Liu

MEMORANDUM **

The United States appeals the district court’s order suppressing evidence obtained from the wiretaps of phones belonging to defendants Paul Cho Liu and Kien Vay Luong. Under 18 U.S.C. § 2518 (8)(a) the government was required to present the tapes containing the wiretap evidence for sealing “immediately upon the expiration of the period of the order.”

The district court suppressed these tapes because they were not presented for sealing until 60 days after the period for which the wiretaps were authorized had expired. We affirm the district court’s order, because presentation for sealing was late and the government offered no “satisfactory explanation,” as required by the express terms of the statute, to excuse the delay. See United States v. Ojeda Rios, 495 U.S. 257, 265 , 110 S.Ct. 1845 , 109 L.Ed.2d 224 (1990).

This case arises under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510 et seq. The controlling section of the statute, 18 U.S.C. § 2518 (8)(a), sets forth the procedures for intercepting wire, oral, or electronic communications. Section 2518(8)(a) provides in relevant part:

The statute also contains an…

In my opinion, United States v. Hermanek, 289 F.3d 1076 (9th Cir.2002), calls for reversal of the district court’s order suppressing the wiretaps.

*20 In United States v. Ojeda Rios, 495 U.S. 257, 266 , 110 S.Ct. 1845 , 109 L.Ed.2d 224 (1990), the Supreme Court fifteen years ago addressed the question whether sequential wiretap authorization orders constituted “extension[s]” of prior orders and therefore extended the time for sealing the earlier ones. The government contended that “its delays were the result of a good-faith, objectively reasonable misunderstanding of the statutory term ‘extension,’ ” since “the attorney supervising the investigation and electronic surveillance of respondents believed that he was not required to seek sealing of the tapes until there was a meaningful hiatus in the investigation as a whole.” Id. at 265-66 , 110 S.Ct. 1845 . The Court held, however, that although two decisions of the Second Circuit, from whence the case had come, did not establish the government’s legal theory, that

Id. at 266 , 110 S.Ct. 1845 .

The Court remanded the case to the Second Circuit “for a determination whether the Government’s explanation to the District Court…