RICHARD J. SULLIVAN, District Judge:
Before the Court is Defendant Craig Drimal's motion to suppress wiretap evidence obtained by the government during its investigation of Drimal's involvement in an alleged conspiracy to commit securities fraud. Drimal argues that the monitoring agents violated the federal wiretap statute by failing to properly minimize privileged calls between Drimal and his wife and that, therefore, suppression of the entire wiretap is warranted. For the reasons that follow, Drimal's motion to suppress is denied.
The government first obtained court authorization to intercept communications over Drimal's cellular telephone on November 15, 2007.
As required by federal law, the court order authorizing the wiretap contained a "minimization provision" that provided, in relevant part:
(GX 3501-A at 7.)
Prior to the commencement of the wiretap, the Supervising Assistant United States Attorney (the "Supervising AUSA") traveled to the FBI office where the wiretap was to be monitored and provided the monitoring agents with instructions for the wiretap. (Tr. at 11-13.) The wiretap instructions included the following provisions that are relevant to the instant motion:
(GX 20 at 2-4, 6, 10 (emphasis in original).)
During the 60 days that the wiretap was in effect, agents intercepted approximately 180 calls between Drimal and his wife. (See GX 30.) None of these calls provided agents with any incriminating evidence relating to the charges in this case. To the contrary, the Drimals' marital conversations dealt almost exclusively with personal and family matters. Indeed, in several calls agents listened as the Drimals carried on discussions of a deeply intimate nature. The government does not plan to introduce any of the spousal calls into evidence at trial.
On January 21, 2010, a grand jury returned a ten-count indictment charging Drimal and six co-defendants with, inter alia, conspiracy to commit securities fraud. (Doc. No. 43.) On November 30, 2010, Defendants jointly moved to dismiss the indictment and to suppress the wiretap evidence that agents obtained during their investigation. (Doc. No. 113.) On January 5, 2011, the Court denied this motion in part and reserved on the issue of whether the minimization of calls between Drimal and his wife, and between Defendant Zvi Goffer and his wife, was performed in compliance with Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§ 2510, et seq.
On March 9, 2011, the Court held a suppression hearing to determine whether, in monitoring privileged calls between Drimal and his wife, the monitoring agents demonstrated a "high regard for the right of privacy and [did] all they reasonably could to avoid unnecessary intrusion" into the privacy of their targets. (Scheduling Order, Feb. 16, 2011, Doc. No. 134 (quoting United States v. Tortorello, 480 F.2d 764, 784 (2d Cir.1973)).)
Title III provides that every court order authorizing a wiretap "shall contain a provision that the authorization to intercept. . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception." 18 U.S.C. § 2518(5).
Id. at 139-40, 98 S.Ct. 1717. The Court cautioned against "blind reliance on the percentage of nonpertinent calls intercepted," explaining that the focus should instead be on "the circumstances of the wiretap":
Id. at 140-41, 98 S.Ct. 1717.
Courts applying Scott's objective reasonableness standard have evaluated the government's minimization efforts "in the context of the entire wiretap, as opposed to a chat-by-chat analysis." United States v. Menendez, No. 04 Cr. 219(DAB), 2005 WL 1384027, at *3 (S.D.N.Y. June 8, 2005). "`[T]he mere fact that every conversation is monitored does not necessarily render the surveillance violative of the minimization requirement of the statute. . . . [N]o electronic surveillance can be so conducted that innocent conversation can be totally eliminated.'" United States v. Salas, No. 07 Cr. 557 (JGK), 2008 WL 4840872, at *6 (S.D.N.Y. Nov. 5, 2008) (quoting U.S. v. Bynum, 485 F.2d 490, 500 (2d Cir.1973)). Indeed, courts have found that minimization "is generally inapplicable to calls of less than two minutes in duration because they are `too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversation.'" Menendez, 2005 WL 1384027, at *3 (quoting United States v. Capra, 501 F.2d 267, 275-76 (2d Cir.1974)).
The government has the burden of showing compliance with the minimization requirements of Title III. See United States v. Rizzo, 491 F.2d 215, 217 n. 7 (2d Cir.1974). "Once a prima facie showing is made, the burden shifts to the defendant to show that, despite a good faith compliance with the minimization requirements, a substantial number of non-pertinent conversations have been intercepted unreasonably." United States v. Rajaratnam,
Drimal argues that the government violated Title III and the wiretap authorization order by intercepting and improperly minimizing "scores of marital communications between Mr. Drimal and his wife, . . . some of a particularly intimate and personal nature." (Def.'s Mem. at 1.) Because these conversations were privileged spousal communications, Drimal asserts, the government was not permitted to intercept them absent probable cause that Mrs. Drimal played a role in the alleged criminal conduct under investigation. Drimal further argues that once these calls were intercepted, the government failed to minimize the conversations in compliance with Title III.
Drimal's argument that the government failed to take "basic and reasonable steps to ensure that marital communications were never intercepted" (id.), rests on the premise that, absent probable cause to believe that both parties to a privileged conversation are involved in criminal activity, any interception of a privileged call is unlawful. Courts interpreting Title III, however, have found no such per se bar to the interception of privileged calls.
Section 2517 of Title III provides that "[n]o otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character." 18 U.S.C. § 2517(4). As previously noted, Title III further provides that every wiretap "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception." 18 U.S.C. § 2518(5). While the case law interpreting these provisions in the context of privileged conversations is limited, courts addressing the issue have generally found that the monitoring of privileged calls is subject to the same reasonableness standard that applies to non-privileged calls.
Judge Gleeson, for example, recently analyzed the minimization requirements that Title III imposes on privileged calls. See United States v. Simels, No. 08 Cr. 640(JG), 2009 WL 1924746 (E.D.N.Y. July 2, 2009). Emphasizing the plain language of Title III, Judge Gleeson noted that "the statute expressly contemplates that privileged communications will be intercepted, and provides that such communications. . . shall not lose their privileged character." Id. at *5. Under this reasoning, there is no per se bar to monitoring privileged calls as long as the agents' minimization of such calls is conducted in a reasonable manner. Of course, to the extent that these conversations retain their privileged character, they are not admissible as evidence. The fact that such communications are ultimately inadmissible, however, does not mean that their monitoring constitutes a violation of Title III.
Other courts that have addressed this issue have employed similar reasoning. For example, a panel of the Fifth Circuit affirmed a district court's finding that agents monitoring a defendant's privileged calls did not violate Title III where such monitoring lasted "only long enough to determine that the doctor and lawyer were not participating in the conspiracy." United States v. Hyde, 574 F.2d 856, 870 (5th Cir.1978). Similarly, in United States v. Loften, 507 F.Supp. 108 (S.D.N.Y.1981), Judge Goettel found unpersuasive the defendant's "somewhat novel argument that it is prima facie improper to even listen to conversations between an attorney and another person, unless there is probable
Drimal, for his part, cites no authority for the proposition that Title III requires agents to determine, before ever monitoring a privileged call, that there is probable cause to believe that both parties to the call are involved in the conduct under investigation. Instead, the only case law cited by Drimal regarding the "crime-fraud exception" to privileged communications discusses the admissibility of purportedly privileged evidence that was seized during a search of the defendant's home. (See Def.'s Mem. at 6-7 (citing United States v. Jacobs, 117 F.3d 82, 87 (2d Cir.1997)).) Such authority is inapposite here, where the government does not seek to introduce the marital communications into evidence.
In any event, Drimal's articulation of the requirements of Title III is contrary to the plain language of the statute. Title III does not prohibit the government from monitoring "communications not otherwise subject to interception," but only requires that agents "minimize" the interception of such conversations. 18 U.S.C. § 2518(5). Accordingly, the Court declines to read into Title III a heightened requirement that applies to the interception of privileged communications.
Even though the Court finds that the government agents were not per se prohibited from monitoring Drimal's spousal conversations, the Court may still find a Title III violation that warrants suppression if the monitoring agents failed to comply with the statute's minimization requirements. See id. As noted above, whether agents have complied with Title Ill's minimization requirements is evaluated through an "objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time." Scott, 436 U.S. at 136, 98 S.Ct. 1717.
After reviewing the testimony and evidence presented at the hearing, as well as the calls themselves, the Court finds that several of the marital conversations were improperly minimized. In advance of the suppression hearing, the Court highlighted 18 conversations that were potentially violative of Title Ill's minimization requirement. (Scheduling Order, Feb. 16, 2011, Doc. No. 134.) Of these calls, three stand out to the Court as particularly egregious. In call 5808, for example, the agent monitored almost four minutes of a six-and-a-half minute call while Drimal and his wife had a deeply personal and intimate discussion about their marriage. Call 5809 was obviously a continuation of the private conversation initiated in call 5808—it was placed less than a minute after call 5808 ended—however, the monitoring agent listened to the entire 19-second call without minimizing. In call 5828, the agent monitored, without minimizing, as Drimal listened to a 52-second message from his wife in which she discussed, in detail, intimate aspects of their relationship. At the hearing, the agent who monitored these calls provided no credible explanation for his failure to minimize after it became clear that such conversations were privileged and non-pertinent. The Court is deeply troubled by this unnecessary, and apparently voyeuristic, intrusion into the Drimals' private life.
As these eight calls illustrate, for at least portions of the wiretap, the government failed to take appropriate steps to ensure that unnecessary intrusions into the private lives of its targets were kept to a minimum. While the majority of these calls were not particularly lengthy—indeed, most were under two minutes—in each of these calls it should have been apparent within seconds that the conversation was privileged and non-pertinent. As the Court stressed at the hearing, given the deeply personal nature of several of these conversations, the agents' failure to minimize was nothing short of "disgraceful."
As a sanction for the government's failure to properly minimize several marital conversations, Drimal seeks suppression of "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." (Def.'s Mem. at 2.) Drimal argues that, because the government does not seek to introduce any of the marital conversations at trial, "exclusion of the challenged calls [alone] would be no sanction at all." (Id.)
However, the fact that several of the more than 1,000 intercepted calls were not properly minimized does not automatically entitle Drimal to blanket suppression of the wiretap. Rather, suppression is an appropriate remedy only where the agents' minimization efforts as a whole were not objectively reasonable. See Scott, 436 U.S. at 136-37, 98 S.Ct. 1717. Even in cases where a defendant is able to make such a showing, it is far from clear that he would be entitled to suppression of anything more than the offending calls.
The Second Circuit has not definitively resolved the question of whether the government's violation of Title Ill's minimization requirement warrants total suppression of the wiretap or mere suppression of the offending calls. See United States v. Principie, 531 F.2d 1132, 1140-41 (2d Cir. 1976). As a general matter, however, district courts in this Circuit have favored the
The government relies heavily on De-Palma, a case with facts the government finds "remarkably similar to those present in the instant case." (Gov't's Mem. at 3.) In DePalma, Judge Sweet evaluated the adequacy of the minimization procedures employed by agents who monitored over 12,000 conversations as part of an investigation into racketeering and securities fraud. After finding that agents failed to properly minimize nine privileged calls. Judge Sweet suppressed only the offending calls, finding the defendants' requested sanction of total suppression to be "drastic and excessive, given the number of interceptions, the number of demonstrated violations and the nature of human error." 461 F.Supp. at 823. While noting that the government's nine transgressions were "serious," the court was "left with the conviction that proper minimization standards were observed by the Government" when viewed in the context of the 12,000 conversations intercepted pursuant to the wiretap. Id.
Turning to the wiretap in this case, the Court reiterates that, with respect to at least the three most egregious calls identified above, the agent's failure to minimize was "disgraceful" and "an embarrassment generally." (Tr. at 206:3-7.) Nevertheless, viewing the wiretap as a whole, the Court cannot find that the government's conduct was so unreasonable that it warrants the "drastic and excessive" remedy of total suppression. DePalma, 461 F.Supp. at 823. First, the government's most egregious failures occurred in the early stages of the wiretap, when agents were presumably still learning to recognize the voices of Drimal's interlocutors as well as identify their patterns of conversation.
Having reviewed the wiretap in its entirety, the Court is persuaded that in the vast majority of calls the government's monitoring of the Drimals' spousal communications was reasonable. As the government notes, every conversation between Drimal and his wife lasting two minutes or longer was at least partially minimized. (See Gov't's Pre-Hr'g Mem., February 2, 2011, Doc. No. 127, at 1; GX 30; DX A.) Given that the wiretap instructions were silent on the amount of time that an agent was permitted to listen to a privileged call prior to minimizing, the agents' conduct was, on the whole, not unreasonable. This conclusion is further supported by case law suggesting that, as a general matter, calls under two minutes need not be minimized. See Capra, 501 F.2d at 275-76. To be sure, several of these calls were so obviously non-pertinent that the monitoring agent should have minimized the call regardless of any ambiguity contained in the wiretap instructions. However, these isolated violations are insufficient to demonstrate the type of "pervasive disregard of the minimization requirement" that would warrant total suppression. See Pierce, 493 F.Supp.2d at 636.
Given the wiretap's scope and the substantial manpower needed to sustain it, the Court concludes that, on the whole, the wiretap was professionally conducted and generally well-executed. The agents, while engaging in nearly round-the-clock monitoring, completed contemporaneous line sheets that were forwarded on a daily basis to the Supervising AUSA, who reviewed them in real time before providing periodic reports to the supervising court on the progress of the wiretap. (Tr. at 14:19-15:8; 26:2-27:4.) These periodic or "10-day reports" provided summaries of the most pertinent calls as well as tables setting forth the total number of calls and identifying how many were pertinent and non-pertinent, how many exceeded two minutes, and how many were minimized. (See GX 60A-E.) Notwithstanding the serious deficiencies reflected by the interception of the calls discussed above, it would be difficult to review the entire wiretap in context and conclude that the monitoring, on the whole, was other than professional, thorough, and reasonable. See United States v. Uribe, 890 F.2d 554, 557 (1st Cir.1989) (when assessing the reasonableness of agents' minimization efforts, the "government is held to a standard of honest effort; perfection is usually not attainable, and is certainly not legally required").
For the reasons stated above, Drimal's motion to suppress wiretap evidence is denied. The Clerk of the Court is respectfully directed to terminate the motion located at docket number 113.
SO ORDERED.
