November 25, 2019
Posted by the One Percenter
In the event a federal agency obtains a court order authorizing the interception of your telephone and/or oral communications (room bugs) from your home, business, car, motel room, or even your favorite restaurant, monitoring agents are mandated by federal law to ensure unnecessary intrusions into the private lives of its targets and innocent non-targets. All monitoring agents are instructed by supervising assistant U.S. attorneys ("AUSAs") that the authorization to intercept "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception." (Quoting Title 18, United States Code, Section 2518(5)). This section of the wiretapping and bugging law enacted by Congress requires that the government adopt reasonable measures to reduce the interception of conversations unrelated to the criminal activity under investigation to a practical minimum. In other words, the law is specifically drafted to protect non-criminal, innocent conversations and activities taking place within the sanctity of our homes from overzealous agents.
However, this subsection of the law governing the minimization of intercepted conversations and activities is routinely violated as a matter of course by monitoring agents. In some cases, the agents and AUSAs overseeing these operations are actually given awards for violating sections of federal wiretapping laws.
The Government Pays Up For Its "Disgraceful" Voyeuristic Intrusions
"[N]one of these calls provided agents with any incriminating evidence relating to the charges in [the underlying criminal matter]. To the contrary, [the wife's] marital conversations dealt almost exclusively with personal and family matters. Indeed, in several calls agents listened as [the wife and her husband] carried on discussions of a deeply intimate nature."
(Quoting United States v. Goffer, 756 F. Supp. 2d 588, 591 (S.D.N.Y. 2011).
The judge was "deeply troubled by [the FBI's] unnecessary, and apparently voyeuristic, intrusion into the [target and his wife's] private life[,]" id., at 594, and furthermore characterized the FBI's failure to minimize the interceptions as "nothing short of 'disgraceful.'" Id. at 595.
In the end, government AUSAs from the New Haven, Connecticut U.S. Attorney's Office agreed to pay $90.000 to the wife of the convicted inside trader, purporting it settled to avoid the expenses and risks of further litigation. See Drimal v. Makol, et al., Case No. 3:12-cv-00717-WWE (D.Conn. Jan. 6, 2017)(Docket # 53).
ATF's Lawless Bugging & Should-be Registered Sex Offenders
In the mid-1990s, dozens of ATF and "other authorized agents," along with obliging AUSAs from the U.S. Attorney's Office in Milwaukee took their voyeurism to a new level of conscience-shocking perversion. ATF wiretapped and bugged two private homes in Racine Wisconsin, recording hundreds of hours of conversations and activities over the span of several months. Orchestrating the interceptions was AUSA Paul L. Kanter and (now retired) ATF Special Agent Sandra M. DeValkenaere, a/k/a, "Sharon Walker." They were both responsible for preparing minimization instructions for the monitoring agents. On January 5, 1995, a meeting was held on the minimization instructions regarding general listening procedures and record-keeping requirements. The minimization instructions further contained a list of the named targets in the interception orders and the purpose of the phone taps and room bugs. The agents additionally were sworn in acknowledging the rules and law governing the interception of private conversations from non-targets of the investigations, i.e., family members within the respective homes, guests, and innocent incoming-callers. Despite their oath to follow instructions on minimization, ATF voyeurs indulged themselves by routinely recording the full duration of private conversations of adolescent children, teens and non-target adults conversing with family or friends. The agents additionally deployed physical surveillance, and on several occasions, startled occupants of the homes discovered peeping-tom agents peering through bedroom windows and lurking around the premises.
ATF Perversion Escalates
More despicable, in order to facilitate conversations within one household, Agent DeValkenaere provided government funds to an ATF informant, Patricia Wolf, a/k/a, "New York," to purchase cocaine and subsequently distribute the drugs to the occupants of the bugged home to cause them to converse about ATF-desired subjects under altered states. Afterwards, and even more stunning, this paid ATF succubus would engage in aurally graphic sex acts mere inches from her handlers' bugged lamp. Several of the monitoring agents, again, indulged themselves for months by listening and recording hours of non-minimized, animistic moans and groans that would make Howard Stern and Larry Flint both cringe. During the (pre-determined) litigation surrounding the legality of the tapes, AUSA Kanter reluctantly admitted that the agents he supervised "inexplicably monitored non-relevant conversations for periods in excess of the minimization requirements" by way of a bugged lamp which included the graphic, widespread recordings of "sexual encounters" featuring the cocaine-fueled informant and her unsuspecting husband. (Quoting United States v. O'Neill, et al., Case No. 97-CR-98, (E.D. Wis., April 6, 1998)(Docket # 459 at 23). Recording sexual relations is an egregious violation of someone's human dignity. Similarly situated offenders face jail time and are listed on the state Sex Offender Registry for 15 years. AUSA Kanter conceded that the agents' voyeuristic conduct was "offensive," but further pitched to the district court that it merely "demonstrate[d] only that one or two agents out of fifty or more who were involved in the operation failed to comply with the established procedures on some occasions." Id. The monitoring agents' actions were strikingly similar to the reprehensible acts of the man that was sentenced to 30 months in prison for stalking ESPN reporter Erin Andrews and videotaping her in the nude through an altered peephole in her room at the Nashville Marriott.
The DOJ & Judiciary Merge And Become Partners In Crime
Both the supervising AUSA and ATF case agent chose to remain silent on WHY they allowed months of graphic sexual encounters to be recorded with no minimization whatsoever. These should-be registered sex offenders once again escaped without any sanctions. Instead, what followed was a calculated scheme to cover-up the government's blatant criminal and civil violations of federal wiretapping laws. On November 6, 2002 in Washington, D.C., (as the 7th Circuit Court of Appeals was still deciding the legality of the government's bugging operation), then-Attorney General, John Ashcroft, sent a clear message to the court of appeals by presenting AUSA Kanter with the "Director's Award" in part for his "superior performance" in the "wiretaps." Less than a week later, three Reagan-appointed judges in Chicago obliged with a legal fiction that Ripley wouldn't believe. In one of the two homes bugged, continuously for 24 days prior to the issuance of a warrant, every spoken word and activity occurring from within the residence was simultaneously captured and broadcast by way of radio frequency into the airwaves which effectively converted the home into a live local radio station for anyone to listen with a handheld scanner. Congress enacted 18 U.S.C. § 2511(1)(b)(ii) as part of a comprehensive scheme for the regulation of electronic surveillance and in plain language statutorily proscribed the conduct of—"ANY PERSON WHO intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any ... device to intercept any oral communication when such device TRANSMITS COMMUNICATIONS BY RADIO ..."Congress's intent with § 2511(1)(b)(ii) is clear, the statute is preventative, prior to a warrant it does not contemplate law enforcement's self-restraint to not listen in on conversations and activities while they are broadcasted to the world by way of radio frequency. Whether any of the "fifty or more" agents documented as positioned around the home prior to court authorization will ever admit they recorded or listened to communications and activities is immaterial to establish a felony violation of section 2511(1)(b)(ii).
The court issued an "opinion" holding that it is "good police work" to place and activate a fully functioning bug in a private home as long as the agents positioned around the residence tell us they were not recording or listening to conversations until a warrant issued. The court furthermore crafted a fiction to legitimize the felony crime:"[The agents] did not violate statutory limits on eavesdropping; until interception begins, a bug is nothing but a 'tracking device' under 18 U.S.C. Section 3117(b)."
(Quoting United States v. Warneke, 310 F.3d 542, 545 (7th Cir. 2002)(as amended)).
In other words, the warrant-less bugging condoned by the 7th Circuit "in effect place[d] [fifty or more] invisible policeman in the home," Berger v. New York, 388 U.S. 41, 65 (1967)(Douglas, J. concurring), that claimed to keep their ears covered and eyes shut until a warrant was obtained weeks later. This Orwellian capability, of course, would have frighteningly absurd consequences and is in direct and unequivocal opposition to the core concept of both the federal wiretapping and bugging statutes and U.S. Constitution. Since its holding 17 years ago shielding the government actors from criminal liability, NO COURT has ever followed the 7th Circuit's legal fiction devised in United States v. Warneke.
