involved in the custody of the tapes.” During hearings which ran continuously from September 1, 1987, through May 5, 1988, the Court allowed direct and cross-examination of 20 agents of the F.B.I., selected by the defendants, who were involved in the creation and custody of the electronic surveillance tapes. These agents testified unequivocally about the extensive security arrangements which were employed in the chain of custody procedures, that there were.no unauthorized persons with access to the tapes and that there was no tampering, deletions or additions to the tapes. (See preceding factual summary). Applying the criteria articulated in Angiulo, this Court finds that the government has sustained its burden and has established by clear and convincing evidence that there was no tampering or alteration of the subject tapes. B. PHYSICAL INTEGRITY OF THE TAPES 1. Originality of the Tapes: The defendants’ expert, Michael McDermott, opined that the 166 tapes which the government plans to offer into evidence are copies, not the original recordings. He has purported to base this conclusion upon a two-fold “finding:” (a) Test tapes made by a sampling of representative A700 and B77 Revox recorders showed that these machines left distinct erase head marks on the tape which were developable approximately 50% of the time through a process known as magnetic track development. (b) None of the 10 original sealed tapes and 47 duplicate originals that were made available to the defense contained a single developable erase head mark when tested by the same process. According to Mr. McDermott, the sealed original recordings and corresponding duplicate originals had to be copies, since one would have expected to find developable erase head marks approximately 50% of the time if they were originals. Methodology of the Defendants’ Expert: The individual offered by the defendants as a tape authenticity expert, Michael McDermott, acknowledged that his formal education bears no meaningful relationship to tape authenticity analysis. Moreover, Mr. McDermott did not provide the Court with any documentary evidence that he ever received any training in the field of tape authenticity analysis and he failed to produce any evidence to support his claim that he received tape authenticity training from one Frederick Lundgren. On several occasions Mr. McDermott went to the F.B.I. technical facility in Newington, Virginia in order to make test tapes on seven Revox model B77 recorders and five Revox model A700 recorders. As the F.B.I. did not keep a record of the serial numbers of the specific recorders actually employed in the subject electronic surveillance, Mr. McDermott was not able to ensure that the test tapes he created were made on the exact same machines which produced the tapes in issue. At Newington, the F.B.I. configured the equipment in a manner similar to its arrangement during the investigation. Mr. McDermott’s purpose in making these test tapes was to obtain exemplars of how the record and erase heads would imprint the tape. The defendants’ expert then subjected the test tapes to a process known as magnetic track development. This procedure involves the application of a highly volatile solution, containing magnetic particles, directly to the audio tape. The particles are attracted to the magnetic patterns recorded on the tape. When the fluid evaporates a visible representation of the magnetic patterns is left on the tape. These representations are called magnetic marks. Mr. McDermott photographed marks with a magnifying (macro) lens. He then applied the same process to the 10 sealed original tapes and 47 duplicate original tapes. He claimed to have observed 100 areas on these tapes, photographing those areas of the tapes where, according to the logs, erase head marks should have appeared. The three means by which one can determine whether a developed mark is an erase head mark are: (1) measure the distance from the suspected erase head mark to the record head mark which corresponds to it; (2) measure the height of the suspected erase head mark; and (3) measure the distance between the two vertical marks thought to be created by an erase head. The distance from a record head to an erase head in a recorder should be measured through the use of waveform analysis, because of the curvature in the tape path from the record head to the erase head. This distance can also be measured through an overrecording technique. Mr. McDermott failed to employ either method. The Revox A700 record head to erase head distances are 2lh inches, with a variation of no more than .04 inches. The record head to erase head distance in Revox B77 recorders is 1.06 inches, with a variation of no more than .05 inches. In order for a mark to be considered an erase head mark, the distance from a suspected erase head mark should accord with the distance from a record head to an erase head in an A700 or B77 recorder. However, with one exception, none of the marks identified by the defense in their exhibits DX 2593-2609, accord with the distances from record heads to erase heads in the appropriate recorders. In an effort to explain why his distance measurements are inconsistent with the distances from the record heads to the erase heads in the Revox recorders, Mr. McDermott asserted that his incongruous measurements were attributable to a “gate” theory which he was told of by Thomas Owen. This hypothesis, first mentioned by Mr. McDermott on redirect examination, attributes his inconsistencies in the distance measurements between record head marks and alleged erase head marks to a possible lack of synchronization between the record head “gate” and the erase head “gate.” The “gate” theory is fatally flawed in several respects and hence provides no explanation for Mr. McDermott’s erroneous measurements. First, there are no “gates” in the Revox recorders. Indeed, Mr. McDermott was unable to point to the location of the “gates” on the Revox record head. In fact the term “gate” applies to digital circuity, while the circuitry in the Revox recorders is analog circuitry. Second, there is a protective timing device in the Revox B77 recorder, insuring that the signals to the record head and the erase head arrive simultaneously. Even were that timing device to fail, the resulting “contact bounce” would cause a deviation from the normal spacing between the record and erase heads of no more than .004 inches in the B77 recorder. There is no contact bounce in an A700 recorder and erase heads in an A700 are not implemented through a relay. Hence, the theory does not even apply to an A700 recorder. Third, the gate theory cannot explain why Mr. McDermott’s stop mark measurements are inconsistent, as even Mr. McDermott admitted that these marks are placed on the tape after the tape comes to a stop. Mr. McDermott’s claim regarding the distance between the record and erase heads are further undermined by his failure to produce a single photograph depicting both the record head and alleged erase head marks, leaving it for the Court to take upon faith his representations that the “erase” head marks were located the appropriate distance from the record head marks. Moreover, the evidence establishes that the Court cannot trust the accuracy of Mr. McDermott’s testimony regarding these distances. For example, Mr. McDermott testified in relation to DX 2596 that he measured 1 inch from the record head mark and that is the location where he found the erase head mark. In point of fact, the alleged erase head mark is located V2 inch from the record head mark. Another indication of erase head marks is height. The record head marks are limited in size to the width of the record path, whereas erase head marks extend beyond the record track and are identifiable by virtue of this feature. Two acceptable means exist for determining the correct height of Revox record head and erase head marks. The height may be determined by reference to the manufacturer’s specifications and may also be ascertained through the use of an overrecording technique. Although Mr. McDermott had never before examined Revox recorders, he neither physically measured the height of an erase head of either the A700 or B77, nor did he ever seek to obtain this information from the manufacturer. If a mark is developed on a recording tape, the fact that the interior tip of the mark is well-defined is inconsistent with a claim that the mark did not develop to its full height. While Mr. McDermott acknowledged that erase head marks should run to the edge of the tape, yet he admitted that none of the alleged erase head marks which he developed extended to the edge of the tape. Many of the photographs which Mr. McDermott made of these marks did not clearly depict the edges of the tapes, but, rather, were clouded in the residue of the magnetic track development fluid which he had applied too heavily. Testimony established that magnetic track development photographs can be taken without residue masking the edge of the tapes. The third measurable feature of an erase head mark is the distance between the double spikes on the developed tape which reflects the distance that exists between the two vertical gaps in an erase head. In the operation of the recorder, these two vertical gaps do not move and the distances between them remains constant. The appropriate distance is determined by measuring the space between the two gaps on an actual erase head. Yet, Mr. McDermott never made such a measurement. The double gap distance in both the A700 and B77 erase heads is 2.7mm. Mr. McDermott erroneously claimed that there is a difference in the spacings between these two Revox recorder models. Mr. McDermott asserted that four of his November 1987 test tape photographs showed double spike marks from an erase head. However, none of the distance measurements made