Professional Documents
Culture Documents
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
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
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
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
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.
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,
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
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
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.
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ARGUMENT
I.
A. Applicable Standard
Section 2518(5) of Title III provides in relevant part that “the authorization to intercept
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
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
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they reasonably could to avoid unnecessary intrusion.” Id. at 783. Thus, in Tortorello, the Court
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
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
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the marital relationship – define and nourish human autonomy. As the Supreme Court held in
Griswold v. Connecticut:
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
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 attorney-
client communications); see also United States v. Renzi, 722 F.Supp.2d 1100 (D. Ariz. 2010)
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
content permitted. Tr. at 59-60. Indeed, AUSA Fish indicated that the only justification for
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
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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
Although AUSA Fish made no such claim, testifying agents indicated the government is
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
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.
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1. Absence of Pre-Wire Investigation to Determine Applicability of Crime-
Fraud Exception
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
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
2
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.
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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.
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
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,
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. No-
one was played a tape of her voice so that the agent could easily identify it. Tr. at 175.
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
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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
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 spot-
monitored 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
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
The government also failed to utilize the minimization capabilities of Voice Box, the
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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
3
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.
4
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
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5. 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 crime-
fraud 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
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).
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6. Failure to Supervise Monitoring Agents
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
“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
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
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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
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 co-
defendants in discovery, and even to the defendants in the Rajaratnam case, despite the fact that
6
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).
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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
II.
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
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
Supervising Court in his affidavit in support of the application for the interception of wire
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communications, that the government would minimize privileged calls and carefully train the
III.
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.
JANEANNE MURRAY
Murray Law LLC
Attorneys For Craig Drimal
233 Broadway
New York, New York 11215
Tel. (212) 941-9266
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