UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------ x : UNITED STATES OF AMERICA : : - v. : : ZVI GOFFER, et al., : : Defendants.
: : ------------------------------ x
10 Cr. 56 (RJS)
GOVERNMENT’S POST-HEARING BRIEF IN OPPOSITION TO DEFENDANT CRAIG DRIMAL’S MOTION TO SUPPRESS WIRETAP EVIDENCE
PREET BHARARA United States Attorney for the Southern District of New York, Attorney for the United States of America
MICHAEL A. LEVY SANTOSH S. ARAVIND Assistant United States Attorneys, Of Counsel
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------ x : UNITED STATES OF AMERICA : : - v. : : ZVI GOFFER, et al., : : Defendants. : : ------------------------------ x
10 Cr. 56 (RJS)
GOVERNMENT’S POST-HEARING BRIEF IN OPPOSITION TO DEFENDANT CRAIG DRIMAL’S MOTION TO SUPPRESS WIRETAP EVIDENCE Introduction When the Government obtains authority to conduct a wiretap, it assumes a statutory responsibility to “minimize the interception of communications” not subject to the authority conferred. 18 U.S.C. § 2518(5). The Government’s performance of this duty must be objectively reasonable and reflect “honest effort.” United States v. Uribe, 890 F.2d 554, 557 (1st Cir. 1989). But “perfection is usually not attainable, and is certainly not legally required.” Id. That is not to say, and the Government does not contend, that because perfection cannot be achieved, poor performance may be excused. Rather, the notion that perfection is unattainable serves both as a recognition that mistakes cannot be avoided, and, at the same time, as a reminder that because there will always be room to improve, the Government should always be making efforts to improve. In the instant case, the point need not be belabored that perfection was not achieved. But the Government respectfully submits that a detailed analysis of what transpired during the supervision and monitoring of the wiretap on defendant Craig Drimal’s telephone reveals that, taken as a whole, the Government’s minimization efforts were objectively reasonable. Accordingly, Drimal’s motion to suppress the wiretap evidence should be denied. Applicable Law Although the Government has already submitted briefing on the law generally applicable to motions to suppress wiretap evidence based on purportedly inadequate minimization (see Supp. Mem. of Law in Opp. to Defs.’ Joint Mot. to Dismiss and Suppress, 1/28/11, at 3-5), the Government submits that two prior decisions – the first binding, and the second well-reasoned and persuasive – provide particularly compelling guidance in resolving Drimal’s motion to
suppress all of the wiretap evidence against him based on the supposed failure to minimize calls subject to the spousal privilege. A. Scott v. United States
In Scott v. United States, 436 U.S. 128 (1978), the Supreme Court’s seminal decision on the standard to be applied to motions to suppress based on inadequate minimization, the Court endorsed and adopted the position that whether there has been a violation of Title III’s minimization requirement in any given case “turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time.” Id. at 136-37 (holding that “the Government’s position . . . embodies the proper approach for evaluating compliance with the minimization requirement”). 1 Focusing on the language of Title III (among other things), the Supreme Court explained that in any evaluation of whether the statutory requirements were violated, “Congress . . . made it clear that the focus was to be on the agents’ actions not their motives.” Id. at 139. 2 With respect to how courts should engage in the “determination of reasonableness,” the Supreme Court explained that there “can be no inflexible rule of law which will decide every The Supreme Court considered only the issue of how to identify a Title III violation, not what the appropriate remedy for such a violation would be. Id. at 136 n.10 (“Given our disposition of this case we find it unnecessary to reach the Government’s contention regarding the scope of the suppression remedy in the event of a violation of the minimization requirement.”). At the March 9, 2011 hearing in this case, the Government relied on this central holding of Scott for the proposition that the good faith of those involved in monitoring and supervising the wiretap was not a relevant issue. The Government notes that there is at least an argument that it spoke too categorically. Closer inspection of the opinion reveals that although the holding of the case was, indeed, that an objective analysis is required in evaluating whether a violation of Title III has occurred, the Supreme Court did observe in dicta that, although “irrelevant to [its] analysis of the questions at issue in this case,” suppression cases in non-Title III contexts reflected that “[o]n occasion, the motive with which the officer conducts the illegal search may have some relevance in determining the propriety of applying the exclusionary rule.” Id. at 139 n.13. Thus, the Supreme Court did not foreclose the possibility that, as in the non-Title III suppression context, although the motivations of government lawyers and agents play no part in determining whether a violation occurred, their motivations might conceivably have some relevance in determining the appropriate remedy if and when a violation is found. But see United States v. Simels, 2009 WL 1924746, at *15 (E.D.N.Y. 2009) (noting Scott, but holding that, unlike non-Title III suppression contexts, Title III suppression is statutorily based and there is “no indication in the statute that good faith is relevant to the operation of this exclusionary rule”).
case.” Id. at 139. The Supreme Court did, however, provide some guidance through its analysis of the particular case before it. First, in looking at the issue presented in that case – whether the monitoring agents had excessively monitored non-pertinent calls – the Supreme Court noted that comparing “percentages [of pertinent and non-pertinent calls] may provide assistance,” but that reference to percentages alone was “not a sure guide to the correct answer.” Id. at 140. Second, the Supreme Court explained that consideration of “the circumstances of the wiretap” was “important,” including the extent of the conspiracy under investigation and the “type of use to which the telephone [being monitored] is normally put.” Id. Finally, the Supreme Court observed that “[o]ther factors may also play a significant part.” Id. In particular, the Supreme Court found that “it may be important to determine at exactly what point during the authorized period the interception was made,” because the lack of information “[d]uring the early stages of surveillance” may make the interceptions of calls reasonable at that stage, even though “[i]nterception of those same types of calls might be unreasonable later on.” Id. at 141. The Supreme Court then went on to apply these factors and others to the specific calls at issue in the case before it. Id. at 141-43. B. United States v. DePalma
Only months after Scott was decided, the Honorable Robert W. Sweet, United States District Judge, issued a thorough and well-reasoned opinion in United States v. DePalma, 461 F. Supp. 800 (S.D.N.Y. 1978), a case that presented facts remarkably similar to those present in the instant case, and which the Government respectfully submits is particularly instructive here. Ultimately, as described below, Judge Sweet appropriately condemned the unreasonable interception by monitoring agents of seven privileged calls, but found that suppression of the entirety of the wiretap was a drastic and unwarranted remedy for the violation. At issue in DePalma was the motion of various defendants to suppress the fruits of “five court ordered wiretaps” that had produced evidence leading to a “multicount indictment alleging a pattern of racketeering activity and securities fraud and bankruptcy fraud conspiracies in connection with the operation” of a Westchester theater. Id. at 803. The wiretap evidence was attacked on a variety of grounds, including that “the evidence was acquired in violation of the ‘minimization’ requirements of 18 U.S.C. § 2518(5).” Id. at 817. In particular, the defendants asserted that because there had been unnecessary monitoring of a number of “privileged or irrelevant conversations,” suppression of “all of the intercepted conversations” from the five wiretaps was warranted. Id. Noting that the defendants had “questioned the interception of less than 400 conversations” out of more than “12,000 intercepted conversations,” Judge Sweet nonetheless concluded that “[d]espite the relatively small number of objections raised by defendants, considering the total number of interceptions, a review of the Government’s minimization [was] required.” Id. at 818. To that end, Judge Sweet held several days of hearings at which “[t]he Government called several FBI agents as witnesses and introduced numerous exhibits into -3-
evidence.” Id. The district court then went on to undertake an “objective assessment” of “whether the actions of the monitoring agents were reasonable under the circumstances.” Id. Focusing first on the preparations for the wiretap, the district court noted in the Government’s favor that: Prior to the commencement of monitoring, Government attorneys gave detailed oral and written instructions regarding minimization to the agents who were to monitor the wiretaps. Before assuming his duties at a monitoring post, each agent was required to read and initial the written instructions, the court order and supporting affidavit, all of which were posted at the monitoring station. The monitoring agents were instructed to make a good faith effort not to intercept nonpertinent or privileged communications, both of which were explained to the agents in some detail. Id. Judge Sweet also found it to be a positive fact that: The agents were instructed to keep logs of each monitored conversation and the logs were reviewed daily by supervisory agents to assure that minimization procedures were being followed. Daily oral reports and periodic written memoranda were made to Government attorneys to review the monitoring operation. Based upon information so obtained and obtained by other methods of the investigation, the Government attorneys submitted five day reports to [the judges who authorized the wiretaps] during the extent of each wiretap order. Id. at 819. On the specific issue of privileged calls, Judge Sweet observed that: Agents were instructed not to intercept conversations of a privileged nature. When it became known that certain attorneys were communicating with subjects of the orders, the attorneys’ names were posted at monitoring stations and agents were instructed to cease interception of these conversations once identities of the parties were determined. Similar procedures were followed with respect to discovered instances of husband-wife, doctor-patient and priest-penitent privilege. -4-
Id. Judge Sweet next turned to a call-by-call analysis of the particular calls that the defendants claimed had been improperly minimized. Id. at 819-23. After finding that there were no instances of unreasonable interception of non-pertinent calls, id. at 819-21, 3 Judge Sweet focused his attention on the defendants’ claim that the Government had improperly intercepted privileged calls between targets and their attorneys, targets and their doctors, and targets and their wives, id. at 821-23. With respect to spousal calls, Judge Sweet found a factual distinction between those that defendant Marson had with his wife and those that defendant DePalma had with his wife. Id. at 821. As to the former, Judge Sweet observed that “the Government had reason to believe that Mrs. Marson might have been a participant in the conspiracy,” and that “[a]lthough this belief did not ultimately prove out, . . . interception and monitoring of these conversations was not unreasonable in light of the circumstances which existed at that time.” Id. As to the latter, Judge Sweet found that the monitors had no basis at the time to believe that Mrs. DePalma had been involved in the conspiracy. Id. at 822 n.26. Focusing on 14 calls between DePalma and his wife, Judge Sweet found that the agents’ interceptions had been reasonable in 11 instances – four in which the monitoring agents had simply “failed to identify the caller as DePalma’s wife,” and seven in which the monitoring “was terminated once the identity of DePalma’s wife was established, often with a note being made in the log that the conversation was nonpertinent or privileged.” Id. at 821. In particular, Judge Sweet observed that of the four calls in which Mrs. DePalma was not identified during the call, “all took place at the early stages of the first New York wiretap order and apparently reflected the agents’ difficulties in identifying the female voice involved.” Id. at 821 n.25. 4 Of the remaining three calls, however, Judge Sweet concluded: In these instances the court cannot find the agents took reasonable steps to minimize the interception of these nonpertinent calls. The agents knew the name of DePalma’s wife and her identity was disclosed in the course of the monitored conversations. The court finds monitoring in such circumstances unreasonable.
Because Drimal’s motion concerning improper interception of non-pertinent calls has already been denied (Tr., 1/5/11, at 10-11), this portion of Judge Sweet’s opinion need not be recounted here.
In finding that the agents’ inability to identify Mrs. DePalma was reasonable, Judge Sweet was aware that “[t]he monitoring post was equipped with a [pen register] device” that, at a minimum, displayed “the telephone number dialed from the phone subject to the intercept.” Id. at 821 n.23. -5-
Id. at 821-22. Turning to the calls between the targets and their attorneys, Judge Sweet again drew a factual distinction between those by Marson and those by DePalma. Id. at 822-23. With respect to Marson, Judge Sweet found that there “was reason to believe that [his] attorney may have been a participant in the illegal activities,” and, accordingly, interceptions of calls between Marson and his attorney were not unreasonable. Id. at 822. Because, however, there was no similar reason to believe that DePalma’s attorney was involved, Judge Sweet found that “the Government’s interceptions of conversations between DePalma and his attorney were unreasonable.” Id. Judge Sweet identified four such conversations, interception of which was “improper under the circumstances.” Id. Judge Sweet explained that because the attorney’s “identity and his relationship with DePalma were known, the agents should have complied with instructions of the United States Attorney and ceased such interceptions.” Id. Judge Sweet found it “[p]articularly egregious” that the agents had monitored a call in which the attorney had “explain[ed] in some detail the progress of a New Jersey proceeding against DePalma.” Id. Moreover, even with respect to the less egregious interceptions, Judge Sweet pointed out that the fact that “none of the intercepted privileged calls dealt with any of the matters concerning the Indictment here in no way alters the impropriety of the interception.” Id. Judge Sweet next considered four calls between DePalma and his doctor. Id. As to two of the calls, Judge Sweet found nothing unreasonable because “[i]n both instances, monitoring was discontinued as soon as the unknown male in the conversation was identified as a doctor.” Id. Interception of the other two conversations, however, “was, under the circumstances, an unreasonable intrusion into privileged communications,” because “[a]lthough the agents apparently knew these conversations were with a doctor, monitoring was not discontinued.” Id. Finally, having found nine privileged calls that clearly had been unreasonably monitored, Judge Sweet turned to the issue of the “sanction to be imposed.” Id. at 823. Judge Sweet observed that the “defendants have requested this court to suppress all communications intercepted . . . as a prophylactic deterrent to future unreasonable interceptions by the Government.” Id. at 823. Judge Sweet rejected that request, explaining, “Such a remedy would be drastic and excessive, given the number of interceptions, the number of demonstrated violations and the nature of human error.” Id. Judge Sweet concluded: Although this court views the transgressions committed by the Government as serious, the unreasonable interception of three conversations between DePalma and his wife, four conversations between DePalma and his attorney and two conversations between DePalma and his doctor do not require the suppression of all interceptions under the five wiretap orders. Taken as a whole, this court is left with the conviction that proper minimization standards -6-
were observed by the Government in the circumstances of this case. Id. Judge Sweet’s decision was in keeping with a line of cases that have consistently and repeatedly held that where there are instances of unreasonable monitoring of particular conversations, the appropriate remedy is to suppress those conversations only. See, e.g., United States v. Pierce, 493 F. Supp. 2d 611, 636 (W.D.N.Y. 2006) (“Even if the investigating agents failed to use reasonable efforts to minimize particular intercepted communications as Defendant Galarza claims, suppression of all communications intercepted pursuant to any of the challenged Intercept Orders is not the proper remedy absent a pervasive disregard of the minimization requirement.”) (internal quotation marks omitted); United States v. Le, 377 F. Supp. 2d 245, 267 (D. Me. 2005) (“In most cases, the proper remedy for failure to minimize is the suppression of the call in question, not the wiretap evidence in its entirety.”); United States v. McCafferty, 2011 WL 666718, at *9 (N.D. Ohio 2011) (“[I]if the monitoring agents did fail to minimize certain nonpertinent calls, this would not warrant the drastic remedy the defendant seeks. At most, suppression of only the non-pertinent calls that were improperly minimized would be warranted.”). Although some courts have noted the possibility of suppressing all evidence from a wiretap as a remedy for improper minimization, those courts have made clear that the remedy “is reserved for the particularly horrendous case . . . where the government has made effectively no effort towards minimization whatsoever.” United States v. Suggs, 531 F. Supp. 2d 13, 24 (D.D.C. 2008) (internal quotations omitted); see also, e.g., United States v. Hoffman, 832 F.2d 1299, 1309 (1st Cir. 1987) (rejecting defense request for total suppression of wiretap evidence and reserving possibility for “a particularly horrendous case”). Discussion There are many parallels – both good and bad – between the instant case and DePalma. Ultimately, however, what the record in this case demonstrates is that, as in DePalma, although there were instances of unreasonable interception, and the Court may correctly “view the transgressions committed by the Government as serious,” those transgressions must be viewed in light of “the number of interceptions, the number of demonstrated violations and the nature of human error.” Id. As in DePalma, when the monitoring of the wiretaps at issue here is “[t]aken as a whole,” it becomes clear “that proper minimization standards were observed by the Government in the circumstances of this case,” and that the remedy of suppression would be “drastic and excessive.” Id. A. Minimization and Other Pre-Monitoring Instructions
The evidence at the hearing in this case demonstrates that the United States Attorney’s Office and the FBI took a variety of the same pre-monitoring steps cited favorably by Judge Sweet in DePalma to ensure that privileged calls would be appropriately minimized. -7-
Immediately upon obtaining the wiretap authority for Drimal’s telephone, the Assistant United States Attorney who was supervising the wiretap (the “Supervising AUSA”) traveled to the FBI office where the wiretap was to be monitored and gave an oral presentation to the monitoring agents concerning proper minimization procedures. (Tr., 3/9/11, at 11-13 (hereinafter, “Hearing Tr.”)). These instructions included directions about the proper treatment of calls between Drimal and his wife. (GX 20 at ¶¶ 15, 20). The agents who were present for the oral presentation were then required to sign a written copy of the instructions. (Hearing Tr. at 14; GX 20 at 17). Other agents not present at the time were required to read the instructions and sign them to indicate that they had done so. (Hearing Tr. at 152-53; GX 20 at 17-18). As in DePalma, all of the monitoring agents were also provided with a copy of the wiretap affidavit, and both the minimization instructions and the affidavit were made available in the wire room for their ongoing reference. (See, e.g., Hearing Tr. at 87-88). Moreover, there is a strong indication in the record that the monitors – having been instructed by the Supervising AUSA about the marital privilege – were supplied before beginning their duties with the specific information that Drimal had a wife. Although one of the monitors who testified at the hearing had no recollection about being given that information (Hearing Tr. at 154, 167-68 (Ford)), one distinctly recalled being informed of the fact before beginning monitoring (Hearing Tr. at 88-89 (Tai)), another was certain he was aware before monitoring that Drimal had a wife, but could not specifically remember where he obtained the information (Hearing Tr. at 121-22 (LoMonaco)), and another was uncertain but believed he had been given the information in advance (Hearing Tr. at 199-200 (Rom)). In addition, although it is not clear exactly when it happened, two of the monitors also testified that they believed that Drimal’s wife’s telephone number was posted at the monitoring station at some point with the instruction that calls with the number should be minimized. (Hearing Tr. at 106 (Tai), 146 (LoMonaco)). With respect to the contents of the minimization instructions given to the monitors, two subjects merit brief discussion in light of questions raised by the Court at the conclusion of the evidentiary hearing. (See Hearing Tr. at 205). First, the paragraph of the instructions that describes the spousal privilege informed the monitors that a conversation was not privileged if it dealt “not with private matters between husband and wife, but instead with ongoing as opposed to past violations of law.” (GX 20 at ¶ 20). The instructions were silent – and therefore ambiguous – about how much, if any, of a conversation between Drimal and his wife the monitors were permitted to listen to in order to determine whether a particular conversation dealt with ongoing violations of law, particularly where, as here, there was no affirmative reason to believe that Drimal’s wife was a participant in the offenses under investigation. This ambiguity in the instructions is unfortunate, but reflects ambiguity in the law itself. There are few cases that address the issue at all, and those that do provide conflicting direction. The implication of DePalma, for example, is that it is reasonable to monitor potentially privileged conversations to at least some degree if there already exists information that the other party to the conversation (e.g., a spouse or lawyer) is a party to the criminal activity under -8-
investigation, but it is unreasonable to do so in the absence of such information. See DePalma, 461 F. Supp. at 821-22 (distinguishing between reasonable and unreasonable interceptions based on whether there had been information that the other party might be a participant in the offenses under investigation). In contrast, the Fifth Circuit has held that it was reasonable for agents to monitor potentially privileged calls with doctors and lawyers for “long enough to determine that the doctor and lawyer were not participating in the conspiracy” simply on the ground that “[i]t would be unreasonable to expect agents to ignore completely any call to an attorney or doctor; doctors and lawyers have been known to commit crimes.” United States v. Hyde, 574 F.2d 856, 870 (5th Cir. 1978). Describing it as “The Monitors’ Dilemma,” one pair of commentators, addressing precisely this topic, has framed the question as follows, “Does one listen to the potentially privileged call to determine its privileged status?” Michael Goldsmith & Kathryn Ogden Balmforth, The Electronic Surveillance of Privileged Communications: A Conflict in Doctrines, 64 S Cal. L. Rev. 903, 913 (1991). While calling for statutory revisions to Title III to correct what they deem to be inadequate protection for privileged conversations, the commentators conclude that the answer currently provided by Title III appears to be yes, because Title III provides not that privileged conversations may not be intercepted, but only that they may not be admitted into evidence. See, e.g., id. at 904-05 (asserting that an initial draft of Title III “contained special protections to avoid the unnecessary interception of privileged communications,” but that those provisions were excised in favor of provisions that “merely provided that privileged communications may not be admitted into evidence,” leaving a statutory scheme in which “privileged communications receive no greater protection from initial interception than do ordinary conversations”); see also United States v. Simels, 2009 WL 1924746, at *5 (E.D.N.Y. 2009) (citing law review article and observing that “Courts frequently simply assume that privileged communications are ‘not otherwise subject to interception’ and that their interception must therefore be minimized pursuant to § 2518(5), but the statute does not support that assumption”). This is not to say that the Government intended for the ambiguity in its minimization instructions to convey that agents were permitted to listen to spousal calls in order to determine whether they related to ongoing criminal activity, or that it intends to instruct agents in future cases that they are permitted to do so. 5 Rather, it is simply to say that although the hearing testimony established that at least some agents appear to have interpreted the instructions as granting them that permission (Hearing Tr. at 190 (Rom)), it is far from clear that such an interpretation was legally incorrect. More importantly, however, as will be discussed below, there are at most only a relatively small number of calls in this case – all very early in the wiretap – in which it appears that a monitor might have been monitoring a conversation for criminal
The United States Attorney’s Office is assembling a committee of supervisory AUSAs to review all aspects of this Office’s practices concerning the supervision of wiretaps. One focus of that committee’s work will be to review and revise the minimization instructions given to monitors. In turn, one focus of that project will be to arrive at a precise policy in this area and create instructions that convey that policy to monitors with precision. -9-
content despite having determined that the parties to the conversation were Drimal and his wife. (See, e.g., GX 30-ER (session 5874)). Second, the minimization instructions directed that even when a communication was privileged, monitors were permitted to “spot monitor” after the initial minimization by checking back into the conversation periodically and, if it was determined that the conversation was not privileged, listening to and recording the conversation. (GX 20 at ¶ 8). At the conclusion of the hearing, the Court noted that there appeared to be a disagreement between the parties as to whether such “spot checking is appropriate on a privilege call.” (Hearing Tr. at 205). Although the number of decisions addressing the issue is limited, the Government respectfully submits that those that exist confirm without apparent exception that spot monitoring of privileged conversations is permissible in order, at a minimum, to determine whether the parties to the conversation remain the same. See United States v. Bynum, 360 F. Supp. 400, 418 (S.D.N.Y. 1973) (although most privileged calls were less than one minute long, “in the calls of longer duration, at least spot monitoring was necessary to make certain the parties to the calls did not change”); United States v. Ianniello, 621 F. Supp. 1455, 1472-73 (S.D.N.Y. 1985) (monitors were “correctly and appropriately instructed” to “use intermittent ‘spot monitoring’ to determine when privileged conversations had ceased”); United States v. Cleveland, 964 F. Supp. 1073, 1097 (E.D. La. 1997) (spot monitoring of potentially privileged conversation allowed where it was “[t]he only way that an agent monitoring the wall microphone could tell if one conversation had ended, and another had begun”); State v. Mazzone, 648 A.2d 978, 986 (Md. 1994) (observing that spousal conversations may be non-privileged for various reasons, including “the presence of third parties,” and that “agents may . . . spot monitor . . . to determine if the conversation has shifted to non-privileged communications”). 6
Although there was some focus during the hearing on “patterns of innocence” and how such patterns are determined, the Government respectfully submits that the issue is of limited importance to the monitoring of privileged calls in this case. If, as may be the case, privileged calls must be minimized immediately upon identification of the parties and, thereafter, spot monitored only for a change in the parties to the call, the existence or non-existence of a pattern of innocence does not logically factor into a monitor’s decisions because the call must be minimized upon identification of the parties irrespective of any pattern of innocence, and the pattern of innocence does not alter the need to spot monitor for a change in parties through, for example, call waiting. (Although paragraph 10 of the minimization instructions – which deals with patterns of innocence – does not expressly address or authorize such limited spot monitoring, it should.) On the other hand, if (and, again, there is ambiguity in the law on this point) potentially privileged calls may, like non-privileged calls, be monitored and spot monitored for discussions of ongoing criminal conduct unless and until a pattern of innocence is established, the record in this case (as described more fully below) shows that there are at most only a relatively small number of calls, all among the very first involving Mrs. Drimal and before a pattern of innocence could reasonably have been established, in which it appears that a monitor might have been monitoring a conversation for criminal content despite having determined that the parties to the conversation were Drimal and his wife. -10-
Supervision by the United States Attorney’s Office
In addition to presenting minimization instructions to the prospective monitors, the record from the hearing reveals that the Supervising AUSA was actively engaged in the supervision of the monitors’ efforts at minimization in a number of ways similar to, and occasionally surpassing, those described favorably by Judge Sweet in DePalma. As in DePalma, the monitors here were instructed to, and did, create line sheets for each of the calls that they monitored. (See generally GX 40 (disk)). Unlike in DePalma, however, the Supervising AUSA did not simply take oral or written reports from case agents who had reviewed the actual line sheets, DePalma, 461 F. Supp. at 819, but reviewed the line sheets himself on a daily or near-daily basis. (Hearing Tr. at 14-15, 23-24). Moreover, the Supervising AUSA made clear in his testimony that he did so with attention to whether or not the monitors were properly fulfilling their minimization obligations (Hearing Tr. at 63-64), and, on one occasion, contacted a case agent to express concern when he discovered a line sheet indicating that although the call was between Drimal and an automated pharmacy line, the monitor had nonetheless continued to listen for long enough to record the type of pharmaceutical that Drimal had ordered, the quantity of that pharmaceutical, and the time at which the order would be ready for pickup. (Hearing Tr. at 31, 33-34; GX 70). To be sure, as will be discussed below, some small number of spousal calls that should have been further minimized went undiscovered during that review. But this does not mean that the Supervising AUSA’s efforts were less than completely diligent. Courts in this circuit have repeatedly observed that Title III’s minimization requirements call for “supervision by the prosecutor.” United States v. Gotti, 42 F. Supp. 2d 252, 268 (S.D.N.Y. 1999) (emphasis added); see also, e.g., United States v. Salas, 2008 WL 4840872, at *8 (S.D.N.Y. 2008) (same). Although the requirements of “supervision” do not appear to have been precisely defined in this context, the Second Circuit has elsewhere considered what is “objectively reasonable” performance of a “supervisory role,” reaching the conclusion that “[a]bsent some indication to a supervisor that an investigation was inadequate or incompetent, supervisors are not obliged either to undertake de novo investigations or to cross examine subordinates reasonably believed to be competent as to whether their investigations were negligent.” Cecere v. City of New York, 967 F.2d 826, 829 (2d Cir. 1992). Applying Cecere to the law enforcement context, the Ninth Circuit has added, “Effective and efficient law enforcement requires cooperation and division of labor to function. For that reason, law enforcement officers are generally entitled to rely on information obtained from fellow law enforcement officers.” Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005); cf. Martinez v. Simonetti, 202 F.3d 625, 635 (2d Cir. 2000) (finding that trial court erred in concluding, for purposes of qualified immunity, that supervisory police officers “had a duty to conduct an independent investigation” of information supplied by subordinate officers before instituting criminal charges). Here, the Supervising AUSA’s supervision of the monitors’ performance of their duties was without question objectively reasonable. As the Supervising AUSA explained during his testimony, he was given no cause to be concerned that spousal calls were being improperly monitored because: (1) he had personally instructed the monitors about the requirement to -11-
minimize privileged spousal communications; (2) the daily statistical reports indicated that the monitors were, indeed, making significant use of the interception software’s minimization function on a daily basis; and (3) consistent with appropriate minimization, the synopsis on most of the line sheets for calls between Drimal and his wife “tended to have no or little description of any substantive conversations” or “affirmatively said in the synopsis that calls were being minimized.” (Hearing Tr. at 29-30). As to this last point, even among the 18 calls that the Court identified as troubling (Hearing Tr. at 7) – which are, themselves, only a small subset of the more than 180 calls that have been identified as spousal calls (DX A) and the more than 1,000 conversations intercepted in total – 13 of the corresponding line sheets either provide no substance for the conversation or affirmatively indicate that the call was minimized. (GX 10 (sessions 5644, 5652, 5806, 5808, 5843, 5874, 5875, 5948, 5950, 6692, 6710, 6845, 7546)). 7 Of the remaining five, four contain very brief substantive synopses that, on their face, are indicative of no more than a brief period of monitoring as the parties to the call were identified (GX 10 (sessions 5710, 5809, 5945, 6087)), and one describes Drimal’s retrieval of a voicemail message from his wife (with no substance provided), which could not be minimized without losing the opportunity to monitor what proved to be a subsequent message from another caller (GX 10 (session 5828)). Again, none of the foregoing is meant to suggest that inquiry by the Supervising AUSA as to some of the line sheets would not have been productive. It has since become clear that, in several instances, such an inquiry might have revealed improper minimization of a particular call. But the fact that the Supervising AUSA could have inquired does not mean that, absent more than was present here, failure to make such inquiry was objectively unreasonable. To the contrary, the Supervising AUSA’s actions were not only objectively reasonable, but completely diligent. He personally instructed the monitors about their duties concerning minimization, he reviewed their line sheets on a near-daily basis, he regularly reported to the supervising judges, and where a line sheet appeared to rebut the reasonable presumption that the monitors were minimizing appropriately – as where one line sheet reflected that a monitor had listened to a significant portion of a call to an automated pharmacy line – the Supervising AUSA immediately took corrective action. To call such hands-on supervision objectively unreasonable would be both unwarranted and, as far as the Government can determine, unprecedented. C. Monitoring
Finally, as to the monitoring itself, the Government does not dispute that several calls between Drimal and his wife were improperly monitored. Although it is not clear in many instances when the monitor reached, or should reasonably have reached, the conclusion that the
The fact that a monitor did not affirmatively indicate in a particular line sheet that the call was minimized does not indicate that the call was not, in fact, minimized. (Compare, e.g., GX 10 (Sessions 5644, 5652) with GX 30-PT (showing minimization)). -12-
call was between spouses, the monitoring of at least one call – specifically, session 5808 – would be indefensible even if one considers pertinence alone, setting aside the issue of privilege. In addition, two other calls – specifically, sessions 5710 and 5945 – were monitored for approximately 90 seconds without any minimization, even though pen register data, the subject matter of the conversations, and the use of Drimal’s wife’s name in one instance, should arguably have led the monitors to recognize that Drimal was speaking with his wife. But, ultimately, as in DePalma, these few mistakes – which the Government seeks to demonstrate below number far fewer than 18 – are a tiny fraction of the total number of spousal calls (more than 180), and, more broadly, of the total number of conversations monitored (more than 1,000). Accordingly, as in DePalma, when the monitors’ efforts are “[t]aken as a whole,” granting Drimal’s request for the remedy of suppression would be “drastic and excessive.” DePalma, 461 F. Supp. at 823. 1. General Patterns
As Scott and DePalma make clear, any analysis of the objective reasonableness of the monitoring in this case cannot be done superficially, but, rather, requires detailed consideration of the calls themselves and, in particular, the 18 that the Court identified as troubling. See also, e.g., United States v. Mansoori, 304 F.3d 635, 648 (7th Cir. 2002) (“whether the agents performed spot checks at intervals that were too frequent, and whether they listened for too long when they made those checks, is not a question that can be answered responsibly in the abstract”). Before turning to the calls specifically, however, it bears noting that the calls identified by the Court were drawn almost exclusively from the earliest calls between Drimal and his wife. In fact, the Court identified 13 of the first 17 calls between Drimal and his wife, the overwhelming majority of which were intercepted in a two-day stretch on November 26 and 27, 2007. (See GX 30). 8 The fact that these calls represented the earliest instances in which monitors intercepted calls between Drimal and his wife is significant, because it suggests that calls were monitored for longer durations as a result of difficulty identifying the parties to the
Government Exhibit 30, attached hereto, was not introduced at the hearing, but is submitted with the consent of the defendant and the authorization of the Court. (See Hearing Tr. at 20405). Like Defense Exhibit A, it identifies all 184 of the calls that either side has identified as spousal calls. For each call monitored by one of the agents whom the Court initially ordered to testify at the hearing, it provides: session number; date; total duration of the call; total duration monitored; number of times minimized; identity of the monitor; and a description (based on listening to the recording) of certain events and when they occurred, such as when the call connected and how long before minimization or termination of the call. It is the basis for the charts introduced at the hearing with respect to individual witnesses (e.g., GX 30-PT). With respect to calls monitored by agents who were not directed to appear as witnesses, the chart contains only: session number; date; total duration of the call; and the identity of the monitor. The 18 calls identified by the Court have been highlighted. -13-
call. See Scott, 436 U.S. at 141 (explaining that “it may be important to determine at exactly what point during the authorized period the interception was made,” because the lack of information “[d]uring the early stages of surveillance” may make the interceptions of calls reasonable at that stage, even though “[i]nterception of those same types of calls might be unreasonable later on”); DePalma, 461 F. Supp at 821 n.25 (excusing failure to minimize calls in which Mrs. DePalma was not identified because “all took place at the early stages of the first New York wiretap order and apparently reflected the agents’ difficulties in identifying the female voice involved”). 9 Of the subsequent 167 calls between Drimal and his wife, the Court has expressed concern over only five. (See GX 30). Looking at the calls in the aggregate, another noticeable feature is that minimization was employed at some point during all but six of the calls identified by the Court. Moreover, there is not one instance among the 18 calls identified by the Court in which a monitor listened for a period of more than 97 seconds without minimizing. (See GX 30). In some instances, the call ended sooner; sometimes much sooner. In other instances, the monitor minimized sooner; again, sometimes much sooner. The fact that most of the calls were minimized for some portion (with spot monitoring in some instances) and that there is not one call in which a monitor listened uninterrupted for more than 97 seconds strongly suggests that monitoring that might appear excessive with the benefit of hindsight was due not to an abandonment of the duty to minimize, but to difficulties in identifying the parties to the call. This conclusion becomes that much stronger when one considers the speed with which the same monitors minimized spousal calls as the wiretap progressed. (See, e.g., 30-ER (all spousal calls monitored by Rom); 30-FL (all spousal calls monitored by LoMonaco)). 2. Individual Calls
Turning to the specific calls identified by the Court, although there are several with respect to which the degree of monitoring was excessive or at least arguably so, there are many others – described below – that, when examined closely, reveal themselves to have been monitored reasonably. Sessions 5644 and 5652 (Tai) Unlike most of the calls identified by the Court, sessions 5644 and 5652 were both calls between Drimal and his wife’s cellular phone, not Drimal and his wife using the family’s home phone. (See DX A). These two calls (which occurred on the same morning during the first week of the wiretap) represent (i) the first time that a conversation involving that cellular telephone number was intercepted on the wiretap, and (ii) the first time that Drimal’s wife’s voice was
The Government relies on the sealed stipulation accepted by the Court at the beginning of the hearing, and the discussion contained in the Government’s letter transmitting it, to support this point. -14-
heard by the particular monitor, FBI analyst Pauline Tai. (See DX A). The content of the conversations gave some indication that Drimal was speaking with his wife and, in each instance, Tai minimized the call within approximately the first minute – after 67 seconds the first time, and then after only 56 seconds the next time. (See GX 30). 10 Thereafter, Tai minimized every spousal call approximately 30 seconds or less after it connected, often significantly less. (See GX 30-PT). Based on the foregoing, the Government respectfully submits that the monitoring was hampered by Tai’s legitimate difficulty in identifying Drimal’s wife and the monitoring was reasonable. 11 Sessions 5806, 5808, 5809, 5828 (LoMonaco) Sessions 5806, 5808, 5809, and 5828 were all monitored by Special Agent Frank LoMonaco on the morning of November 26, 2007. (See DX A). Session 5806 began at 5:39 a.m. (see DX A), was more than four minutes long, and yet only the last 42 seconds were monitored. (See GX 30). Given these facts, along with the fact that it was the first call to be monitored that day (see GX 40), it appears that Special Agent LoMonaco began his shift, logged into the system, and began monitoring the already in-progress call just as the call was concluding. (Hearing Tr. at 122-23 (describing possibility of entering in-progress call upon login)). As far as Special Agent LoMonaco’s ability to determine the parties during that brief period of time, (i) the subject of the call (absent the context of subsequent calls) was largely impossible to discern, (ii) Special Agent LoMonaco had never previously had occasion to hear Drimal’s wife’s voice (see GX 30), and (iii) Drimal’s wife’s name was used only in the very last seconds before the call ended. Pen register data does appear to have been captured, however, indicating the phone number to which the target phone was connected, which was the phone number for Drimal’s home. Although the record is unclear concerning what the FBI knew at that stage about that telephone number and who might be expected to make or receive calls from it, the call was sufficiently brief that it would have been difficult for any monitor not personally familiar with the number to access information about its owner before the call ended. Based on the foregoing, the
The Court has been provided with recordings of the calls and transcripts. For privacy reasons, the Government will not describe any significant substance of the recorded conversations in this filing. The times on the transcripts and the Government’s charts may vary a small amount from one another (generally by no more than one or two seconds) due to the impossibility of perfect precision in determining when the voices on a recording began or ended, as well as differences in software used to review the recordings.
The Government notes that, as with many of the calls at issue, the line sheets corresponding to these two calls indicate that Tai eventually recognized that the other party to the call was Drimal’s wife (assuming that the line sheet does not reflect subsequent modification by a case agent). As was made clear in the testimony at the hearing (see, e.g., Hearing Tr. at 158-59), this indicates only that the monitor reached that conclusion at some point before the end of his or her shift, but not necessarily while the call was ongoing, and certainly not at any particular point during the call. -15-
Government respectfully submits that the monitoring was hampered by legitimate difficulty in identifying Drimal’s wife and monitoring for only 42 seconds as the call ended was reasonable. Turning to session 5808, the Government acknowledges that this was an unquestionable instance of unreasonable monitoring, regardless of whether the monitor identified Drimal’s wife as the other party. The Government submits, however, that the monitoring of the call that immediately followed it was not unreasonable. During session 5809, the call connected immediately (i.e., with no ringing to warn the monitor that a call was about to begin), proceeded for only 15 seconds, and then abruptly ended. (See GX 30). There was no exchange of greetings; rather, Drimal simply began speaking and was the only speaker for approximately the first 12 seconds. Drimal’s wife spoke for the first time only approximately three seconds before the parties hung up. Although the call followed relatively soon after session 5808, and can now plainly be identified as a continuation of that preceding call, the Government submits that the call was simply too short, and Mrs. Drimal’s first appearance on it too late, to deem the failure to minimize within 15 seconds unreasonable. Finally, session 5828 was a call by Drimal to retrieve his voicemail messages. Monitoring began after the call was in progress and after the automated voice would have (if it did) announced the number of messages available to be retrieved. There was no basis to conclude, however, that there was only one message to be retrieved, and, in fact, the automated voice’s reference to “messages” and its identification of the initial message as the “first unheard message” implied that there was more than one message. As it turned out, Drimal retrieved two messages during the call. Although the first was a message from Drimal’s wife, the duration of that message could not have been known in advance, and, as a result, there was no way for Special Agent LoMonaco to avoid monitoring that message without forfeiting the ability to monitor any following messages. Accordingly, the Government respectfully submits that Special Agent LoMonaco performed his monitoring duties appropriately on this call. Sessions 5710, 5843, 5874, 5875 (Rom) Sessions 5710, 5843, 5874, and 5875 were all monitored by Special Agent Edmund Rom. The Government recognizes that it is possible to conclude that the first of these – session 5710 – was unreasonably monitored. Although it is not clear that Special Agent Rom did identify Mrs. Drimal as a party to the call while the call was in progress, it is at least arguable that he should have. Pen register data was received, the subject matter of the conversation was familial in nature, and the call stands out as one of very few in which nearly 90 seconds was monitored with no minimization (see GX 30). The Government notes, however, that the call occurred during the very first week of the wiretap (see GX 30), and Drimal did not address his wife by name or any term of endearment. See DePalma, 461 F. Supp. at 823 (during each spousal call found to have been unreasonably monitored, wife’s “identity was disclosed in the course of the monitored conversations”).
With respect to sessions 5843, 5874, or 5875, however, the monitoring of each appears to reflect Special Agent Rom’s legitimate difficulty in identifying the other party to the call as Drimal’s wife until ultimately minimizing each call within approximately one minute or less. Session 5843 was minimized 30 seconds after the parties began speaking. (See GX 30). The parties did not address each other by name or any term of endearment, and the subject matter of the conversation was not in any way specific to spousal or familial matters. The only indication that the call was one between Drimal and his wife was that pen register data was apparently received indicating that the call was with Drimal’s home telephone. (See DX A). There is no way to discern from the record whether Special Agent Rom was reacting to that or the nonpertinence of the call when he minimized after 30 seconds, but, in either event, the Government submits that minimization of this call within such a short period was reasonable. Session 5874 was minimized after 44 seconds of conversation and then spot monitored for another 42 seconds before the call ended. (See GX 30). Importantly, no pen register data was received, leaving Special Agent Rom to identify the identity of the parties based only on clues from the content of the conversation. (See DX A). In that respect, Mrs. Drimal used a term of endearment partway through the first minute of the call, and the conversation appeared to concern the care of children. There is no way to discern from the record whether Special Agent Rom was reacting to those clues or the non-pertinence of the call when he minimized after only 44 seconds, but the Government respectfully submits that 44 seconds was not an unreasonable period of time within which to make a determination under the circumstances. With respect to the subsequent 42 seconds of spot monitoring, the analysis is less clear. To the extent Special Agent Rom had identified the parties as Drimal and his wife, 42 seconds would seem to be longer than reasonably necessary to determine that the spousal privilege continued to apply to the conversation. To the extent Special Agent Rom had not identified the parties, 42 seconds would be a reasonable amount of time to spend ensuring that a non-pertinent but non-privileged conversation had not become pertinent. Finally, session 5875 was minimized after 67 seconds of conversation. (See GX 30). Once again, no pen register data was received, leaving Special Agent Rom to identify the parties based only on clues from the content of the conversation. (See DX A). In this instance, clues were particularly slow in developing, as the early part of the conversation was dominated by long pauses while Drimal asked the other party to wait while he listened to a news report on the radio. More than 40 seconds elapsed before the conversation began in earnest and Mrs. Drimal first made a statement of more than two words in length. From that point on, Special Agent Rom continued listening for only approximately 25 seconds before minimizing the call. During the entire call, the parties did not address each other by name or any term of endearment, and the subject matter of the conversation – which did not truly begin until more than 40 seconds into the call – was not inconsistent with a discussion of familial matters, but neither was it indicative of such a discussion. The Government respectfully submits that, under these circumstances, Special Agent Rom did not wait an unreasonable period of time before minimizing the call.
In addition to the foregoing, Special Agent Rom’s subsequent performance confirms that any delay in the minimization of sessions 5843, 5874, and 5875 (and perhaps 5710) was the result of reasonable difficulties in identifying the conversations as spousal. Following these early experiences identifying calls between Drimal and his wife, Special Agent Rom was on duty for a number of additional spousal calls during the period of the Drimal wiretap and minimized every such call within 11 seconds or less. (See GX 30-ER). Sessions 5945, 5948, and 5950 (Ford) Sessions 5945, 5948, and 5950 were all monitored by Special Agent David Ford within a period of approximately 30 minutes at around noon on November 27, 2007. (See DX A). Special Agent Ford has forthrightly explained that he recalls “kicking [him]self” immediately after session 5945 – a conversation that he monitored for its entire 95-second duration without minimizing – when he “digest[ed] what was just said” and realized that he “should have minimized that call” because it involved “a man and a woman where they were discussing a child in school.” (Hearing Tr. at 161). Special Agent Ford’s conclusion that he could have performed his duties better does not necessarily mean that his actions were unreasonable. Nonetheless, the call stands out as the longest non-minimized call of the 18 identified by the Court, pen register data identifying the number of Drimal’s home telephone appears to have been presented to the monitor, Mrs. Drimal’s name was used early in the call, and – as Special Agent Ford conceded – the subject matter was familial in nature. Ford’s testimony concerning session 5945, and his line sheets for all three sessions, however, strongly imply that he was unaware until some point during or after the third of the three calls that the woman with whom Drimal was speaking was likely Drimal’s wife. 12 Nonetheless, following his experience during session 5945, Special Agent Ford heavily minimized during his monitoring of sessions 5948 and 5950. (See GX 30). With respect to session 5948, during which neither Drimal nor his wife used each other’s names or any term of endearment, Special Agent Ford minimized the call within approximately 40 seconds, at the point at which the subject matter of the conversation made clear it was the same two parties as the previous conversation that Special Agent Ford had failed to minimize. Following that, Special Agent Ford spot monitored and minimized six times, never spot monitoring for more than approximately 10 to 20 seconds. (See GX 30).
The line sheets show that for all three calls, Special Agent Ford (i) was presented with pen register data identifying the number of Drimal’s home phone and (ii) correctly identified the first name of the woman to whom Drimal was speaking. There is no way to know from the record whether information about the name of Drimal’s wife and the number of Drimal’s home phone were unavailable to Ford at the monitoring station, or whether they were available and Special Agent Ford simply failed to make the connection. -18-
Likewise, with respect to session 5950, during which Drimal’s wife did use a term of endearment and the conversation concerned her parents (perhaps leading to Special Agent Ford’s observation in the line sheet that the woman “sound[ed] like [Drimal’s] wife” (see GX 10)), Special Agent Ford minimized after approximately 30 seconds. (See GX 30). Thereafter, Special Agent Ford spot monitored and minimized four times, never spot monitoring for more than approximately 20 seconds. (See GX 30). Taken as a whole, the Government respectfully submits that Special Agent Ford’s performance during sessions 5948 and 5950 was not unreasonable. Although there were indications from which Special Agent Ford might have recognized more conclusively that Drimal was speaking with his wife and the call was privileged, he nonetheless minimized both calls relatively quickly and, thereafter, spot monitored only for very brief periods of time. Sessions 6087 and 6845 (Riordan) Sessions 6087 and 6845 were both monitored by Special Agent Kevin Riordan. The Government submits that both calls were reasonably monitored. Session 6087 was minimized after only 52 seconds. (See GX 30). Although pen register data was apparently available indicating the number of Drimal’s home phone, neither the subject matter of the call nor the name of the woman speaking to Drimal was discernable until more than 30 seconds into the call, at which point Special Agent Riordan ultimately appears to have made the connection within a fairly short 20 seconds, at which point he minimized. Although the call continued for another two minutes, Special Agent Riordan did not spot monitor. (See GX 30). Special Agent Riordan’s pattern of performance on other spousal calls supports the conclusion that even the 50 seconds of monitoring on session 6087 was due to his inability to recognize sooner that Drimal was speaking with his wife. Specifically, during the large number of spousal calls monitored by Special Agent Riordan, this was the only one in which Special Agent Riordan failed to minimize the call within 21 seconds, and the great majority of the calls were minimized much faster than that. (See GX 30-KR). 13 With respect to session 6845, Special Agent Riordan minimized the call within 10 seconds. (See GX 30). Thereafter, he spot monitored one time for approximately 18 seconds before minimizing again. (See GX 30). The Government submits that this was reasonable minimization. Sessions 6692 and 6710 (Busby) Sessions 6692 and 6845 were both monitored by Special Agent Adrian Busby. Again, the Government submits that both calls were reasonably monitored. Notwithstanding that session Because Special Agent Riordan was excused as a hearing witness, Government Exhibit 30-KR – which is simply a subset of the information presented in Government Exhibit 30 – was never introduced into evidence. The Government has attached it as an exhibit to this submission. -1913
6692 was the very first time that Special Agent Busby was the monitor for a call involving Drimal’s wife, he minimized the call within 15 seconds. (See GX 30-AB). 14 Thereafter, he spot monitored three times, for 31 seconds, 19 seconds, and 21 seconds. (See GX 30-AB). Similarly, with respect to session 6710, which began approximately 30 minutes later (see DX A), Special Agent Busby minimized within four seconds. (See GX 30-AB). Thereafter, he spot monitored twice, for 12 seconds and 18 seconds. (See GX 30-AB). Following these first two calls, Special Agent Busby monitored numerous calls between Drimal and his wife, generally minimizing within less than 10 seconds. (See GX 30-AB). Session 7546 (DeGraff) Finally, Special Agent Christopher DeGraff monitored a single spousal call on December 20, 2007, listening for 67 seconds without minimizing. (See GX 30). Although the line sheet for that call indicates awareness that the call was between Drimal and his wife, it is not clear whether Special Agent DeGraff was the one who made that notation, or, if so, whether he reached that conclusion while the call was still ongoing. (See GX 10). With the exception of pen register data that appears to have been available during the call (See DX A), nothing else about the call should have given Special Agent DeGraff the impression that he was monitoring a spousal call. In particular, (i) Mrs. Drimal’s name was never used, nor was either party referred to by a term of endearment, (ii) the conversation was entirely devoid of any familial subject matter, and (iii) Special Agent DeGraff had never before had occasion to hear Mrs. Drimal’s voice. Under these circumstances, the Government submits that Special Agent DeGraff’s failure to minimize within the short 67 seconds of the call should not be deemed unreasonable. Conclusion As asserted above, the facts of this case bear many similarities to the facts of DePalma. In both, the United States Attorney’s Office diligently instructed prospective monitors on the applicability of various privileges, directed the monitors to create line sheets for subsequent review, and reviewed the monitors’ performance on a daily basis for compliance with minimization obligations. Also in both cases, a large number of calls were intercepted, minimization of non-pertinent calls was performed properly, and most privileged calls were minimized appropriately. But here, as in DePalma, a small number of privileged calls were monitored inappropriately, and, as in DePalma, one of those mistakes was “[p]articularly egregious.” DePalma, 461 F. Supp. at 822. The Government is aware that even one inappropriately monitored call is, as the Court put it, “an embarrassment” (Hearing Tr. at 206), and the Government is in the process of
Because Special Agent Busby was excused as a hearing witness, Government Exhibit 30-AB – which is simply a subset of the information presented in Government Exhibit 30 – was never introduced into evidence. The Government has attached it as an exhibit to this submission. -20-
reviewing its wiretap procedures in order to reduce the likelihood of future mistakes. But, the remedy sought by Drimal in this case – total suppression of relevant wiretap evidence as a deterrent against future Governmental misconduct – is a “drastic” one, DePalma, 461 F. Supp. at 823, that “is reserved for the particularly horrendous case . . . where the government has made effectively no effort towards minimization whatsoever.” Suggs, 531 F. Supp. 2d at 24 (internal quotations omitted); see also, e.g., Hoffman, 832 F.2d at 1309 (1st Cir. 1987) (rejecting defense request for total suppression of wiretap evidence and reserving possibility for “a particularly horrendous case”). This is not that case. Rather, “given the number of interceptions, the number of demonstrated violations and the nature of human error,” this is a case in which “[t]aken as a whole . . . proper minimization standards were observed by the Government in the circumstances[.]” DePalma, 461 F. Supp. at 823. Accordingly, for the foregoing reasons, Drimal’s motion should be denied. Dated: New York, New York March 18, 2011
Respectfully submitted, PREET BHARARA United States Attorney
/s/ MICHAEL A. LEVY SANTOSH S. ARAVIND Assistant United States Attorneys (212) 637-2346/1045