UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, Plaintiff, - against - ZVI GOFFER, et al., Defendants. Criminal Docket No. 10-CR-0056 (RJS)
DEFENDANT CRAIG DRIMAL’S POST-HEARING BRIEF IN SUPPORT OF HIS MOTION TO SUPPRESS WIRETAP EVIDENCE
JANEANNE
MURRAY MURRAY
LAW
LLC
A
TTORNEYS
F
OR
D
EFENDANT
C
RAIG
D
RIMAL
233
B
ROADWAY
N
EW
Y
ORK
,
N
EW
Y
ORK
11215 (212)
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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
1
Refers to the transcript of the March 9, 2011 suppression hearing.
2
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 crime-fraud 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.