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White-Collar Wiretaps
Last month, we noted how the conviction of Galleon Group's co-founder Raj Rajaratnam, with the help of evidence gathered through government wiretaps, had shaken up the corporate world. Officers and directors of public companies, as well as their lawyers and other consultants, are on notice that the government just may be “listening in.” How justified is their newfound concern, and what can be done to limit exposure to criminal liability? We continue the discussion herein.
Limitations
The legal limitations on the use of wiretaps in white-collar criminal investigations stem primarily from the language of the statute itself. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (codified in 18 U.S.C. ' 2510, et seq.) specifies certain predicate offenses that the federal government must be investigating in order to apply for an electronic surveillance order. 18 U.S.C. ' 2516. Notably, neither securities fraud nor insider trading is one of those predicate offenses. Id. While the proverbial “catch-all” offenses of wire fraud and mail fraud can provide a basis for obtaining warrants to wiretap suspects being investigated for a variety of different activities, the decisions by Southern District of New York Judges Richard Holwell and Richard Sullivan in the Galleon-related cases remain the only legal precedent for allowing the use of wiretaps in an insider trading case, and those decisions will undoubtedly be appealed. See United States v. Rajaratnam, No. 09 Cr. 1184 (RJH), 2010 WL 4867402 at *1 (S.D.N.Y. Nov. 24, 2010) (Holwell, J.); United States v. Goffer, 756 F.Supp.2d 588 (S.D.N.Y. 2011) (Sullivan, J.).
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