Behind the convictions of criminal defense lawyers Robert Simels and Arienne Irving yesterday on charges of witness tampering and obstruction of justice is a profound question: should there be different rules for the prosecution of lawyers?  The Simels prosecutors thought yes, and drafted a unique protocol for the minimization of communications intercepted under a Title III warrant.  EDNY Judge Gleeson disagreed.  In United States v. Simels, 2009 WL 1924746 (E.D.N.Y. July 2, 2009), he suppressed the fruits of the Title III surveillance because the protocol was internally inconsistent and improperly minimized dissemination rather than the initial interception.  In addition to being a detailed primer on Title III minimization issues, especially in the context of privileged communications, the decision joins its companion, discussed here, as another important landmark in the small body of jurisprudence on how (and how not) to prosecute a lawyer for an act of lawyering. 

Facts

As part of an investigation into allegations that defense attorneys Robert Simels and Arienne Irving were seeking to influence witnesses in the upcoming trial of their client Shaheed Kahn, the government obtained an order under Title III permitting it to intercept communications between Simels, Irving and Kahn, in the attorneys’ visiting rooms at MCC. 

Because the targets included two lawyers, the order contained two minimization provisions, both proposed by the government.  The first was a standard provision, requiring the monitoring agents “to minimize the interception of communications not otherwise subject to interception under [Title III], including . . . privileged communications.”  The second directed the agents to record (without listening to) all communications between Simels or Irving and their client, and provided for after-the-fact minimization by “Wall Agents” and a “Wall AUSA.”

Two meetings were recorded under the order, and only the second minimization directive was followed (in other words, the meetings were recorded in their entirety and not contemporaneously monitored).  Simels and Irving were later indicted on obstruction of justice and witness tampering charges, among others.  They moved to suppress the fruits of the wiretap surveillance because of a failure to minimize. 

Minimization Cannot Occur After the Horse Has Bolted

Granting the motion and suppressing the communications, Judge Gleeson found that the government’s minimization efforts here were unreasonable, and the post-interception minimization procedure violated Title III.  For one thing, the two minimization provisions in the order were internally inconsistent.  “By definition, an agent cannot minimize the interception of communications that should not be intercepted by intercepting all communications and sorting them out later.”  Moreover, while Title III permits post-interception minimization in two circumstances (where the communications are in code or in a foreign language), neither applied here.

[T]he way to avoid intercepting privileged or nonpertinent communications (as opposed to merely avoiding the unlawful dissemination of communications that should never have been intercepted in the first place) is take reasonable steps not to intercept them. Automatically recording everything, even where that is followed by a post-interception minimization protocol, virtually guaranteed the interception of communications the government should not have seized. The post-interception minimization may have closed the barn door, but the horse was already gone . . . When the government deliberately intercepts nonpertinent communications, it is no comfort to those whose privacy has been invaded that only government actors not involved in a particular criminal investigation will be listening to them.

Privileged Communications Are Not Special

The prosecutors had taken pains to avoid disseminating privileged communications, but Judge Gleeson debunked the idea that privileged communications should not be intercepted in wiretaps.  “Communications undoubtedly occur that are both pertinent to the crimes enumerated in an order issued pursuant to 18 U.S.C. § 2518 and privileged under some other body of law, and nothing in Title III prohibits the interception of such communications based on their privileged status.” 

Good Faith Not a Defense

Although the court found that the prosecutors’ good faith was “indisputable,” that was not relevant to the outcome.  Title III has its own statutory exclusionary rule, and Judge Gleeson found “no indication in the statute that good faith is relevant to the operation of this exclusionary rule.”

Comment

In developing their ill-fated protocol, the Simels prosecutors, to their credit, recognized the serious ramifications of bugging MCC’s attorney interview rooms.  But from a defense perspective, if you’re challenging the fruits of such interceptions on minimization grounds, the horse has already bolted.  What is far more interesting here is what led to the wiretap authorizations in the first place: several visits to Simels’ law office by a cooperating witness wearing a wire, who proceeded to discuss defense strategy in Khan’s case with Simels and Irving.  Judge Gleeson had denied Simels’ concededly “novel” motion to suppress these consensual recordings and their fruits on the grounds that the government’s use of a wired cooperator in these circumstances was unconstitutional.  But the motion begs the important question of whether there should be some formal rules requiring judicial supervision before wired cooperators are deployed into a law office.  Bad lawyers do not deserve special treatment, but aggressive advocacy does, and that kind of advocacy may be chilled by the kinds of highly intrusive surveillance and investigative techniques employed in this case.

Confessions made outside six hours of arrest and before arraignment in court – even if Mirandized and entirely voluntary– must be suppressed unless the delay in presentment was necessary or reasonable, the Supreme Court held in Corley v. United States, 2009 WL 901513 (U.S. April 6, 2009). 

The issue in the case turned on whether 18 U.S.C. § 3501 over-ruled or merely limited the Court’s rule in McNabb v. United States, 318 U.S. 332 (1943) and Mallory v. United States, 354 U.S. 449 (1957).  The McNabb-Mallory rule held that confessions made during periods of detention that violated the prompt presentment requirement were inadmissible.  § 3501 provides, in part, that a confession shall not be inadmissible solely because of a delay in presentment if the confession is found by the trial judge to have been made voluntarily and within six hours of arrest. 

Analyzing its language and legislative history, the Court held that § 3501 modified but did not supplant the McNabb-Mallory rule.  Essentially, it gives arresting officers a six-hour safe harbor during which a defendant’s statements may not be suppressed solely because of a delay in presentment.  “If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.”

This has been the law in the Second Circuit for decades, but what is especially notable about the Court’s decision in Corley is its recognition that the prompt presentment requirement is not “just some administrative nicety” but is an important protection against forced and false confessions.  The Court goes on:

In a world without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to.  No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. ‘[C]ustodial police interrogation, by its very nature, isolates and pressures the individual,’ and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed (my emphasis; citations omitted).

Guest contributor Justin Sher, Esq., writes:

Several months ago, the Second Circuit issued an opinion in In re Terrorist Bombings of United States Embassies in East Africa, 552 F.3d 157 (2d Cir. 2008), and became the first appellate court to hold that the government does not need a warrant when it conducts an extraterritorial search or seizure affecting an American citizen.  In doing so, the court sanctioned the government’s practice of conducting searches and seizures abroad without first demonstrating probable cause to an impartial magistrate.

Facts

Wadith El-Hage was an American citizen living in Nairobi, Kenya.  From August 1996 through August 1997, American intelligence officials monitored El-Hage’s cell phone and a telephone in his residence as part of their investigation of al Qaeda’s presence in Kenya.  El-Hage claimed that 25 percent of the intercepted calls were made by or to a Kenyan businessman who had no affiliation with al Qaeda and that transcripts retained by the government reflected calls between El-Hage and his wife concerning their children.  At no time did the American intelligence officials obtain a warrant to monitor El-Hage’s phone lines.

In August 1997, U.S. officials, in conjunction with Kenyan authorities, searched El-Hage’s home in Nairobi and seized several items.  Although El-Hage’s wife was presented with a Kenyan warrant authorizing a search for stolen property, the American officials had not obtained a warrant from a U.S. magistrate.

Facing prosecution for his involvement in al Qaeda’s terrorist activities, El-Hage moved to suppress evidence obtained from both the government’s electronic surveillance of his phones and the government’s seizure of items from his home.  El-Hage argued that the searches were unlawful under the Fourth Amendment because they were not authorized by valid warrants and, alternatively, because the searches were unreasonable. 

The Holding

The district court denied El-Hage’s motion according to the “foreign intelligence exception” to the warrant requirement and on the related grounds that application of the exclusionary rule would not deter intelligence officials from conducting similar searches in the future.  On appeal, the Second Circuit affirmed on different, more sweeping grounds.  The court held categorically that the Warrant Clause of the Fourth Amendment does not govern searches conducted abroad by U.S. agents regardless of whether the searches involve U.S. citizens.  The court rested its decision on four grounds. 

First, the court observed that foreign searches historically have not been subject to the warrant procedure.

Second, the court rejected the possibility that the Warrant Clause required a U.S. official to obtain a warrant from a foreign magistrate before conducting an extraterritorial search or seizure.  The court suggested that empowering a body other than the executive branch of the U.S. government to restrict American actions abroad would interfere with the government’s ability to pursue effective foreign policy.  The court explained, “the Constitution does not condition our government’s investigative powers on the practices of foreign legal regimes ‘quite different from that which obtains in this country.’”

Third, relying on “guidance” from the Supreme Court in United States v. Verdugo-Urquidez, the court explained that a warrant obtained from a U.S. magistrate would be a “dead letter” in a foreign country because it would have no legal effect.  The court was not persuaded by the argument that the purpose of a warrant is to have a “neutral and detached magistrate” evaluate the reasonableness of a search and satisfy him or herself that the search is justified by probable cause.  The court explained that the interest served by having a judicial officer make a disinterested determination was “lessened” in the context of extraterritorial searches because a domestic judicial officer would have difficulty determining the reasonableness of a search on foreign soil and because courts should respect the wide discretion given to the executive branch in foreign affairs.

Fourth and finally, the court observed that there is no clear means by which a U.S. judicial officer could be authorized to issue warrants for overseas searches.

Having found that the government was not required to obtain a warrant, the court concluded that the intrusion on El-Hage’s privacy was outweighed by the government’s need to monitor the threat presented by al Qaeda to national security and, on this basis, held that the searches satisfied the Fourth Amendment’s reasonableness requirement.

Conclusion

Terrorist Bombings limits the extraterritorial reach of the Fourth Amendment by holding that the U.S. government may conduct a search or seizure of an American citizen abroad without a warrant.  Before the U.S. government monitors phone calls, seizes documents or freezes bank accounts in another country, it need not demonstrate probable cause or describe the person or property to be searched with particularity.  Instead, in order to satisfy the Fourth Amendment, the search or seizure need only qualify as reasonable. 

Most courts have held that an extraterritorial search is reasonable if it complies with the law of the foreign jurisdiction in which the search takes place.  And even when an extraterritorial search violates the law of the foreign country, the fruits of the search will not be excluded from a criminal case as long as American law enforcement agents are simply told by a foreign official that the search is legal.     

Paradoxically, the rule adopted in Terrorist Bombings seems to limit or expand the U.S. government’s power to investigate its own citizens in foreign countries according to the practices of foreign legal regimes – a scenario the Second Circuit expressly sought to avoid.  It is thus unclear what force the Fourth Amendment has at all if only foreign law and the representations of foreign officials protect an American citizen traveling or storing property abroad.  Indeed, Judge Reinhardt of the Ninth Circuit expressed this very concern in his dissent in Barona:

Under the majority's holding, the Fourth Amendment's requirements are wholly redundant since they provide nothing more than is already provided by foreign law. In fact, under the majority's rule, the Fourth Amendment provides even less protection than foreign law since, according to the principal case on which the majority relies, the Constitution does not even require foreign officials to comply with their own law; all that is required is that American officials have a good faith belief that they did so. . . . [W]hen Americans enter Iraq, Iran, Singapore, Kuwait, China, or other similarly inclined foreign lands, they can be treated by the United States government exactly the way those foreign nations treat their own citizens--at least for Fourth Amendment purposes. The majority's failure to heed these warnings ensures that when, as here, the United States government is unable to obtain a search warrant because it lacks probable cause, it can simply wait until a suspect goes abroad . . . .  Barona, 56 F.3d 1087, 1100-01 (Reinhardt, J. dissenting).

Whether the U.S. government will expand its extraterritorial searches in response to Terrorist Bombings remains to be seen.  In the meantime, targets of criminal investigations who have the means to flee to other countries may think twice about doing so.

The judge has no reason to disbelieve [“dropsy testimony”] in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in Every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.  (314 N.Y.S.2d 194, 196 (N.Y.Co. Crim.Ct. 1970))

“Queen for a day” (proffer) agreements – bare your soul to prosecutors in exchange for some limited protections – usually benefit the government more than the defendant.  For one thing, in these agreements, the defendant gives up any additional protections he may be entitled to under Fed.R.Evid. 410, which precludes admission at trial of ”statements made in the course of plea discussions with a [prosecutor].”
 
Not that defendants get much choice about whether to sign the agreement.  Most prosecutors will not agree to listen to a proffer without one.  But what if a proffer does in fact proceed without any proffer agreement: does the defendant automatically get the benefit of Rule 410?  Or should the defense lawyer do something more to invoke the rule’s protections?  That is the interesting question presented but not answered in United States v. Galestro, 06-CR-285 (ARR), 2008 WL 2783360 (E.D.N.Y. July 15, 2008), where the defendant, in his lawyer’s presence, spoke without a proffer agreement to prosecutors several days prior to the unveiling of an indictment charging him with death-eligible murder. 

The Scope of Fed.R.Evid 410

The Second Circuit has held that statements made by a defendant to prosecutors are not “plea discussions” under Rule 410, unless the defendant, “in some way, express[es] the hope that a concession to reduce the punishment will come to pass.”  United States v. Levy, 578 F.2d 896, 901 (2d Cir.1978).  The Levy Court expressly left open the question of whether statements made in a less formal “de facto process of plea bargaining” can be “plea discussions” for purposes of Rule 410 protections. 

In Galestro, the defense proposed that Levy’s void be filled with a two-tier analysis that focuses on whether at the time of the discussion, the defendant showed a subjective expectation to negotiate a plea, and whether that expectation was reasonable under the circumstances.  The government, argued alternatively, that there are no “plea discussions” if the meeting was at the defendant’s behest, he “sought to avoid indictment altogether rather than to plead,” and no plea deal was offered or ever made. 

Invoking Rule 410 Protection

In the end, the Galestro court did not have to decide the issue, because here, it was undisputed that Galestro’s attorney announced at the beginning of the proffer meeting that he considered it to be “in furtherance of settlement negotiations, pursuant to Fed.R.Evid. 410 and Fed.R.Crim.P. 11,” and the prosecutors present said nothing in response.  As the court concluded: “permitting the government to frustrate a defendant’s reasonable, explicit understanding of the nature of a discussion by simply remaining silent would not only be inconsistent with the rationale in Levy, but would undermine the very rationale of Rule 410 – to ‘promote plea negotiations by permitting defendants to talk with prosecutors without sacrificing their ability to defend themselves if no disposition agreement is reached’” (citation omitted).

Comment

Here, Galestro's lawyer's prescient statement at the beginning of the proffer meeting saved the day.  Without it, the government might have prevailed on the argument that this wasn’t a plea negotiation at all - it was a (misleading) innocence proffer, in which the defendant wasn't seeking to reduce his punishment, he was seeking to eliminate it.  Which begs another interesting question: whether innocence proffers are exempt from Rule 410 protection, since their goal is not a plea bargain but a dismissal. 

Innocence proffers, however, as the Second Circuit has pointed out elsewhere, are often preludes to plea negotiations.  In other words, they are part of the de facto process of plea bargaining, which runs the gamut of mindsets from denial to acceptance.  It makes no sense, and surely undermines the rationale of Rule 410, to carve out of the plea bargaining process (also known as the coming-to-terms process)  any discussions where the defendant professes innocence.  Moreover, the government, with its oft-described “awesome advantages in bargaining power,” knows full well how to obtain a waiver of Rule 410 protections prior to an innocence proffer, and it should not be rewarded for its failure to do so.