MOSCOW, May 28 (RAPSI), Ingrid Burke - Attorneys for Illya and Vadim Trincher – two men accused by US authorities of having played leading roles in interconnected Russian-American organized criminal enterprises – claimed last week that some of the evidence that US investigators gathered against them by means of electronic surveillance was leaked to reporters for the New York Times, according to court documents obtained by RAPSI.
In April, US prosecutors and FBI officials unsealed an indictment against the Trinchers and dozens of other defendants charging the group with having committed a range of offenses arising from the operation of two international bookmaking organizations. US prosecutors claimed in a statement accompanying the unveiling of the indictment that the first organization – the Taiwanchik-Trincher Organization, which the elder Vadim is accused of having played a leading role in – is accused of having laundered tens of millions of dollars from Russia and Ukraine into the US. The second organization, the Nahmad-Trincher Organization, which Illya Trincher is alleged to have run – was allegedly financed by a prestigious New York City art gallery.
Attorneys representing the father and son, along with three other individuals, asserted last week that two articles recently published by the New York Times “clearly quote and rely on the Title Three wire taps in our case.” Title Three of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wiretap Act) prohibits the interception and disclosure of wire, oral, or electronic communication with certain limited exceptions.
According to the court documents, the government has denied having leaked the wire taps to reporters.
On the other side of the coin
The Trincher allegations have emerged at a crucial time as far as US government leaks are concerned, as the month of May has played host to a hotbed of claims of the improper surveillance of journalists amidst a hunt for the sources of various leaks.
The Associated Press (AP) reported earlier this month that the US Department of Justice (DOJ) had obtained telephone records for more than 20 separate lines assigned to the AP and its journalists as part of what was described by AP President and CEO Gary Pruitt as a “massive and unprecedented intrusion.”
According to Pruitt’s letter: “Last Friday afternoon, AP General Counsel Laura Malone received a letter from the office of United States Attorney Ronald C. Machen Jr. advising that, at some unidentified time earlier this year, the Department obtained telephone toll records for more than 20 separate telephone lines assigned to the AP and its journalists.”
The obtained records reportedly covered a two-month period in early 2012 and included records from the AP’s general line as well as its bureaus in New York City, Washington DC, Hartford, Connecticut, and at the House of Representatives. Asserting that the entire operation was carried out without notice, the letter asserts that: “even after the fact no notice has been sent to individual journalists whose home phones and cell phone records were seized by the Department.”
The Constitutional argument
He further billed the intrusion as a “serious interference with AP’s constitutional rights to gather and report the news.”
While Pruitt’s letters did not lay out a specific constitutional claim, the first amendment to the US Constitution protects the freedom of the press, stating: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Notably, the Trinchers too pointed to the constitution in urging the necessity of plugging and investigating the leaks at the center of their discontent.
Last week’s court filing went on to assert: “It is our understanding that those wire taps remain under seal. We do understand that they were temporarily unsealed for the limited purpose of the Government disclosing them for discovery to the defendants and their counsel only, however, we assume that they remain sealed for non-discovery purposes. We are very concerned that the privacy, statutory, and constitutional rights of our clients have been jeopardized by someone providing the reporters with these sealed materials.”
Although the Trinchers did not advance a specific constitutional argument in the filing, the Fourth Amendment endeavors to protect against unreasonable searches and seizures. It states in full: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Although the text was added to the constitution in 1791, well before anyone was particularly concerned with wiretaps, it has been extended to electronic surveillance cases on a number of occasions.
In the US Supreme Court case Kyllo v. United States, for instance, the court held that: “Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant.”
Last week’s filing further noted that “the legality of the tapes has yet to be litigated,” asserting that the leak poses a threat to the defendants’ fair trial rights.
The Sixth Amendment of the US Constitution protects the rights of criminal defendants, stating: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
The Washington Post
Several days after the AP story broke, The Washington Post reported that during a leak investigation centering on a State Department security adviser, the US Department of Justice went significantly further: tracking a reporter’s entry into and egress from the State Department, tracing the timing of phone calls, and obtaining a search warrant to peruse his personal emails.
The report was published alongside an affidavit in support of an application for a search warrant, which sought to compel Google to “provide subscriber information, records, and the contents of limited wire and electronic communications” pertaining to a redacted email account in accordance with 18 USC § 2703. The cited law covers scenarios under which governmental entities are entitled to require electronic communication service providers to disclose the contents of certain communications.
The story hit a mass-media nerve by billing the reporter involved as a potential co-conspirator. The affidavit claims that there is reason to believe that the reporter’s communications contain “evidence, fruits and instrumentalities of criminal violations of” the federal law on unauthorized disclosures of national defense information, and then takes it a step further by asserting: “I believe… there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.”
Fox News quoted its executive vice president of news Michael Clemente as having stated: “We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter… In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press."
The reporter’s privilege
Journalists are afforded certain protections under US law.
The relevant section of the US Code of Federal Regulations, for instance, begins by noting the imperative of preserving press freedom: “[b]ecause freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues.” It then stipulates how a variety of civil and criminal scenarios should be handled when journalists are involved.
In requesting authorization to obtain reporters’ telephone toll records, “[t]here should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General's authorization, the government should have pursued all reasonable alternative investigation steps.”
In light of these recent dramas however, it remains unclear whether the protections currently in place are sufficient.
One solution: a press shield law
After the AP story broke, a renewed zeal emerged for the passage of a shield law that would protect journalists from being arbitrarily compelled to give up their sources and other valuable information.
Speaking to this point, press advocacy organization Freedom House issued a statement quoting its president David J. Kramer urging the imperative of a press shield law: “For some time we have been concerned about the administration’s over-zealous pursuit of alleged leakers and the efforts to force the testimony of journalists… Preserving secrecy in national security deliberations is important, but this scatter-shot intrusion into the news-gathering affairs of the Associated Press is truly disturbing. What we’re now seeing is an entirely new level of government involvement in the affairs of a free media.”
Still, it would be vital for a shield law to take into account the interests of those personally impacted by leaks such as that allegedly made to The New York Times.
In closing, the Trinchers sought a protective order with regard to the tapes, transcripts, and wire-tap affidavits, as well as the launch of an inquiry, at the court’s discretion, into the New York Times’ source.
The presiding judge in turn ordered the government to quickly respond to the defendants’ request for a public order, but declined to launch an inquiry into the leak.
According to the court documents, the government produced its evidence to all of the defendants facing charges in the case. In light of this, the judge asserted: “Between counsel and the defendants themselves, therefore, dozens of people have had access to the materials. In light of that, and the present state of the record, the Court declines to commence any inquiry at this time.”
Background: the Taiwanchik-Trincher Organization
The organization’s goals, according to the indictment, were: to enrich its leaders, members, and associates by virtue of illegal gambling, money laundering, extortion, and other offenses; to defend its power, territory, and income by means of intimidation, violence, and threats of physical and economic harm; and to avoid detection in order to continue the cycle of enrichment.
The organization allegedly catered to the interests of oligarchs living in Russia, the Ukraine, and beyond: “Members and associates of the Taiwanchik-Trincher Organization and their co-conspirators worked together on a range of criminal money-making schemes, including operating an international gambling business that catered to oligarchs residing in the former Soviet Union and throughout the world.”
The Taiwanchik-Trincher organization stands accused of racketeering conspiracy and racketeering. The indictment claims that the enterprise engaged in a pattern of racketeering activity, including: supervising an illegal bookmaking operation, conspiring to commit extortion, committing extortion, conspiring to launder money, travelling in interstate and foreign commerce and using the mail and a facility in interstate and foreign commerce with intent to distribute proceeds acquired through unlawful activity.
The organization is further charged with having operated an illegal sports gambling business, having accepted various financial instruments for unlawful internet gambling, and having conspired to launder money.
Among the organization’s namesakes is Alimzhan “Taiwanchik” Tokhtakhounov, who drew attention after being indicted by US prosecutors several years ago over allegations of having engaged in official bribery during the 2002 Winter Olympics, which were hosted by Salt Lake City. In the case at hand, he is accused of having used his powerful status to make both implicit and explicit threats of violence and financial harm. He is alleged to have earned $10 million for his work with the Taiwanchik-Trincher Organization between December 2011 and January 2012.
Vadim Trincher serves as the organization’s second namesake. He is described in the indictment as one of the organization’s leaders who – in that capacity – participated in and profited from various crimes.
The Nahmad-Trincher Organization
Like the Taiwanchik-Trincher Organization, the Nahmad-Trincher Organization is similarly accused by the indictment of having engaged in such crimes as conducting an illegal gambling operation, money laundering, and extortion.
The organization allegedly aimed to enrich its leaders, members, and associates through illegal gambling, money laundering, extortion, and other offenses, while avoiding detection.
Like the Taiwanchik-Trincher Organization, the Nahmad-Trincher Organization stands accused of racketeering conspiracy and racketeering, and of having operated an illegal sports gambling business, having accepted various financial instruments for unlawful internet gambling, and having conspired to launder money. The organization is further accused of having transmitted information aimed at assisting in the placement of bets and wagers on sporting events and competitions.
The organization’s namesakes include Hillel Nahmad and Illya Trincher, who are both described by the indictment as leaders of the enterprise, who participated in and profited from its activities.
The indictment features a plethora of other related charges – 27 of them in total.