Judging if wiretaps are necessary

“Necessity” is a simple word that means “an imperative requirement or need for something”.

In Raj Rajaratnam’s appeal of his convictions for conspiracy and insider trading that will be heard on Thursday by the United States Court of Appeals for the Second Circuit, the critical issue will be whether the government established that it needed to use wiretaps because other avenues of investigation were not fruitful.

Under the federal Wiretap Act, the government must demonstrate that the necessity of using a wiretap by providing a federal district judge with “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous”.

Congress put this requirement into the law to ensure that wiretaps were not a first choice for investigating a case because they involve such a significant invasion of privacy.

If a wiretap was not properly authorised, the statute prohibits using the evidence at a trial. For Rajaratnam, that would lead to reversal of his convictions because the wiretaps were crucial to proving the case.

In addition to Rajaratnam’s filings, a group of eight former federal judges submitted a brief arguing that the wiretap evidence should be suppressed because the government's inadequate disclosure in the application resulted in a significant invasion of privacy. Known as an “amicus curiae”, or “friend of the court” brief, it may carry some weight with the appeals court because these are former colleagues on the federal bench — which certainly gives Rajaratnam's argument some support. The judges are taking the position that the government should be held to a strict standard when it seeks the authority to overhear private telephone calls.

The question of necessity for the wiretaps has been hotly contested since the start of the prosecution of Rajaratnam. The wiretaps were authorised while the Securities and Exchange Commission had a continuing insider trading investigation of his hedge fund, Galleon Group. The inquiry included taking his deposition and gathering about four million pages of documents.

Yet, the wiretap application made only a few passing references to the SEC and stated that other investigative techniques had been unsuccessful.

Richard J. Holwell, the federal judge who has since stepped down from the bench, found that an affidavit submitted to support the wiretap application "made a glaring omission" by not disclosing the SEC investigation. He even determined that "this broad omission also rendered several specific statements in the affidavit misleading."

Nevertheless, Judge Holwell refused to suppress the evidence because even if the omitted information about the SEC investigation had been provided, the court would have authorized the wiretaps. For basketball fans, this was essentially a “no harm, no foul” conclusion.

Nearly 90 percent of Rajaratnam’s briefs filed in the appeals court discuss this issue.

 

© 2012 The New York Times News Service