Convicted hedge fund manager Raj Rajaratnam is getting help in his appeal from the man who drafted the language at the core of the decades-old federal wiretap law.
G. Robert Blakey, professor emeritus at Notre Dame Law School, on Wednesday filed an amicus brief in support of Rajaratnam's fight in the U.S. Court of Appeals for the Second Circuit to overturn his conviction on insider trading charges.
Rajaratnam's attorneys at Akin Gump Strauss Hauer & Feld contend that a three-judge panel in June, upholding the conviction, significantly expanded law enforcement’s use of wiretaps. The defense lawyers last month asked the full appeals court to hear the dispute.
Blakey, represented by Tai Park of New York's Park & Jensen, worked on the draft language that would become part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Park said that Blakey also helped draft and implement wiretap laws in 39 states.
Blakey's main argument is that the government in 2008 failed to provide a "full and complete" description of why a wiretap targeting Rajaratnam, founder and managing partner of Galleon Management, was necessary in the first place. (Seven other wiretap applications were approved after Judge Gerald Lynch issued the first authorization against Rajaratnam's mobile phone.)
That justification, the amicus brief said, is a necessary pre-condition for a Title III wiretap. Investigators, for instance, are required to show how alternative investigative techniques were tried—or not used at all, perhaps because they would have been ineffective or too dangerous.
"Anyone—public or private—who taps a phone without satisfying these pre-conditions, when possible, commits a crime, forfeits any benefit gained by his or her transgression, and must civilly make whole the damage inflicted on the victim," Blakey's brief said. "That has been the law since 1968. It ought not change now through the judiciary."
A wiretap, the brief argues, is a tool of last resort. "Title III was the result of a careful calibration of the competing interests by its sponsors between privacy and law enforcement," Blakey's brief said.
Rajaratnam's attorneys at Akin Gump, including Patricia Millett, on July 24 urged the full Second Circuit to hear the case. Bancroft's Paul Clement was also on the brief seeking full-court review.
"The district court found that the affidavit was made in reckless disregard of the truth with respect to both probable cause and the necessity of resort to a wiretap," Rajaratnam's attorneys wrote in their petition. “The district court determined that the entire affidavit was riddled with reckless misstatements and misleading omissions."
The Second Circuit panel, affirming the trial judge's decision not to suppress the wiretap evidence, said the alleged misstatements and omissions were not material. The U.S. Justice Department has not yet filed papers responding to Rajaratnam's request for a full-court hearing.
Rajaratnam is serving an 11-year prison sentence, the longest term in Justice Department history for insider trading. Prosecutors argued that he executed trades on "material, nonpublic information pertaining to upcoming forecasts, mergers, acquisitions and other business combinations."
"We can only hope that this case will be the wake-up call we said it should be when Mr. Rajaratnam was arrested," U.S. Attorney Preet Bharara said in October 2011, when Rajaratnam was sentenced. "Privileged professionals do not get a free pass to pursue profit through corrupt means."
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