Challenging Wiretap Line Sheets and Translations.

While challenging a line sheet is important, the ultimate goal, suppression of intercepted evidence, requires showing a statutory defect. The governing statute for suppression of wiretap evidence is 18 U.S.C. § 2518(10)(a), which recognizes three distinct grounds:

• interception in violation of § 2518(1) (unlawful interception);
• issuance of an order under § 2518(3) that is facially insufficient; or,
• interception that is not in conformity with the orders issued under § 2518(3) (nonconforming interception). In federal court, a person identified as “aggrieved” under the statute is entitled to seek suppression on these grounds. To meaningfully challenge an interception’s adherence to statutory requirements, however, a line-sheet audit must be comprehensive. It is not enough to find a handful of interpretive mistakes; rather, the audit must include comparison of:
• the relevant line-sheet entries with the original recording;
• recordings and relevant metadata, such as timestamps and device identifiers; and,
• other investigative files. Such a thorough examination may reveal a multitude of line-sheet and translation issues. Line-sheet audits can identify entries that were:
• Incorrectly coded (e.g., a conversation coded as involving drug trafficking that is actually a discussion of a joint venture);
• Mistranslated or misinterpreted (e.g., a translated sentence that misses the actual meaning of the original speaker’s dialect or vernacular);
• Incorrectly transcribed (e.g., a transcribed conversation that fails to capture a clear, plain-English phrase);
• Missing from the line sheet; or
• Excluded from the government’s case-in-chief. While interpretive mistakes (e.g., mistranslating a dialect) can be useful for impeachment at trial, they will not, by themselves, justify statutory suppression. In order to move from an interpretive mistake to a statutory defect, the audit must uncover evidence of either:
• failing to comply with the restrictions of a court-approved interception order or a wiretap authorization; or
• issuing an unlawful or facially insufficient interception order.

What Can a Line-Sheet Audit Prove About a Recorded Call?

As an example of the types of materials that federal defense counsel are entitled to receive in the event of wiretap discovery, there is often a line sheet for each wiretap target. While the term “line sheet” has several different definitions, in practice, it refers to a list of intercepted calls that is supposed to list the target, date, time, and any relevant individuals involved.

A successful line-sheet audit also relies on other information. “interception” under 18 U.S.C. § 2510(4) requires the device to be used to ““intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” This statutory phrase is also the basis of a number of cases analyzing the limits of the government’s authority to intercept communications. So, the use of these records will vary depending on how line sheets are being used in the specific case at hand.

However, without a clear understanding of how each of these records relate to the governmental case, a meaningful line-sheet audit may be impossible to execute. These records are essential to analyzing:

• How the recorded calls fit into a broader investigative timeline. This is difficult to reconstruct from the line sheet and call logs alone. While call logs show how call routing metadata allows the government to identify call recipients and call frequency, and monitoring instructions provide insight into how the government’s agents minimized non-relevant communications; it is the full recording, inclusive of metadata and in its unedited form, that provides a complete picture of the time, place, and purpose of the call. - The integrity of the recordings in a wiretap case. Any claim of recording distortion or mutilation must be supported by clear evidence. Metadata, such as storage, transfer, and audio processing records, can help pinpoint changes made during the recording or transfer process.
• Compliance with an interception order. Comparing the government’s application for a wiretap, requests for extensions, the court’s orders, the original recordings, and the government’s monitoring logs can reveal whether the government complied with its orders or if it overstepped its authority in the course of the investigation.

While the federal statute generally provides for wiretap discovery, in actual practice, the government provides only a portion of the materials that are made available for discovery. An exhaustive review of the government’s request for a wiretap, the certification affidavit, the court order, and the intercepted materials can be necessary to effectively prepare a defense, and this requires a clear understanding of both the statutory and evidentiary requirements for each type of interception.

Notably, the federal government’s evidence-gathering process in wiretap cases involves a wide range of documents. Defense counsel should insist on receiving each of the documents that can be relevant, including (but not limited to):

• Applications and affidavits;
• Interception orders and extensions;
• Progress reports;
• Recordings and transcripts; and,
• Line sheets.

How do Speaker Labels and Translations Change the Meaning of Intercepted Words?

Transcripts do not, and cannot, capture the tone of an intercepted conversation, a speaker’s interruptions, or other environmental sounds that might add context or meaning to a conversation. Even when a recording contains no errors and transcription is verbatim, these missing elements (along with imprecise transcriptions of phrases like “I don’t know” or “I’m not sure”) can result in an interpretation of the content that differs from the actual content. This can result in a statement being attributed to a speaker that was never made, a statement being taken out of context, or a conversation’s meaning being lost. As a result, a meaningful line-sheet audit must be thorough, and any mistakes identified must be compared with the audio in order to see what their significance will be if they are used to support a claim for suppression. While translation disputes are also important, they can be more complex as they have nothing to do with mistakes on the transcript and everything to do with interpretation of the speaker’s words. However, despite their significance, there is no established federal procedure for challenging a translation. As a result, defendants must be able to convincingly challenge translations on a case-by-case basis, and this requires having a sophisticated understanding of the language being spoken, as well as the dialect and vernacular the speaker is using in that particular instance. Speaker identification can also materially affect the meaning attributed to an intercepted communication. The words spoken in a recording could be incriminating if the speaker is the lead defendant in a drug conspiracy, but they could be a benign conversation about cooking if the speaker is someone entirely unrelated. The more specific a recording’s content, the more important the identity of the speaker will be to the government’s case and the defendant’s potential defenses. Mis-identifying the speaker will often result in a flawed interpretation of what a recorded conversation means, and this is a key area for a successful line-sheet audit as well. Similarly, context can play an important role in determining whether intercepted communications should be interpreted as innocent or unrelated to criminal activity. Even in a recorded conversation that contains seemingly non-incriminating words, the context is everything, and what appears on its face to be innocent could be interpreted as criminal depending on when and why it was said. On the flip side, prosecutors may argue that common words have a different meaning, that they are coded representations of criminal communications and that, even when words are taken at face value, they point to evidence of the elements of the offense.

Which Title III Defects Can Turn Wiretap Evidence Into Suppressible Evidence?

Under 18 U.S.C. § 2518(8)(a), the federal wiretap statute, “Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.” This is in addition to other Title III requirements for protecting the integrity of intercepted materials. If the seals are not in place when a defendant’s counsel or an independent special master examines them, the burden will be on the government to provide a satisfactory explanation. This is only one possibility, of course, and it is just one that will be at issue in a line-sheet audit where the line sheet itself might reveal additional statutory defects. It’s also important to note that federal wiretap laws are separate from state-level interception laws as well as the laws and rules that apply when the Foreign Intelligence Surveillance Act (FISA) is in play. Each of these has its own unique set of rules and judicial standards. While many of them involve the same fundamental issues, the rules governing each one differs in important ways. This makes it essential that when conducting a line-sheet audit or otherwise challenging a wiretap, you work with a legal team that is well-versed in federal wiretap laws. Similarly, not all failures to comply with the statutory requirements of the federal wiretap statute will result in a successful suppression motion. For example, violations of minimization requirements, the duty to limit the interception of irrelevant conversations, do not necessarily lead to the suppression of the entire wiretap. Instead, defendants can argue that minimization violations should affect the admissibility of specific recordings, and that in some cases, violations of minimization requirements should lead to jury instructions which advise the jury to view such recordings as untrustworthy or as an overreach of the government’s authority. Delays or failures to comply with the sealing requirements of 18 U.S.C. § 2518(8)(a) do not automatically establish suppression of the entire wiretap. While sealing requirements are important and delays raise serious questions, there is still room for a “satisfactory explanation” in the government’s chain of custody for a particular wiretap. If the government can reasonably justify a delay or a missing seal, this may diminish the evidence’s reliability, but it will likely fail to meet the threshold for statutory suppression.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.