UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA :
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- v. - : 10 Cr. 56 (RJS)
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ZVI GOFFER, et al., :
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Defendants. :
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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
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:
UNITED STATES OF AMERICA :
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- v. - : 10 Cr. 56 (RJS)
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ZVI GOFFER, et al., :
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Defendants. :
:
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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
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”). 1 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. 2

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”).

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case.” Id. at 139. The Supreme Court did, however, provide some guidance through its analysis
of the particular case before it. First, in looking at the issue presented in that case – whether the
monitoring agents had excessively monitored non-pertinent calls – the Supreme Court noted that
comparing “percentages [of pertinent and non-pertinent calls] may provide assistance,” but that
reference to percentages alone was “not a sure guide to the correct answer.” Id. at 140. Second,
the Supreme Court explained that consideration of “the circumstances of the wiretap” was
“important,” including the extent of the conspiracy under investigation and the “type of use to
which the telephone [being monitored] is normally put.” Id. Finally, the Supreme Court
observed that “[o]ther factors may also play a significant part.” Id. In particular, the Supreme
Court found that “it may be important to determine at exactly what point during the authorized
period the interception was made,” because the lack of information “[d]uring the early stages of
surveillance” may make the interceptions of calls reasonable at that stage, even though
“[i]nterception of those same types of calls might be unreasonable later on.” Id. at 141. The
Supreme Court then went on to apply these factors and others to the specific calls at issue in the
case before it. Id. at 141-43.

B. United States v. DePalma

Only months after Scott was decided, the Honorable Robert W. Sweet, United States
District Judge, issued a thorough and well-reasoned opinion in United States v. DePalma, 461 F.
Supp. 800 (S.D.N.Y. 1978), a case that presented facts remarkably similar to those present in the
instant case, and which the Government respectfully submits is particularly instructive here.
Ultimately, as described below, Judge Sweet appropriately condemned the unreasonable
interception by monitoring agents of seven privileged calls, but found that suppression of the
entirety of the wiretap was a drastic and unwarranted remedy for the violation.

At issue in DePalma was the motion of various defendants to suppress the fruits of “five
court ordered wiretaps” that had produced evidence leading to a “multicount indictment alleging
a pattern of racketeering activity and securities fraud and bankruptcy fraud conspiracies in
connection with the operation” of a Westchester theater. Id. at 803. The wiretap evidence was
attacked on a variety of grounds, including that “the evidence was acquired in violation of the
‘minimization’ requirements of 18 U.S.C. § 2518(5).” Id. at 817. In particular, the defendants
asserted that because there had been unnecessary monitoring of a number of “privileged or
irrelevant conversations,” suppression of “all of the intercepted conversations” from the five
wiretaps was warranted. Id.

Noting that the defendants had “questioned the interception of less than 400
conversations” out of more than “12,000 intercepted conversations,” Judge Sweet nonetheless
concluded that “[d]espite the relatively small number of objections raised by defendants,
considering the total number of interceptions, a review of the Government’s minimization [was]
required.” Id. at 818. To that end, Judge Sweet held several days of hearings at which “[t]he
Government called several FBI agents as witnesses and introduced numerous exhibits into

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evidence.” Id. The district court then went on to undertake an “objective assessment” of
“whether the actions of the monitoring agents were reasonable under the circumstances.” Id.

Focusing first on the preparations for the wiretap, the district court noted in the
Government’s favor that:

Prior to the commencement of monitoring, Government attorneys

gave detailed oral and written instructions regarding minimization
to the agents who were to monitor the wiretaps. Before assuming
his duties at a monitoring post, each agent was required to read and
initial the written instructions, the court order and supporting
affidavit, all of which were posted at the monitoring station. The
monitoring agents were instructed to make a good faith effort not
to intercept nonpertinent or privileged communications, both of
which were explained to the agents in some detail.

Id.

Judge Sweet also found it to be a positive fact that:

The agents were instructed to keep logs of each monitored

conversation and the logs were reviewed daily by supervisory
agents to assure that minimization procedures were being followed.
Daily oral reports and periodic written memoranda were made to
Government attorneys to review the monitoring operation. Based
upon information so obtained and obtained by other methods of the
investigation, the Government attorneys submitted five day reports
to [the judges who authorized the wiretaps] during the extent of
each wiretap order.

Id. at 819.

On the specific issue of privileged calls, Judge Sweet observed that:

Agents were instructed not to intercept conversations of a

privileged nature. When it became known that certain attorneys
were communicating with subjects of the orders, the attorneys’
names were posted at monitoring stations and agents were
instructed to cease interception of these conversations once
identities of the parties were determined. Similar procedures were
followed with respect to discovered instances of husband-wife,
doctor-patient and priest-penitent privilege.

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Id.

Judge Sweet next turned to a call-by-call analysis of the particular calls that the
defendants claimed had been improperly minimized. Id. at 819-23. After finding that there were
no instances of unreasonable interception of non-pertinent calls, id. at 819-21, 3 Judge Sweet
focused his attention on the defendants’ claim that the Government had improperly intercepted
privileged calls between targets and their attorneys, targets and their doctors, and targets and their
wives, id. at 821-23.

With respect to spousal calls, Judge Sweet found a factual distinction between those that
defendant Marson had with his wife and those that defendant DePalma had with his wife. Id. at
821. As to the former, Judge Sweet observed that “the Government had reason to believe that
Mrs. Marson might have been a participant in the conspiracy,” and that “[a]lthough this belief did
not ultimately prove out, . . . interception and monitoring of these conversations was not
unreasonable in light of the circumstances which existed at that time.” Id. As to the latter, Judge
Sweet found that the monitors had no basis at the time to believe that Mrs. DePalma had been
involved in the conspiracy. Id. at 822 n.26.

Focusing on 14 calls between DePalma and his wife, Judge Sweet found that the agents’
interceptions had been reasonable in 11 instances – four in which the monitoring agents had
simply “failed to identify the caller as DePalma’s wife,” and seven in which the monitoring “was
terminated once the identity of DePalma’s wife was established, often with a note being made in
the log that the conversation was nonpertinent or privileged.” Id. at 821. In particular, Judge
Sweet observed that of the four calls in which Mrs. DePalma was not identified during the call,
“all took place at the early stages of the first New York wiretap order and apparently reflected the
agents’ difficulties in identifying the female voice involved.” Id. at 821 n.25. 4 Of the remaining
three calls, however, Judge Sweet concluded:

In these instances the court cannot find the agents took reasonable
steps to minimize the interception of these nonpertinent calls. The
agents knew the name of DePalma’s wife and her identity was
disclosed in the course of the monitored conversations. The court
finds monitoring in such circumstances unreasonable.
3
Because Drimal’s motion concerning improper interception of non-pertinent calls has already
been denied (Tr., 1/5/11, at 10-11), this portion of Judge Sweet’s opinion need not be recounted
here.
4
In finding that the agents’ inability to identify Mrs. DePalma was reasonable, Judge Sweet was
aware that “[t]he monitoring post was equipped with a [pen register] device” that, at a minimum,
displayed “the telephone number dialed from the phone subject to the intercept.” Id. at 821 n.23.

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Id. at 821-22.

Turning to the calls between the targets and their attorneys, Judge Sweet again drew a
factual distinction between those by Marson and those by DePalma. Id. at 822-23. With respect
to Marson, Judge Sweet found that there “was reason to believe that [his] attorney may have been
a participant in the illegal activities,” and, accordingly, interceptions of calls between Marson and
his attorney were not unreasonable. Id. at 822. Because, however, there was no similar reason to
believe that DePalma’s attorney was involved, Judge Sweet found that “the Government’s
interceptions of conversations between DePalma and his attorney were unreasonable.” Id. Judge
Sweet identified four such conversations, interception of which was “improper under the
circumstances.” Id. Judge Sweet explained that because the attorney’s “identity and his
relationship with DePalma were known, the agents should have complied with instructions of the
United States Attorney and ceased such interceptions.” Id. Judge Sweet found it “[p]articularly
egregious” that the agents had monitored a call in which the attorney had “explain[ed] in some
detail the progress of a New Jersey proceeding against DePalma.” Id. Moreover, even with
respect to the less egregious interceptions, Judge Sweet pointed out that the fact that “none of the
intercepted privileged calls dealt with any of the matters concerning the Indictment here in no
way alters the impropriety of the interception.” Id.

Judge Sweet next considered four calls between DePalma and his doctor. Id. As to two
of the calls, Judge Sweet found nothing unreasonable because “[i]n both instances, monitoring
was discontinued as soon as the unknown male in the conversation was identified as a doctor.”
Id. Interception of the other two conversations, however, “was, under the circumstances, an
unreasonable intrusion into privileged communications,” because “[a]lthough the agents
apparently knew these conversations were with a doctor, monitoring was not discontinued.” Id.

Finally, having found nine privileged calls that clearly had been unreasonably monitored,
Judge Sweet turned to the issue of the “sanction to be imposed.” Id. at 823. Judge Sweet
observed that the “defendants have requested this court to suppress all communications
intercepted . . . as a prophylactic deterrent to future unreasonable interceptions by the
Government.” Id. at 823. Judge Sweet rejected that request, explaining, “Such a remedy would
be drastic and excessive, given the number of interceptions, the number of demonstrated
violations and the nature of human error.” Id. Judge Sweet concluded:

Although this court views the transgressions committed by the

Government as serious, the unreasonable interception of three
conversations between DePalma and his wife, four conversations
between DePalma and his attorney and two conversations between
DePalma and his doctor do not require the suppression of all
interceptions under the five wiretap orders. Taken as a whole, this
court is left with the conviction that proper minimization standards

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 were observed by the Government in the circumstances of this
case.

Id.

Judge Sweet’s decision was in keeping with a line of cases that have consistently and
repeatedly held that where there are instances of unreasonable monitoring of particular
conversations, the appropriate remedy is to suppress those conversations only. See, e.g., United
States v. Pierce, 493 F. Supp. 2d 611, 636 (W.D.N.Y. 2006) (“Even if the investigating agents
failed to use reasonable efforts to minimize particular intercepted communications as Defendant
Galarza claims, suppression of all communications intercepted pursuant to any of the challenged
Intercept Orders is not the proper remedy absent a pervasive disregard of the minimization
requirement.”) (internal quotation marks omitted); United States v. Le, 377 F. Supp. 2d 245,
267 (D. Me. 2005) (“In most cases, the proper remedy for failure to minimize is the suppression
of the call in question, not the wiretap evidence in its entirety.”); United States v. McCafferty,
2011 WL 666718, at *9 (N.D. Ohio 2011) (“[I]if the monitoring agents did fail to minimize
certain nonpertinent calls, this would not warrant the drastic remedy the defendant seeks. At
most, suppression of only the non-pertinent calls that were improperly minimized would be
warranted.”). Although some courts have noted the possibility of suppressing all evidence from a
wiretap as a remedy for improper minimization, those courts have made clear that the remedy “is
reserved for the particularly horrendous case . . . where the government has made effectively no
effort towards minimization whatsoever.” United States v. Suggs, 531 F. Supp. 2d 13, 24
(D.D.C. 2008) (internal quotations omitted); see also, e.g., United States v. Hoffman, 832 F.2d
1299, 1309 (1st Cir. 1987) (rejecting defense request for total suppression of wiretap evidence
and reserving possibility for “a particularly horrendous case”).

Discussion

There are many parallels – both good and bad – between the instant case and DePalma.
Ultimately, however, what the record in this case demonstrates is that, as in DePalma, although
there were instances of unreasonable interception, and the Court may correctly “view[] the
transgressions committed by the Government as serious,” those transgressions must be viewed in
light of “the number of interceptions, the number of demonstrated violations and the nature of
human error.” Id. As in DePalma, when the monitoring of the wiretaps at issue here is “[t]aken
as a whole,” it becomes clear “that proper minimization standards were observed by the
Government in the circumstances of this case,” and that the remedy of suppression would be
“drastic and excessive.” Id.

A. Minimization and Other Pre-Monitoring Instructions

The evidence at the hearing in this case demonstrates that the United States Attorney’s
Office and the FBI took a variety of the same pre-monitoring steps cited favorably by Judge
Sweet in DePalma to ensure that privileged calls would be appropriately minimized.

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Immediately upon obtaining the wiretap authority for Drimal’s telephone, the Assistant United
States Attorney who was supervising the wiretap (the “Supervising AUSA”) traveled to the FBI
office where the wiretap was to be monitored and gave an oral presentation to the monitoring
agents concerning proper minimization procedures. (Tr., 3/9/11, at 11-13 (hereinafter, “Hearing
Tr.”)). These instructions included directions about the proper treatment of calls between Drimal
and his wife. (GX 20 at ¶¶ 15, 20). The agents who were present for the oral presentation were
then required to sign a written copy of the instructions. (Hearing Tr. at 14; GX 20 at 17). Other
agents not present at the time were required to read the instructions and sign them to indicate that
they had done so. (Hearing Tr. at 152-53; GX 20 at 17-18). As in DePalma, all of the
monitoring agents were also provided with a copy of the wiretap affidavit, and both the
minimization instructions and the affidavit were made available in the wire room for their
ongoing reference. (See, e.g., Hearing Tr. at 87-88).

Moreover, there is a strong indication in the record that the monitors – having been
instructed by the Supervising AUSA about the marital privilege – were supplied before
beginning their duties with the specific information that Drimal had a wife. Although one of the
monitors who testified at the hearing had no recollection about being given that information
(Hearing Tr. at 154, 167-68 (Ford)), one distinctly recalled being informed of the fact before
beginning monitoring (Hearing Tr. at 88-89 (Tai)), another was certain he was aware before
monitoring that Drimal had a wife, but could not specifically remember where he obtained the
information (Hearing Tr. at 121-22 (LoMonaco)), and another was uncertain but believed he had
been given the information in advance (Hearing Tr. at 199-200 (Rom)). In addition, although it
is not clear exactly when it happened, two of the monitors also testified that they believed that
Drimal’s wife’s telephone number was posted at the monitoring station at some point with the
instruction that calls with the number should be minimized. (Hearing Tr. at 106 (Tai), 146
(LoMonaco)).

With respect to the contents of the minimization instructions given to the monitors, two
subjects merit brief discussion in light of questions raised by the Court at the conclusion of the
evidentiary hearing. (See Hearing Tr. at 205). First, the paragraph of the instructions that
describes the spousal privilege informed the monitors that a conversation was not privileged if it
dealt “not with private matters between husband and wife, but instead with ongoing as opposed
to past violations of law.” (GX 20 at ¶ 20). The instructions were silent – and therefore
ambiguous – about how much, if any, of a conversation between Drimal and his wife the
monitors were permitted to listen to in order to determine whether a particular conversation dealt
with ongoing violations of law, particularly where, as here, there was no affirmative reason to
believe that Drimal’s wife was a participant in the offenses under investigation.

This ambiguity in the instructions is unfortunate, but reflects ambiguity in the law itself.
There are few cases that address the issue at all, and those that do provide conflicting direction.
The implication of DePalma, for example, is that it is reasonable to monitor potentially
privileged conversations to at least some degree if there already exists information that the other
party to the conversation (e.g., a spouse or lawyer) is a party to the criminal activity under

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investigation, but it is unreasonable to do so in the absence of such information. See DePalma,
461 F. Supp. at 821-22 (distinguishing between reasonable and unreasonable interceptions based
on whether there had been information that the other party might be a participant in the offenses
under investigation). In contrast, the Fifth Circuit has held that it was reasonable for agents to
monitor potentially privileged calls with doctors and lawyers for “long enough to determine that
the doctor and lawyer were not participating in the conspiracy” simply on the ground that “[i]t
would be unreasonable to expect agents to ignore completely any call to an attorney or doctor;
doctors and lawyers have been known to commit crimes.” United States v. Hyde, 574 F.2d 856,
870 (5th Cir. 1978). Describing it as “The Monitors’ Dilemma,” one pair of commentators,
addressing precisely this topic, has framed the question as follows, “Does one listen to the
potentially privileged call to determine its privileged status?” Michael Goldsmith & Kathryn
Ogden Balmforth, The Electronic Surveillance of Privileged Communications: A Conflict in
Doctrines, 64 S Cal. L. Rev. 903, 913 (1991). While calling for statutory revisions to Title III to
correct what they deem to be inadequate protection for privileged conversations, the
commentators conclude that the answer currently provided by Title III appears to be yes, because
Title III provides not that privileged conversations may not be intercepted, but only that they may
not be admitted into evidence. See, e.g., id. at 904-05 (asserting that an initial draft of Title III
“contained special protections to avoid the unnecessary interception of privileged
communications,” but that those provisions were excised in favor of provisions that “merely
provided that privileged communications may not be admitted into evidence,” leaving a statutory
scheme in which “privileged communications receive no greater protection from initial
interception than do ordinary conversations”); see also United States v. Simels, 2009 WL
1924746, at *5 (E.D.N.Y. 2009) (citing law review article and observing that “Courts frequently
simply assume that privileged communications are ‘not otherwise subject to interception’ and
that their interception must therefore be minimized pursuant to § 2518(5), but the statute does not
support that assumption”).

This is not to say that the Government intended for the ambiguity in its minimization
instructions to convey that agents were permitted to listen to spousal calls in order to determine
whether they related to ongoing criminal activity, or that it intends to instruct agents in future
cases that they are permitted to do so. 5 Rather, it is simply to say that although the hearing
testimony established that at least some agents appear to have interpreted the instructions as
granting them that permission (Hearing Tr. at 190 (Rom)), it is far from clear that such an
interpretation was legally incorrect. More importantly, however, as will be discussed below,
there are at most only a relatively small number of calls in this case – all very early in the wiretap
– in which it appears that a monitor might have been monitoring a conversation for criminal

5
The United States Attorney’s Office is assembling a committee of supervisory AUSAs to
review all aspects of this Office’s practices concerning the supervision of wiretaps. One focus of
that committee’s work will be to review and revise the minimization instructions given to
monitors. In turn, one focus of that project will be to arrive at a precise policy in this area and
create instructions that convey that policy to monitors with precision.

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content despite having determined that the parties to the conversation were Drimal and his wife.
(See, e.g., GX 30-ER (session 5874)).

Second, the minimization instructions directed that even when a communication was
privileged, monitors were permitted to “spot monitor” after the initial minimization by checking
back into the conversation periodically and, if it was determined that the conversation was not
privileged, listening to and recording the conversation. (GX 20 at ¶ 8). At the conclusion of the
hearing, the Court noted that there appeared to be a disagreement between the parties as to
whether such “spot checking is appropriate on a privilege call.” (Hearing Tr. at 205). Although
the number of decisions addressing the issue is limited, the Government respectfully submits that
those that exist confirm without apparent exception that spot monitoring of privileged
conversations is permissible in order, at a minimum, to determine whether the parties to the
conversation remain the same. See United States v. Bynum, 360 F. Supp. 400, 418 (S.D.N.Y.
1973) (although most privileged calls were less than one minute long, “in the calls of longer
duration, at least spot monitoring was necessary to make certain the parties to the calls did not
change”); United States v. Ianniello, 621 F. Supp. 1455, 1472-73 (S.D.N.Y. 1985) (monitors
were “correctly and appropriately instructed” to “use intermittent ‘spot monitoring’ to determine
when privileged conversations had ceased”); United States v. Cleveland, 964 F. Supp. 1073,
1097 (E.D. La. 1997) (spot monitoring of potentially privileged conversation allowed where it
was “[t]he only way that an agent monitoring the wall microphone could tell if one conversation
had ended, and another had begun”); State v. Mazzone, 648 A.2d 978, 986 (Md. 1994) (observing
that spousal conversations may be non-privileged for various reasons, including “the presence of
third parties,” and that “agents may . . . spot monitor . . . to determine if the conversation has
shifted to non-privileged communications”). 6
6
Although there was some focus during the hearing on “patterns of innocence” and how such
patterns are determined, the Government respectfully submits that the issue is of limited
importance to the monitoring of privileged calls in this case. If, as may be the case, privileged
calls must be minimized immediately upon identification of the parties and, thereafter, spot
monitored only for a change in the parties to the call, the existence or non-existence of a pattern
of innocence does not logically factor into a monitor’s decisions because the call must be
minimized upon identification of the parties irrespective of any pattern of innocence, and the
pattern of innocence does not alter the need to spot monitor for a change in parties through, for
example, call waiting. (Although paragraph 10 of the minimization instructions – which deals
with patterns of innocence – does not expressly address or authorize such limited spot
monitoring, it should.) On the other hand, if (and, again, there is ambiguity in the law on this
point) potentially privileged calls may, like non-privileged calls, be monitored and spot
monitored for discussions of ongoing criminal conduct unless and until a pattern of innocence is
established, the record in this case (as described more fully below) shows that there are at most
only a relatively small number of calls, all among the very first involving Mrs. Drimal and before
a pattern of innocence could reasonably have been established, in which it appears that a monitor
might have been monitoring a conversation for criminal content despite having determined that
the parties to the conversation were Drimal and his wife.

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B. Supervision by the United States Attorney’s Office

In addition to presenting minimization instructions to the prospective monitors, the record

from the hearing reveals that the Supervising AUSA was actively engaged in the supervision of
the monitors’ efforts at minimization in a number of ways similar to, and occasionally
surpassing, those described favorably by Judge Sweet in DePalma. As in DePalma, the monitors
here were instructed to, and did, create line sheets for each of the calls that they monitored. (See
generally GX 40 (disk)). Unlike in DePalma, however, the Supervising AUSA did not simply
take oral or written reports from case agents who had reviewed the actual line sheets, DePalma,
461 F. Supp. at 819, but reviewed the line sheets himself on a daily or near-daily basis. (Hearing
Tr. at 14-15, 23-24). Moreover, the Supervising AUSA made clear in his testimony that he did
so with attention to whether or not the monitors were properly fulfilling their minimization
obligations (Hearing Tr. at 63-64), and, on one occasion, contacted a case agent to express
concern when he discovered a line sheet indicating that although the call was between Drimal
and an automated pharmacy line, the monitor had nonetheless continued to listen for long enough
to record the type of pharmaceutical that Drimal had ordered, the quantity of that pharmaceutical,
and the time at which the order would be ready for pickup. (Hearing Tr. at 31, 33-34; GX 70).

To be sure, as will be discussed below, some small number of spousal calls that should
have been further minimized went undiscovered during that review. But this does not mean that
the Supervising AUSA’s efforts were less than completely diligent. Courts in this circuit have
repeatedly observed that Title III’s minimization requirements call for “supervision by the
prosecutor.” United States v. Gotti, 42 F. Supp. 2d 252, 268 (S.D.N.Y. 1999) (emphasis added);
see also, e.g., United States v. Salas, 2008 WL 4840872, at *8 (S.D.N.Y. 2008) (same).
Although the requirements of “supervision” do not appear to have been precisely defined in this
context, the Second Circuit has elsewhere considered what is “objectively reasonable”
performance of a “supervisory role,” reaching the conclusion that “[a]bsent some indication to a
supervisor that an investigation was inadequate or incompetent, supervisors are not obliged either
to undertake de novo investigations or to cross examine subordinates reasonably believed to be
competent as to whether their investigations were negligent.” Cecere v. City of New York, 967
F.2d 826, 829 (2d Cir. 1992). Applying Cecere to the law enforcement context, the Ninth Circuit
has added, “Effective and efficient law enforcement requires cooperation and division of labor to
function. For that reason, law enforcement officers are generally entitled to rely on information
obtained from fellow law enforcement officers.” Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir.
2005); cf. Martinez v. Simonetti, 202 F.3d 625, 635 (2d Cir. 2000) (finding that trial court erred
in concluding, for purposes of qualified immunity, that supervisory police officers “had a duty to
conduct an independent investigation” of information supplied by subordinate officers before
instituting criminal charges).

Here, the Supervising AUSA’s supervision of the monitors’ performance of their duties
was without question objectively reasonable. As the Supervising AUSA explained during his
testimony, he was given no cause to be concerned that spousal calls were being improperly
monitored because: (1) he had personally instructed the monitors about the requirement to

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minimize privileged spousal communications; (2) the daily statistical reports indicated that the
monitors were, indeed, making significant use of the interception software’s minimization
function on a daily basis; and (3) consistent with appropriate minimization, the synopsis on most
of the line sheets for calls between Drimal and his wife “tended to have no or little description of
any substantive conversations” or “affirmatively said in the synopsis that calls were being
minimized.” (Hearing Tr. at 29-30).

As to this last point, even among the 18 calls that the Court identified as troubling
(Hearing Tr. at 7) – which are, themselves, only a small subset of the more than 180 calls that
have been identified as spousal calls (DX A) and the more than 1,000 conversations intercepted
in total – 13 of the corresponding line sheets either provide no substance for the conversation or
affirmatively indicate that the call was minimized. (GX 10 (sessions 5644, 5652, 5806, 5808,
5843, 5874, 5875, 5948, 5950, 6692, 6710, 6845, 7546)). 7 Of the remaining five, four contain
very brief substantive synopses that, on their face, are indicative of no more than a brief period of
monitoring as the parties to the call were identified (GX 10 (sessions 5710, 5809, 5945, 6087)),
and one describes Drimal’s retrieval of a voicemail message from his wife (with no substance
provided), which could not be minimized without losing the opportunity to monitor what proved
to be a subsequent message from another caller (GX 10 (session 5828)).

Again, none of the foregoing is meant to suggest that inquiry by the Supervising AUSA
as to some of the line sheets would not have been productive. It has since become clear that, in
several instances, such an inquiry might have revealed improper minimization of a particular call.
But the fact that the Supervising AUSA could have inquired does not mean that, absent more
than was present here, failure to make such inquiry was objectively unreasonable. To the
contrary, the Supervising AUSA’s actions were not only objectively reasonable, but completely
diligent. He personally instructed the monitors about their duties concerning minimization, he
reviewed their line sheets on a near-daily basis, he regularly reported to the supervising judges,
and where a line sheet appeared to rebut the reasonable presumption that the monitors were
minimizing appropriately – as where one line sheet reflected that a monitor had listened to a
significant portion of a call to an automated pharmacy line – the Supervising AUSA immediately
took corrective action. To call such hands-on supervision objectively unreasonable would be
both unwarranted and, as far as the Government can determine, unprecedented.

C. Monitoring

Finally, as to the monitoring itself, the Government does not dispute that several calls
between Drimal and his wife were improperly monitored. Although it is not clear in many
instances when the monitor reached, or should reasonably have reached, the conclusion that the

7
The fact that a monitor did not affirmatively indicate in a particular line sheet that the call was
minimized does not indicate that the call was not, in fact, minimized. (Compare, e.g., GX 10
(Sessions 5644, 5652) with GX 30-PT (showing minimization)).

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call was between spouses, the monitoring of at least one call – specifically, session 5808 – would
be indefensible even if one considers pertinence alone, setting aside the issue of privilege. In
addition, two other calls – specifically, sessions 5710 and 5945 – were monitored for
approximately 90 seconds without any minimization, even though pen register data, the subject
matter of the conversations, and the use of Drimal’s wife’s name in one instance, should arguably
have led the monitors to recognize that Drimal was speaking with his wife.

But, ultimately, as in DePalma, these few mistakes – which the Government seeks to
demonstrate below number far fewer than 18 – are a tiny fraction of the total number of spousal
calls (more than 180), and, more broadly, of the total number of conversations monitored (more
than 1,000). Accordingly, as in DePalma, when the monitors’ efforts are “[t]aken as a whole,”
granting Drimal’s request for the remedy of suppression would be “drastic and excessive.”
DePalma, 461 F. Supp. at 823.

1. General Patterns

As Scott and DePalma make clear, any analysis of the objective reasonableness of the
monitoring in this case cannot be done superficially, but, rather, requires detailed consideration
of the calls themselves and, in particular, the 18 that the Court identified as troubling. See also,
e.g., United States v. Mansoori, 304 F.3d 635, 648 (7th Cir. 2002) (“whether the agents
performed spot checks at intervals that were too frequent, and whether they listened for too long
when they made those checks, is not a question that can be answered responsibly in the
abstract”). Before turning to the calls specifically, however, it bears noting that the calls
identified by the Court were drawn almost exclusively from the earliest calls between Drimal and
his wife. In fact, the Court identified 13 of the first 17 calls between Drimal and his wife, the
overwhelming majority of which were intercepted in a two-day stretch on November 26 and 27,
2007. (See GX 30). 8 The fact that these calls represented the earliest instances in which
monitors intercepted calls between Drimal and his wife is significant, because it suggests that
calls were monitored for longer durations as a result of difficulty identifying the parties to the

8
Government Exhibit 30, attached hereto, was not introduced at the hearing, but is submitted
with the consent of the defendant and the authorization of the Court. (See Hearing Tr. at 204-
05). Like Defense Exhibit A, it identifies all 184 of the calls that either side has identified as
spousal calls. For each call monitored by one of the agents whom the Court initially ordered to
testify at the hearing, it provides: session number; date; total duration of the call; total duration
monitored; number of times minimized; identity of the monitor; and a description (based on
listening to the recording) of certain events and when they occurred, such as when the call
connected and how long before minimization or termination of the call. It is the basis for the
charts introduced at the hearing with respect to individual witnesses (e.g., GX 30-PT). With
respect to calls monitored by agents who were not directed to appear as witnesses, the chart
contains only: session number; date; total duration of the call; and the identity of the monitor.
The 18 calls identified by the Court have been highlighted.

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call. See Scott, 436 U.S. at 141 (explaining that “it may be important to determine at exactly
what point during the authorized period the interception was made,” because the lack of
information “[d]uring the early stages of surveillance” may make the interceptions of calls
reasonable at that stage, even though “[i]nterception of those same types of calls might be
unreasonable later on”); DePalma, 461 F. Supp at 821 n.25 (excusing failure to minimize calls in
which Mrs. DePalma was not identified because “all took place at the early stages of the first
New York wiretap order and apparently reflected the agents’ difficulties in identifying the female
voice involved”). 9 Of the subsequent 167 calls between Drimal and his wife, the Court has
expressed concern over only five. (See GX 30).

Looking at the calls in the aggregate, another noticeable feature is that minimization was
employed at some point during all but six of the calls identified by the Court. Moreover, there is
not one instance among the 18 calls identified by the Court in which a monitor listened for a
period of more than 97 seconds without minimizing. (See GX 30). In some instances, the call
ended sooner; sometimes much sooner. In other instances, the monitor minimized sooner; again,
sometimes much sooner. The fact that most of the calls were minimized for some portion (with
spot monitoring in some instances) and that there is not one call in which a monitor listened
uninterrupted for more than 97 seconds strongly suggests that monitoring that might appear
excessive with the benefit of hindsight was due not to an abandonment of the duty to minimize,
but to difficulties in identifying the parties to the call. This conclusion becomes that much
stronger when one considers the speed with which the same monitors minimized spousal calls as
the wiretap progressed. (See, e.g., 30-ER (all spousal calls monitored by Rom); 30-FL (all
spousal calls monitored by LoMonaco)).

2. Individual Calls

Turning to the specific calls identified by the Court, although there are several with
respect to which the degree of monitoring was excessive or at least arguably so, there are many
others – described below – that, when examined closely, reveal themselves to have been
monitored reasonably.

Sessions 5644 and 5652 (Tai)

Unlike most of the calls identified by the Court, sessions 5644 and 5652 were both calls
between Drimal and his wife’s cellular phone, not Drimal and his wife using the family’s home
phone. (See DX A). These two calls (which occurred on the same morning during the first week
of the wiretap) represent (i) the first time that a conversation involving that cellular telephone
number was intercepted on the wiretap, and (ii) the first time that Drimal’s wife’s voice was

9
The Government relies on the sealed stipulation accepted by the Court at the beginning of the
hearing, and the discussion contained in the Government’s letter transmitting it, to support this
point.

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heard by the particular monitor, FBI analyst Pauline Tai. (See DX A). The content of the
conversations gave some indication that Drimal was speaking with his wife and, in each instance,
Tai minimized the call within approximately the first minute – after 67 seconds the first time, and
then after only 56 seconds the next time. (See GX 30). 10 Thereafter, Tai minimized every
spousal call approximately 30 seconds or less after it connected, often significantly less. (See
GX 30-PT). Based on the foregoing, the Government respectfully submits that the monitoring
was hampered by Tai’s legitimate difficulty in identifying Drimal’s wife and the monitoring was
reasonable. 11

Sessions 5806, 5808, 5809, 5828 (LoMonaco)

Sessions 5806, 5808, 5809, and 5828 were all monitored by Special Agent Frank
LoMonaco on the morning of November 26, 2007. (See DX A). Session 5806 began at 5:39
a.m. (see DX A), was more than four minutes long, and yet only the last 42 seconds were
monitored. (See GX 30). Given these facts, along with the fact that it was the first call to be
monitored that day (see GX 40), it appears that Special Agent LoMonaco began his shift, logged
into the system, and began monitoring the already in-progress call just as the call was concluding.
(Hearing Tr. at 122-23 (describing possibility of entering in-progress call upon login)). As far as
Special Agent LoMonaco’s ability to determine the parties during that brief period of time, (i) the
subject of the call (absent the context of subsequent calls) was largely impossible to discern, (ii)
Special Agent LoMonaco had never previously had occasion to hear Drimal’s wife’s voice (see
GX 30), and (iii) Drimal’s wife’s name was used only in the very last seconds before the call
ended. Pen register data does appear to have been captured, however, indicating the phone
number to which the target phone was connected, which was the phone number for Drimal’s
home. Although the record is unclear concerning what the FBI knew at that stage about that
telephone number and who might be expected to make or receive calls from it, the call was
sufficiently brief that it would have been difficult for any monitor not personally familiar with the
number to access information about its owner before the call ended. Based on the foregoing, the
10
The Court has been provided with recordings of the calls and transcripts. For privacy reasons,
the Government will not describe any significant substance of the recorded conversations in this
filing. The times on the transcripts and the Government’s charts may vary a small amount from
one another (generally by no more than one or two seconds) due to the impossibility of perfect
precision in determining when the voices on a recording began or ended, as well as differences in
software used to review the recordings.
11
The Government notes that, as with many of the calls at issue, the line sheets corresponding to
these two calls indicate that Tai eventually recognized that the other party to the call was
Drimal’s wife (assuming that the line sheet does not reflect subsequent modification by a case
agent). As was made clear in the testimony at the hearing (see, e.g., Hearing Tr. at 158-59), this
indicates only that the monitor reached that conclusion at some point before the end of his or her
shift, but not necessarily while the call was ongoing, and certainly not at any particular point
during the call.

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Government respectfully submits that the monitoring was hampered by legitimate difficulty in
identifying Drimal’s wife and monitoring for only 42 seconds as the call ended was reasonable.

Turning to session 5808, the Government acknowledges that this was an unquestionable
instance of unreasonable monitoring, regardless of whether the monitor identified Drimal’s wife
as the other party. The Government submits, however, that the monitoring of the call that
immediately followed it was not unreasonable. During session 5809, the call connected
immediately (i.e., with no ringing to warn the monitor that a call was about to begin), proceeded
for only 15 seconds, and then abruptly ended. (See GX 30). There was no exchange of
greetings; rather, Drimal simply began speaking and was the only speaker for approximately the
first 12 seconds. Drimal’s wife spoke for the first time only approximately three seconds before
the parties hung up. Although the call followed relatively soon after session 5808, and can now
plainly be identified as a continuation of that preceding call, the Government submits that the call
was simply too short, and Mrs. Drimal’s first appearance on it too late, to deem the failure to
minimize within 15 seconds unreasonable.

Finally, session 5828 was a call by Drimal to retrieve his voicemail messages.
Monitoring began after the call was in progress and after the automated voice would have (if it
did) announced the number of messages available to be retrieved. There was no basis to
conclude, however, that there was only one message to be retrieved, and, in fact, the automated
voice’s reference to “messages” and its identification of the initial message as the “first unheard
message” implied that there was more than one message. As it turned out, Drimal retrieved two
messages during the call. Although the first was a message from Drimal’s wife, the duration of
that message could not have been known in advance, and, as a result, there was no way for
Special Agent LoMonaco to avoid monitoring that message without forfeiting the ability to
monitor any following messages. Accordingly, the Government respectfully submits that Special
Agent LoMonaco performed his monitoring duties appropriately on this call.

Sessions 5710, 5843, 5874, 5875 (Rom)

Sessions 5710, 5843, 5874, and 5875 were all monitored by Special Agent Edmund Rom.
The Government recognizes that it is possible to conclude that the first of these – session 5710 –
was unreasonably monitored. Although it is not clear that Special Agent Rom did identify Mrs.
Drimal as a party to the call while the call was in progress, it is at least arguable that he should
have. Pen register data was received, the subject matter of the conversation was familial in
nature, and the call stands out as one of very few in which nearly 90 seconds was monitored with
no minimization (see GX 30). The Government notes, however, that the call occurred during the
very first week of the wiretap (see GX 30), and Drimal did not address his wife by name or any
term of endearment. See DePalma, 461 F. Supp. at 823 (during each spousal call found to have
been unreasonably monitored, wife’s “identity was disclosed in the course of the monitored
conversations”).

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 With respect to sessions 5843, 5874, or 5875, however, the monitoring of each appears to
reflect Special Agent Rom’s legitimate difficulty in identifying the other party to the call as
Drimal’s wife until ultimately minimizing each call within approximately one minute or less.
Session 5843 was minimized 30 seconds after the parties began speaking. (See GX 30). The
parties did not address each other by name or any term of endearment, and the subject matter of
the conversation was not in any way specific to spousal or familial matters. The only indication
that the call was one between Drimal and his wife was that pen register data was apparently
received indicating that the call was with Drimal’s home telephone. (See DX A). There is no
way to discern from the record whether Special Agent Rom was reacting to that or the non-
pertinence of the call when he minimized after 30 seconds, but, in either event, the Government
submits that minimization of this call within such a short period was reasonable.

Session 5874 was minimized after 44 seconds of conversation and then spot monitored
for another 42 seconds before the call ended. (See GX 30). Importantly, no pen register data was
received, leaving Special Agent Rom to identify the identity of the parties based only on clues
from the content of the conversation. (See DX A). In that respect, Mrs. Drimal used a term of
endearment partway through the first minute of the call, and the conversation appeared to
concern the care of children. There is no way to discern from the record whether Special Agent
Rom was reacting to those clues or the non-pertinence of the call when he minimized after only
44 seconds, but the Government respectfully submits that 44 seconds was not an unreasonable
period of time within which to make a determination under the circumstances. With respect to
the subsequent 42 seconds of spot monitoring, the analysis is less clear. To the extent Special
Agent Rom had identified the parties as Drimal and his wife, 42 seconds would seem to be
longer than reasonably necessary to determine that the spousal privilege continued to apply to the
conversation. To the extent Special Agent Rom had not identified the parties, 42 seconds would
be a reasonable amount of time to spend ensuring that a non-pertinent but non-privileged
conversation had not become pertinent.

Finally, session 5875 was minimized after 67 seconds of conversation. (See GX 30).
Once again, no pen register data was received, leaving Special Agent Rom to identify the parties
based only on clues from the content of the conversation. (See DX A). In this instance, clues
were particularly slow in developing, as the early part of the conversation was dominated by long
pauses while Drimal asked the other party to wait while he listened to a news report on the radio.
More than 40 seconds elapsed before the conversation began in earnest and Mrs. Drimal first
made a statement of more than two words in length. From that point on, Special Agent Rom
continued listening for only approximately 25 seconds before minimizing the call. During the
entire call, the parties did not address each other by name or any term of endearment, and the
subject matter of the conversation – which did not truly begin until more than 40 seconds into the
call – was not inconsistent with a discussion of familial matters, but neither was it indicative of
such a discussion. The Government respectfully submits that, under these circumstances, Special
Agent Rom did not wait an unreasonable period of time before minimizing the call.

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 In addition to the foregoing, Special Agent Rom’s subsequent performance confirms that
any delay in the minimization of sessions 5843, 5874, and 5875 (and perhaps 5710) was the
result of reasonable difficulties in identifying the conversations as spousal. Following these early
experiences identifying calls between Drimal and his wife, Special Agent Rom was on duty for a
number of additional spousal calls during the period of the Drimal wiretap and minimized every
such call within 11 seconds or less. (See GX 30-ER).

Sessions 5945, 5948, and 5950 (Ford)

Sessions 5945, 5948, and 5950 were all monitored by Special Agent David Ford within a
period of approximately 30 minutes at around noon on November 27, 2007. (See DX A).
Special Agent Ford has forthrightly explained that he recalls “kicking [him]self” immediately
after session 5945 – a conversation that he monitored for its entire 95-second duration without
minimizing – when he “digest[ed] what was just said” and realized that he “should have
minimized that call” because it involved “a man and a woman where they were discussing a child
in school.” (Hearing Tr. at 161). Special Agent Ford’s conclusion that he could have performed
his duties better does not necessarily mean that his actions were unreasonable. Nonetheless, the
call stands out as the longest non-minimized call of the 18 identified by the Court, pen register
data identifying the number of Drimal’s home telephone appears to have been presented to the
monitor, Mrs. Drimal’s name was used early in the call, and – as Special Agent Ford conceded –
the subject matter was familial in nature.

Ford’s testimony concerning session 5945, and his line sheets for all three sessions,
however, strongly imply that he was unaware until some point during or after the third of the
three calls that the woman with whom Drimal was speaking was likely Drimal’s wife. 12
Nonetheless, following his experience during session 5945, Special Agent Ford heavily
minimized during his monitoring of sessions 5948 and 5950. (See GX 30). With respect to
session 5948, during which neither Drimal nor his wife used each other’s names or any term of
endearment, Special Agent Ford minimized the call within approximately 40 seconds, at the
point at which the subject matter of the conversation made clear it was the same two parties as
the previous conversation that Special Agent Ford had failed to minimize. Following that,
Special Agent Ford spot monitored and minimized six times, never spot monitoring for more
than approximately 10 to 20 seconds. (See GX 30).

12
The line sheets show that for all three calls, Special Agent Ford (i) was presented with pen
register data identifying the number of Drimal’s home phone and (ii) correctly identified the first
name of the woman to whom Drimal was speaking. There is no way to know from the record
whether information about the name of Drimal’s wife and the number of Drimal’s home phone
were unavailable to Ford at the monitoring station, or whether they were available and Special
Agent Ford simply failed to make the connection.

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 Likewise, with respect to session 5950, during which Drimal’s wife did use a term of
endearment and the conversation concerned her parents (perhaps leading to Special Agent Ford’s
observation in the line sheet that the woman “sound[ed] like [Drimal’s] wife” (see GX 10)),
Special Agent Ford minimized after approximately 30 seconds. (See GX 30). Thereafter,
Special Agent Ford spot monitored and minimized four times, never spot monitoring for more
than approximately 20 seconds. (See GX 30).

Taken as a whole, the Government respectfully submits that Special Agent Ford’s
performance during sessions 5948 and 5950 was not unreasonable. Although there were
indications from which Special Agent Ford might have recognized more conclusively that Drimal
was speaking with his wife and the call was privileged, he nonetheless minimized both calls
relatively quickly and, thereafter, spot monitored only for very brief periods of time.

Sessions 6087 and 6845 (Riordan)

Sessions 6087 and 6845 were both monitored by Special Agent Kevin Riordan. The
Government submits that both calls were reasonably monitored. Session 6087 was minimized
after only 52 seconds. (See GX 30). Although pen register data was apparently available
indicating the number of Drimal’s home phone, neither the subject matter of the call nor the
name of the woman speaking to Drimal was discernable until more than 30 seconds into the call,
at which point Special Agent Riordan ultimately appears to have made the connection within a
fairly short 20 seconds, at which point he minimized. Although the call continued for another
two minutes, Special Agent Riordan did not spot monitor. (See GX 30). Special Agent
Riordan’s pattern of performance on other spousal calls supports the conclusion that even the 50
seconds of monitoring on session 6087 was due to his inability to recognize sooner that Drimal
was speaking with his wife. Specifically, during the large number of spousal calls monitored by
Special Agent Riordan, this was the only one in which Special Agent Riordan failed to minimize
the call within 21 seconds, and the great majority of the calls were minimized much faster than
that. (See GX 30-KR). 13

With respect to session 6845, Special Agent Riordan minimized the call within 10
seconds. (See GX 30). Thereafter, he spot monitored one time for approximately 18 seconds
before minimizing again. (See GX 30). The Government submits that this was reasonable
minimization.

Sessions 6692 and 6710 (Busby)

Sessions 6692 and 6845 were both monitored by Special Agent Adrian Busby. Again, the
Government submits that both calls were reasonably monitored. Notwithstanding that session

13
Because Special Agent Riordan was excused as a hearing witness, Government Exhibit 30-KR
– which is simply a subset of the information presented in Government Exhibit 30 – was never
introduced into evidence. The Government has attached it as an exhibit to this submission.
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6692 was the very first time that Special Agent Busby was the monitor for a call involving
Drimal’s wife, he minimized the call within 15 seconds. (See GX 30-AB). 14 Thereafter, he spot
monitored three times, for 31 seconds, 19 seconds, and 21 seconds. (See GX 30-AB). Similarly,
with respect to session 6710, which began approximately 30 minutes later (see DX A), Special
Agent Busby minimized within four seconds. (See GX 30-AB). Thereafter, he spot monitored
twice, for 12 seconds and 18 seconds. (See GX 30-AB). Following these first two calls, Special
Agent Busby monitored numerous calls between Drimal and his wife, generally minimizing
within less than 10 seconds. (See GX 30-AB).

Session 7546 (DeGraff)

Finally, Special Agent Christopher DeGraff monitored a single spousal call on December
20, 2007, listening for 67 seconds without minimizing. (See GX 30). Although the line sheet for
that call indicates awareness that the call was between Drimal and his wife, it is not clear whether
Special Agent DeGraff was the one who made that notation, or, if so, whether he reached that
conclusion while the call was still ongoing. (See GX 10). With the exception of pen register
data that appears to have been available during the call (See DX A), nothing else about the call
should have given Special Agent DeGraff the impression that he was monitoring a spousal call.
In particular, (i) Mrs. Drimal’s name was never used, nor was either party referred to by a term of
endearment, (ii) the conversation was entirely devoid of any familial subject matter, and (iii)
Special Agent DeGraff had never before had occasion to hear Mrs. Drimal’s voice. Under these
circumstances, the Government submits that Special Agent DeGraff’s failure to minimize within
the short 67 seconds of the call should not be deemed unreasonable.

Conclusion

As asserted above, the facts of this case bear many similarities to the facts of DePalma.
In both, the United States Attorney’s Office diligently instructed prospective monitors on the
applicability of various privileges, directed the monitors to create line sheets for subsequent
review, and reviewed the monitors’ performance on a daily basis for compliance with
minimization obligations. Also in both cases, a large number of calls were intercepted,
minimization of non-pertinent calls was performed properly, and most privileged calls were
minimized appropriately. But here, as in DePalma, a small number of privileged calls were
monitored inappropriately, and, as in DePalma, one of those mistakes was “[p]articularly
egregious.” DePalma, 461 F. Supp. at 822.

The Government is aware that even one inappropriately monitored call is, as the Court
put it, “an embarrassment” (Hearing Tr. at 206), and the Government is in the process of

14
Because Special Agent Busby was excused as a hearing witness, Government Exhibit 30-AB –
which is simply a subset of the information presented in Government Exhibit 30 – was never
introduced into evidence. The Government has attached it as an exhibit to this submission.

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reviewing its wiretap procedures in order to reduce the likelihood of future mistakes. But, the
remedy sought by Drimal in this case – total suppression of relevant wiretap evidence as a
deterrent against future Governmental misconduct – is a “drastic” one, DePalma, 461 F. Supp. at
823, that “is reserved for the particularly horrendous case . . . where the government has made
effectively no effort towards minimization whatsoever.” Suggs, 531 F. Supp. 2d at 24 (internal
quotations omitted); see also, e.g., Hoffman, 832 F.2d at 1309 (1st Cir. 1987) (rejecting defense
request for total suppression of wiretap evidence and reserving possibility for “a particularly
horrendous case”). This is not that case. Rather, “given the number of interceptions, the number
of demonstrated violations and the nature of human error,” this is a case in which “[t]aken as a
whole . . . proper minimization standards were observed by the Government in the
circumstances[.]” DePalma, 461 F. Supp. at 823.

Accordingly, for the foregoing reasons, Drimal’s motion should be denied.

Dated: New York, New York

March 18, 2011

Respectfully submitted,

PREET BHARARA
United States Attorney

By: /s/
MICHAEL A. LEVY
SANTOSH S. ARAVIND
Assistant United States Attorneys
(212) 637-2346/1045

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