UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x UNITED STATES OF AMERICA - v. - ZVI GOFFER,
et al.
, Defendants. : : : : : : : : : 10 Cr. 56 (RJS) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 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. : : : : : : : : : 10 Cr. 56 (RJS) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 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
-2- 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”).
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.
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
1
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.”).
2
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”).