NEW YORK – A federal judge demanded the government explain itself Wednesday for eavesdropping on phone calls between an insider trading defendant and his wife in a case that was celebrated for its use of wiretaps.
U.S. District Judge Richard Sullivan in Manhattan ruled in favor of the government's right to wiretap insider trading suspects, but drew the line at the private chats between a husband and wife, saying it was the only area where he believed some suppression of the evidence might be warranted. He was the second judge to rule in favor of wiretap evidence in insider trading cases.
Sullivan ordered the government to respond in writing to claims by a lawyer for defendant Craig Drimal that 13 percent of his time on phones involved chats with his wife, including "deeply personal conversations about private marital matters." Drimal has pleaded not guilty.
Prosecutors have described the prosecution that resulted in Drimal's 2009 arrest as the biggest hedge fund insider trading case in history. Among defendants is Raj Rajaratnam, a one-time billionaire founder of the Galleon group of hedge funds who has pleaded not guilty and insisted any trades he made were based on publicly known information. Prosecutors say the insider trading resulted in more than $50 million in profits.
The government began wiretapping Drimal, a former Galleon trader, in November 2007. His lawyer, Janeanne Murray, said in court papers that 98.2 percent of the calls captured by the government and 97.4 percent of the call-minutes involved non-pertinent conversations.
Murray accused the government of a "cavalier disregard for marital privacy," saying investigators were required to discontinue monitoring if they discovered that they were intercepting a personal communication solely between Drimal and his wife.
In all, she said, government agents intercepted 178 calls between Drimal and his wife and kept 143 of the calls under 2 minutes, the time available for a monitoring agent to identify a call as privileged because it is between spouses.
Sullivan asked a prosecutor Wednesday if he believed the government was permitted to listen to spousal calls for at least two minutes.
"Sometimes it's hard to tell who it is," Assistant U.S. Attorney Andrew Fish responded as he explained why the calls were not cut off sooner. He also said the use of several different telephone lines made identification difficult.
Murray said in court papers that the agents intercepted 330 calls between Drimal and family members, including his children, his siblings and in-laws. Those calls represented a quarter of the call time captured by wiretaps, and nearly 20 percent of the calls lasted more than 2 minutes, she wrote.
The judge said that if he finds that the government intercepted family calls inappropriately, he was likely to exclude only some of the wiretap evidence from trial.
Fish said he did not believe prosecutors will use any of the family conversations as evidence at trials.
Murray argued that the wiretaps should not be allowed at trial, as punishment to the government.
"It's not clear to me it's all or nothing," said Sullivan, who knows much more about wiretaps than most lawyers after overseeing the creation of the International Narcotics Trafficking bureau of the prosecutor's office in Manhattan before he became a federal judge.
Prosecutors boasted when they made the arrests in the Rajaratnam probe about their use of wiretaps, saying it was the first time they had ever been used extensively in an insider trading investigation.
Another federal judge recently upheld the constitutionality of their use against Rajaratnam and his co-defendants. Drimal and five others were charged in a separate but related indictment.
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