State v. Hebeishy
| Decision Date | 08 December 2022 |
| Docket Number | 20200230-CA |
| Citation | 2022 UT App 136 |
| Parties | State of Utah, Appellee, v. Tamer Ahmed Hebeishy and Jaron Michael Sadler, Appellants. |
| Court | Utah Court of Appeals |
Second District Court, Ogden Department The Honorable Ernest W Jones No. 161900107
Randall W. Richards, Attorney for Appellant Tamer Ahmed Hebeishy
Laura J. Fuller, Attorney for Appellant Jaron Michael Sadler
Sean D. Reyes and Jeffrey D. Mann, Attorneys for Appellee
[1]
¶1 Tamer Ahmed Hebeishy and Jaron Michael Sadler entered conditional guilty pleas to various charges arising out of their participation in an organized criminal street gang. As part of their plea agreements, both defendants reserved the right to appeal the district court's rulings.
¶2 Now, in this consolidated appeal, Hebeishy and Sadler (collectively, Defendants) appeal the district court's denial of a motion to suppress evidence obtained pursuant to a wiretap order allowing for the interception of communications on Hebeishy's mobile phone. Defendants contend that the motion to suppress should have been granted either because (1) the wiretap application failed to meet the necessity requirement of section 77-23a-10(1)(c) of Utah's Interception of Communications Act or (2) the law enforcement affidavit supporting the wiretap application was misleading due to false statements and material omissions.
¶3 Hebeishy also individually appeals the denial of his motion to dismiss two of the four predicate offenses that supported his conviction for pattern of unlawful activity. He contends that the relevant statute of limitations, the state or federal double jeopardy clause, or Utah's single criminal episode statute barred the State's reliance on the two offenses.
¶4 We affirm.
¶5 This is a companion case to and arises out of many of the same facts involved in State v. Sadat Hebeishy, 2022 UT App 134, and State v. Pickett, 2022 UT App 135, both of which also issue today. In short,[2] Hebeishy and Sadler were identified by law enforcement as members of the Titanic Crip Society (TCS), a criminal street gang in Weber County, Utah. As part of its investigation of TCS, law enforcement received authorization from the district court to conduct a wiretap of Hebeishy's mobile phone. Based in part on evidence obtained from that wiretap, the State charged Hebeishy with aiding and abetting graffiti, pattern of unlawful activity, aggravated assault, obstructing justice, and aiding or concealing a youth offender-all but one with gang enhancements. Also based on that and other evidence, the State charged Sadler with pattern of unlawful activity, aggravated robbery, two counts of aggravated assault, vehicle burglary, and assault-all with gang enhancements.
¶6 Before trial, Hebeishy filed a motion to suppress evidence obtained from the wiretap, which Sadler joined, arguing that the application seeking the wiretap order failed to meet the necessity requirement of section 77-23a-10(1)(c) of Utah's Interception of Communications Act and that the law enforcement officer's (Officer) supporting affidavit was misleading due to false statements and material omissions. After briefing and argument, the district court denied the motion, determining that (1) the wiretap application satisfied the statutory necessity requirement; (2) the supporting affidavit "was not inaccurate, false, or misleading;" and (3) even assuming the affidavit was misleading, there had been no showing that Officer acted intentionally, knowingly, or recklessly in making his assertions.
¶7 Hebeishy then filed a motion to dismiss two of the four predicate offenses on which the pattern of unlawful activity charge was based-predicate offense nine for aggravated assault and predicate offense fourteen for assault by a prisoner.[3]Hebeishy argued that the four-year statute of limitations had expired for both offenses before the pattern of unlawful activity charge was filed and thus neither one could be included as a predicate offense. Hebeishy alternatively argued that predicate offense nine had to be dismissed because its inclusion violated the prohibition against double jeopardy and Utah's single criminal episode statute. He reasoned that because he had previously been convicted for riot based on the same conduct giving rise to the aggravated assault offense, the State could not lawfully rely on that predicate offense to prove pattern of unlawful activity.
¶8 The district court rejected these arguments. It concluded that the inclusion of predicate offenses nine and fourteen did not violate the applicable statute of limitations or the double jeopardy clause. Specifically, the court concluded that the State could base a pattern of unlawful activity charge "on charges or events where the Statute of Limitations would have expired." Further, citing Utah and federal authorities, the court expressly rejected Hebeishy's contention that the State's reliance on the aggravated assault as a predicate offense violated the double jeopardy clause.
¶9 Defendants later entered conditional guilty pleas. Hebeishy pleaded guilty to one count of pattern of unlawful activity, obstructing justice, and aiding or concealing a youth offender. Sadler pleaded guilty to one count of pattern of unlawful activity, attempted aggravated robbery, and aggravated assault. Both Defendants reserved their rights to appeal the district court's rulings, and they now appeal.
¶10 Defendants first contend that the district court erred in denying their motion to suppress evidence obtained through the wiretap of Hebeishy's mobile phone. They argue that the district court incorrectly determined that law enforcement had satisfied the necessity requirement of Utah's Interception of Communications Act. They also argue that the court should have suppressed evidence obtained through the wiretap (or at least granted an evidentiary hearing) because the affidavit supporting the wiretap application was misleading due to false statements and material omissions.
¶11 Regarding Defendants' challenge to the district court's necessity determination, the parties disagree over what standard of review applies.[4] Defendants advocate for a mixed standard of review, asserting that we should review the district court's factual findings for clear error and its necessity determination for correctness. The State, in contrast, invites us to review the necessity determination for an abuse of discretion, arguing that we should adopt the standard applied by most federal appeals courts in reviewing necessity determinations under the federal wiretap statute. See United States v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 n.1 (10th Cir. 2002) (collecting cases). We need not resolve this dispute because, even reviewing the district court's necessity determination for correctness as urged by Defendants, we discern no error by the district court.
¶12 Regarding Defendants' challenge based on the alleged misleading nature of the wiretap affidavit, the parties agree that we review a district court's ruling on a motion to suppress for an alleged Fourth Amendment violation as a mixed question of law and fact. See State v. Fuller, 2014 UT 29, ¶ 17, 332 P.3d 937. Specifically, we review the court's factual findings for clear error, and we review its legal conclusions, including its application of law to the facts of the case, for correctness.[5] See id.; see also State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251. ¶13 Second, Hebeishy separately contends that the district court erred in denying his motion to dismiss two of the predicate offenses on which the pattern of unlawful activity charge was based, asserting that the State cannot rely on the offenses because they are barred by the applicable statute of limitations, the double jeopardy clause, and Utah's single criminal episode statute. A district court's denial of a motion to dismiss presents a question of law, which we review for correctness. State v. Rushton, 2017 UT 21, ¶ 9, 395 P.3d 92.
¶14 Before entering their guilty pleas, Defendants sought to suppress the evidence obtained through the court-authorized wiretap of Hebeishy's mobile phone. Defendants argued, among other things, that in seeking the wiretap order, law enforcement failed to satisfy the necessity requirement of Utah's Interception of Communications Act (the Act).[6] See Utah Code Ann. § 77-23a-10(1)(c) (LexisNexis 2017) ().[7] ¶15 The same necessity argument was made by co-defendants Sadat Hebeishy and Brock Pickett in support of their motions to suppress, and the district court resolved the co-defendants' respective motions to suppress together. And although Defendants' appeals of the court's denial of their motions to suppress based on an alleged absence of necessity have not been consolidated with the appeals of their co-defendants, Defendants present materially indistinguishable arguments on this point.[8] For the reasons set forth in companion case State v. Sadat Hebeishy, 2022 UT App 134, ¶¶ 15-33, we reject Defendants' challenge to the district court's determination that necessity for the wiretap order was shown and its denial of their motion to suppress on that basis.
¶16 In addition to challenging the district court's necessity...
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