‘Confidentiality of Proceedings’ The Investigation for Fair Trail Act 2013

confidentiality

‘Confidentiality of Proceedings’ The Investigation for Fair Trail Act 2013

By

SJ TUBRAZY

Section 33. Confidentiality of proceedings. – The judge shall ensure that during any proceedings under this Act, no disclosure of any source or information or proceeidings is made that may compromise the future capability of the applicant’s intelligence gathering in any manner whatsoever.

Chief Judge Patel granted the defendant’s motion to suppress because the affiant in a state search warrant affidavit referred to a federal wiretap as a “Confidential Reliable Source,” and thereby mislead the issuing magistrate.  The affidavit’s portrayal of investigators’ evaluations of wiretap evidence as the first-hand reports of a reliable witness showed a reckless disregard for truth in the factual assertions set forth in the affidavit upon which the magistrate’s finding was based. By describing the wiretap as if it were a human informant, the affiant made a proper determination of probable cause impossible. Law enforcement is not permitted to make misrepresentations in warrant affidavits in order to protect the confidentiality of their sources. Judge Patel suggested the following ways to protect confidential information sources used in search warrant applications,   Affiant could have submitted the warrant affidavit under seal, submitted a redacted affidavit along with an unredacted one to be sealed, or disclosed the nature of the source to the reviewing magistrate in in camera sealed proceedings. Furthermore, so that the magistrate has the actual facts to support probable cause rather than the affiant’s characterizations, the magistrate must be advised  of what is fact and what is characterization.  The way to accomplish this is to set forth the pertinent conversation and then interpret them where code or other obscure language is used.  Law enforcement must pursue those means of protecting investigations which do not risk compromising the protections of the Fourth Amendment. At least two federal courts have refused to hold a warrant invalid where the affidavit described a wiretap as a ‘confidential informant,’ but in those cases the magistrate was informed orally of the true nature of the source.  United States v. Glinton, 154 F.3d 1245, 1255 (11th Cir.1998), cert. denied, 526 U.S. 1032, 119 S.Ct. 1281, 143 L.Ed.2d 374 (1999); United States v. Cruz, 594 F.2d 268, 271-72 (1st Cir.), cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979).  In each of case, the deciding court emphasized that because of the affiant’s oral disclosure, the magistrate had not actually been misled as to any facts.  Another federal court of appeals cautioned that mislabeling wiretaps as human informants could affect the determination of probable cause.  United States v. Johnson, 696 F.2d 115, 118 n. 21 (D.C.Cir.1982).  Finally, at least one state court has actually excluded evidence gained from a search warrant in which the facts attested to by the ‘confidential reliable source’ described in the warrant affidavit turned out to be summaries of wiretap evidence provided to the affiant by a police officer in another state.  Florida v. Beney, 523 So.2d 744 (Fla. Ct. App. 1988).

Congressman McDermott knowingly disclosed the contents of illegally intercepted communications in violation of 2511(1)(c).  When McDermott received the illegally intercepted communications directly from the illegal interceptors, he had present knowledge of the illegality of such disclosure by the interceptors, and thus “unlawfully” obtained the information. Therefore, the Supreme Court’s holding in Bartnicki does not provide a First Amendment shield for Congressman McDermott’s violation of 18 U.S.C. 2511. Although not necessary to a determination of the instant case, Judge Hogan chose to discuss the “duty of confidentiality” and its consequent limitation on First Amendment protection that might have been otherwise enjoyed by the federal judge in U.S. v. Aguilar, 515 U.S. 593  (1995) (judge disclosed wiretap information to the subject of the surveillance). Boehner v. McDermott, 332 F. Supp.2d 149 (D. D.C. 2004)

Qualified Privilege of Nondisclosure for Sensitive Investigative Techniques:

The government has a qualified privilege not to disclose sensitive investigative techniques. This privilege can be overcome if the defendant can show an authentic and sufficient need (no adequate alternative means) for the information that outweighs the government’s privilege.   U.S. v. Angiulo, 847 F.2d 956 (1st Cir. 1988); U.S. v. Cintolo, 818 F.2d 980 (1st Cir. 1987); U.S. v.Van Horn, 789 F.2d 1492 (11th Cir. 1986); U.S. v. O’Neill, 52 F. Supp.2d 954 (E.D. Wis. 1999).

34. Prohibition of misuse of intercepted material. – (1) the material intercepted pursuant to the warrant of surveillance or interception shall not be used by any official of the applicant or of the Court or any other person associated with any function under this act other than in accordance with the provisions of this Act.

(2) Any person who violates the provisions of sub-section (1) shall be punished with imprisonment of up to five years or with fine up to ten million rupees or with both.

Congressman McDermott knowingly disclosed the contents of illegally intercepted communications in violation of 2511(1)(c).  When McDermott received the illegally intercepted communications directly from the illegal interceptors, he had present knowledge of the illegality of such disclosure by the interceptors, and thus “unlawfully” obtained the information. Therefore, the Supreme Court’s holding in Bartnicki does not provide a First Amendment shield for Congressman McDermott’s violation of 18 U.S.C. 2511. Although not necessary to a determination of the instant case, Judge Hogan chose to discuss the “duty of confidentiality” and its consequent limitation on First Amendment protection that might have been otherwise enjoyed by the federal judge in U.S. v. Aguilar, 515 U.S. 593  (1995) (judge disclosed wiretap information to the subject of the surveillance). Boehner v. McDermott, 332 F. Supp.2d 149 (D. D.C. 2004)

Use of Illegal Interceptions for Impeachment

The recording of a telephone conversation obtained by the government in violation of Title III can properly be used to impeach the defendant’s testimony. “Evidence seized in violation of the Fourth Amendment or the federal wiretapping statute cannot be used by the government in its case in chief. But, if the defendant chooses to testify, and swears to a sequence of events inconsistent with his own previously recorded statements, the Constitution does not require the government to leave the lie (or what it contends to be a lie) unchallenged.”  U.S. v. Baftiri, 263 F.3d 856 (8th Cir. 2001)(citing Williams v. Poulos, 11 F.3d 271, (1st Cir. 1993); U.S. v. Echavarria-Olarte, 904 F.2d 1391 (9th Cir. 1990); Jacks v. Duckworth, 651 F.2d 480 (7th Cir. 1981); U.S. v. Caron, 474 F.2d 506 (5th Cir. 1973)). The rule regarding use of illegally seized evidence for purposes of impeachment was not altered by 18 U.S.C. 2515.  U.S. v. Caron, 474 F.2d 506 (5th Cir. 1973). Even if wiretaps were illegal, to the extent they contradicted statements made on direct  examination, they were admissible for purposes of impeachment.  U.S. v. Echavarria-Olarte, 904 F.2d 1391 (9th Cir. 1990).

The impeachment exception to § 2515 is limited to criminal actions brought pursuant to Title III. Illegal interceptions (and their transcriptions) cannot, pursuant to the criminal impeachment exception, be introduced into evidence for impeachment purposes in civil cases.  Williams v. Poulos, 11 F.3d 271 (1st Cir. 1993) “Impeachment” exception allows use of illegally intercepted communications to impeach a testifying defendant (but not a witness).  U.S. v. Lanoue, 71 F.3d 966 (1st Cir. 1995).  Defendant is liable for wiretapping his wife’s telephone conversations, but illegal intercepts are admissible to impeach witness’s evidence presented to the court in an affidavit, and therefore submission of the transcripts of the illegal intercepts to the court for such purposes was not improper.  Culbertson v. Culbertson, 143 F.3d 825 (4th Cir. 1998).

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