State v. Hebeishy and Sadler

Citation: 2022 UT App 136Docket: 20200230-CA

Court: Court of Appeals of Utah; December 7, 2022; Utah; State Appellate Court

Original Court Document: View Document

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Tamer Ahmed Hebeishy and Jaron Michael Sadler entered conditional guilty pleas related to their involvement with the Titanic Crip Society (TCS), an organized criminal street gang. They reserved the right to appeal the district court's decisions, including the denial of their motion to suppress evidence from a wiretap on Hebeishy's phone. The defendants argued that the wiretap application did not meet the necessity requirement of Utah's Interception of Communications Act and that the supporting affidavit contained misleading statements and omissions. The district court denied the suppression motion, finding the application met the statutory requirements and that the affidavit was neither false nor misleading. Additionally, Hebeishy sought to dismiss two predicate offenses for his pattern of unlawful activity charge, claiming the statute of limitations had expired. The court ruled against him as well. The appeals court affirmed the district court's decisions.

Hebeishy argued for the dismissal of predicate offense nine, claiming its inclusion violated double jeopardy and Utah’s single criminal episode statute, as he had already been convicted of riot for the same conduct related to the aggravated assault offense. The district court rejected his arguments, determining that including predicate offenses nine and fourteen did not violate the statute of limitations or the double jeopardy clause. The court stated that the State could charge a pattern of unlawful activity based on offenses where the statute of limitations had expired. It also dismissed Hebeishy’s double jeopardy claim, allowing the aggravated assault to serve as a predicate offense. Both Hebeishy and another defendant, Sadler, later entered conditional guilty pleas to various charges, reserving their rights to appeal the district court's decisions. 

On appeal, the defendants contested the denial of their motion to suppress evidence from a wiretap of Hebeishy’s mobile phone, arguing that law enforcement failed to meet the necessity requirement of Utah's Interception of Communications Act. They also claimed the supporting affidavit for the wiretap was misleading due to false statements and omissions. The defendants proposed a mixed standard of review for the necessity determination, while the State suggested an abuse of discretion standard. Regardless of the standard applied, the court found no error in the district court's necessity determination. The parties agreed that a mixed standard of review applies to the wiretap affidavit challenge. Additionally, Hebeishy separately contended the district court erred in denying his motion to dismiss two predicate offenses, asserting they were barred by the statute of limitations, double jeopardy, and the single criminal episode statute.

A district court’s denial of a motion to dismiss is reviewed for correctness. The Defendants sought to suppress evidence obtained from a wiretap of Hebeishy’s mobile phone, arguing that law enforcement did not meet the necessity requirement under Utah’s Interception of Communications Act. This Act mandates that wiretap applications must include a comprehensive statement regarding the failure or impracticality of other investigative methods. The district court addressed the Defendants' and their co-defendants’ motions to suppress together, ultimately confirming the necessity for the wiretap order as detailed in the case State v. Sadat Hebeishy. 

Additionally, the Defendants claimed that the affidavit supporting the wiretap application included false statements and material omissions, arguing that these flaws undermined the probable cause and necessity determinations. They contended that the district court should have granted a Franks hearing to substantiate their claims. Under the Fourth Amendment, search warrants require probable cause based on truthful assertions by the investigating officer, as clarified in Franks v. Delaware. To obtain a Franks hearing, a defendant must present more than conclusory allegations; they must demonstrate deliberate falsehood or reckless disregard for the truth, supported by proof. Additionally, the allegedly false statement must be essential for establishing probable cause. If proven, the warrant would be voided, and any evidence obtained would be suppressed. This standard also applies to claims of omitted material facts.

To obtain a Franks hearing based on alleged omissions, a defendant must provide substantial proof that an officer intentionally or recklessly left out facts that would prevent the affidavit from being misleading. The defendant must also show that the affidavit, if supplemented with the omitted information, would lack probable cause. Federal courts permit Franks hearings for false statements or misleading omissions that affect the necessity determination under the federal wiretap statute. However, the standard for defendants is high; mere allegations of negligence or conclusory claims of deliberate falsehood are insufficient. The defendant must specifically identify misleading portions of the affidavit, and failure to substantiate claims disqualifies them from a hearing.

In this case, the district court denied the Defendants' motion for a Franks hearing, determining they did not meet the required evidentiary threshold. The court found no evidence that the factual allegations in the affidavit were false or that the officer’s statements were inaccurate or misleading. Even if there were misleading statements, the Defendants could not demonstrate that the officer acted knowingly or recklessly. The court also concluded that the Defendants failed to show that any alleged misleading statements were material to the necessity or probable cause findings, dismissing their arguments as mere disagreements with the conclusions drawn from the affidavit. Moreover, despite the possibility of applying Franks principles to the necessity requirement, the court found no error in its denial of the Franks hearing request. The Defendants' claims were primarily focused on the officer's statements regarding the impracticality of traditional investigative techniques, which the court deemed inadequate for the high standard set by Franks.

Defendants failed to demonstrate that the court erred in concluding that Officer's statements were not false. Officer's account of prior law enforcement efforts against TCS and his reasoning for the inadequacy of traditional investigative techniques to dismantle the gang were found to be reasonable. Despite Defendants' claims of occasional successes with traditional techniques, they could not prove Officer's belief in their inefficacy was false. Additionally, Defendants did not show that Officer knowingly, intentionally, or recklessly made false statements, nor did they establish that omitting these statements from the affidavit would have negated probable cause or necessity. Their accusations of intentional misleading were unsupported by sufficient evidence, and they did not provide a comprehensive analysis of the 180-page affidavit to prove that the alleged omissions impacted the probable cause or necessity requirements.

Regarding Defendants’ claim of intentional omissions, they identified only one: that there had never been an attempt to dismantle TCS. However, they failed to substantiate this claim with detailed proof or demonstrate that the omission materially misled the affidavit or affected probable cause. Consequently, the district court did not err in denying their request for a Franks hearing or in denying the motion to suppress.

Furthermore, Hebeishy contested the district court's refusal to dismiss two of the four predicate offenses related to his charge for a pattern of unlawful activity, specifically challenging the predicate offenses for aggravated assault and assault by a prisoner.

Hebeishy contended that the inclusion of two offenses as predicate offenses in his Pattern of Unlawful Activity Act (UPUAA) charge was improper due to expired statutes of limitations and a potential violation of double jeopardy. The court rejected both claims. UPUAA defines a "pattern of unlawful activity" as involving at least three unlawful acts with related characteristics, requiring that one act occurred after July 31, 1981, and that the most recent act happened within five years of the preceding act. The first predicate offense, an aggravated assault, occurred on September 17, 2008, and the second, an assault by a prisoner, on April 8, 2011. Since both offenses have a four-year statute of limitations and the UPUAA charge was filed on June 22, 2016, Hebeishy argued this timing violated the statute of limitations. However, the court referenced State v. Stewart, which affirmed that expired individual statutes of limitations can still contribute to a pattern of unlawful activity charge. The court explained that allowing expired offenses would not negate the five-year lookback period. The pattern charge itself was filed within the four-year statute of limitations, based on the most recent predicate act occurring on November 30, 2015. Although Hebeishy acknowledged the Stewart precedent, he suggested that it implied a five-year extension on the limitations for all predicate offenses. The court maintained that the statute of limitations for individual predicate offenses does not apply for establishing a pattern under UPUAA.

Hebeishy contends that predicate offenses nine and fourteen are time-barred due to their occurrence more than five years prior to the filing of the pattern of unlawful activity charge. However, the interpretation he relies on from the Stewart case does not support his argument, as the court did not establish a five-year statute of limitations on all predicate offenses under UPUAA. UPUAA requires that the most recent act in a pattern of unlawful activity occurs within five years of the preceding act, without implying a limitation on the underlying crimes. Additionally, Hebeishy argues that there is a distinction between convictions and allegations regarding the statute of limitations, claiming that convictions outside the statute can be included as predicate offenses, while allegations cannot. This argument is also rejected, as it lacks support from both Stewart and UPUAA's language.

The State asserts that Hebeishy inadequately briefed his challenges regarding double jeopardy and single criminal episode principles. Although Hebeishy mentions these doctrines, his argument lacks detailed analysis and fails to demonstrate any violation. The district court ruled that double jeopardy is not violated when prior convictions are used in a pattern of unlawful activity charge, noting that the pattern charge includes an additional element. Hebeishy does not address the district court’s rationale or identify flaws in its reasoning, merely reiterating previous arguments without engaging in necessary analysis.

Regarding the single criminal episode statute, Hebeishy does not adequately connect it to UPUAA or demonstrate how its elements were satisfied. His challenges are insufficient as he fails to fulfill his appellate burden, lacking a reasoned analysis and citation to relevant authority to support his claims.

The party appealing the decision failed to provide a sufficiently reasoned argument supported by legal authority and the record, leading to the rejection of Hebeishy's challenge. The court affirmed the district court's denial of the Defendants' motion to suppress evidence from a wiretap on Hebeishy's mobile phone, finding that the Officer met the necessity requirement under the relevant Act. Additionally, the court ruled that the Defendants did not establish grounds for a Franks hearing regarding claims of misleading information in the Officer's affidavit. The court also upheld the denial of Hebeishy's motion to dismiss predicate offenses based on statute of limitations claims, and he did not demonstrate error in the court's refusal to dismiss offense nine on double jeopardy or Utah's single criminal episode statute grounds. Consequently, the decision is affirmed.