Wednesday, October 17, 2012
On October 25th the Second Circuit will hear oral arguments in the Rajaratnam case. There are several significant issues that are likely to be decided here. The three issues presented by Appellant include an improper wiretap application, alleged misstatements upon which the wiretap is premised, and an argument premised on causation and whether the jury instruction was proper in explaining the causation issue to the jury. The government in response spends a significant portion of its brief on the facts and proceedings, not reaching the legal arguments until page 32 of its brief. They focus on whether the "errors and omissions were made intentionally or with reckless disregard for the truth" and whether these errors were material. It really is a sad commentary when the government has to expend so much time on explaining their mistakes and why their mistakes should be overlooked here. The opening line of the reply brief says it all - "Ironically, like its wiretap affidavit, it is what the government does not say in its brief that is most important."
One aspect pointed out in the amicus brief of the National Legal Aid and Defender Association and the Bronx Defenders - "the government failed in upholding its duty of candor to the authorizing court." These hearings are ex parte hearings and candor is crucial for them. This is also emphasized by the retired judges amicus brief (eight former federal and district court judges) who filed their brief in support of neither party. They state,"[f]rom their years of service on the bench, amici are keenly aware that the warrant process depends on the candor and forthrightness of the government, and that deceptive conduct of the kind that the district court found to have occurred in this case makes meaningful judicial review of wiretap applications impossible."
The most fascinating issue is how the government used wiretapping as a key component of this case. Amicus Author Professor Blakely (w/ Tai H. Park), a key author of the Title III of the Omnibus Crime Control and Safe Streets Act of 1968 reminds the Court of the scope of Title III and the need to retain the right to privacy.
It is hoped that the court will also examine the scope of wiretapping, especially in this white collar SEC case.
The briefs -
Appellant's Brief - Download 2012.01.25 Apellant Brief
USAO Brief - Download 2012.04.25 USAO Merits Brief
Appellant's Reply Brief - Download 2012.05.16 Appellant Reply Brief
See Blakely Amicus Brief - Download Prof_Blakey_Amicus_Brief (final)
See National Legal Aid & Defender Assoc Amicus Brief - Download 2012.02.01 Amicus Brief--Nat'l Legal Aid and Def. Assoc
See Retired Judges Amicus Brief - Download 2012.02.01 Amicus Brief--Reitred Federal
See also Grant McCool, Reuters, Rajaratnam's insider-trading appeal set for Oct. 25.