Simels v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari.

Brief filed: 02/28/2012


Simels v. United States

United States Supreme Court; Case No. 11-947

Prior Decision

Decision below 654 F.3d 161 (2nd Cir. 2011).


In the decision below, the Second Circuit held that the defendant’s testimony could be impeached with portions of an illegally obtained wiretap that the trial court had suppressed under Title III of the 1968 Omnibus Crime Act (18 U.S.C. §2515) (“the Wiretap Act”). In the context of Title III wiretap intercepts, the constitutional protections of the Fourth Amendment are a floor, not a ceiling; §2515 provides more protection than the Fourth Amendment in that the statute provides that illegally obtained oral or wire communications shall not be “received in evidence in any trial.” The judicially-created impeachment exception created by the Second Circuit collides with the fundamental protections underlying Congress’s enactment of Title III.

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Joshua L. Dratel, Dratel & Mysliwiec, P.C., New York, NY.