By By Mark Hamblett, New York Law Journal

FBI agents are not entitled to a presumption that wiretapped calls involving personal, non-criminal matters lasting less than two minutes are non-invasive, a federal appeals court has held.

The U.S. Court of Appeals for the Second Circuit declined to adopt a rule that agents get a “two-minute presumption” on the reasonableness of wiretapping calls that are personal in nature.

The circuit did so while dismissing a civil suit brought against FBI agents by a woman who claimed her privacy was violated when agents taped intimate phone calls between herself and her husband during a criminal investigation. The circuit said the woman, Arlene Villamia Drimal, will be allowed to file a new complaint against the agents.

Drimal is the wife of convicted insider trader Craig Drimal. She sued 16 FBI agents for conversations they overheard in 2007 and 2008 while executing a wiretap secured under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, §§2510-2522.

Judges John Walker, Gerard Lynch and Denny Chin threw out Drimal’s lawsuit without prejudice, leaving Drimal’s attorney, John Williams, free to refile the case.

“They have put to death the two-minute rule that the government wanted,” Williams said Monday. “This should definitely send a message to government agents that they can’t get away with this kind of thing and they should save their prurience for their own private lives.”

Craig Drimal pleaded guilty to five counts of securities fraud for using information stolen by two Ropes & Gray lawyers, Arthur Cutillo and Brien Santerlas, on mergers and acquisitions involving firm clients. Cutillo and Santerlas passed the information to a third attorney, Jason Goldfarb, who then fed it to a ring led by Zvi Goffer that included Drimal.

Judge Richard Sullivan sentenced Drimal to five years and six months in prison in 2011. He is scheduled to finish his sentence in August.

Drimal moved before Sullivan to suppress the wiretap on his cellphone for two 30-day periods in 2007 and 2008 because FBI agents had failed to properly “minimize” the eavesdropping of phone calls between himself and his wife.

Sullivan found 18 calls “potentially violative” and three of those calls “particularly egregious.” While the wiretap as a whole was found by the judge to be professional, Sullivan nonetheless said the failure to minimize private calls between the husband and wife “inexcusable and disturbing.”

The 16 agents in Arlene Drimal’s suit in the District of Connecticut moved to dismiss based on qualified immunity. Judge Warren Eginton denied the motion, finding the complaint stated a claim despite the fact that Drimal made no mention of the requirement that agents “minimize” the wiretapping of calls that were not pertinent to their investigation.

Eginton’s ruling, the circuit held in Drimal v. Makol, 13-2963, was in error, as Drimal’s complaint “recites only legal conclusions.”

The opinion, written by Walker, also said that Eginton, in analyzing the qualified immunity defense, should have looked at the reasonableness of each individual agent’s minimization efforts.

Walker said the government was arguing for a “per se ‘two-minute rule,'” that would treat calls under two minutes as objectively reasonable and thus shielded by immunity. They cited the Second Circuit case of United States v. Bynum, 485 F.2d 490 (2d Cir. 1973), where the court held a wiretap that monitored 2,058 in a large narcotics case did not violate Title III minimization requirement.

The Bynum court excluded calls under two minutes from its evaluation of the wiretap because “in a case of such wide-ranging criminal activity as this, it would be too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversations as merely social or possibly tainted.”

But Walker said the Drimal case is entirely different.

“[T]he reasoning from Bynum that it would be too difficult to minimize calls under two minutes is not applicable here where agents could determine in seconds that the calls between husband and wife were entirely personal in nature,” he said.

“Sullivan made it clear that some of these agents were getting their jollies listening to this couple talk about their most intimate details,” Williams said.

Edward Himmelfarb of the U.S. Justice Department’s Civil Division Appellate Staff argued for all of the defendants except Agent Adrian Busby, who was represented by James Glasser of Wiggin & Dana in New Haven.

Williams is a solo practitioner in New Haven.

IMAGE: Craig Drimal in November 2009 Reuters

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