Recently in the Search and Seizure category:
Lawyers: Roland Thau, Federal Defenders, Inc. (Defendant); AUSA Jessica Ortiz
Facts
In lines that beg a key chicken and egg question, the Court states: “In March 2008, the government charged four people with running a prostitution ring called the ‘Emperor’s Club.’ Soon after, the news media identified Governor Spitzer as a client of the ring; Spitzer resigned his office within days.” The New York Times sought access to the applications underlying wiretap surveillance in the case, which, may have revealed the origins and motivations behind this unusual federal probe of a high-end escort service involving consenting adults and personal money. SDNY Judge Rakoff granted the Times’ motion to unseal the applications, concluding that the Times had a common law First Amendment right of access to judicial records that was coextensive with Title III’s good cause requirement for disclosure. The government appealed, and Elliot Spitzer was permitted to file an amicus brief.
Title III’s Good Cause Requirement
Under Title III, wiretap applications may only be disclosed “upon a showing of good cause.” Neither the statute nor the Supreme Court have defined the term or who may invoke it, but in NBC v. DOJ, 735 F.2d 51 (2d Cir. 1984), a case where NBC sought wiretap applications to assist its defense in a libel action, the Court held that the applicant seeking to unseal wiretap applications must be an “aggrieved person.” It reached this conclusion in part based on a statement in Title III’s legislative history, which gave as an example of “good cause” an aggrieved person’s right to suppress wiretap contents. In Spitzer II, the Court saw no reason to depart from its analysis in the NBC case. “It is irrelevant for the purposes of Title III that the Times is a newspaper investigating a matter of public importance. Like NBC, the Times does not suggest, much less show, that it is an ‘aggrieved person’ within the express terms of the statute – that is, like NBC, the Times does not claim to be a ‘party to any intercepted wire or oral communication or a person against whom the interception was directed.’”
First Amendment Right of Access
There is a qualified First Amendment right of access to judicial records in two situations. One is the “history and logic” situation, where the records have been traditionally open to the press and public, and public access helps the functioning of the process in question. The other is where the documents have been filed in connection with a judicial proceeding that can be publicly attended. In Spitzer II, the Court concluded that neither situation applied here. Wiretap applications have not been historically open to the press and public since their inception in Title III, and “the Times does not present a good reason why its preferred public policy (‘logic’) – monitoring the government’s use of wiretaps and potential prosecutions of public officials – is more compelling than Congress’s concern for confidentiality and privacy.” As for the “attendance at proceedings” approach, the press and public are not allowed to attend the ex parte, in camera proceedings where wiretap applications are presented to a district judge, and therefore can have no corollory First Amendment right of access to the sealed applications.
Comment
This case sets a very high bar for media access to wiretap applications. It’s hard not to imagine a more compelling reason for public disclosure of the submissions to a judge in support of surveillance than a now closed investigation that led to the resignation of a state governor. While one can certainly empathize with Mr. Spitzer’s desire to put this humiliating episode behind him, media scrutiny is an important check on the exercise of prosecutorial power, especially the decisions to engage in the kind of highly intrusive surveillance at issue here. But if access to wiretap applications is limited to “aggrieved persons,” it puts the fox in charge of the proverbial henhouse. As the Court has acknowledged more than once, prosecutors’ bargaining power is “awesome.” While there is no indication that their bargaining power was in any way abused in this case, prosecutors nonetheless can use this power, along with their charging discretion, to silence all the people “aggrieved” by wiretapping.
Lawyers: David McCraw and Itai Maytal of The New York Times Company; AUSAs Daniel Stein and Jesse Furman; James Brochin, Marc Falcone and Michelle Hirshman of Paul, Weiss, Rifkind, Wharton & Garrison LLP (Elliot Spitzer)
Lawyers: Guy Oksenhendler, Jay H. Schwitzman (defendant); AUSA James Donald GattaThe court remains unpersuaded by the Government’s theory that the evidence against Matos was obtained through a series of fantastic coincidences: that, at the precise moment that the team decided it was necessary to seek entry to the apartment, an individual exited the residence, tossed evidence of criminal contraband in the plain view of the officers, and then invited six armed officers into the apartment – all the while spontaneously volunteering incriminating statements and substantial quantities of narcotics to the officers. The court did not find this account to be credible at the May Hearing, and the testimony presented at the Supplemental Hearing has not changed the court’s view.
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.
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