This action might not be possible to undo. Are you sure you want to continue?
, et al., Defendants. 10-CR-0056 (RJS)
Criminal Docket No.
DEFENDANT CRAIG DRIMAL’S POST-HEARING BRIEF IN SUPPORT OF HIS MOTION TO SUPPRESS WIRETAP EVIDENCE
JANEANNE MURRAY MURRAY LAW LLC ATTORNEYS FOR DEFENDANT CRAIG DRIMAL 233 BROADWAY NEW YORK, NEW YORK 11215 (212) 941.9266 (TEL) (866) 259-7819 (FAX)
Introduction A central component of Title III’s intricate balance between privacy rights and investigatory needs is the requirement that non-pertinent interceptions be kept to a minimum. Privileged communications throw that requirement into sharp relief. As one senator observed during the heated debate on the passage of Title III, “[w]hen the Government overhears clients talking to their attorneys, husbands to their wives, ministers to their penitents, patients to their doctors . . . it is clearly playing an ‘ignoble part.’” S.Rep. No. 1097, 90th Cong., 2d Sess., 96 (1968), U.S.Code Cong. & Admin.News 1968, p. 2233 (minority comments of Senator Philip Hart) (citation omitted). Here, scores of marital communications between Mr. Drimal and his wife of twenty-nine years were intercepted, some of a particularly intimate and personal nature. Indeed, at the hearing on March 9, 2011 (the “Hearing”), this Court deemed this subset of egregious interceptions to be “disgraceful” – a conclusion immediately echoed by the government. Tr. at 206.1 But the seizure of these calls was no accident. It was the inevitable result of a systemic failure to take basic and reasonable steps to ensure that marital communications were never intercepted in the first place. It is important to distinguish between the fact of marital invasion and its consequences. Title III does not authorize the former, in the absence of a basis for applying the crime-fraud exception. Where Title III has been violated, suppression is appropriate – whether the seized communications deal with daily mundanities or profound intimacies. The fact that intimacies may have been captured increases the pain and embarrassment the married couple experience upon learning of the surveillance (magnified here, where the interceptions were further disclosed
Refers to the transcript of the March 9, 2011 suppression hearing.
to co-defendants and defendants in another case), but Title III prohibits the interception of marital communications – regardless of their content – unless the crime-fraud exception applies, which was manifestly not the case here. As AUSA Andrew Fish conceded at the Hearing, the government had no evidence prior to the commencement of the Drimal wiretap that Mrs. Drimal played any role in Mr. Drimal’s alleged insider trading. Nor did it conduct any investigation to uncover such evidence – no doubt because none was indicated. In the absence of such evidence, the government could not use Title III to collect it. Here, however, the government sent twenty-six agents to monitor the Drimal wiretap, each laboring under the understanding that he or she had an independent obligation first to identify marital communications, and second, to determine whether the crimefraud exception applied. With twenty-six agents commencing twenty-six learning curves, it was inevitable that intimate marital communications would be intercepted. The failure either to conduct a pre-wire investigation to determine if Mrs. Drimal participated in Mr. Drimal’s alleged insider trading, or to dispense with such an investigation and simply categorically prohibit the interception of Mr. Drimal’s marital communications, was per se unreasonable. Not only did the interceptions of communications between Mr. and Mrs. Drimal violate Title III, they also violated the order authorizing the wiretap on Mr. Drimal’s telephone, since it was premised on an assurance that privileged communications would not be intercepted, and did not specifically permit the marital relationship to be invaded. A sanction is mandated, and since exclusion of the challenged calls would be no sanction at all, a broader suppression order is required. We respectfully submit that such an order should encompass all calls intercepted over the Drimal wiretap, or, at the very least, the calls intercepted during the first month, when the most egregious intrusions occurred.
ARGUMENT I. THE GOVERNMENT FAILED TO COMPLY WITH TITLE III’S MINIMIZATION REQUIREMENT IN THE EXECUTION OF THE DRIMAL WIRETAP A. Applicable Standard
Section 2518(5) of Title III provides in relevant part that “the authorization to intercept shall be . . . conducted in such a way as to minimize the interception of communications not otherwise subject to interception.” The provision is designed “to prevent unnecessary intrusion into the privacy of the surveillance target.” United States v. Tortorello, 480 F.2d 764, 783 (2d Cir. 1973); see also Berger v. New York, 388 U.S. 41, 63 (1967) (“[f]ew threats to liberty exist which are greater than that posed by the use of eavesdropping devices”). Indeed, “the protection of privacy was an overriding congressional concern [in enacting Title III].” Gelbard v. United States, 408 U.S. 41, 48 (1972). As one court noted, “[t]his congressional solicitude for the safeguarding of privacy was clearly expressed in the Senate Committee Report on Title III: ‘Title III has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.’” United States v. Clemente, 482 F.Supp 102, 106 (S.D.N.Y. 1979) (quoting S.Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968), Reprinted in (1968) U.S.Code Cong. & Admin.News, pp. 2112, 2153)). Thus, “Title III represents an attempt by Congress to establish a system of electronic surveillance subject to rigorous safeguards” and should “be used only sparingly.” Clemente, 482 F. Supp. at 106, 107. Applying this provision, the Second Circuit has held that “a court should not admit evidence derived from an electronic surveillance order unless . . . it is left with the conviction that on the whole the agents have shown a high regard for the right of privacy and have done all
they reasonably could to avoid unnecessary intrusion.” Id. at 783. Thus, in Tortorello, the Court affirmed the district court’s admission of wiretap evidence where [T]he detectives who conducted the Todd Associates surveillance established and observed reasonable guidelines in limiting their intrusion. By considering the nature of the persons conversing and the subject of the conversations, they reasonably limited interception to communications which were likely to be relevant. They also halted all interception as soon as the conversation appeared to be non-pertinent, even if it meant not hearing simultaneously a pertinent conversation. Id. at 784-85. Five years later, in its one decision interpreting 18 U.S.C. § 2518(5), the Supreme Court similarly evaluated the actions of the monitoring agents under a reasonableness standard in light of all the facts and circumstances of the particular case. Scott v. United States, 436 U. 128, 139-40 (1978). Title III does not define “communications not otherwise subject to interception,” nor does it expressly include privileged communications in that category. It does not need to. Privileged communications are necessarily non-pertinent. If they are pertinent – i.e. communications in furtherance of the criminal activity under investigation – they lose their privileged character. See e,g, United States v. Jacobs, 117 F.3d 82, 87 (2d Cir.1997) (“otherwise privileged communications lose their privileged status if they are made in furtherance of a crime or fraud”), That is not to say, however, that privileged communications are no different from an individual’s calls to his dry cleaner or car mechanic. The privileged nature of a conversation impacts the determination of whether its interception was reasonable. See United States v. DePalma, 461 F.Supp. 800, 821 (S.D.N.Y. 1978) (“the interception of husband-wife conversations may demonstrate the lack of a reasonable effort on the part of the Government to minimize nonpertinent conversations in many cases”). Privileged relationships – in particular
the marital relationship – define and nourish human autonomy. As the Supreme Court held in Griswold v. Connecticut: We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. 381 U.S. 479 486 (1965); see also Rodriguez v. McLoughlin, 214 F.3d 328, 337 (2d Cir.2000) (“[T]he liberty interest in family privacy, whether biological or marital, has its source ... in intrinsic human rights, as they have been understood in this Nation’s history and tradition.”). In short, privileged communications are different, and as such, require heightened sensitivity and protections, exemplified in how courts scrutinize the interception of privileged communications with particular gravity. See, e.g., DePalma, 461 F.Supp. at 818 (conducting five-day hearing to determine if government took reasonable steps to minimize interception of marital and attorneyclient communications); see also United States v. Renzi, 722 F.Supp.2d 1100 (D. Ariz. 2010) (suppressing entire wire where government unlawfully intercepted defendant’s privileged attorney-client communications). This Court should hold as law the rule articulated by AUSA Fish regarding the interception of privileged communications during his testimony. AUSA Fish testified that privileged communications should be minimized once intercepted with no spot monitoring of content permitted. Tr. at 59-60. Indeed, AUSA Fish indicated that the only justification for spot-monitoring a privileged communication is to determine if it has lost its privileged character by the introduction of a third person. Tr. at 60-61. Yet the testimony revealed this exception was inapplicable. First, the advanced technology of Voice Box would alert an agent to another
line being activated or to call waiting, see infra. Second, because the wiretap was over Drimal’s mobile phone, marital communications were captured either between mobile telephones of the couple or to the Drimal household where the only third party to pick up a receiver would have been a child – hardly an occasion for pertinence. Although AUSA Fish made no such claim, testifying agents indicated the government is permitted to intercept and spot monitor traditionally privileged communications to determine if the crime-fraud exception applies, yet this exception should only be utilized where the government has conducted a non-wire investigation of the issue and has probable cause to believe that the crime-fraud exception should apply. This is because it the burden of proof on the minimization issue is cast “in the first instance” on the government, United States v. Rizzo, 491 F.2d 215, 217 n. 17 (2d Cir. 1974), and because it is well-established that “[a] party wishing to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime.” See, e.g., Jacobs, 117 F.3d at 87. Because the government failed to act within the bounds of what Mr. Drimal and AUSA Fish believe is the appropriate rule, a sanction is warranted. B. The Government Failed to Take Reasonable Steps to Protect Craig Drimal’s Privacy Rights
The government does not dispute this Court’s conclusion that the interception of several marital communications here was “disgraceful.” Tr. at 206. We submit that the interception of any communications between Mr. and Mrs. Drimal was not only disgraceful but unlawful – regardless of their content – and would never have occurred had the government adopted even one of the reasonable measures outlined below to avoid the interception of nonpertinent communications.
Absence of Pre-Wire Investigation to Determine Applicability of CrimeFraud Exception
As noted above, privileged marital communications, by their very nature, are nonpertinent. To the extent the government seeks to justify the monitoring of privileged communications, it had no factual basis, and has presented none since, to justify any intrusion on the Drimal’s marital relationship. See Jacobs, 117 F.3d at 87 (invocation of crime-fraud exception requires probable cause to believe communications in furtherance of crime). No evidence was presented at the hearing that the government endeavored to ascertain in advance whether Mrs. Drimal played any role in Mr. Drimal’s alleged insider trading. This is most likely because the government never believed for a moment that she was. Indeed, it is telling that the government did not apparently do any pre-wire investigation to determine the identities of likely innocent or privileged parties who may be intercepted on a wiretap on Drimal’s telephone. Tr. at 59. Despite the fact that the government had pen register information for the Drimal telephone (tr. at 36) and ready access to a host of law enforcement tools to determine who resided with Mr. Drimal and with whom he communicated on a regular basis, the government presented no evidence that any investigation was conducted to ascertain if these were individuals who could even have been remotely connected to possible insider trading with him. Importantly, there was no evidence that the chief cooperating witness – someone with considerable familiarity with Mr. Drimal and his family situation2 – was ever questioned regarding the participation of Mr. Drimal’s wife in his trading activity. Tr. at 37. Had he been so questioned, there would have been no uncertainty about Mrs. Drimal’s role in any criminal activity, and it would have been incumbent on the government to notify all monitoring agents
Mr. Slaine has known the Drimal family since the 1980s. He was close friends not just with Mr. Drimal, but also with Mrs. Drimal’s sister, who worked for Mr. Slaine’s brother.
that Mrs. Drimal was a privileged party, on whose communications monitoring should cease immediately. Having failed to conduct any due diligence as to whether the crime fraud exception might apply to Mr. Drimal’s privileged marital communications, the government cannot now invoke it ex post facto as justification for listening in on Mr. Drimal’s marital calls. 2. Failure to Train Monitoring Agents
Several of the agents conducting the monitoring on the Drimal telephone had little or no experience working on wiretaps. Tr. at 101; 133, 188. Apart from being read (or reading) the minimization instructions prepared in connection with this investigation, no evidence was presented that any agent was given specific training in how to conduct a wiretap, and in particular, how to minimize non-pertinent interceptions. Tr. at 134. The agents appear to have been left to fend for themselves in interpreting relatively complicated (and as noted below, ambiguous) minimization instructions, including determining for themselves on an individual basis whether patterns of innocence existed, and whether the crime-fraud exception applied. Tr. at 103-104, 105. No agent recalled being advised what Mrs. Drimal’s name was and what her telephone numbers were. Tr. at 115, 141, 167, 187. No-one recalled being advised prior to commencing their monitoring not to record Mrs. Drimal’s conversations with Mr. Drimal. Noone was played a tape of her voice so that the agent could easily identify it. Tr. at 175. 3. Inaccurate and Ambiguous Minimization Instructions
While the provision of minimization instructions is a factor courts consider in determining if the minimization requirement was followed, see DePalma, 461 F.Supp. at 818, here, the minimization instructions compounded the problem. The instructions highlighted special procedures for privileged calls, but the section on marital communications noted that a marital communication lost its privileged character if it related to participation in ongoing
criminal activity. Minimization Instructions, ¶ 20. The instruction thus implicitly directed the monitoring agent to make his/her own determination whether the crime-fraud exception applied, and indeed, that is how each agent interpreted it. Tr. at 104-105, 139. However, as noted above, it is well-established that the crime-fraud exception may not be invoked absent probable cause, which was entirely absent here. To the extent the minimization instructions authorized the agents to intercept and monitor marital communications in order to determine if the crime-fraud exception could be invoked, they were premised on an incorrect statement of law. While AUSA Fish testified (accurately in our view) that spot-monitoring of the content of privileged calls is not permissible, tr. at 60, the spot-monitoring section of the minimization instructions could easily be interpreted to require improperly that privileged calls be spotmonitored in order to determine if the crime-fraud exception applies later in the call. Minimization Instructions, ¶ 8. And indeed, that is precisely what the agents did – contrary to AUSA Fish’s own understanding of the instructions he had drafted for the agents. Tr. at 108, 139 Finally, the minimization instructions referred to the identification of patterns of innocence, but do not instruct the agent whose responsibility it is to discern such patterns, potentially leading a monitoring agent to believe that he/she has no obligation to discern such patterns or communicate them to the other agents monitoring the wire. Minimization Instructions, ¶ 10. Indeed, this section refers to “we” as the party to determine if a pattern of innocence exists, potentially leading the monitoring agent to assume that “we” references his/her supervisor agents and prosecutors, and not him/herself. 4. Failure to Utilize Minimization Capabilities of Surveillance Software
The government also failed to utilize the minimization capabilities of Voice Box, the
software program used to conduct the Drimal wiretap. As we learned from the testifying expert at JSI Telecom which manufactures Voice Box,3 Voice Box permits the monitoring agents to alarm calls to or from certain phone numbers, so as to alert an agent that a call requiring special measures is being intercepted. In addition, Voice Box permits the monitoring agents to block the interception of calls to or from a particular number. The agents testified that none of these capabilities were utilized in conducting the Drimal wiretap. Tr. at 107, 134. Indeed, none of the witnesses who testified at the Hearing were even aware of them. Tr. at 39, 107, 134. Another capability not utilized in this wiretap was the generation of linesheets that revealed the precise monitoring time of each call, including the length of monitoring and minimized segments. Tr. at 40. Such information could have alerted the supervising agents and prosecutors that the monitoring of marital communications was excessive. Finally, Voice Box notifies the monitoring agent when the target phone receives a new call via the “call waiting” feature. Tr. at 109. And yet, every agent justified spot-monitoring of marital calls in order to determine if a third person had arrived on the line. In light of the technological ability to determine that Mr. Drimal’s telephone had received a new incoming call, there was no need to engage in the more intrusive technique of spot-monitoring to make that determination.4
He is currently on vacation, but should the government dispute these capabilities, or the Court require additional information from him, including a declaration, we can obtain it next week. The agents also justified the spot-monitoring on the grounds that it was necessary to determine if Mrs. Drimal had introduced a third person into the call, or someone at the residence had picked up an extension. This excuse for repeated intrusions into the Drimals’ privileged calls takes us even further afield from the matters under investigation. Given the absence of any basis for believing that Mrs. Drimal was a participant in Mr. Drimal’s alleged insider trading, there is no basis for believing that even if a third person joined a privileged conversation between the Drimals, the conversation would turn to matters of a criminal nature
Absence of Post-Wire Efforts to Determine Patterns of Innocence
As noted above, there was no basis for intercepting marital communications in the absence of any grounds for believing that the crime-fraud exception applied. Even, assuming arguendo, that the government was authorized to use Title III wiretaps to determine if the crimefraud exception applied, that issue could have been determined very early in the wiretap, resulting in a far different picture of the spousal interceptions in this case. In the first few days of the Drimal wiretap, it should have been readily apparent to the agents that Mrs. Drimal was not a participant in any trading activity with Mr. Drimal, much less insider trading, had the collective knowledge of the monitoring team been pooled and analyzed. Cf. tr. at 76. Here, however, there is no basis for believing that the crucial “patterns of innocence” minimization instruction was ever followed. AUSA Fish testified that he did not discern any patterns of innocence, tr. at 76, and the government presented no evidence that any agent discerned a pattern of innocence. There was circumstantial evidence that Mrs. Drimal was at some point identified either in a handwritten post-it or a typed up memo, depending on whose testimony is believed, as someone whose calls should not be monitored. Tr. 106, 146. But see tr. at 176, 188. These documents – if they ever existed – have apparently been lost. It is not clear when these notices were allegedly posted. Tr. 106. Notably, a review of the spreadsheet we prepared of the spousal calls reveals that right up until the end of the Drimal wiretap, agents were continuing to monitor and even spot-monitor spousal calls.5
We attach an updated spreadsheet of these 143 calls, which deletes 40 calls resulting in no conversation, and which is color-coded to reflect the length of the interception. See Exhibit A (filed under seal).
Failure to Supervise Monitoring Agents
In addition to not training the monitoring agents prior to their commencement of monitoring duties, there was a failure adequately to supervise them. Such supervision was particularly necessary here, given that several had limited wiretap experience. A review of the linesheets prepared on a daily or bi-daily basis reveals that the agents were clearly capturing and spot-monitoring marital calls, including marital calls of an intimate nature. And yet, not one of the agents who intercepted those calls received any query from a supervising agent or prosecutor as to why the call had been intercepted at all, much less, a direction to cease such interceptions. It is also notable that none of the linesheets for the calls at issue in the Hearing were classified as “privileged.” They were rather classified as non-pertinent, or in some bizarre instances, as “pertinent.” Tr. at 170. Since these classifications were a harbinger of deeper fault-lines in the minimization process, careful scrutiny of the agents’ linesheets – particularly early in the life of the Drimal wiretap – could have averted some of the more invasive intrusions that occurred here. Notably, some of the most egregious calls highlighted by the Court at the Hearing occurred eleven days into the Drimal wiretap. 7. Failure to Share Collective Knowledge
One of the most notable features of the agents’ testimony at the Hearing was the absence of any system to share the collective knowledge of the agents charged with the responsibility of monitoring the Drimal cellphone. Tr. at 57, 146, 168. Given that ultimately twenty-six agents were enlisted in this process (see Minimization Instructions signature page), a failure to institute a formal system of pooling each agent’s identification of potentially innocent parties virtually assured that the same innocent parties – including most egregiously, Mrs. Drimal – would be intercepted again and again. It was as though each agent was on a separate learning curve, and
not the government as a whole placed on one single learning curve.6 While some agents testified that at some point, the name of Mr. Drimal’s wife was posted as an individual whose calls should not be monitored, there is no evidence as to when this information was posted, or what specific instructions it gave to monitoring agents. 8. Absence of Concern for Family and Privileged Communications
The government’s missteps in failing to avoid the interception of marital communications in the first place are matched by a broader disregard for marital and family privacy in this case. Even after it was apparent to the agents that they had intercepted marital communications, the calls were not classified on the linesheets as privileged ones until months later. Indeed, in some cases, the calls were bizarrely classified as “pertinent.” Tr. at 170. As the Court remarked with incredulity during the Hearing, the linesheet that prompted a call to an agent criticizing a failure to minimize concerned a call to a pharmacy’s automated order service, not any of the linesheets indicating the interception of intimate marital communications. Tr. at 66. Not only were scores of marital calls intercepted on the Drimal wire, but 89 calls were intercepted between Mr. and his three children. See Exhibit B (outlining calls to Drimal children) (filed under seal). Finally, even after the content – and wholly nonpertinent nature – of the marital calls was known to the government, the government disclosed these privileged communications to Mr. Drimal’s codefendants in discovery, and even to the defendants in the Rajaratnam case, despite the fact that
Q. It was as though you were starting anew to find out if [Mr. Drimal] was married, identify the voice of the wife and determine if communications between them were criminal, is that correct? A. Yeah (Tr. at 169) . . . Q. So when you went into the wire room on November 20th, you were working on a blank slate to determine was Mr. Drimal married, how you could identify her and whether she was involved in criminal activity with him, is that fair to say? A. Yes, that's fair to say (tr. at 192-93).
none of the Rajaratnam defendants were captured on the Drimal wiretap. See Renzi, 722 F.Supp. 2d. at 1128 (Government acted unreasonably in conducting wiretap of defendant’s cell phone by distributing privileged calls to defendant’s co-defendants). II. THE GOVERNMENT FAILED TO COMPLY WITH THE MINIMIZATION REQUIREMENT IN THE WARRANT ORDER Not only did the minimization failures here constitute a violation of Title III, they also violated the order authorizing the Drimal wiretap. Notably, a violation of the wiretap order is a separate ground for suppression under Title III. See 18 U.S.C. § 2518(10)(a) (iii) (suppression remedy available where “the interception was not made in conformity with the order of authorization or approval”). The wiretap application specifically assured the authorizing judge that privileged communications would be minimized. See Affidavit in Support of Application for Authorization to Intercept Wire Communications of Jan Trigg, dated, November 15, 2007 at ¶ 39 (“The ‘investigative or law enforcement officers of the United States’ . . . will be instructed concerning the steps they should take to avoid infringing upon any attorney-client privilege or other recognized privileges”). Since, as outlined above, this assurance was clearly not honored in connection with the conduct of the Drimal wiretap, the government also violated the order authorizing the wiretap at issue. See Renzi, 722 F.Supp. 2d. at 1127 ((By knowingly recording privileged calls between defendant and his attorneys, government violated wiretap order for defendant’s cell phone and seized evidence beyond that which was authorized, and thus violated the Fourth Amendment, even though the wiretap order did not address specifically the monitoring of privileged conversations, where case agent “specifically represented to the Supervising Court in his affidavit in support of the application for the interception of wire
communications, that the government would minimize privileged calls and carefully train the monitors to recognize calls between lawyers and clients”). III. THE APPROPRIATE REMEDY IS BLANKET SUPPRESSION As set forth in our letter brief dated January 21, 2011, the appropriate remedy here is blanket suppression. Exclusion of the challenged calls would be no sanction at all, and thus, a broader suppression order is required. We respectfully submit that such an order should encompass all calls intercepted over the Drimal wiretap, or, at the very least, the calls intercepted during the first month, when the most egregious intrusions occurred. CONCLUSION For the foregoing reasons, defendant Craig Drimal respectfully requests that the Court suppress the first month of evidence obtained as a result of the wiretap on his cellular telephone. Respectfully Submitted. Date: New York, New York March 18, 2011
JANEANNE MURRAY Murray Law LLC Attorneys For Craig Drimal 233 Broadway New York, New York 11215 Tel. (212) 941-9266
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.